Beyond Communal and Individual Ownership

Indigenous Land Reform in Australia

Leon Terrill

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781317525066
• Edition: 1
• Topic: Diritto
• Subtopic: Diritto ambientale

Over the last decade, Australian governments have introduced a series of land reforms in communities on Indigenous land. This book is the first in-depth study of these significant and far reaching reforms. It explains how the reforms came about, what they do and their consequences for Indigenous landowners and community residents. It also revisits the rationale for their introduction and discusses the significant gap between public debate about the reforms and their actual impact.

Drawing on international research, the book describes how it is necessary to move beyond the concepts of communal and individual ownership in order to understand the true significance of the reforms. The book's fresh perspective on land reform and careful assessment of key land reform theories will be of interest to scholars of indigenous land rights, land law, indigenous studies and aboriginal culture not only in Australia but also in any other country with an interest in indigenous land rights.

1 Introduction

From land rights to land reform

We will legislate to give aborigines land rights – not just because their case is beyond argument, but because all of us as Australians are diminished while the aborigines are denied their rightful place in this nation.

Gough Whitlam, 1972¹

In the Northern Territory 45 percent of land is Aboriginal land [however] being land rich but dirt poor is not good enough. There is no romance in communal poverty. It crushes individual motivation and condemns all to passive acceptance of more of the same. Something has to change and it will.

Amanda Vanstone, 2005²

1.1 The shifting consensus

From land rights to land reform

Behind the reforms that this book describes is the story of two shifts in the Australian political consensus with respect to Indigenous people and their rights to land. The first was the shift that led to the belated introduction of land rights, through schemes such as the iconic Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). One of the remarkable things about that Act is that it was enacted with the support of both major political parties. This would not have been possible just a few years earlier. On Australia Day 1972, Prime Minister William McMahon announced that his conservative Liberal–Country Party had approved a plan to make it easier for Aboriginal people to acquire leases over reserve land but opposed any transfer of ownership.³ This was an improvement on existing practice but fell short of what a growing number of people thought necessary. The Australian newspaper, for example, described the measures outlined by McMahon as a ‘set of fringe proposals’ and lamented the fact that Australia could be pointed to ‘as the only country which offers no land rights to its native people’.⁴

It was the Opposition Labor Party under the leadership of Gough Whitlam that first promised a more comprehensive land rights scheme. Whitlam’s stated reason for doing so, as set out in the quotation above, reflected a growing desire among non-Aboriginal Australians to right a historical wrong. Elections held in December 1972 saw the Labor Party form government, and one of Whitlam’s first acts as prime minister was to appoint Edward Woodward to conduct a royal commission into the recognition of Aboriginal land rights in the Northern Territory.⁵ In the course of reporting, Woodward took the opportunity to set down what he understood to be ‘the aims underlying such recognition’. First and foremost, he saw it as ‘the doing of a simple justice to a people who have been deprived of their land without their consent and without compensation’.⁶

In late 1975, Whitlam was controversially dismissed by the Governor-General and in the ensuing elections his party were voted out of office. It was one of the most acrimonious periods in Australian political history. Despite this, the new conservative prime minister, Malcolm Fraser, agreed to support legislation to enable Aboriginal land rights in the Northern Territory. The Fraser Government made some changes to the model that the Whitlam Government had developed but they also left a great deal more intact. The parties then voted together to pass the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the ALRA),⁷ reflecting a shift in the political consensus towards a shared belief that the grant of Aboriginal land rights was the ‘doing of a simple justice’.

Of course, this shift was neither universal nor complete. Aboriginal land rights, and later native title, remained contentious. In the ensuing years very different approaches were taken to weighing up the interests of Indigenous and non-Indigenous Australians with respect to land, resulting in the patchwork of schemes that exist across the country today. The key point of tension was the extent of land rights, the amount required to do justice. For example, in 1997, Prime Minister John Howard argued that a recent High Court decision on native title had ‘pushed the pendulum too far in the Aboriginal direction’.⁸ Within the framework of the new consensus, contestation about the proper ambit of land rights was ongoing.

In 2004, a new and very different type of debate about Aboriginal land rights emerged. This time the terms of debate were set by the conservative Liberal–National Coalition. This was a debate about the way Aboriginal land was owned. By then, the ALRA had resulted in around 45 per cent of the Northern Territory becoming Aboriginal land. It was argued that ownership of that land had not delivered sufficient economic benefits to Aboriginal people because it was owned communally. Stating that ‘being land rich but dirt poor is not good enough’, the Minister for Indigenous Affairs, Amanda Vanstone, directed her department to develop reforms that would enable Aboriginal people to ‘draw economic benefits from their land’.⁹ Her successor as minister, Mal Brough, was even more emphatic about the need for reform. He argued that together with ‘sit down money’, the land rights legislation introduced by the Fraser Government had done ‘more to harm indigenous culture … than any two other legislative instruments ever put into the Parliament’.¹⁰

When this debate first emerged, the Opposition Labor Party disagreed with the Coalition’s arguments and opposed reform.¹¹ This began to shift during 2007, and when Labor took office in November of that year they agreed to retain all of the reforms that the Coalition had introduced. As Fraser had done in 1976, the Labor Party made some changes but did not alter the fundamentals. The symmetry is striking. Three decades after the introduction of land rights there had once again been a shift in the political consensus, this time towards a shared belief that Indigenous land ownership in Australia was in need of reform.¹²

About this book

This book considers the reforms that arose out of this second shift in the political consensus. It describes how the reforms came about, what they do, what they mean for Indigenous communities and how they compare to other options. It is also the first book-length monograph on the Australian reforms.¹³ While land tenure reform is a new development in Australia, it has a longer history in many other countries and there is by now a well-developed body of international literature about reform and its consequences. In some respects, this book can be seen as an attempt to apply the lessons from that ‘international literature’ to Australia and the Australian reforms. Chapter 2, which deals with land reform theory and terminology, is drawn almost exclusively from that international literature.

However, the book aims to do more than this. It also clarifies some of the issues that are particular to the reform of Indigenous land in a country such as Australia. The Australian reforms raise different issues to, for example, titling programmes for urban squatters in Peru or even customary land reform in the Pacific. The book describes how Australia fits in and exactly how it differs. It also draws out the nature of certain issues arising out of the Australian reforms that are not addressed in the international literature. One of those issues is the relationship between land reform and welfare reform, which has impacted significantly on the way that land reform has been debated and implemented in this country.

There are three main arguments that unite the chapters of this book. The first is that the way in which Indigenous land reform has been debated and discussed in Australia has been flawed. In particular, the frequent use of a communal–individual ownership dualism has resulted in the wrong issues being debated and pertinent issues receiving too little attention. As the title of the book suggests, it is necessary to go beyond communal and individual ownership to properly understand Indigenous land reform in Australia, particularly as it relates to residential communities. This book moves beyond that binary approach by separating out property systems (state property, communal property, private property, open access) from property features or characteristics (such as tenure security, alienability, individual and collective ownership). This provides a more useful framework for talking about the array of tenure possibilities, which better captures both the nature of earlier arrangements and the variety of potential reform outcomes.

The second main argument is that there are significant problems with the way in which Australian governments have implemented land tenure reforms over the last decade. This is largely because those reforms were introduced without a clear or coherent understanding of what it was they should do. This has resulted in mistakes being made and has meant that options have been foreclosed without due regard to the consequences of doing so. The reforms have also been expensive and intrusive and have harmed the relationship between governments and Indigenous communities. The third main argument is that alternative approaches to reform are available, but that in order to determine which approach should be taken it is first necessary to make a clear and transparent judgement about three ‘cardinal issues’: the nature of the market conditions in which the reforms will operate, the desired model of governance to be implemented and the approach being taken to the question of what it is that can make the provision of welfare harmful. These are clearly very complex matters, not easily decided upon. However, as the book makes clear, any land reform model will implement a particular approach to them. It is better to be clear about the decisions that are being made than to allow them to remain unexamined.

The book also has a number of subsidiary objectives. It clarifies the nature of land-use arrangements in residential communities on Indigenous land in Australia and the role of traditional law in those arrangements. In doing so, it explains why it is so misleading to simply describe those communities as places of communal ownership. It provides some basic tools for understanding the relationship between land tenure arrangements and economic development. It sets out clear and workable definitions for key terminology and concepts, such as communal ownership, tenure security and formalisation. It introduces new terminology to better clarify the nature of the recent Australia reforms, such as ‘exogenous formalisation’. And it considers what the recent reforms to Indigenous land tenure reflect about the current direction of Indigenous policy in Australia.

1.2 Background to the reforms

The debate

The public debate that led to the introduction of Indigenous land tenure reform in Australia began in late 2004. As the Central Land Council (one of Australia’s largest Aboriginal land councils) noted at the time, the debate centred on ‘the merits of individual ownership versus communal ownership of land’, particularly with respect to enabling home ownership and economic development in Aboriginal communities.¹⁴ It was, however, about more than just home ownership and economic development. From the beginning, the debate about land reform was also a debate about culture. The introduction of ‘individual ownership’ was presented as a means of enabling a shift away from a separate or traditional culture, towards a more economically integrated or ‘entrepreneurial culture’.¹⁵ Debate about land reform was also understood as forming part of a broader dialogue about the direction of Indigenous policy. The Australian Government said that it was changing the emphasis from engaging with ‘the collective Aboriginal community’ to engaging directly with ‘individuals and families’.¹⁶

This debate – particularly in the period between 2004 and 2007 – was widespread, intense, significant, divisive and deeply flawed. Describing the pre-existing arrangements in Aboriginal communities as ‘communal ownership’ is misleading to the point of confusion. Presenting the outcome of reforms as the introduction of ‘individual ownership’ or ‘private property’ is in most cases simply wrong. The use of these terms – which were usually left undefined – resulted in several distinct issues being conflated and, to an extent that is in hindsight remarkable, meant that the likely impact of reform was misunderstood. This book describes how one of the more common outcomes of reform has been an increase in government control over land use, the very opposite of what terms such as ‘individual ownership’ suggest.

This was also a debate with a very concrete outcome. It led to a bipartisan consensus that there is a pressing need for widespread reform to land tenure arrangements in Indigenous communities. To be clear, it is not simply that concerns emerged about the nature of the earlier arrangements, the arrangements that governments and Indigenous residents had relied upon for decades. The shift was more significant. Those earlier arrangements have come to be characterised as fundamentally flawed, and governments – particularly the Australian Government – have spent tens of millions of dollars on permanently overhauling them.

Indigenous land ownership in Australia

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