Private Property


By the time the conference dinner, held on the last evening of the three-day Native Title Conference, takes place, attendees are worn out by an overdose of earnestness, an over-abundance of cake and the prospect of returning to work at the coalface. 

The Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) has held 10 annual native title conferences since 2000. They are a valuable, if exhausting, forum for the sharing of knowledge relevant to a highly specific, complicated and cross-disciplinary area of law.

The first day is restricted to those who might be described as friends of native title: claimants, determined native title holders and employees of native title representative bodies and prescribed bodies corporate. Attendees analyse new developments in law and policy and share strategies for navigating a system heavily weighted against the interests of native title parties. The following two days see the conference opened to any interested parties — "external stakeholders" in bureaucratese — including representatives of industry, the judiciary and government.

At this year’s conference dinner, Jenny Macklin, the Minister for Indigenous Affairs, stumbled as she climbed to the podium to make her speech. Had the minister been Mal Brough, Philip Ruddock or Amanda Vanstone, one might have expected titters or even boos from the audience — but by and large, the crowd politely restrained its mirth. This was at long last a Federal Labor Minister for Indigenous Affairs, a member of the political party responsible for Paul Keating’s 1992 Redfern speech, the passage of the 1993 Native Title Act and the 2008 National Apology to the Stolen Generations.

Buoyed by a positive keynote address that morning from the Honourable Robert McClelland — in which the Federal Attorney-General expressed "a sense of optimism" — listeners waited expectantly.

After the customary acknowledgment of the traditional owners, the Wurundjeri people (who had by this stage been thoroughly acknowledged — several times per day), Macklin declared that native title was no longer "contentious", that it was now accepted as "a fundamental right".

Given that native title is merely a branch of property law which accommodates — in a limited fashion — rights to land held under pre-sovereignty laws and customs, this statement was somewhat hyperbolic. Such remarks are, however, common in native title, where rhetoric rarely matches reality. Similarly, grandiose predictions of the system’s "enormous potential to be integral to the delivery of practical, structural change to give generations of Indigenous Australians a better future" are rarely challenged, although it is trite to observe that for the majority of Aboriginal people, the native title system will deliver no benefits whatsoever.

One could easily play "native title bingo" with such ministerial pronouncements, with points scored for "outcomes", "resolution", "relationships" and "going forward together".

Sections of the crowd shifted uncomfortably as cliché yielded to substance, with Macklin noting that "in resource rich areas, native title agreements can act as vehicles for considerable wealth transfer". Native title lawyers quickly become used to being the bringers of bad news — they must advise of the ease with which native title can be extinguished; the impossibility of "reviving" extinguished title; and the lack of either a right of veto or a statutory entitlement to any royalties from mining.

At last, however, there is some good news: the Minister was correct in noting that in certain areas, such as the Pilbara region of Western Australia, claimants can benefit financially from agreements negotiated with mining companies under the complicated "future acts" regime in the Native Title Act. There is a sense in the Pilbara — where Aboriginal people have long seen booms come and go without deriving any particular benefit — that native title is finally beginning to make a tangible difference to people’s lives.

Not everyone shares this optimism.

The fear that blackfellas will claim one’s backyard seems to have been replaced by an anxiety that "the first Australians" might live out the Australian dream by striking it rich. Macklin has previously hinted at this concern: the palpable awkwardness in the conference venue stemmed from remarks made in a series of 2008 speeches in which she opined that moneys derived from "native title agreements" must not become "irregular windfalls to be frittered away for no long term good" but must be used to "create employment and educational opportunities for individuals" and be "invested for the long term benefit of communities".

Many native title claimants and holders strongly share the view that such moneys ought not to be wasted and, further, argue that funds must be shared equitably within a claim group. The Minister goes even further, however, in eliding the differences between such groups (as defined by traditional law and custom) and broader Indigenous "communities".

Native title claim groups may wish to use financial benefits derived from their unique property rights for the good of other local Indigenous people. Macklin, however, blurred the distinction between public and private property. At the conference dinner, she suggested that the "challenge for all of us — the policy makers, Indigenous leaders, and resource developers — is to establish a structure of governance that ensures the financial benefits improve the economic status of Indigenous people". The terms "us" and "we" cosily evoked a neutral public sphere in which it is legitimate to judge how other people’s money is used.

In a proudly capitalist society like Australia, suggestions that people be restricted in the expenditure of money derived from their property rights are rarely heard. It is also notable that Macklin is a member of the political party that championed the modern Australian welfare state, a concept defined by the government taking responsibility for service delivery, such as health, housing, education and infrastructure, to all citizens. The implicit suggestion that "employment and educational opportunities" ought properly to be subsidised through private incomes was therefore somewhat jarring.

The Minister’s reference to "our shared responsibility to make sure the millions of dollars … are used to create economic opportunities for generations to come" unfortunately recalled the terminology of the former Howard Government’s Shared Responsibility Agreements, one of which notoriously required the inhabitants of a town-site to wash their faces and meet other minimum hygiene requirements in exchange for the construction of a petrol bowser and the delivery of health checks. The phrase also evoked the ubiquitous pseudo-debate between rights and responsibilities that Indigenous academic Megan Davis characterises as a "manufactured diversion" reflecting merely a "conservative antipathy to rights".

Macklin’s characterisation of native title as "a real and powerful acknowledgment of Indigenous culture" was ultimately hollow, offering no more than further recognition. The speech brought to mind Noel Pearson’s summation of the National Apology: "blackfellas will get the words, the whitefellas will keep the money."

Macklin’s speech gave the impression that the Rudd Government’s "new approach to native title" is plagued by a longstanding problem: an inability to engage with Indigenous people as the holders of property rights. Still, the serious part of the evening almost over, the weary crowd shrugged and clapped politely.

Later on, "Treaty" by Yothu Yindi and, somewhat counter-intuitively, "Hey Mickey" would prove to be hits on the dance floor.

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