The protection of property rights in Australia is an important issue that is uniting indigenous and non-indigenous landholders.

Both are concerned that in recent years the introduction of vegetation clearing laws, compulsory property acquisitions and, recently, the Wild Rivers legislation in Queensland threaten their livelihoods. So they are seeking recognition and protection of their rights where they have been removed by environmental and heritage laws, and just compensation if these rights are removed.

One unlikely champion to take a stand on this issue was Peter Spencer. Although his past and business record did not bear close examination, earlier this year Spencer became a folk hero during his hunger strike on his property in southern NSW. Denied use of his land by the commonwealth commitments to the Kyoto Protocol enacted by the state government and denied the compensation that the Australian Constitution entitled him to because the NSW government, rather than Canberra, implemented the land use laws, he decided to take a stand. He certainly won’t be the last.

Surely indigenous and non-indigenous people have a reasonable expectation that control over their land means they will determine future land use and management subject to a fair and reasonable regulatory framework.

This is critical if governments and interest groups are to be dissuaded from seeking to impose their will without fear of legal challenge or the need to consider statutory provisions for negotiation or compensation.

As Noel Pearson has pointed out, the Wild Rivers legislation introduced last year by the Queensland Labor government is symptomatic of the weakness of the system of property rights, and ever-bolder actions will certainly follow if such actions are left unchallenged.

Although the commonwealth Constitution provides for compensation on “just terms” where there is an acquisition of property, this is not binding on the states.

Amendment of the Constitution to make it binding on the states is practically impossible. What may be possible is to use existing provisions of the Constitution to make governments pay “just terms” compensation.

It may be possible in some circumstances to argue that the states have acted as an agent of the commonwealth in implementing environmental laws, , for example where states have acted to meet the Kyoto Protocol on behalf of the commonwealth, or in implementing a Council of Australian Governments agreement, or to protect the values of a World Heritage area.

Indigenous peoples in Australia have been fighting for the recognition of their property rights for the past 200 years. According to Pearson, “that is what the struggle for land rights was fundamentally about”. Yet just as land rights are being gained, Pearson claims “state governments and extreme green groups are legislating to reduce the property rights of indigenous Australians”.

This whole issue is fundamentally about land rights, he says, not the environment.

Some Cape York indigenous groups believe they have a compelling case against the Queensland government for taking away their native title right to “speak for country”; in other words to plan and make decisions for their lands.

They also believe there is a compelling case in relation to the removal of economic development rights by the Wild Rivers declarations. This is because there is a strong argument that the restriction of land use for conservation purposes is an acquisition.

The Wild Rivers Act, like Queensland’s Vegetation Management Act, makes no allowance for provision of fair and just compensation. Indigenous and non-indigenous landholders are not compensated for the loss of property value and property rights that result from any declaration.

The lack of basic safeguards in the Wild Rivers legislation has arguably led to a breakdown of integrity and accountability mechanisms and has perpetrated a serious injustice against indigenous people. A clear example is the decision by the Queensland government to declare the Aurukun wetlands as a high preservation area without consulting indigenous landholders.

The state government intends to place up to 80 per cent of Cape York, including large tracts of indigenous land, under Wild Rivers declarations. Until relatively recently, conservation areas in Queensland such as national parks or nature refuges could only be declared following the acquisition of the land and just compensation to the landholder, or through the agreement of the landholder.

The Wild Rivers Act explanatory notes advise that the level of preservation sought for wild rivers is higher than for ecologically sustainable development but below that generally provided in a national park. ESD is a well-established principle that reasonably allows for development that meets the needs of the present without compromising the ability of future generations to meet their needs.

But Wild Rivers declarations seek to achieve a level of protection closer to a national park, where economic development is virtually prohibited.

For indigenous people on Cape York and elsewhere on the continent, a key concern is the recognition and protection of their rights, followed by compensation for the denial of rights. For many indigenous people it seems ironic that, while they have recently seen the return of their traditional lands, control over these lands is being removed by government at the behest of white-dominated conservation and heritage groups.

Recently, federal Opposition Leader Tony Abbott introduced a wild rivers private member’s bill. The Senate has referred this bill for inquiry and report, with submissions closing at the end of this month. Hopefully this will provide an opportunity for the Senate to give full consideration to the effects of environmental laws on indigenous and non-indigenous landholders, as well as dealing with the integrity and accountability issues that arise where there are inadequate safeguards to landholders’ rights.

The application of the Constitution to provide just compensation where the imposition of such environmental laws removes landholder rights would be an important step to achieving an equitable system. All Australians — indigenous and non-indigenous — deserve just compensation in situations where the imposition of environmental and heritage laws removes their rights as landholders.

Still, there have been advances. Take Cape York, for example. Thanks to Noel Pearson, there are now at least some controls on alcohol in four indigenous communities. Also, the Queensland government is finally providing appropriate police numbers in Aboriginal communities and, thanks to a mix of carrot and stick, at least in Cape York more children are going to school.

But there’s still an enormous indigenous drug and alcohol problem, plus chronic gambling, largely a result of a concentration of unemployed people who aren’t forced to participate in work programs.

Lifting Aurukun school attendance rates from 30 per cent last year to about 70 per cent in 2009 is an achievement of sorts but only because truancy for years has been a way of life in most remote indigenous towns. What’s the point of an education, many Aboriginal people tend to think, when there are no jobs available that require it and no real encouragement to move where meaningful work is available?

For almost a decade in Aurukun, in far north Queensland, pupils had to be taught in all-age clan groups, not standard classes. As a result, only a small percentage of children came to school and those who did achieved little of academic value. Yet it’s years since there has been a successful truancy prosecution in Queensland.

More children are now attending school in Aurukun because parents might otherwise have their welfare money quarantined, but how much they’re learning isn’t clear. Keeping indigenous culture strong remains an ideological priority of school authorities across the country even though it betrays the children, who need a good education in English. As the political Left used to understand, an excellent education, not sympathy and victimhood, provides the best escape from poverty for all disadvantaged children.

In the Northern Territory’s remote schools, pupils are now supposed to receive their instruction in English for the first four hours of the day. This is an improvement but it begs the question of what was previously happening. There are also big issues about the quality of teaching, regardless of the medium of instruction.

Meanwhile, Pearson seems to have been distracted from the work of saving Aboriginal people from semi-permanent welfare dependency by the campaign against the Queensland government’s wild rivers legislation. It is indeed hypocritical of Premier Anna Bligh to commit to indigenous economic development while locking up Aboriginal land.

Pearson is entitled to be indignant that green votes in Brisbane seem to matter more to Bligh than Aboriginal economic prospects, even though, at least in the short term, his vision of dozens of Aboriginal-owned and operated cattle stations and eco lodges may be unrealistic. What matters much more now is breaking the welfare mindset and encouraging people to take the jobs already on offer elsewhere in Australia.

Then there’s the unfolding disaster of the $670 million Aboriginal housing program in the Northern Territory. As is now apparent, $45 million has been spent and not a single house has yet been built. This is yet another case of government doing badly for Aboriginal people what most other Australians have to do for themselves. While those on low incomes ought have first call on public housing, why should it be assumed that government’s job is to house people where they live rather than where there might be better economic prospects?

Federal Indigenous Affairs Minister Jenny Macklin says delays in producing the houses are due to sorting out land tenure and establishing a clear expectation that standard public housing rent would be paid, no matter how tenants treat their dwellings.

However necessary, this objective is delaying housing that’s needed now. These delays seem to be due to bickering between the federal and Northern Territory governments and the usual round of consultations, which inevitably produces a conflict between what tenants want and what government is prepared to pay for.

Readers may recall that a housing “war cabinet” was supposed to have been a key outcome of the Prime Minister’s apology to indigenous people, but, like some other Rudd government programs, it has fallen victim to the tendency to over-promise and under-deliver and to expect to make a difference without antagonising any of the vested interests.

Macklin is a thoroughly decent person who wants to bring about change for the better in Aboriginal peoples’ lives. She seems to genuinely believe the intervention was necessary and wants to continue it.

Her tendency to give everyone a hearing, and to agree with all and sundry, means the intervention that raised such hopes in remote communities is slowly reverting to mind-numbing business as usual. Macklin has even encouraged the idea of an elected national Aboriginal assembly to advise state and federal governments. This would become another grievance factory with status but no real responsibilities.

The intelligent Left and the compassionate Right now substantially agree on what needs to be done. Making it happen, however, will require more money, more time and, above all else, more personal commitment from senior people in government than before.

This could so easily become another demoralising false dawn. Macklin has said she’ll be taking a close personal interest in the Territory housing program. It won’t be enough to don a hard hat for a photo opportunity. To achieve anything of lasting value, Macklin will need to go on sites for days at a time and immerse herself in the detail before things really start to change.

Ross Fitzgerald The Weekend Australian September 26, 2009

The suspension of the Racial Discrimination Act affected Aborigines living outside the prescribed areas just as much as those living in them. It damaged their self esteem and public standing around the country by saying they were so remiss in their roles as parents, guardians, friends and neighbours, that racial discrimination could be used against them as part of a valid solution to their problems.

In order to clean up indecency and moral decay, John Howard banned the possession of pornography, for one. In many ways this was a master stroke in conveying to white middle-class voters and black leaders, just how honorable his intentions were.

How could anyone think that removing sexually explicit images from a community plagued by sexual abuse would not be a good idea?

But as so often happens in social debates on this issue, pornography soon became pawnography. Howard would have found it very difficult to ban porn on Aboriginal communities without suspending the Racial Discrimination Act.

It’s no secret that many leaders in the Aboriginal community have accepted the negative belief systems of the churches about sex and sexuality.

These days some paternalistic elders are only too willing to toe the church line on matters of morality, and white middle-class critics are often too polite to call them out over it.

These bans on pornography damaged Aboriginal culture in a very devious way. They told white Australians that black Australians were so primitive and so base that even depictions of non-violent adult sex had the potential to turn them into pedophiles and rapists.

Much of what the Howard government banned from these communities was category 1 restricted magazines, which are legally available from every newsagency, service station and convenience store in the country. If Aborigines cannot manage to control their lust while viewing magazines that sit alongside The Australian

Women’s Weekly in a newsagent, what sort of people are they?
Nowhere in the original Little Children are Sacred report did the authors call for bans on porn. This approach was white conservative Christian policy. The report’s authors wanted more education and enforcement of the

Classification Act in the NT. They knew that bans on porn in Aboriginal communities would simply say to the general public that they had a genetic predisposition to sexual assault when confronted with nudity and sexual activity. The report even stated that bans on pornography would not be effective.

In case Howard and Kevin Rudd have missed it, Aborigines had been walking around the continent without clothes on and watching others have sex out of the corner of their eye for more than 50,000 years without a problem. Yet as a result of the intervention, Aborigines in the NT are being unfairly discriminated against, both as a matter of social equity and of racial equality.

The original report that lead to the intervention stated that young children were being shown sexually explicit material in an inappropriate fashion. This was largely because many Aboriginal adults had no idea that it was an offence to do so, but mainly because of serious overcrowding. How do you watch a sexually explicit film in private when there are 30 people living in a dwelling?

The porn industry’s national lobby group, the Eros Association, has claimed in a submission to federal Indigenous Affairs Minister Jenny Macklin that the Government’s own censorship bureau is to blame for this situation.

Writing to her about three months before her Government review reported, they said, the community liaison scheme of the Classification Board is funded in part by a percentage of classification fees collected by the commonwealth, including X18+ fees. This scheme includes a permanent and ongoing educational unit with three people in it and a job specification that includes education of the general public about the classification scheme.

Importantly, it contended that this unit has never visited an Aboriginal community over the many years that it has been constituted. Nor has it developed any culturally appropriate translations of the film, publications and computer game classifications. The association maintained that the previous minister should have arranged for this to happen rather than take the populist approach of banning porn. Nowhere in the classification guidelines, the classification code or the Classification Act does it suggest that these films should not be shown to Aboriginal adults (or to any ethnic minority for that matter) or that ethnic minorities may be adversely affected by them. As they argued, this is an important issue concerning free speech, freedom of expression, and especially racial equality.

Macklin’s response to the Eros Association, which pre-empted the federal review’s recommendations by three weeks, politely but firmly rejected their calls for an end to the porno bans in the NT.

In pre-empting the Government’s inquiry this way, she made it clear to white Australia that she thinks that ultimately the colour of your skin determines how you react to sexual imagery and that the Rudd Government will continue to play pawnography games with indigenous culture.