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Q&A: Resource rights 'can close the gap'
Native title negotiations
should give Indigenous Australians commercial rights to minerals, water, fishing resources
and carbon credits, Professor Jon Altman from ANU says.
Professor Jon Altman, Professorial Fellow at the Centre for Aboriginal Economic Policy Research at Australia's National University in Canberra, says a key way to close the gap between Indigenous and non-Indigenous Australians is to deliver full commercial and property rights - including to minerals - when a native title determination or successful land rights claim is made.
In the lead-up to the 20th anniversary of the landmark Mabo High Court decision, Chiara Pazzano spoke to Professor Altman about what can be improved in the existing native title negotiation process.
Q. In your research papers you maintain that under current native title laws, Indigenous people are seen as owning the land but often they can't really do much with it. What do you mean by that?
A. Under the Native Title Act, it was certainly possible that Indigenous people would have resources rights, but the precedent that was set in Australia -- particularly with land rights law -- which had been passed previously in the Northern Territory and in South Australia, is that Indigenous people didn't have mineral rights. In other words, they didn't have sub-surface rights to commercially valuable resources, and High Court decisions subsequent to the passing of the Native Title Act have basically reinforced that view.
So a people can claim native title rights on the basis of their customs and traditions and their connection to the land, but the High Court ruled that Indigenous people basically do not have commercial mineral rights, as they weren't something that were enjoyed before colonisation. All they could do was to negotiate with developers the compensation they would receive if commercial activity was undertaken on their land.
Q. When was this ruling made?
A. This decision was made in a High Court case called Western Australia versus Ward (or just 'Ward') in 2002, but prior to that, the Native Title Act had made it clear in 1993 that people who had a native title determination -- even if that determination was what is referred as 'exclusive possession' of the land and its resources -- could only enjoy rights to non-commercial resources.
In other words, they had rights to hunt and to fish and to gather species, as they had done as hunters and gatherers pre-colonially, and they had the right to access the land for ceremonial and for residential purposes, but they didn't have the right to veto commercial development of the land, particularly in relation to mineral exploration and mineral extraction.
So, people who had exclusive possession of native title rights could not veto mining. This is something that people can do under land rights law in the NT, but it's not something that they can do under the Native Title Act.
Q. Can Indigenous people veto mining in the NT under Land Rights legislation though?
A. In the Northern Territory, under the Land Rights Act which was passed in 1976, initially people had what are called 'rights of consent provisions', in terms of any exploration of mining on their land.
In 1987 those rights were diluted by changing the act by saying that you could only veto the development at the exploration or the production stage. Nevertheless, if traditional owners do not want exploration on their land, they can veto it, and that has happened in numerous cases in the NT.
This has given the NT's Indigenous peoples a de facto mineral right. Because they can oppose exploration and further development, it gives them a much greater leverage in negotiation with mining companies in the right to negotiate. So they've got a far stronger property right in the NT that they do under native title laws in the rest of the country.
Q. How will the federal government's mining tax affect Indigenous communities around the country?
A. The mining tax will make it much more difficult for native title parties to gain a fair share of profits in terms of minerals that are extracted from their lands, because what you see with the Commonwealth's taxation of resource rents, or mining companies profits, is a contest betwen state governments and the federal government, and in that contest, Indigenous interests are sidelined.
They become the third party that is looking for a fair return of what's extracted from their land. So in a sense what's already an uneven playfield for native title parties has been tilted even more against them, and their prospect for getting a fair return is greatly reduced.
Q. How do you think this issue could be addressed?
A. Just as native title groups are given a customary or non-commercial right to resources, they should also be given a commercial right to resources.
There is an international precedent for this in the United States, where North American Indian nations have sub-surface rights to minerals. This means that, on one hand, Indigenous people need to consent to developments on their land. If they consent, they are in a much better position to get a fairer deal, but they also have full rights not to consent, which is very much in line with articles in the United Nations Declaration on the Rights of Indigenous People.
It seems to me that in Australia we are not willing to give Indigenous people a greater share of the country's mineral wealth directly, nor we are willing to consider ways in which the states and territories may return part of their shares of mineral wealth back to native title parties.
Q. Do you think that the native title negotiation process could be improved as well?
A. Yes, they could be dramatically improved. First, if a disagreement between a developer and a native title group has to go to arbitration, the value of the mine, the profits made from the resource extraction, could be taken into account by an arbitral body, which is the National Native Title Tribunal.
At the moment you have a perverse incentive for mining companies to delay negotiations for more than six months --and I am not saying that they always act in bad faith, but nevertheless they would only gain from a dispute gone to arbitration because, as seen in the last 20 years, when things go to arbitration, the outcome favours the miner. So if it was allowed for an arbitral body to take the value of the mine into account, there would be a more equitable outcome and a fairer negotiation process.
Multinational companies also have extraordinary access to commercial legal advice, while many native title groups don't. Their representative bodies should be better resourced so they could employ more highly skilled legal experts.
Q. The Mabo High Court decision had set hopes high for many Indigenous people across Australia. Have these hopes been disappointed?
A. In 20 years, we have had more than 100 determinations and over one million square kilometres of Australia -- over 1/10th of the continent -- has had native title determinations over it, much of it in exclusive possessions. So, there have been very good outcomes. But we need to remember that many of these outcomes have been in remote Australia, because there are the parts of the continent where land is 'un-alienated' and so, available for claim.
Also, the delays in going through the registration of the claim, having the determination heard, and then a judgment made, disadvantage Indigenous people.
Q. What should be changed?
A. The issue here is that the law puts the onus of proof on Indigenous people to demonstrate that they still practice their customs and traditions and they had ongoing connection to their land since colonisation.
There have been recommendations made, including by the Chief Justice of the High Court, that the onus of proof should be reversed. In other words we should assume that the native title claim is valid, once you have passed the registration test -- in other words after you have proved that you have a valid claim. Then, if the other parties, whether Indigenous or state parties say that the Indigenous people should not get the land back, the onus should be made on them to prove to the court why it's the case. That could certainly speed up the process.
Q. Critics of the current native title negotiation process say it is divisive. Do you agree?
A. Yes, the other issue you have is that with native title you either have people who have remained on the land, or people who had moved away from their land -- because they had been forced away or they migrated away when it was under State/Territory jurisdiction. And so, you get divisions between groups.
When you get a native title determination, those who have moved away and those who stayed have equal rights under the law. And this is often a source of division between groups, because they are people who had different life experiences and may in the present have different values.
So, for example, those who have gone away may be very positive about development, wanting mainstream jobs, while people who stayed on the land may not want development and want to see the land protected, used according to their customs rather than for commercial purposes.
Q. Is there a way to address these problems?
A. We have seen amendments to the Native Title Act that have been put forward by the Australian Greens that certainly could make a big difference, and with time native title parties will advocate for stronger and stronger rights because they realise that while having a native title determination is positive, the benefit of the determination is limited, so they are going to invoke any international human rights avenue that they can to allow them self-government and full self-determination.
Maybe in decades' time the impetus may change but at the moment Indigenous people are so disadvantaged that -- I think -- they have strong moral and human rights argument to say ' we need better resource rights if we are going to pursue this governmental agenda to close the gap'.
The government wants to close the gap between Indigenous and other Australians and one way to do that is to strengthen Indigenous and property rights, particularly in commercially valuable resources, but the government is very reluctant to do that because it's very concerned about political backlash from non-Indigenous Australians.
Q. When you talk about resources, which resources in particular are you referring to, apart from minerals?
A. At the moment there's enormous contestation about who owns fresh water on Indigenous land, who owns wildlife and new forms of property like carbon abatement or carbon farming property rights on Indigenous lands. So I think it isn't just a question of mineral rights. It's also about other forms of property with commercial value. If we want to close gaps, Indigenous land-holders who have exclusive possession should be accorded property rights in commercially valuable resources, that they could either use themselves or trade with other parties that may want to purchase fresh water, or pay carbon-abated on Indigenous land or purchase access rights to commercial fisheries.
Q. Are you advocating that who gets native title rights, should also get access to the land's resources?
A. If we are serious as a nation about addressing deep Indigenous disadvantage, a key way to address that issue is to give full commercial property rights to Indigenous people when they get a native title determination, or when they have a successful land rights claim.
We need to seriously consider bestowing commercially valuable rights to Indigenous native title groups who live in very remote Australia -- where engaging with the market is very difficult.
So, if we give native title groups property rights in commercially valuable resources, we may in fact enhance the prospect of closing the gap and provide a better means to find a way out of poverty.