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Crough, Greg --- "The responsibility of State and local governments for service delivery to Aboriginal people: - the Halls Creek case" [1997] AUIndigLawRpr 9; (1997) 2(1) Australian Indigenous Law Reporter 1

The responsibility of State and local governments for service delivery to Aboriginal people:
the Halls Creek case

Introduction

There were two events in December 1996 that are likely to have significant ramifications for Aboriginal people in Western Australia for some years to come. In December 1996 the Supreme Court of Western Australia decided that the State Government was not bound by its own Health Act. The Shire of Halls Creek, on the basis of legal advice about the State's responsibilities under the Health Act, had instigated action against the State's Aboriginal Lands Trust because of its failure to provide appropriate sanitation facilities for a group of Aboriginal people living on ALT land within the town of Halls Creek in the Kimberley region.

During the 1996 State election campaign the Premier of Western Australia, Mr Court, announced that negotiations would begin after the election aimed at handing title to certain ALT reserve lands in the central-eastern section of the State to the traditional Aboriginal land owners of the region. In her speech on
21 November 1996, the Chief Executive Officer of the Aboriginal and Torres Strait Islander Commission (ATSIC) suggested that the handover of land by the Western Australian Government to the Ngaanyatjarra people was due to existence of native title and the Native Title Act. [1] While the native title claim was one factor that prompted the State Government to begin negotiations to transfer ownership of the land, the potential liabilities of the Government for service delivery to Indigenous people, and the maintenance of infrastructure on ALT land, may have also been very important in bringing about further change in the State Government's position.

Both matters raise quite fundamental questions about the future political, legal and financial relationships between Aboriginal people and the State and local government, and about the future delivery of government-type services to Aboriginal people in Western Australia and other areas of the country.

Who takes responsibility for service delivery to Indigenous communities?

Significant numbers of Indigenous people in each State and Territory are living on some form of Indigenous-held land or land set aside for the benefit of Indigenous people. In the Northern Territory, for example, there are more than 60 larger Indigenous communities, and hundreds of smaller outstation communities on land successfully claimed under the Aboriginal Land Rights (Northern Territory) Act 1976. The land owned by Indigenous people, or land still under claim, represents almost half of the land area of the Northern Territory. In Queensland, on the other hand, there are 121 parcels of Indigenous-held land but these represent less than 2.5 per cent of the State's land area. [2] This land has been returned to Indigenous people through various legal means including claims under the Aboriginal Land Act 1991 and the Torres Strait Islander Land Act 1991; and the Deed of Grant in Trust (DOGIT) lands created under the Land Act (Aboriginal and Islander Land Grants) Amendment Act 1982 and 1984.

Unlike most of the other States, in Western Australia there is no State-based land rights legislation. However, under the Aboriginal Affairs Planning Act 1972 the Aboriginal Lands Trust was established to centralise the management of Aboriginal reserves. The ALT is a body corporate consisting of a board all of whom are Aboriginal people. The ALT has the responsibility to acquire and manage the land on behalf of Aboriginal people. The land held by the ALT consists of reserves, some freehold land, pastoral and other leases. Some reserves and freehold land is also held by the Aboriginal Affairs Department. Under the Land Act 1993 the lands reserved are for the "use and benefit of Aboriginal inhabitants". In some areas of the State, including the Kimberley region, Aboriginal interests also own a considerable number of pastoral leases. The 259 parcels of Indigenous-held land represent about 12.9 per cent of the State's land area. [3] Most of this land is leased to Aboriginal organisations or individual Aboriginal people by the ALT. The recent Report of the Review of the Aboriginal Lands Trust, presented to the State Government in April 1996, commented on the continued existence of "reserves" in Western Australia:

In assessing the Aboriginal Lands Trust in 1996 it is imperative not to lose sight of the fact that the Aboriginal Lands Trust is a vestige of history of discrimination against Aboriginal people ... The very fact that the ALT still holds land `on behalf' of Aboriginal people at this point in time is remarkable ... Much of the land managed by the ALT found its status as `Aboriginal reserve' as a result of Government policies which decimated Aboriginal culture and society. [4]

The debate over the responsibility of each level of government for service delivery to the Indigenous people that are living on some form of Indigenous-held land has been important for many years. Numerous reports have pointed to the difficulties many Indigenous people experience because of Australia's Federal system of Government in which the constitutional responsibilities for Indigenous affairs, following the 1967 referendum, are shared between the States, Territories and the Commonwealth. Many of the States have taken the view that Indigenous people living on Indigenous-held land are the primary responsibility of the Commonwealth. The present Chief Executive Officer of the Aboriginal Affairs Department in Western Australia stated during Estimates Committee hearings in the Legislative Assembly in 1991 that:

We have substantial disagreements with the Commonwealth about some of the smaller communities it has created after little consultation with the State. We find it difficult to pick up Commonwealth commitments and will not do so ... [5]

Since the 1986 Aboriginal Communities Development Program (ACDP) agreement between the Commonwealth and Western Australian Governments, the State Government has progressively assumed responsibility for costs associated with cyclical repair and maintenance of power, water and sewerage services in 48 large, permanently established remote Aboriginal communities. ATSIC is responsible for funding capital works, upgrading and operational costs such as fuel in all Aboriginal communities. ATSIC funds the Water Corporation and Western Power under its State grants program for the provision of services to other communities that are not serviced by the State Government. [6]

Since the 1967 referendum the Commonwealth has made a number of attempts to clarify the responsibilities of each level of government for the delivery of services to Indigenous people, particularly those living in remote areas. The Commonwealth Parliament passed the Aboriginal Affairs (Arrangements with the States) Act in 1973 and agreements were entered into with each of the States other than Queensland. The Act facilitated the transfer of public servants from the States to the new Commonwealth Department of Aboriginal Affairs. An agreement between the Commonwealth and Western Australia was signed in April 1974, but as Fletcher observed, the agreement "allowed the state to extract itself from future commitments to provide services to its Aboriginal constituents for the next decade". [7]

Almost twenty years later ATSIC was closely involved in the negotiation of the National Commitment to Improved Outcomes in the Delivery of Programs and Services for Aboriginal Peoples and Torres Strait Islanders. The National Commitment was endorsed by the Council of Australian Governments in December 1992 and was intended to replace the agreements negotiated under the Aboriginal Affairs (Arrangements with the States) Act. The National Commitment was intended to clarify the responsibilities of the three levels of government and reinforced a policy role for ATSIC. The agreement envisages that bilateral agreements will be signed between the Commonwealth and the State and Territory Governments that set out the roles and responsibilities of each of the parties. While the wording of the National Commitment states that governments accept their responsibilities to deliver services to Indigenous people, in practice the lack of access to many mainstream services remains a problem for many Indigenous people. The result has been that ATSIC continues to grant fund more than 1,100 Indigenous organisations to deliver services to communities that in many instances would be expected to be the responsibility of the State, Territory or local government. At least two-thirds of ATSIC's budget is still committed to funding the provision of these types of services.

Recent reports to the WA State Government

Following the election of the Court Government in Western Australia in February 1993, the Government appointed the Independent Commission to Review Public Sector Finances of the State. The establishment of such reviews has now become common place with changes of government in the States. The Howard Government appointed the National Commission of Audit to undertake a similar task at the Federal level. The Western Australian Independent Commission briefly examined the Aboriginal affairs situation in the State and recommended that there be greater coordination between the Commonwealth and the State, that the Aboriginal Affairs Planning Authority be restructured, and the State Government adopt a whole-of-government system for coordinating the funding and delivery of Aboriginal programs. [8] The report of the Independent Commission made no reference to the 1,000 page Regional Report of Inquiry into Underlying Issues in Western Australia of Commissioner Dodson prepared for the Royal Commission into Aboriginal Deaths in Custody. [9] This report had been published only two years earlier and was scathing in its criticism of past policies and practices in the State.

Less than a year after the publication of the Independent Commission's report the Court Government received a two volume report from the Task Force on Aboriginal Social Justice. The Task Force was established to "review the activities of the Government of Western Australia in relation to the social conditions and development of Aboriginal people and to recommend a strategy for implementation of the Government's program". [10] The Government stated that it intended to give special emphasis to developing strategies to meet the education, employment, housing and health needs of Aboriginal people. The Task Force was also expected to provide a more detailed overview of public sector activity in the area of Aboriginal affairs than had been possible by the Independent Commission. [11]

Once again the Task Force focussed a considerable proportion of its efforts on the need for changes in the administrative arrangements of Aboriginal affairs in the State. The report recommended that the Aboriginal Affairs Planning Authority be upgraded to become the Aboriginal Affairs Department. The Department was to establish regional offices in various locations throughout the State. The report also recommended the establishment of a range of new monitoring groups, steering groups and panels. These included a Commission of Elders, a State Aboriginal Advisory Panel, Regional Advisory Panels, an Aboriginal Social Justice Progress Committee, an Aboriginal Affairs Planning Commission, an Aboriginal Affairs Co-ordinating Committee and Regional Co-ordinating Committees, and an Aboriginal Affairs Liaison Committee. [12] All of this was to be superimposed on the existing ATSIC structure of regional councils, zones, and State and regional offices.

Two further reports were produced for the Government as a result of the Task Force's recommendations. The first in June 1995 was the Report of the Chief Executive Working Party on Essential Services to Aboriginal Communities which among other things recommended that the State Government accept its responsibilities for the "normalisation" of the delivery of essential services to the larger communities but maintained that the funding of services to the growing number of outstations "remain primarily a Commonwealth Government responsibility". [13] The second was the report of the Aboriginal Affairs Legislative Review Reference Group in March 1996 which again emphasised the need for coordination and consultation between Commonwealth, State and local government agencies. The report also included recommendations for new legislation to replace the Aboriginal Affairs Planning Authority Act 1972. [14]

Each of the reports, and particularly the two most recent reports, emphasised the need for certain types of changes in Aboriginal communities in order to bring about the normalisation of service delivery. In particular these included changes in the tenure of land in the communities so that rates could be charged by local government, townsites could be formally delineated, charges for all essential services could be introduced and roads within and between the communities could be excised for vesting in the local authority or another appropriate agency. Not surprisingly, the resourcing of the improvements in the delivery of essential services was not discussed in any detail. The clear implication of the reports was, however, that Aboriginal people would be expected to pay for a greater proportion of the costs of the delivery of services, and for very remote communities and the increasing number of outstations the Commonwealth was expected to bear the costs of infrastructure and service delivery.

In some respects the policies put forward in the reports are similar to those introduced by the Northern Territory Government beginning at least a decade previously. The Northern Territory Government, since the beginning of the 1980s, had moved towards the "normalisation" of remote Aboriginal communities by progressively introducing formal local government (Community Government Councils), planning the development of the communities along the lines of other normal towns (such as introduction of street names and the preparation of Serviced Land Availability Plans), the introduction of power charges and the plans to introduce water charges. There is little doubt that the introduction of charges for electricity in the Northern Territory communities on 1 July 1992, for example, has imposed a considerable financial burden on many people in these communities. In 1995-96 revenue from the charges amounted to $8.4 million compared with total expenditure by the Government on the provision of these services of $35.5 million. [15] By way of comparison, the Western Australian Government's expenditure on such services will be approximately
$4 million in 1996-97.

Many of the Northern Territory Government's actions to "normalise" Aboriginal communities were aimed at dealing with the problems posed for it by the granting of an increasing number of areas of land to traditional Aboriginal land owners under the Aboriginal Land Rights (Northern Territory) Act. In particular, the powers over development on Aboriginal land provided to traditional owners in the Act have threatened the Northern Territory Government's administration of land and resources and undermined its attempts to spread local government across the Territory similar to the shires system in Western Australia and most of the other States.

In the Western Australian case, when the Government's attempts to extinguish native title through its Land (Titles and Traditional Usage) Act 1993 were over-turned by the High Court, the Government was faced with the prospect of very large areas of the State being subject to native title. As in the Northern Territory, large areas of the State is either vacant crown land or pastoral leases and numerous native title claims have been lodged under the Native Title Act covering a large proportion of this land. Further, in a matter that is the subject matter of this paper, the State was facing the prospects of a large legal liability for the provision and improvement of infrastructure on the ALT lands if the case involving the Shire of Halls Creek went against the Government.

It is clear that as the policy development associated with the above reports proceeded, there was somewhat greater emphasis given to the environmental health situation of many remote communities. In its chapter on health the Task Force on Aboriginal Social Justice endorsed the view that the public health provisions of the Health Act were not "composed exclusively for the use of Europeans, but should be regarded as a basic human right". However, the Task Force also expressed its concern that:

any provision of environmental health services must be accompanied by processes that will ensure their adequate maintenance, and support and adoption of appropriate maintenance behaviours by members of the communities concerned. [16]

The Hames report also commented on the possible legal liability of the State for the inequity in the arrangements for the delivery of essential services to remote communities. The report observed that at least one report prepared by the State Equal Opportunity Commission had noted that "this inequity may represent a potential liability to the State Government if actions were taken under the Commonwealth Racial Discrimination Act 1975." [17] The Hames report also referred to the potential liabilities of the Government from "insufficient and sub-standard service provision to these communities" under the Health Act. [18]

However, despite the acknowledgment of many of the problems of past government policies, the lack of coordination between different levels of government, and the reluctance of many local governments to accept their responsibilities to remote Aboriginal communities, much of the policy focus arising from these reports is on "the development of a consistent policy for the payment of rents, rates and charges, having regard to capacity to pay". [19] That is, despite all of the recommendations aimed at reducing duplication between levels of government, the restructuring of the State's Aboriginal affairs administrative arrangements, and the acceptance that many remote Aboriginal communities are not being treated in an equitable manner, the State Government's position was that the Commonwealth was responsible for the financial costs of providing services to the remote communities and the communities would have to contribute a greater share of the costs of these services. As one of the reports argued, "the rate at which the [proposed] program can be implemented will depend mainly on the negotiation of funding with the Commonwealth". [20]

In essence, there is a continuing strong element of assimilation in the policies of the State Government that are cloaked in new code-words such as "normalisation". The general thrust of the reports is that if Aboriginal people continue to return to live, for varying periods of time, on their traditional lands on outstations then the State's responsibility, given its financial resources, will be limited in most cases to the provision of a range of services only in the larger communities.

Health as a particular service delivery issue: the role of local government

Each of the reports referred to in the previous section commented on certain aspects of the role of local government in the provision of essential services to remote Aboriginal communities. The Task Force on Aboriginal Social Justice suggested that there were two specific issues that required early resolution: service delivery to outstations and the "rateability" debate. The latter issue was summarised:

This relates to the argument frequently advanced from local government that most Aboriginal Communities are on Crown Land. Crown Land is not rateable property. Local government is therefore under no obligation to provide services to Aboriginal communities on Crown Land. The argument expressed from local government, is further, that if all Aboriginal communities paid rates or payments in lieu of rates -- whether or not on Crown Land -- many of the funding problems faced by local government would be much less serious, and there would be much greater incentive for local government to act. [21]

These issues were also covered in some detail in the subsequent reports prepared for the Western Australian State Government. The Hames report noted that even though the Western Australian Municipal Association had acknowledged that local authorities have a responsibility to all permanent residents within their boundaries, and their funding assessments were based on the total population of each local government area (not just those who pay rates), "local government authorities themselves have, in many instances, taken the view that Aboriginal ownership of land absolves them of that responsibility". [22] As noted above, the Aboriginal Affairs Legislative Review Reference Group report suggested that these problems could be overcome by "the delineation of townsites, excision and appropriate vesting of public land and payments of rates and agreed charges". [23] This issue is not confined to Western Australia. For example, the link between the non-payment of rates by people living on Aboriginal land in New South Wales and the refusal of local government to deliver services was discussed in some detail in the Toomelah Report of the Human Rights and Equal Opportunity Commission; [24] the New South Wales Ombudsman's report on Toomelah; [25] and the National Report of the Royal Commission into Aboriginal Deaths in Custody. [26]

The result has been that in many Aboriginal communities building contractors have routinely ignored requirements for compliance with basic construction standards necessary to protect human health. The design and construction of many buildings and community infrastructure has been completely inadequate and:

have left those communities with defective systems and facilities that, in some instances, represent a more serious threat to health than the original conditions that were replaced. [27]

Further, environmental health problems have been undetected and unreported because of lack of health surveillance. The result is that action to correct the problems have usually either been absent or seriously delayed. Even though there has been substantial expenditure on infrastructure and housing in these communities there is still a disproportionately high incidence of infectious and other diseases. [28]

In order to discuss some of these issues in further detail it is useful to examine certain aspects of the historical development of local government in Western Australia. The earliest local governments were established as roads boards. Over time, however, as Fletcher has pointed out, the local government authorities were "encouraged and cajoled through financial incentives" to provide government services in regions outside the economic or political reach of other governments. [29] Substantial environmental health duties and powers were vested with local government authorities by the Health Act 1911 although these were "exercised in townsites, where the spread of disease was more easily controlled". [30] Since then there has been a significant expansion in the activities of local government, from property and environmental health, social, cultural and welfare programs, recreational services, resource conservation, and economic activities.

Various pieces of public health legislation were passed in each of the Australian colonies during the nineteenth century. The English Public Health Act 1848 provided for full recognition of the need for central control and a standard of efficiency in urban cleansing and sanitation. It created a General Board of Health and specified in detail the method of control of local authorities and method of sanitation in the cities. The Public Health Act which was passed in New South Wales in 1896 consolidated the previous legislation, but it was the Health Act 1902 that clarified the relationship between the Board of Health and local authorities. The Act gave very wide powers to municipalities and shires in relation to matters of health administration. [31]

The Public Health Act 1886 was the first legal health code in Western Australia and was framed very much along the lines of the English legislation of 1875. A new and more modern Health Act was passed in 1911 and included provisions requested by many local authorities to deal with the spread of typhoid. The extension of local authority control was to deal with the situation of:

a body of men who, for reasons of their own, choose to live outside municipal control. They are to be found in tents or in more permanent structures of wood and canvas; and being just outside the municipal area they are free to pursue their own course as to sanitary or other matters. [32]

The provisions of the Western Australian Health Act in regard to local councils that have a legal role as local health authorities are very detailed. These provisions were summarised in one of the reports to the Health Department of Western Australia on local health authority services to Aboriginal communities. The report included legal advice that each Aboriginal community within a municipal district has a legal entitlement to the effective delivery of health services by a local government acting as a local health authority under the Health Act. Section 26 of the Health Act is agency-forcing in that it authorises and requires every local health authority to carry out within its municipal district the provisions of the Health Act. A local health authority, the State Minister for Health, and the Executive Director Public Health of the Health Department have a common law duty of care to residents in the municipal district, including those in an Aboriginal community, to exercise powers and duties for their benefit. The Act obliges owners and occupiers of land to maintain satisfactory environmental health conditions and requires and authorises the relevant health authorities to ensure the maintenance of such conditions. [33]

In most of the more remote areas of Western Australia local government has not seen fit to extend the benefits of the Health Act to Aboriginal communities in a positive manner. In part this is because of the rates issue, in part it is because of the remoteness of many Aboriginal communities and the view that they are on private land (such as communities on Aboriginal-owned pastoral leases). In many of these areas activity on land outside of the main towns has effectively been unregulated, much as it was in the early part of the century in the more settled areas of the State. The result has been that many remote Aboriginal communities have remained unaffected by health, building and planning controls. In many instances Aboriginal communities have not always wanted to involve the local councils. In part this is because, as the Shire of Ngaanyatjarraku explained:

A great deal of emphasis seems to be placed on the involvement of Local Authority Environmental Health Officers in Aboriginal communities in what might best be described as a "bully boy" capacity ... Local Governments are also generally aware of the attitudes of communities to what they perceive as the overbearing attitudes of the various forms of bureaucracies ... Improvements in the attitudes of communities to health matters is hardly likely to be fostered or encouraged by the rigid application of the regulatory and punitive provisions of the Health Act. [34]

Another of the reports for the Health Department commented that the aim of environmental health regulation is to encourage self-management and self sufficiency. "The brash or unthinking exercise of authority will not help to achieve these goals." [35]

Even though in some of the shire councils in Western Australia a large proportion of council's population is comprised of Aboriginal people, including the Shire of Ngaanyatjarraku and the shires in the Kimberley region, there is no system of Aboriginal local government with the authority or funding to enforce the provisions of the Health Act. The State's position has been that it rejects the notion of establishing a separate system of local government for Aboriginal people and "the interest of Aboriginal people would be better served in the medium term by removing the perceived barriers to the extension of Local Government services". [36] This is unlike the situation in the Northern Territory, for example, where forms of local government have been extended to all of the major Aboriginal communities and the community councils receive direct local government funding from both the Commonwealth and the Northern Territory Governments. [37]

For many remote Aboriginal communities in Western Australia local government services, to the extent they are provided, are undertaken by Aboriginal organisations such as resource centres. The resource centres are reliant on ATSIC funding, particularly CDEP funding, to provide these services. None of these organisations has the legislative power to undertake local government services or any delegated authority to enforce the provisions of legislation such as the Health Act or building codes. [38]

The three Reports to the Working Party on Local Health Authority Services to Aboriginal Communities were in part prompted by the increasing evidence of very serious environmental health problems in some Aboriginal communities. One community in particular received considerable attention in the two years before the Working Party was established (August 1993). Kalumburu is a coastal Aboriginal community in the Kimberley region of Western Australia. A number of years ago there was considerable concern expressed about the health situation in the community, particularly the widespread incidence of hookworm and the extremely poor housing and environmental health conditions. As with many similar communities there has been a marked reluctance by the State and local governments to provide services to the community.

The Health Department of Western Australia wrote to the Shire of Wyndham-East Kimberley on
18 November 1992 pointing to the problems in the community. The Executive Director of Public Health explained:

The report documents widespread and severe deficiencies in the most basic of sanitary services and facilities and practices in Kalumburu. There is an indisputable relationship between these deficiencies and the prevalence of hookworm infection. These deficiencies result from manifold failures by authorities, owners, occupiers, contractors and other agents to ensure for the community the same level of sanitation that prevails elsewhere in the State, and specifically in other areas within the health district under the control of the Shire of Wyndham-East Kimberley, and which could be achieved, by reasonable effort, in Kalumburu. Of particular and overriding concern to me is the existence of conditions in the community which the Sanitation, Dwellings and Nuisances provisions of the Health Act are specifically designed to remedy and prevent ... The history of public health legislation is to provide the structural guarantees on an equitable basis within the community. [39]

In a letter to the Western Australian Municipal Association the Executive Director (18 November 1992) stated his views on the responsibilities of shire councils to Aboriginal communities:

I have formed the view that there is no basis under the Act for Local Authorities to treat Aboriginal communities any differently from other residents in their health district in respect of health services under the Health Act. Moreover, I am of the view that Local Authorities may and should exercise the same sanctions over owners and occupiers in Aboriginal communities as they may exercise in the general community ... The conclusions I have reached in respect of Kalumburu have general applicability to Aboriginal communities for they are not specific to the abatement of a particular declared dangerous infectious disease. [40]

The reports to the Working Party, particularly the legal advice contained in the report of Project No 1, and the continuing serious environmental health problems highlighted at Kalumburu and that clearly existed in many communities in the Kimberley region, led ultimately to legal action being taken by the Shire of Halls Creek against the State's Aboriginal Lands Trust.

The Halls Creek legal action

The Shire of Halls Creek had been concerned for a number of years about the sanitation facilities at Mardiwah Loop, a small Aboriginal community within the town of Halls Creek. The community of up to 200 Aboriginal people is located on Aboriginal Lands Trust land but there is no formal lease between the ALT and the community. On 27 October 1993 the Shire President wrote to the Commissioner of the Aboriginal Affairs Planning Authority (AAPA), which administers the ALT, pointing to the increasing numbers of Aboriginal people living on the land and the serious health problems that were developing due to the lack of sanitation facilities. The Shire President pointed out that because the land is Crown land the council has "no legislative control on buildings erected at Mardiwah".

Almost a year later the Council again wrote to the Chairman of the ALT (6 October 1994 and 6 December 1994). In the letter of 6 December 1994 the Shire Clerk pointed out that the Council had tried to prevent the installation of an "illegal septic tank type system for the treatment of effluent". The Shire Clerk argued that since there was no formal lease between the ALT and the people living on the land then the ALT was the owner of the land. The Council has "been advised of its responsibilities under the Health Act by the Health Department of Western Australia, and intends to carry them out for the health and well-being of its community".

The significance of this issue from the council's perspective relates to s. 99 of the Health Act which deals with sanitary conveniences. Section 99 prohibits a person from erecting, rebuilding, maintaining, or using any house without providing it with sanitary conveniences and with bathroom, laundry and cooking facilities in accordance with the by-laws of the local authority. Under subs. 99(3) the local authority is empowered to serve a notice on the owner of the house which does not satisfy the requirements, requiring the owner to provide "an apparatus for the treatment of sewerage". A person who neglects or refuses to comply with such a notice commits an offence under subs. 99(4). The Chief Executive Officer of the Aboriginal Affairs Department replied on 9 December 1994 that he would "assess the available options in overcoming the essential services difficulties" after a report had been prepared.

The Shire Clerk wrote to the Executive Director of Public Health on 16 December 1994 requesting assistance to deal with a "significant health problem" and that the situation at Mardiwah Loop was "untenable". The Chief Health Officer wrote to the Chief Executive Officer of the ALT about the situation on
25 January 1995 expressing support for the Council's efforts to rectify the situation and that:

In this instance the Shire Council have indicated that action to require the provision of facilities may be initiated against the owner/occupier of the land, in this instance the Aboriginal Lands Trust.

In response to representations from a Liberal Senator about the issue, the Western Australian Minister for Health replied (1 December 1994) that the State was attempting to clarify the legal responsibilities of local government towards Aboriginal communities under the Health Act, and that the State had required the enforcement of these local authority obligations on the Shire of Wyndham-East Kimberley in January 1993 in respect of the community at Kalumburu. However, the Minister was critical of some aspects of the Shire of Halls Creek's approach:

Until the Executive Director, Public Health commenced his current initiative, the Shire of Halls Creek had not thought to approach the Local Government Grants Commission to obtain an increase in funding through the processes of horizontal equalisation to meet their needs to service Aboriginal communities. The Executive Director, Public Health has not only caused them to do but has appeared on their behalf before the Grants Commission to argue their case ... the Shire has yet to effectively control the actions of developers and contractors who have left a legacy of environmental health problems.

The financial issues associated with this issue will be dealt with later in the paper.

In response to the Shire Council's letter of 16 December 1994, the Chief Health Officer stated that the advice provided to the Health Department in the report prepared by Michael Barker "appears to support Council's initiative in this regard".

So long as the parties concerned are given reasonable opportunity to comply with the directives, I endorse the action being contemplated (letter of 2 February 1995).

A Notice under the subs. 99(3) of the Health Act was issued to the ALT on 1 March 1995 by the Shire Council. This notice stated that the ALT, as owner of Lot 95, was required to provide and install sufficient apparatus for the treatment of sewerage on or before 6 April 1995. The Minutes of the Shire Council meeting on 23 February 1995 record the concerns of the Environmental Health Officer about the unwillingness of the ALT and the Aboriginal Affairs Department to provide the appropriate facilities for the community at Mardiwah Loop. By the date of the 27 April 1995 Shire Council meeting the minutes record that the ALT had not complied with the Notice under the Health Act. The Council resolved at this meeting to take legal action against the ALT under subs. 99(3) of the Health Act and informed the ALT on 8 May 1995 of its decision. A further letter on
12 July 1995 to the ALT referred to the penalties prescribed in the Act for non-compliance.

The Executive Director of Homeswest wrote to the Shire Clerk on 30 May 1995 requesting the Council to defer its legal action against the ALT under the Health Act while matters such as land tenure, funding for the infrastructure works and the overall planning requirements of the community were finalised. However, the Health Department subsequently advised the Shire (letter of 21 July 1995) that it would assist the Shire with "exceptional legal costs" incurred in implementation or enforcement and that "issues of legal precedent are at stake".

The case was to be heard in the Halls Creek Court of Petty Sessions on 12 September 1995 but was adjourned to 17 October 1995. In requesting the adjournment the Aboriginal Affairs Department indicated that consultations about rectifying the situation had taken place between Homeswest and AAD and that Northern Building Consultants had been engaged to perform an assessment of the needs of the residents of the community (letter of 7 September 1995). The Department also questioned whether the people at Mardiwah Loop had "the ability to manage the finances and personnel required to maintain the ablutions to an adequate standard". AAD suggested that a community plan be prepared and the planning process would "involve extensive discussions with relevant government agencies, both state and commonwealth, in terms of assistance they may be able to provide the community to develop over the next three years" (letter of 12 September 1995).

The Council was clearly becoming concerned about the delays in the start of the works to improve the sanitary situation in the community. In a letter to the Chief Health Officer of the Health Department the Shire stated:

My concern in all of this, is that promises were made by the relevant Minister, and Mr Wyatt, that 15 toilet blocks would be provided, at a cost of $362,000. Now I have heard that the figure has been reduced to $181,000, 7 toilet/ablution blocks, plus repairs. The AAD has reneged on its share of the money, only leaving the $181,000 promised by Homeswest (1 October 1995).

The Shire's concern was obviously triggered by the letter from the Executive Director of Homeswest to the Shire on 27 September 1995 outlining the proposed works program and which also requested the Shire to withdraw the Order against the ALT.

Before Homeswest lets the contract I will require agreement from your Shire that the proposed work is acceptable to you and will allow you to cease all legal action.

The Shire also expressed its concern to the Health Department (letter of 3 October 1995) that if facilities were improved at Mardiwah Loop Aboriginal people living in other Homeswest housing in Halls Creek would move to Mardiwah Loop. If this were to happen then a different sewerage system would need to be installed so that it could be connected to the Halls Creek sewerage system.

On 9 October 1995 the Aboriginal Affairs Department advised the solicitors of the Shire that the Crown Solicitor's opinion was that the ALT was the "owner" of reserve 41408 for the purposes of the Health Act; that the ALT is "properly regarded as an instrument of the Crown"; and that "neither expressly or by implication is the Crown bound by s. 99 of the Health Act". This issue had already been raised in one of the reports to the Health Department's Working Party on Local Health Authority Services to Aboriginal Communities. This report advised that the definitions of "owner" and "occupier" in the Health Act should be clarified particularly because of the situation facing Aboriginal communities living on ALT land with or without leases from the ALT; [41] and that:

Having regard to the evident purposes of the Health Act and its content, it is difficult to imagine a court concluding that the Crown, or its agents, should be considered immune from the environmental health controls created by the Act . . . there is every reason to believe that, in the light of the High Court's decision in Bropho, the Health Act binds the crown and its agents such as the Aboriginal Affairs Planning Authority, the Aboriginal Lands Trust (if they truly be Crown agents), Homeswest and the Western Australian Water Authority (both of which are expressly stated to be agents of the Crown in their respective Acts). [42]

The solicitors for the Shire were successful in having the matter referred to the Supreme Court of Western Australia. This was on the basis that the interpretation of the Health Act on this issue was of fundamental importance for local authorities and Aboriginal communities.

When the Shire had first expressed its concern to the ALT and AAD about the situation, a consultant was employed by AAD to assess the situation. This report was released to the Shire by AAD on 27 November 1995 even though it had been completed on 31 November 1994. Given that the matters had to be referred to the Supreme Court for adjudication, it is interesting that this report highlighted the benefits of areas such as Mardiwah Loop in a town like Halls Creek with high rates of visitation of Aboriginal people from surrounding areas and the pressure on the existing housing and other infrastructure. The report, however, stressed that:

At present almost none of the reserves or Mudewah Loop development, or camping areas satisfy the building and health requirements of current legislation and would be condemned if council was to follow the letter of the law. [43]

The final statement of the report was that the State Government "should give serious consideration to ways in which the local authority can be assisted to implement government policy". [44]

The case was heard on 4 November 1996, and on 4 December 1996 the Supreme Court handed down its decision. Templeman J decided that the Aboriginal Lands Trust was:

much more akin to the Sovereign than it is to the WADC [Western Australian Development Corporation]; I do not think it should be regarded as a commercial organisation. I am not persuaded, therefore, that a consideration of its functions and powers results in a weakening of the presumption that the Health Act is not binding on the Trust ... it is unlikely that the legislature intended to subject the Executive Government to the uncontrolled discretion of a local authority. [45]

In the submission on behalf of the Shire, a passage from the High Court judgement in Bropho was quoted where the Court concluded that the Western Australian Aboriginal Heritage Act did bind the Crown:

"Indeed, in a context where 90-3 of Western Australian land is Crown land and approximately 50 per cent of Western Australian land is what is described as "Vacant Crown land", the [Aboriginal Heritage] Act would be extraordinarily ineffective to achieve its stated purpose of preserving Western Australia's Aboriginal sites and objects if it applied only in respect of the comparatively small proportion of the State which is not Crown land". [46]

The High Court also pointed to the realities of modern government:

... the historical considerations which gave rise to a presumption that the legislature would not have intended that a statute bind the Crown are largely inapplicable to conditions in this country where the activities of the executive government reach into almost all aspects of commercial, industrial and developmental endeavour and where it is commonplace for governmental commercial, industrial and developmental instrumentalities and their servants and agents, which are covered by the shield of the Crown either by reason of their character as such or by reason of specific statutory provision to that effect, to compete and have commercial dealings on the same basis as private enterprise. [47]

Templeton J accepted the force in that submission but argued that in the case of the Aboriginal Heritage Act a large proportion of Aboriginal sites are to be found on Crown land. However, "I suspect that only a small proportion of houses to which the Health Act applies would be on Crown land". [48] While that is certainly the case for the State as a whole, in the Shire of Halls Creek nearly all of the land is some form of Crown land and most of the houses in the Shire are built on Crown land. The fact that most of the housing in the Shire (predominantly owned by Homeswest or the ALT) is not subject to local government regulation has been the complaint of the Shire for some time. However, it has been the practice of Homeswest to attempt to comply with local government building regulations. A similar situation was highlighted by The Ombudsman's Report on Toomelah in New South Wales. It noted that although Part XI ("Building Regulation") and Ordinance No 70 of the Local Government Act 1919 did not bind the Crown it had been the practice of successive Governments for many years that the Ordinance should provide the general standard for building construction undertaken by Crown authorities in the State. [49]

On 27 December 1996, the Aboriginal Lands Trust issued a rather extraordinary press release criticising "some local government authorities" for not providing services to remote Aboriginal communities. The Chairperson of the ALT, who is also the Chief Executive Officer of the Aboriginal Affairs Department, suggested that "the resources which went into the recent legal action by the Halls Creek Shire could have been put to better use". There was no acknowledgment of the fact that the ALT, unlike most other landowners, was not prepared to take any responsibility for dealing with the environmental health conditions on land it owns and is required to manage on behalf of the Aboriginal people living on that land. The ALT criticised the Shire for not working constructively to resolve this issue, completely ignoring the constructive ideas put forward by the Shire's Principle Environmental Health Officer to the conference of the Public Health Association of Australia and the State Environmental Health Conference a number of months earlier. [50]

Some issues

Clearly the legal issues associated with this case are complex and have considerable relevance to other parts of Australia. The case certainly raises many of the problems experienced by Aboriginal communities in their relations with other levels of government. One of the issues to arise from this case is whether local government has adequate funding available to undertake its responsibilities for the delivery of services to Aboriginal people, and particularly those under the Health Act. It was noted previously that the Minister for Health had argued that the Shire of Halls Creek had not argued for additional funding for the costs of environmental health services to the Local Government Grants Commission.

One of the reports prepared for the Health Department stated that

... despite their obvious need for greater recognition of the increased expenditure need in servicing Aboriginal communities, affected Local Governments have made little or no representation to the Commission in this regard. The Consultants believe that this has been to the detriment of the councils and Aboriginal communities concerned. [51]

One of the other reports commented, however, that the cost of "entitled services" to Aboriginal communities could not be absorbed within the existing resources of local government. The report estimated that 2.58 Environmental Health Officers (FTEs) would be needed by the Shire of Halls Creek and 9.28 for the four Kimberley Shires. [52] The need for the Grants Commission to take account of the additional costs to some councils of service delivery to Aboriginal communities was one of the recommendations of the report of the Task Force on Aboriginal Social Justice. [53] To argue its case for the recognition of an "environmental health allowance", the Shire of Halls Creek decided to ask for a special hearing with the Grants Commission. The Chief Health Officer of the Health Department also attended the hearing and outlined the responsibilities of local authorities under the Health Act. In the 1994-95 grant determinations by the Grants Commission $50,000 was provided as an environmental health allowance to the four Kimberley shire councils as well as the Shires of East Pilbara and Ngaanyatjarraku. This was calculated based on half of the cost of employing an Environmental Health Officer. [54] For 1995-96 this allowance for the Shire of Halls Creek was replaced by an Aboriginal Health Factor of 1.52 ($32,609).

The Grants Commission in its assessments of the funding of each council recognises a number of disability factors. For example, more than three-quarters of the Shire of Halls Creek's population is Aboriginal people and the poor socio-economic conditions experienced by many of these people is reflected in the low Socio-Economic Index calculated by the Australian Bureau of Statistics for the Shire. [55] The result is that on a per capita basis the Shire receives a higher level of financial assistance than the State average. The grant for 1995-96 for the Shire of Halls Creek was $638.95 per capita compared with the State-wide average figure of $77.15. [56] Despite this higher level of funding on a per capita basis, however, the Shire is only paid a grant that is the equivalent of 50 per cent of its assessed funding requirements. [57] The result is that even with a recognition of the legal responsibilities of local government for service delivery to Aboriginal communities, the question, as always, of where adequate funding will be obtained to deliver such services remains.

Another issue relates directly to the recently completed review of the Aboriginal Lands Trust. One of the reports prepared for the Working Party on Local Health Authority Services to Aboriginal Communities recommended that the Health Act be amended to clarify a number of the matters raised by the situation in Halls Creek. It would appear, however, that the State Government decided to take more decisive action by examining ways of minimising its potential legal liabilities for the delivery of services and improvements in infrastructure on ALT land. The Government established a review of the ALT (as recommended by a number of the reports prepared for the State Government and referred to previously in this paper).

The final report of the Review recommended that ALT lands be gradually transferred to Aboriginal people and/or incorporated Aboriginal organisations. It should be noted, however, that since 1994 the ALT had begun to transfer some land to Aboriginal people and Aboriginal organisations. The report did note there were concerns expressed during its consultations that the transfer of the title to the land might trigger a reduction in the State Government's support for the delivery of essential services. The Review, somewhat surprisingly given the unpreparedness of many State agencies to accept their responsibilities to deliver services to Aboriginal people, actually raised the issue of human rights, and concluded that:

The provision of essential services should not be affected by the tenure of the land. The obligation to provide these services stems from a human right ... attached to the person irrespective of where that person lives. To agree that government support for Aboriginal communities is determined by the underlying land tenure would be to simply perpetuate a history of prejudice in dealing with Aboriginal reserves. [58]

The Review suggested that these issues would need to be considered at the point of land transfer and perhaps detailed in the terms of the transfer. This could be done through special agreements ratified by Parliament which might also incorporate provisions relating to native title. [59]

The Shire of Halls Creek was certainly sufficiently concerned about this issue to raise it in a two page submission to the Review. When the Shire's submission was discussed at the 2 November 1995 meeting of the Shire the Environmental Health Officer commented:

My major concern is that the land will be quickly handed over to the people before the standards are raised to an acceptable standard. Given that they [the ALT] currently manage 27 million hectares of land for Aboriginal people, I wonder if our Court action has woken them up to their responsibilities and it is too much for them.

There is certainly a precedent for such a situation. When the former reserve lands in the Northern Territory were granted to Aboriginal Land Trusts, and when land is granted following a land claim under the Aboriginal Land Rights (Northern Territory) Act, there is no provision made for agreements in relation to the funding of service delivery on that land. The result has been that Aboriginal people in the Northern Territory own very large areas of land but also continue to experience very poor socio-economic conditions. In effect, Aboriginal people inherited the problems of under-funding and lack of basic infrastructure that had developed over many years. Some similar concerns have been expressed by the Assembly of First Nations about the proposed amendments to the Indian Act in Canada. [60]

There is some evidence that the State Government was concerned about the potential liabilities for the delivery of services and the maintenance of infrastructure arising from its ownership of the ALT lands. In a letter that accompanied a lease agreement offered to a community in the Fitzroy River valley area of the Kimberley region by the Aboriginal Affairs Department (5 March 1996) it is stated that the group being granted the lease should "agree to a perpetual lease containing conditions indemnifying the State in relation to recurrent funding and accident claims". Another lease document (dated 17 July 1996) included a new clause indemnifying "the Trust its servants and agents and the Crown in right of the State of Western Australia its servants and agents and all instrumentalities of the Crown and the servants and agents of each instrumentality" that had not been included in previous lease agreements prepared by the Government for communities in the area. [61]

The Shire of Halls Creek's legal action was aimed at clarifying the legal position of the ALT and the Crown with respect to the Health Act. A related and emerging issue in the State relates to the ownership of assets built on ALT land. Because the constructions on land are fixtures they belong to the owner of the land. This includes essential services assets such as power stations and water supply systems. In most communities these assets have been constructed using Commonwealth funds but they have never been formally transferred to a service agency. In the Northern Territory, on the other hand, the owners of fixtures on land that were transferred to the Aboriginal Land Trusts retained ownership of these assets. It has also been generally accepted that government agencies hold the fixtures associated with services such as water, power and schools. The Land Councils in the Northern Territory have been able to negotiate lease arrangements for new fixtures constructed on Aboriginal land.

With the corporatisation of the major service agencies in Western Australia the ownership of the assets on ALT land has become an important issue. In 1995 power and water were placed under a new regime with suppliers of services being licensed to provide a service by the Government. This opened the way for competition in line with the National Competition Policy. A licence is needed from the Western Australian Government to sell power and water and for this to be done there needs to be a recognised owner of the assets used by the supplier. However, the areas of the various energy and water service licence holders have been contained within the town boundaries. Most of the land in Western Australia is under pastoral lease or is ALT land and vacant Crown land. A significant problem has now arisen as the Government attempts to introduce charges for water and power on ALT lands, as suggested by the Hames report. The ALT lands are outside the existing energy and water licence areas.

There are other areas of ALT land that are within towns, including areas within the main towns in the Kimberley region. These areas of ALT land are within the existing power and water licence areas. However, they are generally not adequately metered and the collection of payments for the services is highly problematic. A number of Aboriginal communities and organisations have large outstanding debts for water rates. [62] There have been attempts by the Water Authority of Western Australia (now the Water Corporation) to get the ALT to accept responsibility, as the land owner, for the costs of services delivered in these areas. The ALT has maintained that it has Crown privilege and that it is not liable for the debts. Each of these issues demonstrate some of the unforeseen impacts of the National Competition Policy on Indigenous services policy.

Another issue raised by advice prepared for the Aboriginal Affairs Department was whether, notwithstanding the Supreme Court's decision in the Halls Creek case, there are other legal obligations on the State to provide services to remote Aboriginal communities. Bartlett's advice raised a number of issues relating to fiduciary duty. He concluded that the State Government owed and continues to owe a fiduciary obligation to redress the disadvantaged circumstances of Aboriginal people in the remote communities. Further, the Crown, State and Commonwealth, must act as, and meet the standards of, a fiduciary in the performance of its statutory duties. The Crown must also, as a fiduciary, act with the "utmost loyalty" to the Aboriginal people. Finally, the Crown must provide genuine equality in the delivery of services which reflect the disadvantaged circumstances of the Aboriginal people in the remote communities. [63]

To some extent these points have been recognised in many of the policy and review reports prepared for the State Government in recent years. There is an acceptance that remote communities, in particular, are disadvantaged in their access to many basic services. However, the sticking point continues to be which level of government is going to pay for the delivery of these services. If the experience of the Northern Territory is any guide, the Aboriginal population in some parts of Western Australia will become even more decentralised than it is now. If access to further areas of land can be negotiated, such as through native title processes, then the movement of Aboriginal people away from the larger communities is likely to accelerate. The costs of delivering basic essential services to a population distributed in this way will remain a major obstacle to improvements in the socio-economic conditions of these people.

Conclusion

The State Government in Western Australia has undertaken a number of reviews of its responsibilities for the delivery of services to remote Aboriginal communities. New administrative arrangements have been introduced and a number of pilot projects have been started. However, there is still continuing concern that the State and local governments are not prepared to fully accept their responsibilities and will not do so unless the Commonwealth provides an increased level of funding. Even if more funding were made available to local government, for example, to employ additional environmental health officers, the experience to date suggests that it is unlikely that there will be adequate funding made available for the infrastructure improvements that would be necessary following more extensive health inspections in many of these communities.

The recent Supreme Court decision in the legal action taken by the Shire of Halls Creek has clarified that the State is not subject to the Health Act. Consequently, while local government has certain legal responsibilities to enforce the provisions of the Health Act, and a legal obligation to do so, these legal powers do not extend to many areas of land on which Aboriginal people are living in Western Australia (and presumably other States). In shires such as Halls Creek, with most of the land being various types of Crown land, the court's decision effectively means that the Council has no power to ensure that Aboriginal people living on Crown land enjoy the benefits of the State's public health legislation. A relatively straightforward amendment to the Health Act to clarify that the State Government and its instrumentalities are bound by the Act would overcome this legal problem.

At least the Supreme Court action resulted in some improvements in the infrastructure of the Mardiwah Loop community. Whether other communities across the State will be so fortunate is not clear at this time, particularly given the increasing financial constraints on all levels of government. This is likely to be of particular concern if large areas of ALT land are granted to Aboriginal organisations and communities without agreements regarding the funding and delivery of services in the future.

* See Atyeo v The Avoriginal Lands Trust at p. of this issue of the AILR. l

Footnotes

* Research Fellow, North Australia Research Unit, The Australian National University, Darwin. I would like to thank the staff of the Shire of Halls Creek for their assistance with my research for this paper.

[1] P Turner, "Reshaping the Old, Charting the New, Public Management in the 1990s", Sir Robert Garran Oration,
22 November, Canberra (1996).

[2] Indigenous Land Corporation, Queensland Regional Area, Regional Indigenous Land Strategy 1996-2001, Adelaide, 11 (1996).

[3] Indigenous Land Corporation, Western Australia Regional Area, Regional Indigenous Land Strategy 1996-2001, Adelaide, 12 (1996).

[4] Review of the Aboriginal Lands Trust, Report of the Review of the Aboriginal Lands Trust, Government of Western Australia, Perth, 5 (1996).

[5] Parliamentary Debates, Western Australian Legislative Assembly, Estimates Committee B, 16 October 1991, p. 414.

[6] Aboriginal and Torres Strait Islander Commission, Annual Report 1995-96, AGPS, Canberra, 141 (1996).

[7] C Fletcher, Aboriginal Politics: Intergovernmental Relations, Melbourne University Press, Melbourne, 46 (1992).

[8] Independent Commission to Review Public Sector Finances (the McCarrey Report), Agenda for Reform, vol 1, Government of Western Australia, Perth, pp. 267-281 (1993).

[9] AGPS, Canberra.

[10] Task Force on Aboriginal Social Justice (the Daube Report), Report of the Task Force, Government of Western Australia, Perth, vol 1, ii (1994).

[11] Parliamentary Debates, Legislative Assembly, 2 December 1993, p. 8772.

[12] Task Force on Aboriginal Social Justice, supra, vol 1, iv-xiii.

[13] Chief Executive Working Party on Essential Services to Aboriginal Communities (the Hames Report), Report, Government of Western Australia, Perth, 19 (1995).

[14] Aboriginal Affairs Legislative Review Reference Group, Provision of Services to Aboriginal People in Western Australia: The Issues, An Action Plan and Proposed Legislation, Government of Western Australia, Perth (1996).

[15] Northern Territory of Australia, The Budget 1996-97, Budget Paper No 2, Part II, p. 456 (1996).

[16] Task Force on Aboriginal Social Justice, supra, pp. 322-323.

[17] Chief Executive Working Party on Essential Services to Aboriginal Communities, supra, p. 8.

[18] Ibid.

[19] Aboriginal Affairs Legislative Review Reference Group, supra, xi.

[20] Ibid, 32.

[21] Task Force on Aboriginal Social Justice, supra, pp. 272-273.

[22] Chief Executive Working Party on Essential Services to Aboriginal Communities, supra, p. 14.

[23] Aboriginal Affairs Legislative Review Reference Group, supra, p. 17.

[24] Toomelah Report: Report on the Problems and Needs of Aborigines Living on the NSW-Queensland Border, Sydney (1988).

[25] The Ombudsman's Report on Toomelah, Sydney (1992).

[26] E Johnston, National Report of the Royal Commission into Aboriginal Deaths in Custody, vol 4, AGPS, Canberra,
pp. 31-39 (1991).

[27] D'Arcy, Holman & Jolley, Assessment of Local Health Authority Service Delivery Needs in Aboriginal Communities, Project No 2, Report to the Working Party on Local Health Authority Services to Aboriginal Communities, Health Department of Western Australia, 2 (1994).

[28] Ibid.

[29] Fletcher, supra, p. 28.

[30] KPMG Management Consulting & Edward L Chown Consulting Services, Revenue and Resource Implications in the Provision of Local Health Authority Services to Aboriginal Communities, Project No 3, Report to the Working Party on Local Health Authority Services to Aboriginal Communities, Health Department of Western Australia, Perth, 16 (1994).

[31] JHL Cumpton, Health and Diseases in Australia: A History, AGPS, Canberra, p. 385 (1989).

[32] D Snow, The Progress of Public Health in Western Australia 1829-1977, Public Health Department of Western Australia, Perth, pp. 51-52 (1981).

[33] KPMG Management Consulting & Edward L Chown Consulting Services, supra, 2.

[34] Quoted in Ibid, pp. 66-67.

[35] M Barker, Responsibilities of Local Health Authorities and Legal Entitlements of Aboriginal Communities to Environmental Health Services, Project No 1, Report to the Working Party on Local Health Authority Services to Aboriginal Communities, Health Department of Western Australia, Perth, p. 33 (1994).

[36] Aboriginal Affairs Legislative Review Reference Group, supra, p. 17.

[37] For details of the funding arrangements, see Department of Housing and Local Government, Report on Local Government Grants Programs for 1995/96 (1996) Darwin; Northern Territory Grants Commission, Annual Report 1995-96, Darwin (1996).

[38] See for example GJ Crough & D Cronin, Aboriginal Resource Centres in the Kimberley Region, in Australian Institute of Aboriginal and Torres Strait Islander Studies, Final Report of the Review of the Aboriginal Councils and Associations Act, Volume 2: Supporting Material, Canberra (1996).

[39] Quoted in GJ Crough & C Christophersen, Aboriginal People in the Economy of the Kimberley Region, North Australia Research Unit, Australian National University, Darwin, pp. 142-143 (1993).

[40] Ibid, p. 143.

[41] Barker, supra, 50.

[42] Ibid, p. 56.

[43] D Brown, Planning for Aboriginal People in the Shire of Halls Creek, Report prepared for the Aboriginal Affairs Department, Perth, p. 13 (1994).

[44] Ibid.

[45] William Vernon Atyeo v The Aboriginal Lands Trust, Supreme Court of Western Australia, 4 December 1996, pp. 12-13.

[46] Quoted in Ibid, p. 14.

[47] Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1 F.C.90/027.

[48] Ibid.

[49] New South Wales Ombudsman, supra, p. 23.

[50] B Atyeo, `Aboriginal environmental health - barriers to improvement', address to the 51st State Environmental Health conference, Perth, 11-13 September 1996; `Relationships between Aboriginal communities and local government', address to the 28th Annual Conference of the Public Health Association of Australia Inc, Perth,
29 September 1996.

[51] KPMG Management Consulting & Edward L Chown Consulting Services, supra, p. 50.

[52] D'Arcy, Holman & Jolley, supra, p. 39.

[53] Task Force on Aboriginal Social Justice, supra, pp. xix-xx.

[54] Local Government Grants Commission, Annual Report 1993/94, Perth, p. 6 (1994).

[55] Shire of Halls Creek, Submission to the Western Australian Local Government Grants Commission for Amended Disability Factors, 15 March 1996, p. 5.

[56] Local Government Grants Commission, 1995 Annual Report, Perth, pp. 31, 34 (1995).

[57] Shire of Halls Creek, supra, p. 6.

[58] Review of the Aboriginal Lands Trust, supra, 14.

[59] Ibid, 40.

[60] First Perspective, Winnipeg, October 1996.

[61] Marra Worra Worra Aboriginal Corporation, pers com 1996

[62] Review of the Aboriginal Lands Trust, supra, p. 79.

[63] R Bartlett, The Legal Obligations Requiring Improvements in the Delivery of Services to Remote Aboriginal Communities, September, pp. 51-53 (1995).