A History of Duress – A GAC Research Project
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
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
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
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:
- He had not been consulted when exploration commenced.
- He had not been told of the nature of the exploration and
- 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
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
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
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
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
"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
"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
"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
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
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
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
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
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
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
"... 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
"... 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
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
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
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
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
"[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
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
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.