If you get injured in a motor vehicle accident, if you hurt yourself on the job or if the Australian, State or Territory, Government compulsorily acquire your land. You’re entitled to be compensated.
There is legal precedent in case law and many decisions to guide just and fair compensation.
In working out what is fair and just, there are decades, if not centuries, of jurisprudence of legal reasoning and argument to give certainty to the Australian citizen and Australian government.
However, if you are a Native Title Holder and a Prescribed Body Corporate (PBC) that holds Native Title on behalf of your members, there is no clear process but an expensive legal process to seek compensation.
The legal process for Native Title Compensation is like running a Native Title Case again from start to finish. The process is dependent on the ability of the expert team employed – meaning the more money you have, the better represented you are.
The reality is only a handful of PBC’s can afford to pay upfront for an uncertain process. So, the responsibility to seek compensation falls to Land Council’s or Native Title Service Providers.
This is a new area of legal jurisprudence that creates uncertainty as to the value of the compensation, which means little effort is put into the compensation strategies.
This is good news for political leaders as political life is short term compared to business planning and thinking. By default, this model creates no incentive to create a state and commonwealth process that makes it easier to seek compensation.
Despite the Western Australian Labor Party policy of having Native Title as recognised “property”. Ben Wyatt as Treasurer, and Indigenous Affairs Minister, failed to implement a State based comprehensive Native Title Compensation system.
The WA Indigenous Affairs legacy was to be an Aboriginal Heritage Bill that has drawn widespread criticism, protests, and condemnation from the investment community to put Aboriginal people at the centre of Aboriginal Heritage decision making.
It has been one of the biggest failures in Aboriginal leadership at the highest political level in Government.
This reality makes it more and more important that the investment community not only need to hold industry to account but also hold governments to account. The government process when dealing with First Nations People is creating uncertainty for industry and First Nations People.
Government is happy to have industry up in arms with First Nations People as it keeps them out of sight.
There would be great benefit to the Australian community if Native Title Agreements were benchmarked.
When I was Chairperson of the Expert Indigenous Working Group regarding the COAG Investigation into Indigenous Land Administration and Use. It became apparent that despite the Native Title Act being National legislation, there was no consistency across the nation on agreement making and the processes that impact on Native Title Holders.
National bench marking would provide investors with certainty to ensure transparency, fairness, and certainty. It would also provide a safety net for First Nations People and ensure that development on their traditional lands, would leave them better off overall because the agreements are fairer and more equitable.
It would also mean that the Australian government would need to provide less services as the social wellbeing of First Nations People would have improved from good agreements. It makes sense the greater the improvement in First Nations People from agreement making the less reliance on government taxpayer programs to support First Nations People.
It is a policy issue that government can do something about by making industry accountable. Because the weaker the Native Title Agreement, the more reliant on Government are disadvantaged Indigenous communities for Taxpayer funded programs.
Taxpayers are left with the cost of funding social programs because industry is making greater profits at the front end, and we are paying the cost at the back end through social grants.
And the gap keeps widening.
By Wayne Bergmann
Wayne Bergmann is Co- Owner of NIT and was the Chair of the Indigenous Expert Group for the Council of Australian Governments (COAG) Investigation into Indigenous land administration and use between 2014-2015.