Native title group launches legal action against western NSW government

Yolngu people on the ‘compact island’ at the heart of Broken Hill have launched a legal action against the NSW government

The Indigenous land use agreement known as the MZO was developed by the NSW government in 2015 and supported by the former Labor government and non-government organisations.

It allows land developers access to government infrastructure in exchange for meeting acceptable community conditions, such as community groups or Indigenous landowners having an advisory role on the project.

Map showing the location of Broken Hill’s MZO development. Illustration: Laura Upton.

But the Aboriginal Land Council said in court documents that the intentions of the government’s go-ahead were “to fast-track development over all other considerations, and to ignore the recommendations of Aboriginal groups, non-government organisations and elders on the local community, and even to ignore all local opposition to the [Massive Modernisation] proposal, including overwhelming opposition from the local Aboriginal community”.

Campaigners have also criticised the government’s decision to abolish the Broken Hill Modernisation Taskforce, a local community body that had evaluated the MZO and recommended the management area for the development be cut by 60%.

They also argue the Commonwealth development approval process needs to be reviewed.

“Without addressing the inadequacies of the negotiation process, particularly the procurement of specialist Indigenous negotiators for the organisation of the land use agreement, no appropriate Indigenous negotiators are likely to enter into any future land use agreements. The Aboriginal Land Council is therefore seeking a judicial review of the MZO process at the same time as the judicial review of the DDA,” the statement said.

“The MZO itself has to be rewritten in light of these substantive reforms. The whole process has also been thrown into confusion.”

The Native Title Act states the MZO is a declaration of an agreement between Indigenous people and the NSW government in relation to land use. The treaty commissioner, Professor Tom Calma, had recently said he believed Aboriginal groups were capable of negotiating land use agreements of their own.

In September, five Aboriginal groups in the MZO reached a compromise with the NSW government but decided to walk away from the MZO with the commissioner critical of the process they had reached.

This latest legal action is the most recent legal challenge against the MZO in NSW since the NSW government allocated $10m to fund negotiations and production of advice by two Aboriginal partners of the state.

In May the head of the state’s indigenous health commission, Neville Wran, said the MZO was “so flawed that we’re having a massive community review, but the protocol is left over from the last day of the previous government, not the new government”.

Government rejects calls to review deal with Turnbull government to fast-track housing on MZO Read more

In October, the DPI had no comment on the latest legal action, which is already being pursued in a second stage of litigation.

“On behalf of the MZO land use agreement, the NSW government strongly objects to the allegations being made in this application as alleged,” a DPI spokesperson said.

“On the basis of advice provided to the ministry that it is already under investigation, DPI has no further comment.”

In the first stage of action filed in the NSW Land and Environment court in February this year, the Aboriginal Land Council claimed the processes leading to approvals of the first section of the Massif Project on the MZO at the heart of Broken Hill had been flawed and led to the overruling of community concerns and advice.

On 18 September, the department defended its earlier approvals process and called on the court to dismiss the application for a full trial or alternatively had a matter bound over to consent.

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