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Land Rights slip under the radar

By Sean Brennan - posted Friday, 11 August 2006

There are telltale signs when ideology overrides common sense in making new laws. Government tries to ram changes through quickly, under the radar of public and media scrutiny. The process looks dodgy and words in the law mean the opposite of what they say. Even long-term allies and kindred spirits cannot conceal their discomfort and unease.

That is precisely what is going on this week with proposed amendments to the Northern Territory Land Rights Act. This is Australia’s high water mark in land rights legislation. Whitlam introduced it in 1975 and Fraser ensured it went through the following year. For a long time it enjoyed bipartisan support and both sides of politics are rightly proud of what the law has achieved, including the return of half the Territory to traditional ownership.

The Howard Government wants to make some of the most dramatic changes to that law in its 30-year life. Some of the amendments reflect the public policy process at its best. Some show a government using parliament like a doormat. It is ignoring advice on all sides to slow down and bring people on board over issues that everyone can agree on.


The Bill proposes a range of reforms. Many result from extended consultation and negotiation. As a result, changes to streamline agreement-making about mining on Aboriginal land enjoy broad support. They show that Land Councils and miners are just as interested as governments in facilitating appropriate economic development for Aboriginal people on their land. Sadly other parts of the package have not been approached in the same spirit.

The proposal to grant headleases over Aboriginal townships to government entities for 99 years is about improved housing and economic development, according to the Minister Mal Brough. These are objectives no one disagrees with. So it is unfortunate that the Commonwealth has reverted to a “government knows best” attitude, something that has failed in indigenous affairs almost every time it has been tried.

Instead of adopting the partnership approach it took to mining changes, the government has simply bolted the leasing proposals onto the Bill. Brough says leasing is voluntary, but no one is buying that and indications to the contrary are already coming in from the Top End.

Flaws in the process show up in the content of the law. The terms of the leasing deal are stacked against traditional owners, in favour of the government. On the floor of parliament Brough had to ditch his initial plan for an arbitrary limit on the rent Aboriginal people could charge.

But other restrictions on the ability of traditional owners to get a fair deal remain. Why tie the hands of traditional owners in lease negotiations if the whole objective is to promote an enterprise culture?

Meanwhile, last-minute changes of major proportions are still being made. The Northern Territory Government, which is central to the whole plan, had only three days to comment on the legislation. Like all cases of policy on the run you have to wonder what the rush is really about.


The Bill also makes it possible for the Commonwealth Minister to break up existing Land Councils into smaller, less powerful organisations. Again these are unilateral measures and reflect long-standing ideological views about the strength of existing Aboriginal organisations. They run counter to the Commonwealth’s drive elsewhere for consolidation and economies of scale in native title and Aboriginal legal services. That mismatch was pointed out by the Minerals Council of Australia. When the miners side with Land Councils against the government, it is a sure sign that government ideology about indigenous affairs is trumping workability and genuine stakeholder interest.

When the government goes further and adopts the doublespeak of “delegation” to describe the stripping of core functions from land councils by the Minister, it becomes even clearer that the Senate must not pass this law in its current form.

The Government used the guillotine procedure to cut off debate in the lower house, after less than three hours. A Senate committee had a one day hearing and a few days to write a report. Government Senators said the process was “totally inadequate” and “such fundamentally important legislation should have bipartisan support with broad consensus among stakeholders affected”. At present half the Bill has that and the other half is nowhere near that point.

The Bill was before the Senate this week. Either it should be split so that the consensus provisions can pass or the entire law should be deferred, so that more sensible proposals for achieving its objectives can be agreed upon by all stakeholders.

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About the Author

Sean Brennan is Director of the Indigenous Rights, Land and Governance Project at the Gilbert + Tobin Centre of Public Law at the University of New South Wales.

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