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Native Title Act Amendments

Native Title Act Amendments

Most of my clients and groups that I work with are Traditional Owners. This article is released for their benefit and encouragement, but I hope that government, industry and the general public also have a read.

We all know the catalyst (not the root cause) that has lead to the proposed amendments. These include a recent court case in WA and a live scenario that has been unfolding in Queensland for some time…both involving mining companies, with many more potentials out there.

First up, the amendments being put forward should not effect the workings and land use agreements entered into by groups that hold a Native Title Determination via the Prescribed Body Corporate (PBC) organisation that is required under the Act. The cases in WA and QLD involve groups that do not yet have a Determination and no well-established PBC.

In the cases currently in the media, yes these groups have a list of Native Title Applicants attached to a Native Title Application (which can take years to reach a Determination), and the mining companies have chosen to enter into Indigenous Land Use Agreements (ILUAs) based on the signatories of an Application. Without the security of a Determination (confirming in law who the family groups and individual Applicants are), and without the structure, governance and compliance of a well operated PBC, this has the potential to cause issues down the track, as we are now seeing.

In my view, and my work, PBCs are the cornerstone for groups’ strong and inclusive engagement with industry, and the development of a variety of economic pathways that marry with a group’s cultural and social drivers.

I realise industry proponents have projects that they want to progress in time-frames that don’t marry with the years it takes for Determinations and PBCs to be established. However the current situation is like planting a crop before the ground has been prepared. Fingers crossed the crop might yield well with little work. Or it might need lots of work along the way and still result in a poor yield. Or the crop might completely fail due to only minor inclement conditions. This is the risk currently being run all over Australia. Any proponent with tenement over country has years to prepare, and they should have clear strategies and pathways to progressively engage with Traditional Owner groups pre and post Determination and PBC establishment. Groups also need to hold this mindset pre and post Determination and PBC establishment, with representatives regularly meeting and discussing with any proponent holding tenement on country, and the sharing of that information across the group. The door needs to swing both ways.

It is important to remember that (even with a degree of Indigenous consultation in their creation) the Western constructs of Native Title and ILUAs are completely foreign to Indigenous Australian culture. This ancient culture most certainly has loooong experience in law, negotiations, agreements, trade, cultural exchange, sustainable outcomes etc, a fact which is taking a long time to enter the broader Australian consciousness. At a government and legislation level it is still not being adequately recognised and brought to the table. At an industry level, many lack the expertise and awareness and simply rely on the ambiguous “Law Of The Land”, often taking a “compliance” view and “minimum compliance” approach.

ILUAs are not exclusive to the mining sector. Utilities, infrastructure and pastoralists are some other industry examples. ILUAs should not be viewed by anybody as simply compensation or right of access to undertake cultural practice on country. Well constructed ILUAs involving well organised groups (and their PBCs) and progressive industries are also about Indigenous & Traditional Owner economic participation (business and jobs), wider economic pathway development, protection of cultural heritage and protection of the environment. Industry development and cultural heritage / environmental protection are not mutually exclusive. I am talking about “sustainability” in the broadest sense.

So while there is some merit in the thinking behind the amendments being put forward, the developers of the Bill and the House Of Representatives need to consider them very carefully. By this I mean thinking within the context of the whole Act, consulting exceptionally well with Indigenous representatives (who in turn must consult exceptionally well amongst Indigenous communities), and I should think a bi-partisan approach within Parliament would be sensible.

For those interested in tracking the amendments to the legislation in question, here is a useful link.