BEYOND COMMUNAL AND INDIVIDUAL OWNERSHIP: DEMYSTIFYING ABORIGINAL LAND REFORM IN THE NORTHERN TERRITORY LEON MATTHEW TERRILL A THESIS SUBMITTED IN FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY UNIVERSITY OF NEW SOUTH WALES FACULTY OF LAW August 2013 ABSTRACT Since 2006, the Australian Government has introduced three sets of reforms to Aboriginal land ownership in the Northern Territory. This thesis considers those reforms as they have been implemented in the period until 2013, and analyses how they came about, what they do, their consequences and the potential for alternative approaches. The three sets of reforms considered here are township leasing, the reforms introduced as part of the Northern Territory Emergency Response (including the compulsory acquisition of five‐year leases) and ‘secure tenure’ policies as they apply to housing and other infrastructure. These reforms arose out of a widespread public debate about Aboriginal land reform that began in 2004. The thesis argues that this debate was conducted using vague and ill‐defined terminology that was poorly suited to a discussion of communities on Aboriginal land, which are the areas affected by the recent reforms. In particular, there was a high reliance on the concepts of ‘communal ownership’ and ‘individual ownership’. This impacted in several ways. To a considerable extent, it led to the wrong issues being contested. It also resulted in pertinent issues, such as home ownership and economic development, being debated in a manner that was far more divisive and less instructive than was necessary or helpful. This contributed to confusion about what land reform can do, and some of that confusion is reflected in the implementation of the reforms. The reforms have not – as was suggested during the debate – led to widespread ownership of land by individual Aboriginal residents. They have resulted in the formalisation of tenure arrangements in accordance with new government policies. The two most significant consequences of this have been changes to community governance, including a deepening of the role played by governments, and the introduction of more widespread rent. The thesis assesses the consequences of these developments, as well as the impact of the reforms on home ownership and economic development. The thesis concludes by setting out a framework for developing alternative approaches to land reform that are more responsive to the needs and circumstance of communities on Aboriginal land. i ii ACKNOWLEDGEMENTS My first thanks go to my supervisors, Sean Brennan and Megan Davis. Without Sean’s example I would never have thought to write this thesis. It will surprise no one to hear that his support has been exemplary throughout: not just above and beyond what is expected but thoughtful, careful, skilful and intelligent. I am certainly a better scholar for having learnt from him. As co-supervisor, Megan has been a constant source of support and encouragement; introducing me to such concepts as ‘signposting’ (more here! too much there!), talking about ideas and pushing me to see things from the perspective of the reader. My thanks to you both. I would also like to thank the Lionel Murphy Foundation. Without their support, in the form of a post graduate scholarship in 2010, I would not have been able to turn my LLM thesis into a PhD thesis. I learned a great deal about the subject matter of this thesis during the five years I spent working at the Central Land Council. A lot of people contributed to my learning there, particularly the people I met in communities and out bush. I have also learnt a great deal from conversations with Land Council staff in the period since I left, especially: Virginia Newell, Jayne Weepers and Julian Cleary, but also Danielle Campbell, Jeremy Dore, Brian Connelly, Siobhan McDonnell and David Avery, among others. I have received great support from the UNSW Law School, both as a student and more recently as a staff member. Here it would be too risky to thank people by name! A great many colleagues and fellow students have contributed to this project, in big ways and small. Further, I have had fruitful and enjoyable conversations about this thesis with a number of informed people over the years, including Nicolas Peterson, Jon Altman, Jonathon Kneebone, Kirsty Howey, Trang Dang and Charlie Ward. My last thanks go to Elisabeth, for all that she’s done. The following are publications and presentations arising from the writing of this thesis: Leon Terrill, 'What price to pay? Home ownership on Aboriginal land in the Northern Territory' (2013) 8(9) Indigenous Law Bulletin 14 Leon Terrill 'Indigenous property in Australia today: from land rights to land reform', (Paper presented at the Universidad Católica de Santiago, Chile, 10 October 2013) iii Leon Terrill, 'Aboriginal land reform: beyond the mystique' (2013) 118 Precedent 20 Leon Terrill, ‘Alternative approaches to developing a land reform model’, (Paper presented at the Centre for Aboriginal Economic Policy Research, 28 November 2012) Leon Terrill, 'Tenure Security: Concept and Implementation', (Paper presented to the Land Reform Branch, Department of Families, Housing, Community Services and Indigenous Affairs, Canberra, 27 November 2012) Leon Terrill, Submission number 269 to Senate Standing Committee on Community Affairs, Inquiry into the Stronger Futures in the Northern Territory Bill 2011 and two related bills , 1 February 2012 Leon Terrill, 'Five years on: Confusion, illusion and township leasing on Aboriginal land' (2011) 1 Property Law Review 160 Leon Terrill, Aboriginal land rights – is there a new consensus? (2010) 4 Court of Conscience 8 Leon Terrill, ‘Aboriginal land rights – is there a new consensus?’, (Paper presented at Gilbert + Tobin Centre of Public Law 2012 Postgraduate Workshop, 13 July 2010) Leon Terrill, 'Indigenous land reform: what is the real aim of the reforms?', (Paper presented at the National Native Title Conference 2010, National Convention Centre, Canberra, 2 Jun 2010) Leon Terrill, 'Indigenous Land Reform: An Economic or Bureaucratic Reform?' (2010) 7(17) Indigenous Law Bulletin 3 Leon Terrill, 'Township Leasing and Aboriginal Land Reform in the Northern Territory', (Paper presented at UNSW Indigenous Research Showcase, University of New South Wales, Sydney, 10 Nov 2009) Leon Terrill, 'The Days of the Failed Collective: Communal Ownership, Individual Ownership and Township Leasing in Aboriginal communities in the Northern Territory' (2009) 32(3) University of New South Wales Law Journal 814 Leon Terrill, ‘The Days of the Failed Collective’, (Paper presented at the Australian National Postgraduate Law Conference 2009, Australian National University, 12 June 2009) iv TABLE OF CONTENTS ABSTRACT ........................................................................................................................................................................ i ACKNOWLEGEMENTS ............................................................................................................................................ iii TABLE OF CONTENTS .............................................................................................................................................. v LIST OF ABBREVIATIONS .................................................................................................................................... xv LIST OF DIAGRAMS ................................................................................................................................................ xvii CHAPTER ONE: INTRODUCTION – FROM LAND RIGHTS TO LAND REFORM I. THE SHIFTING CONSENSUS .................................................................................................................... 1 II. OVERVIEW OF THE REFORMS .............................................................................................................. 3 A The debate ............................................................................................................................................ 3 B Communities on Aboriginal land ............................................................................................... 5 C The three sets of recent land reforms ...................................................................................... 9 D Consequences of the reforms ...................................................................................................... 10 III. THESIS STRUCTURE .................................................................................................................................. 11 A Structure and methodology ....................................................................................................... 11 B Some important terminology .................................................................................................... 15 CHAPTER TWO: LAND REFORM – THEORY, TERMINOLOGY AND CONCEPTS I. INTRODUCTION ........................................................................................................................................... 17 II. KEY TERMINOLOGY AND CONCEPTS ............................................................................................. 18 A Land reform ....................................................................................................................................... 18 B Property regimes ............................................................................................................................. 19