Native title: Labor's real role
By Jennifer Thompson
In the flurry over John Howard's Wik bill attacking native title rights, it is easy to forget that Paul Keating's 1993 Native Title Act was intended to restrict the native title rights outlined in the June 3, 1992, Mabo decision of the High Court.
Labor's record on land rights and native title is far from admirable — both in the recent Senate vote on Howard's bill, and in 1993 and earlier. This history holds important warnings for the movement to defend and extend native title.
Howard's bill grew out of government, pastoral and mining industry opposition to the December 23, 1996, High Court ruling that native title is not necessarily extinguished by a pastoral lease, and that the two can co-exist — the Wik decision.
When Howard's 10-point scam was unveiled in the form of the Native Title Amendment or Wik bill, it became clear how much Aboriginal people would lose. Of the 10 points, only one — on facilitating voluntary agreements — did not curtail existing or potential rights of Aboriginal people.
A chief sticking point, said social justice lawyer Father Frank Brennan, was that the legislation proposed winding back the right to negotiate with mining companies. Even if traditional owners could prove they still have native title rights, after passing a strict new threshold test, they would lose the right to negotiate with mining companies on pastoral leases as well as on national parks and even areas which have been granted to Aborigines and Torres Strait Islanders.
The bill gives Aborigines only the right to compensation for disturbance of the land. "What was seen as the special connection that the Aboriginal people had with the land, and the prospect that there might be some economic empowerment for Aboriginal groups resulting from large mineral development on their traditional land, will be lost", Brennan said.
While pastoralists and the Queensland National Party were campaigning loudly for total extinguishment, including by allowing states to convert pastoral leases to freehold, Brennan noted that the proposed legislation gave the miners everything they wanted: the right to negotiate at both the exploration and development phases would be taken away, as would the right to negotiate on pastoral leases.
The big mining interests knew, however, "that the only way they'll get everything they want is by having [Kim] Beazley accepting that in the name of economic development and generation of jobs, that the right to negotiate doesn't work and should be trimmed back as far as possible", Brennan told Green Left at the time.
Senate vote
When the Senate voted on the bill in December, Howard claimed that the Senate's changes destroyed his 10-point plan. But Senator Brian Harradine told the truth when he said that the Senate had given Howard 90% of what he asked for.
Eight of the 10 points were passed in full or in substantial part. On the government's point nine — to make it more difficult to register native title claims and to impose a six-year sunset clause on claims — the Senate slightly weakened the first part and rejected the second.
Following passage of the 1993 federal act, some state governments, mainly Queensland, unlawfully issued numerous mining permits without allowing native title claimants the right to negotiate. The Labor Party and Harradine voted for Howard's plan to validate these permits, legalising the theft of Aboriginal rights.
The only point on which the government was completely defeated was its attempt to abolish Aborigines' right to negotiate with mining companies on pastoral leases; the so-called opposition settled instead for making the threshold test so tough as to preclude many more Aboriginal claimants.
Adding to Labor's problems of credibility is the current practice of the only surviving state Labor government. NSW Premier Bob Carr supports Howard's 10-point "final solution" to native title.
The ALP's role here was light years from the promise made in 1983, when the Hawke government came to office pledging to introduce uniform national land rights.
The Hawke government dropped its (already watered-down) draft legislation in 1985, in the wake of a big propaganda campaign by mining companies. The Burke ALP government in WA defended "states' rights" with the assistance of an openly racist mining lobby, and "persuaded" Hawke that the legislation might cost him re-election.
An independent report on the resulting "backlash" against Aboriginal rights recommended that the government conduct a public education campaign, but it was ignored and kept secret. The National Aboriginal Congress, chaired by the late Rob Riley, was disbanded.
The veto bogey
In 1977 the Fraser government passed the first piece of land rights legislation — the Northern Territory Land Rights Act — after the findings of the Woodward Royal Commission, set up by the previous Whitlam government. In his report, Justice Woodward said he was convinced that to deny Aborigines the right of veto over development was to deny the reality of their land rights.
Of course, this also gives Aboriginal groups some economic bargaining power. The mining companies have always argued that a veto right restricts development. Every few years, they tried to get the NT Land Rights Act amended.
In 1987 the federal Labor government sought to reduce NT Aboriginal landowners' veto rights by legislating so that, once consent to exploration was given, Aboriginal landowners lost their right to veto mining. But the amended act made it more difficult for traditional owners to make agreements with mining companies because they had to stitch up deals at a stage when the viability of the mine is uncertain.
The mining companies' hysteria campaign after the Mabo decision had a sickeningly familiar ring. Rob Riley, then executive officer of the Aboriginal Legal Service of Western Australia, told Green Left Weekly at the time that the advertising campaigns run by the mining industry in 1984-85 appealed to prejudice and bigotry.
While some mining executives, like Western Mining's Hugh Morgan, stooped to crude remarks about the "backwardness" of Aboriginal people, the main thrust of the companies' campaign was that Aboriginal land claims — like the concerns of environmentalists — block economic development.
But recognition of native title in Canada in the 1970s did not cause an exodus of mining companies and developers. Native title has been recognised by United States courts since the 1830s. The same multinationals obliged to negotiate with indigenous peoples in North America were, and are, leading the charge against land rights in Australia.
CRA, now Rio Tinto, the largest mining multinational in the world, played a leading role in this campaign. Its many subsidiaries have clashed with Aboriginal communities all around Australia. These subsidiaries accounted for a large part of the Australian Mining Industry Council's (AMIC) corporate membership.
The 1993 mining industry campaign against native title was also run in spite of legal advice pointing out the difficulties of proving a traditional connection with the land. But a paper prepared for the WA Chamber of Mines and Energy by the legal firm Arthur Robinson & Heddericks pointed to the real fear: Aboriginal groups "now have the opportunity to delay natural resources projects by asserting native title to land".
So the mining companies and pastoral interests approached the federal government for action. They are also aware that attempts by state governments to extinguish native title could fall foul of the federal Racial Discrimination Act.
There was a call for a national land claims process, to avoid a costly spate of Mabo-style court cases. Labor Aboriginal affairs minister Robert Tickner called for a moratorium on native title land claims until federal negotiations were completed.
The Keating government chose to exploit the narrowest interpretation of the Mabo decision to continue its tactic of divide and rule in Aboriginal affairs, discriminating between "traditional" and "non-traditional" Aborigines.
Barbara Hocking, one of the barristers involved in preparing the case for Eddie Mabo and other Murray Islanders, pointed out that the great majority of Aborigines dispossessed by force and by law were given no rights to land by this decision. Those claims, which had moral but no legal force, Hocking said, had to be addressed through the political process.
But no sooner had the discussions begun than the public debate began to be skewed by demands from the mining industry. Mining companies insisted that the real priority was to confirm their land rights, remove any duty to compensate Aborigines under the Racial Discrimination Act and, if possible, reverse the Mabo decision.
The first evidence that the ALP government was preparing post-Mabo legislation to entrench mining company rights was its support for NT legislation immunising the giant McArthur River lead-zinc-silver mine against native title claims.
Special legislation
The Wik people's claim for recognition of their native title in the Cape York Peninsula became the new focus of the mining companies' hysteria. Queensland Premier Wayne Goss demanded that the federal government insulate bauxite miner Comalco from the 35,000 sq km Wik claim.
AMIC warned that Comalco's mine in Weipa and even the entire future of mining investment were under threat. Comalco's parent company, CRA, gave the federal government a December 31 deadline to resolve the Wik claims before it decided to abandon its $1.75 billion expansion plans.
The mining industry's blackmail paid off. On July 23, 1993, a spokesperson for Prime Minister Paul Keating told the Melbourne Age that the federal government was prepared to introduce special legislation to exempt CRA from any Mabo claims in north Queensland.
On August 19, federal cabinet went far beyond this, announcing a decision to help state governments validate all land titles granted since the beginning of European colonisation in 1788.
Keating said that Aboriginal groups would still be able to seek to establish their native title through the courts, but even if they were successful, they would not be able to reclaim any land already the subject of another land use title. They might be able to gain some compensation, and mining companies would still have to negotiate with native title holders.
Human rights commissioner Mick Dodson, a representative of the Aboriginal national Mabo negotiating committee, condemned the decision.
Aboriginal groups then asked the federal government to oversee the negotiation regime. Keating refused.
The eventual deal was that Aborigines would have the right to negotiate at both the exploration and development phases, but that the negotiations could be overridden by an independent arbitral body. Furthermore, even if the arbitrator agreed with the Aboriginal objections, the state minister would have the power to override Aboriginal objections. These restriction were written into the Native Title Act, 1993.
10-point plan
Following Howard's 1996 election, and especially after the Wik decision, the mining lobby again cranked up its campaign for changes to the act.
The industry objected to being told it had to negotiate with native title holders because of the Wik decision. In the name of "certainty", Howard therefore produced the 10-point plan — land rights for miners and pastoralists at Aboriginal, environmental and public expense.
But native title is a problem for the ALP too, concerned about its relations with the mining industry and voters influenced by racist scapegoating.
If half of the people now outraged at the blatant racism of Hanson and Howard had come out in the '80s and early '90s, when the federal Labor government introduced racist policies — such as limitations on Aborigines' negotiating rights under the NT Land Rights Act, work-for-the-dole for Aborigines, the Native Title Act to limit the effect of the Mabo decision — Howard would have a much harder job today.
This makes it all the more important for the campaign against racism and in favour of native title to step up its activities. In the absence of continued pressure from a mass movement, it is possible, even likely, that the Labor Party or others in the Senate will "compromise" away Aboriginal rights when the government's bill is presented again in three months.
On November 27, before the Senate vote, the Sydney Morning Herald's Margo Kingston pointed out the closeness of Labor's position to that of the government, "and both sides are desperate to get closer". Our demand should remain the complete rejection of the entire 10-point plan.