The Wik bill: land rights for mining companies
By Jennifer Thompson
Since November 19, the mining industry has been publicly campaigning for the Senate to pass the government's Wik bill. Minerals Council of Australia president, Nick Stump, told a parliament house press conference that the 1993 Native Title Act's (NTA) inability to deliver "workable" results for "time-sensitive" mineral investments was inhibiting development of the industry and contributing to the flight of exploration dollars offshore.
But the industry's claims that the act's right to negotiate provisions are unworkable, and that traditional owners should have to pass a much higher threshold test to get to the negotiating table were challenged in the same month by a new report.
Last November, ATSIC released Native Title, Mining and Mineral Exploration: the impact of native title and the right to negotiate on mining and mineral exploration in Australia, by Dr Ian Manning of the National Institute of Economic and Industry Research.
Manning's report examines the impact on the mining industry of native title and the right of indigenous people to negotiate the terms of exploration and mining agreements on their traditional lands. His results challenge the mining industry's claim that the right to negotiate has a detrimental effect on mining and mining investment.
The mining industry has a long history of campaigning against any threats or limitations to its access to land for exploration and mining from Aboriginal land holders, conservationists, pastoralists and even state, territory and commonwealth governments.
In 1985, the Hawke Labor government dropped its draft land rights legislation after a big propaganda campaign by mining companies. The WA Burke Labor government defended "states' rights" with the assistance of an openly racist mining lobby, and "persuaded" Hawke that the legislation would lose him the next election.
After the 1992 Mabo decision, some mining company executives, like Western Mining's Hugh Morgan, stooped to crude remarks about the backwardness of Aboriginal people. The main thrust of that campaign was that Aboriginal land claims, like wilderness protection, block economic development.
This time around the industry has recognised the political climate and been less openly racist, but the message is the same. The campaign has included advertisements carrying the logos of the Minerals Council of Australia and all state and territory minerals councils and chambers of mines, and under the banner "A message to all Senators", appealed to them not to block "opportunities for all Australia" [sic] by prolonging the Wik debate.
Thirty minerals industry leaders also put their names to an advertisement, authorised by David Buckingham, Business Council of Australia executive director and former Minerals Council of Australia executive director, claiming that the Wik bill was a fair and reasonable compromise between all interests.
Western Mining Corporation also ran its own advertisement on November 22, using an extract from the annual general meeting address of the company's chairperson, Arvi Parbo. Parbo, who in 1993 demanded a referendum on whether native title should be recognised, commended the government's bill for addressing "this very difficult issue".
Refuting the myths
The Manning report concludes that:
- The Mabo decision and the NTA have not prevented a high level of activity in mining and mineral exploration in Australia in the years 1993 to date.
- The Mabo decision and the NTA are unrelated to the trend to brownfields (existing mining tenements, as opposed to undeveloped greenfields sites away from production leases) exploration trends. Overseas exploration is less than has been assumed, and Mabo and the NTA are minor factors.
- The NTA has not seriously delayed exploration, but there is evidence of delays to mining. However, measures are available to minimize delays.
- Agreements reached under the right to negotiate involve expenditure by mining companies, but the amounts involved are not a serious disincentive to investment. The NTA does, however, provide mining companies with certainty of legal rights.
The report states: "The overall conclusion is that there is little, if any, hard evidence that the Mabo decision and the NTA have reduced, or will in future reduce, activity in the Australian mining sector."
Manning found that the right to negotiate gives significant new opportunities for jobs, indigenous enterprises, investment in post-mining projects and environmental protection, as well as protecting native title rights. In return for investing in negotiation and setting aside a small share of cash flow for local indigenous people, mining companies gain guaranteed legal access to the resource, an improvement in the social environment in which they operate, and an opportunity to develop a local labour force and eventually reduce their reliance on high cost labour recruited in the cities.
Governments can also reduce indigenous dependence on social security and welfare payments, reduce the demand for government-financed development projects in remote areas and improve the social environment in remote areas, with the potential to reduce the costs of social problems. "In general ... the benefits of the right of indigenous people to negotiate with the proponents of mining projects significantly outweigh the costs."
A history of greed
Manning sketches the development of the mining industry's position, beginning with the late 1960s minerals boom when the industry had near complete access to land for exploration and mineral extraction. In 1976, the Aboriginal Land Rights Act (ALRA) gave Aboriginal people in the Northern Territory and ACT freehold title over Aboriginal reserves, a claims process over other unalienated Crown land and a veto right over mineral exploration applications.
The 1992 Mabo decision recognised the existence of native title without giving much guidance on its content. Keating's NTA granted native title claimants the right to negotiate over "future acts", especially the granting of exploration licences and mining leases. The act includes processes for determining native title, expediting exploration leases, and negotiation and arbitration over contested exploration licences and mining leases. Unlike the ALRA, the NTA includes no veto right and no requirement that native title claimants act as a group.
Finally, in 1996, the Wik decision recognised the potential for native title on pastoral leases, previously assumed to have been extinguished, extending the area upon which mining companies had to negotiate with native title claimants.
Most mining companies were opposed to the ALRA, said Manning, but in the mid-'80s a group of companies began using the negotiations provisions. Mining companies had reacted in the same way to the Mabo decision, he said, and lobbied the Labor government against veto rights and to allow mining and exploration while native title was being determined.
Since 1993, the mining industry claimed to accept native title "in principle" but condemned the act as unworkable. In October '97, the Association of Mining and Exploration Companies (AMEC) told the Parliamentary Joint Committee on Native Title that it had "no political or philosophical objection to native title". However, in practise, said Manning, the AMEC proposed to reduce native title rights so that native title holders would have no more rights than pastoral lease holders, with the exception of mining activity near "villages".
The AMEC submission argued for a significantly raised registration test by the National Native Title Tribunal (NNTT) for native title claimants to access the right to negotiate, shorter time limits on the right to negotiate procedures, no right to negotiate on pastoral leases and the grouping of multiple and overlapping claims.
The submission also argued for the automatic validation of exploration and mining leases which were illegally issued by state governments, mainly Queensland and Western Australia, since 1994. The National Indigenous Working Group has accepted that some categories of leases be validated with compensation, but opposes blanket validation.
The NIWG also opposes the submission's proposal for indemnification of mining companies against double compensation of different groups of claimants, if, for example, compensation is paid to a group of native title claimants and another group is later found to be the rightful traditional owners. This proposal would only encourage mining companies to pick and choose groups of claimants friendly to their mining project, while ignoring others, said the NIWG.
Whose interests?
The Manning paper does not fundamentally challenge the mining industry's assertion of its vital importance for all Australians, but does point out that the industry employs only 1.06% of Australian workers and that its overall exports (22% of the total in 1994-95) don't represent its nett contribution to the "national economy" because of a high import bill and overseas ownership.
An propaganda piece released in April by the Australian Mining Industry Council, Shrinking Australia: The problem of access to land, illustrates the industry's hostility to other land uses or conservation.
Incredibly, it claimed that "public ownership and control of minerals and access to land", (which mining companies exploit and pay a fraction of the earnings to the government as royalties), had been deeply eroded by conservation and wilderness protection, Aboriginal land rights, freehold vetoes in some states and other restrictions, including in coastal zones and urban areas.
The mining industry has objected to two of Manning's findings in particular.
The first is that there is little evidence of depressed exploration activity after 1992, when the Mabo decision was handed down by the High Court, and that exploration surged again in 1993 and in the years since.
The second is in relation to the operation of the NTA in WA, the most important state for mining and the one which claims to be most affected by native title. Based on information from the WA Department of Mines and Energy, Manning shows that 95% of the notices for exploration licences issued by the state government with regard to the NTA have been granted without objection from native title claimants.
The WA Chamber of Minerals and Energy countered by saying there is queue of nearly 2000 applications before the NNTT. It did not explain that this is out of a total of 10,793 applications. Nor did it explain that a 1996 court case ruling that the WA government had not negotiated in good faith had forced the re-submission of 85% of mining lease applications to the NNTT.