Native Title Tribunal disadvantages Indigenous Australians

The National Native Title Tribunal is favouring mining companies and disadvantaging Indigenous people in negotiating mining agreements a new study has found.

Griffith Business School Researchers Professor Ciaran O’Faircheallaigh and Tony Corbett who conducted the research say results show the Tribunal, which administers the Native Title Act (NTA), seriously disadvantages Indigenous groups when negotiating with mining companies.

Under the Native Title Act (NTA), when a company wants a mining lease on Indigenous land, the Indigenous group has six months to negotiate with the company. If agreement cannot be reached, either party may then refer the matter to arbitration by the Tribunal.

“In all 17 cases taken to the Tribunal in the last decade, the Tribunal has granted the mining leases and been unwilling to impose conditions that might prove onerous for the miner,” Professor O’Faircheallaigh said.

“Also the Tribunal is not permitted to consider awarding Indigenous groups money towards the value of minerals taken from their land, which creates pressure on Indigenous groups to reach agreement outside of arbitration.”

Professor O’Faircheallaigh said as a result Indigenous people were under enormous pressure to do a deal but companies were not.

“The companies know if they cannot get the agreement they want in negotiations, they can go to the Tribunal and get their mining leases issued.

“Many Indigenous parties are signing agreements that offer them few benefits because the alternative is arbitration and a determination by the Tribunal which offers them no benefits.”

Professor O’Faircheallaigh said the situation is made worse by the tendency of the Tribunal’s arbitration process to favour mining companies.

“Research shows the Tribunal demands more stringent standards of proof from Indigenous groups than from companies, and tends to accept particular types of evidence when this favours companies but reject the same sort of evidence when it favours Indigenous groups.”

Native Title should provide Indigenous people with the opportunity to benefit from Australia’s resources boom, to reduce their dependence on welfare and increase their presence in the ‘real economy’ said Professor O’Faircheallaigh.

“However because of specific provisions of the NTA and the way the Tribunal is administering them, that opportunity is often lost. The NTA should be amended to create a level playing field between miners and native title groups.

“This could be done by allocating the arbitration function to an independent judicial body rather than a government-appointed Tribunal, and by allowing arbitrated decisions to include compensation related to the value of minerals taken from native title land.”

The research follows on from an earlier study that found many agreements negotiated with mining companies create few benefits for indigenous communities. The new findings are published in the latest issue of the University of Western Australia Law Review.