Shift in sentiment on native title

The business community has learned to embrace native title in the past two decades as the more fearful projections failed to materialise, but there was a time when its impact was much more uncertain.

Business News reported in October 1997 that more than 80 per cent of Western Australia’s land mass was under native title claim, with more than 2,200 applications nationally in the preceding three-year period, although not a single determination had yet been made by the Native Title Tribunal.

Those included claims made over freehold land, such as the Perth metropolitan area, despite there being no legal basis.

Others would need to go to court or be settled.

The impact of native title was greatest among miners and pastoralists, who hold land on lease from the Crown.

That was because the High Court’s Wik decision in 1996 had found pastoral leases did not extinguish native title, meaning the two coexisted.

A lack of clarity on the federal government’s position and uncertainty of title for miners and farmers created a major headache.

One mining company in the goldfields had land claimed by 18 groups, and industry lobbyists said the cost to the sector was enormous.

Prime Minister John Howard, in his autobiography, said the issue had caused great frustration for miners and pastoralists.

“By the time I produced the well-known 10- point plan to deal with the consequences of the Wik decision, the (coalition) had passed through several months of appearing divided and indecisive about native title,” Mr Howard said.

“This had a bad impact on many of our traditional supporters in rural areas who … had wanted a speedy and clear government response.”

It would not be until July 1998 that the issue was resolved, when legislation to clarify the impact of Wik made it through the Senate after a historically long debate on amendments.

In the two decades since, however, attitudes had changed, Association of Mining and Exploration Companies chief executive officer Warren Pearce told Business News.

“At the time the industry probably saw it as a rather serious threat,” Mr Pearce said.

“We’ve come to understand the importance of the rights of traditional owners and to understand that’s part of our sector’s responsibilities.

“It’s a core part of the foundation of our sector, and (we have) also benefited from that closer engagement with traditional owners.”

Miners wanted to make sure projects provided benefits for communities, he said, while they get the advantage of local workforces.

There remained work to be done, however.

“The way legislation works still creates a lot of challenges for industry, largely around time delays, and there are cost elements as well,” Mr Pearce said.

“There’s no question around the intentions or the outcomes that are sought, the problem is the system doesn’t always deliver it.”

One issue was that an industry had built up between claimants and businesses, while additionally, groups unable to claim did not receive much benefit.

“A lot of money that’s actually spent with lawyers and consultants doesn’t always flow through to the people who are most in need,” Mr Pearce said.

“One of the biggest frustrations is that, after nearly 20 years of these agreements and huge investments by governments and companies, the outcomes on the ground for the broader Aboriginal community don’t seem to have improved that much.

“That’s really tragic.”

More recently, there was controversy about a $1.3 billion land use agreement negotiated with the Nyungar people in the state’s South West after some claimants won a legal challenge against the deal.