Native title agreement-making process must be reformed

October 2, 2019

Australia’s leading association of human rights lawyers, has spoken out about the urgent need for reform of the native title agreement-making process, saying it must comply with international human rights standards. The comments come after the Queensland Government used its available statutory discretions to extinguish native title over 1,385 hectares of Wangan and Jagalingou (W&J) Country in favour of Adani for the Carmichael Coal and Rail Project.

This action means that Adani has been granted freehold title to the land and the area will now be excluded from the W&J native title claim which is currently on foot. The W&J Peoples have been split on the project with some people agreeing to the Indigenous Land Use Agreement (ILUA) registered in 2017. The process has been mired in allegations such as that Adani paid people to recruit mine supporters, including other Indigenous people with no link to the mine site.

Australian Lawyers for Human Rights (ALHR) President Kerry Weste said, “ALHR is concerned that the native title agreement-making process provides yet another example of a lack of adequate balance and protection with respect to governments’ and private corporations’ ability to exert disproportionate power over Indigenous peoples”

“ALHR echoes the concerns of , the United Nations, the W&J Peoples opposed to the Adani mine and prominent Australian barrister, Tony McAvoy SC, that the native title agreement-making process may be inconsistent with Australia’s obligations under both the Convention on the Elimination of All Forms of Racial Discrimination and the UN Declaration of the Rights of Indigenous Peoples.”

“ALHR has repeatedly called on the Australian Government to incorporate the principle of free, prior and informed consent into the Native Title Act 1993 (Cth). It is imperative that a system purportedly created to address the injustices of past dispossession does not perpetuate the disadvantaged position of Indigenous Australians by denying them the freedom to decide how to realise the economic potential of their land.”

Ms Weste noted, “In this particular case, it remains to be seen whether any necessary notification requirements under the Adani ILUA were followed, and what compensation will be afforded to the W&J Peoples as a result of this extinguishment.”

Parts of the land include traditional lands used by W&J Peoples for ceremonies and it has been reported that Adani has also warned some W&J People, that it could take action against them for “trespass” if they come on to land that will form part of the Carmichael mine site. Ms Weste said, “Allegations such as these are concerning and ALHR expresses support for the disrespect and hurt felt by the W&J Peoples who oppose the project.”

Some members of the W&J Peoples claiming native title recently challenged in the validity of the Adani ILUA in the Full Court of the Federal Court. The Court had limited powers to correct any deficiencies in the process which may have tainted the validity of a certification decision which preceded the registration of the ILUA.

“Ms Weste concluded, “There remain significant questions to be answered for Australian Governments in relation to the operation of the Native Title Act 1993 (Cth) and its compatibility with international human rights standards.”

Contact: Matt Mitchell, ALHR media manager 0431 980 365.