A Date to Mark with Regret

Last month, while discussing the twentieth anniversary of the High Court’s Mabo decision to recognise native title, Warren Mundine, the outgoing head of the native title peak body for New South Wales, NTSCORP, predicted that within thirty years land rights would put some Aborigines on the BRW Rich List. Rather than an offhand jest, this has been a long-held dream by some leading Aboriginal figures. In 1994, Michael Mansell, writing on behalf of the “Aboriginal Provisional Government”, said that if Aborigines could gain control of all the land they were entitled to, then the taxes, royalties and leases payable by mining companies and pastoralists would invert national wealth distribution. “It would mean for the first time in two hundred years that Aborigines would no longer be the poorest people in the country but probably would be, in comparison with Australians, the richest.”

Similarly, Mundine was not talking about generating wealth in the usual way by accumulating and investing capital, but rather by extracting it from those who did. He was commenting on the decision by the New South Wales Land Titles Office to register a claim by the Gomeroi people to 110,000 square kilometres of land in New South Wales, between Singleton, Moree and Walgett, which, he said, “covers some of the most pristine coalmining and gas operations in Australia”. According to Debra Jopson of the Sydney Morning Herald, Mundine believes the Mabo decision will at last reap rewards for New South Wales Aborigines “largely because it forces developers to come to the table with traditional owners. And that includes coalminers, from whom they will be seeking jobs.”

This was an unexpectedly frank account of what the leaders of the land rights movement regard as an appropriate outcome and, indeed, sums up their intentions over the past two decades. In economics, this phenomenon is known as rent-seeking. Instead of creating new wealth, its perpetrators aim to manipulate the political and social environment to gain a privileged position through government legislation or regulation, thereby enabling them to transfer wealth from others to themselves.

As the Queensland legal expert on native title Dr John Forbes has argued in some illuminating papers to the Samuel Griffith Society, those who sought native title publicly justified it in terms of human rights, sacred sites and the centrality of land to Aboriginal culture. The reality, however, was that Mabo quickly generated a de facto licensing regime conducted at public expense for indigenous claimants to mining land. Faced with the prospect of years of expensive unpredictable litigation, mining developers succumbed to demands to pay “go-away money”. However slight the prospect of a claimant’s success, miners routinely paid them thousands of dollars to go away. They found this far less trouble than seeking recourse to the courts where a claim, and the inevitable appeal if it was lost, would cost far more in money, time and angst.

It was less the High Court and more Paul Keating’s Native Title Act of 1993 that allowed this to happen. The Act invented a “right to negotiate”, which meant that once a claim to native title was made over a tract of land, no development could be made on it without the consent of the claimant. In 2002, the chief executive of the rural lobby Agforce complained: “The moment an exploration permit is granted, almost immediately a native title claim is lodged over that area”, giving claimants “the opportunity to extort the mining companies”.

One of the first to protest publicly about this was the Queensland Labor government, headed by Premier Wayne Goss and his chief of staff Kevin Rudd. In June 1993, Goss condemned a land rights claim over Stradbroke Island as “a political stunt and a try-on”, driven by “Mabo madness” and lawyers “out to make a fast buck”. Forbes also pointed to other Queensland shake-downs, including the payment by a property developer of $1.5 million to two urbanised “tribes” for abandoning claims to the Gold Coast’s Southport Spit, and the $90 million in cash, land and benefits it cost the Century Zinc mine and the Queensland government before mining operations could begin in 2000. At the same time, almost 2500 mining projects in Western Australia were being held up by native title claimants.

Over time, however, some big developers, in particular Rio Tinto and Woodside in Western Australia, learnt to play the game differently. They have announced recent deals with Aboriginal claimants in the Pilbara and Kimberley of from $1 billion to $2 billion. However, the fine print shows the deals are less spectacular than the headlines appear. The payments are to be made gradually over thirty to forty years, and are more in kind than cash, in the form of employment, training, housing and business opportunities. In fact, as part of what was described in the media as a $2 billion agreement for Rio Tinto to explore and mine more of the Pilbara, local Aborigines settled for a cash grant of just $3500 per individual, leaving them quite a bit short of the BRW Rich List.

The impression given last month by the ABC telemovie Mabo was that Eddie Mabo, his lawyers and the High Court were primarily responsible for Australia recognising native title in 1992. However, land rights were first granted by South Australia as long ago as the 1960s and by the Commonwealth government in the Northern Territory in the 1970s. The Gurindji strikers on Wave Hill station (above) in the Northern Territory became the best-known recipients in August 1975 when Prime Minister Gough Whitlam performed his memorable symbolic act of pouring sand through the hands of elder Vincent Lingiari.

Though the media and histories of these events give Whitlam all the credit, it is not widely known that the Prime Minister who actually secured the land for the Gurindji was the Liberals’ Billy McMahon. The Gurindji walked off Wave Hill in 1966 and subsequently attracted much media attention. Under pressure from popular sentiment in the run-up to the December 1972 election, and urged on by his principal adviser on the subject, Nugget Coombs, McMahon in June 1972 told his Minister for Aboriginal Affairs, Peter Howson, to approach the owner of the Wave Hill station lease, Lord Vestey, to consent to an excision to his lease to give the Gurindji enough land to run cattle. Vestey consented. Howson then made the same request to Byron McLachlan, who held the Everard Park lease in Pitjantjatjara country in the north of South Australia. He also agreed. It was these concessions that formed the basis of the much publicised land grant from Whitlam to Lingiari. (See Howson’s article in Quadrant, November 2004.) Moreover, the Prime Minister who actually passed the Commonwealth’s first land rights legislation was again not Whitlam but Malcolm Fraser in 1976.

Unfortunately, however, the long-term perspective shows that these reforms gave the Liberal Party little to be proud of. Indeed, in hindsight their actions stand as a monument to the failure of good intentions. On any objective reckoning, they have been a disaster for most Aboriginal people.

This is not only true of the appalling living conditions in the majority of Aboriginal communities in the northern half of the continent, which need no rehearsal in these pages, but also in the failure of the promise that the return of traditional land would give Aborigines the means and motivation to generate economic independence. At most, the outcome has been that on land where there has been mining interest, the sharp men of Aboriginal politics have been able to wrest some quick go-away money. But in the vast areas outside the productive mines, Aboriginal economic development is virtually non-existent.

Within a decade of gaining title to their land from Wave Hill, the Gurindji abandoned the cattle station, settling in the remote communities of Daguragu and Kalkarindji to live on welfare. They were not alone. In 1990, a tour of Aboriginal communities by Professor Colin Tatz revealed that more than thirty cattle stations established on land grants and leases in the Northern Territory, South Australia and the Kimberley that were supposed to make Aborigines self-reliant were also deserted. Instead, the government policy that appealed most to Aboriginal people at the time was the 1975 extension of unemployment benefits. In other words, Gough Whitlam’s most enduring legacy to Aboriginal people was not land rights but sit-down money.

Today, there is a new player in the field, the Greens. Last month, the Australian’s Nicolas Rothwell wrote a feature article on the decision by the Yulumbu people to turn over their cattle station, Mornington, on the Kimberley’s Fitzroy River, to the Australian Wildlife Conservancy to establish a reserve for native flora and fauna. In return for leasing out their 3123-square-kilometre property, the Yulumbu will get a paltry royalty of $50,000 a year. AWC is a registered charity that gets half its money from Commonwealth grants. To date, its biggest single donor remains the former Howard Coalition government.

If you visit the Kimberley, locals will tell you it is an open secret that Green activists have long sought to close down the district’s entire cattle industry on the grounds of its environmental damage. The Greens like to see huge cattle stations like Mornington (once part of the empire of cattle baron Sidney Kidman) granted to Aborigines or purchased for them by government land funds because most subsequently fail to run them as commercial properties, being happy enough to do no more than live in the old homestead.

Although Rothwell wrote his article as a good-news story, it was inadvertently far more revealing about the Mabo decision than the ABC’s expensive telemovie. The Yulumbu example of turning their vast tracts over to a wealthy Green organisation is an ominous harbinger of a new phase in Australia’s sordid and sorry history of native title and land rights.