News broke today that agreement has been reached between the Commonwealth and the Gumaitj Association in north-east Arnhem Land to promote the first mainland deal for a s19A 99-year lease over the Aboriginal township of Gunyangara (Ski Beach). This deal followed a secret meeting between senior Gumaitj traditional owner and champion of land rights Galarrwuy Yunupingu, Noel Pearson and Minister Mal Brough in early August 2007 and a follow up meeting in late August between Mr Yunupingu and Dr Peter Shergold head of the Department of Prime Minister and Cabinet and a member of the NT Emergency Response Task Force.
Details of the agreement are not yet available, they will be tabled in the federal Parliament today no doubt touted as evidence that the NT Emergency Intervention is working and gathering momentum. And this may be great politics again testing the commitment of the ALP to the Howard government’s ill-conceived NT intervention and more worryingly probably effectively wedging the emerging Indigenous political alliance that is opposing the intervention.
Making the deal with the Gumaitj is puzzling in part because not long ago the Office of Indigenous Policy Coordination was (unsuccessfully) investigating the Gumatj Association for allegedly illegal use of mining royalty equivalents that it receives as a community affected by the major Alcan bauxite mine and alumina processing plant and port. Mr Yunupingu himself has been the subject of considerable negative media attention and vilification owing to his strong personal adherence to elements of Yolngu customary law.
This propsed agreement must be properly contextualized. At present one must assume that it is only an MOU, as under the Aboriginal Land Rights (Northern Territory) Act 1976 it is the statutory function of the Northern Land Council to ensure that the Gumaitj traditional owners of Gunyangara as a group are properly informed and consent to the s19A 99 year lease proposal and that affected communities in North East Arnhem Land have been properly consulted. Even the Australian government has to abide by its laws.
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The proposed 99 year head lease would only cover the township of Gunyangara and not the remaining traditional lands of the Gumaitj. It is noteworthy that this township is itself not far from the mining town of Nhulunbuy and is surrounded by a 42 + 42 year mining tenement. This lease is based on an agreement between the mining company Nabalco and the Commonwealth in 1968 that was bitterly opposed by the Yolngu traditional owners of the mine site. This opposition was the subject of the celebrated case Milirrpum and others versus Nabalco and the Commonwealth that was lost in the NT Supreme Court in 1970.
Under the Aboriginal Land Rights Act traditional owners are at liberty to lease their land (including townships) for 99 years and this has occurred historically in places like Kakadu and Uluru national parks and more recently with the corridor for the Alice Springs to Darwin railroad where it crosses Aboriginal land. But it is unfortunate that there is an apparent element of compulsion in current agreement making to escape the otherwise overbearing elements of the legislated intervention against Aboriginal communities in the Northern Territory. The choice that communities like Gunyangara face is to accept the compulsory acquisition of their townships for five years with the risk that just terms compensation will not be paid; or acquiesce to negotiating 99-year head leases with the certainty that those who sign up early are likely to gain considerable sweeteners that most Australians would consider just their citizenship entitlements.
On the political front, it might be a significant symbolic victory for the Howard government to have co-opted a renowned leader of the land rights movement to its current view that traditional owners of townships should encumber their freehold title with 99-year leases to gain equitable access to public housing and utilities. But on the longer-term policy front this victory might be pyrrhic. One has to ask how replicable is such deal making across the remaining 71 prescribed communities in the Northern Territory that have not signed up to this approach (the other signatory being Nguiu on Bathurst Island), how much will this cost, who will be paying, and is it good public policy to resource those who acquiesce to the ‘stick and carrot’ approach rather than those who are in greatest need?