The term which was most contested in the Mabo and Wik decision was the terra nullius which is translated from Latin as “Land belonging to no one.” When the expansion of the Europeans began in the 1800s they used this term to describe the lands owned by the Indigenous people of Australia. According to their edicts the lands which were present there were owned by no one and were under the jurisdiction of the crown. At first, it was used to claim lands that were owned by no one.
Eventually, the edict evolved to include those societies which were considered uncivilized and thus have no rights. Through such adversities, they have fought for years to gain back the rights which were theirs all those years ago and have succeeded. In their success, however, there is also a reaction of a different sort. This essay will focus on how the Mabo and Wik decision affected mining in Australia.
Between 1973 and 1993 there was a shift in public opinion regarding the rights of indigenous people. The government passed laws that turned over all of the reserve land available to the indigenous tribes. They would continue fighting for the right to reclaim their lands. Eventually, the case was brought before the Australian High Courts on 3rd June 1992 by the Australian Indigenous Movement; the case was known as Mabo vs. Queensland. The case was brought forward by a number of indigenous people in order to lay ownership to land and waters of the Murray Islands which were seized during European rule.
After deliberation, the judges ruled almost unanimously in favor of the Mabo judgment. This judgment was one of the first steps for the indigenous peoples to seize their own destiny and would have a profound effect on Australian politics and law for years to come. At the time the judgments did not specify the exact description of the title, what it entailed and how it would be protected. It did not provide any information as well how the title could be used by its owners. Whether it could be seen as any other title or were there special circumstances (Sharp, 1996 p. p. 207-224).
Another reason the judgments were considered so problematic was the fact that due to the unknown nature of the title the compensation for the lands of the indigenous people could not be set. The prices varied according to the particular characteristics of the land in question. For example, if we consider the land to be primarily used for hunting and gathering then its cumulative price would be low, however, if it is a prime location for a mining operation or tourist attraction. In the end, the decision to put the price of the land up for grabs went to the indigenous tribes (Stephenson, 1995 p. 135-154).
Once the Mabo decision was passed all negotiations between the mining facilities and the indigenous tribes were put into a deadlock. Mines did not want to negotiate a price with the indigenous tribes in order to use their land. They saw it as unfeasible to be indebted to them for such long periods of time. They wanted to have negotiations that would allow them to gain control of the land once and for all. This outcry, along with a need for legislation for the titles of the native people brought about the creation of a law in 1993 called the Native Title Act. It allowed the interests of the natives to trade to be realized and introduced new elements which supplemented the Mabo decision.
The article has four main points that summarize its effects. It ensured that the native titles would remain in place unless legislation was passed which would invalidate such ownership. Aside from that the owners of the native titles could give up the rights to the title of their lands if a suitable amount of funds were given to them. Additionally, the federal courts were the only legislative body that was allowed to determine the results of disputes over these native titles (Stephenson, 1995 p. 135-154).
Finally, the creation of this act allowed the natives to negotiate with the mining companies for leasing rights. The people in the industry however could not come to agreements. They saw the act as giving too much power to negotiate into the hands of the indigenous people. The conflicts between the industry and the native title holders grew numerous. The debate in the state about how such conflicts may be resolved also grew (Stephenson, 1995 p. 135-154).
The negotiations between the mining companies and the landowners came down to a snail’s pace. Eventually, the state government had to step in to solve this problem. Despite their best efforts, they could not reconcile the differences between the two parties. The main problem of the mining industry was that the prices asked for to negotiate the leasing of lands by the natives were considered excessive. They would not be able to lease out the lands for any reason except for pastoral reasons as mining simply would not be feasible. However, even the land which would be leased out would not be used for pasturing; rather it would become a tourist spot.
They saw this as the only way to bring profitability from these lands. However, the ensuing environmental effects of such a program would have been highly problematic for the indigenous tribes living there. They would have to migrate from the area to avoid the environment which was being destroyed around them. Therefore, a stalemate was once again made. These difficulties would not be solved until the Wik decision was passed (Holmes, 1991 p. 41-59).
The passage of the Wik decision was instrumental in moving some of the negotiations forward. It passed legislation into law that granted rights to lease owners above the native rights of landowners. This decision by the high courts ensured that the lease owners would have control over the property if sufficient payment was made to the landowners. However, even the lease rights did not completely end the rights of the aborigines to their lands (P. Butt, 1998 p.99-110).
The uncertainty surrounding the rights granted to the indigenous raised an outcry from the pastoral and mining industry. They did not see the tribal rights as fair to their industries. They saw it as a hindrance to their economies and wanted the indigenous people stripped of their titles. The outcries led to several political debates which eventually ended with the members of the high court being replaced with other judges (Williamson, 1997 p. 45-50).
The judges began to introduce a ten-point plan into legislation that would severely curtail the powers of the native title owners. They introduced this plan as a bill to parliament in 1997. According to these changes to the legislation, the indigenous tribes were required to take a registration test in order to receive the native titles. It also changed legislations regarding the acquisition of land and limited their rights to negotiate for that land. It also awarded certain states the power to intermediate period acts and to accept previous exclusive possession acts, it also transferred some of the power from the native title tribunal to the federal court (Williamson, 1997 p. 45-50).
With the right to negotiate no longer in the hands of the native title holders, they could no longer safeguard their rights and the mining industry had the advantage once again. The current state of the native title requires the perusing of the Native Title Amendment act of 1998 (Gillies, Cleworth, & Kapterian, 2008 p. 137-156).
Instead of creating a system which is cost efficient and advantageous to the mining industry, the current system is still considered as uncertain as ever. They still complain not about the fact that the natives hold the titles to these lands. Rather they complain about the cost required in order to gain approval and thusly a lease to begin exploring the land and see if it is viable for mining purposes. They do not see how their industry can gain a lease on the land, explore it and eventually profit from it in a reasonable cost and in a reasonable time frame.
One of the pieces of evidence which show these difficulties in stark clarity is the incredible 10,000 in number backlog of mining and exploration plans currently awaiting access to the land in question. The current system which is in place also has other issues in play. Two of these include the numerous claims from various indigenous settlers to the same pieces of land. The second reason is the time and money which are spent by companies in order to gain licenses to explore these lands. What adds to the problem is that since each state runs by federal jurisdiction, the laws which govern each claim are different and thus again time consuming (Gillies, Cleworth, & Kapterian, 2008 p. 137-156).
In order to bypass these problem companies are using legislations contained within the native title act which allow the use of procedures and the use of the land by indigenous people to avoid the over extended system that has been put in place by the federal government. Thus there are many agreements which are taking place today which are outside the native title system (Gillies, Cleworth, & Kapterian, 2008 p. 137-156).
The ILUAs or indigenous land use agreements have provided legislations which have allowed 279 registered agreements to take place. The contracts which are drawn up under this legislation allow the negotiations to be flexible enough to keep the interests of both parties intact. It serves to protect the rights of not only the people involved but also the area as well, as well as insuring compensation for the use of the land. The contracts under the ILUAs are binding and subject to all the people involved with the native title area, including those who have not negotiated the contract (Gillies, Cleworth, & Kapterian, 2008 p. 137-156).
The right to negotiate is another legislation which is now being widely used to make contracts between the land owners and mining companies. This right allows mining companies to create a mine within the area which is negotiated with the land owners. The companies are now using both these paths in order to ensure that the costs of exploration and mining for their companies net them a profit in the future. While these negotiations also serve to safeguard the rights of indigenous peoples as they can decide how the outcome of these negotiations can best serve them. (Gillies, Cleworth, & Kapterian, 2008 p. 137-156)
The changing of mining attitudes has brought certain mining companies to the forefront due to these exchanges. One of these companies is known as Rio Tinto Ltd. Rio Tinto Ltd is one company which has signed over 30 mine development and exploration contracts since 1998. They have signed all these contracts outside of the jurisdictional native title process. They have also put agreements into effect which not only support and protect the land owners, but help them to build economically sustained communities (Gillies, Cleworth, & Kapterian, 2008 p. 137-156).
Another agreement which has benefitted both parties is the Yandicoogina Land Use Agreement. This agreement was made in 1997 and provided considerations which afforded the economic development and employment of the aborigine people. Gumala Enterprises Pty Ltd is one such company which ahs hired aborigine people in its mining and catering work. Other programs which have shown the relationship between the sets of people moving forward are the building of the Indigenous Communities/Mining Industry Regional Partnerships Program in 2001. Another one is the Memorandum which was signed in 2003 regarding the Understanding between the Queensland Indigenous Working Group and the Queensland Mining Council (Gillies, Cleworth, & Kapterian, 2008 p. 137-156).
It should be noted however that not everything is bursting with positivity in these deals. The changing world markets has created an environment for mining companies where they have to take environmental concerns into account and take corporate responsibility for their actions. Other problems which were found were seen under the right to negotiate legislation. According to certain cases there may not be any financial incentives after the contract is written.
However, in some deals that are struck mining companies have to pay 3% of their production gains to the indigenous people giving them a great advantage. The wide range of programs and commitments that have been undertaken by mining companies in terms of protect their culture, employment and environmental safety have also shown how the indigenous tribe have gained many advantages from these deals (Gillies, Cleworth, & Kapterian, 2008 p. 137-156).
Thus, if we consider the implications of the Mabo and Wik decisions we can see how they go beyond simply determining how natives received their titles. It also created an environment where the natives could advance their own economic interests through negotiations with the mining companies. The fact that they own much of the northern territories after the decision was passed puts this in their favor. Although the Wik decision took some of the power away from the aborigines to negotiate for their land and there are some aborigine who simply will not allow mining on their lands no matter what (Yunupingu, 1997).
The aborigines have reached several agreements with mining companies in the past and will have to continue to do so in order to keep themselves independent and economically stable. It can seen however that thought their rights to trade in the federal government have been curtail, their personal dealings with mining companies have brought them positive effects to both their communities and their interests.
List of References
Gillies, P., Cleworth, B., & Kapterian, G. (2008). Gove: forgotten catalyst for native title or are we just where we started? Native title and the mining industry issues in Australia from Gove to the present day. International Journal of Private Law Volume 1 No. 1/2 , 137-156.
Holmes, J. (1991). Land Tenures in the Australian Pastoral Zone: A Critical Appraisal. In J. Moffat, & A. Webb, North Australian Research: Some Past Themes and New Directions (pp. 41-59). Darwin: North Australian Research Unit, Australian National University.
P. Butt, R. E. (1998). Mabo, Wik and Native Title p.99-110. Leichhardt, New South Wales: The Federation Press.
Sharp, N. (1996). No Ordinary Judgement: Mabo, The Murray Islanders’ Land Case p. 207-224. Canberra: Aboriginal Studies Press.
Stephenson, M. (1995). Compensation and Valuation of Native Title. In M. Stephenson, Mabo: The Native Title Legislation: A Legislative Response to the High Court’s Decision (pp. 135-154). St. Lucia: University of Queensland Press.
Williamson, S. (1997). Implications of the Wik Decision for the Minerals Industry. In G. Hilley, The Wik Case Issue and Implications (pp. 45-50). Syndey: Butterworths.
Yunupingu, G. (1997). Our Land is Our Life: Land Rights – Past, Present and Future. Sydney: University of Queensland.