l Indigenous benefit-sharing in resource development – the Australian Native Title experience 77
having native title applications decided was
pushed into the background. Many claims
remain unresolved after a decade or more
in the system.
Methods and processes – indigenous
representation and response
It was clear that despite the enactment of
the NTA, without streamlining and
systematisation, the indigenous people of
the north west – the Yamatji and Marlpa
peoples – would miss out on the procedural
rights and associated opportunities created
by the legislation. There were simply too
many resource companies wanting to mine
and explore to deal with tenement applications on an ad hoc basis.
Six key steps were taken to maximise
the rights and opportunities available to
the Yamatji and Marlpa peoples:
1. Procedural rights about mining and
development only accrued to indigenous
peoples once a native title claim had been
registered, so it was essential to ensure that
native title claims had been registered over
the entire area of the YMLC’s jurisdiction.
2. The number of tenement applications
and strictness of the timelines for response
meant that it was essential to have a reliable method for taking legal and political
instructions from the claim group. Accordingly each native title claim group within
the YMLC’s jurisdiction appointed a
smaller working group (usually of around a
dozen people) who would meet for one-two
day meetings on around a six-weekly basis
to make all decisions.
3. As far as possible the YMLC obtained
standard instructions from each claim
group to ‘object’ to everything, not because
there was necessarily actual opposition, but
in order to maximise indigenous say over
development.
4. Standard instructions were also obtained
to recover costs of dealing from resource
developers as often as possible.
5. Although always imperfect, certain
protocols and ways of behaving were made
standard to minimise the friction associ-
Box 1: Tenements and mining rights
Tenements are a form of title that gives the holder
the permission to mine – it is a form of mining title.
Different tenements are created for different levels of
resource activity, such as mining, exploration,
prospecting and infrastructure. Australia has a
federal system of government in which the power to
grant land titles is held by the States.
ated with cross-cultural communication
between indigenous and non-indigenous
people.
6. Although dealing with each tenement
application was a discrete process under
the NTA, it became the convention for
particular classes of tenement to be dealt
with consistently:
• Consent to prospect was generally
provided in exchange for a small scale
survey to ensure that no places of particular cultural significance would be
disturbed;
• Consent to exploration was generally
provided in exchange for a larger scale
survey; and
• Consent to full scale development was
generally provided in exchange for largescale benefit-sharing, usually including
direct monetary payments; jobs, training
and business opportunities; share offers,
etc.
Each of the above would be set out in a
written contract. Typically, the smaller scale
agreements could be dealt with comparatively quickly, while negotiations over
large-scale developments could take
months or even years. The scale of the
payments was generally decided by a
process analogous to a market: native title
groups would generally obtain the largest
amount that they could reasonably bargain
for, bearing in mind that they did not have
the power to veto development, only to
delay for a finite period of time. The art of
the negotiations was to trade the consent
at precisely the moment when it was worth
the most to do so. In most mining negotiations, the best time to reach agreement
would be when the resource proponent was