THE Western Australian Government signed a $15 million deal with Indigenous groups over the Burrup Peninsula just days short of an arbitration decision that was to be handed down and despite the groups having no determined claim over Native Title.
However, the agreement clears the way for $6 billion worth of industrial development projects on the Burrup, the Maitland Estate and also supports the release of much needed residential land developments.
The decision to go ahead with the deal when an arbitration finding was expected to be handed down on January 23 and before Native Title was determined may have unnecessarily put the Government millions of dollars out of pocket.
Yet according to Deacons Lawyers Native Title specialist Marcus Holmes an agreement usually provided a better out-come for both parties.
He said this agreement was likely to set a benchmark for future agreements.
“Arbitration can also destroy any goodwill that either party might have had,” Mr Holmes said.
A spokesman for the Native Title Tribunal said with the agreement now finalised, the work carried out by the arbitrator, Native Title Tribunal deputy president Mr Sumner, and any possible light it might have shed would be kept behind lock and key.
“The tribunal is holding on to the documents but they will not be accessible to the public because the determination wasn’t handed down,” the spokesman said.
The Native Title Tribunal was playing a dual, yet entirely separate, role in the Burrup Peninsula process with Mr Sumner being called in by the Government in July after agreement could not be reached with the Wong-goo-tt-oo people.
Meanwhile, Native Title Tribunal member Bardy McFarlane continued to mediate between the parties and was ultimately successful.
A statement by the Tribunal said that none of the Native Title claims were determined by the Federal Court before the signing of the agreement.
The Federal Court’s Justice Robert Nicholson was expected to hand down his decision within the next few months.
Even if Justice Nicholson finds that Native Title does not exist, the agreement that relinquishes Native Title together with the financial package would still hold sway.
However Mr Holmes said based on his experience there was a strong case for a least one of the claimants to have Native Title.
“As a rule of thumb I think it is quite likely that they had Native Title because they have maintained a connection with their country,” he said.
It’s been three years since the State Government publicised its intention to compulsorily acquire Native Title on the Burrup land.
Since that time the wrangling has continued, involving the Federal and State governments and businesses interested in developing the peninsula.
As part of the agreement, the Wong-Goo-tt-oo, the Ngarluma Yindjibarndi and the Yaburara Mardudhunera people will oversee the implementation of a benefits package that includes the protection of Aboriginal heritage on the Burrup, employment and trading opportunities, a share of the housing develop-ment established to support the industrial estate and co-manage the non-industrial land on the Burrup together with the Department of Conservation and Land Management.
Mr McFarlane said in return the claimants agreed to relinquish their Native Title claims.
“It was a very difficult process to reach agreement for this multi-million dollar investment project in an area of their overlapping native title claims and the site of the world’s largest Aboriginal rock art gallery,” he said.
Mr McFarlane said the outcome demonstrated that the Native Title process was robust and flexible enough to deal with complex negotiations of these proportions, involving many parties with diverse aspirations.
An approved body corporate will be set up by the three claimants to oversee the package.
Included in the package is a condition for the industrial developers to pay an initial $700 per hectare a year, pegged to inflation plus 2 per cent to the claimants.
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