Bennelong Society Conference 2001: From Separatism to Self Respect

Land Rights: Why the Potential Hasn't Been Reached and What To Do About It

John Elferink, MP

History

Let me begin by asserting that the history of European settlement in Australia does not reflect well on the people who were responsible for European expansion throughout the world. It is easy for technologically advanced civilisations to think more of themselves, collectively, than others with whom they share the world. There is often a tendency to mistake technology for civilisation. Armed with the belief that God was on their side, others that are met on the way had to be shown the light. I do not intend to dwell upon the history of this expansion at any length, suffice to make one point. With the changes in the European world view, especially since the Second World War, much of the moral high ground that was used to justify European expansion has been eroded. The problem for society now is that nature abhors a vacuum. There is a very real danger that the people who challenged the 'European world view' in the first place have created their own moral high ground that is in every measure just as arrogant as the one it replaced.

I am a profound supporter of land rights. Certainly what was done to the traditional owners of the continent of Australia amounted too little more than theft. If someone tried to take my land away from me, I would certainly feel aggrieved. Aboriginal Land rights seeks to address this issue. This attempt naturally falls within reasonable parameters. These parameters have been described by the common law and, in more recent times, codified law. In Australia, the ownership of land under a traditional interpretation prior to white settlement is not substantially different in many ways to ownership as understood in common-law terms. (This is still a matter of some dispute, however I believe that if the original inhabitants of Australia could have foreseen the impact of the first years of contact, they would not have accepted the presence of settlers on traditional lands).

The tradition of possession of land is, in Central Australia at least, expressed in the stories of the owners. In the absence of a written form of title, the identified areas of a landowner, typically the leaders of a family group, are told in the stories of the landowners. That these stories have a spiritual nature does detract from the very practical role they have of making clear the boundaries of specific parcels of land. The system did accommodate overlapping areas of title by the interest groups. However, the systems were carefully maintained by the custodians of the stories and therefore the custodians of the land. The refusal to acknowledge customary land ownership by colonising powers in Australia was a denial of ownership in the terms of international law of the time, outlined by the doctrine of terra nullius.

In 1976, an effort to correct this denial was expressed in the passing of the Fraser Government's Northern Territory Aboriginal Land Rights Act (Commonwealth) 1976. This Act predated the Mabo decision by fifteen years, and was an honest attempt to correct the injustices of non-recognition of previous land ownership in a Territory where the Commonwealth had constitutional authority in this matter. The Act, although brave in intent, has fallen short of expectations for several reasons.

Recent History

The settlement of the NT was largely left to the cattle industry. In the late 1800s and into the twentieth century, the industry became increasingly established. There was also some mining, including some minor gold rushes, and religious settlement in the centre of Australia as well as on the north coast. During this period, there is a large body of history which demonstrates that both conflict and co-operation existed between the 'new' landowners and the traditional landowners. Only the rights of the 'new' landowners were observed by the courts. As the first decades of the twentieth century passed, the relationship became less violent, and as was typical in other European colonies, the local population became subordinate to the more powerful cultural system under which they found themselves. The expanding cattle industry found in the local people a good source of inexpensive labour, as well as people with a good knowledge of the land that surrounded the growing industry. This relationship remained essentially symbiotic for several decades, but traditional owner's expectations increased when they became increasingly aware that the economic outcomes were tipped in favour of the pastoral leaseholders. Finally, these increased expectations found their focus in the walk-off from a NT station by Vincent Lingiari, a prominent elder of the Gurindji people. This walk-off is generally accepted as being the first major step in the land rights movement in the NT. Mr Lingiari wanted control of his own land so that he could have a cattle station that would provide work and control for his own people. These are the ambitions that would reasonably be expected of any leader by his people. They are expressed today as 'self determination', but are essentially as old as recorded history and have occurred in a multitude of environments. Mr Lingiari's aspirations were no exception.

What has gone wrong?

As the Gurindji and other people continued to press their claims, the pressure increased for a legislated response. As a result of Milirrpum and others v Nabalco and the Commonwealth (1970), the Whitlam Government established the Woodward Royal Commission to look into the issue of land rights in the NT. As a result of Justice Woodward's recommendations, the Land Rights Act was passed by the Fraser Government in 1976. What the Act tried to achieve must be understood in the context of the times. The Act was an attempt to give to traditional people control of and title to land that was morally theirs. The 1970s saw the whole of the Western world flirting with social agendas to exert greater control by governments over their societies as well as correcting some of the wrongs, real and perceived, of the past. Indeed, the land rights struggle that was being fought in Australia had parallels in Africa and other places during that decade, as well as in preceding and subsequent decades. The difference in our nation was that the battle was waged as a philosophical/legal one, whereas in Africa, for example, all too often it descended into war. The conflict in Zimbabwe today is expressed as a land rights issue by the 'War Veterans'. In many ways it is.

The Land Rights Act has too much of the social agenda of the 1970s written into it and not enough recognition of traditional systems of ownership that actually operate in the NT.

One of the first areas where the Act fails to recognise traditional systems is in the interpretation of Traditional Owner. The definition provided makes a traditional owner any person of Aboriginal descent from the area in question. The definition assumes that Aboriginality is the test by which a traditional owner may be identified. It may well be assumed that people of traditional backgrounds will be of a particular race, but this creates a subtle shift of focus that has a profound impact in the current political environment.

The truth is that, even in the NT electorate of MacDonnell, there are some eight language groups represented and each of these groups of people see themselves as being quite distinct and different from their neighbours. Even within language groups, race would not grant an automatic right to make decisions on the ownership of land, anymore that being Anglo-Saxon would give rise to claims of right on any area in England. Nevertheless, the Act hopes that traditional systems will make up for these shortfalls in the legislation. In many areas they do, but in crucial areas they don't. A recent example was the Palm Valley Land claim, which left a senior traditional man very angry that he was merely listed among other traditional owners, rather than being specifically identified as the person of significance.

These areas of claimed land also form land trusts that do not represent traditional areas of owned land. To complicate matters further, the land trusts are collectively represented by a single land council. The numerous language groups of the NT are represented by only two land councils on the mainland and two on islands off the NT coast. The inherent difficulty in this structure is not recognised by the Land Rights Act.

Resolving competing claims for ownership of disputed property is one of the fundamental issues for any legal system. This is no different in traditional society. One of the most fundamental crimes generally in traditional systems is the crime of 'talking up for someone else's land'. Nevertheless, the power of a land council to exert itself effectively over these language groups has the effect of making each of the participants careful to the point of silence to ensure that the fundamental principle of law is not breached. Bear in mind that a land council is not unlike a parliamentary system inasmuch as that there is an elected body supported by an executive.

For traditional reasons, the elected body is very careful about talking up for other people's lands, but there is room for the executive to exert more than a little influence. This indeed occurs and decisions taken by the council seem generally to reflect the opinions of the employees of the executive arm of the council. Because land rights organisations tend to attract those who are filled with the urge to protect the 'downtrodden', these employees are made up all too often of people with social rather than economic agendas. The effect is to fill the Land Council's executive with people who have a particular political bent. They seem to be utterly oblivious to their role and the effect that it has on the people they work for. This means that even after twenty-six years of management practices, they still believe that there is some external force that brings poverty to the land owners. Blame will always lie, in their view, with a government, with general racism or some other excuse. The truth, of course, is that they are being let down by their own practices, and the moment that is acknowledged, the repair work can begin.

There is also a further complication that has a profound effect on the outcomes of the structures that are created by the Land Rights Act. The Act was created in a time when the Land Rights movement was a political movement. Intellectually it remains so to this day. The genesis of this political movement dates back to the time when the Act was created.

In the 1970s there was a sea change in the approach by government to the delivery of services in the bush. These changes were sudden and violent in terms of their impact. The decision to enforce equal pay in the bush caused most cattle stations to shed enormous numbers of Aboriginal staff. These staff then moved off the stations and into communities where the welfare services took over. Doubtless, the intention behind these changes was noble, but the effect was, and is to this day, a disaster.

It seems unimaginable to the outside observer, but many old people who live in the communities now look to the days of the cattle stations and ration lines with a sense of nostalgia. I don't believe that there is any real desire to return to those days but it is an acknowledgement that many babies were thrown out with the bath water when the policy approach changed.

The land trusts upon which most of these communities stand take in about half of the land in the NT. It is astonishing to me that some of the world's largest land owners are on the dole.

It is also astonishing to many of the land owners themselves that they are on the dole. The problem lies in the social agenda of the Land Rights Act itself. As already stated, because the Act was developed with one eye on the social agenda in the West, it created a system of ownership that was collective. It simply stated that if a person on a land trust wanted to develop their land they could only do so with the permission of the rest of the land trust and these were often people who, in a traditional sense, would have no right of veto. The added complication is that if any particular venture makes an income, that income is not automatically forwarded to the landowner who made the effort, but rather to the land trust or the land council as a whole.

Simply stated, the people who live on land trusts are presented with numerous bureaucracies and state-sponsored charities, none of which have a commercial orientation.

Some Observations About Traditional Economies

One of the most irritating assumptions about traditional society is a condescending assumption that traditional society, before the impact of European settlement, was in some way a heavenly utopia. Depending on your perspective it certainly may have been a rewarding existence, but it was simply hard work to survive day to day. Any other picture is, in truth, romance. The fact is that the traditional economy is a simple investment economy, with a direct and almost instant return on investment the only viable option. The unit of currency in that economy was not a dollar or a pound but rather a calorie. The investment approach is simple. A person contributes a particular number of calories into a particular investment. For men, this was often hunting, and for women, generally it meant collecting food. If, for example, five thousand calories were invested by each person belonging to the body corporate (family group) into collecting food, and the return was greater than the investment, then each member of the body corporate would see an improvement in their lifestyle. It would mean that they could relax, have ceremonies and enjoy leisure. If the return on the investment was break-even, then the very next task was to re-invest and immediately go hunting or collecting. If the return was consistently lower, then the price consequence was death by starvation.

This is a simple rule of economics that has been agreed upon by all from Adam Smith, to Karl Marx to John Keynes---you simply cannot consume more than you produce.

This economic principle remained consistent in the NT until the early 1970s. Traditional people, either in communities or on cattle stations, still had to remain productive to receive an income. Communities such as Hermannsburg near Alice Springs were largely self-sufficient in terms of meeting their own needs. This is no longer the case. It is certainly no great leap of philosophy to argue that if land provided for its custodians in the past, then it should continue to do so into the future. The principle remains constant, even if the methodology changes.

Some Observations About the Current Economy in Remote Central Australia

Cattle stations can only produce a limited amount of wealth for a few people. They do not represent a profound use of land in terms of return per square kilometre.

Land Trusts produce some income but not enough to sustain the population that lives on them. This means that the shortfall is made up through welfare. Welfare is poised to do more damage to traditional cultures than previous policies ever could, despite the stated aim of those policies to the contrary. There is developing right now an angry underclass of young people who have abandoned the desire to learn the complex and difficult laws of their people. Compound this with the total disregard by so many for our legal system and we end up with many youths without a legal system to turn to. I have in mind Thomas Hobbes's famous observation that life without the law would be 'solitary, poor, nasty, brutish and short'. This description would fit the lives of very many young people in Central Australia.

No matter where one travels in the world, one can find examples of how welfare has stripped its recipients bare of any form of dignity or self-respect. Charity in the short term is necessary in some instances. Over the long term, however, it becomes destructive and soul destroying. It is no different in remote Central Australia.

What To Do?

The situation as it stands does not mean that welfare should be cut absolutely. I am convinced that if such a drastic response were to be taken, people whose lives are debilitated by an inability to respond because of welfare, would not be well-served. Any response to the problems must include an acceptance that services must still be provided. However, they must be provided in such a way that will cause a change in the mental approach of the people affected by the history of 'death by charity'.

As outlined above, the life of traditional people prior to the 1970s was generally very hard. This hardness did have a positive benefit, inasmuch as there was certainly a sense of purpose and dignity to life. When the change occurred---in the 1960s and 1970s---it was as though the big stick of survival was replaced entirely by the carrots of charity.

In both cases, the outcomes for traditional people were not commensurate with their efforts. Prior to the 1970s they were undervalued in terms of their labour and were paid very poorly for their efforts. After the radical shift of the 1970s, there was no measure of value applied to what was received. What they got in their hands was not a reflection of any effort at all, and the expression 'sit down money' was a term that was given to them by their protectors rather than being an expression developed in the community itself. Today, there is an opportunity to change the mind-set. The question is, how?

Bear in mind that the people who live in remote communities have at their disposal enormous amounts of land. They also possess a living, breathing legal system that is generally not incompatible with our own, and large numbers of services available to them. They have at their fingertips the wherewithal for their continued survival. What is needed is the political courage for the application of an approach that has a balance of carrot and stick.

The single largest identifiable destructive force in remote Central Australia is the availability of disposable cash. It is this disposable income (that represents no input by the recipients) that is the greatest licence to self-destruction.

The CDEP scheme acknowledges this, but the problem with the scheme is that it does not create a relationship between cash income and the need for effort. Often the CDEP process does not create the demand for a productive outcome and it is treated by many people as a system of work for the dole, which it effectively is.

Pulling the Strings Together

By identifying all of the problems in this paper it is easy to demonstrate that, among the observations, the solutions to the problems do exist. The first part of the answer is to stop dealing with the issue as a race issue.

It Is Not a Race Issue At All

In this paper, the only time I have referred to race is when discussion of the Aboriginal Land Rights Act demanded it, as it is a piece of legislation that assumes race is central in its very title. Indeed the High Court's approach to title is, in my opinion, a far better approach because race is not central to the decision in Mabo. What is central in the Mabo case was the transfer of land into a person's/group's possession by demonstrating that they did some something with the land which demonstrated a continuing usufructuary interest in or ceremonial connection to that land. I accept that, as a tool, the Court did use the term 'Native Title' but what it was actually doing was recognising prior ownership. Prior ownership does not have as its central theme a person's race.

Certainly, the experience in Central Australia is that an Arrente person will see themselves as an Arrente person before they see themselves as Aboriginal. Would a person from France consider themselves to be French or white in the first instance? (Not that all French nationals are white either). I believe they would consider their nationality before their race. It is no different in Central Australia. Therefore the race-based approach is simply wrong. Race only tends to muddy the waters of the issue and actually gets in the way of outcomes.

Even if people do see themselves as belonging to a particular racial group, how does it fix the problems that they face? It doesn't. The issue is simply clouded by race and hysteria is invited to reign. The approach to solving many of these issues will be a management-based approach.

If the issue is seen as a management-based issue, then there is a solution at hand. The information pamphlets that are still put out by the Central Land Council refer to 'Caring for Country'. I don't doubt the importance of this, but what I am aware of is that there is an important omission from this approach and that is that country should care for people. After all, this is what Vincent Lingiari had in mind when he wanted his own cattle station. Considering the level of services that are currently provided in the bush, then the cash that people get in their hands is largely disposable (other than the cash which is spent on food).

What can be done to alter the outcomes for people living on land trusts in remote communities? The Reeve's Review in 1998 recommended structural changes to the Act. This received such a hostile reaction from the executive arm of the Land Councils, and later the Land Councils themselves, that they were able to convince the Federal Government to hold a parliamentary inquiry into the review. The inquiry was overwhelmed by evidence from people saying that the changes were too profound and that the status quo had to be maintained. Support and transport were provided for those people who were going to speak in support of the Land Council's position.

I had the experience of sitting down with several traditional owners over several days. They agreed with some aspects of Reeve's findings and disagreed with others. They certainly were not moved to burn the review in front of the national media in protest, and I believe that they were calm about its contents because they saw it for what it was: an attempt to improve the Act. I have spoken to several traditional owners who were angry about the Reeve's review only to discover that they were negative because of what they had been told rather than what was actually in the review. The anger that was generated seemed to be generated deliberately by the land council bureaucracies to protect the status quo. The status quo is failing and failing badly.

Nevertheless, even with little or no legislative change, the approach to the land trusts could dramatically alter how they perform. I must say that the Land Councils have taken some tentative steps in these directions but those steps, although positive, still have a social outcome as their centrepiece and they are too slow to help. There needs to be a better sort of response, and there is.

In a word, 'performance-based management' (three words actually). Up until now the answer has been to throw money at the problem and hope it goes away. All you end up with when that course is taken is that you have a better-funded problem. The approach should incorporate goals. Bear in mind that there is too much available cash in remote communities at the moment and that there is not enough work. Every basic need is catered for by the government, other than food. So why do people on full welfare still seem to live in poverty? Because the money goes to other disposable products. The liquor problems of Alice Springs pay partial testimony to this.

It is my suggestion that the Central Land Council should be given a schedule over a period of 10 years outlining the withdrawal of cash welfare payments from remote communities. The Council must then be instructed that that their performance will be measured by their ability to make up for that shortfall by creating actual wealth from the land trusts. We would soon see an altogether different approach! This would mean that the Director and Executive arm of the Land Council would need to take a commercial approach.

It would not be long before people would see income being generated from the land. Such income would be culturally appropriate and would protect all that was sacred, as it would be the landowners themselves taking the appropriate decisions. The pressures they would feel would be the same pressures that affect people in society as a whole, and if the income from the land was allowed to create jobs, then remote communities would soon see themselves on a par with the greater community. Issues of race, I submit, would soon become minor issues.

I am a supporter of land rights for all people who own land and I am a supporter of self-determination. Both of these concepts lie at the heart of my personal philosophies and they should apply to all. The issue that is all too often ignored is what does land rights actually mean? If you look at the way it's been done in the NT, then control of the land had only been settled on racial lines with no recognition of any other factors. One old man said to me recently that the only thing that had changed since the 1960s was the colour of the faces of the people telling him what to do.

It must be accepted as self evident that there is no such thing as self-determination if it is not self-funded.

Without economic self-determination the rest is just romance. I look forward to the day when all people in the Territory make a living from their own efforts and the agreements that they make with others. It could easily be achieved if we had the courage actually to trust the abilities of the landowners themselves.

It rests in the hands of the Federal Minister for Aboriginal Affairs to effect these changes. Traditionally the Ministers in these situations have been loath to take these steps because of the electoral damage that would be inflicted in southern electorates. The bureaucracies of the Land Councils have now run out of control. Like latter-day Sir Humphrey Applebys, the orientation has become self-preservation rather than self-determination. Until there is a Federal Government willing to take the hard decisions for legislation under their control, there will be no changes to the desperate circumstances of traditional people in the remote NT. Some traditional owners have had applications to establish their own Land Councils before the Federal Minister for years. These wishes have consistently been ignored.

The ugly part is that there are traditional people in remote parts of the NT who have pastoral leases in their names. Through the courts they have been resisting the attempts by Land Councils to turn their leases into land trusts. The money for the legal costs have largely been met by the NT. With a change of government in the NT, the funds for these fights will dry up and those elders who have resisted absorption into the Land Council structure for self-determination's sake will be without help. It is just a little curious that the Land Rights Act is being used to wrest control of land from certain Traditional Owners. The justification is that more Traditional Owners will get their say under the Land Rights Act. That may be true but it does not reflect traditional ownership in the traditional sense, and it defies private ownership in any sense.

Collective ownership has failed the owners. It is time to change the management approaches as well as the Act. Land Councils should continue to play an important role in the development of traditional lands but they should serve the interests of Traditional Owners. The land should continue to provide for people the way it has always provided for people but this can only be achieved if it honours the traditional ways of the people and recognises the private ownership of land in the traditional sense.