Monday, August 6, 2007

Native Title – Regional Land Use Agreements and Indigenous Governance

In the fifteen years since the 1992 decision in Mabo [No. 2],[1] and the subsequent passage through Federal Parliament of the Native Title Act 1993 (Cth) (“the NTA”),[2] the prospect of Native Title recognition has fundamentally transformed the formal recognition of indigenous land use and ownership, and the political and legal structures within which indigenous affairs are carried out.

The potential for symbolic, as well as legal, recognition of indigenous priority in Australia, for even a merely implied recognition of sovereignty, and for Native Title to help provide a means to overcome poverty and exclusion, has proved an attraction for some indigenous rights organisations and sympathisers ever since. In reality, it has opened something of a Pandora’s Box, not only for those fearful of its effects on their own interests, but for those hoping to gain the recognition it promised.

The Native Title processes have proved frustrating, expensive, uneven, and often unrewarding, and government, and corporate, opposition to Native Title have further bogged the process down. In recent years, alternative and hybrid approaches to indigenous land claims have evolved, often involving negotiation, agreement and shared use of land – perhaps the most notable of which are the Indigenous Land Use Agreements (ILUAs), an alternative introduced in the 1998 amendments to the NTA as a result of lobbying.[3] However, major problems also shadow their use during the negotiation process, as well as their implementation and their review. 

In response to some of the challenges of the negotiated settlement process, the concept of making Regional, or Statewide, Framework Agreements (RFAs, SFAs) in order to streamline negotiations has gained some popularity. I will look at some of the recent developments in this area below, in particular the process underway in South Australia since 1999, which holds some promise as a template for future negotiations on a similar scale, as well as the development of a more coordinated and effective form of indigenous governance.