Property as Governance: Time, Space and Belonging in Australia's Northern Territory Intervention
| Published date | 01 May 2013 |
| DOI | http://doi.org/10.1111/1468-2230.12021 |
| Author | Sarah Keenan |
| Date | 01 May 2013 |
Property as Governance: Time, Space and Belonging in
Australia’s Northern Territory Intervention
Sarah Keenan*
This article analyses two cases brought by aboriginal Australians against the Australian government
acquisition of long leases of their land under the Northern Territory National Emergency
Response Act 2007. These leases are conspicuous, particularly in that the government always
made it clear that it would not take up its right to exclusive possession of the leased land, and has
not done so. The leases have not been used to evict residents, as some feared; nor to pursue
mining or agricultural activity. Socio-legal theories centered on the right to exclusive possession
cannot account for these leases. The article explores the use of property under the 2007 Act, the
legal geographies of the areas subject to the leases and the political potency of property beyond
exclusive possession, and suggests an understanding of property as a spatially contingent relation
of belonging. Specifically, the article argues that property is productive of temporal and spatial
order and so can function as a tool of governance.
In July 2012, Australia’s Northern Territory National Emergency Response
Act 2007 (NTNERA) officially came to an end. The controversial Act, passed
on the basis that rates of child sex abuse in Northern Territory aboriginal
communities had become a national emergency, enabled a racially discrimina-
tory federal government ‘intervention’ in the Territory that has been the subject
of criticism from a wide range of activist groups, human rights organisations,1
and the United Nations.2Among a number of highly paternalistic measures, the
intervention involved the Australian federal government compulsorily acquiring
long leases (five years and above) of aboriginal land. This article discusses the
purpose and effect of the intervention leases, and the two cases that have
(unsuccessfully) challenged them, namely Reggie Wurridjal, Joy Garlbin and the
Bawinanga Aboriginal Corporation vThe Commonwealth of Australia and The Arnhem
Land Aboriginal Trust3(Wurridjal) and Shaw vMinister for Families, Housing,
Community Services and Indigenous Affairs4(Shaw). From a property law perspec-
tive, the leases are curious in that the government always made it very clear that
*Lecturer in Law, SOAS, University of London.
1 See for example Amnesty International, ‘Discriminatory aspects of the NTER yet to be
addressed’ (Sydney, 4 February 2009) at http://www.amnesty.org.au/news/comments/20169
(last visited 15 August 2011); Intervention Rollback Action Group, ‘Rollback the Intervention’
(Alice Springs, 2009) at http://rollbacktheintervention.wordpress.com (last visited 18 August
2011).
2 J. Anaya, ‘Observations on the Northern Territory Emergency Response in Australia’ Report by
the United Nations Special Rapporteur on the situation of human rights and fundamental
freedoms of indigenous people (2010).
3 [2009] HCA 2.
4 [2009] FCA 844 and [2009] FCA 1397.
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© 2013 The Author. The Modern Law Review © 2013 The Modern Law Review Limited. (2013) 76(3) MLR 464–493
Published by Blackwell Publishing, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
it would not take up its right to exclusive possession of the leased land, and true
to its word, it has not done so. The leases have not been used as a way to directly
push residents off their land, as some feared; nor have they been used to pursue
any kind of mining or agricultural activity. In fact theories of property that center
around the subject’s right to possess an object and exclude others from it, cannot
account for these leases. To make sense of how property is being used in the
NTNERA leases, a different analysis is needed, an analysis that focuses not on the
propertied subject and her right to possess and exclude, but on the space through
which property is constituted, and the way that that space affects how people
live.
The analysis of the purpose and effect of the intervention leases that I put
forward here is one that begins by looking at the legal geographies of the land
subject to the leases – in particular, the areas of land being contested in the
Wurridjal and Shaw cases. Discussing and building upon an understanding of
property as a spatially contingent relation of belonging, I explore the political
potency of property beyond exclusive possession and its various effects. This
understanding involves thinking about property not just in terms of objects
that belong to and are possessed by subjects, but also in terms of parts that
belong to and are constitutive of wholes. The latter understanding of property
as part-whole belonging enables an analysis whereby characteristics generally
associated with identity politics (such as whiteness or aboriginality) can be
understood as property in the same way as the ownership of more tangible
objects can. My analysis of the cases demonstrates that what was at stake in the
contested leases was not so much possession of the land, as it was the time
and space of belonging that property produces. Specifically, I argue that prop-
erty can be understood as a process that is productive of temporal and spatial
order, and that this production allows property to function as a tool of
governance.
THE INTERVENTION
‘The intervention’ is the term given to the set of policies enabled by the federal
government’s NTNERA, the tabling and passage of which followed the North-
ern Territory government’s ‘Little Children are Sacred’ report, which contained
allegations of widespread child sex abuse in the Territory’s remote aboriginal
communities.5These allegations were based on a nine-month inquiry led by
Rex Wild QC, a non-aboriginal lawyer, and Pat Anderson, an aboriginal
woman with expertise in indigenous health. The report itself did not declare the
existence of an emergency, but did state that the issue of child sexual abuse was
one that required urgent attention.6
5 P. Anderson and R. Wild, ‘Little Children are Sacred’ Report of the Inquiry into the Protection
of Aboriginal Children from Sexual Abuse, Northern Territory Government (2007).
6ibid,7.
Sarah Keenan
© 2013 The Author. The Modern Law Review © 2013 The Modern Law Review Limited. 465
(2013) 76(3) MLR 464–493
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