Bennelong Society Conference 2005:
Remote Aboriginal Communities: Where are the Jobs?

An Aboriginal Perspective on the Land Debate

Wesley Aird

Land and the sense of community are extremely special for indigenous people. In recognition of this, indigenous people have special legislation governing certain pieces and types of land in terms of ownership, access and administration. These special pieces of legislation are accompanied by very special administrative arrangements at all levels of government.

This paper is not a state-by-state, blow-by-blow comparison of land management regimes. I shall leave that to the media and other commentators.[1] Instead this is an Aboriginal perspective on the land debate.

Three key concepts

For most Indigenous Australians the strong association with their traditional land and waters has given rise to, what I suggest, are common modern day themes and experiences. I believe they can be distilled to a couple of key concepts which, for the sake of simplicity, I summarise as administration, tenure and rights. Each term is intended in a broad and inclusive sense. Each has evolved over time and each can be attributed to broad-ranging social and political forces. The origins of these forces have been both indigenous and non-indigenous.

Consequences

The consequences of the Australian model are well known and not something as a nation we ought to be particularly proud of.

At the communal level, we have seen an era of 'big men' and gate-keepers wielding false power and taxpayers money. This is perfectly human, and for millennia individuals have exploited weak systems. Under such circumstances incompetence and corruption are not peculiar to Indigenous Australia. We have seen systemic failure both in terms of structurally poor policy and also poor execution by both mainstream and indigenous administration.

At the individual level, it has been worse. The biggest casualties have been individual esteem, capacity and self-sufficiency. The poverty cycle has had no trouble taking in entire generations of indigenous Australians.

The new direction in administration

The first key concept is administration. Sadly for indigenous people the embodiment of the special relationship with land goes hand in hand with trusts, permits, DOGITs,[2] land councils and a couple of thousand organisations under the Aboriginal Councils and Association Act 1976.

The Australian government has put in place a new direction in administration for indigenous Australians. Community development, training and employment through local solutions funded in an arrangement of mutual obligation and shared responsibility. These are admirable outcomes anticipated by the new era of indigenous administration.

There is also the public discussion on possible legislative amendments to land title regimes.

Another crucial part, neither seen nor heard much to date, is the vital facilitation role each government must play in providing an enabling environment to help indigenous people bridge the bi-cultural divide, and to take advantage of opportunities in an era of new administrative regimes. This part has been missing from the debate lately, and yet, surely this is what shared responsibility and mutual obligation is all about.

While it is all well and good to tout the wonderful new era of administration there can be no doubt that governments at the operational level have a long way to go. I am not claiming to have done any sort of audit of service delivery myself. I am simply asserting that years of disadvantage require change that does not come overnight. Old paradigms need to be shifted and this needs to be reflected in what many government departments call 'customer service'.

Tenure

The second key concept is tenure. Indigenous people have two main ways to achieve secure occupation of a piece of real estate. Firstly, commercial terms such as lease and outright purchase. Secondly, various state and territory regimes for recognition of communal aspirations.

Mainstream tenure

In terms of mainstream tenure, I refer to ordinary land ownership, whether it be leasehold, freehold or any other sort of tenure whereby you say you own it; but what you actually mean is that you owe the bank a heck of a lot of money. Of course, in towns and cities all you need to own land is a deposit and the means to service your debt.

Title of this form imposes a rigour on the mortgagee. It has the potential to make someone look after their investment. If you want to own your own home you incur responsibilities, but all going well, you also create an economic base and inter-generational wealth.

While this might sound great, the starting position of disadvantage puts land and home ownership out of the reach of a disproportionately higher number of indigenous Australians.

Private ownership in a community setting

Recently there has been substantial debate over whether or not it is possible for private ownership of land by indigenous people. The commentariat have made much of whether or not there will be legislative change. Whilst debate is good and the studies and conjecture help, I fear the argument somewhat misses the point.

I would suggest that at present, strictly in terms of administration at least, there already exist possibilities for indigenous people living in a communal title setting to break the poverty cycle. But it takes a lot more than rules and regulations to get ahead in life.

As an example, much of Doomadgee in far north-west Queensland is problematic, yet I have visited houses that are well maintained and would not look out of place in a hundred other Queensland country towns. The town has individuals that work on the (relatively) nearby Century Mine. Others work in the town itself, some in their own business. There is scope to get ahead, even in a DOGIT community and even if not on a 'Katter lease'.[3]

In this Queensland example, it doesn't seem all that important whether or not the state amends legislation to enable private ownership in the community setting.

The New South Wales land rights model is the least restrictive. However, the Auditor-General and Independent Commission Against Corruption regularly investigate suspect land council dealings.[4]

The Northern Territory land access arrangements for the train line is a demonstration that private enterprise can achieve a long term lease on 'Aboriginal land'.

Each state and territory has its own arrangements. And in each case, land-based equity is just one of the aspects that influence the overall quality of life. Also, in most states there is at least a procedure for 'Aboriginal land' to be assigned by the collective to an individual. There are varying degrees of procedures, some are quite onerous.

But what if it were possible.

For a moment let us imagine that somehow all around the country various statutes have been changed to remove the impediments, either real or procedural, to private ownership in an Aboriginal community setting.

Firstly, the old-guard would go through the ritual invective that the fundamental tenets of an unsuspecting Aboriginal society were going to be whipped out from under their feet by dodgy real estate developers. Or that ill-informed community councils would lose their culturally-rich assets for short-term financial gain.

Of course, assets are most at risk when there is poor governance and weak checks and balances.

From a different view-point, there would be whole communities of indigenous people with the opportunity to own the great Aussie dream. However, to be blunt, most would have next to no chance of entering an agreement with a bank. At least not without the demonstrated means to service the debt and to maintain the asset.

Changes to legislation on land title and administration won't make much difference if the land is uneconomic nor if the local individuals don't have the where-with-all to make a go of it.

Amendments to legislation may well help to some extent, however, improvements can already be brought about by changes to policy, changes to service delivery and changes in staffing. For some strange reason these changes seem more difficult for government. And worse for the government spin doctors, it can be done without an increase in budget.

Perhaps achieving sustainable change hinges more on the local bureaucrats and the local economy than it does on the legislated system of land title.

On a personal note, I find the public discussion on land tenure amendments somewhat amusing; if that is possible under such grim circumstances.

As a member of the National Indigenous Council I have been involved in the discussion on land tenure. The focus has always been on the possible means to overcome poverty and through this conversation it emerged that land can provide an economic base. Changes to tenure have been a minor consideration.

By contrast the indigenous and academic old guard have been vocal in the struggle to keep alive the rights agenda, however, whilst staying quiet on the social indicators that remained so bad under the past era of administration.

Rights (for me that's native title)

The third key concept is rights, by which I refer to native title under the Commonwealth act and also the various other rights-based state and territory statutes. Depending on the location, these rights may deliver social recognition, statutory recognition and or compensation payments.

Native title has demonstrated it is not the solution to everything. Then again, native title was never intended as the solution to the many social ills afflicting indigenous Australians. However, there was great hope for those things attached to recognition of native title; for example procedural rights and recognition which in turn could lead into land-based agreements, and payments for access, and businesses.

Native title and the very south east corner of Queensland

I have been a native title applicant in and around the Gold Coast. I am a signatory to two Indigenous Land Use Agreements under the Native Title Act, and I am currently negotiating a third.

Our native title claim was withdrawn when the notorious, and thankfully no longer recognised, Queensland South Representative Body openly supported one single family to the detriment of hundreds of families. The then Representative Body's partisan support for this family was thanks for old ATSIC allegiances. In our area, we are still fighting the old alliances that ATSIC created and funded. A system that broken doesn't fix itself overnight.

We hope to re-lodge our claim within twelve months, and we expect tremendous opposition from the old-guard of grace and favour bureaucrats.

To overcome entrenched corruption we are using the Indigenous Land Use Agreement process to establish the nature of our group. This has never been in doubt to us. It is just that in recent years we have been procedurally invisible because our way of doing things does not accord with either the bureaucratic or black orthodoxy.

The great notion of native title has, in our experience been severely hampered by lower-rung bureaucrats in both mainstream and indigenous organisations. I have no doubt that our experiences have been replicated for thousands of other indigenous people around the country.

On a per-capita basis, our native title group would have to rank as one of the highest in terms of tertiary-qualifications, home-ownership and employment. I think it is reasonable to ask why are we involved in native title when surely people have got enough to get on with in their daily lives.

The main reasons are procedural recognition, to raise our profile in the esteem of the broader non-indigenous community and most importantly, to be a statutory part of the land management process.

At present our small corner of Queensland is seeing unprecedented growth. It seems there are new suburbs on a weekly basis. There is cultural heritage legislation which purports to look after indigenous people's rights and interests in this tide of development.

Native title for our group brings the prospect of recognition. And in Queensland recognition under the Native Title Act flows into recognition under the Aboriginal Cultural Heritage Act.

The Gold Coast was settled relatively soon after the colony of what is now modern day Brisbane. There is precious little 'claimable' land. However, some of the claimable land that exists on the Gold Coast is very well located indeed. I am given to believe the saying 'location, location, location' is thousands of years old.

The steps ahead

We hope to use our next Indigenous Land Use Agreement to support our native title claim. We do not think we will end up with a bundle of parcels that we can call our own. Maybe, the native title claim will deliver not much other than procedural recognition. Perhaps strangely, this is all some of us are after.

In an urban setting, at least for us, native title is not really about getting hold of a parcel of land. The point of it in our urban setting is to use native title as a means to identity; to negotiate with the government and with developers over the management of development. Not to stop the development, just simply to have our concerns listened to. Also, we will not be competing against non-indigenous people to work on our own cultural heritage.

The native title process has its merits; but it won't leverage whole-sale improvements in people's lives in our community.

Of note is that the problem for our community in negotiating an outcome in terms of native title is not demonstrating our connection to country, nor is it paying the legal fees. Instead, our big problem is overcoming incompetence and corruption. Both indigenous and bureaucratic. We are regularly beaten by the administration and our relatives with ulterior motives.

Impediments and opportunities

There are impediments

Regardless of the geographic setting, for many indigenous people there are substantial impediments to getting ahead in life.

For many, it is their location that is the handbrake. For others it is their social environment. The latter might be the strong pull exerted by tradition and custom. It might be an honest inability to operate in the dominant Australian society. It might be as simple as not being able manage with the language of bureaucracy.

There are many indigenous people clearly living bi-cultural existences. It simply won't work to just change a piece of legislation and then expect that person to overcome a life of disadvantage.

And there are opportunities

For many indigenous people the status quo in rural and remote Australia is bleak. Again in general terms, the status quo amongst urban indigenous Australians is far better. There is greater diversity on the scale from broken to buoyant.

For many indigenous communities, either remote or urban, there are prospects to break the poverty cycle. The well known examples are tourism, art, and participation in industry, which for remote communities is most often mining.[5] But indigenous people anywhere can be involved in tourism and art and they can also participate in industry.

However, the social and geographic circumstances in which many indigenous people live greatly affect their chances of achieving substantive improvements in their quality of life.

If communities are bureaucratically savvy they can work with Indigenous Business Australia or the Indigenous Land Corporation. However, the questionable results of the IBA and the ILC give very clear indications that it is not a matter of how many hectares of land you acquire, nor how many millions that you invest that really matter. It is instead the manner in which the money is spent and the outcomes in terms of human involvement.

In Australia, indigenous affairs is often categorised by the millions. However, in many other parts of the world it is the hundreds that count. In a recent newspaper article[6] the big four banks had been canvassed regarding their capacity to cater for the particular financial needs of indigenous people.

One bank is investigating micro-finance facilities. All four have initiatives to improve financial inclusion and have extensive community support programmes.[7] It seems most aim to that put something back into the community in terms of training for household budgeting and community-based accounting. This might sound great, but it will be that much more difficult if there isn't a bank in your area. Again, the obstacle is remoteness.

There are prospects to break the poverty cycle. The challenge is to ensure that every time an individual or collective chooses to get ahead, there are processes and support in place to enable that person or that group to make a go of it.

Administration, tenure and rights

Land can be an economic base. However, the extent to which having land can alleviate poverty relies solely on either the commerciality of the land or the residents engagement in industry. A prospective businessperson will not get ahead unless they engage on a fee-paying basis with someone that values the land or what the land can produce or alternatively they sell their product or services at commercial rates.

Disadvantage and the poverty cycle can be broken by the use of land, but not just by having land. It is the package of the individuals' capacity and their interaction with the bureaucracy where things have in the past tended to go horribly wrong and where in future, great improvement is required.

The Australian government has over recent years consistently increased the budget for indigenous affairs. But the time has come to go further so that service deliverers provide an enabling environment for people to overcome disadvantage. In order to do this governments at all levels will need to look very carefully at the agencies and individuals that are delivering services.

In some instances, the old style systems will need to be dismantled so that it is not possible to just change the logo without improving the service. Service delivery agencies and policy makers must recognise the enormous chasm between the aspirations of many indigenous communities to overcome years of disadvantage and their capacity to do so.

But it is not just government. Indigenous communities must also move with the times. Communities must genuinely look at the terms on which they engage with society. Communities must in all seriousness question whether the old-style welfare days of self-administration and the rights agenda have delivered a worth-while result. They must also question whether it is reasonable to disengage from society and yet still expect to be maintained by the taxpayer.

These thoughts I have offered are neither from academia, nor bureaucracy. They are just an Aboriginal perspective on the land debate.

Notes

1. Land rights and development reform in remote Australia, Oxfam Australia, August 2005. And also A new deal for Aborigines and Torres Strait Islanders in Remote Communities, Helen Hughes and Jenness Warin, in Issue Analysis No 54, The Centre for Independent Studies, 1 March 2005.

2. Deeds of Grant In Trust lands are established under the Community Services (Aboriginal) Act 1984 (Qld).

3. In the late 1980s Queensland enacted legislation allowing perpetual leases on DOGIT land to provide for home ownership and economic development (known as Katter leases) Existing dilapidated houses were sold to leaseholders, who did no understand their maintenance responsibilities, resulting in further deterioration. Home owners are now being offered a new house on condition they sign their leases over to the community council.

4. Sydney Morning Herald Weekend Edition, 31 July---1 August 2004, pp 1,23, 30.

5. For example Enhancing Indigenous social sustainability through agreements with resource developers by David Martin, Jim Hondros and Ben Scambary, prepared as part of an Australian Research Council linkage project.

6. 'Micro steps on the path to indigenous wealth', Fiona Carruthers in the Australian Financial Review 8 July 2005, p26.

7. The ANZ reports on its performance in terms of 'Making a sustainable contribution to society' and it conducts 'MoneyMinded---a programme developed to help people with low financial literacy to build their money management skills. Westpac are active in community / industry relationships and also produce the Guide for Community Treasurers.