The first national audit of native title agreements since the introduction of native title laws nearly five years ago revealed more than 1,200 agreements had been struck between miners, pastoralists, different Indigenous groups, industry bodies and governments - despite the controversy over the legislation.
National Native Title Tribunal President Justice Robert French, who will detail the findings at the Western Australian Pastoralists and Graziers Association Annual Conference in Karratha today, said some of the agreements were small in scale and many related to the grant of mining leases, but all were building blocks toward a better relationship between Indigenous and non-Indigenous Australians.
Justice French said the figures showed that while there had been years of contentious debate about the legislative framework for native title, many groups and individuals were focussing on the practical business of making agreements.
He said negotiated agreements were the only way to forge lasting arrangements which would recognise the native title rights of Indigenous people and protect the validly granted rights and interests of other people.
"If there is one absolutely pointless activity it is to imagine that native title can be swept away by some legislative magic. Such a belief belongs in the company of beliefs about the flat earth and the tooth fairy," he said.
"Native title is a property right recognised in common law. It is here to stay. As the Tribunal's audit of agreements shows, there are many people who recognise this fact and are attempting to negotiate properly with Indigenous Australians.
"Native title, rather than being perceived as a threat, should be looked upon as an opportunity to address the fundamental relationship between Indigenous and non-Indigenous Australians as that is the only path to the certainty and mutual recognition of rights that all parties seek."
Justice French said there was also a misconception that the new native title laws due to come into effect on 30 September would terminate hundreds of native title applications.
"The fact is, native title applications which do not satisfy the new, stringent registration test criteria will lose the right to negotiate and other procedural rights, but can remain on foot in the Federal Court and in mediation before the Tribunal. This means that there should be no slackening of effort in negotiations to achieve native title agreements."
Justice French said one obstacle for pastoralists in negotiating agreements was the sense that there was a lack of practical support, given the other day-to-day pressures they faced.
"Pastoralists are entitled to expect that governments, peak bodies such as the Pastoralists and Graziers Association, and mediation agencies such as the National Native Title Tribunal, provide the necessary tools for them, and indeed other parties, to reach the agreements in the most localised and cost effective way," he said.
"For its part, the National Native Title Tribunal has designed template agreements for use anywhere in Australia, devoted attention to understanding the problems faced by pastoralists through workshops and seminars, and designed its mediation practice to suit the needs of the parties. There is no need for a battery of lawyers or city meetings -- the Tribunal will go anywhere, anytime and offer whatever practical assistance is necessary to draw up localised native title agreements because that is a more inexpensive and less adversarial course of action than to settle native title applications by fighting them in the Federal Court."
Justice French said the Tribunal's audit of agreements showed: there were a total of 1,244 agreements throughout Australia with 91% of all agreements in Western Australia.
Of the total number of agreements: 246 or 20% were native title determination application related agreements (including non-native title outcomes); and 998 or 80% were future act related agreements (ie. related to the grant of mining leases and fast tracked exploration leases, and mainly in Western Australia);
Of the 246 native title determination application related agreements: 70% were in Western Australia; 84 % involved the National Native Title Tribunal in mediation; 60% of the agreements were confidential; and 50% were agreements to amend native title applications to remove particular tenure types, or reduce parties or the number of claimants.
Of the 998 future act related agreements most were confidential s34 agreements (usually related to the granting of mining leases) or agreements associated with fast tracking procedures for exploration licences which were struck between miners and Indigenous people in Western Australia, usually without direct Tribunal assistance.
For the purposes of the audit, agreements were defined as an outcome reached with the active participation of two or more parties, with or without the Tribunal as mediator. Agreements could include reconciliation agreements, memoranda of understanding, process agreements or statutory title agreements.
Justice French said while there were only two consent determinations of native title to date on mainland Australia, more were imminent as the polarising debate of recent years subsided.
He said the hundreds of other native title related agreements documented by the Tribunal were important milestones in the long term process of building trust and mutual understanding between parties on the path to final agreements on native title. |