Jenny Macklin, the Hon --- "Can native title deliver more than a 'modicum of justice'?" [2009] ALRCRefJl 4; (2009) 93 Australian Law Reform Commission Reform Journal 14

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Can native title deliver more than a ‘modicum of justice’?

By Jenny Macklin MP*

Native title promised a genuinely new beginning for Australia.

Prime Minister Paul Keating spoke passionately of this new beginning in his speech commending the then Native Title Bill 1993 to the Australian Parliament. He said:

The [High Court¹] saw a ‘conflagration of oppression and conflict which was, over the following century, to spread across the continent to dispossess, degrade and devastate the Aboriginal people’. They faced ‘deprivation of the religious, cultural and economic sustenance which the land provides’ and were left as ‘intruders in their own homes.
To deny these basic facts would be to deny history—and no self-respecting democracy can deny its history. To deny these facts would be to deny part of ourselves as Australians. This is not guilt: it is recognising the truth. The truth about the past and, equally, the truth about our contemporary reality. It is not a symptom of guilt to look reality in the eye—it is a symptom of guilt to look away, to deny what is there. But what is worse than guilt, surely, is irresponsibility. To see what is there and not act upon it—that is a symptom of weakness. That is failure.²

The truth about our contemporary reality, 15 years since this speech, is that native title remains critical to Indigenous people’s social, cultural, spiritual and economic well-being and remains a potentially important contributor to expanding economic opportunities. This potential has not been realised. Better use must be made of native title payments under mining and infrastructure agreements. In this short article, I will touch upon some examples of where payments have been used to create long-term economic opportunities. However, I will also consider why this is not happening as much as it should and offer some ideas on improving the standard of agreements, so that benefits can flow to current and future generations.

On 13 February 2008, Prime Minister Kevin Rudd apologised to Indigenous people, and in particular to the Stolen Generations, on behalf of the Australian Parliament. By acknowledging past injustice, the National Apology promised a future where:

we harness the determination of all Australians, Indigenous and non-Indigenous, to close the gap that lies between us in life expectancy, educational achievement and economic opportunity. A future where we embrace the possibility of new solutions to enduring problems where old approaches have failed. A future based on mutual respect, mutual resolve and mutual responsibility.

The National Apology recognised the distance we have to travel before Indigenous people enjoy the same advantages as other Australians. Closing the gap between Indigenous and non-Indigenous Australians is now a national priority, which the Government is pursuing in collaboration with the Council of Australian Governments (COAG).³

Dialogue and partnership are foundation elements of the Rudd Government’s policy approach to Indigenous Affairs. Dialogue lays the basis for a common understanding of the challenges and opportunities involved in closing the gap. In crafting solutions, we must go beyond addressing individual indicators and work for and across whole communities.

I recognise, however, that individual indicators of advantage and disadvantage remain central to the challenge of closing the gap. Australia’s Indigenous population lags behind the overall Australian population in areas of income, employment, health, housing, education and life expectancy. The reasons for such inequity might be found in the past, but the responsibility for change lies with the present and the future. The urgent questions confronting me, this Government, and the whole Australian community are: what do we do now, and how do we do it?

One answer is undoubtedly to build on initiatives that are already making a difference. For many years now, there has been engagement between Indigenous Australians and the resources industry, particularly in making agreements about access to Indigenous land to facilitate mining and other resource development activities. It is often observed that many Indigenous Australians live on land rich in resources that create wealth for business and the nation, but that deliver little return for Indigenous Australians.⁴

Some in the resources industry have negotiated progressive and sustainable agreements with Indigenous partners, delivering economic and social benefits for current and future Indigenous communities.

Rio Tinto, the global mining giant, has made a notable contribution, through the farsightedness of its executives and managers and the leaders of the Indigenous communities with whom the company has engaged. In 2005, Rio Tinto and the Miriuwung and Gidja peoples of the East Kimberley region of Western Australia signed an agreement recognising pre-existing Aboriginal relationships to the area, setting out ambitious employment targets and providing financial compensation to traditional landowners. This involved the payment of moneys into two trusts: one focused on the Aboriginal groups’ longer term aspirations for education, community development and investment for their children; the other providing a shorter term income stream along with financial literacy training.⁵

Also in the Kimberley, an agreement was reached in 2006 between the Tjurabalan native title holders and Tanami Gold, providing for employment targets and a community trust. One of the aims of the agreement was to ensure that the mining benefits would be long-lasting, recognising that improving living standards and health and welfare of the community would take time. The media reported that ‘the Tjurabalan have really gone about it in a very responsible way ... working on an agreement which benefits the Tjurabalan people as a whole, as opposed to just individual payments’.⁶

Another example of innovation and a long-term strategy can be found in Central Australia. Several years ago, the Northern Territory’s Central Land Council entered into an agreement with mining company Newmont Gold to establish a trust for the benefit of the Warlpiri people, specifically for training and education, resourced through royalty payments for mining on Warlpiri land.

In late 2008, I was in Yuendumu to sign a Regional Partnership Agreement, building on the work of the Land Council, the Warlpiri people and Newmont. The agreement has long-term objectives and the capacity to deliver employment, education, and short and longer term economic initiatives.

The Native Title Act 1993 (Cth) (NTA) underpins many of these agreements, as it provides a process for dialogue and establishes a ‘right to negotiate’ for native title holders or registered native title claimants in relation, for example, to the issue of mining leases.

Agreements negotiated under the NTA are the major means of engagement between Indigenous people, industry and governments and enable Indigenous people to plan and make decisions on a range of issues affecting their lives and their environments.

After 10 years of these agreements⁷—and so far, unquantifiable amounts in payments to native title holders—the challenge of addressing Indigenous disadvantage remains. Unfortunately, many agreements do not provide benefits over the long term, by way of business development opportunities, employment targets or properly managed community funds. Not all meet the standards set by the Rio Tinto and Newmont agreements, and there is little to guarantee high standards in the future.

I believe that payments made over the coming decades must provide benefits that last for generations. To achieve this, Indigenous people and organisations must be encouraged to apply income streams to optimal effect while at the same time minimising cash payments to individuals in circumstances where these payments are unlikely to yield lasting benefits.

There are clearly problems with agreements providing unstructured and large up-front cash payments to individuals or groups within a wider family or community grouping. People with low levels of financial literacy may find it difficult to manage these payments and as a consequence they may not be invested to maximise and generate wealth into the future. The mining sector is generally moving away from offering up-front payments in agreements. However, not all companies embrace industry best practice and some Indigenous people continue to demand such payments. The result is often conflict within Indigenous communities as direct payments to some individuals and not others create division and inequity. The payments are rarely directed to benefit the whole community or to achieve longer-term investment strategies.

In my view, government must exert its influence to ensure that the financial benefits of agreements create employment and educational opportunities for individuals and are invested for the long-term benefit of communities. Many would disagree with me, as financial transfers through private agreements could be regarded as not properly the subject of government interference or regulation. If that is so, then the outcome needs to be achieved in other ways. The policy challenge is both to respect the rights of Indigenous peoples to make agreements in relation to their land, and to ensure the benefits that result are used to make a difference, not just to their lives but also to the lives of their children and grandchildren.

Recently the Attorney-General and I set up a Native Title Payments Working Group, a group of experts brought together to share their perspectives and find a way forward. The Working Group considered the type of benefits to be provided through agreements and identified the characteristics of good agreements. They also made the case for increasing the transparency of agreements. The main focus of the Working Group’s report was on the changes that needed to be made to the current tax regime to streamline the administrative complexities and burdens that arise in the management of benefits, including specific ideas for making agreements more effective and sustainable.

The Attorney-General and I have released a discussion paper which builds on the report of the Working Group and looks at potential changes to the way payments are negotiated and structured to improve accountability and to provide greater assurance to Indigenous interests.⁸ The discussion paper considers how the governance processes of Indigenous organisations receiving native title payments and related benefits can be strengthened, so that they can manage the benefits in a way that looks to the future.

For mining companies at the negotiation table, it raises the need for strategies recognising that their social licence to operate is as important as their commercial imperative to develop. There are many issues in play—the transparency of agreements, improved governance arrangements, and incentives for parties to agreements to make strategic decisions about investing in their futures.

Government has a responsibility to better manage this environment. This might be achieved through policy reform, law reform, or both. I look forward to the ideas and responses generated by the discussion paper. While I do not have set opinions about the way forward, I am firm in my view that something needs to be done about these issues and that action is needed in 2009.

I do not accept that native title is only about the cultural value of land and access to it. As important as cultural benefits are, native title also has an economic and commercial dimension. It would be shameful if the very substantial proceeds expected to flow to Indigenous people over the next two decades are not used to help close the gap between Indigenous and non-Indigenous Australians. As Paul Keating recognised in 1993, such failure would betray not only the Indigenous people of Australia, but all of us, our traditions and our future.

*The Hon Jenny Macklin MP is Minister for Families, Housing, Community Services and Indigenous Affairs.

Endnotes

1 Mabo v Queensland (No 2) (1992) 175 CLR 1.

2 Commonwealth, Parliamentary Debates, House of Representatives, 16 November 1993, 2878 (Paul Keating, Prime Minister).

3 The Council of Australian Governments (COAG), the peak intergovernmental forum in Australia, has agreed to six ambitious targets for closing the gap between Indigenous and non-Indigenous Australians across urban, rural and remote areas:

• to close the gap in life expectancy within a generation;
• to halve the gap in mortality rates for Indigenous children under five within a decade;
• to ensure all Indigenous four years olds in remote communities have access to early childhood education within five years;
• to halve the gap in reading, writing and numeracy achievements for Indigenous children within a decade;
• to halve the gap for Indigenous students in year 12 attainment or equivalent attainment rates by 2020; and
• to halve the gap in employment outcomes between Indigenous and non-Indigenous Australians within a decade.

4 For a broader discussion on this topic, see M Langton and O Mazell, ‘Poverty in the Midst of Plenty: Aboriginal People, the “Resource Curse” and Australia’s Mining Boom’ (2008) 26(1) Journal of Energy & Natural Resources Law 31.

5 There are numerous articles discussing this agreement. However, for details on the type of benefits provided see: Argyle Diamonds, Communities and Environment: Indigenous Land Agreement <www.argylediamonds.com.au/comm_ land_agreement_text.html> at 17 December 2008. (Argyle Diamonds is owned and operated by Rio Tinto).

6 R Williams ‘Mining Rites’ The Age (Melbourne), 17 May 2008 <http://business.theage.com.au/business/mining-rites-20080516-2f63.html> at 17 December 2008.

7 An explanation of Indigenous Land Use Agreements (ILUAs) can be found at the National Native Title Tribunal website: National Native Title Tribunal, Indigenous Land Use Agreements (2008) < www.nntt.gov.au/Indigenous-Land-UseAgreements/Pages/About_iluas.aspxIt>. The website states that: ‘An indigenous land use agreement is an agreement between a native title group and others about the use and management of land and waters’.

8 Australian Government Discussion Paper, Optimising Benefits from Native Title Agreements (2008) <http://www.ag.gov.au/www/agd/agd.nsf/Page/Indigenouslawandnativetitle_Nativetitle_Discussion Paper-OptimisingbenefitsfromNativeTitleAgree ments> at 17 December 2008. The closing date for submissions on the discussion paper is 13 February 2009.