Chris Evans (WA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Hansard source

I wish to speak on the Aboriginal Land Rights (Northern Territory) Amendment Bill 2006. In 1995, David Mowaljarlai, an Aboriginal elder from West Kimberley, said:

... I don’t own the land, but the land owns me. That is the strong thing in Aborigine law and culture. It’s about the land. I’m only a servant, we all Aborigines are servants, we serve nature. That’s why it’s so important for us, because the land owns us.

That is regarded as one of the definitive statements about Aboriginal relationship to land. The Aboriginal Land Rights (Northern Territory) Act, which is being discussed today, was the first and strongest legal recognition of the profound connection that Indigenous people have to their country and the communal nature of landownership in traditional Aboriginal law and culture. It recognised that relationship by granting a form of freehold title. It represented the most significant set of rights won by Aboriginal people after two centuries of European settlement. It returned about 50 per cent of the land area of the Northern Territory to its traditional owners. It went some way towards correcting a historical injustice and extending our legal system to recognise a non-European, communal ownership structure and the historical truth of Aboriginal rights on this land before European settlement. Australians can be rightly proud of the land rights act and the bipartisan spirit in which it was enacted.

With the bill before us, the government will seek to radically reshape that land rights regime and, I think, in doing so it will debase its symbolic value. The bill diminishes the rights of traditional owners over their asset: the land. It fundamentally seeks to alter the principle of communal landownership, which is at the heart of the land rights regime. The government has taken this step without proper negotiation with traditional owners and without their consent. It is hard to imagine that any other group of Australians would have their property rights treated in this way. The government is rejecting the tests set from the first days of the land rights regime—the tests that those rights should not be diminished without negotiation or the consent of traditional owners. It is squandering the opportunity to develop a negotiated package of reforms which recognise Aboriginal cultural principles and encourage appropriate economic development on Aboriginal land. The government’s actions demonstrate a lack of respect for Indigenous people and their culture. It represents yet another paternalistic attempt to tell Aboriginal people what is good for them.

Labor is proud that the land rights act had its origins in a Labor government and that we remain absolutely committed to the spirit and substance of the act. The act had its roots in the Woodward report, commissioned by the Whitlam government in 1973. Justice Woodward identified various aims of recognising Aboriginal land rights, including:

• The doing of simple justice to a people who have been deprived of their land without their consent and without compensation.

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• 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 need for justice, the need to recognise the spiritual link to land and the need to provide an economic resource for Indigenous people are as strong today as they were 30 years ago. With bipartisan commitment to land rights, the Labor legislation that lapsed at the election of 1975 was adopted and passed in almost original form by the Fraser coalition government. In the debate, the then Liberal Minister for Aboriginal Affairs, Ian Viner, noted: ‘affinity with the land is fundamental to Aborigines’ sense of identity’.

From the outset, a difficult test was set for those who might try to amend the act. The test began with Woodward, who stressed the importance of it. He said:

… 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.

That is, not without consent and only on the basis of a strong national interest. This is a tough test and it is a test that the Howard government’s bill, which we are debating today, has failed. There was no proper negotiation, no consent and no argument of strong national interest.

That approach and test was reaffirmed by the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs in 1999. It was a restatement, if you like, of the Woodward test. The bipartisan report, Unlocking the Future, stated:

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.

Again, this is a test that the Howard government has failed in relation to this bill.

The failure to properly consult, negotiate with and afford basic respect to Aboriginal people in framing and pursuing these changes has engendered broad opposition to the bill. Not a single non-government submission to the very brief Senate inquiry that we were allowed was satisfied with either the bill’s content or the way it had been brought forward. Traditional owners, land councils, the Aboriginal and Torres Strait Islander Social Justice Commissioner, the Law Council of Australia and the Minerals Council of Australia all had reservations about the bill. The government is on its own in unilaterally reshaping the land rights regime.

Labor is committed to reforms which assist Aboriginal people in gaining maximum benefit from their land. Likewise, we as a party have always promoted the benefit of homeownership and have helped Australians to realise that dream for over a century. We will consider positively any proposal which assists Indigenous Australians to realise the economic potential of their land but we will do so in accord with other strongly held values.

Aboriginal land belongs to Aboriginal people and changes to land tenure on their land need to be negotiated with them and to have their consent. Reforms must be respectful of and appropriate to the principles of Aboriginal communal ownership and ensure the security of their title to Aboriginal land. To diminish their ownership rights as this bill seeks to do must be considered very carefully. Reform is a delicate and nuanced process but one which is achievable with a commitment to negotiation and consent and respect for Indigenous culture.

Aboriginal people, I have found, are very committed to appropriate economic development and they want better services and economic opportunities in their towns. In partnerships with mining interests, they are finding ways to maximise economic development on their communal land. More than 200 Indigenous land use agreements across Australia have helped achieve economic outcomes for traditional landowners and facilitate smoother leasing arrangements.

Labor supports the normalisation of services in townships and communities, and the capacity for Aboriginal homeownership and commercial enterprises in those communities. In spite of the government’s rhetoric, these things can happen under the current ownership system but Labor also accepts that improvements can be made and some new leasing arrangements could promote more efficient development and increase economic activity—for example, the transaction costs in securing a sublease on Aboriginal land can be high in terms of both money and the time it takes. We accept that this can delay development and we are committed to a constructive solution. We share common goals. There are traditional landowner groups who want to find a model that will streamline leasing and encourage economic activity yet preserve their role as decision makers and financial beneficiaries of development on their lands.

Traditional owners in north-east Arnhem Land, Wadeye and Yarrabah in Queensland are talking about long-term leases, but their models reflect their interests as ongoing landholders, not government interests. They are rightly suspicious of a government which will not supply adequate hospitals and schools but argues that taking over their property rights is the solution to their disadvantage. Ironically, elements of this bill are testament to the effective outcomes that can be generated through consultation and negotiation.

The bill includes a number of mining and exploration provisions which seek to streamline economic development opportunities on Aboriginal land. These are a response to concerns raised by mining interests and traditional owners and are in accord with the joint submission of the land councils and the Northern Territory government to the Commonwealth. They are the product of negotiation, have the consent and support of traditional owners and therefore receive Labor’s bipartisan support. Labor is moving an amendment to split this bill so we can expedite the passage of those negotiated mining and exploration provisions and seek to further negotiate tenure reforms which are respectful of Aboriginal ownership traditions and encourage appropriate development on Aboriginal land.

The Howard government’s changes proposed in this bill fall well short of Aboriginal people’s aspirations. The government seeks to characterise the debate as a conflict between land rights and economic development. It promotes a simplistic political paradigm in which Aboriginal people have to choose one or the other—protection of their land rights or the benefits of economic development. For Minister Brough, it is even more simple: he equates it to a choice between homeownership and communism. All other considerations are excluded by this simplistic and erroneous assertion. You can have private homeownership under his plan or continue to live in ‘communist communities’, as he describes them. That is the extent of the respect he shows for Aboriginal law and culture by characterising that observance and that heritage as communism.

There is ample evidence overseas of how communal land tenure and economic development can work successfully together. The government says that leasing arrangements under communal tenure are too time-consuming and represent a significant deterrent to investors and infrastructure development. Their answer is that the ownership rights of Aboriginal people therefore need to be diluted. Labor says: there are better answers. To the Howard government, land rights are a blockage that needs to be cleared away. For them this is not a policy debate but the continuation of an ideological battle—a rejection of a rights based approach—and what they now call a practical approach.

The commitment the coalition showed to land rights in the Fraser years seems a long time ago. They argue that because land rights have not delivered an end to Indigenous disadvantage they are somehow part of the problem. For Indigenous people and for Labor, economic development and land rights are not mutually exclusive. They are not ends to be chosen between. It is not a choice between economic development and communal ownership; it is a debate about how we best promote economic development on Aboriginal land.

Land rights are a basic legal ownership framework within which we can develop solutions to the particular challenges facing Indigenous communities and landowners. The government is presenting Aboriginal people with very difficult choices. In the hope of a decent economic chance and opportunities for homeownership, they are asked to trade off control of their land, which could effectively be for four generations, given the appalling mortality rates of Indigenous people.

No other Australian landowner would receive such an ultimatum from the government and no other Australian landowner would be expected to tolerate such interference in their property rights. The government’s defence of this criticism is that the scheme they are proposing is voluntary, and that should provide us all with enough reassurance. But these statements that the leasing scheme would be voluntary have been seriously undermined by the minister’s own approach in recent months.

Minister Brough and the government are using their powerful position to coerce communities into signing up to the leasing proposal. On two occasions it sought to link a total of $60 million in education and housing funds to an Aboriginal agreement to enter into a 99-year lease with the government. In a media release on 19 June 2006, Minister Brough stated:

Around fifty houses will be built and real jobs provided, if the community is safe and signs up to full school attendance, a no-drugs no-violence policy and agree to a 99 year lease.

You will get the houses if you sign up for the lease. This casts serious doubt on any assurances that the scheme is voluntary and raises concerns as to whether Aboriginal people are now being required to bargain away their land rights to secure basic services to which they are entitled as a right of citizenship.

Any amendment to the land rights regime needs to be intellectually sound and well thought out. Two recent government concessions on this bill are a clear indication that the original proposals were flawed and that the government is making it up on the run. The government has backed away from the five per cent cap proposal on rental income and the condition that Aboriginal people could not negotiate for any pecuniary interest aside from rent. I understand that as late as a couple of hours ago more amendments were circulated.

These changes are an acknowledgment that the government’s proposals in their original form were flawed and were not supported by Aboriginal people, whom we would have seen refuse to take up the scheme. The government is madly churning to try and ensure that it is able to implement the scheme given the hurdle it has in terms of Aboriginal agreement. But with the minister fixing up the holes in his policy as he goes, it is clear the plan has not been thought through and that the weaknesses stem in part from the failure to negotiate and seek Aboriginal consent.

The government simply asserts that this bill will facilitate homeownership and be a panacea for the entrenched disadvantage faced by Indigenous Australians. Of course, no evidence is produced to support that claim. It has floundered to provide answers to the important questions. How will Indigenous people, with some of the lowest incomes in the country, be able to service large mortgages? How will homeownership be achievable in the most remote regions of Australia where construction costs are high and incomes are low? What will happen to the traditional lands of those who default? Will this scheme see much Aboriginal land divested from its traditional owners, as was the case in Canada and the USA with their experiments? We are asked to take the government’s assertions and this bill on trust. This bill is desperately lacking detail and the Senate should not be and cannot be expected to pass legislation with so much important detail unseen—detail that goes to the very heart of Indigenous ownership and control of their land.

The government has been unable to indicate how the Northern Territory or Commonwealth government entities holding a 99-year headlease will be formulated or how they will work. Yet their formulation is critical to the degree of traditional owner representation and influence over future developments on their land—a key consideration for them and for Labor. The government has likewise been unable to indicate whether traditional owners will have to pay rent to these entities in order to lease back land that they already own. Labor cannot accept these changes when it is clear that so little has been thought through and when there are so many critical flaws in the policy.

The bill also includes a range of measures pertaining to land councils and their funding and independence and to the minister’s interference in the role of land councils. Labor has serious concerns about a number of those measures. However, they are consistent with the Howard government’s history of sidelining Indigenous voices and undermining Indigenous organisations. They do nothing for Aboriginal people and they look very much like the government is again seeking to tell Aboriginal people what to do rather than holding a meaningful discussion with them about the way forward. Some of the proposals in this legislation give the minister unheard-of powers and seriously undermine Indigenous control over their property.

This is a government which is strong on the rhetoric of traditional values of courtesy and respect—respect for elders and respect for property rights. It is a government which uses the rhetoric of small government to limit its interference in the rights of individuals to conduct their lives as they see fit. Why do these same values not apply when it comes to its dealings with Indigenous people? It is time the Howard government showed Aboriginal people some respect, showed elders some respect and showed some respect for Indigenous property rights. If the government cannot bring itself to show some respect for Aboriginal culture and connection to the land, then it should at least respect Aboriginal people’s right to be dealt with as citizens.

The land rights act was the first and most substantial legal instrument of its kind and, as such, is one of huge symbolic and practical importance to Indigenous people in the Northern Territory. The act is a demonstration that we can work to do justice in the shadow of injustice and that our legal system is expansive enough to accommodate different cultural and legal systems and principles. It conferred significant landholdings on traditional owners which are available for their economic opportunities. But the government’s failure to respect Aboriginal cultural principles, negotiate with the owners of the land or get their consent in pursuing the changes contained in this bill show a shocking level of disrespect for Indigenous people.

The government is arguing that land rights have not provided the economic benefit to eliminate Indigenous disadvantage and is therefore seeking to construct a Hobson’s choice for Indigenous people—choose between your rights to land and your rights to economic development. I do not believe it is beyond the wit of traditional owners and the government to devise land tenure arrangements which streamline development without fundamentally undermining Indigenous ownership and control of the land. Labor urges the government to go back and negotiate with Aboriginal people and talk with them, not at them. Then I am certain we will have a much better result than that proposed in this bill. The bill is an affront to Aboriginal Australians and to the bipartisanship that we should be seeking to gain in dealing with land rights legislation. I urge the Senate not to accept the bill in its current form.