Informed consent and human rights for indigenous Australians
Considerable attention has been drawn recently to the bark petitions lodged by Yolngu clans from north-east Arnhem Land with the Australian Parliament in August 1963 — the theme for NAIDOC week 2013 was “We value the vision: Yirrkala bark petitions 1963”.
The bark petitions are quite rightly interpreted as a precursor for the establishment of a House of Representatives Select Committee, specially formed to hear the grievances of Yirrkala Aboriginal people about the proposal to mine their Yolngu clan lands located within the then Arnhem Land Reserve without any consultation with them, let alone their consent.
The signatories of the original bark petitions were concerned that mining had been approved on land reserved for their exclusive use without any consultation with them; the tripartite negotiations had been between the Commonwealth government, the Gove Mining and Industrial Corporation Ltd (GOMINCO) and the Methodist mission at Yirrkala, where most of the signatories lived. They were deeply concerned that they would lose access to their land and livelihood and to sacred places and places of birth crucial to identity.
While sympathetic, the Select Committee did not recommend that mining activity desist. Its concluding recommendation was that for 10 years from 1963, a standing committee of the House of Representatives examine the condition of the Yirrkala people and the implementation of its 11 other recommendations. As mining did not occur immediately this recommendation was not implemented.
The petitions were also the precursor for subsequent legal action by the same clans against another mining company, the North Australia Bauxite and Alumina Company Ltd (NABALCO), and the Commonwealth in the NT Supreme Court in what is generally referred to as the Gove Land Rights case. The court case, Milirrpum and others v Nabalco and the Commonwealth, attempted to halt mining at Gove, which had been granted by a special law, the Mining (Gove Peninsula Nabalco Agreement) Ordinance of 1968. It is now well known that Justice Richard Blackburn ruled against the Yolngu and that mining was allowed to proceed at Gove for a period of 84 years, or until 2052.
It is now generally accepted that the perceived social injustice to Yolngu of the Gove case was instrumental in the formation of the Woodward Land Rights Commission in 1973 and the implementation of its recommendations, which resulted in the passage of the Commonwealth Aboriginal Land Rights (Northern Territory) Act 1976.
Land rights law provides traditional owners with free prior informed consent rights in relation to future mineral exploration on their lands. Unfortunately for the Yolngu, the massive existing bauxite extraction and alumina processing industrial complex on the Gove Peninsula was defined as a prior interest and thus was deemed immune from retrospective consent provisions. However, financial aspects of the agreement made between the Commonwealth and the mining companies were open to periodic renegotiation every seven years within stipulated parameters.
Fifty years on, the Yolngu and indigenous Australia and even Australia’s political elites celebrate the bark petitions as visionary, which they were. At the same time the workings of settler colonial institutions in cahoots with multinational corporations conspired to defeat the Yolngu. But today there is an emerging diversity of views among Yolngu about the resultant mining.
Some continue to resent its imposition on their traditional lands and its negative environmental and cultural impacts. One senior traditional owner likened the transformations that massive open-cut mining had caused to the landscape to scarring his body — he demonstrated this graphically by running his fingers across his chest. Few Yolngu work at the mine for many reasons including as appropriate respect to their forefathers who fought against its establishment.
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