By John Nebauer
BRISBANE — Federal and state governments are attempting to roll back Aboriginal land rights. The way is being cleared in part by the attacks on Aboriginal organisations, which are designed to undermine community support for Aboriginal rights.
The lead role in terms of a direct challenge to land rights is taken at present by the Queensland government, which is mounting a major attempt to extinguish native title through the High Court. A major aim is to establish that leases held through government grant are sufficient to end native title.
The Mabo decision of 1993 removed terra nullius, the premise that Australia was uninhabited at the time of the British invasion, from Australian common law. However, the decision determined that title could be extinguished, in particular by freehold grant, or in some cases by leasehold. It left some ambiguity as to whether mining leases extinguished native title.
Native Title Act
The federal Labor government's response was the Native Title Act passed by parliament, after much debate, in late 1993. The stated intention of the act was to determine the process by which claims for native title could be established.
However, the government's main concern was to ensure that mining companies were able to maintain, unhindered, their access to mineral deposits. The passage of the bill coincided with plans by Comalco for a $1.75 billion bauxite mine in Queensland. Comalco executives set a deadline of December 31, 1993, for the project to go ahead.
December 31 was the date set by the federal government for the bill's passage. The federal government also advised the Northern Territory chief minister to fast-track Mount Isa Mine's Macarthur River lead, zinc and silver mining project for a December 31 validation deadline.
The intended effect of the Native Title Act was to confirm possession of mining leases where prior pastoral leases had not extinguished native title. This affected the claims of the Wik people to land to which they had maintained traditional links and upon which Comalco had been mining bauxite since 1957.
The Wik claim was intended to be a test case for pastoral leases in Queensland, which might have had application in other states. However, it was overtaken by the Waayani case, which arose over a presumption by the president of the Native Title Tribunal that pastoral leases did in fact extinguish native title.
Century Zinc dispute
The Waayani people in June 1994 lodged a native title claim over part of Lawn Hill cattle station on which CRA, through its subsidiary Century Zinc, plans to establish what would be the world's largest zinc mine. Justice French ruled that native title had been extinguished by a pastoral lease granted between 1904 and 1907. However, the High Court overturned the decision and ordered the Native Title Tribunal to register the claim.
The Queensland government has tried to foster an agreement between CRA and the Waayani people so that the $1.1 billion project can go ahead. CRA has argued that the project must be on line by June 1998 in order to fulfil a contract with Pasminco to supply zinc to a Dutch smelter.
To secure the support of the Aboriginal community, CRA made an offer valued at around $60 million over 20 years. The actual cash component of the deal is quite small, the "value" mostly involving training and employment schemes and the transfer of some interests in CRA-owned cattle stations to the Carpentaria Land Council.
The Waayani, particularly within the communities of Burketown and Doomadgee, are concerned about the mine's environmental and social impacts. Murrandoo Yanner, leader of the Carpentaria Land Council, has expressed fears about the consequences of heavy shipping on the pristine waters of the gulf.
"The most important concern is definitely the environment, because we are Aboriginal people and in the Gulf of Carpentaria still live a very traditional and semi-traditional lifestyle, relying entirely on the waters", he said.
"This is why the pipeline to Karumba and heavy shipping as part of the project plans have come across a lot of opposition. We don't have any heavy shipping at the moment.
"The social impacts are almost as important as the environment. We don't want to overnight start to lose our culture or morals because of being swamped with 900 workers, single men."
The Land Council has proposed that CRA build its planned pipeline, not to the coast, but to Mt Isa or Cloncurry and then rail the ore to Townsville. CRA argues that this would be too expensive, making the project unviable. This is the context in which the Borbidge government has tried to encourage an agreement between CRA and the Waayani people.
Borbidge went so far as to speculate on calling an election over the Century Zinc project after talks between CRA and the Waayani had broken down. Borbidge has also said that he is willing to legislate in order to ensure that CRA's project goes ahead.
Borbidge's willingness to use the Century dispute to trigger an election — which the Coalition would be sure to win with an increased majority — shows up his government's political intrigue. At present the Coalition governs with a majority of one, depending on the vote of independent MP Liz Cunningham.
However, it is difficult for Borbidge to use the Century Zinc dispute to sufficiently differentiate his government from the previous Labor administration. The Goss Labor government was no less keen to beat the investment drum, with fast-tracked development a legacy of the Bjelke-Petersen era.
In the July 1995 state election, the Goss government made clear its willingness to smooth the path for large-scale investment, particularly in mineral resources. Borbidge has since latched onto the Century impasse to build up his own investment record.
Racist scare mongering
Borbidge has also used racist scare mongering in his pro-development push. He has talked of "fears of violence" that are supposed to haunt Burketown to gain support for a speedy resolution to the dispute. Not surprisingly, the establishment media have lapped this up. Borbidge was quoted on April 11 as saying that Burketown residents "feared violence and intimidation" by individuals in their efforts to prevent the mine from going ahead.
Borbidge said that the use of violence as a political weapon would be met with the full force of the law. He also stated that "certain people have a vested interest in making sure that Century does not go ahead" (presumably CRA and others don't have such a "vested interest" in the mine proceeding).
The media have focused their coverage on Murrandoo Yanner, described by the Courier Mail as "an angry young man with a rebel-like zeal for the cause". The implication is that the dispute is being engineered by one man with his own barrow to push.
However, Borbidge is not backwards in barrow pushing. While desperately trying to engineer a compromise to give Century the green light, the Queensland premier has opposed similar successful agreements elsewhere in the state.
Cape agreement scuttled
In April, an agreement between the Cape York Land Council, the Peninsula Regional Council of the Aboriginal and Torres Strait Islander Commission, Australian Conservation Foundation, the Wilderness Society and the Cattlemen's Union was signed. The essence of the agreement was that existing cattle leases would be secured, but that such leases would coexist with Aboriginal right of access to traditional land.
While Borbidge had approved this historic agreement before the February Mundingburra by-election, by April he had changed his tune, saying it was not valid because the state government had not been involved. However, the main reason behind the Coalition's about-face is the government's decision to lodge an appeal with the High Court, to be heard in June, at which it will argue that pastoral leases automatically extinguish native title.
The premier said that, although he had no objection to the idea of regional agreements, they would need to guarantee the integrity of pastoral leases. According to Borbidge, "The simple fact is the Queensland government cannot sanction an agreement which impacts on land tenure on Cape York or anywhere else when we're fighting in the High Court [against other land claims]."
Noel Pearson from the Cape York Land Council said that the agreement was supposed to make the Queensland government's actions redundant. He said, "The High Court's going to deal with agreements in favour of further extinguishing native title in a situation where Mabo has not delivered one hectare of native title on mainland Australia.
"We've shown a way to coexist. We've shown a way of having mutual rights to land. When we go to the High Court, our opponents will be arguing for no compromise, no coexistence."
The Cattlemen's Union was equally mystified by the Borbidge government's stance. Union president John Purcell said the signatories to the agreement were standing solidly behind it.
The Wilderness Society and the Australian Conservation Foundation accused Borbidge of "trying to torpedo the agreement". Wilderness Society spokesperson Lyndon Schneiders said, "While he bends over backwards to get agreement in the Gulf country with the Century mine, he wants to wreck a growing consensus in Cape York by tying up the issues in expensive and cumbersome court cases".
Threats
It's clear that Borbidge is not interested in arriving at a just settlement with Aborigines. On April 26, he went as far as to issue a threat, saying that growing resentment against native title claims could affect services to Aboriginal people.
Borbidge was reacting to a new native title claim by the Gunggari people to land on which a gas pipeline was being built. The Federal Court in Brisbane is hearing an application for an injunction to stop the pipeline, which is planned to run from the Jackson oilfields in south-west Queensland to Wallumbilla near Roma.
Borbidge said that the claim would threaten gas supplies to south-east Queensland. He also said that there were "great dangers that there will be anger and bitterness in the community where people see native title claims lodged from time to time that are a bit dubious".
"It just gets people's backs up, and the people affected and the people that they know are affected become very angry, and rightly so", he said.
Deputy director of the Cape York Land Council David Byrne said that Borbidge's comments amounted to blackmail. "What he is saying is that if you try to pursue your legal rights under Australian law, then expect not to have health, housing and employment addressed.
"All Aboriginal people are doing is trying to get their day in court, to have their question of land ownership addressed, just like any other person has their right to a day in court."