The dominant discourse in native title amendments is that of … coal?

In June 2015, the Australian Law Reform Commission handed down its final report into the Native Title Act. Amongst its recommendations was the amendment of provisions for the process of authorising Indigenous land use agreements (‘ILUAs’).

Coinciding with the ALRC Report, the Northern Development White Paper proposed a fund to settle all native title claims within a decade.

There has been no response to either the Report and the White Paper that might indicate just how native title processes might be improved, let alone settled, in the short or medium term. All of a sudden however, native title reform is back in vogue. But the heat of debate over proposed changes to ILUA authorisation masks what is at stake.

What is native title?

Native title is the response of the common law (or the Anglo-Australian legal system) to the reality of prior possessory interests in land, vested in Aboriginal and Torres Strait Islander Australians. Native title is a common law construct, a means of recognising the types of interests held by traditional owners.

As a system, enshrined in the Native Title Act as interpreted by the courts, it requires traditional owners to bring a claim against state government. Traditional owners must prove that the state has not extinguished their interests, and that they have maintained their connection with land according to the laws and customs in place when Australia was colonised.

If the claimant groups are successful, then the court will declare their ‘native title’. The rights and interests that comprise that native title will depend on traditional law and custom. The common law does not interpret traditional laws into familiar English land law. Instead, it recognises the ‘content’ of native title according to the laws established by  the norms of the claimants’ own legal system.

Despite the reality of traditional laws for Aboriginal and Torres Strait Islander Australians, the system established by the Australian Parliament and interpreted by Australian courts, places a heavy onus on people who have borne the brunt of colonisation. Native title is thus a fragile interest. Not fragile in terms of how traditional interests are understood by Aboriginal and Torres Strait Islander peoples, but fragile in that the common law system first makes it difficult to gain recognition, and secondly will erode those native title rights at every opportunity.

The ALRC Report sought to deal with some of the difficulties inherent in this system, including the nature and  content of native title, the meaning of ‘traditional’ laws and customs, connection, and proof and evidence. The Report also helpfully reminds us of the purpose of the legislation. Indeed it is the Act’s purpose that remains one of the more hopeful pillars of native title.

The people of Australia intend:

     (a)  to rectify the consequences of past injustices by the special measures contained in this Act, announced at the time of introduction of this Act into the Parliament, or agreed on by the Parliament from time to time, for securing the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders; and

     (b)  to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire.

ILUAs

In recognition of the underlying interests of Aboriginal and Torres Strait Islander Australians, the Native Title Act also affords traditional owners the right to negotiate in respect of activity on land that is likely to interfere with native title. For example, if a government seeks to grant a mining licence over an area of land subject to native title, then the traditional owners have a right to negotiate an agreement about the use of that land and its effect on their interests.

In broad terms, [ILUAs] can allow persons other than the native title holders to carry out activities on land or waters, referred to in the Act as “future acts”, and affect any native title rights and interests held in that land or waters, without those acts being invalid under the provisions of the Act that protect native title.

Although traditional owners will be a whole community of people, that community will be represented both in the claim process and the ILUA negotiation process by a few named representatives. Those representatives have the authority to enter into the ILUA on behalf of their people.

As with any group of people, there can be disagreement on the terms that will bind the group. Until February 2017, it had been accepted that agreement by a majority of the representatives would suffice to bind the whole group to the ILUA.

In February 2017, however, the McGlade decision was handed down. This decision related to longstanding claims by the Noongar people of Western Australia. The claims had apparently been settled with the WA government, through entry into a complex series of agreements known collectively as the South West Native Title Settlement.

The resulting ILUAs were challenged on the basis that not all of the representatives had entered into the ILUAs. Some named representatives did not agree, and others had died before the ILUAs were finalised, so of course did not enter into them. The Court had to read the statute closely to see if its language required every single named representative to enter into the ILUA for it to be binding. It found that indeed they did.

The effect of the decision is that existing ILUAs may be challenged if not all representatives had signed. This creates uncertainty for existing traditional owner groups and of course, for those who thought they had complied with the Native Title Act in relation to their activities on native title land.

It also creates a higher hurdle for claimant groups, in securing the agreement of every named party.

In the interests of certainty in the law, it is clear that the Act requires amendment. In response, the government promptly introduced amendments to the Act. These are presently before the Senate. The answer however, is not quite that simple.

Whose interests are being served?

The proposed amendments have received a mixed response. On the one hand, traditional owner groups who are receiving negotiated benefits from registered ILUAs are keen to see the amendments go through. So too are miners and other interested parties. These parties are all seeking a procedural amendment ensuring the protection of existing interests.

On the other hand, many traditional owners are keen to be involved in the process of amendment. In particular, there are claimant groups presently challenging ILUAs before the courts. Naturally, these groups do not want to lose their ability to test the validity of the ILUA that affects them. This is no mere procedural issue. These parties have a substantive interest at stake in the amendments.

These nuances are largely absent from the current debate about the amendments (although listen here to lawyer Peter Seidel discussing the issue on RN Drive). Overtaking the prioritisation of Aboriginal and Torres Strait Islander voices is the dominant government narrative, encapsulated in Prime Minister Malcolm Turnbull’s promise to Indian mining company Adani:

Prime Minister Malcolm Turnbull has assured senior executives from Adani that native title issues threatening the Indian multinational’s proposed $21 billion Carmichael coal mine in Queensland’s Galilee Basin will be fixed.

…the important priority, in terms of both native title owners and development generally, is to get the McGlade issue dealt with…

As is generally the case with Aboriginal and Torres Strait Islander issues however, it is the process that is troublesome as much as the outcome. And in this case, having failed so far to address the ALRC recommendations, which include recommendations concerning ILUAs, the government is conflating the procedural issues of validation of existing agreements with current and substantive claims of Indigenous Australians.

If there is any doubt about the correct course of action in enacting the requisite amendments, it must surely lie in the objects of the Native Title Act itself. The Act does not exist to facilitate the investment of global corporations. It exists to give voice to the interests and aspirations of Aboriginal and Torres Strait Islander Australians. And its provisions, including the way in which they are enacted, must honour that purpose.