Miners seek certainty under native title


Sir – 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 MCA’s submission to the Attorney-General’s Department’s Options Paper outlines 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. As an active participant in native title reform, the MCA has asked the Federal Government to urgently introduce legislative amendments in two areas to validate:
• 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 has made the status of mining and petroleum leases and other related interests granted in reliance on those agreements also unclear.
• Western Australia mining tenements, the validity of which was thrown into doubt by the High Court’s 2017 judgement in the Forrest & Forrest Pty Ltd v Wilson & Ors case. The WA State Government is now drafting a validation bill to provide retrospective validity to tenements affected by the ruling. It is essential for complementary amendments to be made to the Native Title Act (NTA) to allow the WA legislation to take effect and ensure continued validity of mining tenements and associated native title agreements.
The minerals sector needs certainty to secure investment for resource projects. Without these urgent amendments, the status of mining leases and tenements across Australia, and particularly in WA, will remain under a cloud.
The MCA’s submission also outlines a set of principles – stability, certainty, efficiency, opportunity – against which broader proposals for NTA reform can be tested.
David Byers
Interim Chief Executive, Minerals Council of Australia


  1. Native Title law exists for the benefit of Native Title claimants, not for the expeditious treatment of industry interests.
    The certainty that the MCA is seeking here is to know that they can obtain Indigenous Land Use Agreements from a claim group before the entire group can be said to have been authorised to make such an agreement.
    There is a very real risk that mineral companies will use divide and conquer tactics to coerce consent from claimant groups. This has occurred and seriously calls into question the validity of a consent for an exploration project.
    Native Title is already a weak form of title, which does not provide a right of veto merely a right to negotiate, but ultimately a mining company does not even have to acquire a land use agreement.
    This creates an obvious imbalance in bargaining power which means strong protection should be afforded to Native Title groups. The decision from McGlade provides a reading of Native Title law that is in line with the original policy intention of that Act.
    Any amendments should be well considered and informed by the need to strengthen and protect Native Title claimants.


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