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.

Crosscurrents in Native Title: a book review

The notion of crosscurrents as a metaphor for the process of understanding the nature of native title in Australia is apposite.

For Indigenous people, the Native Title Act can be a portal into a long and tortuous process of articulating, clarifying, and resolving complex relationships between people and country, including ‘sea country’; attending meetings to develop claims, interacting with experts of various kinds, including anthropologists, historians, prehistorians, and not least lawyers; giving instructions to representative bodies such as Land Councils or native title representative bodies, and in particular the lawyers engaged by those bodies to advocate the claim; responding to complex tactical issues such as whether to agree to mediation, and if so, on what terms; and giving evidence in court about the individual, family and group relationships to country.

For the legal system, and in particular the Federal Court, the challenges of interpreting complex legislation, new and rapidly developing legal precedents (which change over the course of any one case), mediating or determining the correctness of conflicting and complex arguments between claimants, state and Federal governments, and third parties with potential interests in the claimed lands, all infused with cross cultural challenges and often incomplete or tendentious evidence on all sides.

When one stands back, and looks below the surface as those two sets of ‘currents’ meet in particular locations (which number in their scores if not their hundreds across the continent) it is not surprising that one observes a high degree of ‘turbulence’.

Katie Gaskin’s recent book: Crosscurrents: Law and society in a native title claim to land and sea (UWA Press 2017) examines the turbulent commingling of these two broad currents in one particular case, the Sampi native title claim which covered the northern portion of the Dampier Peninsula north of Broome in the Kimberley, and included a series of islands known as the Buccaneer Archipelago. The archipelago is itself subject to extremely high tides, and strong and dangerous currents and whirlpools. Thus the metaphor for the intersection of law and society in the Sampi native title claim is particularly apposite.

Glaskin’s book, within its chosen parameters, is a tour de force, a riveting narrative of the land claim process, focussing primarily on the interplay between legal process, requirements, and shifting precedent and the ethnographic evidence of the key Bardi and Jawi informants. Glaskin deftly lays out the historical context for the claim, and in particular for the area subject to most dispute, the land and sea which makes up the archipelago, including the role of missionaries, various individuals involved in trade and commerce based on trochus or pearls, government officers of various kinds and the Indigenous peoples whose ancestors resided in the claim area for some thirty thousand years. She goes on to recount the long and winding pathway from the initial research for the claim which began in 1994, its lodgement in 1995 with the Native Title Tribunal and subsequent referral to the Federal Court, three trial hearings through to its final determination by a decision of the Full Federal Court delivered in March 2010. Throughout, the focus is on the interplay between the ethnographic narrative argued by the claimants and the way in which the legal process (and the narrative articulated by the various parties involved including two governments and commercial fishing interests) interacted to shape both the issues which became salient and required resolution and determination in Australian law and social relations within the claimant communities.

Glaskin who was involved throughout and took a close interest in the process recounts these events very much as a neutral participant observer, avoiding taking sides, and leaving judgements at key points to the reader to assess and determine. Nevertheless, the narrative presented clearly demonstrates the ethical and moral strength of the claimants’ aspirations, and the arcane and rather mechanistic processes of the law and lawyers, constrained as they are by legislation and the long and largely successful culture of the common law.

In particular, while the law’s processes are clearly designed to symbolically reinforce the message that laws have primacy over men and women, these legal processes struggle to retain their credibility as their role in determining the ongoing existence or non-existence of native title is shown by the material Glaskin assembles to be simultaneously impacting Aboriginal people’s core ontological assumptions about themselves and their social communities.

While the final outcome of the native title claim is largely positive, the social costs involved in ‘recognising’ peoples existing and continuing native title rights are shown to have been enormous, albeit they are intangible and impossible to measure either within western ways of thinking or across cultures.

I stated that the book is a tour de force for a number of reasons.

First, Glaskin amasses, synthesises and expounds an extraordinary amount of complex and demanding material across the disciplines of prehistory, history, linguistics, anthropology, Bardi and Jawi ethnography, Australian law and to a lesser extent policy and politics.

Second, because Glaskin’s narrative has forced me to ask myself important new questions which I had been prepared to avoid or gloss over. In particular, is the judicial, policy and most importantly political consensus that native title claimants should be required to ‘prove’ connection to their country not just in the present but continuously from the date of the assertion of Crown sovereignty the equitable and morally justified benchmark I had previously accepted it as being?

Glaskin is at pains to make clear in her Preface what she is not attempting to cover. This is her prerogative, and it is not a criticism to raise issues which fall outside her self-imposed remit. However, her narrative raised two further issues for me which are I think important for the future of native title. The fact that her book manages to raise these sorts of issues for an engaged reader is further proof of its value.

The first relates to a matter which Glaskin appears to tip-toe around. It relates to a change of legal advisers and legal tactics within the Kimberley Land Council between the first and second trial in the Sampi litigation. The second trial before a new trial judge, Justice French arose because the initial trial judge fell ill and could not continue. During the interregnum, the High Court had handed down its decision Yorta Yorta, which resulted in a new focus on the continuity of Aboriginal ‘society’. The KLC reframed its argument around the relationship of the two groups who had brought the Sampi claim, the Bardi and Jawi, and it seems sailed close to the wind in terms of the anthropological evidence. The two anthropologists working on the claimants’ case wrote to the KLC to express their concerns, though Glaskin does not recount the elements of their concern or complaint.

The more general issue raised by this issue or event relates to the privileged and extremely complex role of Land Councils and Native Title Representative Bodies in representing native title groups in litigation and commercial negotiations. This privileged role is one that I support since facilitating unregulated access to this ‘market’ by commercial or private sector advisers is potentially fraught and involves increased risks of fraud, Transparency International recently issues a report in which they identified this risk (link here).  However, a concomitant of providing Land Councils and rep bodies with a privileged advisory role is that these bodies need to ensure they are fully accountable to both their constituents, the claimants they represent in particular cases, and the broader public given that they are funded with taxpayer dollars.

This issue is a sleeper as I am aware of a number of land councils and rep bodies with problematic governance and accountability practices and arrangements. Ultimately, it is governments and ministers who oversee the funding and regulation of these bodies, and it is they who should be held ultimately accountable for failure. Unfortunately, the real world experience of indigenous affairs policy is that the failure of poorly oversighted and regulated organisations is almost always seen by the public as an ‘Indigenous problem’. And the more fundamental risk is that the privileged position of rep bodies and land councils will eventually be undermined, a result which I consider to be sub-optimal.

In the Sampi case, it appears that there were no or limited reasons given for the change of approach by the Land Council, and it is not clear what levels of legal assurance were undertaken by the Land Council in adopting a revised approach. For example, did they seek Senior Counsel’s opinion, and did they take informed instructions from the claimants in relation to the new approach?

While Glaskin does not say this, it seems to this reader of her detailed narrative that the Land Council’s changed tactical approach played a significant role in the claimants’ initial loss in relation to the offshore islands in the archipelago. The consequences for Jawi interests in particular might have been much worse were it not for the Full Court later decision to overturn Justice French’s decision.

A second issue, again which is not highlighted by Glaskin, but merely hinted at relates to the decision by both the Western Australian and Commonwealth Governments to oppose the claim, in particular the claims to offshore lands and seas. This opposition was a prime reason for the failure of mediation, and thus for the length of the litigation, and the social costs inflicted on claimants I referred to earlier. Of course, subsequent cases (Yarmirr in 2001; Akiba in 2010) have found that native title can exist offshore, thus demonstrating retrospectively the wasted opportunities derived from the government actions. Glaskin notes that notwithstanding the sustained opposition to the claim by the Commonwealth, following its resolution, the Environment Department sponsored the declaration of an Indigenous Protected Area over the claim area which was justified explicitly on arguments the Commonwealth had used to oppose the claim. Refer pages 220-1 of the book. Ironies abound!

More generally, despite regular media statements celebrating the award of native title, both state and federal governments have over the past two decades routinely adopted legal arguments and positions which are designed to limit the extent and nature of determined native title. From time to time, these arguments are adopted for reasons which relate to legal policy issues outside the native title realm.

As a general rule, there is almost no transparency or public coverage of the arguments adopted by governments in native title litigation. While the information is theoretically public (as all court proceedings occur in public) there is no way a concerned member of the public can easily monitor what is going on. Similar to the argument for greater transparency from land councils and rep bodies, governments have a responsibility to be open about the positions they adopt, the reasons behind their positions, and to facilitate greater transparency. Such transparency would generally lead to better policy outcomes. It is unfortunate that the short-sighted focus of policymakers on politics over policy leads to these sorts of sub-optimal outcomes for Australia as a whole.  Indigenous advocacy groups might usefully seek to routinely monitor the legal positions of governments in ongoing litigation and publicise it as necessary.

To sum up, this is an extraordinarily stimulating book. It presents its key arguments via an engaging narrative of a single native title claim. It raises issues of substantive policy and societal importance. Crosscurrents will attract a readership primarily in anthropological and perhaps legal circles. I would encourage all those involved in public policy relating to Indigenous affairs, and indeed all those engaged citizens who merely wish to gain a better understanding of the Indigenous policymaking maze, to consider reading the book as it provides important insights into how mainstream society’s institutions interact with Indigenous Australians.

Addressing the ‘turbulence’ created by the commingling and intersecting ‘currents’ of Indigenous and mainstream ‘ways of being’ will be an ongoing challenge for Australian policymakers for decades to come. Katie Glaskin has offered us a rare insight into how this turbulence plays out within Indigenous citizens’ families, groups and the broader Indigenous community, and almost by the way, into why there are never simple solutions to complex problems.