|
|
|
 |
|
| Mine/Mine Lease | Traditional Owners | Mining Companies | Royalty Association |
| Nabarlek | Gunwinggu | QML | NTOA |
| Ranger | Mirarr Gundjehmi | ERA | Gagudju Association Incorporated
Gundjehmi Aboriginal Corporation |
| Jabiluka | Mirarr Gundjehmi | ERA | Djabulukgu Association |
| Koongarra | Murrumburr | Cogema |
The Kakadu National Park covers 19 804 square kilometres. It is on the World Heritage list for both its cultural and environmental values. Stage One of the Park was proclaimed in April 1979, Stage Two in February 1984, and Stage Three in June 1987. Management of the Kakadu National Park is governed by two pieces of legislation - the National Parks and Wildlife Conservation Act 1975 and the ALRA. It was estimated in 1992 that some 300 Aborigines live in the park, many of whom are actively involved in the park's management.
There are approximately 3000 people living in the region which covers the Alligator Rivers region and part of the Arnhem Land Aboriginal Reserve (West Arnhem land). More than half the population are Aboriginal. There are two townships in the region - Jabiru and Oenpelli (Gunbalanya). Jabiru is 256 kilometres by road east of Darwin. Oenpelli is 60 kilometres north east of Jabiru.
Oenpelli has an Aboriginal population of about 764. It is the largest community within the vicinity of Nabarlek. [10] The Aboriginal people of Oenpelli are collectively known as Gunwinggu people. Gunwinggu is the name of the language spoken by a group of people who migrated to Oenpelli from areas to the east sometime prior to the establishment of the Church Missionary Society at Oenpelli in 1925. [11] There are nine out-stations in the Oenpelli area, which are said to have a combined population of 400, although at any one time there are usually only about 300 people in residence.
About 670 Aboriginal people live in the area around Ranger and Jabiluka. This area includes the following communities:
Nourlangie Mudginberri Manaburduma- Jabiru Town Camp
Manaburduma Hunters Camp Mamukala
Mamukala 1 Mamukala 2 Patonga
The mining town of Jabiru was established to the east of Ranger during 1979/80. Approximately 133 Aborigines live in the Jabiru area. [12] The majority of these live in the town camp of Manaburduma.
The Aborigines in the region are represented by a number of "royalty" associations. In addition to receiving royalty equivalent payments, these associations also receive mining agreement and lease rental payments. Under section 35 of the ALRA, royalty equivalent monies are paid to royalty associations in ". . . such portions as the Land Council determines."
The Gagudju Association Inc. is a small Aboriginal incorporated organisation, with about 300 members, established in 1980 by the NLC to receive statutory royalties from the Ranger uranium mine. The association represents Aboriginal persons having traditional attachments to the land comprising the Kakadu National Park. During the past 15 years the association has received significant sums of money and has invested heavily in the regional economy as well as operating as a service delivery agency. The services and benefits provided by the association to members include housing, health services, education, employment opportunities and income.
For a short period during 1995/96 the Association did not receive royalty equivalent monies. These monies were paid, at the discretion of the NLC, to the Gundjehmi Aboriginal Corporation. [13] Payment of the full amount of royalty equivalent monies from Ranger to the Gagudju Association recommenced from August 1996.
Gundjehmi Aboriginal Corporation was established in 1995 by the NLC to receive statutory royalties from the Ranger uranium mine. The corporation, which has 24 members from the Mirarr Gundjehmi clan, represents the interests of the traditional owners of the Ranger and Jabiluka mineral leases. These people are also members of the Gagudju and Djabulukgu Associations.
Djabulukgu Association is an incorporated body representing traditional land owners and affected Aborigines of the Jabiluka mineral lease. The Association, established in 1982, has a membership of 85 people from 12 clans. The Association has received mining agreement monies and continues to receive lease rental payments. These monies have been used to establish a number of small tourist ventures, a brick-making enterprise and a nursery.
The NTOA was established in 1988 to receive royalty equivalent and other payments related to QML's uranium mine at Nabarlek. Prior to that, payments were made to a number of incorporated Aboriginal associations and even to unincorporated groups of traditional owners. From 1982 to 1988, payments were made to the Kunwinjku Association. It was wound up in 1988. [14] The agreement with QML expired in 1995. The NTOA now receives a very limited income from investments and the sale of the mine site infrastructure assets.
The 1977 Ranger Uranium Environmental Inquiry (Fox Report) inter alia considered the impact of mining at Ranger on Aboriginal society. It expressed general concern at the consequences for the Aboriginal people of the influx of a large European population to the Alligator Rivers Region and examined a number of specific aspects of Aboriginal welfare and well-being which were likely to be affected, directly or indirectly, by the Ranger development. These included employment, education, race relations, health and alcohol.
The Fox Report found that there were a wide variety of employment opportunities for Aborigines within the Region. However, only a small proportion of the Aboriginal population sought any form of stable employment. Reasons given for the high unemployment rate included the preoccupation of Aborigines with acquiring and consuming alcohol; the Aboriginal approach to work; adherence to a traditional life style; the need to perform ceremonies and other obligations; and the availability of social security payments, which allow Aborigines to live according to standards that they find acceptable. The Fox Report found that the mine would increase employment opportunities for Aborigines. However, on the evidence available, the Report suggested that it was necessary to take a conservative view and the total increase in the numbers of Aborigines employed was not likely to be great.
Regular attendance of Aboriginal children at primary school was found to be very low (approximately 25%). Explanations for declining school attendance included the effects of alcohol, the cultural inappropriateness of European-type schooling, the out-station movement and perceived limited benefits from attendance at school.
The Fox Report thought it unlikely that the establishment of a primary school at Jabiru would draw many Aboriginal students. The Fox Report also commented that there was an expectation on the part of Aboriginal parents that their children should receive instruction in traditional culture, history and language, to reinforce values and beliefs held by the community in which they lived. Secondary schooling was only available in Darwin. The Fox Committee did not hear any evidence on the likely advantages that establishing a secondary school at Jabiru would provide to the Aboriginal community. However, other evidence presented to the Commission suggested that Aboriginal parents would prefer to have such facilities established in their communities so that their children would not have to leave home to further their education. [15] In addition, the Fox Report found that there was virtually no vocational training available in the Region for Aboriginal persons.
The Fox Report suggested that some resentment was likely to develop as a result of the quick and efficient construction of a town with modern facilities predominantly for the use of non-Aborigines. Merit was seen in the suggestion that a suitably qualified liaison officer be employed to inform non-Aboriginal people coming to the Region about Aboriginal customs and traditions.
A health centre was proposed for the region to service the rural and mining populations. Special Aboriginal health programs were also to be made available. It was suggested that the establishment of such a centre would upgrade and render health services more accessible to everybody. Some witnesses suggested that an increase in white population would lead to an increase in the incidence of transmittable disease. Others also pointed out that malaria could be introduced to the Region. The Fox Report regarded it as essential that Aborigines be trained as health workers to work in their own communities. There was a likelihood that Aborigines would be subject to increasing social pressures arising from accelerated social change, which would contribute to alcoholism and mental illness in the Aboriginal community.
The evidence suggested that alcohol abuse was largely a symptom of stress and that there was a serious risk that the influx of people into the region would aggravate the social and psychological pressures which are regarded as the causes of excessive drinking. Proponents of mining pointed out that alcohol problems existed in communities not associated with mining and suggested that the situation in the Region could not get any worse.
The Fox Report did not accept that the situation could not get any worse and believed that it was imperative that every opportunity be taken to assist the people to overcome continuing disruption and decline. Proposed measures included acknowledgment of Aboriginal title to land; establishment of a national park and a scheme for control of alcohol. In addition, the Fox Report suggested that "an active program be established to ascertain the health, education, employment and accommodation needs of every individual, and to keep that information up to date." [16] The Fox Report thought that this information would be of considerable assistance in enabling more satisfactory and more selective programs for their betterment to be developed.
With regard to establishment of a mining town, the Fox Report sought to minimise its impact on Aboriginal people and the environment by restricting the population of the town to a maximum of 3500 and recommending that authority should not be given for the Ranger and Jabiluka mines to proceed at the same time. The Fox Report acknowledged that there would be some benefits in establishment of a mining town in increasing Aboriginal access to amenities and services.
The Fox Report did not recommend restrictions on commencement of mining at Nabarlek. QML had proposed that mining staff would be accommodated in Darwin or at the mine camp, thus minimising the impact on Oenpelli. Further, Nabarlek was in the Arnhem Land Reserve, outside of the proposed national park. Commencement of mining was thus contingent on Aboriginal attitudes.
The Fox Report concluded that "the arrival of a large number of white people in the Region will potentially be very damaging to the welfare and interests of the Aboriginal people there." [17] It was considered important to take firm measures to ensure that Aborigines can remain sufficiently isolated and able to live according to their own lifestyles on their own land, without intrusion or interference from others. To this end, the Fox Report proposed acknowledgment of Aboriginal title to land and establishment of a national park. Principal recommendations aimed at reducing the impacts of uranium mining on Aboriginal society are listed below.
Aboriginals, if they are willing, be employed as rangers in the national park.
Aboriginal health workers be trained to work among their own communities.
All reasonable steps be taken to encourage those Aborigines to work who are inclined to do so, and which will provide them with the necessary training and opportunities.
Consideration be given to implementation of the scheme outlined in Chapter 13 of the Report, which is designed to improve the morale of the Aboriginal people, enhance their welfare and reduce their alcohol dependence. If that scheme is not followed a scheme with the same objects should be implemented.
Consideration be given to employment of a suitably qualified liaison officer to inform non-Aboriginal people coming to the Region about Aboriginal customs and traditions, through discussions, displays and visits. [18]
In 1978 the then Australian Institute of Aboriginal Studies (now the Australian Institute of Aboriginal and Torres Strait Islanders Studies) agreed to research and report on the social impacts of uranium mining, initially for five years. A series of quarterly and six monthly reports were presented to the Minister for Aboriginal Affairs, with a consolidated report produced in 1984. The project collected baseline data, examined impact factors and specific issues arising from mining, and recorded Aboriginal attitudes to the situation. The major findings and recommendations of the report are summarised below. However, the questions raised in the Fox Report can be quickly answered as follows:
. . . has uranium mining brought disease, particularly venereal disease, and an increase in ill-health? No. Has the machinery of mining forced Aborigines to relocate physically, or to change their diet? No. Have miners preyed on Aboriginal women or engaged in sly-grog trade? No. Has mining, or the mining town, produced racial tension? No. Has mining delivered Aborigines to a promised land of apprenticeship and employment? No. Has mining reduced Aboriginal poverty, individual neurosis, and internal decline generally? No. Has mining created or attracted 'fringe-dwelling' communities? Yes, to the extent that Jabiru has become an attraction point. . . Has mining directly changed the traditional culture by disturbing sacred sites and/or ceremonies? Yes, possibly. . . Has mining produced alcohol devastation? No, except in the matter of mining moneys with which Aborigines can and do buy more alcohol. Has mining produced a desire for and a greed about money, in a deleterious ways? Yes. Has mining impinged upon or affected the Aboriginal civic culture, albeit one in transition from inmateship to independence? Yes. . . [19]
The recommendations of the Fox Report on minimising adverse social impacts were not implemented. A number of the concerns raised by the Fox Report did not eventuate. For example, mining did not introduce disease or, of itself, exacerbate the alcohol problem, except in so far as it provided more liquor outlets and money with which to buy more alcohol.
Receipt of mining royalties has directly led to development of regional Aboriginal organisations which have provided the basis for regional planning and created a higher order of decision-making than that involved in family, community or local council life. As a result of mining decisions, Aborigines are being drawn into higher order of institutional politics without information or education about the institutions involved. Mining has specifically altered the politics of Aboriginal residence - for those who control royalty equivalent payments and those who do not.
The Aboriginal economy was based on distribution (sharing) rather than production and accumulation. Aborigines generally have little financial knowledge. As a result of these two factors no relationship can be established between present and future royalty payments and Aboriginal financial security in the future.
Mining companies have made genuine attempts to employ local Aborigines, with little success. Aborigines lack the skills to gain anything but unskilled positions with the mining companies and they do not often seek such employment. Aboriginal difficulty in entering employment is related to an inadequate educational system and consequent low numeracy and literacy skills. This is also related to social and cultural factors.
Alcohol was the major preoccupation of a large group of Aborigines in the Region. The project found that "Alcohol has a life of its own: it has its own politics and economics for the people. Mining did not create this phenomenon." [20] Mining impacted on alcohol in several ways: availability of royalty revenues, greater power to purchase alcohol and vehicles, opening of new liquor outlets, and the lethal combination of alcohol and vehicles. It was not possible to determine how much more alcohol was consumed because of stress caused by mining.
Aborigines have not been adequately informed or educated about uranium.
Jabiru Town has rapidly become the administrative centre for the Region, and a major focus of Aboriginal activity as services and attention move away from Oenpelli. The Fox Report's forecast that "the town will be potentially damaging to the welfare and interests of Aborigines has not come to fruition." [21]
The National Park has provided an effective barrier and had generally promoted Aboriginal interests. The Australian National Parks and Wildlife Service had been a strong employer of Aborigines and had drawn on their skills and knowledge in developing its policies and practices.
The Report found that:
Aborigines in the Region are in a state of transition between a system of imposed wardship and an assertion of independence, one encouraged by Government. But the current civic culture is one in which disunity, neurosis, a sense of struggle, drinking, stress, hostility, of being drowned by new laws, agencies, and agendas are major manifestations. Their defeat on initial opposition to mining, negotiations leading to Ranger and Nabarlek, the fresh negotiations on Jabiluka and Koongarra, new sources of money, the influx of vehicles, together have led . . . to an unhappy verdict THAT THIS IS A SOCIETY IN CRISIS. [22]
The Report commented that there was nothing new in the phenomenon of a traditional community confronting an industrial society. The real issue was how a traditional community was going to face the intrusion of two uranium mines just as it was struggling to emerge from a recent state of wardship. "Aborigines in the Region are now in a policy ethos of 'self-determination' and 'self-management'. . ." [23] But the previous period of wardship and assimilation had provided Aborigines with none of the ". . . work discipline, skill, training, knowledge, concepts, incentives and ambitions with which to cope with life inside their now 'freed' institutions, let alone life 'outside'. . ." [24]
The Report's conclusions are summarised below:
Any new mining or other major development in the Region, including tourism, would seriously intensify the grave problems already being faced by Aboriginal people.
The Government should be committed to sensitive intervention and planned procedures to assist the Aboriginal community's survival and growth.
Immediate steps should be taken to set up a national task force to help Aborigines acquire the necessary skills and techniques for their survival along side prolonged uranium mining and development in the Region.
Any further mining or development should not take place before this task force is created and has developed guidelines and procedures which effectively attempt to mitigate the deleterious effects of mining and development on Aborigines in the Region, and reinforces the positive aspects of development.
Any proposals for new mines or developments within the next ten years should be the subject of a new, full environmental impact statement (EIS). The social impact of such further development should also be fully assessed.
There should be continued monitoring of the social impacts of uranium mining in this Region, in cooperation with the task force. Stronger formal links with the Office of the Supervising Scientist should be established.
Consideration should be given to a procedure by which Aborigines may commission their own EIS as a counter to that produced by the developer. This could then lead to arbitration between competing or conflicting aims, statements or clauses in the EISs and claims.
There must be an immediate program of education for Aborigines about uranium.
The recommendations of the Report were not implemented.
Overall mining and tourism have increased employment opportunities in the region. This has not, however, led to a higher level of employment for the local Aboriginal peoples.
As predicted by the Fox Report, very few Aboriginal people are employed by the uranium mining industry. ERA currently has 11 Aboriginal employees, but only one of these is a traditional owner. ERA states that "we have an open employment policy and we will accept all traditional owners who want a job and have the skills to do that job." [25]
There has been an indirect increase in employment of traditional owners. Approximately 30 traditional owners are employed by the Gagudju and Djabulukgu Associations, which only exist because of the mine and prospective mines in the region. The Gagudju Association also operates a contracting company whose services are used by ERA for some contract jobs.
ERA is not the only organisation in the region that has difficulty in employing local Aborigines. The Gagudju Association which runs a number of businesses, including the Gagudju Crocodile Hotel, has had difficulty in employing and training local Aborigines. Only one traditional owner works at the Hotel. In the past year five trainees were employed, but all have left. At Cooinda, the Gagudju tried to train two people for 12 months or more. They did not like the work, especially when they had to talk to large groups of people.
Mr Alderson, a member of the Gagudju Association, when talking of employment, education and alcohol stated that:
We have tried hard for the last 10 years to achieve putting Aboriginal faces behind counters. It just does not work. We have too many young fellows coming up who do not know what work is: all they know is how to drink. That is the main problem. We are not blaming the mining company for giving us the money, the royalties. The amount of royalties we are given is $2000 every 12 month . . . it is what they are given in between, the UB (unemployment benefit). That should be stopped. [26]
Reasons given for the low Aboriginal employment participation rate include:
the pool of available recruits is small given the small number of Aborigines living in the area of the mine;
the lower Aboriginal retirement age;
those Aborigines who are suitably qualified are already occupying positions of responsibility in their own communities;
a substantial proportion of the community are not interested in full-time employment;
low educational standards among local aborigines;
alcohol abuse and associated law and order problems, including loss of drivers' licences for drink driving and, thus, being unable to get to work or to perform certain tasks at work;
a reluctance to leave home for extended periods for training or work;
lack of community support for trainees;
the priority attached to the fulfilment of social and cultural obligations;
work situations;
the movement to out-stations;
royalty equivalent payments; and
the availability of social security payments.
Many of these are quite valid reasons for not being able to obtain, or for not seeking, traditional "European" style full-time employment and may also be applicable to non-Aboriginal people. For example, many Europeans are less willing these days to undertake employment or training opportunities that need them to be away from their families for extended periods of time.
The Gagudju Association does have one Aboriginal employment success story. As mentioned above, the Gagudju owns a contracting company which operates on a casual labour pool basis. This approach allows employees considerable flexibility. They are able to decide how many hours they work and when, thus allowing them to chose work patterns that suit their individual needs. O'Faircheallaigh commented in 1986 that this type of work arrangement seemed to be favoured by local Aborigines, since those involved tended to stay in continuous employment for extended periods of time. [27]
The Djabulukgu Association has also set up businesses with employment arrangements that are more acceptable to Aboriginal people. They have set up businesses such as a nursery, a brick making enterprise and small tourist ventures. These are small businesses that the Aboriginal people can feel part of, and they do not demand full-time or regular employment. The Djabulukgu Association has also ensured that recent contracts to build two houses at Mudginberri have included the requirement to train Aboriginal people as part of the project.
A major issue is establishment of culturally acceptable work opportunities (that is, work that makes allowances for cultural and social obligations). There are employment opportunities, such as the production of art and craft, which harmonises with cultural obligations. Cultural factors are often overlooked. Unskilled labouring or administrative work is seen as irrelevant. Such work is not seen as improving their obligations to each other. Family obligations are of the greatest importance. There is a view that it would be quite difficult to get traditional owners to work at Ranger or other mines.
Education is closely linked to employment and training matters. While the local Aborigines have had improved access to primary and high schools as a result of the mining at Ranger and the consequent construction of Jabiru, there are continuing problems with attendance, levels of literacy, development of culturally appropriate schooling and educational qualifications achieved.
The crux of the issue was expressed as such:
We have millions of dollars of assets now and children are coming out of that school. The average age for school leavers here is 12 years old. It is no joke. It is bad. There is no encouragement from the school, no incentive. Alcohol is part of it . . . I see a problem for the future of the Gagudju people because our children are not being educated. Once this generation is gone, who is going to be running our so called assets? It is still going to be white people advising us. [28]
In the past the Gagudju Association had established smaller, local schools. A school was established at Patonga with a European teacher and an Aboriginal assistant. The school was initially funded by the Gagudju and later supported by the Northern Territory Department of Education. The school was quite successful for a time, with high levels of attendance. However, as the children grew older, they wished to go to school in Jabiru and the school closed owing to falling numbers. Schools were also established at Cannon Hill and Mudginberri. These schools, while specifically including an Aboriginal content into their curricula, were seen as a stepping stone into the mainstream school system which was seen as offering a wide range of academic opportunities and a chance to broaden social and cultural contacts The schools also aimed to provide a basic standard of education for older children who had not had access to school. [29] The school at Cannon Hill was not successful. At this time there is no government support for alternatives to the mainstream school system and the Gagudju Association is not in a position to support additional educational facilities in the area.
Problems identified with the current educational system are:
recommendations such as the use of accepted English as a Second Language teaching strategies are not implemented - pupil to teacher ratios of 12 to 1 are recommended but Aboriginal children are still in mixed classrooms with the standard classroom ratio of 22 to 1; [30]
schools are not culturally relevant to the Aboriginal communities - the curriculum does not include Aboriginal languages and culture, and the system does not allow time for traditional obligations, ceremonies and other cultural imperatives;
there are insufficient resources, such as personnel and finances, to deal with children who have little education or have fallen behind for various reasons;
English is taught all the time without Aboriginal languages being taught at the same time;
Indonesian (or Japanese) is taught as a second language when children do not know how to speak their own language;
problems with access to schools, especially during the wet season;
lack of teachers or assistants with whom the children are comfortable;
the disruptive effect of alcohol on families;
the state system disempowers parents and local Aboriginal communities; and
education is not seen as providing opportunities.
The system of out-station schools is seen as quite successful. Aboriginal education systems on out-stations in the Oenpelli region are said to have an attendance rate as high as 100% with children undertaking genuine year 8 and year 9 studies. The success of these types of schools is attributed to community involvement in the schools. Schools are run by the communities, with Aboriginal teachers appointed by the community. The teachers do not have formal qualifications but are assisted by a visiting teacher. The point is that it is the local community which is running the school and there is direct empowerment of Aboriginal people. [31]
Health services are provided to out-stations and small Aboriginal communities in the region by the Gagudju Association. The Association employs a doctor and health workers who visit the out-stations on a regular basis.
Jabiru has a health clinic but not a hospital. People needing hospital services are taken to Darwin. This, in the case of Aboriginal people, removes them from their community and support network. Hospitalisation can be quite a frightening experience for some, especially when the hospital staff do not speak their language and translators are not available. One witness commented that hospitals are often seen as a place where you go to die. Women go to hospital in Darwin to give birth and others are taken to hospital when death is imminent. Some assume that if they are going to hospital they are going there to die. It would be better if dying could be looked after in the community. The same witness was critical of the Department of Health and Community Services' reluctance to support preventative health care measures, preferring to deal with crisis cases. [32]
The level of access to health services in Jabiru and provided to out-stations and small communities by the Gagudju Association appears to have increased. However, the level of Aboriginal health has not improved and is still well below the level for the general population. There was no evidence to indicate how the level of Aboriginal health in the region compared with other Aboriginal communities.
Alcohol consumption is still a major concern for Aboriginal communities in the region and is seen by some as the root of all other problems. Alcohol consumption is said to be attributed to social pressures caused by mining, tourism, contact with European society, a sense of disempowerment, access to Social Security payments and distribution of quarterly royalty equivalent monies. The problems attributed to intoxication, chronic, excessive alcohol consumption and dependence were:
violence, fighting, vandalism and road accidents;
health problems such as hypertension, liver damage, alcohol-related brain damage;
poor attendance of children at school, and consequential educational problems;
poverty;
employment difficulties with, for example, working hours in Oenpelli being governed by club opening hours or people unable to work due to intoxication; and
destruction of traditional life.
One witness stated that alcohol was the only social problem: "The social problem here is the alcohol down at the club." . . ."You can get as many cartons as you want down there. That is the only social problem we have. The mining itself, well you would not say that it causes the social problem; it is the club." [33]
Alcohol consumption in the region is very high and poses a major threat to the health and well being of Aboriginal people in the Region. Estimated consumption at the Gunbalanya (Oenpelli) and Jabiru Sports and Social Clubs for Aboriginal male drinkers was more than three times the upper limit for responsible consumption recommended by the National Health and Medical Research Council. For female Aboriginal drinkers it was four times the recommended limit. [34] These consumption patterns are associated with the Jabiru and Gunbalanya Sports and Social Clubs and does not account for any private consumption. Alcohol is also available from the Jabiru Golf Club, five roadhouses and two hotels in the region.
Two sets of alcohol controls have evolved in the region since the Commonwealth Government adopted the recommendations of the Fox Report. Firstly, there are a set of formal licence conditions attached to licences issued under the authority of the Northern Territory Liquor Commission. These have been liberalised in recent years, apparently without consultation with local Aboriginal communities. Secondly, there are a series of informal verbal agreements between the Gagudju Association and individual licensees. These agreements are open to a number of problems: they can be broken at anytime; they are difficult to enforce; there is uncertainty about the application of anti-discrimination legislation; and they have failed to curb excessive drinking.
There are a range of preventative programs and services in the region designed to change drinking practices, but there is a lack of any regular screening or early intervention program. In addition, there is an absence of services aimed at reducing the risks associated with drinking. A former police facility at Oenpelli was being converted into a women's refuge, but there were no night patrols or sobering-up shelters.
In 1995 the Gunbang Action Committee [35] commissioned the Menzies School of Health Research to examine, and provide a strategy for combating, alcohol-related problems in the region. The report recommends a strategy based on a system of controls on availability, provision of preventative services and establishment of a women's resource centre. The report did not cover measures to overcome social and economic disadvantage as such issues as employment and training were being examined by other consultants. A final version of the report has been agreed by the Committee with the understanding that three of the recommendations are still being considered by the Oenpelli community. [36]
There are some concerns that any alcohol reduction strategy or controls which are implemented in the region will be seen as discriminatory.
With regard to the link between alcohol consumption and mining the Office of the Supervising Scientist has made the following observation:
The social impact of mining upon local Aboriginal communities is still a major issue today. . . The most significant deleterious effects stem from excessive alcohol consumption. . . It is however difficult to determine exactly how much of this problem can be attributed to uranium mining (or indeed the influence of the Kakadu National Park and other developments since the RUEI [Fox Report] was conducted) since the situation existed prior to the commencement of mining. It is undeniable that alcohol remains a problem in the region, which has particularly profound effects on Aboriginal communities, but the same situation exists in other Territory towns such as Alice Springs, Tennant Creek and Katherine, which indicates that it is not a problem peculiar to mining. [37]
The Gagudju Association provides a range of services and housing in 11 out-stations. These services include water, electricity, food, garbage removal and maintenance. Currently the Association is housing about 110 people and is charging $50 per week per adult to cover part of the costs associated with provision of water and electricity. Payment of rent was introduced as a result of the dispute over royalties with the NLC. It was seen as a way of being able to continue some of the services in the absence of royalty income.
There is a housing shortage at the out-stations and at Manaburduma (Jabiru town camp). Houses often have 15 people in them and one example is given of a three bedroom home that has 12 to 13 adults and 10 children living in it. [38]
The Gagudju advised that a lot of out-station housing needs upgrading. They had built six houses in the past three years. Many of the out-stations were having problems with water, particularly at Patonga and Mudginberri. Approximately $2.5 million to $3 million needs to be spent on out-stations. [39] The Djabulukgu Association is building two houses at Mudginberri and another nine are being built elsewhere.
The Gagudju Association was originally responsible for provision of services to Manaburduma. Manaburduma is now considered to be within the town boundaries and is thus the responsibility of the Jabiru Town Council. Conditions in Manaburduma are fairly poor. One witness told the Committee that the Town Council had plans to sub-divide the area, providing lighting, power and other standard amenities. "In future it will be developed into not just the backwash of Jabiru town, but it will become like another suburb, whether it becomes an integrated black-white type of suburb or just Aboriginal peoples, or whatever." [40]
A number of submissions claimed that mining has had a significant impact on Aboriginal communities affecting their culture and traditions. [41] Dillon, when discussing the impact of the Argyle diamond mine on Aboriginal communities, describes the link between mining and culture as follows:
Mining is perceived as leading to a destructive transformation of the landscape, which (as has often been noted) is the basis of Aboriginal cultural and religious life. By desecrating Aboriginal site, mining destroys Aboriginal individuals' relationship to land and consequently destroys Aboriginal identity and culture. [42]
This impact on culture and tradition could be extended to other developments in the area such as tourism, and contact with European society and values.
Establishment of Jabiru has given Aboriginal people access to services and amenities that they may not have otherwise had, but it has also brought with it increased contact with Europeans, possibly leading to, or exacerbating, the decline in Aboriginal culture.
It is difficult to distinguish between the impacts on Aboriginal communities in the region from uranium mining and tourism. Both have brought an increase in money to the region and have been followed by an entourage of government personnel and service providers and their families.
In 1977 the Fox Report recommended establishment of a national park as a buffer to protect Aboriginal communities. However, the Park itself has attracted an increasing number of visitors. ERA state in their submission that "Tourism numbers have increased from 45 800 in 1982 to 235 000 in 1995. The average visitor stays 4 days and three nights, which translates into 690 000 person nights each year compared with about 500 000 person nights for the permanent population of Jabiru. The tourism presence is greater than the permanent presence. The mine presence is only a portion (about two thirds) of the permanent presence." [43]
Others say that uranium mining opened the region up to the world. The Northern Territory Greens comment that it should not be forgotten that "Jabiru is a company town; that the principle (sic) access, the Arnhem highway, was built to ship uranium. NOT for tourist coaches; that Ranger pre-dates Kakadu. Tourism piggy-backs uranium mining in the ARR, the hundreds of thousands of people who flock to Kakadu can only come because uranium mining opened it up to the World." [44]
Tourism has provided opportunities for Aborigines in the region to invest royalty equivalent monies in activities which may provide them with future financial security. Further, it has provided limited opportunities to develop culturally acceptable forms of work. For example, Aborigines at Oenpelli have an arts and craft centre which can provide artefacts for purchase by tourists.
ERA notes that establishment of the Kakadu National Park has encouraged families to return to the region. "Since establishment, the number of Aboriginal people residing in the park has increased from 100 to more than 300 . . . A contributing fact has been access to royalty equivalent monies through the Gagudju Association." [45]
The Aboriginal Land Rights (Northern Territory) Act 1976 was a Commonwealth initiative which pre-dated self-government in the Northern Territory. This legislation implemented a substantial part of the second report of the Aboriginal Land Rights Commission of May 1974. While the Commonwealth retained property rights to minerals the main features of the original Act as it relates to Aborigines and mining and milling of minerals are:
property rights to minerals are retained by the Crown but title to land was vested in Land Trusts on behalf of traditional Aboriginal owners;
Land Councils were established to discover and express the wishes and protect the interests of traditional owners;
mining companies were required to negotiate with the relevant Land Council for consent and on the terms and conditions of exploration and mining;
Land Councils were to consult with Aborigines having an interest in the land;
disputes between Land Councils and developers were to be settled by an independent arbitrator;
consent of the relevant Land Council and Minister was needed before either exploration or mining was to be allowed on Aboriginal land;
the decision of the Land Council, and thus the Aboriginal people, not to consent to exploration and mining could be overridden by the Governor-Generalif such exploration or mining was considered to be in the "national interest"; and
royalties were to be paid to the Crown (the Northern Territory Government or in the case of uranium - the Commonwealth) and royalty equivalents were to be paid out of Consolidated Revenue into the Aboriginal Benefits Trust Account (ABTA). [46]
The ALRA has been amended several times since its proclamation on Australia Day 1977. Of particular interest to mining are some of the amendments made in 1987. These amendments removed the right of Aborigines to withdraw consent at the mining stage, imposed a limit of 12 months on time given to traditional owners to negotiate with companies, limited the amount of compensation payable at the time of exploration, and required disagreements about terms and conditions of exploration or subsequent mining to be referred to a Mining Commissioner for settlement by conciliation or arbitration.
In the Northern Territory royalties and other negotiated payments are made to Aborigines for mining activities on their land. These other negotiated payments include lease rental monies, compensation for disturbance and other up-front payments. Under current arrangements - except for uranium - any new developments would be subject to the standard 18 % profit royalty payable to the Northern Territory Government. Royalty equivalent monies are then paid from of Consolidated Revenue into the ABTA. Uranium royalties are paid at 1.5% ad valorem (gross value of production) to the Northern Territory Government plus 4.25% to the Commonwealth Government. Only the equivalent of the royalties paid to the Commonwealth is paid to the ABTA. [47], [48] This money is then allocated as follows:
40% of royalty equivalent monies is to be divided on a proportional basis, as determined by the Minister, to the Land Councils as general funds;
30% is to be paid to the Land Council in whose district the mine is located for payment to the community affected (for example, paid to the Northern Land Council, in the case of Ranger, for payment to the affected communities in the Alligator Rivers Region); and
the remaining 30% is to be used to the benefit of all Aborigines in the Northern Territory, cover administrative costs of the ABTA, and to assist Land Councils to cover their expenses if they were unable to meet them from the other payments.
Under section 35 of the ALRA, monies paid to Land Councils on behalf of affected Aboriginal communities are to be paid to Aboriginal Councils, either wholly or partially, in the area affected by the mining operation and to any Incorporated Aboriginal Associations, the members of which live in, or are the traditional owners of, the area affected by mining. The Land Councils determine the distribution of this money. [49] The number of councils or associations which may claim part of these monies is not limited, provided they are in the area affected by mining; or their members live in the affected area or are traditional owners of the affected area.
As indicated earlier, royalty equivalent monies from Ranger are paid through the Northern Land Council to the Gagudju Association. For a brief period during 1995 and 1996 these monies were paid to the Gundjehmi Aboriginal Corporation. The reasons for this interruption of payments are not known to the Gagudju Association have not been specified.
Royalty equivalent monies from Nabarlek were first paid to traditional owners and affected Aboriginal people, then to the Kunwinjku Association (1982 - 1988) and finally to the NTOA. The agreement between QML and the NLC was different to the arrangements for Ranger. The QML Agreement featured sizeable negotiated lease rental payments and up-front payments. This was seen as increasing the financial benefit to the traditional owners and the region, as this circumvented the ABTA system where part of the royalty equivalent monies is used for the benefit of Aborigines throughout the Northern Territory.
The Industry Commission, as part of its review of mining and minerals processing in Australia, recommended a number of changes to the situation in the Northern Territory. [50] The Commission's findings and recommendations are summarised below:
insistence that a consent to explore implies agreement to mining is an unnecessary complication and does not appear to have expedited negotiations;
the right to explore on Aboriginal land is not automatically tied to the right to mine, and the parties concerned should determine whether agreements are disjunctive or conjunctive; [51]
should traditional owners and the prospective miner be unable to reach agreement about the terms and conditions of exploration, then the area should be open to another company should the traditional owner so wish, thus providing traditional owners with an opportunity to deal with a company that meets their needs;
traditional owners should be able to specify when prospective miners can re-apply for permission to explore, rather than having a statutorily determined period. This would allow traditional owners to refuse indefinitely or to refuse access to part of their land and avoid the need to make a decision about every application to explore which impinges on their land;
where an Aboriginal association exists it should be able either to negotiate directly with mining companies or to appoint an agent;
where an exploration application is made over an area that is not under the responsibility of an association or other body expressly formed to represent traditional Aboriginal owners, the relevant Land Council should determine who the traditional owners are and accept instruction from them;
the share of royalty equivalent money paid to Land Councils should be paid to the traditional owners on whose land mines are established - seen as providing a greater incentive to agree to exploration and mining;
Land Councils should be funded from the Commonwealth Budget;
the Northern Territory Government should fund a proportion of the royalty equivalent payments which could be negotiated as part of the Commonwealth Grants Commission process; and
the Northern Territory and Commonwealth governments should investigate transferring mineral rights on Aboriginal land to the traditional owners. The Commission saw this as a possible solution to many of the problems being experienced as a result of poorly defined property rights. [52]
The Industry Commission also concluded, with regard to the situation in the States, that:
Aborigines generally have a special relationship with the land and strongly desire to control access to their traditional lands. Lack of such control in some States, combined with the absence of a suitable framework for miners and Aborigines to use in their negotiations, appears to be causing unnecessary and lengthy delays. . . [53]
The Commission also found that a common theme in submissions on Aboriginal property rights in the States was that:
Aborigines are generally not opposed to exploration and mining per se - but they are opposed to not being in control of what happens on and to their land. . . [54]
In March 1992 the Commonwealth Government convened a meeting of interested parties to discuss possible amendments to the ALRA, including those recommended by the Industry Commission. Consensus could not be reached and further review of the ALRA was postponed until the Commonwealth had responded to matters arising from the Mabo decision. Nothing further happened until the Committee on Darwin examined the matter.
The Committee on Darwin was formed in September 1993 in response to an initiative in the 1993-94 Commonwealth Budget. The Committee was required to examine ways in which the Commonwealth and Northern Territory governments might foster, collaboratively, the development of Darwin and its immediate region as Australia's northern link to East Asia. Committee membership was: the Hon. Neville Wran AC QC (Chairman), Lady Kearney, Dr Stephen FitzGerald AO, and Mr Geoff Stewart. The Report of the Committee on Darwin [55] was presented to the Northern Territory Government in June 1995. It recommended that: ". . . the review of the operation of the Aboriginal Land Rights (Northern Territory) Act 1976, stalled since March 1992, be reopened." [56]
In particular, the Committee recommended that:
the right to explore on Aboriginal land should not be automatically tied to the right to mine;
the parties concerned should be able to determine whether agreements are conjunctive or disjunctive, but agreements should be conjunctive unless the parties agree to a disjunctive agreement;
if the parties concerned agree to a disjunctive agreement, a limit should be placed on the time available to reach agreement on the terms and conditions for mining, after which the matter is referred to arbitration; the same time limit should apply to arbitration; and any discretionary power of the Minister to extend this negotiating period should be limited to a one-off extension;
if traditional owners or the prospective miner declares that agreement cannot be reached on the terms and conditions for exploration, then the area should be open to application by other parties if this is the wish of the traditional owners;
traditional owners should be able to specify when holders of exploration licence applications can re-apply, rather than the statutorily determined period of five years. This will allow traditional owners to refuse indefinitely or to refuse access to part of their land and avoid the need to make a decision about every application to explore which impinges on their land;
the discretionary power of the Minister for Aboriginal Affairs to extend the negotiating period for application for exploration licences should be limited to a one-off extension, not exceeding 12 months;
Section 64(4) of the ALRA should be amended to establish a commercial development program under the ABTA to manage the application of funds paid under that section. Alternatively the funds should be paid to the Commercial Development Corporation (administered by Aboriginal and Torres Strait Islander Commission) and designated for use in the Northern Territory; and
restrictions placed on ABTA investments should be changed to allow for greater flexibility. [57]
Many of these recommendations are similar to those made by the Industry Commission. A response to this report is still being prepared by the Government.
The Gagudju Association has also proposed a number of amendments to the ALRA.
Section 35 of the ALRA determines how royalty equivalent monies will be distributed. Under that section monies are distributed to Aboriginal councils in the area affected by mining and to any incorporated Aboriginal associations, the members of which live in or are the traditional owners of the area affected by mining. This distribution is at the discretion of the Land Councils.
The Gagudju has suggested that there should be named recipients of royalty equivalent monies and an authoritative statement or clear definition of the term "area affected". These amendments would then provide certainty in the minds of Aboriginal people beneficially interested in these monies. It would also help to reassure mining companies of the security of their developments.
The Gagudju has also proposed that consistent administrative practices are needed for the distribution of royalty equivalent monies. Workable appeal mechanisms are necessary to resolve regional disagreements about discretionary determinations by statutory bodies such as the NLC.
Members of the Gagudju Association who appeared before the Committee also suggested that there ought to be only one association representing the Aboriginal communities and the traditional owners in an "area affected by mining". At the moment there are three royalty associations with overlapping memberships. [58], [59]
A number of amendments similar to, and supporting, those discussed above are also recommended by Altman and Smith in a discussion paper published by the Australian National University's Centre for Aboriginal Economic Policy Research. These are based on their NLC-sponsored examination of the performance of the royalty associations that received money from the mining at Nabarlek. They recommend that immediate consideration should be given to amending the Act so that the beneficiaries of mining monies are clearly specified. There was also a need for the NLC to seek a clearer set of statutory responsibilities under section 35 of the ALRA and to establish policy guidelines to formalise a more constructive and consistent monitoring role. Further, it was important for the longer term viability of royalty associations that investment levels be secured by a statutory or constitutional stipulation that a minimum investment ratio be maintained. [60]
The Gagudju Association has provided many benefits and services to members of its Association and Aborigines within the area. It describes these as follows:
Housing: Construction of housing, maintenance of housing, provision of generators for the supply of power and water, provision of carpentry, plumbing, mechanical and electrical services in the area;
Health and Education: Provision of cleaning services, garbage collection; provision of food including livestock, medical services including the employment of a general practitioner and health worker, the construction and running of a school and the employment of teaching staff, as well as related services such as the provision of a school bus and literature;
Transport: The construction and maintenance of roads and access to out-stations, without which communities would be cut off; the provision of community vehicles and vehicles for members of the Association and the provision of helicopters for use during the wet season when out-stations are inaccessible by road;
Employment: The provision of employment opportunities for all members of the Association and training of such members for the development of their skills in such areas as the hospitality industry and trades;
Income: Each year the Gagudju distributes approximately $2,000 per member; . . trust funds have been established for children so that such children become entitled to approximately $23 000 upon attaining majority. [61]
The Gagudju Association has stated in their submission that:
The Association remains dependent upon the royalty equivalent income from the Ranger Uranium Mine for the provision of the above services. Without the assurance of payment of royalty equivalent income Gagudju may be forced to withdraw from the provision of those services. [62]
In addition, the Gagudju has also invested in a number of businesses in the Region. For example, the Gagudju has bought and runs a Mobil service station and a screen printing business for the benefit of its members.
Through a related entity, it runs the well known Gagudju Crocodile Hotel Resort in Jabiru as well as other tourist facilities such as Cooinda Lodge and Yellow Waters river cruises. These operations are indirectly dependent on royalty equivalent monies.
In May 1995 the NLC resolved that all the Ranger royalty equivalent monies received would be paid to the Gundjehmi Aboriginal Corporation (to be reviewed in June 1996). At the time of this decision, the NLC noted that the Corporation proposed to use the money for the benefit of its members and others affected by the Ranger Uranium Mine. [63] How the Corporation intends to provide benefits to its members is not clear at this time.
Since the Committee's inspections and hearings in the Northern Territory, the Gagudju Association has be reinstated as the only recipient of Ranger royalty equivalent payments. The Gagudju Association has advised that "The basis of their restoration . . . was not explained at the time of the delivery of the payment. Accordingly there is still some uncertainty as to whether the royalty payments are now secure and the dependency which the Association may place on them." [64]
Total royalties in the order of $17 million were paid under the QML agreement. [65] Initially, Nabarlek monies were distributed as cash payments to individuals and groups or as consumer goods, mainly vehicles. During the period of the Kunwinjku Association monies were mainly distributed as cash, and vehicles were by far the largest single item of expenditure [66]. The Association also made a number of investments, such as an airline and an abattoir, and a number of large loans. The Association made a loss on both the investments and loans. Cash distribution and the purchase of vehicles also made up most of the NTOA's expenditure. Altman and Smith, commissioned by the NLC to examine concerns about the economic impacts on Aboriginal people of the closure of Nabarlek, state that:
Overall, the Association did not expend any of its income on establishing out-stations, enterprises, educational scholarships, providing community or out-station amenities and essential services, purchasing land, or any of the other activities in its constitution . . . [The NTOA's expenditure objectives]. . . have remained short-term and orientated to consumer goods and cash distribution. . . . expenditure has also focussed primarily on the immediate consumption needs and priorities of individuals as opposed to those of the wider social groups and organisations within Gunbalanya or beyond. [67]
It is clear that access to mining monies from Nabarlek has had little long-term impact on the standard of living of Aborigines in the region. Altman and Smith concluded that: ". . . there are no indications that long-term economic status will be adversely affected, as there are few indicators of a sustained improvement in life style owing to access to mining moneys. In other words, the generally low economic status of most Aboriginal members of the Association remains unchanged . . . The cessation of mining will most likely see a return to the previous welfare regime." [68]
There are several other issues related to payment of royalty equivalent monies and their impacts. These are considered in the following paragraphs.
The payment of royalty equivalent monies to Aboriginal peoples for mining on their land was seen by some as providing a way of improving the living conditions of Aborigines immediately and providing an economic base for a secure future and for self-determination. This view, however, does not take account of a number of competing issues. These issues include the constant pressure between immediate spending and investment for the future, the consequences of access to royalties on the availability of government assistance, dependence on royalties, and the use of royalty equivalent monies to provide services and amenities that would otherwise be provided by government.
There is constant pressure on royalty associations to improve the current standard of living, to increase cash dispersal, and to invest to provide an income base for the future when the mines have ceased to operate. The predecessors of the NTOA, and to some extent the NTOA, succumbed, for a variety of reasons, to the pressure to provide cash and consumer goods. [69] This has left an organisation with virtually no viable assets, no basis for financial development or security in the future. Also, it has not improved the living standards of the Aboriginal community at Oenpelli.
The Gagudju Association has been struggling with this key issue. In the period 1979 to 1985 its expenditure, a total of $13 million, was divided as follows: 13% (approximately $1.7 million) on cash payments to Association members, 38% (approximately $4.9 million) on providing services to communities in which members reside and 49% (approximately $6.4 million) on investment in economic assets. [70] During this period payments to Association members were $1000, but this has since risen to $2000 per year.
As indicated above, the Association has invested in a number of assets. While its investment record has not been perfect it has achieved considerable success in grasping opportunities to provide for the future. Mick Alderson of the Gagudju Association says: "You see, the mining not going to last long and, by putting up assets like the motels we have here, they are for the future. That will not be for me but for the kids." [71]
O'Faircheallaigh, in his examination of the economic impact of Ranger on Aboriginal Communities, found that not all Gagudju Association members agreed with the investment strategy of the Association. He comments that:
While its investment record is certainly not perfect, the Gagudju Association has achieved considerable success in grasping that opportunity. Its capacity to do so has depended on restricting individual royalty distributions and spending on services. Not all agree with the Management Committee's policy in this regard: in some cases their disagreement simply reflects a desire to have more money available for personal purchases of consumer goods, in others a conviction that the current social and economic status of Association members is so low as to demand immediate use of royalty income to raise it. [72]
In this context the Gagudju Association is criticised for not being accountable to the Aboriginal people and measuring their performance in terms of European economic measures rather than in terms of meeting obligations to family and community members. Disagreement on how royalty equivalent monies are spent may have led to the recent formation of the Gundjehmi Aboriginal Corporation and contributed to the current disputations between the Gagudju Association and the NLC.
An issue often linked to payment of royalty equivalent monies is independence and Aboriginal self-determination. It has been suggested that the payment of royalties for mining on Aboriginal land provides Aboriginal communities with an independent economic base for self-determination. O'Faircheallaigh in his examination of the economic impact of Ranger states:
. . . royalty payments have created an opportunity for effective exercise of self-determination. It seems clear, therefore, that mining can fulfil the expectations of Aboriginal groups or communities whose land is used in major mining projects, but that its ability to do so is crucially dependent on payment of substantial royalty equivalents. [73]
Mick Aldersen of the Gagudju Association sees development as allowing for Aboriginal self -determination. In response to questions in the Radio National program, Background Briefing, on mining Koongarra and why Aborigines should need to mine their land to provide basic services, he said:
Self-determination: its our country: we're living in it and we want land to have and to use, whether it's mining or tourism, mainly tourism, and that's the way we become independent. [74]
Others argue that the royalty regime replaces dependence on government with dependence on mining and is no real basis for self-determination.
The Australian Conservation Foundation state that:
The environment movement recognises the rights of Aboriginal people to self-determination and the ensuing need for title to land and access to resources. However, the belief often perpetrated by governments and mining companies, that Aboriginal communities will realise their aspirations through the provision of mining royalties is a misconception. [75]
Another issue raised in relation to the availability of royalties is the impact on government grants. There is a perception that government grants and funding have decreased because of the availability of royalties. The Australian Conservation Foundation notes in its submission that: "There is Aboriginal concern that Government is reducing grants because mining money is available." [76] There is also said to be a glaring lack of funding guidelines which provide certainty for the beneficiaries of mining royalty equivalents as to the impact of mining royalties on their ability to obtain government funding for community projects [77].
There is a concern that royalty equivalent monies is used to provide for services that would otherwise be provided by government. The NLC states that "Aboriginal people are forced to consider the mining of their land in order to meet the citizenship rights which are available to other non-Aboriginal Australians." [78] While some believe that royalty equivalent monies allow Aboriginal people access to health, housing and other services, others argue that these are basic rights available to other Australians and they do not have to give up their land to get them. Fred Chaney, as a former Minister for Aboriginal Affairs and now a member of the Native Title Tribunal, stated that:
The citizenship and human rights of Australians are partly a matter of legal entitlement and partly a matter of fact and expectation born of general and, particularly, recent general experience . . . access to medical services, clean water, clean streets, sewerage, rubbish collection and reliable electricity are virtually universal for all Australians except for Aborigines in remote areas. It is hard to argue that for many non urban Aborigines there is general equality of citizenship in these service areas, which happen to be vital to health and welfare. [79]
It is, of course, the case that other Australians in remote areas likewise do not have many services available, or must make their own arrangements.
In 1986 O'Faircheallaigh noted that both Commonwealth and Northern Territory governments had provided general programs aimed at improving health , housing and education services for NT Aborigines and have also provided some support for out-station development. He states that it is important to note that the NT Government is now paying for services and programs that were originally set up by the Gagudju, freeing resources for other projects. The Gagudju in return for their initial commitment to projects have been able to influence the type of service established and how it is provided. Their capacity to resume funding also provides them with continuing influence. [80] It is clear, however, that this is no longer the case, as schools opened by the Gagudju and later funded by the NT Government are no longer operating. For example the schools that was operated at Cannon Hill and Yellow Waters have closed due to falling numbers of students. [81]
The issue of how Aborigines should be compensated or paid for mining on their land is also discussed. It has been proposed from time to time that there are more concrete and permanent ways of compensating communities for mining and disturbance that are not a payment of monies. Other suggested forms of compensation include training programs and suitable employment opportunities, health centres, educational facilities, and housing.
Dynamic alternatives which are capable of adaptation to the changing circumstances should be introduced as part of mining agreements. An agreement that was negotiated in 1984 between the Gagudju and Denison Mining Ltd (previous partners in Koongarra) included $256 million in royalties and a 25% equity in the project, as well as arrangements to employ Aborigines and provide job training and secondary and tertiary scholarships. [82]
The recent Mt Todd agreement between the Northern Territory Government, Zapopan NL and the Jawoyn is given by O'Faircheallaigh, in his discussion of recent mineral developments negotiated by Aboriginal communities, [83] as an example of the types of compensation that can be achieved and a negotiating approach that other Aboriginal communities could follow. The agreement provides, for example, for Aboriginal employment and training, provision of five scholarships, cross-cultural training and education programs, provision of capital works to an out-station and Eva Valley Station by the Northern Territory Government, agreement by the Jawoyn to extinguish native title to land involved and support for Zapopan's exploration and mining activities on the land concerned, full compensation for extinguishment of native title, support by the Northern Territory for the listing of certain areas of land under the ALRA, and increased annual rent for the Nitmiluk National Park (Katherine Gorge National Park). [84]
Altman and Smith, in their examination of the economic impact of Nabarlek, make a number recommendations which they believe if implemented could improve the effectiveness of royalty associations. They state that it was imperative that culturally appropriate corporate structures with suitable constitutions were set up in consultation with proposed members to ensure Aboriginal control and productive use of mining monies paid for the one-off extraction of non-renewable resources. Association structures should also reflect a realistic assessment of the financial and administrative skills of association members, and training in administration and management should form part of mining agreements.
Implementation of measures of this character will enable association members to assert direct control and decision-making. Finally, the loose federation of royalty associations that used to meet within the Northern Territory could be reactivated. Such a forum could provide valuable advice to new associations, assess potential financial and management options, and coordinate mutually beneficial activities. [85]
At the moment there are two royalty associations that are receiving or have received royalty equivalent payments from Ranger - Gundjehmi Aboriginal Corporation and Gagudju Association. In the same area there is also the Djabulukgu Association which will receive royalty equivalent payments if mining at Jabiluka is approved. At a Committee hearing, members of the Gagudju Association questioned the wisdom of this arrangement. They believe that there should be one association in the area as the mines affect the same area, especially as many of the members of the Gagudju belong to the other associations. [86] Among the benefits which establishment of only one association to represent the Aboriginal community could include savings in administration and management costs; time and costs associated with, and possible misunderstandings as a result of, negotiation and communication with a number of representative groups; and development of management, financial and administrative experience.
A related issue is distribution of royalty equivalent monies where there is more than one association representing affected communities. This has arisen in the context of the recent dispute between the Gagudju, some traditional owners and the NLC and the recent establishment of the Gundjehmi Aboriginal Corporation.
The Gagudju was established in 1980 for the purpose of receiving royalty equivalent payments from Ranger. Payments continued for 15 years until the establishment of Gundjehmi Aboriginal Corporation in 1995. All royalty equivalent monies were then paid to the Gundjehmi and the Gagudju were effectively divested of any royalty equivalent income. The Gagudju canvassed the possibility of an apportionment of these monies between the two bodies but were told that it was not known how such an apportionment could be made. As mentioned earlier the Gagudju are again receiving all royalty equivalent monies from Ranger. The Gundjehmi Aboriginal Corporation does not now have any access to royalty equivalent income.
The Gagudju argue that if there is to be more than one royalty association entitled to royalty equivalent monies from a particular mine, then the monies should be distributed on a pro rata basis. They state that they were established by the NLC to receive royalty equivalent monies and were the only body to receive such money until 1995. Also the membership of the Gundjehmi Aboriginal Corporation is a subset of the Gagudju Association. [87]
The ALRA is silent on such matters. Royalty associations can be formed and royalty equivalent monies distributed as determined by land councils (see section 35 of the ALRA - Attachment A). There is no certainty in the present arrangements, and either royalty association, or both, could be left without access to royalty equivalent monies
Finally, it has also been suggested that royalty equivalent monies should be indexed and attempts should be made to ensure predictable amounts of income throughout the life of the mining and milling activities. [88] This would help the performance of royalty associations, allowing development of better planning on more predictable income, and would ensure that the income available from royalty equivalent monies kept pace with inflation. Related to this is the question of increased royalty levels.
A number of submissions have commented that the level of royalties paid to Aboriginal communities is too low and should be raised to the levels paid to American Indians (10%?) and indigenous peoples in other parts of the world. In particular, Friends of the Earth Sydney recommend that: "Rates of royalty should be roughly comparable with the best rates available to native peoples in the US and Canada." [89] They also state that the NLC ". . . argue that under the US formulae, 10-15% of ERA's after-tax profits would go to the NLC not, as at present, 4.25%." [90] (Uranium royalties are paid at 5.5% ad valorem, but only 4.25% is paid to the ABTA, not the NLC). It should be noted that the NLC do not make any comment in their submission on the percentage of royalties paid.
The Gagudju Association, as a result of their dispute with the NLC, has also questioned the level of royalties that they receive. They believe that the distribution of only 30% of royalties to royalty associations is not good enough. [91] No explanation is given for this belief but it may be linked to the state of the relationship between the Gagudju and the NLC at the time that the Gagudju Association appeared before the Committee.
As discussed in the section on the royalty system in the Northern Territory, Aborigines have limited controls over mining on their land. Control is primarily exercised through two mechanisms - their consent to exploration (right to veto) and conditions in the exploration and mining contract. Even this level of control can be negated by "national interest".
Under section 41 of the ALRA the consent of the Land Council to the grant of an exploration licence must be sought. Sub-section 41(1) states that:
Where the Northern Territory Mining Minister has given consent, whether before or after the commencement of this section, to a person's entering into negotiations with a Land Council for the consent of the Land Council to the grant to the person of an exploration licence in respect of Aboriginal land. . . the person shall submit to that Land Council an application, in writing, for the consent to the grant of that licence.
Before consenting or refusing the application the Land Council must consult to the extent practicable with traditional owners and Aboriginal communities. Sub-sections 42(2) and (3) state:
(2) The Land Council shall not consent to the grant of the licence unless it has, before the end of the negotiating period, to the extent practicable:
(a) consulted the traditional Aboriginal owners (if any) of the land to which the application relates concerning:
(i) the exploration proposals; and
(ii) the terms and conditions to which the grant of the licence may be subject: and
(b) consulted any Aboriginal community or group that may be affected by the grant of the licence to ensure that the community or group has had an adequate opportunity to express to the Land Council its views concerning the terms and conditions.
(3) The Land Council shall not refuse to the grant of the licence unless it has, before the end of the negotiating period, to the extent practicable, consulted the traditional Aboriginal owners (if any) of the land to which the application relates concerning the matters referred to in paragraph (2) (a).
In effect, this is an Aboriginal right to veto exploration and consequently mining. Once Aborigines, through the Land Council, have agreed to exploration on their land, they are not then able veto to mining. Sub-section 45 (a) of the ALRA states:
A mining interest shall not be granted to an intending miner in respect of Aboriginal land unless:
(a) the relevant Land Council and the intending miner have entered into an agreement under section 46 as to the terms and conditions to which the grant of the mining interest will be subject. . .
Unlike section 42, section 46 only requires the intending miner, who holds or held an exploration licence, to submit a comprehensive proposal to the Land Council and agree to terms and conditions to which the grant of the mining interest will be subject. There is no requirement to seek agreement to mining. Agreement to the terms and conditions for mining is subject to consultation with the traditional Aboriginal owners and other affected Aboriginal communities or groups. Failure of the Land Council and the intending miner to reach agreement is subject to arbitration.
The introduction in 1987 of the once-only consent at the exploration stage was said to:
. . . ensure that Aboriginal traditional owners are able to control exploration and mining activity on their land. As well, it will allow those Aboriginals wishing to negotiate agreements with companies for grant of exploration and mining interests to do so with greater certainty of the process and time limits within which those negotiations take place. [92]
This has not proved to be so. Aborigines now have to consider whether they wish to allow mining on their land at the same time as considering an application for exploration. They also no longer have the opportunity to see the company's performance during the exploration stage. This system has drawn out the process rather than decreasing the time taken for negotiation. It is further complicated by the issue of negotiating parallel or sequential exploration and mining contracts (that is, conjunctive or disjunctive contracts). As discussed above, the Industry Commission and the Committee on Darwin have recommended separating consent to exploration and consent to mining. In addition, the Industry Commission recommended that Aborigines be given de jure rights to any minerals found on their land. It was thought that clarification of property rights would overcome many of the current problems with the ALRA and would make many of their other recommendations redundant. [93]
If, as the Industry Commission has indicated, the problem with the ALRA can be linked to the lack of clear property rights, then the situation under the Native Title Act 1993 is even less clear. Under Native Title, the consent of Aborigines to exploration or mining is not required. The Native Title Act only confers a right to negotiate in relation to mining or other permissible future acts. Negotiations under the Native Title Act are also subject to time limits - four months for exploration and six months for mining - and then arbitration.
The Native Title Act has rectified one of the issues identified by the Industry Commission. Rents and compensations are now paid directly to the native title holders, allowing native title holders to benefit directly from resource development rather than the monies being channelled through a system similar to that operating under the ALRA. Jon Altman in his discussion of the Native Title Act observed that direct access to mining monies was seen as an encouragement to Aboriginals to be pro-development. It should, however, be noted that there are no statutory royalty equivalent payments available under Native Title. [94]
In contrast to the Industry Commission's reasons for separating Aboriginal consent to exploration from consent to mining, a number of submissions to the Senate Select Committee on Uranium Mining and Milling call for Aborigines to be given the "right to veto" for social justice reasons.
The Friends of the Earth Sydney recommend that "Aboriginal people and their Land Councils should have an absolute right of veto over proposed mining operations on their land. . . In the event of a clash between mining and Aboriginal interests in the respect of crown land claimed as traditional land by Aboriginals, the Aboriginal interests should clearly and unambiguously prevail." [95]
The Australian Conservation Foundation advocates that "traditional Aboriginal owners be afforded the right to veto mining on the grounds of adverse social or environmental impact on their land or community." [96]
While Aborigines in the Northern Territory must consent to exploration, any refusal to consent can be overturned in the "national interest". Section 40 of the ALRA states that:
An exploration licence shall not be granted to a person in respect of Aboriginal land (including Aboriginal land in a conservation zone) unless . . . the Governor-General has, by Proclamation, declared that the national interest requires that the licence be granted . . .
To date, this section of the ALRA has not been invoked.
When agreement to exploration and mining has been reached Aborigines are able, in the normal course of events, to control mining on their land through the negotiated contract. There are two examples of contractual arrangements in the Northern Territory.
The NLC regard contractual arrangements with QML as a model for the conduct of future contracts and mining (see footnote no. ).
QML operated a number of measures aimed at minimising the social impact of the mine. These included:
a "no release" water management system;
a permit system, restricted to the project area and access roads, for entry into Aboriginal land;
restriction on importation and consumption of alcohol;
fly-in/fly-out concept for the workforce, with families to be housed in Darwin;
a ban on private vehicles;
leisure days to be taken outside Aboriginal land; and
education programs for the workforce. [97]
Galarrwuy Yunupingu, AM, Chairman of the NLC, made the following comments about QML:
The land council was very happy right from the start to the finish with all its operations, particularly the environmental areas. We were able to monitor everything they did and Nabarlek was able to communicate with the land council in a way that we responded happily and worked in really close in that area right up to the time when the mine had to be closed down because it was the end of the mining period. Of course, with everything that happened there in relation to the environmental aspects, the mining areas, the rehabilitation work and so on, they were asked particularly by the traditional owners that that must be carried out at the end of the life of that mining which they did accordingly. There were no complaints registered, or any that I know of, to the land council by the TOs, the traditional owners. They are happy, and they were happy, with everything Nabarlek did. We need to carry a model of a Nabarlek type operation to other mining . . . we would like to copy the Nabarlek operation for any size of operation because Nabarlek was something the Aboriginal people were comfortable with in seeing uranium mining taking place and then closing in a way they were happy with right from the start to the finish. [98]
The NLC also state in their submission that: "The fact that the environmental management of the mine has been to such a high standard is due in part to the corporate policy of QML, but largely due to the fact that high standards of environmental management and adherence to environmental requirements were contractually enforced by the NLC." [99]
It should be noted that others have identified the QML contractual arrangements as one of the reasons for the poor performance of Nabarlek related royalty associations. Altman and Smith found that the complexities of the QML agreement impeded the royalty associations' financial performance and contributed to the current situation in Oenpelli and the region. [100] The QLM Agreement featured sizeable negotiated and up-front rental payments, kn