While native title is increasingly delivering on its promises for all parties, there remain those who aren’t convinced.
Native title is a topic that has always sharply divided opinion, and public comments by some of the key players indicate such divisions are likely to remain in the near term.
Kimberley Land Council chairman Tom Birch, commenting on last year’s deal with gold miner Tanami Gold, said “we are seeing native title deliver on its promise of better lives for Aboriginal people”.
Aztec Resources chairman Ian Burston also speaks favourably of native title, describing his company’s recent deal as “a positive outcome; one we’re proud of”.
“We welcome this agreement and look forward to building our relationship with the traditional owners,” Mr Burston said.
The Chamber of Minerals & Energy takes a positive view, saying there has been a “real overhaul” of the industry’s approach.
“There is a willingness on both sides to explore change,” CME policy director David Parker said. “There is a spirit of cooperation and understanding among most of our members.”
In sharp contrast, the Association of Mining and Exploration Companies said the industry is “regularly held to ransom” by the native title process.
“It’s still seen as one of the most challenging issues for the industry to address,” AMEC chief executive Justin Walawski said.
An even harsher critic is Liberal Party senator David Johnston, who described native title and Aboriginal heritage as “symbolic and superficial policies that only seem to benefit Aboriginal bureaucrats”.
“Native title has delivered virtually nothing to Aboriginal people while sexual and physical abuse rages unabated,” Senator Johnston said.
It’s not just the lobbyists and politicians who are critical.
When handing down a rare National Native Title Tribunal determination in Broome last month, Federal Court justice Ron Merkel said “it is fair to describe native title in Australia as being in a state of gridlock”.
With such widely divergent views, where does the truth lie?
From an industry perspective, the reality is that mining and exploration companies have to negotiate a deal if they want access to land.
Simply negotiating a land access deal can be expensive and time consuming, with companies having to pay hundreds of thousands of dollars for negotiations that can drag on for several years.
They can also be very complex, since the negotiations are held with both proven native title groups and, much more commonly, registered native title claimants.
Despite all of these difficulties, there has been a steady flow of land access agreements reached in Western Australia in the past year.
Aspiring iron ore miners such as Fortescue Metals Group, Midwest Corporation, Murchison Metals, Aztec Resources and Atlas Iron have all finalised deals.
Wedgetail Exploration and Tanami Gold, which are proceeding with gold projects, also negotiated land access deals in the past year.
And just last week, Rio Tinto subsidiary Pilbara Iron signed Binding Initial Agreements with six native title claim groups.
This took the groups closer to sealing what they called the largest collection of native title land access agreements negotiated anywhere in Australia.
While the details of land access agreements are confidential, most have several common features, including:
• financial payments to the claimants, typically in the form of a production royalty;
• subsidised training and employment opportunities;
• support for Aboriginal business development;
• protection of Aboriginal heritage and the environment, usually via strict protocols over exploration and mining activities; and
• employment of Aboriginal people or consultants to help implement the agreements.
The cost of land access agreements is generally believed to be increasing, which is not surprising since the resources boom is pushing up the cost of nearly all inputs in mining projects.
Contractors are charging more, materials are costing more, and Aboriginal groups like everyone else are seeking better deals for themselves.
One of the major issues for business is that the cost of negotiating native title agreements almost invariably is met by the mining companies.
Tanami Gold chairman Denis Waddell estimates his company would have spent close to half a million dollars, in cash payments and management time, negotiating its agreement with the Tjurabalan traditional owners in the Kimberley and central Australia.
“We had to pay for all the meetings,” Mr Waddell said. “That annoys some people but we just took it as part of the process.”
The negotiating costs did not end when the traditional owners secured native title; it got more expensive.
That is because the federal government requires successful claimants to establish a prescribed body corporate, but does not provide any funding for such bodies.
The Minerals Council of Australia has claimed that one company spent $2 million over 18 months negotiating a single native title agreement.
The high cost of native title negotiations provides a good incentive for parties to reach mediated settlements, and certainly all parties profess a desire to engage in friendly and constructive discussions.
In practice, all sides play the game very hard, using injunctions, Warden’s Court applications and other legal mechanisms as bargaining tools.
They also employ robust publicity to achieve their goals.
The Rio Tinto negotiations are a prime example, and they also illustrate the push by Aboriginal groups for retrospective compensation for past mining activities.
Last May, Aboriginal groups launched a scathing attack on Pilbara Iron.
At a mass meeting near Port Hedland, the company was “condemned for failing to engage genuinely with traditional owners in its native title negotiations”, a statement issued by the Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation said.
The company was accused of attempting to lower standards that were widely accepted elsewhere, which included reaching “fair agreement about past and present mining activities”.
“There is no doubt that Rio Tinto has a moral responsibility to return some of the profits it has made from (this) country back into the Indigenous community,” Yamatji executive director Simon Hawkins said at the time.
Twelve months on, the parties have reached initial agreements and Mr Hawkins has praised their “open cooperative” approach.
The agreements provide support by traditional owners for Pilbara Iron’s present and future operations.
In particular, they have resolved the level of financial compensation for the native title groups, which was described as “one of the major areas of contention”.
Pilbara Native Title Service chairman Neil Finlay said the initial agreements were important as they would allow future negotiations to focus on broader economic and social issues.
Pilbara Iron managing director David Smith said the company was “committed to establishing genuine and meaningful partnerships with the Aboriginal people of the Pilbara”.
Dr Smith – whose company trained 130 Aboriginal people last year under a special program – said this included negotiating full agreements that would result in “training, jobs and other tangible benefits for all parties”.
For Aboriginal groups, the agreements set a new benchmark for future negotiations.
“I urge other mining companies operating in the Pilbara to follow the example set by these agreements,” Mr Hawkins said.
