OPINION: By Warren Mundine
Self-determination. Making your own decisions and controlling your own destiny. It is something for which Indigenous people long campaigned.
When I was born, Indigenous people lived under segregation. Laws like NSW’s Aborigines Protection Act controlled all aspects of our lives. Back then welfare boards and protectors told us what we could and could not do. These systems were dismantled after the 1967 referendum. And we turned our sights to other sources of self-determination, like land rights. Eddie Mabo campaigned for recognition of his people’s fundamental and original right to the land and seas on which they’d lived and subsisted since time immemorial. In 1992 he succeeded, the High Court recognising native title.
It changed everything. Arguably the most significant turning point for Indigenous self-determination in Australia’s history.
Now, 25 years on, native title fosters Indigenous economic participation by allowing traditional owners to use land as an economic asset. Far from the days of the scare campaign featuring a black hand snatching away Australian land, businesses now work productively with traditional owners to reach Indigenous Land Use Agreements that provide benefits and opportunities in return for access to land and waters.
Native title recognition requires traditional owners to prove a continuous connection with the land. So a claimant group is chosen comprising people who will best meet the legal hurdles. They spearhead the claim and represent the traditional owner group as a whole.
All large groups need a structure to make decisions on their behalf. Governments represent nations and states. Local councils represent local areas. Companies and boards represent shareholders. Even local sporting clubs have member boards. Representative bodies make decisions on behalf of the group. And there are rules to determine how. Citizens vote to elect their representatives. Shareholders and club members elect the board and vote on some decisions. Elected boards or governments are empowered to make decisions on behalf of those they represent. The principle of “majority rules” is essential to this process.
But not for native title claimants. Technicalities in the Native Title Act required that every single claimant group member sign an ILUA. The majority wishes could be stymied if one person disagreed, if someone was coerced to oppose the decision, even if someone died.
Activists had a way to attack mining and infrastructure projects. By getting even one claimant on side they could obstruct the wishes of the majority and campaign against the project under the pretence of Indigenous objections. Native title peak bodies tried to get the law fixed — to no avail. But a 2010 Federal Court decision provided reprieve, saying unanimous signatures weren’t required if the ILUA was properly authorised by the claimant group. This case empowered traditional owners to enter into ILUAs and to make decisions affecting their interests.
This was reversed by the recent McGlade decision, disempowering Indigenous people again. Existing ILUAs are in jeopardy, including the $1.3 billion agreement between the West Australian government and the Noongar people. The McGlade decision means that any agreement without the signed approval of every designated applicant in the clan’s native title claim is invalid, despite majority decisions being accepted for many years.
Federal Attorney-General George Brandis has pledged to rectify this situation.
Indigenous people talk about a treaty. Well, there’s little difference in substance between a treaty and an ILUA entered into with a government. Without fanfare, scare campaigns or referendums, traditional owner groups have been effectively negotiating treaties with state governments. McGlade jeopardises this.
Make no mistake. It’s the greatest threat to Indigenous self-determination in a very long time.
The Adani project has attracted anti-coal activists who are running roughshod over Indigenous self-determination. Adani negotiated ILUAs with half a dozen traditional owner groups, including with the Wangan and Jagalingou people native title claim group, which voted 294 to one in favour of the ILUA permitting construction of the Carmichael rail project. A resounding approval.
But one individual, holding himself out as representing the group, challenged the ILUA, demanding unanimous approval. It’s been reported the challenge has been financially supported by an activist group partly funded out of the US.
Recently on ABC’s The Drum I condemned this disrespect for traditional owner decisions. I’d say the same about a decision 294 to one against the ILUA. This isn’t about being pro or anti-coal. It’s about traditional owners making decisions about their own country without meddling by special interests.
I received a barrage of abuse from anti-coal activists on social media, including being called an “Uncle Tom” for being “excessively obedient to whites”. Adani is an Indian company. The traditional owner groups are Aboriginal. The only white people in this scenario are the activists.
These activists are no better than the protectors who told us what to do during the days of segregation. The real colonial oppressors are the activists, supported by European and American funders, who have all the privileges of the modern world but would deny Indigenous people using their land as an economic asset, and who expect hundreds of millions of Indians to live without electricity, cooking on dung stoves and dying of respiratory illnesses.
Let Indigenous people exercise the self-determination so many people claim they support.
Nyunggai Warren Mundine chairs the Yaabubiin Institute for Disruptive Thinking. This article first appeared in The Australian.