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Edition 36

Contents
Some Provocations

Mining the Mabo legacy


[1]AFTER WORLD WAR II, geologists and others (such as Lang Hancock) discovered a series of gargantuan ore bodies. These discoveries – iron ore in the Pilbara, bauxite in Cape York and Arnhem Land, for instance – heralded two developments in Australia: a vast expansion of industrial scale mining by corporations and conflict with local Aboriginal groups. Mining had a key social and economic role across the continent from the time of the ‘gold rushes’ of the nineteenth century, and played a part in the booms and busts from the 1890s onwards. Whereas gold mining had been largely artisanal with diggers pitching their tents in the anarchy of the early goldfields, a different scale of mining such as at Broken Hill starting in the 1880s and at Mt Isa from the 1920s, represented the beginnings of the corporate mining industry that is driving the mining boom today. In the nineteenth century and for much of the twentieth century, mine operators and governments paid little regard to the detrimental impact of mining operations on neighbouring Indigenous people. Indeed, governments often removed Aboriginal people from the areas of mining operations to allow their unimpeded establishment and continuing operations.

In 1963, events occurred at western Cape York that resulted in a campaign against a mining company that joined Aboriginal people with churches, unions and international groups to protest at the treatment of Aboriginal people. The Queensland police burnt down the houses and church of the Aboriginal community living at the Mapoon mission and forcibly relocated the residents to New Mapoon near the tip of Cape York. The official explanation referred to the rationalisation of missions in the region, but it was clear that the Queensland government’s intention was to remove the community to allow the unimpeded development of the bauxite mine at Weipa. This event had lasting implications for relations between the Indigenous people and newcomers to the region thereafter, and damaged the reputation of the mining industry. Several Aboriginal land councils were formed as voluntary organisations to prevent such occurrences and to obtain recognition of their rights to their traditional land, the North Queensland Land Council in 1977, and the Cape York Land Council in 1990.

Only an official apology by the Premier of Queensland and the successful negotiation of the Comalco Western Cape York Communities Coexistence Agreement in 2001 has overcome the legacy of the police operation at Mapoon in 1963. But this is to anticipate the advent of the recognition of native title.

Conflicts with Aboriginal people exploded in the 1980s.

Events in the Kimberley in 1980 at Noonkanbah also pitted the mining industry against Aboriginal people seeking to protect a sacred site when the Western Australian government ordered the drilling of the site by Amax Pty Ltd to pursue mineral exploration objectives. In 1978, elders and traditional owners established the Kimberley Land Council to obtain recognition of their rights to their traditional land and to prevent mining companies from proceeding without their approval. Again, an international campaign protesting the desecration of Aboriginal sacred sites damaged the reputation of the mining industry. There were other similar events during the mining boom of the 1960s and 1970s.

The standing of the industry changed. Whereas there had been few questions about the way the industry operated, and governments had encouraged the opening of new mining operations and exploration because of its contribution to economic growth, concerns were raised that caught the public imagination throughout the world as protests were delivered to national and international forums. A view of the mining industry emerged among its critics that forced the industry to rethink its relationships with Australian Indigenous people. The rights of Indigenous people, cultural heritage, environmental management, and the reputation of Australia as a first world nation with a fourth world underclass suffering at the hands of mining industry; all of these issues troubled those Australians who wanted a better deal for Indigenous people. Some in the mining industry and in government were sceptical about the purpose of what they saw as the ‘politics of embarrassment’, yet the incentives for the mining industry to build and maintain distinctive internal capabilities, such as the ability to handle and resolve social issues to maintain their mandate, grew, and this involved reconsidering their relationships with Indigenous people.

In the 1960s and 1970s, the mining boom and the removal of discrimination against Indigenous people and recognition of Aboriginal rights to land (such as in the Aboriginal Land Rights (Northern Territory) Act 1976), coincide. At that time, some leaders and lobbyists in the mining industry held that Aboriginal responses to the many proposals for exploration and mining were unreasonable because they were different from the conventional arrangements with land-owners and others impacted by the industry. The industry bodies of the day also insisted that Aboriginal objections to the rapid encroachment of mining operations into their domain was holding back economic development in Australia with the result that Aboriginal people were demonised in the industry. Gloomy investor forecasts contributed to the deteriorating attitudes towards Indigenous people. Some feared that a future of open-ended land claims by Aboriginal people would limit the expansion of the exploration and mining industry, and that the new land rights legislated for Aboriginal people would lead to unsustainable legal and financial consequences

When mining company employees began to explore the reasons for Aboriginal opposition to mining in the 1980s, they discovered that many Aboriginal groups were not opposed to mining itself, but were concerned about the racist and inequitable situation of the past being replicated and consolidated in new ventures.

It was widely assumed that Aboriginal people were making ambit claims for land and financial returns to which they were not entitled, and many in the mining industry treated Aboriginal objections to mining proposals with contempt. The State governments had dealt with Aboriginal demands in less than constructive ways that further held back the possibility of mining companies and Aboriginal groups talking about the issues constructively.

It became clear as communications improved that Aboriginal people were opposed to potential for worsening racial discrimination and abuse that so often accompanied mining projects imposed on them by State governments (such the Comalco Act 1957 achieved). Aboriginal people want guaranteed recognition of Aboriginal inherent rights and entitlements, and acceptable terms and conditions for their cultural, social and economic futures. It became clear also that the mining industry was the target of criticisms about these issues while Federal and State governments were escaped accountability for their responsibilities to provide education, training and health services in the areas where mines were operating.

At that time, the legislative framework that the mining industry relies on currently for consulting with Aboriginal people about mining proposals either did not exist in most States, and in the Northern Territory where the Aboriginal Land Rights (Northern Territory) Act 1976 had been introduced, the mining provisions had not been tested. At this time, the mining industry in Western Australia was expanding, with the Pilbara mining operations growing, CRAE exploring for diamonds in the Kimberley, and other companies exploring for uranium in the Western Desert.

Mistrust and fear on both sides had prevented clear communication of the issues. At that time, Indigenous people were poorly consulted about new proposals, and feared that their cultural heritage would be destroyed, the environment irreversibly degraded and that their rights and interests as traditional owners would be lost as leases and other interests were obtained over their traditional areas by companies. In making their objections, Indigenous people were fulfilling their customary responsibilities to ‘look after country’ and to protect and promote their cultural integrity and social vitality.

Aboriginal people had long been discriminated against in employment and training, and there was little evidence that companies would provide employment for local Indigenous people.

 

IT WAS THE Mabo decision of the High Court on 3 June 3 1992 that changed this history of conflict.

The twentieth anniversary of the Mabo decision in the High Court is upon us. In these two decades, I have been party to developments that I could not have imagined before that decision. Whereas Aboriginal objections to mining projects were the norm in the 1970s and 1980s, native title rights have been instrumental in bringing Aboriginal people and mining company personnel together to negotiate the terms of their engagement.

Mr Koiki (Eddie) Mabo, Mr James Rice and Rev David Passi, three men born on the Torres Strait Island of Mer (or Murray, in English), were joint plaintiffs in the cases referred to as Mabo No. 1 (in the Supreme Court of Queensland) and Mabo No. 2 (in the High Court of Australia.) They sought to have their native title in the island of Mer, or Murray Island, recognised at law[2]. In 1992, the High Court of Australia recognised native title as a form of customary title arising from traditions and customs.

While in most other settled colonies there were treaties with the indigenous inhabitants, Australia and Western Sahara were the notable exceptions to this practice. In Australia, the legal justification for this absence of treaties was set out in the decision by Justice Blackburn in the famous Yolngu case, Milirrpum v. Nabalco, another Aboriginal conflict with a mining company. Blackburn used the ‘ceded’ colonies (or terra nullius) doctrine set out in Blackstone’s commentaries published in 1832 to pronounce that Australian law could not and would not recognize their traditional rights to the land. By denying the primary cultural and economic resource of indigenous people, their land, the decision effectively ruled out any right to negotiate the terms of use or access, or to receive compensation for that use. The Mabo case overturned this legal fiction and established that customary rights to land had pre-existed and, under certain conditions, survived British sovereignty. Many of the common law principles of the judgement, including the extinguishment principle, were then codified in legislation, following many months of contentious debate and difficult negotiations between Prime Minister Paul Keating, state governments, mining, farming and grazing industry bodies and Aboriginal representatives.

On 16 November 1993, the Native Title Act was passed into Australian law. In the second reading speech of the Bill, the then Prime Minister outlined the intention of the legislation: ‘[to] make the Mabo decision an historic turning point: the basis of a new relationship between Indigenous and other Australians.[3] This proved to be the case, especially in relation to the outcomes of The Right to Negotiate, a key provision of the Act.

Since the proclamation of the Native Title Act 1994 (hereafter NTA) protecting the native title rights and interests that Mabo secured in the famous High Court case, there has been a proliferation of agreements with Australian indigenous people.[4] Though unanticipated at the time, the ‘Right to Negotiate’ and the provisions enabling the negotiation of Indigenous Land Use Agreements (ILUAs) passed in 1998, provide a formal place at the negotiating table for Aboriginal people whose newly won native title rights place them in a key position with companies seeking land access issues in the market economy. It also provides what the recognition of native title itself does not: a practical route to fungibility.[5] This may be the most significant legacy of Eddie Mabo, and the best opportunity to deliver economic opportunity for Indigenous communities. Despite a widely held view that native title has failed to live up to the expectations that followed the High Court’s decision in 1992, Indigenous Land Use Agreements (land access and impact benefit agreements) have delivered unprecedented social and economic outcomes for Indigenous communities, particularly in the case of resource projects.

 

ALONGSIDE THE MECHANISMS for the recognition and determination of native title, the NTA also legislated for future dealings on native title land. As discussed, the interests of mining companies were at the forefront of the debate around native title, and the legislation always envisaged that mining companies and the resource extraction industry would seek access to, and the use of, native title land. Thus, the 1993 legislation also defined a range of future government actions called ‘future acts’:[6] acts of government that would be permitted to take place on native title land, such as exploration, mining and compulsory acquisition by governments.

Whilst native title holders had no right to veto dealings on land held under native title, the NTA provided a right to negotiate the terms and conditions upon which land use and access could occur. This right provided an opportunity for Indigenous parties to sit at the negotiating table with government and miners, and – for the first time – negotiate the use and access to their land. As such, its impact is significant, because it reflects a practical reversal of the doctrine of terra nullius. Whereas that doctrine had denied Indigenous people access to the land market, the Right to Negotiate provided them a position in that market, providing opportunity for economic participation previously denied.

Today, approaches to formulating agreements are being developed across the country in both a formal and informal capacity. Existing structures and frameworks — including the NTA and the right to negotiate procedures - are being targeted as part of local and regional strategies aiming to carve out a place for Indigenous people in the regional polity and economy and to better facilitate effective governance structures.[7] In some instances, the processes put in place by an application for native title are now diversifying as Indigenous communities pursue an incremental capacity-building approach to local Indigenous governance structures, while at the same time engaging in strategic agreements with outside agencies and the private sector.[8]

As a result, these agreements have become more complex as Indigenous people and their representatives become more experienced with the scope of the legislation and because several of the large corporations have developed policies, approaches and programs to demonstrate corporate social responsibility on behalf of their shareholders. The rapid increase in the last two decades in the negotiation of agreements to formalise the relationship between companies and their Indigenous neighbours indicates the importance of this approach to securing the conditions for the social licence to operate that companies need to develop sustainability of their operations. The numbers, breadth of agreement types and subject matters of agreements made with Indigenous people is demonstrated by the data held in the Agreements, Treaties and Negotiated Settlements (ATNS) database.

At March 2012, there were 588 ILUAs registered with the NNTT. Between them, the ILUA provisions and the provisions for the making of agreements through the right to negotiate, have resulted in many thousands of agreements; agreements which amount to a bargain between Indigenous peoples and those over use and access to land. Twenty years following the Mabo decision and the rejection of the doctrine of terra nullius, this legacy is indeed profound. There are weaknesses in this statutory system of agreement-making, however, and there have been various proposals for addressing them. None have been adopted for a variety of reasons.

 

THERE ARE LIMITATIONS in the present legislative and policy framework for the development of an institutional environment that encourages diverse Aboriginal economic opportunities. While native title corporations are statutory institutions for the negotiation and related native title issues, they are largely excluded from functions relating to the commercial issues that agreements present. The lack of government investment in these mining provinces and the declining economic status of Aboriginal people draw attention to the matter of accountability that is referred to in the literature on the ‘resource curse.’[9]

With regard to the models for the distribution of benefits, one of the increasingly consistent features of ILUAs negotiated to secure access to resource extraction companies is the establishment of trusts to manage the financial benefits negotiated under the terms of those agreements. Their importance, not just as an example of good practice in financial management, lies in their potential to strengthen Indigenous governance.

However, as vehicles for Indigenous economic development (especially in the context of the extraordinary opportunities that mining projects offer for contracting and ancillary service provision), these trusts have had a mixed record. This is largely because of the limitations of the definition of ‘charitable purposes’ and the difficulty of using these trust arrangements to participate commercially in economic development initiatives. There are several outstanding cases of commercial enterprises initiated by trusts or native title groups using the native title benefits to forge a place for themselves in the Australian economy. Some 50 Aboriginal contracting companies are operating in the Pilbara at present, with financial annual turnover in the hundreds of millions. As well, there are joint ventures involving Aboriginal corporations and large contracting corporations and project management firms.

Mabo’s legacy is extraordinary, not simply because his High Court case overturned 200 years of dispossession of indigenous people around Australia, but also because it paved the way for the Native Title Act and the Right to Negotiate. By translating the recognition of their native title into tangible economic and social benefits for their communities, native title groups have achieved far higher levels economic participation and wealth creation. These are the two outstanding outcomes of Koiki Mabo’s successful legal challenge to the dispossession of indigenous people twenty years ago.

References

[1]   I am grateful to Alistair Webster of the Centre for Health & Society, University of Melbourne, for his assistance with legal research and fine attention to detail. All errors are mine.

[2]    This island is one more than a hundred in the archipelago stretching approximately 150km between the northern most tip of Australia and the south coast of Papua New Guinea. Coral cays, reefs and exposed sandbanks are scattered throughout the Straits. The archipelago was governed by The State of Queensland after annexation and legislation for that purpose was quite different from that which regulated the affairs of Aboriginal people on the mainland. The disputes over garden plot boundaries played a significant role both in their status under colonial and post-Federation Australia and in their land tenure traditions which were recognised partially under the Torres Strait Islander Land Act 1993, and at common law with respect to Mer or Murray Island following the Mabo No 2 case decided by the High Court. It was this extensive court record of land disputes that provided a wealth of evidence supporting their claim to native title heard first by the Queensland Supreme Court. Their rights in sea were similarly discretely demarcated as between the various groups, although these rights were not pursued in the Mabo case. It was this extensive court record of land disputes that provided a wealth of evidence supporting their claim to native title heard first by the Queensland Supreme Court.

[3]     Prime Minister Paul Keating, Second Reading Speech to the Native Title Bill, Hansard, House of Representatives, 16 November 1993

[4]   See the Agreements, Treaties and Negotiated Settlements website at: http://www.atns.net.au

[5] Fungible objects are defined by the Macquarie Dictionary as goods ‘of such a nature that one unit or portion may be replaced by another in respect of function, office, or use.’

[6]   S 226, 227 and 233, NTA; a future act is an act taking place after 1 January 1994 that either extinguishes native title or is wholly or partly inconsistent with the continued existence, enjoyment or exercise of native title rights and interests (s 223, s 227). Future acts may include the making of legislation (s 226(2)(a)), the grant or extension of a licence (s 226(2)(b)) or any other act with the capacity to extinguish native title rights or interests. Where a ‘future act’ is wholly or partly inconsistent with the enjoyment of native title rights and interest, the act is invalid unless a provision of the NTA provides otherwise. Part 2, Division 3 of the NTA establishes a regime for the validation of future acts. Within this regime, certain categories of ‘permissible future acts’ are outlined.

[7]   Strelein ‘Native Title in Law and Practice,’ op. cit.

[8]   ibid. See, for example, the joint venture between NRW Holdings Pty Ltd (a major project management firm) and the commercial arm of the Eastern Guruma native title group, Eastern Guruma Pty Ltd, to undertake earthworks and primary civil works at two Rio Tinto Iron Ore projects in the Pilbara– Brockman 4 project phase 2 and stage one of the Western Turner Syncline project.

http://www.perthnow.com.au/business/local-business/nrw-holdings-eastern-guruma-jv-wins-160m-rio-tinto-contract/story-e6frg2s3-1226046099910

[9]   See M. Langton & O. Mazel, The resource curse compared: Australian Aboriginal participation in the resource extraction industry and distribution of impacts and C. O’Faircheallaigh, Curse or opportunity? Mineral revenues, rent seeking and development in Aboriginal Australia, In Marcia Langton and Judy Longbottom (eds), Community Futures, Legal Architecture: Foundations for Indigenous Peoples in the Global Mining Boom, Oxon (UK): Routledge, (A Glasshouse Book), 2012: 23-44; 45-58.


From Griffith Review Edition 36: What Is Australia For? © Copyright Griffith University & the author.

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