Beyond Wik—Making Native Title Work
By Paul D'Arcy

Introduction

At one level, the 1990s have seen several historic developments for Aboriginal people. As we end the century, the landmark High Court cases starting with Mabo have set a new path for Australia in the process of Aboriginal reconciliation. All parties are now challenged with the difficult tasks of putting in place a legal framework which firmly recognises and defines native title, and establishing workable institutional arrangements.

These are important issues. How Australians tackle them will have a lasting effect on Aboriginal people, on the survival of their culture and on their place in Australian society. It will also affect Australia’s international standing. As one of the largest resource companies operating in Australia, Shell has a significant interest in these issues.

At another level, however, so little is changing – it remains a familiar, depressing story. Consider the following indicators of the well-being of Aboriginal people:
 

• The average life expectancy for Aboriginal males is around 60 years compared with 75 for the general population;
• The imprisonment rate for Aboriginal adults is more than ten times the rate for the general population;
• The 1996 National School English Literacy survey showed that less than 30 per cent of Aboriginal children surveyed achieved acceptable performance standards, compared with 70 per cent of the student sample overall; and
• At the time of the 1991 census, the median income of Aboriginal people was less than two thirds that for all Australian households.

These are the facts. While recasting the legal rights of Aboriginal people and their relationships with other Australians is an important, perhaps crucial, step, it is not the endpoint of reconciliation. All too often we can lose sight of the fundamental objectives in the endless political and legal argument about legislation and institutions.

The challenge facing us, therefore, is not just to work our way through the legal issues involved in making native title work. It is to do so in a way that brings Aboriginal people and other Australians closer together – without a legacy which, like well-meaning policies of the past, creates problems for future generations.

What are the preconditions for making this happen?

The need for leadership

Fundamentally, it requires leadership. The original Mabo decision was a courageous one by the High Court, and the political response since then has, in the main, been good. Contrary to some, I also believe that in general the mainstream media have worked hard at giving this issue the profile it deserves, and have sought to communicate the complex arguments effectively.

But the greatest test is now upon us. Guiding Australia through this period is a difficult task for the leaders of our communities. I would like to focus on some key aspects of achieving a successful path through the process.

First, it requires spokespeople on all sides to refrain from playing up the discriminatory nature of native title. Inflammatory language does not aid understanding of the issues. It only causes confusion, concern and resentment.

Second, it requires careful and thorough assessment of issues and policy options. All of us know the legal and political issues to be addressed are daunting. As it stands, native title confers vaguely defined rights on vaguely defined groups of people to undertake vaguely defined activities on vaguely defined pieces of land. And if you think it is any more concrete than that, you haven’t tried to work through the issues involved.

The Government’s ‘10 point plan’ Bill attempts to provide a clear, workable legal framework to address these issues. Few would dispute the need for acting quickly to put in place a clearer, workable legislative framework. Successive High Court decisions, especially Wik, have underscored weaknesses in the existing Native Title Act. And the failure of the original legislation to provide an efficient mechanism for establishing and processing native title claims has become manifest. Earlier this year, the Native Title Tribunal had a backlog of 645 claims before it, and had established native title in only two cases since its inception in 1994.

A clearer framework will provide a foundation upon which assessment of more detailed issues, options and solutions can be undertaken. One of the disappointing aspects of the native title debate has been the lack of success in bringing people together in a non-political environment to work through the complex issues involved. Removed from the political spotlight, ideas could be more freely raised and tested, and implications investigated.

Third, it requires an appreciation of the international dimension.
How Australia works its way through the native title process will effect international perceptions of our nation. It will affect views about this country as a place to visit, to live and perhaps most critically, to invest in.

This is particularly so as comparisons will be made with other countries. Australia is not the only country which is grappling with responses to rising community concern about preserving and protecting the rights and cultural heritage of indigenous people. For example, Canada, New Zealand and the United States are faced with questions of native title rights. Failure to achieve an inclusive, timely and workable outcome will only harm Australia’s economic and social standing in the world community.

There is much to be gained from sharing experiences with people involved in these issues in other countries. Of course, while we can learn from their successes and failures, we also need to be mindful of the differences between our histories.

Fourth, it requires an understanding of the economic dimension of native title.
From an economic perspective, the failure to establish a workable system is affecting the ability of the mining industry to capture the level of international investment funds which this nation warrants. Resource development is a global business and the competition between projects around the world for investment capital is fierce. The uncertainties about access to land and development approvals make attracting funds very difficult, particularly for risky exploration projects.

Community leaders from all sides need to recognise that the protracted debate over native title is not in the interests of the major stakeholders – the Aboriginal communities, the farmers or the resource companies. Nor does it help achieve the ultimate objective of promoting better outcomes for Aboriginal Australians. The failure to resolve these issues quickly is having, and will continue to have, damaging effects on the Australian economy and the cohesiveness of our society. And the longer the debate goes on the more harmful the consequences will be. Unless we remedy this, future generations will suffer the consequences – and they will not thank our stewardship.

To sum up these points, there are several preconditions for leading Australia through this process successfully. These include: refraining from playing up the discriminatory nature of native title; carefully and thoroughly assessing the issues and options; and finally, understanding the international and economic dimensions of native title.

Getting on with life in this environment

I would like to change tack at this point and talk in more practical terms. How are resource companies and local communities getting on with life in this uncertain environment?

A serious weakness in the prevailing legal framework is that it makes reaching voluntary agreements difficult, by failing to establish with any certainty the legal status of these agreements. This is frustrating because there is a lot of goodwill and mutual respect in dealings between resource companies and local Aboriginal communities. In the long term, the best route to effectively balance competing interests in land will be through voluntarily negotiated settlements.

Despite the impediments in the prevailing legal framework, there are examples of local communities and resource companies working successfully to establish voluntary agreements on issues relating to cultural heritage, access arrangements and, in some cases, compensation. For example, the successful negotiation by the consortia led by Chevron for the construction of the PNG Gas Project pipeline, stretching from PNG to Townsville. This pipeline spans 2000 kilometres in Australia affecting four separate indigenous land councils. The successful negotiation of the Eastern Australian Pipeline connecting the Bass Strait fields with coastal NSW provides another example.

Shell’s approach

I would like to end by briefly talking about Shell’s approach. Not because it is particularly novel – quite the opposite: I think our approach typifies the way that large resources companies are approaching their relationships with Aboriginal communities.

For any large resource company operating in Australia, the relationship with local Aboriginal communities is one it cannot afford to get wrong. Shell is acutely aware that failure to understand and meet community expectations can severely damage reputations and hinder the ability to maintain a long term presence in any operating environment.

The threat to reputation is not just a domestic issue. We live in a world where the international media brings events and issues from all over the globe into our living rooms: poor performance in one region can damage the relationship with customers in all markets.

Recognising that our global reputation depends upon how we act, Shell has adopted a set of General Business Principles. These describe the behaviour expected of every employee in every Shell company in the conduct of its business. These principles underlie our relationship with Aboriginal communities. Our goal is to work in partnership and close co-operation with the Aboriginal people of the areas in which we operate in a relationship of respect, understanding and trust.

Shell in Australia is involved in direct negotiations with local communities in relation to our coal activities in NSW and Queensland and in relation to exploration work undertaken by our upstream oil and gas business in the Kimberley region. Also, Shell is one of the joint venture partners involved in the North West Shelf gas project where Woodside acts as the operator and represents us in negotiations with local communities.

In the Canning Basin, in the Kimberley region, Shell is now completing cultural heritage survey work prior to commencing an exploration program in the region. The ethnographic and anthropological survey work has been undertaken in conjunction with representatives of local communities and with the assistance of the Kimberley Land Council. The strong partnership approach bodes well for our ongoing relationships in the area.

In relation to this project, Shell has communicated its desire to form a study group with representatives of local communities to investigate options for providing positive and lasting benefits for local communities. These will include, for example, the provision of community facilities and mechanisms for assisting local communities in their obligations to look after Country. At the same time, Shell is taking a lead role in forming a Regional Explorers Group which will investigate the possibility of negotiating a Memorandum of Understanding to promote co-ordination at the regional level. Generally, we believe that some form of memorandum of understanding can be a powerful mechanism for clarifying expectations and establishing a partnership approach.

We will be increasing our dialogue with Aboriginal communities as our upstream oil and gas presence in Australia grows. Along with our joint venture partners we are examining the feasibility of two major gas projects in the greater North West Shelf region. The Gorgon LNG gas project is located in the same region as the existing NWS project. The other, the Northern Australian Gas Venture, will be located in the Darwin region. Before ‘on the ground’ work for either of these projects can commence, cultural heritage, access issues and native title issues will need to be addressed.

Concluding remarks

• The 1990s have been a historic period in Australia’s development. While there are many uncertainties and problems with the existing legal framework, it is heartening to look back and consider how far we have come already over the course of this decade.
• Few would dispute that major hurdles lie ahead. Establishing a workable inclusive legal framework and resolving the complex detailed issues will be a great challenge. Guiding us through this difficult period will require not only strong leadership, but also goodwill and restraint. The longer the prevailing uncertainty continues, the greater the damage to our economy, our international standing, and the cohesiveness of our society.
• It will also require a positive, practical approach to negotiations. It bodes well that there are already many examples of resource companies and local communities working together voluntarily to achieve mutually advantageous outcomes.

Paul D’Arcy is Senior Adviser, Shell Australia. This paper was originally delivered as an address to a conference on ‘Making Native Title Work’ in Brisbane in April 1998.

Policy is the quarterly review of The Centre for Independent Studies. For more information on subscribing to Policy, click HERE

If you are interested in the Centre's activities and publications, why not subscribe to e-PreCIS, our regular email update on the latest news and events.

(e-PreCIS requires html capable email facilities, such as Microsoft Outlook Express or Netscape Messenger)