Saturday, 5 May 2018

Politics Trumps Policy: Minister Scullion’s response to the Bindunbur native title determination




One of the drivers of the growing loss of community trust in our political leaders is the incessant focus on politics over policy. There is no doubt that the responsibility for this lies beyond our politicians, as large elements of the community itself prefer simplistic narratives built around polarised versions of reality. Nevertheless, our very best political leaders resist the temptation to reinforce the demand for simplistic nostrums. They seek to provide more nuanced explanations which explore the complex causes of problems and outline the value judgments which underlie the trade-offs and compromises which invariably shape effective policy.

In policy domains such as Indigenous affairs where poor policy performance leads to constrained and shortened life-opportunities of many Indigenous citizens, the responsibility of ministers and governments (and indeed opposition parties) to focus on understanding and explaining policy in accurate and factually correct terms is heightened. Indeed, the current Government has implicitly acknowledged this in its decision to allocate $40m to improve the evaluation of programs and in the focus emerging out of the closing the gap refresh process on improving the data available to regional communities.

Consequently, the decision of the Minister for Indigenous Affairs to issue a media release on 2 May which was laced with factually inaccurate political and ideological invective appears inexplicable and indeed indefensible. Here is the background.

The Federal Court recently finalised the terms of a native title determination over 12,000 sq kms on the Dampier Peninsula in the case of Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2017] FCA 1367. (link here)

This follows an earlier Decision in November 2017 by Justice North in the same claim involving three claimant groups, the Bindunbur, Jabirr Jabirr and Goolarabooloo claimants which found that the first two groups held native title over the middle Dampier Peninsula, but not the Goolarabooloo claimants. Here is a link to the Kimberley Land Council (KLC) media release following that earlier decision (link here). Here is the KLC media release issued following the 2 May Determination (link here).

Following the recent decision finalising the case, the WA Treasurer, Energy Minister and Aboriginal Affairs Minister, Ben Wyatt issued a media release on 2 May (link here). Minister Wyatt commented responsibly and perhaps somewhat prosaically:

I congratulate the Bindunbur and Jabirr Jabirr people on their achievement… 
This determination means that the certainty of native title rights in the whole of the Dampier Peninsula will assist the economic development future of this region. This decision will provide an environment for sound investment and help the local economy in areas such as ecotourism and aquaculture.

In contrast, Federal Minister for Indigenous Affairs Nigel Scullion along with the Member for Durack, Melissa Price MP (link here), issued a more provocative and tendentious media release (link here), which resorted to personal abuse, xenophobia, and the reinvention of history, and used the native title holders’ celebration of the Federal Court determination as a platform to gratuitously slam all ‘inner city greenies’ and ‘green-left activists’ as being opposed to Indigenous aspirations to develop their own lands.

I will let the Minister speak for himself:

The Minister for Indigenous Affairs, Nigel Scullion, congratulated the Nyul Nyul, Nimanburr, Jabirr Jabirr and Ngumbarl peoples on their success and for achieving legal acknowledgment of what they have always known - that they are the true and genuine traditional owners of the Middle Dampier Peninsula.
“This determination is a triumph of rational, fact-based legal processes over hysterical and patently false cultural and economic vandalism driven by interstate, inner-city extremists,” Minister Scullion said.
The native title determination includes James Price Point, which could have been home to a major economic development project with Woodside Energy which it is reported would have generated $1.5 billion for local Aboriginal communities.
“Unfortunately, the real traditional owners who have been recognised today were not listened to by the green left activists who blocked their aspirations for the development of their land and forced the major commercial project to be abandoned. 
“It is abhorrent that green-left activists like Missy Higgins and John Butler took advantage of Aboriginal people and tried to create uncertainty about their native title rights to push their own politically motivated agenda. 
"The sanctimonious self-righteous campaign we saw by these FIFO celebrity activists would have been a laughing matter if their blatant hypocrisy hadn't resulted in keeping the poorest of our fellow citizens in poverty.
"I hope Missy Higgins and John Butler and their foreign funded backers will now apologise to the real traditional owners and indeed to all Aboriginal and Torres Strait Islanders for so blatantly misappropriating Indigenous culture to suit their own political purposes. 
“What do inner city greenies have against Aboriginal people who want to pursue their own aspirations for development, just like any other Australian?
“From today, the real traditional owners have control of their land – free of influence from green left activists – and I look forward to working with them to ensure they can take charge of their future. “

Justice North of the Federal Court  in his November 2017 decision (link here) had this to say regarding the James Price Point matters:

1.3.6    The James Price Point Gas Hub dispute


215    A final matter of historical context relevant to the present proceeding is the dispute over a proposal by Woodside Energy to build a natural gas hub at James Price Point, within the Jabirr Jabirr and Goolarabooloo application areas. The following summary of the dispute is adapted from a timeline published by the Australian Broadcasting Corporation: “Gas hub: Controversy in the Kimberley”, 12 April 2013,5:28pm, http://www.abc.net.au/news/2013-04-12/browse-lng-timeline/4625232.


216    In February 2008, the Commonwealth and the State of Western Australia signed a strategic assessment agreement to assess locations for a natural gas processing facility for the Browse Basin off the Kimberley coast. On 15 April 2009, it was reported that “traditional owners”, through the Kimberley Land Council, had agreed in principle to a deal with the State of Western Australia and Woodside Energy to allow the construction of a gas processing hub. Then, on 22 December 2009, it was reported that another group of “traditional owners” were opposed to the development. It was then reported that native title claimants willing to sign a deal for the construction of the gas hub were unable to do so because Mr J Roe, the grandson of Mr P Roe, who opposed the deal, was one of the named persons comprising the applicant in an extant native title application in the area, being the Goolarabooloo and Jabirr Jabirr claim (GJJ claim) WAD 6002 of 1998.


217    On 15 February 2011, Ms Rita Augustine, Mr Anthony Watson and Mr Ignatius Paddy on behalf of the Goolarabooloo and Jabirr Jabirr People replaced Mr J Roe and Cyril Shaw as the persons comprising the applicant in the GJJ claim: Roe v State of Western Australia (No 2) [2011] FCA 102. The new persons comprising the applicant were reported to be in favour of the gas hub project.


218    On 6 December 2011, the Supreme Court of Western Australia upheld a claim brought by Neil Patrick McKenzie, a Jabirr Jabirr man, and Goolarabooloo witness Mr Phillip Roe that three notices of intention issued by the Minister for Lands for the compulsory acquisition of land for the gas hub project were invalid: McKenzie v Minister for Lands [2011] WASC 335.


219    On 12 April 2013, the applicant in the GJJ claim was given leave to discontinue their claim: Rita Augustine v State of Western Australia [2013] FCA 338. On the same day, Woodside Energy announced that it would abandon the gas hub project because it did not meet its commercial requirements. (emphasis added).


Key points to note here are that the Federal Court makes no mention of the role of the environmental movement in relation to the decision of Woodside to abandon the gas hub project, and indeed implicitly endorses commercial factors as the reason for the Woodside decision.

This rationale is supported by contemporary media coverage. To take just one example, see this Perth Now article from April 2013 (link here).

[Addendum added 6 May 2018: here is a link to Woodside's 12 April 2013 announcement in relation to the James Price Point development. It confirms the commercial rationale for the decision.]

Moreover, the Minister’s focus on ‘real’ native title holders has the implicit effect of diminishing or denigrating the actions and motivations of the Goolarabooloo claimants. While their native title claim was not supported by the Court, the judgment’s exhaustive assessment (over 700+ dense paragraphs) of the competing merits of the three groups claims makes it quite clear that there was a legitimate prima facie argument in support of the Goolarabooloo’s claim based on historical residence in the claim area from the 1930s and possible ‘succession’ rights to the relevant country. The Minister’s suggestion that their claim amounted to ‘hysterical and patently false cultural and economic vandalism’ is on any fair reading of the judgement just plain wrong.

Finally, the Minister’s claim that ‘the Government is providing $20.4 million to ensure native title claims deliver economic benefits to Aboriginal and Torres Strait Islander people.’(emphasis added) is just another example of this minister stretching the facts beyond credulity.

The Department of Prime Minister and Cabinet website (link here) states:

In June 2015 the Minister for Indigenous Affairs announced as part of the Northern Australia White Paper process an additional $20.4 million in funding over an initial four years to be targeted at capacity building for Prescribed Bodies Corporate (PBCs). The funding will assist these native title holding corporations to generate economic benefits through the effective and sustainable management of their land. Although the new funding was announced as part of the developing Northern Australia process, it will be available to PBCs throughout Australia.

In other words, there is an average of $5m per annum available until 2019 to the 179 currently registered PBCs across the country (link here). That is on average, there is less than $30k per annum available for each PBC, many covering vast areas of the country with no other sources of financial support. Such limited funding will clearly not ‘ensure native title claims deliver economic benefits’.

Of course, the continued mention of this paltry investment of funding provides rhetorical cover for the Government’s complete failure to drive substantive land reform policy relating to native title since coming to Government. The Government arranged for COAG to endorse the establishment of an Indigenous led review into Indigenous land administration and use, and the Department of Prime Minster and Cabinet website (link here) summarises the recommendations of the review in the following terms:

The COAG Investigation into Indigenous Land Administration and Use recently looked at how governments can better support Indigenous land owners and native title holders to use their land for economic development. It recommended governments focus on:
·         gaining efficiencies and improving effectiveness in the process of recognising rights;
·         supporting bankable interests in land;
·         improving the processes for doing business on Indigenous land and land subject to native title;
·         investing in the building blocks of land administration (e.g. town planning, cadastral surveys and infrastructure); and
·         building capable and accountable land holding and representative bodies.

Unfortunately, the Government has so far failed to progress any substantive legislative and administrative change based on the Review’s recommendations, and the recent Government options paper responding to the Australian Law Reform Commission inquiry into the Native Title Act (link here, here and here) does not propose substantive reforms which will drive greater opportunities for economic development.  In short, the Government is strong on rhetoric and short on action in relation to supporting the economic development of native title and other statutory Indigenous land titles. Little wonder the Minister is focussed on political vindictiveness and not policy aspiration or achievement.

To sum up, Minister Scullion’s extraordinarily gratuitous and ad hominem attack on musicians Missy Higgins and John Butler, his gratuitous slurs on all citizens who may be concerned about the environmental consequences of development, his implied attack on the motives of the unsuccessful Goolarabooloo claimant group in the Bindunbur native title claim, his wilful ignorance of the real reasons for Woodside Energy’s decision to abandon the proposed gas hub at James Point, and his seriously exaggerated claims regarding the Government’s funding of PBCs alongside the Government’s non-existent record in supporting equitable and effective land reform provides a case study in politics trumping policy.

On the basis of this evidence, Minister Scullion’s use of the terms ‘sanctimonious self-righteous[ness]’ and ‘blatant hypocrisy’ appear to have a stronger application to his own media release and his own actions than to the legitimate rights of persons opposed to the gas hub project (whether Indigenous or not) to express their views and to engage in political advocacy in support of those views.

These are not the standards of behaviour that we should expect or tolerate from a Federal Minister of the Crown.






Declaration of Interest:
In relation to the James Price Point gas hub, my personal views were ambivalent: I was sceptical in relation to the net benefits of the project, particularly given the potential environmental downsides and the risks to the tourism potential of the Dampier peninsula but was also cognisant of the potential economic benefits for Indigenous people in the region. My professional involvement (while I was an adviser to then federal Minister Jenny Macklin) involved extensive efforts to ensure that the KLC and Indigenous residents of the region were in a position to negotiate fair and equitable arrangements with both the West Australian State Government and Woodside Energy in the event that the gas hub was to proceed.