Originally published in Tracker Magazine, April 2011 edition.
OriginalTRACKER, APRIL 2011: At the federal level, our two major parties want to talk to Aboriginal people about reform of – and recognition in – the Australian Constitution. But around the nation, Aboriginal people overwhelmingly want to talk about their rights. In this inaugural edition of Tracker, we speak to three prominent Aboriginal leaders – from South Australia, Queensland and Tasmania – about land rights and the future of economic development for their communities. This feature is intended to be the start of an ongoing discussion – and debate – about land rights in Australia within Tracker, including a discussion about how native title fits into the picture. BRIAN JOHNSTONE, CHRIS GRAHAM and AMY McQUIRE report.
In NSW, land rights has delivered real benefits to Aboriginal people. Unarguably, more than any other state or Territory in fact.
Today, the NSW land rights network is worth more than $2.6 billion. That’s despite the fact less than 0.1 percent of the NSW landmass has been returned to Aboriginal people. By comparison, in South Australia, Tasmania and Queensland, land rights have delivered negligible returns to Aboriginal communities.
Tony McAvoy is a Murri lawyer based in NSW. He specialises in land rights and native title issues. Mr McAvoy told a recent forum on land rights, organised by Stephen Wright, the Registrar of the NSW Aboriginal Land Rights Act, that he occasionally got annoyed by the NSW land rights system. But not for the reasons you might think.
“I apologise if I sound a little frustrated, but it’s because I believe if we had in Queensland what you have in NSW, things would be so much better for us up there,” he said.
Mr McAvoy, speaking after the forum, told Tracker the two states were poles apart.
“There is no comparison, between the Queensland and NSW legislation,” Mr McAvoy said. “In Queensland there is an act called the Aboriginal Land Act which provides for community held free hold, but it’s in trust and only can be dealt with by a system of approval of the minister.
“There is no real claims process in Queensland.
“What happens is the Department – the equivalent of the lands department (in NSW) – determines whether there is transferable land.
“But there has been very little land that’s been handed over to Aboriginal people in Queensland as freehold, particularly in comparison to the success in the land rights process under the Aboriginal Land Rights Act in NSW.”
Mr McAvoy said he supported a push for a national land rights model based in part on the NSW system, but there were caveats.
“Certainly there are many aspects of the NSW Aboriginal Land Rights Act which could be adopted at a national level with enabling legislation in the states,” he said.
“The preamble to the NSW Land Rights Act provides a reasonable start, although I would make some changes to make it clear that the notion that there was ever sufficient land set aside for Aborigines is incorrect.
“Aboriginal people have been progressively dispossessed and that needs to be stated clearly.
“The NSW Preamble is useful, but I think the land claims process itself is something that could be adopted in the other states.”
However, Mr McAvoy said the NSW model would need to confront the issue of native title, and how the two regimes might work better together.
“Certainly the shortcomings of the native title process are numerous,” Mr McAvoy said.
“I think people are very disappointed with the Native Title Act, and in any push for the development of a national land rights legislation, or some replication of the NSW system in other states, the first response from the Commonwealth or the state will be that we already have the Native Title Act.
“One needs to get over that hurdle, and make the case for the delivery up of freehold, as a mechanism for compensation and as a response to the systematic dispossession.
“I think it’s a worthwhile pursuit in terms of policy development and legislative reform. I think it’s also necessary to seek to expand or replicate the NSW system of access to hunting and fishing rights.
“Other states don’t have that, and it should be expanded to take conflict and heat out of what ought to be fairly easy, recognisable rights…
“Those matters could be dealt with relatively easily by the adoption of the legislation similar to the Aboriginal Land Rights Act of NSW.
“Certainly there is an extraordinary amount of money being spent in native title, trying to obtain recognition of native title rights.”
In addition, Mr McAvoy would not support a national model which allows land council membership on the basis of location.
“The one point of difference that stands out for me is a national model framed on the NSW model including rights of membership of land councils on the basis of where you live.
“That would be unacceptable to me. It would have to be Traditional Owner based and there are historical reasons for that.
“In Queensland, people went straight from the unified street struggles of the 70s and 80s, and straight into post-Mabo area where it was nation-based. In NSW, they went from a unified street struggle of the 70s to the system of localised land councils of the 1980s.
“In any event, the NSW land council system needs to do a lot of focused policy work to figure out how the land rights system and the native title or traditional owner system can work together.
“I understand some people in the land council system are anti-native title and don’t see it as a way of [complementing] the existing land rights system, but it seems to me that this is a head in the sand approach.
“The much harder path is the real work that needs to be done about how they work together, and not how one is trying to knock the other off.”
Despite the work ahead, Mr McAvoy said there was good reason to be hopeful that tensions between native title and land rights could be resolved.
“There was a lot of conflict in the past over who the proper Traditional Owners are. From my work in native title in Queensland, most of those issues are now resolved.
“The work has all been done so that while there will be individual cases of people who say they should be one group or the other, and who are dissatisfied because they are not accepted, and there will always be those cases, the memberships of groups are pretty well settled now in Queensland and it is well on its way in NSW.
“But there is no avoiding this issue. I would encourage the NSW Aboriginal Land Council to do the work and try and find a means of accommodating both systems.
During his day job, Klynton Wanganeen is the Commissioner for Aboriginal Engagement within the Premier’s Department. However, he spoke to Tracker in his capacity as a long-standing leader in his community (Mr Wanganeen is a former ATSIC Commissioner for South Australia).
He is passionate about land rights, and has a very strong view that the NSW model would transpose beautifully to South Australia.
“From what I can see, right around the country, [NSW] is far and away the best. It’s the only model where Aboriginal communities have control of the policies, the practices and the land, and the dollars that go with it.
“There’s no ownership around the rest of the country, most of it is tied up in trust funds that are run by the likes of governments and industries, and the community have trouble accessing what is rightfully theirs. I’m quite positive that if we had the type of structure and support and start up finances of what the NSW model has, then I would say by 2020 we’d largely stamp out poverty in Aboriginal communities,” Mr Wanganeen said.
“I believe that it could be a reality, if we had anywhere near what you guys have we’d be able to do wonders with it for our people.”
Mr Wanganeen said the capacity for NSW Aboriginal people to make land claims was one great strength of the system.
“I would support a NSW type approach to land rights nationally, because it does a number of things.
“It has the capacity for Aboriginal people to make an application for land claims under the NSW act. You have the capacity to put in land claims when there’s a change of use. We don’t have that capacity whatsoever in South Australia.
“We can’t claim land at all, that capacity was taken out of the act.
On native title, Mr Wanganeen echoed the views of Mr McAvoy, and noted that while the regime had floundered, it was up to Aboriginal people to find a way to settle the battles.
“Native title hasn’t delivered for Aboriginal and Torres Strait Islander people. In South Australia it has provided some benefit, but not a hell of a lot. It was full of promise but it has never actually eventuated to deliver much benefit to people at the local level.
“Let’s look at the facts. Even though you have native title as an overarching act, there’s not actually anything around the country that looks at land rights except in New South Wales.
“Even in the Northern Territory, the land council system provides a collective benefit to a majority of the people, but where is it impacting on the people on the ground?”
On the disputes that crop up between the two regimes, Mr Wanganeen believes Aboriginal people are best equipped to find a way through.
“I don’t think that it would be a problem in the long run. But the Aboriginal community has to be able to come to terms with the issue.”
The land rights act in Tasmania hasn’t served the Aboriginal community any better than in SA. Rodney Dillon is a former ATSIC Commissioner for Tasmania, now working with Amnesty International. He told Tracker magazine that Tasmanian Aborigines get land back only if, and when, the government feels like it.
There’s no proper process for land to be claimed, and what is returned is often inadequate.
“The land handed back has been very small. I think this (state) government is at a standstill.
“I don’t see in any of the platforms of the three parties, when they go to the election, about giving back land to Aboriginal groups and that is a major concern.
“There’s not even any recognition. But that’s their responsibility, to hand back land to our people.
Mr Dillon said the Greens – who share a minority government with Labor in Tasmania – were a part of that failure. He added that Aboriginal groups had been kept busy protecting their sacred sites and objects, and had lost focus on land rights as a result.
“We don’t have much time to think about land when they are attacking our cultural heritage,” he said. “I think that’s been one of the reasons why land hasn’t been the highest agenda for a lot of our people – the government has been flat out destroying our heritage.”
Mr Dillon said he welcomed a national debate on land rights, but said it should include discussions about rights over water.
“Those two have got to travel together. We have to have the right to freshwater, we have to have the right to saltwater, we have to have the right to artesian waters.
“All those areas need to be put around land rights. It hasn’t been done anywhere. Blue Mud Bay (in the Northern Territory) was the one time, but there is very little native title over water rights.
Mr Dillon says he would support a model based around NSW land rights.
“The model on how the NSW Aboriginal Land council was set up, that gives a form of self-determination.
“It would be good if we had that model in Victoria, in Queensland and Tasmania and to South Australia and Western Australia.”
Mr Dillon noted that the power of organisations like NSWALC to speak for themselves can’t be overstated, and that was another reason he supported a NSW-style model.
“Where there is self-determination, you can send people overseas to talk to international conventions about what Australia’s not doing,” he said.
“You don’t rely on state government money to do that, you can challenge them. That’s the part of the self-determination that can make a difference.”
So how realistic is a national land rights push? Tony McAvoy believes the fight will be a tough one, and there will be fierce opposition from some quarters.
“I think that regardless of whether there’s merit for the mining sector, they will oppose it nevertheless,” Mr McAvoy said.
“I just don’t think there is anything you could do to stop that. It’s all about risk management. They’re not going to stand by and watch another level of risk be added to their operations without putting up some opposition, and they will use whatever they can.”
On that front, history provides ample evidence. The Chamber of Mines in Western Australia led the fight against national land rights in the 1980s. The campaign was bitter, divisive and at times overtly racist.
The Chamber predicted massive gloom and doom. But land rights in NSW was already underway at the time, and has flourished ever since. The predictions of economic ruin for anyone but the blackfellas, of course, never came true.
Even so, Mr McAvoy believes the mining sector would try it on anyway.
“It doesn’t matter what model is put up. It will be opposed by the mining sector and it’s a matter of managing that opposition. They’re incredibly powerful, and as you know, basically the mining sector brought about the downfall of a Prime Minister.
“The establishment of a national land rights model would not be an easy thing to do. There are certainly areas of support for such an idea because of the dissatisfaction people have with the outcome from the native title process… there’s no doubt about that. But whether there’s any support to put through another land claims system, I’m not entirely sure.
“And I suppose I would support the development of a national model – though with a streamlined claims process that largely mirrors the NSW model.
“I think it’s a worthy pursuit.”
Mr Wanganeen agrees that a push for national land rights would inevitably spark scare campaigns from some quarters, although he’s more optimistic than Mr McAvoy about the response from the mining sector.
“I would say that in the past, those scare campaigns came from a variety of sources, not just from the mining industry but within government and also the media.
“Over the last few years, the mining companies have been building extremely good relationships with the Aboriginal community. I’ve heard the Minerals Council (of Australia) make some strong statements supporting the work that the mining industry is doing with Aboriginal communities.
“We would have more allies now then we would have had back in those bad old days… because Aboriginal communities are not stopping development around the country and communities are negotiating benefit packages in the view that they will eventually break the shackles of welfare dependency.
“On national land rights, if you don’t have the mining industry up in arms, the only thing that is actually lacking is the commitment of government. Businesses are coming on board and getting used to the idea of working with Aboriginal and Torres Strait Islander communities.
“But the politicians and the media will try and put forward the myth that Aboriginal people have too much already. That’s not so. Aboriginal people are the last people to enjoy any rights in this country.”