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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