Aboriginal Law Bulletin
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Aboriginal Law Bulletin |
|
By Stuart McGill and G J Crough
Report prepared for the Department of Aboriginal Affairs, February 1986
Reviewed by Tim Rowse
The times are perverse when a Labor government has planned to weaken land rights conferred on Northern Territory Aborigines by a previous Coalition government. Stuart McGill and Greg Cough, have produced a bizarre study for the Department of Aboriginal Affairs.
Ostensibly Indigenous Resource Rights is an attempt to give a comprehensive international view of the fight for, and use of land rights in Australia, Canada and the United States. It begins with a description of North American legislation and of the revenues that Indians and others can derive from strong title. Then the authors describe the operations of 105 mining company members of the Australian Mining Industry Council (AMIC). The intended effect of these two studies is not clear at first as there is no Introduction or Conclusion stating a unifying argument. However, I discern a political logic within this ramshackle and hasty construction, a logic disturbingly appropriate to the Minister and Department of Aboriginal Affairs.
The Report begins with a welcome emphasis on the practical rather than the symbolic. The authors point out that the absence of the concept of indigenous sovereignty from Australian law does not affect, technically, the practicality of giving Aborigines resource rights similar to those of the sovereign US Indians. Canadian Indians do not enjoy sovereignty either, but some of them have better resource rights than Australian Aborigines. Sovereignty is important to US Indians in one material respect however; it includes the power to tax, (recently upheld in the US Supreme Court), a power used in renegotiating unsatisfactory agreements.
Their information about Canadian law and politics is skimpy. In much of Canada-British Columbia and parts of the North West Territories-indigenous resource rights have still to be resolved, we are told. Why? The authors don't say. For Indians south of the 60th latitude the Indian Act of 1876 and the Indian Oil and Gas Act contain regulations prescribing 'very favourable royalty rates' (p. 211 and allowing for extensive consultation with 'bands' throughout the formulation of an agreement with a miner. These bands enjoy absolute veto power.
In the United States three Acts are important; the Indian Reorganisation Act of 1934; the Indian Mineral Leasing Act of 1938; and the Indian Mineral Development Act of 1982. The 1934 law gave tribes powers 'to prevent the sale, disposition, lease or encumbrance of tribal lands'. The most recent Act improves on some features of the 1938 law: as well as lease agreements there now can be other forms of Indian involvement in ventures; tribal codes replaced statutory regulations as the rules binding on miners; and direct negotiation by tribes replaces competitive bidding by miners as the means to determine financial returns to owners.
The authors' information about owners' income from mineral exploitation is confined, in the Canadian case, to the presentation of statutory rates for those Indians whose resource rights are not in doubt. We need also to know about negotiated royalties, and about the vetoing of projects altogether. For minerals other than petroleum, statutory royalties are 5% of the value of output; for petroleum the rate is between 50% and 65%, depending on total quantities and the age of the project.
We are told more about the United States. Statutory royalties under the 1938 Act are: 12.5% of the value of petroleum; approximately 10% of the value of other minerals, and 10 cents (US) per ton for coal. However, these are minimal, and have usually been exceeded, or old agreements renegotiated, under threat of Indian taxation-the 'second generation agreements'. Projects for the extraction of coal and petroleum, the only minerals currently extracted on Indian land, include: the deal between the Blackfeet and Damson Oil (2/3% royalty, and 50% of net profits); the Amax Inc/Colville Confederated Tribes contract, which pays the tribes set amounts during the first five years and then annually, as well as-amounts geared to Amax Inc's revenue from the project; the Navajo's renegotiated agreement with Utah, raising the royalty from an effective 1.8% on gross sales to 12.5%.
Look at what you can get, the authors seem to be saying, when you have got the muscle. The authors assume the reader is fully acquainted with land rights and royalty legislation in Australia, and with the levels of locally negotiated royalties. They do not undertake a systematic comparison of the three nations. Their work thus lacks a consistent analytical framework. But in the second half of this report, a study of the AMIC, a political perspective emerges: the North American conditions that they have described take on the significance of exemplary instances of agreements with indigenous people, and of the standards of behaviour to which mining companies should always aspire.
But first a summary of the relationship between the current federal government and the AMIC. The AMIC has campaigned effectively against land rights in Australia. The ruin of the mining industry would follow if governments emulated the Aboriginal Land Rights Act of the Northern Territory, said the AMIC in its advertising and disinformation kits. By persuading the Burke government that the Western Australian electorate was worried about Aborigines owning so much of the state's resources, the AMIC was spared the expense of a long national campaign, for Hawke backed down from applying federal pressure to Burke. While other Premiers threatened High Court action and prohibitive compensation charges for lands legislated into Aboriginal freehold. In March 1986, the ALP's national land rights policy was abandoned.[1] The Hawke government has promised to compromise with compulsory arbitration the veto powers enjoyed by some Aborigines in the Northern Territory; their veto embarrassingly exemplifies what the ALP promised to Aborigines throughout Australia. The Minister for Aboriginal Affairs now claims any State government concessions to Aborigines, no matter how paltry, as a triumph of his leadership and federal diplomacy.
There has been hardly any confrontation between the federal government and the mining lobby. The miners have continued to wield power through their influence over the governments of the resource-dependent States, and the States have never been pressed to adjust their land use policies to the Commonwealth's avowed policy on land rights. After a few sad attempts to justify this States' rights version of a 'national policy', Mr Holding has chosen silence. It is not edifying for a lame duck to quack. From this silence has emerged the Report under review.
McGill and Crough single out 23 corporate groups relevant to Aborigines and describe their mining activities in Australia and overseas.
Eleven corporate groups (embracing 59 member companies of AM IQ are characterised as having no apparent North American experience in dealing with indigenous people. The other twelve are said to be more seasoned. They are subsidiaries (in most cases) of foreign companies that have had dealings with North American indigenous people with real statutory powers to negotiate. The authors' argument is that we can expect the attitudes and ideologies of the second group) embracing 46 AMIC member companies) to make them more ready to negotiate with Aborigines. They have done it overseas and they know that it will not ruin them to do it again here. Alternatively, they can be shamed into doing in Australia what they have done in North America.
There are two conceptual difficulties with this argument. Firstly, the authors write of corporations as having 'attitudes (see p. 76). based on their experiences. [think this likens corporations too much to individuals. Companies have policies. Policies are not necessarily always rational from the point of view of the company interests, but policies differ from 'attitudes' in the conscious beureaucratised and collective nature of their construction. 'Attitudes', as I understand the term, are the more spontaneous attributes of individuals, with unconscious roots. Transnational corporations do not have integrated personalities; they are very good at differentiating their policies according to the varying legislative and political constraints under which they operate, as I am sure the authors would agree.
Secondly, in discussing mining it is perhaps not the company or the corporate group that we must consider. but the consortium or partnership. The authors point out that 'all the Australian companies which do not have direct North American experience are involved in joint ventures with some of the large transnational corporations which have experience on indigenous land in North America' (pp. 43-4). If joint ventures must have common policies, then the historically based attitudes for ideologies or policies) or individual companies or corporate groups are secondary to the common approach worked out for each project by discussion among the parties to the joint venture. And that joint approach will have much to do with the laws binding their investment, and may have little to do with the previous experience of any particular company.
So it may be impossible to divide corporations into two discrete and comparable groups with 'Northern American experience of indigenous groups' as an unambiguous differentiating factor.
The authors sometimes use an alternative, though similar, distinguishing feature: the 'foreign-controlled transnational mining groups' and the rest. This categorisation re-allocates BHP (an Australian-owned corporate group with experience of North American indigenous people) but it has the merit of being easier to specify empirically. We can examine the record of various companies in negotiating royalties with Aboriginal owners. It is strange that the authors present no systematic data on Australian mining agreements in their profiles of the two categories of twenty three corporate groups. Fortunately Jon Altman and Nic Peterson have published some relevant data on eight non-statutory royalty agreements negotiated between 1963 and 1983.[2]
GEMCO (1.25%)
ERA (1.75%)
QML (2.0%)
Pancontinental (1.5%)
North Flinders Ltd (2.0%)
Nabalco (nil)
Magellan (1.5%)
Note: Figure in bracket is negotiated royalty.
In a variety of legal environments the Australian firms have yielded slightly better negotiated royalties to Aborigines than have foreign firms. Royalties are not everything. but by this measure the authors are wrong in fact to support the folklore that foreign-owned companies, by virtue of their dealings with indigenous people overseas, are better for Aborigines to talk to.
Are Australian companies more vociferous than foreign companies in campaigning politically against land rights? Perhaps. But that may be more a matter of tactics than belief. The authors' Appendix Four shows that of the the twelve members of the AMIC's Aboriginal Affairs Committee, four were representatives of foreign firms. The Committee's campaign strategy bound the entire AMIC membership, most of which 172 of 133 member companies) is foreign-controlled.
Not only is there no evidence that the AMIC can be divided into two ideologically distinct camps. one of which can and should be favoured by Aboriginal negotiators, there is danger in characterising negotiating situations by reference to the supposed attitudes of the mining groups. There is a much more important variable, which McGill and Crough seem to take for granted: the legislated rights of indigenous negotiators. It is astonishing how little this factor is mentioned in their profiles of mining companies who deal with, or might soon deal with, Aborigines.
'Deal with' is a phrase which they use elastically to cover all expressions of interest in Aboriginal land, even if it includes miners dismissing Aboriginal attempts to negotiate, or choosing freely which Aboriginal people to talk to. Had the authors written their profiles with the question of the legal basis of negotiations in mind they might have tested empirically the theory that the stronger the Aboriginal land title. the better the deal for Aborigines, irrespective of the experience and attitudes of the companies. Instead we have an essay on corporate 'attitudes' which is either inconclusive or wrong. The authors even start to preach to mining companies. leg, pp. 45. 51. 551 to adhere to the 'international standards' of agreements influenced by strong North American title. Throughout the Report the one subject that is never discussed with any detail or insight is the legislative basis of Aboriginal land rights!
Differences in indigenous land rights WITHIN nation states are at least as important as the differences in rights BETWEEN nations, as an analysis of their Tables 1 and 2 shows. Governments can do much more to redress the former than the latter. But the Hawke government has embraced a doctrine of federalism which retreats from this task. Instead Mr Holding has issued a Report which, on the basis of a poorly evidenced empirical argument, exhorts and postures about the differences between nations, and urges mining companies to act more honourably, and urges the minority of Aborigines with powers to negotiate to favour 'good' companies over 'bad' ones, The political analysis in this Report is as weakas the political will of the government that commissioned it. The well-meaning and knowledgeable authors have done work which is little more than a morbid symptom of the government's abandonment of land rights policies.
[1] I have described the themes of the AMIC campaign in 'Land rights. mining and settler democracy'. Meanjin, 1986/1.
[2] It is characterised of the evidentiary wobbliness of the Report that on P.92 Pancontinental is said to be paying a royalty of 5.75% True, but all important fact is that 2.5% is a statutory royalty; 1.25'% was to be paid to the Commonwealth; and 2.0% was the royalty negotiated with the Northern Land Council. It is the possibility of negotiating a royalty, and its size. which surely distinguishes between agreements. from the viewpoint of Aboriginal owners. See I C Altman and N Peterson 'The case for Aboriginal access to mining royalties under land rights legislation', Centre for Economic and Policy Research. Discussion Paper 89, February 1984, ANU. (Also published in Australian Aboriginal Studies. 1984, 2.)
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1986/54.html