Warren Snowdon (Lingiari, Australian Labor Party, Shadow Parliamentary Secretary for Northern Australia and Indigenous Affairs) Share this | Hansard source

We have just seen another travesty of democracy in this place with the government gagging the Aboriginal Land Rights (Northern Territory) Amendment Bill 2006. I know that Aboriginal people who are my constituents in the Northern Territory will be shocked and amazed that this government would not allow a proper debate for this very important piece of legislation—a historical debate, as it will be. I will move a second reading amendment at the end of this speech.

A week or so ago, I visited a number of Indigenous communities across the Top End of the Northern Territory. In each of these communities, I held meetings with traditional owners, council members and other individuals. Those meetings were held right through Arnhem Land. At those meetings, people expressed their frustration, their anguish, their concern and their hurt at the way the Commonwealth government has imposed its agenda for change without any reference to them and at the way they have been demonised by the media, largely at the behest of the government and without any opportunity to properly respond or have their voices heard. They are deeply concerned that the government feels absolutely no compulsion to sit down and talk with them, let alone to consult or negotiate with them; that the government shows them no compassion; that it shows no knowledge or understanding of their cultural values or priorities; and that it shows no knowledge or understanding of the cultural differences that exist across Indigenous Australia and of the different historical experiences that different communities have suffered.

David Martin, a fellow of the Centre for Aboriginal Economic Policy Research at the Australian National University, has spoken about the ‘new direction’ in federal Indigenous affairs policy. This is quite a lengthy extract, but I think it gives a very good description of where we are in the context of debating Indigenous affairs policies in this country at the moment. He argued:

Much of the support for the new policies is predicated on the ... assumption that Indigenous people naturally desire the lifestyle and values which correlate with economic integration, or that if they don’t, a carrot and stick approach can be used to achieve it. However, the evidence shows that while many ... do indeed seek to take advantage of better economic opportunities, and while cultural change is a feature of all societies ... there is a widespread resistance amongst Indigenous people to what they see as attempts to assimilate them into the dominant society—

economically and socially. He went on to say:

... my unease is because the debate is conducted with such a vitriolic and unnecessary demonisation of what has gone before ... with a complete disregard for what I would see as the lessons of history in Aboriginal affairs; and most importantly with an all too common disregard for the diverse views, values, and aspirations of the Aboriginal people at whom the new policy apparatus and its ideological underpinnings are directed.

Except when the latest instance of horrific dysfunctionality in the Aboriginal world is brought forward to illustrate the need for profound change, or when the views of the new Aboriginal political elite are given prominence in the legitimating discourse around proposed policy directions, Aboriginal people themselves are conspicuously absent from the discussion ... the new policy frameworks ... are essentially empty vessels, if rather chipped and cracked ones, into which the new array of more socially functional values is to be poured.

From my own observations and experience I think that is a very apposite and fair comment on where we are currently, and it expresses the frustration felt by so many I have spoken to. It is important that there is an appreciation of this backdrop as we debate proposals to amend the Aboriginal Land Rights (Northern Territory) Act 1976, which has now been operating for 30 years. The land rights act flowed as a direct result of the Woodward royal commission, initiated by the Whitlam government in 1973 to inquire and report into ‘the appropriate means to recognise and establish the traditional rights and interests of the Aborigines in and in relation to Land and to satisfy in other ways the reasonable aspirations of the Aborigines’ rights in or in relation to Land.’ It is worth reflecting for a moment on five things that Justice Woodward identified as the aims of recognising Aboriginal land rights. He said:

• The doing of simple justice to a people who have been deprived of their land without their consent and without compensation.
• The promotion of social harmony and stability within the wider Australian community by removing, as far as possible, the legitimate causes of complaint of an important minority group within that community.
• The provision of land holdings as a first essential for people who are economically depressed and who have at present no real opportunity of achieving a normal Australian standard of living.
• The preservation, where possible, of the spiritual link with his own land which gives each Aboriginal his sense of identity and which lies at the heart of his spiritual beliefs.
• The maintenance and, perhaps, improvement of Australia’s standing among the nations of the world by demonstrably fair treatment of an ethnic minority.

Justice Woodward said further:

These aims could be best achieved by:

• Preserving and strengthening all Aboriginal interests in land and rights over land which exist today, particularly all those having spiritual importance.
• Ensuring that none of these interests or rights are further whittled away without consent, except in those cases where the national interest positively demands it—and then only on terms of just compensation.
• The provision of some basic compensation in the form of land for those Aborigines who have been irrevocably deprived of the rights and interests which they would otherwise have inherited from their ancestors, and who have obtained no sufficient compensating benefits from white society.
• The further provision of land, to the limit which the wider community can afford, in those places where it will do most good, particularly in economic terms, to the largest number of Aborigines.

The Whitlam government drafted the land rights legislation, based on Justice Woodward’s report. The legislation was ultimately passed by the Fraser government after only marginal change. Today this act still reflects the values described by Woodward, despite the fact that it was reviewed by Justice Toohey in 1983 and substantially amended as a result. The Howard government commissioned a further review of the act in 1997 by John Reeves QC. The Reeves review was referred to the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs in December 1998 for consideration and report. The standing committee reported in 1999, after extensive consultation and after considering written submissions. The committee overwhelmingly rejected the recommendations of the Reeves review. It is worth noting, however, that the Commonwealth government is yet to respond substantively to the standing committee’s report entitled Unlocking the Future. Significantly, the report was supported unanimously by the committee members from both sides of the parliament.

In the context of the Aboriginal Land Rights (Northern Territory) Amendment Bill 2006 before us it is worth noting that the first and primary recommendation of Unlocking the Future is:

The Aboriginal Land Rights (Northern Territory) Act 1976 (‘the Act’) not be amended without:

• traditional Aboriginal owners in the Northern Territory first understanding the nature and purpose of any amendments and as a group giving their consent; and
• any Aboriginal communities or groups that may be affected having been consulted and given adequate opportunity to express their views.

Today we are considering proposals to amend the act, some of which could be seen to have been agreed by Aboriginal people in the Territory through the land councils as a result of a package of proposals to amend the land rights act agreed to with the Northern Territory government. In this sense, the package could be seen to have the consent of traditional owners. This package took a number of months to negotiate. Significantly, it has the support of the mining industry, whose principal interest was with proposals to amend part IV of the act, which deals with mining.

Most of the other amendments proposed have not been discussed, let alone negotiated, with traditional owners or other Aboriginal people living on Aboriginal land or their representative organisations, the land councils. The process leading to the joint position agreed by the Northern Territory government and the land councils showed how parties working together, showing mutual respect, can arrive at a negotiated outcome. Unfortunately, the Northern Territory government stepped outside of this framework in developing and submitting to the Commonwealth proposals for amendments to section 19 of the act to accommodate a proposal for the leasing of Aboriginal townships. These proposals have been quickly picked up, holus-bolus, by the Commonwealth government and are a key feature and component of the package of amendments before us.

The failure of both the Northern Territory government and the Commonwealth government to seek informed consent for these and other proposals that did not form part of the package of agreed proposals is an indictment of the approach of both governments. While individual traditional owner groups or traditional owners may give their support to the proposals to amend section 19, I note that in the bill before us their consent would in any event be required for those lease proposals to proceed.

However, these proposals have been put into this legislation without any discussion or understanding of them by Aboriginal people, whether or not they are traditional owners, across the Northern Territory, let alone their agreement. I note also that the federal government is already using the proposals contained in these amendments as leverage in dealing with Indigenous communities in the Northern Territory. In effect, they are making infrastructure and other resources to Indigenous communities conditional upon these communities entering into agreements, and presumably traditional owners also agreeing that they enter into lease arrangements, as envisaged by the legislation, as a condition of those resources being made available to the community.

We have seen this only last weekend, with the minister announcing comprehensive—and welcome—initiatives for additional housing and other infrastructure, including the presence of a police station for Galiwinku, while clearly indicating that in order to secure investment the community will need to agree to the new land leasing proposals. Instead of a partnership based on mutual respect and trust, it is one based on the power of the purse. The Commonwealth is imposing its will as to how Indigenous people use and deal with their land in order to obtain the benefits that other Australians see as their rights as citizens: access to reasonable housing, health, education and other services. Nowhere else in the Australian community would this sort of proposition be put, nor would it be accepted.

The minister may well argue that, on providing information, the traditional owners and communities accepted his proposals. This begs the question as to whether those Aboriginal Australians were given the option of considering other proposals or indeed other arguments. What the minister fails to clearly understand is the obligation of the relevant land councils to do whatever is necessary and appropriate to obtain the consent of traditional owners for any agreement to finally proceed. The minister apparently regards himself as exempt from any such requirement.

What is apparent is that the proposals to amend section 19 have not been well enough thought through and may have some serious downsides which should be brought to the attention of Aboriginal people. For example, the proposal includes the proposition of capping rental payments for developments on Aboriginal land leased to an NT government entity at five per cent of the improved capital value of the land. It is arguable that imposing a cap of five per cent in this way proposed by the legislation may well be racially discriminatory. In any event, no other owners of a freehold title or its equivalent have arbitrary limits imposed on the economic rent that they can negotiate for the use or sale of that land.

The proposed amendments also make provision for the surveying and administrative costs of introducing the leasing scheme to be made out of the Aboriginals Benefit Account—the mining royalty equivalents coming out of consolidated revenue for the use and benefit of Aboriginal Territorians. The Commonwealth government has earmarked $15 million from the ABA for the costs of surveying townships and administrative expenses. The Northern Territory government has estimated that the task of surveying one township alone will be $1 million, and up to $100 million in total. This amount of money could not be taken from the ABA without undermining its viability. However, beyond the Commonwealth’s failure to do the maths on this is the fact that the ABA is effectively being used to pay the rent and costs of the Northern Territory government on Aboriginal land. It is also true that the ABA is now being used as a slush fund for the Commonwealth minister’s own priorities—not necessarily the priorities of Indigenous Territorians who are supposed to be the ones making decisions about how this money will be spent.

Not only is this inherently unfair but also it raises the significant question of the NT and Commonwealth governments fettering the ability of Indigenous Australians from obtaining appropriate economic rent for the use of their land for residential and commercial purposes and ask them to pay full tote odds for that privilege through the ABA. Significantly, though, the fact remains that, even if you believe this is a good idea and is without flaws, there has been no extensive consultation with—and no prior consent given from—Indigenous communities or traditional owners about its impact, whatever the government might believe and whatever might be said to the minister. Notwithstanding these concerns, there is merit in developing a model which will provide Aboriginal Australians with the opportunity to purchase housing on communities. Of course, Labor is happy to support any Australian who aspires to buy their own home. However, the situation we are confronted with here is not about home purchase; it is about housing provision and the regularising of the arrangements between the housing providers and the traditional owners.

We should all be aware of the chronic housing shortage faced by Indigenous Australians across the continent, but particularly by Aboriginal people in the Northern Territory. In the Northern Territory alone, there is estimated to be a $1 billion housing shortfall, and I am told that nationally the figure is approaching $3 billion. This housing shortage goes to the question of poor health outcomes, poor educational outcomes and, ultimately, the lack of employment and life opportunities. It is a great indicator of the level of poverty being suffered by Aboriginal Australians in the Northern Territory and across this nation and it is an absolute indictment on successive governments at all levels.

In the context of the Aboriginal Land Rights (Northern Territory) Act 1976, there have been no attempts by the housing providers to regularise the arrangements for the provision of housing by seeking leases for the land on which the houses have been built. Historically, the Northern Territory government have relied on sections 14 and 15 of the act. These sections allow the Northern Territory government, where they have been using or occupying Aboriginal land before the enactment of the Aboriginal land rights act, to continue using that land for as long as they require. Where that use of land is for a community purpose—for housing, education or police—the use is rent free. Nor am I aware that there has been any request by any person for a lease of land to build for residential purposes.

This goes to the heart of the question, which is the need for governments to accept their responsibilities to negotiate with traditional owners over lease arrangements for residential purposes and to provide sufficient resources to address the housing crisis in Indigenous communities generally across Australia. While the government’s proposals for private home ownership may be attractive for a very small minority, the simple truth of the matter is that home ownership may not be an option for the bulk of Aboriginal Australians living in remote communities—if for no other reason than the fact that the average individual income for Indigenous people living in remote areas at the 2001 census was a measly $13,460.

While we acknowledge the government’s intention in relation to these issues, we say to them: this is not the main game and this is not the way to proceed. Nor is the main game the leasing of whole townships to a Northern Territory entity which will then have the responsibility for all dealings in that land, including the provision of subleases for commercial and other purposes, because in the end this could have the effect of alienating the Indigenous estate from effective Indigenous control.

It is also worth noting that the Northern Territory government does not need the amendments sought in this legislation to deal with Aboriginal townships not on Aboriginal land. The fact is they have the legislative authority to do this for communities such as Kalkaringi, Alpurrurulam, Apatula and others which are not on Aboriginal land yet they have not done so. You would have thought that if this move was of such significance for the feasibility of townships it would have been put in place at least as a pilot in these communities some time ago when there was no requirement for Commonwealth legislation. It is no surprise that that has not been the case.

I also note that just last week the Northern Territory government proposed a ‘new way’ of addressing the housing crisis on Aboriginal communities, involving community, government and private sector finance. I support that initiative. There needs to be a partnership between government, the private sector and Aboriginal communities if we are ever to address the chronic shortage of Indigenous housing. But the methods proposed by the Commonwealth government will not attain that objective. There are other models which do not require traditional owners giving up their right to control commercial development on their land and would provide ample capacity for dealing in residential property.

As with the leasing arrangements, the proposals in the legislation before us which go to the question of the creation of new land councils and delegations from current land councils, as well as the proposals for the funding of new land councils, have also not been the subject of any extensive discussion, consultation, negotiation or agreement with traditional owners, other Aboriginal people or the land councils in the Northern Territory. Together, they clearly undermine the integrity of the land rights act and arguably will be an impediment to the rational, orderly development of economic opportunities on Aboriginal land in the Northern Territory. These proposals are particularly pernicious in their treatment of land councils and are clearly designed to revisit the proposals in the Reeves review to establish new land councils—rejected by the HORSCATSIA inquiry.

Some of the other proposals which have not been negotiated with traditional owners but which are a major cause of concern relate to the establishment of these new land councils and the delegations. These proposals reflect another ideological obsession of the government to break down the authority of land councils and to limit their capacity to act as advocacy bodies for those Aboriginal Australians whom they have been set up to service and also represent. In many ways these proposals reflect much of what Reeves proposed and which was rejected by HORSCATSIA. They come as no surprise, and they demonstrate the inherent contradictions in the Commonwealth approach. On the one hand while, in the case of the proposals for the amendments to section 19, traditional owners’ consent is required, on the other hand this is not the case for the establishment of new land councils or the delegation of land council powers. In addition, the proposals designed to create a large number of land councils or to give other bodies land council-like powers and responsibilities clearly conflict with the government’s policies on representative bodies under the Native Title Act. In this case, the Commonwealth has sought to rationalise the number of such bodies in order to provide administrative efficiencies and limit the possibilities of inappropriate behaviour.

How is it then that the government has determined that it ought to facilitate proposals to break up the existing land councils in the Northern Territory? The proposals have a capricious intent and are designed to limit the capacity of land councils to act as effective advocacy bodies for Aboriginal Territorians. This intent is perhaps no better demonstrated than by the changes to funding for land councils that this bill proposes. At present, the land rights act guarantees that 40 per cent of available funds in the ABA be set aside for the administrative expenses of the four land councils. This bill proposes to remove that guarantee and determine funding for land councils on the basis of estimated workload. Removing the 40 per cent floor funding undermines the guarantee of independence and viability of the land councils and their ability to pursue the interests of traditional owners.

It is clear that the government’s proposals in relation to land councils are a potential disaster and will inevitably be viewed with some concern by those, particularly in the mining industry, who seek to develop economic opportunities on Aboriginal land. After 30 years they have certainty and confidence in dealing with the four land councils currently in existence. They know that these organisations have the competence, experience, knowledge and expertise to deal with them in an open, transparent and orderly fashion. You can imagine what might have happened under these proposals of the Northern Territory and federal governments to create new land councils if they had had to negotiate the Darwin to Alice Springs railway. These mining businesses would be concerned by the prospect of dealing with a larger number of bodies who, apart from lacking competence, would be without the corporate knowledge, economies of scale or professional expertise that prevail under the current arrangements. There was no forewarning of these proposals by the Commonwealth government and I note that these proposals were not supported by the Northern Territory government. Again, given the strength of the recommendations of HORSCATSIA, it is of grave concern that the government has chosen to follow this course.

The issue of land council delegations reflects a similar story. The joint submission of the Northern Territory government and the land councils proposed amendments to section 28 of the current act. The submission proposed a certain level of delegation of power to allow some functions to be performed at a regional level rather than at land council meetings. The Commonwealth government have taken the delegation power much further in the arrangements they propose under this legislation. Core land council functions with respect to mining and leasing on Aboriginal land may now be delegated. There is a possibility that the powers of a land council, the body representing traditional owners, could be delegated such that a body including non-Aboriginal people would be exercising these core land council functions.

These proposed amendments will also allow the Commonwealth minister for Indigenous affairs to make decisions about delegation of a land council’s powers even if the land council does not agree. The minister’s power to delegate these powers, as well as the types of bodies that land council powers can be delegated to, disfranchise traditional owners of the rights accorded to them under the original legislation.

While there is much to be concerned about in this bill, Labor does support a good number of the measures within it. The bill proposes a new section 12AAB to make an immediate grant of land to the Anindilyakwa Land Trust of land in the area of the Anindilyakwa Land Council included in any Arnhem land type 1 deed. This is land inappropriately granted to the Northern Land Council. Labor supports an immediate grant of that land to the Anindilyakwa Land Trust so it becomes the responsibility of the Anindilyakwa Land Council. I note with some concern comments made this morning by the minister in relation to the changes which he proposes. He referred with great ignorance to the way in which Indigenous Australians deal with their land and to their relationships with each other. He had the temerity, and indeed the audacity, to say this as he described the way in which Aboriginal people live on their land:

… We’re saying to people … that you’ve been living on what is for all intents and purposes little communist enclaves, which means that there’s no opportunity for business to flourish, there’s no access to a market economy.

I have never heard in this place such benign stupidity and rubbish. This minister is clearly ignorant of how Indigenous people see their land and how they relate to one another. I point the minister to the words of Justice Woodward and suggest to him that he bring himself to read the two reports of the Woodward royal commission and the subsequent reports and commentary which have been written about the land rights act. He would soon come to understand that his view of the world is not only wrong but also so far off the mark of where Indigenous Australians see themselves that it defies description. I say to him that I do not know any Indigenous people who are not concerned about involving themselves in the market economy in some way or another. I do not know any Indigenous Australians who do not want a roof over their head or the right for their children to attend school and have a healthy outcome—that is, to have education and health services and access to work opportunities. I do not know any Indigenous Australians who do not want any of those things, just like every other Australian.

What I know is that this pogrom, which has been undertaken in different guises by the federal government but in this case it is by attacking the land rights act, is all about disempowering Indigenous Australians. It is all about getting their agenda run and the wedge put in about how ignorant these poor buggers are. Well, they are not! They are not ignorant and they understand what you are doing. When you sit down and talk to these people, as this government should do, you understand what is required—that is, their need to give prior informed consent, as Justice Woodward commented upon in his royal commission report and as HORSCATSIA commented upon in its very first recommendation. The banal attitude of this government defies description. My time has concluded, and I move:

That all words after “That” be omitted with a view to substituting the following words: “whilst welcoming many measures contained in the bill including the mining and exploration provisions, the House is of the opinion that some other provisions of this bill:

(1)

undermine the integrity of the Principal Act by eroding the rights of traditional owners and the independence of land councils;

(2)

are a recipe for uncertainty for development on Aboriginal land;

(3)

should be withdrawn and redrafted to provide a more balanced approach that ensures:

(a)

the informed consent of traditional owners to major changes;

(b)

that traditional owners as land owners are not unfairly constrained in optimising their financial and other benefits under the 99 year lease;

(c)

the better promotion and facilitation of economic development on Aboriginal land including home ownership opportunities for Aboriginal people;

(d)

the protection of traditional owners’ rights to control access and development on their own land; and

(e)

the maintenance of the independence and viability of land councils to defend and pursue the interests of traditional owners and other Aboriginal people living on Aboriginal land.”

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