In popular discourse — particularly in mining states such as Western Australia and Queensland — native title is often viewed as bureaucratic red tape that holds back industry.
Along with obligations under Aboriginal heritage protection and environmental legislation, native title is seen as yet another box that miners need to tick before being granted permission to get on the ground. The old 'State's rights' hackles still bristle in the West; a recent review of approvals processes in WA characterised legislation such as the Native Title Act as an 'intrusion' by the Commonwealth Government.
What tends to be forgotten in the concern about native title 'slowing down industry' is the fact that the Native Title Act has never given Aboriginal people a right of veto. Native title claim groups cannot simply elect to prevent a mining lease being granted or a project taking place.
It should also be noted that this month, the High Court refused a native title claim group's application for leave to appeal the Full Federal Court decision of FMG Pilbara Pty Ltd vs Cox. FMG vs Cox concerned a mining lease in the Pilbara — the remote North-West of Western Australia.
FMG vs Cox concerned the company's obligation to negotiate in good faith with two native title claim groups whose traditional country was included within the lease. The Court held that FMG had discharged its duty to negotiate in good faith despite the fact that there had been no substantive negotiation on the mining lease in question with either group. Indeed, discussions with one of the claim groups had largely focused on a negotiation protocol rather than a final agreement.
This decision sets an unfortunate precedent for negotiations with traditional owner groups. The main reason mining companies 'come to the table' to negotiate with native title claim groups is precisely because the Native Title Act obliges them to do so: before certain mining and other tenures can be granted, the proponent and the relevant government must negotiate in good faith with any registered claim groups within a period of six months with a view to reaching an agreement.
If negotiations do not bear fruit, the proponent can apply for a determination that their interest in land may be granted. There is no requirement to enter into an agreement, no obligation to pay mining royalties or hire local traditional owners, and the statutory