The Mabo and Wik Decisions: Importance to Australias Mineral Industry - Research Paper Example

The Mabo and Wik Decisions: Importance to Australia’s Mineral Industry Introduction From the time Australia was inhabited, minerals have become a natural part of its way of life and progress. Its first miners – the Australian aborigines, who used minerals in coloring their paintings in ancient rock, which was integral to their heritage (“History of Australia’s Minerals Industry,” par. 1), had in fact been mining the land for more than 40, 000 years even before the First Fleet of English colonizers landed on Sydney Harbor (“Mining by Aborigines,” 1; “Australian Mining History,” par. 1-2). As Galarrwuy Yunupingu – Northern Land Council’s chairman stated: “Our ancestors have been here since the beginning of time. European scientific evidence is catching up without our traditional knowledge: the latest scientific findings of at least 60, 000 years of aboriginal occupation. We know it is even longer than that” (1). This solidly invalidated the long time belief of “terra nullius” (Forbes, qtd. in Sharp 207) – “an uninhabited territory, an empty land” (Whitehouse-Strong 180), which not until the High Court’s decision on the Mabo case in 1993 had been the Australian Government’s basis in its treatment of the Aboriginal peoples, particularly on the issue over land ownership (Charlesworth 13). The English colonizers rationalized their declaration of Australia as terra nullius on the following grounds harshly discriminating and demeaning to the Aboriginal peoples: first, that Aboriginal peoples are not yet “fully human” (Russell 255) – “that Australian aborigines are a relic of some primitive or infantile stage of human development, and that they are not capable of thinking at the same level as Europeans” (Reynolds qtd. in Charlesworth 15), thus were incapable and powerless to exercise “sovereign authority” (Russel 41) over their lands; second, that “the Aboriginal people are ‘doomed to extinction’ so that as a distinct community they will eventually die out and be assimilated within the white community” (Charlesworth 16); and third, that the Aboriginal people are basically nomadic which the English colonizers’ cultural ignorance of the Aborigines way of life misunderstood as the Aborigines’ lack of interest to own and exploit the land (Ibid). If we look in the past, actually the Aborigine people came first before the European that was in the 18th century. However, at that time the Aborigine people did not know what they had to do in having an authority or power for the land. Moreover, Aboriginal land ownership was based on their custom and tradition, not a formal written land title system. (“Land Rights of the Aborigines,” par. 2) Therefore, “the original Aboriginal inhabitants did not constitute a sovereign state or nation so that it was not legally possible to establish a treaty between them and the newly arrived representatives of the English Crown” (Charlesworth 13). Founded on this belief, the so-called principle of ‘settled colony’ – the view that “Australia was ‘settled’ rather than acquired by conquest of the aborigines or by cession by them under a treaty” (Charlesworth 12) – had been exceptionally applied by England on its six colonies established in the Australian continent (legitimizing the Euro-Australian) government’s refusal to grant or acknowledge the claim of the Aborigine peoples’ right to land (Brennan 5; Hocking 207). With the “the colonization of Australia … founded upon a history of legislation that discriminated against and deprived the Aboriginal people of rights to their traditional land” (Bartlett 46) had marked Australia with the continuing conflict between the aborigines and the non-aborigines on land rights, which to this date had resulted to significant cases of land claims by the Aboriginal peoples: “The cases of Mabo v. Queensland in 1992… (which) opened the floodgates in Australia… for indigenous populations to litigate claims to land titles that had been assumed settled for centuries” (Schiveley 427); “the enactment by the Commonwealth government of the Native Title Act 1993” (Morgan, sec. 2, par. 4), which “sought to incorporate the principles of the Mabo case into Australian land law and management” (“Land Rights of the Aborigines,” sec. 4, par. 10); the Wik case in 1996, which ruling has exposed “a much greater area of Australia over which native title claims could be made” (par. 7). Sadly, although the above cases have tenuously brought the Australian legal system into recognition of the Aboriginal peoples’ long fought concept of native title as basis of land right in Australia, this on the other hand have caused further debates and created more uncertainties to business, especially on mining, which “since the mid-nineteenth century… has been one of the most powerful forces shaping Australia’s economy and society” (Bell 37), and which “geographical imperatives” (27) are in the very land of the Aboriginal peoples. In fact “State governments who viewed the Native Title Act unfriendly to business, initiated a campaign of obstruction… (by) refusing to issue mining and exploration tenements – to force change by the Federal government” (Nugent 1). I. Australia’s minerals industry: A history of racial conflict The glitters of minerals in Australian history do not only show the richness of this continent in minerals, which gold (a very precious mineral) production after 1851 – “that provided a major stimulus to economic development” (Doran 37) – was 40-percent of the world’s total produce (Fitzpatrick 102; “History of Australia’s Minerals Industry,” par. 2). Australia is one of the world's leading mineral resources nations. It is the world's largest refiner of bauxite… the fourth largest producer of primary aluminium… the largest producer of gem and industrial diamonds, lead and tantalum, and the mineral sands ilmenite, rutile and zircon… the fifth largest producer and largest exporter of black coal… the second largest producer of zinc… the third largest producer of gold, iron ore and manganese ore… the fourth largest producer of nickel… the fifth largest producer of copper and silver… the world's largest resources of low-cost uranium. (“History of Australia’s Minerals Industry,” par. 4) But it also painfully reveals Australia’s course of economic progress as entwined with the Aborigines’ determined struggle on land rights against the non-aborigines, who have been mining their lands … in large quantities from the early days of European settlement at Sydney Cove… The first metal mined in Australia was lead at Glen Osmond in South Australia in 1841. The young colony was quick to start exporting agricultural products but by 1850, exports of copper and lead from South Australia earned more than Australia's exports of wool and wheat (Ibid, par.1) The influx of non-aborigines – settlers, speculators and mining companies – to Australia started upon “the discovery of gold in 1872 and the development of the pastoral industry… a phenomenon, which has continued ever since… (and) the first Aboriginal people to be dispossessed were those unlucky enough to live in places where the towns were built” (Yunupingu 2). Given the extractive nature of mining – “Mining is non-sustainable, inevitably depleting and sometimes extinguishing the commercial resource” (Bell 28) – and the quick impact it could cause on Aboriginal communities, mining has effectively sharpened racial conflict between Aborigines and non-aborigines with the State governments favoring the latter in total disregard of the Aborigine peoples’ culture and land right. “In the clamor of the gold rushes, specific ethnic groups found it difficult to assert their identity amid the great cosmopolitan throng that surrounded them, and in the face of powerful economic forces at work enforcing standardization” (Bell 32). “Local Aborigines lack the skills necessary to gain anything but unskilled positions with the mining companies” (“Aborigines and Uranium,” 296). As mining is contributing significantly to the economic growth of Australia, the government in return provides an ‘investor-friendly mineral law policy’ wherein mineral rights remains in the Crown while regulation through issuances of leases and licenses are given to the states and territories granting mining companies exploration tenements – giving the lessee the sole right to explore in an area for a specific period of time – and mining tenements – giving the mining companies full possession of their mined deposits. These consequentially put indigenous land issues into adversarial position (Nugent 5-6). Especially so that historically, the mining industry has consistently campaigned against any obstructions or restrictions “to its access to land exploration and mining from aboriginal landholders, conservationists, pastoralists and even state, territory and commonwealth governments” (Thompson, par. 5). However, later years will put mining under question that would result to Aboriginal rights over vast tracts of land, especially when environmental protection issues have emerged. The economic benefits of mining as a priority land use were starting to be questioned from another quarter - in the mid- 1970s, title to extensive tracts of land in the Northern Territory and some States was granted to traditional Aboriginal owners. One result of this was that companies had to obtain the consent of the Aboriginal owners before they could explore or mine on such land. Because of the significance of land to Aboriginal society, and because of the owners’ wish to minimize the effect of a different culture on their traditional way of life, this requirement resulted in prolonged negotiations. The consequent added costs and uncertainty of the mineral exploration process meant that such areas have been less explored, in general. (McKay, Lambert & Miyazaki, sec. 3, sub-sec. 3, par. 1) Particularly in 1984, acting on the belief that “restricting Australian exports of uranium could constrain nuclear proliferation” (Quiggin, par. 1) the introduction of the Federal Labor government of the ‘three mines policy’ that restricted Australia to only three sites of operational uranium mines: Ranger, Nabarlek and Olympic Dam was felt unnecessary by the mining industry (“Prospect or suspect –uranium mining,” sec. 6, par. 1). But on March 1996, the elected Coalition government (Ibid, sec. 7, par. 1) abolished the ‘three mines policy’ as a way of the government to benefit Aboriginal peoples who would be compensated for the use of their land (“Mining and the Australian Environment,” sec. 2, par. 1-2). Mining in Australia remained controversial on issues confronting Aboriginal people, but on a positive note recent, recent developments show mining companies compromising with Aborigines, as more open-minded companies have found the wisdom of better establishing good working relationship with Aboriginal communities rather than provoking them to hostility and violence, which most likely would cause further delay in project development (Gray, sec. 5, par. 1). For example “in September 2002 the company responsible for the Jabiluka mine site in the Northern Territory announced that the mine would not go ahead without the consent of the local Aboriginal people” (“Prospect or suspect – uranium mining,” sec. 9, par. 1). And “in mid-1990s… Rio Tinto shifted its own policy position to advocate negotiated settlement of Native Title issues on its own mining and exploration projects” (Carnemolla & Howitt, sec. 2, par. 1). The conflict between Aborigines and mining companies over land use has always been an issue of concern in government legislations, which differ as the government changes its leadership. Former Prime Minister Keating wanted to avoid further litigation and even more complex legislation by negotiating an agreed outcome with indigenous leaders. Prime Minister Howard wanted a return to certainty by limiting the entitlements of native titleholders to what miners and pastoralists found acceptable and leaving land management issues to the States. (Brennan 6) Yet, as presented earlier, the bottomline of the contending views between Aboriginal people and mining companies rests on the Aboriginal peoples’ claiming back of their land, which they asserted was taken away from them by English colonizers. II. The Mabo and Wik Decisions: Aboriginal Peoples’ Land Rights over Mining Companies? As signaled by the Mabo case and the Wik decision, “the period from 1992 to the present was marked by great changes in the Australian domestic legal landscape with potentially serious implications for the country’s mineral law policy and the continuing health of the mining industry” (Nugent 3). These two landmark decisions of the High Court negated the former concept on Australia's imagined frontiers. Instead, these supported the view that “Aboriginal law and custom continues to exist and create legitimate and recognizable interests in lands, resources and regions” (Howitt 28+). In June 1992, the High Court handed down its decision in the Mabo case. The majority of judges found that native title continued to exist in Australia after annexation by the British. The discovery of native title started a new era for land rights in Australia. Aboriginal rights were no longer a gift of governments, a gift, which could be reduced or taken away depending on the political climate. The Mabo decision and Racial Discrimination Act meant that if anyone tries to take away our native title rights, they must pay compensation – the same as they would pay to non-Aboriginal landowner. (Yunupingu 12-13) The Wik decision was handed down by the High Court of Australia on 23 December 1996. The High Court ruled that native title may survive on pastoral leases, but added that the rights of pastoral lessees prevail over any rights that native titleholders may have. The implication of the High Court's Wik ruling was exposure of a much greater area of Australia over which native title claims could be made, without deciding whether any particular claim would be successful… It also ensured native titleholders are entitled to full compensation for any impact on their native title rights. (“Land Rights of the Aborigines,” sec. 3, pra. 7) These legal developments have brought about the emergence of “native title era” (Sharp 207) in Australia, which numerous local mining companies claimed had deterred “Australian mineral investment in favor of other locations” (Nugent 4). White opposition in Queensland, Western Australia and other states pointed out that “giving Aborigines control over land will prevent the exploitation of natural resources… and access to terrains… which belong to the Australian people as a whole” (Charlesworth 43). It was also feared “that the recognition of native title put non-indigenous titles (backyards, etc) at risk” (“Mabo Myth,” par. 2). Specifically, The implications of the Wik decision for the minerals industry and Governments… include: dealing with potential invalidity of titles granted since 1 January 1994, devising new procedures for future grants to comply with the right to negotiate and dealing with questions relating to renewals, extensions and other rights of grantee parties… The decision is also likely to exacerbate delays in granting mining and land titles in some Sates. (Williamson 45) However, the in-depth study of Dr. Ian Manning of the National Institute of Economic and Industry Research on the impact of native title on the mining industry refutes the latter’s above allegations, concluding instead 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” (Thompson, par. 12). Furthermore, 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 labor force and eventually reduce their reliance on high cost labor recruited in the cities. (par. 13) Similarly, James Nugent’s study on the allegations of mining companies against native title concluded that native title, whilst a significant domestic factor in the local administration of mineral and exploration titles, was not a determinative cause deterring Australian mineral investment in favor of other locations. Other factors including the global business cycle and financial sector and industry issues were dominant factors in investor behavior during the period. (4) At the start of the 21st century, Australia’s mining industry is global in its outlook, innovative and highly successful. It has also become recognized for its commitment and skills to sustain and improve the practice of mining in an environmentally responsible manner. But it is under pressure from low commodity prices and plentiful world supply, and restructuring continues in an effort to cut costs. (McKay et al., sec. 6, par. 2) III. Conclusion The opposing reactions on the Mabo and Wik decisions, which essentially brought Australia to the so-called native title era mirror Australia’s deeply rooted division among its people affecting the very exploitation of its mineral endowed land. To some developers, the native title is simply a land management issue giving too much power on the Aborigines believed incapable of responsible negotiation. But to the Aboriginal people, the native title although short of self-determination is still a step forward with the Australian government recognizing ‘certain authority’ of Aborigines over their native land. Although it is true that the landmark decisions of the High Court on the native title in the Mabo and Wik case did not ultimately resolve the opposing interests of the mineral industry and the Aborigines, it has painstakingly pushed the whole nation to confront its past, which keeps on haunting its present. Because even if the Mabo and Wik decisions are criticized to be disuniting, “parties that utilize its basic tenets and negotiate in good faith are able to achieve mutually-beneficial outcomes” (Nugent 15). As the Manning report asserted, “…the benefits of the right of the right of indigenous people to negotiate with the proponents of mining projects significantly outweighs the costs” (qtd. in Thompson, par. 14). To which Aboriginal leaders consented: “Where we can help, however is that through the land rights process if we reach agreement, then the company knows that the terms of agreement are certain and binding” (Yunupingu 11). Work Cited “Aborigines and uranium: Conclusions (Chapter 7).” Aborigines and uranium: Consolidated report to the Minister for Aboriginal Afairs on the social impact of uranium mining on the Aborigines of the Northern Territory. Canberra: Australian Government Publishing Service. 1984, 292-306 Bartlett, R. “A return to disposeession and discrimination: the ten point plan.” University of Western Australia Law Review. 27. (July 1997): 46-51, 64-65. Bell, Peter. “The fabric and structure of Australian mining settlements.” A. Bernard Knapp, Vincent C. Pigott, and Eugenia W. Herbert. Social Approaches to an Industrial Past: The Archaeology and Anthropology of Mining. London: Routledge. 1998. Brennan, Frank. The Wik Debate: Its Impact on Aborigines, Pastoralists and Miners. Sydney, NSW: University of New South Wales Press. 1998. Carnemolla, Paul and Howitt, Richie. “Mining Issues: Workshop Session on ‘Mining and the Australian Environment.” Science Teahers Association f New South Wales Professional Development Day. 9 August 2003 Macquarie University Division of Environmental and Life Sciences. 26 May 2009 Charlesworth, Max. The Aboriginal Land Rights Movement. Richmond, Victoria: Hodja Educational Resources. 1984. Doran, C. R. “An historical perspective on mining and economic change.” L. H. Cook and M. G. Porter Eds. The Minerals Sector and the Australian Economy. Sydney: Allen and Unwin 1984. 37-86. Forbes, Cameron. “Key Ruling Boosts Blacks’ Land Claims.” Age. 4 June 1992. Fitzpatrick, B. The British Empire in Australia: An Economic History 1834-1939. Melbourne. 1941. Gray, W. J. “The Mining Industry and Land Rights towards 2000.” Aboriginal Law Bulletin. 48. 1982. Google. 26 May 2009 “History of Australia’s Minerals Industry.” Australian Atlas of Minerals Resources, Mines & Processing Centre. 2007. Google Earth. 26 May 2009 Hocking, Barbara. “Is might right? An argument for the recognition of traditional aboriginal title to land in the Australian Courts.” Erik Olbrei Ed. Black Australians: The prospects for change. Townsville: Students Union, James Cook University. 1982, 207-222. Howitt, Richard. “Recognition, Respect and Reconciliation: Steps towards Decolonization.” Australian Aboriginal Studies. 1998.1 (1998): 28+. “Land Rights of the Aborigines.” Australiane Studies Centre Online. 27 May 2009 McKay, Bill, Lambert, Ian, and Miyazaki, Shige. “Special Article – The Australian Mining Industry: From Settlement to 2000.” Australian Bureau of Statistics. 8 December 2006. Google. 26 May 2009 “Mining and the Australian Environment: Two laws relating to mining, landholders and the government.” Earth and Environmental Science. 7 August 2008 NSW HSC Online. 29 May 2009 “Mining by Aborigines – Australia’s First Miners.” Prime Facts 572. January 2007: 1-4. “Mining in Australia.” Google. 26 May 2009 Morgan, S. “Native Title.” Google. 26 May 2009 http://home.vicnet.net.au/~respect/talking/native.htm Nugent, James. Exploration and mining in Australia: Does native title affect global competitivess? Google. 27 May 2009 “Prospect or suspect – uranium mining in Australia.” Australian Academy of Science. February 1997. Nova Science in the News. 29 May 2009 Quiggin, John. “End of the Three Mines Policy.” Commentary on Australian & World Events From a Social-Democratic Perspective. 28 April 2007 WordPress 29 May 2009 Russell, Peter H. Recognizing Aboriginal Title: The Mabo Case and Indigenous Resistance to English Settler Colonialism. Toronto: University of Toronto Press. 2005. Schiveley, Geoffrey Robert. “Negotiation and Native Title: Why Common Law Courts are not Proper For a for Determining Native Land Issues.” Vanderbilt Journal of Transnational Law. 33.2 (2000): 427. Sharp, Nonie. “Native title in the reshaping of Australian Identity” (Chapter 11). No Ordinary Judgement: Mabo, the Murray Islanders’ Land Case. Canberra: Aboriginal Studies Press. 207-224, 231, 253-257. “Some Mabo Myths.” The Indigenous Law Center, Faculty of Law, University of South Wales. 5 March 1998. Mountain Man Graphics, Australia. 26 May 2009 Thompson, Jennifer. “The Wik bill: Land rights for mining companies.” 1 April 1998 Green Left Online. 26 May 2009 Whitehouse-Strong, Derek. “Recognizing Aboriginal Title: The Mabo Case and Indigenous Resistance to English Settler Colonialism.” Canadian Ethnic Studies Journal. 38. 2 (2006): 180+ Williamson, Simon. “Implications of the Wik decision for the minerals industry.” Graham Hiley ed. The Wik case: Issues and Implications. Sydney: Butterworths. 1997, 45-50. Yunupingu, Galarrwuy. “From the bark petition to native title” (Chapter 1). Our land is our life: land rights – past, present and future. St. Lucia, Queensland: University of Queensland Press. 1-17. Read More