By Leon Gettler - courtesy of The National Indigenous Times - The author of this article, Leon Gettler is an award-winning author and freelance journalist, commentator, lecturer, and speaker on issues which cover a range of areas including politics, history, strategy, globalisation, leadership and all the big trends ahead. He is a popular weekly columnist at Business Spectator and also writes for publications including The Fifth Estate, Public Accountant, Charter, CRN and ProPrint. Leon manages two blogs: the CEOs Desk which appears three times a week for The CEO Institute and Green MashUp published by The Fifth Estate. Other publications Leon has written for include The Age, Sydney Morning Herald, the Herald and Weekly Times, the Australian Financial Review, BRW and AAP. Leon is the author of two books, An Unpromised Land (Fremantle Arts Centre Press, 1993) (winner of a National Book Council Award) which focused on the Kimberley area in north-west Australia and Organisations Behaving Badly (John Wiley, 2004). He is now working on two more books, one on why organisations screw up and another on how companies should adjust to an ageing workforce.
Native Title holders are claiming some federally funded Land Councils are treating them like children and doing nothing to help them get their claims up. And with land claims left unresolved, it opens the way for State governments and mining companies to give notice of intent to move and build stockpiles and rail lines on sacred land.
As Vince Lockyer, 68, from Port Hedland puts it: “The State Government and the mining companies to me are no better than the Taliban because they go in and destroy any religious sites,’’ he said. “They are no different to what they do in Afghanistan.”
And it isn’t just in Western Australia. Land Councils have been investigated by the New South Wales Independent Commission Against Corruption for working with carpet baggers and taking kickbacks to develop pockets of prime empty land.
An ICAC inquiry heard of proposals in 2005 to “butter up” officials in local Aboriginal Land Councils to induce them to enter into joint ventures. It’s a far cry from their statutory role of assisting Aboriginal communities.
Was this the outcome envisaged when Parliament debated and passed the watershed Native Title Act in 1993 and when it was amended in 1998?
More recently, allegations about fraud, theft and tax evasion have been levelled at former members of the Bunurong Land Council in Victoria coming out of a Federal Government-commissioned investigation into how the Land Council used funds generated on major State projects.
The former Land Council members who are under suspicion have registered a new breakaway group called the Bunurong Land and Sea Association. This group is now seeking Native Title rights to a vast tract of Victoria, from Melton in Melbourne’s north and across the south east growth corridor to Wilsons Promontory.
Troy Rugless, one of Australia’s most successful indigenous businessmen, suspects the La Perouse Land Council in Sydney may be up to “shifty” business. A former footballer who played in the knockout competition and whose grandfather was part of the Stolen Generation, was actually knocked back when he applied to join the Land Council there.
“They put it on me they needed proof of my Aboriginality.’’ Rugless says. “I was black enough to play in the knockout competition but now they want proof of my Aboriginality? I am blacker than them.”
Rugless runs a successful facilities management business which, significantly, received a major contract from the Defence Department in Sydney Harbour under the Indigenous Opportunities Policy.
Rugless says he wanted the join the Land Council to help build job opportunities for Indigenous youth.
“That’s the only reason I’m joining, I’m not joining for anything for me to benefit from,’’ he says. “To me it’s about helping the community.”
He believes he was knocked back because the Land Council didn’t like the idea of a sharp businessman coming on board and asking hard questions. They just want yes men.
“I think the problem is they put in place there who they want, that’s not going to see through what they are up to. I think they’re just letting people on who would go with the flow. I reckon they’re up to shifty things,” he said.
If the assertions by these various critics of Land Councils are right, it would appear the Aboriginal Land Councils are violating the Native Title Act. They are failing to move the land owners, sitting on assets worth billions of dollars, from welfare to self-sufficiency and economic empowerment which is what Land Rights is all about. Land Rights recognise Australia, contrary to the claims of Prime Minister Tony Abbott, was not “unsettled” before the British invaded.
The Land Councils, or Native Title Representative Bodies, were appointed under the Native Title Act of 1993 to assist Indigenous people making Native Title claims to the Federal Court.
Their job is to appear in court on behalf of Native Title claimants, respond to “future act” applications where for example, a mining company proposes to operate on land that’s either under Native Title or subject to a claim and to negotiate for Indigenous Land Use Agreements.
Under Section 203BB of the Native Title Act, Land Councils are required to “assist registered Native Title bodies corporate, Native Title holders and persons who may hold Native Title (including by representing them or facilitating their representation) in consultations, mediations, negotiations and proceedings”.
Now there are proposals for a radical breakaway group. Indigenous corporate lawyer Bevan Mailman is setting up a business, that will be run by land owners, to look after their interests. He sees the business could become the model for Indigenous communities across Australia. That would put the Land Council administrators out of a job.
Mailman says what is needed is a “proactive” and commercial approach to Indigenous land management which is underpinned by a long term economic vision. Economic empowerment of Aboriginals can only happen at a grass roots level, he says, not from the Federal or State governments or Land Councils.
“Sitting back without the appropriate corporate structure in place and waiting for a multi-billion dollar mining company to knock at your door backed by a top law firm is leading to situations where communities are fractured due to the pressure to cut a deal and piecemeal outcomes; an approach that cannot lay the economic foundations for future generations,’’ Mailman says.
“To put that into perspective, from a say $20 billion land asset, Traditional Owners get a return of a few million at best, which is not even enough to run a solid corporation, let alone provide real value to the many Traditional Owner families. When a dollar value is placed on community fracturing, reduced rights to land and the time and money spent to get a deal over the line (let’s not forget the return that should be expected of an asset worth billions), the return to Traditional Owners from mining agreements currently is negative and by a significant margin.
“At a base level, what is needed is a relentless focus on real Indigenous economic empowerment, not for the few but for the Traditional Owner group as a whole. At present, everyone benefits but them.
“That means better corporate and governance structures for Traditional Owners, potentially under ASIC, need to be in place before mining companies show up. This approach brings Traditional Owners together and gives them better leverage at the negotiating table. Economic empowerment also means trusts should be managed as far as practical by Traditional Owners.
Land owners say white lawyers on the Land Councils are treating them like children. Geri Hayden, Chairperson of the Gnaala Karla Booja working party working toward a claim in the Noongar country in south west of Western Australia, says lawyers on the South West Aboriginal Land and Sea Council tried putting the Indigenous people on codes of conduct.
As she says, codes of conduct come down to the same old story: white settlers telling Aboriginals what to do. The fact these are the people who own the land and who are in effect actually the Land Council’s clients, is ignored.
The Noongar are one of the largest clan groups in the country, numbering some 30,000.
“At the beginning of the year, they (the Land Council lawyers) did up a generic code of conduct and gave it to all the working parties and all working parties had to endorse it,’’ Hayden says. “They didn’t endorse it.
“They are frightened of going to the meeting and having Aboriginal people speak the way they do.
“Some of the lawyers are very rude. We have our meetings and I am the Chair and instead of doing the Chair’s role, I would be cut off by the lawyer. If I let people talk this lawyer will jump up and close the session. He will rudely interrupt me.”
She says the legal team treats Aboriginals with the kind of disdain no lawyer would ever show their client.
“We don’t see the head of the legal team, she never attends our meetings,’’ she says. “We don’t know who is in there from one day to the next. We have had four lawyers within three years.” The lawyers, she says, have gone on to work for mining companies. “Whoever has the most money,’’ she says.
She says when Land Council lawyers come to meetings, they insist on chairing. Their clients are not allowed to do it. And in the end, the community is left in the dark with what’s happening with their land claim. “We just don’t know what’s going on with the settlement. We have had three years of negotiation and we’re no closer to getting it,’’ she says. “We were led to believe we were signing off in March and nothing happened.”
The Noongar say the Land Council is pushing them to sign a deal to give away their land to mining companies in return for $1.3 billion. The Noongar don’t want the money, they want their land which is worth closer to $20 billion. And they resent the Land Council pushing them into that position. The problem the Noongar are facing is they have no corporate structure to represent them.
The problem, she says, is they still have to get permission from the Land Council, along with local government and the Department of Parks and Wildlife to use their land.
“With the settlement we won’t own nothing anyway,’’ she says. “Everything comes with an attachment. Lands that are in the settlements have attachments. If they are not used within a certain amount of years they will go back to government. We want to use our land and do what we need to do and practice our culture. We still have to get permission, we won’t be able to light a fire when we want to light a fire. They can acquire it.
“There is no equal partnership. Nobody has got permission to use the land.”
Pastor Miranda Gore, a leading figure in the Kimberley district, is having similar problems with the Land Council there. According to its annual report, the Kimberley Land Council is sitting on $13.1 million of cash. All that cash when most of the Kimberley Traditional Owners are living in close to third world conditions!
“When we want information regarding ancestral records, the Land Council would get their lawyers to contact us and the lawyers would ask why we need it,’’ Gore says. “They make excuses and talk their way around it. When we tried to push our claim forward in 2013, they said we would have to wait until 2016 but it felt like they were stalling us so they could line things up with mining companies. Then all of a sudden, we find out a mine wants to sign a deal and we’re all under pressure. Why did we not get our plan registered before they showed up so we would have a good position to negotiate from?”
One of the big issues there, she says, is the Kimberley Land Council had established KRED Enterprises, ostensibly to develop business and job opportunities for Kimberley Aboriginal people, on behalf of the Foundation. KRED newsletters show there are plans to build cattle stations on Aboriginal land.
“KRED Enterprises proposes a group of pastoral stations STAND TOGETHER as a pastoral consortium,” Gore says.
The landowners oppose it. “They came with the proposal but they don’t have the okay of the people,’’ Gore says.
The Kimberley Land Council, a Federally funded body, has refused to provide any newsletters and notices to Gore. She claims they told her no newsletters and notices shall be given to the general public. She says the people on the Land Council and especially the non-Indigenous ones talk to the Land Owners as if they were children.
“It’s not their land, it’s not their country, they don’t care,’’ she says.
The Kimberley Land Council has not responded to the claims.
Lockyer is from the Kariyarra people who have spent nearly 30 years trying to get a parcel of land near Port Hedland, Australia’s economic heartland. Port Hedland is the world’s biggest bulk export terminal and will reach its maximum export capacity in the next three to five years.
BHP Billiton wanted to boost its export capacity by building a $20 billion outer harbour although softening iron ore prices has put that on ice. About $150 million worth of exports goes through the port every day, totalling 350 million tonnes a year.
Lockyer says with all the economic value there, the parcel land his group wants to claim stretching some 483,817 hectares is worth billions.
“It’s worth a lot,’’ he says. “The value of real estate in Port Hedland would be the highest in the country. People there are paying anywhere from $1,000 plus a week in rent. You try and buy that land from a mining company and it would be worth billions, you would end up with no change.”
The problem is his people have been locked in a land dispute with another group, the Nyamal. The Kariyarra are coastal Aboriginals and the Nyamal are inland. The Nyamal moved on to Kariyarra land in the 1950s following the strike of Aboriginal workers in 1946 on the eastern side of Port Hedland, bringing their customs and tribal lore with them. Outnumbering the Kariyarra, they put a claim on the land saying the Kariyarra didn’t know how to manage it.
Lockyer says the Nyamal have close family connections with the Pilbara Aboriginal Land Council. He claims they also have ties to the State Government through the former Premier Peter Dowding who has obligations under Aboriginal tribal lore to ensure the well-being and interests of the Inland tribal group known as the Mugarinya Community Association Incorporated into which, he has been initiated, is foremost and above that of other Aboriginal groups, including Traditional Owners on whose country the immigrant inland group, now reside.
A 1988 homeland movement land application failed to get up. This is despite anthropologist reports showing the Kariyarra had a proven connection with the land since the time of sovereignty which, is essentially what Mabo was about.
Lockyer says the Land Council subsequently put up a combined claim for both groups which, curiously, did not include Lockyer’s family or associates who have had to fight for nearly 20 years to be included. That combined claim got knocked back by the Federal Court.
Lockyer has spent years conducting a war of correspondence with the West Australian bureaucracy trying to get his people’s claim up, sending off letters to the then Premier Alan Carpenter, State land services and the Department of Planning and Infrastructure.
The letters reveal the frustration of not receiving updates, replies or information, despite undertakings by the government. (“I would appreciate if you would be so courteous as to provide an answer within a reasonable time of two weeks upon of receipt of this letter,” says one of Lockyer’s letters dated November 19, 2007) and incredulity at the way the Department of Indigenous Affairs had misinformed the Department of Planning and Infrastructure. If nothing else, the letters reveal the bureaucratic hurdles land owners have to go through.
Lockyer says the Land Council in his region is in breach of the law by not assisting all groups and individuals that may have a title claim.
“The Land Councils have never tried to correct the problem,’’ Lockyer says. “It has been allowed to go on. We are the persons who hold Native Title. They write letters to us telling us they will do things and they don’t do it. Their actions speak louder than words by keeping us out of the claim.
“The Native Title Act speaks for itself. If they are not abiding by their obligations under the Native Title Act, they should not be in a position to handle Native Title claims. They are not providing facilitation and assistance to all people who may hold Native Title.”
That leaves a big parcel of land unclaimed which suits the West Australian State Government and mining companies. Under Section 26 of the Native Title Act, the State Government and mining companies can put in an intention to claim land that has not yet been claimed. BHP Billiton has signalled its intention to apply for the entire claim area in Port Hedland, covering some 17,050 square kilometres.
“That is why the Native Title representative or the Land Council are not progressing the claim. It allows mining companies and the State Government to acquire land,’’ he says.
The result, says Lockyer, has seen the construction of rail lines and stock piles which have destroyed much of the environment including the delicate mangrove ecological system which can never be replaced. The problem, as Bevan Mailman says, is the Land Councils are working to different agendas that will prevent the economic empowerment of land owners and keep them impoverished on welfare. It’s ignoring the vision of the ground breaking Native Title Act post-Mabo.
“Traditional Owners are not being provided with the robust professional advice necessary to lay the foundations for future generations. When this happens and a few other things align, this country will shift,” Mailman said.
