Our wills and fates do so
contrary run
That our devices still are overthrown;
Our thoughts are ours, their ends none of our own.
Hamlet, Act 3, scene2
The Senate Finance and Public Administration Legislation Committee
has now published its report of its Inquiry into the legislation. The Government
and ALP members of the Committee recommended the Bill proceed unamended. The
Greens provided a dissenting report. The report, copies of submissions, and
some associated documents are available on the Committee’s web page (link
here).
I expect that the Bill will be passed this week, probably
without amendment.
From one perspective – that of Minister Wyatt, his agency,
the NT Land Councils, and APONT (the Aboriginal Peak Organisations of the NT) –
the Bill is a positive step towards Aboriginal empowerment and greater self-determination.
It is the result of a codesign process over a number of years that inter alia streamline the mining provisions
of the legislation (various mining interests were involved in the drafting of the
legislation), reverses a number of provisions that the land councils have
strongly opposed for some years, in particular relating to the capacity to delegate
their powers to local corporations, and provisions relating to permits. The core
of the amendments however are the proposal to establish a new statutory corporation,
the NT Aboriginal Investment Corporation (NTAIC), which will be provided with a
capital base totalling $680m over the first three years from funds already appropriated
to the Aboriginals Benefit Account (ABA). The majority of the Directors of
NTAIC will be appointed by the Land Councils. The NTAIC will have responsibility
for investing that capital base (either passively or actively), and for deciding
and making beneficial payments to community groups and projects across the NT.
On the surface, this all seems to be heading in the right
direction, not least since the 1984 review of the ABA by Jon Altman recommended
consideration be given to shifting the ABA under Aboriginal control, a proposal
that has sat in abeyance for over thirty years (see Altman’s submission to the
Inquiry).
Yet all is not what it seems. Of the 67 submissions to the
inquiry, less than ten were supportive of the proposals. See Altman’s tabled supplementary
document providing a critical assessment of the submissions in favour. Key
issues raised by those with concerns (and I am one of those people) included the extent of consultations including
the lack of involvement of Aboriginal interests beyond the land councils, the effective
secrecy of the process, alleged flaws in the design of the NTAIC that potentially
compromise the quality of its governance, and structural tensions related to
the NTAIC’s overarching functions (is it an investment body focussed on driving
economic development as the name of the Bill suggests, or a beneficial grants
body?). The Scrutiny of Bills Committee raised a series of technical concerns
(that may nevertheless have real world implications) that the Minister proposes
to disregard. An overarching concern was the potential for the land councils to
accrue greater power at the expense of the interests of traditional owners.
It must be said that the Land Councils in their evidence to
the Committee were adamant that the critiques of the Bill do not stand up to
close scrutiny. Whether it is the land councils who are correct, or the critics,
only time will tell.
For those interested in a more comprehensive understanding of
the respective arguments, I recommend readers start with the Parliamentary Library’s
excellent Bills Digest on the Bill (link
here) read the submissions to the Senate Committee inquiry in favour of the
Bill by the NIAA and the Land Councils, and for the critical perspective Jon Altman,
Greg Marks, Bill Gray, the Australian Human Rights Commission, Ngurratjuta/Pmara
Ntjarra Aboriginal Corporation and Michael Dillon (link
here). The Committee’s majority and dissenting reports are also good overarching
accounts of the arguments, albeit not entirely comprehensive (link
here).
If we step back, and get up in the grandstand, what might
we surmise about the drivers behind the process on this issue so far? In three
words: politics, politics and politics.
The Government clearly wished to neutralise the potential threat of overwhelming anti-government
sentiment from Territory Aboriginal
voters. Labor too is focussed on this constituency, having preselected
former NLC CEO and former NT Government Minister Marion Scrymgour for the House
of Representatives seat of Lingiari. Labor’s support for this Bill may well be
a result of the fact that to adopt an alternative position would be seen to
undermine their candidate in the forthcoming election. IF so, this is astute
politics at the cost of poor policy. On the issue of electoral disengagement, see
this previous post analysing the extremely poor voting turnout amongst
Territory voters (link
here).
The Government also wished to deliver miners streamlined access for prospective mineral
exploration on Aboriginal land, and was prepared to trade the Howard Government
inspired, but now defunct and no longer contentious provisions on delegated
powers and permits for these gains.
A further Government motivation is its need to deliver the appearance of action to its own
ideological constituency. Thus we see it package up what I previously
described as ‘a largely rhetorical policy narrative built around economic
opportunity, jobs and wealth creation’ (link
here). While the NTAIC gives the appearance of substance, the funds to be
allocated are entirely transfers from already appropriated funds for the ABA. There is no net addition to the Government
investment in ‘developing the north’ and for this reason, I continue to
assert that this reform is, at its core, essentially rhetorical in purpose.
Yes, it will potentially have substantive impacts (hopefully positive, potentially
negative), but they will not in themselves make a serious difference to the economic
status of Aboriginal Territorians. The amounts involved are, compared to the
scale of the needs, not large enough.
A final Government motivation derives from its deep antagonism to funding social housing
in remote areas, notwithstanding the crucial significance of overcrowding as
a driver of poor social and economic outcomes. This is an issue I have posted about
on numerous occasions previously. The Land Councils have for some years been
pursuing an agenda to establish a community controlled housing entity, an
agenda that I very strongly support. How might a government divert them from
this agenda? By offering an alternative agenda and arguing that it is not
possible to do more than one thing at a time. See my November 2020 post (link
here) where I explicitly canvassed the possibility that the Minister was
seeking to avoid progressing this agenda. The following exchange from the Committee’s
public hearing is instructive:
CHAIR:
Great. Do you see this legislation as the end of the codesign process?
Mr
Nugent (CLC): Certainly not. From the views that've been expressed, and the
documented resolutions of our council, the Central Land Council, there is still
much reform and much to be done. One of the larger reforms that has been sought
was the establishment of an Aboriginal community-controlled housing entity. It
was hoped some years ago, when discussions began with the current minister and
the current minister authorised discussions with his department, that an
Aboriginal controlled-community housing entity would be part of this suite of
reforms. It's a very large and complex piece—housing in the Northern Territory
for Aboriginal people, particularly now in a time of a world-wide pandemic
health crisis. It's absolutely vital. It
was accepted some time ago that this particular piece, the community-controlled
Aboriginal housing entity, still required further work. We're still endeavouring
to engage with the government on that basis. That would be one major piece
that still has a ways to go. (Committee Hearing 18 November 2021, pages 2/3;
emphasis added).
The Land Councils clearly believe they have obtained
adequate concessions from the Government during the codesign process to offset the
adverse implications of the Government’s broader motivations. While that is an
assessment for them to make, for what it is worth, I don’t see substantial
benefits for Aboriginal interests. As I argued in my submission to the Committee
inquiry, I do not accept that there is Aboriginal control over the NTAIC.
Whatever increased influence is obtained (there will undoubtedly be some), it
is partial and leaves open the potential for future co-option by governments regarding
the ongoing flow of funds from the ABA to the NTAIC.
Moreover, as I argued in my submission, the broader risk to
the core statutory role and modus operandi
of the land councils is significant. This risk (discussed in detail in my
submission) goes to the heart of the role of land councils, and to the very raison d’etre for land councils to have
a role in negotiating third party land access on Aboriginal land in the NT. So
too is the risk of economic loss significant if the NTAIC decides to adopt an
active (as opposed to passive) investment strategy.
The huge and largely unpublicised increases in Land Council
budgets that I pointed to in my November 2020 blog post (link
here) is in retrospect directly relevant to the ongoing negotiations over
the ABA and ALRA amendments. As I said then, Ministers generally expect a quid pro quo for these types of decisions.
We can now see that whatever concessions were provided in return for these
budget decisions relate to the provisions of this Bill. Without open and
transparent process, codesign can easily slide into back room dealings. The
fact that the Minister made no mention of the codesign process then underway
when he announced the $100m for the land councils (by the way making him complicit
in the secrecy that many of the critics – including Aboriginal critics – allege)
only reinforces the reasonableness of a deeply sceptical perspective on the
process adopted. In hindsight, it is clear that my 14 June 2021 post on the
Minister’s first announcement of his proposals (link
here) was correct in warning of the need for close consideration of any
reform proposals.
Under these changes, the Land Councils have achieved only
partial control over the ABA. A partial reform may seem attractive, but it can
also operate as a rationale for leaving the status quo in place. One of the
lessons I have learned over my career in public policy is that real reform is
hard, and in particular, there are always unintended consequences. The risk of
negative unintended consequences with these reforms strikes me as particularly
high.
The Minister and the Land Councils should take careful note
of Shakespeare’s warning: Our wills and fates do so contrary run!
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