Crikey

Indigenous Affairs Minister Jenny Macklin was advised by her department against formally consulting with Aboriginal people over the compulsory acquisition of their land — because it would be too expensive, tie up too many resources and was unlikely to achieve the government’s desired outcome — according to leaked documents.

The revelations are contained in a suite of sensitive government documents, including private briefings from the Department of Families, Housing, Communities and Indigenous Affairs (FaHCSIA) to the minister, copies of which have been obtained by the National Indigenous Times.

The advice was “read, agreed and noted” by Macklin on March 26, just one week before her government endorsed the United Nations Declaration on the Rights of Indigenous Peoples.

Some of the documents centre around the Northern Territory intervention legislation, and a much-publicised promise by Macklin to amend the controversial laws to make them comply with the Racial Discrimination Act (RDA). The NT intervention legislation remains the only Commonwealth law currently exempt from the RDA, allowing a host of racially discriminatory actions by government including the compulsory acquisition of Aboriginal land for five years.

At the time, the federal government said it was compulsorily acquiring the land to prevent any delay in the provision of housing services to NT Aboriginal communities. But two years on, the government has still not constructed a single home for an Aboriginal family.

Macklin’s deceit also centres around the Tangentyere Council, which holds a lease over the 16 Alice Springs town camps.

The Rudd government had demanded a forty-year lease over the town camps in exchange for $125 million worth of upgrades to homes and infrastructure. But Tangentyere rejected the proposal, saying it didn’t trust government to properly deliver housing for Aboriginal people.

In response, Jenny Macklin announced last month that the government would simply compulsorily acquire the town camps, using the NT emergency intervention legislation.

The leaked documents reveal that:

• The Minister was warned in March this year that if she reinstated the Racial Discrimination Act to the NT intervention legislation, there was a “significant risk” the compulsory acquisition of Aboriginal land for five years would not survive a court challenge.

• Macklin was warned by her department against creating any “formal consultative” process on compulsory land acquisition because it would be very expensive, might not “sufficiently strengthen” the government’s legal position in the event of a court challenge, and was unlikely to get the outcome the government required — “informed consent”. Instead, the official recommends an “informal consultative process on land use approvals which goes some way to providing a consultative mechanism”.

• The government’s current round of consultations with people affected by the NT intervention are aimed, at least in part, at building a better legal case in the event the government is challenged in court. Macklin’s department warns: “[The Australian Government Solicitors] have advised that the addition of [some minor legislative amendments to the NTER Act] will reduce the risk that a court will find the five-year leases not compliant with the RDA. They also note that depending upon the process of consultation during the RDA consultations, this risk may be further reduced.”

• Even if it brings in a range of “legislative and administrative measures”, the government still runs a “moderate to high risk” of losing a court challenge to the five-year leases.

• The minister is waiting until the eve of legislation reinstating the RDA (due by September or October 2009) to decide whether or not to axe the five-year leases, or go to court and try and make a case that they comply with the Racial Discrimination Act.

• Before she does, Macklin is planning to compulsorily acquire the Alice Springs town camps. That’s despite the government promising earlier this year no further land would be compulsorily acquired, and despite signing the UN Declaration on the Rights of Indigenous Peoples just a week after receiving the departmental advice. It’s also despite Australia being a signatory to the Convention for the Elimination of All Forms of Racism, which expressly prohibits the forced resumption of Aboriginal land without informed consent.

The National Indigenous Times asked the Minister’s office on Friday whether it was expediting the compulsory acquisition of the town camps via the intervention legislation to take advantage of the RDA exemptions, and if so, how this fit with Labor’s promises to Aboriginal people and the United Nations.

Macklin issued the following written response:

“The possible acquisition of the town camps would occur under the NTER legislation and is aimed at benefiting the town camp residents.

“We are still hopeful that Tangentyere will accept our offer.

“The potential acquisition of the Alice Springs town camps follows a year of intense negotiation, major government concessions and the allocation of $100 million for infrastructure and housing and is still subject to a 60-day notice period in which all views are sought and will be considered.

“The proposed action in relation to the town camps is solely for the purposes of protecting vulnerable women and children, benefiting the residents and facilitating substantial upgrades to housing and infrastructure in the town camps.”

Executive Director of Tangentyere Council, William Tilmouth told NIT his organisation would not accept the deal currently on offer from the federal government.

This story originally appeared on The National Indigenous Times website . A complete analysis of the leaked documents will be published in the print edition of NIT on Thursday. And Crikey will bring you more information tomorrow on the federal government’s tightly guarded consultation process.