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Australian Indigenous Law Reporter |
Commentary
I believe there’s a case for reviewing the whole issue of Aboriginal land title in the sense of looking more towards private recognition … I’m not talking here about reducing the opportunities for indigenous people, I’m talking about giving them the same opportunities as the rest of their fellow Australians.[1]
This article will analyse the Prime Minister’s comments in light of his Government’s administration of the Native Title Act 1993 (Cth) (‘NTA’). It will be argued that the Liberal Party’s ideological opposition to Indigenous land ownership has resulted in a native title policy that is heavily biased against native title representative bodies (NTRBs). This philosophy is likely to be the dominant force behind the Prime Minister’s call for privatisation.
By way of background, the paper will discuss historical factors that provide arguments against the dismantling of communal land ownership. In particular, it will be argued that the Commonwealth bears a moral obligation to preserve communal lands that are the legacies of the land rights movement.
This paper is divided into three parts. I will first discuss the nature of Indigenous land relationships and how they have shaped the black political movement. I will then refer to the historical experiences of Indigenous communities whose lack of communal title rendered them vulnerable to the economic imperatives of the State and industry. Finally I will highlight the racially discriminatory aspects of the Howard Government’s native title policies.
Relationships with land are mutually life-giving. Within the homeland or heartplace, the people have been, and still are, part of the creation or evolutionary process. In their responsibility for country and kin in social and spiritual interaction they are its continuing stewards as well. The Dreamings are not something that happened in the long distant past. Dreamings are the processes of human action in co-creation with the great Creators and the ancestral beings, which continue in the present, the continuing birth, life, death, rebirth, renewal that is human activity across millennia.[2]
Individual property rights cannot be easily reconciled with Aboriginal law, which does not give the living any greater claims over the land than those of future generations. However, despite the pressures of colonisation, the stewardship concept remains universal amongst Indigenous peoples. The pursuit of land justice has been the most enduring theme of the Indigenous political struggle.
The history of the land rights movement has been conspicuously absent from the current debate, implying that communal lands were gifts from the colonial state, arising independently of black agency. In reality however, each community’s title deed carries the indelible blood stains of our ancestors.
Our early freedom fighters resisted the Europeans’ thirst for land, giving rise to violent conflict. Of one Queensland district it was written that ‘every acre of land … was won from the Aborigines by bloodshed and warfare’.[3] Survivors of the frontier wars were herded onto reserves at the turn of the twentieth century.[4] Yet in spite of living under penal conditions, Indigenous people mobilised to form political organisations.
While such groups were necessarily shaped by local influences, the demand for land featured in each raft of claims. For example, in 1927 the Australian Aborigines Progressive Association (‘AAPA’) petitioned Premier Lang for ‘reasonable repatriation’ of their land.[5] Through their newspaper, Australian Abo Call, the AAPA also expressed concerns about the dissipation of Aboriginal reserve lands:
The position here is that the A.P. Board [Aborigines Protection Board], as trustees for 14,000 acres of land reserved for Aborigines, has in its wisdom seen fit to lease many of these reservations, wholly or in part, to white men for grazing purposes … we think it inequitable that land reserved for Aborigines should be leased to white men, and we intend to investigate the position thoroughly, bringing it before the notice of the Crown Lands Department, and other authorities, who may be able to advise us whether the A.P. Board has exceeded its powers …’[6]
The activism of the AAPA is remarkable in light of protectionism, a regime that stifled the exercise by Indigenous people of fundamental human rights.[7] Political leaders of their generation often carried the risks of removal to punitive reserves and separation from kin.[8]
Three decades later the AAPA’s call for land justice found resonance in the Gurindji strike. The strikers were employed on the Wave Hill Station in the Northern Territory, by the British consortium, Vesteys. Like other Indigenous pastoral workers, the Gurindji people were excluded from the Cattle Station Industry (Northern Territory) Award 1951.[9] On 23 August 1966 their leader, Vincent Lingiari, demanded a wage of $25 per week.[10] When Vesteys’ manager refused, the Gurindji people walked off the property.
Although the strike was sparked by an industrial dispute, its primary goal was repatriation of traditional lands. As Vincent Lingiari declared to Lord Vestey, ‘You can keep your gold. We just want our land back.’[11] Spanning over seven years, the Gurindji strike catapulted the issue of Indigenous land rights into the public domain. It also galvanised a pan-Aboriginal movement, which culminated in the Aboriginal Tent Embassy.
On Australia Day in 1972 Prime Minister McMahon stated that his Government would not recognise Indigenous land rights.[12] In response, a small group of Koori activists established the ‘Aboriginal Embassy’ on the lawns of Parliament House. The motivations of the Embassy evolved primarily around land justice. Their five-point plan demanded Aboriginal ownership of all existing reserves and preservation of sacred sites.[13] Despite the Embassy’s peaceful inception, federal police razed the tents on 20 July 1972, creating a melee that resulted in eight arrests and numerous casualties.[14] By then however, the Embassy was firmly embedded in Indigenous history.
Later campaigners continued their pursuit of land justice in the courts, generating the watershed decisions of Koowarta v Bjelke-Petersen[15] (‘Koowarta’) and Mabo v The State of Queensland[16] (‘Mabo’). While much has been written about the circumstances behind the Mabo litigation,[17] less attention has been given to the Koowarta case, in which the High Court affirmed the validity of the Racial Discrimination Act 1975 (Cth).
The Koowarta decision arose from John Koowarta’s campaign to regain his traditional lands within the Archer River cattle station. In the late 1970s the Aboriginal Land Fund Commission successfully negotiated the purchase of the property. However, the Queensland Government blocked the transfer of the lease, decrying it as an attempt to obtain ‘land rights by the back door.’[18] Despite tasting victory in the High Court, Koowarta’s endeavours to return home were ultimately thwarted. Reading the writing on the wall, the Queensland Government converted the traditional lands into the Archer Bend National Park.[19]
After John Koowarta’s death, his relatives persevered with the struggle for justice, leading to the historic decision of Wik Peoples v The State of Queensland[20] (‘Wik’). Scenes of Wik woman, Gladys Tybingoompa, dancing outside the High Court in 1996 epitomised the indomitableness of the land rights movement.
It is self-evident from the above summary that today’s Indigenous lands were not charitable gestures by the State, but rare concessions to the demands of generations of Indigenous people. Prior to the distortion of their legacies, the possible consequences of privatisation must be scrutinised. Those consequences can be gleaned from the historical experiences of Indigenous people in the US and Queensland. In both jurisdictions the absence of communal land title did not stimulate economic development. Instead, it rendered communities vulnerable to outside interests.
Cobell v Norton[22] (‘Cobell’), one of the largest lawsuits ever filed in the US, is a case that raises issues related to this ‘checkerboard’ phenomenon. The class action on behalf of 500,000 Indigenous Americans evolves around the claim that the Department of Interior defrauded them of billions.[23]
Both the checkerboard effect and litigation are rooted in the General Allotment Act [Dawes Act] 1887 (US), which was signed into law on 8 February 1887. Essentially, the Act facilitated the fragmentation of Indian reservations into individual parcels. A fee simple title was vested in the Indian grantees and held on trust by the Government.[24]
The official rationale for the carving up of Indigenous lands was that of assimilation. Arguably, the sentiments of the former Commissioner of Indian Affairs, T Hartley Crawford, find resonance in Prime Minister Howard’s recent comments:
Unless some system is marked out by which there shall be a separate allotment of land to each individual … you will look in vain for any general casting off of savagism. Common property and civilization cannot co-exist.[25]
Rather than cast off ‘savagism’ however, allotment entrenched the poverty of Indigenous communities. By the time that Congress abandoned allotment in 1934 the Indians had lost almost two thirds of their lands.[26] They saw not only the contraction of their land base, but also the squandering of their wealth.
As a result of allotment, the Federal Government reaped a windfall from the sale of natural resources and farming leases over Indian lands.[27] The proceeds were to be distributed to Individual Indian Money (‘IIM’) accounts, managed by the Bureau of Indian Affairs within the Department of Interior. However, slipshod management on the part of the Department throughout the twentieth century saw the dissipation of the IIM accounts.
Over the course of the Cobell litigation, which commenced in 1996, Judge Lamberth of the United States Federal District Court has delivered scathing remarks regarding the Department of Interior. He described its supervision of Indian monies as ‘the gold standard for mismanagement by the federal government for more than a century’.[28] It is a standard that has prevailed, despite judicial scrutiny. The Interior Secretary and the Treasury Secretary have been fined more than $600,000 for failing to disclose the destruction of documents bearing on the case.[29]
In 1999 the Court appointed an investigator, Alan Balaran, to examine the finances of Indian beneficiaries. In 2004 Balaran resigned and accused the Department of unethical practices.[30] As bureaucrats continue to flounder, Indian communities are left to grapple with the legacies of allotment – dispossession and poverty.
It would be drawing a long bow to suggest that Indigenous monies would be dissipated if the allotment model were applied to Australia today. However, the nexus between the absence of communal land title and entrenchment of Indigenous disadvantage is paralleled by circumstances in the writer’s home State of Queensland.
For example, reserve communities were powerless against the State when bauxite deposits were discovered in Cape York in the 1950s.[32] The Queensland Government decided to close the Mapoon Aboriginal Reserve in order to make way for the mining company, Comalco.[33] In an attempt to coerce the people to leave, the State froze expenditure on infrastructure and food subsidies, later using the poverty it had induced as leverage to remove the church administration.[34] As the community’s tenacity became more apparent the Department of Native Affairs intercepted the adults’ welfare payments, at the same time warning them that their children would be subject to removal orders due to neglect.[35]
The people of Mapoon were eventually overwhelmed by an armed police contingent in 1963. The sight of families being marched away while their homes burnt to the ground was described by one observer as, ‘like a mob of cattle with nowhere to go’.[36]
Four years earlier the Weipa Aboriginal Reserve had also been sacrificed for Comalco. The Queensland Parliament reduced the community’s land base from 354,000 hectares to a paltry 124.[37] Despite losing the vast majority of their lands, the community was offered no compensation.
Throughout the 1970s, the Queensland Premier Bjelke-Petersen continued to steamroll Aboriginal communities who lacked title to their lands. For example, the Aurukun Associates Agreement Act 1975 (Qld) conferred a 42-year mining lease over much of the Aurukun Aboriginal Reserve to the mining company, Tipperary.[38] The Act was rushed through the Parliament after only two discussions between the Director of Aboriginal and Islanders Advancement, Patrick Killoran, and the Aurukun Council.[39] It was not until the possibility of international criticism during the Brisbane Commonwealth Games arose that Indigenous people were finally granted communal title to reserve lands.[40]
It is submitted that three lessons can be deduced from allotment in the US and the fragility of Aboriginal land tenure in Queensland. Firstly, the mere opening up of Indigenous lands to resource development is no guarantee that Indigenous people will gain economic benefits. Secondly, in the absence of communal ownership Indigenous people have little bargaining power with governments anxious to serve powerful industries. Lastly, in both jurisdictions the promise of prosperity successfully concealed the aim of facilitating Indigenous dispossession.
The Native Title Amendment Act 1998 (Cth) and the High Court’s subsequent chiselling down of native title have generated numerous academic texts. However, less attention has been given to the racially discriminatory features of the Howard Government’s administration of the NTA. In recent years the Commonwealth has tied one millstone after another around the necks of native title representative bodies (‘NTRBs’).
The wearing down of NTRBs implements the Howard Government’s ideological rejection of Indigenous land ownership. In this endeavour the Commonwealth has starved NTRBs of funds while simultaneously drowning them in soaring workloads. The final nail in the NTRB coffin will be the emasculation of their political voice.
Ever since the commencement of the NTA, NTRBs have been short-changed by the Commonwealth. In 1994 the inaugural Aboriginal and Torres Strait Islander Social Justice Commissioner, Michael Dodson, voiced his concern that the functions of NTRBs were being hampered by a lack of funding.[45] The following year a paper published by the Australian Institute of Aboriginal and Torres Strait Islander Studies suggested that the Commonwealth had underestimated the costs of implementing the NTA.[46] While the total amount requested by NTRBs from ATSIC was $38 million, only $14 million was made available.[47]
Three years later NTRBs were confronted with the Native Title Amendment Act 1998 (Cth). The amended Act included a more onerous registration test than that in the NTA, which required NTRBs to sink their resources into ‘vast amounts of technical drafting’, in order to preserve the procedural rights of their clients.[48] However, the trickle of Commonwealth money was inadequate to meet the new administrative load. For example, the Kimberley Land Council estimated that the cost of re-registering native title claimants would be $1 million. The Commonwealth obliged with $300,000.[49]
NTRBs also endured a burdensome re-recognition process at this time. Although the native title system was only in its infancy, NTRB boundaries were re-drawn and they were forced to meet new criteria in order to receive the Minister’s recognition.[50] NTRBs were also singled out for onerous reporting requirements and compelled to develop three-year strategic plans for Ministerial approval. Together with annual reports, the strategic plans are tabled in Parliament.[51]
NTRBs were not provided with appropriate resources to reflect their new responsibilities. A review commissioned by the now defunct Aboriginal and Torres Strait Islander Commission, the ‘Love-Rashid Report’, found that funding of NTRBs from 1997 to 1998 was only 70 percent of what would have been required for them to fulfil their statutory functions over this time. [52] The report also contained the following warning:
If NTRBs are not adequately funded they will not merely ‘under perform’. They will spiral down into a cycle of immediacy:
• Deferring strategic decisions;
• Externalizing costs;
• Forgoing opportunities for negotiation and settlement; and
• Only dealing with that which demands attention at any given moment; and
• Take on roles which deliver achievements as best they can.[53]
Six years later the prophecy has been fulfilled. Many NTRBs are now so impoverished that they are forced to beg project proponents for money so that they can represent their clients at the negotiating table. The invidious position that NTRBs are in has been described by one Director in the following terms:
We are left in the position of having to ask those resource companies to provide the funds in order for us to fulfil our statutory obligations … That is just not right in that, on the one hand, we are dealing with a company on a commercial basis to talk about settling an agreement and, on the other hand, our hands are tied behind our backs…[54]
The meagre resources of NTRBs have been stretched even further by the Commonwealth’s refusal to fund prescribed bodies corporate (‘PBCs’), the entities that represent the interests of native title holders after a determination has been made that native title exists. In the case of the Torres Strait Regional Authority, this has meant expending 34 percent of its annual budget on supporting fledgling PBCs.[55]
With breathtaking arrogance the Commonwealth Attorney-General, Phillip Ruddock, expressed ‘a strong preference’ for the establishment of PBCs prior to the formal recognition of native title.’[56] However, in the same speech he disavowed Commonwealth responsibility for funding PBCs, claiming that there was ‘a very sound case for parties to look beyond the Government’ for funding.[57]
While most of the 38-page submission is cast in imprecise language, there is the occasional clue as to what ‘increased flexibility’ will mean in practice. Firstly, the OIPC has a preference for the use of alternative service providers incorporated under the Corporations Act 2001 (Cth), as opposed to NTRBs.[61] Alternative service providers have already replaced NTRBs in New South Wales (‘NSWNTS’) and Victoria (NTSV’). The allure of alternative service providers lies with governance mechanisms that discourage the traditional advocacy roles of NTRBs. For example, the constitution of NTSV expressly prohibits the corporation from engaging in political lobbying.[62] The membership of both corporations is small and not drawn directly from the traditional owners in each jurisdiction.[63] Consequently, directors remain ‘at arms length from their clientele.’[64]
This paper does not suggest that those within NSWNTS or NTSV have conspired with the Howard Government in its attempt to emasculate NTRBs of their political voice. Furthermore, the writer respects the autonomy of Indigenous communities to shape their own models of service delivery. However, the writer does take issue with the OIPC’s assertion that the underperformance of NTRBs springs from their identity as black community organisations, as opposed to grossly inadequate funding. Just as Indigenous land titles must be assimilated, so too must our organisations.
Also foreshadowed by the OIPC was a ‘re-accreditation process’, reducing the number of NTRBs and the opening up of native title services to competitive tender.[65] Another suggestion was legislative amendment to make it easier for the Minister to withdraw the recognition of NTRBs.[66]
While the National Native Title Tribunal ('NNTT'), the Federal Court and respondent parties accumulate greater shares of the Commonwealth's native title money, the NTRBs have struggled under the Howard Government’s policies. Financial superiority has given them a license to advance their objectives at the expense of NTRBs.
As distinct from NTRBs, the NNTT consistently receives the lion’s share of native title money. Despite being a small organisation of approximately 200 staff, the NNTT spent $25,334,000 in 2001; a figure that represented more than half of the funds allocated to all NTRBs.[70] At the same time the Tribunal’s budget rose by almost $36 million over four years.[71]
The affluence of the NNTT has not only attracted the ire of those at the coalface. State Governments and the mining industry alike have called for a redistribution of funds from the NNTT to NTRBs. In its submission to the Inquiry into the Effectiveness of the National Native Title Tribunal, the South Australian Government suggested that funding to the NNTT be adjusted in favour of increased resources for the Aboriginal Legal Rights Movement.[72] Its sentiments were mirrored by the submission of the New South Wales Government.[73] Rio Tinto has also advocated for equity between the NNTT and NTRBs:
Representative Bodies drive the NTA processes that the NNTT facilitate – without that drive there is nothing for the NNTT to facilitate. It is essential that the current imbalance between the funding of the NNTT and of Representative Bodies be rectified.[74]
As the Tribunal’s stake in the native title bonanza has increased, its level of Indigenous representation has diminished. Only two of the NNTT’s 14 members are Indigenous. The 12 members who have the carriage of the majority of mediated claims are invariably drawn from industries historically opposed to the recognition of Aboriginal land rights. Among them are a former Director and General Counsel of Shell Australia and a former National Executive Director of the Cattleman’s Union of Australia.[75]
With the removal of the appointments made in the Keating years, the NNTT has evolved from an innovative mediator into a ‘legalistic’ bureaucracy.[76] The cultural shift is evident in the NNTT’s restrictive approach to objections to the ‘expedited procedure’. In essence, this procedure excludes the right to negotiate in cases where mining activity does not impinge upon the rights of native title parties. Where a Government has notified native title parties that a proposed activity attracts the ‘expedited procedure’, the native title parties must lodge an objection with the NNTT if they are desirous of exercising the right to negotiate.
In 2001 the Tribunal issued its Guidelines on Acceptance of Expedited Procedure Applications. The Guidelines required objection applications to contain detailed information beyond what was necessitated by the NTA,[77] increasing the burdens on struggling NTRBs. Although the Guidelines were subsequently revised, the NNTT still claimed to lack any discretion to accept applications that did not strictly comply with the NTA and the Regulations.[78] Such a narrow approach constricts the exercise of Indigenous procedural rights and is contrary to the terms of the NTA.[79]
In 1999 the Court reported to the Australian Law Reform Commission that there were 300 contested native title claimant applications outstanding. Each case was expected to take between six and eight months for a judge to determine.[81] The Registrar told the Commission that:
If we just went ahead and listed all of these, it would follow that nearly all of our judges across Australia would be dealing with long native title trials at the one time. It is impossible to allow that to happen because there is a whole lot of other work that has to be done.[82]
Despite the Court’s predictions of a crisis it should be remembered that the above comments were made before the High Court delivered its judgments in test cases such as Western Australia v Ward[83] and Members of the Yorta Yorta Aboriginal Community v Victoria.[84] Those decisions are expected to significantly reduce the Court’s workload in coming years.[85] Nonetheless, in 2001 the Court received an additional $17 million over four years to be devoted to native title cases.[86]
In itself, the idea of the Federal Court being adequately resourced is not objectionable. However, the funding boost enabled the Court to increase the pressure on forlorn NTRBs by adopting a timeframe of three years for the disposal of native title cases. Given that the cost of litigating one native title case hovers between $500,000 and $1.5 million and the annual budgets of NTRBs range from one to two million dollars, the consequences of litigation for NTRBs can be disastrous.[87] For one NTRB, representing claimants in litigation meant selling assets and retrenching a fifth of its staff. [88]
The catch-22 position experienced by NTRBs was described by one CEO in the following terms:
… the extra money that has come in has encouraged the federal court to start to increase their case loads and bring their cases on earlier. So when rep bodies go in and say, ‘We don’t have the resources to be able to do what we are required to do in the period of time. Can we get an adjournment or can we now mediate interstate?’ the courts say, ‘No, you will go to court at the same time.’ A federal court is very comfortable because it actually has millions of dollars extra in resources. The rep bodies do not have the same money, even though they are required to be there.[89]
Since the guidelines came into effect, legal aid to respondents has soared. From 2002–03 respondents received over $10 million in assistance from the Attorney-General’s Department.[91] It is inconceivable that any Australian legal aid commission would ever remove the means test as a condition for legal representation in areas such as criminal and family law. The public purse simply is not deep enough to cover the legal expenses of anyone other than the most disadvantaged members of society. But if you are a peak industry group, you are free to participate in native title cases at taxpayer expense.
The guidelines are inequitable not only because of the relative wealth of some respondents. It should also be borne in mind that the 1998 amendments to the NTA and recent High Court decisions stemmed the growth of native title, rather than resulting in the encroachment of non-Indigenous property rights. Consequently, some legally aided respondents have no stake whatsoever in the outcome of native title cases. For example, the Queensland Seafood Industry Association was funded by the Attorney-General’s Department to be a party to all land claims in the Torres Strait, despite the Association having no interest above the high water mark.[92]
Such a lax approach smacks of hypocrisy given that the Howard Government has held NTRBs captive to its microscope for the greater part of the last nine years. It also represents another burden on fatigued black shoulders. With each new legally aided respondent, an NTRB must engage in yet another round of negotiations, possibly counter new legal arguments and spend scarce funds.
The Cape York Land Council in its submission to the Inquiry into the Effectiveness of the National Native Title Tribunal articulated the frustration experienced by NTRBs:
Of serious concern to the CYLC is the seemingly unlimited funding that is available to the non-Indigenous parties to mediation despite, at times, the relatively insignificant nature of their interest. For example, a fossicking society has recently become a party to many native title claims in Cape York Peninsula and they have fully funded legal representation. As another example, although the CYLC and NNTT, and even the State has each complained during the protracted Eastern Kuku Yalanji negotiations of the demands upon their limited resources. Not one of the Attorney-General’s funded local government bodies, utilities, or grazing interests has ever complained during mediation that their legal representation is threatened or inadequate.[93]
At the recent National Reconciliation Planning Workshop, the Prime Minister stated that ‘communal interest in and spiritual attachment to land is fundamental to indigenous culture.’[94] He also pointed out that:
the Government does not seek to wind back or undermine native title or land rights. Rather we want to add opportunities for families and communities to build economic independence and wealth through use of their communal land assets …[95]
However, less than a month after Howard’s somewhat nebulous assurances, the Finance Minister, Senator Minchin, endorsed a motion of the Liberal Party’s federal council, advocating amendment of the NTA. Describing the Act as a ‘brake on exploration’, Senator Minchin urged the Government to ‘look back and examine [the concessions made] during the Harradine negotiations.’[96]
Contemporaneous with these developments was the release of a document, Indigenous Land Tenure Principles (‘The Principles’),[97] by a government appointed advisory body, the National Indigenous Council (‘NIC’).. The brief document calls for a ‘mixed system of freehold and leasehold interests’.[98]
Most concerning is Principle Four:
Effective implementation of these principles requires that:
• the consent of the traditional owners should not be unreasonably withheld for requests for individual leasehold interests for contemporary purposes; and
• involuntary measures should not be used except as a last resort and, in the event of any compulsory acquisition, strictly on the existing basis of just terms compensation and, preferably, of subsequent return of the affected land to the original owners on a leaseback system basis…[99]
The Principles were announced following ill-considered remarks made by individual members of the NIC. In particular, Warren Mundine has cloaked the dismantling of communal land titles as a panacea for black disadvantage:
I think what we’ve got to start doing is looking at the communal ownership situation where people can start buying and owning their own home… talking about economic development, democracy and all those things, and how the history tells us how land is used and how societies move forward go hand in hand. So if we use land for housing, we use it for business and enterprise development and stuff like that, then also our communities move forward, and better health services, better education, better democratic systems, and also better leadership as well.[100]
Along with the absence of references to research into the causes of Indigenous poverty, was the lack of any acknowledgement of the responsibility of governments to provide essential services in areas such as health and education. Likewise, Mundine failed to explain how the commercial exploitation of communal lands would rectify the crisis that he perceived existed within Indigenous leadership.
Unsurprisingly, Indigenous leaders around the country have voiced criticism of the Principles and Principle Four in particular. The NIC responded by disavowing its support for compulsory acquisition of Indigenous lands.[101] At the same time the NIC’s Chairperson, Sue Gordon, suggested that concerns over compulsory acquisition were superfluous, claiming that governments can currently ‘acquire any land they want’.[102]
Leaving aside the dubious credibility of the NIC, a number of question marks regarding the Principles remain. Firstly, Gordon is incorrect when she asserts that governments can currently ‘acquire any land they want’. The power of compulsory acquisition is generally confined to public purposes. A proposal for governments to acquire Indigenous lands for private purposes is a radical step, one that generally does not apply to non-Indigenous property holders.
Furthermore, the Principles are cast in broad language; namely ‘contemporary purposes’. In the absence of precise definition, contemporary purposes could equate with virtual ‘open slather’, diminishing the power of Indigenous people to resist activities such as mining and tourism.
Following the debate of the Indigenous Land Tenure Principles was an announcement made by the Attorney-General in September 2005 regarding government reform to the NTA. The reform package includes measures to improve the effectiveness of NTRBs and reform of the financial assistance program to respondents with a view to encouraging agreement-making over litigation.[103]
Although the reforms are only in embryonic form, the proposed changes to NTRBs are of concern because they appear to be driven by ideology rather than evidence-based policy. According to the OIPC website, the changes will not ‘fundamentally alter the system, but are designed to make it more effective, responsive and accountable’.[104] The emphasis, however, is on increased accountability. For example, NTRB recognition will now be limited to fixed terms between one and six years. [105] The reforms will also enhance the Minister’s power to withdraw recognition from NTRBs that underperform. [106]
It is difficult to justify the introduction of limited terms for recognition given that NTRBs were forced to endure a rigorous re-recognition process in 1998. Likewise, given that the Native Title Amendment Act 1993 (Cth) singled out NTRBs for onerous reporting requirements, it is difficult to understand why the Minister’s powers to withdraw recognition need to be enhanced. Where is the evidence that NTRBs require even more Government scrutiny? Moreover, the reforms fail to respond to the most pressing need of all – the equitable redistribution of resources from the NNTT to NTRBs.
There are two methods for gauging whether the Prime Minister’s comments have been made in good faith.
Firstly, one can search for evidence in favour of the proposition that privatisation will raise Indigenous living standards. Unfortunately however, the Prime Minister is yet to provide any. Another method is to analyse the Howard Government’s track record on the administration of the NTA.
Over the past nine years the Commonwealth has forced NTRBs to clear one hurdle after another. The increased administrative workload and onerous reporting requirements introduced by the Native Title Amendment Act 1998 (Cth) turned many NTRBs into sinking ships. Not content with its own tightfistedness, the Commonwealth armed the other components of the native title system to hasten the demise of NTRBs. The membership of the NNTT was stacked with conservatives, transforming a non-adversarial tribunal into a legalistic bureaucracy. Buttressed by increased funding, the Federal Court imposed an impossible timeframe for the disposal of native title claims. Lastly, respondents were armed to the hilt with legal aid in order to wreak havoc on fatigued NTRBs.
In light of the above, Indigenous people have no real cause to believe that this Prime Minister is going to deliver an equitable stake in the nation’s wealth. But we can draw strength from our history, which informs us that the struggle for land justice will endure long after the Howard Government.
[1] Prime Minister John Howard cited in Lachlan Heywood, ‘PM Signals Overhaul of Land Rights’, Courier Mail (Queensland), 7 April 2005, 1.
[2] Judy Atkinson, Trauma Trails, Recreating Song Lines: The Transgenerational Effects of Trauma in Indigenous Australia (2002) 32.
[3] Dawn May, Aboriginal Labour and the Cattle Industry: Queensland from White Settlement to the Present (1994) 26.
[4] For an analysis of the management of Queensland’s Aboriginal reserves see Rosalind Kidd, The way we Civilise: Aboriginal Affairs – The Untold Story (1997).
[5] Bain Attwood and Andrew Markus, The Struggle for Aboriginal Rights: A Documentary History (1999) 66.
[6] Ibid 95.
[7] Kidd, above n 4.
[8] For example, political agitators in Queensland were forcibly removed to Palm Island, earning it the name ‘Prison Island’.
[9] William Deane, ‘Some Signposts From Daguragu’ (Paper presented at the Inaugural Lingiari Lecture, Darwin, 22 August 1996).
[10] Ibid.
[11] Minoru Hokari, ‘From Wattie Creek to Wattie Creek: An Oral Historical Approach to the Gurindji Walk-Off’ (2000) 24 Aboriginal History 98, 101.
[12] Scott Robinson, ‘The Aboriginal Embassy: An Account of the Protests of 1972’ (1994) 18 Aboriginal History 49, 50.
[13] Ibid 52.
[14] Ibid 56.
[15] [1982] HCA 27; (1982) 153 CLR 168.
[16] [1992] HCA 23; (1992) 175 CLR 1.
[17] See Bryan Keon-Cohen, ‘The Mabo Litigation: A Personal and Procedural Account’ (2000) 24 Melbourne University Law Review 893.
[18] John Woodley, ‘John Koowarta – Mabo of the Mainland’ (1998) 17(2) Social Alternatives 26.
[19] Ibid.
[20] [1996] HCA 40; (1996) 187 CLR 1.
[21] Mark Moran, Technology and Health in Indigenous Communities: USA, Canada, Australia, Winston Churchill Memorial Trust of Australia (1997) 21. Available online at <http://www.google.com.au/scholar?hl=en&lr=&q=cache:_O3RwHBF7OkJ:www.iig.com.au/mfmoran/churchill.pdf+mark+moran+technology+and+health+in+indigenous+communities> at 30 January 2006.
[22] See, for example, Cobell v Norton 392 F 3d 461 (DC Cir, 2004) and the most recent judgment delivered by the United States District Court of Appeal, Cobell v Norton 357 F Supp 2d, 298, 300 (DC Cir, 2005).
[23] John Files, ‘US is Ordered to tell Indians before Selling Trust Property’, New York Times (New York), 4 October 2004, 17.
[24] Gary Anders, ‘Social and Economic Consequences of Federal Indian Policy: A Case Study of the Alaska Natives’ (1989) 37 Economic Development and Cultural Change 285, 292.
[25] John Byrne and Steven Hoffman, ‘A ‘Necessary Sacrifice’: Industrialization and American Indian lands’ in John Byrne, Leigh Glover and Cecilia Martinez (eds) Environmental Justice: Discourses in International Political Economy (2002) 97, 102.
[26] N Bruce Duthu, ‘Overcoming Jurispathic Law: The Challenge for American Indian Tribal Governments’ (1999) 4(23) Indigenous Law Bulletin 12, 13.
[27] Ros Kidd, ‘Abuse of Trust: The Government as Banker in Queensland and the United States’ (2003) 5(26) Indigenous Law Bulletin 13, 14.
[28] John Files above n 23.
[29] ‘United States: A Long-Overdue Scalping – Justice, at last, for some Indians’, The Economist (London) 23 March 2002, 52.
[30] John Files, ‘Indian Fund Investigator Angrily Quits’, The New York Times (New York) 7 April 2004, 15.
[31] Frank Brennan, Land Rights Queensland Style (1992) 81.
[32] See Neva Collings, ‘The Wik: A History of their 400 year Struggle’ (1997) 4(1) Indigenous Law Bulletin 4.
[33] Ros Kidd, above n 3, 216.
[34] Ibid 217.
[35] Ibid 221.
[36] Ibid 222.
[37] Brennan, above n 29, 87.
[38] Tim Rowse, ‘Out of hand – The Battles of Neville Bonner’ (1997) 54–55 Journal of Australian Studies 96, 103.
[39] Kidd, above n 4, 288.
[40] Ibid 329.
[41] For a comprehensive analysis see Paul Burke, ‘Evaluating the Native Title Amendment Act 1998’ (1998) 3 Australian Indigenous Law Reporter 333.
[42] ABC Television, ‘Transcript of the Prime Minister the Hon John Howard MP, Television interview with Kerry O’Brien, 7:30 Report, 12 November 1997 <www.pm.gov.au/news/interviews/1997/730_12nov.htm> at 30 January 2006.
[43] Ibid.
[44] Native Title Act 1993 (Cth) s 203B.
[45] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report (1994), available online at <www.austlii.edu.au/au/special/rsjpreject/rpjlibrary/hreoc/ntreport_1994/1.html> at 30 January 2006.
[46] Jon Altman and Diane Smith, Funding Aboriginal and Torres Strait Islander representative bodies under the Native Title Act 1993, Issues Paper No 8, Australian Institute of Aboriginal and Torres Strait Islander Studies (1995) 2, 10.
[47] Ibid.
[48] David Ritter, ‘So, What’s New? Native Title Representative Bodies and Prescribed Bodies Corporate after Ward.’ (2002) 21 Australian Mining and Petroleum Law Journal 302, 304.
[49] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report (1999) 77.
[50] See Lisa Strelein, ‘Moving the Boundaries: Native Title Representative Bodies and the Re-Recognition Process (1999) 4(19) Indigenous Law Bulletin 54.
[51] Julie Finlayson, ‘Managing Competing Agendas: Strategic Partnerships across the Native Title Operational Environment’ (2001) 5(9) Indigenous Law Bulletin 4.
[52] Aboriginal and Torres Strait Islander Commission (ATSIC), Review of Native Title Representative Bodies (1999) 72.
[53] Ibid 3.
[54] Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, Report of Inquiry into Indigenous Land Use Agreements (2001) 95.
[55] Alison Murphy, ‘Prescribed Bodies Corporate in the Post-Determination Landscape’ (2002) 5 Balayi: Culture, Law and Colonialism 162, 165.
[56] Commonwealth Attorney General, Phillip Ruddock, ‘The Government’s Approach to Native Title’, Native Title Representative Bodies Conference 2004, Adelaide, South Australia, <http://www.ag.gov.au/agd/WWW/MinisterRuddockHome.nsf/D2801B61EABE80A2CA256809001328BA/6E17F44955CC8ABFCA256EA900239D35>
[57] Ibid.
[58] Office of Indigenous Policy Coordination, Submission to the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, Inquiry into the Capacity of Native Title Representative Bodies to Discharge their Duties under the Native Title Act 1993, (2004).
[59] Ibid 2.
[60] Ibid.
[61] Ibid 7.
[62] Ibid 15.
[63] Ibid 16.
[64] Ibid.
[65] Ibid 19.
[66] Ibid 20.
[67] For an early critique of the NNTT see Richard Bartlett, ‘Dispossession by the National Native Title Tribunal’ (1996) 26(1) Western Australia Law Review 108.
[68] [1995] HCA 10; (1995) 183 CLR 245.
[69] Native Title Act 1993 (Cth) s 108 lists the functions of the NNTT.
[70] Bruce Harvey, Chief Advisor Aboriginal and Community Relations, Rio Tinto Ltd, Submission to the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, Inquiry into the Effectiveness of the National Native Title Tribunal (2002) [1.7].
[71] David Ritter, ‘You Get what you Pay for’ (2001) 5(9) Indigenous Law Bulletin 14, 15.
[72] Kevin Foley MP, Acting Premier, South Australia, Submission to the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, Inquiry into the Effectiveness of the National Native Title Tribunal (2002) 16.
[73] Roger Wilkins, Director-General, The Cabinet Office, New South Wales Government, Submission to the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, Inquiry into the Effectiveness of the National Native Title Tribunal (2001).
[74] Bruce Harvey, Chief Advisor Aboriginal and Community Relations, Rio Tinto Ltd, Submission to the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, Inquiry into the Effectiveness of the National Native Title Tribunal (2002) [2.1].
[75] For a full list of members, refer to the website The National Native Title Tribunal: Tribunal Members <http://www.nntt.gov.au/about/members.html> at 30 January 2006.
[76] See Paul Hayes, ‘National Native Title Tribunal: Effective Mediator or Bureaucratic
Albatross? A User’s Perspective’ (2002) 5(18) Indigenous Law Bulletin 4.
[77] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report (2001).
[78] Ibid.
[79] Ibid.
[80] Susan Phillips, Like Something out of Kafka: The Relationship between the Roles of the National Native Title Tribunal and the Federal Court in the Development of Native Title Practice, Issues Paper No 14, Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies (2002) 3.
[81] Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System’ Report No 89 (1999) [7.54].
[82] Ibid.
[83] [2002] HCA 28; (2002) 213 CLR 1.
[84] [2002] HCA 58; (2002) 214 CLR 422.
[85] Australian Law Reform Commission, above n 81, [7.55].
[86] Ritter, above n 71.
[87] Finlayson, above n 51, 5.
[88] Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, above n 54, 92.
[89] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report (2001).
[90] Attorney-General’s Department, ‘Financial Assistance by the Attorney-General in Native Title Cases <http://www.ag.gov.au/agd/www/Agdhome.nsf/Page/Department_Civil_Justice_and_Legal_Services_Group_Indigenous_Justice_and_Legal_Assistance_Division_Legal_Assistance_Branch_Financial_Assistance_by_the_Attorney-General_in_Native_Title_Cases_-_Guidelines_and_Application_Form> at 30 January 2006.
[91] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report (2003) 156.
[92] Ibid 158.
[93] Richie Ahmat, Executive Director, Cape York Land Council, Submission to the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, Inquiry into the Effectiveness of the National Native Title Tribunal (2003) 7.
[94] The Hon John Howard MP, ‘Address at the National Reconciliation Planning Workshop’ (Presented at Old Parliament House, Canberra, 2005).
[95] Ibid.
[96] John Breusch and Lenore Taylor, ‘Minchin Moves to Water Down Claims’, The Financial Review (Australia), 27 June 2005, 5.
[97] National Indigenous Council, ‘Draft Indigenous Land Tenure Principles’, (Working Document, 2005) available online at <http://www.atsia.gov.au/NIC/communique/default.aspx> at 30 January 2006.
[98] Ibid.
[99] Ibid.
[100] ABC Radio National, ‘Selling Native Title’, Counterpoint, 24 January 2005, available online at <www.abc.net.au/rn/talks/counterpoint/stories/s1288345.htm> at 31 January 2006.
[101] Chris Graham, ‘Whodunnit? The Mystery Surrounding the NIC’s Black Land Advice to Government’, National Indigenous Times (Canberra) 7 July 2004, 4.
[102] Sue Gordon, Letter to the Editor, National Indigenous Times (Canberra) 13 July 2005.
[103] Australian Government: Attorney-General’s Department, ‘Native Title Reform: Practical Reforms to Deliver Better Outcomes in Native Title’, available online at <http://www.ag.gov.au/nativetitlesystemreform> at 30 January 2006.
[104] Australian Government: Office of Indigenous Policy Coordination, ‘Changes to Native Title Representative Body (NTRB) Arrangements – Q and As’, available online at <http://www.oipc.gov.au/NTRB_Reforms/QA_NTRBarrange.asp> at 30 January 2006.
[105] Ibid.
[106] Ibid.