By Peter Boyle
Aboriginal groups began negotiations with Prime Minister Paul Keating on April 27 about post-Mabo case arrangements. They had hopes that he was sincere in his public promise to make a just settlement on land rights. But correspondence made public by Northern Territory Chief Minister Marshall Perron proves that Keating has also been urging state governments to legislate to limit the effect of the Mabo decision.
On the strength of written assurances from Keating and his special minister for state, Frank Walker, on May 27 the NT government introduced special legislation to fast-track Mount Isa Mines (MIM) Holding's MacArthur River mining project (for the largest lead, zinc and silver mine in the world, estimated to be worth $300 million a year). The act overrides any possible Mabo-style claim to the land involved.
In a letter to Perron, dated May 26, Walker wrote:
"I believe we are now in substantial agreement ... I request your Government to proceed with legislation along the lines that have been discussed. You have been provided with a copy of the advice of the Acting Commonwealth Solicitor-General that the Northern Territory has the power to validate the McArthur River leases ...
"In the event that unexpected difficulties concerning the validity of the legislation were to arise requiring Commonwealth intervention, the Commonwealth Government would take appropriate steps (including introduction of Commonwealth legislation, if necessary) to rectify those difficulties.
"In addition, the Commonwealth agrees to meet reasonable legal costs and expenses incurred by the Territory in defence of any challenge to validity based on inconsistency with the RDA [Racial Discrimination Act] or the NT Self-Government Act or any Act replacing either of these Acts."
Keating wrote to Perron on the same day, confirming the position outlined in Walker's letter.
On the basis of these assurances, Perron introduced his legislation re-granting MIM's mineral lease and exploration licence "notwithstanding any other law in force in the Territory".
Northern Land Council acting director Brett Midena condemned this as yet another sell-out of Aboriginal rights. "They have legislated to protect the rights of a company, but not to protect the rights of Aboriginal people."
On May 24 a delegation from Aboriginal land councils, legal services and other organisations from all around Australia had conveyed to Keating, for a second time, an eight-point proposal for federal legislation in response to the Mabo decision, which recognised "native title" to land for the first time under Australian common law. The legislation should:
- recognise Aboriginal and Torres Strait Islanders' rights, wherever they may exist;
- provide that native title not be extinguished by past or future grants of interests by the crown but that they continue subject to such interests;
- require the consent of Aboriginal and Torres Strait Islander peoples for any extinguishment of title after June 3, 1993;
- declare native title in Aboriginal reserves, former reserves, national parks and vacant crown land occupied by Aboriginal people;
- establish a Commonwealth tribunal empowered to grant title on the basis of common law, historical association or need;
- ensure security for sacred sites and heritage areas;
- provide for a comprehensive settlement process on outstanding issues;
- provide federal funding for participation in these processes.
In return for this, the Aboriginal delegation agreed that the federal legislation should also provide for the validation of post-1975 titles, such as mining and pastoral leases, whose legitimacy may be doubtful, after Mabo, because they may contravene the federal Racial Discrimination Act of 1975.
This validation was to be granted only subject to agreement with the local Aboriginal land council or legal service on such matters as protection of sacred sites, compensation for disturbance, environmental protection and share of mining royalties.
On May 25, members of the delegation were confident, because Keating had been effusive about his desire for reconciliation with Aboriginal and Torres Strait Island people, during his visit to New Zealand. But they were also worried about plans by WA's Court Liberal government to legislate to "extinguish native title to the extent required" to remove any uncertainty about land titles issued after 1975.
One of the delegation, Rob Riley from the WA Aboriginal Legal Service, had obtained a WA cabinet briefing paper outlining this plan. The paper suggested that federal endorsement of such legislation be sought — endorsement Aboriginal groups hoped Keating would refuse.
However, the very next day brought news of the pre-emptive move on McArthur River. Aboriginal groups organised an emergency teleconference on May 28 to discuss their response, and the Northern Land Council has organised a two-day meeting with Aboriginal groups in the Borroloola area (which will be affected by the mine) for June 1-2.
The NLC had been negotiating for several weeks with MIM and the federal and NT governments over the project. Local Aboriginal groups want the mine to go ahead but they also want to negotiate reasonable conditions, such as:
- land for the Kurdanji people (who have obtained no land under the NT Land Rights Act);
- access for cultural, ritual, recreational and economic use;
- protection of sacred sites;
- employment for Aboriginal people in the mine;
- social infrastructure and services, including a sewerage system;
- monitoring of environmental impact by Aboriginal groups with independent scientific advice;
- company commitment to effective social control over its employees, particularly in relation to Aboriginal people, and a program to modify alcohol use.
The NT government claims that it made a settlement with the people of Borroloola in 1981, but this is denied in a report released in Darwin in March 1993. This report, compiled by the Mabunji Resource Centre of Borroloola, explained that the people from the region bore the brunt of the expansion of the cattle industry in the north. Local people still recount massacres, wife-stealing and other brutalities, including the use of unpaid Aboriginal labour on the cattle stations until the 1960s.
Repeated attempts in the 1970s to get land back under the NT Land Rights Act were unsuccessful, and in 1978, when the NLC was trying to get the Aboriginal Land Fund Commission to buy back McArthur River and Bing Bong stations, MIM bought the stations by bidding much higher prices than the commission could afford. Even then MIM had a good idea of the mineral wealth under the land.
The NT government sacked the local Aboriginal council in 1985, installed its own creation and illegally leased out parts of the Edward Pellew Islands to outsiders although they were still subject to Aboriginal claims. The NT government was determined to prevent Aboriginal people gaining any further access to land under the NT Land Rights Act, said the report.
If the NT's special McArthur River legislation succeeds, MIM and its minority Japanese partners will have no obligation to make arrangements with the local Aboriginal people, though they may choose to do so.
Although the legislation does not explicitly refer to native title, it may be challenged by the NLC as contravening the Racial Discrimination Act because the unqualified nature of the mining lease it gives MIM and its partners may be construed as extinguishing native title as defined in Mabo. Unlike state governments, the NT also has a constitutional duty (under the NT Self Government Act) to pay just compensation for land acquired, but the McArthur River special legislation has a provision which seeks to limit any rights of compensation.
If a NLC legal challenge goes ahead, it will be the first case to test the legal effects of the Mabo decision, and the McArthur River mine could be delayed. So why has the NT government provoked such a possibility?
The NT move, like the WA government's planned legislation, may be aimed at raising the temperature before the critical premiers' conference in the second week of June. State governments are aware that pre-emptive legal action on their part to clarify the repercussions of the Mabo case face a legal minefield, but they could be trying to push the federal government to act to stop or at least minimise Aboriginal claims through federal legislation.
The McArthur River mine, long held out by the Keating government as a symbol of the big development projects that will pull Australia out of its longest recession since the 1930s, is also being used to try to turn broader public opinion against just land claims of Aboriginal and Torres Strait Islander people.