A public stoush has developed over native title laws and housing in Western Australia.

CLAIMS by the West Australian Government that native title legislation will block it from building new houses were false and misleading, Aboriginal and Torres Strait Islander Social Justice Commissioner Tom Calma said today.

WA Treasurer and Housing Minister Troy Buswell yesterday blamed native title for holding up housing under a $496 million Indigenous housing funding agreement with the federal government.

Buswell said the government was blocked from building homes in many areas because to do so would extinguish native title. "Building new dwellings on new footprints, we simply can'y do that until we resolve this native title issue," he told The Australian.

But Calma today refutes the claims: “The Native Title Act does not block the building of homes for anyone - Indigenous or non-Indigenous,” he said.

“In fact, the Act provides a number of mechanisms the WA Government could utilise if it wishes to build homes on land where native title exists or is claimed. The future acts regime in the Native Title Act sets out what procedures the WA Government needs to comply with if it wants to build infrastructure," Calma said.

Calma said the government also has the option of negotiating an Indigenous Land Use Agreement, which it said doesn't have to require the surrender or permanent extinguishment of native title.

"Such an agreement can also provide for what will happen if there is any future building on the land, and can provide guidance on any compensation to be paid for any impairment of native title rights and interests.”

Commissioner Calma said these mechanisms were two of the key purposes of the Native Title Act and were established in recognition of the significance of native title rights in providing the Traditional Owners with a way to protect and manage their rights and interests.

“As I understand it, the WA Government has already started negotiating an Indigenous Land Use Agreement template for the provision of housing,” Commissioner Calma said. “And I would urge them to continue that process.”

The $496 million funding agreement was agreed to under the COAG National Partnership Agreement on Remote Indigenous Housing in November last year. It was followed in March with a commitment from Indigenous Affairs Minister Jenny Macklin that the Partnership Agreement would initially focus on 26 priority locations across Australia. Three priority locations in WA were subsequently announced as Fitzroy Crossing, Halls Creek and the Dampier Peninsula.

But Commissioner Calma noted that the precise locations for the houses the WA government refers to have not yet been identified. “Without knowing where the houses will be built, it is very difficult for the Land Council to identify what native title issues arise."

He condemned the government for blaming native title legislation instead of focusing on identifying the intended locations for the housing and to continue with its commitment to negotiating with the Land Council.

Commissioner Calma said that while the federal government’s discussion paper, released today, discusses how to amend the future acts regime in the Native Title Act to fast track the building of houses in the specified communities, he said all governments should seek agreement with the affected communities about housing rather than simply following the minimum procedural requirements.

“All Australians have a right to housing, but Traditional Owners should not be asked to give up their native title rights and interests for free, nor have them unilaterally taken away in exchange for that housing.

“We wouldn't accept this for those living in the inner suburbs of Perth or Sydney, so why do we expect it of remote communities across Australia?”