Fitzgerald, James --- "Book Review - The Commercial Implications of Native Title" [1998] IndigLawB 42; (1998) 4(11) Indigenous Law Bulletin 23

• Book Review The Commercial Implications Of Native Title

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Book Review

The Commercial Implications of Native Title

edited by Bryan Horrigan and Simon Young

The Federation Press, Sydney

1997 ISBN: 1 86287 218

RRP $75 hard back

Reviewed by James Fitzgerald

The process of recognition of native title has become a revealing insight into Australian society, its values, strengths and weaknesses. The challenges of native title are manifold, and demand a sophisticated response.

Commercial Implications of Native Title is a collection of essays whose authors include some of Australia's established or upcoming authorities in the area. Topics covered include native title implications for land dealings, government policy and procedures, pastoral and mining industries, natural resources, financial and other professional advice, financial and security arrangements, negotiation and dispute resolution. The subject matter is approached from legal, policy, financial, resources management, negotiating, stakeholder, evidentiary and procedural perspectives. The issues are treated in sufficient breadth for the work to remain relevant despite impending changes to the law.

Notably absent is an indigenous perspective. The editors mention that, despite their best endeavours, they were unable to secure a contribution from an indigenous representative or organisation. While it is curious that the best endeavours of the editors could not procure a single Aboriginal contribution, Commercial Implications of Native Title is nevertheless a valuable resource for indigenous as well as non-indigenous people.

Justice Robert French's chapter on procedural aspects of the Native Title Act 1993 (Cth) (the 'Native Title Act'), Graeme Neate's consideration of evidentiary matters and MA Stephenson's examination of resource development negotiation strategies are of particular relevance to those involved in the formulation and carriage of native title applications and development negotiations.

Given the central role of negotiation in both native title applications and the right to negotiate process, it is essential that indigenous representatives have an appreciation of the valid concerns and responsibilities of government, developers and other property owners in reaching agreements about native title. Chapters by Dominic McGann and David Yarrow on government policy making consideralions; by David Yarrow and Poh-Ling Tan about ownership and control of natural resources; by K.D. MacDonald on commercial implications for mining and resources; and by Bryan Horrigan, Craig Jackson and Michael Bray on the financial and accounting implications of native title provide an insight into the kinds of concerns exercising the minds of those with whom native title holders are required to negotiate. Some of the topics canvassed in Commercial Implications of Native Title are of particular relevance to recent developments. In his chapter about the National Native Title Tribunal, Justice French responds to misleading criticisms of the Native Title Act based upon the lack of native title determinations to date. David Yarrow's treatment of ownership and control of natural fauna provides an excellent background to understanding the issues surrounding the Federal Court's decision about ownership of fauna in the Queensland Court of Appeal's case of Eaton v Yanner (unreported judgment 27/2/98). Following Wik and the expansion of the area of Australia in which Aboriginal traditional owners are entitled to negotiate about future development, M.A. Stephenson's checklist of considerations of be taken into account when preparing for negotiations is of special value.

Commercial Implications of Native Title is not without some shortcomings. Discussing the implications of native title for mining, K.D. MacDonald, a partner of Allen Allen and Hemsley, refers to 'the possibility of veto' arising from the right to negotiate. Although later conceding that 'it is not correct to talk about a veto', Mr MacDonald's comments reflect a common misapprehension about the rights bestowed on native title holders by the future act regime of the Native Title Act.

The Latin meaning of 'veto' is 'I forbid'. The Macquarie Dictionary defines 'veto' as 'the power or right of preventing action by a prohibition; to prevent (a proposal) by exercising the right of veto. Regardless of whatever other inconvenience the right to negotiate might cause to developers, it does not entitle traditional owners to prohibit the grant of interests inconsistent with native title. While the presence of native title may constitute grounds for arbitral or governmental refusal to allow future mineral development (although there has been little if any evidence of the exercise of such power to date), it is misleading and pejorative to suggest that native title holders enjoy a right to prohibit future mineral development. Whatever the risk that the grant of a mining title will not be made, it is not a matter within the discretion of native title holders.

Craig Jackson and Michael Bray include among the financial implications of the Native Title Act that the value of current and prospective investments may be reduced due to uncertainty over title to land. While this proposition is not novel, neither is it well supported by fact. Indeed, the evidence of bankers and valuers since the Wik decision contradicts the assertion.

These features, although limited, are disappointing because they detract from an otherwise much needed treatment of the issues. Nevertheless, Commercial Implications of Native Title is a valuable ready reckoner for those involved in the native title recognition and protection process, and as a useful backgrounder for those with a more general interest in the area.

James Fitzgerald is a Senior Associate at Arnold Bloch Leibler, Solicitors and Consultants, Melbourne.