Editors --- "Building on Land Rights for the Next Generation. Report of the Review of the Aboriginal Land Rights (Northern Territory) Act 1976 - Digest" [1999] AUIndigLawRpr 6; (1999) 4(1) Australian Indigenous Law Reporter 136

Building on Land Rights for the Next Generation.

Report of the Review of the Aboriginal Land Rights (Northern Territory) Act 1976

August 1998

On 16 July 1997, the Federal Minister for Aboriginal Affairs, Dr John Herron, announced a review of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) and terms of reference. The review was conducted over a nine month period between November 1997 and July 1998 by John Reeves QC, a Darwin solicitor, and made use of extensive oral and written submissions. The report was tabled in Federal Parliament on 20 August 1998. After the Federal election in October, the report was referred in December 1998 to the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, for response within six months. Submissions to the Standing Committee were due by 12 March 1999.

This was the first comprehensive review of the Act since Justice Toohey's review in 1983. [1] Unlike previous reviews, Reeves' proposals are designed to radically transform the Act, and have generated considerable controversy. The report is nearly 1000 pages long, including lengthy appendices, and only the introduction and synopsis are reproduced here. The report is the subject of the Commentary in this edition of AILR.

Synopsis

The direction of reform

This report is the product of a comprehensive review of the Aboriginal Land Rights (Northern Territory) Act 1976 (the Act). It is the first comprehensive review of the Act since Justice Toohey's review in 1983. Justice Toohey reviewed the first seven years of the operations of the Act when the land claims process was relatively young and when the institutions formed under the Act were relatively new.

The present review has been conducted in very different circumstances. About 42 per cent of the Northern Territory has now been granted to Aboriginal Land Trusts for the benefit of Aboriginal people; the land claims process is nearing completion; and the two large Land Councils have become substantial bureaucracies filling roles and functions beyond those originally intended.

There can be no doubt the Act has had many positive results for Aboriginal people in the Northern Territory. It has returned much of their traditional land to them and helped to enrich their culture and rebuild their confidence as a people.

However, the Act has produced some negative results as well. These were highlighted during this review. The most fundamental source of these in the Act is the linking of Aboriginal tradition with statutory controls over, and benefits flowing from, Aboriginal land, through a statutory definition of 'traditional Aboriginal owners'. This scheme has undermined Aboriginal self-determination in relation to Aboriginal tradition and the control of traditional lands. If Aboriginal self-determination has any meaning at all, it must apply first and foremost to the processes and practices of Aboriginal tradition and the effective control, by Aboriginal people, of their lands.

This scheme has had other negative results. It has given rise to many disputes about traditional Aboriginal ownership, as defined in the Act, and the individual rights and benefits associated therewith. These individual rights and benefits are incongruous with the general scheme of the Act. Under the Act, Aboriginal lands are not held privately by traditional Aboriginal owners, or other individuals, but by Land Trusts, collectively, for the wider Aboriginal community that is entitled to use and occupy Aboriginal land.

At least three other negative results of the Act were highlighted during this review. Firstly, the monies received under the Act have not been strategically applied to the social and economic advancement of the Aboriginal people of the Northern Territory as a whole. These monies have largely been dissipated in Land Council administrative costs and cash payments to individual Aborigines in particular areas of the Territory.

Secondly, a strident, oppositional political culture has developed in the Northern Territory with respect to Aboriginal land rights. The main players have been the two large Land Councils and the Northern Territory Government. Wherever the fault may lie, the absence of a productive partnership between the Northern Territory Government and Aboriginal people and their institutions, especially the two large Land Councils, has been to the detriment of the people of the Northern Territory, and, especially, of Aboriginal Territorians.

Finally, the processes and procedures set out in the Act, in particular the 'go-between' status of the Land Councils and the requirement to obtain a permit to enter Aboriginal land, have imposed unnecessary costs on Aboriginal and non-Aboriginal Territorians alike. These processes and procedures have, for example, increased the costs for the mining and other industries, and restricted access by non-Aboriginal Territorians to almost a half the land mass of the Northern Territory and about 80 per cent of its coastline.

In considering what reforms might be made to address these negative results I have had to consider how such reforms can be made while preserving the benefits that have been achieved. I have also been mindful that changes normally come at some cost and that these costs need to be weighed against the likely benefits such reforms will produce.

It is in the belief that reforms can be made that will build on what has been achieved for the lasting benefit of the Aboriginal people of the Northern Territory, particularly the next generation, and the whole of the Northern Territory, that I have recommended that substantial and far reaching changes be made to the Act.

These reforms are intended to address the negative results of the Act referred to above whilst retaining the very real benefits. They can be reduced to the following very broad summary:

• Aboriginal self-determination in relation to Aboriginal tradition and the primary control of Aboriginal lands will be best achieved by the formation of a system of Regional Land Councils (RLCs) that will make all decisions in relation to Aboriginal lands at the regional level.
• A new central body, the Northern Territory Aboriginal Council (NTAC) is proposed. Its main function will be to achieve the socio-economic advancement of the Aboriginal people of the Northern Territory. It will apply the monies presently received under the Act to these purposes, but it can only effectively achieve this outcome if it forms a genuine productive partnership with the Northern Territory and Commonwealth Governments, and individuals and organisations from the broader Northern Territory community.
• Current statutory impediments to a productive partnership between Aboriginal people and other Territorians should be removed. These reforms include removing the need to obtain permits to enter Aboriginal land (and applying instead the Northern Territory's trespass laws), and giving the Northern Territory Government a limited power to compulsorily acquire an interest in Aboriginal land for public purposes.

The details of these proposals, and the ways in which I recommend they interact, are set out in the body of this report.

As the title to this report suggests, it is aimed at the next generation of Aboriginal Territorians - the young people living in settlements, on out-stations and in towns in the Northern Territory. They will soon jointly inherit vast areas of Aboriginal land in the Northern Territory, and a strong and vibrant Aboriginal culture. However, they will also inherit profound and deepening social and economic problems. The reforms I have proposed will maintain and strengthen their long-term security with respect to their culture and their traditional lands, and offer them the opportunity to achieve better social and economic outcomes than their parents have been able to.

The principal findings and recommendations

The principal findings and recommendations of this review are set out below by term of reference and chapter number.

I. The effectiveness of the legislation in achieving its purposes

Findings in Chapter 4

• The main purpose of the Act was to grant traditional Aboriginal land in the Northern Territory to, and for the benefit of, Aboriginals.
• The other purposes of the Act included:
• to recognise traditional Aboriginal interests in, and relationships to, land; and
• to provide Aboriginal people with effective control over activities on the land so granted.
• The Act and associated Northern Territory legislation have been very effective in granting traditional Aboriginal land in the Northern Territory for the benefit of Aboriginal people and in recognising traditional Aboriginal interests in, and relationships with, land.
• The Act has been less than effective in providing Aboriginal people with effective control over activities on their traditional land.
• The main purpose of the Act is likely to be achieved in the near future and one of the other purposes has been achieved. As to the remaining purpose, there is a need to reform the Act to provide Aboriginal people with effective control over activities on their land.

Recommendations in Chapter 4

• That a preamble and purposes clause be inserted in the Act expressing the future purposes of the Act along the following lines:
• to encourage the formation of a partnership between Aboriginal people in the Northern Territory and the Government and people of the Northern Territory;
• to provide Aboriginal people with effective control over decisions in relation to their lands, their communities and their lives; and
• to provide opportunities for the social and economic advancement of Aboriginal people in the Northern Territory.

II. The impact of the legislation in terms of social, cultural and economic costs and benefits

Findings in Chapter 25

Costs and benefits of the Act for Aboriginal Territorians

• Easily the most important social, cultural and economic outcome arising from the transfer of 573,000km [2] - 42.3 per cent of the Northern Territory - to Aboriginal Territorians is the huge consumption gain that has accrued to them as a result. Since much of the land claimed is of marginal economic value in alternative uses, creating a situation that enables Aboriginal Territorians to own, live on or freely visit their traditional 'countries' is a highly productive use of this land.
• The immense satisfaction that Aboriginal Territorians derive from their land rights is the only justification needed to support their ownership of the land, notwithstanding that no 'productive' use is made of it. It is simply their home - and valued as such like anyone else's.
• There can be no doubt that the benefits of the Act have greatly exceeded their costs for Aboriginal Territorians. However, the benefits would have been much greater still, if the process of acquiring Aboriginal land had been less expensive. The market value of the lands acquired per km [2] (excluding the reserve lands transferred free) is very substantially less than the value of the funds used per km [2] to acquire them. Opportunities have been missed to acquire even more land or to use more funds for the social and economic advancement of Aboriginal Territorians through expanded programmes for Aboriginal education, housing, health, technology and business.

Costs and benefits of the Act for other Territorians

• The main cost imposed on other Territorians by the Act has been caused by restrictions on access to Aboriginal land.
• The permit system imposes unnecessary transactions costs on innocent and legitimate interests in access that impose no costs on owners of, or dwellers on, Aboriginal land.
• Attempts to build joint management arrangements to meet the wishes of various legitimately interested parties (such as the commercial and sports fishing industries, for example) have been supported by the smaller Land Councils but not by the NLC.
• The Government has been faced with unacceptable restrictions and an unacceptable negotiating position on behalf of the public in its ability to gain access to Aboriginal land for important public purposes.
• Reforms to access would not only pay dividends for Territorians at large, but would reduce opposition to Aboriginal land rights because they would no longer impose such heavy costs on non-Aboriginal (and many Aboriginal) Territorians.
• The costs of Act have probably exceeded their benefits for other Territorians because of these unnecessary costs that have been imposed on them.

Costs and benefits of the Act for the pastoral industry

• As pastoral property, notwithstanding the vast area of land involved, land in the Northern Territory is capable of supporting only a handful of people at income levels commensurate with expectations in the community at large. This is true irrespective of whether the land is occupied by Aboriginal, or other Territorians.
• There can be little doubt that the impact of the Act on the pastoral industry in the Northern Territory has been negligible in an economic sense. The impact on the economically productive use of pastoral properties formerly held as Crown leaseholds is even less. A good case can be made that the voluntary transfer of Crown leasehold properties to freehold under the Act must have resulted in an economically superior use of the land, because the leaseholders were willing to sell to the new owners at mutually agreeable prices.

Costs and benefits of the Land Rights Act for the mining industry

• Exploration and mining activities on Aboriginal land in the Northern Territory have contributed to the social and economic well-being of Aboriginal Territorians both directly, as a result of negotiated settlements with mining companies and indirectly because of payments under the Act by the Commonwealth Government of 'mining royalty equivalents' for the benefit of Aboriginal Territorians.
• It is debatable, however, whether these payments have been of as much benefit as they might have been (including whether more could have been accomplished for Aboriginal Territorians under different institutional arrangements and decision-making processes).
• The Act has probably had negligible impact on the costs and benefits for the mining industry itself. The main difficulties have been the complications and transactions costs involved in gaining access to Aboriginal land.

Costs and benefits of the Land Rights Act for the tourism industry

• Tourism on Aboriginal land has grown rapidly. Prospects for future growth look promising. Tourism appears to have benefited from increased involvement by Aboriginal Territorians. An obvious reason for this is that visitors are interested in the traditional culture of Aboriginal Territorians and its relationship to the unique scenery, flora and fauna of the Territory. Tourism offers one of the best prospects for jobs for Aboriginal Territorians living on Aboriginal land outside the main urban areas.
• However, to date, most of the businesses associated with the tourism industry on Aboriginal lands have been owned and operated by non-Aboriginal Territorians, and most of the jobs have been occupied by non-Aboriginal Territorians, as well.
• The benefits flowing from the Act for the tourism industry appear to have exceeded the costs.

Costs and benefits of the Act for other industries

• The main other industries that might be able to provide jobs and incomes for Aboriginal Territorians living on Aboriginal land in rural areas appear to be the harvesting of 'bush tucker' and wildlife, and aquaculture.
• It is not easy to know how to assess the potential jobs and incomes that might be generated for Aboriginal Territorians from these other industries. But it would not seem wise to assess the prospects as providing more than a marginal contribution to job generation.
• The benefits of the Act for these other industries appear to have marginally exceeded the costs.

Costs and benefits of the Act for the Northern Territory - a summing up

• It is difficult in the present state of knowledge to arrive at a conclusive assessment of the overall costs and benefits of the Act for the Northern Territory. On balance, I lean towards the view that the benefits of the Act have outweighed its costs, but that the balance would have been much more favourable:
• if the rules of access to Aboriginal land had been the same as the rules of access to any freehold land (with special exceptions recognising its inalienability and the spiritual significance of particular places to Aboriginal Territorians);
• if the transactions costs associated with the operations of the Act for mining and other business activities on Aboriginal land had been better addressed, particularly the transactions costs associated with giving the Land Councils a monopoly, in the representation of traditional Aboriginal owners with miners and other business ventures with respect to Aboriginal land; and
• if the funds available from the Aboriginals Benefit Reserve under the Act had been applied more cost-effectively to the land claiming and land acquisition processes, and for the benefit of Aboriginal Territorians generally.

Land rights and Aboriginal economic advancement in the future

• A focus on directly developing the land granted to Aboriginal Territorians as providing their best economic way forward is misplaced. Such a focus leads to an economic cul de sac for Aboriginal Territorians in the face of the shrinking employment opportunities provided by agriculture, world-wide.
• Far more important modern sources of economic advancement than the possession of land are the possession of productively useful skills, technology and capital of the kind in demand in the mainstream Australian economy.
• The evidence that education and training has a big payoff to Aboriginal Australians is overwhelming.
• What is needed in the future is a stronger and more sustained effort from Aboriginal Territorians, governments, the non-Aboriginal private sector and the broader community to raise the education and skills of Aboriginal Territorians and to form strong, genuine partnerships.

III. The operation of the exploration and mining provisions

Findings in Chapter 24

• The 1987 amendments to the Act did not overcome the deficiencies in the system.
• No mining company, mining association, Land Council or Aboriginal organisation proposed the veto on exploration and mining on Aboriginal land should be removed.
• The existing arrangements for exploration and mining on Aboriginal land are quite unsatisfactory and should be changed. Continuing the status quo (or even skillfully crafted variations of it) is not in the interests of Territorians and, in particular, not in the interests of Aboriginal Territorians. It appears that the complex, prescriptive and regulated system in the Act is the source of many of the problems.
• The veto is seen by Aboriginal people as an essential element of their land rights.
• Aboriginal people have expressed a clear desire to this review to make their own decisions about land use matters at the local community or regional level.
• If the right to a veto applies, the usual approach to exploration and mining in Australia, will not be appropriate.
• Excessive delays and costs will usually destroy the viability of a mining project.
• Successful commercial dealings between mining companies and Aboriginal people, or any two parties, depend upon the parties being able to establish a relationship of trust.
• Mining companies want the security of a binding enforceable agreement in relation to mining before they will invest large sums in exploration. This requires somebody with the authority to make such an agreement on behalf of the Aboriginal people concerned.
• Mining companies dealing with Aboriginal people have to appreciate that they are operating in a unique cultural and social environment. For example, many Aboriginal people remain suspicious of mining companies, the Aboriginal decision-making process is usually communally oriented and many of the Aboriginal participants in the process will not be able to read or write and will be living in a state of poverty. This is the sort of environment that could give rise to allegations of unconscionable conduct if the mining company is not careful in its dealings.

Recommendations in Chapter 24

• The Act and the Mining Act (NT) should contain provisions which allow a person to obtain a licence to enter Aboriginal land for a specific period for the purpose of reconnaissance exploration subject to various terms and conditions (as outlined in this Chapter 24).
• The Act should be amended to provide that the relevant RLC and the holder of an existing mining lease should negotiate the terms and conditions of any renewal of that mining lease, provided that the relevant RLC shall not have a veto over that renewal. If the parties are unable to agree on the terms and conditions, the Act should contain provisions for the appointment of a Mining Commissioner to determine that dispute, following the procedures set out in the existing s 48F, amended to remove the requirement under s 48F(2) that a Federal Court judge has to be appointed as Mining Commissioner.
• Each of the proposed RLCs should have the existing power to consent to (or veto) any exploration or mining proposals in respect of Aboriginal land within their region, subject only to the existing national interest provisions.
• Each RLC should be empowered to negotiate legally enforceable agreements directly with any mining company, or number of mining companies, and be free to engage any outside help they need for that purpose, including drawing on the professional resources of the proposed new NTAC.
• The Northern Territory Government should be kept informed which mining companies a RLC is negotiating with.
• The Northern Territory Government should accept whatever enforceable agreements are made between a mining company and a RLC (unless it considers the agreement should fail on other grounds) and issue the required exploration licence or mining interest accordingly.
• The Commonwealth Government should continue to have the power to cause a Proclamation to be issued that an exploration or mining project should proceed in the national interest.
• Mining companies operating on Aboriginal land should be bound by law to pay normal royalties to the Northern Territory Government (as is the case now) and all so-called negotiated royalties to the relevant RLC.
• The Commonwealth Government should continue to pay mining royalty equivalents into the Aboriginals Benefit Reserve for the benefit of all Aboriginal Territorians.

IV. Operations of the Aboriginal Benefits Reserve (ABR) (formerly the ABTA) including the distribution of payments out of the trust account

and

V. Operations of the Royalty Associations and their reporting requirements

Findings in Chapter 16

• The operations of the ABR have suffered from the lack of a clear:
• statement of purposes for the ABR;
• allocation of responsibilities in the administration of the ABR to one Aboriginal body; and
• understanding about the responsibility to account for the expenditure of all ABR funds, particularly by the Royalty Associations.
• The distribution of funds from the ABR has effectively been controlled by Aboriginal bodies and people to date, specifically:
• the Land Councils;
• the Royalty Associations;
• the ABR Advisory Committee.
• However, Aboriginal people have had a lesser control over the investment strategy of the ABR.
• The administration of the ABR has been fragmented and this has detracted from the ABR adopting and pursuing a unified and dedicated purpose in the allocation of ABR funds.
• The mining royalty equivalent payments made to the ABR from the consolidated revenue fund are 'public' monies paid pursuant to a public policy decision of the Government. The recipients of these monies are accountable for them as public monies. The Royalty Associations should have been required to give an account of the expenditure of these monies pursuant to the same regulatory regime under which the Land Councils and ATSIC were working.
• The Royalty Associations should also have been required to give an account of their expenditure of all other monies paid under the Act pursuant to the same regulatory regime mentioned above.
• Section 35A has not been an effective accountability measure, largely because of the reluctance of the Land Councils to properly enforce it.
• Nonetheless, even if they had, it is doubtful whether these reporting requirements operate as an effective measure to ensure that these Royalty Associations are applying their funds to their proper purposes and complying with the law and their rules or constitutions.
• Because of various administrative and cultural factors, the Royalty Associations have generally not been required to account to their membership in relation to their distribution of monies under the Act.
• For these reasons, the Royalty Associations have not been required to give a proper account of their expenditure of the 'areas affected' monies and it is doubtful whether those monies have been applied to their intended purposes. It is probable that a large part of those monies have been distributed in payments to individuals unrelated to a purpose. Such payments will only increase the dependence of Aboriginal Territorians on unearned income and prevent an accumulation of those monies for the long-term benefit of Aboriginal Territorians.
• There is a perception among Aboriginal people that if they spend monies on community facilities then the Northern Territory and Commonwealth Governments will not provide funds they might otherwise provide to that community.
• A substantial portion of the ABR's funds has been used to fund the Land Councils and consequently a much-diminished proportion has been devoted to the benefit of Aboriginal Territorians generally. Some of these people have not had the benefit of land grants under the Act and have therefore missed out twice. There is a need, therefore, to continue to curb the administrative costs of the Land Councils.

Recommendations in Chapter 16

• The link between the ABR's funds and the mining industry should be maintained to underscore the fact that the payment of these funds is based upon a unique and historical factors.
• The Act should be amended to include a clear statement of purposes for the distribution of the funds in the ABR.
• The ABR should, in future, be administered by the proposed NTAC.
• The formula for the distribution of the ABR's funds should be abolished. In its place, NTAC should decide on the distributions within the statement of purposes set for the ABR.
• In future, 'areas affected' monies should only be paid to the proposed new RLCs in the region for the benefit of those communities that can establish an actual adverse affect from mining on the community in net terms, that is taking into account the receipt of negotiated payments and any countervailing benefits obtained from the mining.
• All expenditure of all ABR funds and all other income from activities on Aboriginal land should be applied by NTAC or the RLCs to particular purposes for example ceremonies, scholarships, housing, health. Conversely, none of these funds should be paid to an individual without a related purpose. Furthermore, any Association receiving ABR funds should not be able to pay those funds to another Association that makes individual payments. Measures should also be adopted to remove the perception that the practice of substitution is occurring.
• Mining withholding tax should not be applied to the funds paid to the ABR.
• NTAC should develop an investment strategy which is aimed at it becoming self-sufficient to the amount of the income from a particular mining resource by the time that resource is estimated to be expended. The balance of the ABR's funds should be expended by NTAC and the RLCs on programs for the cultural, social and economic advancement of Aboriginal Territorians.
• NTAC should only invest the investment component of its funds in commercial investments that are likely to provide a satisfactory rate of return for the investment.
• A special system of assistance, accountability and transparency should be adopted for Aboriginal incorporated associations to take account of:
• the effect of Aboriginal culture and tradition;
• the undesirability of a multiplicity of such associations; and
• the general lack of familiarity and experience among Aboriginal people with administering such bodies.

Recommendations in Chapter 28

• The establishment of the NTAC as an authority under the Act.
• The members of the council of NTAC should be appointed jointly by the Commonwealth Minister and the Chief Minister of the Northern Territory from a list of nominations of Aboriginal Territorians made by Aboriginal Territorians.
• The Council members should elect their own chairperson and appoint their own chief executive officer from a list of candidates approved by the relevant Commonwealth and Northern Territory ministers. The CEO should also be a member of the Council ex officio.
• In due course, Government appointment of the members of the Council should be replaced by their election by Aboriginal Territorians on a basis providing for an appropriate spread of regional representation. This election should take place once the land claims process has been completed, the boundaries of the RLCs have been settled, and a further review of the Act has been undertaken.
• The main functions of NTAC will be to:
• assist in the long-term social and economic advancement of Aboriginal Territorians through its social and economic advancement program;
• maintain strategic oversight of the activities of the RLCs relating to major agreements, delegation of their functions, their financial and administrative functions and the appointment of their CEOs;
• house and support the operations of the congress of RLCs;
• establish an investment trust and act as a 'bank' for the RLCs;
• complete the outstanding land claims;
• act as the sole native title representative body in the Northern Territory;
• endeavour to resolve disputes between Aboriginal people, or Aboriginal organisations, in relation to land or other matters as discussed in more detail in Chapter 10 of this report;
• provide financial, technological and human resource support (at cost) for the RLCs;
• on request by a RLC, act on the RLC's behalf in any matter;
• maintain a (non-public) register of all agreements entered into by each RLC;
• NTAC will be responsible for receiving and distributing the mining royalty equivalents paid to the ABR by the Commonwealth Government and any other funds allocated to it by the Northern Territory and Commonwealth Governments or ATSIC;
• NTAC will be required to fund the administrative costs of the RLCs.

V. Compulsory acquisition powers over Aboriginal land

Findings in Chapter 17

• It seems to be generally accepted, in principle, that a government should have a power of compulsory acquisition, at least to the extent necessary to provide essential services to the community it serves.
• The primary concerns of all parties on the issue of compulsory acquisition can be accommodated by providing the Northern Territory government with a power to compulsorily acquire Aboriginal land, or land under claim, for public purposes, in limited circumstances and subject to various special measures to protect Aboriginal interests and concerns.

Recommendations in Chapter 17

The Act should be amended by repealing ss 67 and 68 and by inserting, in Pt VII, a new s 67 along the following lines:

1. Subject to subs (2) and (3), notwithstanding anything in this Act, including s 71, or any other Act, save for the Racial Discrimination Act 1975 (Cth), the Northern Territory Government may compulsorily acquire an estate or interest in Aboriginal land or in land the subject of an application of the kind referred to in s 50(1)(a), other than the freehold interest, for public purposes provided that the nature and extent of the estate or interest shall be limited to that necessary for the public purpose concerned.

2. An estate or interest in Aboriginal land or land the subject of an application of the kind referred to in s 50(1)(a) can not be compulsorily acquired except by an Act of the Northern Territory Parliament that expressly provides for that acquisition.

3. Prior to any compulsory acquisition of an estate or interest in Aboriginal land or land the subject of an application of the kind referred to in s 50(1)(a), and within the period prescribed by the regulations, the Northern Territory Government shall:

(a) notify the relevant RLC in writing as to the area of the land affected, the nature of the estate or interest that is to be compulsorily acquired, the purpose of the acquisition, and the alternative courses which have been considered; and

(b) allow the relevant RLC, reasonable access to all documents held and advice received relevant to the proposed acquisition.

4. In relation to the acquisition of an estate or interest in land the subject of an application of the kind referred to in

s 50(1)(a), any compensation payable shall be held in trust, in accordance with the regulations, pending the final disposition of the claim in accordance with s 67A(5).

Application of NT laws to Aboriginal land

Findings in Chapter 18

There are some practical problems with the application of some Northern Territory laws, for example the Local Government Act, and some genuine, perceived problems with the application of others, for example the Water Act. However, any reform must recognise and protect the rights of Aboriginal people to use their land in accordance with Aboriginal tradition. The primary question is whether those rights should be absolute. In my view they should not be. They must give way to laws that protect the rights and interests of the broader community on issues such as the supply of essential services and conservation of the environment.

Recommendations in Chapter 18

• That provision be made for the general application of Northern Territory laws to Aboriginal land. Specifically, that the Act specify the subject areas in relation to which Northern Territory laws will apply to Aboriginal land, with the qualification that every endeavour should be made to ensure that the rights under s 71 of the Act are preserved to the greatest extent possible.
• Specifically, I recommend that s 74 be repealed and s 71 be amended along the following lines :
• Insert a new subs (3) as follows:

Subject to subs (4) to (6), the laws of the Northern Territory made pursuant to ss 67 and 73 or laws of the Northern Territory, including delegated laws, with respect to environmental protection and conservation, public health and safety, the supply of essential services, the maintenance of law and order, or the administration of justice shall apply in relation to Aboriginal land in the Northern Territory.

• Insert a new subs (4) as follows:

In the application of a law of the Northern Territory described in subs (3) in relation to Aboriginal land, all reasonable steps shall be taken to minimise any negative effects on the use or occupation of the land pursuant to subs (1).

• Insert a new subs (5) as follows:

The application of a law of the Northern Territory described in subs (3) in relation to Aboriginal land does not affect the right to use or occupy land in accordance with subs (1), other than to the extent that that use or occupation is directly inconsistent with the effective operation of the law of the Northern Territory.

• Insert a new subs (6) as follows:

Any law of the Northern Territory other than a law of the Northern Territory described in subs (3) applies to Aboriginal land other than to the extent that that law is directly inconsistent with this Act.

• That provision be made to ensure that the costs of fencing arising under the Fences Act are met by the relevant RLC. Specifically, it is recommended that s 26 of the Act be amended by inserting a new subs (2) as follows:

In this section the term 'charges' includes, but is not limited to, the cost of fencing which is due and payable in relation to Aboriginal land pursuant to a law of the Northern Territory or the Commonwealth.

• That the Northern Territory Government be given a limited power to compulsorily acquire Aboriginal land for public purposes, including for the purpose of water supply. A detailed recommendation on compulsory acquisition appears elsewhere in this report.

VI. Role, structure and resource needs of the Land Councils following the coming into effect of the sunset clause relating to land claims

Finding in Chapter 6

The two large Land Councils have been successful in developing their political role and in preparing and presenting land claims under the Act. They have not been so successful in performing other aspects of their representative role under the Act. They are perceived to be bureaucratic, remote, tardy and uninterested in local Aboriginal problems. The two small Land Councils are much closer to the constituencies they serve. They do not operate with large centralised bureaucracies. They appear to perform their functions following their own view of Aboriginal tradition. They appear to operate more pragmatically, with less formality and with much more flexibility in performing their functions.

Findings in Chapter 7

An adequate basis for Aboriginal land rights needs to accommodate both the local and the regional interests, and the fact that regional cultures and ways of life are maintained at regional levels.

The present scheme of the Act, in which traditional Aboriginal ownership is the centrepiece, places paramount importance on the spiritual relationships of local descent groups to sites on land. These are not units of land 'ownership', land use, domestic units or political bodies. Nor are they in any sense self-sufficient in the performance of Aboriginal ceremonies. Although the current system grants land for Aborigines entitled by Aboriginal tradition to the use or occupation of the land, in practice this has little application. Traditional Aboriginal owners have the ultimate control of land (conditional on the cooperation of the Land Council) and they are even entitled to receive monies arising from rents on that land. The importance of regional populations as the level at which Aboriginal culture is reproduced and at which the land was occupied, used and 'owned', has not been acknowledged in the current scheme of the Act.

The current Act scheme did not, and does not, adequately reflect either the state of anthropological knowledge, or the reality, of traditional Aboriginal processes and practices in relation to the control of land.

Findings in Chapter 10

The focus on statutory traditional Aboriginal ownership within the bureaucratic and legalistic framework of the two large Land Councils has led to irreconcilable disputes about traditional Aboriginal ownership. Disputes with respect to similar issues among the constituencies of the smaller Land Councils had not become entrenched in this way. The key reason, in my view, is that the smaller Land Councils have tended to merge the identification of traditional Aboriginal ownership within their representative structures and they have taken a pragmatic and flexible approach to it.

As well as being faced with irreconcilable disputes in relation to their responsibilities to traditional Aboriginal owners, the representative structures of the large Land Councils have also come under attack from breakaway Land Council movements. These movements have sought greater self-determination in relation to the control of traditional lands within their regions. At the same time, they have made claims for autonomy based on their having better foundations in the Aboriginal traditions of their regions.

For these reasons there is a need for reform of the existing scheme of the Act. This reform has to involve:

• providing for representative bodies at the regional level to make decisions about the use of their lands;
• allowing the representative bodies to adopt decision-making processes that accord with their traditions, as they interpret them; and
• providing a system of dispute resolution that accommodates Aboriginal traditional practices and processes and is accessible, inexpensive and effective.

Recommendations in Chapter 10

• A system of representative RLCs should be established based on the 18 existing Land Council regions (including the two small Land Council areas).
• These RLCs should be autonomous, subject to the system of supervision and accountability (detailed in Chapter 27).
• Each RLC should be required to make its decisions in the best interests of the Aboriginal people of its region and should be entitled to adopt the decision-making process that it considers best reflects Aboriginal traditional processes in its region.
• All disputes arising out of the Act should be dealt with at first instance by the relevant RLC by the methods it considers appropriate.
• A person aggrieved by a decision of a RLC should have a right of appeal to NTAC, which should deal with the appeal by the methods it considers appropriate.
• A person aggrieved by a decision of NTAC should have a right to appeal on a question of law only to the Aboriginal Land Commissioner, or some similar body. No question of Aboriginal tradition should be entertained on such an appeal.
• An (existing) Ombudsman should receive and deal with non-traditional or administrative complaints against a RLC or NTAC.

Recommendations in Chapter 27

• If any disputes arise about the boundaries of any of the RLC regions the minister should request the Aboriginal Land Commissioner to inquire into the most appropriate boundaries and report to him pursuant to s 50(1)(d) of the Act.
• Each RLC will be comprised of its:
• membership;
• board of directors;
• chief executive officer; and
• staff.
• The universal rules of membership of each RLC should be that:
• any Aboriginal person, who has a traditional affiliation to an area of land within the region, or who is a permanent resident of the region, is entitled to be a member of an RLC;
• no person may be a member of more than one RLC at any one time; and
• each RLC shall be required to keep a register of its members.
• The membership of the RLC should decide the number of directors on the board of the RLC and how they will be chosen.
• The Act should simply prescribe that the system for choosing the directors of the board of each RLC should be fair, representative of the region and non-discriminatory.
• The CEO of each RLC should be appointed by its board of directors from a list of candidates acceptable to the board and approved by NTAC.
• The staff of each RLC should be appointed by the CEO, to whom the staff will be responsible for the proper execution of their duties.
• The main functions of a RLC should be as follows:
• to undertake all the functions of the present Land Councils in its region with the exceptions of completing the land claims process, sacred sites assistance, and assistance with commercial ventures, which functions will be undertaken by NTAC, or other bodies as specified elsewhere in this report;
• to make decisions in relation to proposals for the use of Aboriginal land in its region that do not conflict with the functions above, including decisions relating to exploration and mining, tourism, and specialist primary production (horticulture, aquaculture, and so on);
• to hold in trust all Aboriginal land in its region for the benefit of all Aboriginal people who are entitled by tradition to use or occupy that land;
• to receive and spend funds made available by NTAC for the administration of the RLC or for public purposes approved by NTAC;
• to assist in the social and economic advancement of Aboriginals living in its region; and
• to co-ordinate and assist the implementation of the Aboriginal social and economic advancement programs of NTAC, the Northern Territory and Commonwealth Governments and ATSIC, in its region.
• The annual budget for each RLC should be left to its own discretion. Each RLC will be required to meet its administrative expenses from the annual allocation provided to it by NTAC.
• All agreements made by a RLC will be required to be registered with NTAC.

IX. Any other matters relevant to the operation of the Act

Background to the Review - Chapter 1

Findings

• The Act is widely regarded as the high-water mark of land rights legislation in Australia, guaranteeing as it does secure (inalienable) freehold title to Aboriginals over what might eventually be nearly half of the Northern Territory.
• It is time for this generation to look afresh at the Act's provisions and to implement contemporary solutions based upon the ideas underlying the Act and current needs and circumstances, as well as building strong foundations for future generations of Aboriginal Territorians.
• There is a basic and widespread lack of knowledge on the part of Aboriginal Territorians about the Act, its provisions and the way it has operated.

Aboriginal land rights compared - Chapter 3

Findings

The affirmation of rights over land has been a developing process internationally - some of it voluntarily undertaken on the part of governments wishing to make amends for past injustices, and some of it flowing from court decisions.

When compared with the approach taken in other jurisdictions in Australia and elsewhere around the world, the Act provides one of the most far reaching systems for granting Aboriginal traditional lands and one of the strongest systems for protecting the traditional rights of Aboriginal people in their land. The most significant area in which the Act is not so beneficial is that it does not, and was not intended to, provide Aboriginal people with economic, or needs-related entitlements, such as mineral rights, commercial fishing rights, or rights to commercially harvest native fauna.

Definition of traditional Aboriginal owners - Chapter 8

Findings

From early in the land claims process Aboriginal Land Commissioners approached their task, not as an exercise in anthropology, but on the basis that the definition of traditional Aboriginal owners in the Act was expressed in ordinary English words and was not a technical term of anthropology. On this basis, they were able, somewhat pragmatically, to identify a broad range of different kinds of groupings and relationships to land in different parts of the Northern Territory, as falling within the definition of traditional Aboriginal owners in the Act.

Recommendations

The definition of traditional Aboriginal owners in the Act should be retained for the purposes of the remaining land claims under the Act.

Outstanding land claims - Chapter 11

Findings

• The land claim process under the Act has been divisive and expensive for all concerned. Following the coming into effect of the 'sunset clause' on further claims, it is in everyone's interest that the outstanding claims should be settled as quickly as possible. This will free a lot of time, effort and money to be devoted to the benefit of Aboriginal Territorians as the Act enters a new phase.
• To settle outstanding land claims within, say, two to three years will require new strategies involving at least the following: legislative intervention; settlement of claims by agreement; devoting additional resources to the task; and reforming present processes to make them more efficient.
• Categories of claims which could be settled by legislative intervention include: banks and beds of rivers; the intertidal zone; seas and sea beds; Conservation Land Corporation/Northern Territory Land Corporation land; stock routes and stock reserves.
• What is meant by 'low watermark' is a matter that should be clarified by amendment to the Act, so that it is made clear which particular definition of low watermark applies in the Act.
• As things currently stand, claims over stock routes and stock reserves effectively fall between two stools: the Act prevents the Aboriginal Land Commissioner from hearing such claims (except those already commenced and those where the stock route or stock reserve is contiguous along each of its two longer boundaries to the land to which the land claim relates); but they are not dismissed, determined or finally disposed of (thereby preventing any estates or interests being granted in land which is subject to such claims). There is a similar problem with the 'sunset clause'.
• If the recommendations of this review are adopted, a great deal of time, effort and resources can be diverted form establishing traditional Aboriginal ownership of land and instead outstanding land claims could focus on issues like strength of attachment and detriment.
• There should be an attempt to settle all the outstanding land claims.

Recommendations

Banks and beds of rivers

• The land claims to the banks and beds of rivers that fall wholly within other land that is claimable, should be granted without further delay and expense.
• The Act should be amended to prevent land claims to the banks and beds of rivers that form the boundary between land that is available for claim and that which is not, or that comprise a strip of land between two areas of land that are not available for claim.

Intertidal zone

• The Act should be amended to provide that the areas of the Northern Territory on the seaward side of the high watermark, that are not already Aboriginal land under the Act, are not available for claim under the Act.
• The common law position regarding the ownership of living fish and native fauna on Aboriginal land should be confirmed in the Act.
• The Northern Territory Legislative Assembly should be given the power to pass legislation to provide for the joint management of the resources in the intertidal zone and the territorial waters of the Northern Territory both on and off Aboriginal land in conjunction with those Aboriginal people who have traditional interests in those resources and areas and other persons and groups with interests in those resources and areas.
• The Northern Territory's power to make laws in this regard should be made sufficiently broad to allow it to permit members of the public, who are lawfully fishing in such waters and commercial fishermen licensed to fish in such waters, to place anchors, nets, fishing lines or other similar items of equipment on the bed or shore of the intertidal zone on Aboriginal land.
• The order of priorities given to the interests of the various groups involved in the joint management regime should be:
• conservation and certain other identifiable overriding interests;
• traditional hunting and fishing;
• commercial and recreational hunting and fishing.

Seas and sea beds

• The expression 'low water-mark' should be defined in s 3 of the Act to mean the mean low water-mark.
• The Act should be amended to provide that the areas of the Northern Territory on the seaward side of the (mean) low water-mark on land granted to an Aboriginal Land Trust under the Act, and on the seaward side of the high watermark of all other land in the Northern Territory (including the sea bed under the Northern Territory's territorial waters), should not be available for claim under the Act.

Conservation Land Corporation/Northern Territory Land Corporation land

• The Act should be amended to put it beyond doubt that lands held by the Conservation Land Corporation or the Northern Territory Land Corporation are not available for claim under the Act.
• The Northern Territory Government should do all in its power to recognise and protect traditional Aboriginal interests in land held by the Conservation Land Corporation/Northern Territory Land Corporation and, in relation to the former, give those Aboriginal people, with traditional interests in that land, an effective role in the management of any national park involved.

Other matters

• The 'sunset clause', s 50(2A), should be retained.
• Encourage the early passage of the Aboriginal Land Rights (Northern Territory) Amendment Bill (No. 2) 1997.

Land claims procedures - Chapter 12

Settlement of outstanding claims

• The Aboriginal Land Commissioner's functions should be expanded as follows:
• to intervene by way of conciliation or mediation to assist in the settlement or disposal of land claims;
• to make findings and recommendations under s 50(1)(a)(ii) of the Act by consent;
• to dismiss a land claim subject to such an order not taking effect under s 67A(5) until all parties have exercised their right to challenge it; and
• to specify in s 51 of the Act a range of measures to reduce formalities and improve efficiencies in the land claims process.
• Sections 50(1)(a)(ii) and 50(3) should be amended to provide that the Aboriginal Land Commissioner shall, in making his report and recommendations to the minister, have regard to all of the matters set out in s 50(3).
• A settlement conference should be convened by the Aboriginal Land Commissioner in an attempt to settle as many of the outstanding land claims as possible (including sea closure applications), with such conference proceeding on the bases that the Aboriginal Land Commissioner will not need to inquire into the question of traditional ownership, the Aboriginal Land Commissioner will be required to report his recommendations on strength of attachment and detriment (see above) and the Aboriginal Land Commissioner will only need to make recommendations on real and immediate detriment (on the assumption the Northern Territory Government will have a limited power of compulsory acquisition in relation to Aboriginal land).
• If the Minister is minded to entertain an application to amend Sched 1 to bring further land under the Act, a standard approach should be adopted, involving the Aboriginal Land Commissioner inquiring into any such proposals.
• Section 52(3) of the Act should be amended to bring the retiring age for an Aboriginal Land Commissioner into line with the retiring age of Federal Court and Supreme Court judges.
• Once the land claims process is complete, the final register of the land claims made under the Act should be placed in the custody of the registry of the Supreme Court of the Northern Territory, the control of access to archival material under the Act should be a function of that registry, and the remaining functions of the Aboriginal Land Commissioner under ss 50(1)(d) and (e) and 50(2) of the Act should then be conferred on a Northern Territory Supreme Court judge, from time to time, as required.

Other matters

• As many outstanding land claims as possible should be resolved by legislative intervention or settlement, and the remainder within two to three years.
• The error in relation to the grant made to the Gurungu Aboriginal Land Trust to include the Elliott Stockyards should be remedied without further delay.
• The minister should be required to consider and make his recommendations on a report from the Aboriginal Land Commissioner pursuant to s 50(1)(a) within six months of the receipt of such a report.
• A special allocation of resources should be made to the proposed Northern Territory Aboriginal Council and the Office of the Aboriginal Land Commissioner to ensure that the land claims process is completed within two to three years.

Sacred sites - Chapter 13

Findings

• The Northern Territory Aboriginal Sacred Sites Act offers a high level of protection to Aboriginal sacred sites in the Northern Territory and the Aboriginal Areas Protection Authority is a well-resourced and effective body. According to the Evatt Report and the Parliamentary Joint Committee Report, it is the best legislation of its kind in any jurisdiction in Australia. The workings of the Act are controlled by a Board where 10 of the 12 members are Aboriginal people chosen from throughout the Northern Territory. I have every confidence that the Northern Territory Aboriginal Sacred Sites Act and the Aboriginal Areas Protection Authority provide a high level of protection to Aboriginal sacred sites in the Northern Territory. There is even less reason to change the system now than there was when Justice Toohey rejected such a proposal in 1983.

Recommendations

• The Act should be amended by deleting both ss 23(1)(ba) and 69.
• Section 44 of the Northern Territory Aboriginal Sacred Sites Act should be amended to include in it a provision along the lines of s 28 of the Aboriginal and Torres Strait Islanders Heritage Protection Act.
• The Northern Territory Aboriginal Sacred Sites Act should be amended so that a person is not guilty of an offence under that Act in relation to a sacred site on freehold land in a town in the Northern Territory, where that freehold land was purchased without notice that it contained a sacred site.
• The Northern Territory Town Planning Act should be amended to include provisions requiring notice to be given to the Aboriginal Areas Protection Authority of all sub-divisional development applications within towns in the Northern Territory.
• The Northern Territory Government should take steps to amend the Heritage Conservation Act and Regulations to make it clear that Aboriginal people may enter and remain upon ancient Aboriginal sites, may use Aboriginal sacred objects and may otherwise deal with the places or objects referred to in the Act and Regulations, in accordance with Aboriginal tradition.

Permits and access - Chapter 14

Findings

• 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 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.

Recommendations

• Section 70 of the Act should be repealed;
• Part II of the Aboriginal Land Act (NT) should be repealed;
• Amendments should be made to the Trespass Act (NT) (as set out in this Chapter) to make it applicable to Aboriginal land and to allow Aboriginal landowners to make better use of it.

Statehood and related matters - Chapter 19

Findings

• In the event that the Northern Territory is admitted (or established) as a new state of the Commonwealth, the most likely options for the future of the Act are:
• the Commonwealth retaining the Act as a Commonwealth law;
• the transfer of the Act to the new state upon conditions set by the Commonwealth, for example, that the basic principles of the Act be entrenched in the new state's constitution; or
• the transfer of the Act to the new state with no conditions being attached by the Commonwealth.
• It is obviously desirable, if not essential, that the Aboriginal people of the Northern Territory continue to be involved in the processes leading to the establishment of a new State of the Northern Territory.

Recommendations

• That the minister and the Government have regard to the submissions made to the review on this important issue (see Appendix S to this report).

• Native title and community living areas - Chapter 20

Findings

• In relation to native title claims, precedence should be given to the rights of Aboriginal people under the Act and under the Community Living Areas provisions of the Pastoral Land Act (NT). This will not disadvantage the vast majority of Aboriginal people. The small percentage of the Aboriginal population that may be disadvantaged, and the very limited extent of any such disadvantage, when compared with the security and certainty provided to all other Aboriginal people, and all others involved in the process, justify the adoption of such an approach. Furthermore, if this approach is adopted it will result in: a single comprehensive and certain system in relation to Aboriginal land rights and associated claims on all Aboriginal land and community living areas and all land under claim pursuant to the Act and pursuant to the community living areas provisions of the Pastoral Land Act (NT) in the Northern Territory; and the preservation of all native title rights or interests in all other land in the Northern Territory.

Recommendations

The Native Title Act should be amended to provide that:

• A past or future grant of land under the Land Rights Act extinguishes all native title rights and interests in that land.
• A native title claim may not be commenced or continued over any area of land that is the subject of a claim under the Land Rights Act until the Land Rights Act claim is finally disposed of.
• Any native title rights that may exist in relation to any area of land that is the subject of a claim under the Land Rights Act cannot be asserted or relied upon until the Land Rights Act claim is finally disposed of.
• A grant of an estate or interest in an area of land that is the subject of a claim under the Lands Rights Act is exempted from the future act provisions of the Native Title Act in the same way as land that is granted under the Land Rights Act is exempted.
• The grant of a community living area in favour of an incorporated association of Aboriginal people pursuant to the Pastoral Lands Act (NT) be deemed not to constitute a future act under the Native Title Act, by including the grant of such a community living area within the definition of an act that causes land or waters to be held by or for the benefit of Aboriginal peoples or Torres Strait Islanders under a law mentioned in the definition of 'Aboriginal/Torres Strait Islander land or waters' for the purposes of ss 233(3) and 253 of the Native Title Act.
• Such a grant of an area of land as a community living area under the Pastoral Land Act (NT) should be deemed to extinguish any existing native title rights and interests in that land.
• Where an area of land is the subject of an application for a community living area under the Pastoral Land Act (NT), a native title determination application may not be commenced or continued in relation to that area of land until such time as the community living area application has been finally determined.
• Any native title rights that may exist in relation to any area of land that is the subject of an application for a community living area under the Pastoral Land Act (NT) cannot be asserted or relied upon in relation to that land until such time as the community living area application has been finally determined.

Inalienable title and land trusts - Chapter 21

Findings

• The inalienability of Aboriginal freehold title does not significantly restrict the capacity of Aboriginal Territorians to raise capital for business ventures or to make commercial use of inalienable freehold land, if they so wish.
• The inalienability of Aboriginal freehold title means that the land cannot be again lost from Aboriginal possession as happened to a great extent in Canada, where the Indian bands were given ordinary freehold title over tribal lands.
• Inalienability of title is a source of deep reassurance to Aboriginal Territorians that they cannot again be dispossessed of their lands for whatever reason. This is an important benefit of inalienability.
• Inalienable freehold title is the most appropriate form of title for Aboriginal land. It is the form of title that is most likely to protect the interests of Aboriginal people, including future generations, in their traditional lands.
• At present more than 500 Aboriginal people in the Northern Territory are members of these various Land Trusts. Apart from holding Aboriginal land and from time to time acting on the direction of the relevant Land Council, for example to sign an agreement, Land Trusts have little else to do. In my view, the effort that is devoted to maintaining the memberships of all these Land Trusts is largely wasted. A much simpler and more efficient system is needed.
• Land Trusts should be able to hold land, other than freehold land, under the Act. There seems to be no reason why a Land Trust cannot hold Territory title land, or land purchased on the open market which cannot become Aboriginal land under the Act. Among other things, this would avoid the necessity to have a multiplicity of incorporated associations to hold such land and it would bring the land under the more rigorous regulatory regime applicable to the Regional Land Councils as statutory authorities.

Recommendations

• The provisions of the Act that prevent the sale, transfer, or perpetual lease of Aboriginal land, except to another Aboriginal Land Trust, or the Northern Territory or Commonwealth Governments, should be retained.
• All other restrictions in relation to the Act upon the grant of any estates or interests, including licences, in Aboriginal land, should be removed.
• The provisions of ss 11A, 19 and 67A of the Act should be amended to provide that an agreement made pursuant to them can operate to grant an estate or interest in the land under claim before that land is granted under the Act. Any monies payable under such an agreement should be held in trust.
• Transfer all Aboriginal land into 18 separate regions with the RLC for each region becoming the trustee of the Land Trust in that region and the members of the council of the RLC carrying out the trustee duties presently carried out by the members of the existing Land Trusts.
• Aboriginal Land Trusts be permitted to hold land under any form of title available in Australia, as well as freehold title, under the Act.

Role of the Minister - Chapter 22

Findings

• The significant and extensive role of the minister in the Act is a product of the era of the 1970s.
• Limiting the minister's role in this way is consistent with Aboriginal people having greater control over their destinies and a real measure of self-determination.

Recommendations

That the Act should be amended so that all the existing ministerial consents, approvals, permissions and the like are removed.

That consideration should be given to having the minister delegate some, or all of his functions under the Act, to the relevant minister in the Northern Territory Government.

Sundry other matters - Chapter 23

Findings

• Traditional Aboriginal rights and interests do not, and cannot, found a claim to such things as:
• commercial rights in energy assets or radio frequencies in Australia;
• commercial fishing rights in the Northern Territory; and
• the ownership of wild animals, or a specific species of wild animals (for example crocodiles).
• Aboriginal Territorians' traditional land rights are simply that - traditional land rights. These rights are recognised and protected in numerous Commonwealth and Northern Territory statutory provisions. Apart from those traditional rights, Aboriginal Territorians possess the same rights as other Territorians do in relation to wild animals, fish, plants and other similar things.
• Traditional Aboriginal fishing rights are non-exclusive, traditional, communal rights to forage. These rights are already recognised and protected under various Commonwealth and Northern Territory statutory provisions.
• Public knowledge and understanding of the provisions of the Act is poor.
• Different incorporated Aboriginal associations performing essentially the same functions can be faced with different regulatory regimes. It seems desirable to rationalise the various systems - so that Aboriginal people have a simplified and culturally appropriate system for Aboriginal incorporated associations in the Northern Territory that also contains the necessary elements of assistance, transparency and accountability to ensure that public and private funds paid to the associations are applied to their proper purpose.

Recommendations

• That the definition of 'Aboriginal' in the Act should be retained and it should be left to each RLC to give whatever Aboriginal traditional content is needed to the definition on a case by case basis. Any person aggrieved by a decision of a RLC on this matter should have a right of appeal in accordance with the dispute resolution system recommended elsewhere in this report.
• That the RLCs should be required to negotiate and cause the relevant Land Trusts to provide to any Aboriginal community in their regions that wishes to obtain it, a rent free sub-lease for a suitable term, of the land upon which that community is situated. In each case, the sub-lease should be provided to the local Community Council, or some other suitable body. That the Community Council, or other body holding such a lease should be permitted to enter into a sub-lease of the land for housing or business purposes.
• That the Northern Territory Government should consider amending the provisions of the Associations Incorporation Act (NT) to allow the relevant minister to consent to the grant of a lease or sub-lease of land for a term of 12 months or less, similar to the provisions of s 26A(1)(b) of that Act.
• That the Commonwealth and Northern Territory Governments should consider drawing up a single Northern Territory scheme to regulate the affairs of incorporated Aboriginal associations in the Northern Territory.
• The RLCs and NTAC should be given the function to inform and educate the people of the Northern Territory, and particularly Aboriginal Territorians, on the provisions of the Act and how it operates.
• The following amendments should be made to the Act:
• ss 50(1)(b), 50(4) and 72 of the Act should be repealed;
• ss 10 and 77C of the Act should be amended such that land can be scheduled under the Act without requiring an amendment to the Act;
• the Act should be amended to ensure that confidential information held by a RLC or NTAC is protected;
• ss 16 and 63 of the Act should be amended to provide that the relevant Government must notify NTAC of payments received and where the Northern Territory is the recipient, it must also notify the Commonwealth Government;
• ss 16 and 63 of the Act should be amended to require that any monies received under those sections must be paid out within 28 days of their receipt. Where a part of the payment is in dispute, the Act should provide that at least the amount not in dispute is paid within 28 days.
• That a comprehensive review of the operations of the Act should be conducted in three to five years time.

Endnotes

1 [Attachment 5 includes issues which should be given consideration when investigating possibilities for regional authorities. It includes matters such as the relationship between a regional authority and other bodies such as regional councils, government departments, ATSIC and portfolio agencies such as the Commercial Development Corporation and the Indigenous land Corporation, and bodies established under other legislation such as Native Title Representative Bodies. Attachment 5 also lists matters relating to the powers and functions of regional authorities, accountability arrangements for regional authorities, election of boards for such authorities and their funding.]

2 [Attachment 2 includes 24 recommendations and an additional 11 matters which were considered in a prior discussion paper but which did not progress for further consideration in the final Review Report. Many of the recommendations in attachment 2 are of a technical nature correcting inadvertent limitations on powers or obsolete powers which pertained to the transition between the former DAA and ATSIC. Some of the proposed amendments have important implications including impacts on: the capacity of regional councils to fund land purchases (rec 2), delegation of powers to regional councils and others (recs 7 and 16), payment by the Commission for incidental program-related costs (rec 13), capacity to appoint committees and sub-committees (recs 1 and 17), powers to legally transfer programs to other agencies (rec 24), amongst other matters.]