This is the third of four extracts from the speech given by Marion Scrymgour on 8 October 2014 at the 2014 H.C. “Nugget” Coombs Memorial Lecture at Charles Darwin University, Darwin.

You can read the first here and the second here.

The NT Intervention consisted of those measures which impacted in that way on a whole population. The term does not apply to the good stuff which everyone wanted to happen.

I’m only going to touch on two of the Intervention measures tonight.

Alcohol.

Firstly, alcohol restrictions.

Pat Anderson coined the term ‘rivers of grog’, and it was seized upon by the media and Mr Brough. Unfortunately, the impression that seems to have taken hold down south was that the place where the rivers of grog were flowing was in remote Aboriginal communities.
The vast majority of those communities were alcohol-free areas under existing Territory law. While interdicting the illegal transportation of alcohol into such communities was an ongoing challenge for Police, to suggest that the alcohol problem in communities was in any way comparable to the carnage which was taking place in the main population centres was ludicrous.

It was in those Territory towns — Darwin, Katherine, Tennant Creek, and Alice Springs — where the rivers of grog were flowing, and where they continue to flow to this day.

The harm caused by those urban rivers of grog disproportionately affected Aboriginal Territorians, but the nuisance factor for other citizens had always been a driver of calls for the problem to be exported back out bush, out of sight out of mind.

Full scale alcohol prohibition in the main population centres was not going to be an option for obvious political and commercial reasons. However, if the Commonwealth had had an appetite for tangible and constructive action, a good starting point would have been spending some of the millions which ended up being wasted on government business managers on the compulsory acquisition of liquor licences. Or the Commonwealth could have enacted legislation re-validating the Territory’s former cask wine levy and the associated ‘living with alcohol’ program.

But no, the focus was to be on remote communities, with repeated references to Queensland arrangements and Queensland terminology like “sly grogging” and “wet canteens”. The ironic thing was that the Territory had long been recognised as streets ahead of Queensland when it came to remote area alcohol restrictions policy. This had been acknowledged in the course of the Fitzgerald Inquiry. The restricted area provisions introduced into the NT Liquor Act in the 1980’s were a credit to the CLP government of the day. They involved a process whereby Aboriginal communities could voluntarily adopt restricted area status and the strict legal sanctions which that status entailed.

The great majority of communities throughout the Territory sought the application of full or partial alcohol restrictions. Community elders, including influential women, had been at the forefront of this push. It had been motivated by the horrific effects of the licensed ‘social clubs’ which most of the larger remote communities had experimented with prior to the commencement of the restricted area legislation. This elder-driven community consensus in relation to grog was perhaps the single most valuable item of social capital that the various restricted area communities possessed.

By contrast, the handful of communities which held on to their social clubs continued to endure high rates of domestic violence and related injuries.

Mr Brough made it clear from the outset that he was a fan of ‘wet canteens’, and the Russ Hinze approach to self-determination. The future he was contemplating was one in which each community could have their own opportunity to replay the misery of Aurukun. He permitted existing remote area social clubs to trade on, but with an expansion of liquor permits to non-Aboriginal residents.

In the meantime, there was to be a one-size-fits-all set of rules for all Aboriginal land, including the pre-existing restricted areas within any affected Aboriginal Land Trust areas.

The  offence of bringing, possessing, or consuming liquor in a restricted area (the offence for which people had always been charged and prosecuted in the past) was downgraded so that the maximum penalty became just a fine, not a prison sentence. There was a more complicated offence created, aimed at Queensland style “sly groggers”,  people who smuggled alcohol into dry communities to sell.

But almost all the offenders bringing alcohol into NT restricted areas were extended family members, who had got together with a vehicle or a couple of vehicles to bring alcohol in as a joint enterprise to consume themselves. For a number of technical legal reasons the new more serious offence provision was a dead duck. Almost everyone still got charged under the old downgraded provision.

So instead of the Commonwealth getting ‘tough on grog’ as they claimed, what in fact happened was that the Intervention replaced deterrence with slap-on-the-wrist acceptance.

Serious drinkers from remote communities continued to spend months and years in the long grass in the main population centres, as they had for years before the start of the Intervention. Some of the most determined of them came from my mob in the Tiwi Islands, even though each of the communities there had licensed premises. And drinkers from restricted area communities didn’t come to town to flee the relaxed Intervention alcohol restrictions. They came because there was a readily accessible source of alcohol.

What really breaks my heart about this aspect of the Intervention is that the hard won community consensus in relation to alcohol that had existed in each of those restricted area communities was thrown in the bin like a piece of rubbish. The drinkers, mostly men, will now have the upper hand in many of those communities, and will be able to assert an entitlement to drink as a manifestation of self-determination. They will declare that standing up for the right to drink grog is the same as standing up against the Intervention. Many of the younger adults will probably only remember the Intervention signs at the entrance to their community, not the older restricted area signs which reflected the views of their elders, many now deceased.

In my view the Commonwealth interference into Territory alcohol restriction policy has itself been an agent of real harm.

Leasing

The second  Intervention measure I’m going to mention is the compulsory acquisition by the Commonwealth of leasehold tenure over the whole of each of the 73 prescribed communities. I will restrict my comments to the communities on ALRA land, which was most of them. It wasn’t until a traditional owner from Maningrida went to the High Court that the Commonwealth acknowledged an obligation to pay compensation, but cavalier treatment of property rights isn’t the issue I want to draw attention to.

The compulsory leasing gambit has to be understood in the context of the Commonwealth government’s fixation on ‘whole-of-township-leasing’, a notion which to my great regret was kicked off by some NT government advisers in the mid-2000’s. The underlying premise, a false one, was that ALRA land was incapable of being subdivided and leased, so it was necessary for government to take over the land holding and management role and in that capacity dole out subleases.

A new township leasing provision was inserted into ALRA in 2006. This was section 19A. Anything and everything that could be done under 19A, could in fact already be done under the pre-existing general ALRA leasing provision, section 19. Only now there was a new statutory authority created, with its own bureaucratic niche, glorifying in the title ‘Executive Director of Township Leasing’.

Township leases under section 19A were initially required to be for 99 years, meaning that traditional owners lost control not just over all houses and buildings for that period, but the whole community area. This includes public spaces such as streets, cemeteries, football ovals, beaches, and ceremony grounds. It includes the inter-tidal zone fought for over so many years in the Blue Mud Bay case litigation. The Executive Director of Township Leasing is not subject to subdivision and planning requirements under Territory law.

A person or entity who is granted  a long term regular lease direct from the Aboriginal Land Trust, a section 19 lease, gets as strong and secure a form of title as 99 year Crown lease in the ACT. You can register it, and contrary to an ongoing disinformation campaign, you can mortgage it. It is a form of title which would make sense to a potential mortgage lender.

By contrast, the watered-down subleases granted by the Executive Director of Township Leasing are an inherently inferior form of title. It is no surprise that private lending institutions have said ‘thanks, but no thanks’.

What was the purpose of the 5 year leases under the Intervention?

The 5 year leases under the Intervention were not required for the purpose of enabling Police to do their job. NT Police had long established protocols and procedures in relation to policing in remote communities, and Northern Territory criminal law already applied to people living on ALRA land communities as much as it did to people living in the main urban centres.

The 5 year leases were also not necessary to enable contractors to undertake repairs and maintenance of housing and infrastructure, or to build new houses. Separate leases were entered into to cover most of those operations, and in any event, a claimed need for a lease over a house or building doesn’t explain the need for a Commonwealth lease over public community areas and the inter-tidal zone.

The only conclusion that can be drawn is that the purpose of the 5 years leases was to maintain a holding pattern while the Commonwealth pursued its agenda of wearing down traditional owner resistance to whole-of-township leasing. In other words, the intended outcome was the more-or-less permanent Commonwealth takeover of Aboriginal community land.

I should make it clear that I have always been a supporter of lot-by-lot leasing on Aboriginal community land. Government and private investment in housing and infrastructure needs to be secured. Aboriginal people in remote communities need to have the opportunity to obtain leases direct from the relevant land trust. The compulsory 5 year leases under the Intervention and the accompanying Commonwealth whole-of-township lease policy, have delayed, distorted, and subverted that policy objective.