In the mining industry (and probably every other sector), Aboriginal heritage is no longer about the protection of Aboriginal heritage. It is totally about rent-seeking. And our feckless High Court paved the way with its insane Mabo decision.

Whatever good former treasurer and   prime minister Paul Keating might have accomplished is overshadowed by his disastrous decision to enact Mabo into Australian law and establish the Native Title Tribunal.

And contrary to the assertion by former Chief Justice Anthony Mason that Mabo does not represent a ‘form of sovereignty adverse to the Crown’, we now have a two-tier system of land tenure in this country based on ancestry.

White Australians can hold land under various titles but all of them permit a use of the land that is restricted to its surface.   If, under that surface, is mineral wealth, the Crown owns that.

Aboriginal native title holders, though, are apparently co-owners of those resources.  If Justice Mason is to be believed, that cannot have been what the High Court intended. Mabo was premised on the claim that Aborigines made productive use of the land. That was found to be true in the case of the Meriam people, but in a leap of logic hard to fathom, the Court extended its finding to mainland Australia (even without the insights of Professor Uncle Bruce Pascoe).  Nonetheless, we might be happy to accept a form of title that allowed Aboriginal people to pursue their traditional mode of life (albeit that very few, if any, are doing that) and to preserve significant physical manifestations of their cultural history. But that culture never envisaged removing minerals, or anything else other than root vegetables, from underneath the ground.

The Mabo decision was grounded in common law. Common law vests the ownership of minerals in the Crown. Yet Aboriginal groups are paid massive amounts in royalties.

Let’s just take the Pilbara’s PKKP group, which apparently suffered massive cultural trauma from the demolition of two empty rock shelters at Juukan in 2020.  Its financial affairs are managed by the PKKP Corporation, which includes the PKKP Charitable Trust. This latter holds assets worth $244 million. They also have the Juukan Gorge Legacy Fund which contains an undisclosed sum (possibly up to $250 million) paid into by Rio in compensation for the destruction of the Juukan rock shelters. They received $5.4 million in royalties from Rio Tinto in just 2023.

The PKKP also has an agreement (described as a co-management deal), newly signed with Fortescue Mining Group (FMG). From the Australian: ‘Terry Drage, a Pinikura traditional owner and chair of PKKP Enterprises, said his people were not opposed to mining but it must be done “in the right way with traditional owner decision-making front and centre”.’

What sort of management decisions will his people be contributing to, I wonder?  To put this in perspective, the PKKP Corporation has approximately 200 registered members.

Incidentally, FMG has recently been ordered to pay another group, the Yindjibarndi, $150 million in compensation for mining without an agreement. We are waiting to see if the Yindjibarndi appeal this decision, because they claimed $1.82 billion. This gives you just a glimpse of the staggering sums that are being showered on just a handful of people in the Pilbara alone. Not for doing any work, but simply because they had an ancestor who was here before the First Fleet. How does this square with Labor’s distaste for unearned inherited wealth?

In my book Juukan – the New Dark Emu, I reveal that the demolition of the Juukan rock shelters was not only legal, but it was done with the concurrence of the PKKP people and furthermore that absolutely nothing of cultural significance was destroyed in the process. I also reveal that the narrative we now accept about Juukan came from a corrupted parliamentary inquiry headed, sadly, by a Coalition MP. I predicted that this narrative will be used to turn the screws even tighter on mining companies.

And so it has turned out to be. Again from the Australian:

‘Association of Mining and Exploration Companies chief executive Warren Pearce said the traditional owner groups had set the bar higher for mining companies post-Juukan Gorge and WA’s decision to backflip on new laws aimed at protecting Aboriginal cultural heritage.…

There are some interesting things happening. Since Juukan Gorge and the Aboriginal cultural heritage backtrack, it’s got a lot more difficult (to negotiate agreements).…

Some 85 per cent of WA is subject to either a native title claim or already subject to Federal Court determinations that recognises the existence of native title rights and interests.…

Royalty regimes negotiated under native title has created billions of dollars of income for traditional owner groups in minerals-rich regions like the Pilbara, with most of the wealth held in charitable and discretionary trusts and the terms of deals with miners covered by confidentiality agreements.’

Contrast this regime with that of white landholders – who are not only denied any royalties from mining – but their existing rights to operate above the surface are now being gravely infringed with solar panels, wind towers and transmission lines which will ultimately beggar the nation. What a disparity of rights.

How is it possible for agriculturalists – who are using the land productively to increase our national wealth – to have a lesser form of title than people who are doing nothing with their land – for the most part not even living on it?

If a mining company is granted a lease on a white landholder’s property, that landholder will be paid appropriate compensation. If he refuses to cooperate with the mining company unless he is paid royalties, his land will be resumed.

I don’t know the legal ramifications of what I am about to propose. The political ramifications would be immense. But native title needs a rethink. It’s time to rein it in.  And with Pauline Hanson shaking the political scene to its foundations by offering up common-sense policies, why not throw in a royal commission to examine the legitimacy, fairness and efficacy of the native title regime? It should be a no-brainer that native title should have no more rights than other forms of title. At least, cease the practice of paying mining royalties to opaque Aboriginal corporations. James Ashby, take note.  This could be worth another five-per-cent bump in One Nation polling. Maybe even another $1 million to help fire the liar. It would lock my vote in.