home | news l

Land rights changes need injection of common sense

By Sean Brennan

8 August 2006 - There are telltale signs when ideology overrides common sense in making new laws. Government tries to ram changes through quickly, under the radar of public and media scrutiny. The process looks dodgy and words in the law mean the opposite of what they say. Even long-term allies and kindred spirits cannot conceal their discomfort and unease.

That is precisely what is going on this week with proposed amendments to the Northern Territory Land Rights Act. This is Australia’s high water mark in land rights legislation. Whitlam introduced it in 1975 and Fraser ensured it went through the following year. For a long time it enjoyed bipartisan support and both sides of politics are rightly proud of what the law has achieved, including the return of half the Territory to traditional ownership.

The Howard Government wants to make some of the most dramatic changes to that law in its thirty year life. Some of the amendments reflect the public policy process at its best. Some show a government using parliament like a doormat. It is ignoring advice on all sides to slow down and bring people on board over issues that everyone can agree on.

The Bill proposes a range of reforms. Many result from extended consultation and negotiation. As a result, changes to streamline agreement-making about mining on Aboriginal land enjoy broad support. They show that Land Councils and miners are just as interested as governments in facilitating appropriate economic development for Aboriginal people on their land. Sadly other parts of the package have not been approached in the same spirit.

The proposal to grant headleases over Aboriginal townships to government entities for 99 years is about improved housing and economic development, according to the Minister Mal Brough. These are objectives no one disagrees with. So it is unfortunate that the Commonwealth has reverted to a 'government knows best' attitude, something that has failed in indigenous affairs almost every time it has been tried.

Instead of adopting the partnership approach it took to mining changes, the government has simply bolted the leasing proposals onto the Bill. Brough says leasing is voluntary, but no one is buying that and indications to the contrary are already coming in from the Top End.

Flaws in the process show up in the content of the law. The terms of the leasing deal are stacked against traditional owners, in favour of the government. On the floor of parliament Brough had to ditch his initial plan for an arbitrary limit on the rent Aboriginal people could charge.

But other restrictions on the ability of traditional owners to a get a fair deal remain. Why tie the hands of traditional owners in lease negotiations if the whole objective is to promote an enterprise culture?

Meanwhile, last-minute changes of major proportions are still being made. The Northern Territory Government, which is central to whole plan, had only three days to comment on the legislation. Like all cases of policy on the run you have to wonder what the rush is really about.

The Bill also makes it possible for the Commonwealth Minister to break up existing Land Councils into smaller, less powerful organisations. Again these are unilateral measures and reflect long-standing ideological views about the strength of existing Aboriginal organisations. They run counter to the Commonwealth’s drive elsewhere for consolidation and economies of scale in native title and Aboriginal legal services. That mismatch was pointed out by the Minerals Council of Australia. When the miners side with Land Councils against the government, it is a sure sign that government ideology about indigenous affairs is trumping workability and genuine stakeholder interest.

When the government goes further and adopts the doublespeak of 'delegation' to describe the stripping of core functions from land councils by the Minister, it becomes even clearer that the Senate must not pass this law in its current form.

The Government used the guillotine procedure to cut off debate in the lower house, after less than three hours. A Senate committee had a one day hearing and a few days to write a report. Government Senators said the process was 'totally inadequate' and ‘such fundamentally important legislation should have bipartisan support with broad consensus among stakeholders affected’. At present half the Bill has that and the other half is nowhere near that point.

The Bill is before the Senate on Tuesday. Either it should be split so that the consensus provisions can pass or the entire law should be deferred, so that more sensible proposals for achieving its objectives can be agreed upon by all stakeholders.

Sean Brennan is a project director at the Gilbert +Tobin Centre of Public Law at UNSW Law School. He has worked in the past for land councils, including in the Northern Territory.

Source: The Age

Further information:

Thousands of Australians demand the Senate defers Tuesday’s vote on new Aboriginal legislation

Media release ANTaR

6 August 2006 - Australians are taking the unprecedented step of urgently petitioning the Senate to defer its vote on a Bill that will see Aboriginal people pressured into giving up their land for the next century.

 Under the guise of promoting economic development, the legislation could see Indigenous people lease back their land for 99 years in exchange for securing basic services – such as housing and schools.

Nationally thousands have joined with Australians for Native Title and Reconciliation (ANTaR) and Australia’s leading independent campaign organisation, GetUp to demand that Senators undertake the proper consultation and due diligence such fundamental legislation so clearly requires before they vote.

ANTaR National Director, Gary Highland said the changes to the Land Rights Act were introduced against the explicit wishes of Indigenous people in the Northern Territory – and are set to be approved with only three hours of debate in the House and a one day Senate Inquiry.

“The Government is once again using its control of the Senate to ram through changes to an Act that has been supported by all sides of politics for more than 30 years. The amendments haven’t even been discussed with those traditional owners who would be most affected by them,” Mr Highland said.

GetUp Executive Director, Brett Solomon said thousands of people signed the online letter of demand within hours of it being launched on Friday – and more are asked to personally phone their senators on Monday to request a delay on the vote.

“These seismic policy changes are just too important to rush through. A scant one-day parliamentary inquiry should not be permitted to rubber stamp a policy that will leave four generations without land or leadership. Even Government senators expressed their 'alarm and concern' at this totally inadequate debate, ”

“The economic case for these changes has not been made. The social consequences are untested. In these circumstances, the Senate must delay its vote,” Mr Solomon said.

The legislation would weaken the independence and effectiveness of Aboriginal Land Councils and wipe out a number of current land claims that have been recommended for granting by the Aboriginal Land Commissioner.

The ANTAR/Get Up campaign is at www.getup.org.au/campaign/StoptheLandGrab

 Media contacts: Gary Highland on 0418 476 940 or Brett Solomon on 0407419320

Five Reasons to oppose the Government’s Land Rights changes:

1.  Traditional owners could lose control over their land

 Aboriginal people could be pressured into signing over their land to the Government for 99 years in return for basic services that their communities desperately need. This has the potential to lock generations of Aboriginal people out of effective control over their land. 

2.  Rental payments will come from the Aboriginal Benefits Account

 Rent for leasing land would not be paid by the Government, but from mining royalty equivalents via the Aboriginal Benefits Account (ABA).  The ABA was established for the benefit of Indigenous people, funded from mining activities on their land.  It was never intended to be a subsidy for government.  The amendments would in effect result in a situation where the savings of the landlord are used to pay the rent of the tenant.

3. The independence and effective management of Land Councils would be weakened

 The Minister would have greater powers to override Land Council decisions, reduce funding to Land Councils and enable smaller Land Councils to be set up - even when a significant proportion of traditional owners may be opposed to this happening.  These changes would reduce the independence of Land Councils and make them more susceptible to the risk of future political interference.

 4. Indigenous people do not support these changes.

 Much of the content of the Bill was put to Parliament without any indication that it is supported by traditional owners or Aboriginal communities more broadly in the Northern Territory.

 Traditional owners, the Northern and Central Land Councils, the Aboriginal and Torres Strait Islander Social Justice Commissioner and ANTaR are all opposed to the changes.  Indigenous people have not been given the opportunity to discuss these changes with the Government.  The Senate Committee inquiry on the legislation was only allowed one day of hearings.

 5.    Current land claims would be wiped out. 

 A number of current land claims that have been recommended for granting by the Aboriginal Land Commissioner would be automatically wiped out.  Aboriginal people would be denied the opportunity to have these claims assessed in a fair and objective way.

Source: ANTaR

Further information:

• Submission to the Senate Community Affairs Committee Inquiry into the Aboriginal Land Rights (Northern Territory) Amendment Bill 2006

Federal Government aiming to steamroll controversial changes to Land Rights laws through the Senate this coming Tuesday!!

!! Urgent Action Alert !! from Senator Bartlett (Australian Democrats)

4 August 2006 - All parties, including the federal government, recognise that the Land Rights laws for Aboriginal people in the Northern Territory are of fundamental importance. They were introduced in the early years of the Fraser government and have received broad cross-party support since that time.

However, legislation making major changes to the Land Rights Act, which was only unveiled at the end of May, is scheduled to be pushed through the Senate when it resumes this coming Tuesday, August 8th.

The government allowed only an extremely rushed Senate Committee Inquiry. Even the Government Senators on the Committee described the time made available for the Inquiry as "totally inadequate".

However, even this very truncated process showed there are clearly very serious concerns and misgivings about some of the changes amongst Traditional Owners and some of the Territory Land Councils.

 While there are also some changes within the legislation that have broad support, all non-government submissions provided to the Senate Inquiry identified areas of major concern, including the submission from the Australian Mining Council.

The submission of the Aboriginal & Torres Strait Islander Social Justice Commissioner expressed very strong concerns about the lack of consultation with the Indigenous people who will be directly affected by the changes, as well as with the likely impact of some of the changes.

Evidence provided to the Inquiry on the single day public hearings were able to be held also made it very clear that there has been no meaningful consultation with the people whose land ownership rights will be directly affected by many of the changes.

An attempt will be made in the Senate to split the legislation to allow the non-contentious changes aimed at improving the workability of the existing Land Rights law to be passed straight away; while deferring the contentious aspects so consultation and negotiation with affected parties, including traditional owners, can take place.

If you share my view that the contentious changes proposed to this critical area of law must not proceed without genuine consultation and informed consent from Traditional Owners and Land Councils, please urgently contact your Liberal and National Senators, asking them to support efforts to allow proper consultation with Indigenous people to take place on the contentious aspects of this legislation before they are passed into law.

My most serious concern is the lack of consultation with the people who will be directly affected by the changes, and the total lack of respect shown by this approach. If it the changes had the informed consent of traditional owners, I would support the legislation even if I had personal misgivings.

However, some of the specific components of the legislation itself which do concern me include:

• the potential for governments to be able pressure Aboriginal people to sign over their land to the government on 99 year leases;

• the fact that the rent payments on such leases will come straight out of the Aboriginal Benefits Account, meaning in effect that money that was already going to be spent for the benefit of local Aboriginal people will now be used on paying the rent on Aboriginal land;

• greater powers for the federal Minister to override Land Council decisions, reduce funding to Land Councils and to enable smaller Land Councils to be set up even when a significant proportion of traditional owners may be opposed to this happening;

• the automatic wiping out of a number of current land claims, (and the potential economic opportunities that go with them), that cover intertidal zones not contiguous with Aboriginal land - including a number which have already been recommend for granting by the Land Commissioner who assesses claims.

You can read the legislation and related information by clicking here. All of the submissions to the Inquiry can be viewed here, and the transcript of the hearings can be found here. The full report is available here. My own comments in the Senate Committee report can be read here.

Senator Andrew Bartlett

Please urgently join the camapign

Don't let the sun set on Indigenous land rights

Further information: native title issues page - includes news index and external links