Native Title and Service Delivery

Native Title and Service Delivery

Darwin, 23 March 2006

My presentation today will focus on the content of my Native Title Report 2005. I will outline the debates about economic development on Indigenous land - the possibilities and the challenges. At the conclusion of this presentation I will provide some challenge statements about the responsibilities of service deliverers on Indigenous land.

My Native Title Report 2005 focuses on the land tenure debate that has been a prominent media topic over the past 18 months.

Put simply, the debate is about the purpose of Indigenous communally owned lands. Government and other commentators have argued that Indigenous communal lands would be better utilised by dividing them into individual lease lots and encouraging Indigenous people to take out home loans, in the same way that we do in urban environments.

Others have argued, and this is my view, that such an approach is inconsistent with the very reasons behind land rights. In addition, this white picket fence approach has potential for other negative consequences. While I encourage economic development on Indigenous land, there needs to be safeguards against diminishing the Indigenous land base.

There has been positive progress in returning land to Indigenous Australians. Land under some form of Indigenous title is now estimated to be close to 20% of Australia’s land mass. Here in the Northern Territory approximately 50% of the land is under Indigenous title. Federal and state parliaments around Australia have enacted more than twenty separate pieces of legislation to provide or recognise Indigenous interests in land. Yet despite the return of this Indigenous land, there has been minimal impact on Indigenous social and economic disadvantage. I will return to this point later in the presentation.

So what is Indigenous land? There are two main forms of Indigenous land tenure: land rights and native title. Land rights exist in various forms in each state and the mainland territories of Australia except Western Australia. Land rights grants traditional owners absolute ownership of the land. Traditional owners exercise control over land through land councils. Native title rights apply throughout Australia.

Native title is not a grant of land from the government or Crown like land rights land. Rather, it is the recognition in Australian law of certain rights to land that are based on Indigenous traditional laws and customs. Native title rights vary between traditional owner groups, because native title rights to land are determined by the particular traditional laws and customs of each group.

I won’t go into the specifics here, but native title rights are a weaker form of title than land rights. Most native title holders have rights to use the land to hunt, fish, gather or conduct ceremonies on an area and to negotiate about what happens on that land. Native title rights do not provide exclusive rights to the land, nor do they provide commercial rights to the land.

In February 2005, Amanda Vanstone, the then federal Minister for Immigration and Multicultural and Indigenous Affairs indicated that the Australian Government would contemplate reforms to the federal land rights legislation of the Northern Territory in order to facilitate increased home ownership and business development. In various statements, both the Prime Minister and Minister Vanstone described the need to remove impediments to business development to ensure that Indigenous-owned land could be used to generate economic returns. One of the arguments put forth by government is that the return of land to Indigenous people has not resulted in any improvements to Indigenous social, health, or economic indicators.

One of Minister Vanstone’s often quoted comments is that Indigenous people are ‘land rich but dirt poor.’

The Australian government has made clear that it wants to encourage wealth creation strategies for Indigenous people, and the proposed way to do this is to encourage Indigenous people to take up individual lease lots on their land, to take out home loans and buy their own homes. The idea is to create a housing market on Indigenous land.

It is the Land Tenure Principles that outline the Australian government’s approach to Indigenous land policy. These Principles were developed by the National Indigenous Council in 2005. After the abolition of ATSIC in 2005, the government appointed the National Indigenous Council to advise the government on Indigenous policy issues. Unlike ATSIC, the National Indigenous Council is not an elected group, and therefore its views are not representative of Indigenous Australians.

The Land Tenure Principles are 5 principles that aim to establish individual leases and home ownership on communal lands as a way of ‘reconciling traditional and contemporary Indigenous interests.’

The Principles represent the modernisation theory of economic development, which was once the prominent mode of thinking within the international community, particularly in Western society. The intention is to encourage Indigenous people to take up the same wealth creation strategies as non-Indigenous people. 

At this point we get to my analysis of why the Land Tenure Principles are a flawed policy. While the Australian government may want to improve outcomes for Indigenous people though land leasing and economic development, this strategy ignores an important fact: land rights regimes around the country already permit individual leasing.

Leasing options are not a new concept under land rights. In fact, traditional owners have been able to lease their land to any person or corporate entity since the first land rights legislation was introduced in 1976. Every land rights statute bar one; the Victorian Aboriginal Lands Act 1991 (Vic)) allows land to be leased. Land rights land can be sold in one jurisdiction: New South Wales.

The point here is that despite this existing option, Indigenous people have not been taking out individual leases on their communal land, and they have not been taking out home loans and building their own homes.

While there are many examples of commercial leases on Indigenous land with mining companies and other industry bodies, leases are not taken out for the purposes of individual title and homeownership.

The reasons for this can only be theorised as there has not been a significant survey of traditional owners on this issue.

What we do know is in a traditional sense, Aboriginal land cannot be alienated. This means it cannot be transferred, sold or redistributed. The land belongs to the traditional owners and those who come after them. Inalienability reflects Aboriginal ways of being - ancestors and humans are integrated with each other and with ‘country’.

There are other practical reasons why home ownership and individual title have not been popular amongst Indigenous Australians. In itself, home ownership is not a wealth creation strategy. Home ownership is mostly about debt. It is only through the sale of the home and the land that there is potential for capital gain. Home ownership incurs costs for the owner and requires regular periodic payments to service the loan, maintain the asset, pay rates, electricity and water.

It is the land that tends to attract capital gain, and the location of the land has a direct bearing on the extent of the capital gain. Houses depreciate and lose value over time. Therefore, there would seem to be no point to leasing and building in remote and regional locations because there is such a limited market, and therefore little to no possibility for capital gain. Investment needs to be in urban areas if it is to provide some capital returns

The push to change tenure arrangements from communal title to individual title is not a new idea. As a specialised agency of the United Nations, the World Bank provides loans, policy advice, technical assistance and knowledge sharing services to low and middle income countries to reduce poverty. The strategy of individual titling on Indigenous land was prominent with the World Bank in the 1970’s.

The World Bank experienced difficulties in achieving outcomes under the individual titling approach. According to evaluations of this program there were high costs with few benefits, and in Africa where farming prospered, it appeared to do so within a framework of customary rights, kinship and social contracts. The World Bank has since shifted its approach to economic development and land titling. The World Bank now argues the need for more formal property rights to exist only as populations increase and land becomes scarce.

There is little incentive to hold individual title where the rights to the land are available to all members.

The forth National Indigenous Council Principle outlines potential to invoke involuntary measures should traditional owners ‘unreasonably’ withhold consent to enterprises on their land. It is unclear who would be the ultimate arbiter of what constitutes ‘unreasonable’ withholding of consent. Involuntary surrender of the communal land title would almost certainly represent discriminatory behaviour, given that only Indigenous titles are to be singled out for such treatment.

Although probably within constitutional power, there is little doubt that compulsory leases and/or acquisition would represent a significant winding back of Indigenous rights in Australia. This undermines the principle of self-determination and self-management and represents a return to the days when an outside authority decided what was in the best interests of Indigenous people.

It is my role to monitor compliance with the Racial Discrimination Act (1975). Sections 9 and 10 of the RDA are concerned with the equal enjoyment of human rights of all Australians, regardless of race or colour. Since NIC Principle 4 singles out Indigenous land for the purposes of compulsory acquisition, if implemented, it would be in breach of the Racial Discrimination Act.

The NIC Principles open up the possibility of withdrawing a right, not on the basis of national or public interest, which would therefore apply to any title, but on the basis that this is an Indigenous title and that others, non-title holders, have set policy objectives for the title holders.

What is being proposed in the NIC Principle 4 is the replacement of a regime of rights, established by legislation, with a regime of compensation. This may be capable of legal effect through legislation; however it will almost certainly fail both international standards of non-discrimination and the common sense understandings of just and equitable treatment.

While government representatives have expressed dissatisfaction with the economic and social outcomes produced from land rights, such dissatisfaction focuses on only one of the reasons for the establishment of land rights. Land rights were not established to principally nor solely to provide economic returns. There are other very important reasons. They are: compensation, spiritual importance and self-determination

• Compensation for failing to make treaties, for the historical taking of land from Aboriginal and Torres Strait Islander peoples without agreement or payment – that is, for dispossession – is one of the most important reasons for modern land rights legislation. The rationale of compensation reflects international law norms and human rights principles, and is both a symbolic and practical act of reconciliation.
• Indigenous societies in Australia are governed by their own systems of law, including customary land tenure systems, and land rights strives to create space for these within the Australian legal system. It also acknowledges the spiritual importance of land to Indigenous culture and the continuing connection of Indigenous Australians to country, through customary law, association to place and Indigenous religions.
• Land rights legislation can give effect to self-determination through recognising prior Aboriginal and Torres Strait Islander ownership of Australia and by creating a legal and geographical space in which Indigenous law and custom has effect and can contribute to self-directed development into the future.
• Land rights can provide a means for economic development through restoring Indigenous rights to land and natural resources, including minerals, which can be exploited if desired. It may also give Indigenous owners a financially valuable seat at the negotiating table with government and third parties through statutory control over what happens on their lands

While in principle, economic development on Indigenous land may be a worthy pursuit if conducted with the full consent of traditional owners, we need consider the following:

• Firstly, what type of land are we talking about here? The very reason that land has been available to be returned to Indigenous people is often because the land is marginal, arid, inhospitable and inaccessible. In short, other people have not wanted it for economic development purposes.
• Business development also requires infrastructure. Again, we have to remember that much of Indigenous land is remote and barely accessible. In the tropical regions it can be cut off from all forms of transport for months of the year. Establishing business under these circumstances will require extensive support from government to establish infrastructure.
• Infrastructure support has not been forthcoming. Recent comments from Minister Vanstone have foreshadowed the government’s intention to reduce or rationalise infrastructure in small communities. Small communities have been labelled ‘cultural museums’, and too small to warrant government support.
• Overall, we need to be cautious about setting up expectations that are difficult to meet. Given all of these caveats, and the fact that there is a high failure rate for small business across Australia generally, economic development is not a simple matter of opening up the land, and encouraging Indigenous people to pursue the same wealth creation strategies as non-Indigenous Australians.

We need to build on existing success using contemporary examples of Indigenous business development and use these successes as models for other business development projects. Governments need to commit to develop infrastructure to support business enterprise on Indigenous land. We need to identify potential leaders, and we need to ensure that opportunities are provided for people to take leadership roles. The Building Indigenous Leadership report identifies that many of our leaders will not come from university, they will come up through the ranks. We need to identify how this can occur, and support it to happen in future.

There is responsibility for many of us in this function. Many of you here are government workers. We should all be working together to build Indigenous leadership in young people, formal education has a role here as it is the interface between the Indigenous and the non-Indigenous worlds.

Many of you here deliver services on Indigenous land, whether in education, health, community services, infrastructure planning or infrastructure development. The question for you is how you negotiate your services with the traditional owners of the land, and how successful are your negotiations? We hear a lot about negotiating with communities, but I wonder whether there is careful consideration about how this is done, with whom it is done, and whether agreements are reached with adequate processes to obtain the consent of the traditional land owners.

There are so many stories about the failure of services and infrastructure on Indigenous land. My question is: why are there failures, and who has responsibility for these failures? With all the best intentions, it may be that agreements have not been negotiated with the right people in the community. It may be that there is no common understanding of the service, and no clear understanding of the obligations of both parties to the agreement. In participating in SRA processes, and RPA processes, government service deliverers need to carefully plan any consultation process with the right community members in order to get the best outcomes for service delivery.

In my Native Title Report 2004 I set out principles to guide agreements across the native title system. These are relevant to all agreements.

• Respond to the traditional owner group's goals for economic and social development
• Provide for the development of the group's capacity to set, implement and achieve their development goals
• Utilise to the fullest extent possible the existing assets and capacities of the group
• Build relationships between stakeholders, including a whole of government approach to addressing econ­omic and social development on Indigenous lands
• Integrate activities at various levels to achieve the dev­elopment goals of the group
• Find out what permissions might be necessary to obtain prior to conducting consultations with communities and importantly, who are the people you should be talking with.
• Ensure that consultations provide for a mechanism to obtain agreement with communities over the process and desired outcomes of any proposal.   Communities are acutely aware of the issues and possible solutions relating to their particular circumstances and will be pivotal to the success of any proposal.
• Keep consultations focused, interactive and deliberative. Promote proper engagement with people and avoid reducing issues to simplistic questions and responses.
• Involve Indigenous people from the outset.  Any proposal must be based on mutually agreed processes and utilise local knowledge in order to achieve sustainable outcomes in Indigenous communities.
• Where you need to consult with large numbers of people, providing for small group engagement is preferable to ensure all people have an opportunity to give and receive information.  In some cases, communities or groups may demonstrate preferences for separate meetings based on age, gender, elder status, traditional owners and historical peoples.
• Consultants must also be patient and flexible regarding the timing of consultations as priorities such as cultural events or religious ceremonies may take priority over the consultation. Consultants should also be mindful of ensuring various methods of consulting (for example oral, written, aided by translators) as well as the availability of participants due to family and work commitments.
• Use interpreters and translators
• Ensure that the community has understood by employing the techniques of asking them to feedback their understanding of the agreement
• Document agreements in a way which provides clear understanding for the purposes of the community.