some instances it has resulted in significant costs to the company but was described by the GEMCO
representative as clearing up a lot of potential issues with the traditional owners.
From the GEMCO representative’s perspective the ALRA places limitations on the potential to
establish relationships with the communities and tends to turn engagements into legalistic and long
negotiations with the Land Council. This leaves very little opportunity to sit down with the traditional
owners. The GEMCO representative regarded the issue as a structural one, as there were limited
opportunities to sit down together even though there were genuine efforts to cooperate on the part of
all parties. A related observation was that recent negotiations under the Native Title Act, particularly
in Western Australia, have tended to be more effective in delivering benefits to traditional owners,
than those under the Land Rights Act. This conclusion is based on the fact that engagements are
free flowing under the Native Title Act versus the more transactional type of engagements under the
ALRA. While holding that the Land Rights Act was an impressive piece of legislation, the GEMCO
representative noted that its content reflected the adversarial nature of its birth. Specifically by
setting up the Land Council as a collective bargaining entity, which acts on behalf of traditional
owners, it operates under the assumption that aboriginal people ‘still retain a disability in their culture
and language skills in engaging with the mainstream’. The GEMCO representative questioned if this
assumption was still valid and suggested that it was time for a roundtable to look at the intent of the
ALRA as it relates to the need for a single collective bargaining agent.
Land Council Perspective
The Land Council representative noted that the fact that mining was already operational on the island
had a number of effects. Firstly, it implied that people were more aware of the potential impacts of
mining and consequently the task of ensuring that they were informed of these and understood them
was significantly less than in contexts where this was not the case. Secondly because of the royalty
streams coming from existing mining projects the traditional owners were in a position where they
are not depending on new mining projects for income and are able to weigh up the potential impacts
to culture, the environment and their control over their lands, against the financial benefits which
additional mining would offer. Thirdly, the fact that the initial mining leases had been issued without
their informed consent, and the perception that when people gave consent in the initial years of the
ALRA that they did not really understand what they consented to, has led to a situation where there
is a growing tendency to withhold consent to mining proposals. This was particularly evident in the
context of an attempt by Northern Manganese Limited to conduct exploration and mining on one of
the islands which was rejected by the traditional owners in 2011.
The Land Council representative expressed the view that the ALRA was good at securing rights, but
did not necessarily guarantee reasonable benefits, as these were subject to the effectiveness of the
negotiators involved. Nevertheless, the negotiating power of, and outcomes achieved by, traditional
owners under the ALRA were much better than under the national Native Title regime for a number
of reasons. These included the fact that a) land was held in fee simple by the traditional owners
under the Act b) the Land Council can buffer communities from practices whereby mining companies
can enter and play different groups within the communities off against one another; c) the veto
power is a major lever in negotiations with companies, and the Land Councils have lawyers and
negotiators who act on the traditional owners behalf and are trained to deal with their counterparts
in companies. In other contexts where such legal support is not available deals which are negotiated
with mining companies can appear to promise a lot but ultimately they tend to deliver much less than
expected in terms of financial reward. Other perceived advantages of the Land Councils were that
they minimized the role of government in the process. The Land Councils are accountable to the
Clans, as their board is composed of Clan representatives and it must also report to the government.
The five year moratorium provision was regarded as an effective way for Traditional Owners to
minimize excessive consultations and consent seeking processes. Where companies sense that
traditional owners will withhold consent, there is a general tendency to wait and not to seek their
consent, as to do so would trigger the five year moratorium. As a result, the practice referred to as
‘pick and shovel exploration’ had developed, whereby companies are allowed by Traditional Owners
to walk their land to do assessments of its mineral potential, but are provided no legal rights to
Making Free, Prior and Informed Consent a Reality
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