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'Privatising' Aboriginal land is no panacea

By Jennifer Clarke - posted Friday, 15 April 2005

Moves to “privatise” Aboriginal land risk throwing the baby out with the bath-water - just as land rights and “self-determination” did when they displaced “welfare” as Aboriginal policy.

In considering proposals to increase the commercial value of Aboriginal land or improve the housing of its occupants, it is vital to identify exactly the obstacles presented by existing land rights legislation - and to take a reality check on other obstacles.

There are significant differences between the land rights regimes of each state and the Northern Territory, and between these and the Native Title Act. And there are big differences between the Indigenous populations of the southern states and those of remote Australia when it comes to resources for property investment.


The land rights legislation of some jurisdictions (notably Queensland, where most communities are still on old Bjelke-Petersen style titles) is far more complex and bureaucratic than it need be. Even more workable legislation contains traces of paternalistic constraints which should be removed immediately (for example the Northern Territory requirement that an Aboriginal person who wants a lease for a home must obtain the Commonwealth Minister’s approval).

Parliament added another layer in 1993 by deciding to preserve native title claims to land rights land, rather than cashing them out or converting them into property rights more compatible with the existing regimes. This created extra complexities in NSW and Queensland, where land rights legislation was not based on traditional ownership.

But this doesn’t mean that all land rights legislation is a primary cause of Aboriginal exclusion from the mainstream economy. The facts remain that land rights land can be sold in one jurisdiction, leased in most others, and that at least some of these leases can be mortgaged. AustralAsia Railway Corporation’s partial funding of the Alice-Darwin rail link by mortgages over leased Aboriginal land shows that commercial lenders can be interested in these arrangements.

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.

Much has been made recently of tension between communal decision-making and individual interests in the Aboriginal land context. But this tension may sometimes stem from factors other than the title itself.

For example, there has been a joint Commonwealth-NT Indigenous public housing body in the NT since the mid-1990s, but where is the critique of its performance at Wadeye?


Aborigines in New South Wales could obtain houses on Aboriginal land in one of three ways:

  • First, by having the house provided by land councils on land owned by the council. But land councils which provide housing are acting not under the NSW Land Rights Act, but under the Aboriginal Housing Act 1998. If they do not distribute houses equally among those of their members who need them, this is because of poor governance, not defective title.
  • Second, Aborigines with jobs who can afford to build houses could obtain private freehold title to land rights land if 80 per cent of members of a Local Aboriginal Land Council agreed to the land being sold. This majority must be satisfied that the land is not of cultural significance. Here, there can be a tension between the land council’s desire to realise a profit and individual members’ capacity to pay for land, or between some members’ desire for private housing and others’ inability to afford it, particularly in markets like Sydney.
  • The alternative is for the land to be sold to a private developer, who builds housing for sale to land council members or the public. Again, where the land is valuable, there could be friction over the sale.

As even Warren Mundine’s paper to the National Indigenous Council points out, these arrangements have been associated with serious corruption problems. There has not been the same corruption elsewhere. NSW land rights shows us that making it easier to sell Indigenous land may come at a serious cost.

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About the Author

Jennifer Clarke is a Canberra lawyer

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