Aboriginal Law Bulletin
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by W. J. Gray
I propose to consider whether there are likely to be further developments in the field of land rights during the next two decades and if so, some of the potential effects that those developments may have on the mining industry. As a first step, it is pertinent to consider the developments which have occurred over the past decade.
A little more than ten years ago, Mr Justice Blackburn handed down his findings in the now historic Gove Land Rights Case (Milirrpum v Nabalco Pty. Ltd. and the Commonwealth (1971) 17 FLR 141). He found that the doctrine of communal native title was not a part of Australian law and that Aboriginals held no proprietary rights to land recognisable under Australian law.
At that time the vast majority of what was then deemed to be Aboriginal land was set aside as reserved land owned and managed by either the Commonwealth or various State Governments. The Aboriginal communities living on those reserves held no title to the land and had a very limited voice in the administration of that land and in the management of their community affairs. At that same time, the Aboriginal people held freehold title to land totalling some 100 square kilometres on a few former reserves in South Australia. Ten years later that situation has changed dramatically.
Aboriginals and Torres Strait Islanders who represent approximately 1.2 per cent of the Australian population, now hold title in one form or another to approximately 533,000 square kilometres, of which approximately 470,000 square kilometres is held under inalienable freehold title. If one adds some 214,000 square' kilometres set aside in Western Australia and Queensland as reserves for Aboriginals, the total of 'Aboriginal land' in Australia represents some 9.7 per cent of the total land area.
In the Northern Territory a total of sixty land claims have been lodged with the Aboriginal Land Commissioner. To date the Minister has announced decisions on nine claims, resulting in the granting of 106,000 square kilometres under inalienable freehold title. Further, there have been sixty properties purchased on the open market by the Aboriginal Land Fund Commission and now the Aboriginal Development Commission.
It is clear that Aboriginals have become significant property owners, partiuclarly in the Northern Territory and in South Australia. As such, they exercise powers which not only allow them to control and manage their own affairs in a way hitherto unparalleled since European settlement, but they exercise an influence over the political, economic and social affairs of their respective areas in a way which few of us would have contemplated ten or even five years ago.
Obviously the developments which I have outlined have not occurred in the absence of public support. The Commonwealth Government has proceeded in the firm conviction that a substantial majority of Australians support thesedevelopments and support the need to respond to the legitimate concerns and demands of Aboriginal Australians for a secure and dignified place in Australian society. The Commissioners conducting the Ranger Uranium Environmental Inquiry gave eloquent expression to this view:
We deem it to be a matter of the highest national interest that those many Aboriginal people who currently live less than what they themselves regard as dignified and purposeful lives should be given every possible encouragement and assistance to improve their position. It now seems accepted, and the Land Rights Act is a manifestation of the policy, that self determination is a path to that end, and that relationship to land is central to the attainment of the necessary confidence and purpose and self esteem.[1]
It is not only the Commonwealth Government which considers it necessary to respond to the Aboriginal desire to be given secure tenure over land and the opportunity to manage that land.
In Queensland, legislation has recently been enacted which provides for the vesting of title to Aboriginal Reserves in Aboriginal Councils elected by those who live on the Reserves.
In New South Wales, the Government is committed to the granting of land rights and has promised legislation giving effect to that commitment by the end of this year. The only indication of what form the granting of land rights might take in that State is the intention made known by the NSW Government to transfer approximately 109 square kilometres from a State-wide elected Land Trust to several locally-based Aboriginal bodies. In other words, the NSW Government would transfer freehold title now held by one Aboriginal body to a number of others.
In Victoria, the newly elected Government has indicated a willingness to receive submissions from Aboriginal bodies on the question of land tenure in that State.
Late last year the Western Australian Aboriginal Advisory Council formed a subcommittee to examine Aboriginal land matters in that State. It is intended that the sub-committee should follow up its examination with a report to the State Minister for Community Welfare.
And in South Australia, one-tenth of that State has recently been transferred under inalienable freehold title to the Pitjantjatjara people living in the north-west of that State. Other reserves in the South of the State were previously granted as freehold to an Aboriginal Land Trust.
Clearly there have been radical changes during the past ten years. Such changes demand re-adjustments which some sections of the community find difficult or even painful. But that in itself is no reason to suggest that the changes should not continue.
In the formulation and administration of its policies the Government is subject to advice from all quarters. The role of Government in this context is to achieve a balance between the competing interests involved - a balance that is perceived by the wider community as being equitable. As an example of its endeavour to achieve such a balance, one can look to the Federal Government's Aboriginal Land Rights (NT) Act 1976 now operating in the Northern Territory. It is no secret that there continue to be groups, including the Australian Mining Industry Council (AMIC) and Aboriginal groups, who view that legislation as unfair in respect of their interests. In other words, they believe that an equitable balancing of interests has yet to be achieved.
It is inevitable that there will be groups who believe that any balance struck by the Government between competing interests will be unsatisfactory and who will feel less than satisfied with their position. Compromise, which after all is what striking a balance is all about, requires of the parties concerned an acceptance that their original demands will not be fully met. Needless to say, this does not prevent continuing representations being made by those groups in an endeavour to secure a balance which they consider to be more advantageous to their own interests.
The most recent example of such representations can be seen in the campaign launched by AMIC directed at achieving amendments to the Aboriginal Land Rights (NT) Act favourable to the mining industry. Although AMIC would say that there has been no campaign, the advertising and urging of a public debate on some of the more central elements of the Act are certainly perceived by the public as a campaign.
The AMIC campaign addresses four specific points. They are:
As to the first point, the issue is not so much one of time limits but rather a need for some certainty as to how much land in the NT will become Aboriginal land held under inalienable freehold title. This particular issue is currently being addressed in negotiations between the Commonwealth and NT Governments, and the Aboriginal Land Councils in the NT. These negotiations have been progressing over the past twelve months and have now reached a point where we believe a consensus can be reached which could result in certain amendments to the Aboriginal Land Rights (NT) Act which would limit the amount of land available for claim under the legislation. Both the Commonwealth and NT Governments believe that it is by this process of negotiation that progress can best be achieved and it is by this process that any adjustments to the Aboriginal Land Rights (NT) Act should be made. The launching of the AMIC campaign late last year did little to assist that process of negotiation and placed the talks in some jeopardy.
The second point made in the AMIC campaign, that of inadequate land claims procedures, relates to the notion of detriment. The problem is one of interpretation in-that the Land Commissioner has taken the view that in considering the extent of his powers to comment on 'detriment', he does not consider that power to extend to mining interests. This matter has now been placed before the High Court.
As to the last two points - inappropriate right of veto over mineral activity and inappropriate compensation rights - I can only repeat what the Commonwealth Government said at the time Mr Barry Rowland Q. C. was commissioned to inquire into certain aspects of the legislation. It was made clear at that time that the review would not go to the central principles of the legislation. The Government holds the view that the question of veto, or as we would prefer to state it, the right of Aboriginals to withhold consent to mining activities on their land (subject to the national interest) is a basic principle and is not about to be amended. Similarly, the rights given to Aboriginal people under the Act to negotiate the terms and conditions, including payments, which are to apply in respect of exploration or mining on Aboriginal land is also considered by the Government to be a principle which is not about to be amended. The political reality is that this Government has no wish to turn back the clock.
As an additional comment on the AMIC viewpoint, I want to refer to the concerns expressed by AMIC regarding what it describes as the 'enormous sums of money' which may accrue to relatively small numbers of Aboriginals as a result of agreements concluded between Aboriginals and mining companies. This concern is not unlike those expressed by some who have voiced a fear that we will soon see the Aboriginal equivalent of oil sheiks living in certain areas of the NT.
The Commonwealth is concerned to see that communities rather than individuals benefit from mining agreements and it is actively involved in determining the terms of distribution of royalty type payments and any additional payments agreed upon by the parties concerned. The Government has made it known to parties negotiating agreements that any financial benefits agreed upon should be distributed so as to ensure that the principal payments are directed toward community purposes rather than per capita payments. The Minister for Aboriginal Affairs is in a position to withhold approval for an agreement if he is not satisfied with the proposed agreement's distribution clauses or if he is dissatisfied with other proposed terms or conditions.
In passing, it can be noted that arguments against compensation based on a concern over the potential receipt of large sums of money by small groups of Aboriginals would be more convincing if those advancing such arguments were to express a similar concern about the enormous sums of money flowing to certain individuals who have had the good fortune to be in a position to exploit legal interests which they, like the Aboriginal groups in question, obtained pursuant to the laws of this country. Arguments based on such selective concern run the risk of being treated both by Governments and by the public as self-serving and without merit.
Given the changes that have occurred in the past decade in the field of land rights and the changes that are in train, one can safely assume that the next decade will continue to see significant changes in this field. The extent to which these changes will affect the mining industry will depend very much on the extent to which provisions designed to regulate mining on land held by Aboriginals are to be incorporated into any legislation that the States may enact. It is the Commonwealth view that there is advantage in having such provisions incorporated into legislation, not only for the Aboriginals but in the interests of the mining industry as well. Whilst those provisions need not necessarily be the same as those provided under the Commonwealth's legislation in the NT or under the SA legislation, it is clear that where provisions are included in legislation, there is no doubt as to the ground rules. As a consequence, the relationship between Aboriginals and miners is likely to allow a more cordial and co-operative spirit to exist, leading to smooth and uninhibited development.
However, in the event that such provisions are not provided within legislation, the Commonwealth is of the view that there will continue to be a need for guidelines which have been agreed upon by the industry, Aboriginal communities and Governments - guidelines designed to provide for resource development on land in which Aboriginals have an interest so as to ensure that the interests and concerns of those Aboriginal people are properly considered and protected.
The more enlightened companies have already seen the need to establish and develop good working relationships with Aboriginal communities in the more remote parts of Australia. To proceed with development in those areas without taking account of the needs and expectations of those people is to invite conflict and delay in project development.
A statement by a senior executive of Petro Canada with regard to the need to secure good working relations with local indigenous communities is relevant:
People are no different anywhere, they want to know what is going to happen to their neighbourhood and find out how this activity may affect their community. Unless local people are informed about industries' intentions to do work in their region, consulted about acceptable levels of impacts in the items mentioned above (social structures, culture, economy and service infrastructure in the local communities) and direct lines of communications are established, the industrial proponent will likely face tension, apprehension and mistrust. In many cases, this state of affairs has created negative attitudes and even opposition by local people towards industrial projects. Aside from creating a poor working relationship between industry and the people of the surrounding area, which is both unpleasant and unnecessary, negative public reaction can lead to project cancellations, delays, and work slowdowns resulting in significant economic loss to the project proponent and, indirectly, to the region involved.[2]
The Commonwealth has been most encouraged to see both the AMIC and the Australian Petroleum Exploration Association move to develop guidelines for their members which have as their objective the establishment of good relationships between Aboriginals and those undertaking exploration activities on land in which Aboriginals have some interest. They are guidelines which are seen by the Commonwealth Government at least, as a significant step toward the acceptance of a set of guidelines or standards which will be adopted and agreed upon by all parties concerned. The Commonwealth will continue to pursue with the States and Aboriginal communities, and with the mining industry, the development of acceptable guidelines to provide greater certainty for those involved in exploration work (regardless of which State or Territory they may be operating in) and a greater degree of security for the Aboriginal people affected.
We can safely predict that following the radical changes which have taken place over the past decade, there will continue to be significant changes in the field of Aboriginal land rights over the next ten years. Precedents have been set in various parts of Australia which encourage not only the Aboriginal people but the majority of Australians to believe that similar rights for Aboriginals to obtain secure tenure to land should be given in those parts of Australia where security of tenure is yet to be achieved. Governments will respond to the persistent and articulate representations now being made by the Aboriginal communities and I would suggest that in ten years time, a significantly larger area of land will be held by Aboriginal people (under one form of title or another).
These changes will bring with them the necessity for the mining industry to take even greater account of those Aboriginal interests affected by exploration and mining developments. They may also give rise to problems of adjustment which may well generate some conflict and tension between some sections of the community. But with the good will of the wider Australian community and a genuine desire on the part of Governments to find that elusive balance between the competing interests, equitable solutions can be found and agreed upon by those involved. No doubt the AMIC will continue to play a very significant part in the search for that balance. The sooner that balance is achieved in all States the sooner will Australia as a nation move in confidence to the year 2000.
(This is an edited version ofa paper delivered by W. J. Gray on 4 May 1982 in Canberra to the AMIC Minerals Outlook Seminar, Australia in the World to the Year 2000.)
[1] Australia. Ranger Uranium Environmental Inquiry, Second Report, AGPS, 1977, p. 323.
[2] Bowie, Douglas B. Unpublished paper: Incorporating Environmental and Social Concerns into Petroleum Industry Management: The Petro Canada Experience. 21 March 1979.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1982/47.html