Native Title at critical point

A NATIVE Title lawyer specialising in the mining and petroleum industry, says the industry’s ability to deal with the issue, has reached a crucial ‘sink or swim’ point after almost a decade of uncertainty surrounding the Native Title Act 1994.

Minter Ellison Lawyers (Adelaide) senior partner Ewan Vickery, who spoke at the Australian Nickel Conference in Perth last week, said 2003 marked a “new threshold” and while recent developments in the courts had improved outcomes for all concerned with Native Title, the industry’s ability to negotiate had significantly improved.

However, more importantly, he warned more than 100 mining industry representatives at the conference that if industry did not speak up and seize on this newly found position, governments “anxious to appear to be doing something, particularly if it relieves them of cost” could see it lost.

“What we are currently experiencing is a stabilisation of Native Title,” Mr Vickery said.

“There remain many smaller issues for final resolution, but the main thrust for expansion of the topic has dissipated.

“Whether or not an accumulation of future issues will ultimately look the same will depend on how resolutely the industry engages those issues.”

Mr Vickery, with more than 10 years experience in the area – completing more than 100 native title agreements – said that the industry’s management of Native Title had been blurred and now needed to be carefully reviewed by company directors and officers.

He said lawyers and advisers had not always been as well informed as they have more recently become, while questionable industry practices such “open cheque book diplomacy” and an uncoordinated approach by claimants had led to Native Title negotiating being to the detriment of both industry and claimants in the long term.

“Today there is a need to remeasure the individual situations of each company against the clarified legal background to ensure future negotiations under the RTN are conducted on a fully informed basis rather than somewhat artificial levels of commercial precedent which exist in some places,” Mr Vickery said.

However, he said more recent, crucial developments in Native Title had put industry in more certain stead at the negotiating table.

“It may be . . . now . . . that some companies may be perceived to have given away too much of the farm,” Mr Vickery said.

Crucial developments, he said had been the 1998 amendments by which all Native Title claims were removed from the Native Title Tribunal and made Federal Court claims (which is now also insisting that all cases before it be actively progressed) and two landmark Native Title cases last year.

Both the Ward and Yorta Yorta cases, settled by the High Court in 2002, set legal principles for determining who owns the mineral deposits, which type of activity does and does not extinguish Native Title and how industry and Native Title should interact.

“Those two decisions have not resolved every question about Native Title, but they have clarified the basic foundations of the subject,” Mr Vickery said. “And since then the lower courts have begun to interpret consistently with the High Court’s guidance.”


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