Neate, Graeme --- "Review of the Northern Territory Land Rights Act" [1998] IndigLawB 71; (1998) 4(15) Indigenous Law Bulletin 7

Review of the Northern Territory Land Rights Act

by Graeme Neate

The first comprehensive review of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the 'Act') since the review by Justice John Toohey in 1983[1] was tabled in the Senate on August 21.

The Report is entitled Land Rights for the next generation. Report of the Review of the Aboriginal Land Rights Act (NT) 1976, and was prepared for the Federal Government by Darwin barrister John Reeves QC.[2]

Mr Reeves concludes that although it is difficult to arrive at a complete 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 some aspects of the legislative scheme were different. He recommends numerous changes to the Act, and to other legislation.

The Federal Government's response to the Report and recommendations will not be known until after the Federal election, when the report will be available in printed form.

Context of report

Mr Reeves observes that justice Toohey reviewed the Act after the first seven years of its operation `when the land claims process was relatively young and when the institutions formed under the Act were relatively new'.

The present review was conducted in `very different circumstances'. About 42.3% of the Northern Territory (573,000 square kilometres) has 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[3] `have become substantial bureaucracies filling roles and functions beyond those originally intended'.

Effectiveness of the Act

Mr Reeves notes that the Land Rights Act is widely regarded as the `high water mark of land rights legislation in Australia'.

There can be no doubt that the Land Rights 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.

He identifies a number of 'negative results' of the Act, including:

• the scheme which links Aboriginal tradition with statutory controls over, and benefits flowing from, Aboriginal land, through a statutory definition of 'traditional Aboriginal owners' - a scheme which has 'undermined Aboriginal self-determination in relation to Aboriginal tradition and the control of traditional lands';
• his scheme has given rise to many disputes about traditional ownership (as defined in the Act) and the associated individual rights and benefits - rights and benefits which are 'incongruous with the general scheme of the Act' - particularly the holding of Aboriginal lands by Land Trusts for the wider Aboriginal community that is entitled to use and occupy the land;
• the fact that monies received under the Act 'have not been strategically applied to the social and economic advancement of Aboriginal people of the Northern Territory as a whole' but 'have largely been dissipated in Land Council administrative costs and cash payments to individual Aborigines in particular areas of the Territory';
• a 'strident, oppositional political culture' which has developed in the Northern Territory with respect to Aboriginal land rights and which has been 'to the detriment of the people of the Northern Territory, and especially, of Aboriginal Territorians';
• the processes and procedures set out in the Act (particularly the 'go between' status of the Land Councils and the requirements to obtain a permit to enter Aboriginal land) which have 'imposed unnecessary costs on Aboriginal and non-Aboriginal Territorians alike'.

According to Mr Reeves, the most significant area in which the Act is not 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.

Basis of recommended reforms

Mr Reeves considers how reforms might be made which would address the negative results whilst preserving the 'very real benefits' that have been achieved. He attempts to weigh the costs of reforms against their likely benefits, and recommends that 'substantial and far-reaching changes' be made to the Act. The reforms are aimed at the next generation of Aboriginal Territorians in order to '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'.

He recommends that a preamble and purposes clause be inserted into 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 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.

Aboriginal Control over Activities on Their Land

Mr Reeves concludes that the Act (and associated Northern Territory legislation) have been very effective in:

• granting traditional Aboriginal land for the benefit of Aboriginal people and
• recognising traditional Aboriginal interests in, and relationships to, land.

However, he also finds that there is a need to reform the Act to provide Aboriginal people with effective control over activities on their land.

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'.

Changes to Land Councils

According to Mr Reeves, the two large Land Councils [NLC and CLC] have been successful in developing their political role and in preparing and presenting land claims, but have not been successful in performing other roles. They are perceived to be 'bureaucratic, remote, tardy and uninterested in local Aboriginal problems'. He contrasts them with the two smaller Land Councils which he says are closer to their constituencies, perform their functions following their view of Aboriginal tradition, and appear to operate more pragmatically and flexibly.

He argues that any adequate basis for Aboriginal land rights must accommodate both local and regional interests, and take into account the fact that regional cultures and ways of life are maintained on a regional level.

The importance of regional populations has not been acknowledged in the scheme of the Act, which 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'.

The Act should be reformed to:

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

He recommends the establishment of representative Regional Land Councils (RLCs) based on the eighteen existing Land Council regions, including the two small Land Council areas. Such bodies should be autonomous but subject to a system of supervision and accountability.

Aboriginal persons who have a traditional affiliation to an area of land within the region or who are permanent residents of the region would be entitled to be members of an RLC. No person could be a member of more than one RLC at any one time. Each RLC would be required to keep a register of its members.

Each RLC would have a Board of Directors, a Chief Executive Officer and staff.

The RLCs would 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. These functions would be undertaken by the proposed Northern Territory Aboriginal Council (NTAC) or other specified bodies.

Each RLC would also:

• 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;
• make decisions in relation to proposals for the
• use of Aboriginal land, such as decisions relating to exploration and mining;
• receive and spend funds provided by the NTAC for administration of the RLC or for public purposes;
• assist in the social and economic advancement of Aboriginal people living in the region and
• co-ordinate and assist the implementation of the Aboriginal social and economic development advancement programs of NTAC, the Northern Territory and Commonwealth Governments, and ATSIC, in its region.

Northern Territory Aboriginal Council (NTAC)

Mr Reeves recommends the establishment of the Northern Territory Aboriginal Council, an appointed (and eventually elected) authority to assist in the long-term social and economic advancement of Aboriginal Territorians through its social and economic advancement program.

The NTAC would also, among other things:

• maintain strategic oversight of the activities of the RLCs
• fund the administrative costs of the RLCs
• establish an investment trust and act as a `bank' for the RLCs
• complete outstanding land claims
• act as the sole native title representative body in the Northern Territory
• be responsible for receiving and distributing the mining royalty equivalents paid to the ABR and any other funds allocated to it.

Access to Aboriginal land

Under the Act, access is restricted to `almost half the land mass of the Northern Territory and about 80% of its coastline'. These restrictions have caused the greatest cost imposed by the Act on other Territorians (including government and the mining industry).

Mr Reeves recommends the removal of the requirement for permits to enter Aboriginal land. He concludes that reforms to access regulations 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 other Territorians.

Exploration and mining

Mr Reeves concludes that the 1987 amendments to the Act `did not overcome the deficiencies in the system'.

He notes that although the existing arrangements for exploration and mining on Aboriginal land are quite unsatisfactory and ought to be changed, no mining company, mining association, Land Council or Aboriginal organisation proposed that the current `veto' provision should be removed.

He recommends that:

• the Act and the Mining Act (NT) should 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;
• the existing power to consent to (or `veto') any exploration or mining proposals in respect of Aboriginal land within an RLC region, should be transferred to the RLCs, subject only to the existing national interest provisions;
• the Commonwealth Government should retain the power to cause a Proclamation to be issued that an exploration or mining project should proceed in the national interest;
• 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 NTAC;
• 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 and the terms and conditions of any renewal of an
• existing mining lease should be negotiated by the relevant RLC and the holder of the mining lease, provided that the relevant RLC shall not have a power of 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.

Aboriginal Benefits Reserve (formerly the ABTA) and Royalty Associations

Mr Reeves is critical of aspects of the legislation governing the administration of the Aboriginal Benefits Reserve (ABR) and Royalty Associations. He recommends that:

• 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 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, the 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 RLCs in the region for the benefit of those communities which can establish an actual adverse affect from mining on the community in net terms, that is, by taking into account the receipt of negotiated payments and any countervailing benefits obtained from the mining and
• all expenditure of all ABR funds and all other income from activities on Aboriginal land should be applied by the NTAC or the RLCs to particular purposes such as ceremonies, scholarships, housing, health etc.

Compulsory acquisition of Aboriginal land

Mr Reeves recommends that the Act be amended to enable the Northern Territory government to compulsorily acquire an estate or interest in Aboriginal land (or claimed land), other than the freehold interest, for public purposes. The nature and extent of the estate or interest would be limited to that necessary for the public purpose, and certain procedures would have to be followed.

Application of Northern Territory laws

Mr Reeves argues that there are some problems with the application of some Northern Territory laws on Aboriginal land. Any reform must recognise and protect the rights of Aboriginal people to use their land in accordance with Aboriginal tradition. However, these rights should not be absolute, and thus 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.

Provision should be made for the general application of Northern Territory laws to Aboriginal land. The Act should 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 s71 of the Act are preserved to the greatest extent possible.

Inalienable title, Land Trusts and the Minister's role

Mr Reeves concludes that 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.

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.

He recommends that:

• 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;
• Land Trusts should be able to hold land other than freehold land under the Act - such as Territory title land, or land purchased on the open market which cannot become Aboriginal land under the Act;
• all the existing ministerial consents, approvals, permissions and the like should be removed and
• 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.

Native Title

Mr Reeves suggests that 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).

He recommends that the Native Title Act 1993 (Cth) be amended to provide that:

• a past or future grant of land under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ('the ALRA') 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 ALRA until the ALRA 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 ALRA cannot be asserted or relied upon until the ALRA 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 Act is exempted from the future act provisions of the Native Title Act in the same way that land granted under the Land Rights Act is exempted;
• 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 and
• 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.

Other matters

Mr Reeves further recommends, among other things:

• that the definition of `traditional Aboriginal owners' be retained for the purposes of the remaining land claims;
• that strategies be developed for settling outstanding land claims as soon as possible (including a range of procedural and substantive amendments to the Act);
• that the Act and Northern Territory legislation concerning sacred sites be amended and
• that a comprehensive review of the operations of the Act should be conducted in three to five years' time.

The Report has been printed by the Canberra office of ATSIC and is also available on the ATSIC website at http://www.atsic.gov.au

Graeme Neate it Chairperson of the Queensland Lane Tribunals, and is author of Aboriginal Land Rights Law in the Northern Territory, (APCOL, Chippendale, 1989).

[1] Seven Years On, AGPS, Canberra, 1984. Justice Toohey was the first Aboriginal Land Commissioner, from 1977 to 1982.

[2] This summary is based on the summary of findings and recommendations set out in the Report.

[3] The Northern Land Council and the Central Land Council. Two other smaller bodies are the Tiwi Land Council (which covers Bathurst and Melville Islands; and the Anindilyakawa Land Council which coven Groote Eylandt.