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Native Title Act 1993: Implementation Issues for Resource Developers.

Aborigines' participation in the mining industry has been the subject of a number of recent papers issued by the Australian National University's Centre for Aboriginal Economic Policy Research. They are of potential interest to Oceania readers as attempts to apply varieties of economic reasoning (neo-classical welfare economics and political economy) to policy issues which are also open to ethnographic treatment.

These economic perspectives have two thematic loci. In the neo-classical framework, there is an attempt to conceptualise Aboriginal land as 'property' and to develop models of Aboriginal self interest in which they are (collectively) rational maximisers of their own welfare. Within this framework, the Aboriginal Land Rights (Northern Territory) Act (LRA) and the Native Title Act (NTA) can be compared according to the extent to which they would allow or encourage Aboriginal behaviour to approximate to this model.

In the political economy framework, the collective agency of indigenous people is not taken as given, but treated as problematic. That is, the processes of constructing senses of common interest in land use negotiations are of primary analytic interest, and legislative regimes can be compared according to the ways they facilitate or hinder the production of a strong, united Aboriginal stakeholder.

Some of the papers reviewed here (without evaluation) seem to mingle these perspectives, so I have not tried to label each paper's orientation. However, one substantive issue on which the two perspectives seem to give rise to different evaluations is the Jawoyn/Mt.Todd agreement - an exemplary deal, but of what is it exemplary? The intellectual difficulties of giving operational meaning and evaluative coherence to the notion 'indigenous self-determination' are forcefully demonstrated in these papers.

A candid report written at the request of the Northern Land Council (and published with their permission), paper 63 by Altman and Smith deals with two sets of institutional problems. First, the authors argue that the nature of payments, in respect of mining, to Aboriginal people, in the Northern Territory is rarely clear. Are statutory royalty equivalents paid to traditional owners and other affected Aboriginal people public moneys (and so accountable) or private? Do recipients know the difference between payments they receive as traditional owners and those they receive via Land Councils and the Aboriginal Benefits Trust Account as residents of (undefined) 'areas affected'?

The significance of these questions is that different criteria of financial evaluation and idioms of political lobbying are implied by different answers.

Which gets us to the second set of problems - the appropriate structure and policies of Aboriginal associations charged with receiving and spending payments flowing from mining operations on Aboriginal freehold land. Altman and Smith briskly review three successive formats for dealing with payments resulting from Queensland Mines Limited's Nabarlek venture: the Northern Land Council's distributions (1979-82), the Kunwinjku Association (1982-88) and the Nabarlek Traditional Owners Association (1988 to the time of the study, 1993). They conclude that local Aboriginal political processes have: widened the field of disbursal, failed to guard against inequities of reward, and given priority to immediate consumption (particularly of motor vehicles) over investment.

The clarity and force of their argument makes this paper a provocative critique of understandings of 'self-determination' which respect, as a matter of principle, the autonomy of local Aboriginal political processes. Evidently setting a higher value on intergenerational equity and long term financial autonomy (both achievable by investing mining money to create assets for the post-mining future) than on short-term respect for 'self-determination', the authors are critical of the Northern Land Council and the Department of Aboriginal Affairs for not intervening in Western Arnhem Land mining money politics. The Aboriginal people of this region have not 'ever been in a position to assert financial self-determination', they declare.

Paper 64 begins with a succinct review of the statutory and negotiated royalties and royalty equivalents liable to be paid into the Aboriginal Benefits Trust Account (ABTA). Altman describes how ABTA money has been spent, invested or distributed between 1978-9 and 1992-3. The Aboriginal Land Rights (Northern Territory) Act (1977) stipulates certain recipients: the Northern Territory's Aboriginal Land Councils have received 46% of money passing through this Account, using it to fund land claims which have expanded the Aboriginal land base from 19% of the NT in 1977 to 39% in 1994. Incorporated groups in 'areas affected' by mining operations have received 27%, but their use of it has been little scrutinised (however see CAEPR Discussion paper no.63). The remaining 19% was disbursed on a more discretionary basis. Reviews of these grants have been based on problematic criteria - 'financial rationality' (which would favour the acquisition of income- generating assets) or 'self-determination' (responding to Aboriginal demands for land under pastoral leases, and vehicular transport)?

With the financial rewards of mining on Aboriginal land distributed in this diffuse way, Aboriginal traditional owners lack a clear financial 'incentive structure' from which to evaluate proposals by miners. The legal compulsion that exploration and mining permissions be considered at the same time has also increased the cost and complexity of negotiations between traditional owners and miners.

In short, Altman argues that some features of land rights law and practice in the Northern Territory have hindered the development of 'traditional ownership' as a 'property right', and he praises the Native Title Act (1993) for not replicating them. The absence of statutory royalty entitlements in the recent Act encourages Aborigines to participate in mining through their provision not only of land access but also of capital and human capital, as in the Mt Todd and McArthur River deals of 1993-4. These agreements are exemplary of the value of using 'veto or negotiation rights as commercial leverage'.

McKenna argues in Paper 79 that the processes of negotiation between miners and Aborigines are likely to be more 'efficient' under the Native Title Act (NTA) than under the Land Rights Act (LRA). This has to do, first, with the costs of determining which Aboriginal people to negotiate with. In the NTA: landowners corporations' have more scope to choose a process of negotiation with miners which is not mediated by the Land Councils; the composition of the owning group is more transparent; there is more legislative pressure to avoid delays in commencing and completing negotiations.

Second, the two Acts differ in their procedures for granting exploration and mining licences. The NTA's arbitration provisions encourage both parties to try to find agreement, and the financial incentives to make an agreement are clearer to Aboriginal interests under the NTA. The NTA also includes clauses allowing exemption from the Act's negotiation processes in some cases.

Third, McKenna judges the costs of enforcing a contract under the NTA to be lower than under the LRA for two reasons, because: (a) payments made by miners can go to the native title holders only, without having to be diluted among many Aboriginal people from 'areas affected' (which are not delimited in extent by the LRA). The latter, if they lack native title or opportunities to derive income from their native title, can be dealt with in the welfare system, suggests McKenna: (b) the traditional owners do not have to be represented by the Land Councils. McKenna notes that Land Councils' powers under the LRA have sometimes lacked legitimacy among some Aboriginal groups.

There are at least two issues which anthropologists will find interesting in McKenna's application of neo-classical economic theory to the state's modes of constructing Aboriginal land tenure.

First, her paradigm tends to assume that the value of land to its traditional owners can be determined in a calculable idiom, that is, made commensurable with other goods. In the NTA the justice of the arbitration process rests partly on its discretion to compensate Aboriginal interests whose enjoyment of title is to be compromised. If Aboriginal land has no market value (because it is inalienable), on what basis is detriment to be calculated? There is yet no answer to this question.

Second, McKenna has contributed to the political anthropology of Northern Territory Aborigines. Her notion of transactional efficiency puts the Land Councils' work in question and highlights the potential of new regional organisations such as the Jawoyn Association. If her models of Aboriginal interest hold true, native title holders will have less use for the Land Councils than have 'traditional owners'.

McKenna infers that those drafting the NTA learned from the economists' critiques of the LRA. Whether or not her inference is right, her comparison illustrates the dynamic properties of colonial discourse, as it constructs Aboriginal land tenure to make it available to non-Aborigines' inescapable pressures to transact.

After describing some of the ways in which the Northern Land Council has overcome defects in the negotiation procedures of the Aboriginal Land Rights (Northern Territory Act (1976) (notably, expanding the scope of the Exploration Licence Agreement, or ELA), O'Faircheallaigh, in Paper 85, summarises five recent (1992-4) mining agreements: Mt. Todd, McArthur River, Cape Flattery-Hope Vale, Mapoon-Skardon River, and Placer Pacific-Kalkadoon Tribal Council. He draws the following conclusions:

1. It is difficult to sustain a stereotype of Aboriginal communities and organisations as hostile to mining development of their lands.

2. In jurisdictions where Aboriginal consent to mining is required, Aboriginal people get better royalties and other economic benefits and acquire control over environmental and heritage issues. Under such legislation, it is also more likely that the mining company, rather then governments anxious to see negotiations concluded, will be the source of benefits to Aborigines.

3. Taking issue with Altman in CAEPR Discussion paper no.64, O'Faircheallaigh infers that Aboriginal people have not seen equity and employment agreements as alternatives to royalty payments; they seek both, but may miss out on royalty payments when their bargaining position is weak.

O'Faircheallaigh cautions against taking as exemplary some recent agreements (Mt. Todd and McArthur River) in which governments (Northern Territory and Commonwealth) are to provide much of what Aborigines wanted. The prominence of government in these agreements reflects the time of their negotiation - between the High Court's 'Mabo' decision and the Native Title Act when the Commonwealth was keen to demonstrate that miners had little reason to fear what 'native title' seemed to portend. Mt. Todd's weaknesses (no royalties, no Aboriginal contribution to environmental management policy, Northern Territory government as source of many benefits) make it a poor example to Aboriginal communities elsewhere.

In Paper 86, O'Faircheallaigh draws on the experience of being involved in the negotiation of two mining agreements with Cape York communities: Hope Vale and Old and New Mapoons/Napranum. He starts by distinguishing between the statutory rights of Aboriginal negotiators and their mobilisation effectively to exploit that legal capacity. He highlights a number of factors in such mobilisation.

To establish the communities' goals, Economic and Social Impact Assessments (ESIAs) may be useful; they are not only informed predictions about mining's effects, but also processes combining research and consultation, leading to the formulation of a negotiating position. He has sensible suggestions about the conduct of meetings (childcare, a series of short sessions punctuated by breaks), but adds that even the best meetings must be supplemented by other processes, such as one-to-one and small group discussion.

O'Faircheallaigh points to remediable inequities in negotiators' access to information about each other and in access to other resources such as legal and research expertise. He is critical of jurisdictions, such as Queensland, which confer negotiating rights but fail to provide resources for Aboriginal negotiators. Regional land councils can be an ongoing source of such expertise, he suggests. Good working relationships between indigenous people and their technical advisers cannot be assumed; they must be nurtured.

Finally, O'Faircheallaigh gives instances from his Northern Territory research of mining agreements not being honoured by governments and mining companies. Agreements should include protocols for monitoring their implementation.

Noting, in Paper 88, that resource development companies and indigenous bodies have as yet made little use of the Native Title Act (NTA) and that State/Territory governments have not passed legislation, complementary to the Commonwealth's, governing 'future acts' on Aboriginal land, Altman is critical of their 'strategic behaviour'. He urges all three 'parties' (governments, resource companies and indigenous interests) to take up the Act's opportunities.

His consideration of those opportunities is not uncritical, however. Here his views seem to diverge in some respects from those in his own Discussion paper no.64, and, more explicitly, from McKenna's Discussion paper no.79.

The NTA has not clearly confirmed the extinguishment of native title over much land, making it difficult to know if there is an indigenous party to deal with, and which indigenous people/organisation makes up that interest.

Altman argues that some features of the NTA regarded as good by resource industry lobbyists may turn out to be not so good, from their point of view. He cautions resource companies not to overlook the value of dealing with native title holders through the land councils. Land councils bring expertise and certainty to negotiations which may be lacking in the other indigenous negotiating bodies which the NTA allows and which resource corporations might be tempted to prefer. He would like to see 'Regulatory Bodies' (such as the statutory land councils) given statutory 'regulatory monopolies' in land use negotiations (as in the LRA).

Economic theory suggests that negotiation will be expedited to the extent that the indigenous interest is a clear property right. In this respect, the NTA may be less satisfactory than the Aboriginal Land Rights (Northern Territory) Act (LRA). The 'right to negotiate' conferred on title holders by the NTA may not be as firm a property right as the LRA's 'mining veto'; and the NTA does not provide for statutory royalty equivalent payments, a payment based on the value of minerals extracted.

Notwithstanding these possible temptations and defects in the NTA regime, Altman urges resource developers and State governments to work within it 'and establish bona fides', rather than to lobby for an ideal (to their way of thinking) Act. Only practical experience will reveal defects and give rise to the political consensus essential to legislative amendment. Meanwhile, he extols Mr.Todd (without responding to O'Faircheallaigh's critique of that agreement in Discussion paper no.85) as evidence of the NTA's potential to satisfy all three parties, and he concludes by suggesting some ways in which the indigenous 'property right' might be clarified by future amendment: giving the 'veto' and/or allowing access to statutory royalties.

TIM ROWSE University of Sydney
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Author:Rowse, Tim
Article Type:Book Review
Date:Dec 1, 1995
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