The Law of the Land


During the last Federal election campaign, Labor leader Mark Latham announced that an ALP Government would abolish the Aboriginal and Torres Strait Islander Commission (ATSIC).

Permission thus granted, Prime Minister Howard wasted little time once he'd been returned to power in disembowelling this great, flawed expression of Indigenous self-determination. At a single stroke, Howard muzzled the voices of Australia's elected Indigenous leaders. These women and men had been prepared to speak all-too freely about the injustices that governments, Federal and State, continue to visit upon Aboriginal Australia.

With ATSIC vanquished, a Prime Minister whose name has become synonymous with political cunning may well have surveyed the landscape for any remaining bastions of unfettered Indigenous self-determination. His eyes would have alighted on the Northern Territory's two powerful and well-run Aboriginal Land Councils.

The Central Land Council (CLC) is based in Alice Springs and administers Aboriginal land as far north as Tenant Creek, and west from there to the country of the legendary Gurindji mob, who put land rights squarely on the national agenda with their 1975 'handful of sand' triumph. The CLC's counterpart, the Darwin-based Northern Land Council (NLC) oversees the Aboriginal land of the Top End, save for the Tiwi Islands and Groote Eylandt, which are managed by small local Councils.

In theory, the Land Councils manage land. In practice, Aboriginal people in the bush turn to these relatively powerful and well-organised bodies to assist them in matters as diverse as health and housing. These requests are not generally refused, for that is not the Aboriginal way.

The Aboriginal Land Rights (Northern Territory) Amendment Bill 2006, which was tabled in Parliament in late May, sounds like a fairly innocuous piece of work. In the soothing language of the Government's spin doctors, the amendments will 'increase access to Aboriginal land for development, facilitate the leasing of Aboriginal land, devolve decision-making powers to regional communities, and increase the accountability of land councils.' Nothing much to worry about there.

However, closer examination reveals a wolf lurking beneath the apparently benign fleece.

In fact, the proposed legislation is driven by the Government's unshakable but unproven ideological standpoint that individual property rights are the sole wellspring of economic development. 'The days of the failed collective system are over,' is the axiomatic incantation of the Federal Indigenous Affairs Minister, Mal Brough.

According to the Federal Government, the salvation of remote Indigenous communities lies in the 99-year lease, which will entitle traditional owners only to limited and tied payments in return for forgoing control over commercial and residential developments on their land.

Thanks to John Firth

Indigenous Australians, who have suffered the dispossession of their land and all manner of brutal mistreatment, are to be mollified with mortgages.

This idea was floated by maverick Indigenous ALP President, Warren Mundine before he jumped ship from his position on the National Indigenous Council (NIC). But Mundine didn't make it clear how people living in remote communities on minimal incomes will benefit from private ownership. It smacks of a 'suburban solution,' with no regard to the fact that houses on remote communities are very expensive to build and notoriously difficult to maintain in the absence of tradespeople, materials and money.

The Aboriginal Land Rights Act (ALRA) amendments also clear the way for the emergence of a number of smaller land councils, and an accompanying devolution of power to the grassroots level. This argument has a superficial attraction. However, the same logic might equally suggest the disbanding of the Federal Parliament in favour of regional representative bodies, which would also be much closer to those they claim to represent.

In truth, the break-up of the large land councils will see a loss of critical mass which is likely to result only in weak localised councils, without the constituency or the resources to adequately represent positions to government.

NLC Chief Executive Norman Fry has observed that the proposal is 'unworkable and inefficient and will promote dispute and jeopardise developmental outcomes.' Fry warns of the dangers of asking 'a myriad of under-funded, inefficient, small corporations' to accept responsibility for complex legal functions.

The CLC and NLC are currently funded by 'mining royalty equivalent' monies, paid under the provisions of the Aboriginal Benefit Account (ABA) prescribed in the Aboriginal Land Rights Act. Until now, the land councils have enjoyed considerable financial independence from the government of the day. However, the additional ministerial powers contained in the proposed amendments threaten this crucial principle.

Professor Jon Altman is the Director of the Centre for Aboriginal Economic Policy Research at the Australian National University. Altman, who in 1984 chaired a review of the Aboriginal Benefits Trust Account (as the ABA was then known), says the proposed amendments will 'destroy the integrity of the ABA and undermine the thoughtful balance embedded in the financial framework of the current ALRA.'

Warren Snowdon, ALP Federal Member for the Northern Territory seat of Lingiari, is uniquely placed to comment on the proposed legislation because he worked at the Central Land Council before his election to Parliament. Snowdon suggests that the Government is engaging in political skulduggery under the guise of administrative adjustment:

They want to undermine the integrity of the Land Rights Act and remove the right of traditional owners to have control over what happens on their country. They want to restrict the capacity of the Land Councils to act as advocacy organisations and quieten any potential for Indigenous people to have a voice.

Democrats Senator, Andrew Bartlett, has called for the legislation to be referred to a Senate Committee where it can be more closely scrutinised. But the Prime Minister has a country to run, and plodding parliamentary processes are inefficient.

So the manager of government business carries a kitbag full of gags and guillotines to ensure that Parliament doesn't become bogged down in the tedious business of analysing and reviewing legislation. It may well be that the Aboriginal Land Rights Act is in need of amendment but the appropriate tool is a surgical scalpel, not a prime-ministerial axe.

Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.