Native Title General
Native title was formally recognised in Mabo when the High Court overturned the doctrine of terra nullius which had previously denied Indigenous people claims to customary land rights which predated the colonisation of Australia.
The High Court also relied upon the application of the Racial Discrimination Act 1975 to Indigenous land rights ruling that it would be discriminatory and contrary to the RDA to not recognise Indigenous forms of land tenure.
The Mabo case triggered a period of intense political debate and lobbying as Indigenous groups, mining companies, pastoralists and the State all sought to ensure their interests were protected as the Commonwealth considered how to legislate native title.
Ultimately the Native Title Act is significant and its strength may yet to be fully tested. It provides some strong rights such as the right to control who can access country in exclusive possession areas. As such any visitors to Wilinggin exclusive possession native title areas, outside of designated camping areas, must have permission from WAC. Importantly it also gives the right to run a (commercial) carbon project which is instrumental in the development of many groups.
That said the Act represents a compromise between the various different interest holders. The practical implications of the political bargaining that underpinned the Native Title Act were never more apparent than in the future act regime which dictated how native title rights intersected with development interests in land. The election of John Howard and the development of the 10 point plan signalled the start of a systematic weakening of native title and the future acts regime and it is reasonably well established that whilst native title gives traditional owners a seat at the table, it does not give them a right to say no to proposals.
The main areas of the legislation which enable development at the expense of native title apply where native title groups and mining companies/developers have been unable to reach agreement in the good faith negotiations mandated by the Native Title Act. Essentially if no agreement can be reached, the matter is referred to the National Native Title Tribunal (NNTT) which considers whether the parties have negotiated in good faith and, assuming they have, whether the proposed development can be done having regard to certain criteria.
The NNTT has only decided in native title group’s favour on a handful of occasions and generally the inclusion of criteria which references the economic significance of the proposed development and the public interest in the proposed development proceeding mean that it is difficult in more remote, economically underdeveloped regions of Australia to establish grounds on which the development should not proceed. Equally in more developed parts of Australia where native title rights and cultural knowledge has been ravaged by the impacts of colonisation, it can be difficult to prove sufficient cultural and social impacts on native title rights to satisfy the NNTT’s requirements around impacts on native title.
What this means practically in negotiations is that mining companies and other developers know that the they have the law on their side when negotiations start. If negotiations do not yield a negotiated outcome then it is almost certain that a mining company or commercial developer will have their mining licence or project approved. This places huge pressure on traditional owners do reach agreement within the prescribed time period. This pressure is increased because larger projects with bigger impacts tend to have broad political and community backing as well as having the public interest/State economic interests criteria in the Native Title Act in their favour.
The rules which govern the native title negotiation game are compounded by the massive inequity in the financial resources of the players. Whist resource companies, commercial developers and governments are well resourced and “lawyered up”, native title groups with little or no financial capacity are heavy reliant on the resource companies themselves to fund negotiations. The system creates the unusual outcome where a mining company only needs to fund negotiations at a sufficient level so that they satisfy the threshold procedural question of whether there have been negotiation in good faith. If negotiations become difficult, protracted or even if a native title party is not satisfied with the economic, cultural and environmental aspects of the agreement offered to manage the impacts of the project, a mining company or commercial develop can simply elect to cease funding negotiations which for most native title groups, makes it very difficult for them to continue to engage in the process.
It has been said that native title groups are land rich but cash poor and that if they made better use of their land assets they would become more independent and less reliant on mining companies and government to prop them up financially.
It is important to understand that when a native title group is able to establish native title (which often takes many decades in the court) they receive a form of land title that is not recognised in the mainstream Australian Torrens Title system. The way that the Native Title Act works is to provide native title holders with similar or the same procedural rights as ordinary legal title holders (ie when a third party such as a mining company or government wants to do something on that land) but it does not bestow any positive legal rights to use the land other than for the exercise of customary rights.
Therefore whilst native title holders are certainly able to camp, fish and carry out cultural business on native title land, they cannot grant lease, licences or borrow any money against their native title holder. The inconsistency and non-alignment between mainstream torrens title land tenure systems and native title land tenure systems is one of the biggest hindrances to Indigenous economic development and when one considers the relative weakness of the procedural rights enshrined in the native title act, places native title holders in a severely diminished position.
Whilst there are a large number of indigenous held pastoral leases in the Kimberley and other forms of land tenure held by Indigenous interest holders, there is often a disconnect and inconsistency between the corporation that holds the native title and the corporation that holds the overlying tenure. This creates an additional layer of complexity and is often the source of many of the intra-indigenous conflicts that stymie attempts for Indigenous people to economically capitalise on their land assets.
The constant change in government policy has seen a mish mash of outcomes on Indigenous land with the result today constituting a confused cocktail of the ATSIC era outstation movement, the conservative government policies around assimilation and practical outcomes and a system of Aboriginal reserves which has effectively entrenched the living structures which were established back in the mission days.
As native title and PBCs develop and mature, there is likely to increasingly be a call to align native title with mainstream land tenure and to create better and more appropriate forms of land tenure to support the aspirations, responsibilities and cultural governance structures of traditional owners.