How the High Court failed native title


Aboriginal AustraliaIn popular discourse — particularly in mining states such as Western Australia and Queensland — native title is often viewed as bureaucratic red tape that holds back industry.

Along with obligations under Aboriginal heritage protection and environmental legislation, native title is seen as yet another box that miners need to tick before being granted permission to get on the ground. The old 'State's rights' hackles still bristle in the West; a recent review of approvals processes in WA characterised legislation such as the Native Title Act as an 'intrusion' by the Commonwealth Government.

What tends to be forgotten in the concern about native title 'slowing down industry' is the fact that the Native Title Act has never given Aboriginal people a right of veto. Native title claim groups cannot simply elect to prevent a mining lease being granted or a project taking place.

It should also be noted that this month, the High Court refused a native title claim group's application for leave to appeal the Full Federal Court decision of FMG Pilbara Pty Ltd vs Cox. FMG vs Cox concerned a mining lease in the Pilbara — the remote North-West of Western Australia.

FMG vs Cox concerned the company's obligation to negotiate in good faith with two native title claim groups whose traditional country was included within the lease. The Court held that FMG had discharged its duty to negotiate in good faith despite the fact that there had been no substantive negotiation on the mining lease in question with either group. Indeed, discussions with one of the claim groups had largely focused on a negotiation protocol rather than a final agreement.

This decision sets an unfortunate precedent for negotiations with traditional owner groups. The main reason mining companies 'come to the table' to negotiate with native title claim groups is precisely because the Native Title Act obliges them to do so: before certain mining and other tenures can be granted, the proponent and the relevant government must negotiate in good faith with any registered claim groups within a period of six months with a view to reaching an agreement.

If negotiations do not bear fruit, the proponent can apply for a determination that their interest in land may be granted. There is no requirement to enter into an agreement, no obligation to pay mining royalties or hire local traditional owners, and the statutory requirement of good faith negotiation applies equally to native title claimants as to mining companies.

Only once in its 15 years of operation has the National Native Title Tribunal determined that a mining lease must not be granted, an event hyperbolically characterised by industry commentators as evidence that native title continues to 'cast a long shadow over the country's mining sector'.

The Tribunal can only proceed to make a determination whether a tenement can be granted if the grantee and government parties have negotiated in good faith. The Tribunal has noted that surface compliance with the formal steps of the NTA, with no genuine attempt to reach agreement, will not constitute good faith negotiation. Determining the sincerity or otherwise behind a proponent's conduct is no easy task: the Tribunal is, sadly, not a mind-reader.

Previous decisions have clarified that proponents need not make reasonable substantive offers, assist in funding the negotiation process, or even, necessarily, meet personally with the native title claim group. Further, in only four cases has the Tribunal found that a grantee or government party has failed to negotiate in good faith. Such parties are not punished by being deprived of their tenement but are simply sent back to the negotiating table to try again.

Native title rights, including the right to negotiate, are more than 'processes' requiring 'effective and efficient administration'. The industry discourse which sees native title as mere bureaucratic regulation belies its nature as property law; the recognition of proprietary rights existing under Aboriginal and Torres Strait Islander laws and customs.

For this reason, the meaning of negotiation in good faith is not an esoteric legal question. This statutory entitlement is the only opportunity for native title claimants and holders to be involved in decisions about their traditional country and to attempt to derive benefits from any profitable activity within it. The relative ease with which companies can access land without substantive engagement with native title claimants and holders is a matter of concern for anyone who cares about equality under the law.

The Native Title Act is premised on the resolution of disputes by agreement and there is a preference on the part of most players in the system to avoid recourse to the courts. Unfortunately, the increasing limitations of the right to negotiate suggest that claimant groups will need to take a more adversarial approach to negotiations in order to preserve and maximise their procedural rights.

Sarah BurnsideSarah Burnside is a solicitor with an interest in history, politics, native title and nationalism. She works at the Yamatji Marlpa Aboriginal Corporation (YMAC), which represents native title claim groups in the Murchison, Gascoyne and Pilbara regions of Western Australia. The views expressed in this article do not necessarily reflect those of YMAC.

Topic tags: sarah burnside, native title, FMG Pilbara Pty Ltd vs Cox



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Existing comments

Not only are the laws made by white men,they are dictated by white man thinking for white man interests.
Would that more white men could walk in black men's shoes.
Ray O'Donoghue | 26 October 2009

Surely I’m missing something here: the Full Federal Court held that a statutory duty to negotiate in good faith had been met despite the fact that there had been no substantive negotiation on the mining lease in question; and the High Court refused leave to appeal that decision.

What does ‘good faith’ mean?

In the circumstances, Sarah Burnside’s conclusion seems inevitable, namely that such limitations on the right to negotiate suggest that claimant groups will need to take a more adversarial approach to negotiations in order to preserve and maximise their procedural rights. I hope they do!

Peter johnstone | 26 October 2009

Hi Peter.

Unfortunately, the legal definition of 'good faith' (as set out in the case law on the Native Title Act) differs from the general understanding of 'good faith'. It is this fundamental limitation that reduces the value of the right to negotiate.
Sarah Burnside | 26 October 2009

the Native Title (NT)act is predicated upon the false assumption that either the State, Commonwealth or Crown have EVER held ANY form of Sovereign status within this continent. This has NEVER been the case as the parliament of Westminster has been statute barred (stopped by law) from 'extending or construing to extend' sovereignty or dominion into this continent since at least 1872, but most assuredly since the creation of the Act of Settlement 1701 UK.

Miners would do much better if they actually dealt with the Sovereign owners of lands they wish to exploit. The Origine Sovereign people know the state of play - it is merely the criminally fraudulent state and commonwelath government (who are heading for the Hague at a frightening pace under quantum law applications being prepared) that are hard to get along with.

What is it about dealing with the Origine Sovereigns that mining company execs despise so much? Is it the thought of treating black fellas as equals on their own lands?

Regardless of reason - they had best get used to the idea and soon and start showing they have the integrity to be morally and legally compliant with the factual status of the Origine peoples and their Sovereignty.
Mark McMurtrie | 27 October 2009

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