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Monday, 8 October 1984
Page: 1375

Senator MACKLIN(3.51) —The Australian Democrats have always had a very strong policy on Aboriginal land rights and we continue to support this idea very strongly. It is long overdue. It is necessary that action be taken. Although we do not accept a range of the wording of the motion, undoubtedly there is a need for the Commonwealth Government to clarify its intentions. It is a need from the point of view of the Aboriginal communities. When Senator Chaney was the Minister for Aboriginal Affairs, in a foreword to 'Aboriginal Land Rights in the Northern Territory', he said:

The Act represents a genuine attempt to compensate for the dispossession and dispersal suffered by Australia's indigenous people.

In other words, the context in which we are talking about land rights must be seen in the context of dispossession. That is the proposition that must be addressed. That is the area to which we must pay attention.

On 20 February 1975 the Senate adopted the following motion, which was moved by Senator Bonner, the only Aboriginal who has ever been elected to this chamber:

That the Senate accepts the fact that the indigenous people of Australia, now known as Aborigines and Torres Strait Islanders, were in possession of this entire nation prior to the 1788 First Fleet landing at Botany Bay; urges the Australian Government to admit prior ownership by the said indigenous people and introduce legislation to compensate the people now known as Aborigines and Torres Strait Islanders for the dispossession of their land.

That proposition was reaffirmed by the Opposition parties this year, so at least every group in this chamber is in agreement with that. Earlier this year, the Opposition parties went on to state the following:

The original inhabitants were dispossessed and many of them were dispersed, with the result that their descendants are, as a group, amongst the most disadvantaged in Australian society.

In other words, there is total agreement that the area about which we are talking is the area of dispossession. We are talking not about charity but about justice. We are talking about the legal recognition of prior ownership. Let us be very clear that that is the context in which this debate should take place. We have unanimous agreement that the context in which we are talking is prior ownership of the land. Hence, what can we do about that? What should we do in terms of restitution and compensation? They are the items that we are discussing .

Following on from that, we then look at the single issue which is the subject of this debate, that is, mining. Why this of all rights should be raised, why mining companies rather than so many other groups in society should be seen to have a particular interest in this, I am not at all sure. It is possibly because the mining companies have funded probably the largest campaign attacking land rights; hence that is why so much attention is being paid to it. Looking at that item, I quote again from Senator Chaney in a letter in 1976 referring to the Australian Mining Industry Council and its statement about Aboriginal owners having the power to veto mining on their land, specifically the item that we are discussing. He said:

It is generally said that other people in Australia do not have this. In fact, owners of land in Australia are given substantial protection against mining without the landowner's consent. The extent of protection varies from State to State, but in my State of Western Australia all developed and cultivated land is protected. Even pasture, including uncleared pasture, cannot be mined without the consent of the owner and occupier if it is in bona fide and regular use. In many cases this gives the private landowner the opportunity to bargain with miners about the terms upon which consent will be given.

So let us be clear that in Australia those rights exist. In my own State there are even more widespread rights, under certain titles going back to the last century, to give absolute veto to private owners. So it is not something which is new in this country. It is something which has been there and is in many people's hands already.

I should like to look at the analogy which is being used and which is the fallacy of the whole argument. The analogy is to link Aboriginal communities with private owners. That is the essential fallacy of the argument that is taking place and it is the one to which I wish to look. I wish to draw an analogy not between Aboriginal communities and private owners but between Aboriginal communities and mining companies. May I develop that point. Let us look at that notion. Let us look, first, at what happens with a company in getting a mining title, be it for exploration or development. Those companies that succeed in obtaining exploration licences make no initial outlay in obtaining that right. It is granted by every State for a nominal fee. The titleholder then trades on the value of that title by negotiating joint venture farm-ins for further exploration or development activity. In many cases in Australia-and I am sure that most honourable senators know of at least one-small companies, having no substantial backing, have been able to use this valuable asset, the right to explore, for the purposes of a public flotation in which the promoters keep for themselves substantial numbers of vendor shares, which, after a time, they sell. That is a commercial operation.

I put to the Senate that there is no commercial difference between these corporate people, on the one hand, and Aboriginal communities who would be given such a right to explore and develop, on the other hand. There is no reason why Aboriginal communities cannot go into the market-place and be venturers in the exploration and development process, negotiating a valuable asset. That is what we are talking about. We are talking about compensation. For goodness sake, what shall we give the Aboriginal people as compensation? Are we going to give them what Batman gave them? No, if it is to be compensation, it must be something genuine. Why not give them the same rights as we give to many corporate companies, a right to hold in their hands, as a negotiable and valuable asset, that exploration right? What is wrong with that? It is compensation. It is a commercial asset. It is valuable in the market-place. That is what we are talking about. So let us get away from drawing this analogy between people and the Aboriginal community; let us think of it in terms of Aboriginal communities and the corporate structure. I suggest to the Senate that if we look at it in that way, we can see that the corporate group, which we call a mining company, has no greater claim to the commercial position than another group selected by anyone-maybe a State government-as having the same right. That is so even if that selection is not made on the basis of a political handout. I am talking here not about the State laws but about the reality in this country. Everybody knows what the reality is. So let us not have any fuss about that. The reality is that a political patronage has gone on in this country in terms of exploration rights. It always has been. It probably always will be. The handing over of mineral exploration rights seems to me to be no different if they are handed over for that reason or if they are given to certain groups in recognition of a social need or, in this case, as restitution and compensation for dispossession of ownership.

There is a constant assumption that the Aboriginal mining companies should not have to pay anything to Aboriginal communities. That assumption does not hold up because most mining companies end up paying other companies for exploration rights in this country. It is typical that the person who has the initial exploration right rarely carries it out. Mining companies are quite happy to pay for the right to explore. They always have been. So I suggest that we may very well be caught up in a conceptual problem of our own making from which I believe we must get away.

More important than that assumption, of course, is the assumption made throughout this entire debate that Aboriginal communities do not want to mine. I think that again is a fallacy. After all, in this country at present mining is the greatest asset of Aboriginal communities and their greatest source of income .

Senator Kilgariff —They want to mine.

Senator MACKLIN —I know they want to mine, yet the assumption that they do not is often made. I make the point that if a traditional Aboriginal community decides against mining, if it decides that it is not appropriate for its land, its culture or its tradition, for mining to occur in a particular place, what would we be talking about if we said that that decision should be overridden? What are we talking about in terms of the rights of Aboriginal communities in this country? Surely, if there are to be any genuine land rights there has to be the right finally for the Aboriginal group in the protection of its cultural heritage and sites finally to be able to say no. The bias is not that way. The bias in Aboriginal communities is to mine, but they must have the right to say yes or no at that point.

It seems to me that without that right we are talking about a fallacy. That is not only my view. It is also the view of every inquiry that has taken place in this country about Aboriginal rights. The point is finally made in those reports that it makes no sense if Aborigines do not have that right. It makes no sense to talk about self-determination if that right is taken away. I submit to the Senate that what we are talking about is the right for Aboriginal communities to enter the commercial market place with a valuable asset in their hands and not in the hands of some other group, that is, of a mining company. If we look at it in that frame we can see why mining companies are so concerned. Mining companies are looking for the exploration right because it is a valuable asset. The Australian Democrats contend that that valuable asset ought to be held by the Aboriginal communities, for their rights and negotiations in the market place and for the return to them of that valuable asset. We simply have then not a matter of principle, of saying 'equal rights for all Australians', but rather a simple commercial battle going on as to who shall own those rights. That is all we are talking about in the ultimate. The Australian Democrats believe that those commercial rights ought to be held by Aboriginal communities. The mining companies believe that they ought to have them because they mean money. Let us be very clear about that. We are not talking about whether to mine or not to mine. We are talking about who is actually going to make the money out of it. The Australian Democrats believe that, as a matter of compensation to the Aboriginal communities, they ought to make the money out of it and not the mining companies.

I wish to refer to a part of the mythology in closing which is that negotiations have not taken place or that it is very difficult to get any return . At the moment exploration which takes place on Aboriginal land is totally tax deductible. I suggest to people that if they do not know how to work it out they should look at the provisions of Division 10 of the taxation Act. They will find that it is a commercial proposition which can be transacted and sold. As has been demonstrated in the evidence which has been given to all the inquiries, including the Seaman inquiry, the chances of successful mining exploration are a thousand to one. It certainly cannot be said that the reason exploration is not going ahead is that a guaranteed right to mine cannot be obtained. A thousand to one chance of successful exploration does not really hold up under those circumstances.