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Heritage issues important to titles

Recent developments in Native Title can be attributed to both last month’s Ward decision and Governmental change towards some issues, Blake Dawson Waldron partner Geoff Gishubl told mining industry practitioners and consultants last week.

Some question marks remained following the High Court decision, Mr Gishubl said.

The High Court determined that Native Title did exist in a number of places where it was argued before that maybe it did not exist.

In 2000, the WA Government assumed that Native Title could not exist on enclosed pastoral leases or on old mining leases, and titles subsequently granted on this assumption are now in question.

The validity of these titles would depend on case-by-case examination, but in the meantime financiers may be less eager to support related capital raisings.

The Ward decision also determined compensation was payable for the granting of mining tenements since October 30 1975.

The amount is unknown, but there would be a compensation bill, Mr Gishubl said, and Government and industry would need to deal with this in the medium to long-term.

The WA Government could pass the liability to the mining industry for tenements granted since 1994, but it may be more difficult for the State to pass on liability for tenements granted before then.

Rather than determining what rights Native Title involved in all cases, the High Court had offered clarification on issues including ownership and the control of access by saying what rights Native Title did not involve, Mr Gishubl said.

While Native Title did not extend to ownership of minerals in WA, and hence no compensation for their removal through mining was payable, Aboriginal groups would continue to negotiate for royalties in exchange for agreement on land access.

Negotiating over rights and access remains a time-consuming process, including dispute resolution through the Native Title Tribunal.

The processing of exploration titles and mining leases in WA has been locked up in part through Native Title negotiation, and the Government has considered reducing the backlog by amending the Mining Act.

However, subsequent recommendations to amend the Mining Act may have a flip side. If, under the proposed changes, companies surrendered mining lease applications for exploration licence applications, Aboriginal claimant groups and land councils could object to these in bulk, on the grounds of heritage issues.

Hence, companies would be wise to consider heritage legislation in addition to Native Title law, Mr Gishubl said.

Plenty of disillusionment remain-ed among Aboriginal groups. Some had benefited from land access agreements, but success had been uneven.

The Government had directed the mining industry to negotiate with land councils, to come up with a standard form agreement to manage the heritage process.

Through this avenue, land councils would necessarily be seeking to secure Aboriginal protection agreements that would bolster indigenous rights and reinforce land control.

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