Fiddling while Rome burns

Not long ago I blogged about a CIS paper by Helen Hughes and Jenness Warin which canvassed a range of options in relation to Aboriginal affairs. Most notably, they advocated amendments to native title and legislated aboriginal freehold to enhance individual ownership and alienability (and therefore hopefully the economic value) of Aboriginal land.

I was critical of the simplistic, ideologically-driven approach of Hughes and Warin to this vexed area. However, and perhaps unsurprisingly, John Howard now seems to have uncritically embraced it:

“I believe there’s a case for reviewing the whole issue of Aboriginal land title in the sense of looking more towards private recognition,” Mr Howard said.

“We have to work through the details of how that might occur and we haven’t reached that point yet.

“But I certainly believe that all Australians should be able to aspire towards owning their own home.

Don’t get me wrong. There may be scope for freeing up land title in some areas in ways that would be productive and beneficial. But equally, if the solutions are ideologically-driven and not thought through carefully after wide consultation, they will almost certainly create more problems than they solve.

I had intended writing another long post on this topic in light of John Howard’s Wadeye comments of a week or so ago. But fortunately ANU legal academic Jennifer Clarke has beaten me to the punch and said everything I wanted to discuss and then some.

Individual land title isn’t a magic bullet solution to Aboriginal disadvantage. In fact it isn’t a solution at all on its own; a single, simple solution just doesn’t exist. We need simultaneously to tackle alcohol and drug abuse, endemic sexual and general violence, poverty, malnutrition and hygiene, poor education, training and employment opportunities, inadequate housing and a host of other problems. And we need to do all of this consultatively and in a spirit of true self-determination, which involves fostering self-reliance and real mutual obligation (not the attenuated, one-sided, money-saving version the Howard government appears to favour). Individualised land titles may in some cases form part of the picture, but it’s unlikely to be a very large part, at least in remote areas of Australia. As Jennifer Clarke observes:

On the other hand, it seems unlikely that banks will lend against leases over native title land, at least where the courts have limited native title to a malnourished set of rights. Banks may also be reluctant because of native title’s vulnerability, since 1998, to discriminatory interference by governments and third parties. The latter defects do not result from “socialist” 1970s experiments – they are the work of the present government. Any proposals to “rationalise” land rights legislation to make it more like native title legislation must be viewed with suspicion from an economic point of view. …

But in remote Northern Territory Aboriginal communities, do people really have the income to support mortgages? Most are unemployed. Many are single mothers who, unlike many single mothers in Sydney, do not receive child support payments from ex-partners. Nearly half of Wadeye’s residents are non-income-earning children. Annual adult income in Wadeye is about $12,000, depending on whether you have kids: to gain access to the NT’s low-income housing loans scheme, three adults will have to club together. A depressingly large number of Aboriginal men in particular do not live long enough, or stay out of jail long enough, to pay off a 25-year mortgage.

Any property market in Wadeye is likely to be an artificial one, but the costs of a house may be higher than they first appear. Not only are construction costs high for transport and seasonal reasons, but traditional owners, like other Australian property owners, may understandably seek some return by way of rent. …

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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2022 years ago

Here in Alice the different tribal groups seem to have trouble agreeing who owns what land, much less individuals. This is one huge can of worms they are wanting to open. I can’t see how this is going to make the general Aboriginal population less marginalised. Like happens now -the ruling families will get the most and those at the bottom of the food chain will get the least and be even more marginalised than they are now.

2022 years ago

Hey, Mindy, so you are in Alice? Me too (think we had this discussion in the context of cats).

In my limited experience, there is a complete divergence in culture between the Indigenous attitude to ownership and communality and those of the Europeans. I’m no admirer of the Nugget Coombes-originated consensus on self-determination and to hell with the consequences, but trying to impose European concepts of private ownership on aboriginal people seems to me to be misreading the problem and the misapprehending the solution.

I don’t think Howard’s kind of rhetoric will help the helpless souls that sleep down in the dry river bed every night, just across from where I live.

Nicholas Gruen
2022 years ago

From what I saw of Howard’s comments, I guess they were ideological but they were not gung ho. They would not have led to permanent alienation of aboriginal land and appeared to be being done with a fair bit of consultation with the local community.

2022 years ago

Hi Rob

Yep in Alice as well. How is Francesca?

2022 years ago

She’s very well, thank you, Mindy. Still claws the furniture when I annoy her, but I can’t clip her nails because there’s a large – very large – boy cat next door and claws are her only means of defence. She’s lost some of her teeth, poor old thing. She’s settled into Alice just fine.