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Working with Native Title

A POLICY vacuum in the area of native Title in WA is proving problematic to all involved in the process.

According to Deacon lawyer’s Native Title specialist, senior associate Marcus Holmes, although the Gallop Government has demonstrated a willingness to deal with the issue, things are far from perfect.

“There is certainly a change in theory, which I think from a practical point of view is a good thing,” he says.

“It’s more toward negotiations and sitting around the table and away from litigation.”

But he says there remains “a real policy vacuum” as the Government reviews commissioned to improve the work-ability of Native Title.

Blake Dawson Waldron Native Title partner Geoff Gishubi believes what hampers progress more than anything is the lack of certainty, and the duplication between different legislation.

“One of the problems with the State processes is that it is not centrally coordinated,” Mr Gishubi says.

He says there is an obvious place for a central department to co-ordinate, facilitate and overcome legislative hurdles for developers – a role that was previously meant to be filled by the old Department of Resource Development.

The Office of Major Projects within the Department of Minerals and Petroleum Resources carries out a limited coordination role, but only on large projects.

Mr Gishubi believes the role of the office could be expanded to help facilitate all projects.

What is becoming increasingly apparent is that many companies factor in Native Title costs as part of the budgetary process.

“There are deals (with indigenous groups) worth tens of millions of dollars out there varying significantly. There is no rule of thumb out there that I’m aware off,” Mr Gishubi says.

“Some of the deals are linked to the project and depend on how successful the project is, while others are a simple payout.”

He says large companies often look at what profit margins levels exist in the project, which could be used to come to an arrangement with indigenous groups. The larger the potential profitability, the more the company can set aside for negotiations.

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