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Australia’s native title agreement-making process must be reformed to comply with the international human rights standards, one legal body is arguing.
Australian Lawyers for Human Rights (ALHR) is calling for the government to redesign the Native Title Act 1993 with the principle of free, prior and informed consent. ALHR’s president Kerry Weste said it is “imperative” the system does not deny freedom.
The comments come after the Queensland government used its statutory discretions to extinguish native title over 1,385 hectares of Wangan and Jagalingou (W&J) County in favour of Adani for the Carmichael Coal and Rail Project.
This means Adani has been granted freehold title to the land and the area will now be excluded from the W&J native title claim. The W&J peoples have been split with some people agreeing to the Indigenous Land Use Agreement registered in 2017. The deal has been surrounded by allegations of wrongdoing by mine supporters.
“ALHR echoes concerns of the United Nations, the W&J peoples opposed to the Adani mine and prominent Australian barrister Tony McAvoy SC, that the native agreement-making process may be inconsistent with Australia’s obligations under the Convention on the Elimination of All Forms of Racial Discrimination and the UN Declaration of the Rights of Indigenous Peoples,” Ms Weste said.
Ms Weste added it is important that a system “created to address the injustices of past dispossession does not perpetuate the disadvantaged position of Indigenous Australia by denying them freedom to decide [on] the economic potential of their land”.
Parts of the land include traditional lands used by W&J peoples for ceremonies and it has been reported Adani also warned some W&J peoples that it could take action for “trespass” if they come on to the land that will form the Carmichael mine site.
Ms Weste said these allegations are concerning and ALHR expresses support for the “disrespect and hurt felt by the W&J peoples who oppose the project”.
Some members of the W&J peoples claiming native title challenged the validity of the Adani ILUA in the Full Court of the Federal Court. The court had limited powers in the process, which may have tainted the validity of a certification decision, ALHR said.
“There remain significant questions to be answered for the Australian government in relation to the operation of the Native Title Act and its compatibility with international human rights standards,” Ms Weste concluded.
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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