By Paul Gregoire and Ugur Nedim
Australian attorney-general George Brandis rushed a bill through the House of Representatives on February 16 to amend native title laws. If passed by the Senate, it will reverse the impact that a recent Federal Court ruling will have on past and future Indigenous land use agreements (ILUAs).
The Noongar native title settlement was worth $1.3 billion dollars and involved traditional owners surrendering their native title rights over an area of 200,000 square kilometres of southwestern Western Australia.
However on February 2, the highest court in the land ruled that the landmark native title agreement was invalid.
The agreement which was ostensibly between the estimated 40,000 people of the Noongar nation and the WA government, comprised six ILUAs and was signed in July 2015.
However, four of the named applicants representing the various language groups challenged its validity in court. They were concerned the agreement would strip the local people of their native title rights for good.
Implications of the ruling
The outcome of the case – McGlade v the Native Title Registrar – has federal politicians and mining interests shaking in their boots, as a precedent has been set that all native title claimants must agree on a settlement before it can be legally binding.
This decision overturns the 2010 precedent set by the Federal Court ruling in the QGC v Bygrave case, which was a finding by a single-judge that it was only necessary for a majority of claimants to sign off on an ILUA for it to be valid.
The McGlade decision may affect future ILUAs as well as past agreements.
In the wake of the decision, the National Native Title Tribunal announced it would be placing a “moratorium on the registration of all area ILUAs currently in the registration/ notification stage”. According to the NNTT, this affects up to 126 already registered ILUAs – covering mines, gas fields and agricultural ventures. However, the National Native Title Council, which represents 16 Aboriginal land councils, puts the number of ILUAs that could be affected at up to 200.
Carmichael mine agreement in jeopardy
The government’s most pressing concern is the effect the decision could have on the proposed $22 billion Adani Carmichael coalmine in the Galilee Basin, Queensland.
The nationwide freeze on ILUAs means the Indian multinational could not legally register its agreement as planned on February 10. Validating the agreement would be a crucial step in establishing the largest coal mine in Australia.
The outcome of the McGlade Federal Court ruling has prompted the local Wangan and Jagalingou traditional owners, who are opposed to the Carmichael mine, to take fresh court action against Adani.
The validity of the agreement has been thrown into disarray due to the new native title precedent, as when the ILUA was signed over a year ago only seven of the twelve named applicants put pen to paper.
The Wangan and Jagalingou traditional owners were in the Federal Court last month challenging the native title process that allowed the Queensland government to issue a mining lease on August 19 last year “without their consent.”
Consensus is the Aboriginal way
Terry Mason applauds the claimants that challenged the Noongar native title settlement in Court.
Their argument was the agreement didn’t have consensus, and as Mr Mason puts it consensus has always been “an important part of the Aboriginal way of making decisions.”
Mason is the curriculum developer and lecturer at the Institute of Koorie Education at Deakin University. The Awabakal man explained that “prior to invasion, we had what you might call a flat society that recognised the requirements and needs of everyone within it.”
In his reckoning, the outcome of the McGlade court case is a validation of the way Indigenous nations have always come to their societal agreements.
As for the wider impact of the case, Mr Mason is particularly interested to see how it affects the Adani mine. “There’s disquiet amongst several groups of people up there,” he told Sydney Criminal Lawyers®. “Under current legislation… the same issue would arise.”
Australian government repeats itself
Mr Brandis introduced the Native Title Amendment Bill (Indigenous Land Use Agreements) 2017 to parliament on February 15. It is currently being scrutinised by a Senate committee and there’s very little time for concerned parties to make submissions.
The committee is due to report back on March 17.
If the bill is enacted into legislation, it will reverse the MGlade decision and re-establish the Bygrave precedent whereby only a majority of claimants are needed to sign off on an ILUA to make it legally binding.
This chain of events hardly surprises Mr Mason. It’s just more of the same from the Australian government, as far as he’s concerned.
Back in 1982, Mason recalls, that the Canadian government reformed their constitution, so that it protected the rights of Indigenous peoples against the unjustified exercise of power by the government.
And at the same time the Canadian government initiated a comprehensive claims process, enabling the renegotiation of Indigenous treaties and self-government agreements for the nation’s First Peoples. (And this was no mere constitutional recognition.)
But as Mason points out, 1982 was the same year that Eddie Mabo and others of the Meriam people of the Torres Strait put in a claim for land rights to the Murray Islands. “The response of the government was to fight that tooth and nail for the next ten years,” Mason recounts.
Of course, eventually, the High Court handed down the Mabo decision in 1992, recognising the Meriam people held native title over part of their traditional lands. And the following year the Native Title Act was passed.
Native Title is inadequate
According to Mason, the Native Title Act has always been contentious as it doesn’t give First Nations peoples exclusive rights to the land. “It’s an act that makes Aboriginal and Torres Strait Islander people’s claims subservient to the claims of all other stakeholders,” he outlined.
In regards to the recent Federal Court ruling, Mason sees this as the first time the act is actually working “for the good of Aboriginal communities and in an Aboriginal community manner.” However, now the federal government “wants to change that law to suit themselves.”
“Back in 1988, we didn’t march down the road wanting native title,” Mason said. We “marched wanting land rights.” He emphasised that “sovereignty hasn’t been ceded and our land rights are imbedded in our sovereignty.” And added in conclusion, “what we require is a set of treaties.