By Peter Boyle
The Wik people's claim for recognition of their "native title" in the Cape York Peninsula has become the latest focus of the mining companies' hysteria over the consequences of the High Court's 1992 Mabo decision. Queensland Premier Wayne Goss is demanding that the federal government move to insulate Comalco, which mines bauxite in the area, from the 35,000 sq km Wik claim — just as the prospective Macarthur River mine has been protected from such claims by the Northern Territory and federal governments.
The Australian Mining Industry Council has warned that Comalco's mine in Weipa (which accounts for "10% of the Western world's bauxite production and supplies the world's largest alumina plant in Gladstone") was under threat. In fact, AMIC says that the entire future of mining investment in Australia is threatened as a result of uncertainty about land titles created by the Mabo decision. CRA, the parent company of Comalco, has given the federal government a December 31 deadline to resolve the Wik claims before it decided to abandon its $1.75 billion expansion plans.
What the Wik people want
But the Wik people insist that they are not trying to stop mining. Rather, they are seeking to have a real say in the terms of mining and other operations on their traditional land, to obtain some compensation from Comalco and the Queensland government and a share in the massive profits that Comalco has made since mining at Weipa began in 1957.
The poor treatment of the Wik people by Comalco and the Queensland government has been documented by historians. They have been forced off their land, bullied into all sorts of arrangements in the company's interests and left in poverty. Dinny Smith, a former member of the company's cross-cultural relations program admitted, in the July 31 Age that it was only after 34 years of operation that Comalco was beginning to learn to relate to Aboriginal people affected by the mine.
The Wik claim will also test out the viability of a minority view expressed by one of the judges in the Mabo case — that the government owes a special duty of trust to Aborigines whose native title to land was extinguished by their actions. If they succeed in this argument the Mabo case will allow claims of compensation for Aboriginal groups affected by land grants made before the 1975 Racial Discrimination Act.
Keating's response
At this stage the federal government appears prepared to allow the Wik claim to test out this argument, and has so far resisted the calls for pre-emptive legislation. Prime Minister Paul Keating >The Commonwealth wants to see the [Comalco expansion] project proceed but we are not about obliterating people's rights at law, particularly when it is not necessary" (emphasis added — PB). Keating's statement may reflect a confidence that the High Court is unlikely to expand the real rights conferred by their symbolically significant Mabo decision but he may be hoping to use a fake conflict with the Goss government to cover his betrayal of Aboriginal interests in the soon-to-be-finalised federal legislative response to Mabo.
Keating said that Goss was being "spooked by mining companies" and certainly the mining companies have been spending large amounts of money on an anti-Mabo campaign. While some mining executives, like Western Mining's Hugh Morgan, have stooped to crude remarks about the backwardness of Aboriginal people focussing around demands that all its leases and permits, the main thrust of the mining companies' campaign is that Aboriginal land claims — like the concerns of environmentalists about the effects of mining — will block economic development.
'Exploration frozen'
CRA, the third largest corporation in Australia, plays a leading role in this campaign. Its many subsidiaries have had a conflict- ridden history in dealing with Aboriginal communities all around Australia. These subsidiaries account for a large part of the AMIC's corporate membership and the CRA plays a leading role in the AMIC's Aboriginal Affairs Committee.
AMIC has claimed that the limited veto rights given Aboriginal land owners under the 1976 NT Land Rights Act have "almost frozen exploration" on Aboriginal land which accounts for 39% of the territory. From the time the Act was passed to March 1993, the NT government had received 544 applications for exploration licences. The AMIC claims that the government has consented to negotiations with Aboriginal land councils on 403 of these, but that the land councils have only granted mining permits on 43 mining applications.
However, the NT land councils show how deliberately misleading these oft-quoted figures are. First of all only 372 of these applications have been passed on to land councils, 47 have since been withdrawn, 54 have been consented to by Aboriginal land owners and 121 remain under negotiation. Only 150, less than half, have been refused consent by Aboriginal owners, as is their right.
According to new Northern Land Council director Darryl Pearce, the mining companies and the NT government don't point out that there are in fact 12 mines on Aboriginal land in the territory. These produced more that $1 billion of minerals in 1991 or 80% of the total value of NT's mineral production.
The AMIC has disingenuously tried to foist the blame for a slow down in exploration due to low prices for most minerals in the borigines. While the mining companies have cut back their investment in exploration, they have proved more profitable than others through the recession. They are determined not to share any of these profits with impoverished and marginalised Aboriginal communities.
Garth Nettheim, professor of law at New South Wales University, has dismissed the mining companies' scaremongering. The mining industry always talks in "apocalyptic terms", he told The Bulletin recently. But though it had genuine cause to seek clarity about the validity of mining leases and exploration permits the industry should be prepared to negotiate with indigenous peoples in Australia as they have to in other parts of the world.
Canadian and US experience
A 1986 study of indigenous people's resource rights in North America and Australia, undertaken by Stuart McGill and Greg Crough for the federal government found that indigenous people in the United States and Canada enjoyed significantly greater benefits from mining operations on their land. Some examples they gave of deals in the US were:
- A 1974 uranium mining agreement between Exxon and the Navajo Tribe which gave the Navajo a US$6 million exploration bonus, royalties between 12% and 25% of the value of the ore.
- A 1975 oil deal between Damson Corporation and the Blackfeet Tribe which gave 16% royalties and 50% of net profits.
- A 1980 deal between Amax and the Colyville Confederated Tribes to mine molybdenum for up to 50% of the operating margin on top of some US$30 million guaranteed payments.
Just this March the Inuit people have reached an agreement with the Canadian government which includes title to 350,000 sq km of land, mineral rights over 36,300 sq km, $580 million cash settlement, resource royalties and a $13 million training trust fund.
AMIC argues that the Canadian and NT experience is irrelevant because under Australian law the state and federal governments own the all mineral deposits. The mining bosses say that they pay these governments royalties and so they should not have to get the permission or negotiate with Aboriginal landowners. If any rights to compensation arise out of the Mabo decision, AMIC says this should be governments' responsibility.
Aborigines' veto right
However, the limited right of Aboriginal land owners under the NT Land Rights Act to veto mining does give them some bargaining power vis-a-vis mining companies, and this is what the mining companies have been seeking to have removed. (This is not such an exceptional right, as the AMIC claims. Private owners of freehold pastoral properties in the south-west of WA have the right to veto mining too though the mining industry has tried to too.)
The right to negotiate for some gain from mining on their land is the least Aboriginal communities should be allowed given that all the most fertile land has been taken up in private freehold land by non-Aboriginal people. A Saulwick Poll published in the August 4 Age found that 51% of those polled in a national telephone survey supported Aboriginal landowners' right to veto mining on their land.
In 1987 the federal Labor government sought to reduce the NT Aboriginal landowners' veto rights by legislating so that once consent to exploration was given, Aboriginal landowners lost their right to veto actual mining. This amendment is partly to blame for dragging out negotiations between Aboriginal landowners and mining companies seeking exploration permits, according to Central Land Council director Kumantjay Ross. The NT Act, as amended, makes it difficult for traditional owners to make agreements with mining companies which safeguard their rights as they have to stitch up deals at a stage in the process when the viability — let alone worth — of the mine is uncertain.