Na­tive ti­tle bat­tle a test for ‘good faith’ talks

The Australian - - THE NATION - STEPHEN FITZ­PATRICK IN­DIGE­NOUS AF­FAIRS ED­I­TOR

A key­stone of na­tive ti­tle law — the re­quire­ment for all par­ties to ne­go­ti­ate in “good faith” — risks be­com­ing mean­ing­less in a high­stakes court bat­tle over a patch of zir­con and ti­ta­nium-rich land in the Kim­ber­ley.

The case pits a group of tra­di­tional own­ers against min­er­al­sands miner Sh­effield Re­sources and the state of West­ern Aus­tralia over the planned Thun­der­bird mine at Mount Jowlaenga, on the Dampier penin­sula.

Backed by the Kim­ber­ley Land Coun­cil, the tra­di­tional own­ers claim Sh­effield tried to ma­nip­u­late them un­fairly to win per­mis­sion for the project, in­clud­ing mak­ing them an of­fer for settlement be­hind the backs of their lawyers — an of­fer which was pre­vi­ously re­jected by the lawyers.

The ap­peal fol­lows pre­vi­ous failed at­tempts to hold the miner to ac­count, de­spite a Fed­eral Court judge find­ing in Septem­ber its be­hav­iour “flew in the face” of agreed na­tive ti­tle ne­go­ti­at­ing pro­to­cols.

Kim­ber­ley Land Coun­cil chief ex­ec­u­tive Nolan Hunter said the saga proved the Na­tive Ti­tle Act was “fail­ing the peo­ple whose rights it was cre­ated to pro­tect” and warned that suc­cess in the lat­est ac­tion, be­fore the full Fed­eral Court, was cru­cial to se- cur­ing fu­ture deals na­tion­wide and pre­vent­ing com­pa­nies from cir­cum­vent­ing the law’s “good faith” pro­vi­sion.

The ap­peal hinges on whether a stip­u­la­tion for ne­go­ti­a­tions to last at least six months means a min­ing com­pany can sim­ply wait un­til that pe­riod has ex­pired, and then ig­nore all pre­vi­ous ar­range­ments. “There shouldn’t be a lim­i­ta­tion on the need for com­pa­nies to act in good faith when they’re ne­go­ti­at­ing with na­tive ti­tle groups,” Mr Hunter said. “This raises ques­tions about flaws in the act and the in­ten­tion and bona fides of com­pa­nies to en­gage.

“The Mount Jowlaenga tra­di­tional own­ers are not op­posed to de­vel­op­ment, but they are op­posed to a min­ing com­pany that is seek­ing to op­er­ate on their tra­di­tional lands with­out an agree­ment in place.”

In a joint state­ment, the tra­di­tional own­ers said: “In­stead of pro­tect­ing us, the Na­tive Ti­tle Act has been used by Sh­effield Re­sources to take ad­van­tage of us. “It’s one thing that the law doesn’t al­low us to stop a com­pany from min­ing our na­tive ti­tle lands with­out our con­sent, but it is an­other thing to see the Na­tive Ti­tle Act be used to let a com­pany act in bad faith and still be al­lowed to get its li­cence to mine.”

Sh­effield Re­sources says it ex­pects the project to cre­ate more than 140 full-time jobs, with a fo­cus on Abo­rig­i­nal em­ploy­ment.

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