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A series of legal battles to prevent mining exploration on Olkola land in Cape York has highlighted the limitations of native title and Aboriginal land rights without the right of veto. By James Norman.

Native title and mining leases

Mike Ross, chairman of the Olkola Aboriginal Corporation.
Credit: Supplied

Mike Ross says it is a fight he is willing to take down to the wire. As chairman of the Olkola Aboriginal Corporation in Cape York and the biggest non-government landholder in the region, he holds a vision for his people’s land that doesn’t involve mining.

But under Australia’s current Aboriginal land acts, Indigenous people have no legal right to say no to mining exploration on freehold land, meaning the only course open to them is to challenge each mining exploration licence through arduous court battles.

In a landmark case in the National Native Title Tribunal in March, the Olkola Aboriginal Corporation successfully objected to mining exploration permits being issued under “expedited procedure” in Queensland.

The Olkola challenged the mining permits given to mining companies Lithium Australia and Gamboola Resources, which lodged four separate mining exploration permits over the Olkola people’s land.

The term “expedited procedure” refers to a fast-tracking process for granting mining tenements that are seen to have minimal impact on native title – but the Olkola was able to demonstrate that two of those permits were lodged directly over the core habitat of the endangered golden-shouldered parrot, or Alwal, which is an Olkola totem animal.

It was a significant victory and the first time an Indigenous group has been able to stop a mining company from exploring on their land under an expedited procedure in Queensland.

But now the Olkola people have to fend off another exploration program from the mining company Spitfire Materials, which wishes to start new exploration on land the Olkola argue is also a golden-shouldered parrot breeding ground.

Ross tells The Saturday Paper that the law needs to urgently change to give Indigenous people veto rights over mining on their land. “These cases are a drain on our resources. We could use these resources elsewhere instead of fighting an issue when you know in your mind and heart that you don’t want it.”

Ross says his people should have the right to say no to mining on their country: “People need to listen to us. We are not able to say yes under our lore. And our lore has been here a lot longer.”

In 2014, after years of negotiations with the Queensland government, the Olkola people became the largest non-government landholder in Cape York, with the handover of more than 630,000 hectares of land under Queensland’s land tenure reform program.

That followed a history of thousands of years in which the Olkola people of northern Queensland have been the custodians of more than one million hectares of land between what is now the town of Laura to the east and Kowanyama and Pormpuraaw to the west.

Under the Cape York land tenure resolution program, which started in 1996, more than three million hectares of land was returned to Indigenous people who in many cases had had it forcibly taken away under the former Bjelke-Petersen state government.

Since the land handover in 2014, the Olkola people now manage 869,822 hectares of land, including in the Olkola and Alwal National Parks, which they co-manage with Queensland Parks and Wildlife Services.

“Mining doesn’t fit in our 10-year plan,” Ross says. “We have been doing ecotourism here, we have a carbon trading program, and we have a golden-shouldered parrot committee, and we have Indigenous park rangers. So we’ve got all these programs happening on our country and we worry what sort of impact mining will have on that. I mean, if you organise a tour, they don’t want to see country being mined.

“As we develop we will need to build the roads up, create better infrastructure. The country is a natural habitat – we’ve got there birdlife, lagoons, endangered species like the golden-shouldered parrot nests. It’s natural and I’d like to keep it that way. So you can probably see my fight.”

In a written affidavit viewed by The Saturday Paper, Ross told the Land Court that an area called Crosbie mound springs is sacred and not an appropriate place for mining, challenging Gamboola Resources’ desire to drill 200 metres into the ground. The Olkola believe the rock mounds and pebbles in this place were created by the kangaroo rat, the Alkura.

“The story about the Alkura is that he would grow wild bamboo for spear handles there, but the other animals were laughing at him so he pulled them all out and took them to the Lakefield area. But he left the spring mounds behind. The mounds grow to a certain height, and then a new one will be born. The mounds are active every day and in that way the kangaroo rat is being reborn constantly. The mound springs are a very strong story place for us.”

Since Aboriginal land rights were first legislated in Australia in 1976, following the Whitlam government’s Land Rights Commission, the issue of veto rights over mining has always been vexed.

Justice Edward Woodward, who headed the commission, said at the time: “I believe that to deny Aborigines the right to prevent mining on their land is to deny the reality of their land rights.”

However, when the Aboriginal Land Rights Act was enacted later that year, the right to say no to mining exploration was only applied in the Northern Territory, where it can still be overwritten when the “national interest” demands it.

When the Hawke Labor government revisited this in the 1980s, pressure from the mining industry meant that states were left to legislate for Aboriginal land rights. In Queensland, under the Aboriginal Land Act, there is no legislated need for traditional owner consent.

Under the Native Title Act, introduced in 1993, traditional owners’ rights to decide if mining happens on their land were again excluded.

This absence of rights for Indigenous landholders to veto mining also flies in the face of the Declaration on the Rights of Indigenous Peoples, which Australia signed up to in 2009 and which states in article 32 the need for “their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilisation or exploitation of mineral, water or other resources”.

According to George Newhouse, adjunct professor of law at Macquarie University and principal solicitor of the Natural Justice Project, the key problem is that Australian law grants ownership of all minerals and resources under the ground to the Crown.

“There are some environmental protections, as the Olkola people have discovered, but the bottom line is that if the mining company complies with the law it can force landowners to accept exploration on their land and ultimately they can obtain mining leases.

“It’s a very tough situation and it’s one that Indigenous and non-Indigenous people face together. You see this in central New South Wales and in the Darling Downs in southern Queensland, where fracking extraction or exploration is taking place. And now, sadly, you can see the same policies playing out in far north Queensland.

“It’s outrageous to see hard-fought Indigenous land rights being overruled by rapacious mining companies who have the ear of government.”

Mike Ross says that the right for traditional owners to say no to mining explorations should always have been part of Aboriginal land rights, and it is time for the Queensland government to legislate it.

“Some traditional owners may want mining – that is up to them. They look at mining as a resource to come in and dig. But I haven’t seen any rich Indigenous people from working with mining companies, or traditional owners getting rich from royalties from their country. I see that Indigenous people in Weipa here in the cape are among the poorest communities in Australia, and they are working with one of the richest bauxite mining companies in the world. So what’s going wrong?”

Ross is keen to point out that his is a relatively young corporation, having only won their land rights in 2014. “We have only had this land back for three-and-a-half years. Give us a chance to say no to something. We need to be able to work out what works and what doesn’t and how to go about our business. Give us time to do so.”

He says he is interested in creating long-term opportunities for employment, opportunities that would be damaged by mining. “We’ve already employed about 35 of our own people on these projects we are setting up. We can improve on that. We are working on how to have more families, more young people living there on the land with jobs. We can do all of that – and I just don’t think mining will ever deliver it.

“First, we need to be able to protect our sacred sites, where our totems live, and the way of life of our people. We know that there needs to be some mining, but it just can’t happen everywhere. Government needs to recognise traditional owners’ right to say yes or no to mining under native title and land rights.”

Ross was back in the Land Court in Cairns last week to challenge the second exploration. The outcome of that case is not yet known.

This article was first published in the print edition of The Saturday Paper on Apr 21, 2018 as "Cape crusaders". Subscribe here.

James Norman
is a Melbourne-based writer and editor.

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