Land-use contracts fail to deliver for Aborigines

Land-use contracts fail to deliver for Aborigines

Victoria Laurie, The Australian

30th January 2007

FIFTEEN years after the High Court's historic Mabo decision, an explosion of land-use agreements between Aborigines, mining companies and governments has failed to deliver significant outcomes for many of the indigenous people who signed them.

A five-year detailed examination of 45 contracts by Griffith University academic Ciaran O'Faircheallaigh has found that half the agreements were either "basket cases that should never have been entered into" or had delivered few cultural and monetary benefits to Aborigines. Many agreements were poorly constructed deals that deprived Aborigines of a share in the unprecedented opportunity flowing from the resources boom.

Australia's wealthiest mining regions had the worst record and in many cases indigenous people were trading off rights to protect culturally important areas for limited, short-term benefits.

National Native Title Tribunal president Graeme Neate said 264 indigenous land-use agreements were registered with the tribunal, which suggested that "out in the marketplace they are useful".

But the precise form and content of agreements was up to the parties, he said. The tribunal's research had identified a lack of sound implementation plans written into agreements. "After the ink is dry, who is going to ensure they are implemented?" said Mr Neate.

The agreements cover vast tracts of land. The most recent deal - last month between the Githabul people and NSW - involved access to 6000sqkm of national parks and state forests.

The Griffith University study found almost all agreements promised Aborigines some ability to control environmental damage to their traditional lands done in the process of mining, yet that rarely happened.

A large number of agreements offered little say in cultural heritage protection and often required landowners to suspend or surrender native title rights.

Many Aboriginal groups were no better off, or even worse off, than in the absence of any agreement between the two parties, the study found.

In many cases, Aboriginal groups did not have the resources or sophistication to deal seriously with the complexities of land-use agreements.

In NSW, some agreements between local indigenous parties and mining companies had offered a total of less than $100,000 to local indigenous groups over the life of a highly profitable mining operation.

In Western Australia, Anaconda Nickel, when controlled by Andrew Forrest, had undertaken to put $1 million a year into an indigenous trust in return for access to land, but the case is now in court over alleged non-payment by a new owner to Aborigines of almost $12 million.

The Association of Mining and Exploration Companies backed the report's findings, saying few agreements worked, and accused "opportunistic and mercenary lawyers" of advising Aborigines not to comply with the terms of signed agreements.

AMEC chief executive Justin Walawski also said mining companies were increasingly being asked for "gate money" for access to land over which agreements had already been signed. There was "enormous room for improvement" in agreement- making but no obvious ways to improve the system. "If all parties acted legally, then there would be greater efficacy of agreements," he said.

Melbourne University professor of indigenous affairs Marcia Langton said dodgy agreements were often confidential, making it difficult to check if promises of money and jobs had materialised.

"But we do know the good ones because they are not afraid to stand up in public and say what their agreements are," she said.

She said major agreements with mining companies, such as Rio Tinto's Argyle Diamond Mine in Western Australia and its Comalco alumina operation in far north Queensland, had successfully spawned jobs, well-run trusts to fund community development and Aboriginal-operated contract businesses. Professor O'Faircheallaigh said problems lay with both indigenous land use agreements and hundreds of deals made outside the native title system that were often confidential and unable to be publicly scrutinised.

Two Aboriginal groups in Western Australia have lodged complaints over indigenous land use agreements they say have been ignored.

One of them, the Jidi Jidi Aboriginal Corporation, says it has sent complaint letters to 125 mining companies exploring on 50,000sqkm of traditional land in the state's mid-west, putting them on notice that exploration cannot go ahead if the heritage protection clauses in a 2001 indigenous land use agreement are not met. Only five companies have signed so far.

Goldfields Land Council executive director Brian Wyatt said fewer than 50 Aborigines out of a local population of around 3000 had jobs in the mining sector.

"Hundreds of small to medium agreements had been struck between miners, local government and other parties in the goldfields, but I'd struggle to find one that's really effective," Mr Wyatt said.

Professor O'Faircheallaigh said he found a quarter were strong agreements and another quarter delivered minor benefits, but half were "basket cases".