Antinuclear

At the heart of current concerns are two apparent contradictions.

First, to get back their land, Indigenous claimants need to legally demonstrate continuity of rights and interests under traditional laws acknowledged and traditional customs observed and to demonstrate continuity of connection with lands and waters since colonisation. Similar requirements are stipulated in earlier land rights law to demonstrate primary spiritual responsibility for land and to have a right to forage, to economically use, land claimed.

Such special relationship with land that is usually of low commercial value, in turn requires land owners to live remote from mainstream work opportunities. The maintenance of tradition that is required to claim the land, and hold it, geographically disadvantages land holders in their engagements with 21stcentury global capitalism. This also raises important questions about what constitutes ‘economic development’ from the perspective of Indigenous land owners.

Second, in accord with tradition land is inalienable. There was no trade in land pre-colonially and so land was passed inter-generationally on the basis of descent.

I am not convinced that inalienability is a major hurdle to development………

What is more significant, in my opinion, is the issue of property rights and the legal finding that mineral ownership is vested with the crown alongside state assertion of exclusive rights to own and regulate valuable natural resources like fresh water, fisheries and even carbon for commercial purposes….

Unfortunately, the Native Title Act framework provides native title groups a far weaker property right, a mere right to negotiate with a window of opportunity of six months, at best, and a right of consultation, at worst. This has resulted in many benefit sharing agreements, although whether they are equitable remains a contentious point.

And as Indigenous people get back more and more of the continent, political pressure continues to deprive them of ownership of commercially valuable resources: minerals, fisheries and fresh water. And as resource hungry developers look to explore and exploit Indigenous lands, there is a risk that disparities between Indigenous and non-Indigenous Australians might increase rather than decline.

Equally unfortunately, while the dominant approach to Indigenous development focuses on ‘mainstreaming’ the only guarantees that Indigenous people have to resources are outside the market system. So, Indigenous groups may be guaranteed ‘customary’ non-market rights, but not commercial market rights.

The Australian Law Reform Commission has produced the only policy response to grasp this key issue when it recommends that native title rights and interests might be exercised for any purpose, including the commercial alongside hunting, fishing, gathering and trading rights and interests. This is a means to empower Indigenous land owners to have the freedom to make development choice, although such policy reform could exacerbate wealth and wellbeing differentials between those who own land and those who do not.

Others like the White Paper and the Australian Human Rights Commission focus too much on real or imagined over-regulation of Indigenous lands and seek the removal of what Mick Gooda and Tim Wilson refer to as ‘red and green tape that stifles Indigenous development’. This all sounds too much like Keating’s warnings about ‘workability’ and risks change that will be structural and disempowering of the Indigenous disadvantaged in favour of the rich and powerful.

It might be timely for those who champion ‘rights to development’ to advocate for stronger Indigenous property rights either by making them inclusive of commercial rights, at best, or by making them the equivalent of the free prior informed consent rights proposed by Justice Woodward and embedded in land rights law nearly 40 years ago.

Such advocacy might see prospects for Closing the Gap enhanced for those Indigenous people who prioritise development in the mainstream while simultaneously enhancing livelihood prospects from alternate forms of development for those who choose otherwise.

As the Broome Communiqué of May 2015 noted there are tensions between cultural matters, environmental protection and development objectives. Stronger native title property rights are a potentially important means to ameliorate such tensions.

A version of this article was published in Land Rights News Northern Edition August 2015/Edition 3.