The concept of paying Aboriginal people compensation based on royalties was first introduced in the early 1950s. Critical ambiguities now exist in this area of policy with respect to the Aboriginal Land Rights (Northern Territory) Act 1976 (ALRA) and, more recently, to the future acts regime of the Native Title Act 1993 (NTA).
This paper aims to:
- provide essential historical background to contemporary issues of compensation;
- explain the mining moneys and compensation regimes in the ALRA, providing illustrative examples from a number of agreements for major resource developments in the Northern Territory;
- briefly evaluate whether ALRA precedents have been incorporated in the right to negotiate processes in the NTA, using as an illustrative example the Century Mine Agreement; and
- discuss some principles that need to be incorporated in any framework that will provide effective and fair compensation for native title and to highlight some practical implementation issues for those providing expert input into the assessment of such compensation.
Mining payments to regional Indigenous interests are very often confused with compensation and the compensatory components of these payments are rarely differentiated from the non-compensatory commercial payments. These problems have a long history in the land rights arena in the Northern Territory that are being addressed yet again in the current review of the ALRA. Unfortunately, many of these policy legacies have been replicated in the NTA and threaten to hamper its financial operations. A fundamental dilemma, then, is how to work within a suboptimal statutory regime. Issues which will need to be addressed in any practical implementation include:
- how can native title rights and interests that are potentially affected by a future act be documented?
- how can social impacts be documented, especially in the absence of baseline data?
- how can other impacts be documented?
- how can these impacts, if negative, be valued in monetary or other terms? and
- how should the appropriate beneficiaries of compensation be defined?
It will be crucial for both policy makers and those engaged in practical implementation of compensation regimes to understand both the principles that underpin compensation regimes and the ambiguity in the statute. It is likely that States and Territories will develop their own future act regimes in conjunction with the NTA, and these will use existing mining law to assess compensation. An appendix discusses commonalities and differences in respect to compensation payments derived from mining in State and Territory statutes in Australia. While there exists a general theme of paying compensation for 'disturbance' by mining activity, this comparative exercise demonstrates a number of distinctions. These include:
- who is to receive compensation;
- the reason compensation is to be derived due to the impact of mining; and
- the factors to be considered in assessing compensation.
Since the enactment of the NTA, some States and Territories have amended their mining legislation by incorporating specific provisions relating to native title. These compensation provisions do not necessarily conform with the provisions for non-native title land owners and occupiers. This may lead to further ambiguity and complexity as compensation determining bodies such as the courts and the National Native Title Tribunal (NNTT) draw precedents from the relevant mining statute and yet apply a variation in criteria to native title claimants. The NNTT is likely to continue to draw on precedents within each State and Territory. As the criteria for the purpose and assessment of compensation varies from jurisdiction to jurisdiction, Aboriginal and Torres Strait Islander people can inevitably expect different outcomes within each State and Territory of Australia.
Finding the appropriate balance between working within a highly imperfect framework and striving to change that framework will not be easy. It is similarly difficult to find the right balance between national native title aspirations and regional concerns about limiting the impacts of a major resource development project or ensuring adequate economic benefit to disadvantaged Indigenous stakeholders. Ultimately, getting the appropriate compensatory framework is important, and working within the existing law is currently unavoidable. It is important for policy makers and representative organisations to strike the appropriate trade-offs in ensuring effective and fair compensation regimes.
ISBN: 0 7315 2587 6