Opal Miners Celebrate Native Deal
By Marlene A. Prost

WINTON, AUSTRALIA — A vast new area has been opened up for opal mining in Queensland, Australia, thanks to a new agreement between the state government, opal miners, and local aboriginal tribes.

Formally known as the Winton Indigenous Land Use Agreement (ILUA), the deal simplifies the process for obtaining a mining lease in a region covering 50,000 square kilometers (19,000 square miles) around Winton, in the heart of Queensland's opal-mining region. Where before the law required that each miner negotiate terms individually with the local aboriginal tribe before a mining lease would be granted by the state, now miners can follow the procedures laid out in the ILUA.

While the government of Queensland could not release the details of the agreement, people familiar with the deal indicated that the terms are similar to Queensland's Statewide Model ILUA. Under the Statewide Model ILUA, native tribes with claims on an area appoint a committee to represent them, which must be notified in writing of any proposed exploration or mining activity. The committee then conducts an inspection of the area. If it has no objections to mining taking place, an exploration permit may be granted, and the miner is required to pay an annual fee to the tribe for the use of the land.

The Winton ILUA is just one piece of the messy puzzle that is "native title," the legal concept that aboriginal peoples of Australia are entitled to land they traditionally occupied or were connected to.

Miners hope that the new land agreement will jumpstart opal mining in the Winton area. TOP PHOTO: Carisbrooke Station in Winton. Queensland photos by Peter Lik, courtesy Tourism Queensland.

Native title was first established by Mabo vs. Queensland (No. 2). The case was brought by a man named Eddie Koiko Mabo from Murray Island, in the Torres Strait off Queensland, who sought to get legal land rights for the indigenous inhabitants of the island. The case made its way through the legal appeal system to Australia's High Court, which in 1992 ruled in favor of Mabo. In the process, it overturned the legal concept of terra nullius, which held that Australia was a "no man's land" prior to British settlement.

Native tribes can only register claims on public land — areas where native title "has not been extinguished," according to the judgment — but the decision threw thousands of applications for mines, farms, and other land use into limbo.

In 1993, the Commonwealth passed the Native Title Act to clarify the issue of who had title to what land and how to go about settling claims, creating the National Native Title Tribunal (NNTT) to carry out the Act. Although the legislation was intended to help, it created a bitter legal morass as lawyers, politicians, and representatives of industry and aboriginal tribes fought over details such as how to verify a native claim; how to identify a native site (burial ground, scarred trees, stone arrangements, paintings, etc.); what type of leases are covered by the act; and who will pay for it all.

"The effect on opal mining was devastating. The government stopped issuing mining leases and exploration permits. Opal mining needs this process working well, as a mining lease may only last weeks or months before the miner wants to move on," says James Evert of Boulder Opal Enterprises in Winton. Evert represented the Queensland Boulder Opal Association in negotiating the Winton ILUA.

Boulder black opal from Australia.

The Native Title Act is "an act written by lawyers for lawyers. It's become an industry within itself," says Brian Hennessy of Hennessy Mining in Quilpie, another town along Queensland's opal mining belt. "We've been working on an ILUA [in the Quilpie area] for six years. I'd like [to have] the money wasted on it."

In 1998, the Native Title Act was amended to allow for ILUAs, which are voluntary agreements between the native claimants and those seeking leases. As of May 2002, 44 ILUAs had been registered in Australia, 26 in Queensland, according to the NNTT.

20.05-ct. Australian boulder opal. Opal photos courtesy ICA and Mariora.

In 1999, to relieve the backlog in applications, the Queensland government approved an agreement between opal miners and native title claimants to allow some 30 to 40 leases in the Winton area. This was a precursor to the Winton agreement approved on June 13, 2002, which was the first ILUA of that scope made in Queensland.

"This [ILUA] agreement is one of a kind in Queensland, as it caters to small miners who would not have been able to cope with the process if taken on as individuals. The agreement is up and running," Evert says. "Miners will now get back to work and exploration will go into full swing, so the future looks good for the Winton region."

"There's light at the end of the tunnel," says Kevin Phillips, president of the Queensland Boulder Opal Association. The past few years have been difficult for Queensland's boulder opal miners, who operate throughout 100,000 square kilometers (38,000 square miles) in the Outback of western Queensland.
"Since native title legislation was introduced seven years ago, the mining industry has gone from 300 crews to roughly 60 professional miners, because of the inability of the state to provide tenure. The miners cannot get legal access to the land," without taking up processes under the Native Title Act, all of which are time consuming and very expensive for small-scale miners, says Phillips.

Approval of the Winton regional ILUA is good news, but it is only a start. "It only covers 10 percent of the area that needs covering in Queensland," says Phillips. "Still over 90 percent has to be covered." The boulder opal association is working on 10 more ILUAs right now, and he hopes to cover the entire opal mining area reasonably soon.

However, many boulder opal miners still resent the law for tying their hands. Queensland considers itself the birthplace of the Australian opal industry, with centers in Winton and Quilpie.

Boulder opal was discovered in Queensland in 1869, and the market was revitalized in 1967 with the introduction of modern mining techniques. But the industry has shrunk as much as 70 percent in the past few years.

Miners all over Queensland, including the Yowah region, have been fighting for land rights. Photo: Peter Lik, courtesy Tourism Queensland.

The lack of new leases is only one reason for the slump. Opal miners have trouble getting financing; opal mining is still largely a speculative, high-risk investment because the origin of opal is still unclear.

"Opal miners find it difficult to demonstrate consistent financial success due to the nature of opal exploration and mining; therefore banks are often unwilling to provide financing," says Damien Cody, managing director of Cody Opal (Australia) Pty. Ltd. in Melbourne, Australia. "The existing mining areas are being depleted as a result of continued mining. Prospecting for viable new mining areas is hampered by the minimal scientific knowledge of the genesis of opal. Potential new fields have not been worked as a result of the unreasonable delays associated with the negotiation of native title agreements with the indigenous people. These factors, together with increased costs, new environmental requirements, and new taxation issues, have resulted in fewer miners working mining leases."

While it is a relief to finally have a process for negotiations, many boulder opal miners complain that the Native Title Act has put the financial burden on them.

"The mining tenure applicants must pay for the native title claimant group's expenses, from travel to the cultural heritage inspection," says Phillips. "The tenure holder must also pay a land use fee, or rent, to the native title claimants."

"The onus is on the miner. The miner has to pay for the inspection. A significant site can be anything under the traditional custom they deem to be significant," Hennessy says.

Some opal miners also question the motives of some aboriginal claimants.

"A lot come from the city, and haven't had a connection in over five generations. Some wouldn't know what they're looking for; they've been integrated into Western culture," says Phillips.

The Native Title Act also unfairly burdens less populous parts of the country, like most of Queensland, which are largely pastoral and thus subject to native claims, while other areas, like the populated eastern seaboard, are on excluded land, says Hennessy.

One weakness of the law, he continues, is that even after the ILUA is set up, another claimant can appear and lay claim to compensation, requiring a change in the agreement. "So basically, you can make an agreement and next year, some group can make the same claim and you have to make a new ILUA."

Federal officials with the NNTT are pleased with the progress being made. In a formal statement, NNTT president Graeme Neate said: "Much of the fear and apprehension that was evident in the faces and the language of many non-indigenous people in the early days of native title has gone as people realize that the recognition of native title occurs alongside the ongoing recognition of their rights and interests."

In the meantime, miners like Maxwell Lane of Clifton Opal Property Ltd. in Queensland are glad to get back to work. Lane's application for a mine at Opal Creek, west of Longreach, will finally be reviewed under the Winton
regional ILUA.

"It's quite a good agreement, the one in the Winton area. There is a moderate and fair amount of compensation to indigenous land owners." He estimated that compensation might be a "couple hundred Australian dollars. Not a great deal."

The Winton ILUA means a "huge increase" in available boulder opal and will be "the catalyst to have other agreements," Lane said.

"This is a good thing. There's been a shortage of material. There's still an enormous amount of unfound opal area in western Queensland. The likelihood one will find boulder is huge. We have six full-time cutters cutting boulder for us; the availability of any land to mine is very attractive. . . . The market's been strong, but supply is weak. With more supply, the market's even better."

What is Native Title?
Native Title is the term used by Australia's High Court to describe the common law rights and interests of Aboriginal and Torres Strait Islander peoples in land according to their traditions, laws, and customs.

The High Court Mabo decision in 1992 reversed a longstanding legal fiction that the continent was terra nullius — a land belonging to no-one. For the first time, the common law rights in land of Australia's indigenous people were recognized.

Since the Mabo decision, there have been a number of other decisions which have developed the common law principles of native title. For example, the Wik decision held that the grant of a pastoral lease did not necessarily extinguish native title. In the Fejo decision, the High Court confirmed that freehold title completely extinguished native title.

Native title law is still developing and there are a number of fundamental issues which remain to be finally settled by the courts. These issues concern the nature, scope, and extent of native title and the principles regarding the extinguishment of native title.

What is Reconciliation?
Reconciliation is a term which refers to a process whereby Aboriginal and Torres Strait Islander peoples, non-Indigenous Australians, and the nation of Australia can forge a new relationship based on mutual understanding, recognition, and respect.

The Reconciliation process began in 1991when the Commonwealth Parliament voted unanimously to establish the Council for Aboriginal Reconciliation, which set a 10-year timeframe to advance a national process of reconciliation. The Council's formation was an acknowledgment of the past and ongoing failure of government policy to recognize and address the cultural, social, and economic needs of Indigenous Australians.

On 27 August 2002, the Australian Senate passed a motion requesting the Senate Legal and Constitutional References Committee to inquire into national progress towards Reconciliation.

What is an Indigenous Land Use Agreement?
Indigenous Land Use Agreements or ILUAs are a type of agreement given formal recognition and status under the amended Native Title Act 1993. The agreements are between native title holders or claimants and other interested parties about how land and waters in the area covered under the agreement will be used and managed in the future.

Links to More Information on Native Title

National Native Title Tribunal
The National Native Title Tribunal of Australia assists people to resolve native title issues. The Tribunal is an Australian Commonwealth Government agency set up under the Native Title Act 1993. The site provides information about the Tribunal, native title applications, the future act processes, indigenous land use agreements, mediation and other information related to native title.

Australians for Native Title and Reconciliation
A national network supporting the rights of aboriginal and Torres Strait Islander peoples in Australia. It coordinates a major community education and awareness campaign on native title and reconciliation.

Attorney-General's Department, Native Title Division
Responsible for the formulation and provision of policy advice to the Federal Government on native title and for assisting the Attorney-General in the administration of those parts of the Native Title Act 1993 that are not administered by the Minister for Immigration, Multicultural and Indigenous Affairs.

Native Title Services
Native Title Services (NTS) was created as a specialist area within the Department of the Premier and Cabinet in 1998 as part of the Queensland Government's strategy to address native title issues.

The Indigenous Land Corporation
The Indigenous Land Corporation (ILC) is an independent Commonwealth statutory authority which was established in 1995. The ILC assists indigenous peoples in Australia to acquire land and manages indigenous-held land in a sustainable way to provide cultural, social, economic, or environmental benefits for themselves and for future generations.

Native Title Representative Bodies
Bodies established and authorized under the Native Title Act 1993 to represent indigenous people in particular regions. They are responsible for providing professional native title services to their clients in an effective and equitable manner.

Australians for Native Title
Australians for Native Title is a non profit alliance of individuals and groups which has been formed to provide a focus for ordinary Australians to express their support for the High Court decision on Native Title.

Native Title Research Unit
The Native Title Research Unit identifies pressing research needs arising from the recognition of native title, conducts relevant research projects to address these needs, and disseminates the results.

Australian Local Government Association
A federation of associations in each of Australia's six States and the Northern Territory and the Government of the Australian Capital Territory. The Association's task is to add value at the national level to the work of State and Territory Associations and their member councils.

Reconciliation Australia
Reconciliation Australia is the body established to provide a continuing national focus for reconciliation following the end of the Council for Aboriginal Reconciliation in December 2000. the independent non-profit body which provides a national focus for the process of reconciliation between Aboriginal and Torres Strait Islander peoples and the wider Australian community.

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