Sir – Despite exaggerated claims from industry bodies and state governments, the Commonwealth’s proposed reforms to the Native Title Act 1993 are modest, straightforward, and long overdue. These changes leave many of the large problems in the native title system unchanged, but they address some of the small problems that can be easily fixed.
The amendments would allow the recognition of native title in conservation areas to be negotiated between traditional owners and governments and would strengthen the requirement for developers to negotiate in good faith with traditional owners before commencing projects on their land.
We support the proposed amendments, but recommend that they go further.
These issues are human rights issues because they go to matters of racial discrimination, cultural survival and the availability of sustainable livelihoods.
Currently, native title holders – even after they have proved their rights in Court – don’t have any real control over what happens on their land.
When a developer wants to run a project on native title land, they have an obligation to negotiate with the traditional owners, but, after six months, they can break off negotiations and go to the Native Title Tribunal for an arbitrated decision. 95% of those tribunal decisions allow the project to go ahead, and the tribunal doesn’t have the power to impose financial benefit conditions.
So many traditional owners say that they are forced to negotiate with a gun to their head – they know that virtually any deal they agree to is better than what will happen if they don’t agree.
The proposed amendments will not change this basic structure. The underlying power imbalance will remain.
Miners and other developers will still be able to gain approval for their projects regardless of the consent of the traditional owners. The only difference will be that developers will need to show they have taken “all reasonable efforts” to gain the traditional owners’ agreement, before going to the Tribunal for an arbitrated decision.
The phrase ‘all reasonable efforts’ reflects the wording in the Preamble of the Act, which sets out Parliament’s intention that “acts that affect native title should only be able to be validly done if, typically, they can also be done to freehold land and if, whenever appropriate, every reasonable effort has been made to secure the agreement of the native title holders through a special right to negotiate”.
In one 2009 case, a mining company spent much of the 6 month negotiation period working on a “negotiation protocol” to govern how negotiations would be conducted, but then pulled out of the actual negotiations just after they had begun, in order to get an arbitrated decision from the tribunal. The tribunal found that the company had done everything the legislation demanded of them: there was no duty to show that the parties’ attempts to reach agreement had failed, only that some negotiations had occurred within the six month period.
This sets the bar so low as to be virtually meaningless.
Former Attorney-General, Nicola Roxon, recognised the shortcomings of the current legislation in June 2012 in a speech to the National Native Title Conference in Townsville, saying that parties are currently able to ‘[pay] little more than lip service’ to the need to negotiate in good faith’.6 In response, the Ms Roxon promised to ‘legislate criteria to outline the requirements for a good faith negotiation’.
Stephen Keim
President
Australian Lawyers for Human Rights
Tuesday, April 23, 2024
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