Secession in the Kimberlys
In December 1991 the Chamber of Mines held a seminar on land conflicts in the Kimberley region. This is a strategic part of Australia from a number of points of view and some worrying portents have become evident in recent times.
The most obvious of these is a very large Aboriginal land claim, the success of which would have major implications, since it is based on a challenge of some fundamental assumptions concerning the nature of modern Australia's right to exist as a sovereign entity. Until little more than a decade ago the economic worth of the Kimberley could only be measured in terms of cattle. What mining there was consisted of iron ore operations at Cockatoo Island and Yampi Sound, off the coast of the Kimberley. While these were important in their day they were modest in comparison with the Pilbara operations of the present.
NO KNOWN RESOURCES
On the mainland there was no history of any mining or other activity on any scale and- with the exception of the Mitchell Plateau bauxite reserves- no major resources were known. The tourism potential of the rugged and in places spectacular scenic landscape of much of the Kimberley was recognised but the region's remoteness meant that very few tourists had ever been there. Then came the Ord River Development, which resulted in the damming of Lake Argyle. This is undoubtedly one of Australia's most scenically attractive lakes. but the agricultural development that was its raison d' etre - in a way unfortunately typical of grandiose northern agricultural scheme - proved to be a costly failure. Mining and tourism have come to the Kimberley since. The biggest diamond mine in the world was discovered near Lake Argyle by CRA. Oil exploration has concentrated on the Devonian reef complexes which represent an intriguing and classic target for oil explorers. but success has proved to be elusive. As had been established in other parts of the world, oil and base metals can exist in a genetically related context where such reef complexes are found and the base metal explorers have had better luck, resulting in the discoveries of BHP's Cadjebut mine. Such is the frontier nature of the region that even tourism has made its new discoveries: the unique Bungle Bungle Ranges were virtually unknown until recently. The Kimberley is still in many ways very much frontier country. 310,000 square kilometres only comparitively lightly explored. On the map it points to south east Asia suggestively and, with the rainfall and grazing potential so relatively favourable, its cattle industry should be thriving on the basis of trade with this area. In fact, 70 per cent of the cattle properties are currently estimated to be unviable. At the Chamber meeting in December Peter Murray, of the Pastoralists and Grazier's Association, did not mince words. He said that 60 per cent of the problem was Aboriginal: and most of the remaining 40 per cent was governmental. At the centre of the Aboriginal problems is the Kimberley Land Council, an effective activist organisation since the time of the Noonkanbah confrontation in 1980, despite it not having any official status comparable to the Northern Territory land councils.
The government's contribution to the difficulties lies in its insistence on maximum intervention, to a degree which Peter Murray compared with the former Soviet Union and its current problems. Some people see it as fitting that Aboriginal interests should prevail over those of the cattle industry. After all. an encyclopedia published 30 years ago could accurately describe the Kimberley as -last Western Australian stronghold of the native race-. It is precisely this perception that is at the bottom of the present state of affairs and the dominating question is how to allow for it and still promote the best outcome for the national interest. The Wilderness Society has been pressing for large tracts of the Kimberley to be declared wilderness zones and is clearly linking the Aboriginal Land Rights and Land Claim agenda to its own in a way familiar in other parts of Australia, notably Cape York in Queensland. The most worrying aspect of these moves is one that goes beyond the legitimate interests of the mining industry: it is one of loss of control and hence sovereignty. The Kimberley is an area larger than many countries. To lock it and its resources up, to relinquish authority over it (to whatever degree) will be unlikely to be seen as a wise move by posterity. 'The basis of the Kimbereley land claim is a novel contention that the original British claims to Western Australia did not stretch to include the Kimberley. Therefore it has never had Australian sovereignty established over it. The claim has yet to be brought before the High Court, the reason being that the Commonwealth has refused to fund it until the Mabo case decision is handed down, on the grounds that the points at issue are essentially the same. If the Mabo decision is in favour of the plaintiffs, then the Kimberley claimants have a case. The Mabo decision is awaited with some anticipation therefore. The Kimberley Claim process began in 1987. One of the principal instigators, lawyer Rosemary O'Grady, has spelt out the legal stategy behind the claim in an article in the Aboriginal Law Bulletin of December 1991.
The intention of the plaintiffs at the outset. she writes, was to assert their title to traditional lands on the basis that they meet, in the affirmative, all the tests identified by Blackburn J in Milirrpum vs Nabalco Pty and the Commonwealth (1971). This landmark case brought down a judgement (i.e. that Terra Nullius applied) which the Mabo judgement may overturn, with implications extending far beyond the Kimberley claim, but it is a point to note that the Kimberley claim was embarked upon with the idea of getting home within the constraints of the Blackburn judgement. To do this it had to meet the following criteria: Sole occupancy - proof of occupancy by distinct Aboriginal groups, group entity - an indentifiable entity with social, cultural, linguistic, geographic and political criteria and traits, a system of laws - traditional Aboriginal law has continued to operate, time - title is claimable on the basis of occupation for a long period of time. change of living - the plaintiffs allege no significant change in living style. It may not be the case in purely legal terms, but the last contention seems to represent an Achilles heel. If the Blackburn judgement is overturned, it may be many years before the test of its applicability to the Kimberley claim area is resolved. Should it eventually be resolved in the plaintiff's favour there would be nothing the State government could do about it and any attempt by the Commonwealth government to avert the consequences by legislation are in danger of running up against the international conventions that it has tied itself to. These might render the Commonwealth government equally as impotent as the State government. In this case, the revolutionary goal of a separate black sovereign state in the Kimberley will have been achieved.
Keywords: High Court of Australia, Kimberleys, land tenure, Western Australia
Originally published in WA Chamber of Mining magazine.
Author: Strelein, Lisa
Source: Turner, Tony