NATIVE TITLE IN WESTERN AUSTRALIA
Last week the Birriliburu people celebrated their strong connection to country in a native title determination covering 66,593sq km of their Central Desert land.
This comes relatively soon after the Federal Court upheld appeals made by both the State and Federal Government that left the Single Noongar native title claim in limbo on 23 April 2008 . This followed a dismissal in February 2007 of the Wongatha native title claim, fought in the Courts for over 10 years. In both cases the aspirations of native title claimants, their families and communities were put right back to square one.
The result of both these claims highlights the urgent need for a new approach to native title throughout Australia, particularly in Western Australia. The Federal Attorney General has recently indicated just that, announcing in February 2008 a new attitude and a new way of doing business in native title. He insists that native title can play a key role in forging a new relationship between Indigenous and non-Indigenous Australians.
The Attorney General acknowledged that native title is but one way of recognising Indigenous peoples’ connection to land, however it was time to move away from technical legal arguments about the existence of native title. In other words, it is time to move away from the often tortuous struggles that drag on through years of appeals and counter-appeals in the Courts and to look at the principle that the recognition of Indigenous peoples’ ongoing connection with their land should be resolved by negotiation and mediation not litigation.
Of course, we have heard this mantra before in Western Australia. The Labor Policy Platform on native title from 2001 has been “Mediation not Litigation” – yet we have only seen mediation in areas where rich industry companies were seeking access to land.
In the Pilbara for example we have seen the Burrup and Maitland Industrial Estates Agreement where the Government negotiated a deal with the Ngarluma Yindjibarndi, Yaburara Mardudhunera and Wong-Goo-Tt-Oo peoples to allow companies such as Woodside access to areas of land on the Burrup Peninsula – an area rich in ancient Aboriginal rock art. The agreement provides that in exchange for the peoples’ consenting to the surrender and permanent extinguishment of native title to the area, they would receive a number of substantial benefits. Rock art has since been systematically destroyed or moved to create space for Woodside’s Pluto gas project.
A more positive deal was negotiated by Argyle Diamond. In September 2004 Argyle signed a Participation Agreement with Traditional Owners of the Miriuwung, Gidja, Malgnin and Woolah peoples. This agreement included employment, training and business opportunities for Traditional Owners and their families for the expansion of the Argyle site. The Participation Agreement recognises Traditional Owners as the landlords of the Argyle mining lease, while recognising Argyle’s right to continue its current and future mining operations. The Agreement establishes a long term relationship between the company and the Traditional Owners.
More recently the focus has turned to the Kimberley with the State Government and several mining companies negotiating to develop a single gas processing hub on a site suitable to the Traditional Owners of the region. The Browse Basin off the West Kimberley coast is the site of massive gas reserves, reserves that have the potential to be the biggest resource development certainly in Western Australia, perhaps in Australia. Native Title claimants, through the Kimberley Land Council are engaged in a process of negotiation that will bring significant benefits to Kimberley communities. The KLC and the native title claimants they represent are pursuing a deal with the State Government and the resource companies to ensure Kimberley communities get the best possible deal. It is being seen not only as a challenge to protect the natural environment, but also as an economic opportunity for Indigenous people throughout the region.
The Chair of the National Native Title Council, Mr Brian Wyatt, stated in a speech delivered at the recent Native Title Conference that “there has never been a better time for creative thinking in relation to native title, and tinkering around the edges of the system will not deliver meaningful outcomes for traditional owners. Nor will it allow Australia to hold its head up on the international stage. How we deal with native title is a fundamental test of who we are”.
The native title system should rather be seen as an avenue of economic development. What is needed is some policy and legal imagination that can close the gap between current understandings of economic development and the traditional rights to hunt, fish and gather. If we begin with the assumption that traditional owners have the right to benefit from the exploitation of all natural resources in their country, as stated in the United Nations Declaration on the Rights of Indigenous Peoples, then Indigenous economic development will need to be seen in an entirely different light.
It would not simply be a matter of enhancing economic rights as they were conceived two centuries ago. We would expect to see a range of options in local settlements that specifically promote non-native title outcomes, benefit sharing agreements, effective consultations regarding land use, joint environmental management regimes and sustainable development.
Native title is no longer just about fighting in the Courts to prove their ongoing connection to country, it is being recognised as a significant opportunity for claimants and their communities to gain real economic benefits. The current mining boom is creating opportunities for negotiating agreements for access to land and this means creating access to training, employment and business development.
It is time for native title to be viewed as one of the key opportunities for closing the disadvantage gap for Indigenous Australians.
It is time for the just and proper settlement of native title in Australia.
