Hughes, John --- "Water Rights Special - Croker Seas Pearl Farming Agreement" [2004] IndigLawB 8; (2004) 5(29) Indigenous Law Bulletin 21

• Croker Seas Pearl Farming Agreement
• Agreement With Pearler

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Croker Seas Pearl Farming Agreement

by John Hughes

On 18 November 2003 the Croker Seas native title holders entered an agreement allowing for the establishment of 3 pearl farms in separate parts of the Croker Seas.

The pearl farm proponent had applied for the right to occupy 3 areas of sea-bed, in the form of Crown land leases for aquaculture[1]. Over the same areas, the native title holders have various rights governed by their traditional laws and customs, including rights of access to and across the waters, and non-commercial fishing rights[2].

The proponent also required licences, under the Northern Territory (NT) Fisheries Act, to conduct pearl oyster aquaculture in these areas[3]. Fisheries licenses would typically be associated with vessels moving from place to place as they seek out schools of swimming fish. Such fishing does not ordinarily obstruct others from using a particular area of sea for any significant period[4].

In contrast, pearl farming involves long term occupation. Cables, known as “long lines”, are anchored and buoyed horizontally, a metre or more below the sea surface. From each long line a score or more of ropes hang downwards. About 20 net bags or pockets are attached to each rope and these contain the oysters being farmed.

Oysters depend for food on underwater currents: these change with the season, and cultivated oysters are relocated accordingly. Consequently each Crown lease area must be considerably larger than the area occupied by long lines at any one time.

Although the native title holders are not excluded from any part of the Crown lease areas, and may continue to enter and use resources in a traditional manner[5], underwater structures will at least inhibit their exercise of native title rights.

In their negotiations, the Croker Seas native title holders had the advantage of a recent judicial exposition of their position under the Native Title Act, and the cohesiveness of a group which had only recently marshalled for Federal Court hearings. As traditional Aboriginal owners of adjacent coastal land under the Aboriginal Land Rights (Northern Territory) Act 1976, they had previously made an agreement giving access across their freehold land to some other pearl farms.

However this new agreement does not provide for dry land access and much of it was negotiated before the native title determination[6]. The group of Aboriginal people who negotiated this new agreement were also the most affected members of the “public” for land planning and development purposes. The purpose of this article is to emphasise the importance of an early involvement in the planning process, and of an understanding of the relevant industry sector, rather than to discuss particular procedural rights under the Native Title Act 1993 [7] or other Federal or NT legislation.

When a government planning authority considers a development proposal, it must usually consider the views of the “public”[8]. As local residents, the native title holders largely constituted the local community most affected for this purpose, and members of this group made direct submissions to the planning authority, raising specific individual environmental, access and amenities concerns. To answer and accommodate these concerns, the planning authority was heavily reliant on the technical knowledge of the NT Fisheries Act regulator.

Fisheries regulators are used to seeking public comment, for example when drafting fisheries management plans[9]. However fishing industry lobby groups holding specialist knowledge tend to have the advantage over other members of the public, and there is a risk that the interests of the vessel-based fishing industry, and of pearl cultivators, may crowd-out the interests of other members of the public.

One role of the Northern Land Council (NLC) was to obtain and provide the native title holders with advice on fisheries and environmental matters, as part of liaison between the native title holders, the proponent and the NT Government. For example, long line anchors can drag across the sea bed, and might damage nearby sea-bed sacred sites: custodians of sacred sites must be completely satisfied regarding the safeguards against this. The NLC project officer was able to supply advice on various anchor designs, which enabled the native title holders to focus their scrutiny of the proposal.

New planning and land use proposals are necessarily tentative and unspecific at the beginning, and the government must usually work creatively with the proponent to deal with new issues as they emerge. In this case the pearl farm proponent needed to identify and test water currents before finally settling on the areas to be farmed. With such issues, the local Aboriginal community in a remote area can act as a resource to government and the proponent in finding solutions. In return, both will tend to be well-disposed to accommodating matters of concern to that Aboriginal community.

A major expansion of the cultivated pearl industry has occurred during the era of developing native title, and this industry probably has a particular need for close relations with affected Aboriginal communities. The company that initiated the proposal was already dealing with other Aboriginal communities on this basis, and during the negotiations it entered an association with the large MG Kaillis group of companies, which operates pearl farms in Western Australian waters and advocates cooperation with coastal native title holders[10]. Representatives of the proponent attended several NLC-organised meetings with native title holders over several years, clearly working to build local personal relationships which will augment the more recent contractual one. As a result of these meetings, the proponent made direct agreements which amounted to an adjustment of its formal proposal. For example, the proponent agreed not to use part of its Crown lease area which is particularly near a residential out-station.

The practical effect was that, when procedural native title rights came to be considered, the proposal had already been tailored, by direct agreement with the proponent, to meet many of the native title holders’ main concerns.

This contrasts with situations where a native title group must respond, within rigid time-frames, to a fully developed proposal with little advance knowledge. Formal procedural time frames often do not allow family and estate groups the time they need to reach internal and joint consensus. Requests for formal amendments may be met with impatience. Yet to develop a take-it-or-leave-it proposal also usually takes a long time, which the native title holders might have used to deal with their concerns if invited into the process early.

Agreement with Pearler

The formal outcome of the native title holders’ efforts is an agreement directly with the proponent of the pearl farm, and consent to the grant of the necessary Crown leases. The agreement confirms specific understandings which the native title holders reached over time with the proponent. Aspects of the agreement include:

• The pearler will farm in consultation with native title holders, and gives environmental and community undertakings which go beyond what fisheries legislation and the Crown lease terms require.
• The pearler will favour local Aboriginal employment. Pearl farming has surprisingly high labour needs. Although it is expensive to bring employees to a remote area, local Aboriginal employment is rare in the NT pearling industry. Because of this, the NLC is also developing a capacity for remote area training and mentoring.
• The pearler will pay an agreed sum annually, to be taken into account as compensation for interference.
• The native title holders will delegate representatives to attend regular liaison committee meetings to resolve potential problems between the pearler and the native title holders as they arise, to make recommendations about employment and other management issues, and the pearler will meet travel and related costs of these meetings.

The ongoing liaison committee of native title holders and pearl farm managers will have an informal atmosphere. It aims over time to adjust pearl farm operations in response to new land use issues, in a way that recourse to strict legal rights would not achieve. Both parties need this flexibility, because new farming techniques are still being developed, and because local Aboriginal people have other commercial land use aspirations for the area.

John Hughes is a legal officer with the Northern Land Council.

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[1] These are issued pursuant to the NT Crown Lands Act and NT Fisheries Act s 55.

[2] Yarmirr v Northern Territory (1998) FCR 533 at paragraph [161].

[3] Under NT Fisheries Act, aquatic life may not be farmed without a licence. The Director of Fisheries may issue a licence relating to aquaculture subject to appropriate conditions. The licensee must at all times be in the vicinity of and maintain physical control of each farm, and must comply with the licence conditions, the Fisheries Regulations, any special regulations relating to aquaculture and the relevant management plan.

[4] In relation to Fishing Act licenses generally, Olney J. said:

As such licences do not grant exclusive rights to the licensees, they can in no way affect the non-exclusive native title rights of the applicants nor do such native title rights entitle the applicants to exclude fishing licensees from entering the waters of the claimed area.

Yarmirr v Northern Territory (1998) FCR 533 at paragraph [157]

[5] NT Fisheries Act section 53.

[6] Yarmirr v Northern Territory (1998) FCR 533, decided in 2001

[7] The Crown lease grants are future acts with regard to “offshore places” for the purposes of sub-section 24HA(8)

[8] In this case, the grant of Crown land leases for aquaculture involved subdivision of land, for which public submissions must be considered under NT Planning Act Part 7.

[9] See, eg, NT Fisheries Act Part III, which requires public consultation and contemplates advisory committees drawn from, among others, members of the general public.

[10] Speech of Professor George Kaillis at the Native Title Fishing Conference, Fremantle, 27-28 October 2003.