Indigenous land use agreements: The opportunities, challenges and policy implications of the amended Native Title Act

Abstract

The provisions for Indigenous Land Use Agreements (ILUAs) under the Native Title Amendment Bill 1997 offer a significant opportunity to address the diverse land-use concerns of Indigenous Australians, resource developers, government and other stakeholders. They also provide a practical statutory pathway into the agreement process by affording a wide range of mechanisms and procedural options for:

'side' or ancillary agreements to the claim mediation process; negotiated settlements; future act agreements; land access and use agreements; co-management or partnership agreements; and framework, process and heads of agreements. They can be local or regional in their geographic coverage, operate as stand-alone or sequential to other agreements, and cover specific or multiple purposes. These characteristics should provide a practical foothold into the unknown territory of regional agreements, enabling a practical conceptualisation of how such agreements might be secured.

The ILUA provisions offer a set of agreement-making mechanisms which are relatively user-friendly and potentially afford parties with:

flexibility; greater legal certainty and enforceability; improved post-agreement implementation; and the development of preferred processes more attuned to cultural, social and economic realities. They have the potential to be:

cost efficient and timely; sustainable; inclusive in their potential coverage of issues and parties; and productive of workable and just outcomes based on a practical interpretation of co-existence. The potential challenges and disadvantages include:

the certification difficulties associated with identifying all persons with native title rights and interests entitled to be a party to an agreement, and the related difficulty of gaining their authorisation; the possible procedural complexity related to the objection process; the variable organisational role and increased workload responsibilities of Native Title Representative Bodies, and their future relationship with Prescribed Bodies Corporate; and the continuing oppositional behaviour of key stakeholders. New Federal Government taxation proposals may also act as a disincentive to the agreement process and increase transaction costs associated with the negotiation of agreements. Most important amongst the challenges to parties in obtaining equitable, just, timely and durable outcomes will be the need to:

develop effective, professional Native Title Representative Bodies with high levels of negotiating skills and the organisational capacity to provide certification; overcome the debilitating effects of intra-Indigenous conflict which will always prove inimical to agreement; secure the active engagement and policy support of governments at all levels; and ensure adequate and co-ordinated levels of funding for all potential Indigenous and other parties.