This article first appeared in The Australian, 28 September 2006

Live not by Land Alone

Hon. Peter Howson

Murray Wilcox, a Labor Party appointee in 1993 to the chief justiceship of the Industrial Relations Court of Australia, is nothing if not controversial. During the 1996 federal election campaign, he made extensive public criticisms of the Coalition's workplace relations policy from the bench and his public verbosity may have contributed to Labor and Coalition governments reducing (and eventually removing) the jurisdiction of the court.

It is unclear whether his on-retirement judgement also reflects his personal views. This is that Noongar Aborigines have retained sufficient cultural cohesion to allow them the right to claim certain land rights in metropolitan Perth. But if his decision were to be confirmed on appeal, that could raise the question of whether a constitutional referendum may be needed to finally settle that all title to land should be derived from the crown.

More generally, past policies seeking to assist the economic development of Aborigines by providing exclusive access to land have failed. I have written (see Quadrant, June 2005) about the disastrous experience with establishing communal title to a vast area of Northern Territory land. Limiting access to land on a communally owned basis (all native title is of a communal kind) has produced virtually no long-term benefits for Aborigines.

Almost as significant a failure has been the major project started under the Keating government in 1994 and designed specifically to purchase land for Aborigines. The prime minister's rationale for such a project was that, as Aboriginal communities remained land dispossessed despite Mabo, and as "land ownership is fundamental to the well-being of the indigenous community, .the benefits will not only be cultural and social but will lead to improved economic well-being".

The Keating legislation provided for an annual amount of $121 million (indexed) to be paid into a land fund. That, in turn, would be allocated to an Indigenous Land Corporation for land acquisition and management, with indexed annual amounts increasing to $45 million from 1997-98 and then, from 2004-05, the earnings on land fund investments. The ILC has a seven-member board, of whom five must be indigenous.

It did not take long for concerns to emerge about the activities of the ILC. In May 1999 the corporation paid $8 million for a large Broome cattle station, Roebuck Plains, whose non-indigenous sellers had paid a couple of years earlier only $1.4 million in capital plus about $5 million in lease payments, which provided potential write-offs of inherited tax losses. Two other smaller properties in the area were purchased in the same deal, also for prices apparently well above true value. Given the object of involving Aborigines, it was surprising the ILC entered arrangements with the sellers to manage these properties.

A Sydney Morning Herald article reported a draft Australian National Audit office assessment in 2000 of the Roebuck Plains purchase as involving a litany of breaches by the ILC of its own rules. But although in 2000 the ILC responded by establishing a commission of inquiry with its own terms of reference, first under Sir Lawrence Street and, after his withdrawal, under Andrew Rogers QC, his report has never been published.

One partial explanation for the increased price, given in 2002 by the minister for indigenous affairs in answer to a parliamentary question, was that the ILC had advised that cattle numbers had increased. My own investigations reveal the payment by the ILC of large invoices submitted by Dodsonlane Pty Ltd, of which Pat Dodson was a principal, for verification of cattle numbers after the purchase. Similar reports suggested commissions may have been paid to those assisting the purchase, but the minister's parliamentary question answer indicated that, while the ILC had advised a considerable number of officers and employees of the corporation were involved in the purchase, including then chairman Mr David Ross and Mr Peter Yu, no commissions were paid by it.

Other evidence suggests that the ILC experience with Roebuck Plains is only one example of a wider problem with government-funded, majority Aboriginal-run organisations and with Aboriginal capacity to put land to effective use. Over the ten years from 30 June 1995 the ILC expended approximately $438 million in purchasing 170 properties valued, at 30 June 2004, at only $160 million. The land fund itself by then had accumulated no less than $1.4 billion in the kitty.

The time has surely come to wind-up the ILC and the land fund and put the funds to better long term use. A good start would be providing for the enormous expenditures now required for Aboriginal education.