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Govt calls for native title reform -

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Govt calls for native title reform

The World Today - Thursday, 22 May , 2008 12:34:55

Reporter: Anne Barker

ELEANOR HALL: There's cautious support for a Federal Government review of Australia's Native Title
Act.

The Indigenous Affairs Minister Jenny Macklin says she wants the Act reformed so that native title
can be better used to address serious disadvantage among Indigenous people.

And as Anne Barker reports, the president and past president of the Native Title Tribunal support
the move.

ANNE BARKER: In the 15 years since the Native Title Act was introduced, few traditional owners have
seen any real material gain. Only about one quarter of all Native Title agreements have given
Indigenous owners any substantial financial benefit, despite the fact that native title covers a
vast swathe of Australia's land mass and its mineral wealth.

It's the key reason why Indigenous Affairs Minister Jenny Macklin wants the Act overhauled.

JENNY MACKLIN: I think Government has a responsibility, particularly to children and future
generations to make sure that the benefits, especially the huge benefits that are flowing and are
expected to flow in the future from the resources boom, benefit Aboriginal people.

ANNE BARKER: Minister Macklin blames the complexities of the Act and the onerous requirements on
Indigenous claimants for a massive backlog of claims that she says could take 30 years to resolve.

The president of the Native Title Tribunal Graeme Neate agrees the native title process is bogged
down in legalistic red tape - so much so he says, it's far easier to avoid the court system
altogether and settle privately.

GRAEME NEATE: It's now exceptional that people go to court to argue about these things. The legal
ground rules having been set, by and large, parties are keen to sit down and negotiate. And when
you look at the average time it takes to sort out Native Title claims, it's about on average two
years quicker to sort these things out by agreement than it is to take them to court.

ANNE BARKER: Other commentators believe the Native Title Act as it stands is inherently biased
towards mining companies, to the deliberate detriment of traditional owners.

Professor Ciaran O'Faircheallaigh from Brisbane's Griffith University helped conduct a study of the
Act last year. He says the way the legislation is set up and interpreted creates a fundamentally
uneven playing field between miners and native title claimants.

CIARAN O'FAIRCHEALLAIGH: It does this first of all by requiring people to negotiate, Aboriginal
people to negotiate agreements within a very short time frame which is six months. If they don't
reach an agreement within six months the mining company can go to the national Native Title
Tribunal and get its mining lease anyway. This puts Aboriginal people under enormous pressure to do
deals.

In addition, if they do go to the tribunal, they can't receive any payments that relate to the
value of minerals. They can't get a royalty in other words. So again it puts them under enormous
pressure.

ANNE BARKER: Do you think mining companies are deliberately exploiting this Act?

CIARAN O'FAIRCHEALLAIGH: Of course they are! In most cases mining companies take a commercial
decision. Their duty is to look after their shareholders' interests. So for most companies that
means that they will get the cheapest deal possible. They will pay as little as possible to get
their agreement.

ANNE BARKER: Fred Chaney is the former president of the Native Title Tribunal. He says unless the
Native Title Act is changed, Indigenous people will continue to miss out on a big slice of
Australia's wealth.

FRED CHANEY: Many of the broadacre determinations really provide very little opportunities for
Aboriginal people to engage in economic activity. And I mean up to half a million square kilometres
of West Australia went onto high order native title. But what was really needed was a combination
of titles which would give people a chance to own houses, run businesses and really satisfy their
broader aspirations.

ANNE BARKER: So how should the Act be changed?

FRED CHANEY: Well I don't think it's so much a need for a change in the Act as a need for a change
in the way governments behave. It critically requires state governments to come to the table with a
menu of opportunities. State governments generally can provide a great range of tenures which don't
have to be tenures which extinguish native title.

And I think that even with the present law it would be possible to construct much better native
title outcomes, much more relevant to Aboriginal people living in modern Australia.

ELEANOR HALL: That's Fred Chaney, the former president of the Native Title Tribunal ending that
report by Anne Barker.