Governments must help indigenous communities develop native title land

Opinion Article

2015 May, 23

Pat Dodson convened a watershed meeting of indigenous leaders with Tim Wilson and Mick Gooda from the Human Rights Commission on the subject of indigenous property rights. If anything is clear to me it is that Attorney-General George Brandis’s decision to appoint Tim Wilson as “freedom commissioner” was a masterstroke. A classical liberal being appointed to what has traditionally been a progressive left bastion now makes a great deal of sense though there was serious consternation about the meaning of the Abbott government’s appointment of Wilson in this role. 

Wilson and Gooda began a conversation about how the largest landowners in the country could be brought in to the Australian economy while retaining their cultural integrity. On a previous visit they heard from Dodson and his Yawuru people about the challenges they faced using and developing land following the settlement of native title claims in the vicinity of Broome. The Yawuru people’s challenges involve the question of how can native title holding communities use their land once they have received title to it — a common question across the continent. 

More than 20 per cent of the Australian land mass is now held under some form of exclusive title by traditional owners and a much larger percentage has some form of native title coexisting with crown and private titles. It is likely regions such as the Kimberley and Cape York will end up with some form of native title over nearly all of the land titles in these regions. 

The idea that successful indigenous land claims may leave indigenous peoples “land rich and dirt poor” is really one of the central questions facing indigenous leaders. Given its economic implications, it is a question of great importance to the rest of the country. Australia cannot afford in the long run to exclude such a vast proportion of its land and resource base, let alone its most disadvantaged population, from sustainable economic development.

There is therefore a common interest in the wider Australian community and indigenous Australians in finding answers to the questions raised by Dodson, Wilson and Gooda. 

The absence of the infrastructure of property on indigenous lands was highlighted this week. Australian cities and towns, rural and regional, including non-indigenous townships in the remotest parts of the country, have the property infrastructure of registered tenures that can be used for economic transactions and development. Indigenous lands do not. Aboriginal lands usually consist of a single communal title, often comprising hundreds of thousands — often millions — of hectares of land. There is nothing that distinguishes tenure in townships and residential centres from tenure applying to surrounding bush. 

Mainstream towns such as Cooktown have all of the property infrastructure that enables home and business ownership, and therefore development. Across the Endeavour River is Hope Vale with only a large communal title covering most of the land, and a smattering of tenures — mainly to government agencies and the church. But there is still no comprehensive property infrastructure. Leases to individual families for home ownership or rural development are still 30 years coming. Not since Bob Katter started the process in the mid-80s has any serious action been taken by governments. 

Queensland and other governments assume that communities wanting property systems should pay themselves. They treat indigenous landowners like developers: they expect the “user-pays” principle to operate. 

While they may support the general policy direction, they do not realise they are placing insuperable barriers in the way of this happening. They don’t want to underwrite the costs of surveys and the creation of cadastres. 

They should pause to consider that all Queensland towns were created by successive governments investing in the property infrastructure of these towns dating back to the 1800s and into the 20th century. Cooktown’s tenure system is not the product of user-pays, and neither is Broome’s. 

Rather, that infrastructure was put together by government investment. So indigenous communities are calling on all governments — state, territory and commonwealth — to invest in the necessary property infrastructure. This is a historical catch-up issue. What mainstream Australia takes for granted today thanks to past investment of governments, is what indigenous communities need now that their lands have been belatedly returned to their ownership.

This is a considerable infrastructure investment that is needed. But it is probably the most important investment governments could make to facilitate the development of these - communities. 

This is the property infrastructure the famous Peruvian economist Hernando de Soto says is missing in the development challenge facing Third World societies. 

De Soto’s insight was what distinguished developed Western nations from much of the Third World — the absence of the means of accumulating capital, namely the hidden architecture of a property system. 

The extraordinary scene in Broome this week was one where dog-eared copies of The Mystery of Capital could be seen in the most unlikely hands, and the concept of fungibility of property was the theme of the discussions. 

This is all, of course, a great challenge for those concerned with the maintenance of the integrity of indigenous lands, and to ensure the land sustains the cultures of what are at their heart, communal societies. I continued my advocacy of the example of other orthodox cultures such as the Jews and the Japanese: they have been able to retain their traditional heritage while participating at the forefront of liberal development. 

We all have much to learn from economists such as professor emeritus Ron Duncan, of the Crawford Centre at the Australian National University. Duncan brings a range of pertinent experience of land reform in the South Pacific, showing that the integrity of communal tenures can be maintained while enabling private title and therefore enterprise by families and individuals. 

Otherwise the default position — in which indigenous landowners are currently bogged down — is one where Aboriginal people are focused on defending and protecting their lands against other people’s development. Indeed, the only development that is able to proceed is initiated, owned and controlled by outsiders. A fatal combination of the absence of a system of internal allocation of property interests, and the consequent problem of free riding when communal enterprise is the only option, means that development has next to no chance. 

We have to move from the default paradigm of protection and defence from development, to a new paradigm of an indigenous right to development. We have to advocate for the right to development. This is our true right.

Yesterday’s story in The Australian concerning the barriers facing the Darkinjung Land Council on the central coast of NSW sets out the whole challenge facing indigenous communities that want to develop their lands. 

Like Dodson’s Yawuru in Broome, Sean Gordon and the Darkinjung have put forward housing development plans into the Wyong local government. They have the land, they have the capital, but they face an array of hurdles in moving forward. What about the Darkinjung’s right to - development?

Their developments promise a boost to the local economy with construction, employment and housing sales, which one would think would be supported by their local government. Yet here they are fighting inch by inch through every layer of red tape and obstruction. 

The indigenous right to development was a strong theme coming out of Broome. Indigenous people do not just have a right to be protected from development, we have a right to development. 

This is why the appointment of Tim Wilson within the Human Rights Commission framework is so important. The right to development is a freedom. It is the freedom of property. It is the notion of property as a human right. 

Wilson is filling a large lacuna in the discourse of human rights in this country. For too long the traditional view of human rights has been about rights and protections from things such as abuse, victimisation and discrimination and so on. This is all good, but the importance of freedoms has been lost in this traditional discourse. 

In a sense Goodah represents one side of the protections discourse on human rights while Wilson represents the freedom side. This new balance is most welcome indeed. Godspeed their work with Dodson and the land councils. It is crucial work.

Governments must help indigenous communities develop native title land