|
|
Home
| Databases
| WorldLII
| Search
| Feedback
University of New South Wales Law Journal Student Series |
IMPACTS OF THE NATIVE TITLE ACT 1993 (CTH) ‘RIGHT TO NEGOTIATE’ PROVISIONS ON YINDJIBARNDI COMMUNITY RELATIONSHIPS AND DYNAMICS: A CASE STUDY
XANTHE K WAITE
I INTRODUCTION
The ‘Right to Negotiate’ provisions (‘RTN provisions’) in the Native Title Act 1993 (Cth) (‘NTA’) provide native title parties an opportunity to negotiate terms of agreements with prospective developers. This statutory right creates the possibility of generating positive and economically empowering outcomes such as revenue streams, employment and business development for Indigenous communities, while also mitigating negative impacts of development on native title rights and interests. An important aspect of understanding the operation and effect of the RTN provisions provided by the NTA is to understand the impact the RTN process can have on Indigenous communities’ internal dynamics and relationships.
This essay will consider in depth one Indigenous community’s experience of navigating the RTN process, and the subsequent impact this experience has had on internal community relationships and dynamics. The experience of the Yindjibarndi people in the resource rich Pilbara region of Western Australia is the focus of an ongoing compensation claim Yindjibarndi v State of Western Australia[1] (‘Yindjibarndi v WA’) concerning a long running dispute between members of the Yindjibarndi community and the iron-ore mining company Fortescue Metals Group Ltd (‘FMG’). Members of the Yindjibarndi community claim that FMG caused social disruption and division in what was once a unified community of native title holders by supporting a breakaway group of community members who were prepared to support FMG’s terms of agreement during negotiations. A critical point of contention between the parties in this case is whether ‘social disharmony’ is compensable under the NTA and as such much of the content of witness statements brought as evidence focus on perspectives of Yindjibarndi people about the impact the RTN process has had on the Yindjibarndi normative system including kinship (Galharra), reciprocity (Nyinyard) and ritual practice (Birdarra). The Yindjibarndi case study illustrates how the operation of the RTN provisions produce structural inequalities that can ultimately lead to a shift in community dynamics and relationships, with significant bearing on the community’s ability to exercise native title rights and interests.
In what follows I will first outline and analyse the operation of the RTN provisions, including their purpose. I will next discuss the potential for these provisions to lead to positive outcomes for Indigenous communities and canvas key criticisms of the provisions made by scholars writing and working in this area. The Yindjibarndi case study next provides a valuable opportunity to explore the impact the negotiation process can have on Indigenous communities’ internal dynamics and relationships and the connection between this and the ability to exercise native title rights and interests. Reflecting on the Yindjibarndi experience I conclude that there is urgent need for reform to prevent further harm to Indigenous communities’ normative systems and to ultimately fulfil the underlying purposes of the NTA.
II OPERATION OF THE NATIVE TITLE ACT ‘RIGHT TO NEGOTIATE’
A RTN Purpose and Procedure
One important policy issue that needed to be addressed following recognition of native title in Mabo (No 2)[2] was the tension arising between the rights and interests that would be asserted by Indigenous people, and the claims of others to undertake acts on the land which are inconsistent with those rights and interests, for example resource extraction and mining activities.[3] Responding to this issue, one object of the Native Title Act 1993 (Cth) is to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings.[4] In the preamble this aim is expressed as follows
[i]t is particularly important to ensure that native title holders are now able to enjoy fully their rights and interests. Their rights and interests under the common law of Australia need to be significantly supplemented. In future, acts that affect native title should only be able to be validly done if, typically, they can also be done to freehold land and if, whenever appropriate, every reasonable effort has been made to secure the agreement of the native title holders through a special right to negotiate. It is also important that the broader Australian community be provided with certainty that such acts may be validly done.
The first sentence reflects the overarching purpose of enacting the NTA to recognise and protect native title rights and interest that were recognised in Mabo (No 2). The creation of a ‘special right to negotiate’ embodies the need for native title rights and interests to be significantly supplemented.
The ‘Right to Negotiate’ provisions set out in Subdivision P (‘RTN provisions’) of the NTA fall under the future acts regime of the NTA, which broadly regulates what non-native title holders can legally do on land that is subject to, either, a positive native title determination or a native title claim after the enactment of the NTA on 1 January 1994.[5] Future acts include acts, on or after that date, that would extinguish native title rights and interests or are otherwise inconsistent with their continued existence, enjoyment or exercise.[6] Certain future acts, including the conferral by the Commonwealth, a State or Territory of a right to mine, attract a statutory right to negotiate for a native title party.[7] A ‘[n]ative title party’ includes any registered native title body corporate (representing the native title holders where there has been a positive native title determination) as well as any native title claimants.[8] That the right to negotiate also applies to native title claimants who have not yet had a positive determination of their native title reflects the fact that native title is considered a pre-existing right.[9] The parties required to participate in negotiations are any native title parties, the grantee party (i.e. any person who has requested or applied for the act such as the mining company) and the Government party.[10]
The procedural requirements that must be satisfied if the right to negotiate applies in this context are as follows.[11] Firstly, before a conferral of a right to mine is done, the Government party must give notice of the act to any registered native title body corporate and any registered native title claimant in relation to the land that will be affected in accordance with s 29 NTA.[12] The date of notification triggers a timeframe of 6 months in which the parties must negotiate ‘in good faith with a view to obtaining the agreement of the native title party to the doing of the act’, with or without conditions.[13] Any acts done without following the procedural requirements of the RTN provisions will be invalid.
The RTN process provides native title parties an opportunity to negotiate about how their rights might be impacted with the proponent of the mining development, but there is no right to veto the future act,[14] causing difficulties for native title parties who want to say no to proposed future acts. The RTN provisions provide that negotiations can include agreements about entitlements to payments worked out by reference to the amount of profits made, any income derived or any things produced by, the grantee party (eg, mining company), as a result of doing anything in relation to the land or waters concerned (‘royalty payments’).[15]
The relationship between mining companies and native title parties is now, almost universally, governed by negotiated agreements, many of these under the RTN provisions of the NTA.[16] This is particularly relevant for native title parties in resource rich areas of Australia, such as Western Australia where approximately 85% of the State is subject to either a Native Title claim, or has already received a Native Title determination recognising the existence of native title rights and interests. Western Australia is also the State that grants the highest number of land and mineral titles in Australia, the majority of which must comply with the future act regime of the NTA.[17] Given the scale of native title negotiations for mineral and exploration mining projects in Australia it is important to understand how the RTN provisions are operating in practice.
B RTN Arbitral Provisions
If after six months no agreement of the kind mentioned in s 31(1)(b) NTA has been made in relation to the future act, a negotiation party may apply under s 35(1), to the ‘arbitral body’, such as the National Native Title Tribunal (‘NNTT’), or if applicable, a state or territory equivalent,[18] for a determination under s 38 as to whether the future act may or may not be done. An important provision for the discussion in this essay is s 38(2), which prohibits the arbitral body from determining conditions relating to royalty payments to a native title party. The NTA provides criteria that is to be taken into account by the arbitral body in making its determination, including a number of provisions regarding the effect of the act on the enjoyment by the native title parties of their registered native title rights and interests; way of life, culture and traditions; development of social, cultural and economic structures and the interests, proposals, opinions or wishes of native title parties in relation to the management, use or control of land or waters in relation to which there are registered native title rights and interests that will be affected by the act.[19]
C Analysis of RTN Provisions: ‘Structural Inequality’
That the NTA does not confer on native title parties’ a right of veto over exploration or mining, places them in a weak negotiating position to begin with. The right to negotiate provides an opportunity to negotiate with mining companies regarding the terms of the agreement, but if agreement is not reached, mining companies can apply to the National Native Title Tribunal (‘NNTT’) for permission to proceed anyway. Sections 33 and 38(2) of the NTA appear to further weaken native title parties negotiating position, in that agreements reached within the 6 month negotiation period can include arrangements of payments to native title parties worked out by reference to the amount of profits made, things produced or income derived by the mining company as a result of the proposed act,[20] whereas, the NNTT cannot determine a condition in relation to such a payment.[21] Weakening native title parties’ negotiating position further still is that, in practice, permission is granted to mining companies by the NNTT in almost every case.
As such, the operation of RTN provisions create conditions where native title parties are under considerable pressure to reach an agreement within the negotiating period, in order to avoid the potentiality that the development will proceed anyway without the native title party receiving any benefits or having the ability to mitigate the impact of development on their rights and interests.[22] Conversely, mining companies are under no such pressure.
Ciaran O’Faircheallaigh, Professor of Politics and Public Policy, has described this as a ‘structural inequality’ produced by RTN provisions in the NTA, arguing that the RTN process puts duress on native title holders, and claimants, to reach an agreement with mining companies, even if the terms do not promote their economic, cultural and social aspirations.[23]
One effect of the RTN framework producing this structural inequality that favours mining companies is the possibility that native title parties may become divided as to whether to compromise and negotiate an agreement on the one hand or draw a line and say no on the other. The implications of such divisions will be explored in greater detail in the Yindjibarndi case study later in this essay.
III RTN PROVISIONS: OUTCOMES
A Positive Outcomes: A Critical View
The content of negotiated agreements under the NTA can vary, but typically three elements are included: in exchange for ‘an expression of Indigenous consent and support for exploration or mining activities’ an agreement will outline ‘measures designed to allow Indigenous people to share in the economic benefits generated by these activities’ for example royalty payments and Indigenous employment, training, and business development; and ‘provisions designed to avoid or minimise their potentially negative effects on Indigenous lands and livelihoods’, for example agreements regarding cultural heritage protection.[24]
Considering this, some scholars have emphasised the capacity of negotiated agreements to change the position of Indigenous peoples for the better within Australian society.[25] Especially so considering the reality that Indigenous peoples are politically underrepresented at all levels of government. Marcia Langton argued in her 2012 Boyer Lectures that employment, business developments and revenue streams that have been generated by agreements with mining companies have allowed for participation in the mainstream economy in a way that hadn’t happened before, she argues that there has been a ‘“quiet revolution” in Indigenous economic opportunities and social status as a result of negotiated agreements’.[26]
Others take the view that the NTA is of limited assistance in the circumstance Indigenous peoples wish to mobilise their native title rights and interests to support aspirations of economic empowerment and minimise negative effects of mining on native title rights and interests. Indigenous barrister Tony McAvoy SC has argued that due to the NTA’s embedded bias against Indigenous peoples,[27] any agreement made under the RTN provisions cannot be said to be ‘free’ in the sense of ‘free prior and informed consent’, as stipulated in international law standards.[28]
Both perspectives appear to be reflected in the outcomes of O’ Faircheallaigh’s 2016 study of negotiated agreements between mining companies and Indigenous peoples in Australia, which found that there was great variability in outcomes for Indigenous communities, with positive outcomes reflecting high scores across outcome indicators and weak outcomes corresponding with low scores.[29] Outcome indicators included areas such as levels of ‘cultural heritage protection’ and ‘environmental management’ as well as factors that related to economic empowerment including ‘royalty percentage’, ‘employment and training’ and ‘business development’.[30]
In analysing the factors that shaped these outcomes O’ Faircheallaigh found that legislative regimes explain, at least partly, the variation in outcomes resulting from the negotiated agreements he studied. The study found that a large proportion of the weaker agreements had been negotiated under the NTA, for which the inequality in bargaining power provided a clear explanation. However, O’ Faircheallaigh observes that legislative differences do not offer a full explanation, given that some in NTA agreements Aboriginal groups are ‘achieving substantial economic benefits and innovative provisions to minimise the impact of commercial activities on their traditional lands’.[31]
Factors evidently informing positive negotiated agreement outcomes are factors external to the NTA that can help mitigate the structural inequality of bargaining power produced by the operation of the RTN provisions. These factors include the presence of strong Indigenous political organisation, a strong land base, and the involvement of regional land organisations in the negotiations process.[32] Elsewhere O’ Faircheallaigh writes that ‘battles’ to insist bureaucrats and companies take heed of Aboriginal interests require native title holders and their representative organisations to ‘use the courts and apply their political resources’, however, there remains ‘a huge difficulty institutionalising gains achieved in one struggle, so that they do not have to be fought all over again in the next’.[33]
B Internal Community Dynamics
Arguably, an important aspect of understanding the potential of the RTN provisions to effect positive outcomes for Indigenous communities, such as economic empowerment and cultural heritage protection, is to understand the impact the right to negotiate process can have on Indigenous communities’ internal dynamics and relationships. This essay will now consider in depth one Indigenous communities experience of navigating the right to negotiate process, and the subsequent impact this experience has had on internal community dynamics, relationships and the ability to exercise native title rights.
The ongoing compensation claim of Yindjibarndi v WA, which concerns a long running dispute between members of the Yindjibarndi community and FMG, provides a valuable opportunity to understand these impacts in the context a negotiated agreement was not reached within the 6-month timeframe stipulated by the NTA, and where FMG was subsequently granted approval through contested determinations at the NNTT. The experience of the Yindjibarndi people illustrates how the operation of the RTN provisions produce structural inequalities that can lead to a shift in community dynamics and relationships which has significant bearing on the Yindjibarndi people’s ability to exercise native title rights and interests.
IV YINDJIBARNDI CASE STUDY
A Background
Yindjibarndi country is located in the resource rich Pilbara region of Australia in the north-west of Western Australia. The area is the subject of two positive native title determinations concerning the Yindjibarndi people, the first determination in 2005 recognised that the Ngarluma/Yindjibarndi peoples shared non-exclusive native title rights over parts of their claim area.[34] A second claim, the Yindjibarndi #1 claim, was registered in 2003 and a determination in 2017 (‘Yindjibarndi #1 determination’) recognised that the Yindjibarndi people’s native title rights conferred on them the right to exclusive possession over the claimed area, that is, possession, occupation, use and enjoyment of that area to the exclusion of all others.[35] This determination was contested by iron-ore mining company FMG, but the determination was upheld by the Full Federal Court (‘FFC’) in 2019,[36] FMG’s application for leave to appeal the FFC’s decision was dismissed by the High Court of Australia (‘High Court’) in 2020.[37]
A determination recognising native title exists over a determination area[38] means the claimants satisfied the statutory requirements[39] which place an onerous burden on claimants to prove continuity of connection, society and traditional laws and customs, from the time of annexation until the present day.[40] The prevailing view of the High Court regarding the appropriate way to characterise the content of native title rights and interests is a ‘bundle of rights’ approach – claimants must prove each right and interest separately.[41] In this sense, a determination recognising exclusive native title is the fullest expression of native title rights recognised in Australia. Yindjibarndi rights are now recognised to extend over 13,000 square kilometres of the Pilbara. Reflecting the above-mentioned determinations these rights include exclusive and non-exclusive native title possession, and are managed by two prescribed bodies corporate, Yindjibarndi Aboriginal Corporation (‘YAC’) and Yindjibarndi Aboriginal Corporation (‘YNAC’).[42]
FMG’s Solomon Hub Mine (‘Solomon Hub’) is located largely on country that was the subject the Yindjibarndi #1 exclusive native title determination. The acts in respect of which compensation is sought in Yindjibarndi v Western Australia (‘Yindjibarndi v WA’) are 36 grants made by the State of Western Australia to FMG of various mining tenements, including renewals and extensions of term of those tenements (‘FMG tenements’) between 2006 and 2021, that is both before the Yindjibarndi #1 determination in 2017, and after.[43] The applicant in Yindjibarndi v WA, YNAC, holds in trust the native title rights for the Yindjibarndi people that were recognised in the Yindjibarndi #1 claim and as such is the post Yindjibarndi #1 determination representative of the Yindjibarndi People. Prior to the Yindjibarndi #1 determination (13 November 2017) the Yindjibarndi #1 Applicant and its agent, YAC, were the representatives of the Yindjibarndi native title claimants. As discussed in Part II of this essay, once a native title claim is registered, mining companies and the state must adhere to the requirements set out under the NTA regarding notification and the obligation to negotiate in good faith with a view to obtaining the agreement of the native title party to ‘the doing of the act’.[44] With the exception of one grant, neither the Yindjibarndi #1 applicant, YAC nor YNAC, as the post-Yindjibarndi #1 determination representative of the Yindjibarndi People, agreed to the granting of FMG tenements.[45] It is on this basis that the YNAC, on behalf of the Yindjibarndi people, seeks compensation.
B Significance of the Case
This case is significant for its bearing on the scope of native title compensation law, as it concerns an application for compensation for future acts which have affected, but not extinguished, the Yindjibarndi People’s native title rights and interests,[46] this has not been the focus of previous litigated compensation claims.[47] Further, a critical point of contention between the parties in this case is whether ‘social disharmony’ is compensable under pt 2, div 5 of the NTA and as such much of the content of witness statements brought as evidence by YNAC focus on perspectives of Yindjibarndi people about the impact the native title process has had on the Yindjibarndi normative system including kinship (Galharra), reciprocity (Nyinyard) and ritual practice (Birdarra).[48] Specifically, this evidence focuses on how negotiations mechanised under the RTN provisions of the NTA, and the subsequent outcomes of these dealings, have affected the Yindjibarndi normative system. As a point of focus for this essay, this content provides valuable perspectives on the impact native title processes can have on Indigenous community, dynamics and relationships and the connection between this and the ability to exercise native title rights and interests.
In what follows I will describe the way negotiations between FMG and the Yindjibarndi community transpired and consider how the negotiating positions of the parties evince a structural inequality produced by the operation of the RTN provisions. I will next canvas the significance of the relationship between FMG and breakaway group Wirlu-Murra Yindjibarndi Aboriginal Corporation (‘WMYAC’) and the related claims of ‘social disruption and division’ made by YNAC in their Statement of Claim and Opening Submissions in Yindjibarndi v WA. I will describe the outcome of these negotiations and canvass the key impacts on the Yindjibarndi normative system, relationships and dynamics, as described by Yindjibarndi peoples. Considering the claim of loss, diminution and impairment on the Yindjibarndi peoples’ native title rights and interests made by the YNAC on behalf of the Yindjibarndi people in Yindjibarndi v WA, I argue that this case study demonstrates how the RTN provisions in the NTA, in effect, can compromise the very thing that the NTA was designed to protect – native title rights and interests, with significant and lasting impacts on relationships and dynamics in Indigenous communities.
I note that the discussion that follows draws on information available on the public record regarding this ongoing dispute between YAC and FMG. Given the significant public interest in this matter, transcripts of witness statements for the applicant (YNAC) in the Yindjibarndi v WA compensation claim have been made available online by the Federal Court of Australia.[49] The following discussion includes perspectives of Yindjibarndi individuals' drawn from these statements on the effect the RTN and broader native title process has had on the Yindjibarndi normative system. Some of the content of these witness statements was the subject of objections by the FMG respondents. Content of witness statements where the objection by FMG is based on the fact that the claims relate to details of social disharmony have been included in my discussion below, as the parties have agreed that the ruling on this objection will be appropriately dealt with when judgement is delivered – i.e., whether social disharmony is compensable under pt 2, div 5 of the NTA is a matter in issue between the parties. However, content that is subject to any other objections by the FMG Respondents has not been included in the following discussion.
C Negotiations
1 FMG and YAC
In 2008, FMG sought to obtain mining leases for the Solomon Hub Project, resulting in negotiations with the Yindjibarndi #1 applicants, represented by YAC, as required by s 26 NTA.[50] A key sticking point in these negotiations was compensation and royalty payments.[51] In exchange for what FMG called a ‘Whole of Claim Land Access Agreement’, FMG offered an annual training and employment package valued at $1.2 million; plus an additional annual payment of $3 million or $3.4 million to the Yindjibarndi.[52] Such an agreement would have allowed FMG broad control, including allowing joint ventures with other mining companies without consultation with the Yindjibarndi People.[53] YAC asserted that in exchange for Yindjibarndi free, prior and informed consent FMG should pay an uncapped 5% royalty, which was the equivalent to the royalty paid to the state government at the time.[54] YAC reduced this to 2.5% later in the year and later still in 2010, and after seeking agreement of the YAC Board, Michael Woodley who is the CEO of YAC, and head of several other Yindjibarndi entities, wrote to Andrew Forrest to say YAC would agree to 1.25% royalty. However, FMG and Yindjibarndi never reached an agreement.[55]
An excerpt of minutes from a Yindjibarndi Community meeting with FMG in 2008 captured the following exchange between Michael Woodley (representing YAC) and Andrew Forrest (representing FMG).
Michael Woodley (‘MW’) – we are major stakeholders in this – we want to reach an agreement where Yindjibarndi will develop far and beyond – we have our own plans which we would like to develop – FMG’s responsibility is to look after your company – our responsibility lies with ourselves - we want to share the benefits.
Andrew Forrest (‘AF’) – I want a relationship with the Yindjibarndi people – not just give you a big bag of money.
MW – we can have a relationship – we have our own big picture – we want to develop our own core business
AF – it sits with you whether you get any money – I can’t do that agreement – it would destroy the company
MW – 5% is not negotiable
AF – I was swimming with my kids at Pretty Pool – Native Title is not property rights – it goes to a Native Title Tribunal – the people who hold out for a bag full of money will get nothing[56]
This exchange reflects the broader negotiating positions taken by YAC and FMG, and the competing interests at play during these negotiations. On the one hand Woodley’s comments suggest YAC’s concern to reach an agreement that promotes self-determination and economic empowerment for Yindjibarndi people, on their terms. On the other hand, Forrest is clear that if an agreement is not reached on FMG’s terms, FMG can go to the NNTT for permission to proceed in any case.[57]
2 Structural Inequality
This exchange is illustrative of what O’Faircheallaigh describes as a structural inequality in negotiating positions that is created by the operation of the RTN provisions of the NTA, with the native title party on one side, and prospective miners on the other.[58] I argue that the inequality of bargaining power created in these circumstances reveals a deficiency in the future acts system that appears to undermine the underlying purposes of the NTA discussed in Part II. As will be discussed further below, the structural inequality of the RTN provisions has a significant bearing on the effect the native title process can have on native title parties’ relationships, dynamics and relatedly, their ability to exercise rights and interests.
3 Social Disruption and Division
In Yindjibarndi v WA YNAC’s position is that FMG have caused ‘social disruption’ and ‘serious division within what was once a unified and very close community of native title holders’.[59] The ‘particulars of social disruption and division’ described by YNAC in their Statement of Claim include FMG having entered into financial relationships and agreements in respect of its mining activities with some of the Yindjibarndi People without the consent of the YAC (prior to 13 November 2017) or YNAC (post 13 November 2017).[60] YNAC claims these agreements and relationships are ongoing and relate to business services, including participation in cultural heritage surveys and support of FMG’s applications made under the Aboriginal Heritage Act 1972 (WA) (‘Aboriginal Heritage Act’) to destroy Yindjibarndi sites.[61] FMG denies the company caused the division arguing that not only is such social division or disharmony not compensable in the way YNAC claims but that the division was not caused by FMG, ‘if different groups within the YP had different views about what agreement should be made, the difference of view cannot properly be said to have been caused by FMG’.[62]
This dispute has been long running and has been discussed in earlier cases heard by the Federal Court of Australia (‘FCA’). The FCA acknowledged that in 2010 a ‘deep and unfortunate internal division’ emerged within the Yindjibarndi people over ‘whether, and, if so, on what terms, they should cooperate with FMG developing and operating what is now the Solomon Hub mine.’[63] On one side were a group of Yindjibarndi people who had a voting majority within YAC led by Michael Woodley, who opposed FMG’s terms regarding the development of the Solomon Hub. On the other side were a minority within YAC, who were prepared to support FMG’s terms of agreement.[64] This group was incorporated as WMYAC, registering with the Federal government’s Office of the Registrar of Indigenous Corporation on 23 November 2010.[65] YAC claims that FMG, through an anthropologist, encouraged the establishment of WMYAC as a rival corporation to the YAC, an allegation which FMG ‘categorically rejects.’[66]
The FCA later found that FMG provided significant financial and other support to WMYAC, who were prepared to support the development of the Solomon Hub Project on FMG’s terms.[67] In 2017, Rares J found that WMYAC ‘has a very close relationship with FMG’[68] and reiterated an earlier finding[69] that in March 2011 FMG ‘orchestrated, to a considerable degree’ the convening of a meeting of the Yindjibarndi claim group and voting procedures in an attempt, under the NTA[70] to replace the applicant of the Yindjibarndi #1 claim ‘with four directors and other members of WMYAC and to authorise and direct the proposed replacement applicant to consent to a determination of native title in this proceeding “like” that in the 2007 determination — ie one with only non-exclusive native title rights and interests’.[71] Considering the procedural requirements of the RTN provisions outlined in Part II, one significant outcome of this for FMG would have been, if successful, any negotiations regarding future acts would be undertaken with a group consisting of majority WMYAC members, with whom FMG has a close relationship. This manoeuvre was ultimately unsuccessful, in 2013 the FCA affirmed an application by YAC to replace members of the applicant to the Yindjibarndi #1 claim, which involved removing the three WYMAC members from the Applicant group.[72] This was a victory for the majority of YAC members who opposed FMG’s terms regarding the development of the Solomon Hub Project, it confirmed YAC as the representative body for the Yindjibarndi people in negotiations with FMG up until the successful Yindjibarndi #1 determination.
D Connection between RTN Provisions and ‘Social Disruption and Division’
In his witness statement for YNAC, Angus Mack, who is Yindjibarndi, said ‘this would not have happened if we were given the opportunity to sign a good deal with FMG in the first place,’ referring to the relationship between FMG and WMYAC.[73] Arguably, this statement succinctly captures the clear link between the structural inequality in negotiating positions created by the operation of the RTN provisions, and the conduct of FMG relating to ‘social disruption and division’ described above.
The RTN provisions, particularly compounded by s 38(2) NTA – the ‘no royalty’ provision – create conditions of duress on native title parties that, as seen in this case study, can be destructive to native title parties’ internal relationships and dynamics. Of course, another dimension of this structural inequality is that mining companies can use their stronger negotiating position to entrench their terms and leverage their own interests, even, as we see in the case of the Yindjibarndi people, at significant cost to native title parties’ relationships, dynamics and relatedly, their ability to exercise rights and interests. In the Yindjibarndi v WA claim, this dimension is evinced in the recurring concern raised in witness statements for YNAC that WMYAC members were making their decisions based on the belief that if YAC did not sign the FMG agreement on FMG’s terms, a mine would be built but the Yindjibarndi people would receive no money (compensation or royalty payments) and no benefits. The concerns, which were expressed in the following terms, suggest that FMG actively promoted this position in their dealings with the Yindjibarndi people
‘The meeting was told by Blair McGlew that the Yindjibarndi People would not get any money if we didn't agree to the $3 million per year offer. He said FMG did not have to pay anything to the Yindjibarndi People for the Mine’[74]
‘I was concerned that statements like those in the information paper had the potential to convince people that the only way to get any compensation from FMG was to abandon YAC’s position and accept its offer’[75]
‘...everyone’s frightened when FMG say we lost at the court. That we’ll get nothing unless we sign on.’[76]
‘They wanted to take it because the Yindjibarndi People would get nothing from FMG’[77]
E Outcome: Arbitration
Ultimately with no agreements reached with YAC, and later YNAC, FMG applied to the NNTT under s 35(1) of the NTA for the approvals necessary to construct the Solomon Hub.[78] All of these applications were opposed by Yindjibarndi #1 applicant and YAC, on behalf of the Yindjibarndi people.[79] A substantial amount of affidavit and other material was lodged in opposition to them, including, for example, detailed descriptions of how allowing the FMG tenements in question to be granted would prevent Yindjibarndi people from exercising their native title rights to manage and control how Yindjibarndi country is used,[80] and to occupy, use, possess and enjoy the three areas in question.[81] Michael Woodley recalls
‘I remember doing lots of affidavits trying to explain our connection to our country, our creation stories, our culture and our laws and customs. I do remember that I started to add more detail to the affidavits as I did for the NNTT more and more. I thought that if I went into more detail then the NNTT would understand our Yindjibarndi laws and customs.[82]... I have stood up for my ngurra in the best way I know how. That is to try and explain the Yindjibarndi People’s connection to their ngurra under our laws and customs and how Solomon Hub (the mine) would affect us. I feel like I have been saying the same things over and over again.’[83]
Despite these affidavits, and the provisions in s 39(1) that require the NNTT to consider native title rights and interests, the FMG tenements were approved in every case. In this case, the s 39(1) criteria proved hollow. Considering the track record of the NNTT almost always granting permission for developments to proceed discussed earlier in this essay, it is arguable these provisions provide little protection in the native title context against powerful commercial interests. Mining operations at the Solomon Hub commenced in about October 2012 and have continued ever since, with the expected life of the mine to be about 35 years.
F Implications
Yindjibarndi people describe the implications of the social division, the grant of permission to construct the mine by the NNTT and the native title process in general for the Yindjibarndi normative system, including kinship (Galharra), reciprocity (Nyinyard) and ritual practice (Birdarra) in the following ways. The social division discussed above is commonly referred to as ‘the split’.
‘I have observed that native title and the FMG Mine has had a corrupting effect on the Yindjibarndi People and undermined our community structure and internal authority’[84]
‘This split has broken the Gahlarra system, which is the system that we Yindjibarndi follow to make sure we relate to each other the proper way’[85]
‘The Law business is being broken by the split between YAC and WYAC members who will not come together as they used to, and as is required by Yindjibarndi Law’[86]
‘Following the split people ‘did not follow the Galharra in the way we have since the creation time’[87]
‘The split was created by FMG and has made Yindjibarndi People break their Law and culture and has damaged our community. The split created by FMG in our community has created yoondri (tearing apart)’[88]
‘The young people see this division too and so don't talk to each other even though they are meant to be when participating in Law’[89]
‘FMG building the Mine on Yindjibarndi country makes my wirrard break and the sadness overwhelms me to see my country destroyed, the spirits homes dug up without the Yindjibarndi's consent or any proper compensation ... I feel like my community is dying a long slow death in front of my eyes’[90]
‘The split with the WYAC mob has broken the nyinyaard. It doesn't work properly anymore. We don't follow it with the WYAC mob. This is because we lost the connection to the country at the Mine. The Mine has broken the country and Yindjibarndi people are now broken inside’[91]
‘FMG has also broken Yindjibarndi law by building the Mine on Gamburdayinha and the Bundut song line’[92]
‘My right to make decisions about that country as a Yindjibarndi man has been taken away from me when FMG built the Mine without my permission and locked me out of the Mine site. I feel powerless and hopeless’[93]
‘The fact that the Native Title Act has not been able to make much of a difference brings more grief to me. It makes me feel hopeless and insignificant’[94]
V CONCLUSION: REFORM NEEDED
An important aspect of understanding the operation and effect of the RTN provisions provided by the Native Title Act is the impact the process can have on Indigenous communities’ internal dynamics and relationships. I argue that the harm to the Yindjibarndi peoples’ normative system, including Galharra, Nyinyard and Birdarra detailed in this essay flows from deficiencies in the RTN provisions. The Yindjibarndi case study clearly demonstrates how the RTN provisions promote structural inequality between the negotiating parties. The operation of the RTN provisions create conditions of duress on native title groups that can be destructive to Indigenous communities’ internal relationships and dynamics. Further, the case study emphasises that the RTN provisions fail to mitigate conduct by prospective developers, such as FMG, who are placed in a position of considerable power. In this case the structural inequality produced by the RTN provisions has resulted in lasting negative impacts on the Yindjibarndi community’s internal dynamics and relationships and compromised their ability to exercise and enjoy native title rights and interests.
To prevent further harm to Indigenous communities’ normative systems and to ultimately fulfil the underlying purposes of the NTA of recognising and protecting native title rights, substantial amendments of the RTN provisions are needed, including the removal of the ‘no royalty clause’ and the removal of arbitral functions from the NNTT.
[1] Yindjibarndi v State of Western Australia (Federal Court of Australia, WAD37/2022, commenced 16 February 2022).
[2] Mabo (No 2) [1992] HCA 23; (1992) 175 CLR 1 (‘Mabo No 2’).
[3] Cheedy v Western Australia [2011] FCAFC 100; (2011) 194 FCR 562.
[4] Native Title Act 1993 (Cth) (‘NTA’) s 3(b).
[7] This includes the creation, renewal or extension of a right to mine: see NTA (n 4) ss 24MD, 25(1)(a), 26(1A)(c), 26(1)(c)(i).
[8] NTA ss 29(2)(a)–(b), 30.
[9] Mabo (No 2) (n 2).
[11] Ibid sub-div P.
[12] Ibid s 29(2)(b).
[13] Ibid s 31(1)(b).
[14] Ibid sub-div P.
[16] Ciaran O’Faircheallaigh, Indigenous Peoples and Mining (Oxford University Press, 2023) 238 (‘Indigenous Peoples and Mining’).
[17] Government of Western Australia ‘Department of Energy, Mines, Industry Regulation and Safety’, Native Title Management (Web Page) <https://www.dmp.wa.gov.au/Minerals/Native-Title-Management-5547.aspx>.
[18] NTA (n 4) s 27.
[19] Ibid s 39(1).
[20] Ibid ss 91, 33.
[21] Ibid s 38(2)
[22] Ciaran O’Faircheallaigh, ‘Aborigines, Mining Companies and the State in Contemporary Australia: A New Political Economy or ‘Business as Usual’?’ Australian Journal of Political Science (2006) 41(1) 1, 14 (‘Aborigines, Mining Companies’)
[23] Ibid.
[24] Ibid 111.
[25] Ibid 113.
[26] Marcia Langton, The Quiet Revolution: Indigenous People and the Resources Boom (Harper Collins, 2013).
[27] Paul Gregoire, ‘The Bias in the Native Title System: An Interview with Barrister Tony McAvoy SC’ Sydney Criminal Lawyers (Web Page, 4 August 2018) <https://www.sydneycriminallawyers.com.au/blog/the-bias-in-the-native-title-system-an-interview-with-barrister-tony-mcavoy-sc/>.
[28] United Nations Declaration on the Rights of Indigenous Peoples, GA 61/295, UN Doc A/RES/61/295 (2 October 2007, adopted 13 September 2007).
[29] Ciaran O’Faircheallaigh, Negotiations in the Indigenous World: Aboriginal Peoples and the Extractive Industry in Australia and Canada (Routledge, 2016 (‘Negotiations in the Indigenous World’). Note that this study looked at both negotiated agreements under the RTN provisions of the NTA and also Indigenous Land Use Agreements.
[30] Ibid 86–7.
[31] Ibid 89.
[32] Ibid 89.
[33] Ciaran O’Faircheallaigh, ‘Native Title, Aboriginal Self Government and Economic Participation’ in Brennan et al (eds), From Mabo to Akiba: A Vehicle for Change and Empowerment (The Federation Press, 2015) 162–3.
[34] Daniel v Western Australia [2005] FCA 178.
[35] Warrie (formerly TJ) on behalf of the Yindjibarndi People v State of Western Australia (No 2) [2017] FCA 1299; (2017) 366 ALR 467 (Warrie (No 2).
[36] Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People [2019] FCAFC 177.
[37] Aaron Bunch, ‘High Court rejects FMG’s Native Title Appeal over Pilbara Land’ WA Today (online, 29 May 2020) <https://www.watoday.com.au/national/western-australia/high-court-rejects-fmg-s-native-title-appeal-over-pilbara-land-20200529-p54xv4.html>.
[38] NTA (n 4) s 225.
[39] Ibid s 223(1).
[40] Yorta Yorta v Victoria [2002] HCA 58; (2002) 214 CLR 422.
[41] Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1.
[42] Yindjibarndi Nation, ‘Our Nation’ (Web Page) <https://yindjibarndi.com.au/our-nation>.
[43] Yindjibarndi Ngurra Aboriginal Corporation, ‘Applicant’s Further Amended Points of Claim’ in Yindjibarndi Ngurra Aboriginal Corporation v State of Western Australia, WAD37/2022, 5 July 2023, [8] (‘YNAC Further Amended Points of Claim’).
[44] See NTA (n 4) sub-div P.
[45] YNAC Further Amended Points of Claim (n 43) [13]; Yindjibarndi Ngurra Aboriginal Corporation, ‘Applicant’s Opening Submissions’, Submission in Yindjibarndi v State of Western Australia, WAD37/2022, 25 July 2023, [4] (‘YNAC Opening Submissions’).
[46] YNAC Opening Submissions (n 45) [11].
[47] See eg, Northern Territory v Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples [2019] HCA 7; (2019) 269 CLR 1.
[48] YNAC Opening Submissions (n 45) [86].
[49] ‘Yindjibarndi v State of Western Australia & Ors’, Federal Court of Australia (Online File, 14 May 2024) <https://www.fedcourt.gov.au/services/access-to-files-and-transcripts/online-files/yindjibarndi-v-state-of-western-australia-and-ors>.
[50] Evidence to Joint Standing Committee on Northern Australia, Parliament of Australia, Canberra, 13 October 2020, 28 (George Irving, Principal Legal Officer and In-House Counsel, Yindjibarndi Aboriginal Corporation) (‘Evidence to Joint Standing Committee on Northern Australia’).
[51] Michael Woodley, Witness Statement in Yindjibarndi v State of Western Australia, WAD37/2022, 5 June 2023, 36 [185] (‘Witness Statement of Michael Woodley’).
[52] Ibid.
[53] Evidence to Joint Standing Committee on Northern Australia (n 50) 28.
[54] Paul Cleary, ‘Native Title Contestation in Western Australia’s Pilbara Region’ (2014) 3(3) International Journal for Crime, Justice and Social Democracy 142.
[55] Witness Statement of Michael Woodley (n 51) 36 [185].
[56] Ibid 168.
[57] O’ Faircheallaigh ‘Indigenous Peoples and Mining’ (n 16) 241.
[58] O’ Faircheallaigh ‘Negotiations in the Indigenous World’ (n 29) 202.
[59] State of Western Australia, ‘Opening Submissions’ in Yindjibarndi v State of Western Australia, WAD37/2022, 24 July 2023 [9] (‘FMG Respondents’ Opening Submissions’).
[60] YNAC Opening Submissions (n 45) [14]
[61] Ibid 17–20 [36].
[62] FMG Respondents’ Opening Submissions (n 59) [9].
[63] Warrie v Western Australia [2017] FCA 803; (2017) 365 ALR 624 [391] (Rares J) (‘Warrie No 1’).
[64] Ibid [393].
[65] Cleary (n 54) 144.
[66] Joint Standing Committee on Northern Australia, Parliament of Australia, A Way Forward: Final Report into the Destruction of Indigenous Heritage Sites at Juukan Gorge (Final Report, October 2021) 53; FMG Respondents’ Opening Submissions (n 60) [85.1]
[67] Warrie (No 1) (n 63) [391]–[396]; TJ (on behalf of the Yindjibarndi People) v State of Western Australia (No 2) [2015] FCA 1358.
[68] Warrie (No 1) (n 63) [391].
[69] TJ v Western Australia [2015] FCA 818; (2015) 242 FCR 283 [10].
[70] NTA (n 4) ss 251B, 66B.
[71] Warrie (No 1) (n 63) [396].
[72] NC (deceased) v Western Australia (No 2) [2013] FCA 70.
[73] Angus Mack, Witness Statement in Yindjibarndi v State of Western Australia, WAD37/2022, 16 May 2023, 9 [44] (‘Witness Statement of Angus Mack’).
[74] Lyn Cheedy, Witness Statement in Yindjibarndi v State of Western Australia, WAD37/2022, 2 May 2023, 14 [43].
[75] Witness Statement of Michael Woodley (n 51) 40 [212].
[76] Ibid 206.
[77] Witness Statement of Angus Mack (n 73) 11–12 [53].
[78] NTA (n 4) s 38.
[79] YNAC Further Amended Points of Claim (n 43) 6 [13A].
[80] FMG Pilbara Pty Ltd v Western Australia [2009] NNTTA 99 16, [4.18].
[81] Ibid 18, [5.13]
[82] Witness Statement of Michael Woodley (n 51) 39 [205].
[83] Ibid 2 [7].
[84] Ibid [95].
[85] Estelle Guiness, Witness Statement in Yindjibarndi v State of Western Australia, WAD37/2022, 1 May 2023, 7 [32].
[86] Fabian (Charlie) Cheedy, Witness Statement in Yindjibarndi v State of Western Australia, WAD37/2022, 7 August 2023, 5 [17].
[87] Witness Statement of Angus Mack (n 73) [111].
[88] Stanley Warrie, Witness Statement in Yindjibarndi v State of Western Australia, WAD37/2022, 28 April 2023, 23 [54].
[89] Witness Statement of Angus Mack (n 73) 25 [120].
[90] Ibid 9 [44]
[91] Kevin Guiness, Witness Statement in Yindjibarndi v State of Western Australia WAD37/2022, 4 May 2023, 16 [64].
[92] Ibid.
[93] Ibid 8 [32].
[94] Witness Statement of Angus Mack (n 73) 23 [113].
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/UNSWLawJlStuS/2024/14.html