What's Left of Land Rights?


While social justice campaigners around the country were patting themselves on the back after the Prime Minister dumped the Migration Amendment Bill this week, the Senate quietly passed a controversial Bill with century-long implications for Australia’s Indigenous people.


On Wednesday 16 August, after just three hours of discussion in the House of Representatives and a one-day Senate inquiry, Senators approved an amendment to the Aboriginal Land Rights (Northern Territory) Act. Among other changes, the legislation will establish a system of leasehold whereby Aboriginal people are invited to give up their land on 99 year leases to the Government, often in exchange for basic services.

In a statement, the Minster for Indigenous Affairs, Mal Brough, said:

There is nothing in the Bill that alters the inalienable title rights of Indigenous

communities in the Northern Territory Contrary to suggestions that the Aboriginal Land Rights (Northern Territory) Amendment Bill is being rushed through Parliament, the Bill is the product of three reviews andnumerous consultations conducted over the last nine years.

However, according to national Australians for Native Title and Reconciliation (ANTaR), this is misleading. Parts of the Bill have indeed been the subject of extensive consultations and have the support of the land’s traditional owners; however, other amendments, including the 99 year lease provision, were added to the Bill at the last minute.

ANTaR, in cooperation with Oxfam and independent campaign movement GetUp!, have been campaigning to have the vote delayed to allow more time for discussion, and proper consultation with the people the Bill will affect.

The GetUp! campaign released a petition on its website last Friday night, and by the end of the weekend had collected 25,000 signatures. Thousands of Getup members phoned their Senators in Canberra last week to call for a delay.

Labor, the Greens and the Democrats proposed a motion in the Senate on Monday to split the Bill which would have passed its non-controversial aspects and allow the Government more time to consult on those sections that had only recently been added. The motion was defeated. And on Wednesday morning the Bill was passed along Party lines: 36 votes to 32. To be finalised, it must pass again through the Lower House but this is really a formality, given the Coalition’s control there.

Many fear that, under the new legislation, traditional Indigenous owners could lose control over their land. Hoping to boost home ownership and business development opportunities for Indigenous people, the Bill will allow traditional owners to lease communal lands to a government entity for 99 years. The government will then sublease the land.

Yet land apart from being the central component of Aboriginal culture and spirituality is also Indigenous people’s key asset. In her submission to the Senate Committee enquiry Raymattja Marika, a Yolngu elder and traditional owner from Yirrkala in Arnhem Land, wrote:

To Yolngu, land is our identity. It is connected to our well-being, our language, our culture, our law. It is the foundation of our very being. To cut us from our land you cut us from our culture We need the cultural association of the land to sustain us, and we want control of our most important asset so that our children and their children can enjoy the social, cultural and economic benefits that land can bring. We do not want 99 year leases.

GetUp!’s Executive Director, Brett Solomon says, ‘In effect, Indigenous people are told that if you don’t sign this lease you won’t get schools or housing or healthcare. This is obviously problematic these are citizenship rights, these are not rights that people should have to earn by leasing out their land which they already own. ‘

Mal Brough

Marika, who is the daughter of Roy Dadaynga Marika, one of the instigators of the Northern Territory land rights movement in the 1960s, agrees. ‘We don’t want other people making decisions about who can come on our land and start a business. We don’t want McDonalds in Yirrkala,’ she wrote.

Mal Brough, on the other hand, emphasises that Indigenous communities are not compelled to take up the leases. ‘The choice to offer 99 year headleases is voluntary. Some communities might take up the opportunity, some might not. ‘

Yet Marika argues that it’s hardly free choice when the provision of basic services is contingent upon handing over land:

As many of my people are poor, your money is attractive to them and you know it. But are they really agreeing to a lease, or are they agreeing because they are poor and they need your money? Are we back in the days of giving the natives glass beads and trinkets for their land?

ANTaR is also concerned that the rental payments from the government entity that leases Aboriginal land will not come from the government, but from the Aboriginal Benefits Account a fund established for the benefit of Indigenous people, out of royalties from mining activities on their lands.

‘It’s outrageous You’ve got a situation where the savings of the landlord are in effect used to pay the rent of the tenant,’ says ANTaR National Director Gary Highland. ‘You’d be hard pressed to find another group of people in Australia that this would be applied to.’

The new legislation will also reduce the power and funding of the Land Councils. It will allow new, smaller land councils to be set up, even when a significant proportion of the traditional owners may be opposed to this happening. Even more worryingly, it would give the Minister for Indigenous Affairs the power to override a Land Council’s decision not to delegate its power to a third party.

‘Put those things together and what you end up with is four generations of loss of land, and loss of leadership,’ says Solomon.

According to the Bill’s detractors, the fundamental problem with this amendment is the lack of consultation with the people it will most affect. Whatever personal misgivings he may have about the technicalities of the legislation, its passing into law would not necessarily have been an issue had the land’s traditional owners been properly consulted, says Solomon.

Opposition Senators agree. According to the Shadow Minster for Indigenous Affairs Chris Evans: ‘The Land Rights Act is an iconic piece of legislation, which had bipartisan support from the start, and people have consistently accepted the view that you’d only amend the legislation with Aboriginal consent,’ he says:

The Government is seeking to interfere with Indigenous people’s property rights, without consulting them or seeking their consent. The lack of consultation and the lack of respect shown Indigenous people has been reflected in everything [the Government has]done on this issue. There’s no disagreement from Indigenous people that they want economic development on their land they want services, they want opportunities to develop their communities, but the Government is about control about doing things to Aboriginal people rather than doing things with them.

Last week the GetUp! office received a call from a Northern Territory Indigenous leader, says Solomon. ‘She had no idea this was
going on. We talked for nearly half an hour, and that was the first they’d heard of it!’ he says. ‘It’s ridiculous “ we are a Sydney organisation with no firsthand connection with these people, and they are grasping at straws trying to find out what’s going on.’

Where traditional owners have been consulted, they have consistently opposed these changes to the Land Rights Act. But this week, their opinions were ignored, despite numerous submissions to the Senate Committee from Indigenous leaders like Raymattja Marika:

As the traditional owners, we must be informed, we want to be informed. This land rights legislation is our legislation. This affects us. We really need to be able to talk about it together If you put bonds on our land and let other people take leases over that land, then you take away our songs, our animals, our plants, our totems, our waters and our ceremonies. If you change these land rights laws you will make us prisoners of your policy. We are capable people; we can take responsibility for our own land.

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.