l Indigenous benefit-sharing in resource development – the Australian Native Title experience 75
Title Act was to provide an orderly process
for resolving native title claims in Australia.
Significantly the legislation did not create
rights to land, but established a mechanism
for the recognition of property rights that
may have existed under the common law
of Australia, but hitherto had never been
recognised. The claim process provided for
applications for recognition of native title
to be lodged that would then be subject to
a mediation process. In the course of this,
the indigenous claimant community would
engage with all statutory title holders in the
area in question in a bid to achieve a legally
binding consensus. This article is not
concerned with the system for claiming
land itself, but with two ancillary elements
of the legislative architecture:
• The ‘future act system’, which set out how
land and waters subject to registered native
title claim could be dealt with by the
government and third parties prior to the
claim being decided;
• The ‘representative body system’, under
which special ‘Aboriginal corporations’
were mandated with particular authority
and provided with funding to represent
indigenous groups bringing native title
claims.
The functioning and interaction of the
future act and representative body systems
together governed how resource companies
and governments have obtained permission from indigenous groups to undertake
development on land subject to native title
in Australia.
Broadly, the future act system stated
that once a native title claim had been
registered, a resource development in the
area in question could only take place once
certain indigenous procedural rights had
been exhausted.
The term ‘future act’ is defined in the
NTA. Broadly a future act means either the
creation of a mining tenement (see Box 1)
or a compulsory acquisition of land by
government, on an area subject to a registered native title claim or area where native
title had been determined to exist. The
future act system describes the statutory
mechanism set up in the NTA for dealing
with future acts.
The strongest of these rights was a ‘right
to negotiate’ (for a minimum of six months)
for the creation of a full right to mine. The
weakest was no more than a right to be
notified. Crucially (and contrary to some
popular mythology in Australia), the NTA
never established any right to free, prior
informed consent or anything like the
simple capacity to veto. Like the statutory
arrangements for dealing with native title
claims themselves, the intention of the
right to negotiate was that contentious
matters should be resolved by alternative
dispute resolution (negotiation in good
faith, mediation and arbitration if necessary), rather than be contested in court.
The right to negotiate and other procedural rights available under the future act
system is vested in the registered native
title claimant groups themselves and in
particular in certain named individuals
who enjoyed special status as the named
applicants. However the NTA also
intended that claim groups should be able
to avail themselves of native title representative bodies (NTRBs). These NTRBs were
special Aboriginal corporations with
geographically bounded areas of operation
who were funded to retain lawyers, anthropologists and other staff to provide expert
advice and representation to native title
claimant groups within their jurisdiction.
Funding was generally provided by the
Commonwealth government, with additional money also sometimes coming from
state governments. Over the life of the
NTA, the level of financial support
provided to the NTRBs by the Australian
government has often been woefully inadequate with dire consequences for the
effectiveness of the services provided. One
leading study in 1999 found that, Australia
wide, it would be impossible for NTRBs to
professionally discharge their functions
because of lack of funding. These were
functions that the government itself had