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Issue #1777      May 17, 2017

Agreement appears close on native title

After months of uncertainty and ham-fisted handling by the federal government, it appears that an agreement is close on changes to the Native Title Act. In February, a full bench of the Federal Court struck out an Indigenous Land Use Agreement (ILUA) between the representatives of the Noongar people, the South West Aboriginal Land and Sea Council (SWALSC), and the Western Australian government, ruling that the agreement was only valid if it was signed by all named applicants.

The decision, known as McGlade, overturned a 2010 Federal Court ruling, Bygrave No 2, which said if the native title group had given authorisation, then any named applicant could sign off and an ILUA could be registered.

February’s decision created uncertainty for more than 120 ILUAs registered between 2010 and 2017 – and could possibly have even further-reaching consequences.

Following the court ruling, the government moved quickly to introduce changes to the Native Title Act, angering many Indigenous people and groups, who didn’t believe there had been sufficient consultation.

After a quick Senate inquiry into the proposed amendments, it looked like Labor would support the government’s Bill, with changes suggested by the inquiry.

However, after spending more than eight hours of the most recent Senate sitting, discussing ultimately unsuccessful weakening of the Racial Discrimination Act, Attorney-General George Brandis added more changes to the Native Title Act amendments, leading to Labor withdrawing its support.

To further complicate matters and pouring fuel on an already smouldering fire, Senator Brandis and Prime Minister Malcolm Turnbull indicated last month that their priority was certainty for Indian mining company Adani – which needs an ILUA for its massive proposed coal mine in Queensland and has been fighting with the Wangan and Jagalingou Traditional Owners Council – rather than the dozens of native title groups affected.

Last month a meeting of native title representative bodies was held in Melbourne, which was initiated after a letter from WA Labor senator Pat Dodson, a Yawuru man, who had previously told the Koori Mail that more Indigenous input was needed before the Native Title Act was changed.

Senator Brandis, Indigenous Affairs Minister Nigel Scullion, Shadow Attorney-General Mark Dreyfus, Labor’s Lingiari MP Warren Snowdon and Senator Dodson all attended the roundtable, in an effort to listen to native title stakeholders and came to a legislative solution.

National Native Title Council chief executive Glen Kelly told the Koori Mail that it was a relief to finally have native title groups, the government and the Opposition all at the table at once.

“We were able to really go over in proper depth the ramifications of the decision – what should have happened in the first place before any Bill to change the Native Title Act,” he said. “The general consensus is that the amendment is very important because a lot of traditional owner groups across the country are really severely affected by the McGlade decision, and in their interests it really needs to be fixed.

“The bill is important and should go through the Parliament.”

Kelly said the months of uncertainty had been very frustrating for many traditional owners.

“The whole discussion got caught up in the middle of the Adani issue but in reality ILUAs and these sorts of agreements don’t often deal with mines, they’re more often for pastoral access, and some communities have done ILUAs for infrastructure,” he said.

“For example, the Dja Dja Wurrung people in Victoria used an ILUA for the settlement of their native title claim (in 2013) so they are really worried that the whole basis for their native title settlement is now shaky.

“And there are many others in similar positions so they’re very keen for the situation to be remedied.

“Effectively what the amendments do is make sure that the traditional owner group is the authority, so when something is happening that affects the community’s rights and interests, the community is properly empowered to make a decision about it. To me, that makes perfect sense: the community is the principal so it should be the principal decision maker.

“The way the Act is written, if the community says yes or no, then there’s a second layer – the named applicants, so now, if one doesn’t sign or is deceased you can’t go forward, even if the community says you should.

“There’s a need to re-empower the community and that’s why the Act needs to be amended.”

Koori Mail

Next article – Budget 2017-18 – Fight for Special Broadcaster

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