Black Property Rights? Not Under A Liberal Government

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Earlier this month, Tony Abbott characterised the Bligh Government’s amendments to the Wild Rivers Act 2005 as an "attack on the rights of Aboriginal people". The Opposition leader promised to lodge a private member’s bill to quash the legislation in question.

Abbott was critical of the amendments to Wild Rivers on the grounds that they would "lock up the land". His rhetoric is startlingly similar to that deployed by the Howard Government to justify its 1998 amendments to the Native Title Act. Those amendments, and the overheated rhetoric that surrounded them, were hugely divisive.

Have we already forgotten Tim Fischer’s notorious promise to his rural constituents to deliver "buckets of extinguishment"? In 1998, commentators seriously discussed the possibility of a "race-based" double dissolution election to allow for passage of the bill through the Senate, a scenario avoided by Senator Brian Harradine’s eventual decision to support the legislation.

Abbott’s embrace of the language of Aboriginal economic empowerment is neither new, nor radical, nor even remotely surprising. On the contrary, it is an extension of the Liberal Party’s support for big business, small business and the smooth flow of market forces.

So, in a tussle between a business and anything alleged to pose an obstacle to its profitability — like a trade union or an emissions trading scheme — the Liberal Party will generally incline toward business interests. And in the event of a dispute between Aboriginal-owned initiatives and environmentalists (or state governments with regulatory aspirations) the Liberal Party will tend to favour the former.

If a dispute is between a mining company or pastoral interest and an Aboriginal group, however, it is not difficult to work out in whose corner the Liberals will find themselves.

Lest this all sound too cynical, cast your mind back over the history of native title in this country. The aspect of the Native Title Act that caused the Liberals the most ideological anxiety was the right to negotiate ("RTN"), a procedural right accorded to registered native title claimants and determined native title holders. The RTN applies to certain categories of what are known as "future acts" — acts which affect native title. Before these future acts — like mining leases — are granted, the parties are required to negotiate in good faith within a period of six months. There is no obligation to pay compensation, nor are parties required to reach an agreement; merely to negotiate with a view to doing so.

The Native Title Act was predicated on the recognition of rights that continue to exist under a traditional system of law rather than on economic development for Aboriginal people. Further, the RTN is undeniably, in the words of Professor Ciaran O’Faircheallaigh, subject to "unreasonable and extraordinary restraints" which curtail the ability of native title claim groups to reach beneficial agreement with third parties.

All this noted, however, the benefits of the RTN cannot be dismissed; it is the only aspect of native title that allows its holders to derive material benefit — as distinct from the amorphous "recognition" — from their traditional lands.

Traditionally, the Liberal Party has not shared these views; indeed, its opposition to them has been remarkably consistent.

It greeted the Mabo decision with collective disdain and voted against every provision of the original Native Title Act.

John Howard, speaking to a group of pastoralists following the 1996 Wik decision, characterised the RTN as "that stupid property right … a licence for people to come from nowhere and make a claim on your property". He deemed it "un-Australian and unacceptable". The RTN’s latent potential for economic development was ignored in favour of providing "certainty" and "security" to non-indigenous landholders. The 1998 amendments were, however, less onerous than Howard had hoped. Thanks to a hostile Senate, the RTN remained largely intact — although its operation was severely restricted in some areas; for instance, infrastructure tenements now attract the lesser right to be consulted.

Now, Abbott has described the Wild Rivers legislation as discriminatory, criticising the Queensland Government for having "effectively locked [Aboriginal people] out of their land by making economic development on Cape York almost prohibitive through over regulation and red tape".

This language rings hollow when contrasted with his party’s legislative reduction of the scope of the RTN. By "locking out" its operation with respect to particular future acts, the 1998 amendments reduced the ability of native title holders to negotiate compensation, business development, employment and training provisions in agreements with third parties.

(That is not to say that the Native Title Act was perfect prior to the amendments; far from it. It is often argued, most recently by journalist Marcus Priest, that the Act leaves its beneficiaries with an "unusable property right". Priest writes that "the key to capitalising on the economic potential of native title lies in affording Aborigines the ability to properly negotiate and receive meaningful recompense for their rights".)

Abbott’s language on Wild Rivers is inconsistent with his party’s traditional opposition to native title. Does the land around Cape York belong to the Aboriginal proponents of small business that Abbott champions, or did these people come from nowhere? When Abbott states that Wild Rivers denies "Aboriginal people their legitimate right to use [the land]for their own benefit," is he implying that Indigenous people have, by the fact of their prior occupation of Australia — watch out, Tony! — "special rights"?

The apparent incoherence in the Liberals’ attitude towards Indigenous rights can be explained thusly: Aboriginal opponents of Wild Rivers seek to profit through the market, while native title holders gain property rights from traditional law and custom, rather than from any entrepreneurial efforts of their own. Any compensation paid to the latter can, therefore, be viewed as unearned benefits. The response? Well, as far as the Liberals are concerned, inherited wealth is fine and dandy when you’re white.

Post-Wik, Howard opined that the pendulum had swung too far in favour of Aboriginal people. Abbott’s recent comments on Wild Rivers remind us that the Liberal Party’s own ideological pendulum might swing again.

The Liberal Party does, after all, have other narratives on Indigenous affairs on which to draw. In 1976, faced with the bill that would become the Aboriginal Land Rights (Northern Territory) Act (which was introduced into parliament by the Whitlam government prior to its dismissal), the Fraser government passed it. It is difficult, however, to imagine any subsequent Liberal leader (with the possible exception of Malcolm Turnbull) following suit on comparable legislation. Over the last three decades, the dries have triumphed, the latest manifestation of their success being Abbott’s victory over Turnbull in the December 2010 leadership spill.

Abbott’s statements have been lauded by pundits as delivering a superb wedge to the Rudd Government — and dismissed as a "stunt" by Queensland’s Natural Resources Minister Stephen Robertson. It remains to be seen whether Abbott’s rhetoric on Wild Rivers will mark a step forward for the Liberal Party or simply business as usual.

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