Let local Indigenous communities decide who comes and goes

The Rudd Government has announced that legislation to restore the permit system for access to Indigenous settlements in the Northern Territory will be introduced into parliament this week. Contrary to popular opinion, the Howard government had not done away with the permit system completely. For the vast majority of native title land in the Northern Territory (including homelands and sacred sites) the permit system was intended to continue to apply.

The changes to the permit system introduced by the Howard government last year were due to come into effect on February 18, 2008 with the intention that permits would no longer be needed to access common areas in the Territory’s main Indigenous townships and the road corridors, barge landings, and airstrips connecting them.

It is not clear why Indigenous affairs minister Jenny Macklin believes that this needs to be changed. Allowing people access to settlements does not take away residents’ privacy. Most Australians live in streets that are regarded as common property, yet retain protection over their own property under the laws of trespass.

Macklin’s proposed amendments will remove the right for people (except for government contractors and journalists) to access remote Indigenous communities unless they have a permit. The old permit system was intended to keep undesirables out of Indigenous communities, and to protect sacred sites (though there is some argument about how effective it was at doing that). The problem was that land councils abused the system.

Journalist Nicolas Rothwell, who has extensive experience working in the top end, has highlighted the flaws in the 1976 permit legislation. By denying potential commercial competitors permits, land councils have stifled business and tourism opportunities. The permit system has not been used to protect property rights and privacy, but to protect monopoly businesses and prevent access to whistleblowers from exposing grievances.

Aborigines and Torres Strait Islanders must, of course, have the right to restrict access to their lands: private property rights are essential in any civil society. None of us would like strangers camping in our backyards and taking photos (or worse) of our children. But trespass laws are there to protect property rights, not to curtail economic activity or free speech.

Under the Aboriginal Land Rights (NT) Act 1976, permits could be issued by one or other of the following four groups: the traditional owners of the area concerned, the relevant land council, the Administrator of the Northern Territory, or the relevant Northern Territory minister.

If that were not confusing enough, the land council and traditional owners could revoke their own or each other’s permits, and delegate their authority to issue permits. This led to confusion and conflict. The changes to the legislation that were introduced last year as part of the Northern Territory National Emergency Response sought to prevent land councils and traditional owners revoking permits issued by another party. Yet amendments proposed by Macklin include a clause that will allow land councils to request that permits are revoked “where there are … reasonable grounds to believe that the person is of bad character”.

Under the old system, very little consultation took place between land councils and settlements. Strangers turned up in remote areas with land council permission, but without the community itself having been consulted. These strangers intended to undertake commercial activities the community knew nothing about and did not wish to engage in.

For simplicity, the granting of permits should be the sole right of communities, just as each householder determines who has access to their property, backed by laws of trespass. At the very least, it should be mandatory for communities to be consulted before permits are issued by land councils.

The Northern Territory government is changing its local government framework to end notorious inefficiencies. The territory’s 57 community government councils will be replaced by nine new shire councils. Like local government in the rest of Australia, the new shires will operate on a democratic basis.

Although land councils have never formally had any local government functions, some have assumed such control through their power over land leases. From July 2008, the new shire councils will take over responsibilities for local roads and services. If they are to be able to do their job effectively then they, in consultation with the communities they administer, must be able to control access to roads and services.

Reintroducing a permit system that will restrict access to Indigenous settlements will not fix the problems in the Northern Territory. New economic and tourism opportunities are unlikely to develop in closed settlements. Local people should be able to decide for themselves who comes and goes in their communities.