Attorney-General George Brandis has moved fast to neutralise a recent Federal Court finding that all, not just some, native title claimants must agree for an Indigenous Land Use Agreement (ILUA) to be valid. The February 2 ruling overturned a ruling in 2010 that had decided the opposite.
On February 15, Brandis introduced the Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 which, if passed in the Senate, would effectively negate the court’s February 2 ruling and ignore the law that all native title claimants had to sign off on a land use agreement. The bill has gone to a Senate committee which is due to report on March 17.
Mining companies and the major parties went into damage control after Justices North, Barker and Mortimer put a $1.3 billion land use settlement between the Nyoongar people of south-west Western Australia and the Colin Barnett government into doubt.
News.com said the court decision would affect at least 126 Indigenous land-use agreements covering proposed mines, gas fields and infrastructure projects.
Significantly, it put Adani’s controversial $22 billion Carmichael coalmine in central Queensland on hold, along with about 40 other proposed and operating mining projects in Queensland.
The traditional owners opposing the Carmichael mine said the Federal Court’s decision meant Adani’s bid to register an Indigenous Land Use Agreement (ILUA) with the Wangan and Jagalingou peoples was not valid because five of the 12 applicants opposed the deal and refused to sign it a year ago.
This had the Queensland Resources Council chief executive Ian Macfarlane fuming. “If we don’t get the legislative reform that I’m currently negotiating with the federal government and with the Labor opposition through the parliament as quickly as possible then, quite frankly, it’s impossible to predict when that project might proceed,” he said on February 13.
Less than two weeks after the ruling Brandis moved to annul it.
In McGlade v Native Title Registrar, the Federal Court found that the Native Title Act 1993 clearly stipulated that all applicants to Indigenous land use agreements had to agree for it to be registrable. This means that four of the six agreements between the WA government and the Nyoongar people are invalid.
The court ruled that the Wagyl Kaip and Southern Nyoongar agreement, the Ballardong people agreement, the Whadjuk people agreement and the South West Boojarah agreement did not comply with section 24CA of the Native Title Act, and therefore could not be registered.
The National Indigenous Times, which supports those Indigenous people who did sign off on the six agreements, called them “the biggest native title settlement in history”.
The case was brought by Mingli Wanjurri McGlade, Mervyn Eades, Naomi Smith and Margaret Culbong in the Federal Court which, under the Native Title Act, determines matters relating to native title and land use agreements.
The ruling, which also has implications for new native title grants, native title negotiations and Aboriginal heritage processes under state laws, has not been uniformly welcomed by native title claimants.
Chief executive of the South-West Aboriginal Land and Sea Council (SWALSC) Wayne Nannup said the ruling had wrecked several years of work involving six Nyoongar claim groups. He said the agreement would have “breathed new life” into the communities.
The SWALSC said it had conducted six authorisation meetings, all of which voted to approve the negotiated settlement. Those who did not sign the land use agreement “as directed” were not honouring the direction of the meetings. “[I]t is the decisions made by the groups that matter, not whether every single Named Applicant signed the ILUAs,” it said.
However, the judges agreed with the argument of the lawyers for the four applicants that the original Native Title Act had clearly stipulated that: “All persons in the native title group” must be “a party to the [land use] agreement”.
Nevertheless, the federal government is more concerned with appeasing the concerns of corporate Australia that it will still have the upper hand in native title land use determinations.
The judges noted the “inconvenience” of their decision, given all the pending land use agreements, and suggested that the matter would be most speedily resolved by federal parliament. In less than two weeks, Brandis introduced the new, nobbling, amendment.
Native title has been contentious because it does not give exclusive rights to native title holders. Native title holders do not have the right to control access to, or have an exclusive right to use, the area in question. There is no automatic right to live on the area, to hunt, fish, gather food or teach law and custom on country.
Importantly too, as the Native Title Tribunal noted: “There can be no native title rights to minerals, gas or petroleum recognised under Australian law. In tidal and sea areas only non-exclusive native title can be recognised.”
Native title came into existence following the High Court’s 1992 Mabo decision, which recognised that the Meriam people of the Torres Strait held native title over part of their traditional lands. It ended the legal fiction of “terra nullius” — land belonging to noone — first deployed by the British colonisers.
Brandis’ amendment aims to make it easier for resource companies. It removes the need for all native title holders to sign off on a land use agreement, saying a majority is enough.
Part 2, 9(3) also states that any land use agreement that was registered on or before February 2 remains valid. This means that if this bill is passed without amendment, the Adani land use agreement, which five of 12 applicants opposed, would be valid.
Bandis’ amendment tips the Native Title Act further towards multi-billion dollar resource and agri-businesses and away from those native title holders who object to particular resource projects for cultural, environmental and political reasons.
Seed Indigenous Youth Climate Network, described the amendment as “racist”, saying “it would strip away our land rights to make way for billionaire mining companies”.
It would allow for “illegitimate” land use agreements, as native title claimant Adrian Burragubba describes the rotten deal Adani has been perusing with the Wangan and Jagalingou peoples. "If the amendment passes in its current form, the Government will hand miners like Adani one more tool to divide and conquer Aboriginal people,” Burragubba said.
The divide and rule tactic works well for those with economic power against those who have little or none. Despite its flaws, the Native Title Act, which insists that all applicants must agree to a land-use proposal, must be defended against efforts to further weaken the laws.