Native title laws cause uncertainty in mining circles – MCA

JOHANNESBURG (miningweekly.com) – Australian minerals companies have called for urgent amendments to native title laws to remove uncertainty created by court decisions which cast doubt over the status of mining leases and tenements, the Minerals Council of Australia (MCA) said on Friday.

The MCA’s submission to the Attorney-General department’s Options Paper for reforms to the Native Title Act (NTA) outlined two key priorities which should be brought to the Parliament before broader legislation is introduced.

“The minerals industry is committed to a native title system that works effectively to both protect the rights of Indigenous Australians and facilitate activities on Indigenous land consistent with those rights, in line with the industry’s acknowledgement of Aboriginal and Torres Strait Islander peoples as Australia’s first peoples with a special connection to their traditional lands and waters,” it said in a statement.

As an active participant in native title reform, the MCA has asked the federal government to introduce legislative amendments in two areas, including Section 31 agreements, which are frequently used as the basis of grants of mining and exploration rights over land which may be subject to native title.

The validity of existing section 31 agreements, which were not signed by all members of the applicant, was put in doubt by the Federal Court’s 2017 McGlade v Native Title Registrar & Ors decision. This made the status of mining and petroleum leases and other related interests granted in reliance on those agreements also unclear.

The validity of Western Australia mining tenements was also thrown into doubt by the High Court’s 2017 judgement in the Forrest & Forrest Pty Ltd v Wilson & Ors case. The Western Australian state government is now drafting a validation bill to provide retrospective validity to tenements affected by the ruling. The MCA said that it was essential for complementary amendments to be made to the NTA to allow the Western Australian legislation to take effect and ensure continued validity of mining tenements and associated native title agreements.

The MCA congratulated the federal government and opposition on supporting the passage of the Native Title Amendment (Indigenous Land Use Agreements) Act 2017. This resulted from a collaborative effort between the industry and native title stakeholders.

The MCA’s submission also outlines a set of principles – stability, certainty, efficiency, opportunity – against which broader proposals for NTA reform can be tested.

A three-phase public consultation process towards legislative reform has begun with the release of a consultation paper.

When originally published, the Aboriginal Heritage Act 1972 was the leading legislation in Australia. It has remained unchanged for the last 45 years.

Meanwhile, Association of Mining and Exploration Companies (Amec) CEO Warren Pearce said the organisation welcomed the opportunity to contribute to the conversation about this important piece of legislation.

“The economic, social and legislative environment has changed considerably in the last 45 years, but the Aboriginal Heritage Act 1972 has not. It is time for an update. Mineral exploration and mining practices have undergone a quantum shift since the 1970s when this legislation was first drafted.  Our members are actively engaged in protecting and conserving Aboriginal cultural heritage.

“We look forward to engaging in this process and increasing the certainty, transparency, and cost efficiency of this important Act and in protecting cultural heritage values.

“This process could be a win-win for all stakeholders,” he added.