Taking Aboriginal land

One of the striking features of the government’s intervention in Aboriginal communities, embodied in the Northern Territory National Emergency Response Act 2007 was how rapidly the ostensible motive of intervening to tackle social problems, most notably child abuse, was swallowed by the ideological push to refashion property rights, taking over land owned by Aboriginal communities, with the presumed goal of turning it into individualised private property

A question that’s come up a couple of times and to which I haven’t seen an answer is how this squares with the Constitutional requirement for “just terms” in acquisition of land and other property, and also the statutory requirements of the Lands Acquisition Act (unless these have been overridden by the latest legislation). Is there anyone with a legal background who can comment on this?

Update Several commenters suggest that the focus on the land grab is a reflection of the left’s concern with process issues or political advantage, and a lack of concern about child abuse. So it was striking to read in yesterday’s Crikey a pice by Anna Lamboys saying that that with half of the government’s six-month time frame completed, there are now some figures on
(a) the number of arrests for child sex abuse laid as a result of the intervention
(b) the number of referrals to child protection authorities
Results are over the fold

(a) Zero, according to NT Police Commissioner Paul White quoted in this ABC report
(b) Four, of which two related to sexual abuse, according to Crikey (subscription required)

To quote Crikey’s source on child health, the federal health check teams are only “skimming” the children’s health profiles, with absolutely no guarantees by the Commonwealth of follow up, let alone a long term approach to primary health care in the bush.

“The teams are not picking up the levels of childhood illness we know already are out there.

“It’s a fraud – you couldn’t have designed a better system to sweep illness under the carpet. All the hoopla gives the public the impression that something real is being done.

“In fact by understating the real levels of chronic diseases on communities – which anyone can see in the rates of hospitalisation and early death – it lets the Commonwealth off the hook in terms of really increasing health resources for Aboriginal people.

“It won’t even lead to a band aid solution.”

Of course, this kind of intervention always produces claims and counterclaims. But the government’s decision to use an emergency in health and law enforcement as the pretext for radical changes in the entire structure of communities and property rights virtually guarantees the failure of the original mission, and that failure is now playing out.

38 thoughts on “Taking Aboriginal land

  1. Can I commend the artiicle “Boys, boats, beers and bulldust” by Graham Ring printed oin Online Oinion on 21 August?

    At the June 21 “national emergency� press conference, the Prime Minister reached new heights of hyperbole as he attempted to arrest his plummeting popularity with a barbecue stopper.

    He was variously “sickened�, “horrified� and “unhappy� at the findings of the Little Children are Sacred report, and the inadequate response of the Northern Territory government. But his “resolve was firm�.
    The PM was imbued with pre-election purposefulness as he stressed the crucial importance of the intervention. After sitting on his hands for 12 years, watching the circumstances in many remote Indigenous communities continue to deteriorate, he had finally decided on decisive, unilateral action.

    But now we have a Brough backdown which casts doubt on the whole enchilada.

    The Minister has announced the watering down of his booze ban, which was intended to further restrict the carriage and consumption of alcohol in Indigenous communities. What matter of state, you may wonder, was of such significance that it required the minister to modify restrictions previously deemed integral to improving the lives of black Australians?

    Well, what’s at stake is the fundamental right of whitefellas on fishing trips to be able to sip on a coldie while they battle the barra under an unforgiving tropical sun.

  2. if parliament is breaking a law in taking over aboriginal land, they’ll just change the law. they are the supreme authority here, don’t you agree? with the acquiescence of the gg, of course. since parliament also selects the gg, the acquiescence is pretty secure.

    so it doesn’t really matter, does it?

    life in this medieval oligarchy is quite pleasant for many. but it’s rafferty’s rules, make no mistake.

  3. John if you believe standard property right economics there are efficiency gains in turning common property into private property – at least for people living in a non-hunter-gatherer capitalist society.

    I think ingigenous Australians should be given private property rights to the land they live on and the right to trade it.

  4. hc,

    What do you imagine are the ‘efficiency gains’ will occur as a result of turning common property into private propery?

    World record high housing prices?

    A massively bloated sector based upon land speculation which produces no wealth whatsoever and which the rest of us are obliged to support through high mortgages and rent?

  5. Apologies.

    The first sentence in my previous post should have read:

    What do you imagine are the ‘efficiency gains’ which will occur as a result of turning common property into private propery?

  6. Well if people own land they have incentives to maintain and improve it. These incentives are reduced if the blands is owned ‘in common’ which really can mean no-one owns it.

    If you look at the disgraceful condition of some government-provided housing in aboriginal communities you get the picture. Doors missing, toilets broken and generally everything in a filthy condition.

    Moreover with private ownership, if people want to convert the value of their land holding at Bulamakanka into an urban spread they can do so. To prohibit aboriginals from managing their wealth seems to me paternalistic.

    I think owners of property have more options than ‘tribes’ who are allowed to live on land but cannot sell it.

  7. JQ- I seem to recall that you were amoungst the early crowd cheering in favour of this intervention.

    I actually agree with the idea of individuals having 99 year transferable leases on Aboriginal land as a means of fostering a market for property in these townships. However I see no reason what so ever that this should involve the government at all except in so far as the judicial branch may be called on to enforce the relevant contracts. Inserting the federal government as an agent between the community that owns the land collectively and the end user seems daft.

    The intervention in NT is paternalism prompted by the crowd that keeps on insisting that all problems must be solved by government intervention. All the government sector should have done was lock up the sex offenders (as per existing laws) and abolish the minimum wage in these areas (where inflation is in double digits).

  8. hc,

    I think the causes of the problems you describe are complex. I think they would largely go away if meaningful employment opportunites were provided in these areas (and not through reducing wage levels to slave labor levels as proposed by Terje). This is what former aboriginal Democrats News South Wales Senator Aden Ridgeway once said of Moree where the prosperity brought in by the Cotton industry caused virtually all tensions between the black and white communities to vanish.

    I don’t see that changing land is likely to be the solution. I heard that not long ago, in Vanuatu where the English style freehold land system was introduced only a few years ago, more than 80% of the land now belongs to foreigners (mostly Australians) and most Vanuatans are landless. The same will very quikcly occur in aboriginals if Howard’s laws aren’t repealed.

    The example of the Housing trust of South Australia conclusively shows that commonly owned land can work very well. For decades it provided good quality hosuing to all levels of South Australian society and it never cost taxpayers a cent.

    Money that otherwise would have been unproductively invested in property speculation was, instead, invested in South Australia’s manufacturing sector.

    I think that this experience demonstrates that we could all manage a lot better without all of the overheads required by the private property market.

  9. The mechanisms of the proposal to privatise housing remain delightfully obscure, probably for 2 reasons – 1. they aren’t fully formed ideas just goals that seem inately attractive and 2. that it’s likely to invove some degree of coercive policy to achieve.

    The changes to Indigenous housing policy, particularly ARIA, seem designed with this latter point in mind.

    One underlying assumption, without demonstrable basis in reality, is that Aboriginal Australians living in remote communities want to join the mortgage merry-go-round. I’ve been asking since the policy changes were announced, and have yet to encounter a single person who seems taken with the idea.

    If the housing privatisation push follows in the lead of private vehicles, we’ll see many people either paying off a wrecked car, or defaulting on their loan and losing the house. That will then raise the interesting question of who can the bank sell the house/land to? Anyone?

  10. I think both education and employment are very important. The government or/and the private sector should invest in primary schooling. Australians who want to help(and if circumstance allow them to move to NT) could move to NT and rent land from the Aborginal communities and set up the needed infrastructure. The problem that I see is that these communities are not able(or don’t care to) make decisions and time and again the government is trying to make decision on their behalf. Now the aborginal communities have mostly lived in isolation. There is nothing wrong in living a secluded life but as there are abuses in the community, intervention may be needed.

    Just like in any family the children need guidance from the parents, these communities need directions(atleast for some period of time – although it may initially seem to be paternalistic approach). Now the only way they are going to have confidence in government and the rest of Australian people is when they see them side by side, going to the same school, working on similar jobs.And this will allow them to learn from the whole group. Also as time passes by, they may even loose the sense that they are separate from the rest of Australia. When Greeks and Italians migrated to the Australia occupied mainly by British Australians, they did not live in isolation but they were integrated to the “Australian way”. I think the same could be done with respect to the aborgines if there is an honest attempt to do integrate them to the mainstream.

    I am not sure that this problem can solely be solved by “action from a distance”, meaning people suggesting various ideas from Canberra or Brisbane without actually understanding the social and institutional framework of this community. Most of the ideas coming from conventional economics are useless when agents are not able to make decisions by themselves.

  11. When the poor can be persuaded to part with their property rights for a pittance, I can only think this will result in absolute and total dispossession. Native Title will exist only as a transitory state prior to it’s sale. It will end up being in the hands of the traditional owners of outback land – white, conservative-voting pastoralists. I suppose Howard has been consistent – he’s opposed Native Title since the High Court found it existed, exaggerated it’s extent and impact to create fear (and win votes from the bigots and fearful), legislated to weaken it and challenged agreements that accept and work with it like Wik. People who have values outside the “norm”, with unique rights to land (almost all of it marginal, as they were dispossessed of the best and rest too thoroughly to make claims on it) that derive from 10’s of 1000’s of years of occupation, will ultimately lose it all. Presumably they’ll be dispersed and somehow be successfully assimilated into a mainstream that’s made it clear does not want or in any way value them as they are.

  12. I find this attitude that seems to say “aborigines are too dumb to benefit from being allowed to morgage their land” utterly distasteful. Aussies in general frequently morgage their land. Aboriginies are not inferior Australians.

  13. To address the point John raised, the legislation does attempt to qualify “just terms”, yes. A good commentary on this is the section of the Parliamentary Library’s digest of Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Bill 2007 which begins:

    What is the meaning of reasonable amount of compensation? Does it equate to just terms?
    The proposed compensation scheme could therefore be read as providing that the Commonwealth should provide just terms but if not, then a reasonable amount of compensation is to be paid. Providing a list of issues for the court raises the question of whether the Government is trying to displace the judicial discretion of solatium.
    Solatium is a term basically meaning compensation to a person for non-financial disadvantage resulting from the necessity of the person to relocate his or her principal place of residence as a result of its acquisition.
    Solatium in the context of compulsorily acquiring Aboriginal land has been considered very complex by property valuers. [pp.23-4]

  14. Congratulations Terje. That was indeed a clever attempt to frame the debate! However, the argument is clearly not whether aborigines are ‘too dumb’ to be able to mortgage their land. The question here is one of simple education and information (I use the word information in the broad economic sense). All one has to do is look at the majority of people who have been sucked into the sub-prime problem in the US to realize that it is often the uneducated and/or poorly informed that loose out. However, in the case of the NT communities that are the subject of discussion here I think it would be reasonable to assume that this lack of education and information is much more severe than even those affected by the sub-prime problem in the US.

    People within this section of society are naturally at a higher probability of running into problems when entering into, relatively, complex financial contracts because of their low level of education and low exposure to market information. Both these factors have very little to do with intelligence per se and much more to do with the prevailing socio-institutional environment within which the population in question lives. Aboriginals in the remote communities that are the focus of the federal intervention are not ‘inferior Australians’, but judging by their average levels of education, health, employment etc. are in far inferior circumstances compared to the rest of Australia. It is this issue, not intelligence, that would surely complicate any attempt to enable them to enter into complex individual financial arrangements in the short term.

  15. In regard an outburst of seeming moral self-righteousnessabove, whoever said that the English freehold land system was any better for Europeans than it was for Aboriginals?

    Responsible Aboriginal community leaders understand that their communities as a whole need to be protected from economic pressures that will inevitably come to bear against individuals within their communities if the freehold land system gains a foothold. As I have shown above this has caused native Vanuatans to become dispossessed. If we think about it, the same trend is now occurring in European Australian communities, with ever larger numbers of ordinary Australians losing what should be considered a basic entitlement, that is, the entitlement for a secure roof over their own heads. Instead, they must live with the continuous fear and uncertainty that being forced to rent from a private property owner entails. I have experienced this myself and have witnessed it many times at close hand.

    That allowing land to be bought and sold somehow creates wealth is a clever delusion conjured to suit the purposes of property speculators and others who derive their income from property speculation. At best, it is a zero-sum game. The unearned windfall profits gained by one sector of society are necessarily paid for by the hard work of another. Then on top of that it is necessary to pay real estate agents commissions, conveyancing fees, bank charges, interest, stamp duties, council charges, advertising, legal fees etc, etc.

    How do skyrocketing housing costs of benefit to our society as a whole? As I have also shown above, the experience of the Housing Trust of South Australia has shown that publicly owned housing is far cheaper than the mortgage merry-go-round than many of us have been forced to join. The reduction in stocks of publicly owned housing in European Australian communities has only served to enrich a small unproductive minority at the expense of everybody else.

    Aboriginal community leaders are right to oppose the madness of the property market being extended into their communities.

  16. Terje,

    What I find “utterly distasteful” is the assumption that Indigenous Australians must have the same material/financial aspirations as others to be considered ‘smart’, and then using that straw man as a cheap shot against those who have a different opinion than you.

    Under the ALRA, Indigeonus land owners have always had the capaicty to lease sections of their land for various uses (and have done so). What is different now is the issue of compulsion.

  17. al loomis, I’m not sure what planet you live on, but on my planet the High Court has ultimate responsibility for deciding what is and what is not constitutionally valid Cth legislation. In this context, the GG is an extremely marginal figure, at the very best.

    John,

    My understanding is that the legislation provides for five-year leases over ALRA land and Community Living Areas. The CLAs are effectively freehold. I think there is also the possibility of other ‘acquisitions’ (like the resumption of some NT government leases). So in effect, you’re looking at the compulsory acquisition of leasehold interests.

    Now there’s always been a bit of uncertainty over acquisitions of property in the Territories. At one time the law was that the plenary power in s122 meant that acquisitions of property in the NT did not have to be on ‘just terms’. That is probably not the case anymore, following a series of judgments in which that view has been brought into question.

    The ‘national emergency’ legislation apparently has an each way bet, with lines like: ‘if an acquisition under this Act must be on ‘just terms’, then the Cth must pay “reasonable compensation”…’ Although there is some guidance in the legislation, what is ‘reasonable’ is far from certain, especially when you consider the connection that native title holders apparently have with their land (which is otherwise of little value, given its location and nature). Indeed, it is far from certain whether ‘reasonable compensation’ is the same as ‘just terms’ here. Your underlying query about the constitutionality of compulsorily acquiring leases over Aboriginal land to ultimately turn it into individual freehold (or something similar) is probably very difficult to answer because this would really an intermediate step towards the alleged ultimate purpose. The alleged ultimate purpose is probably not something the High Court would consider, as its inquiry would be narrowly directed at the particular acquisitions the subject of the legislation.

    The reality is that someone will have to take the Cth to the High Court to determine liability for ‘reasonable compensation’ and/or to challenge the validity of the relevant sections on the basis that they purport to authorise the acquisition of property otherwise than on ‘just terms’.

    Cheers
    BBB

  18. What I find “utterly distasteful� is the assumption that Indigenous Australians must have the same material/financial aspirations as others to be considered ’smart’

    If you are an Aborigine with a transferable 99 year lease on communal land then you have the option of using that title to access finance via a morgage. However you also have the option of not accessing finance at all. Giving somebody options is not the same as forcing somebody to use those options.

    There is no assumption in my position that Indigeneous Australians must have the same material/financial aspirations as non-Aborigines just as their is no presumption that any given Aussie should have the same aspirations as any other Aussie. My point was that there is no reason to presume that Aboriginies should be insulated from comparable financial opportunities out of some protective fear for their well being.

    I would also caution against assuming that given the relevant opportunities many Aborigines won’t share a lot of the same material/financial aspirations of other Aussies.

    However, the argument is clearly not whether aborigines are ‘too dumb’ to be able to mortgage their land. The question here is one of simple education and information (I use the word information in the broad economic sense).

    There are lots of people with limited education in Australia. We don’t in general insulate them from the opportunity to access finance. And most people are reasonably aware of their own limitations and in such circumstances will seek advice from those they trust. My father left school when he was 12 (although he then learnt a trade). He spoke no English before he got off the boat in Australia in the 1960s. however nobody prevented him from accessing finance due to a lack of education. And these days we already have in place cooling off periods etc in relation to financial products.

    I do find it disturbing that people are so fearful of seeing Aborigines financially empowered. I do understand that it is driven by a protective mentality but I think it is misplaced.

    Just to be clear let me reiterate however that I think that the government should stay out of the way in terms of such leases. They don’t need to insert themselves as the middle man. There is no reason that communities can’t lease land directly to individuals according to their own terms.

  19. One of the striking features of lefty response to the Northern Territory National Emergency Response Act 2007 was how rapidly the ostensible motive of intervening to tackle social problems, most notably child abuse, was swallowed by the ideological push to discredit the Liberal party.

    One could be forgiven for thinking that your concern for abused aboriginal children extends no further than the next federal election.

  20. I think that the substance to focus on here is that the aquisition of land to behaviour modify a community is setting a precedent. Aboriginals are Australians. They should be more Australian than all other originals put together. So if the government can do this to this particular group then why can’t they do it to, say, the islamic community, or perhaps the bikie community, or the very aged community. And the fact that this action could be performed on other focus groups for a range of reasons, but has not been, very clearly spells out the prejucial nature of what is going on in the northern territory.

  21. That should be prejudicial (I think). Dimentia setting in, which just might make me a good Howard target. I wouldn’t be able to remember who stole my land.

  22. Terje.

    “There are lots of people with limited education in Australia. We don’t in general insulate them from the opportunity to access finance…�

    Sure in general we may not, but in some special situations we do (just look at the legislation on cooling off periods you mentioned!). The point here is that it’s not just a lack of education (which goes far and beyond anything in the average Australian community), but also of information.

    “And most people are reasonably aware of their own limitations and in such circumstances will seek advice from those they trust…�

    Sure, but if the person you go to for advice and trust is also illiterate, uneducated and/or an alcoholic (as a result of the socio-institutional forces at play, not because they’re ‘dumb’) then you may not get the best advice.

    “My father left school when he was 12 (although he then learnt a trade). He spoke no English before he got off the boat in Australia in the 1960s. however nobody prevented him from accessing finance due to a lack of education…â€?

    Once again the straw man. Your father’s success has absolutely no relationship to the argument, unless he did all this while black and in a remote NT town. The point I was making was that: In the short-term allowing everyone in these highly dysfunctional communities access to complex individual financial instruments, when many people are having trouble devising effective budgets that put food on the table, is simply asking for trouble. In the medium term, post-stabilisation, I have no objection to enabling these communities to get as geared up as the majority of other Australians are currently doing, including the large number of successful indigenous Australians living in our main cities!

  23. Terje,

    There was no need for 99y r leases to do what you suggest. Any t/o had the power to lease part of their land to someone who wanted to do so.

    I would also caution against assuming that given the relevant opportunities many Aborigines won’t share a lot of the same material/financial aspirations of other Aussies.

    Perhaps you confuse some underlying motivations. Many people desire to buy their home so that they own their own piece of earth. Security. Indigenous Australians here are already living on their own land. They own it, collectively, freehold. With the power to lease it, or profit from it from mining and toursim (as many do) as they wish.

    There is an interesting story from the Tiwi Islands. Some Tiwi went to England to visit Lord Bathurst, for whom their island is named after, and they asked him the secret of his wealth. His advice to them – never sell your land.

    I do find it disturbing that people are so fearful of seeing Aborigines financially empowered. I do understand that it is driven by a protective mentality but I think it is misplaced.

    You’ve really got to give the cheap shots via straw men a rest.

    The only evidence I’ve seen of fear over financial empowerment is from those who promised “bucket loads of extinguishment” and who argued for the weakening of native title rights in deference to mining and pastoral interests.

  24. John,

    Some various (uninformed) thoughts on the constitutional validity of the land taking. I don’t mean to suggest that I agree with these suggestions — but I think there are some significant potential legal pitfalls facing any dispossessed claimant.

    First, I’m not sure that it’s clear that the rights that the relevant indigenous groups current have are truly proprietary rights. Contrary to BBB’s post, I don’t think that native title is highly relevant in this context — I imagine that most indigenous land holdings in the NT are held pursuant to legislation (eg the Aboriginal Land Rights (Northern Territory) Act 1976), rather than as common law native title. It may be, then, that what such indigenous groups possess is a statutory right to live on Crown property, rather than a proprietary right as such. The fact that, say, the groups can presumably not sell their right (currently) would seem suggestive (though not determinative) of this to me. In short, the Commonwealth taking may amount, in law, to a mere revocation of a statutory right; and, in general, what the Commonwealth may validly grant, it may validly revoke.

    Second, even if the rights are proprietary, query the extent to which this policy amounts to an “acquisition” for the purposes of the “just terms” clause. If the Commonwealth were to acquire the rights for itself, that would be an “acquisition”. If the Commonwealth were to transfer the rights to an unrelated third party, that would be an “acquisition”. However, legislation that extinguishes a collective right to redistribute it in a different form to individuals within the group MAY not, necessarily, amount to an “acquisition”. I don’t really like this argument myself, and I think I would struggle to argue it (in particular, because some members of the indigenous collective presumably ARE dispossessed in favour of others) — but I don’t think it’s completely clear that this policy amounts to an “acquisition”.

    Third, as BBB suggests, query whether the current bench of the High Court would see the “just terms” provision as qualifying the territories power (s.122). I think this passage from the Queensland Court of Appeal in Pauls Ltd v Elkington [2001] QCA 414 at [14] is relevant:

    Regarding legislation made under the Territories power, “it has been held that the limitation or prescription of “just terms” in s 51(xxxi) has no application. See Teori Tau v The Commonwealth (1969) 119 CLR 564. The decision in that case has since attracted a measure of disapproval in Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513; but it is not for us to say that it has been overruled and, until the High Court decides to overrule it, this Court must follow it.”

    In short — and I may be very wrong on this — I think the settled position in Australian law remains the rule in Teori Tau; namely, that the “just terms” provision does not apply in the territories. Whether the present Court would overule Teori Tau (something that the Court almost did but did not do in Newcrest Mining in 1997) is, I think, very unclear.

  25. Pr Q says:

    One of the striking features of the government’s intervention in Aboriginal communities, embodied in the Northern Territory National Emergency Response Act 2007 was how rapidly the ostensible motive of intervening to tackle social problems, most notably child abuse, was swallowed by the ideological push to refashion property rights, taking over land owned by Aboriginal communities, with the presumed goal of turning it into individualised private property

    The Aboriginal permit system had to be abolished or suspended because it would have allowed corrupt or incriminated elders to blackmail store owners by revoking their permit to trade. They could and have blackmailed the entire community and stymied the clean up process. Thats the way the so called “self-determination” process works up there.

    A bit of private property would not hurt Aboriginal owners. Aboriginal social progress is thwarted by the “humbug” system whereby hangers on sponge off anyone in the tribe with a bit of spare cash.

    The liberal-Left combination of “noble savage” tribalism combined with statism is a social disaster. But I guess we must be culturally sensitive and also not break ideological ranks. So nobody ask embarassing questions about the responsibility of tribal elder property custodians who were on watch whilst this happened.

    MOre generally Pr Q’s quibbles about property rights are diagnostic of the liberal-Left’s interminable fussiness over “process”. This is very much fiddling whilst Rome burns. Every day the liberal-Left throws up these smokescreens, tosses red herrings and stalls the process by trying to picking a fight over “rights” is another day that child abusers have a free hand.

  26. Simon2, I think you’re right. I made reference to ALRA land initially, but used the term ‘native title’ rather too loosely later on.

    About your other points: I am no land expert, but I always thought ALRA / CLA land was freehold (and held on trust). So not really the modifiable rights that you would ordinarily think are outside the scope of the ‘just terms’ rule. Still, the devil is usually in the details and the ALRA is probably no exception. If, however, we assume that the underlying proprietary interests are freehold, then it is difficult to see how acquiring exclusive possession, through a compulsory lease, is not an ‘acquisition’ for constitutional purposes. It would make a mockery of the protection in 51(xxxi), don’t you think?

    Cheers
    BBB

  27. What a dose of fun filled nonsense from Jack.

    Many of the “store owners” are locally incorporated bodies, owned by the community.

    I guess they might revoke their own permits. You never know what the crazy “tribe” might do!

  28. Simon2,

    If what you say is correct, and this is Howards way of turning things around, then I suspect that the only thing turned around from this will be the expression, “Abo-giver”.

  29. BBB,

    I’m afraid I’m no land expert either, but I suspect you may be right about the freehold — at any rate, I’m not sure!

    I think my point about the constitutional guarantee (if indeed it extends to the territories) was, if I may say so, a more subtle one. I agree entirely that requiring a leasehold is indeed a “compulsory acquisition”, as I think some of the war-time acquisition cases show. My point, however, is that there may be some argument, at least in the case of some indigenous landholders, that the legislation is converting a lesser title to a more secure title (if indeed this is what’s happening — which I guess relates to the earlier issue as to the current quality of title), so is not an “acquisition”. Presumably, in the limiting case, a statute that transformed (say) a leasehold title into a freehold title for the same holder does not amount to an “acquisition” and reissue of that title. In the same way, I can imagine some argument that — to some extent at least — the current policy does not have that effect. It strikes me that the act of changing a collective title right into a series of individual title rights is perhaps far from the canonical “acquisition” case (where a right is either acquired for the state or for some other third party), and may produce some legal novelties of its own. That said, I think I’d find the alternative interpretation to be both more of a “constitutional guarantee” and more logical myself.

    I suppose my general point — and I think I understand us to be in agreement on this — is that the “just terms” requirement here will probably turn upon a number of different factors in different cases, including the different respective legal positions of a large number of different people. None of which, of course, is to say that it is not a very important issue!

    Simon2

  30. Michael Says: September 4th, 2007 at 12:27 am

    Many of the “store owners� are locally incorporated bodies, owned by the community.

    That would be the same “community” that gave a free pass to the child abusers. My observation is that many (not all) “communities” are covering up, or a front, for Big Men or predatory Alpha males of the Geoff Clark variety.

    Way to go to protect defenceless children.

  31. Sure, but if the person you go to for advice and trust is also illiterate, uneducated and/or an alcoholic (as a result of the socio-institutional forces at play, not because they’re ‘dumb’) then you may not get the best advice.

    Sam,

    If the situation is that dire then I think that the need for some means of private ownership or similar is even more pressing. If the community is disfunctional to the core (as you suggest) then exclusivity of community ownership and control is unlikely to lead to any meaningful progress. In such cases their needs to be some means by which motivated individuals can pioneer an alternative set of choices. And for that to occur you need some scope for individual autonomy.

    I don’t mean to grandstand but the paternalistic logic you offer could be equally applied to the question of whether Aborigines in these communities are up to the task of voting, whether they should be allowed to raise their own kids etc. I don’t see any logic in preventing rightful land owners freely entering into a morgage even if they are Aboriginies living in remote locations. You don’t engender personal responsibility within a community by preventing it.

    Regards,
    Terje.

  32. Simon2,

    Is this whole land shamozzle going to have to be turned around in a few months time, looking at the polls? Can this be reversed?

  33. That would be the same “community� that gave a free pass to the child abusers. My observation is that many (not all) “communities� are covering up, or a front, for Big Men or predatory Alpha males of the Geoff Clark variety.

    I assume your observations (read- wild speculation) are as informed as your knowledge of the workings of remote community stores.

    Beneath contempt.

  34. “If you are an Aborigine with a transferable 99 year lease on communal land then you have the option of using that title to access finance via a morgage.”

    Yeah given the massive demand for housing and commercial development in central Australia I’m sure the banks will be lining up to lend money to people who for the msot part are dependant on work for the dole schemes.

  35. The real absurdity and hypocrisy of this whoel exercise is illustrated by the removal of the power of communities to require permits to enter their land.

    Sly grogging is probably going to expand dramatically as a direct result, especially on currently dry communities.

    Furthermore, in amongst the cant and nonsense, Brough et al defended themselves against claims of racism by pointing out that many of the abusers were non-Aborigines who didn;t live on the communities – miners and farm workers for the msot part exploiting teenage Aboriginal girls for sex in exchange for money and alcohol.

    Abolishing the permit system will simply make life easier for these predators – while the ban on local alcohol sales will make it even more profitable to bring alcohol into the communities.

  36. Terje, I have two questions for you.

    1. Have you ever actually visited an Aboriginal community?

    2. How many Aborigines do you know on more than a superficial level?

  37. Oh and a third one:

    Any thoughts on the millions of dollars defrauded from people in indigenous communities in the 1990s by unscrupulous insurance agents?

    http://www.google.com.au/url?sa=t&ct=res&cd=10&url=http%3A%2F%2Fwww.aph.gov.au%2FSenate%2FCommittee%2Fecita_ctte%2Findigenous_arts%2Faddinfo%2FCompetition_and_consumer_issues_for_indigenous_Australians.pdf&ei=qqziRo3bDoWSiwHk1dSCDA&usg=AFQjCNFKtrRU4J6hxk-EvPl2l3QzHYOm_A&sig2=OFVK2b4IPoIXpXudX-9dyg

    I guess having your life savings stolen is just another term for “economic empowerment”.

    Of course, we need change conditions on these communities. Of course, Aboriginal people should have access to the same economic opportunities as other Australians.

    But the simple painful truth is that many of them are not currently equipped to take advantage of those opportunities. Let’s address that first before we sacrifice people on the altar of free market economics and social Darwinism.

    Oh and let’s not forget that the majority of Aborigines don’t live on the communities, they live in regional and metropolitan cities.

    In terms of living standards, educational outcomes; health outcomes and virtually any other measure, those Aborigines who live away from the communities are still far, far worse off than most other Australians.

    Focusing exclusively on the Aboriginal communities isn’t going to address the problems of the majority of Australia’s Aborigines.

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