Aboriginal land rights out of step?

ABORIGINAL elders want opportunity yet fear legal exploitation.

Traditional owners from around Alice Springs and beyond gathered at Simpsons Gap to for a Handover of Deeds of Grant for a ceremony for the hand back of land under the Aboriginal Lands Rights Act for Crown Hill, Alcoota, Loves Creek and West MacDonnell National Park from Minister for Families, Housing, Community Services and Indigenous Jenny Macklin

IT’S the stuff of myth, metaphor and poetry. Battles have been fought over it, sand poured from hand to hand. Australia’s red dirt is not just integral to national image, it is the substrate for northern development and guardian of mammoth riches. It is also the heart of Aboriginal culture.

In the decades since Aboriginal land rights were first enshrined in commonwealth law in 1976, about 50 per cent of the Northern Terri­tory’s landmass and 80 per cent of its coastline have been handed back to traditional owners. Similar legislation is now in place in other jurisdictions.

Yet, with few exceptions, these monumental changes have not delivered the prosperity most indig­enous people want. In the memorable words of Cape York indigenous leader Noel Pearson, Australia’s First People are “land rich and dirt poor”.

Last year, veteran land rights activist and Yolngu leader Galarrwuy Yunupingu told two prime ministers the existing land rights regime was “empty”. “It’s full of everything but it’s full of nothing,” Yunupingu said when Kevin Rudd visited Arnhem Land last July.

“The land rights is for the Aboriginal people, but the land ownership and use of the land ownership is not for Aboriginal people; it’s for mining companies and for whitefellas.

“What will there be for us to look forward to? … It’s the economic development, the work, the money that comes into the hands of Aboriginal people through their own country … We want to develop our own land.”

Yunupingu echoed these views when then opposition leader Tony Abbott attended the Garma Festival a month later. He is likely to do so again at Garma this weekend, before the Prime Minister returns to Arnhem Land in September.

At the heart of the land rights debate lie questions about future prosperity. With economic attention shifting north, Aborigines wonder what roles they will play in development.

The opportunities that could arise from greater exploitation of Aboriginal land are significant, but so is the price of error. The history of land rights reflects changes in national character.

Decades of poor health, education and stubbornly low living standards have left Aborigines ill-equipped to compete for the spoils of development, or to negotiate land access or land rights changes effectively.

As political awareness seeps into the bush, locals become increasingly uneasy about how few of the promised gains from past investments, outside interventions, legislative and bureaucratic changes and other disruptions to their lives they have grasped so far.

The black power movement is growing.

“The history books say Australians have lived on the back of sheep. That’s all bullshit — they’ve lived on the back of blacks,” says First Nations Political Party founder Maurie Ryan.

Earlier this month, Northern Territory Attorney-General John Elferink described the Territory’s Aboriginal Land Rights Act, the nation’s premier piece of land rights legislation, as a “wall of imprisonment” blocking Aborigines from participating in northern development. He compared the “disenfranchisement” he said it caused to that caused by gender inequality, certain religions and oppressive political regimes such as those in North Korea and Cuba.

Elferink spoke after Chief Minister Adam Giles suggested transferring the commonwealth act to the Territory. Giles proposed the idea in a bizarre interview with the ABC, in which he also attacked the national broadcaster for “spreading racism in this country” by reporting allegations that Territory government ministers had used racist language.

Last month, Territory Community Services Minister Bess Price told a conference in Darwin that land rights legislation was blocking development. “It’s clear that it has now become outdated, and a hindrance to moving forward in our communities. It’s clear that this piece of law is now forcing the very people it intended to protect away from their traditional lands,” Price said.

“I plead with the Prime Minister, Tony Abbott, and (federal Minister for Indigenous Affairs) senator Nigel Scullion to give Abor­iginal people our land back. When Aboriginal people are free to trade and deal with their land, social business and economic oppor­tunities flow.”

These provocative statements were widely seen as co-ordinated attempts by Territory Country Liberal Party government ministers to build cover for Scullion, a Country Liberal Territory senator, to break his election commitment not to tinker with land rights legislation.

Approaching an economic cliff in 2016, when construction of the onshore component of the $34 billion Ichthys liquefied natural gas project in Darwin Harbour is due to be completed, the Territory government desperately needs to attract new investment to keep the economy growing.

The CLP sees opening up Aboriginal land as a good opportunity. The government has established a closed-door inquiry into fracking that many expect to pave the way for relaxed rules on unconventional gas development; it would also like to expand agriculture, mining and tourism on Aboriginal land. Most Aboriginal leaders want economic opportunity but fear exploitation. The Territory has an appalling record of misusing Abor­iginal funds. In practice, governments with stated commitments to indig­enous economic advancement have often been more attentive to crony capitalism, as appears to be the case now. Astute leaders know that while the CLP may wish to help indigenous communities develop, for electoral reasons it needs to shore up urban economies to retain power. Major towns rely heavily on government spending and government-backed projects, many of which use Aboriginal funds or Aborig­inal land.

Lacking trust in outsiders and homegrown capacity, the incentives for Aborigines easily align towards protection and isolation. They, after all, have little to fear from a downturn.

Any changes to federal land rights legislation would likely require support from minor parties in the Senate. Responding to Price’s comments, Alison Anderson, leader of the Palmer United Party in the Territory, said government failure rather than land rights legislation was responsible for keeping Aborigines poor.

“We’re not going to give up our land to a bunch of racists in the Northern Territory who keep using our money to develop the northern suburbs (of Darwin),” Anderson said. “I call on Clive Palmer to block any changes.”

Indigenous Labor senator Nova Peris also denied that the legislation was an obstacle.

“(Price) should not be pleading with Tony Abbott and Nigel Scullion to once again legislate away the rights of Aboriginals without consultation,” Peris said.

Land rights remain the centrepiece of Aboriginal achievement, amid a long list of disappointments and failures. There is conviction among Aboriginal leaders that the gains won by past generations should not be undone. The tragedy is that, without help, it may be decades before Aboriginal land is developed, and there are ways land rights could be improved.

Aboriginal land is held in land trusts administered by land councils, which are commonwealth statutory bodies under the aegis of the federal minister. For years, these councils have shifted awkwardly between acting as managers, advocates and protectors. In so doing, they have been accused periodically of autocracy, obstructionism and of favouring the interests of their own executives above all else — allegations they deny.

A key problem with the existing land rights regime is that it does not reconcile traditional Aboriginal notions of collective ownership with a national economy based on individual property rights particularly well. Banks will not lend against Aboriginal land because it cannot be foreclosed on, homeowners struggle to get mortgages and businesses cannot get loans. These things operate, many people argue, to help keep Aborigines poor.

The CLP relinquished perhaps the best opportunity in a generation to pursue genuine land rights reform when it allowed three of its elected Aboriginal members to defect to the PUP in April.

Former minister Anderson and two of her colleagues quit the government amid extraordinary alleg­ations of racism and bullying by party colleagues and lack of support for bush electorates. They soon aired further claims that Territory and federal CLP ministers had colluded in “backroom” deals involving access to Aboriginal land. By failing so spectacularly to manage internal dissent, the party turned powerful Aboriginal support into powerful opposition.

Earlier this year, Scullion tried unsuccessfully to enact a regulatory change designed to weaken land council powers by letting certain functions be devolved to community organisations. The change was meant to lay the groundwork for a new system of region-based authority and funding.

The CLP appears to have chosen now to place land rights reform back on the agenda because both the Territory’s major land councils are vulnerable: the Central Land Council has been almost paralysed by a bitter feud between its executives, while the Northern Land Council is exposed to criticism over its handling of a case against a now-defunct bid to house nuclear waste at Muckaty Station.

NLC chief executive Joe Morris­on also has adopted an unusually bellicose stance towards Territory and federal governments. Rumours abound that Scullion is preparing to launch an inquiry into alleged land council corruption, spurred on by FNPP founder Ryan, or find some other excuse to rekindle his reform agenda. “The clouds on the hori­zon have never been darker,” a land council source says.

In all this, however, one point has gone missing: the solution to the fundamental question of how to reconcile traditional notions of collective ownership with an economy based on individual property rights. Elferink has made clear he would like to see the act patriated and substantially reformed. “If you want to see Aboriginal people be part of northern development then the rules of ownership and invest­ment must much more closely match the rules that exist in the rest of the world,” he says.

Price, too, would like individ­uals to be able to buy and sell Aboriginal land in much the same way land is traded elsewhere. But this is not what leaders such as Yunu­pingu want. Although he has yet to detail his ideas, Yunupingu’s associates are emphatic that, far from wanting to weaken traditional owners’ rights, he would like to see cultural authority strengthened.

The situation is mirrored elsewhere in Arnhem Land. In the community of Baniyala, Djambawa Marawili, a member of the Prime Minister’s Indigenous Advis­ory Council, is revered as a pioneer of individual property rights for his pursuit of secure tenure over housing.

Marawili, however, does not envision the sort of open property market in which anyone can buy and sell houses, a prerequisite for most bank lending.

“What I’m doing is completely different to what’s happening in bigger communities and in Darwin,” Marawili told The Australian in May. Instead, he too sees changing land rights as a way of strengthening Aboriginal control: “Then I will have ownership of this land in both Yolngu way and Balanda (non-Aboriginal) way.”

In September, Abbott will spend a week in Arnhem Land hosted by Yunupingu, during which he will almost certainly revisit the history of the land rights struggle. He must know that where constitutional recognition of Australia’s First People is a cause requiring unification, land rights reform is inherently divisive.

He must know that, were he to patriate the act, he would be handing control of the centrepiece of Aboriginal achievement to a chief minister who has parted ways with traditional Aboriginal members elected to his party’s government.

Perhaps, after gazing at the fam­ous bark petitions housed at the Yirrkala Art Centre, Abbott will walk to the beach nearby and gather a handful of sand. As he lets the grains trickle through his fingers he may take up the cause — but, then again, he may not.