McGill, Stuart --- "Letter to the Editor -- Indigenous Resource Rights and Mining Companies in North America and Australia" [1987] AboriginalLawB 4; (1987) 1(24) Aboriginal Law Bulletin 6

• Letter To The Editor Indigenous Resource Rights And Mining Companies In North America And Australia
• (1) Government Policy
• (2) Study Limited To North America
• (3) Object And Method Of The Report
• Impact Of The Report

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Letter to the Editor


Indigenous Resource Rights and Mining Companies in North America and Australia

Dear Ed,

I wish to respond to Mr Rowse's review of the Report entitled Indigenous Resource Rights and Mining Companies in North America and Australia, ([1986] AboriginalLB 54; 1(22)pg8). I am a co-author of the Report.

Mr Rowse's review seems to contain three main objections to the Report: (1) the influence of the Government's land rights policy itself; (2) the fact that the Report does not analyse Australian legislation and agreements; and (3) the Report's method and objective of grouping resource companies depending on their overseas experience. These objections can be easily refuted.

(1) Government Policy

Firstly, the outrage that we all feel at the Government's abandonment of its land rights policy is irrelevant to the content of this Report. Nevertheless, such considerations have clearly coloured Mr Rowse's judgement.

For instance, he says he 'discern(s) a political logic ... disturbingly appropriate to the Minister and Department of Aboriginal Affairs'. In this regard, it is hardly necessary to point out that the fact that an activity is funded out of the Aboriginal Affairs budget has no bearing on its quality. Otherwise, we should also immediately condemn both this Bulletin and a host of other programmes.

(2) Study Limited to North America

Secondly, leaving aside the Australian research and analysis that Mr Rowse might like to see carried out, this Report was about legislation and agreements in North America. Even then the time and money made available was very limited. The geographical limitation was explicitly stated in the second paragraph of the Introduction to the Report. To the extent that any background on Australia was immediately relevant for readers of the Report, there are only two things to know about the Australian situation. Those matters are whether Aboriginals should be able to prevent or veto mining, and how large should any royalties be. The only thing that it is necessary to know about those two matters is that they are issues in Australian politics. Despite Mr Rowse's objections, we felt safe in assuming that all readers of this Report would be aware of the fact that these two matters are in issue.

I shall dwell on one small detail to illustrate the fatuous nature of Mr Rowse's discussion of this and other issues. As a demonstration of the 'evidentiary wobbliness' of the whole Report, Mr Rowse seeks to argue that the negotiated royalty, rather than the statutory royalty, is what matters to Aboriginals. If for a moment we adopt Mr Rowse's terminology the statutory royalty is the base payment, onto which is added anything extra such as the negotiated royalty. This trivial point can be disposed of by noting that given that the base is a relatively constant amount, a royalty can be discussed either in terms of the negotiated royalty, or of the total amount of the royalties. Mr Rowse's comparison of agreements excludes the recent Amoco/ Pitjantjatjaraku agreement, as well as failing to capture the range of dealings and discussions that Aboriginals are now having with mining companies.

In addition, as I elaborate upon below, this aspect of the Report was a side-issue upon which the discussion was appropriately qualified (see p. 44). From the tone of his comments, it appears that resource nationalism was the unstated reason for Mr Rowse's convulstions at the qualified suggestion that Aboriginals may be better off dealing with foreign companies. However, given our colonising history, I don't think that it is reasonable to expect that Aboriginals should discriminate between foreign Whites and Australian Whites. If you can drag Australian companies up to better standards by talking to foreigners, then from an Aboriginal perspective, it may at least be good bargaining strategy. The Government may of course regulate foreign companies on behalf of all Australians, but that is another issue.

Incidentally, given my record of supporting traditional owner opposition to mining in Kakadu, it is totally unfounded for Mr Rowse to hint that the Report advocates negotiations rather than opposition. He suggests that the Report implies' look what you can get (in royalties) when you've got the muscle'. In contrast, one of the important points made by the Report is' this is what has been done in terms of opposition and negotiation, or both, when the legislative power is available'. That was one of the reasons why the first of three sections of the Report was devoted entirely to the veto power. Mr Rowse's convenient oversight is typical of some Leftists who condemn anyone who is prepared to admit to the fact that Aboriginals may choose to oppose mining in some or al l circumstances, or to negotiate on other occasions.

(3) Object and Method of the Report

Thirdly. I now turn to Mr Rowse's objection to the method and objective of grouping companies according to whether they have had dealings with indigenous minorities in North America. This task of categorisation was set out in the first sentence of the Report and the methodology legitimately enables such a division to be made on the basis of corporate experience. The objectives of this exercise were straightforward. First and foremost, it was simply to provide information on indigenous resource rights in North America. It was felt that this information would speak for itself and could be used as appropriate by Aboriginal organisations, policy-makers, and activists.

I pause, to note that a considerable amount of time allocated to the study went to locating and obtaining copies of the North American agreements so they could be widely available for later detailed use and analysis. It is unfortunate that the various land rights inquiries in recent years have usually never studied the North American situation, and certainly have not been in a position to provide information on the subject.

Although there are some passing comments in the corporate profiles about the motivations and interests of corporations, Mr Rowse has invented his own rationale for why the information was provided, and then spent much of the review making questionable criticisms of his own inventions. For instance, he attempts to draw a distinction between corporate attitudes and corporate policies. This is the first of his two 'major conceptual' points. I shudder to think what amounts to a minor point!

There was only one inference which we intended to be drawn from the information provided. I consider that inference can reasonably be drawn from the information and indeed I think the inference is sufficiently apparent from the tone and content of the Report. The inference that we intended was along the lines that the AMIC campaign was much ado about nothing as the companies were able to put up with a lot worse (from their point of view) elsewhere. In other words, given that indigenous resource rights are considerably stronger in North America, the companies don't know how well off they are in Australia. Despite this, given that many companies are aware of the nature of indigenous rights in North America, their hypocrisy is apparent in that many of the companies do in fact know that they are well of by international standards. Of course, these companies, and all the other AMIC companies, currently endorse the familiar anti-land rights campaigns. Nevertheless, it is relevant to note that there is disagreement among companies. according to our corporate sources, about whether to fight land rights, or to live with land rights. This division could be utilised by Aboriginal interests, if they so chose.

The second of Mr Rowse's major 'conceptual difficulties' with his understanding of the Report can be dealt with at this point. We pointed out that most Australian companies had joint venture operations with foreign companies and hence it was possible that the Australian companies had more knowledge of indigenous rights elsewhere then we estimated. Mr Rowse therefore attempts to argue that it is impossible to have any dual categorisation of the operating companies. This is another very weak argument. There is a qualitative difference between a company having its own operations in two different countries, and Australian companies simply having the opportuntiy to meet with foreign company personnel.

Impact of the Report

Finally, at the time that I wrote the draft of the section on North American veto rights, I was told that such a section was permissible because there was still the potential to influence the intra-party ALP debate about abolishing or qualifying the veto over mining. This was the issue of whether the uniform land rights legislation, which qualified the veto right, should be adopted. I have since been told by similar sources that the Report was a significant factor in the decision to drop the uniform legislation and at least to maintain the veto in the NT.

I am pleased to say that the provision of the information has therefore already spoken for itself in one forum, in circumstances where anything more than understatement would never have seen the light of day. It was ironic that once this information about the unqualified North American veto began to have an impact, I sensed a chill in my relations with some official circles. Spending my Sunday afternoon replying to Rowse's review is a different aspect of the same nonsense. I guess the AMIC onslaught will be next. I trust that AMIC will be more rational and scientific than Mr Rowse.

Stuart McGill