NATIVE TITLE AND RESOURCE MANAGEMENT:
ISSUES FROM THE AUSTRALIAN ALUMINIUM INDUSTRY
Dr Richard Howitt
School of Earth Sciences, Macquarie University, NSW, 2109
Paper presented to Geography Teachers Association, University of Newcastle, August 1993
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Identification, management and use of natural resources has been one of the principal ways in which Australian society and economy have been shaped since British settlement. The processes and relationships involved, therefore, are central in explaining the contemporary geography of Australia. Exploration and development of mineral resources in particular created a resources frontier which facilitated geographical expansion of British settlement in remote Australia, and juxtaposed colonial societies and Aboriginal Peoples. The effects of the resources frontier on Aboriginal peoples were enormous. In combination with the pastoral occupation of Aboriginal Australia, the mining frontier presented Aboriginal societies with the excesses of a barbaric and uncivilised version of western society as it intruded into their everyday life.1
The devastation, dispossession, social alienation and political, economic and cultural marginalisation which characterised the historic resources frontier left legacies which affected relations between Aboriginal people and the mining industry in the mining booms of the 1960s and 1970s.2 Yet, despite the problems, many Aboriginal groups have survived with their identity and dignity more or less intact. Through legislation, political pressure, direct negotiation and litigation, Australia's Indigenous Peoples have continually challenged governments' and industries' assumptions about their place in Australian resource management systems.
Most dramatically, representatives of the Meriam people, traditional owners of the Murray Islands in the northeast sector of the Torres Strait, led by the late Eddie Mabo, took legal action in the Queensland Supreme Court and Australian High Court which has established the existence of Native Title as a legally recognised property right which was not automatically extinguished when the claimed sovereignty over eastern Australia in 1788 (nor when sovereignty was extended to WA in 1829 or the Torres Strait in 1879). Some responses to the High Court's Mabo decision have emphasised the implications of the recognition of Native Title for resource industries. It is these implications that I want to consider here. In particular, I want to focus on the implications and issues which arise in relation to the aluminium industry.
WHY THE ALUMINIUM INDUSTRY?
There are several good reasons for using the aluminium industry as a case study for senior geography students:
* It is an appropriate case study not only in resources section of the Geography Syllabus but also in the Manufacturing & Technological Change section. (see Howitt 1993).* There are significant linkages between aluminium and Aboriginal rights (Gove Land Rights case; Cape York bauxite mines & leases affecting Weipa, Mapoon & Aurukun; Portland smelter affecting Gunditj-Mara sites; Mitchell Plateau deposits covered by the Mabo-style claim in WA's Kimberley region; parts of the Comalco and Pechiney leases affected by the Wik claim on Cape York Peninsula).
* Good reference material is relatively accessible.
* The industry is one of Australia's most important export sectors and is often featured in news and current affairs media.
* Raises issues of much wider relevance to the Geography Syllabus and geography students.
WHAT IS NATIVE TITLE? WHAT IS EXTINGUISHMENT?
To listen to some mining industry advocates and conservative politicians, one would be forgiven for thinking Native Title gave Aboriginal Land (or Torres Strait Islander Land) a status equivalent to a sovereign (and foreign) nation. Nothing could be further from the truth.
We should....understand that in abiding by the decision, the plaintiffs now have fewer rights than they enjoyed prior to 1788" (Flood, 1993:5)
Michael Mansell, in suggesting the High Court had given an inch, but taken another mile suggested that:
"The use of the term 'title' may be misleading, it is unlike a form of ownership as Australians know it. In fact it is based on occupation, not ownership and it is more appropriate to be described in that way" (Mansell, 1992:4)
Crucially, the court rejected the legal fiction established formally in the NT Supreme Court in the 1971 Gove Land Rights case by Justice Blackburn that Australia had been legally and reasonably classified as an empty and owner- less land at the time of British occupation. This idea, known as the legal doctrine of terra nullius was instrumental in marginalising Aboriginal people from the mainstream decision-making processes affecting their lands and futures. It was also central to the denial of access to many of the means of redress of human rights violations available at the time to Australian citizens. In "reopening the validity of fundamental propositions which have been endorsed by long-established authority and which have been accepted as the basis of the real property law of the country for more 150 years" Justices Deane & Gaudron argued that this extraordinary step was justified because: "the circumstances of the (Mabo) case make it unique.....The acts and events by which....dispossession in legal theory was carried into practical effect constitute the darkest aspect of the history of this nation" (Deane & Gaudron, Mabo decision: 82).
The nation as a whole must remain diminished unless and until there is an acknowledgment of, and retreat from, those past injustices.
They go on to say that they felt the court was under a "clear duty" to re-examine the proposition of terra nullius and that "re-examination compels...rejection" (ibid).
But having recognised the existence of native title, Deane and Gaudron immediately emphasised its tenuousness and fragility. Rights related to native title can, they concluded, be:
...lost by the abandonment of the connection with the land or the extinction of the tribe or group.... The personal rights conferred by common law native title do not constitute an estate or interest in the land itself (ibid: 83)
It is important to recognise, as the majority judges did, that the concept of native title is flexible, varying with specific indigenous laws, culture and traditions. And recognition of common law native title, which can be unilaterally extinguished by the Crown, cannot be construed as a recognition of indigenous sovereignty or a challenge to Australian national sovereignty. In the specific case of the Murray Islands, the effect of the majority judgement is that:
...they have native title protected under Australian law. The nature and content of their title derives from Meriam law and custom, but is protected by Australian common law (Gregory, 1992: 160).
The extinguishment of native title is the other side of its recognition. As the judges in the Mabo decision saw it, British sovereignty over Australia gave rise to a range of mechanisms which would negate any title rights (remember, limited to use and enjoyment rather than more substantial ownership and not extending to subsurface rights or economic rights to surface resources) - including illegal acts such as murder, displacement, kidnap etc). The Crown could also dispose of Aboriginal and Torres Strait Islander property by granting it as freehold land to settlers.
The only reason the Murray Island Claim succeeded was that Queensland's legislation to extinguish native title in the 1985 Queensland Coast Islands Declaratory Act was declared to be "inoperative under section 109 of the Commonwealth Constitution because it was inconsistent with the Racial Discrimination Act 1975 (Commonwealth) (Moens, 1993:49).
MABO AND MINING
In the wake of the Mabo decision, a popular concern emerged, and was cultivated by many media commentators, that most Australians had lost something important. Among the things feared lost are control of mineral resources, and jobs and investment in the mining industry. Again, the rhetoric of anti-Aboriginal forces and vested interests misrepresents the Mabo decision and the concerns and ambitions of most Aboriginal groups. By-and-large, Aboriginal groups seek the following:
* protection of specific sites of cultural importance;
* protection of community interests (health, culture, future and basic rights;
* participation in decisions and some influence over developments that affect their communities;
* benefits from exploitation of resources on their property;
Under the Commonwealth's Aboriginal Land Rights (Northern Territory) Act 1976, and a range of other legislation. Some Aboriginal groups have achieved many of these goals. As the negotiation of a range of exploration and development agreements in the NT under the Commonwealth Act demonstrates, mining can proceed where these concerns of Aboriginal people are addressed - despite the hysterical rhetoric of some sections of the industry. And as the conclusion of an agreement between Zapopan and the Jawoyn people to facilitate development of the Mt Todd goldmine in the NT demonstrated, even in the post-Mabo period, Aboriginal concerns can be addressed without jeopardising or delaying mineral development.3 Yet, some sectors of the industry (most notably AMIC and WMC through Morgan & Parbo) seek to use Mabo to further entrench their version of corporate sovereignty in Australian law and politics - at the expense of the legitimate (and now legally recognised) concerns of Aboriginal and Torres Strait Islander groups. AMIC has suggested, for example that "The High Court's Mabo decision has shaken that foundation (security of title) for all resource industries and therefore community prosperity in general" (AMIC, 1993 : 1)
I have argued elsewhere (Howitt, 1992) that this sort of argument dismisses the extent to which a just resolution of Aboriginal and Torres Strait Islander grievances is fundamentally in the national interest. Instead it places the vested financial interests of the mining industry at the centre of the 'national interest' and pushes the concerns and grievances of Aboriginal citizens aside, somehow constructing the rights and interests of this group of citizens as completely external to the nation. Through its 49% interest in Alcoa of Australia, WMC is a major player in the aluminium industry, although the outbursts of Morgan and Parbo are more involved with gold, nickel and exploration interests than aluminium. Such linkages, however, serve to indicate the structures and interactions in the mining sector which have succeeded in marginalizing indigenous Australians at every point of major policy development since the Gore Land Rights case in 1971.
ISSUES FROM THE ALUMINIUM INDUSTRY
To appreciate the ways in which recognition of Native Title affects the aluminium industry it is helpful to see the industry as a resource management system - a complete and dynamic social, political and economic arrangement for organising, regulating and facilitating the production and trading of aluminium. Like all resource management systems, the aluminium industry brings together a range of resources, management agencies, profit seeking enterprises and diverse public interests (see figure 1), each of which is complex and constantly changing.
If we look a little more critically at the elements of this resource management system we can see that different 'players' play specific roles at various geographical scales. Many public interest groups restrict activity to the local scale within the various resource regions involved in the industry. Many of the government 'players' are constrained to operate in specified jurisdictions and respond to issues, relationships and processes beyond the specifics of localities. And many of the corporate 'players' have structures which involve subsidiaries which operate within specific territories and strategic ranges. It is also worth noting that bauxite is not the only natural resource involved in this system. Because aluminium production is highly energy intensive, the industry in Australia is also strongly linked to the management of energy resources, especially coal and the control of specific sites of production - specific geographries.4 Once we begin to understand the systemic links between the various parts of such a system, we can begin to understand why failure to address the issues raised by the Mabo decision has the potential to produce "show-stoppers" in Australian resource industries.5 Viewed from an Aboriginal perspective, understanding the systemic links in such resource management systems explains why continually renewed dispossession of Indigenous Peoples is seen as imperative by many resource corporations and resource-revenue-dependent governments.6
Socio-cultural and political-economic impacts
Two of Australia's major bauxite mines (Weipa and Gove, see Map 1) are located on land which was formerly Aboriginal Reserve Land. In both cases these reserves were arbitrarily revoked when the governments involved decided to issue mining leases. In both cases new mining towns were developed within a short distance of existing Aboriginal settlements. In both cases, Aboriginal people raised concerns about the effects of the mines and their people.
At Weipa, where a highly restrictive and discriminatory legislation controlled every aspect of life for Aboriginal people and prevented them from taking legal or political action to protect their rights, there were suggestions from the Queensland Government, the Presbyterian Church and Comalco, that the Aboriginal mission settlement at Weipa South (now called Napranum) should be removed across the river and away from the direct impacts of the rapid growth of the construction and mining community. Although this never happened, the impact of the new mine was rapid, immense and very largely negative.7
Similarly at Gove, the Yolngu people at Yirrikala expressed concern and direct opposition to mining because of their fears of its affects on their social and cultural life. In a community in which personal relationships were governed by powerful Yolngu law and morality, the rapid growth of a new community with alien values, unfamiliar social behaviour, and no knowledge of Yolngu values and priorities, even the advantages of improved access to education facilities became a source of discomfort and difficulties as the young people came face-to-face with the demands of an alien cultural domain.8
In both areas the juxtaposition of relative wealth in the new mining towns produced a sense of alienation and powerlessness. Government and company support of community facilities combined to produce much better health, education, recreation and service infrastructure all at some distance from the Aboriginal settlements. With the 1967 referendum giving Aboriginal people the rights of other Australian citizens, community control over the access to and abuse of alcohol was lost, and the combination of dispossession, alienation, resentment, fear violence and alcohol produced a period of tragic self-destructiveness in both places.
In the case of Weipa, this downward spiral was documented in a tragic murder trial (eg. Wilson, 19- ; Bradbury, 19- ), which provoked a change of direction among Aboriginal, company and government circles. At present, while dissatisfaction exists in both areas, Aboriginal people, particularly traditional landowners, have been encouraged by the Mabo decision to be more assertive about their concerns and ambitions. Under the Mabo principles the mining leases of both Nabalco and Comalco are secure9, but the recognition of some form of Native Title interest in these, even if it has been extinguished, changes the moral ground on which arguments for respect of Aboriginal concerns and recognition of Aboriginal goals is founded.
Land, compensation and royalties
Land is clearly at the centre of both the bauxite production process, and the Mabo decision. Access to land for exploration and development is the issue which has been most consistently emphasised by the mining industry in the public debate over the Mabo decision (see Box-AMIC advertisement). At both Weipa and Gove country - both land and sea - is at the centre of Aboriginal tradition and identity. The cultural landscape and the social fabric built upon it, strongly reflects the totemic geography of the Aboriginal groups involved.10
The arrangements for addressing the loss of Aboriginal land vary in the case of Weipa and Gove largely because of the effect of the Aboriginal Land Rights (NT) Act at Gove. But in both cases, Aboriginal people are highly critical of the arrangements.
At Gove, the mining leases are covered by special NT legislation (Mining (Gove Peninsula Nabalco Agreement) Ordinance of 1968), but the land is Yolngu as Aboriginal Land, under the ALRA, and will revert to Aboriginal ownership when the leases expire (in the year 2000?). This means that the mining provisions of the ALRA have some application, although the traditional Yolngu landowners had no opportunity to veto the development, to negotiate terms and conditions for access, nor to negotiate commercial arrangements available to Aboriginal landowners or other areas.11 Thus there are no 'compensation' payments to Aboriginal traditional owners and affected groups from Nabalco, despite the proximity of the mine and refinery to Aboriginal settlements and outstations (see Map 2). The result is that payments received by the Yohnegu related to the Nabalco project at Gove have been minimised. The company's royalty payments to the NT Government have been low by both Australian and international standards until the introduction of a new royalty arrangement in 1992. (see Table 1). As a result, payments of "statutory royalty equivalents" by the Commonwealth have also been low.12 This has been a source of division and resentment amongst Yolngu who have argued that the 1968 Gove Agreement should be renegotiated with them. Their dissatisfaction with the current arrangements has created substantial barriers to negotiating access to land for construction of new red mud disposal sites on land outside the company's existing leases and on Aboriginal Land.
In Weipa, the lack of any equivalent to the Commonwealth's Aboriginal Land Rights (NT) Act has meant that Aboriginal grievances over compensation and royalties have never been addressed in policy terms. While some funds have flowed to Aboriginal lands from the Gove project, no funds linked to Comalco's royalty payments to the Queensland government have ever flowed to Aboriginal people at Weipa. Quite reasonably, given the parallels with Gove, they ask why the Commonwealth transfers "statutory royalty equivalents" to people in the NT and not to them.
In 1972 Comalco established a community development organisation known as the Weipa Aborigines Society (see Howitt, in prep) and provided limited funds for community purposes. As Table 1 shows, the funding involved was paltry compared to the revenue related to Gove.
It is precisely the inability of the current system to protect and respond to the pre-existing Native Title interests of Aboriginal and Torres Strait Islander people in Queensland which produced the Wik claim over an area in south-west Cape York Peninsula which includes part of the southern area of the Camalco mining lease (see Map 3). Put simply, the Wik claim argues that the Queensland government failed to take reasonable steps to protect the Native title and the interests of the Wik Aboriginal people when it took actions such as revoking the Aboriginal Reserve status of the land and granting Comalco's (and other) mining leases. Since Aboriginal people were denied access to the normal legal means of protecting their rights because they were denied citizenship and faced punitive sanctions for any breach of disciplines under the Queensland Aborogines Act, it is argued in the Wik claim that the responsibility of the government to protect Aboriginal rights, property and interest, was even greater, and the government had a strong legal obligation, known as fidviciary duty, to protect those rights and interests. In failing to do so, the Wik claim argues, the government made itself liable to substantial compensation.
So, building on the Mabo principles, the Wik claim seeks to establish the rights of those whose Native Title has been extinguished by various acts of dubious legality and of even more dubious morality.
As with the Commonwealth and state responses to the Mabo decision, the Commonwealth response to the Wik claim has been to validate "existing" title - except Aboriginal title - and to minimise opportunities for Native Title to be re-asserted.
At a more local scale, Aboriginal expectations that land no longer required for mining by Comalco would return to Aboriginal control have also been disappointed, as the company has pursued a policy of 'normalising' the previously company-owned town by selling-off houses and developing new sub-divisions and land no longer required for mining (Howitt 1992).
Employment and other participation
It has often been argued that one of the big advantages of mining for remote aboriginal groups is the creation of jobs in remote areas. At Weipa, the church and the government expressed early optimism about the creation of a black working class at Weipa. Lack of education and training, poor health, cultural priorities and a degree of workplace hostility all mitigated against high levels of Aborginal employment. Elsewhere in the mining industry, the record is no better.
Both Comalco and Nabalco, however, have sought to support Aboriginal employment initiatives. Through WAS at Weipa, and through several workplace training schemes, Comalco has made a substantial contribution to Napranum's education and training infrastructure. This, along with changes to the discriminatory policies Stevens has criticized in the early 1970s (Stevens 1981), has seen Comalco retain relatively high levels of Aboriginal and Torres Strait Islander employment, averaging around 10% of the total workforce for more than a decade (Howitt 1992).
At Gove, Nabalco has not encouraged direct employment, preferring to work through an Aboriginal contracting organisation known as Yirrkala Business Enterprises (YBE) (Howitt, 1992a). This system involves less direct commitment to eduction and training, and reduces career opportunities for Aboriginal workers. It is, however well-supported by many Aboriginal people in the area.
Other forms of participation (involvement in local management planning, equity in the companies etc) is relatively rare, although some examples do exist, often on an informal basis. The recent debate over Native Title seems not to have been reflected in new forms of participation, although it certainly provides a degree of leverage in negotions and debates with other government and local government.
Regional Development Issues
The aluminium industry was an important part of Australia's post-World War II resource-based economic development. Large scale investments in mines, refineries and smelters have not only made Australia a major player in one of the most important of modern industries, but have also been incorporated into the regional development stories of every Australian state, except South Australia, as well as New Zealand. The creation of new jobs, new facilities, even entirely new communities in places as diverse as Nhulunbuy, Weipa, Gladstone, Bell Bay, Portland and WA's South West has changed local geographies at the same time as it has transformed the economic geography of the nation.
In most places, this regional development story merely reinforced the marginalisation of Aboriginal people in previous periods of dispossession and industrialiation. But at Weipa and Yirrkala the aluminium industry's contribution to regional development was, from an Aboriginal viewpoint, an entirely new form of dispossession and marginalisation. In those areas, where Native Title as defined by the High Court in the Murray Islands decision, almost certainly existed at the time that mining leases were granted, the centering of the story of regional development on the growth of this new industry effectively forces Aboriginal concerns out of the plot. In such places and at that time "development" was something to be done to, or in spite of, Aboriginal people - not something aimed at their needs, concerns and aspirations.
In the case of the Gove bauxite-alumina project in northeast Arnhem Land, that Native Title Holders tried to assert their rights and interests as soon as they became aware of the possibility that the Commonwealth could "grant" their land to a mining company without their agreement. In 1963 they sent to Canberra a petition in the Yolngu language in the form of a bark painting. The petition now hangs in a place of honour in the new Parliament House. Yet the rights the Yolngu tried to protect and exercise hang in tatters. When their bark petition failed to produce protection and and recognition from the politicians, and the Commonwealth granted mining leases to the Swiss-Australian joint venture Nabalco in 1968, Yolngu leaders sought protection and recognition from the Australian court system.13 The decision also established clearly both the doctine of terra nullius as a legal fiction justifying dispossesion and genocide against indigenous Australians, and the tension between indigenous rights and the unfettered expansion of the mining industry.
While the Yolngu legal action failed in the court, it succeeded politically. In the 1972 election campaign both sides of politics supported moves towards recognation of Aboriginal interests in land. The election of the Whitlam Labor Government, after 23 years of conservative rule, produced a commission of inquiry under Mr Justice Woodward14 who was required to report on ways to recognise the land rights of Aboriginal people in the Northern Territory. Despite the efforts of Yolngu leaders, and Woodward's finding that:
to deny to Aboriginal people the ability to control mining on their land is to deny the reality of their land rights (Woodward 1974: 108),
the Nabalco mining leases were exempted from the mining provisions of the Commonwealth's Aboriginal Land Rights (Northern Territory) Act of 1976. The mine, refinery and new town all proceeded without the consent of the Native Title holders, and even after land rights legislation was passed, the traditional owners of the Nabalco mining leases had less input into, benefit from or control over the activities occurring on their land.
Nabalco's need to negotiate access to additional land for disposal of red mud wastes produced at the Gove refinery may provide a lever for Aboriginal intervention in the current arrangements, but neither the Aboriginal Land Rights (NT) Act nor the Murray Islands decision would empower the Native Title holders to have their property rights recognised, acted up or protected until the Balalco leases expire in 2057.
The parallels between Gove and Weipa are considerable. As at Gove, the mining leases at Weipa were granted by a special act of parliament (Queensland's Comalco Act of 1957).15 Again, Native Title holders were neither recognised nor consulted and did not give approval for the mining to proceed. Unlike Gove, where the Commonwealth's Aboriginal Land Rights (NT) Act guarantees some flow of benneits from the mining activity to affected traditional owners, there has been no Queensland equivalent to the Commonwealth's statutory royalty equivalents and payments to the Aboriginal Benefits Trust Account.16 Instead, Aboriginal people at Weipa have relied on the contributions through the Weipa Aborigines Society (WAS) an organisation established in 1972 by Comalco and the Queensland and Commonwealth Governments to channel finding for community development. Whatever the strengths of WAS, it has never addressed the unresolved grievances of Aborignal people over their dispossession and questions of compensation and royalties.
The Wik Claim, which covers a substantial part of Comalco's undeveloped lease area, clearly signals Aboriginal aspirations to exercise some influence over and receive some benefit from future development of the bauxite in their land.
In both cases, the bauxite-based development of Comalco and Nabalco has become symbolic of resource-based regional development generally. New towns, new jobs, new ports, new facilities - all these things are important in shaping public perceptions of the role of mining in regional Australia. The requirement to recognise and respond to, perhaps even negotiate with, Native Title holders in such projects would, I believe, produce a different sort of regional development story. The direct effect on established projects such as Weipa and Gove seems destined to be relatively small, but for new projects, such recognition will probably fall a long way short of putting Native Title holders in 'centre stage'. It will, however, for the first time in Australi's resource-based history place indigenous people on the same stage.17 The extent to which aluminium industry interests, with undeveloped lease areas in Cape York (alcan, Shell) and WA (Mitchell Plateau and Cape Bougainville - Comalco/CRA), might be affected depends more on the outcome of the Wik Claim and the legislative responses to the Murray Island decision than directly on the 'Mabo principles'.
CONCLUSION
Final resolution of the issues raised by recognition of Native Title is a long way off. In resource management systems, the Murray Islands decision has provided strong support to indigenous arguments for recognition as stakeholders in resource-based development. The limited nature of the rights recognised by the High Court's 'Mabo' judgement severely limits the power of Native Title holders to veto or control development on their lands or seas. The legislative, political and industry responses seem sestined to further constrain the ability to exercise indigenous property rights.
In the case of the aluminium industry, two major projects (Weipa and Gove) are directly affected by questions of Native Title. While neither project can be reasonably deemed to be directly 'threatened' by Native Title issues, both will need to come to terms with a new decision-making context, in which Aboriginal concerns can no longer be marginalized as simply as they were in the 1950s and 1960s.
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Notes:
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