Proposed changes to the NT Land Rights legislation

 

Where we are

There’s daggers in men’s smiles

Macbeth, Act 2, scene 3.

 

Last Saturday (12 June 2021), Minister Wyatt issued a media release (link here) announcing significant proposed changes to the Aboriginal Land Rights Act in the NT. The Minister’s spiel is that it is generational reform to empower Aboriginal Territorians. I am sceptical.

 

He announced three sets of proposed changes. First, it is proposed to amend the financial provisions underpinning the NT legislation, in particular the Aboriginal Benefits Account (ABA), by establishing an Aboriginal controlled NT economic development entity. Second, he announced changes to the provisions related to mining and exploration on Aboriginal land, including changes potentially affecting the requirements for consultation with traditional owners. Third, he proposes changes to the existing township leasing provisions to allow communities to enter into a head lease with a local Aboriginal corporation.

 

The Minister indicated that legislation to implement the changes would be introduced later this year. Further details are provided in three fact sheets available on the NIAA website (link here). While helpful in elaborating on what is proposed, these fact sheets leave numerous questions unanswered.

 

In November 2020, I published a post examining the emerging rapprochement between the Minister and the NT Land Councils (link here) and asking the question: what is driving this rapprochement?  That post remains relevant to the issues that are now emerging. In particular, it is clear that the Ministers budgetary generosity then (and perhaps ongoing) was designed to lubricate the negotiations on the recently announced proposed changes.

 

The Minister’s announcement makes much of the codesign of the proposed changes with the Land Councils and the ABA Advisory Council (which is predominantly comprised of Land Council Executive committee members). Yet the ABA was explicitly designed to benefit all Indigenous Territorians and they do not appear to have been included or represented in the codesign processes for the proposed changes. Nor has there been any wider public consultation, no issues paper published, and no explicit public discussion paving the way for the announced changes.

 

The Minister’s decision to make his announcement on the Saturday of a long weekend (after three years of codesign negotiations with the four NT Land Councils) seems designed to avoid excessive media coverage. This raises the question: what is the Minister seeking to hide here? Is the Government merely averse to transparent debate on policy issues? Or is there a deeper policy agenda that they fear might become apparent if the proposals are subject to too much sunlight?

 

It is clearly too early to undertake a detailed analysis of the proposals in the absence of draft legislation. Yet even on the information so far provided, some major questions arise and deserve to be tagged for further consideration.

 

In relation to the proposal for an ABA funded Aboriginal controlled NT economic development entity, funded with a $500m endowment and an annual $60m injection, a range of issues arise. If the new entity is effectively controlled by the Land Councils (via control of appointments to the Board), will this lead over time to changes in the Land Councils attitude to regulatory protection of traditional owner interests (for example in cases where the entity joint ventures with an external partner to access and utilise Aboriginal land)? There may well be a case, as the Minister argues, ‘to activate the potential of Indigenous land in the NT’, but it should not occur at the cost of weaker land council regulatory oversight.

 

Second, what does the minister propose for the $700m balance of the ABA’s $1.2bn. And how does he square his confident assertion that the growth in the ABA capital base is ‘forecast to continue’ with the imminent closure of the major source of ABA funds, the Groote Eylandt manganese mine at some point (link here) within the next decade? It would be helpful if the Minister were to release his detailed financial forecasts for the ABA’s revenue over the next three decades. This may be ‘generational reform’, but in matters such as these, serious thought needs to be given to the impact on future generations.

 

In relation to the streamlining of the exploration and mining proposals, the Minister’s Fact Sheet indicates that Land Councils are to be given ‘greater flexibility to determine how traditional owners are consulted, with the agreement of the applicant in each case’. This apparently anodyne statement is in my view fraught and appears designed to strengthen the hand of the land councils vis a vis traditional owners on the ground. This is a retrograde suggestions and requires detailed consideration as to its desirability and if implemented the protections against misuse that would need to be implemented.

 

The proposals in relation to township leasing which allow traditional owners to head lease the land to an Aboriginal corporation rather than the EDTL are in my view problematic. While they appear to provide greater community control over the township tenure, the use of local corporations rather than a government entity to hold the head lease means that potential lenders will be much less willing to lend to sub-lessors because in the event of a loan default, the mortgaged land will only revert to the lender while the local corporation remains solvent. Solving this potential problem ws the reason that the EDTL was established in the first place. The Minister should provide a detailed explanation of how he intends to address this issue as potential lenders will vote with their feet and not lend in circumstances where they cannot be guaranteed access to the mortgaged land.

 

Over the past two years, it has become increasingly apparent that there are major policy gaps in the capacity of the NAIF to deliver benefits to Indigenous citizens of northern Australia, and that the Government’s Indigenous Reference Group on Northern Australia has proposed (unpublished) recommendations that have not been implemented (link here). Yet the Minister’s announcement makes no mention of these policy processes, and instead is proposing a set of changes that strengthens Aboriginal involvement in allocating existing funds (albeit funds that have been allowed to accumulate through non-decisions by the Minster and his predecessor) only in the NT. The risk here is that this sleight of hand will be used as the fig leaf to hide the Government’s policy exposure in relation to the lack of Indigenous inclusion in its northern development policy and divert attention from the absence of any more substantive reform.

 

Finally, I almost choked when I read in the Minister’s Fact Sheet that the proposed economic development entity would:

‘have strong governance structures and transparent reporting to ensure accountability to Aboriginal people in the NT and the Australian Government. In addition to PGPA Act reporting requirements, the ABA entity will have to…provide additional reporting in the first 3 years of establishment’.

And in the Minister’s media release that:

‘by establishing it as a Commonwealth entity, there will be rigorous public reporting to ensure Aboriginal people know where their money is going and how it is being used to support their communities, culture and businesses’.

 

While I strongly support these proposals (and would even go further by legislating the forms of transparency required), it is all a bit rich coming from a government that has pursued a substantial reduction and degradation in the quality of reporting in relation to ABA grants over the past five years, and a Minister who has allowed a major Commonwealth entity within the his own portfolio to lapse into governance dysfunctionality for most of the past year (link here).

 

No doubt there are a range of problematic issues involved in these proposals that I have not focussed on.

 

There is potential to strengthen Aboriginal control and empowerment over the ABA, and for reform adjustments to the legislation more broadly. But there are a range of trade-offs that require wider discussion; a series of major risks, many of which are not visible or obvious; and a number of retrograde proposals that could fundamentally weaken the existing policy architecture of NT land rights.

 

I hope the Parliament convenes an appropriate Committee to examine the legislation when it is introduced to ensure that these proposals receive the detailed consideration they so clearly require.