The danger of dismantling land rights

Concerned Australians meeting on 99-year leases. Victoria Law School, Melbourne. MC, journalist Jeff McMullen; former PM Malcolm Fraser; Utopia Elder, Rosalie Kunoth-Monks and former Victorian Supreme Court Justice, Frank Vincent

Concerned Australians meeting on 99-year leases. Victoria Law School, Melbourne.
MC, journalist Jeff McMullen; former PM Malcolm Fraser; Utopia Elder, Rosalie Kunoth-Monks and former Victorian Supreme Court Justice, Frank Vincent

The First Australians considered themselves custodians of the land rather than owners of it. When British settlers arrived, this harmonious relationship was fundamentally disturbed. The notion of ‘land rights’ became necessary.

Now, centuries after colonisers violently acquired what was deemed unclaimed territory, and several decades since acknowledging Aboriginal land title, the government is proposing to lease Aboriginal land back.

But this time the power to acquire comes not in the form of violence or warfare, but money.

In October last year, Federal Minister for Indigenous Affairs, Nigel Scullion, signed a formal commitment with traditional owners of the remote Arnhem Land community Gunbalanya to negotiate towards a 99-year township lease.

Mr Scullion called on other Aboriginal communities throughout NT to consider entering into similar arrangements.

Concerned elders and advocates for Indigenous rights are questioning what benefit the leases offer Indigenous communities. Many say a 99-year lease is effectively the same as acquisition and warn that the arrangement could result in a deterioration of Indigenous rights.

In a letter to The Australian, Elcho Island elder and Uniting Church minister Rev Dr Djinyini Gondarra OAM called for explanation.

“The government and NLC [Northern Land Council] should now declare their interests openly and tell us why they think 99-year leases are good things, not start with the premise they are best for us and then try to persuade us,” he wrote.

“I call on other Aboriginal communities to reject the government’s overtures involving any changes unless and until they abide by culturally appropriate protocols and undertake to give the communities access to independent advice, including legal advice at the government’s expense.”

In an article published in Crikey late last year, ANU Professor Jon Altman stated that the arrangement was complex and politically fraught.

He said the right to free prior and informed consent for traditional elders needed to be thoroughly exercised considering the high stakes involved.

Mr Altman referred to early analysis of 2006 and 2011 census data which indicates no development difference (infrastructure, services) between Wurrumiyanga, where the first whole-of-township agreement was completed, and nearby Pirlangimp.

The main change evident was a rapid growth in the non-Indigenous population at Wurrumiyanga and a growing disparity between Indigenous and non-Indigenous incomes.

In November last year, a panel formed by Utopia (NT) elder Rosalie Kunoth-Monks OAM, the Hon. Frank Vincent QC AO, former Prime Minister Malcolm Fraser, and advocate for Indigenous rights Jeff McMullen discussed the dismantling of land rights through the 99-year leases. Mr Vincent questioned the government’s motivation.

“What is the purpose of the 99-year leases? The same questions that are usual for this kind of transaction in any other context, these questions are being overridden. It’s an obvious misapplication of ordinary approaches in legitimate business arrangements,” Mr Vincent said.

Mr Fraser suggested an alternative approach which seeks solutions outside the government to achieve genuine progress and ‘destroy’ paternalism.

“Why shouldn’t communities get hold of a sympathetic lawyer, a sympathetic developer to assist them? Because such people do exist.

“If you can get one community to do it and then another and they find they can also keep ownership of the land, but still achieve and advance things, then you can just go to the government and say ‘stuff you!’” he said.

Ms Kunoth-Monks said a similar approach of direct engagement with corporations had previously been put forward but the request for start-up funding was repeatedly rejected by former Minister for Indigenous Affairs, Jenny Macklin.

Dr Gondarra suggested the purported benefits of the arrangement are achievable without 99-year leases.

“Many land-owning groups already have or are beginning to construct Aboriginal corporations or businesses that can take advantage of the recently developed economy provided by leasing individual blocks of their land in townships,” he said.

“To replace these with a bureaucratic government body is anti-free enterprise … it will relegate Indigenous people to fringe-dwellers on their own lands – just like what has happened in the colonial past.”

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