It’s only been since WW 2 and in the case of Native Title since 1992 that there has been any form of recognition by the Australian legal system of Aboriginal people’s rights to land.
Aboriginal people’s rights to land is a relatively new concept in Australia and many decision-makers are yet to accept this reality
A recent court decision ruled that economic impact outweighs cultural significance in a case against Gomeroi custodians
Invariably, decision-makers cave into mining companies’ demands based on promised economic outcomes
Commenting on the projected destruction of Gomeroi Cultural sites, James Fitzgerald first set the issue in a broader historical context emphasising that it is only recently that Aboriginal people have had land rights.
“It’s only been since WW 2 and in the case of Native Title since 1992 that there has been any form of recognition by the Australian legal system of Aboriginal people’s rights to land.”
He also identified a cultural and attitudinal problem which leads to these rights being trampled over, disrespected, or ignored altogether.
“In many parts of Australia, Aboriginal people are still seen by people in power as a social problem rather than a national asset; people that we should be proud of as part of this extraordinary story of Australia.”
This attitude extends especially to politicians and decision-makers at higher levels where many are yet to come to terms with the notion than Aboriginal people have land rights.
“There are still many people in positions of power that either don’t agree with the Mabo decision that recognised Aboriginal people’s rights, or who simply don’t get that Aboriginal people do have these rights and therefore should be respected holders of the rights.”
Because governments, political parties, all major political parties are pretty much captured by mining interests in the sense that they think that either we need the royalties or; in some cases, am sure there is brazen corruption.
James Fitzgerald also explains that in the context of Native title, stemming from a High Court decision in 1992, in order for Native Title to be recognised, Aboriginal people concerned need to be able to demonstrate to the Court that they still have a connection to country through observance of their traditional laws and customs.
He says, in many cases this can be demonstrated confidently despite the complexities of the regulation.
However, in other parts of the country the impacts of colonisation have been so great that people have, through no fault of their own, lost the laws and customs that used to bind them together as a group which define their relationship with the land.
“That doesn’t mean that they don’t have a relationship with the land. That means that they don’t pass a White-Anglo legal test.”
Even when land rights are recognised mining giants have gained the upper hand, self-regulate or have simply captured the decision-making process.
“Let’s be honest, my understanding is that there have been hundreds of ministerial consents given to destroy cultural heritage in WA alone in the past ten years.”
He argues that all a mining company has to do is convince the minister, a commission or decision-maker that their project is in the national interest or is of great economic benefit for that company to be given the go ahead with its project while destroying, damaging or interfering with cultural sites that happen to be on its way.
“Because governments, political parties, all major political parties are pretty much captured by mining interests in the sense that they think that either we need the royalties or; in some cases, am sure there is brazen corruption.”
James Fitzgerald has worked on both sides of the debate. He concurs with Dr Glyn Cochrane, a former Rio Tinto adviser, who recently said he’s seen Rio Tinto being in a role-model position, implementing industry best-practice, to the current situation whereby Rio Tinto does “whatever it thinks it can get away with.”
This comment was made in reference to mining giant Rio Tinto’s recent destruction of 46 000-year-old Indigenous Heritage sites in the Juukan Gorge in WA.
Who is James Fitzgerald?
James Fitzgerald is a lawyer, negotiator and strategist with more than 28 years’ experience. He has been closely involved in the development of Native Title law and land use policy, and has worked with Indigenous peoples; governments; and industry peak bodies in state and Commonwealth land use policy and legislation development.
He is currently a director of the Diplomacy Training Program Ltd, a human rights training organisation, and is adjunct associate professor at the Law School of the University of NSW.