Mabo: Where to now?

Australian Petroleum Exploration Association Conference

1994 March, 22

Mabo: Where to now?

Chairman Power, members of the APEA Council, thank you for the invitation to address this conference here today.

I think some of you here might have guessed that I'm not going to be talking about the details of Late Jurassic depositional systems. I'm going to direct some of my comments here today towards the fundamental issue of access to Aboriginal land for exploration, be it petroleum exploration or mining, and I want to talk off the cuff about some issues arising out of the process that we've undergone in this country since the High Court decision on Mabo.

I thought that this kind of approach might help to proselytise people towards our cause. I was in attendance at the AMPLA seminar last year when I mentioned that I felt like I'd parachuted behind enemy lines. I must say that today I feel quite a bit less anxious.

I think the fundamental lesson to be drawn out of Mabo, one which has not been easily taken on board, is the fact that there has got to be a re-wiring of the relationship between the Aboriginal community in this country and the mining and petroleum exploration industries. There's got to be a fundamental re-wiring because we've re-wired the state of our common law in relation to Aboriginal rights to land.

Prior to 3 June 1992 the common law of this country considered Aboriginal people 'legally' in the status of animals, because they were seen as feral animals roving over the landscape, not having any traditional soil. This was inconsistent with the position of the United States Supreme Court back in 1823, in the famous Johnson v. MacIntosh court case, and inconsistent with the decisions in New Zealand back in 1859 and Canada in 1971.

All of these court decisions affirm that English common law would recognise an aboriginal title, even as British sovereignty was acquired over the new colony. So Australia came around belatedly to a position of recognising that the Aboriginal people were not as animals roving over the landscape, but were in fact a people capable of having respected proprietary interests in land. That recognition came so late in this country, and the lack of recognition occurred in the first place because of racial discrimination.

The Aboriginal people of this country, it might be fair to say, were considered amongst the lowest if not the lowest of any peoples across the face of the planet. Aboriginal social organisation disclosed a kind of stone age quality that defied their being recognised as human.

There were tribes in Africa that were accorded recognition of their traditional title by the Privy Council and the courts in England because they disclosed systems of political representation, systems of hierarchal social organisation. Others were not so fortunate. In the classic decision, Re Southern Rhodesia, the Privy Council characterised some tribes as being so low in the scale of social organisation that it would be idle to impute to them any kind of proprietary interest in their traditional lands. That judgement is quoted in the High Court's Mabo decision. In Australia there was a very strongly developed view, one which still lingers in the political consciousness of this country, that Aboriginal people were simply not up to the mark, and fell within that category of people who were down at the bottom of the spectrum.

Remember that before Mabo, there had been no legal  decision against native title and in favour of the notion of terra nullius. But what the High Court said was that the assumption that lawyers used in teaching real property at law school, and the assumption that pervaded the way in which Australians viewed the position of Aboriginal people, that assumption was based on racial discrimination. It was an assumption that here in this country were a people so backward that they could not be said to be entitled to the protection of English law, even though that law of the colonists was unequivocal about the rights of indigenous peoples in other colonies.

The only reason it was equivocal in Australia was because of this assumption of racial inferiority. And in Mabo the High Court said that common law could no longer be seen to be frozen in an age of racial discrimination, and that common law would no longer inquire as to people's social organisation in order to accord them rights and interests in land.

In the classic phrase of Mr. Justice Brennan: 'land is susceptible of ownership, no matter who might be in occupation'. That lies at the crux of the Mabodecision. In my view, this abandonment of racial discrimination and a re-wiring of the Common Law in relation to Aboriginal rights to traditional lands has come very late in the day, and will accrue few benefits to Aboriginal people, because most of the titles in the settled areas of Australia have now been extinguished.

But this recognition does mean a great deal to those industries that are most in contact with those regions of Australia where there may be remnant titles. It means that there is an impact on those industries' relationships with Aboriginal people. Of course, the mining and petroleum exploration industries are at the coal face of dealings with Aboriginal communities, and it is at that level that the relationship must be re-wired, because Aboriginal title will no longer suffer denial. The processes established by the Native Title Act, and indeed rights that are conferred upon Aboriginal people via the fact that they have access to the High Court, will mean that those industries will have to take a very close look at how they can restructure their relationship with the Aboriginal community.

I consistently said throughout the Mabocampaign last year that fundamental to the post-Mabo scenario was a reconciliation between the Aboriginal community and the mining industry.

It is reconciliation that this country really needs as a matter of urgency, but that reconciliation will not take place if the industry is unwilling to take on board a new regime for dealing with the Aboriginal people. Because the dealing is no longer based upon charity, it's no longer based upon the presumption that all Aboriginal rights emanate from crown largesse and crown right. After Mabo, it's clear Aboriginal rights arise out of law. They are a matter of right, and that right emanates out of the English law that was bought on the shoulders of the colonists who landed at Botany Bay in 1788.

It is the guarantees of that law which say that Aboriginal right is not a matter of compassion or largesse, or sympathy in the polls, or in the corridors or parliament. It is a matter of law, it is not a matter of referenda and how much political support there might be in the broader community for the recognition of these Aboriginal rights: it arises out of a fact of law and whether the country is prepared to be subject to, and to obey, the rule of law.

There are some problems that I'd like to identify in trying to re-wire this relationship. One is an example in Queensland in relation to a State Government proposal to create a resource reserve in a land deal up at Starcke, a cattle property that was acquired by the Queensland government in order to prohibit overseas sale by the owner, and to enable conservation protection for the land.

But here the Department of Mines and Energy in the State have set about to create a resource reserve with the theoretical possibility of gold mining taking place, and there are two extreme positions that have emerged in this debate. The one extreme position is the Government's saying it's got to be a crown reserve. The other extreme is the green movement's position, saying it's got to be locked up from any mining access, perhaps as a national park. The Aboriginal community has argued that it should be Aboriginal land, saying that if there is a proven resource, 10 or 15 years down the track, it is well known that access to Aboriginal land is legally available as a matter of right, and that Aboriginal communities have demonstrated a willingness to allow resource exploitation on their land. But instead of accepting this middle-ground compromise the Queensland Government insists that it be a crown reserve: which means that the Aboriginal people line up behind the green movement to oppose any development there, because they don't have a stake in whatever mining might take place there.

It is dumb politics that the Queensland Government is insisting on, and I don't think it's a politics that really understands what post-Mabo should be done about. Post-Mabo should be the industry dragging Aboriginal people on board in terms of access to benefits, so that there is maximum common ground located. Because no longer will people suffer a situation where they are going to be looking over the fence to see companies reaping benefit on their traditional land, no longer will people suffer that situation. It might have happened back in 1958, it might have happened back in 1964 and in 1975. But the fact of the matter is that people now have legally enforceable rights, and it's in the industry's best interest to acknowledge that and identify ways in which the Aboriginal interest can be accommodated. Just as the companies have shareholders whose interests need to be satisfied and looked after, the Aboriginal communities also have their shareholders whose futures must mean more in a post-Mabo environment than a hole in the ground. After the companies have departed there has got to be more provision for a future than that.

The other problem that I'd like to address is the J-CALM initiative under the Council for Reconciliation, which is a worthwhile initiative, one which I hope will reap some benefits. There is a proposed meeting later this month between the executive directors of major resource companies and leadership of Aboriginal land councils. Unfortunately one of the issues that arose to cause division in the first instance in organising this meeting was an insistence on the part of the industry that the Aboriginal land councils be represented by chairpersons of the organisations. You can imagine that directors such as myself were loathe for a) the mining companies to be telling us who should negotiate on our part and b) that the invitations were to chairpersons, who have been elected by Aboriginal constituents because they represent Aboriginal authority, not particularly because they have any expertise in dealing with resource companies.

So it led to a situation where we were having a brawl about a very basic point about one side saying that we should be represented by particular people in our organisation. Now I would say the industry's fear of the black young radicals running Aboriginal organisations must be put aside. Because the fact of the matter is that you would not deal with each other without being firmly equipped with the arsenal of knives that you need to commercially negotiate prosperity for your companies. You wouldn't dream of dealing with each other without appropriate expertise being at hand: and yet there is still a lingering insistence that in dealings with the Aboriginal communities that you should be able to deal with noble old men who you can bring like babies to the contract, take their lollies and allow them to dribble on the dotted line.

The Federal Government must seriously think about enhancing the negotiating, impact assessment, and planning capacities of Aboriginal organisations and Aboriginal land owners: the Native Title Act must be adequately resourced in order for it to work. All of those processes that native title legislation requires must be funded realistically if those processes are going to work. It's only by increasing Aboriginal capacity that we'll move beyond a defensive phase and in to an offensive phase, where people are pro-actively seeking projects on their own land, rather than just reacting to exploration.

I think the Aboriginal community needs to be empowered in order to get to that stage. One of the necessary implications is that people are going to be striking more serious deals on the part of the Aboriginal communities, but that is a consequence which companies are going to have to wear, because as I said before people will not suffer a situation where they are marginalised from benefit. We will see an increasing Aboriginal capacity to negotiate and thread their way through the black and red and green tape.

I think in the long term it will mean there will be more resource projects on Aboriginal land than there are at the moment.

Another thing that the Federal Government needs to seriously think about is Aboriginal equity - participation in resource projects. I think equity in terms of direct negotiations between Aboriginal people and resource companies is definitely something that will be on the agenda. But perhaps if there was established an equity bank that Aboriginal people could access in order to get involved in joint ventures with resource companies on their land, I think that might make a worthwhile post-Mabo response which would facilitate more activity on Aboriginal land.

The third initiative is trying to persuade the Federal Government towards tax incentives for exploration on Aboriginal land, particularly where companies negotiate agreements with Aboriginal people without resort to all of the legislative infrastructure that has been set in place, because the native title negotiations and arbitration procedures are procedures that I hope are going to be our last resort.

Up front there exists enormous opportunity for negotiated outcomes between Aboriginal people and resource companies. We have talked for some while amongst the Land Councils about the need for a way in which resource companies are credited for the amount of expenditure they put into developing and increasing the economic development capacity of the Aboriginal communities on whose lands their projects are situated. There has to be a means of giving companies credit for doing that, so they are encouraged to do more, and encouraged towards the view that there is a joint economic future involved. Because without capital from resource exploitation, Aboriginal communities virtually have nowhere else to go in order to establish some kind of economic self sufficiency.

As to amendments to the Native Title Act, I would argue that there are already provisions in the act which guarantee existing rights to resource companies. It was the Aboriginal community that first put forward the peace plan which agreed with the need for validation of existing titles. We met with the Prime Minister in April last year, and made it clear we understood and appreciated the need to guarantee security of existing titles, including mining titles.

So I find it a bit rich that there is this kind of second wave coming over the top, saying the industry now needs further provision. One of the provisions that was defeated during the Senate phase was the provision that would have provided perpetual rights and renewal without negotiation. At the end of the day, as everyone would know, there is already provision for Ministerial over-ride of decisions of the arbitration body, so there's all sorts of guarantees in the Native Title Act for the position of resource companies.

I would consider it a serious breach of the settlement that's been reached with the Federal Government and the Australian people on Mabo, if there was any serious contemplation of amendment of the Native Title Act in favour of further guarantees towards the resource industry.

In conclusion I've got to say: the Pitjantjatjara and Maralinga experience, the earlier deals for exploration access that were struck in the eighties and the more recent Jawoyn announcements, for me they reflect the fact that in that area of the country you have a confident Aboriginal community, confident in the breadth of their ownership and confident in their negotiating position. There is therefore a willingness to sit down and seriously negotiate exploration access. It is in those areas of the country where there's uncertainty on the part of Aboriginal people, that any mention of resource exploration is regarded suspiciously, and unfavourably.

The industry commission said very early back in 1991 that if Aboriginal people are going to be encouraged towards accepting resource exploitation on their land, they need to be given confidence and they need to be given control. Because it's people who don't have control who are going to be most opposed to exploitation of their land.

Finally, I think the number one lesson for companies, as opposed to political parties, is that there needs to be a suppression of ideology. Suppress questions of whether reconciliation is important, suppress questions of whether Aboriginal people deserve rights, suppress questions of whether the High Court was wrong or right, and think very hard about where it is that there might be a common interest between the resource industry and Aboriginal people. At the end of the day that common interest will be the best lubricant for better race relations in this country and that might be common interest in some kind of weal.