74 5 Indigenous benefit-sharing in resource development – the Australian Native Title experience by DAVID RITTER Introduction An increasing number of multi-lateral environmental agreements (MEA) involve some form of rights-based participatory process for engaging local and indigenous peoples. Given international developments, two decades of Australian experience of working with national indigenous land legislation which provides rights of participation in decision-making about development should be of broader interest. Enacted in 1993, the Australian Native Title Act (NTA) provides a mechanism for the recognition of native title.1 Australia’s native title processes provide an analogue to international arrangements for the participation of local and indigenous people. In particular, this article describes the processes of indigenous representation, negotiation and agreement-making over mining and development that is mandated under the NTA, and then evaluates what lessons and learning may apply to similar processes under MEAs (such as free, prior informed consent). In particular, the purpose is to describe participation in negotiation processes with industry and government, rather than to address dynamics at a community level. Native title – indigenous peoples’ rights to land and water arising from their own customary laws and customs – was only recognised in Australia in 1992 in the case of Mabo v Queensland (2). This is much later than similar decisions elsewhere in the group of countries that follow the common law (including the USA, Canada and New Zealand) inherited from the United Kingdom. The Australian law of native title departs from that of other common law jurisdictions in important respects (Strelein, 2009). The NTA was the Australian government’s legislative response to the Mabo case – it set up a legislative system to deal with the welter of claims that were expected to follow the decision. Background – native title claims, future acts and representative bodies The purpose of the Commonwealth Native 1 For more information see: http://www.hreoc.gov.au/social_justice/native_title/index.html

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