Professional Development
Native Title, Future Acts and Negotiation in Good Faith
Over the past three-and-a-half years there has been a series of events that have tested the sections of the Native Title Act (Cth) 1993 dealing with the future act negotiation procedure (namely, sections 29 to 35).
The matter centres on the proposed granting of a mining lease in the Pilbara to FMG Pilbara Pty Ltd ("FMG"). With events beginning in March 2006, the matter eventually found its way to the High Court this October. In short: the National Native Title Tribunal ("NNTT") had found that FMG had not negotiated in good faith with two Aboriginal groups affected by the lease; FMG appealed this decision, and the Federal Court subsequently set aside the NNTT’s decision (refer to FMG vs Cox [2009] FCAFC 49); in turn, the two Aboriginal groups sought to appeal the Federal Court decision in an effort to have the NNTT’s decision reinstated, but the High Court refused to hear the case.
In a recent Sydney Morning Herald online article (viewed on the 29 October 2009) Simon Hawkins, CEO of Yamatji Marlpa Aboriginal Corporation (YMAC), is reported to have said:
The right-to-negotiate section of the (native title) act is instrumental in enabling traditional owners to secure compensation for loss of their country
The High Court’s dismissal of this case now means that mining companies are no longer required to have substantial negotiations with indigenous people regarding the use of their land
This will further economically disenfranchise indigenous people and render them powerless against big business.
The article also reported YMAC Pilbara chairwoman Doris Eaton as adding:
As a Njamal person who’s been part of many good faith negotiations with mining companies, I’m worried that this will stop all the positive things we have achieved for our younger generation.
Sarah Burnside, a solicitor with YMAC, but writing independently, and viewed on the 29 October 2009, explained that:
FMG vs Cox concerned the company’s obligation to negotiate in good faith with two native title claim groups whose traditional country was included within the lease. The Court held that FMG had discharged its duty to negotiate in good faith despite the fact that there had been no substantive negotiation on the mining lease in question with either group. Indeed, discussions with one of the claim groups had largely focused on a negotiation protocol rather than a final agreement.
This decision sets an unfortunate precedent for negotiations with traditional owner groups. The main reason mining companies ‘come to the table’ to negotiate with native title claim groups is precisely because the Native Title Act obliges them to do so: before certain mining and other tenures can be granted, the proponent and the relevant government must negotiate in good faith with any registered claim groups within a period of six months with a view to reaching an agreement.
If negotiations do not bear fruit, the proponent can apply for a determination [by the NNTT] that their interest in land may be granted. There is no requirement to enter into an agreement, no obligation to pay mining royalties or hire local traditional owners, and the statutory requirement of good faith negotiation applies equally to native title claimants as to mining companies.
As stated above, these events are in relation to sections of the act dealing with the future act negotiation procedure. Specifically:
Under that procedure, the ‘negotiation parties’ (in this case, the State, PKKP, WGAC and FMG) must negotiate in good faith with a view to obtaining the agreement of each of the native title parties to the doing of the future act covered by the notice, with or without conditions. If no agreement is reached, and at least six months have passed since the ‘notification day’ specified in the s. 29 notice, any negotiation party may apply to the Tribunal for a future act determination under s. 38— ss. 30A and 31(1)(b), 35(1).
(Source: Native Title Hot Spots, Issue 30, p18, (viewed on the 29 October 2009).
In summary, this matter does not directly affect the day-to-day operations of members of the Anthropological Society of Western Australia, who may be undertaking, for example, heritage surveys or native title connection work. It does indicate, however, that not all future acts will result in negotiated agreements that could allow for such work. It really depends on how committed a company is to reaching such agreements. Once the six month statutory deadline is reached, a company can apply for a future act determination by the NNTT that will allow for the proposed future act to go ahead, and as the court has now made it clear, there is little scope for the NNTT to find that negotiations were not in good faith. Certainly, an agreement does not have to be finalised, and indeed, not even the protocols for negotiating such an agreement need to be completed.
Nonetheless, the requirements of the Aboriginal Heritage Act (WA) 1972 remain in force, and the need for connection work to inform native title claims will continue unabated.