Arnhem Land traditional owners flag High Court action to prevent mining industry fracking

... we are on the land ... the traditional owners ... should be making all the calls, making the decisions, not the government.

Arnhem Land traditional owners burn a letter a year ago from miner Paltar Petroleum,
which wants to frack parts of their land and sea. Image: ABC News

Andrew Thompson ABC News 19 March 2014

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Traditional owners from Arnhem Land in the Northern Territory say they plan to initiate proceedings in the High Court of Australia to prevent fracking on their land and coast line.

Maningrida traditional owners have met with Environment Minister Greg Hunt to lobby for legally binding protection agreements of all coastal waters off Arnhem Land.

Eddie Mason says Mr Hunt expressed support for his people's wishes.

Mr Mason says he plans to take court action promptly to ensure the area, about 500 kilometres east of Darwin, is protected.

"[Going to] the High Court, like Eddie Mabo did when he fought for his sea rights," he said.

"I am going to to do the same thing now.

"I will initiate the proceedings and talk to my elders at Maningrida, all the different tribes."

Maningrida traditional owners have been fighting Paltar Petroleum's push for oil exploration off their coast for more than a year.

Mr Mason says he is happy with the initial outcome of the meeting with Mr Hunt.

"We talked about ... a 20-year moratorium," he said.

"He told us that we are on the land and that we, the traditional owners ... should be making all the calls, making the decisions, not the government."


Chapter Eleven: Native Title: A Path to Sovereignty by Dr Stephen Davis

Following the Wik decision, 78 per cent2 of the Australian continent is potentially subject to native title claim, if it can be safely assumed that freehold title is not subject to claim or that native title cannot co-exist with freehold. The latter presumption is not beyond doubt.

One consequence of the federal Government's proposed Native Title Act amendment (10 Point Plan) will be an expected reduction in the claimable area by between five and eight per cent. The federal Minister for Aboriginal Affairs is reported as saying that 70 per cent or more of Australia will still be available for claim under the amended Native Title Act.3 This, of course, comes somewhat as a shock to most Australians, who assumed that the Native Title Amendment Bill was designed to recognise the intent of the Mabo (No.2) decision and restore the level of potentially claimable land to the pre-Wik level of approximately 38 per cent.

Native title rights have not been defined. Nor will they be defined by the proposed amendments to the Native Title Act. It will be left to courts to define the incidents of native title on a case by case basis. It is unclear whether those incidents will include rights to sub-surface water or mineral resources, although the proposed amendments seek to preclude both possibilities. NSW relies on the Royal prerogative to underpin its ownership of the Royal Minerals (gold and silver).

A case is likely to be constructed by Aboriginal people, on the basis of sovereignty, to test the Crown ownership of minerals. If a case for sovereignty is successful, then there may be latitude for a claim for compensation in respect of at least the royal minerals, or a royalty payable to indigenous groups for royal minerals extracted, both past and future. If Crown ownership of minerals is affirmed in the amendments then there may well be a case for compensation mounted by indigenous groups.

The States are wary of this possibility and have subsequently encouraged the federal Government to avoid any affirmation of Crown ownership.

Overseas, such as in some areas of Canada, minerals rights are vested in indigenous people. There may be a strong push for such precedent to be extended to Australia, particularly if coupled with the sovereignty argument. The granting of mineral rights as a native title right may well be a position the federal Government is willing to concede should it find itself in a difficult negotiating position with indigenous groups. This would be a simple method of the government displacing the burden of compensation to those who wish to acquire the mineral rights ... a simple case of user pays.

In Western Australia specifically, the Land Act provides exclusive rights of pasturage for the term of the pastoral lease. It does not give the pastoral lease holder general rights to soil or timber. There is some question as to whether these rights may therefore be available for claim through native title. If not, they may well accrue through the application of one or more international instruments ... READ MORE ...

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