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«Owning land can at times in fact become a liability. some properties in the Indigenous estate may never be viable.2 — Indigenous Land Corporation, 2010 ...»

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Chapter Eight

Native Title 20 Years On:

Beyond the Hyperbole

The Honourable Gary Johns

We give the indigenous people of Australia, at last, the standing they are owed as the

original occupants of this continent …1

— Paul Keating, Native Title Bill, Second Reading Speech, 1993

Owning land can at times in fact become a liability … some properties in the

Indigenous estate may never be viable.2

— Indigenous Land Corporation, 2010

Aboriginal groups have acquired land under... pastoral leases, statutory Aboriginal freehold and trustee arrangements. Much of this land is... subject to native title claim.

.. [which] has a high potential to... rigidify the Indigenous system.3 — Northern Land Council, 2011 Contracting opportunities for Aborigines in the Pilbara far exceeds the benefits of the trust money [from land rights].4 — Robyn Sermon, Rio Tinto, 2012 Disclaimer On the 20th anniversary of the Mabo decision, to which the Native Title Act gave effect, Paul Keating commented, “Oh, a lot of people in the Labor Party [were] very nervous. A lot of my colleagues didn’t want a bar of it.”5 In this, he was accurate. In 1992, as Parliamentary Secretary to the Treasurer, John Dawkins, my unsolicited advice to Dawkins was not to legislate for native title but, instead, leave it to the courts. He was not impressed. If not he, then certainly Prime Minister Paul Keating could sense greatness in the offing. The Native Title Bill 1993 vote was greeted with a standing ovation in the House of Representatives and in the public gallery. Like the audience at a Stalin rally, I, too, stood.

Large costs and uncertain benefits The High Court found that Australia had wronged Aborigines by denying them land. In Keating’s phrase, what if we who “took the traditional lands and smashed the traditional way of life” cannot repair our wrong by restoring the land?6 Can the Aborigines be restored, as justice would demand?7 What if native title rights not only fall short of expectations, or their benefits are squandered? what if they are a liability?

Although land rights talk is imbued with the language of spiritual connection to country,8 there is clear evidence emerging that being left undisturbed on one’s country on other Aboriginal titles is insufficient to satisfy this goal. Native title is being claimed over other types of Aboriginal title because it provides an enhanced opportunity to extract rent. For example, in 2011, at Ooratippra, situated 300 kms northwest of Alice Springs, native title was successfully lodged over a Community Living Area and a Perpetual Pastoral Lease, which the Indigenous Land Corporation had purchased in 1999 and transferred title to the Ooratippra Aboriginal Corporation.9 Land rights talk is also imbued with the language of economic development.10 But there is ample evidence that the uses to which the rent is put are unproductive.

Because so much has been squandered, 20 years after the original legislation, the Commonwealth has sought to ensure that monies are put to better use, for example, to be set aside for educational scholarships.11 The cost of the native title regime is no small matter. The cost to administer native title, along with the Northern Territory Aboriginal Benefits Fund and Indigenous Land Corporation funds is well in excess of $340m per year.12 To this amount should be added the Northern Territory and other State regimes, and the supplementary programs that buttress land rights. Noel Pearson’s Family Responsibility Commission, for example, cost more than $4.6 million in 2010-11 to administer.13 It would be nice to have evidence that the native title regime generates benefits at least equal to these amounts but, more important, that it will, in time, make owners self-sufficient. After 20 years of operation, it is time to evaluate native title.

It is time for land rights advocates, and governments, to ask who wins and who loses from native title and land rights? It is time to ask, if dispossession was the wrong that land rights was meant to right, has repossession worked? It may seem impolite to enquire whether the owners would have been better to leave their land. Remaining for generations, without work and in considerable turmoil, is a cost that is never assigned to land rights, but since the late 1970s that has been the result for many. But governments have persisted, and other land users have lost millions of dollars in lost opportunities and in costs.

“Good” agreements In 1963, Nabalco commenced mining bauxite at Gove against the wishes of the people at Yirrkala Methodist mission. In 1964, the Queensland Government removed Aboriginal residents of Mapoon Presbyterian mission for Comalco’s bauxite mine. No one would countenance a return to such processes. But times have changed. The 2011 Rio Tinto Alcan Gove Traditional Owners Agreement grants traditional owners up to $18m per annum over 42 years. The land is collective inalienable freehold under the Aboriginal Land Rights Act 1976 (NT).14 The 2001 Comalco Cape York Indigenous Land Use Agreement (ILUA) grants native title and other Aboriginal titleholders and 11 language groups across the region $2.5m and $1.5 per annum respectively from Comalco and the Queensland Government.15 Marcia Langton describes native title as a “scheme for validating settler titles … and native title sneaks into the interstices.”16 She acknowledges that native title creates a right to negotiate, especially over large resource projects, and nominates the Western Cape York Co-existence Agreement at Weipa as a good example. It is as well to ask, what is a good agreement? Three of the largest and most comprehensive agreements in native title, two of which have partial evaluations and include Western Cape York, may assist in answering the question.

Comalco-Western Cape Communities Trust 2001 – Cape York The Comalco ILUA at Cape York is extensive. Rio Tinto (owners of Comalco) claim that 25 per cent of their workforce at Weipa is Aboriginal, but it is not known whether these are from Weipa only or the three communities in question.17 Whether such employment achievements required land rights is moot. In addition to employment and training programs, a Cultural Awareness fund, and transfer of property, a Charitable Trust has been set up to manage funds that accumulate from the annual contributions by Comalco and the Queensland Government.18 The Trust’s investments are projected to be $150m in retained funds by 2022. Once the mining and Queensland Government income streams cease, distributions from these investments and any reinvestment until 2022 will continue to be allocated to the sub-regional trusts for distributions under Charitable Purposes.19 Traditional owners, Napranum, Mapoon, and Aurukun Aboriginal Shire Councils, sporting groups, churches, and schools are eligible to apply. Common to each trust are

the following:

Household appliances – refrigerators, washing machines, air conditioners Funeral assistance – $5 400 per grant, $1 000 and for feasting Community sporting clubs and sponsorships Cultural festivals, church fetes and Christmas activities Church activities and church equipment, religious study programs Educational bursaries – Primary, $500 per child per year; Secondary bursaries capped at $15000, $1200 for the purchase of a computer if 100 per cent attendance; University, $15 000; includes cost for trip home per year, applicants must work with Rio Tinto Alcan on holidays Outstation establishment – $500 000 for outstations.20 Employment opportunities as a result of the Comalco investment are by far the most powerful tool for the betterment of local Aborigines. The trust funds may either enhance or detract from the employment impact. For example, the list is a curious mixture of funds for personal needs, future investment, and escapism. Monies to buy household goods and funeral assistance seem to be charity and risk displacing personal effort. Community expenses are no doubt touted as investments but, in fact, also risk displacing personal effort. The education funds with conditions attached are a sensible investment, although much is already available through the State and Federal governments. The outstations are problematic as they are touted as an escape from town life, when towns are where employment and services are most likely available.

The outstations, therefore, are a form of holiday home in the bush.

There is some data available to evaluate the impact, among other programs, of the agreement. For example, The Family Responsibilities Commission,21 which began operation in July 2008, covers Aurukun, and all three communities are part of the alcohol management regime established following the 2001 Fitzgerald Report.22 Part of the Fitzgerald plan was to monitor health-related violence and other matters, so that unique data are available for behaviour in these communities. The data indicate that, for communities within the Comalco Agreement area, Mapoon shows statistical evidence of decline in hospital admissions for assault-related conditions from 2002-03 to 2010-11, but Aurukun and Napranum show no statistical trend. Statistical evidence from Arukun and Napranum shows evidence of decline in all reported offences against the person between 2002-03 and 2010-11. The evidence from Mapoon does not.23 Trends in Semester 1 student attendance rates for the five years 2007 to 2011 show statistical evidence of an increasing trend in student attendance for students at Aurukun; Napranum shows decline in attendance; and Mapoon no change. Although there is claimed success at the Noel Pearson-inspired Cape York Aboriginal Australian Academy, which commenced in Aurukun in Term 1, 2010, it is too early to assess outcomes.24 The sheer size of the trust and the allied programs combined are surely the last chance for place-based solutions to Aboriginal disadvantage. What else could be done to make the place work? Progress appears minimal, but perhaps progress will be slow.

Gulf Communities Agreement 1997 – North Queensland The Gulf Communities Agreement 1997 was negotiated between Pasminco Century Mine Limited (now Zinifex Century Limited), the Queensland Government and three native title groups: the Waanyi, Mingginda, and Gkuthaarn and Kukatj. Zinifex Century Mine is located 250 kms north-west of Mount Isa, while the Port and Dewatering Facility is located on the coast at Karumba. A 300km underground pipeline connects the two sites. The mine site is a Fly In/Fly Out operation with the workforce commuting from locations ranging from the Gulf communities of Doomadgee, Burketown, Normanton and Mornington Island, to Mount Isa and Townsville.

The Century Mine workforce employs a large proportion of Aborigines. And various pastoral leases have been transferred to owners. Gulf Aboriginal Development Corporation manages the direct compensation payment to the native title eligible bodies, which amounts to $10m over 20 years. Century Employment and Training Committee administers Century Mine’s annual expenditure of $2.5m on local Aboriginal employment and training. Aboriginal Development Benefits Trust manages $20m over 20 years for local Gulf Aboriginal business development, contributed by Century Mine at a rate of approximately $1m per annum. The Trust’s current strategy is to invest one-third of the contributed funds in long-term investments, with the remainder of the funds available for business development loans.25 A ten-year review into the GCA was conducted in 2008. The review called for “increased government effort” in relation to the GCA, stating “a renewed commitment to the GCA was required over the remaining life of the mine... to ensure that employment and enterprise development benefits to native title groups [were] maximized.” The review recommended release of $5.7m by the Queensland Government for a social impact assessment, and initiatives in governance and leadership training for signatory native title groups. In other words, throw in more money. A paper written in 2008 on the implications of the completion of the Century Mine on Gulf communities due in 2017 found that while Century Mine had increased income and job opportunities in the region and transferred pastoral leases to Aborigines, it had low levels of conversion of mining income into savings or long-term assets and overcrowded, low-quality housing, relatively poor health and education outcomes.26 These two case studies leave open the conclusion that even the best agreements may not “restore” Aborigines to some better place. Perhaps the third large agreement will have better news.

Browse LNG Precinct Agreement 2011 – Kimberley The Browse LNG Precinct Project Agreement of June 2011 between the State of Western Australia, the Goolarabooloo Jabirr Jabirr Peoples, Woodside Energy Limited (and others) is massive.

The benefits package includes:

$30m towards an economic development and housing funds $28m in payments, additional $5m for more than three LNG trains $4m in annual payments, additional $2m for more than three LNG trains $3m annual payments – business development, employment and training $5 million a year in contracts and job preferences $8m for Reading Recovery Program throughout the Kimberley $10m for the Goolarabooloo Jabirr Jabirr Rangers, and 2900 hectares of freehold land on country, and the LNG precinct to be handed back as freehold land at end of the life of the precinct.

In addition there are benefits to the wider Kimberley region including:

$186m towards economic development, housing, education, cultural preservation funds and for social programs 300 construction jobs, 15 per cent of the project workforce, and 600 hectares of freehold land to Dampier Peninsula Traditional Owners and a commitment to reform land tenure on ALT land on the Peninsula.27 Native title was not necessarily central to this agreement, but, assuming that it is, the offer for Aborigines does not get any better than this. This is a lottery win; if this agreement at James Price Point does not succeed, then the dreams that land rights, not to mention native title offers, are not achievable. The reason for commencing with these large agreements is to point out that they are rare and are only possible because the mine resources are so vast.

The remainder of the paper will concentrate on more common cases where these three elements do not always apply.

Evaluating native title Some native title and land rights supporters argue that native title parties do not gain full benefits from their title because they “are under pressure to agree with mining companies” and that a company can, after six months, approach the National Native Title Tribunal to gain access to land.28 They may be unaware that Chris Sumner, Deputy President of the Tribunal and a former Labor Attorney-General for South Australia who, while at pains to assure all that “[t]his is not to incorporate a general right of veto over mining projects”, nevertheless determined that Weld Range Metals’ proposal for a chromium, iron and nickel mine near Meekatharra in Western Australia should be stopped at the wishes of the traditional owners. The proposed mine has a construction workforce of around 1 000 contractors and permanent employment for 225 people generating approximately $2 billion in taxes and royalties. Knowing that leases were first granted in 1997, and that the tribunal commenced to determine the matter in 2010, Sumner found that the Wajarri Yamatji were “prepared to negotiate about acceptable agreements with grantee parties.”29 Clearly, the six-month constraint did not apply.

Others argue that native title is too difficult to attain.30 They need not worry. Since 1998 the system has been, in some senses, bypassed using ILUAs whether native title has been determined or even claimed.31 As the Noongar Native Title Representative Body argues, “we are now not really trying to ‘win native title’, but trying to ‘win out of native title’.” We are trying to move from “remnant title to social justice.”32 In Victoria, where there was never much hope of proving enduring connection to land, the Labor Government passed the Traditional Owner Settlement Act 2010. It provides an out-of-court settlement regime,33 the core of which is the hand back of parks and reserves of significance to the traditional owner group to be jointly managed with the State.

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