The Commonwealth’s Indigenous land tenure reform agenda: Whose aspirations, and for what outcomes? July 2016 Ed Wensing The Commonwealth’s Indigenous land tenure reform agenda: Whose aspirations, and for what outcomes? AIATSIS research publications Ed Wensing July 2016 First published in 2016 by the Australian Institute of Aboriginal and Torres Strait Islander Studies Copyright © AIATSIS All rights reserved. Apart from any fair dealing for the purpose of private study, research, criticism or review, as permitted under the Copyright Act 1968 (the Act), no part of this paper may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without prior permission in writing from the publisher. The Act also allows a maximum of one chapter or 10 per cent of this paper, whichever is the greater, to be photocopied or distributed digitally by any educational institution for its educational purposes, provided that the educational institution (or body that administers it) has given a remuneration notice to Copyright Agency Limited (CAL) under the Act. Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) GPO Box 553, Canberra ACT 2601 Phone: (61 2) 6246 1111 Fax: (61 2) 6261 4285 Email: [email protected] Web: www.aiatsis.gov.au Creator: Wensing, Ed (Edward George), author. Title: The Commonwealth’s Indigenous land tenure reform agenda : Whose aspirations, and for what outcomes? / Ed Wensing. ISBN: 9781922102584 (ebook) Subjects: Aboriginal Australians--Land tenure. Land tenure--Law and legislation--Australia. Land reform--Law and legislation--Australia. Dewey Number: 346.9404320899915 Abstract Ever since the Reeves Review of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) in the late 1990s, the Commonwealth1 has been pursuing an Indigenous land tenure reform agenda, which has continued to gain momentum. Although a clear policy on Indigenous land tenure reform has not been articulated, the underlying premise is that traditionally grounded, communal forms of land title are a barrier to wealth creation and that communally owned lands should give way to individualised and alienable rights in land (Dodson and McCarthy 2010:85). Even though the agenda has shifted in focus over time, this still appears to be the underlying objective. In this paper I argue that weak links are being made between increasing opportunities for economic development (including private home ownership) and the need for Indigenous land tenure reform. The paper draws on a considerable body of background research and analysis, including Aboriginal and Torres Strait Islander peoples’ collective views about Indigenous land tenure reform and their aspirations for protecting and not diminishing their hard-won gains through native title determinations and statutory land rights grants or acquisitions; the composition and location of the Indigenous estate and the land titling revolution that has taken place over the past 50 years; the geographic spread of the Aboriginal and Torres Strait Islander population around Australia and on the Indigenous estate; the origins of the Commonwealth’s Indigenous land tenure reforms from the Reeves Review of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) in 1997 and its trajectory to June 2016; the current land dealing provisions (private sale, leasing and mortgaging) in the statutory Aboriginal and Torres Strait Islander land rights schemes and the Native Title Act 1993 (Cth) and how they facilitate or hinder economic development and/or private home ownership aspirations; and how the mainland states and the Northern Territory have (or have not) responded to the Commonwealth’s Indigenous land tenure reform agenda over the past decade. The research highlights the frustration of Aboriginal and Torres Strait Islander peoples with the nature and direction of the Commonwealth’s Indigenous land tenure reform agenda and their strong opposition to any diminution of their estate. They want genuine recognition of their inherent customary rights and interests to their traditional lands and waters. The confluence of several Commonwealth initiatives over the past 18–24 months and the development of a clear set of guiding principles and outcomes by the Indigenous Property Rights Network provide an opportunity to refocus the reform agenda. I conclude that what is required is an implicit recognition of the prior and continuing ownership of all land and waters in Australia by Aboriginal and Torres Strait Islander peoples under their traditional laws and customs to embed the genuine consideration of their rights, interests, knowledges, values, needs and aspirations in allconventional land tenure and contemporary land use planning systems. I also postulate that it is time to 1 In this paper Commonwealth refers to the Australian Government. ‘puncture some legal orthodoxies’ (McHugh 2011:68, 328-339) relating to property, especially in relation to inalienability and extinguishment, and that land use planning systems must also undergo fundamental change that acknowledges and respects the parity of two distinctly different but co-existing land ownership and governance approaches. Acknowledgements This paper has been prepared as background research for my doctoral thesis at the National Centre for Indigenous Studies at the Australian National University. The research for this paper was self-funded. The details are current as at 1 June 2016, unless otherwise stated. I acknowledge the permission of my dear friend and colleague, Jonathan Taylor, to reproduce and update some of the material that we co-authored for our joint paper on ‘Secure tenure for home ownership and economic development on land subject to native title’ Discussion Paper No. 31 published by AIATSIS in 2012. I am very grateful to the National Centre for Indigenous Studies for allowing me to undertake my PhD at the Australian National University and to AIATSIS for agreeing to publish my background research. Ed Wensing FPIA FHEA Adjunct Associate Professor, College of Marine and Environmental Sciences, James Cook University PhD Scholar, National Centre for Indigenous Studies, The Australian National University Visiting Fellow, Australian Institute of Aboriginal and Torres Strait Islander Studies Director, Planning Integration Consultants Pty Ltd Associate, SGS Economics and Planning Pty Ltd Contents Abstract ........................................................................................................................... iii Acknowledgements ........................................................................................................ iv Acronyms ......................................................................................................................... i Introduction ...................................................................................................................... 1 Explanation of terms ........................................................................................................ 2 Indigenous aspirations for and engagement in the land tenure reform debate ................ 3 The Indigenous estate and the land titling revolution ....................................................... 9 Indigenous peoples on Indigenous lands ....................................................................... 12 The Commonwealth’s agenda for Indigenous land tenure reform .................................. 17 Indigenous land tenure reforms and the private home ownership debate ...................... 27 Dealing with land in the statutory Aboriginal and Torres Strait Islander land rights schemes ........................................................................................................................ 31 Dealing with land subject to native title rights and interests ........................................... 35 The States’ responses to the Commonwealth’s agenda ................................................ 38 The Commonwealth’s continuing agenda for Indigenous land tenure reform ................ 42 Conclusion: What land tenure and land use planning reforms are needed? .................. 49 References .................................................................................................................... 52 Legal Authorities ............................................................................................................ 52 Legislation – Commonwealth ......................................................................................... 52 Legislation – Other Jurisdictions .................................................................................... 52 Books, reports, journals et cetra .................................................................................... 54 Appendix A: Principles for Indigenous land tenure reform ............................................. 69 National Indigenous Council: Indigenous land tenure principles, 2005 ................. 70 Aboriginal and Torres Strait Islander Social Justice Commissioner: Principles for Indigenous land tenure reform, 2009 .................................................................... 71 SGS Economics and Planning: ‘Living on Our Lands’ study, 2012 ....................... 73 Australian Law Reform Commission: The guiding principles for the Inquiry, 2015 .....................................................................................................................