Woodside case shows potential power of the Voice

Indigenous woman Raelene Cooper has succeeded in using the Federal Court to block seismic works at Woodside Energy’s Scarborough gas project.

The brilliance of the legal minds that crafted the Uluru statement which led to the referendum proposal has been confirmed in the Woodside case — which appears to have set a precedent that will help the voice body to develop powers of “consultation” and “consideration” to clog Canberra decision making.

The “clogging” process is a potential first step to achieve the reparations referred to in the Uluru statement that came out of the 13 Aboriginal and Torres Strait Islander meetings.

Many will argue that, if possible, Woodside should have tried harder to pay the price for approval from Indigenous stakeholders, rather than go to court.

The skills among the legally educated in that case are in contrast to the ignorance shown by Australia’s top corporate boards who do not appear to have realised that the Yes case they are funding will likely create the powers of “consultation” and “consideration” able to do to the federal government what has been done to Woodside.

If money from the big corporate miners, led by BHP, Rio Tinto and, incredibly, Woodside delivers a Yes victory then miners are more likely to be lashed with more Woodside style blows.

As I have written many times, a Yes vote will enable Aboriginal and Torres Strait Islanders to form a body that will have the power to make representations to both the parliament and the public service on just about any issue.

While the power of representation does not involve decision making, because the right to representation would be enshrined in the constitution, the parliament and particularly the public service will need to undertake detailed consideration and consultation of every issue raised.

In the Woodside affair one of the drivers of the case, Raelene Cooper, who has made submissions to the UN about Indigenous rock art, defines “consultation” as “a process where both parties are informed of what activities, what responsibilities, what their obligations are, and what their projects are entitled to and what they are actually doing, so the other parties can then contribute their information and consult with all parties and allowing them to hear the concerns and the issues that individuals may have”.

Just what level of consideration and consultation will need to be applied to representations from the voice body will be determined by the High Court, but if we apply the Cooper definition of “consultation” to, say, 10,000, or 20,000 public service issues where the voice may make representations then the governmental process grinds to a halt.

As we saw in the Woodside case, once a court considers the “consideration” and/or “consultation” has been inadequate then any issue will take a long time to resolve.

Accordingly, given the voice body appears certain to have the power to “clog”, that power means that in many cases its representations will effectively become demands. Most will be granted rather than going through long court battles.

The bulk of the corporate money to promote Yes will be spent in the next two weeks so it is too early to declare that the No vote will succeed, as indicated by the opinion polls.

Suddenly for non-Indigenous Australia, given the enormous power that will be created if the Yes vote wins, it becomes important for the nation to understand just who is entitled to be counted as Aboriginal and Torres Strait Islander.

Here I am grateful for an opinion prepared by Malcolm McCusker, KC, who is a former governor of WA. His conclusions reveal great uncertainty on the issue.

McCusker points out there is no definition in the proposed new constitutional section as to who are Aboriginal and Torres Strait Islander people.

In the Franklin River dam case reference was made to people of “Aboriginal race” but “race” was not defined.

A former ALP government minister, Gary Johns was recently the subject of a vitriolic attack when he suggested there may need to be a DNA test of anyone claiming to be of Indigenous ancestry. He was branded a racist.

In any case, it is doubtful if a DNA test would be practical in law.

The closest we get to clarity comes in the Love case of 2020 when the High Court set out what it called a “tripartite test” but did not resolve the issue with a definition determination.

Test one in the “tripartite test” was “Aboriginal descent”. This cannot be based on skin colour or DNA and it is not necessary to prove that one’s entire ancestry is Aboriginal. One distant ancestor is enough.

Test two is “self identifying”. McCusker asks whether this test involves a person observing the traditional ways, customs and lifestyles of a specific tribe or community or is it enough to pass this test by simply asserting that you consider yourself to be an Aboriginal.

Test three involves recognition of a person by elders of a tribe or community to which the person claims to belong “or by other persons enjoying traditional authority among those people” But how is this proved?

Only people who are declared Aboriginal or Torres Strait Islanders can be appointed or elected to this incredibly powerful Voice body but there is no clear definition of who fits into this racial classification.

Accordingly, it may leave open the possibility of court challenges on the grounds that he or she is not truly Aboriginal because they fail to meet one or all of the three tests – tests that have uncertain meaning. But anyone whose claim to be an Aboriginal or Torres Strait Islander person is rejected, may conceivably appeal under the Racial Discrimination Act.

Membership of the Aboriginal and Torres Strait Islander races is clearly not clear cut and could be the subject of long court cases if financial rewards are involved.

McCusker says that in the 2021 census 812,728 people identified as being Aboriginal, an increase of 22.5 per cent over the five years since the 2016 census.

They represented 3.2 per cent of the total population of Australia. There are at least 250 to 300 tribes with different customs and different language groups.

McCusker says about 35 per cent of Aboriginal Australians live in major cities and 45 per cent in regional areas. About 20 per cent live in so called remote communities, so most people identifying as Aboriginal live in urban areas with many living lifestyles not dissimilar to the rest of the Australian population.

McCusker quotes the famous remarks of the Prime Minister of Australia in January 1988, the late Bob Hawke, who said that in Australia “there is no hierarchy of descent; there must be no privilege of origin”.

McCusker concludes the Voice body creation, if approved, will be directed only to people of Aboriginal or Torres Strait Islander descent — so which ever way it may be presented by its advocates this proposal is “race based”.