Workshop 2000: Aboriginal Policy: Failure, Reappraisal and Reform

The Future of Land Rights

John Reeves, QC

Introduction

In March this year The Australian newspaper published the results of a Newspoll on the attitude of Australians towards the declaration for reconciliation. In commenting on the Newspoll results, Mr Paul Kelly, the Editor of The Australian had this to say:

There is a contradictory attitude towards Government assistance to Aborigines---the community knows it is necessary yet sees that it has failed in the past. The survey shows how to resolve the disconnection between past and present. As the Council (for reconciliation) knows, the answer is to shift the focus from Government welfare to economic independence. There is great support for this strategy with 77% for and 19% against.

In my view, that shift of focus from Government welfare to economic independence identified by Mr Kelly is at the heart of the future of the Aboriginal Land Rights (Northern Territory) Act ('the Land Rights Act'), other similar legislation and, indeed, the future of Aboriginal Australians in general.

In this paper I propose to examine a link between that shift of focus from welfare to economic independence and the financial benefits that presently flow to Aboriginal Territorians from the Land Rights Act. In the process, I intend to consider the wider implications for Aboriginal Australians in relation to the benefits that are likely to flow to all Aboriginal Australians under the Native Title Act.

The Financial Benefits that Flow from the Land Rights Act

The financial benefits that flow to Aboriginal Territorians under the Land Rights Act are presently about $30,000,000 to $40,000,000 a year. That is not a large figure by comparison, for example, to the annual profits of Australia's largest banks. However, it is a significant figure when applied to the 45,000 (approximately) Territorians who are of Aboriginal descent.

In my report on the Land Rights Act, I estimated that the total of the financial benefits that have flowed from the Land Rights Act in the first 20 years of its operation (i.e,. to 30 June 1998) was approximately $500,000,000. Included in that sum are the monies paid into the NT Aboriginal Benefits Reserve from the Commonwealth consolidated revenue, the mining royalty monies received as a result of agreements made to mine on Aboriginal land in the Northern Territory and the share of National Park entry fees paid to Aboriginal people in the Northern Territory. It also includes sources of monies that do not come under the Land Rights Act supervisory structure, in particular the monies received from the investment of some of these primary sources of income.

How the Monies Have been Used

Up until 30 June 1997 the Land Councils have received more than $200,000,000 of that sum for administration costs. During the same period, almost $70,000,000 was distributed as Aboriginal benefits reserve grants to Aboriginal bodies in the Northern Territory. Most of the balance was distributed through the Land Councils to various Aboriginal royalty associations and other Aboriginal bodies.

Whilst it was very difficult for me to obtain reliable and complete information from the various Aboriginal bodies concerned as to how this balance was spent, I was able to make the following conclusions in my report:

It would be misleading to claim that the whole of the balance has been expended on short term consumption. However, given the proportion of the Royalty Association's funds that they acknowledge have been distributed in individual payments, it is reasonably safe to conclude that a large portion of these monies have been so expended. A proportion has been invested and a proportion may have gone to beneficial programmes. The information provided does not show that these monies have been targeted to produce lasting benefits to Aboriginal people. In short the requirements for Royalty Associations to account for expenditures are wholly inadequate for the purpose of revealing the ultimate purposes to which these monies have been put.

The proportion of these monies that was expended on short-term consumption was in reality a top up to the welfare payments paid to individuals through the Social Security system. Later in my report I outlined the problems that this expenditure on short-term consumption has caused:

As Martin showed, the primary and overwhelming focus on Aboriginal society is on relatedness and its implications, not on personal economic advancement, attractive though that would be to most Aborigines. A process of cash payments to individuals may not lead to the increased saving and investment on which personal (and collected) economic advancement, and growing economic self reliance are based. Rather, social pressures within Aboriginal society are such that personal gains in cash (or goods for that matter) may well be largely expended in ... consumption, either by their immediate recipient or by relatives of one sort or another, rather than saved and invested for longer run gain.

In short, most of the approximately $500,000,000 that flowed to Aboriginal Territorians during the first twenty years of the Land Rights Act was expended in Land Council administration costs and short-term consumption by individual Aborigines and very little of it seems to have been applied to improving the prospects for future generations of Aboriginal Territorians.

The Consequences for the Next Generation

The land granted to Aboriginal Territorians under the Land Rights Act is inalienable---it cannot be sold. It is held by land trusts for the benefit of all Aboriginal people and, in particular, all future generations of Aboriginal people.

However, the financial benefits flowing from the Land Rights Act are not inalienable and, unlike land, they are limited by the life of the mines or other ventures upon which the income flow depends. So while a system of land trusts under the Land Rights Act will ensure that their land heritage is passed on to the future generations of Aboriginal Territorians, there is no system under the Land Rights Act to ensure that the financial benefits of land rights will be similarly passed on to future generations of Aboriginal Territorians.

To the contrary, if the present approach to the expenditure of the financial benefits of land rights applies in the future, the balance of the money due to Aboriginal Territorians will be spent on short-term consumption and land council administration costs by this generation of Aboriginal Territorians and there will be no long-term benefit passed on to future generations of Aboriginal Territorians. So while future generations of Aboriginal Territorians will have their land heritage, the financial part of their heritage will be frittered away by the current generation. It is in part this prospect that prompted me to give my report the title 'Building on Land Rights for the Next Generation'.

Broader and More Substantial Implications

If this were to be the case in the Northern Territory, that would be bad enough. But I suggest that a similar problem is likely to arise nationally under the Native Title Act. At present the benefits that flow to native title holders under the Native Title Act include monies paid under the right to negotiate regime, monies paid by way of compensation to native title holders for the extinguishment of their native title rights and monies paid under indigenous land use agreements.

While native title rights are inalienable, in the same way as the land under the Land Rights Act, the financial benefits flowing from the Native Title Act are not. There is also a further component present under the Native Title Act that is not present under the Land Rights Act. That is, the compensation payable by Governments in particular for the extinguishment of native title rights. The quantum of this compensation may not be determined for some years hence while the legal parameters for native title are set by the Courts. Eventually, it is expected that native title holders will show that they held native title rights that were extinguished by Government action and are entitled to substantial sums of compensation for that extinguishment.

The question will then arise as to whether the current generation of Aborigines is able to use these compensation monies to spend on short-term consumption if they wish, or whether they should be required to apply in a way which ensures that it is available for future generations of Aboriginal Australians.

In my report on the Review of the Land Rights Act, I set out what I believe the answer is for the Northern Territory:

It follows that funds made available for the social and economic advancement of Aboriginal Territorians should be applied in ways that do not involve personal payments of cash, but rather by providing more education and training for young people, improved housing and health, better community facilities and infrastructure, and so on. This requires a central Aboriginal body to develop effective programmes for the social and economic advancement of Aboriginal Territorians that can be delivered by regional Aboriginal bodies in a framework of strictly audited expenditures and outcomes involving both the central and regional bodies. Similarly, a programme for accumulating Aboriginal savings in order to provide funds in the future for Aboriginal social and economic advancement should be undertaken on behalf of Aboriginal Territorians by a central body using expert advice.

In my view, the same sorts of general measures are likely to be required to ensure that the financial benefits that flow from the Native Title Act are applied not only for the current generation of Aboriginal people but also for future generations.

It is not my purpose in this paper to provide you with a detailed blueprint for the future of the Land Rights Act. However, I will endeavour to outline the essential elements of the approach required to ensure that the financial benefits flowing from the Land Rights Act are applied for current and future generations of Aboriginal Territorians.

As I have stated in my report the lynch pin is education and training. If the financial benefits flowing from the Land Rights Act and Native Title Act are applied to improve the knowledge and skill of Aboriginal Australians and not spent on short-term consumption, there is a much better chance that future generations of Aboriginal Australians will benefit from these money flows. In this way, it will be possible to ensure that Aboriginal children gain knowledge and skills necessary to gain jobs or to advance their communities or to improve their health and living conditions. The link between education and the future for Aboriginal people is graphically outlined in a recent review of indigenous education in the Northern Territory conducted by Mr Bob Collins entitled 'Learning Lessons'. Mr Collins observed in his report:

The stark reality is that many indigenous students are leaving the school system with the English literacy and numeracy ability of a six to seven year old mainstream child. With such inadequate skills in literacy and numeracy, indigenous people, while able to engage effectively in their own worlds are limited in their engagement with the world outside. They are almost unemployable outside their own community and even there, are largely employed in unskilled jobs and are reliant on others from outside their community for important aspects of their lives. Where, as is often the case, this is the norm across a whole community, aspirations for real 'self determination' or 'self empowerment' for many indigenous people ring very hollow indeed.

A little later in his report Mr Collins makes this telling observation about the link between education and employment:

It is found that, most potential employees from communities could not read occupational health and safety documents, or even signs around the mine sites. They cannot fill in the application forms, write their date of birth or tally numbers as is required for many jobs.

With many communities in the condition described by Mr Collins, it is obvious that Aboriginal communities and organisations will need a great deal of support and assistance from the broader community, in particular from Governments, in achieving the shift from welfare dependency to economic independence. It is for that reason that I suggest that there needs to be a real partnership developed between Aboriginal people and the various Governments involved. From the Governments' side it will require them to remove the politics from the issue and to recognise that Government policies are at least partly to blame for the current situation. On the Aboriginal side of the partnership there needs to be an acceptance that Aboriginal people themselves are responsible for their own futures and thus that Aboriginal people need to stop blaming Governments and others for their problems and start taking responsibility for their own futures. As Mr Collins points out in his report, 'Learning Lessons', this poor attendance at school for whatever reason remains the significant direct cause of poor learning.

Conclusion

• The Land Rights Act is in a unique position. Unlike the Native Title Act, the land-claiming process is all but over and the time has come to look to the future of the Land Rights Act. In my view the future of the Land Rights Act and indeed Aboriginal affairs generally in Australia is to achieve the shift from Government welfare to economic independence as quickly as possible.
• Just as the Land Rights Act led the way in Australia for land rights, it is now in a unique position to do likewise in relation to the use of the financial benefits that flow from land rights. If the Land Rights Act can be used to achieve that in the Northern Territory, it will serve as a good model for the application of the financial benefits under the Native Title Act in the future.
• The crucial thing is to ensure that future generations of Aboriginal people have their complete heritage ensured by spending the financial benefits from land rights on acquiring knowledge and skills through education and training for current and future generations. It is only through this process that there can be any real hope of a shift from Government welfare to independent independence.