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Chapter 13 - The permit system and Indigenous Art
13.1
This chapter briefly explains the permit system that applies to some
Aboriginal land, the legislative framework that underpins it, and examines how
its operation can impact on Indigenous art and artists. The Minister for
Families, Community Services and Indigenous Affairs, the Hon Mal Brough MP, has
issued a Discussion Paper calling for a review of the permit system, and
possibly its abolition.[1]
A brief review of the paper, its rationale for reform, and some initial public
response is included.
Background and legislative framework
13.2
Several submissions raised issues about the permit regime governing
access to Aboriginal artists on recognised Aboriginal land, particularly in the
context of the debate on so-called 'carpetbaggers' and their activities. It has
been argued by some witnesses that a strengthening of permit conditions and
enforcement may be a solution to carpetbaggers taking advantage of poorly
educated artists in isolated communities.
The permit system is really important for us. I think we should
keep permits because when people come then there is guidance for those people.
They should come with a permit. The permit system stops people coming in from
all over the place.[2]
13.3
There appeared to be general support for the permit system within
Aboriginal communities, as they see it as a mechanism to manage their land. For
example, the Yirrkala Dhanbul Community Association described the benefits it
believes it receives from the system:
The permit system helps to make Aboriginal land accessible to
tourists, visitors and workers. It also protects the privacy of Aboriginal
people, takes care of the environment and promotes safety. There are many
areas, which are considered sacred or significant, and the system helps visitors
to avoid causing offence or disrupting cultural activities.[3]
13.4
Currently, permits are required for entry to almost half of the Northern
Territory and some Aboriginal lands in South Australia, Western Australia and
Queensland. The legislation covering Aboriginal land and its access comes
under state jurisdiction, however as the Government of the Northern Territory
is accountable to the Commonwealth Government, its legislation is derivative
from Commonwealth legislation.
Northern Territory
13.5
Permit laws empower Indigenous communities to control their land and who
has access to it. This is achieved through a system whereby people wanting to
enter Aboriginal land need permission to do so (with some important exceptions,
including members of parliaments and government employees authorised by the
relevant minister). Land Councils can also decide to make areas or roads open,
thus not requiring a permit.[4]
13.6
The Commonwealth Aboriginal Land
Rights (Northern Territory) Act 1976 (ALRA) enables the
permit system on Aboriginal land in the Northern Territory. The following
summarises the key aspects of the relevant legislation in the Northern
Territory.
Aboriginal Land Rights (Northern
Territory) Act 1976
- Section 70 makes it an offence for a person to enter or remain on
Aboriginal land except (among other things) in accordance with the ALRA or with
a law of the Northern Territory (penalty: $1000).
- Section 73 gives the Northern Territory Legislative Assembly
power to make laws regulating or authorising entry onto Aboriginal land, but
any such laws must provide for the right of Aboriginals to enter such land in accordance
with Aboriginal tradition. Such laws have effect to the extent that they are
capable of operating concurrently with Commonwealth laws.
Aboriginal Land Act (NT) 1992
- Authorised by section 73 of the ALRA.
- Section 4 makes it an offence for people to enter or remain on
Aboriginal land (and certain roads) without a permit (penalty: $1000).
- Section 8 says the legislation does not authorise the entry of a
person to a dwelling without the permission of the owner or the occupant.
'Dwelling' includes the living area of a camp occupied by or belonging to an Aboriginal
person.
- Section 11 empowers the Administrator on the recommendation of a
Land Council to declare an area of Aboriginal land, or a road, to be an 'open
area' or an 'open road' which can be entered without a permit.
- permits can be issued by:
- the
traditional owners of the area concerned
- the
relevant Land Council
- the
Administrator of the Northern Territory – where a person has applied for a
permit to use a road and has been refused or the permit has not been issued in
a reasonable time
- the
relevant Northern Territory Minister – in respect of certain Commonwealth or
Northern Territory Government employees
- the
Land Council and the traditional owners can revoke their own or each other’s
permits and delegate their authority to issue permits. With some exceptions
permits are issued without charge.
Aboriginal Land Rights (Northern
Territory) Amendment Act 2006
- New subsection 19(13) provides for a Land Trust to authorise
persons to enter or remain on land for a purpose related to an estate or
interest granted by the Land Trust under section 19. There is a related new defence
for entering Aboriginal land in accordance with such an authorisation in new
subsection 70(2B).
- New subsection 70(2C) inserts a broad defence in relation to a
leased township under section 19A. It provides that it is a defence if a person
enters or remains on a part of a leased township for any purpose related to the
use or enjoyment of an estate or interest, including subleases, in the leased
township by the owner of the estate or interest. This significantly relaxes the
permit system in leased townships. People who have a valid reason to enter a
leased township, including for example customers of businesses or visitors of
residents, will not need a permit.
- Commencement of these new provisions was on 1 October 2006.
Trespass Act (NT) 2004
- Section 5 creates an offence for trespass on premises.
- Section 4 defines 'premises' as a building or structure, whether
permanent or temporary and whether fixed or capable of being moved, a dwelling place,
any part of a yard, garden or area (whether enclosed or not) or a vehicle.[5]
The states
13.7
The permit systems of the other states, such as Western Australia, Queensland
and South Australia vary both between and within the states. In Western
Australia, the permit system is governed by the Aboriginal Affairs
Planning Authority Act 1972 (AAPA), in conjunction with the Aboriginal
Communities Act 1979 (ACA).[6]
Section 7(1)(b) of the ACA allows a council of a community to make by-laws
relating to community lands with respects to 'the prohibition or regulation of
the admission of persons, vehicles and animals to community lands or a part of
he community lands.'[7]
13.8
The process and procedures of state legislation do not appear to have
fundamental differences to the Northern Territory legislation apart from its
ultimate authority. Common features include request for access to the community,
a fee which is paid to that community, and variation on the type of fee given
the length of stay and intended purpose. As the states' legislation is not
derivative of Commonwealth law, they have the provision to preserve their
permit systems unless an agreement is reached with the Commonwealth through
negotiation.
Debate about the permit system
13.9
Notwithstanding the control that the permit system gives to Indigenous
communities, there has been criticism of the system over the past few years. Reform
was recommended in 1998 by the so-called 'Reeves Report' conducted by Barrister
John Reeves, which reviewed the ALRA. In summary Reeves found the following:
- In many respects the permit system is a carry over from the
native welfare system that applied to Aboriginal reserves in the Northern
Territory prior to the introduction of the Act. Under that system, Aboriginal
people were not allowed to travel off those reserves without permission and
other Australians were not allowed to enter those reserves without permission.
Whilst the former aspect has not been retained in the permit system, the latter
has.
- It is patently clear that the permit system is in need of reform.
- If the permit system were removed and Aboriginal people were
provided with similar rights in relation to their land to those held by other
Territorians, Aboriginal people would not be disadvantaged in the process.
Indeed, in my [Reeves'] view, they would be considerably advantaged by being
unburdened of a system they do not support and from the improvement in race
relations that would probably follow as a result of the removal of a racially
discriminatory measure.[8]
13.10
Reeves recommended that:
- Section 70 of ALRA should be repealed;
- that Part II of the Aboriginal Land Act (NT) should be repealed; and
- amendments should be made to the Trespass Act (NT) (as set out in
this paper above) to make it applicable to Aboriginal land and to allow
Aboriginal landowners to make better use of it. [9]
13.11
In 2002, in response to a journalist's refused request to have access to
Port Keats to report on the funeral of a young man shot by police, a Northern
Territory Magistrate, David Loadman, challenged the right of Aboriginal
communities to ban outsiders from entering their lands arguing the public right
to know.[10]
Minister Brough's discussion paper
13.12
In October 2006 the Department of Families, Community Services and
Indigenous Affairs (FASCIA) released a discussion paper[11]
which examined the permit system on Aboriginal land in the Northern Territory
and the relevant enabling Act, the Commonwealth's Aboriginal Land Rights (Northern
Territory) Act. The Commonwealth does not legislate for jurisdictions other
than the Territory in relation to access to Indigenous communities, and the
states are responsible for their own legislation in this regard.
13.13
The Minister for Families, Community Services and Indigenous Affairs,
the Hon Mal Brough MP, announced on 12 September 2006, the Commonwealth's
reconsideration of the Northern Territory legislation. The Minister's view was
that the increased external scrutiny on remote Indigenous communities would, on
balance, better support the interests of victims of crime, and better protect
the disadvantaged and vulnerable, in what are otherwise relatively closed
communities. The FASCIA discussion paper was prepared in light of this
announcement.
13.14
FASCIA argued in its review that, while the permit system was originally
designed to protect Aboriginal people from negative aspects of modern society,
it might have also contributed to restricting Aboriginal peoples' access to the
advantages of modern society and from mainstream social and economic benefits.
The department also pointed out that the current permit system might impede on
checks and balances of criminal and unhealthy behaviour by restricting access
to remote communities, and that it may also have reduced the level of
engagement between Aboriginal people and the mainstream economy, thus
preventing Aboriginal people from benefiting fully from their land rights. It
was also argued that the current permit system has not prevented instances of
drug trafficking, violence or abuse from occurring in many remote communities.[12]
13.15
A new access system could provide a number of benefits, including the
ability of Aboriginal people to engage in the mainstream economy unhindered,
ensure open access to public space while protecting the privacy of private land
areas and residences, improve external scrutiny to protect vulnerable community
members, and be simpler for governments to administer.[13]
13.16
FASCIA outlined a number of options for the implementation of a new
access system for Aboriginal lands. In summary, these are:
- amend the existing legislative framework for the permit system, noting
the new provisions for authorising access associated with estates or interests
granted under section 19 of the Act;
- provide open access to communal or public space and maintain the current
permit-based system of restricted areas to non-public spaces;
- widen the current permit-based system by expanding the categories of
people eligible to enter Aboriginal land without being subject to permission;
- reverse the current restrictive permission-based access system to a
liberal system with specific area exclusions;
- remove the permit system altogether and replace with the laws of
trespass, with any necessary modification for Aboriginal land.[14]
13.17
While the submissions received in response to Minister Brough's
discussion paper have not been published, there has been some public response
by interested parties.
13.18
Preliminary debate about what became of Minister Brough's proposal
elicited response prior to the publication of the Discussion Paper. On 1 June 2006 the Central Land Council (CLC) issued a press release that argued:
Calls for the permit system to be abolished on Aboriginal land
are motivated purely by self interest the Central Land Council said today. “It's
amazing that 30 years on people still see Aboriginal freehold land as some
public space which they can exploit for commercial and recreational purposes
without regard for the traditional land owners,” CLC Director David Ross said. “Claims
the permit system slows down economic development for remote Indigenous people
are a bizarre twist of logic"[15]
13.19
The Ngaanyatjarra Council provided this committee with their submission
on the Minister's paper. The Council concluded that if the permit system were
abolished then:
[this will] inevitabl[y] open up Aboriginal communities to
exploitation and eventual takeover by business interests and powerful
individuals from outside the local area.[16]
The permit system and Indigenous art
13.20
Evidence presented at the Alice Springs' hearing for the inquiry claimed
that police find the permit system of assistance in locating 'people of
interest' on Indigenous land.[17]
Mr John Oster of Desart said:
One of the things that police get involved in from time to time
is permit regulation. They from time to time ask people to show their permits.
They have said to us that occasionally there are people of interest on lands.
The police are interested in the permit system. We support the retention of the
permit system. We think that it is very important. At a meeting on 12 October our
executive discussed this and unanimously these Aboriginal people called for the
retention of the permit system.[18]
13.21
Mr Marawilli stated that ANKAAA favoured the permit system:
The permit system is really important for us. I think we should
keep permits because when people come then there is guidance for those people.
They should come with a permit. The permit system stops people coming in from
all over the place.[19]
13.22
The Northern Territory government expressed a similar view:
I know that the Northern Territory government’s submission to
the minister for Indigenous affairs, Mal Brough, argued against any lifting of
the permit system from Aboriginal communities. In the context of arts and
crafts centres or arts centres, and we have done a paper on this called
‘Cultural monopolies’, there is a big threat of opening up particularly our
major communities.... If the threat of lifting the permit system and having other
investors or developers going in and being in competition with those
well-established arts centres were to happen, that would create a number of
crises.... With the permit system and the need for it to be removed, that is
misguided and needs more thinking through. The Aboriginal land rights act is
the enabling act, but the permit system is actually under the Aboriginal Land
Act of the Northern Territory. We as a government have given a commitment too
that we would not agree to any process of lifting the permit system.[20]
13.23
At the same time, lack of enforcement means in some cases individuals
without permits may be accessing Aboriginal land and taking advantage of
artists. Although Ms Annette Cock of the Warlayirti Artists Aboriginal
Corporation supports the permit system, she gave an example demonstrating its
limitations:
We had a notorious carpetbagger from Perth show up and walk into
the arts centre with a canvas that he had provided on of our artists with. He
was putting pressure on our artists...I rung the police and said: 'This is the
situation. This person is here. They haven't got a permit. He is actually
encroaching on our artist.' The police could not attend to that at the
moment...so I had to personally make sure that that person was escorted out of
the community.[21]
13.24
There can be some confusion as to who has been issued a permit and who
has not, particularly where several different organisations or individuals can
issue permits, or where direct personal relationships with key members of the
local Indigenous community have a bearing on the ability to access permits. The
following exchange between the committee and witness Mr John Ioannou, at the Sydney
inquiry hearing on 23 February, stands as an example.
Mr Ioannou—Yes. The head office knows as
well. They wrote to [journalist] Nicholas [Rothwell] after that article and
said, ‘Look, you said that he had a permit to go into our lands and pay charges
or whatever and the reality is that he doesn’t have a permit and that he
shouldn’t even be there.’ So Nicholas rang me up and told me, and I said: ‘Look,
I’m sitting next to the chairman. If you want to talk to him, he can explain to
you whether I have a permit or not.’ So he said no and he left it at that. Then
the chairman wrote another letter to the head office and they did not reply to
him...
Senator MOORE—When did the permit discussion
happen? I do apologise, but we have nothing here except the article from the
newspaper.
Mr Ioannou—It was probably in November.
Senator MOORE—And, as of today, which is the end of
February, you still do not have a formal permit to enter the lands?
Mr Ioannou—From the head office, no, but I
do from the local community.
Senator MOORE—Are you going to do anything about
that?
Mr Ioannou—I spoke to the chairman of the
council, and they said: ‘Just leave it; it’s fine. It has all been taken care
of.’ So my understanding is that it has been taken care of.
Senator WEBBER—Where do you regard as home? Where do you
live? I live in Perth.
Mr Ioannou—That is a hard question. I
probably live most of my time in Irrunytju.
Senator WEBBER—Does everyone else who accesses that
community need a permit?
Mr Ioannou—Yes.
Senator WEBBER—So, if other art dealers want to come in,
they would need a permit?
Mr Ioannou—Definitely. It is a closed
community. The only reason I was asked to do what I did was because of my
closeness to Tommy Watson and a few of the other people who lived in that
community.[22]
13.25
Evidence presented at the inquiry indicates support for the retention of
the current permit system.[23]
Nonetheless, concerns remain and it is not assured that the current
arrangements protect Indigenous artists, or cannot be subverted. The example
given by Ms Cock demonstrates that the permit system requires enforcement, and
if the police or other agents are unavailable, the unscrupulous can still take
advantage of artists.
13.26
As Mr Ioannou confirmed, all art dealers wanting to enter a community on
Aboriginal land would need permits. In small communities, where one visiting
(or residing) dealer has a close relationship with a community chairperson or
governing body, that relationship could be used to seek to restrict access by
potential competitors. Mr Ullin, who was generally supportive of the permit
system, spoke about an experience of this nature, where someone had refused him
access, despite conversations with artists which had suggested they wanted him
to visit. He observed:
That is the downside sometimes of the permit system if you have
someone who is quite discriminatory about whether you should come in or should
not come in. But basically I think it does give them some control. I think they
have a right to their land and they also have a right to say, ‘We don’t want a
million visitors coming in here all the time.’ But again, it needs a judgement
from the community itself as to whether or not they want you to come in. I do
not have a problem with it.[24]
Conclusion
13.27
The committee recognises and deeply respects the importance of
traditional land to Indigenous communities, and notes the review of the permit
system currently underway. In the context of this inquiry, the key issue
remains whether the current permit system helps or hinders unscrupulous
operators from accessing and taking advantage of Aboriginal artists on their
traditional lands. The majority of the committee considers that the evidence appears
to be inconclusive as to whether the permit system actually prohibits
carpetbaggers from exploiting artists. The committee received only one specific
example in submissions and during testimony of the permit system being
successfully used for this purpose, and similarly heard of one instance where
the permit system may have been abused to protect unscrupulous operators
through their relationships with people within the community.
13.28
Non-government senators on the committee believe that the evidence presented
to the inquiry was overwhelmingly in favour of retaining the permit system.
Several witnesses wrote and spoke in favour of the permits, and none spoke
against it. No dealers or collectors argued for the relaxation of the permit
system.
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