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Resilient Communities and Sustainable Prosperity – Northern Indigenous Development

Posted: Thu, July 23, 2015

NLC CEO, Joe Morrison, in Townsville

The following is the keynote address presented by NLC CEO Joe Morrison at the Developing Northern Australia Conference in Townsville this week:

I pay my respects to the Traditional Owners of this land on which we are gathered.

I thank the organisers for inviting me to the conference for I have lost count of how many of these I have been to, effectively advocating for Indigenous inclusion.

It wasn’t one of those seminal moments in life, but I do remember where I was when the Federal Government released its White Paper on Developing Northern Australia.

It was mid-June and I was at Barunga, the small Aboriginal community west of Katherine  --  the place where Prime Minister Bob Hawke in 1988 famously promised there’d be a treaty with the Aboriginal peoples of this land.

I was there in June because the Full Council of the Northern Land Council, which comprises 83 members, had chosen to hold its bi-annual meeting -- because this year, 2015, was the 30th anniversary of the Barunga cultural festival.

I must say that promises over decades of riches to be derived from developing the north have been about as ephemeral and elusive as Bob Hawke’s promise of a treaty.

Ever since the north was settled – by conquest, not by consent, I remind you  --  there have been a cascade of reports which have purported to map various El Dorados, just waiting to be discovered and developed by men of vision.

In recent times, there’s been talk that those visions have been blocked by the differing systems of land tenure which prevail across the north.

Let’s be blunt here: land tenure is the code used by ideologists who want to undo the gains which Indigenous people have made through enactment of the Northern Territory Land Rights Act, and the Native Title Act as it applies right across the north -- indeed, across the whole of Australia.

It is not just a form of land tenure, but the recognition of our ancient title and relationship to the land and waters of Australia unjustly taken from us without our consent.

I want to talk more about Native Title, and what a fragile, hollow title it is, later in this address.

At this point, it’s worth recording that Aboriginal freehold title covers approximately half the Northern Territory land mass and 85 per cent of the coastline thanks to the Land Rights Act, and Native Title is held or is under claim over much of the rest.

So, Aboriginal people in the Territory have a vital stake in the debate about northern development  --  not that you’d get an appreciation of that from the agenda of this conference and many discussions about the north.

The Northern Land Council, of which I am the CEO, is a Commonwealth statutory authority, created when the Northern Territory Land Rights Act was enacted in 1976, to represent Aboriginal Traditional Owners in all their interests in land, waters and sea.

Because of all this persistent talk about land tenure being some sort of impediment to northern development, there was some trepidation across the NLC’s membership about the arrival of the White Paper.   

The Federal and Northern Territory governments knew well enough about our reservations.  We’re ever on alert to intrusions by governments that want to tinker with our land titles, all in the cause of economic development, of course.

The NLC invited Luke Bowen, general manager of the Northern Australian Development Office of the NT to address the Full Council. Luke, you will remember, spoke to this conference yesterday morning.

We ended up putting out a press release that day which cautiously welcomed the White Paper – mainly because it did not attack the basic integrity of our treasured Land Rights Act.

At that time we also welcomed the White Paper’s commitment of money to bring Native Title claims to finality; although I now know that that was a sleight of hand commitment – the money was there anyway with no new funding.

But there was a real new commitment to fund local Native Title corporations, and we also welcome that.

We also said that a proposal in the White Paper to simplify Native Title processes must not be a guise for diminishing communal decision-making and the rights of Native Title holders, such as they are.

But our fundamental concerns remain that governments continue to harbour an agenda to diminish the rights that have been so hard-fought for. 

Our antennae are ever on high alert, because the enactments of the Northern Territory Land Rights Act in 1976 and of the Native Title Act in 1993 were the high points for both pieces of landmark legislation. 

Ever since both those dates of enactment, governments have been chipping away at both acts of the Federal Parliament, most typically in the name of development.

The need for economic development on Aboriginal lands has become a refrain.

That was the justification made late last year by the Territory’s Chief Minister, Adam Giles,  when he convinced COAG to urgently investigate Indigenous land administration and land use.

Chief Minister Giles managed to convince the Prime Minister last October that COAG should conduct this investigation, which would – and I quote from the COAG communique: “Enable traditional owners to readily attract private sector investment and finance to develop their own land with new industries and businesses to provide jobs and economic advancement for Indigenous people.”

In itself that’s a laudable object. But the exercise was sprung on us without forewarning or consultation. It put the frighteners up Aboriginal people across the Territory.

Before the last election, the Indigenous Affairs Minister Nigel Scullion had promised there’d be no review of the Northern Territory Aboriginal Land Rights Act. But we now know that is part of the agenda of this COAG review.

Senator Scullion has since said there’ll be no amendments to the Act without the consent of the Northern Territory’s four Land Councils, but Aboriginal Traditional Owners are taking no comfort from that. As I said, we’re eternally vigilant.

And what about the progress of this so-called “urgent” investigation?

It was meant to report to the last COAG meeting in April. Nothing eventuated, but no doubt there are bevies of highly paid public servants who’ve been urgently beavering away out there, and who knows what they might report to COAG.

How much better the open and engaging process adopted by the Human Rights Commission, when it invited Indigenous leaders from across the country to a roundtable discussion in Broome a couple of months ago about how to advance our property rights, and derive real benefit from them, especially Native Title rights.

This was a heartening example of real engagement and consultation in the interests of Indigenous people. For two days we sat and talked with Social Justice Commissioner Mick Gooda and Human Rights Commissioner Tim Wilson.

And we were joined on the second day by their political boss, George Brandis – who, as Attorney General, has oversight of the Native Title Act.

With other Aboriginal leaders, I expressed concern at the limited outcomes from current processes for recognising and protecting Indigenous peoples’ rights to land and resources.

We were all concerned about the lack of genuine engagement by governments on issues that affect us, and we expressed disappointment, both in what the Native Title system has delivered in the past 20-plus years and in the way that successive amendments to the Native Title Act have whittled away our rights.

It’s worth highlighting in this forum the five points that we promulgated in a communique after this historic meeting.

On the question of fundibility and Native Title, we all wanted communities to be enabled, to build on their underlying communal title to create opportunities for economic development.

Secondly, we called for business development support and succession planning, to ensure that Aboriginal and Torres Strait Islander peoples have the governance and risk management skills and capacity to successfully engage in business and to manage their estates.

Thirdly, we emphasised the need to finance economic development within the Indigenous estate – developing financial products, such as bonds, to underwrite economic development through engaging the financial services sector and organisations including the Indigenous Land Corporation and Indigenous Business Australia.

Then the communiqué spoke about the need to rectify the existing and unfair processes for compensation for extinguishment of native title and to consider how addressing unfinished business could leverage economic development opportunities.

And lastly, we emphasised Indigenous peoples’ right to development – promoting opportunities for development on Indigenous land and identifying access to resources on the Indigenous estate.

All that was under the umbrella of a Human Rights Commission round table on property rights, and property rights are always fiercely upheld by the Conservatives.

Their champion is represented on the HRC by its newest Commissioner, Mr Tim Wilson, and here’s what he had to say after the Broome roundtable:

“We will represent the voices of Aboriginal and Torres Strait Islander peoples in Canberra and to the nation to advance respect for your property rights and economic development outcomes. We will represent what Aboriginal and Torres Strait Islander peoples achieve and to remove the obstacles that stop self-determination being realised.”

How refreshing to hear that! If only our political leaders were to be so minded.

The concern of the Human Rights Commission about the working of the Native Title Act, and about the loss of rights which follow when non-Indigenous rights can extinguish Native Title is not new, of course.

A decade ago, the Aboriginal and Torres Strait Islander Social Justice Commissioner noted this in his annual report to Parliament: “The economic effect of the legal test for extinguishment is to permit the expansion of non-Indigenous interests in land and erode the Indigenous land base.”

The High Court in 1998 formulated native title as a bundle of rights – not a title to land itself, but a bundle of rights that can each be extinguished.

That manifested in the landmark case, Western Australia v Ward, and that brings me to talk about Native Title and the continuing development of the Ord River irrigation scheme.

Ben Ward was the lead applicant in that High Court case against the WA government. 

It was launched in the Federal Court in 1994, on behalf of the Miriuwung and Gajerrong people, and it would wend through the courts for 13 years, vigorously fought all along the way by the Western Australian and Northern Territory governments.

By the way, as well as recognising the Native Title of the Miriuwung and Gajerrong people, the case also forced the NT Labor Government to agree in 2003 to joint management with Aboriginal people over many of the Territory’s national parks.

Legions of lawyers made fortunes out of the case. Aboriginal people did not.

In November 2006, signing off on the final settlement, Justice North of the Federal Court referred to “the enormous battle in the Australian legal system” endured by the Miriuwung and Gajerrong peoples.

Ben Ward is now aged 65 and I visited him only a couple of months ago at his outstation, Cockatoo Springs, close to the Northern Territory border in WA.

His country now lies under the waters of the great lake created by the original damming of the Ord River. No one asked his permission to make that lake.

Ben Ward is still campaigning – these days through his work as an artist at the Waringarri Arts centre in Kununurra.

Only last week, he was reflecting -- in an interview to be published soon in the NLC’s newspaper, Land Rights News  -- on what that enormous court battle had really gained for his people.

The success at court did lead in 2005 to the Ord Final Agreement with the WA Government.  It included a $57 million package in exchange for the voluntary surrender of the Native Title they’d fought so hard to win.

The range of benefits in the Agreement included land, and training and education for MG people. It also provided for six conservation parks covering more than 150,000 hectares.

But, reflecting on the deal, Ben Ward told Land Rights News last week, “It’s never delivered what people wanted. People still looking for work … they had so much training programs going, they trained so many Aboriginal people, and there are still no jobs. Why train these people, you know?”

He reflected, too, on the impact on his country of the Ord irrigation scheme.

Here are some verbatim quotes from his interview:

“When blackfella look at country, he look at country, he like to leave it as it is, protect it. That supplies our food and everything else.”

“Most of the Ord valley is all gone; most of our food system is gone. And what we got out of it? Nothing!”

“We have to sell our lands and that just to get a job.”

Those are the reflections of the man who more than 20 years ago was party to the first legal test of the Native Title Act, and it saddens me to relay his words.

Luke Bowen in his speech yesterday spoke of the failure commentary that has accompanied efforts to develop the north.

But in my view, that failure commentary cannot be dismissed when Aboriginal people are considered, because development has failed them considerably. 

I’m with Ben Ward:  from its inception, the proponents of the Ord River irrigation scheme have failed properly to consider its impact on the Aboriginal people of the East Kimberley, and its impact on their lands -- not that those impacts can be considered exclusively, one from the other.

In a study conducted in 2003 for the Western Australian government’s then Water and Rivers Commission, two anthropologists, Kim Barber and Hilary Rumley, had this to say:

“From the Traditional Owners’ perspective, non-Aboriginal people appear to treat the environment with reckless abandon.  Ord Stage 1 has transformed the TOs’ understanding of the potential of humans to alter the landscape.

“It is in this context that they have come to the view that in order to maintain their rights and interests, including the environment of the study area, they need to be assertive.”

It was with this view, those two anthropologists said, that the Ward Native Title claim was lodged.

Those two anthropologists reported that Ord Stage 1 had significant and continuing negative social impacts on the local Aboriginal people, and their dislocation had created long-standing problems and conflicts with non-Aboriginal people.

Right now the Northern Land Council is having to deal with Ord Stage 3, and that is causing grave conflicts among Aboriginal people themselves.

The White Paper on Northern Development speaks boldly about the potential of Stage 3 to, “Enhance both the profitability and economic resilience of the region.”

Stage 3 conceives a development of 14-and-a-half thousand hectares of irrigated farmland in the Northern Territory in the Knox Plain and Keep River areas, all of it subject to Native Title which the NT government wants to extinguish.

The White Paper says the development would leverage investments already made by governments and the private sector in Stage 2. 

The paper makes no reference to the generational and permanent social and cultural impacts on Aboriginal people -- although it does record concerns about potential salinity and flood risk.

In my opinion, the Northern Territory government has gone about achieving its plan with a particular strategy in mind.

It knows of clear opposition by Traditional Owners to Stage 3, because a delegation went to Darwin and told NT Government Ministers that in person.

It knows the Stage 3 area holds many important sacred sites and important dreaming tracks.

So it has decided to seek consent to extinguishment of Native Title over a small area it’s calling Stage 3A that might well divide Traditional Owners and cause permanent social and cultural harm.

If successful, the NT Government will then no doubt seek to achieve development over the whole area.

The NT government would, I am sure, say it’s merely being strategic, taking one step at a time. I say it’s just trying to soften up Traditional Owners, but in doing so, extending their angst on the way.

The Government’s first step has been to seek the extinguishment of 1800 hectares, plus a sizeable buffer zone to protect sacred sites, on the black soils of the Knox Plain.

The land is part of the Spirit Hills pastoral lease, held by the NT’s Land Corporation. 

That Land Corporation was a dodgy creation of an old Country Liberal Party government, set up to acquire Crown land and to put it beyond the reach of a claim under the Land Rights Act.

As I said, Stage 3A is just a small portion of what the NT Government has its eye on, and it’s said quite publicly that 3A is just a gateway to its plans for a much larger footprint.

As the Prescribed Body Corporate under the Native Title Act, it’s fallen to the Northern Land Council to consult with Aboriginal Traditional Owners about Stage 3A.

On the table there’s an offer from the government of money, a bit of land, and jobs to compensate for what would be the necessary extinguishment of Native Title over the 3A land. 

But I must say, without wanting to disclose the quantum of that offer, that in my personal opinion it doesn’t measure up.

And would acceptance of any better offer lead to any better outcome than the Miriuwung and Gajerrong people have wrung out of Stage 2?

Remember Ben Ward’s caution:  there’s been plenty of training, but where are the real jobs? 

And the offer of land as a slice of the action?

The Miriuwung and Gajerrong got land from their deal, too. But they had no financial capital to develop that land, and they’ve had to opt for the old third party option and have someone else do the development. 

The same scenario prevails for Stage 3A, and the larger Stage 3 enlargement.

Whatever the answers to those questions, the Northern Land Council represents the Traditional Owners of Stage 3A in good faith and will continue to do so.

At the end of the day, it will be the decision of the relevant Traditional Owners.  But, to others, like senior regional lawmen responsible for ceremony and sacred sites on that country, the prospect of development and extinguishment is causing immense grief.

It’s been harrowing for all. 

The prospect is real that Native Title will be extinguished.

But there remains strong opposition to that prospect. 

It might be one thing for Traditional Owners to contemplate extinguishment. But to others, like senior lawmen responsible for ceremony and sacred sites on that country, the prospect of development and extinguishment is causing immense grief. Relations are being riven right now.

That is the distressing reality of the push for development, and it pains me to contemplate that, as it pains those who have to live with that consequence.

So there are special dimensions to consider when grand plans for development are pushed in the north, where Aboriginal interests are so much more dominant than in the rest of Australia.

These are not empty lands. 

As the two, anthropologists, Kim Barber and Hilary Rumley reported, within the cultural understandings of the Traditional Owners, the land has remained unchanged since it was formed by their ancestors, the Dreamings.

The Dreamings provided explanations for the form of the land and the complexity of the environmental process, as well as explaining the place of the TOs within the social and physical world.

Barber and Rumley wrote that the Dreaming provides the TOs with a worldview in which the physical and metaphysical universe is understood as a predictable set of culturally-defined values.

Does any draughtsman sitting in Perth or Darwin and scheming laser-levelled landscapes have any understanding of those concepts?

Do public servants running round out there with a mission to cajole Traditional Owners into believing that development will benefit their families into the future have any idea of the real consequences of their exhortations for future generations of Indigenous people?

Isn’t it time to weigh up all those questions and bring Indigenous people into the planning paradigm?

That’s what’s been lacking in this whole debate about northern development.

It’s what’s lacking in the Federal Government’s White Paper.

It’s a dimension that’s been ostensibly absent in the majority of forums convened over decades past.

There’s another way to approach the question of northern development.

How about the idea that Aboriginal people ourselves have a real and meaningful input into the planning process, rather than just being presented with a fait accompli where the only outcomes are  extinguishment of our Native Title and a sense of alienation.

As I said at this conference last year, Aboriginal people are not afraid of development. We want development, but we want it to be ethical. We want development that’s aligned with our environmental and cultural values. We want development that delivers a beneficial and lasting legacy for our children.

To that end, the Northern Land Council is proposing to prepare a development prospectus that clearly identifies opportunities for new activities on Aboriginal-owned land – and remember, Aboriginal freehold title covers half the land mass of the Northern Territory.

With the participation of Aboriginal people themselves, an NLC facilitated prospectus would identify where and how they would like their lands to be developed, how they want their communities to grow, how they want to create real and lasting employment that embraces both culture and economic aspirations.

This is a project with great potential to build resilient communities by creating sustainable prosperity, the idea has been sympathetically received by some in the Federal government.

Environment Minister Greg Hunt and Trade Minister Andrew Robb – a great champion of Northern Development and a friend of the Northern Land Council – have both indicated their support.

I’m hopeful that that support will kickstart this prospectus idea.

So much of developing the north is dependent on sustainable water supplies.

I reflect on that whenever I fly to Kununurra and gaze down upon seemingly endless rows of Sandalwood plantations – and I wonder about the efficaciousness of using all that water from the Ord River irrigation scheme to sustain such a monoculture.

I wonder, because the Northern Land Council has recently had to respond – yet again in a critical way – to a Northern Territory government decision to award a licence to extract a huge amount of water to grow the same crop, Sandalwood, at Tipperary Station.

The licence will allow the extraction of more than 15 thousand megalitres a year from the Jinduckin Formation aquifer in the Douglas-Daly district. That’d be more than 100 times greater than the average of other licence holders in the district.

And all that’s on foot without the NT Government having a water plan in place, without any consultation, and in total ignorance of, and disregard for, Aboriginal interests, the people that have lived in this landscape for 60,000 years.

Before the election of this current CLP government in the Territory in 2012, years of good-faith negotiations had led to the development of Strategic Indigenous Reserves, SIRs, we call them. SIRs were to be perpetual, exclusive and inalienable rights to a share of water from surface and groundwater systems.

They were to be set aside for activities that generated prosperity for Aboriginal people, to be held and managed by Traditional Owners across northern Australia.

The policy was developed by the Indigenous Water Policy Group, and driven by the North Australian Indigenous Land and Sea Management Alliance – NAILSMA, an organisation which I headed up before I took up my job at the Northern Land Council.

The previous Territory Labor government was on board with this policy.

But this present CLP government tore up that commitment to SIRs straight after its election in 2012.

So, not only have Aboriginal people in the Territory been denied access to SIRs which would help them determine their own economic destiny and development, they have had to stand by as this government has dished out huge allocations of water to other interests – some of them political friends – as if our precious water reserves were inexhaustible.

I suppose what has underlined my address today is the need for a rigorous planning regime when plans for northern development are proposed – a regime which recognises and embraces Indigenous property rights and interests.

A White Paper is one thing, but in the end this latest White Paper on northern development is a politically driven document that canvasses old ideas and reflects old thinking.

It does not address the need for robust, evidence-based planning that will deliver good outcomes, especially for the residents of the north, particularly Indigenous people.

The last serious research and planning which addressed those goals was the Northern Australia Land and Water taskforce, convened by the previous Labor government in 2007.

Its role was to examine the longer term, strategic potential for further land and water development in northern Australia, with particular emphasis on the identification of the capacity of the north to play a role in future agricultural development.

After the government changed, the Taskforce was overhauled and given a new direction.

It was asked to broaden its enquiries to finding new opportunities for economic development in the north based on water availability and sustainability and to report on the potential impact of new development on water balance and quality, the environment, existing water users and the broader community.

The taskforce’s final report was released in February 2010.

More than five years later, its recommendations remain largely unaddressed.

And in this year when we are moving as a nation towards the recognition of Indigenous peoples in the Australian Constitution, there are no seats at the planning table for us. I want to put out some reserved signs for seats at that table. Only when those seats are filled will northern development be a meaningful endeavour for the Indigenous people of this nation.