AUSTRALIA – Land Rights Amendment 2006

AUSTRALIA – Land Rights Amendment 2006

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John Ahni Schertow
August 19, 2006
 

By Derek Lane – Under the amendments to the Land Rights Act 1976, it seems that what will likely occur is that previously Aboriginal townships will be leased to non Indigenous (and therefore, wealthy) people, and the subsequent leases internally may – if they are lucky or fortunate – go to Aboriginal residents.

The leases seem to be constructed with one major lease for the township (a headlease) and minor leases (though all at 99 years) under that. It is a little like, in Monopoly, needing to own all 3 plots before you can begin building on any of them.

It is, as Jon Altman points out, highly unlikely that any Aborigine from such townships will be able to afford the primary lease, and even less likely that any members will be able to do anything with a lease they manage to procure. Consequently, it will be likely that even the minor leases will go to non indigenous people who will effectively act as the Aboriginal communities’ ‘Duke’, and will be subjects under their fiefdom. Or, if you like, they will be run under the rules of councils in other parts of Australia, and many residents may be forced out due to increases in costs which they will not be able to afford.

“Ninety-nine-year head leases over townships, with individual subleases under the head lease, will make it significantly easier for individuals to own their own homes and establish businesses.”

Looking at it from another perspective, we will see new white townships spring up in place of Aboriginal ones, because with a cap of 5% of the land’s value on the rent as to the value of the land, it will provide many white people previously without the opportunity for commercial success to gain it at the expense of Aboriginal communities. It will be similiar to the ‘settler’ towns of Israel in Palestine, in terms of the equivalent rights and opportunities of the native inhabitants. In short, it seems to provide the basis (and a very similiar starting point) to the Jewish apartheid regime of Israel.

Its important to note that the 99 year lease contains within it ramifications which may not be wholly obvious on the surface. The first is why such long leases are needed. New Zealand was, for example, leased to the British by the Maori for a 99 year lease. 30 years or so after the expiry date, who holds the power still to that nation? 99 year leases were given to many farmers as payment for service in the world wars in Australia. For many of them, the leases, or at least part of them, became freehold well before that period would have been up (which, of course, has not yet come). It is possible that it would happen this way for such leases of townships; 99 years is, after all, a long time. Rules change subtlely across periods far shorter than 99 years. Right now, we are told it would not affect native title, but we could quite easily accept the opposite were we told ten years down the track, when everyone has become comfortable with the new vassal status of the black man under the white-owned township.

The second ramification is that the 99 year leases are, despite Mr Brough assertions otherwise, not voluntary.

They are voluntary in the sense that they don’t need to be taken out, but, like the current government’s rules of ‘wash the kids’ faces or you get no petrol’, the take up of the 99 year leases is being tied to government funding for remote Aboriginal communities. In other words, if they don’t do it, they will be stuck with the same poor governmental support as they currently have; support which keeps many Aboriginal communities with a status seen only in the third world, and, comparative to the rest of Australia, plants the Australian government firmly in the stead of an apartheid regime.

In contrast, if they agree to 99 year leases, they will automatically be given…

“Around fifty houses […] and real jobs [and] if the community is safe and signs up to full school attendance, a no-drugs no-violence policy and agree to a 99 year lease to support home ownership and business development opportunities.”

Mal Brough says that “The Commonwealth commitment is dependent on the Northern Territory Government being prepared to provide police, good teachers and classrooms and decent health services – territory government responsibilities”.

“This is all about choice. The people of Galiwin’ku can either keep going on the same old path with a few houses every year where people have little chance of improving their lot or start off on a new future for their children and their children’s children.”

According to the bill, there appears to be no safeguards to ensure that leases and headleases are approved with ministerial AND land council AND the full understanding of traditional owners and residents who may be affected. The bill outlines that these things must take place, but goes on to say that the subsection which insists upon these requirements is irrelevant to the legitimacy of the lease should they not take place, as long as ‘fraud’ is not committed. It seems like a convenient loophole included to be just that; an easy way out of such implicit dealings with the actual people affected. The clause from the bill follows:

19A Land Trust may grant headlease over township
Grant of lease
(1) A Land Trust may grant a lease of a township to an approved entity if:
(a) the Minister consents, in writing, to the grant of the lease; and
(b) the Land Council for the area in which the land is situated directs, in writing, the Land Trust to grant the lease.
A consent or direction under this subsection is not a legislative instrument.
Land Council direction
(2) A Land Council must not give a direction under subsection (1) for the grant of a lease unless it is satisfied that:
(a) the traditional Aboriginal owners (if any) of the land understand the nature and purpose of the proposed lease and, as a group, consent to it; and
(b) any Aboriginal community or group that may be affected by the proposed lease has been consulted and has had adequate opportunity to express its view to the Land Council; and
(c) the terms and conditions of the proposed lease (except those relating to matters covered by this section) are reasonable.
(3) If a Land Council, in giving a direction for a grant of a lease, fails to comply with subsection (2), that failure does not invalidate that grant unless the person to whom the grant was made procured the direction of the Land Council by fraud.

According to the UN convention concerning indigenous and tribal people in independent countries, Article 6 states that:

Governments shall:

(a) Consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly;

(b) Establish means by which these peoples can freely participate, to at least the same extent as other sectors of the population, at all levels of decision-making in elective institutions and administrative and other bodies responsible for policies and programmes which concern them;

(c) Establish means for the full development of these peoples’ own institutions and initiatives, and in appropriate cases provide the resources necessary for this purpose.

Where has this been done regarding such landmark legislation changes? It also says that (in Article 7):

1. The peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development. In addition, they shall participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them
directly.

2. The improvement of the conditions of life and work and levels of health and education of the peoples concerned, with their participation and co-operation, shall be a matter of priority in plans for the overall economic development of areas they inhabit. Special projects for development of the areas in question shall also be so designed as to promote such improvement.

3. Governments shall ensure that, whenever appropriate, studies are carried out, in co-operation with the peoples concerned, to assess the social, spiritual, cultural and environmental impact on them of planned development activities. The results of these studies shall be considered as fundamental criteria for the implementation of these activities.

4. Governments shall take measures, in co-operation with the peoples concerned, to protect and preserve the environment of the territories they inhabit.

Numbers 3 and 4 bring me to another issue; According to Mal Brough, “The bill is the product of three reviews and numerous consultations conducted over the last nine years.” What reviews? Consultations with whom? Senator Evans said that the government had failed to adequately consult indigenous communities on the proposed changes.

Someone is not telling the truth. Given the Liberals’ track record, were I a journalist in Australia I would be asking for the files of these reviews and consultations Mal Brough is so sure have been done. I would suggest strongly that they have not, or are so weighted in favour of governmental prejudice as to be irrelevant. It would surprise me greatly to find that even one truly independent review had drawn the conclusions that Brough seems to have drawn, or that he has consulted any but the mining companies, which brings me to the 4th bullet point of the UN convention.

The government shall take measures to protect the environment of the territories they inhabit.

Yet, according to Mal Brough, one of the other good things about this new bill is that “There will be a quicker process for exploration and mining on Aboriginal land, and current ministerial powers will be delegated to the Northern Territory Government.”

He goes on to say that “The changes include a sensible core negotiating period in which the Government expects most exploration applications to be considered.” and that “[He] intend[s] to provide the Northern Territory Mining Minister with a new power to set a deadline to bring negotiations to a conclusion.”

Mal Brough concludes with the caveat that “the power of traditional Aboriginal owners to withhold consent, or in other words to veto exploration, is retained.”

In common parlance; the less time we give them to think it over, the less likely they will be to veto exploration.

According to a report on NIT (National Indigenous Times), the current Central Land Council director, David Ross said “These amendments could leave mining companies dealing with very small under-resourced and ill-informed bodies and pave the way for bitter disputes within families and communities,” […] “We support genuine improved capacity for delegation but this amendment will give the minister more control, rather than the smaller groups it purportedly supports.”

The new bill appears to be cast to promote disunity (between traditional land owners and other Aboriginal inhabitants of townships), to engineer an injection of non indigenous blood and money into such townships, not to the advantage of these Aboriginal communities, but to the advantage of the non-indigenous people who come in with a little more collateral than the average Aboriginal resident will likely have, and to make things a little easier and quicker for the mining corporations to wheedle more pristine land out of Aboriginal communities (which is given back in a poorer and more polluted state years down the track*). Above all, it appears to be the intention to use such legislation – assuming it passes – to dangle one more carrot to the indigenous of Australia, where the ‘carrot’ should, by international and national laws, be given freely. As opposition indigenous affairs spokesman Chris Evans said “The government’s actions … represent another paternalistic attempt to tell Aboriginal people what’s good for them.”

And he is right, but in my view does not go far enough. Mal Brough carefully engineered scheme seems to be set not to help the Indigenous communities of central Australia, but to ultimately destroy and disseminate them. It may prove to be one more notch on the stick the Australian government has been using to beat Indigenous Australia since its inception.

Notes:
*Mining practise in Australia requires that open cut (the preferred and most used method) mines are backfilled as they follow a seam and environmental regeneration to take place on those backfilled holes, but there is no requirement to backfill the last hole. When the mine is exhausted, the mining company can, and does, leave the last hole. The hole fills, overflows and pollutes the surrounding country with the poor quality ore and mineral deposits from the hole. There is, as I understand it, still no legal requirement for any mining company to put a piece of mined land back to its original state, or as close as possible.

References:
http://parlinfoweb.aph.gov.au/piweb//vi … mp;ID=2270
http://www.abc.net.au/message/news/stories/s1670619.htm
http://www.abc.net.au/worldtoday/conten … 652229.htm
http://www.smh.com.au/news/National/NT- … 71013.html

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