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Court endorses Rio Gove Agreement

Posted: Wed, February 05, 2014

JUSTICE KENNY

THE Northern Land Council’s (NLC) negotiations under the Land Rights Act which led in May 2011 to the lease and royalties agreement between traditional Aboriginal owners at Gove and Rio Tinto Alcan (RTA) have been effectively endorsed by the Federal Court.

In the Federal Court, Dr Djiniyini Gondarra, for a group of clans known as the Dhurili Nation, challenged the decision of Federal Indigenous Affairs Minister Jenny Macklin to consent to the lease and approve the agreement.

The lease by the Gumatj, Rirratjingu and Galpu clans facilitates the disposal of red mud and other effluent from RTA’s bauxite refinery at Gove.
Dr Gondarra’s legal challenge was heard over five days in March 2013 in the Federal Court at Melbourne before Justice Susan Kenny. She dismissed the challenge on February 3 this year.

Dr Gondarra claimed that the Minister could not have been properly satisfied that the NLC had complied with its duty to consult with the traditional Aboriginal owners and other Aboriginal people interested in the land under lease.

Dr Gondarra has long disputed the ownership of the land known as the red mud ponds.

His claim to be a traditional owner has equally long been rejected by the NLC, for reasons which include its basis of matrilineal descent.

The NLC’s position, based on anthropological research, has been that Yolngu clans, in particular the traditional Aboriginal owners as defined in the Land Rights Act, are organised on the basis of patrilineal descent. 

In court, Dr Gondarra did not, in fact, challenge the NLC’s position, but Justice Kenny said it was clear, from correspondence between lawyers for Dr Gondarra and the NLC, that his claim was “substantially about the lack of consultation (by the NLC) of his group (the Dhurili Nation) in their supposed capacity as the traditional Aboriginal owner”.

“… if Dr Gondarras’s group had been recognised as the traditional owner then this would have been a tenable complaint; but his group was not so recognised and the complaint was not therefore sustainable.”

Rather, Dr Gondarra was consulted by the NLC as an Aboriginal person who had an interest in the land and was potentially affected by the agreement and the lease.

Of those consultations, Justice Kenny said there was “simply no evidence that Dr Gondarra and his group were not told sufficiently what was proposed”.

“It was also apparent that Dr Gondarra and his group had ample opportunity to present their views,” she said.

Justice Kenny referred in her judgement to the “substantial autonomy” of land councils.

She rejected the notion, advanced by lawyers for Dr Gondarra, that the Minister for Indigenous Affairs had a supervisory role when land councils negotiated agreements.

That, the judge said, “is apt to conceal both the role and expertise of land councils, and the amenability of their processes to judicial supervision”.
It would also allow an Aboriginal group to re-agitate an unfavourable land council decision before the Minister.

Justice Kenny rejected all the grounds of Dr Gondarra’s case, including the proposition that he had been denied natural justice or procedural fairness.

Timeline of events
1969 - Gove operation starts.
1972 - Bauxite mining begins: 900 employees, 600contractors.
1976 - First Gove Agreement (expiring 29 May 2011, no right of renewal).
2007 - Commissioning of $3 billion expansion of alumina refinery.
2008 - Consultations and negotiations begin for new lease.
2011 - On 26 May, Minister Macklin approves new lease and royalties agreement.
2013 - In March, legal  challenge to Minister’s approval heard in Federal Court, Melbourne.
2014 - In February, court dismisses legal challenge.