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Wednesday, 13 June 2007
Page: 22


Mr ANDREN (10:29 AM) —The Aboriginal Land Rights (Northern Territory) Amendment (Township Leasing) Bill 2007 follows on from the Aboriginal Land Rights (Northern Territory) Amendment Bill 2006, which the parliament passed last year, as the previous speaker said, after a very truncated debate. That bill is now law. It effectively rode roughshod over the remaining rights of traditional owners of Aboriginal land in the Northern Territory. Until that bill passed, those who actually legally owned the land we are now talking about did so under a land rights title as inalienable and equivalent as freehold title, with the same legal rights to speak up about that land, to give or withhold an informed consent before others had any use of that land. The difference is that this land, whilst equivalent to freehold title, is held collectively by those whose ancestors were also communal custodians of that country for millennia—a collective ownership that this government would deem as some sort of failed socialist experiment. But who has failed whom? Aboriginal land rights, in the original bill introduced by the Whitlam government in 1975 and passed by the Fraser government in the same year, finally acknowledged the dispossession inflicted upon the traditional owners and recognised the importance of ancestral country to the cultural, social and spiritual lives of the people living on it.

But last year the government, under 99-year lease provisions and the withdrawal of the permit system under the legislation, set about dismantling Aboriginal control of Aboriginal owned land and constructed a framework that clears away Indigenous impediments to opening up the land for others to access and exploit under the banner of economic development. This current bill, the Aboriginal Land Rights (Northern Territory) Amendment (Township Leasing) Bill, sets up a Commonwealth entity to hold and administer those 99-year headleases and ensuing subleases until the Northern Territory gets its act together to take over that role, as originally planned. The bill does not otherwise change the provisions in last year’s legislation. It does not seek to ensure that traditional owners retain some sort of say over their land under any leases. It does not commit any accountability by those lessees to the owners and their communities. It does not provide any proviso that use of the land by others must provide a benefit to the owners and the communities to remain permissible. Thus I can only reiterate my dismay at the provisions of the legislation this bill represents and the shame we should all feel at the failure to honour the rights of Indigenous communities to good health, to adequate housing, to self-determination and to the right to maintain a final say over their own land—rights most other Australians expect and enjoy. Yet here we have the Minister for Families, Community Services and Indigenous Affairs threatening to withdraw an already allocated $9.5 million for new housing at Wadeye unless the community signs away control of their land with a 99-year lease. We have a minister demanding the signing of a 99-year lease by the Tiwi Island community if they want a secondary boarding school to be built.

What is the trade-off that Aboriginal communities are being asked to make in return for such leases, for a few houses that should have been provided by government anyway, for a school that should have been built and maintained with government help, for any outsider with an eye for a profit to stake their own claim and reap the resources as they wish? For years, governments have crafted the message that communal ownership is the cause of the terrible breakdown of, and poverty in, some Aboriginal communities. Now this government postulates somehow that all that is needed is for the people affected to borrow money to buy their own homes. How is this supposed to happen, this brave new world offering better prospects and hope for the future, as the minister so confidently decreed, especially with the government’s stated intention to withdraw services from smaller, isolated communities?

The changes start with the land councils, which service the land trusts that passively hold the community owned land for the benefit of Aboriginal people entitled by tradition to use or occupy the land. Land councils, larger regional statutory corporations, service the land trusts by representing the interests of traditional owners and other Aboriginal people with traditional interests in that land. The councils also provide administrative support to the trusts and the professional skills needed to carry out the substantial obligations they have. If someone wants to use the land, the relevant land council conducts negotiations with the traditional owners, with those affected by the proposal and with the proponents. The land councils must respond to the views of the traditional Aboriginal owners. The councils must also use traditional or other agreed processes to allow those owners informed collective consent. When a proposal is agreed to, the land council then directs the land trust to enter an agreement.

When you consider that many traditional owners do not speak or read English, the substantial difficulties imposed by the incredible isolation of many of these people and the very different world views and concepts understood by all parties, it is clear how important and huge a task this is for the land councils. Indeed, it was a point made clearly to me by Richard Trudgen, the author of Why warriors lie down and die. I urge members to read that book. He oversaw the complete collapse of many communities because their ability and right to make decisions for themselves had been taken over by imposed contracts from outside and the fact that no attempt was made, except in very exceptional circumstances, to develop any proper understanding of the cultural mores and the languages of some of those remote communities. In fact, their own land councils were imposing dictates on them that did not have the support of the traditional owners.

Under this proposal, a land council could lease to the Northern Territory government, or in the case of this bill, the Commonwealth, the whole of a community or township on Aboriginal land for 99 years. That is quite a few generations. These headleases would be controlled by government, removing any semblance of ownership by the legally recognised traditional owner. Here the process of setting up a new land trust, with its associated land council, without the checks and balances that are so necessary, needs to be remembered. I refer to the words of Tom Calma, the Aboriginal and Torres Strait Islander Social Justice Commissioner, who in a speech in May 2007, barely a month ago, said:

Overall, while it is commendable that the Australian Government has made efforts to improve outcomes for remote Indigenous communities, HREOC’s research demonstrates that the current reform agenda will not provide benefit to the vast majority of remote Indigenous Australians. In fact it has potential to do great harm.

And he lists several of the reasons:

·               Basic economic modeling demonstrates that the Australian Government’s expanded home ownership scheme will be out of reach of the majority of remote Indigenous households ...

·               The home ownership scheme will transfer the considerable costs of remote housing maintenance to Indigenous people on low incomes ...

·               International experiences demonstrate that individualising Indigenous communal tenures such as those proposed through the 99 year headleases leads to the loss of Indigenous owned land ...

·               Most Indigenous land tenures are located in very remote desert country, distant from markets and infrastructure to support enterprise development ...

It begs the question: is this some part of a modern version of herding people to the fringes of larger towns to put in place these processes—social engineering to get rid of remote communities in order to build larger urban centres? A substantial number of remote Aboriginal communities are situated off Aboriginal land, on Northern Territory freehold land, over which no leases can be granted except for very limited non-commercial and non-residential purposes, and only with the approval of the Northern Territory minister. Why, then, is the Northern Territory not permitting leases which would permit economic development of Aboriginal communities located on Northern Territory freehold land?

To disingenuously suggest that land councils and, by implication, traditional owners, are not allowing economic development ignores those major developments that have already occurred under the previous version of the land rights act and long-term leasing arrangements available within it. After all, as far as I have been able to establish, there are much more large-scale economic developments—long-life mines and railways such as the Alice to Darwin on a 99-year lease—on Aboriginal land than off it in the Northern Territory.

However, the Goldfields Land Council executive director, Brian Wyatt, says that in the south-east mining region of Western Australia, the mining boom is passing the locals by. He states:

... hundreds of medium and small land-use agreements between Aboriginal people and mining parties exist in the Goldfields, but few have translated into jobs or skills training.

The Argyle mine is often quoted as an excellent example of what can be done in providing job opportunities to Indigenous people. It is given as an example ad nauseam. But these statistics that Wyatt spells out, I suggest, tell a truer story. Wyatt estimates:

... only about 50 Aborigines out of an indigenous population of about 3000 are employed in the mining sector.

A Griffith University study of 45 Indigenous land use agreements found that, 15 years after the Mabo decision, most land use agreements between native title claimants and mining companies had failed to deliver significant outcomes for Indigenous people. We now see this undermining of the traditional ownership of this land and the opening of the door, if you like, for exploitation of this very land by non-Indigenous interests.

As for individual housing, section 19 of the current act already allows a land trust to grant a specific interest in land for an Aboriginal family. This is not about homeownership; this is not about improving the health and welfare of Northern Territory Aboriginal people or building opportunities for the future; this is not about recognising the rights of the traditional owners and the aspirations of the communities that live on Aboriginal owned land, and further supporting and strengthening those mechanisms which are all about ensuring that recognition, negotiation and informed agreement are part of the deal. With the concurrent removal of the permit system which controls the access by others to land and communities, this bill is about opening up economic development for others and removing the owners of the land from the equation—perhaps forever.

The final insult is that the cost to implement this brave new world—some $15 million over the next five years for surveying and valuations et cetera—will be borne by the Aboriginals Benefit Account, diverted by both governments—Northern Territory and Commonwealth—from economic development and land management projects on Aboriginal land. This piece of legislation is summed up by the concluding comment in the Bills Digest:

... there is no legislated requirement for the Executive Director to undertake ongoing consultation or negotiation with traditional landowners or Land Councils regarding management of their land, once the headlease is agreed.

I reject this bill and call on the opposition to seek a division on it—not to hide from calling this government and this minister to account regarding its renewal of paternalism and assimilation as foundations of its approach to what it would see as simply ‘the Aboriginal problem’.