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Annas, Marianna; Farley, Rick; Lofgren, Neil; Martin, Anne; Northern Land Council --- "Stirrings: A Reflection on the Constitution's Race Powers; The Authenticity Fable; Century Set to Go; Timber Creek Land Council Meeting; National Indigenous Working Group Meeting" [1997] IndigLawB 67; (1997) 4(3) Indigenous Law Bulletin 32


Stirrings

A Reflection on the Constitution’s Race Powers

by Neil Lofgren

On the thirtieth anniversary of the referendum for the Constitution Alteration (Aboriginals) Act 1967 (Cth), it is timely to reflect on the original intent of the race power now contained in s51 (xxix) of the .Constitution. The referendum was passed with the unprecedented support of 90.77% of the Australian electorate. To mark this historic event, the Prime Minister, Mr John Howard, introduced a five-clause motion acknowledging that the referendum reflected the wishes of the Australian people that Aboriginal peoples and Torres Strait Islanders be treated as full citizens of Australia (Hansard (House of Representatives), 27 May 1997, p 4058).

The Leader of the Opposition, Mr Kim Beazley, sought an amendment which 'recognises, as was made abundantly clear by the political leaders of the time, that the referendum was passed with the intent that the power conferred on the Commonwealth only be used for the benefit of the Aboriginal and Torres Strait Islander people (ibid, p 4060). The amendment lapsed with the majority support of the Coalition, and the Independent Member for Oxley, Ms Pauline Hanson. The original, though limited motion, as introduced by the Prime Minister, was passed.

The amended motion as presented in the House of Representatives was subsequently introduced and passed in the Senate with the support of the Australian Labor Party, the Australian Democrats, the Greens, and Senator Brian Harradine, the Independent Senator for Tasmania. Senator Colston, the Independent Senator for Queensland, was not present and did not vote (Hansard (Senate), 27 May 1997, p 3429).

Interestingly, Senator Harradine lamented that the Senate did not have a motion to which it could unanimously subscribe. He further noted 'As has been mentioned during this debate, Prime Minister Harold Holt in 1967 referred to the need for this power to be exercised in the best interests of the Aboriginal people. The Deputy Leader of the Australian Country Party, at that particular time, Doug Anthony, indicated also that this power should be exercised for the benefit of the Aboriginal people. Gough Whitlam, again, was very strong in his support for this proposition' (ibid, p 3428).

A purposive interpretation inferred from a number of High Court judgments over the past decade suggests that the race power will only support legislation which benefits Aboriginal peoples and Torres Strait Islanders (The Commonwealth v Tasmania (the Tasmanian Dam Case) [1983] HCA 21; (1983) 158 CLR 1; Mabo v Queensland [No. 1] (1988) 166 CLR 186; Western Australia v The Commonwealth [1995] HCA 47; (1995) 183 CLR 373). Similarly, on 7 December 1992, the Council of Australian Governments endorsed the National Commitment to Improved Outcomes in the Delivery of Programs and Services to Aboriginal Peoples and Torres Strait Islanders. The National Commitment acknowledges the Commonwealth's special responsibility to Aboriginal peoples and Torres Strait Islanders arising from the 1967 referendum, and through international treaties ratified by Australia which relate to indigenous peoples. The Coalition's Aboriginal and Torres Strait Islander Affairs policy recognises the importance of the National Commitment.

One can speculate whether certain Coalition amendments to the Native Title Act 1993 (Cth), spuriously motivated in response to Wik Peoples v State of Queensland & Ors (1996) 141 ALR 129, would pass in the Senate given Senator Harradine's interpretation of the Constitution's race powers.

The Authenticity Fable

by Marianna Annas

There have been several revelations recently that non-Aboriginal artists have masqueraded as Aboriginal artists in an attempt to further a particular artistic and commercial endeavour. Member of the well-known Kimberley pastoral family, Elizabeth Durack, created a fictitious Aboriginal artist, Eddie Burrup, and painted and submitted artworks under this name to Aboriginal art exhibitions and national art awards. White male author, Leon Carmen, posed as an Aboriginal woman called Wanda Koolmatrie, and wrote an award-winning novel published by Magabala Books, an Aboriginal publishing house.

These two matters (there have since been murmurs of several analogous others) spawned a fiery national debate which searched for the cause of such a sensational effect. A story which involves too many complexities is not appealing to the Australian press. Questioning and analysis of these cases reveals that many cultural, legal and moral issues are implicated. Yet the press remained insistent on reducing the contention to a single denomination called 'authenticity'. Obliquely, the focus was steered towards a debate about a universal yet nebulous concept of 'authenticity'. This also happened to be the subject of the National Indigenous Arts Advocacy Association's (NIAAA's) research on an impending national certification trade mark for goods and services of Indigenous origin. Suddenly, there appeared to be a correlation between the Durack and Carmen matters and the Label of Authenticity project, the key to the door being the definition of 'authenticity'. This has led to several misconceptions about both the matters referred to, and the Label of Authenticity project.

First, the debate surrounding the Durack and Carmen cases as to the notion of authenticity clearly involves the meaning of 'Aboriginality' as it relates to the individual(s) concerned. However, NIAAA's research on the meaning of 'authenticity' for the purposes of the Label of Authenticity requires the development of a definition which complies with the registration of a certification trade mark under the Trade Marks Act 1995 (Cth). The sole purpose of such a trade mark is to indicate a quality or origin of the goods or services (as opposed to the persons or individuals) which feature it.

NIAAA's research is not intended to arrive at a prescriptive magic formula, nor is it capable of preventing 'rip-off' behaviour. Unfortunately, the existence of a trade mark cannot stop the forces which motivate individuals to commit acts of alleged cultural appropriation, fraudulent misrepresentation, breach of contract, passing off, and such like. A Label of Authenticity trade mark affixed to a product or object which is produced in multiple quantities will simply serve to identify it at the market level as being of Indigenous origin by virtue of its quality or mode of manufacture. A painting by Roper Thomas could hardly be authenticated by the mere presence of such a swing tag (nor be rendered of questionable authenticity by its absence) - an original work by the artist is accessible through legitimate dealership channels. Conversely, any unauthorised reproduction of a work or a forgery would be subject to the prevailing laws of copyright, fraud and/or passing off, as the case may be.

Indeed, what makes the Durack and Carmen scenarios so intriguing is not so much the myriad of legal possibilities which they contemplate, but rather the personalities responsible for the offending acts. Interestingly, trial by media is usually characterised by an attempt to attribute the unscrupulous behaviour in question to a particular social, religious, psychological or other idiosyncrasy. Surely the elements which induced these protagonists to maintain their charades for the duration would provide some fascinating insights into their psyches. That is, of course, assuming that the Australian press would prefer to keep it simple.

Century Set to Go

by Rick Farley

On 8 May 1997, a substantial barrier to the giant Century Zinc project in Queensland's gulf country was removed. That day, the National Native Title Tribunal ('the NNTT') was presented with an agreement signed by the Queensland Government, mining company CZL, and 12 native title claimants to the area.

The NNTT had been conducting arbitration under the Native Title Act 1993 (Cth) ('the NTA'), but the arbitration ceased on production of the agreement. It remains for the State to issue the necessary approvals to develop the project. CZL and its new owner, Pasminco, then will make final decisions on the viability of the venture, which has an estimated cost of $1.14 billion.

The project has three components-a huge open-cut mine, an underground pipeline to carry slurry 300km north-east to Karumba, and processing and shipping from Karumba. The zinc deposit is the biggest in the world, estimated at 118 million tonnes, and has low iron content, which is attractive as environmental controls tighten world-wide. It was discovered in April 1990, and the first native title claim was lodged in June 1994.

The claim was rejected by the NNTT Registrar in August 1994, and that decision upheld by the NNTT President, Justice Robert French, in February 1995. The full Federal Court then dismissed an appeal by the Waanyi claimants in November that year, but the High Court upheld their appeal against the Federal Court decision in February 1996. The native title claims then were accepted by the NNTT.

While those proceedings were occurring, CZL was attempting to reach a commercial agreement with the native title interests. In March 1995, Hal Wootten QC was appointed as a mediator by the Federal Government, to assist negotiations. They proved fruitless, and were not assisted by the inability of Aboriginal interests to agree on core issues.

Many political forces were at work in both the black and white worlds. CZL thought it had a deal in July 1996, and the Federal and State Governments were prepared to legislate if necessary. However, the deal fell apart under opposition from Aboriginal interests, and CZL backed away from a legislative solution. When that occurred, CZL asked the Queensland Government to activate the future act processes of the Native Title Act by issuing notices under s29.

The notices were issued in June 1996, triggering a timetable under the NTA which allows 6 months for mediation. At the end of the mediation period, if no agreement has been reached, any party can request formal arbitration by the NNTT, which should aim to conclude within 6 months. At the end of the arbitration proceedings, the arbitrators' decision can be over-ridden by the Commonwealth Minister.

The NNTT appointed two mediators, and at the end of the mediation period on 13 February 1997 (the mediation was extended for 2 months by consent), CZL had tabled a $60 million package, the Queensland Government had tabled a $30 million offer, and 5 out of 12 native title claimants had signed the agreement. However, without all 12 claimants' signatures, there was no agreement. When the mediation failed, CZL requested formal arbitration, which was to commence on 5 May. The rest is history. Some observations from the exercise:

1. An agreement was reached well within the time period specified in the NTA. The NTA was only activated in June 1996, and an agreement was secured with 3 months remaining for arbitration. (CZL previously asked the ALP State Government to issue s29 notices in February 1995, but the Government refused.)

2. Once the Queensland Government and CZL decided to use the NTA, the project was long odds-on to proceed. When the 12 month mediation and arbitration periods had expired, the Commonwealth Minister could decide whether mining should go ahead in any case.

3. The outcomes for claimants under the arbitration procedures of the NTA are more limited than those available from a negotiated agreement. The NNTT's scope probably is limited to outcomes which can be defined by contract. It would have been drawing a very long bow to impose conditions dealing with ownership of pastoral leases, or the membership of employment and training committees, which were matters covered in the agreement.
There was no change to the offers made by CZL and the State at the close of the mediation. Those offers were accepted by the claimants before arbitration began in earnest.

4. The NTA must be amended to ensure claimants demonstrate that they have the support of traditional owners. The Act now allows any individual to lodge a claim, and the impact of court decisions, since its enactment, has been to remove any threshold test for acceptance of claims.
All parties to the negotiations on amendments to the NTA agree on a higher threshold test-they just have different ideas about how it should work.

5. It's very difficult for the National Native Title Tribunal, or any outsider, to resolve different indigenous views about customary law and custodial responsibilities for country. But these issues often are at the heart of native title claims. They can only be resolved by indigenous people themselves. They have to be given that responsibility, otherwise no enduring outcome is possible through mediation and agreement.

6. Effective mediation requires both a comprehensive public education campaign on native title, and an effective native title representative body. There was enormous confusion amongst Aboriginal communities about the processes of the NTA, and information was not always transferred accurately by claimants supposedly acting on behalf of traditional owners. Proceedings also were confused by the political agenda of the representative body.

Timber Creek Land Council Meeting

by the Northern Land Council

On Wednesday, 14 May 1997,130 senior representatives of the Northern, Central and Kimberley Land Councils met at Timber Creek in the Northern Territory to discuss Prime Minister John Howard's 10 point plan approach to the Wik decision, and to develop strategies to protect their native title rights.

The three Land Councils confirmed their support for the National Indigenous Working Group's submission to the Prime Minister (on which, see summary commencing page 10). This submission identifies some key principles, which include:

The Land Council members at the meeting expressed their outrage at the 10 point plan by burning it on a ceremonial fire. Many expressed their frustration at the lack of negotiation and consultation that has taken place, and the lack of clear information being given to the general public.

'We don't want compensation for our native title' said John Watson of the Kimberley Land Council. 'We want our rights, not money'.

Northern Land Council Chairman Galarrwuy Yunupingu described the 10 point plan as 'the last drink at the poisoned waterhole', and predicted a political war between indigenous people and the government over native title.

National Indigenous Working Group Meeting

by Anne Martin

On Tuesday, 20 May 1997, a press conference and lunch organised by the National Indigenous Working Group (the NIWG) was held in Old Parliament House, Canberra.

This lunch came about through the publication in the Sydney Morning Herald of a letter signed by 100 prominent citizens regarding their support for the High Court's Wik decision, and their complete rejection of the Prime Minister's 10 point plan on native title. Phil Glendenning of the Aboriginal Catholic Social Justice Commission's Edmund Rice Centre in Sydney was responsible for organising this letter.

The lunch was attended by Judith Wright, Ruth Cracknell, Tim Costello, Genevieve Lemon, Maggie Dence (The Mavis Brainston Show), plus a number of other distinguished guests. Members of the NIWG who attended included David Ross, Peter Yu, Tracker Tilmouth, Olga Havnen, Parry Agius, Aden Ridgeway and Les Malezer. Pat Turner, Brian Stacey and Commissioner Geoff Clarke from the Aboriginal and Torres Strait Islander Commission were also in attendance. This lunch was in essence the beginning of a bringing together of a number of support groups which have been springing up all over the place.

On the following day, there was a briefing session organised for representatives from foreign nations at which around 30 embassies were represented, along with a number of journalists.

Michael Costello, the former Secretary of the Department of Foreign Affairs and Trade, spoke forcefully about the negative effect of the Government's response to the Wik decision. Gatjil Djerrkura, Chairperson of the Aboriginal and Torres Strait Islander Commission, Peter Yu, and other members of the NIWG also spoke.

Gatjil Djerrkura emphasised that demands were not being made of the participants or their countries. Rather, he asked that those present take the opportunity to better understand the position of the NIWG.

At the conclusion of the briefing, participants were given the opportunity to ask questions of the panel. This proved to be a very worthwhile exercise. All participants showed a keen interest in the topic. The briefing session was a great educational opportunity for the participants, and this was acknowledged by all at the conclusion of proceedings.


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