COPYRIGHT AND USE OF THIS THESIS This thesis must be used in accordance with the provisions of the Copyright Act 1968. Reproduction of material protected by copyright may be an infringement of copyright and copyright owners may be entitled to take legal action against persons who infringe their copyright. Section 51 (2) of the Copyright Act permits an authorized officer of a university library or archives to provide a copy (by communication or otherwise) of an unpublished thesis kept in the library or archives, to a person who satisfies the authorized officer that he or she requires the reproduction for the purposes of research or study. The Copyright Act grants the creator of a work a number of moral rights, specifically the right of attribution, the right against false attribution and the right of integrity. You may infringe the author’s moral rights if you: - fail to acknowledge the author of this thesis if you quote sections from the work - attribute this thesis to another author - subject this thesis to derogatory treatment which may prejudice the author’s reputation For further information contact the University’s Copyright Service. sydney.edu.au/copyright Land Rich, Dirt Poor? Aboriginal land rights, policy failure and policy change from the colonial era to the Northern Territory Intervention Diana Perche A thesis submitted in fulfilment of the requirements for the degree of Doctor of Philosophy Department of Government and International Relations Faculty of Arts and Social Sciences University of Sydney 2015 Statement of originality This is to certify that to the best of my knowledge, the content of this thesis is my own work. This thesis has not been submitted previously, either in its entirety, or substantially, for a higher degree or qualification at any other University or institute of higher learning. I certify that the intellectual content of this thesis is the product of my own work and that all the assistance received in preparing this thesis and sources have been acknowledged. Diana Perche Abstract This thesis examines the development of Aboriginal land policy in the Northern Territory of Australia, and uses a policy dynamics approach to analyse the policy decision making in this area over long time periods. This approach is useful in helping to uncover key areas of continuity, and gradual change, in Aboriginal land policy, since the early colonial era, and it draws attention to the ways in which policies framed around Aboriginal land rights in the current era have retained links to the earliest policies framed during invasion and settlement. The thesis argues that path dependency has been a very significant feature of Aboriginal land policy, and the Howard Coalition government’s recent amendments to the Aboriginal Land Rights (Northern Territory) Act 1976 in 2006 and 2007 are better understood as a part of a much longer policy trajectory. The thesis identifies five distinct (though overlapping) temporal sequences: (a) the early colonial era, marked by fear, brutality and misunderstanding between settlers and Indigenous people; (b) the humanitarian era, shaped by the Buxton committee report of 1837 which called for the creation of Aboriginal reserves as both compensation and a form of protection; (c) the later protection era which saw early humanitarian impulses turn to a greater focus on segregation and control; (d) the assimilation era, where reserves were closed in the southern parts of Australia, with the expectation that Aboriginal people join white society, while extensive reserves were retained in the north where Aboriginal people were understood to retain traditional customs and lifestyles; and (e) the land rights era, where activist campaigns in response to prominent conflicts over non-Indigenous use of Aboriginal land for pastoral and mining resulted in governments converting reserves into Aboriginal-owned land, under inalienable communal title. Two critical junctures, in the form of government reviews, are pinpointed as moments where substantial policy change has been rendered possible: the Buxton committee in 1837 and the Aboriginal Land Rights Commission led by Justice Edward Woodward in 1973-4. Outside these critical junctures, policy development has been incremental. The thesis explores the shifting frames used by policy makers around Indigenous land from the colonial era to the present day with respect to four themes: the purpose of allocating sections of land for Aboriginal use or recognition of ownership, access to Indigenous land, difference in terms of Indigenous expectations of ownership and relationship with land, and the governance or power to make decisions with respect to Indigenous land. It traces these themes from the initial formulations of Aboriginal rights to land in terms of humanitarian protection, social justice and economic development in the early colonial era, through to the rise of the land rights movement in the 1960s and the current focus on marketisation, economic development and the push to use Indigenous land to alleviate disadvantage. Careful tracing of each of these themes over time illuminates the path dependency which dominates in this policy area, and isolates the two critical junctures where substantial leaps in problem definition are discernible. The thesis considers Aboriginal land rights policy in the Northern Territory in the light of the current dominant debate around policy failure in Indigenous affairs, and reflects on the Howard government’s strategic use of the frame of policy failure to explain the need for the government to “wind back” land rights. The thesis uses contemporary theory concerning the politics of evaluation (including emphasis on short term contingency and political strategy) and the political use of evidence and expertise in policy making to explain the development of policy on Aboriginal land through each identified temporal sequence, up to and including the most recent sequence spanning the Howard government’s 2006 amendments and the implementation of the Northern Territory Intervention in 2007. The thesis observes the erratic and selective use of expert knowledge of Aboriginal people and their economic, social, spiritual and political relationship with the land, and the persistent triumph of settler ideology over Aboriginal interests in land policy. Table of contents Acknowledgements iii Chapter 1: Introduction 1 The significance of land 3 Land rich, dirt poor: Land rights as policy failure 5 Evaluation, evidence and Indigenous policy making 9 Path dependency in Aboriginal land rights policy 11 Research question 13 Key themes in Aboriginal land rights policy: purpose, difference, governance, access 14 Methodology 16 Outline of this thesis 18 Chapter 2: The dynamics of policy change 21 Explaining policy and policy evaluation 23 How is evaluation used in the policy process? And how does politics intervene? 31 Framing 40 Path dependency, and policy change 45 Conclusion 50 Chapter 3: Early colonialism and the humanitarian critique 51 The arrival of the British settlers: curiosity, resistance and the Frontier War 52 The first reserves: compensation and containment 55 Evaluating colonial policy: Buxton and the humanitarian critique 60 Conclusion 71 Chapter 4: Protection, segregation and the extensive reserve 74 Self-government, and post-frontier policy making 75 Victoria 76 New South Wales 80 Queensland 83 Western Australia 87 South Australia and the Northern Territory 89 Northern Territory and Commonwealth control 93 Conclusion 100 Chapter 5: From reserves to rights 103 Redefining the “Aboriginal problem”: from protection to assimilation 104 Experts, evidence and new ideas 106 Hasluck’s new frame: citizenship, assimilation and reserves 112 Yirrkala 116 The rise of “land rights”: activism and the Aboriginal social movement 123 Resistance, and reaction 127 The Milirrpum decision 129 A window of opportunity 131 Conclusion 134 Chapter 6: From Land Rights to Legislation 136 Preparing for the window of opportunity: A new policy direction for Labor 137 Emerging political alternatives: the importance of sequencing 141 Revising the Labor Party Platform: putting Aboriginal land rights on the formal agenda 144 The 1972 election policy promise 145 The Aboriginal Land Rights Commission 147 Woodward’s critical juncture: the “high-water mark of possible Aboriginal aspirations” 150 From recommendations to legislation 158 Consolidation 161 Rowland: Evaluation as a “Working Paper” 163 Toohey: “Seven Years On” 166 Conclusion 170 Chapter 7: A new generation? 174 Temporality and policy: review 175 Aboriginal land under scrutiny 177 The Reeves Review: “Building on land rights for the next generation” 179 From intention to action: Seizing the political opportunity 187 The Northern Territory Intervention: Crisis manipulation 198 Conclusion 204 Chapter 8: Conclusion 207 Bibliography 212 Acknowledgements There are many wonderful people who have provided me with support, guidance and encouragement over the course of this research. These brief words of acknowledgement cannot do justice to the valuable role each of them has played in bringing this project to fruition. I have been privileged to work with two very fine supervisors, both eminent in their fields, and each providing quite different perspectives on my work based on their own deep knowledge and academic skill. Allan McConnell has been an unswerving champion of my project from the beginning, and his good humour and cheerful encouragement over the years have been very valuable to me. Allan’s enormous expertise