Aboriginal Law Bulletin
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by Bryan Keon-Cohen
On 8 March 1982 the then Federal Minister, Senator Baume, announced his decision on this claim. Pursuant to recommendations by the then Commissioner, Toohey J. two areas of vacant Crown land claimed in the Alligator Rivers Region, 2S0 km- east of Darwin, would be granted to an Aboriginal Land Trust pursuant to the NT Act. The land granted comprised two blocks totalling 400 sq km. near the Kakadu National Park. The land borders onto Stage I of the Park and includes most of the Jabiluka uranium project area. Hence the need for the Jabiluka developers, Pancontinental Mining Ltd., to negotiate terms and conditions of development with traditional owners (see below).
No decision has been made, however, concerning several other blocks also claimed. These areas include blocks the subject of applications for mineral leases by Peko-EZ. The reason for the delay in deciding these claims is that Peko-EZ has applied to the High Court for a ruling on the notion of 'detriment' caused to others (Aboriginal and non-Aboriginal alike) by the granting of a claim. That case should be heard in June 1982.
Traditional Aboriginal claimants (now owners) of the East Alligator Rivers region have approved the development of Australia's biggest uranium mine, the $600m Jabiluka project in the NT's Kakadu National Park. In the first weekend of March, negotiating teams from Pancontinental Mining Ltd. and the NLC (which represents traditional owners) initialled terms of agreement concerning the project. Pursuant to the consultation requirements of the NT Act, the agreement was then returned to the traditional communities involved for discussion and final approval.
Jabiluka is 250 km. east of Darwin and is the richest of four deposits in the uranium province. It has an estimated lode of 200,000 tons of ore. Pancon. has estimated the life of the mine at.25 years; that it will produce uranium worth $18,000m in total; would earn about $600m in export dollars annually; would provide more than 600 jobs; and even if uranium became worthless or unsaleable or both, gold deposits mixed in the ore body will ensure a profitable venture. Clearly, this is no ordinary contract which traditional owners are now being asked to approve.
The approval process, however, has been delayed, in response to what appears to be all-too-familiar pressure tactics. Readers of the Legal Service Bulletin will recall the very severe pressures applied in 1978 by the Prime Minister and the then Aboriginal Affairs Minister, Ian Viner, to the traditional owners concerning the Ranger uranium mine (see (1978) 3 LSB 225). History appears to be repeating itself. As to Jabiluka, one traditional owner Big Bill Neiji, has reportedly written to the NLC complaining: 'Everyone is pushing us, pushing, pushing. Now they want us to sign but they don't understand what it means to us'.
On 30 March, matters came to a head when traditional owners refused to talk further with the NLC until the end of May. In this situation, it should be recognised that the NLC itself may face a conflict of interests in that it is in large part, funded from mining royaltties.
This difficult stand-off has not been assisted by the sudden publicising in the Australian press of the financial details of the agreement. Why this information - still considered confidential to the parties, and with the agreement still not approved by traditional owners - should be released at this time, and by whom, remains pure speculation. The following are the reported details:
Royalties: 4.5 per cent plus $500,000 p.a. for the first 10 years; 5 per cent thereafter.
Payments: $1m on Ministerial approval of project; $800,000 over 4 years to cover NLC administration costs; $1.2m after sale of 3000 tons of yellowcake for each 5 years; $1.2m p.a. for 3 years beginning 12 months after approval of agreement; and $3.4m on commencement of production of uranium ore.
Considered in the light of the overall project finances mentioned above, these payments appear minimal. The sacred site clauses, as reported above, represent a significant innovation in Aboriginal resource development agreements, and possibly the first time that Aboriginal mythology has been the subject of what will doubtless eventually become a duly executed and legally enforceable contract. Not having seen the whole of this agreement, it is difficult to comment further, but it must have been an interesting drafting exercise to build Aboriginal mythology into a commercial agreement and not be in danger of having that clause deemed void for uncertainty, and thus unenforceable! Is 'sacred site' defined in the agreement, and if so, how?
A land rights hunger-strike by David Anderson, an executive officer of the South Eastern Land Council, appears to have had some impact upon the Victorian Government. Anderson, camped in the Treasury Gardens not far from the Premier's office, has demanded the return of all Crown land to Aborigines, or if such land is not available, cash compensation.
At the opening of Parliament on 27 April, the Government announced its intentions so far as Victoria's Aborigines were concerned, in a single sentence: `Legislation will be introduced to grant land rights at Framlingham to the Aboriginal people.' On 23 May, with Anderson's hunger-strike in its thirteenth day, the Premier Mr. Cain announced that legislation would be introduced to vest freehold title to the 1,089 hectare Framlingham Forest near Warrnambool in the local Aboriginal community. The Bill would be brought down late in June. Dr Coghill, the Premier's assistant on Aboriginal Affairs, indicated that title would go to the two thousand strong Gunditj-Mara community, and that a Council would oversee administration of the area.
However Anderson continued his hungry vigil, demanding of the Premier a reform timetable and the appointment of a task-force to document claims and compensation cases.
On 16 April, Dr Coghill had announced that the government would negotiate a series of land rights Acts giving freehold title to Aborigines. These would be granted on the basis of traditional association with, or need to occupy, specified areas. However with Anderson losing weight outside the Premier's window, the Government now seems to have changed direction concerning this general legislation. On 23 May the Premier further announced that his Government would introduce general land rights legislation based on the Federal Woodward Reports (1973 and 1974) and the NSW Keane Report of 1981. This second Act will apparently introduce a land claims procedure before an as yet unspecified body or tribunal. This is a very different prospect to `negotiating a series of Acts'.
One might reasonably ask: what sort of land transference scheme is to be introduced in Victoria? Will there be land claim procedures before a tribunal a la Toohey J. in the NT? Or will there be negotiated settlements enshrined in legislation a la James Bay in Canada and Cobourg Peninsular in the NT? Further, why are these critical decisions apparently being made on the basis of reports dealing with other jurisdictions, different conditions, different needs, and one (Woodward) being ten years old? A Victorian land rights inquiry is needed.
One Victorian land claim which the new legislation may have to deal with, and an example of the difficult clash of interests that urban claims generate, has recently surfaced in bayside Mordialloc, a south-eastern suburb of Melbourne. A local historian, Tom Sheehy, has researched and discovered an 1866 Surveyor General's map which shows 640 acres marked as `Camping ground for Aborigines'. Following white settlement, this camping area was occupied by the Boonoorong people, and other displaced tribes. The mixed community was dubbed `the Mordialloc Tribe'. The Boonoorong tribe's traditional territory is said to have extended from the Yarra River to Gippsland and from Port Phillip to the Dandenong Mountains north of Melbourne. Mr. Sheehy reports that the Boonoorong people declined from about five hundred in 1834 to extinction in 1877. Alcohol and introduced diseases were largely responsible. Chinese workers and fishermen seeking living-space also took their toll.
It seems officialdom has a different story. A Crown Lands Department historian, Mr. Spreadborough, is reported to have denied that the land in question was ever gazetted as a reserve. According to him, it remained Crown Land but was set aside for the purpose of the Protector of Aborigines (a government official) and camping was permitted.
The area is now occupied by, inter alia, the Mordialloc Sailing Club and High School, a public park, a hotel, and dozens of foreshore homes. (Mordialloc-Chelsea News, 14 April 1982).
Doubtless there is much more to the Boonoorong story than this meagre outline. But classic questions are already raised which the Victorian land rights draftsman will have to face if Aboriginal demands are to be met. For example, need a descendant of the original tribal occupants be found before a claim can be brought? What is the impact in law (if any) of various Government acts upon Aboriginal title, acts such as the creation of an Aboriginal 'reserve' or `camping ground'? Does original native title, as existing prior to 'discovery and settlement' in 1788, survive? If so, is it extinguished or continuing? If cash compensation is to be granted as an alternative to land, how is this to be quantified, distributed and administered? As to the other parts of south-eastern Victoria which the Boonoorong people traditionally occupied, upon what criteria might a descendant now seek to prove traditional rights in that land? And what about the Mordialloc sailors?
The Mabo Tortes Strait Island litigation (see p.l above) is designed to provide authoritative answers to a number of these difficult questions. At the moment in Victoria, there is no binding judicial answer - though it seems the legislature will soon provide one. It is noted that as regards such urban claims, there is no Australian legislative precedent. The closest precedent arose in 1975 when Interim Land Commissioner Ward J was appointed to consider urban `needs based' claims to areas of Alice Springs and Darwin. This was before the NT Act was implemented.
In recent times, Victorian Aborigines have laid claim to further areas including Coranderrk Cemetery near Healesville, Ebenezer outside Dimboola, Lake Condah near Heywood, the Barmah Forest, Lake Boga and the Collingwood tip.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1982/32.html