Traditional Owners lodge appeal after Sheffield conduct condemned

This press release was issued by the Kimberley Land Council on the 12th October, 2017

Traditional Owners lodge appeal after Sheffield conduct condemned

Kimberley Traditional Owners of the Mount Jowlaenga area have lodged an appeal with the Full Federal Court of Australia against mineral sands miner Sheffield Resources Ltd and the State of Western Australia.

The appeal comes after Justice Barker of the Federal Court ruled that Sheffield Resources was no longer obliged to conduct itself in good faith at a time it engaged in negotiation tactics that the Judge condemned in strong terms.

Justice Barker found that Sheffield’s conduct “flew in the face” of an agreed protocol which was designed to ensure Traditional Owners “would not be taken advantage of” by the company in its negotiations.

Kimberley Land Council Chief Executive Officer Nolan Hunter said there should be no loss of the good faith protection at any point of the negotiation process.

Mr Hunter said if the decision was not challenged it would set a concerning precedent for future native title negotiations and would pave the way for companies to circumvent the requirement for formal agreement making. In the past many of the companies operating in the Kimberley have acted in good faith and respected that they need to have an agreement in place with Traditional Owners.

“The Mount Jowlaenga Traditional Owners are not opposed to development, but they are opposed to a mining company that is seeking to operate on their traditional lands without an agreement in place,” Mr Hunter said.

“If this mine is allowed to go ahead it will mean 40 years of operation without an agreement with the Mt Jowlaenga Traditional Owners.

“Sheffield Resources does not have a social licence to operate its Thunderbird mine in the Kimberley.”

In relation to the proposed Thunderbird mine, there is no agreement in place to protect the Mount Jowlaenga Traditional Owners cultural heritage, to compensate them for the impacts on their native title, or to ensure their participation in the project via employment or contracting.

In a statement released by the Named Applicant for the Mount Jowlaenga people on whose native title area the Thunderbird mine is proposed to be built, Traditional Owners said:

“The Judge said that Sheffield Resources treated us in a way that “flew in the face” of the agreed negotiation protocol that is supposed to make sure our “best interests would not be compromised” and that we “would not be taken advantage of”. But the judge also said that at that time, we no longer had the good faith protection under the Native Title Act.

What this decision means to us is that instead of it protecting us, the Native Title Act has been used by Sheffield Resources to take advantage of us.

We have the responsibility of looking after our native title and cultural heritage for our old people and for our future generations. We should be able to rely on the good faith law under the Native Title Act to protect us from companies using bad faith negotiation tactics to get our consent for their project.

What shield does the Native Title Act give us if it allows companies to lie and trick us into giving them our consent? It’s one thing that the Native Title law doesn’t allow us to stop a company from mining our native title lands without our consent. But it is another thing to see the Native Title Act be used to let a company act in bad faith and still be allowed to get its licence to mine.

Sheffield can say it has the ‘overwhelming support’ of the local community for its project. But we don’t know how it can say that when it plans to go ahead and mine the Mount Jowlaenga people’s native title lands for the next 40 years without the Mount Jowlaenga people’s consent. We’re trying to stay strong in the face of bad faith tactics, with or without the protection of the Native Title Act.”

Mr Hunter said the latest ruling of the Federal Court highlights the increasing inability of the Native Title Act to protect and look after the interests of Aboriginal people.

“The Native Title Act is failing the people whose rights it was created to protect. The Australian Government must commit to a thorough overhaul of this legislation.”

Good faith is imposed by the Native Title Act (1993) on parties seeking to reach an agreement relating to activities that may affect native title rights and interests. It is intended to ensure parties can negotiate on an equal footing, to redress the disparity between the bargaining strength of a mining company as against a native title party which may lack capacity to do this.

Northern Minerals earns social license to operate

Jaru Traditional Owners stand to benefit following a major announcement by rare earth miner Northern Minerals.

Almost three years after KRED Enterprises and Jaru Traditional Owners negotiated a native title agreement with Northern Minerals, the company’s board has finally approved a $56m dollar pilot project at the Browns Range site, which is approximately 160km south east of Halls Creek.

Wayne Bergmann, the CEO of KRED Enterprises, says Northern Minerals are one of the few mining companies in the Kimberley that has earned a social license to operate.

“Northern Minerals are setting the standard for local participation—and not just among Indigenous people. I’m hopeful that the flow-on effects of this project will benefit all people and businesses in the area. It’s a game changer,” Mr Bergmann says.

The Jaru native title group finalised the Browns Range Project Co-existence Agreement at a meeting at Ringer Soak in June 2014. The Agreement makes provisions for a comprehensive benefits package.

“The benefits package includes financial benefits, share options and support to sustain Jaru heritage, law and culture. Northern Minerals will also carry out a full social and cultural impact assessment in conjunction with KRED and Jaru, and will prioritise employment and contracting opportunities for Jaru people that will increase over the life of the mine,” Mr Bergmann says.

“It’s important that Aboriginal people are seen as part of economic development, not a hindrance to development. In this instance, Northern Minerals has demonstrated good will and the outcomes have been positive,” Mr Bergmann says.

Indigenous leader welcomes scrapping of DAA

Wayne Bergmann, the CEO of KRED Enterprises, welcomes the new state Labor government's enthusiasm for Indigenous reform, after the government announced last week that they'd be scrapping the Department of Aboriginal Affairs (DAA).

Bergmann says the new government has an opportunity to get Indigenous reforms right and to achieve a proper realignment with the realities of native title.

"The Department of Aboriginal Affairs was slow, cumbersome, and represented a ball and chain around the advancement of Aboriginal groups. It was also ineffective in fulfilling its statutory obligations under the Aboriginal Heritage Act and the Aboriginal Lands Trust," Mr Bergmann says.

Across Western Australia, Aboriginal people who have worked at the forefront of Indigenous rights and services, have a wealth of knowledge about what's effective and what isn't when it comes to Indigenous affairs. Mr Bergmann says it's time to draw on this knowledge.

"I call on the Hon. Ben Wyatt to engage with Aboriginal leaders to create a new model for Indigenous affairs, one that's streamlined, inclusive and values the knowledge on the ground," Mr Bergmann says.   

"I propose the development of an independent statutory body to set the policy and service agenda, one which has been elected by Traditional Owners around the state. We need an independent body that's adept at handling the new realities of native title, including the recognition of native title as a property right," Mr Bergmann says.

"The WA state government has a unique opportunity here to set the standard for state Indigenous affairs across Australia."

Presentation to the UN Special Rapporteur on the Rights of Indigenous Peoples

Eight years ago Australia reversed its position and adopted the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). But the realisation of these rights is beyond the reach of Aboriginal people in Australia due to:
- the black letter law (State and Commonwealth);
- the implementation of domestic law.
There’s an obvious lack of political will to enable Indigenous peoples to realise the full extent of their rights as enshrined under UNDRIP. Click here for the full presentation. 

Getting away with blue murder

In 2017, Wayne Bergmann will have a semi-regular segment on Goolarri Radio with Sandy Dann. Here are some extracts from their conversation on the 8th February 2017. 

I think we need to reaffirm our cultural identity. This year’s (already) been a big year for our Kimberley mob. There’s a lot younger people coming back and following their grass roots cultural connections. They’ve had a big mob of ceremonies with kids going through law at Jarlmadangah, One Arm Point, Fitzroy and Balgo. You have law and culture happening everywhere. And it’s still going on. I feel refreshed, with a lot of energy.

This decade has got to be the decade of Indigenous economic independence. The real hallmarks of First Nation’s people have to be asserting our private property rights and having the Australian legal system recognise our property rights. When we wake up in the morning, we don’t wake up and say, “Oh let’s get more government funding.” We want to be proud, and independent. We want our land to look after us, as well as we look after it. It’s the basis of generating our well-being. And whether that’s through making a balance with economic development or protecting areas, that’s our right to self-determination. We determine what we can live with.

The challenge now, is determining what should and shouldn’t happen on country.

[One of the issues we’re facing at the moment], is that the WA state government does not guarantee that mining companies or developers employ regional people—white or black. We are seeing our small businesses in Broome and throughout the Kimberley being swamped by outside companies coming in to build major infrastructure.

With the Aboriginal population in this region sitting at around fifty percent, I would expect to see a minimum of fifty percent Aboriginal contracts and employment. But if we don’t shake this tree, our mob will miss out. And what happens, when those [outside] workers get paid? They go back to their homes, spend money in their own communities. We need to make sure that money lands in the pockets of local people to build the economy of our own region. That’s what I mean when I say this needs to be the decade of Indigenous economic development.

I’m currently preparing a letter to go to the Prime Minister about minimum national standards. When I chaired the COAG Indigenous Expert Working Group, I saw the variation between agreements [with companies], from Western Australia, to the Northern Territory, to the New South Wales coast and Queensland. I saw a shameful variation in agreements. You cannot negotiate with people who have no information, or no idea about good standards. Companies are coming in with all the knowledge and are striking deals so low that it’s not possible for people to pull themselves out of social dependency, out of government dependency, out of welfare.

Why am I saying this?

Because as a nation, we’re paying for it as tax payers. If mining companies don’t do proper deals and don’t have proper social impacts at the front end, then government pays at the backend through fixing up social dysfunction because none of us have jobs. This is not just a blackfella issue: this is a national issue. Every citizen in Australia should be saying, let’s get this right, let’s create national standards where companies have to pay their fair share. These deals have to be done for us to get economic freedom, to become economically independent of government.

I’m not anti-mining, but I am anti-people taking advantage of Traditional Owners. At the moment, I don’t think the balance is right.

I think some companies are getting away with blue murder.