Old Habits Die Hard: Indigenous Land Rights and Mining in Australia
The threat or opportunity of resource development often prompts a movement for the recognition of indigenous ownership and control of lands. In Australia, this is particularly true in the mineral-rich arid lands of the interior. Recognition of indigenous peoples' interest in their lands, however, was a long time coming in this jurisdiction. A number of serious implications arise from the late recognition of indigenous rights to land in Australia law, not just as regards loss of land, but in the culture of land administration and resource development that seeks to reduce the rights of indigenous peoples and secure access for development.
Indigenous Peoples and Mining
The relationship between indigenous peoples and mining is defined by struggles over access to land. The interests of resource industries, of course, lie in securing unfettered (as far as possible) access to land and guaranteeing that access over the longer term. This has sometimes meant quite heated campaigns against the recognition of indigenous rights, not just to the mineral resources or a share in the Wealth but against indigenous rights to control over land.
This is not to say that no constructive engagement has occurred between indigenous peoples and mining companies. Indeed the generalization that indigenous people are always opposed to development is mistaken. The basis of this assumption, however, is a reflection of a more complex dynamic involving not just a local indigenous community and a single resource developer, but extending to the fundamental relationship between indigenous peoples and the state in Australia and to the extent, or lack, of recognition of the rights of indigenous peoples at a national and state level.
Disputes over indigenous rights to land and resource development can jump from the local to the world stage because the questions at the heart of such disputes are fundamental -- social, environmental, and human rights issues that cut across national economic interests. Just this kind of intense interest has been shown in the dispute over the Jabiluka uranium mineral lease in the Northern Territory's Kakadu National Park.
Fighting for Justice at Jabiluka
The Mirrar, represented by the Gundjehmi Aboriginal Corporation, are the traditional owners and custodians of the area of Australia that now contains the Ranger and Jabiluka mineral leases. It is on this soil that the Mirrar and other bininj (Aboriginal) people have lived for tens of thousands of years; because of this long cultural, physical, and spiritual association with the land, the area contains artifacts and rock art of invaluable cultural and archaeological importance. Malakananja II, one archaeological site within the Jabiluka mineral lease, is considered to be of such importance that it helped put Kakadu National Park on the World Heritage list.
Uranium was discovered in the area in the 1950s. The Jabiluka and Ranger mineral leases cut across country containing the dreaming tracks of the Mirrar. Mining in the area ceased on the election of the Hawke Labor Government in 1983 (under the restrictions of the "two mine" uranium policy), but interest in mining was resumed with the election of the Howard Liberal Government. As the custodians of that land, the Mirrar (and other bininj) were concerned that mining would damage special sacred sites -- particularly at Jabiluka -- and believed that it posed a threat to their living culture.
The Impacts of Mining on Aboriginal Communities
Some sacred sites within the Jabiluka and Ranger mineral leases, such as the Boywek-Almundj Sacred Site Complex (close to the proposed uranium mine), have not been given "protection" by the mining company or by the government despite having been publicly identified by the traditional owners and custodians. The physical threat to such sites has immense cultural, spiritual, and legal significance. Land has a fundamental social and economic importance to indigenous societies, one that can be disrupted and substantially transformed by mining operations.
As the Mirrar have pointed out, the development of mines in the area brings increased presence and pressure by non-Aboriginal cultural practices, institutions, and economic values, entrenching the dominance of non-Aboriginal interests. According to the Mirrar, they
...do not argue that mining alone is impacting on living tradition -- the Mirrar argue that mining and its associated social, economic and political impacts are the single greatest impact, and that an additional mine will push bininj culture past the point of cultural exhaustion to genocidal decay.
Along with the cultural and spiritual threat comes concern that social problems experienced in indigenous communities (on the rise as the traditional cultural base is threatened) will increase. Substance abuse, violence, health problems, poor education, and cyclical and systemic poverty fundamentally transform the practice of living tradition.
Indigenous Peoples' Rights to Control Access to Land
Secure title for indigenous peoples requires the ability to exert some control over the land, including the ability to control access and development and the exploitation of resources. The status of indigenous peoples as first peoples requires a different approach to land rights -- one that distinguishes them from other tenures such as freehold or leasehold. Indigenous land rights are communal rights which have not only a proprietary aspect but also a cultural, social, and governmental dimension. They recognize that indigenous peoples continue to operate as distinct societies within the Australian state and that they have the right to do so.
These fundamental rights over traditional lands necessitate a unique and robust right to negotiate over development on the land and to require governments or developers to obtain consent to access land. The recognition that indigenous peoples may want to consider the physical, social, cultural, and economic impacts of mining projects forces projects to be developed with indigenous interests in mind. The rights to use and occupy land under indigenous law and custom are severely diminished if there is no control over use by others.
Land Rights and Common Law Native Title
While the Mirrar-Jabiluka dispute involves a statutory land rights scheme in the Northern Territory of Australia, it holds salient warnings for the enormous volume of activity now occurring under native title processes.
The recognition of an inherent right to land under the common law, similar to that recognized in the United States, Aotearoa/New Zealand, and Canada, occurred belatedly in Australia, in the High Court's 1992 decision in Mabo v. Queensland [No. 2].(1) Land rights legislation in various states implicitly recognizes indigenous peoples' rights over traditional lands. Native title, however, was seen to have a different character. In the Mabo case, the Court held that native title was a pre-existing right that survived the assertion of sovereignty by the British Crown and did not depend upon recognition or a grant from the state.
Despite the history of dispossession and dislocation of indigenous peoples from their lands in Australia, the lands to which indigenous peoples may be able to demonstrate a continued connection sufficient to establish title are significant. While native title may be most easily proved where indigenous peoples are still in occupation, the potential for recognition of native title is of course much broader. Many of these areas are, howerver, subject to competing claims of extinguishment, for example through mining activity, proposed activity, or simply because of the existence of mining tenements over vast areas.
Native title's capacity for coexistence under the law with vairous mining interests remains unclear. The scope of extinguishment will be a central question for the High Court's consideration during the Ward and Yarmirr appeals, to be heard in February and March, 2001.
The Native Title Act 1993: the Right to Negotiate Despite their pre-existing right, indigenous peoples have been asked to establish their titles under the common law through the mechanisms of the Native Title Act 1993. The Act set out a procedure for recognizing and registering native titles as well as processes for dealing with land subject to native title, and for application for native title.
Apart from any common law rights to control developments on native title lands,(2) the Native Title Act sets out certain statutory schemes for consultation and negotiation, particularly with respect to proposed mining activities. The "right to negotiate" provisions, as first constructed in the 1993 Act, required mining interests to enter into negotiations with native title holders and applicants with a view to reaching agreement. The provisions were not as strong as those in the Northern Territory Land Rights Act, but were a significant recognition of indigenous peoples' right to be consulted for approval of mining development. The Northern Territory legislation clearly has the most robust protection of indigenous interests; a virtual right of refusal on development is provided for. Statutory regimes operating in other states provide, to varying degrees, much less recognition and protection.
While there was a limited timeframe for negotiations under the Native Title Act, and indigenous peoples did not have the right to refuse the development or activity, the right to negotiate provision was vociferously opposed by the mining industry as an impediment to development and a key contributor to the perceived unworkability of native title. This campaign, which was supported by the pastoral industry, state governments, and other industry bodies -- the federal Liberal and National Parties in particular -- led to substantial amendments to the Native Title Act in 1998. An assault on the right to negotiate was a central platform of the amendment package, which saw a substantial diminution in the rights of native title holders and the protection afforded to native title. Rights to negotiate over development were removed or replaced by lesser rights to consultation or notification. The amendments also provided for state governments to establish their own alternative processes to meet even lesser standards for protection of native title.
Despite the limitation on indigenous peoples' ability to exercise control over mining and development, mining interests are still minimally required (in some circumstances) to engage in negotiations with native title holders and claimants, particularly where new grants are at issue and extinguishment of natire title is sought. A great deal of activity is taking place under the processes made available by the Native Title Act's agreement provisions.
While the 1993 Native Title Act contained a general provision for the conclusion of regional agreements, the 1998 amendments introduced a more complex scheme of indigenous Land Use Agreements that detailed both the parties to different kinds of agreements and the registration of agreements. For developers, the amendments provided for binding agreements on all native title applicants and holders, whether identified in the agreement or not, and provided inter-generational security for agreements.
For indigenous peoples, however, Indigenous Land Use Agreements have generally concerned the extinguishment of native title in favor of developments rather than an attempt to reach agreement on co-existence and shared rights over land, or even to recognize more limited impairment or suspension of native title for a particular purpose or period. Perhaps moving away from the dominant model of extinguishment agreements would alleviate some of the pressure felt by indigenous communities regarding the inter-generational implications of agreements reached now and the real risk of dispute at a later stage (as has occurred with Jabiluka).
This push for "certainty" leaves no space for ongoing or re- negotiation of agreements. This conflict, in turn, leads to the kind of dispute we see at Jabiluka with respect to ongoing monitoring of the mine's social and environmental impacts (a project that may lead to a reconsideration of existing arrangements).
Activism and Alliances
For the Mirrar, the world stage was the only remaining avenue likely to invite reopening of the Jabiluka project. Without adequate avenues in the domestic political and legal system, indigenous peoples must use the tools available to them to redress the balance of power within the state.
In gathering support for the protection of their culture, heritage, and responsibilities under traditional law, the Mirrar developed links with environmental groups, student groups, and unions across Australia (these alliances carried their own risks and did not always run smoothly). They raised awareness of the issue through a successful media campaign, legal action, and the use of international forums.
Within Australia, their activism led to a parliamentary inquiry, the findings of which supported their reasons for opposing the mine. Internationally, Yvonne Margarula (awarded the Goldman Prize for grassroots environmental activism) became the first Aboriginal person to address the UNESCO World Heritage Committee when she spoke at the forum in July 1999. Her presentation to the Committee on the mine's impacts moved them to affirm the uniqueness and importance of the Mirrar culture and the enormous threat to it.
The Committee secured an apology from the mining company, Energy Resources of Australia (ERA), and a commitment from the Australian Minister for the Environment and Heritage to improve his understanding of the project's cultural impact. Work at Jabiluka ceased indefinitely in July 1999. The Australian government, however, remains committed to the project and has since lobbied the Committee to ensure that the area is not placed on the list of World Heritage sites in danger. The Committee, to date, has deferred making a decision on the point.
The Mirrar maintain vigilance over Jabiluka's sister mine, Ranger, monitoring the negative social impact the mine is having on the Aboriginal communities in the vicinity. Mirrar fears about the safety of uranium mines are well-founded. Around May, 2000, a leak from the Ranger Mine contaminated water with manganese. Gundjehmi Aboriginal Corporation Executive Officer Jacqui Katona (co-recipient of the Goldman Prize) noted that the leak highlights the inadequate monitoring of the mine and evidences the grave threat that mining operations pose to the land.
The struggle of the Mirrar and other bininj for their cultural and spiritual ties and legal rights to the area covered by the Jabiluka and Ranger mineral leases is symbolic of the struggle occurring across Australia: indigenous Australians, despite the recognition of native title and a variety of land rights acts, face the continual erosion of their property rights by the Australian state.
The imperative for extinguishing native title is a reflection of the history of denial of indigenous peoples' rights to land. It is understood as the easiest way to make resource development and land management certain. The habits of 200 years are proving difficult to break. The direction of the industry, government, and even the courts since the recognition of native title seems to have been to restrict the scope and impact of that recognition. Even in the negotiation of agreements, the emphasis has been on removing indigenous peoples from the development at the outset through extinguishment of title. Perhaps it is time to reach more creative agreements that recognize the continuing interest indigenous peoples have in their traditional lands -- agreements that will allow those interests continued recognition under Australian law.
(1). (1992) 175 CLR 1.
(2). This aspect of native title has not been investigated fully. See Mabo [No. 2], per Deane and Gaudron regarding equitable remedies.
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