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The Mineral Sector and Native Title-A Perspective
Mike Roarty
Science, Technology, Environment and Resources Group
19 February 2002
Australia has seen spectacular growth of its mineral
sector over the last 150 years. The mineral sector now contributes some
45 per cent of merchandise exports and accounts for 8.4 per cent of Gross
Domestic Product. Australia's mineral export income has grown from $1.4
billion in 1970-71 to $56.4 billion in 2000-01. In 2001, Australia was
among the top three producers for 10 of the world's most important minerals.
However, until relatively recently, Indigenous Australians have been
largely excluded from any direct benefits from mineral resource developments.
In some cases, the growth of mining has even contributed to Indigenous
dispossession, for example, in the Pine Creek area, NT, and Cape York,
Qld.(1) Whilst mining has generally been perceived as a major
driver of Australia's economic growth and vigorously supported by various
governments especially during the 1960s through to the 1980s, Indigenous
Australians are likely to have a very different perspective of the benefits
derived from mineral sector development.
Mabo and the Native Title Act 1993
The fortunes-largely associated with changing land tenure arrangements-of
Australia's Indigenous peoples changed with the Mabo High Court
ruling and the establishment of the Native Title Act 1993. The
historic 1992 Mabo v Queensland (No 2) decision recognised Australia's
Indigenous peoples legal rights to land sourced in traditional laws and
customs. The High Court held that 'the common law of this country recognises
a form of Native Title which, in the cases where it has not been extinguished,
reflects the entitlements of indigenous inhabitants, in accordance with
their laws and customs, to their traditional lands'.
The recognition of Native Title had an impact on land tenure management
in Australia. Land title and access to land are vital issues in the exploration
for and development of mineral resources. Exploration companies have traditionally
had access to very large areas of Australia's landmass, much of which
is considered highly prospective for minerals. Following the coming into
force of the Native Title Act 1993, exploration and mining companies
are now obligated to negotiate access arrangements-albeit, a complex and
controversial process-on land on which Native Title has been granted or
is subject to claim. As a result many Indigenous communities have become
integral stakeholders in mineral resource evaluation and development.
Native Title and Access to land
It had been a commonly held belief (however not universal) that many
of the land tenures that had been determined to exist (various grants
of pastoral and other leases) over much of Australia from the time of
settlement would extinguish Native Title. However, the High Court's Wik
decision in December 1996 changed that notion. In broad terms, the High
Court found that Native Title could coexist with pastoral leases. This
decision had wide ramifications for the mineral sector. Vast tracts of
land in Western Australia and Queensland (the two most important mineral
producing States) and the Northern Territory are covered by existing or
former pastoral leases. Where it was thought that all leasehold land covered
by exploration and mining titles would be exempt from Native Title claim
was no longer the case.
Impact of Native Title on the Mineral Sector
It has been a widely stated claim of mineral sector stakeholders that
the Native Title Act 1993, especially as initially established,
was obstructing the processing and granting of applications for exploration
and mining tenements. Advocates of this claim pointed to the fact that
the granting of exploration and mining titles in the dominant mineral
States had slowed considerably-a backlog of 11 500 exploration and
mining title applications had developed in the major mineral producing
States in the period to early 2001.
However, the Native Title Act was introduced to give explicit recognition
of Indigenous laws and customs that pre-dated the acquisition of sovereignty
in Australia. Hence there was a difficulty in accommodating the objectives
of the Native Title Act and the processing mineral of tenements. The passing
of the Native Title Amendment Bill 1998, following extensive and
protracted Parliamentary debate, was an attempt by the Government
to accommodate the divergent objectives of maintaining the orderly continuance
of processing exploration and mining titles whilst also protecting Indigenous
rights.
Exploration Expenditure Trends
Total exploration expenditure over the period 1969-70 to 2000-01 is shown
in Figure 1. It is evident that such expenditure has been cyclical over
this period and, despite the steep downward trend since 1996-97, the long-term
trend is slightly upwards.
Figure 1: Exploration Expenditure (1969-70 to 2000-01 in 2000-01
dollars)
It is hardly reasonable to predict the demise of the exploration industry
and subsequent mineral development solely on the recognition of Native
Title. Whilst exploration has declined since 1996-97, there are several
reasons other than Native Title issues that have contributed to the decline.
These include the trend in the falling real price of mineral commodities,
the Asian economic crises, globalisation and the opening up of other mineral
frontiers in other countries, and the fact that major companies are now
acquiring mineral resources through acquisition rather than exploration.
Some Issues
A major difficulty from a mineral sector stakeholder's viewpoint in relation
to the Native Title Act 1993 has been the accommodation of the
'right to negotiate' process prior to the grant of mineral tenements.
Industry peak body groups claim this process is a major obstacle to the
processing of exploration and mining title-a prerequisite for a successful
and sustainable mineral sector. Native titleholders and claimants, however,
maintain the need to be part of the process when activities such as mineral
exploration and development are conducted on their land as such development
may impact on their 'Native Title' rights. Native titleholders and claimants
also maintain their need for incentives (managerial and economic) to agree
to activity on their land. Industry maintains that the precursory exploratory
stage is often of very low impact and only results in the delineation
of an economic discovery in very few instances. Additional costs and delay
in the early exploratory stage are regarded as a marked disincentive to
the mineral industry and has had negative impact on the viability of the
sector overall.
Indigenous Land Use Agreements
The amended Native Title Act 1993, contains alternative provisions
to the 'right to negotiate' process, most notably the use of Indigenous
land-use agreements (ILUAs). These are now being used extensively and,
in many cases, as an alternative to stricter provisions of the more complex
and lengthy 'right to negotiate' process in the Native Title Act
1993. There are three different types of ILUAs that can be negotiated.
A number of successful agreements have been concluded enabling new and
continuing successful resource developments and these are likely to set
precedents. An example is the agreement between Indigenous peoples, Comalco
and the Queensland Government covering the Western Cape York Peninsula
that was finalised at the end of 2001 following five years of negotiation.
Key aspects of the agreement include annual payments, the creation of
employment opportunities for Indigenous persons and the relinquishment
of parts of the mining lease.
Concluding Comment
Whilst it is evident that Native Title issues have affected exploration
and mineral sector development, it remains imperative that lasting agreement
be reached by Indigenous bodies and the mineral sector. Agreement will
help create more certainty for future investment in a long established
and vitally important industry. Indigenous people stand to benefit to
a broader range of employment and business opportunities in an industry
almost exclusively centred in rural and regional Australia.
- J. A. Kit, 'The impact of mining on Aboriginal and Torres Strait Islander
populations', Paper presented to the Third National Immigration and
Population Outlook Conference, Adelaide, 1995.
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