Land rights should be equal rights

The Chamber of Mines of Western Australia

This article, an extract from a paper released in June, 1984, and slightly revised in February 1985, examines the economic implications of land rights for both the mining industry and the wider community.  It argues that justice would best be served by a policy affording the same rights to Aborigines as are available to non-Aboriginal Australians.

The Chamber of Mines shares with other sections of the community a recognition of the need to provide Aboriginal people, many of whom are disadvantaged, with special forms of assistance and with security for significant sacred sites.  The Chamber does not oppose the concept of land being granted to Aborigines but maintains that the national debate on land rights should be directed to the question of the nature of the rights which accompany the granted land tenure.

The Chamber's basis position is that land rights for all Australians, including the Aboriginal people, should be provided on a basis of equality.

This is a view supported by 87 per cent of the Western Australian population, according to an independent survey commissioned by the Chamber.

The implications of State land rights legislation and/or of uniform Federal legislation which could override State law is of vital national concern for the following reasons:

RESOURCES BELONG TO ALL

Originally both the State Government and the Federal Government foreshadowed legislation which would have transferred from elected Government the control of mineral resources on Aboriginal land to Aboriginal land owners.

In W.A. as a fundamental principle the mineral resources of the State belong to the people collectively through the concept of Crown ownership of minerals.

This principle of "Crown Ownership" has been a major factor in attracting exploration and resource development to the State.

The Chamber maintains that no single section of the community should have the right or power to prevent the discovery and use of natural resources which are the property of the whole community.

Fortunately the State Government has recognised the errors in its original policy and in the framing of its legislation proposes to retain control over access for exploration and mining.  Unfortunately, the Federal government proposals are still directed at taking away that control from state government and allowing Aborigines control and hence de facto ownership over minerals that collectively belong to all residents of the State.

THE NORTHERN TERRITORY EXPERIENCE

The mining industry's concern about the potential impact of Aboriginal land rights in Western Australia, and the flow-on effect for all Australia, is highlighted by the industry's experience of land rights legislation in the Northern Territory and South Australia.

Since the promulgation of the Land Rights Act in 1976, the industry has been faced with ever-increasing and costly delays and additional financial imposts.  The result has been an impasse on exploration and mining due to the failure of the Act to distinguish between reconnaissance exploration and development and mining.

These delays have led to a termination of exploration activities on Aboriginal land by many companies, some of whom have withdrawn their interests totally from the Territory.

ECONOMIC CONSEQUENCES

Mining has been for a long time, but more especially since the 1960's, a major element in Australia's economic strength.  It is particularly important in Western Australia where it has been the generative force in the State's growth over the past 20 years.

The industry is an important contributor to public revenues, paying on average more than 65 per cent of its operating profits in taxes plus large sums -- more than $600 million in 1982/83 for example -- for the use of Government services.

As the world economy recovers and a pick-up in demand occurs for minerals, and as increased domestic processing of minerals takes place before export, mining will maintain and increase its contribution to Australia's economic growth.

It is essential, in the nation's economic interests, that explorers for minerals have reasonable access to land.  Exploration must be carried on at a consistently high level to ensure that Australia's resources are located and measured as the basis of a continuing mining industry.

The mining industry is not so self-opinionated as to suggest that its operations are carried on only to support the national interest.  Companies make large investments of time, skill and money in the hope of getting a reward, and it is that incentive that has been a major factor in Australia's growth.

But in seeking this reward -- which in recent years has been very poor -- mining does bring real benefits to the community and the nation by providing jobs, by major contributions to State and Federal Government revenue, by earning foreign exchange to pay for the community's imports, by providing orders for large sections of Australian industry which equip and service the mining industry, and by opening up parts of Australia which otherwise would have remained unused.  In doing these things, mining very clearly and significantly serves the national interest.

When the mining industry raised fears ten years ago the extent of land in the Northern Territory that would be claimed by Aboriginal groups, the (Fraser) Federal Government of the day dismissed these fears as excessive.  History has proven otherwise.

Aborigines in the Northern Territory have already been granted almost 30 per cent of the region and have a further 18 per cent under claim.

In Western Australia, the Seaman Inquiry Discussion Paper has suggested that all the unalienated Crown land (about 40 per cent of the total land area of the State) be available for Aboriginal claim.  Together with the eight per cent land area already reserved for Aboriginal use in Western Australia, this could ultimately put half of Australia's largest state under Aboriginal inalienable freehold title.

The introduction of Federal uniform land rights could potentially have the same effect.  Taking the impact of W.A. alone, some one-sixth of Australia's total land mass could be subject to Aboriginal claim by about one per cent of the total Australian population.

It must be remembered that this land is prospective for future mineral development which is vital for the nation's continuing economic growth.

The Chamber of Mines of W.A. policy on Aboriginal land rights is as follows:

• The mining industry firmly maintains that any government initiatives designed to provide Aborigines with access and title to their traditional lands should not undermine the principle that where minerals are owned by the Crown their development is controlled only by State Government on behalf of all West Australians.  That is, State Government must retain the overall to grant or deny access for exploration and resource development in all parts of Western Australia.  To do otherwise is for the Government to abrogate its authority and responsibility to the people of Western Australia.
• The mining industry maintains that State and Governments must maintain a policy whereby mineral royalties and other payments related to mineral value be set by elected Government and paid by mining companies only to Government for subsequent allocation by Government as it so determines.
• The mining industry maintains that consistent with the fact that all minerals are owned by the Crown, no additional royalties should be imposed as a consequence of the nature of the title to or occupation of any particular land.
• The mining industry believes that State and Federal Governments must maintain the policy whereby computation of financial compensation in respect of all land included in mining tenements be solely on the basis of actual damage suffered by disturbance of that land -- that is, compensation is not related to the value of the minerals being mined.

This policy on Aboriginal land rights is consistent with industry policy with respect to exploration and resource development on land to which title is held by non-Aborigines.

The mining industry sees real danger in legislation at both State and Federal levels which falls short of meeting excessive Aboriginal demands while still leaving the mining and pastoral industries wrapped in bureaucratic and administrative tangles which will effectively deter investor confidence and industry operations.

Concern in this respect is being voiced not only within the industries most directly affected, but also from within ALP ranks and from Aborigines themselves.

It is recognised, for instance, that State and Federal legislation will retain ownership to the Crown of minerals.  However, in practical terms, Aboriginal control of access to land and of the right to mine will effectively give them the power to act as the owners of the minerals.

Again, the industry points to the Northern Territory experience where Crown ownership of minerals has been retained but where control has passed from Government to Aboriginal landowners.

Exploration and development has been drastically reduced in the Northern Territory, not only because of negotiating delays with the owners of Aboriginal land, but because explorers are reluctant to commit large funds to work on land which may later be claimed by the Aboriginal people.

There is a similar reluctance to spend perhaps $30 million or $40 million to find and prove a mineral deposit on Aboriginal land when the owners may then veto mining of the deposit.

The real owners of the mineral wealth of Australia -- all Australians -- should be able to exercise that control through their respective elected State Governments.  In practical terms, the powers of control are more important than those of ownership.  It does not matter who owns a resource if someone else has the powers of control over its use.

Mr. Justice Woodward said in his second report on Aboriginal Land Rights in the Northern Territory, that to deny the Aboriginal people the right to prevent mining on their land was to deny the reality of their land rights.  The Australian Government's policy that the Aboriginal people should control mining on their land, and have access to mining royalty equivalents, reflects that view.

This is, however, a view which sees the Aboriginal people having more rights and powers than other Australians.

In general Australian landowners have title and rights only to the surface, and not what is below.

Flowing from the Chamber's concern about these questions of ownership and control of minerals is a consequential concern about the economic effects of the payment of mining royalty equivalents to the Aboriginal owners of land rather than, as is customary, to the Crown, and about the powers which might be given to the Aboriginal people to fix these and other payments at levels which would act as a strong disincentive to mining.

Australia, and all Australians, have a legitimate interest in the discovery and proving of whatever minerals are to be found, and in their extraction.  The nation and its people are not so well off that they can afford to lock up these resources.

Neither is the mining industry so well placed in terms of its international competitiveness, and its profitability, as to be able to ignore the consequences of replacing the rights which Governments traditionally have exercised in fixing royalties on minerals with a system which would allow the new owners of land, if they felt so disposed, to bid up the cost of mining by demanding inappropriately high compensation from the mining industry.

PROBLEMS CAN BE SOLVED

The mining industry believes that, with goodwill and common sense, the interests of all can be fairly and appropriately safeguarded.

The mining industry is not unaware or dismissive of the desire of the Aboriginal people to improve their circumstances and protect their culture.  This should be a real community goal.

Objections from the mining industry, supported by organised farming and pastoral interests, to the Federal Government's Aboriginal and Torres Strait Islander Heritage (Interim Protection) Bill 1984 were consistent with this policy.

While supporting the protection of Aboriginal culture and of sacred sites, the industry maintains that the Bill goes much further to allow wide and unfettered Ministerial discretion to interfere in what should properly be the realm of State legislation.  In Western Australia, the Chamber of Mines was in agreement with the State Government that the Heritage Bill was ill-defined, hastily conceived legislation that was an unnecessary duplication of existing and effective State legislation.

The introduction of such legislation at Federal level, incorporating as it does powers to override State legislation and widely condemned by State Governments and industry groups for a total lack of adequate consultation, has served only to sharpen mining industry fears that land rights legislation can follow without due regard to the need for balance in the interests of the wider community.

Miners have more contact with the Aboriginal people than do most Australians.  Mining has more potential than any other industry to provide employment for the Aboriginal people, and to provide it in regions where most Aboriginal people live.  In giving employment and training, the industry can provide the experience that will enable the Aboriginal people to take their places confidently and successfully in the wider community, should they so choose.