Mundine reduces Aboriginal land rights and First Nations treaties to ‘a fantasy business transaction’

 

 

In his opinion piece, “Activists undermine principles of self-determination” [1], 20 April 2017, Warren Mundine makes exaggerated, false and misleading comments. As his views still gain considerable national attention as the former head of the Prime Minister’s Indigenous Advisory Council [2], it is necessary for us to respond.

While we agree that “making your own decisions and controlling your own destiny… is something for which Indigenous people long campaigned” – Mundine does much to undermine this premise in his article. His uninformed characterisations of the Wangan and Jagalingou situation regarding the proposed Adani Carmichael mine do us and our campaign for self-determination a great disservice.

Our forebears, like many others, pursued “sources of self-determination, like land rights”. We too celebrate Koiki Eddie Mabo’s achievement to gain “recognition of his people’s fundamental and original right to the land and seas on which they’d lived and subsisted since time immemorial”.

But to then build an argument on Mabo’s legacy, as Mundine does, and say that the Native Title Act in its present form is fostering “Indigenous economic participation by allowing traditional owners to use land as an economic asset”, is ludicrous. He fails to position the importance of traditional lands in the full spectrum of Indigenous values and uses (not just economic and extractive relations to resources), alongside the manifest failures of the Native Title Act to deliver anything remotely like land rights for most Aboriginal people.

His elevation of the role of businesses in empowering Traditional Owners through Indigenous Land Use Agreements (ILUAs) compounds the folly. And to go further and state that there’s “little difference in substance between a treaty and an ILUA entered into with a government” reaches the height of absurdity.

Is he kidding? Whatever treaty framework he’s using, it is not one that accords with the political views of many Aboriginal people, nor one that accords with the legal foundations of treaties in other jurisdictions; and it most certainly is not one that would stack up under international law and the declaration on the rights of Indigenous peoples today.

This ‘gammon treaty’ approach is a cop out. Not long ago Mundine argued [3] that native title claims involved a costly and protracted legal process, and that “the current process is not good for ­indigenous Australians”.

He said treaties need to be entered that would sit above, and resolve, native title claims. And he advocated that the federal government should formally recognise each Indigenous nation and enter into an agreement recognising each one as the traditional owners of a defined area of land. “In doing so, that nation’s ­native title claim should be recognised and concluded”, he reckoned.

Now he just wants the Government to change the law to suit his views and his mates in the business sector, who want the certainty that Aboriginal rights can be bought off so long as a majority vote of a claim group can be secured in a process driven by proponents – and that’s irrespective of the group’s laws and customs for decision making, and before their rights in land have even been determined, much less before a treaty has been agreed.

Whatever advances that may flow to some Aboriginal people around the country from the advent of the native title regime and ILUAs, it is disingenuous to paint the native title system and the Act in glowing terms, and pretend that ILUAs are anything like a treaty between the government and a traditional nation.

Mundine reduces native title to a fantasy business transaction in which injustice, economic inequity, power inequality and the prior stacking of the deck by Governments and political interests don’t exist. He assumes a benevolence on the part of the resources industry and others; and sees nothing but sinister manipulation from those sections of the wider Australian community who oppose some of the more extreme, destructive and unwarranted projects they propose – such as the Adani mine.

He sees a native title claim as no more than a vehicle for business deals and, within this, claimants as a quasi-Board who can simply ‘transact’ the claim as though it was just another trade in real estate and resources. And all justified by that staple of every pro-development, anti-conservation proponent carpet-bagging their wares – ‘giving Aboriginal people jobs’.

This is not surprising coming from the self-styled head of a so-called ‘Indigenous chamber of commerce’.

But in any such business deal, when refusal to enter a contract is given then the deal is off. Over.

Of course, such terms don’t really apply for Aboriginal people under the native title regime. Otherwise, when our claim group said ‘No’ to Adani and an ILUA the first of three times, it would have ended there. But self-determination without the right to say no and have that enforced is rendered meaningless.

Native Title law provides none of the rights of negotiation and refusal that contract law provides. And Aboriginal property rights are treated as second class, which would trigger provisions of the Racial Discrimination Act if those protections hadn’t already been suspended in relation to the Native Title Act, by the Howard Government’s 10 Point Plan amendments.

Despite the entirely valid rejection of an ILUA by the W&J claim group in October 2014, Adani persisted. First by seeking a statutory override of our decision; then by actively working to split the group and registered claimant; and finally, by bankrolling a meeting that purports to authorise an ILUA.

And when the McGlade decision came along and knocked their supposed ILUA clean out of the water because it lacked the signatures of those who refused to sign under duress, their backers pressed the Federal Government and the Opposition to change the Native Title Act.

To top it off, PM Turnbull went to India to personally assure Gautum Adani that the ‘native title problem’ would be fixed.

Mundine’s simplistic view of how ‘a deal’ should be done, and how presumed dissenters should be rolled, is a betrayal of the real laws and customs, rights and interests, that operate within a traditional nation.

His first problem is that he buys the lines run by anonymous Adani spokespeople, Government insiders and media outlets, like his favoured Australian newspaper, about the W&J people.

Mundine is wrong. Adani didn’t ‘negotiate’ and achieve the free prior informed consent of the W&J people. The meeting he cites that seemingly voting 294 to 1 is only ‘resounding’ if it’s a true expression of the W&J traditional owners. But it’s not.

Over 220 of that meeting’s attendees are people who have never been involved in the W&J claim or decision making, and who are identified with other nations and claims, or didn’t identify an apical decent line. They were bussed in and paid for at Adani’s considerable expense. The ‘natural majority’ of the claim group, who have three times rejected an ILUA with Adani, refused to participate in this stitch up of a meeting. They stayed away.

This is part of evidence presented in the objection to Adani’s attempt to register a land use deal for the Carmichael mine, and is included in the current application before the Federal Court to invalidate the application for registration of this sham deal as an ILUA.

And be clear, it does not rely on McGlade, and the litigation will not simply go away if the Parliament loses its senses and passes Brandis’ flawed response to the Federal Court’s decision.

The W&J Traditional Owner Council, including representatives of 9 of the 12 apical families, has upheld the original decisions of the W&J claim group to reject an ILUA with Adani, and has followed through on the mandate given it to object to Adani’s deal.

The “one individual, holding himself out as representing the group” that Mundine disparages is assumed to be the one person who voted ‘no’ at the Adani meeting. We know that’s a reference to the Councils’ leader, Adrian Burragubba. But he wasn’t even at that meeting; and Mr Burragubba is backed by the family representatives and the W&J claim group who rejected Adani three times before. He is joined in litigation against the mining leases and the dodgy ILUA by other members of the registered claimant. He is also a member of the W&J Applicant and has uncontested rights as a primary Traditional Owner for the land on which Adani wants to build its mine.

For Mundine to then suggest this supposed lone voice is merely a dupe for a bunch of “anti-coal activists who are running roughshod over Indigenous self-determination” is his final overreach.

As Deakin University’s Emeritus Professor Dr Jon Altman states [4], “Warren Mundine is poorly informed about the workings of the Native Title Act. His views run contrary to three Federal Court Judges. He confuses correlation with causation. In other words, just because key Traditional Owners and some ‘greenies’ agree, doesn’t mean one caused the other. It just means they share a similar view on Adani’s Carmichael mine proposal.”

Mundine’s lines are convenient to the industry-driven agenda of those who support the ‘Adani amendments’ to the Native Title Act proposed by Brandis, but they are quite simply wrong.

If Mundine was so concerned “about traditional owners making decisions about their own country without meddling by special interests” he’d have a closer look at the conduct of the Adani company operatives, their lawyers, the Queensland and Federal Governments, the resources lobby and others. All involving and heavily dominated by “white people”, despite his phony concoction of some Indian-Indigenous accord that manages to bypass the entire apparatus and personnel of the system in Australia.

That’s right, the “white people” in Mundine’s scenario are not only the environmental activists he insults with his tired refrain that they are the “real colonial oppressors”.

We’re not sure who Mundine is working for, and what funders are kicking cash into his ‘disruptive institute’; or who his Indigenous Chamber’s corporate partners and supporters are. It’s not obvious from his web site.

But to be sure, they are not working for Traditional Owners who seek to protect their lands and waters, build an economic future without mining dependency and the destruction of their homelands, and have the full complement of their human rights recognised under law in Australia.

He is entitled to his opinion of course. And that’s all his article is.

Like the McGlade appellants who won a court victory under the very Native Title Act that Mundine presently puts so much store in – only to watch Governments, industry lobbies and native title bureaucrats seek to overturn it – we will continue to prosecute our matters through the courts.

We will argue our case to the Australian public. These are the people who support us, morally and financially. We welcome the many thousands of contributions that assist with our legal and other actions.

We make no apologies for taking a stand, like so many Aboriginal rights campaigners, against a dubious company intent on overriding our decisions, destroying our heritage, dividing our people and offering an insulting pittance in return.

Mundine can characterise it however he likes, but we have no doubt that our stand is exactly an assertion of Indigenous self-determination. We don’t need his approval, or care about his disapproval.

Though we’re sure his mates in the mining sector [5] and the halls of Government will welcome his opinions.

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[1] Activists are the new colonial oppressors. 20 April 2017. Published in the Australian, The National Indigenous Times, and on The Indigenous Chamber of Commerce site: http://www.indigenouschamber.org.au/activists-are-the-new-colonial-oppressors/

[2] Indigenous Advisory Council ‘refreshed’ with new membership. 8 February 2017. http://www.abc.net.au/news/2017-02-08/indigenous-advisory-council-refreshed-with-new-membership/8252736

[3] Warren Mundine: treaty needed with each first nation. December 11, 2014. http://www.theaustralian.com.au/national-affairs/indigenous/warren-mundine-treaty-needed-with-each-first-nation/news-story/4ae32087476d1b259f3d415d70a71564

[4] Mabo lawyer: Changes to Native Title Act could enable projects like the Adani mine. 18 April 2017. http://www.sbs.com.au/nitv/the-point-with-stan-grant/article/2017/04/18/mabo-lawyer-changes-native-title-act-could-enable-projects-adani-mine

[5] Nyunggai Warren Mundine AO. Speech to the Minerals Council of Australia ‘Workforce of the Future’ Forum on 12 October 2016. http://www.indigenouschamber.org.au/indigenous-people-and-the-future-minerals-industry-workforce/. See also ‘Indigenous Australians and the mining industry need each other’ published in the Australian Financial Review, 11 January 2017.  http://www.indigenouschamber.org.au/indigenous-australians-and-the-mining-industry-need-each-other/

 

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