Pulling apart the spin... line by line, and lie by lie
Pulling apart the spin... line by line, and lie by lie
Issue 107 - 15 Jun 2006
SOURCE: NATIONAL Indigenous Times
ISSUE 107, June 15, 2007: The federal government announced last week it was planning to amend the ALRA, so NIT has decided to reproduce the press release that accompanied the announcement in full... with a rebuttal of each piece of media spin put forward by the Minister for Indigenous Affairs, Mal Brough. The text in bold represents the Minister's claims. The non-bold text represents NIT's rebuttal. The information has been compiled with the kind assistance of some of the nation's leading experts on the ALRA.
THE SPIN: "Indigenous Affairs Minister Mal Brough has today introduced into Federal Parliament a Bill which is set to improve opportunities for Indigenous people on community land in the Northern Territory."
THE FACTS: A report released by Oxfam Australia last year into the government's proposed tinkering of the ALRA found no evidence whatsoever that creating private ownership on communal land would produce any benefits for Aboriginal people. Indeed, Aboriginal people themselves have not requested private ownership of communal land. It was the Howard government's idea, backed by the NT government and the National Indigenous Council, a hand-picked Howard government advisory board.
THE SPIN: "The amendments to the Aboriginal Land Rights (Northern Territory) Act 1976 will allow changes to land tenure in Aboriginal townships, streamline processes for land development and raise performance and improve accountability of Land Councils and royalty bodies."
THE FACTS: The reforms will vastly reduce the independence of land councils and range of activities. The only increased accountability will be to the federal minister, not Aboriginal constituents. The amendments will also create major governance problems, with small, under-resourced land councils forced to negotiate with large government bureaucracies and cashed up mining companies.
THE SPIN: "The reforms to the Land Rights Act will help create future opportunities for Aboriginal people. These amendments allow for 99-year leases which will make it easier for Indigenous people to own a home or establish a business in Aboriginal townships," Mr Brough said.
THE FACTS: What the government amendments will actually ensure is that traditional owners will forego their ownership of land and the associated rights to control entry onto their land.
THE SPIN: "People will be assisted to buy their own home through funding available from the Home Ownership on Indigenous Land Program, which provides low interest loans and other assistance."
THE FACTS: NIT challenges any Australian to go a community like Wadeye or Maningrida and come to the conclusion that what they need first and foremost is an LJ Hooker office. What they need is access to jobs, education, health and public housing. You can't build a private housing market in a community that has virtually no government services. It's ridiculous to even try. But let's assume someone actually purchases a home in, for example, Wadeye. What, exactly, do they own? An asset is only an asset when you can sell it. If you can't sell your asset, then it becomes a liability. In the case of a $300,000 house that's 30 years old, has 20 people living in it and is situated in the middle of nowhere (ie. in a place that has no jobs and thus no housing market), it's not only a very expensive liability, but you've spent a lifetime servicing it.
THE SPIN: "The rights of Traditional Owners will be maintained and the land will remain inalienable Aboriginal freehold title."
THE FACTS: The rights of traditional owners will be trampled. The Australian Capital Territory has similar land ownership legislation to the Northern Territory. In Canberra, when you buy a home you don't actually buy a freehold title, you buy a house with a 99-year lease, or the balance. At the end of that lease period, the lease will simply be renewed and you retain ownership. The ACT experience makes for an interesting comparison with the federal government's claims on Aboriginal land in the Territory. The Coalition is arguing that if you lease land off Aboriginal people in the Northern Territory for 99 years, you don't own the land - it remains in Aboriginal ownership. But in the ACT, if you lease land for 99-years, you own it. The argument is clearly nonsense. In truth, occupation is nine-tenths of the law. If you have a 99-year lease on Aboriginal land, you own it.
THE SPIN: "The reforms are the result of almost 10 years of consultation between the Australian and Northern Territory governments and Land Councils and Indigenous communities."
THE FACTS: Not quite true - home ownership only emerged as in issue in 2005. Regardless, the legislation put up by the Coalition goes way beyond what was agreed by the land councils. For example, the land councils never agreed to amendments that would see their security of funding wiped out but according to statements by the government the amendments "closely resemble" what has been negotiated with the land councils. This statement is absolute rubbish.
THE SPIN: "I hope these changes motivate other state governments to amend their Indigenous land legislation to facilitate similar opportunities for Indigenous Australians who reside on community land," Mr Brough said.
THE FACTS: How, exactly? Other states and territories have different provisions to the NT. That said, it's not unthinkable that the other states will try and undermine Aboriginal land rights as well - the NT scheme is, after all, a Labor proposal. ALP national president, Warren Mundine has publicly taken credit for the Howard government's assault on communal ownership. He claims to have devised the scheme during his time on the Howard government's National Indigenous Council. The NIC subsequently rubber-stamped the idea for the federal government.
THE SPIN: "The 2006-07 Budget sees the allocation of $107.5 million towards the expansion of the Indigenous Home Ownership on Indigenous Land Program."
THE FACTS: One of the great pointers to the stupidity of this part of the legislation is the fact the government is having to put in $100 million of taxpayers' money to get the scheme started. So the million dollar question is ?'Why won't the banks - the people who specialise in home loan finance - bankroll the scheme? The answer is simple - the banks know it won't work. They wouldn't touch it with a barge pole. The government, however, will because what it loses through lending to create an unviable private home ownership market it will more than make up for by raiding the additional royalties held in the Aboriginals Benefit Account (more on the ABA below).
THE SPIN: "The new tenure arrangements contained in the Bill will enable Aboriginal people in the Northern Territory to access this new program."
THE FACTS: The new tenure arrangements in the Bill open the door to the loss of Aboriginal land to large multi-national companies. The explanatory memorandum that accompanied the Bill to federal parliament last week revealed what the legislation was actually designed to do. Under the heading ?'Objectives', the government explains: ?'The principal objectives [of this bill] are to improve access to Aboriginal land for development, especially mining, to provide for the establishment of devolved decision making structures for Aboriginal people, and to improve the socio-economic conditions of NT Aboriginal people.'
Summary of legislative changes
THE SPIN: The legislation enables the Northern Territory Government to establish its own legislation to administer the township leasing scheme.
THE FACTS: It's possible that may never happen. NT Chief Minister Clare Martin negotiated the town lease scheme with the federal government with no consultation with her parliamentary colleagues, cabinet or the ALP caucus. When it was discovered what Martin had done, ALP Labor in the Territory nearly imploded. Factions in the party forced the issue to be investigated through a caucus committee, where it currently still sits. There are no guarantees that it will ever emerge from the committee, meaning the NT government may never formally adopt the scheme.
THE SPIN: The Northern Territory Government can establish an entity to talk with the Traditional Owners and the Land Council of a particular town area to obtain 99-year head-leases over township areas. The entity will issue long-term sub-leases to town users without the need to negotiate case by case with Traditional Owners and Land Councils.
THE FACTS: The reason for this provision is to remove control over the growth of townships that have sprung up on Aboriginal land in the Territory. Currently, governments must negotiate with traditional owners about the future of a town. The legislation proposes that they don't have to in future if they convince traditional owners to sign over control of the town through a head-lease. A head-lease means that the NT government owns all land in and around a township. The government says the scheme will be voluntary - it will not be. Traditional owners will be forced to either sign a head-lease or be refused future government services in their communities.
THE SPIN: The terms of the head-lease will be negotiated with the Traditional Owners and Land Councils, except for a statutory ceiling (five per cent of the land's value) on the annual rent payable to the Traditional Owners.
THE FACTS: Placing a five per cent cap on the amount of rent payable ensures that Aboriginal people will never be able to get more than what the government says their land is worth. It is an outrageous proposition - no other land-owners in the country are subject to this sort of legislation. Even worse, the only financial benefit you can receive from the head lease is rent, which the government then tells you how you can spend. In addition to this, the government media release doesn't identify where the rental money paid to Aboriginal people comes from. There's a good reason for that - it comes from Aboriginal people. The government is planning to use the Aboriginal Benefits Account (which holds royalties earnt from mining on Aboriginal land) to create a bureaucratic structure that will administer the leasing scheme and pay the rent to Aboriginal communities. So Aboriginal people are to be paid rent with their own money, which they then use to rent back their own land. If you tried to pull a similar scam on any other Australian citizen, you'd be jailed (or lose office).
Quicker processes for exploration and mining
THE SPIN: Currently the Act provides for a negotiating period for exploration licence agreements of 12 months with the option of regular unlimited extensions. The time frames are essentially open-ended. The Act will be amended to provide for a core negotiating period of two years, to allow the NT Government to set deadlines to bring negotiations to a conclusion and to withdraw a company's consent to negotiate where it has not seriously pursued negotiations.
THE FACTS: Exploration License Agreements (ELAs) for mining have been processed in a timely fashion by land councils, but sometimes warehoused by mining companies.
THE SPIN: The legislation will provide for the transfer of certain decision making (e.g. monitoring negotiations) from the Australian to NT Government.
THE FACTS: This is akin to giving Imelda Marcos the keys to your shoe shop and telling her to ?'knock yourself out'. It is the NT government, after all, which went behind the backs of the land councils (in spite of a public agreement not to do so) to negotiate a separate deal with the federal government for the town lease scheme.
THE SPIN: Retain the power of Traditional Owners to withhold consent to exploration.
THE FACTS: The power to veto exploration (in other words to say no to a mining company) is the most important part of the ALRA. But a ?'right' is worthless if you lack the capacity to make an independent, informed decision. By undermining the large, well-resourced land councils the government is ensuring that the right of consent is also undermined. It's like being told you have the right to go ice skating in the middle of the desert. Great in theory, ridiculous in practice.
THE SPIN: Currently if Traditional Owners veto exploration the land becomes subject to a five-year moratorium. The Act will be amended to provide for the lifting of the five-year moratorium period at any time that Traditional Owners agree.
THE FACTS: On the surface, it looks like a reasonable legislative change - blackfellas refuse an approach by a mining company, but have the option to change their mind inside the existing five-year moratorium. It was an amendment sought by the NT land councils. But in concert with the rest of the ALRA amendments, it's not helpful. Once Aboriginal traditional owners say no to an exploration application the federal government and the mining company no longer have to wait five years for another tilt - they can immediately begin pressuring and offering incentives to the Aboriginal community to get what they want. Remember the film ?'Still they keep asking, asking'? (Google it if you don't).
Further economic development proposals
THE SPIN: Increase the lease term requiring Ministerial approval from 10 to 40 or more years.
THE FACTS: It's about bloody time. This is an amendment that was sought by the land councils and recommended in the recent Oxfam report, Land Rights and Development Reform in Remote Australia, because it reduces red tape. As the ALRA currently stands, if you want to lease Aboriginal land for more than 10 years, you need the federal minister to sign off on the deal. Still, it begs the question why any ministerial approval is needed at all. Does Mal Brough genuinely believe he knows more about traditional owners' land than they do?
THE SPIN: Reduce the requirement for Ministerial approval of contracts with Land Councils and Land Trusts from a current threshold of all contracts over $100,000 to only those over $1,000,000.
THE FACTS: This looks like a concession and was in fact another amendment sought by the land councils and also recommended in the Oxfam report. But it's no concession at all if the land councils lose their guarantee of funding. On that basis the federal government could allow land councils in principle to sign deals worth a gazillion dollars. But without financial control by the land councils, the provision is worthless. It's like giving someone a license to drive a car provided they promise to stay away from motor vehicles.
Devolving decision making to regional groups
THE SPIN: Provide for delegation of decision-making powers from Land Councils to regional groups, including decisions about exploration and mining.
THE FACTS: This is the ?'be reasonable, do it my way' provision. It's designed to white-ant the power of the large, well-resourced land councils. If they continue to advocate the interests of traditional owners over the interests of government, they will be de-funded. When the ALRA amendments were first attempted by the Howard government (through the Reeves Review - see page 8), the strategy was to break the four NT land councils up into 18 smaller councils. An over-riding body called the Northern Territory Aboriginal Council (NTAC) would be formed, which would administer the land councils. The practical affect would have been to turn four strong land councils into 18 weak ones. What the government is likely to do now is turn the two biggest land councils in the NT - the NLC and CLC - into NTACs, and then direct them to divest their functions to a myriad of small, under-funded Aboriginal corporations. The NLC and CLC will then become quasi-watchdogs, albeit without any teeth. Their power to advocate for traditional owners' interests will be neutered, while the capacity of small, regional land councils to assess exploration and mining proposals will be non-existent.
Clarifying provisions for the
establishment of Land Councils
THE SPIN: Currently the Act allows new land councils to be established where a "substantial majority" is in favour. The Act will be amended to specify that this requires a 55 per cent majority vote cast by Aboriginal people in the area of the proposed new Land Council.
THE FACTS: This legislative change is designed to make it easier to create wedge politics in Aboriginal communities. The added bonus to the government is that small, funding-sensitive land councils are much easier to control and manipulate than large, well-resourced land councils. They'll either become branch offices of the Howard government, or they won't get funded. Anyone who has ever worked for an NGO (a non government organisation) will tell you it's that simple.
THE SPIN: Any new Land Council will have to demonstrate sound governance structures and the ability to satisfactorily represent all Aboriginal people in its area.
THE FACTS: Hang on a minute, the proposed legislation says the land council only needs the support of 55 percent of the local population. How does that equate to "satisfactorily representing all Aboriginal people in its area"? What happened to the other 45 percent who prefer the status quo? And how, exactly, will this be measured? Simple. Any new land council will first have to demonstrate its willingness to advocate for the interests of government. The Coalition has a long and proud history in this area.
Improving performance and funding of Land Councils
THE SPIN: Fund Land Councils on the basis of workloads and results rather than the number of people they represent or any specified amount of Aboriginals Benefit Account (ABA) funds.
THE FACTS: If only we could level the same legislative changes against white governments! This change goes against the great Australian principle of the ?'fair go'. As a nation, we provide assistance to states, territories and regions based on their population and their need, not their output. What would happen if we applied the government's proposed formula to the NT government, for example? They receive five times the amount of Commonwealth Grants Commission allocations per head of population because Australians recognise the remoteness of the Territory and its cost disabilities and limited capacity to raise revenue. If we funded the Territory on the basis of results and workloads, they'd be out of business tomorrow.
THE SPIN: Ensure transparency in Land Council cost recovery practices.
THE FACTS: They weren't lacking transparency in the first place. The two major land councils in the NT, for example, can be accused of several things (such as being bureaucracies and gate-keepers), but they can never be accused of not having their financial houses in order. The CLC and NLC, for example, invariably receive unqualified audits every year. Indeed, they've been reviewed favourably by the Australian National Audit Office (ANAO) a number of times.
THE SPIN: Clarify that the Commonwealth Office of Evaluation and Audit can investigate Land Councils.
THE FACTS: What's wrong with the ANAO? The only reason to use a special auditor for Aboriginal groups would be because the OEA is less transparent than the ANAO.
Improving the accountability of royalty associations
THE SPIN: Require all royalty associations to be incorporated under the Aboriginal Councils and Associations Act 1976 (the old CAC Act), to be replaced by the Corporations (Aboriginal and Torres Strait Islander) Bill 2005 when enacted.
THE FACTS: The old CAC Act used to be about 180 pages in length. The Howard government recently re-wrote it in anticipation of the break-up of ATSIC and amendments to the ALRA. It claimed the Act would be made more workable and user-friendly - it now runs to more than 550 pages. No small Aboriginal organisation or land council will be able to effectively understand it, setting them up nicely to be wiped out at the whim of government. This part of the legislation is simply designed to bring private Aboriginal entities under government control. In the old days, they called those ?'missions'.
THE SPIN: Clarify that the Commonwealth Office of Evaluation and Audit can investigate royalty associations and improve the oversight by Land Councils of royalty association distributions.
THE FACTS: Royalty associations are set-up to administer mining royalties paid to people in areas affected by mining. The government wants to control royalty associations to ensure money is being spent the way the government deems appropriate (such as on the provision of citizenship services that governments usually provide, like community housing). No other group in Australia would ever be subjected to this type of law or this form of substitution funding.
THE SPIN: Ensure that funds benefit the whole community by prohibiting payments without a purpose to individuals.
THE FACTS: What the government is actually saying is that Aboriginal people must not be allowed to derive personal benefits from mining on their land. Non-Aboriginal people, however, can (people like mining magnate Lang Hancock or a pastoralist who gets compensated for surface disturbance from mining activity). This flies in the face of the government's supposed love of home ownership on communal land. On the one hand, the government is saying that private ownership is the way to go when it comes to Aboriginal housing. On the other, the government is saying that money generated from Aboriginal incomes should be shared by everyone. Socialists! Marx would be proud! There are other problems with this part of the legislation - it pretty clearly disadvantages the traditional owners of a community, who must spend money they earn for the benefit of the community and not just for themselves. It is a racially discriminatory amendment and is in clear breach of the Racial Discrimination Act.
THE SPIN: Apply these accountability improvements to all mining related payments and land use payments by Governments.
THE FACTS: This is counter to normal business dealings that do not require such a high level of scrutiny; basically, it's like the government telling the owner of a small business how they can spend their profits. In an Aboriginal context, it means that traditional owners who lease their land (as at Kakadu) for fees will be severely constrained in how their rentals are used. Ironically, the Howard government is not proposing any greater accountability measures on itself. Quite the opposite, in fact. If it were serious about ensuring money derived from mining on Aboriginal land ends up where it should, it would tighten up the legislation around the Aboriginal Benefits Account (which holds vast sums of money derived from mining on Aboriginal land). But the ABA has provided a very handy slush fund for the Howard government and enabled it to use Aboriginal money to provide public services, thus saving taxpayers money for projects that will win votes.
Aboriginals Benefit Account
THE SPIN: Formalise the Minister's capacity to build up the equity of the ABA to ensure its viability over the long term.
THE FACTS: It's unclear what ?'viability' means given that since it began operation on July 1, 1978 the ABA has always had annual incomes and has always been in the black (unlike some governments). When governments receive royalties they spend them, when Aboriginal interests receive royalties they are required to accumulate them, thus the ABA today has more than $100 million under ministerial control. Surely ABA income and equity should be used strategically not formulaically?
THE SPIN: Improve the operation of the ABA Advisory Committee by enabling the Minister to appoint additional members with professional expertise.
THE FACTS: You can read this simply as ?'We're going to dilute the influence of the ABA advisory committee through ministerial appointments who will be accountable to the minister, not Aboriginal people.' But only one to two? For how long?
Finalisation of the land claims process
THE SPIN: Claims over stock routes that have been unresolved for over 20 years and cannot be heard or finalised will be disposed of.
THE FACTS: Cannot be heard or finalised? The finalisation of a land claim is not the role of a politician. That's why we have courts and tribunals.
THE SPIN: Provide the Land Commissioner with powers to require evidence to progress outstanding claims.
THE FACTS: This provision aims to strengthen the other provisions, namely, to expedite the process of eliminating any future land claims in the Northern Territory.
THE SPIN: Dispose of claims to the intertidal zone and the beds and banks of rivers not contiguous with Aboriginal land. It is not appropriate to grant these narrow strips of land.
THE FACTS: Why is it "not appropriate to grant these narrow strips of land"? No explanation from the government has been forthcoming but what the government is actually saying is "it is not appropriate to lose anymore land to Aboriginal people".
SEE ALSO: The long held ambitions for a bad black land law
SEE ALSO: Tell him his dreaming
SEE ALSO: The final solution
