Mining ruins Pilbara “Blackfellas”
If you want to see the starkest contrast of benefit and burden no place is as egregious as the Pilbara, where two of the world’s largest companies – BHP Billiton and Rio Tinto – are digging out ribs of gold, and the blackfellas live in the miserable shadows of spacious wounds, Noel Pearson, director of the Cape York Institute for Policy and Leadership, writes in The Australian (3/2/07, p.29).
BHP does not try: Yes, Rio Tinto under former chief executive Leon Davis took steps to ameliorate this unjust situation, but the company has since tended to bank on presentation and less on substance, he says. BHP Billiton does not even try.
Views as to reasons: If there is no doubt that we have the astounding situation where indigenous communities are not engaged in and enjoying the benefits of a mining boom in their backyards, there will be disputes as to the reasons for this. My views on the reasons for this failure are as follows:
Law allows "beads and mirrors": First, the legal framework that applies to mining and native title severely disadvantages indigenous landowners. Section 38 of the Native Title Act explicitly says that in arbitrating an application for mining, the National Native Title Tribunal "must not determine a condition … that has the effect that native title parties are to be entitled to payments worked out by reference to: (a) the amount of profits made; or (b) any income derived; or (c) any things produced." You might as well make clear in the law that the tribunal can only determine beads and mirrors as acceptable outcomes from arbitration, because that is in effect what it has been doing.
Miners quiet on land rights: The mining lobby has been quiet on land rights for the past decade. Having secured an advantageous legal framework through the bitter conflicts over the Native Title Act in the 1900s, they have learned that ideological opposition to land rights is unproductive for its members. As long as member companies are winning hands-down through the so-called agreement-making process, they have had no interest in conflict.
Canberra weakens position: The federal Government has continued to legislate to weaken the indigenous position, both in terms of the procedural rights of landowners and the institutional support they receive from land councils. They are now proposing another round of amendments that further threaten the capacity of indigenous people to deal with developers.
Title problem: Second, we have yet to work out how best to deal with the dash between communal land title and the demands of modern development, of which mining is the most obvious. There is often conflict and contradiction.
"Fistful of dollars": Third, and related to this last point is the "fistful of dollars" mentality that predominates, both in the minds of indigenous individuals and groups and those of developers who exploit febrile expectations of short-term gain. The idea that royalty agreements should automatically result in cash distributions to individuals is a powerful animator of disputations and conflicts, within landowner groups and between them.
Overlapping claims: Land councils seeking good outcomes invariably face an enormous native cat-herding challenge as fragmentation and overlapping claims are the order of the day, with unscrupulous lawyers picking off individual cats like marauding dingoes.
Lawyers limited: Fourth, there is limited commercial and financial capacity within land councils charged with supporting landowners. The typical lawyer acting for indigenous groups is a master of pedantic, Geoff Boycottish back-and-front-foot defence, but the drive or the pull or the hook is simply not in their repertoire.
More burden than benefit: Meanwhile the mining companies have Adam Gilchrist flashing the blade for them, and there is no contest. The present situation is that the terms upon which mining takes place in Australia wreak more burden than benefit to indigenous peoples, most of whom live in the dust of the development.
All benefit from mining: If these issues seem too far removed from the average Australian in Sydney or Melbourne, or indeed Brisbane and Perth, then we should consider that we all take benefit from mining: in no small way the billions of dollars of tax cuts to Australia’s middle and high income earners come courtesy of the ransacking by the impious hands of Mammon’s most primary industry.