Land rights under threat

With the Howard Government set to gain control of the Senate from July 2005, the prime minister has foreshadowed the winding back of Aboriginal land rights through undermining the communal basis of traditional land ownership in favour of private ownership rights.

The Federal Government can do this in the Northern Territory because the Aboriginal Land Rights Act (Northern Territory) 1976 (the ‘Land Rights Act’) is Commonwealth rather than Territory legislation. It can also amend the Native Title Act. However, the Federal Government cannot alter state land rights legislation. (Coincidentally, reviews of state land rights legislation are currently occurring in NSW and SA).

The prime minister's move on land rights followed comments by Labor’s Incoming Vice-President and member of the Federal Government’s appointed National Indigenous Council, Warren Mundine, arguing for changes to Aboriginal land rights because the communal nature of Aboriginal land title was “retarding our economic development” [1] because the land could not be bought and sold. [2]

Others, including Minister Vanstone, have taken up the argument that land rights legislation (which establishes communal title), has been a cause of Indigenous poverty and disadvantage. The so-called "land rich - dirt poor" argument is an unfounded though appealingly-simplistic new line of attack on land rights by those who have long believed that land rights and economic development are mutually exclusive.

The prime minister shaped the new line of attack in comments he made while visiting the remote Aboriginal community of Wadeye in the Northern Territory, on April 6:

“I believe there is a case for reviewing the whole issue of Aboriginal land title, in the sense of looking more towards private recognition … I certainly believe that all Australians should be able to aspire to owning their own home and having their own business.”

This approach focused discussion on the seemingly uncontroversial proposition of individual home ownership. A mooted solution, later included in a paper by Warren Mundine for the National Indigenous Council, proposed a system of 99-year leases, as occurs in the ACT. This would preserve the underlying title for traditional owners, we were told. However, this can already be achieved through the existing land rights legislation.

Indigenous leaders were quick to respond, seeing the move as a blatant and cynical first step in watering down the Land Rights Act and reducing the powers of the Land Councils.

Former Social Justice Commissioner, Professor Mick Dodson, suspects that Howard is “trying to get rid of communal ownership” and undermine “the capacity of traditional owners to say no”, pointing out that there is already provision in the Land Rights Act for long-term leases from traditional owners. [3]

Similar sentiments were expressed by former Northern Land Council Chairman, Galarrwuy Yunipingu, who sees the attacks on communal title as “a Trojan Horse to attack Aboriginal rights and land councils”. He points to the many commercial developments on Aboriginal land under current legislation, “including leases for mining, the Alice Springs-to-Darwin railway, wharves, defence housing, utilities, stores, pastoralism, safari hunting, tourism, horticulture, pearling, fishing, aquaculture and crabbing”. [4]

Noel Pearson also questioned the linking of home ownership with land rights, stating, "The concern from the indigenous community that I'm hearing is that the legitimate issue of home ownership might be used as a Trojan horse for a reallocation of land rights -- a taking of rights away from Aboriginal people." [5]

The home ownership issue is largely a furphy used to raise the prospect of amending land rights legislation. In Wadeye, where the issue was raised by the prime minister, the Northern Land Council was already discussing with the community ways of introducing leasing arrangements. Following Mr Howard's comments, Wadeye traditional owners issued a statement calling for a “public and private” housing scheme” without amending the Land Rights Act. [6] The Central Land Council has also proposed simplifying leasing arrangements without changing the Act. [7]

Meanwhile, others have sought to make the point that it is Government policy (including underspending in critical areas such as health, housing and employment) - and not land rights - that has most contributed to Indigenous poverty and disadvantage. Indeed, in the very community of Wadeye where the prime minister made his controversial comments, recent research has shown the effects of underspending by both the Commonwealth and Territory governments. [8]

Aboriginal and Torres Strait Islander Social Justice Commissioner, Tom Calma, expressed concern that the communal/private debate has been over-simplified and that land rights legislation 'already provides a range of options which allow Indigenous people to lease their land to third parties'. [9] He also cautioned that the debate was failing to address other important issues, such as other opportunities for generating economic development on traditional lands and the spiritual and cultural importance of land to traditional owners.

Critics believe the Government is more interested in weakening the powers of traditional owners and the land councils over what occurs on Aboriginal land. This will enhance access by mining companies and other non-Indigenous commercial ventures, potentially against the wishes of traditional owners or under conditions detrimental to their interests.

Given this and John Howard’s antipathy towards land rights and the land councils, there are good grounds for suspicion about Howard’s real intentions in seeking to amend the Land Rights Act. The mooted changes reflect the assimilationsit approach taken by the Government with the recent abolishing of ATSIC and changes to Indigenous affairs based on 'mutual obligation'.

The prime minister sought to allay fears in a recent speech at the National Reconciliation Workshop. He said that his government was:

" committed to protecting the rights of communal ownership...And...that the Government does not seek to wind back or undermine native title or land rights. Rather we want to add opportunities for families and communities to build economic independence and wealth through use of their communal land assets." [10]

Unconvinced, Native Title Representative Bodies subsequently issued a joint statement urging the abandonment of the 99 year lease proposal. The National Indigenous Council, which met shortly after the statement was issued, issued its own Indigenous land tenure principles which canvassed the use of 'involuntary measures' where traditional owners 'unreasonably withheld' a request for a lease. The NIC also urged all governments to review and amend their land rights arrangements in line with the NIC's principles. A critique of the NIC's land tenure principles can be found here.

ANTaR will be following the issue closely and will provide updated information as it comes to hand. Check this website for details.

References

1. Indigenous groups debate role of land ownership, ABC “PM”, 6 Dec 2004. Back to text
2. Meaghan Shaw, 'New native council 'dangerous'', The Age, 7 December 2004. Mr Mundine has since clarified his comments, arguing against a re-think on communal title as the Prime Minister has suggested (ABC World Today, 7 April 2005). Back to text
3. Ashleigh Wilson and Amanda Hodge, 'PM’s new deal for blacks', The Australian, 7 April 2005. Back to text
4. Galarrwuy Yunipingu, 'Turning back the clock for Aborigines', Sydney Morning Herald, 11 April 2005. Back to text
5. 'Pearson warns PM on home title fears', The Australian, 14 April 2005. Back to text
6. Ashleigh Wilson and Amanda Hodge, 'PM’s new deal for blacks', The Australian, 7 April 2005. Back to text
7. Michelle Grattan, 'Howard tilts at title fight', The Age, 10 April 2005. Back to text
8. National Indigenous Times, 14 April - Arthur's tale: the real story behind Wadeye. See also here>>.  Back to text
9. Tom Calma, 'Land rights debate has been simplistic', National Indigenous Times, 12 May 2005. Back to text
10. Hon. John Howard, Address to the National Reconciliation Planning Workshop, Canberra, 30 May 2005. Back to text