Australian Human Rights Report 2009

Source: Australian Human Rights Commission
www.humanrights.gov.au Social justice, NT Report 09, chapter 4
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From the rich man's table
Cartoon by John Frith
The Herald, July 1968
National Library of Australia

Native Title Report 2009

Chapter 4: Indigenous land tenure reform
4.1 Introduction

During the reporting period, Australian governments continued to develop tenure reform policies for Indigenous land. Governments frequently describe these policies as a means of promoting home ownership and economic development on Indigenous land. The reality is not so simple.

I have previously expressed my concern with arguments that tenure reform is the key to removing impediments to economic development in communities on Indigenous land. I continue to hold this concern. Issues such as remoteness, education, health, job readiness, poor infrastructure and the failure of governments to respect Indigenous forms of ownership, including native title, are substantially more important and have a greater impact on the economic development of communities.

This Chapter reviews tenure reform programs across Australia and reveals that the focus of reforms has been on enabling governments to obtain secure tenure over Indigenous land. However, this focus on secure tenure is not about assisting Indigenous people to make use of their land – it is about governments having control over decision-making.

If the main effect of these reforms is to enable governments to implement policies that impede self-governance and decrease effective control by Indigenous peoples over their lands, then Indigenous people across Australia will feel betrayed and further alienated.

Tenure reform does not have to have this focus. If the aim of tenure reform is to provide clarity of ownership and improved opportunities for development, this can be achieved by quickening processes for the return of land to Indigenous people and supporting them to pursue their right to development. Government policies need to be flexible to accommodate different types of land ownership (for instance, communally-held native title land or freehold land granted under a land rights regime) and to support the distinct development aspirations of specific communities.

To a significant extent, tenure reform of Indigenous land is being directed by the Australian Government, both through its role in the Council of Australian Governments (COAG) and more directly in the case of the Northern Territory. Despite its central role, the Australian Government is yet to provide a clear statement that sets out the aims and parameters of its tenure reform policy and provides Indigenous people with a clearer sense of where they stand.

The purpose of this Chapter is to identify the Australian Government’s approach to tenure reform and to highlight developments in the Northern Territory, Queensland, New South Wales, South Australia and Western Australia during the reporting period. The Chapter updates my previous discussion of tenure reform contained in my Native Title Report 2005 and Native Title Report 2007.

In this Chapter, I first seek to provide a clearer picture of what the Indigenous land reform policies of the Australian Government look like. I provide a number of extracts from government statements and documents and follow this with a discussion of what these mean.

Next, I describe the related policy of delivering services through priority locations. This is an important development for Indigenous communities.

The Chapter then reviews developments in relation to tenure reform in the Northern Territory, and includes an updated discussion of the Northern Territory Emergency Response and of township leasing.

I then focus on tenure reform developments in other states that are participating in the COAG process – Queensland, New South Wales, South Australia and Western Australia.

Finally, I consider the principles that should be followed in implementing any reforms to Indigenous land tenure in Australia.

4.2 Identifying a national Indigenous land reform policy

The Australian Government is yet to publish a comprehensive statement of its tenure reform policy. And yet, tenure reform is being rolled out in many places across Australia.

In this section, I piece together extracts of statements to provide a picture of what the Australian Government’s tenure reform policy entails. I also review developments at the COAG level. Finally, I evaluate the features of the Government’s policy.

(a) The Australian Government’s policy

In 2006, the former Australian Government introduced ‘township leasing’ through a new s 19A in the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALRA).

Under a s 19A lease, also known as a ‘whole of township lease’, all of the land in and around a community on Aboriginal land is leased to a government entity for an extended period. The government entity can then issue subleases over parts of the community.

When it was in opposition, the Labor Party expressed concerns regarding the former Coalition Government’s approach to Indigenous land tenure reform. On 13 June 2007, Jenny Macklin MP (then Shadow Minister for Indigenous Affairs) told the House of Representatives that the township leasing model ‘removed direct control by traditional owners over development on township land’. She went on to say:

The government is arguing that land rights have not delivered economic outcomes, and is therefore seeking to construct a Hobson’s choice for Indigenous people.

Choose between your rights to land and your rights to economic development. I do not believe that it is beyond the wit of traditional owners and the government to devise land tenure arrangements which streamline transaction costs without fundamentally undermining Indigenous ownership and control of their land.[1]

Yet, when Jenny Macklin made her first address to the National Press Club as Minister for Families, Housing, Community Services and Indigenous Affairs on 27 February 2008, she said that she considers ‘there are many advantages to whole of township leases’.[2]

The Minister also told the Press Club that her government had a policy of requiring appropriate security for new housing investment in Indigenous communities across Australia. The Minister explained that this means a lease or other arrangement that:

  • ensures clarity of ownership and responsibility for assets
  • delivers the effective provision and management of public or community housing
  • ensures tenants are required to look after their houses and be held to public tenancy requirements
  • encourages and facilitates private sector investment to expand the housing asset base and to encourage private home ownership.[3]

This speech signalled the new Labor Government’s intention to continue to implement the secure tenure policy that had been taking form under the Howard Government.

The first application of this policy by the new Government was in relation to the Strategic Indigenous Housing and Infrastructure Program (SIHIP), which was announced on 21 April 2008.[4] Under SIHIP, the Australian Government agreed to contribute $547 million over four years toward Indigenous housing in the Northern Territory.

Sixteen communities were selected for new housing, on the condition that there was a grant of secure tenure to the government. As the Minister stated:

Security of tenure will be a key element in allocating this funding. Communities receiving capital works under this program will need to enter into a lease for a period of time appropriate to the life of the capital works being funded.[5]

The Minister stated the reasons for this being:

In the past, the absence of secure tenure has meant inferior repairs and maintenance which, exacerbated by overcrowding, has led to houses becoming run down and unliveable.[6]

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