The Australian mining industry is worried over what it sees as a sudden change in the rules through the Mabo decision in June last year. The uncertainty is affecting present and future investment in Australia.
The industry’s advertising campaign a year ago illustrated the importance of mining to Australia. Recently, it contributed about $4.5 billion a year to government coffers. It spends $800 million a year in exploration and produces about $11,000 million in non-fuel minerals, aside from all the benefits in wages and community facilities.
Now, it says, changes to the rules on land tenure jeopardise that. Miners simply do not know where they stand on exploration and exploitation of minerals. Who owns the land and the minerals in it since Mabo? They want a return to certainty.
People do not like sudden changes to the rules.
The Australian Aboriginal and Islander population was profoundly affected by the sudden changes of the rules 205 years ago. After 40,000 years, the rules suddenly changed. That was after 40,000 years of evolution of custom and practice and organisation of society. Aboriginal people want a return to that dignity and self-respect. They see Mabo as a means to an end.
Now the election is over, those affected by Mabo (Aboriginal groups, miners, pastoralists and state and central governments) are mobilising again to get they best result for themselves and the Australian community.
The Prime Minister, Paul Keating, reportedly told his staff after the election that Mabo was a great opportunity to reach reconciliation with Aboriginal people.
Obviously that is a political opportunity, not a legal one. Ever since the 1967 referendum, the Federal Parliament has had legal power to legislate with respect to Aboriginal people; it is just that it has chosen not to do so. The Hawke Government reneged on its promise for national land rights legislation like that introduced by the Fraser Government in the Northern Territory. It reneged because of rebellion by Labor states.
With Mabo, however, the Federal Government will not be imposing something on the states; the imposition will have come from the High Court. The Federal Government will merely be seen as administering its effect.
In October, the Federal Government announced an 11-month consultative process. Some of its options have reportedly included a statutory tribunal to work out individual claims; giving Mabo a statutory base; putting Mabo in the context of general reconciliation and perhaps big-scale constitutional change, including the republic.
The Western Australian Government has called for a summit.
The miners and pastoralists have been talking, publicly and privately. Yesterday, for example, the executive director of the Australian Mining Industry Council, Lachlan McIntosh, was in Perth at an industry conference, publicly arguing the miners’ case.
Aboriginal groups are acting to. The Council for Aboriginal Reconciliation has launched a two-year consultation program.
The interests are divergent and incompatible. The differences are not only on what should happen after Mabo, but how it should happen and how quickly it should happen. The differences cross cultural divides: not only between white and black, but between private and public sector.
How Australia resolves those differences will be a test of our political and social institutions.
In the past week a major difference of approach has emerged between the miners and Aboriginal groups. The miners want a speedy resolution. They say delays in large investment are costly and that Australia could lose opportunities to elsewhere.
“”Australia was attractive to investors in the 1970s and 1980s partly because many developing countries imposed significant barriers to foreign investment in natural resources,” Mr McIntosh said. “”This has changed. Developing countries are now actively pursuing foreign investment in minerals as a means to economic development.”
If the land-tenure uncertainty was not resolved quickly, investors would go elsewhere.
The miners quite like the 11-month time frame of the Federal Government. They certainly do not want resolution to be postponed beyond that.
It is all very well for the miners with access to telephone hook-ups and jets. And it is all very well for Aboriginal groups with access to government-funded travel, cars and phones. But what about Aborigines living away from these things and living in places where access to phones and the like is limited? In other words, what about the very Aboriginal people to whom Mabo is most applicable: those living in a traditional way with close ties to the land. These are the very people most likely to fit the criteria set in Mabo to make land claims; yet the way things are running now, they are the least likely to get a major say.
Moreover, traditional Aboriginal communities are not given to fast decision-making. Lots of talking over a long period is their preferred way of doing things.
There is a clash of culture. Not only do we have a conflict about land tenure, but we have a conflict over the way it should be resolved. The Western way is talk for a bit and if that does not work, go to an umpire (a court) and accept the umpire’s decision.
The imposition of that culture upon Aboriginal ways of doing things has never been satisfactory. The administration of the Land Rights Act in the Northern Territory resulted in some destructive disputes in the early 1980s between competing Aboriginal groups for the same land, largely because of legalistic criteria set down in the Act. The result in the Northern Territory has been the creation of two dominating land councils (northern and central) in whom huge power and land holding is vested. This was probably contrary to the original aims of the Act which was to have many small councils holding smaller areas in trust for the Aboriginal owners.
Further the nature of the holdings (unalienable) has stunted development. Not one mining project has begun in the Northern Territory since the Act was passed. The most recent plan, at MacArthur River, is under possible land-rights claim. And mining projects have given direct benefits to Aboriginal people in the form of housing, community facilities, education, training and wages. And perhaps they have been more directly applied than a lot of government money.
Australia must not repeat the mistakes of the Northern Territory experience with the resolution of Mabo.
How are individual claims to be met? At present people claiming indigenous or native title can take cases to the court one by one, seeking a declaration that they have title. Courts may decline to give declarations unless there is some demonstrable threat to the title. Would it be better to set up a tribunal to met claims and then give them a statutory base, rather than going through long and expensive court processes? A tribunal can have different evidence rules and work more quickly.
Two claims have already been lodged in Western Australia. One, a claim for an area the size of Victoria from Broome to Wyndham began in the Federal Court, but was transferred to the state Supreme Court. Land tenure is essentially a state matter.
The Council for Aboriginal Reconciliation wants a process for definition, recognition and negotiation of rights, to overcome uncertainty and the potential for conflict. It prefers negotiated agreements.
Mabo or not, it wants to see whether a document of reconciliation would be of value, and if so what form that document would take.
What is native title? The High Court did not spell out exactly what native title is, other than to say it depends on the custom of the group claiming it. This means it is likely to vary from case to case. The two Western Australian claims leave open the possibility that native title an Crown mineral rights might co-exist. Even so, rights to explore for minerals and rights to build a mine and mining township might not be. Obviously, there has to be an accommodation. The exact nature of the title is of great concern to pastoralists and miners.
The miners say they are not unsympathetic of sacred-site protection and have a good record of co-operation with Aboriginal groups. Their fear is that native title will be used to stop exploration and exploitation or to make it prohibitively expensive through royalty claims. However, they are not against paying some royalty.
How is native title to be protected, if at all? Mabo did not give absolute title. State Parliaments might still be able to find away to extinguish native title provided they do not breach the Racial Discrimination Act. Politically, however, that would be a dangerous course. None the less the Northern Territory Government has introduced a Confirmation of Title to Land (Request) Bill seeking Federal law to protect existing titles to land. It shows the will is there.
The Chief Minister, Marhall Perron, justified the Bill saying, “”The possibility that existing interests may not be valid extends beyond the pastoral industry, the mining industry and land in urban centres.”
The statement is unmitigated drivel. He either hasn’t read the judgment or doesn’t understand it. The High Court made it clear that existing titles, lodged for example at the Land Titles Office, are absolutely secure against claims for native title.
The Federal Government has power to enact a law that would further protect native title against state law. The only thing that stands between state Government action and native title is the racial Discrimination Act. If, however, a state Government enacts a law to resume land in a non-discriminatory way, the native title will be lost.
Conclusion: Mabo did not rewrite the law; rather it restated history. The law did not cause dispossession; the acts of humans did (see panel). Its importance lies in its practical effect, not the theoretical statement. Native title as stated in Mabo is legally very fragile. It can be extinguished with legal ease. However, the act of recognition of native title is politically potent. It has given rise to great expectations it has also given rise to great fears. Inevitably both have been overstated.
The quest now is to find an accommodation that satisfies enough of the expectations and alleviates enough of the fears to allow fulfilment of Aboriginal Australians’ aspirations without jeopardising the wealth-generation of the whole society.
The significance of Mabo is that that quest has now begun in earnest. Before Mabo it was forever being postponed.