A mining registrar in Western Australia has a hard decision to make. The Martu Idja Banjima Native Title claimants — the Martidja Manyjima people of the Pilbara — want him to hear their challenge to BHP Billiton's claim for more mining leases on 200 square kilometres of their traditional land. BHP Billiton doesn't.
The Martidja Manyjima people have decided the damage to their responsibilities to the land of water degradation and destruction of sacred sites by the owners of the nearby massive Hope Downs mine is just too great. They don't want money, they want to limit the endless expansion of mining on their country.
The power differential couldn't be greater. Potentially, the country may have ore worth $25 billion in exports next year alone, which both State and Federal governments desire, as do the owners and shareholders of the four big mines already in the area, which have ambitious expansion plans.
The Martidja Manyjima people are just 200 extended families. They want to tell the registrar that the cumulative impact of mining on their country's water resources (already pumping billions of gallons from the aquifer to expose the ore), as well as irreversible damage to their culture, has been and will be catastrophic.
They have approached the registrar, who recommends to the minister whether more leases should be granted, to present the evidence of enormous human rights violations, in the public interest. The mining companies have opposed even this, claiming that the Martidja Manyjima people have enough protections under WA's Environmental and Aboriginal Heritage protection laws.
Here's where it gets interesting.
There is a precedent for their request: a WA Supreme Court ruling that a mining registrar could and should consider the publicly-funded Environmental Defender's Office arguments because environmental issues are a public interest issue when deciding on mining in Perth's lovely hill suburbs. Not a lot of Aboriginal householders live there.
The solicitors for the Martidja Manyjima people want their client to have similar rights. They say neither an environmental impact assessment nor a comprehensive heritage survey has been carried out, even though 35,000-year-old artefacts have been found on the site. They say the cumulative effect of mining on their human rights has not been and should be properly considered.
The solicitors invited the Australian Human Rights Commission to intervene. In her letter of reply, AHRC President Hon Catherine Branson QC said it would not 'at this point', but clearly set out its view of the public interest in protecting the human rights of Indigenous people in mining determinations.
The AHRC takes the view that a group's human rights can be violated by public or private entities, and though particular activities might not in themselves violate Section 27, the cumulative effect of minerals exploration may. It is, in the AHRC's view, vital to ensure that the special relationship of these people is protected and there is ample international jurisprudence and authority to establish this as a principle of Australian decision-making.
Non-compliance with Australia's human rights obligations is, Branson states, as contrary to the public interest as is acting in breach of a Commonwealth law.
BHP Billiton has promised to 'uphold fundamental rights and respect cultures, customs and values' under the Enduring Value — the Australian Minerals Industry Framework for Sustainable Development to which it is a signatory. The Minerals Council of Australia's Framework for sustainable Development also commits the industry to 'respect the culture and traditions of Indigenous peoples and their relationship with lands and waters'.
The Australian Government has supported the UN Declaration on the Rights of Indigenous Peoples, which details these obligations, noting that ours is one of the oldest continuing cultures in the world. Not for long, if the Pilbara destroys this country.
The Indigenous claimants say that granting more minerals leases will affect a significant portion of their land including cultural sites, and interfere with their ability to perform culturally significant activities. If true these consequences enliven internationally recognised rights under Article 27 of the International Covenant on Civil and Political Rights (Articles 27 and 1) and the International Covenant on Economic, Social and Cultural Rights, which Australia has ratified.
According to the AHRC, Article 27 of the ICCPR requires that such rights be protected against not only acts of government but also the acts of other persons within the state party to these covenants.
The AHRC also observed that WA's Aboriginal Heritage Act does not protect rights adequately. It permits the destruction of registered Aboriginal sites with the minister's consent (Section 18) without limiting or setting a minimum level of protection to a particular group's enjoyment of their culture and interests.
The Commonwealth Native Title Act has been repeatedly criticised as discriminatory and providing inadequate protection of Indigenous land rights. The right to Indigenous self-determination is part not only of Australia's binding obligation to eliminate all forms of race discrimination, but also the new UN Declaration on the Rights of
Indigenous Peoples which explicitly covers indigenous people's rights to maintain and strengthen their distinctive cultural ties and obligations to the land.
The Indigenous claimants say that the land is already 'dying' because of existing mining activities.
The Mining Registrar is being asked to find that it is relevant to his decision to take these public interest considerations into account. And if he considers that granting the leases is likely to result in breach of the human rights of the Indigenous claimants, he should recommend against it.
Whatever the Registrar's decision — and the pressures on him will make it a hard one — appeals will follow.
The Common Law is an evolutionary instrument adapting to changing social and economic circumstances. Law is created every time a tribunal makes a decision applying established rules to new facts. Courts' decisions set 'precedents' that must be followed in similar circumstances by subordinate tribunals. Human rights have become part of those circumstances because we are all affected by world events, governments ratify international human rights instruments, and formally accept that respect for them is a necessary element of communal life.
These rights may be inconvenient and can be statutorily created, modified or removed, as the Howard Government did in exempting the NT Intervention from the Racial Discrimination Act 1975, which implemented our obligations under the Convention on the Elimination of All Forms of Racial Discrimination.
Such inconvenience has encouraged Commonwealth and State attorneys general, with the notable exception of Victoria's Rob Hulls, to decline to introduce even the most anodyne human rights protections in domestic laws. But it is in the nation's interests to give voice to unpopular rights and powerless people.
Justice and the public interest would both seem to require that all relevant evidence be heard. Where else, but in our courts? Journalists don't hang out in Pilbara towns to write stories about finding 35,000-year-old artefacts or dried-up water-holes. Papers don't put them on the front page.
What this mining registrar does or doesn't do will affect every one of us. May they have their day in court. May we be sufficiently interested to read about it. May we care about the outcome. It's our country, too.
Moira Rayner is a barrister and writer. She is a former Equal Opportunity and HREOC Commissioner. She is principal of Moira Rayner and Associates.
Comments should be short, respectful and on topic. Email is requested for identification purposes only.
22 September 2009
An excellent read. I feel that it is relevant for people everywhere who are confronting the inevitable force of the mining companies.
For example, on the Darling Downs (where I live) the rural community is trying to deal with the expansion of existing coal mines and prevent the development of new ones.
22 September 2009
Moira, many thanks for the clarity and identification of the magnitude of this problem. It raises some fundamental issues of what it means to be Australian. Sadly when Indigenous David meets the Big Australian the moral balance is vulnerable to rubbery legislation.
As a geologist, I can hardly imagine the forces that will be rolled out under the guise of 'national economy'. In our national conscience, how do we ensure morality and economy co-exist?
22 September 2009
$25 billion vs 200 extended aboriginal families. I doubt that the Registrar (and subsequently governments) will find this a difficult decision to make; nor will it take more than a few spin doctors to provide the rationale to the public. But the cost: to the lives of local people, to the environment and to our collective conscience, are unacceptably high. For just once, could not the dollar be treated in the way that we have so often treated minority peoples: smile at it indulgently, and tell it that "you have been considered and will be respected, but will lose out on this particular occasion. Nevertheless, appropriate consultation will continue to take place."
22 September 2009
I have many Indigenous friends whose country falls within the Hope Downs agreement. I have watched their despair when negotiating with BHP Billiton. The greed of this company is so profound. They do not care about the social,emotional, physical and spiritual impacts of their mining practices. They practice tokenism and company image crap.
I work in south Hedland and guess which mining company has impacted the worst there, where billions of export $$$ are shipped through this town. BHP Biliton. Yes. Still a dirty dusty mining town, just like when I visited in the sixties.
I totally support the Martidja Manyjima people of the Pilbara and their decision to challenge BHP Billiton and their destruction of Australian Indigenous Heritage.
All Australians should take notice of this day in court.
22 September 2009
Go to it, Martu mob! The iron won't go away, and maybe later your descendants will find a way to use it, if they want to, without killing the country.
22 September 2009
Thank you for your thoughtful article. I am more and more concerned about how our attempts at being fair to the first Australians are so often failures because we fail to put ourselves in their shoes.
I will be praying that justice may be granted to the Martidja Manyjima people and that we will all learn to value this beautiful country of ours in a way that enriches rather than denudes it.
Thank you again
23 September 2009
I am very grateful to Eureka St Magazine for bringing me information about the marginalised and the forgotten. This article concerning the rights of the people of the Pilbara is such an important example. These issues are not revealed on the popular press in such a concise and clear manner, (sometimes owing to space and time) and the indication of such injustices are often glossed over for the sake of expediency. Are our our reporters able to follow up on these issues. What a role they have to play in our world. One of great responsibility to all, and one thwart with many difficulties and dangers.I do encourage them to keep pursuing the truth.
Many thanks to Moira Rayner for an important and informative article.
mary ellen macdonald
23 September 2009
Congratulations, Moira, on making a complicated legal issue comprehensible to the lay person. I'm glad to know you're still fighting for underdogs.
25 September 2009
Excellent article Moira. Thanks to Eureka St for publishing it.
Here in the West mining and resource multinationals are given plenty of slack when it comes to their destruction of the environment, harm to heritage, human wellbeing and communities, and particularly their gross indifference to and violation of Aboriginal people's rights and interests.
Environmental standards are regularly ignored or brushed under the carpet in the face of multi - million dollar profits and royalties. In addition to the environmental harm, the social harm and damage to the fabric of communities and the harm to human wellbeing are routinely trivialised or ignored. Think of the social and community harm done to Western Australian communities such as Port Hedland, Roebourne, Karratha, Ravensthorpe, Hopetoun, Yarloop and Augusta. Or the massive impact on human health resulting from lead poisoning in Esperance or multi chemical exposure from the Wagerup refinery. Or the families and children impacted on by deaths due to lax safety standards . Or the social costs to families and communities of the fly in fly out lifestyle.
I am currently researching the social harm and social cost of the mining and resource industry in WA and would welcome receiving any information and examples
26 September 2009
Thanks for an insightful article; informing us of the travails of our fellow citizens who have the temerity to challenge the "blow it up, ship it out" mindset that is a substitute for thought in too much of Australia. Was this the mindset that gave us the songline "Nothing's as precious as a hole in the ground"?
Could I ask Moira to also keep an eye on Wide Bay Burnett Conservation Council v Burnett Water ("Paradise Dam" case) currently before the Federal Court? One singer of the line is now a Minister of the Crown who is to decide if Burnett Water is obliged to meet its undertakings, or whether the law can be disregarded in this case.