Landing in trouble

Reading the Native Title Act is “like reading porridge”, according to one Australian businessman. Robyn Glindemann, a lawyer at Arthur Robinson & Hedderwicks, is more respectful, describing it as “a very intricately drafted piece of legislation” – and one that, since its introduction in 1993, has been rarely out of the news.

The Act was a response to the landmark High Court of Australia case that was named the Mabo decision after aborigine Eddie Mabo. His action against the State of Queensland led to the recognition of a native title to land alongside the common law title introduced by English settlers.

The Act set up a body, the National Native Title Tribunal, where native title can be registered. It puts in place mechanisms which allow companies interested in using native land to negotiate with relevant aboriginal groups.

The legislation has quickly become a thorn in the side of mining and pastoral concerns, which find their activities hampered by native title claims – a situation they argue has been made worse by a lack of clarity in the legislation.

Mining leases granted prior to 1 January 1994 are protected from claims by aboriginal groups. However, the position of pastoral leases granted before that date, some dating back to the 18th century, is unclear.

“Many pastoralists still don't know where they stand,” reports Susan Pennefather, a lawyer at the Brisbane office of Minter Ellison. The High Court is currently considering claims made by aboriginal groups that they can engage in activities which are not inconsistent with the terms of the lease. The judgment is not expected until some time next year.

According to Glindemann, the main problem with the operation of the Act has been the length of time it takes to use the negotiation procedures – and this has become particularly apparent in respect of mining projects under consideration. Effectively, the granting of a mining licence, unless it is a renewal of an old lease, is not valid unless negotiation first takes place with aborigines claiming native title.

This has meant that some projects have not got off the ground. The most notorious example is the Century zinc project in Queensland, which, after three years of argument and counter-argument over native title, has still not begun.

The new Australian government has stepped into the fray with a range of amendment proposals which, says Glindemann, should streamline the procedures, and make the legislation more user-friendly. One proposal, for example, cuts the statutory negotiation time from six to four months. The government is also proposing to allow mining licences to be granted before negotiations with aboriginal groups have taken place.

Critics argue that such measures go against the spirit of the legislation. Glindemann says: “Some perceived it as a watering down of rights given under the Native Title Act.”

Pennefather sees it differently: “The original Act gave people the feeling that the only people with rights were native title holders, but pastoral and mining companies have got rights as well.” The proposals, she believes, could help redress the balance.

The issue is a sensitive one and the government is keen to avoid accusations of racial discrimination.

Some controversial provisions have already been dropped. But this is unlikely to prevent a long debate as the bill goes through parliament. The uncertainties are likely to continue for some time yet.