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4. The Right to Negotiate
What is the right to negotiate?
The right to negotiate in the Native Title Act is a statutory expression of an essential part of Indigenous traditional law. It reflects the right to control access to and use of country. The right to negotiate contained within the Native Title Act is a core right necessary for the protection of native title. It is not a concessionary grant on the part of government - it is an intrinsic right of native title.
The statutory right to negotiate provisions of the Native Title Act provide a process to deal with compulsory acquisition of land for the benefit of a third party. It applies to resource development and land use affecting native title. It strikes a balance between the rights and interests of native title holders and those of resource developers.
The right to negotiate is triggered when a government wishes to give a grant of interest in land to a third party - e.g. an exploration licence or a mining tenement - where that grant may affect or impair native title rights.
The right to negotiate principles within the Act have provided many Aboriginal people with a real right for the first time to directly control the protection of their culture, to be involved in economic activity through agreements which provide employment and wealth generation opportunities, and to control negative social impacts related to developments on traditional country.
Is the right to negotiate a 'special' right?
Native title is a unique form of entitlement to land, and is defined by the traditional laws and customs of the native title holders. The right to control access to and use of traditional country is fundamental to indigenous law.
The right to negotiate is a part of native title. Instead of recognising that the right springs from traditional laws and customs, the Government paints it as a 'special measure' that is available to no other title holders. There is a refusal to accept that native title is entitled to protection on its own terms. It is a unique title. Different titles require different forms of protection.
Any removal of the right to negotiate will mean that native title holders will suffer substantive inequality in comparison to the rights of other property holders. Equality is not achieved by treating all title holders in the same way, regardless of the differences between them, but through recognising those differences in order to achieve an equal outcome.
Is the right to negotiate a veto?
The right to negotiate is not a right to say 'no'. It is already highly favourable to resource developers through a number of provisions.
To obtain the right to negotiate, native title holders must lodge a claim and have it registered with the Native Title Tribunal.
Strict time limits are imposed by the Native Title Act for the period of negotiation. The time period is 4 months for exploration licences, and 6 months for other acts. The time runs from the time notice is given of the intention to do the act. This leaves, in practice, 2 months and 4 months for negotiations to take place.
The right to negotiate is not a veto. If no agreement is reached within the statutory negotiation period the matter can be referred to the Native Title Tribunal for compulsory arbitration. A government minister has the power to override the ruling of the arbiter.
If the intended act is held to be one which will have a low impact on native title (i.e. it does not directly interfere with the community life of native title holders and does not involve major disturbance to land or waters) then the right to negotiate can be waived and the grant of interest in land is issued through an expedited process. Where the expedited process has been requested by State Governments, 95 per cent of applications have been issued without objection by native title holders.
Native title holders are under pressure to accept whatever proposal is put before them during the negotiation phase of the right to negotiate. This is because of limitations on the terms of compensation which may be awarded if the matter goes to arbitration.
What does the Government want to do with the right to negotiate?
The Government's proposals to restrict the right to negotiate will significantly impair the native title rights of indigenous people. They diminish the careful balance of rights between native title holders and resource developers reflected in the current Native Title Act.
The Government proposes changes to the right to negotiate both in its 'preferred position' on Wik, and in amendments to the Native Title Act proposed in 1996. The proposed amendments and the preferred position remove the ability of native title holders to use the right to negotiate to provide a minimal level of protection of native title rights, and to engage in meaningful negotiations about resource development affecting their rights.
The amendments provide:
- one right to negotiate. At the moment there is a right to negotiate regarding mineral exploration and a right to negotiate over actual mining projects;
- removal of the right to negotiate from the renewal of mining leases;
- Ministerial control and intervention at every stage of the process;
- removal of the right to negotiate from so called 'privately owned and constructed infrastructure';
- spiritual attachment to the land will be removed as a legitimate consideration in deciding whether to grant an expedited grant of an exploration licence;
- reduction of already unreasonable negotiation time frames;
- removal of the arbitrator's need to consider the environmental impact of a development proposal;
- expansion of the application of the expedited procedure.
In addition, the Government's preferred position on Wik provide for:
- the removal of the right to negotiate on vacant Crown land in towns; and
- the removal of the right to negotiate over non-pastoral activities on pastoral leases.
Any impairment of the current position of native title holders in the balance of rights contained in the right to negotiate will effectively remove their ability to protect their rights and interests in the process - i.e. the Government is attempting to 'squeeze blood from a stone'. If such an impairment occurs, native titleholders will be forced to go to the courts to protect their common law rights.
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