A History of Duress – A GAC Research Project

Introduction

In the late 1970s and early 1980s agreements for four uranium projects were entered into by the Northern Land Council on behalf of traditional Aboriginal land owners. These were Ranger, Nabarlek, Jabiluka and Koongarra. Ranger is still operational and is presently expanding its mining and milling operations. The Nabarlek ore body has been exhausted and the mine has been decommissioned. Neither Jabiluka nor Koongarra proceeded due to the uranium export policies of the former Federal Labor Government.

Soon after it was elected in 1996 the Howard Government announced that it intended to consider proposals for new uranium mines and an expansion of uranium exports. Under the previous Hawke and Keating Labor Governments uranium mining was only permitted at the Ranger mine in the Northern Territory and the Roxby Downs mine in South Australia. Energy Resources of Australia Ltd (ERA), the operator of the Ranger mine and the owner of the Jabiluka mining lease, requested permission from the Commonwealth and Northern Territory Governments to start mining activities at Jabiluka.

The proposals for uranium mining in the Alligator Rivers region have been highly controversial. There is very significant opposition to uranium mining in the Australian community. Any mining in the Alligator Rivers region is particularly sensitive to many people because of the potential threats to the natural and cultural World Heritage values of Kakadu National Park. In order to develop its response to the proposal for the opening of the Jabiluka mine, Gundjeihmi Aboriginal Corporation has undertaken some preliminary historical research. This research provides an overview of events in the late 1970s and early 1980s when the Ranger, Nabarlek and Jabiluka agreements were negotiated by the NLC.

The research for this report was largely based on material available from a range of sources, particularly the Northern Land Council Library. There is also a considerable number of people who have been involved in the region and many Aboriginal people who live in the region who have been spoken to about present developments and their recollections of past developments in the region.

The unrelenting pressure on Aboriginal people in the region

Nearly twenty years later, it is possible to overlook the pressures that people were under during this period. Aboriginal people in the region were struggling to get title to their land with the assistance of the newly established and inexperienced Northern Land Council (NLC). There was considerable uncertainty about whether they would get title to their land, and even if they did, what would this mean. There was pressure for the development of at least four uranium mines in the region. The NLC, two Governments, a number of mining companies, and many other people and organisations were seeking a stake in the future of the region. They were arranging what seemed to be a never-ending series of meetings and consultations. They were negotiating arrangements between themselves and Aboriginal people and were making decisions that would affect the lives of Aboriginal people living in the region for many years to come. A new large national park was in the process of being created and with it the prospect of many more tourists coming to the region.

For most of the traditional owners it must have seemed that getting title to their land was of little use if they were going to have four uranium mines and thousands of tourists walking all over their country. As one of the NLC lawyers commented in early 1978:

"... there is hardly any point in winning land claims in the Alligator Rivers Region or the Borroloola region if there is going to be a commercial covenant to develop large mines in the area. Such development would be in total contradiction to the maintenance of Aboriginal culture and lifestyle which is the very reason for running traditional land claims "(McGill 1978, 5).

Many of the reports of the Australian Institute of Aboriginal Studies Uranium Impact Steering Committee refer to the difficulties Aboriginal people had with the processes that occurred during the mid-1970s and early 1980s. It is not hard to see why large numbers of Aboriginal people concluded that there was little point actively resisting the extreme development pressures on their land.

The Project has mentioned before the pressure on Aboriginal people of countless meetings, of meetings where it seems that there is no point in resisting, because "the government" will win in the end, through sheer relentlessness. It has also commented on acrimony which arises as quarrels develop between members of a family, and between families, because their aspirations differ ... The response at Oenpelli to the news that it is going to be necessary to negotiate with mining companies with respect to exploration has been one of desperation at there being no end to these pressures and intrusions (Australian Institute of Aboriginal Studies 1983, 68-9).

With all of the other social and economic problems that exist in many such communities, it is not a simplification to say that Aboriginal people in the region were, and still are, living in a state of crisis and social breakdown.

The Ranger uranium project

In the mid-1970s the Whitlam Labor Government was confronted with a growing political dilemma in regard to uranium mining in Australia. On the one hand the Government could see the economic and commercial opportunities that would come from the mining of a number of large high grade uranium deposits in the Alligator Rivers region of the Northern Territory. The expansion of uranium mining was seen as an opportunity to establish an integrated nuclear industry in this country. On the other hand there was clear evidence of growing public concern about uranium mining and nuclear issues generally. The Government commissioned the Ranger Uranium Environmental Inquiry in July 1975 to examine proposals for the development of the Northern Territory uranium deposits. The Inquiry was chaired by Justice Fox.

At the same time the Government had introduced land rights legislation for Aborigines in the Northern Territory. The legislation was subsequently passed in an amended form by the Fraser Government. Land rights and the Aboriginal interest in the land of the region complicated the Fox Inquiry’s consideration of the future of the uranium mining industry. Much of the land where the uranium deposits were located was either claimable under the Aboriginal Land Rights (Northern Territory) Act or became Aboriginal land when the Act was proclaimed.

The Fox Inquiry's comments on Aboriginal attitudes to mining

In the Second Report of the Range Uranium Environmental Inquiry (Fox Report) a summary of Aboriginal attitudes to uranium mining was included:

"The evidence before us shows that the traditional owners of the Ranger site and the Northern Land Council (as now constituted) are opposed to the mining of uranium on that site ... Some Aboriginals had at an earlier stage approved, or at least not disapproved, the proposed development, but it seems likely that they were not then as fully informed about it as they later became. Traditional consultations had not then taken place, and there was a general conviction that opposition was futile. The Aboriginals do not have confidence that their own view will prevail; they feel that uranium mining development is almost certain to take place at Jabiru, if not elsewhere in the Region as well. They feel that having gone so far, the white man is not likely to stop. They have a justifiable complaint that plans for mining have been allowed to develop as far as they have without the Aboriginal people having an adequate opportunity to be heard ... it is not in the circumstances possible for us to say that the development would be beneficial to them. There can be no compromise with the Aboriginal position; either it is treated as conclusive, or it is set aside ... In the end, we form the conclusion that their opposition should not be allowed to prevail "(Ranger Uranium Environmental Inquiry 1997, 9).

When discussing the land claim, the Inquiry made a number of other comments in relation to Aboriginal attitudes to mining:

"While royalties and the other payments referred to in (b) are not unimportant to the Aboriginal people, they see this aspect as incidental, as a material recognition of their rights ... Our impression is that they would happily forgo the lot in exchange for an assurance that mining would not proceed" (Ranger Uranium Environmental Inquiry 1977, 269).

One of the strongest expressions of Aboriginal concerns to the Fox Inquiry about development pressures in the region was by Silas Roberts:

"We are worried that we are losing a little bit, a little bit, all of the time. We keep our ceremony, our culture, but we are always worried. We still perform our ceremonies. We are very worried that the results of this enquiry will open the doors to other companies who want to dig up uranium on our sacred land. There are so many I find it hard to remember them all but I can remember Ormac, Queensland Mines, Union Carbide, Reynolds Mining, B.H.P. and Pan Continental. We think if they get in there and start digging we’ll have towns all over the place and we’ll be pushed into the sea. We want a fair go to develop. We are human beings, we want to live properly and grow strong" (Roberts 1976, 3).

On 10 May 1976 the NLC’s Ranger Sub-Committee met in Darwin to discuss the draft of this statement. According to unpublished minutes of the meeting the senior traditional owner of the Ranger area, Toby Gangale, stated that he was upset at the use of his land for three reasons:

1. He had not been consulted when exploration commenced.
2. He had not been told of the nature of the exploration and
3. That Ranger Companies had proceeded to build their camp and airstrip without letting him know of their intentions.

The Chairman of the NLC had stressed the opposition to uranium mining at the National Press Club on 10 November 1977:

"Now people are trying to force us to accept that mining, uranium mining, will go ahead. But we insist that we don't want uranium mining" (quoted in Roberts 1978, 141)

Traditional owners of the land in the Alligator Rivers region had also written to Prime Minister Fraser stating:

"We are the traditional owners of Alligator River country. We have had meeting today with the Northern Land Council. We do not want any mining here. If you won't do what we ask then make one mine first and then we will see about the others later. We want to see the national park working first like you promised with Aboriginal rangers before any miners come and start building towns and mines "(Land Rights News, October 1977, 3-4).

In a submission to the Inquiry the Secretary of the Northern Land Council (when it was the Northern Aboriginal Land Committee Inc) explained that while some of the traditional owners of the land on which uranium mining was proposed "do not object to Ranger proceeding ... this is because they feel that it is inevitable" (Wilders, undated, 1).

This was also stated by representatives of the NLC when they appeared before the Inquiry (22 February 1977). The Manager of the NLC Alex Bishaw explained:

"The pressures upon Aboriginal people in that area and around Oenpelli have led them to see mining as probably inevitable just as white people going into the area over the last fifty or so years has been "(Transcript, 22 February 1977, page 12,904).

Justice Fox then asked:

"Well, they in fact see it as inevitable and they don’t therefore wish to maintain any opposition to it. Is that a fair way of putting it or not?" (page 12,905).

Mr Bishaw replied:

"Yes. It was discussed time and time again and there were no direct instructions to, as it were, make a last ditch stand and oppose it" (page 12,905).

The national interest provisions of the Aboriginal Land Rights Act

It is important to understand some of the provisions of the Aboriginal Land Rights (Northern Territory) Act in regard to mining. While many companies have complained about the complexities of the Act and the time delays in negotiating approvals for exploration and mining agreements, the Act does set out clear procedures for mining companies to follow when they wish to use Aboriginal land. The national interest provisions, even though they have never been used, and the arbitration provisions, can be used to override the wishes of traditional Aboriginal land owners under certain circumstances.

Sub-section 40(b) of the Aboriginal Land Rights (Northern Territory) Act states that:

An exploration licence shall not be granted to a person in respect of Aboriginal land unless:

(b) the Governor-General has, by Proclamation declared that the national interest requires the licence be granted.

Section 43 of the Act also deals with the national interest cases. If a Proclamation is issued by the Governor-General then the land council and the applicant have 180 days (or longer if agreed) to try and agree upon the terms and conditions to which the grant will be subject. There is a requirement that the Proclamation be tabled in both Houses of Parliament. The Proclamation can be disallowed by either or both Houses of Parliament (section 48G). While the provisions have never been used the Fraser Government threatened the NLC that it would invoke these provisions in relation to the uranium mines.

When the Whitlam Government introduced the Aboriginal Land (Northern Territory) Bill the Minister (Les Johnson) outlined the Government's view on the national interest provisions of the Bill in considerable detail:

"The Bill also gives Aboriginals the power of veto over mining developments on Aboriginal land, but provides that any such veto may be over-ridden, if such action is required in the national interest and if a proclamation to that effect is not disallowed by either House of Parliament after the proclamation has lain before the House for 15 sitting days. There will, of course, be many interpretations as to what constitutes the national interest. Mr Justice Woodward paid special attention to this term and said it should not be invoked on a mere balance of convenience or desirability but only as a matter of necessity.

I hope that it will not be necessary to invoke the national interest provisions of this Bill, and that with goodwill from all parties - the Aboriginal landowners, the prospective miners, environmental interests and the Government - a reasonable and effective solution can in most cases be found to protect the Aboriginal interests and to meet desirable national development goals. Where such agreement cannot be reached the Government's consideration as to whether the national interest requires the proposed development would need to include an assessment of whether at a particular point in time was vital to Australia, whether the mineral was available elsewhere, or whether it could be left in the ground for future development without irreparable damage to Australia's social and economic development.

Importantly, there is much significance to be placed on Mr Justice Woodward's view that an Aboriginal veto must not be overridden unless the national interest requires that the proposed development proceed. Almost any mineral development could be said to be in the national interest but much more stringent criteria must be applied in an assessment as to whether such a development is required by the national interest. Equally important is the distinction, implicit in the use of this phrase, between the national interest on one hand and sectional interest on the other" (House of Representatives Hansard, 16 October 1975, 2224).

The Labor Government's legislation was not passed. The Fraser Government introduced an amended version of the Bill. The national interest provisions of the Labor Government's Bill were substantially changed and the provision that the Parliament could override the Proclamation was removed. Instead, as the Minister (Ian Viner) explained:

"Where consent is withheld, the Bill provides for an independent inquiry on the basis of which the Government may determine whether the national interest requires that exploration in mining can proceed "(House of Representatives Hansard, 4 June 1976, 3083).

However, this Bill was itself amended by the Government and the national interest provisions were reinserted as they were in the 1975 Labor Government's Bill:

"The provision in clause 41 for an inquiry into whether the national interest requires that exploration or mining should proceed will be deleted and instead the Bill will provide for the tabling of a proclamation of a national interest decision before both Houses of Parliament. Either House will have the power to disallow the Government's decision to override Aboriginal refusal to consent. This change is proposed in response to the many representations by Aboriginal groups and others seeking restoration of the provision proposed by Mr Justice Woodward for parliamentary review of any Government decision to override Aboriginal wishes in relation to mining "(House of Representatives Hansard, 17 November 1976, 2780).

The Labor Opposition (Les Johnson) commented on the Government's proposed amendment:

"One of the most obnoxious clauses of the Government's original Bill - that permitting a secret inquiry into whether mining on Aboriginal land is 'in the national interest' - is to be removed. The new clause, recognising the overwhelming vote of the 1967 referendum to give the Parliament legislative power in Aboriginal affairs, will reinstate that provision in the 1975 Bill which makes any such declaration subject to disallowance by either House of this Parliament "(House of Representatives Hansard, 17 November 1976, 2788).

There are a number of points that can be made about the national interest provisions in the Act. Provisions that enable the Government to invoke the national interest are included many pieces of legislation. Many pieces of legislation give Ministers the power to give directions of statutory bodies "in the national interest". Section 78 of the Australian Broadcasting Corporation Act, for example, gives the Minister the power to give directions to the Corporation "in the national interest".

Sub-section 40(b) of the Aboriginal Land Rights Act, however, states that the national interest requires the licence to be granted. This is not to be taken lightly. It is a stronger statement than simply saying that it is "in the national interest" for the licence to be granted. For the Government to invoke the national interest some very strong arguments are necessary As Senator Cavanagh explained.

"Before a proclamation can be made, national interest must require it; it must be urgent; it must be definite; it must be a requirement for our survival. The important word is 'require'. The national interest must require it "(Senate Hansard, 23 April 1980, 1772).

In an earlier debate Senator Cavanagh had also raised this issue in the context of the debate over the NLC's role in the Ranger negotiations:

"If the traditional owners decide that the land is not to be mined it cannot be mined under any condition unless there is a declaration by the Governor-General on the recommendation of the Government that such mining is in the national interest. But the Government can never declare that this mining is in the national interest. It is not for the defence of Australia. It is not for the protection of Australia. It would be an admission that the Government's economic policy is such that it cannot continue without royalties that could be obtained from mining a dangerous material and exporting that danger to someone else overseas "(Senate Hansard, 17 October 1978, 1362-1363).

The wording of the Act was based on the arguments put forward by Justice Woodward in the Second Report of the Aboriginal Land Rights Commission:

"In this context I use the word "required" deliberately so that such an issue could not be determined on a mere balance of convenience or desirability but only as a matter of necessity "(Woodward 1974, 104).

The national interest has been dealt with in a number of court cases. In the 1995 Federal Court decision on the declaration made by the Minister for Aboriginal and Torres Strait Islander Affairs under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 one of the judges highlighted the serious nature of these matters:

The Act takes as its starting point that there are particularly significant Aboriginal areas and objects which it is in the national interest to preserve. Depending on the nature and extent of the particular significance, that interest may require the subordination both of other governmental interests and of private interests. These are grave issues and it is not reasonable to suppose that Parliament intended a decision upon them to be tossed off at short notice ... they were to be the subject of a full and careful report, made after there had been a true opportunity for participation by all those affected, and involving a personal and informed decision by the Minister.

There is also the fact that it is the Governor-General who makes the Proclamation. Many other Acts give this type of authority to the relevant minister but the Aboriginal Land Rights Act puts the authority in the hands of the Governor-General. While this is largely symbolic it is not without its significance. As the judge commented in the above quote in relation to the Aboriginal and Torres Strait Islander Heritage Protection Act, the decision involves "a personal and informed decision by the Minister". The Governor-General would also, presumably, be required to make a personal and informed decision about whether to override the decision of Aboriginal people.

While not specifically referring to the national interest provisions of the Act, the Minister for Aboriginal Affairs explained that "the Commonwealth had the interests of all the people of Australia in mind when it made its decision" to allow uranium mining to proceed in the region" (quoted in the Northern Territory News, 29 August 1977).

Did an Aboriginal veto apply to the Ranger project?

Under sub-section 40(1) of the Aboriginal Land Rights Act the Northern Land Council, on the advice of traditional owners, can withhold consent to the granting of a mining interest in respect of Aboriginal land. However, the Ranger project was specifically exempted from this provision under sub-section 40(6) of the Aboriginal Land Rights Act. This sub-section says:

If the land, or part of the land, described in Schedule 2, being the land known as the Ranger Project Area, becomes Aboriginal land, subsection (1) does not apply in relation to that land, or that part of the land.

By specifically exempting the project the Government avoided having to invoke the national interest provisions of the Aboriginal Land Rights Act.

The insertion of sub-section 40(6) formalised the situation for the companies. In fact, the Commonwealth Government had already entered into a Memorandum of Understanding on 28 October 1975 with Peko Mines Ltd and Electrolytic Zinc Co of Australasia Ltd to "grant any necessary and appropriate authorities" for the project to proceed.

In the absence of a veto over the development of the project, the NLC and the traditional owners were faced with three options:

• to refuse to negotiate and make Aboriginal rights a big issue;
• to agree to negotiate but on terms unacceptable to the Government; or
• to accept that they had been overruled and try to get the best deal.

As Howitt and Douglas (1983, 71) pointed out, the NLC "basically chose the third strategy". Some of the difficulties confronting the NLC were outlined by one of the NLC’s lawyers, Stuart McGill, in February 1978. The fact that Aboriginal people could not prevent the Ranger mine from proceeding meant that the NLC was placed:

"... in the difficult position that although the traditional owners of the region and the Northern Land Council have continually objected to mining, it is forced into a position where it must write an agreement for mining or else the Government will write the agreement on behalf of the Land Council through the arbitration provisions of the Act. This immediately causes some confusion within the members and staff of the Land Council, because on the one hand, the Council is opposed to mining and on the other hand it is making agreements with mining companies for mining to go ahead. Many people say that you must do one thing or the other but you can’t do both. My opinion is that it is possible to do both although the Council should stick to its basic opposition to mining (subject to the opinion of traditional owners) and only negotiate with mining companies when it is forced to do so "(McGill 1978, 1).

According to McGill, the negotiating strategy of the NLC at the time was to slow down the pace of development. McGill quoted from one of the NLC’s Ranger negotiators, Stephen Zorn:

"If possible, negotiations should result in the indefinite deferral of the project" (quoted in McGill 1978, 3).

Two days after the Government’s announcement that mining would proceed at Ranger the Minister for Aboriginal Affairs, Ian Viner. travelled to Gunbalanya to explain the Government’s decision. He was quoted as saying that:

"I suppose it’s like you and me", Mr Viner said. You would not like a big pit dug in your own backyard, and to them that is what an open pit uranium mine will be. "But they have been informed of what will be involved there. I think like you and me they would probably prefer it didn’t happen, but knowing it will happen they want to be satisfied that proper controls are imposed on mining so it doesn’t harm the physical environment and that the social impact is controlled as much as possible" (quoted in The Sydney Morning Herald, 29 August 1977).

The negotiation of the Ranger mining agreement

Since the Ranger Project Area was exempt from sub-section 40(1), sub-section 43(2) of the Aboriginal Land Rights Act required the NLC and the companies to negotiate a mining agreement:

The mining interest shall not be granted unless the applicant for the mining interest has entered into an agreement under seal with the Land Council containing such terms and conditions as are agreed on by the parties having regard to the effect of the grant of the mining interest on Aboriginals ...

The Minister for Aboriginal Affairs explained the position at the time:

"What has been under negotiation between the Commonwealth and the Northern Land Council has been the terms and conditions under which mining should proceed at Ranger, not whether mining itself should proceed ... the agreement reached between the negotiators reflects, in a very considerable way, the wishes of the traditional owners, especially in such things as protection of the environment and reduction in the social impact of mining" (The Age, 14 October 1978).

What the Minister did not say was that at the time most, if not all, of the traditional owners of the Ranger Project Area, were opposed to the mine proceeding.

Arbitration under the Aboriginal Land Rights Act

If agreement cannot be reached between the Land Council and the mining companies then under sub-section 45(1) of the Aboriginal Land Rights Act the Minister, after consultation with the Land Council and the mining company, can appoint an Arbitrator. If the Land Council does not accept the terms and conditions of the agreement proposed by the Arbitrator, the Minister can enter into the agreement on behalf of the Land Council

From the mining company's perspective, the granting of the land of the Ranger Project Area to an Aboriginal Land Trust removed a considerable degree of uncertainty in relation to the Project. It meant that the provisions of the Aboriginal Land Rights Act would apply. First, there was no veto in the Act in relation to the Project area. Second even if the company and the NLC could not agree on the terms and conditions of mining the Minister could appoint an Arbitrator to determine the terms and conditions. According to Zorn who assisted the NLC to negotiate the Ranger agreement, the Government threatened to refer the matter to an Arbitrator a number of times when it appeared likely that agreement would not be reached by the parties (Sydney Morning Herald 12 August 1978).

The role of the NLC in the negotiation of the agreement

The Commonwealth Government adopted many of the recommendations of the Fox Inquiry in August 1977. One of the recommendations of the Fox Inquiry which was rejected was that the uranium mines in the region should be opened sequentially to minimise the damage to Aboriginal people and the environment. In late 1977 the NLC presented a draft agreement to the Commonwealth in respect of the Ranger project. The Commonwealth responded in May 1978 and negotiations commenced with the NLC on the terms and conditions of the project. The agreement was signed at Oenpelli on November 1978. According to Carroll:

"Ratification of the agreement had originally been given at a full meeting of the Northern Land Council in August, but certain Aborigines took out an injunction to prevent the signing, alleging inadequate consultation with affected communities" (Carroll 1983, 342-3).

Lack of adequate consultation has been a recurring theme throughout the region.

The role of the NLC in negotiating the agreement was severely criticised at the time. For example, Bob Collins, who was later to become Opposition Leader in the Northern Territory and is now a Senator, was very critical of the way in which the agreement was negotiated for the NLC almost single-handedly by Stephen Zorn with little back-up from environmental experts:

"I'm intrigued at how a deal involving such big sums of money was done with such a small negotiating team consisting of one mining negotiator and a solicitor from the NLC who had little background in natural resources legislation" (quoted in The National Times 23 September 1978).

Parsons has documented some of the events leading to the "approval" of the Ranger agreement by the NLC. Only 28 of the 42 members attended the final meeting at Red Lily Lagoon in Arnhem Land (beginning 12 September 1978). Five of the 28 stayed away from the meeting or walked out before the agreement was ratified. Members were "talked to about it [the agreement]" and were told:

"If we don't sign the agreement, Mr Fraser has told me [Yunupingu] he has power to block the Aboriginal Land Rights Act, and that he will stop the funds to the outstations".

"If the Land Council makes a mistake on this question the whole of Australia will know and many people will support those who want to see Aboriginals without land, without any right to make their own decisions, and without a Land Council to represent them" (quoted in Parsons 1978, 137).

According to Parsons:

At the Red Lily Lagoon meeting several speakers complained that the NLC was "just an office of DAA and the government". The councillors wished to speak with the traditional owners, only some of whom were present, so they could satisfy themselves that the traditional owners knew and understood what the proposals meant ... Many Councillors later complained that Yunupingu had put enormous pressure on Toby Gangale, one of the traditional owners and that this lead to Toby later complaining that he was "sick of fighting" against the mining (Parsons 1978, 138).

The Member for Arnhem, Bob Collins was highly critical of the way this meeting was conducted.

Mr Bob Collins produced tapes of the land council's secret meetings last week to support his claim that the ratification of the Ranger agreement was a farce ... On the tapes the chairman of the land council, Mr Galarrwuy Yunupingu, is criticised by several members of the council for acting on his own authority and without consultation with the Aboriginal communities ... "If this paper is signed, it is signed under protest. I'd like to hear you say that. The protest is that we have to agree with the Government. We have been forced to agree. If we don't put that protest in, everybody will say 'Look how easy that was'. The Oenpelli people are under pressure" ...

Mr Collins said the tapes also showed that Mr Yunupingu had told the council meeting they would be in trouble with the ALP and the union movement if they did not sign the Ranger agreement ... Mr Collins said the Aboriginal leaders had been under the mistaken impression that the Government would legislate to change the Act and take everything away from them if they refused. "Theoretically it is possible", he said. "But the Australian people would not stand for this, and in any case the Act provided for a deadlock situation. The Government can take the matter to arbitration if the land council does not sign" (quoted in The Sydney Morning Herald, 19 September 1978).

After the first NLC Red Lily meeting there was, according to Parsons, a "galvanizing of Aboriginal opinion never before witnessed" in the Top End. Legal action was taken against the NLC on the grounds that it had not properly undertaken its functions under section 23 of the Aboriginal Land Rights Act. An interim injunction was granted in the Northern Territory Supreme Court on 19 September 1978 stopping the NLC from signing the agreement. The affidavits of Johnny Marali No 1, Dick Malwagu and John Gwadbu were incorporated into the Senate Hansard (17 October 1978, 1352-1356). The affidavits include the following statements:

Throughout the meeting we were told by Mr Yunupingu that we really had no choice in the matter and that the Commonwealth Government was determined to go ahead. I believed I had no choice but to support the motion and I feel that most of the people who were present felt the same way.

To the best of my knowledge the traditional owners of the land, have not as a group or individually been consulted by the Northern Land Council and as deposed to above they did not in fact speak to the council and Mr Yunupingu refused to allow us to have them address the council, saying that he would look after this himself. I am not satisfied that they have been consulted and from my discussions with other Aboriginals from the Oenpelli area, I believe that the Oenpelli people and the traditional owners are very much against the mine, but have been pushed and pressured so much over the last five or six years, that they realise it is useless to keep saying no, and that for this reason they just do nothing.

I believe that the Northern Land Council has a duty to be satisfied that the traditional owners have consented to the agreement and I am not satisfied that this has occurred.

I do not believe that the traditional owners of the area have been consulted by the Northern Land Council and certainly we at the meeting did not have a chance to speak with them to find out their views. One of the traditional owners Mr Toby Gangali was there for some of the time, but he was not asked questions by the council and I believe that he was asking for help and support from the Northern Land Council because of all the pressure that had been placed upon him.

I believe that from his attitude he felt that future opposition was hopeless although he was very unhappy about what was proposed.

I believe that many of the people felt that if they did not agree then they would simply be pushed and placed under more pressure until such time as they did agree and I believe the majority did not feel that they had carried out their responsibilities to the traditional owners and be satisfied that the traditional owners supported the agreement.

Large community meetings were held in a number of Arnhem Land communities and statements were presented to the NLC on behalf of a number of communities. For example,

"... nobody was allowed at the East Alligator meeting to express that contamination could ruin the land for our future. Milingimbi community feel that (NLC) chairman had the wrong stories he should listen to his own people we don't want to fight against him we just want him to look after our land" (quoted in Parsons 1978, 141).

The stresses on the NLC were such that there were newspaper reports that the organisation might disintegrate (see The Northern Territory News 20 September 1978). The Government accused the ALP of political interference in the dispute about the agreement (which was vigorously denied by the ALP and a number of Aboriginal leaders). The Country-Liberal Party member for the Northern Territory strongly supported the NLC Chairman for his "courageous stand which included the sacking of one of the NLC’s white advisers [Stuart McGill]" (quoted in The Northern Territory News 21 September 1978). The Minister for Aboriginal Affairs (Viner) flew to Darwin for discussions with the Chairman of the NLC. The Minister:

"... declared that not only the future of uranium mining but that of Aboriginal land rights legislation was at stake "(Australian Financial Review, 21 September 1978).

One newspaper article was headed:

Viner tries to save Territory black council (Courier Mail, 21 September 1978).

Following negotiations between those opposing the signing of the Ranger agreement and the Chairman of the NLC, a 9 point agreement was lodged with the Supreme Court. Significantly, the first point was that a process needed to be established to ensure that the NLC properly undertook its functions under sub-section 23(3) of the Aboriginal Land Rights Act (Australian Financial Review, 26 September 1978).

It was reported that a meeting of 40 traditional owners at Gunbalanya in early October had told the NLC that they did not accept the draft mining agreement. According to newspaper reports 12 of the traditional owners "spoke at length on their dissatisfaction with the present agreement".

Mr Toby Gangale said yesterday: "I don’t like that agreement. I wish it would go away for six months ... I wish it would go away for five years" (The Northern Territory News, 12 October 1978).

Further, it appears that the NLC did not adhere to the terms of the agreement to stall the Supreme Court action. A meeting of the NLC executive was held at Bamyili near Katherine (1-2 November 1978) where the members were not told by the Chairman that the agreement would be signed. The executive was told that the NLC still had to undertake further consultations as a result of the 9 point agreement.

Harry Wilson said "If we accept that agreement now will the lawyers still go out to consult with the communities". Galarrwuy: "Yes. They will still go out to consult. It will be up to the traditional owners to say yes or no to that agreement". The people, including me [Leo Finlay] accepted that the consultation was going to continue. So people put up their hands and someone said, "well, that's ok. If the consultation is going to go on then we can accept it. I voted against it and so did Gordon Lansen. We didn't put up our hands. Galarrwuy asked "what about you Leo?". I said, "no, I won't accept it". I knew it was a trick. Everyone else put their hands up (National U, Special Supplement, November 1978).

The executive flew to Oenpelli with the Minister for Aboriginal Affairs on 3 November 1978 for the formal signing. One member (Leo Finlay) who attended the meeting publicly stated that he was not aware that the agreement was to be signed at Oenpelli by the NLC.

"We thought we were going to the airport, but we went to the office and saw the agreement all set to be signed. That was a big shock to me. A lot of people signed and a platinum pen was handed to everyone. I refused to accept one ..." (National U, Special Supplement, November 1978).

Other newspaper reports suggested that the signing of the agreement was a "surprise":

Gold pens with the inscription "Ranger 1978" were distributed to members of the NLC Executive ... Interpreters in a number of Aboriginal communities were still working on translations of the agreement when the signing was announced in Friday ... Instead of following the machinery for ratification foreshadowed by the Land Rights Act - that the traditional owners recommend signing to the NLC - Mr Viner, Mr Yunupingu and executive members of the council flew to Oenpelli on Friday to inform traditional owners that the NLC had recommended the signing of the agreement. The traditional owners of the Ranger site accepted the recommendation and the gold pens were distributed (Australian Financial Review, 6 November 1978).

According to newspaper reports, the mining agreement was signed by Mr Viner, Galurrwuy Yunupingu, Dick Malwagu and John Gwadbu. The Kakadu National Park lease agreements were reportedly signed by Mr Yunupingu, Toby Gangale, Marjorie Mundaimi, Professor Derek Ovington (Director of ANPWS) and Mick Alderson (The Northern Territory News, 6 November 1978). In a joint statement Mr Viner and Mr Yunupingu stated that the signing was "an historic and significant occasion" and the mining agreement "marks the first of its kind ever signed by an Aboriginal body independently and in the interests of Aborigines with respect for their traditional land" (quoted in The Northern Territory News, 6 November 1978).

The historical evidence suggests that many people were concerned that the NLC did not properly undertake its functions under sub-section 23(3) and Part IV of the Aboriginal Land Rights Act. In the end, when the agreement was finally signed, the evidence demonstrates that the NLC did not act on the instructions of the traditional owners. Stephen Zorn, who was one of the negotiators of the agreement, wrote to the Chairman of the NLC arguing that "Mr Yunupingu and the NLC staff had pressured members to ratify the Ranger agreement".

"There was indeed pressure, and there was not the sort of real, effective consultation that is required both by Section 23 of the Land Rights Act and by ordinary common decency", Dr Zorn said ... "For all of these reasons, I think it quite reasonable for people to conclude that the NLC leadership and staff, pushed, it is clear by the Commonwealth government, have created a situation in which many Aboriginals are not satisfied they have had adequate time", he said (quoted in The Northern Territory News, 30 October 1978).

According to Leo Finlay, only a few of the traditional owners were present at the meeting:

"[Yunupingu] never once said the agreement was about to be signed. He never asked even the Oenpelli owners who were there if they agreed to sign the agreement. He just told them that they had heard the traditional owners ie. the one who come with NLC. The people from the community did not say a word. They just sat there. The agreement was never discussed with them. They were never asked their opinion of it" (National U, Special Supplement, November 1978).

The agreement was signed on Friday 3 November after 6 years of discussion. Leo Finlay was publicly critical of the process:

"The Ranger agreement was signed with lies and trickery, a prominent member of the Northern Land Council said today. Both the Minister for Aboriginal Affairs, Mr Viner, and the NLC Chairman, Mr Galarrwuy Yunupingu, continually misled council members and the traditional owners, Borroloola delegate Mr Leo Finlay said. Aborigines had no idea the uranium mining agreement was to be signed last Friday until they saw the Ranger documents waiting for them, he said ... The process of consultation which had been promised with the communities has never taken place. From the time that we agreed to stop the court injunction we have been lied to and tricked by the Government, the NLC chairman and his manager" (Northern Territory News, 10 November 1978).

The senior traditional owner, Toby Gangale, when he was finally asked to speak, was quoted as saying:

"I've given up. It's been six years now. I'm not fighting anymore" (National U, Special Supplement, November 1978).

But the Chairman of the NLC was quoted as saying that:

"... the signing of the agreement had unified the Aboriginal people. "The position of the land council has been strengthened" ... His own position as chairman of the NLC had also been strengthened" (The Canberra Times, 4 November 1978).

It is hardly believable given the concerns expressed by so many people about the role of the NLC in the negotiations over the project that the NLC Chairman could say at the ground breaking ceremony for the Ranger mine on 11 June 1979:

Through it all the Northern Land council watched the interests of Aboriginal people.

In a related issue, Parsons concluded his article by expressing another concern that no one was discussing with Aboriginal people how they could secure a more independent economic future other than from mining royalties. Aboriginal people were told that mining would provide employment and funding to enable them to pursue a range of social and economic opportunities. He believed that it was essential that Aboriginal people be provided with a range of alternatives. In retrospect this issue remains one of the most critical in the region today.

While the Ranger agreement could have been challenged at the time, and indeed there were threats to do so (see Adelaide Advertiser 6 November 1978), the amendments to the Aboriginal Land Rights Act in 1980, which were themselves introduced because of legal challenges to the NLC's role in the Nabarlek agreement, make legal action much more difficult. However, a challenge was finally undertaken in October 1985.

The mid-1980s NLC legal action

In October 1985 the NLC commenced legal action against the Commonwealth Government and the Ranger project operator ERA. The NLC argued that the 1978 Ranger agreement was invalid because it was signed "as a result of duress, undue influence and unconscionable conduct by the Commonwealth" (quoted in The Australian, 29 October 1985). The NLC intended to claim that as much as $200 million had been lost to Aboriginal interests because of the "grossly inadequate payments by comparison with mining agreements in other countries and the modest annual payments for the life of the contract (20 years) are not indexed for inflation" (quoted in The Northern Territory News, 28 October 1985).

The Chairman of the Northern Land council, Mr Galarrwuy Yunupingu, said: "We have grown up a lot since those days when the Fraser Government used all of its expertise and pressure to have the agreement signed. The NLC and the traditional owners from Kakadu can now stand on their own feet" (quoted in the Sydney Morning Herald, 29 October 1985).

A mediation package was presented to the traditional owners in September 1994 but the was not acceptable to the traditional owners. The proceedings were subsequently discontinued because the NLC did not believe it could obtain funding to conduct the case.

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