Insurance requirements imposed on Traditional Owners could cause problems for every Native Title holder in Western Australia, Bunuba Elder Joe Ross has warned.
The Bunuba Dawangarri Aboriginal Corporation has been told by their insurance broker that they are "unlikely to be able to obtain public liability insurance over the Bunuba Reserves which are to be used for community blocks or Traditional Owner commercial opportunities".
Ten proposed Bunuba Reserves are to be created from Bunuba native title holdings as part of an arrangement to create new national parks in the Fitzroy Valley.
BDAC had been working for many years to reach an agreement with state authorities.
"They plan to create new national parks (175,000ha) along Fitzroy River about 100km up the river extended beyond Danggu (Geikie gorge) National Park," said Ross.
"We took it as an opportunity to also convert exclusive native title, 46 per cent of our pastoral leases that we hold, to give us a greater return from the state government around increasing current ranger positions by 20 and receive compensation in the form of a capacity building fund."
Ross said they'd "literally ticked off everything with the state" and had given up almost 100,000ha of pastoral lease.
"In return we also wanted to create a new middle school site at Bandilngan [Windjana Gorge]" he said.
"We have had the Yiramalay Wesley college studio school delivering years 10 to 12, for eight years run by Wesley College Melbourne ... We wanted to expand the school to middle schooling at Bandilngan, living areas, validation of current living areas, and we demanded that they be in the Indigenous Land Use Agreement."
The draft Management Deed of the Bunuba ILUA will require BDAC, as Management Body, to effect and maintain insurance policies in respect of the Bunuba Reserves including public liability insurance in the amount of $20 million in respect of the Bunuba Reserve, insurance for each improvement on the Bunuba Reserves, contractors risk insurance to cover all works undertaken in relation to the construction of any development on the Bunuba Reserves; and employer's indemnity insurance.
The draft Management Deed also requires BDAC to oblige any lessee, licensee or sublessee of a Bunuba Reserve to effect and maintain these insurance policies.
Ross said the insurance requirements gave him "grave concerns".
"This is not a national park issue, this is one of the first times they have started demanding that Aboriginal people provide insurance obligations for third parties," he said.
"I have grave concerns for the future of the Aboriginal land trust divestment and viability of under resourced PBCs (Prescribed Body Corporates). The basis for any grants or benefits out of any ILUA is to go through the PBC as a Native title benefit.
"The government demands us to do that, so we do that. But in this case, we have been negotiating on behalf of our members who are a third-party interest . . . Insurance Companies won't provide us insurance because we have an un-insurable interest . . . [but] the government is demanding it, that is not achievable."
Ross described the situation as "unviable" for WA Traditional Owners who are "wanting to acquire "exclusive living and commercial reserves through ILUA-based negotiations.
"If this goes ahead, we will have ridiculous insurance clauses applied that are untenable for PBC members," he said.
While insurance matters around management of Crown land have formed part of other ILUA negotiations in Western Australia. Ross said Bunuba was dealing with a different set of remote circumstances and material conditions.
"The chief architects of all this said they did it with the SWALSC agreement in Perth, but that's land in a suburban area, known sites, those lands are insurable," he said.
According to Ross, the treatment of Aboriginal corporations by the insurance industry is a broader problem.
"We tried to get our Bunuba park rangers insured for fire management services, our broker asked what did they do. When we said by the way, they are going to be flying in helicopters dropping a little bit of napalm out the window for fire mitigation projects, they nearly had a heart attack," he said.
In October 2020, Indigenous ranger groups warned they would be unable to continue fire mitigation work because of massive insurance premium hikes following the horror fire season of 2019/20.
Nolan Hunter, the then CEO of the Kimberley Land Council, which coordinates Indigenous ranger groups performing fire mitigation across much of the north-west of Australia, said at the time "our groups can't do fire management without insurance".
Ross said onerous insurance requirements were "the thin edge of the wedge".
"It's our land, we have given up 100,000 hectares and we are asking for 1,100 hectares for living areas," he said.
"It is a precedent, it's outrageous actually. We should have tenure given to Native Title holders unencumbered.
"We have said to the state that we will walk away from the proposed creation of Fitzroy River national parks unless you resolve this."
A spokesperson for the WA government told the National Indigenous Times that the government is "aware of BDAC's concerns regarding insurance and is committed to working with BDAC to address these concerns".
"The State Government is proud to be working with the Traditional Owners towards the shared goal of creating the Fitzroy River National Park. Negotiations with the Bunuba Dawangarri Aboriginal Corporation regarding an Indigenous Land Use Agreement are ongoing and we remain committed to working with BDAC to finalise negotiations and create the Fitzroy River National Park," they said.
Opposition MP Neil Thomson, MLC for the Mining and Pastoral Region said the problem is "symptomatic of the bureaucratic approach favoured by the state government".
"We have one arm of the government negotiating outcomes that are vital ecologically and culturally for Aboriginal people in the region, and on the other hand another part of government is dealing with land tenure issues that impose conditions that are unrealistic and creating problems for the Traditional Owners," he said.
"Minister [Tony] Buti needs to direct the Department of Planning, Lands and Heritage to make sure the broader outcomes for the National Park, the economic development and other benefits of the plan are delivered in accordance with the original intent of the negotiations."
Thomson said "the left hand often doesn't know what the right hand is doing in government".
"It is important to make sure there is proper coordination across the portfolios of Aboriginal Affairs, environment and lands," he said.
Ross' legal advice had still not clarified whether they could meet the insurance requirements.
"We have kept this purely evidence-based. We have responded and gotten them [the lawyers representing the Bunuba people] the information. They didn't know if it was insurable or not. Our broker said it's uninsurable," said Ross.
"We have agreed to convert exclusive native title lands into National Park for the benefit of all Australians... This issue is the thin edge of the wedge for all Aboriginal native title holders in WA. It's totally ridiculous. This relates to every Native Title common law holder in Western Australia dreaming of having a block of land on their Country."
By Giovanni Torre