Indigenous Property Rights: Land, Business and Governance

Thank you Galarrwuy for your warm welcome to Gulkula on your country. It is really wonderful to be here on the occasion the 40th anniversary of the Northern Territory Land Rights Act and another successful Garma Festival.

I am a Gangulu man from the Dawson Valley in Central Queensland, I acknowledge you, and the Yolngu Elders here today and those who have come before you. I would like to also acknowledge your young people, the Elders of the future who are yet to emerge.

Galarrwuy, my Dad was a ringer and a labourer all who would turn his hand to all sorts of work to make sure his family survived and finally thrive. He was a proud unionist and advocate.

My Mum was a lioness, a ferocious matriarch and protector who was known to send shivers down the spine of anyone who she perceived as a risk to any of her children.

Between them they instilled in their children a deep sense of pride as Aboriginal people and a fierce determination to stand up for the less fortunate in the little Central Queensland towns where we grew up.

Dad heard about the fights the Yolgnu endured for their land and their culture and they spoke of this warrior, Galarrwuy Yunupingu. This man who stood up to governments and stared down the prevailing orthordoxy of us being seen but not heard.

As a young Aboriginal man starting to feel his way in life under the ever present oppression of the Bjelke Petersen government, your award of Australian of the Year in 1978 was a gift from the heaven. Like the song about Muhammad Ali, you are our Black Superman.

I am honoured to be standing here today alongside such a strong leader of our peoples. I can only imagine the pride of my Mum and Dad would be experiencing at seeing me on this stage with you.

Friends, the work of Galarrwuy, his elders and contemporaries is legendary in Aboriginal history and the struggle for land. The drafting of the bark petition, which is now on permanent display in Parliament House is one of our best remembered and most beautiful efforts to engage with the parliament of the day. Written in both Yolgnu and English it is a powerful symbol of our way of communicating – respect for both, inclusive of both.

I wish I could say that this inclusive and respectful approach is always reciprocated.

This week we have all witnessed the shocking treatment of our children here in the Northern Territory - we know it’s not the first time but it is the first time that it has received national media attention and laid bare for all Australians to see and Australia is deeply shocked at the level of violence that us Aboriginal people almost take for granted. I received hundreds of calls, emails and texts expressing distress and outrage, people want to know how they can help. The people of this country and the world are watching.

Indigenous leaders spoke on Friday about the need to shine a light on institutions like detention facilities, which by their nature are ‘closed system with closed cultures’. What we have seen is, in part the consequences of people feeling their conduct is not under scrutiny, not required to meet standards and that they will not be held accountable.  This must change.

I was reminded of Fyodor Dostoevsky in a Fairfax publication yesterday who said in 1862 that the degree of civilisation in a society can be judged by entering its prisons.

This week we entered one of our prisons and what we saw not onl;y questions our civilisation but our humanity.

I am hopeful that the Prime Minister’s swift response will result in real positive change, but we must maintain the momentum.

This Royal Commission must deliver more than a set of recommendations that remain on the shelf like to reports of so many Royal Commissions and Inquiries have done in the past – real action is required to change outcomes for our young people. 

In the short term we must ensure that these boys are not subject to more abuse or reprisals. The also need urgent access to care for the trauma they’ve suffered and to know that they are safe.

Our children deserve better and I am pleased that Human Rights standards are part of the terms of reference for this Royal Commission – Australia’s human rights obligations including the Convention on the Rights of the Child (CROC), the International Covenant on Civil and Political Rights (ICCPR) and the Convention against torture and inhumane treatment will set the benchmark against the actions in that Centre will be judged.

But critically, those human rights standards also includes the Convention on the elimination of all forms of racial discrimination. The Royal Commission will have to confront the role race has played, not only in the actions of those guards but in the fact that 97% of young people in that detention centre are Aboriginal, it will have to look at the underlying causes of how we have come to this point and confront the reality that race does play a part.

The recommendations of the Royal Commission into Aboriginal Deaths in Custody (RCIADIC), the recommendations of the Bringing them Home report and a series of UN guidelines all require that imprisonment is an option of last resort, and set standards where detention is required.

Our children and young people need non-custodial options and where detention is required they are entitled to humane and decent treatment and the ultimate aim is one of rehabilitation.  I will return to this matter again before I finish here today.

As I reflect on these international human rights instruments, from this beautiful country here, I reflect on the fact that the Bark Petition asserting Yolgnu rights to land was delivered to the Australian Parliament three years before the United Nations adopted the foundational human rights Conventions.  The International Convention on Civil and Political Rights and the Convention on Economic, Social and Cultural Rights were not adopted until 1966 – three years after the Bark Petition was handed to the Australian Parliamentarians. The Declaration on the Right to Development was not adopted until 1986, and of course the UN Declaration on the Rights of Indigenous Peoples was not adopted by the General Assembly until 2007 and here in Australia until 2009.

But in Yirrkala, Yolgnu clans have been articulating their rights to land, sea, resources, language, arts, culture, trade both domestic and international for generations. In 2011, the year after I took office as Social Justice Commissioner, I was privileged to be here at Garma when representatives of the Gumatj clan signed a memorandum of understanding with the Prime Minister of Timor Leste to facilitate trade and other relationships. 

For the past 7 years, together with a small group of others, including my colleague Professor Marcia Langton, I have been engaged in a process to consider recognition of Indigenous Australians in the Constitution.  I was in Melbourne recently for the third meeting of Indigenous leadership providing input into the way we might frame a national discussion about constitutional recognition and treaty.

At the meeting we talked about the ways in which our efforts towards self-determination in one part of the country have inspired gains in other parts. From the tent-embassy in the south, the Nookanbah demonstrations in the west, the Gurindji walk off in the centre and more recently the Bridge walk in Sydney, the gathering for the National Apology in Canberra. We talked about the ways we inspire each other, give each other strength and above all, that our achievements today are only possible as we stand on the shoulders of the ones who went before.

Yolgnu Country and its people have leant us their shoulders on many occasions including the creation of the treaty anthem –Yothu Yindi’s much loved song ‘Treaty Mah’.

This year’s Garma festival celebrates a milestone of the 40th anniversary of recognition of Aboriginal people’s rights to land. And for us land is our backbone is more than a theme, it is our reality.

It’s a journey that began here with the Bark Petition as I’ve mentioned, Australia’s first native title litigation known as the Gove case (Milurrpum v Nabalco Pty Ltd and Commonwealth of Australia) which sparked the   Woodward Royal Commission leading the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). Today, approximately 47% of land in the Northern Territory is Aboriginal freehold following successful claims. The Act not only provided for these claims process, strong tenure options and representative governance, it established land councils which have proved to be some of the most effective advocacy organisations in the country.

The fight for land has taken many forms in this country. The proposition for recognition of pre-existing rights to land that began with the Gove case, found new ground with the late Eddie Mabo’s case and the subsequent Native Title Act 1993 (Cth).

While there are still many Aboriginal and Torres Strait Islander nations yet to receive legal recognition of their rights to land and waters, we do hold legal rights to approximately 40 percent of Australia’s land mass and in addition to land councils and land trusts, 157  registered Native Title Bodies Corporates (RNTCs) hold rights to native title. These are incredible achievements over the last 50, built on the sweat, blood and rears of our forebears and ancestors.

In what is often referred to as this post land claim, post determination phase, the question that I ask myself is :

Where are the practical benefits from these long and hard fought battles for recognition of rights to land, water and sea?

We have seen mining royalties come and go for some sections of our communities, and some groups have been able to invest or purchase businesses, but if we are to see real benefits from our land, sea and waters we need to be able to exercise our right to development where we choose.

So much of the conversation over the years has focused on protecting us from development, but we need to have a new conversation where we are able to be truly self-determining and properly engaged in matters that affect us.  Self-determination, proper engagement, free, prior and informed consent, good faith and rights to protect our culture, are core to the exercise of our human rights set out in the United Nations Declaration on the Rights of Indigenous Peoples and other human rights standards.

I listened intently to Galurrwuy speak yesterday about waking up the Land Rights Act, and I was really pleased to be sitting at the Gumatj mining training centre where your people here are undertaking development on your on country.

With these things in mind, the then Human Rights Commissioner Tim Wilson and I convened a roundtable on Indigenous property rights on Yawuru country in Broome, Western Australia in May 2015.

Aboriginal and Torres Strait Islander land and native title holders attended the meeting, alond with Attorney-General, George Bandis. That meeting identified five issues that block economic development within the Indigenous Estate and called for a national dialogue to find ways to address them. Significantly, the Attorney General agreed to support this dialogue, challenging us to develop a reform agenda for us rather than having reform imposed.

The first issue the participants in Broome raised was Fungibility. Fungibility is the idea that property can be exchanged, bought or sold on the market, and it is one of the characteristics that allows it to be taken as security by banks or investors.

Our interests in land generally come from claim processes that recognise our collective, deep connection to particular areas, the law describes our title as inalienable and communally held. It’s not readily sold, or exchanged, and decisions about it must be made by the group.  So, when it comes to creating economic development on country, the usual model where investors or lenders take security over the land doesn’t apply in the same way it might for land held in freehold. 

The second issue they identified was the need for business development support and succession planning. They were clear that  we need the governance and risk management skills to successfully engage in business and manage our estates.

The third issue identified was the need for financing economic development within the Indigenous estate.

The fourth issue was the ongoing and unresolved issue of Compensation. This remains as unfinished business, important in its own right and as a means of leveraging economic development opportunities.

Finally, participants identified the promotion of Indigenous peoples’ right to development, promoting opportunities for development on Indigenous land including options to provide greater access to resources on the Indigenous estate.

Participants agreed that the Australian Human Rights Commission was the vehicle to progress this work, and we began by creating an ‘opt in’ forum open to anyone with an interest in this work called the Indigenous Property Rights Network.

We have taken on board the concurrent and relatively recent work by the Council of Australian Government’s (COAG) Investigation into Indigenous land administration and use (COAG Investigation Report) and the 2015 Australian Law Reform Commission’s Native Title Inquiry titled Connection to Country: Review of the Native Title Act 1993 (Cth), and the developing law in regard to native title compensation.

We have also been mindful, as you would be here in Gulkula, about the Government’s Northern Development agenda. We are very conscious that this holds both opportunities and challenges for Aboriginal people and Torres Strait Islanders who are keen to maintain their estate, and to maximise economic development in accordance with the wishes of the Traditional Owners.  

It will only be successful and sustainable where Aboriginal and Torres Strait Islander peoples are provided with the opportunity to:

• participate in the highest level of decision making

• be partners in development

• give their free, prior and informed consent

• benefit economically and socially from the development.

At our first meeting in Sydney Network members developed a set of Guiding Principles which include:

1. Application of international human rights and principles, in particular those set out in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and the United Nations Declaration on the Right to Development.

2. Indigenous led

3. Inclusive process

4. Experience, advice, research and evidence based

5. Self-determination

6. Secure and protect the Indigenous Estate

7. Right to make decisions

8. Respect for and protection of culture

Since the Sydney meeting we’ve held Roundtables in Canberra, Minjerriba (North Stradbroke Island), Darwin and we will meet again this afternoon in the Garma Knowledge Centre.

Once the Indigenous Property Rights reforms are finalised by the Strategy Group and the Network, the next step is to advocate with government and industry for implementation. We have begun working with both groups to decide who will take this forward and on the best strategy for progressing the work.

So what are the reform options that people have raised with us?

Mapping the Indigenous Estate

One of the first issues was the need to get a really clear idea of the extent and nature of the Indigenous Estate.

How can people really exercise free, prior and informed consent and self -determination in relation to their land, sea and waters if they do not have a full sense of the extent and nature of their property?

Mapping the Indigenous Estate was quickly identified as one of the most important tasks to ensure TOS can make effective land use and economic development decisions.

At the Commission, we undertook a desktop inventory of Commonwealth, state and territory statutes, regulations and case law that create interests in land and waters for Indigenous people. 

One of the lessons we learned from this is that the holdings in land are continually changing – subject to parliamentary and judge made law developments, and planning policies land decisions. 

The National Native Title Tribunal (NNTT) has joined us at a number of Roundtables to present their geospatial mapping work.  They’ve developed a way to create an aggregated view of areas of land subject to the Native Title Act 1993 (Cth) (NTA) as well as state and territory land rights legislation, Aboriginal Lands Trust schemes and other statutes created through specified acts or grants of land.

This visual way of seeing the different kinds of tenure on a map is a really valuable tool and I am very excited about this work, because I’ve seen it in practice with the development of the Quandamooka Atlas (Atlas). The Atlas provides a visual representation of land, sea and waters subject to rights and interests under a variety of land tenures and regulations, including native title land, freehold land, pastoral leases and local government zonings. It was developed jointly by the Quandamooka Yoolooburrabee Aboriginal Corporation (QYAC) and the NNTT.

The importance of mapping and recording the Indigenous Estate is essential for TOs, but it’s also essential that our rights to land, sea and waters are dealt with in a fair and transparent manner by state and territory land administration processes. 

Planning policies and laws can be particularly problematic for Indigenous land holders when decision makers assign land uses and restrict claimable land. Joe Morrison reminded us yesterday of their use to obstruct the Kenbi land claim many years ago.

A related and equally significant issue is the need for Indigenous interests to be recorded on the state and territory land registers. This is extremely important for ensuring that governments and private developers have notice of Indigenous interests on land and engage with us as rights holders in a timely manner, when they are considering development proposals.

Again, and again Network members have raised the issues of respect for, and protection of areas of particular heritage significance.

In addition to these kinds of land administration processes, we have been consulting widely with technical experts and Indigenous land owners about ways to create sustainable and potentially bankable tenure options. 

As I mentioned previously, the broader framework of barriers to economic development on Indigenous land has a few different aspects.

Firstly, native title is inalienable so it cannot be sold or transferred in accordance with state and territory conveyancing legislation. And it ticcannot be subject to debt recovery processes so it cannot be used as security against a loan.

Additionally, land rights legislation limits the extent to which Indigenous land can be used as security for a borrowing.

Indigenous land is communally held and this fact is often hailed as a death knell for economic development but that’s not necessarily so. While it’s true that decision making must follow particular rules, this approach is not completely dissimilar to the kinds of decision making processes for companies dealing with property where a board resolution would generally be required.

To ensure sustainable land use, the Indigenous Network and Strategy Group have been clear reform options must not compromise underlying rights. So we have remained focused on options which can increase prospects for economic development without permanent diminution of rights. 

Policy solutions have focused on a more interventionist approach by government, rather than supporting Aboriginal and Torres Strait Islander peoples to manage their own affairs in the locations they know well, in accordance with their values and aspirations. The tendency to blame collectivism for limited economic development, and insist on individual based solutions requires review as well. There is no doubt that business needs innovators and a resilient, entrepreneurial spirit to get going and ride the ups and downs, but sustainable business ideas must also be adapted to the many and varied conditions across the country.

Our last roundtable focused on the building of closer relationships between Aboriginal and Torres Strait Islander land holders and their representatives with the banking sector and Indigenous Business Australia (IBA). This sector is already engaged with many Indigenous business people, and brings a wealth of experience and practical thinking to this work.

To a large extent, these are fundamentally conversations about risk rather than land tenure or the collective vs individuals. Both Indigenous peoples and financial institutions are considering the way they assess risk and developing new frameworks for business propositions.

Financial institutions see value in exploring ways to lend for large and small projects without having to take a charge or mortgage on Indigenous interests such as freehold parcels of land, for a number of reasons. Not least among these reasons is the benefit of avoiding the potential embarrassment and reputational risk in selling the land of a PBC or land council that might have been used to secure loan arrangements. Financial institutions are also realistic about the economies in rural and remote areas where there is little or no ‘secondary market’ from which to realise any capital from a distressed loan.

Indigenous people are assessing their risk appetite, often for the first time, and considering a new risk framework which balances their cultural responsibilities to past and future generations with the risks inherent in business ventures and the potential economic and social benefits when ventures are successful.

We have considered a number of other reform issues relating to incorporation options, compensation, support for employment on country, support for post determination litigation funding, support for comprehensive settlements, resourcing PBCs and supporting land councils, the importance of governance and business skills and other issues, but I want to finish today by talking briefly about one of the priority issue for me in this process.  

As I said at the beginning of my time here today, we are really focused on opening up ways for Indigenous Australians to see benefits today and into the future from the struggles for land, water and sea rights. It is vital that this long process result in real, tangible benefits for Aboriginal and Torres Strait Islander peoples, improving their standard of living and enabling them to live on and look after country.

The issue of sharing the benefit of any successful economic development opportunities within the Indigenous Estate is one of the least considered elements of the property rights discussion. That is, how do communities share in the wealth created from either acquisition of an interest in land, or any economic activity carried out on that land?

It is almost as if not much consideration goes into what will happen in the event of a particular claim or enterprise succeeding. The very purpose of pursuing claims or economic activity should be a successful outcome in which all those connected with the claim or activity tangibly improve their lives.

The issue of good governance is central to ensuring that any benefit accrues to those with a right to benefit. It is essential that those with the right to participate in decisions around benefit sharing are central to the development of any benefit sharing regime, that benefits are shared equally between those people, and finally all processes around benefit sharing be open and transparent.

We are in the process of developing a strong reform agenda, guided by our Indigenous Network and Strategy Group.

At the Canberra roundtable it was decided there were three elements to the successful implementation of the property rights agenda.  First, there needs to be a meaningful relationship between those who are working on both property rights and economic development and the highest level of government.

Secondly, the reform agenda has to be developed, and we are well progressed with a range of ideas that have the security of the Indigenous Estate at their heart.

Finally, there has to be a deliberate and well-organised advocacy campaign for the implementation of that reform agenda.  There are many elements to the advocacy process and that includes the final property rights report being featured in this year’s Native Title Report to Parliament submitted by the Aboriginal and Torres Strait Islander Social Justice Commissioner. 

It is imperative that any advocacy campaign be led by Aboriginal and Torres Strait Islander peoples and we see a natural alignment of this advocacy group emerging from the Indigenous Strategy Group supported by the Indigenous Property Rights Network.

Before I finish, I want to return to the matters that are at the forefront of our minds.

I said earlier today, this has been a terribly challenging time for Aboriginal and Torres Strait Islander people. The national media continues to report on the treatment of the children and young men, and on our discussions here at Garma.  As I said earlier, we need support for the young men depicted in the ABC’s Four Corners program, their families and support staff. We, and they, need to be assured they are safe, secure and protected from reprisals.

The Royal Commission has a reporting date of 31 March 2017 – and will be greatly assisted by extensive reports including:

• Little Children are Sacred

• Bringing them Home Report

• The reports of the NT Children's Commissioners

• Forthcoming report of the National Children’s Commissioner’s consultations into juvenile detention centres which will be transmitted as part of her National Children’s Report to Parliament in September / October 2016

• Vita Review of the NT Youth Detention System

All of the these provide descriptions, analysis and recommendations.

While we absolutely need to get to the truth of these events, there is strong community sentiment that already we have longstanding, well documented knowledge of the problems. We urgently need to move to solutions, based on this Inquiry, recent reports, international human rights standards and the extensive work of the Report of the Royal Commission into Aboriginal Deaths in Custody. A solutions based approach is an ‘engagement based’ approach. Aboriginal and Torres Strait Islander peoples have been addressing, analysing and advocating on behalf of our children and young people for years.

We have set up support services and organisations to make a real difference on the ground. Aboriginal and Torres Strait Islander peoples understand the problems and have the answers. We are confident that solution lies in engagement rather than more money. The answers lie is strong regional based engagement with Aboriginal and Torres Strait Islander leaders of communities and organisations to set the priorities for expenditure of the resources. 

Strong engagement by government with Aboriginal and Torres Strait Islander leaders on a region by region basis will deliver the advice and priorities for solutions. This requires more than consultation – it requires a resetting of the relationship to provide for meaningful engagement where we are decision makers in matters that impact on our lives.