First Nations Self-determination, Representation & Wellbeing Forum
Sunshine Coast, 22 March 2021
The W&J council’s stand on Free Prior Informed Consent (FPIC) and restitution for human rights violations – a brief case study
Presentation by Adrian Burragubba
The W&J Council was formed out of the need to represent ourselves according to our laws and customs, and to reflect the make up of our families and landholding estates in decision-making.
Our family leaders agreed we should have a self-determined governance body that could speak up for our fundamental human rights.
While initially we leveraged up a ‘family representative group’ out of the native title claim process, we knew that native title was designed to fail us; as are all other arrangements that rely only on the willingness of the settler colony to consider our rights, respect our decisions, or care about our country and culture.
So we declared our own family based tribal council to ensure we could continually and independently press for our rights to be respected and our laws to be honoured; to work for fundamental, human rights-based, social and political change – and over time, to engage in ‘nation building’ so our next generations can make their rightful place in our First Nation.
Such arrangements as self-governing councils, are needed to enable genuine acts of self-determination. To simply conform to government processes, consultations by mining companies and developers, and the regulations of the native title system about the use of our lands and waters, is to play a game we can’t win. One in which we will be patronised, at best, or crushed, at worst.
Self determination has always been central to our ability as first peoples to absorb the violent impacts of colonisation, which are ongoing; to hold our cultural sovereignty and practice our laws and customs; and to rebuild our First Nations after the waves of devastation visited upon us.
For W&J, we took a stand against governments and corporations that want to rip up our country for mega coal mines, after our ‘No’ decisions were denied and overridden – and as a consequence, we were met with aggression by those intent on exploiting our country for their own profit.
Obviously, FPIC means nothing if we can’t say that ‘no means no’ – the central theme of our public campaign for many years – and one directly tied to the issues of First Nations’ consent.
When the ‘C’ in FPIC only means consultation, and the legal system upholds the ultimate power of the state to extinguish our rights, then the fundamental relations of ‘coloniser and colonised’ remains.
Our sustained defence of country, and our campaign of resistance over more than six years, proved that the system is stacked against us, and that decolonisation is largely unfinished business.
We raised a political and legal challenge to this system (both nationally and internationally); we went to the supreme and federal courts to try to gain some justice; and we harnessed the support of tens of thousands of non-Indigenous Australians and others around the world to challenge the legitimacy of Government actions and to build the case for change.
We tie our strategies to the first law – our laws – which gives us our right and our strength. We also use the benchmarks of international law and the UN DRIP to demonstrate that we are acting in accordance with our rights.
It is the Australian nation and its state governments, with their assertion of crown sovereignty of our lands and peoples, without treaty or cession, and all that follows from that over the last 233 years, that are in breach of these standards.
We also take the original meaning of native title as a touchstone – that this is our territory ‘as against the whole world’ – and it was never ceded.
But Governments of all persuasions are the authors of polices that permit, facilitate, promote and then tax the processes of mining corporations and others, who plunder the resources of our lands and waters, which are our birthright.
It is governments that carry the burden of responsibility for allowing the rogue operators that divide and conquer our people, use the native title system (with its embedded ‘ten point plan’ and racial discrimination) to obtain what they want at our expense, and hide behind legality when they destroy our ancient cultural heritage.
In our case, Adani got what it wanted out of this legal process – but it should shut up about its supposed concern for Aboriginal people’s rights and the betterment of our people.
They adopted the minimalist legal position – as most companies do – and worked actively to undermine our self-determination, with the assistance of the state. Both the state and the corporation were vested in contriving an ILUA to claim ‘consent’ for this project.
But legalised appropriation, the lack of the power of veto in our hands, and the coercive basis of the so called ‘right to negotiate’ do not add up to FPIC.
And while the Adani mining company feigns concern for our well being, they have not delivered any meaningful outcomes for our people. There are as yet no compensation funds payed, no W&J jobs and businesses as promised, and no land or cultural outcomes that protect our heritage or give us a economic basis to build the future we choose.
Yet the mining company got everything it wanted out of the system and, beyond question, its mining leases were issued without our free, prior and informed consent.
The settler society, through the agencies of governments and corporations that it licenses, has always taken what it wants.
The Mabo decision, along wth Wik and others, placed a road block in the way of the historical processes of annexation and extraction, but Australian society has assiduously worked around it.
When the rules don’t deliver for them, they change the rules…
We experienced the intervention of the Commonwealth Attorney General into our legal affairs and watched the Native Title Act (NTA) get changed to protect the interests of Adani, when we had grounds under the Act to invalidate their claimed agreement with the W&J people.
They concocted a crisis to protect Adani and drive through amendments – and the latest changes to the NTA only confirm to us that there’s a ‘native title cabal’ that operates against the rights and interests of Traditional Owners and our cultural sovereignty and self government.
This is not new to our people. We have the support and recognition of other First Nations for our struggle. Aboriginal people know too well how the game of the oppressors is played, and that the settler society only willingly makes incremental concessions to our rights when it’s own interests (real or perceived) are not threatened.
We place ourselves and our recent campaigns in the history of our peoples and the long struggle to defend our lands, uphold our laws and customs, and determine our own future.
What undercuts this effort are not just legacy issues – of intergenerational trauma, economic disenfranchisement, racial discrimination and the like – but the fact that injustice persists and is practiced anew – in even more sophisticated ways.
We may have gained some ground on our rights, but systemic violence and inequity persists, and is left uncorrected.
A proper reckoning would require Australians to take charge of their governments and direct them towards social justice; to deal with the truth of our shared histories and the unfairness structured into every aspect of social and political life – and to recognise that as much as anything, restitution for the abuse of our human rights is required.
In our case, like so many, this is restitution for generations of wrong doing, for land stolen, for wealth appropriated at our expense, for the damage and destruction to the environment and natural resources that gave us our self-sufficiency, for removal from our place us custodians of our country and culture.
But it’s also restitution for recent acts. In the last ten years, for example, our people have been forced…
~ to watch our already limited land rights be opposed by the state in the Federal Court after nearly a decade and a half of inertia on our native title claim
~ to endure mining corporations leveraging our people to act against their own rights and each other; and to allow the destruction of our country before our very eyes
~ to wear the financial costs piled upon us in our defence of country – and then again for having the temerity to question all of this in the courts
I was personally bankrupted by a billionaire’s mining company for leading our fight in defence of our country, our people and our rights, and against this persistent bad faith.
We are a long way from justice and restitution when this is the order of the day. But we as First Nations people are never far from our law and our land.
These reside in our hearts and spirits and can never be taken away – they are the basis of our cultural sovereignty.
It always was and always will be our land, and sovereignty was never ceded.