Peter Andren (Calare, Independent) Share this | Hansard source

The question that needs to be asked about the Aboriginal Land Rights (Northern Territory) Amendment Bill 2006 is: how much of it has been put together with input and agreement by the people who actually own the land we are talking about? Informed advice I have received is that the claimed nine years consultation from the discredited Reeves report onwards is ‘absolute garbage’. The Northern Territory government and the Australian government, as well as the land councils, stand condemned in their failure to properly disseminate information about proposals such as these to people who may have several, indeed many, languages but English and its peculiar terms is not one of their preferred or understood tongues.

Now we are having legislation rushed through yet again and, despite the minister’s visit to Northern Australia at the weekend, the landowners involved in this still do not understand the concept of a lease, let alone the word. So much for the excitement we heard from the minister today about the prospect of ownership. This, after all, is Aboriginal land. Their land title is inalienable and equivalent to freehold title. It is land owned by those whose ancestors were custodians of the land for tens of thousands of years before them.

Now we are about to return to the worst of paternalistic models. Through this legislation we set up a statutory body to take care of a head lease on traditional land and we ask its traditional owners to sign off for 99 years. This is at a time when many traditional owners—incidentally, ‘traditional’ is a term absolutely foreign to many of the affected people—do not know after 30 years what the land rights act is in fact all about. People are totally confused as to what a lease means. There is a massive communications problem that did not begin with this amendment; it began 150 or more years ago, and no real attempt has been made to address it in remote communities.

The difference is that this land, while equivalent to freehold title, is held communally, reflecting the fluidity and communal nature of Aboriginal landownership—quite a different concept to our Western, market based individualistic world views. The current Aboriginal Land Rights (Northern Territory) Act provides that, unless the act or some other law determines, the consent of the traditional owners, the landowners, is always required before others may use the land. As things stand at the moment, if someone wants to use the traditional land, the relevant land council conducts negotiations with the traditional owners, with those affected by the proposal and with the proponents. The land council 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 the 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. Yet the land council process is not without its serious weaknesses, which could and should have been addressed before this broad-brush and renewed paternalistic approach. I hear stories that even land council personnel cannot communicate with people in the homelands, yet their permission is sometimes obtained by dubious and highly questionable means. Is that now to be repeated many times over across northern Australia?

This legislation may not technically be taking consent away from landowners, but I am advised that it will have that effect unless this process is explained far more clearly—in fact, unless it is explained full stop, which it clearly has not been, from the feedback I have received from contacts throughout the Northern Territory. I understand that major banks could well have mortgages under a sublease over any land subject to these agreements. Say, for instance, the new leaseholder cannot pay. What happens? Do they sell? To whom? Could a non-Indigenous couple from Melbourne pay out the lease and secure a holiday home on the north Australian coast? Tell me why this cannot happen, Minister.

Under this legislation you also do not any longer need a permit for entry to leasehold land. We could have a scenario where half the land affected by this legislation is eventually owned by whitefellas. According to the explanatory memorandum the legislation will open up Aboriginal land. Exactly. What better way to finally undermine aboriginal landownership, which is not a Torrens title type ownership but a spiritual association that goes back 40,000 years at least.

The traditional owners simply do not understand the nature of these amendments, as was required under the original act. Schedule 1 of the existing act gave unalienable rights to traditional owners. It recognised clan and alliance or nation ownership. The existing act services the Aboriginals Benefit Account, which holds moneys equivalent to the royalties paid for mining. Thus, royalties are paid by mining operations to the Northern Territory government as owner of the minerals—with the exception of uranium, which goes to the Commonwealth—and the Commonwealth reimburses the equivalent amount from consolidated revenue into the ABA. These funds are then disbursed according to a formula to the land councils in order to provide for development and actions to benefit the owners of the land. However, the minister retains control over the ABA. A guaranteed 40 per cent is set aside to fund the administration of all four Northern Territory land councils.

It is worth noting that the ABA has net accumulated assets of $109.2 million, which are owned and controlled by the Commonwealth. This equity, from royalties and from Aboriginal land, is owned and controlled by the Commonwealth and cannot be accessed, leveraged or borrowed against by the land councils or the traditional owners.

I understand that there are elements of the bill, particularly amendments to part IV of the act, regarding mining provisions, that have been negotiated and supported by the land councils, who believe they will provide greater workability of the act—and that is fine. But there are parts of this bill that have not been negotiated with the land councils, that have been agreed to by both the Commonwealth and the Northern Territory governments without the agreement of those who actually own the land and their representatives. The processes in this bill abuse the very rights and recognitions of every property owner in this country. This has inserted provisions that completely ignore and undermine right of control over your own land. It undermines and renders invalid control, and thus essentially the ownership of that land for substantial periods of time—in fact, for generations.

The bill allows an association whose members are either traditional owners or residents of an area to apply to a land council to have powers delegated to it. But, if a land council refuses to delegate its powers or functions, the minister can override it. If there were provisions to ensure that a majority of non-owners could never override the objections of the traditional owners—who could otherwise then in effect lose any semblance of rights as an owner—this might not be so objectionable. However, such provisions are not included. The bill further provides that, once a delegation is made by a land council, it cannot be varied or revoked without the request of the delegate or the minister’s approval.

Further, if the land council does not agree with the delegation, the minister may completely override the council and delegate the powers or compel any variation to that delegation. This is all the more alarming when the land councils’ functions and powers that under this bill can be delegated to another body include decisions about mining on Aboriginal land and leasing on Aboriginal land. Not only that, but that body can be made up of non-Aboriginal people and a majority of Aboriginal residents of the area, who need not be the owners of that land. It is easy to see that a non-Aboriginal group could easily gain control over what happens on land owned by Aboriginals.

Currently the act allows for the creation of new land councils provided that a ‘substantial majority’ of Aboriginal adults living in the area agree. The Commonwealth was asked by the land councils and the Northern Territory government to amend this section to ensure traditional owners would have to consent to any proposed new land council. This is also in line with the recommendation of this parliament made back in 1999. However, the government not only disagrees with this approach but introduces in this bill the principle that a single Aboriginal person who is resident in the area can apply for the establishment of a new council. Other bodies such as a council, an association or a company with a majority of Aboriginal members may also apply.

But what of the traditional landowners? After all, the land is Aboriginal land only because these traditional landowners have fought the land claims to receive their rights under the title granted to that land. What happens in townships and communities where a large proportion of the Aboriginal population are not traditional owners? This is completely at odds with the whole process of being granted title to the land in the first place.

Further, the whole movement over many years has been to remove smaller, less efficient services and to remove duplication and impediments to attracting the very best in professional staff. As the Australian National Audit Office pointed out, the informed decision making processes facilitated by the administrative arm of a land council includes the input of lawyers, mining experts, anthropologists and so on. A land council’s strength is highly reliant on the professionalism that only the larger councils can attract. Or is this the very reason for these changes in the bill—to undermine the larger and potentially far more professional and more independent land councils?

Under the act a land trust could lease to the Northern Territory government or its entity the whole of a township or community. In return the entity would pay rent to the land trust of a fixed five per cent of the improved capital value. It must be asked: how do we work out the value of this land, particularly land in more remote areas? Not only this, but the peppercorn rent paid by the Northern Territory government to the land trust on behalf of the traditional owners is paid from the ABA, the Aboriginal Benefits Account. So the Northern Territory government is using the landowners’ income to pay the landowners peppercorn rent, determined by its own VG, on their land, over which they lose control for 99 years!

I know there are others who want to speak in this truncated debate—and it is deplorable that debate on such an important piece of legislation should be curtailed in such a manner—but I want to ask finally: what in this bill will attack the rudimentary health care problems that exist on a daily or weekly basis? How will they be fixed if the people suffering from illnesses can borrow money to buy a house for 99 years? They are asking today: ‘Where do we find the resources?’ We are told there will be packages put in place. They are saying, ‘What if we can’t afford to pay?’ How will the sewers, the water in each house, the roads and the telephones be fixed? Someone mentioned here bakers and candlestick makers and all these businesses that are going to grow out of nowhere.

If you take the trouble to read Richard Trudgen’s book, Why warriors lie down and die, you will see that in a short space of seven years he saw the complete collapse of many communities because their ability and their right to make decisions for themselves—in fact the very traineeships that were in place in some of these communities—had been taken over by imposed contracts from outside. So there are many other ways that we should be looking towards the benefit of these communities. It certainly is not in this particular act. This bill should be redrafted but, most importantly, it should honour the integrity of the existing legislation by applying the three vital factors missing in this process: communication, consultation and consent.

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