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Aborigine rights damaged by mining verdict

David Fickling, Sydney

9 August 2002 - The Australian high court dealt a severe blow to the Aboriginal land rights movement yesterday when it rejected claims by the Miriuwung-Gajerrong people to a 3,050sq mile area of land in the country's remote north-west.

In a decision which ends an eight-year legal wrangle between Aboriginal land rights advocates and the country's billion-pound mining industry, the court declared that local Aborigines had no rights to the mineral wealth extracted from the world's biggest diamond mine.

The Argyle mine produces more than a third of the world's diamonds and sits in the midst of the region claimed by the Miriuwung-Gajerrong.

The chief justice of the high court, Murray Gleeson, ruled that native title rights to the land had been extinguished before the Argyle mining lease was granted, and there was no native title right to minerals or petroleum.

He also ruled that rights to the assets of land could be "partially extinguished". This was an apparent reversal of rulings in 1992 and 1996, which appeared to give ground to Aboriginal rights against the mining, petroleum and livestock industries.

Les Malezer, the international officer at the indigenous rights organisation Faira, described yesterday's decision as a "step back to the days of terra nullius" - a reference to the discredited legal notion that Australia was uninhabited at the time of European colonisation.

The low-grade diamonds produced at the site were worth more than £230m in 1999, but reserves are now running down, and its owner, Rio Tinto, plans to expand opencast mining.

The Australian industry minister, Ian Macfarlane, said the ruling "appears to establish a great precedent in providing some... confidence in terms of resource exploration and development".

Clip from The Guardian

Court blow to Aborigine land claim

8 August 2002 - A court in Australia has ruled that Aboriginal people do not have rights over minerals or oil found underneath tribal land now being used by mining companies.

The landmark decision is a blow to Aboriginal claims of ancestral rights and should also determine hundreds of other unsettled cases.

The court says Aborigines still have limited rights to hunt on the land and visit what they consider to be sacred tribal sites.

The decision has been described by Aboriginal elders as "offensive and discriminatory".

The ruling was made on a 1994 claim by the Miriuwung-Gajerrong tribe to land covering 7,900 square kilometres (3,050 square miles) in north-western Australia.

The tribe says the land belonged to them, long before European settlers arrived more than 200 years ago.

The area includes the Argyle diamond mine, the largest in Australia.

In delivering his decision at the High Court in Canberra, Chief Justice Murray Gleeson said: "All native title rights and interest in respect of the land within that reserve had been extinguished before the Argyle mining lease was granted."

The mine is currently owned by the Rio Tinto firm in Melbourne, which said it was studying the 406-page ruling.

Aboriginal leaders have criticised the decision and urged the Australian Government and the mine owners to discuss better ways of sharing the land.

Wayne Birdman, a senior Aboriginal leader from the disputed area, said the court was saying to Aborigines: "Nice little black fella, you can go hunting but you don't have any control over who goes on the land."

Hundreds of native title claims have been submitted by Aboriginal groups since 1992, following a ruling which scrapped the notion that Australia was uninhabited before Europeans arrived in 1788.

Aborigines, who number about 400,000 among 19 million Australians, are among the poorest sections of society and claim discrimination is widespread against them.

Source: BBC News

High Court ruling confuses native title, Opp says

8 August 2002 -The Federal Opposition claims there is even more confusion about native title rights, after yesterday's High Court decision in the Muriuwung Gajjerong case.

The court ruled that native title can coexist with pastoral and mining leases, but is extinguished over minerals. It has referred other issues back to the Federal Court.

The Prime Minister says the decision provides some certainty for those involved in native title claims.

But indigenous leaders argue it highlights the difficulty of trying to resolve native title through the courts.

Labor's indigenous affairs spokesman, Carmen Lawrence, is also disappointed with the outcome.

"It doesn't improve the position for indigenous people, if anything the situation is more confused than it was before and it looks to me as if the original intentions of the Native Title Act are not being realised and they certainly haven't been improved by this judgement," she said.

And she says the courts are taking too long to resolve claims.

"Making the courts in a sense the final arbiters of these questions has proved extremely frustrating for everybody, complicated and in the end the rights that are actually conferred on indigenous people are incomplete and partial," she said.

"It's quite clear now that [for] most Aboriginal and Torres Strait Islanders in this country, native title is conferring very little."

Clip from ABC NEWS ONLINE

Rulings most significant since Wik

By ROBERT MESSENGER

9 August 2002 - Yesterday's findings come 10 years and two months after Mabo, in which the High Court acknowledged that native title did exist at the time of the British invasion and that it had continued to exist in the Torres Strait.

The legal initiative on behalf of Murray Islanders was launched by Eddie Mabo with Sam Passi, Father Dave Passi, James Rice and Celuia Mapo Salee in 1982. Mabo died on January 21, 1992, 5 months before the 6-1 verdict against the State of Queensland overturned the 205-year-old legal doctrine of terra nullius. Native title was not defined but the Federal Government introduced the Native Title Act in 1994, acknowledging that native title had existed on all Australian land and could continue to exist in circumstances where the Crown had not acted inconsistently by alienating the land.

Just before Christmas 1996, the High Court handed down its Wik judgment, deciding that native title could continue to exist, in limited form, on and under pastoral land.

Yesterday's decisions are the most significant for native title law since Wik.

In the western NSW case (Wilson v Anderson), the land was the subject of a perpetual lease under the Western Lands Act 1901 (NSW) and the lessee claimed the grant of the lease extinguished native title.

The majority of the Full Bench of the Federal Court held, in effect, it was not possible to say whether native title rights were extinguished or suspended by the grant of the lease.

Six members of the High Court were of the opinion that the lease conferred on the lessee a right of exclusive possession and therefore, by operation of the Native Title Act 1993 and of the Native Title (NSW) Act 1994, the grant of the lease extinguished any native title.

Michael Anderson, convener of the Sovereign Union of Aboriginal Nations and Peoples in Australia, expressed his disgust at the decision. "What land is available for Aboriginal peoples to claim? What is left?"

In the Kimberley case, the High Court ruled native title continued to exist on pastoral and mining leases, but there were no native title rights over any mineral or petroleum resources and that there could be partial extinguishment of native title rights and interests.

The decision is a landmark ruling, and should help decide hundreds of outstanding native title claims.

The Miriuwung and Gajerrong peoples' application was filed with the National Native Titles Tribunal in April, 1994. Justice Lee of the Federal Court held that native land could only be extinguished by a clear and plain intention of the Crown to do so.

As a result of appeals, in March 2000 the Full Bench of the Federal Court handed down a 2-1 decision overturning important parts of the Lee judgment.

The Full Bench unanimously upheld Justice Lee's finding that the claimants held native title to those parts of the determination area where native title was not extinguished. But by a 2-1 majority, Justice Lee's findings in relation to the nature of native title and the manner in which it may be extinguished were overturned.

The majority of the Full Bench found that once an enclosure or improvement took place that was inconsistent with native title, extinguishment followed. In August 2000, the High Court granted leave for appeal.

Source: The Canberra Times

Title claimants slam court process

By RODERICK CAMPBELL and AAP

Yesterday's High Court ruling on native title was greeted with a mixed but generally positive response from Aboriginal claimants who then declared that other claims should be negotiated rather than being fought at great expense through the courts.

In a majority judgment hailed by state governments and the minerals industry, the court's decision ruled out any native title claim over mineral and petroleum deposits.

But representatives of East Kimberley communities in Western Australia and the Northern Territory welcomed the court's ruling that the mere granting of pastoral and mining leases did not destroy native title.

The court's 5-2 ruling reversed in large part a decision of the Full Federal Court that native title had been all but totally extinguished in the Kimberley region.

Importantly for claimants, both the Federal and High Courts rejected the argument of the previous Western Australian Government that native title could not exist if claimants did not physically occupy the land.

The High Court would not go as far as positively accepting that "spiritual connection" to the land was sufficient to satisfy the law. But present or recent occupation was not required.

The court also said that Aborigines did not have exclusive rights over tidal fishing, these having been extinguished by public fishing rights.

Outside the court, the executive director of the Kimberley Land Council, Wayne Bergmann, reacted cautiously to the massive 406-page decision.

So, too, did wheelchair-bound Ben Ward, an Elder from Cockatoo Springs, near Kununurra, whose name is likely to be the most closely linked to the decision in the future.

Mr Bergmann said, "Dealing with native title through the courts is not going to put food on our people's plates, build them houses, make them healthier.

"I think today's decision is a demonstration of why we should not go to court. The better way is for industry, for people affected by native title who require our land for development, to come and consult with us and work with us.

"Our fathers and grandfathers have all died for this cause but they haven't seen the benefit of it, like Eddie Mabo."

Mr Ward said he would now "just have to get back and try and find a better way of making it work for us". He did not want to go through another money-wasting court battle.

"The Government should make it more simple, for people who live simply," he said.

In another decision yesterday, the court ruled 6-1 that the grant of so-called "perpetual leases" in far western NSW had totally extinguished native title. It overruled a Federal Court decision that such leases did not necessarily extinguish native title.

The High Court's conclusion that such leases were akin to the granting of freehold appears to have all but killed off most prospective native title claims in NSW.

The Kimberley claims related to 7900 sq km of Crown land in the Ord River, Kununurra and Wyndham areas, and included part of the Argyle diamond mine tenement. The Northern Territory claim included part of the Keep River National Park.

One aspect of the claim that failed in both the Federal and High Courts was the assertion that the "right to maintain, protect and prevent the misuse of cultural knowledge" was a right that could be recognised under native title laws.

Asked about the "win a little, lose a little" nature of the court's decision, Mr Bergmann said it seemed "a bit silly".

"It's a bit of a Pandora's box opening up: nice little black fella, you can go hunting but you do not have any control over who goes on to the land. It offends us. It is discriminatory."

WA Premier Geoff Gallop was pleased with the decision, which appeared to uphold its view that mineral resources were owned by the Crown, and that pastoral interests should prevail.

"The general view of the WA Government on these matters would appear to be reflected in the decision of the High Court."

Federal Attorney-General Daryl Williams said the High Court had gone some way to delivering certainty to participants in the native title system.

Australian Democrats reconciliation spokesman Aden Ridgeway backed the call for a political rather than a court-based solution to native title.

The case has been referred back to the Federal Court for finalisation.

Source: The Canberra Times

Further information: native title issues page - includes news index and external links