Beyond communal and individual ownership: Indigenous land reform in Australia

Leon Terrill 2016 Routledge Complex Real Property Series, Milton Park and New York, 303pp, ill., maps, ISBN 9781138853911 (hbk), ISBN 9781315722474 (ebk)

A perceived dichotomy between communally held land and individual ownership reverberates in debates about Indigenous land reform within Australia and internationally (Fitzpatrick 2006). Promotion of home ownership emerged in the past decade as a means to address the economic gap between Indigenous and non-Indigenous Australians. The rationale was encapsulated in the phrase of former Australian Government Minister Amanda Vanstone--'land rich but dirt poor is not good enough' (in Terrill 2016, p.2). Aboriginal land tenure formalisation was seen as facilitating the participation of Aboriginal and Torres Strait Islander peoples in the mainstream economy (Pearson and Kostakidis-Lianos 2004). The policy debate about whether Aboriginal land should be communally owned reached a tipping point in the period 2004-07. It precipitated a series of government reforms, particularly in remote Aboriginal communities.

Terrill characterises the debate as 'widespread, intense, significant, divisive and deeply flawed' (p.5). By contrast, his carefully researched, well-evidenced and comprehensive analysis marks a thoughtful response to the debate and an evidence-based evaluation of the leasing, housing and Aboriginal land tenure reforms of this period. He critically examines the rhetorical insistence around the need for land tenure reforms, premised upon a growing political consensus about the inadequacy of communal land holding. The consensus that emerged in the dominant political discourse around the ideal of individual economic freedom and home ownership, Terrill suggests, references deeper dualisms and embedded cultural tropes that identify communal land holding with static Indigenous communities. He argues that stereotypical views about traditional versus progressive Aboriginal and Torres Strait Islander societies were played out in a contest over 'culture' (see Altman and Hinkson 2007). Terrill's book 'reflects a deliberate attempt to remove discussion about indigenous land reform from the ideological sphere and recast it primarily as a technical issue; a technical issue of such complexity that it cannot be adequately comprehended on the basis of mere intuition' (p.291).

Stereotypes informing the Indigenous land reform debate were reinforced by two prominent international theories around land reform --evolutionary theory and tenure formalisation or 'security'--with the extensive literature on these theories reviewed in Chapter 2. In particular, the chapter analyses the influence of de Soto, who argued that tenure formalisation allows land to serve as a security interest to generate investment and ultimately leads to the establishment of viable land and housing markets. The promotion of the 'market', without sufficient examination of its applicability to the complex Indigenous land tenures in remote communities, is one of the deficiencies identified in Terrill's evaluation of the reforms.

Overall, the book presents a significant analytical and empirical investigation of the second phase of land tenure reforms in Australia. While the periods of Aboriginal land law reforms in Australia are not fully separate, Terrill focuses on changes to the manner in which land was 'owned', which he argues is characteristic of the second phase of reforms. It was preceded by major first-phase reforms such as the Aboriginal Land Rights (Northern Territory) Act 1976 and the Native Title Act 1993 (Cth). Indeed, the book commences with a discussion of the shift from land rights to Aboriginal land tenure reform. Moreover, the investigation of the reforms carefully distinguishes between 'Aboriginal land tenure' as a reference to the rights and responsibilities held under Aboriginal law and 'Aboriginal land' as Aboriginal-specific land holding under mainstream law.

Terrill's analysis of second-phase reforms is premised on three arguments. First, the divisive terms of the debate meant the 'wrong issues were addressed'; second, the reforms were flawed in implementation; and, finally, there are better ways of developing a land reform model for Aboriginal and Torres Strait Islander communities. A key finding is that rather than delivering individual autonomy, the reforms resulted in 'governments playing a more embedded and controlling role in the management of remote communities' (p.14).

Three sets of Indigenous land reforms in the period since 2006 form the basis of the empirical case studies (see especially chapters 6 and 7). The first set hinged on the Northern Territory National Emergency Response Act 2007 (Cth) (the Intervention), which had significant tenure impacts --for example, the introduction of five-year township leases and Aboriginal land access permit changes. The second group centred on Indigenous housing and infrastructure, particularly in remote communities, with township leasing identified as the 'most complete land reform model that the Australian Government has yet developed' (p.173). The final set relates to recent 'allotment' legislation in Queensland. 'Allotment' refers to the subdivision of communal lands into individuated parcels of freehold land (p.200).

Leon Terrill's book arises from his PhD thesis, but draws on his earlier experience as a lawyer with the Central Land Council in the Northern Territory--where he dealt with the impacts of the reforms on a daily basis. The blend of theory and practice is evident in Terrill's detailed description of Indigenous land tenure across Australia, and specifically the comprehensive overview of Aboriginal land laws in the Northern Territory in Chapter 3. The meticulous collation of information about Indigenous land tenure is a considerable achievement, given the overlapping land laws and administrative and policy frameworks across Australia (even if the detail is a little overwhelming at times). The book also provides a grounded account of the statutory land law reforms initiated by the Commonwealth, an analysis that makes technical legal constructs, such as leasing, more accessible through diagrams and accompanying explanation.

In Chapter 4 Terrill's analysis of the mandatory formalisation of the informal tenure arrangements (communal land) and dispersed governance in remote communities is illuminating. It reveals that these arrangements were 'developed, relatively structured, stable, inexpensive' (pp.17, 94-114), as well as a 'sometimes effective and sometimes flawed system of allocating land and infrastructure' (p.17). Subsequent chapters discuss how tenure 'reforms' affected relationships within the communities, revealing how particular groups were disadvantaged by the new leasehold models and how power shifted in relation to community governance. Similarly, the examination of housing reforms in remote communities in Chapter 7 explores the financial assumptions underpinning the reforms, which resulted in housing that was out of reach for many families. As Terrill notes, 'the problem here was poor economic modelling, not tenure' (p.224). Terrill also signals a growing awareness that robust markets for home ownership in remote communities may not be possible without public subsidisation (p.225).

Accordingly, Terrill suggests that, '[presenting the outcome of the reforms as the introduction of individual ownership or private property is in most cases simply wrong' (p.5). Further, resort to the terminology of individual title, home ownership, markets and economic development continues to reinscribe a normative understanding of property regimes that does not align with the reality of the Aboriginal land tenure and housing reforms examined in detail by Terrill. Arguably, property rights and land tenure constitute not only a technical legal framework, but embed structured relationships within communities. Many arguments for tenure reform present the relational aspects of land law and property rights as normatively benign. Yet, as Terrill demonstrates in chapters 6 and 7, the dimensions of Aboriginal land tenure reform, such as the introduction of rental payments for housing, produce new sites of control for governments and new interactions between members of Aboriginal communities.

In the final chapters, Terrill does not seek to provide a best practice model for land tenure reform in Aboriginal and Torres Strait Islander communities. Instead, he outlines a two-step process, first identifying the main variables (i.e. the underlying land use authority, the approach taken to allocation of land, and the form of tenure granted to occupiers; p.258). He calls for attention then to be directed to three cardinal issues: an assessment of market conditions, understandings of benefit provision and models of governance. Ideally, these issues should be addressed before a land reform model is developed. In highlighting the importance of governance, he reaffirms that the capacity of communities to effectively govern themselves is an important determinant as to how tenure reforms contribute to long-term cultural and economic development goals. In tandem, a careful assessment of how governments exercise authority in communities through tenure reforms is also imperative (p.264).

Finally, Terrill notes the importance of acknowledging the unique elements of the Australian Indigenous land reform context that render inappropriate a simple comparison with other countries (p.295). He stresses that future Indigenous land tenure reforms should be based on a more carefully developed policy. This book will contribute much to a more clearly articulated understanding of land tenure reforms and to the careful evolution of policy and reform in the future.

Reviewed by Lee Godden, Melbourne Law School, University of Melbourne, <l.godden@unimelb.edu.au>

REFERENCES

Altman, J and M Hinkson (eds) 2007 Coercive reconciliation: stabilise, normalise, exit Aboriginal Australia, Arena Publications, Melbourne.

Fitzpatrick, D 2006 'Evolution and chaos in property rights systems: the third world tragedy of contested access', Yale Law Journal 115:996.

Pearson, N and L Kostakidis-Lianos 2004 Building Indigenous capital: removing obstacles to participating in the real economy, Cape York Institute, Cairns, Qld.