Native Title to become national path to indigenous land acquisition?


After years of bitter conflict there’s no place in Australia where changes to the Native Title legislation and management are more relevant than in Alice Springs.
On the 20th anniversary of the Mabo High Court decision, the main bullet points for the Federal Government are:-
• The management of the Indigenous Land Use Agreements (ILUAs) will be transferred from the Native Tribunal to the Federal Court. This was announced in the Budget. Shadow Attorney General George Brandis told the Alice Springs News Online that the Coalition, if elected, would return the responsibility to the Tribunal. ILUAs result in the lifting of Native Title from land in exchange for compensation, so that the land can be used for other purposes, as it was the case in Stirling Heights and Mt Johns Valley.
• The onus of proof will remain with the claimants: governments on behalf of the public will not be required to prove that Native Title does not exist on public land over which Native Title is being claimed is. In other words, it’s not assumed that Native Title exists everywhere, unless proven otherwise. Activists are pushing for this to be changed.
• There will be a review of Native Title organisations. That, clearly, is nowhere as pressing as in Alice Springs where the actions of Lhere Artepe, under its past management, have caused massive upheaval amongst native title holders and have had a significant impact in the town generally.
• Parks and reserves can be claimed under Native Title (and can be subject to ILUAs).
• Both Indigenous Affairs Minister Jenny Macklin and Attorney General Nicola Roxon, in speeches celebrating the Mabo High Court decision 20 years ago, made links between Native Title, which does not necessarily convey possession of land, and landrights, which conveys inalienable freehold title. (Inalienable means the land cannot be sold or mortgaged but there is now broad recourse to long-term leases.)
The Alice News has chronicled for years the consequences that have flowed from the recognition of Native Title over substantial areas in Alice Springs (google our archive). Here is a potted version.
Soon after the formation in 2002 of Lhere Artepe, the prescribed Native Title body corporate, it did a deal with the NT Government (Claire Martin was the Chief Minister) for residential land at the western edge of the town, now called Stirling Heights.
The negotiations were protracted while land and housing prices skyrocketed to Sydney levels.
Ms Martin, in an apparent move to reward Aboriginal interests for electoral support to the ALP in the preceding two decades, agreed to give Lhere Artepe 50% of the publicly owned Crown land in exchange for the extinguishment of Native Title over the other half.
That put the value of Native Title at 50% of freehold. In WA the value has been put at around 5%.
In Alice this deal was not meant to be a precedent – but it sure turned out to be.
The same formula was applied in the Mt Johns Valley development, now nearing completion, a subdivision of some 30 blocks.
Suddenly, Lhere Artepe was swimming in money or rather, assets or future assets, with block values around $300,000.
Through its then CEO Darryl Pearce, Lhere Artepe became a player in the real estate business, using a string of “related” entities, such as Lhere Artepe Enterprises Pty Ltd, to do deals.
It took on the development of its half of Mt Johns.
To do this it bought a civil engineering company, with money borrowed in part from a lender who is not part of the mainstream banking system.
Lhere Artepe also talked the Feds into giving them a $6m gift to buy three small supermarkets, including liquor licenses, for $14m.
The engineering company went broke, owing local businesses an estimated $2.5m.
At least one of the supermarkets, Federal funding notwithstanding, had been mortgaged to pay for the subdivision development.
The subdivision is now nearly completed but sales are slow, in part because of the local economic downturn to which extortionate land prices have contributed: things are coming full cycle.
All this proceeded mostly in strictest secrecy, with Lhere Artepe staff – mainly Mr Pearce – not communicating multi-million dollar decisions to the native title holder membership of Lhere Artepe.
Lhere Artepe Enterprises Pty Ltd has nothing to do with Lhere Artepe Aboriginal Corporation (the prescribed body), was the standard response.
All this led to sustained, virulent and personal conflict within Lhere Artepe itself.
Some of its members were on the boards of the various commercial “entities” that had been set up, but were kept in the dark about the decisions being made on their behalf. Some may now be liable for paying the debts, while some others still live in tin sheds with hardly any services, on the fringes of the town.
And Alice Springs as a whole is in its most serious economic crisis, with productive people leaving town, unable to afford accommodation for themselves or their staff, and unproductive people from outlying communities “urban drifting” into town, overcrowding public housing.
Parallel to all that, also driving people out of town and keeping tourists away, are escalating crime and anti-social behavior which – according to the script – the granting of Native Title should have helped relegate to the past.
So, in its Native Title reforms, how is the government going to go about creating “economic and social opportunities for Indigenous Australians”?
Statements by Ms Macklin and Ms Roxon make it clear that they want there to be more than symbolism.
Ms Macklin: “Reforms … will also help Indigenous people to unlock the economic benefits of their Native Title.”
And: “As the Native Title system has matured, the role of Native Tile organisations has changed. Now is an appropriate time to review how they can best work for people in the future.” (Many people in Alice Springs, including native title holders, would applaud that.)
And: “We know there is work still to be done. The realisation of the economic potential of property rights remains out of reach for many Indigenous people.”
Ms Macklin says an objective needs to be “to drive economic opportunity and prosperity, including from land, for Indigenous people”.
Although a conference in Townsville that Ms Macklin addressed on June 6 had Native Title as its subject, she made significant reference to landrights. (Native Title, with its source in Indigenous law, applies across the nation, while statutory landrights, where communal title is recognised by government, are significant mostly in the Northern Territory and South Australia.)
Ms Macklin said in part: “We must continue to respect the communal and inalienable basis of traditional lands and, at the same time, ensure pathways through which Indigenous owners can make that same land attractive for commercial investment where they choose to do so.
“In the context of statutory land rights, we have approached these issues by pursuing voluntarily negotiated long term leases … the beneficiaries of [lease agreements over land held under landrights legislation] are the land owners who decided to grant the lease so that they could benefit from investment, and so that their communities would have more choices and better services as a result.”
This is a process currently relating to landrights, not Native Title.
Is Ms Macklin’s raising of both concepts in one breath a sign that Canberra will allow Naive Title claims to become a path to land ownership, this time across the whole nation?
MHR for Lingiari Warren Snowdon did not reply to a request for an interview.
Shadow Attorney General Senator George Brandis says the government has already gone ahead with reforms without adequate public consultation.
“We remain to be persuaded that the Native Title Act needs to be re-written,” says Senator Brandis.
“We are concerned that this top down revision will create confusion, cost and delay.”
He and Territory Senator Nigel Scullion would “closely observe the process” and announce the full Coalition policies closer to the election.
Meanwhile, around the country the subject seems to be a yawn: the telemovie Mabo, directed by Alice Springs’ own Rachel Perkins, flopped on the ABC, according to The Australian, rating 544,000.
(The Pommie soap Downton Abbey rated 1,345,000 on Seven in the same time slot. The other two commercial networks scored 700,000 and 439,000.)
PHOTOS: A story about a battler who doesn’t give up is always a fascinating yarn and Mabo is a great example.
Jimi Bani (The Straits) as Eddie and Deborah Mailman as Bonita are an appealing couple. The sometimes dry legal cases in Queensland and finally the High Court – changing Australia’s history – are lightened by the touching love story between the two.
The low TV ratings are a surely not reflection on the skills of Alice Springs raised director Rachel Perkins (Bran Nue Dae) but show that Native Title is not uppermost in the mind of the average Aussie citizen.


  1. In terms of white man’s law, there is actually no such thing as “extinguishment of native title”, uhh … even if all the original indigenous people have died, the land must then become a DECEASED ESTATE … do you understand?

  2. The indigenous are not “DECEASED” as you have assumed. I assure all, that there are still many indigenous persons very much alive. Each and every one are deserving to their rights, as they are descendant of the original people of the land.


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