Indigenous Law Bulletin
By Peter Yu
The Miriuwung Gajerrong determination in the Federal Court is the strongest recognition of native title to date by an Australian court and, as such, sets the benchmark for negotiating any agreements between traditional owners and other land users.
The Native Title Act 1993 (Cth) (`the NTA') created only limited possibilities for regional agreements under s 21. These were premised on Aboriginal people either agreeing to the extinguishment of their native title or to the authorisation of future acts. However, the Native Title AmendmentAct 1998 (Cth) ('the NTAA') includes strengthened provisions for negotiating Indigenous Land Use Agreements ('ILUAs').
The Kimberley Land Council ('KLC') has long argued for a comprehensive-agreement approach to native title. During the 1993 debate over the NTA, the KLC argued to the then Prime Minister, Paul Keating, that a comprehensive agreement model would be more effective than a national tribunal/mediation model based on claims. The KLC's position was informed by Canadian experience with a comprehensive claims policy, and was motivated by:
Miriuwung Gajerrong establishes at common law that native title is a `title in the land', a root title, not merely a `bundle of rights' which can be broken up and extinguished, or permanently impaired, bit by bit. Native title rights, such as fishing, hunting, food-gathering, looking after country and performing ceremonies, depend on this root title for their existence, but the root title does not depend on all these native title rights for its existence; so long as one dependant right remains, the root title remains.
On the basis of this finding, pastoral and other leases, `limited both in time and purpose', and which allow for co-existent rights, merely `regulate Aboriginal rights arising from the root title' and only to the extent that they are inconsistent with the lease-holder's rights. Upon the expiry of the interests held by the lessee, native title rights will again be able to be exercised by the holders of the root native title.
Native title can only be extinguished by a `clear and plain intention of the Crown to do so, whether expressly stated in legislation or necessarily implied in the consequences of an act of the Crown.
Justice Lee found that where native title survives, it confers upon its holders the following rights within the determination area:
His honour also found that native title is a community title, that it can be shared by two or more communities, and that ancestral connection, rather than narrow, exclusive biological-descent tests, is sufficient to establish connection. Where native title interests and non- native title interests are concurrent, the manner in which those concurrent rights are to be practically exercised ‘must be resolved by negotiation between the parties concerned’. He also found that: ‘It may be desirable that parties be assisted in that endeavour by mediation, a course contemplated, perhaps by, ss 86B(5), 86A(1)(b)(iv) of the Act.’
Provided the State Government were prepared to negotiate, agreements in the Kimberley could take the form of industry framework agreements with, for example, mining interests, pastoralists and horticulturalists. ILUAs could operate as alternative procedures to the future act regime, and could help to advance negotiated agreements outside the formal processes of the NTA. However, the position of the WA Government has meant that this potential has not yet been realised. The absence of a State Government policy and administrative framework for negotiated agreements is the major obstacle to their advancement in Western Australia, both regionally and locally.
The State Government has instead taken the position that certainty can only be delivered by extinguishment, or by stripping away the right to negotiate ('the RTN'). Further, it has indicated that it does not accept the Miriuwung Gajerrong decision and will not negotiate consent determinations until the High Court determines its appeal against that decision. In the meantime, the Full Federal Court appeal is due to commence on 26 July.
Before Miriuwung Gajerrong, the State Government was at least prepared to negotiate consent determinations on pastoral leases. The State hoped that the Federal Court would find that native title is a bundle of rights, extinguishable to the extent of their inconsistency with the rights of pastoralists. When Justice Lee instead found that native title is a root title, only regulated by the rights of pastoralists, the State pulled out of negotiations.
The WA Government is reluctant to commit itself to a process for negotiating ILUAs until it has established a State native title regime following the passage of its Native Title (State Provisions) Bill. If passed unamended, this Bill would restrict the RTN to areas which have been vacant crown land, and to Aboriginal reserves and leasehold land. The NTAA consultation procedures provide little protection for native title rights. Although falling far short of the RTN, the key Opposition amendments would:
The WA Government is refusing to accept these amendments and the legislation is stalled. For ILUAs to be negotiated, there must be goodwill between all parties involved, and this goodwill must also match up against specific legal benchmarks. Goodwill is clearly absent from the State Government's approach to native title, and it is the Cabinet of this Government that would have to approve any ILUAs. The erosion of the RTN has also left Indigenous people justly aggrieved and therefore more likely to seek common law remedies to retain their rights. As a result, instead of negotiated agreements with mutually-beneficial outcomes, uncertainty and expensive and lengthy court cases continue-the State Government is reported to be spending up to $8 million a year on native title, with most spent on legal fees.
There is no reason for the traditional owners to accept anything less than the rights recognised by the Miriuwung Gajerrong decision. ILUAs would be useful if the State Government consented to native title determinations.
There are many reasons why the State Government should negotiate agreements with Indigenous people, and in the case of the holders of the native title found in the Miriuwung Gajerrong decision, there are good reasons to negotiate a State Agreement Act.
One reason is the proposed development of Stage Two of the Ord River Irrigation Scheme. This proposal, which includes Miriuwung and Gajerrong land, is the most significant development proposed for the Kimberley. If this project proceeds, the proponent plans to invest over $370 million. The size of the area under irrigation would double in size from 16,000 to 32,000 hectares, and the size of Kununurra, the nearest town, would increase by at least a quarter to accommodate the associated workforce.
For the State Government to maximise certainty for this project, it must negotiate with the traditional owners. These negotiations could take the form of a framework agreement, consistent with current legal benchmarks and leading to a State Agreement Act. Such Acts have operated successfully in dealing with major resource development projects and land management issues in Western Australia since the 1960s. In the native title context, they could be used to regulate the relationship between an Aboriginal corporation and other state and local instrumentalities. They could include access regimes for mining and tourism, secure tide for the traditional owners and joint management of the conservation estate. ILUAs could then address specific interests within that legal structure.
Issues that would need to be covered by a State Agreement Act would include measures to protect places of significance, a strategy to ensure the ongoing survival of the Miriuwung and Gajerrong peoples and issues of social and economic development, among others. There is substantial goodwill in the Kimberley to negotiate agreements at the local level between Indigenous interests, industry and local government. Such agreements could address issues of access, support for bodies corporate, heritage protection, environmental management, economic development and the provision of services.
The original irrigation scheme established in the 1960s (Ord Stage One) was imposed on the traditional owners without any formal consultation. Many of those people are justifiably aggrieved by the destructive impact of that development on their society culture and lands. Despite this experience, Aboriginal people are still willing to negotiate over the current project.
Aboriginal people throughout the Kimberley are willing to negotiate with various levels of government. Other groups also see the benefits of negotiation, and there have already been agreements with mining companies, pastoralists and the Broome Shire. KLC is suggesting a framework for negotiation which would involve a formal relationship between the State, Commonwealth and Indigenous people and which would operate in a similar way to the British Columbia Treaty Commission. The cost of establishing such a structure would be more than offset by the savings in litigation and the economic certainty it would produce.
It is only through comprehensive agreements that certainty for all parties can be achieved.
Peter Yu is Executive Director of the Kimberley Land Council.
 Ben Ward & Others v State of Western Australia & Others, Federal Court, 24 November 1998, Justice Lee.
 S Mascher, 'Ben Ward et al on behalf of the Miriuwung and Gajerrong People v The State of Western Australia et at, in 17 (1998) Case Notes 413-20
 Aboriginal land use agreements have already been negotiated in the Kimberley. KLC is negotiating with major mining companies in the region which are keen to reach an agreement on exploration. There is an interim agreement and a commitment to a framework agreement between the Broome Shire and the Rubibi Working Group, which represents native title applicants in the Broome area. This agreement aims to ensure that planning and development in the Broome area can coexit with the interests and responsibilities of the traditional owners, while advancing the interests of the entire community.