Aboriginal Law Bulletin
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Aboriginal Law Bulletin |
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by Alastair Walton
I sit
on a
man's back
choking him
and making
him carry
me and yet assure myself and
others that I am sorry for him
and wish to lighten his load by
all possible means - except by
getting off his back.
- Leo Tolstoy, What Then Must We Do? 1886[1]
The following article is an account of the recent Western Australian land rights issue and how it may effect Aboriginal aspirations for ‘justice’ Australia-wide.
There was no question of deja vu when Bob Hawke, as the drover's dog, herded the Australian Labor Party into Federal Parliament in March 1983. It was Gough Whitlam to Paris and a teary-eyed Malcolm Fraser to Nareen. So it was in the seventh issue of the Aboriginal Law Bulletin, April 1983, that the Editorial articulated the question on everyone's lips at that time, "May we expect a new deal under Labor?"
The Editorial followed that question with an exposition of the ALP's policies and concluded with the following statement, "The challenge for Labor now is to turn these promises into reality". Now just less than two years later and it seems the gauntlet has been and may continue to be too heavy for the Hawke Government and for the various state Labor Governments.
The Queensland Chair of the National Aboriginal Conference, Mr. Steve Mam, said that "we are now offered less under the Hawke Government than we were under the previous Liberal Government". (The Age, 2.2.85). Mr. Bob Riley, the Chair of the NAC, has said, "the Prime Minister can be easily manipulated by vested groups involved in mining, whatever the costs of Aboriginal and human rights generally".
The style in which the Hawke Government has approached contentious policies should have been seen as a warning to those who believed the Five Principles, on which the ALP policy for Aborigines revolves (see AboriginalLB 7), would see the light of law. It now seems, after the "recent whirl of politicking" (The Age 1.2.85), that 1985 will be a decisive year for Aboriginal land rights and affairs.
On the agenda for 1985 Aborigines can expect the Western Australian land rights package in February, the Commonwealth's uniform land rights bill in August, a promised restructuring of the NAC, the Victorian Government's Aboriginal Affairs deal, the Customary law Report from the Australian Law Reform Commission for mid-year (see the interview with Commissioner James Crawford last issue), and a possible review of the Northern Territory and Pitjantjatjara legislation. Overall it is a year that promises to be contentious.
The W.A. bill has become the political focus of land rights and Aboriginal affairs and therefore what flows out from W.A. will affect other Aboriginal related reports or legislation.
On 22nd January, 1985 the Premier of Western Australia, Mr. Burke, flew to Canberra to articulate his position on the expectant land rights legislation for his state. From the outset it was clear the right of a veto to mining on Aboriginal land, amongst other points, was not in the ambit of negotiation, as far as Mr. Burke was concerned. Mr. Burke admitted that he realised his stand was against federal ALP policy, but "he insisted that he did not agree with that policy." (The Australian 23.1.85).
From this unenvious start to the proceedings, the Federal Minister for Aboriginal Affairs, Clyde Holding, had to represent Aboriginal interests before the Prime Minister, Bob Hawke, Mr. Burke, and the three Western Australian Federal Ministers - the Defence Minister Mr. Beazley, the Trade Minister Mr. Dawkins, and the Finance Minister Senator Walsh. Recent press releases, however, have highlighted the fact that Clyde Holding, along with the Prime Minister and Mr. Burke, had issued a press statement explaining that the veto of mining was not to be included in the W.A. legislation.
The result was no different after the meeting than before it. The Australian wrote, "the federal Government caved into the West Australian Premier, Mr. Burke, on Aboriginal land rights, effectively destroying the chances of uniform federal legislation". (24.1.85).
Overall the W.A. package is:
All the above points run counter to the philosophy and policy of the federal ALP.
The Australian Financial Times (24.1.85) stated, "Mr. Burke's plans are clearly music to the ears of the mining industry".
Conspicuously, the music is not just a disposable pop song but a symphony orchestra in full flight for Mr. Keith Orchidson, the executive director of the Australian Petroleum Exploration Association, who welcomed the decision as "one of the most important things that's happened to our industry in the last decade". He continued, "Mr. Burke has broken new ground. To break from the party platform is a major victory." (The Australian 24.1.85).
For a week after the cave-in the bats flew between Clyde Holding and Mr. Burke, with allegations of "lies" being put forward by Mr. Burke. In an attempt to calm things down the Prime Minster confirmed the Canberra meeting's decisions and the general philosophy of the Western Australian bill.
In mid-January a gathering of Western Australian Aboriginal organisations discussed the bill and subsequently denounced it. Before the meeting had taken place however, Mr. Burke and Mr. Ernie Bridge, an Aboriginal State ALP Member of Parliament, circulated a tactical news release. This release had Ernie Bridge claiming most Aborigines did notwant a veto of mining as part of the land rights package. (The Australian 10.1.85). This opinion is in conflict with the Western Australian Seaman Report; a million dollar "Aboriginal Land Inquiry" headed by Paul Seaman, Q.C., which was unceremoniously dumped by Mr. Burke when he realised it contained unfavourable recommendations.
The Report states: "the Aboriginal written submissions reflected a strong anxiety to say whether or not granted land should be explored, or be mined or have oil extracted from it ... Virtually all those written submissions were to the effect that Aboriginal people should be compensated if their use of the land was affected by mining, and benefit if there was mining or oil extraction."[2]
The Seaman Report also had the following to say about mining on Aboriginal land:
My assessment is that there is no compelling reason why, in the interest of the broader community, Aboriginal communities should be afforded control over mining or petroleum activity on Aboriginal Land.[3]
As well this following ironic note castes a shadow over the intentions of the Western Australian Government:
I have no doubt that it (cabinet) will guard very carefully against permitting the mining and petroleum industries to dictate social policy through their own concerns.[4]
In addition, to compensate for the minimal coverage given to the content of the Seaman Report, the following indicates the ramifications and general philosophy behind the bill, as it now stands:
The mining industry submissions ... reveal only one principle to me: That the mining industry wishes the Government to exercise its power over its minerals so as to give mining interests paramountcy over Aboriginal interests in land, and for that matter most other interests in land.[5]
The Aboriginal right to veto mining, control of mining and exploration operations and negotiations are being portrayed as totally unreasonable by Mr. Burke (as well as by Bob Hawke and the three W.A. federal Ministers, let alone the Libs/N.P. and mining lobby). However, as discussed by Garth Nettheim in the last issue of the AboriginalLB.-
... not all landholders do lack a veto on mineral exploration and mining.. Furthermore, powers of Aboriginal communities to veto mining activity or to negotiate terms are likely not to be absolute - they are not absolute under the two most far-reaching Acts, the Aboriginal Land Rights (N.T.) Act, 1976 (Cth.) or the Pitjantjatjara Land Rights Act, 1981 (S. A. ). Furthermore, the record shows that Aboriginal communities are not likely to veto mining provided that they have some effective say in where and how it takes place and a reasonable share of the profits. It was the federal government, not the traditional owners, that blocked further uranium mining in the Northern Territory. (AboriginalLB 11,2).
In addition, the myth that Aborigines would be gaining powers of veto that are not available to other Western Australians is dispelled by the Seaman Report which states:
For the last eighty years, the reaction of the broader Western Australian community to the threat of mining on private property has been clearly reflected by the State's mining legislation. The great majority of Western Australians have the power to control whether or not mining takes place on their land by virtue of provisions of the sort now enacted by Section 29(2) of the Mining Act 1978.[6]
Furthermore, as it stands the Western Australian Minister for Mines has the power to refuse to approve any form of Aboriginal land grant, under section 16(3) of the Mining Act (W.A.) 1978.[7] This Act is a legacy of the Court Liberal/National Party Government.
To portray Aborigines as a people unable to understand or be responsible in relation to matters of 'development' or mining is false. It shou ld be noted that ironically "many of the valuable mineral deposits in northern Australia were first discovered by Aborigines in the 1940's and 1950.[8]
The economic position of the mining industry in Western Australia is undoubtedly strong and important. It is the State's dominant activity with a production of minerals valued at $3,334 million in 1982 and $453million spent on petroleum exploration in 1983.[9] However, the concept of 'national development' that is bound to the idea that Australia is a 'quarry' for economic exploitation can be balanced with several points. Firstly, in 1975 R.F.X. Connor, Minister for Minerals and Energy, created some controversywhen he suggested that tax practices in the mining industry had enabled that sector to receive large Federal subsidies while making no overall tax contribution.[10] Secondly, in the Fitzgerald Report (The Contribution of the Mining Industry to Australian Welfare) it was argued again that the tax minimisation practices of the mining industry had resulted in a marginal contribution to Australian welfare.[11]
However, Mr. Burke believes, as a consensual moderate, that policies must be practically applied and the "rights that have been established by people in the last 200 years" protected. (The Australian Feb. 9,10.85, p.19).
Land rights denial can be seen as a product of "consensus" politics. This process of con sentire is one which deliberately evades basic conflicts of principle. Eventually it is a matter of forgetting or transforming principle. Decision making has been led by 'loud opinions' such as the half million dollar advertising campaign launched in Western Australia by the mining lobby. Also present in the final judgement is the 'silent majority' contained in the opinion poll, that is the politics of pragmatism. With the inclusion of the Aboriginal people, a triangular relationship can be presented. First there is the mining interests (national and transnational), then secondly 'public interest' or 'public opinion' as the authority of 'Government' and 'Governing'. Together these two points form a binary front, consistently concurring on the 'unanimous sacrifice' of the Aboriginal peoples' aspirations located on the third plane. The human and political economic rights of the Aborigines established over 50,000 years, are denied as the desires of the other characters takes priority in the appropriation of land, wealth and development.
The danger in W.A. legislation being passed without alteration is in the possibility that it could act as a national model for uniform land rights legislation. National legislation is marked for August according to a report in the Australian newspaper (5.2.85). However, Mr. Burke is using this time limit as a strategy to force the state's upper house, the Legislative Council (controlled by the Liberal opposition), to pass the 'moderate' bill. Mr. Burke is projecting an expectation that national legislation could be more sympathetic to the Aborigines (which at this time is doubtful) and therefore the Liberals would 'lose out' to a much greater degree.
Robert Tickner, former head solicitor at the Redfern Aboriginal Legal Service, and now ALP member in the Federal Government believes:
The Aboriginal issue crosses factional lines in the ALP. There is a groundswell to introduce party policy. The Government has made an irrevocable international commitment. Clyde Holding was in Geneva last year and with the full knowledge and consent of the Prime Minister he gave a commitment, to the United Nations Working Group of Indigenous People, that policy would be fulfilled. Implementation of the Aboriginal policies is morally non-negotiable. Unless carried out the Bi-Centennial celebrations will be totally discredited and will be the subject of international and national political protests.[12]
Some elements of the ALP are obviously accepting their responsibilities after continual recital of the 'Five Principles'. Furthermore, Aboriginal movements and organisations are vehemently opposing the W.A. bill, as well as Church groups and other sympathetic bodies. Mr. Burke has taken an intransigent stand and so he remains to be shifted by only a powerful force. As for the position lobe accepted by the Feeral Government, it already seems as though a tribunal system is planned for disputes concerning mining and conditions. There will be no direct veto capabilities for Aborigines and their disagreements will have to be co-ordinated and directed at another bureaucratic legal system.
[1] Quoted in a submission to the Special Committee by the Mayo Indian Band, Yukon. From Indian Self-Government in Canada, Report of the Special Committee, 1983. House of Commons, Canada. Issue No. 40.
[2] Seaman, Paul. The Aboriginal Land Inquiry, Volume One. Penh, Sept. 1984, para. 9.9, p.161.
[3] ibid, para. 9.51, p.180.
[4] ibid, para. 9.52, p.180.
[5] ibid, para. 9.12, p.166.
[6] ibid. para. 9.10, p.165.
[7] ibid, para. 9.20, p.169.
[8] Howitt, R. & Douglas J. ibid, p.46.
[9] Seaman, P. ibid, para. 9.22, p.169.
[10] Howitt, R. & Douglas, J. ibid, p.45.
[11] ibid, p.45.
[12] Robert Tickner was interviewed over the phone, when he called from a public telephone booth, in between his schedule during the MX missile debate.
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