Native title battle a test for ‘good faith’ talks
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.