Australian Indigenous Law Reporter
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Australian Indigenous Law Reporter |
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Ian Viner[1]
The Report of the Review of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the Land Rights Act) by John Reeves QC has a delightful photo of an Aboriginal child on the cover, no doubt to reflect the title given to the Report, Building on Land Rights for the Next Generation[2]. The aptness of this title will be much discussed in the Northern Territory, for Reeves' recommendations would remove the cornerstones of the structure which has given land rights to the current generation of Northern Territory Aboriginal people.
Under Reeves' proposals, a major shift of power and control over Aboriginal land into the hands of the Northern Territory Government will take place.
Governance of Aboriginal land will be centralised in a superordinate non-traditional Aboriginal institution, the NTAC. Initially, membership of this body would be wholly by appointment. Only later, at some indeterminate time, and by some indeterminate method, would this body be elected by Aboriginal people themselves. While control over Aboriginal land would on a superficial level be decentralised to Regional Land Councils, the actual political and financial power would be centralised in the NTAC and the Northern Territory Government. The authority of traditional Aboriginal owners under the Land Rights Act will be extinguished. Their authority under Aboriginal tradition will be removed and shifted by the legislative processes recommended by Reeves to Regional Land Councils and the NTAC, with ultimate power resting with the Northern Territory and Commonwealth Governments.
Whither land rights in the Northern Territory? Whither Aboriginal self-determination?
A fresh reading of the Woodward Report[3] confirms that everything reported on by Reeves had already been considered by Woodward. Yet Reeves, 25 years on, proposes a radical change to the system of land rights recommended by Woodward and implemented under the Land Rights Act. Reeves acknowledges repeatedly that the Land Rights Act is of great importance to Northern Territory Aboriginals. It is an Act which has 'high standing and immediate recognition among Aboriginal Territorians as being their Act and for them'[4], and yet he proposes radical change.
Is it possible that Woodward, his advisers, the Northern and Central Land Councils and their advisers, the Whitlam and Fraser Governments got everything so wrong in their understanding of traditional Aboriginal land ownership in the Northern Territory? Or is there some other design or purpose behind the Reeves recommendations?
Woodward had the best anthropological minds of the time advising him on how to develop a system of Aboriginal land tenure which was 'in harmony with traditional Aboriginal social organisation' and did not interfere with 'the Aboriginal authority system'.[5] Yet Reeves sees Woodward's proposals as wrong and not in conformity with the true nature of Aboriginal social organisation. Reeves heroically concludes that:
the focus on traditional Aboriginal owners within the scheme of the land Rights Act did not, and does not, adequately reflect either the state of the anthropological understanding, or the reality, of Aboriginal traditional practices and processes in relation to the control of the land.[6]
Hence, Reeves recommends removing two of the Act's key features - traditional owners and Land Trusts - and replacing them with geographically defined Regional Land Councils. However, in relation to land still under claim before the Aboriginal Land Commissioner, Reeves contradicts himself by insisting that the requirement for finding traditional Aboriginal owners as defined in the Land Rights Act should be retained.
Traditional ownership and Aboriginal traditional owners were the foundation of the land rights system which Woodward constructed. The foundation for Reeves' system is a perceived regional geographical basis for Aboriginal social organisation in the Territory. This change is fundamental and radical, and I expect that Reeves' attempts to manipulate anthropology to destroy the Land Rights Act will create disbelief and deep misgivings within anthropological circles.
Woodward did consider the possibility of recommending a land tenure system based on community councils, but preferred a system of Land Trusts and the authority of Aboriginal tradition as the foundation for the grant and holding of traditional land titles. He did, however, foresee two possible developments which might, in time and given particular circumstances, lead to community councils being the best bodies in which to vest Aboriginal land - in cases where communities were living on land that was not theirs traditionally, or in cases where an Aboriginal group had 'otherwise largely lost touch with traditional values'.[7] Woodward offered the view that:
the likely development over the next 50 to 100 years will be the gradual weakening of links with specific areas and sites and the strengthening-of community identity with larger tracts of land .[8]
Woodward could not have foreseen the strength of the homeland or outstation movement which followed the passage of the Land Rights Act. The resultant dispersal of Aboriginal people away from the large communities actually strengthened their links with specific areas and sites through their return to their traditional lands. It was the inbuilt flexibility of the Land Rights Act system of Aboriginal land tenure which enabled traditional links with specific areas and sites to be sustained and strengthened, and allowed the homeland movement to occur without the need for any change at all to the land tenure system established under the Act.
Reeves, on the other hand, would force a totally new land tenure model onto Territory Aboriginals; one not based on either traditional ownership or communities but rather, on geographical regions. Chapter 7 of the Report seems to be entirely based on a highly contentious and problematic post-Woodward anthropological analysis of traditional Aboriginal social organisation, while the main motivation appears to be Reeves' desire to replace the Northern and Central Land Councils with new Aboriginal organisations.
The contrast between Woodward and Reeves is stark. Reeves would impose a radical new system of land tenure, control, management and political organisation on Territory Aboriginals against their wishes. Woodward, on the other hand, envisaged change taking place within the flexible land tenure system he recommended through natural development and in accordance with the will of the Aboriginal people. He referred to a 50 to 100 year time span within which he thought there could be a gradual weakening of links with specific areas and sites and the strengthening of community identity with larger tracts of land. But he stated that the non-Aboriginal community:
through its laws and other pressures, has no more right to prevent such a development by artificially bolstering traditional institutions than it has to try to bring about any such changes.[9]
Moreover, Woodward believed the role of policy makers (the Commonwealth or Territory governments or a reviewer like Reeves) was to respect the choices made 'by the Aboriginal people themselves in a free and unhurried fashion', after consultation with Aboriginal community leaders, and yielding 'the final decision to the traditional owners of the lands'.[10] Reeves pays no such respect to the traditional owners. It will indeed be a daunting task to find a way to enable traditional owners and Northern Territory Aboriginals to make an informed choice as to whether to accept or reject in whole or in part the Reeves Report and its appendices of nearly 1,000 pages.
It is clear both from the terms of reference given to Reeves and his recommendations for radical change that neither the Commonwealth Minister who issued the reference nor Reeves and his advisers have heeded one of the basic premises of the Woodward approach - that change was the choice of the Aboriginal people themselves and not the prerogative of the 'policy makers'. This is a constant theme of Woodward and is derived from what I consider to be unchallengeable propositions: that the Act restored traditional Aboriginal land to its rightful owners and that it is not for governments to now impose changes to that ownership and to the rights which flow from that ownership without the owners' consent. These propositions are reflected in the stated aims of the First and Second Woodward reports. Woodward wrote in his First Report:
I am convinced that an imposed solution to the problem of recognising traditional Aboriginal land rights is unlikely to be a good or lasting solution. Although a result reached, so far as possible, by a process of consultation and agreement will undoubtedly take longer to achieve, it is far more likely to be generally acceptable and to have permanent effect.[11]
In his Second Report, Woodward declared that his objective was:
ensuring that none of these interests or rights [Aboriginal interest in land and rights over land] are further whittled away without consent, except in those cases where the national interest positively demands it - and then only on terms of just compensation ...[12]
Reeves' recommendations contradict both of these declarations. Reeves seems not to understand the enormity of the prescriptive act he proposes in expropriating Aboriginal land held by existing Aboriginal Land Trusts and legislatively placing ownership in the hands of someone else. To what other section of Australian society would the Commonwealth Government contemplate doing such a thing, one might ask? There would be an outcry of enormous proportions if such a proposal were made in relation to the property of non-Aboriginal Australians.
The purpose of the Reeves review and the manner in which it was constituted contrast sharply with Woodward's view of how change should occur and how reviews of the Act should take place. The Minister's reference to Reeves, the influence of the Northern Territory Government and the role in which the Northern and Central Land Councils found themselves cast during the review revealed the clear intention of the policy makers to impose change. Woodward, on the other hand. saw the need for 'the broad basis of the arrangements' proposed by him to remain undisturbed.[13] He suggested arrangements in the form of an unwritten agreement or understanding between the Land Councils and the Commonwealth Government to formally review the Land Rights Act in conference between those parties after three years, and then at seven year intervals. Such conferences were to be a 'deliberate and planned examination of the workings of the system ... to ensure that anomalies are brought to light and that the system does not become rigid and unresponsive to changing needs'.[14] The Reeves recommendations cannot, by any stretch of the imagination, be regarded as a review of the kind contemplated by Woodward. The reference given to Reeves, his recommendations, and the opportunity the inquiry has given historically hostile parties to renew their opposition to Aboriginal land rights are nothing less than a wholesale attack on the structure of the Land Rights Act and the historic rights which it has given to Northern Territory Aboriginals.
It is little wonder that the Land Councils, ATSIC and Aboriginal communities have resented being forced into the role of defenders of an Aboriginal land rights system which has been in operation for nearly 25 years and which has become recognised nationally and internationally as a high point in the struggle for indigenous land rights in Australia. Reeves' recommendations are, in reality, instruments for the destruction of the Northern and Central Land Councils and the imposition of a radical system of governance of Aboriginal affairs in the Northern Territory which allows for direct intervention and control by the Commonwealth and Territory Governments. The irony is that these changes are spuriously recommended in the name of self-determination. For over 20 years, the nature of Aboriginal relationship to traditional land has been the basis for identifying traditional owners, for the land claims process established under Land Rights Act, and for the management of Aboriginal land in the Northern Territory, And yet Reeves attempts to sustain his proposals using anthropological views which are completely at odds with the nature of traditional Aboriginal land relationships.[15]
Clearly, Reeves recognised that to succeed in his design for radical change he would need to counter, if not discredit, the views of the late Professor WEH Stanner, whose knowledge of Aboriginal life so profoundly shaped contemporary understanding of traditional Aboriginal relationships to land and provided the rationale for the recognition of Aboriginal customary law within the Australian legal system. Indeed, it is no exaggeration to say that it was Professor Stanner's explanation of traditional Aboriginal relationships to land to an alien non-Aboriginal Australian society 30 years ago which made possible the High Court's decision in Mabo [No 2][16] to accept Aboriginal customary law in the form of native title as part of the common law of Australia, and to reject terra nullius as an historical fact and a precept of legal theory.
It was Professor Stanner who wrote the passages in my Second Reading speech in the House of Representatives introducing the Land Rights Bill which describe the relationship of traditional Aborigines to land. I believe those words are as true today as a description of Aboriginal tradition and the relationship of traditional Aboriginal owners to land as they were 23 years ago, notwithstanding Reeves and his anthropological advisers:
Most of us now appreciate more sensitively than in the past that traditional Aborigines think, feel and act about land according to a plan of life a world apart from ours. Traditional Aborigines associate identifiable groups of people with particular 'countries' or tracts of territory in such a way that the link was publicly reputed to express both spiritual and physical communication between living people and their 'dream time' ancestors and between the 'country' as it now is and the' ancestral' country which had been given its name, its physical features, its founding stocks of food and water, and its owners and possessors by the ancestors themselves ...
Everywhere there was a plan of life - a good and satisfying life - based on an identifiable and unmistakable group of people forming a descent group or 'clan', living with relation to an identifiable territory publicly recognised as the 'country' of the group because of the actions of ancestors who had left in each 'country' sacred memorials- the totems and totemic sites of which we hear so much - as proof of entitlement for, and to guide and discipline, their descendants.[17]
The Land Rights Act signified the acceptance of this kind of traditional social organisation as a distinct system of indigenous customary law. This is also reflected in a later passage of the same speech, where I explained the objective in using Land Trusts as the legal vehicle for holding traditional land title or what after Mabo [No 2] is today called native title:
... the creation of these Land Trusts will achieve the primary objective of any Land Trust scheme which is the vesting, under Australian law, of rights corresponding with traditional Aboriginal rights, without risk that the rights conferred are not sufficient to cover traditional Aboriginal rights. I cannot over-emphasise the importance of this last mentioned aspect of land rights. It is a fundamental change in social thinking in Australia to recognise that within our community there are some people, the Aborigines, who live by a unique and distinct system of customary law.[18]
Realising the significance of the Land Rights Act in bringing Aboriginal customary law directly within the Australian legal system for the first time, the then Attorney-General, Bob Ellicott QC, gave a reference to the Australian Law Reform Commission to examine the place of Aboriginal customary law within Australian law. One of many ironies of the Reeves Report is that in order to justify his proposals, he draws on the Commission's report[19] to criticise the structure and operation of the Land Rights Act.
I believe that the Reeves proposals will be seen as the product of non-Aboriginal political ideas, designed with non-Aboriginal political concepts in mind to create a system of governance of traditional Aboriginal land which non-Aboriginal governments want to see established. The system of governance proposed is alien to the traditional Aboriginal relationship to land which supports and sustains Aboriginal social organisation, based on an identifiable and unmistakable group of people forming a descent group or clan living in relation to an identifiable territory publicly recognised as the 'country' of that group. Certainly, the lifestyles of Aboriginal people in the Northern Territory have been changed through contact with modern non-Aboriginal society, particularly technology, transport, communication and economics. In some cases, ties to traditional lands have also changed. But over 20 years of successful land claims hearings and the continuing maintenance of traditional lifestyle testify that Professor Stanner's account of Aboriginal society is as good today as it was when the Land Rights Act was enacted.
Given Reeves' recommendations and his criticism of the place of traditional Aboriginal owners in Northern Territory land rights, it is as well to re-examine some of the key definitions and operational provisions of the Land Rights Act:
'Aboriginal tradition' means the body of traditions, observances, customs and beliefs of Aboriginals or of a community or group of Aboriginals, and includes those traditions, observances, customs and beliefs as applied in relation to particular persons, sites, areas of land, things or relationships;
'traditional Aboriginal owners', in relation to land, means a local descent group of Aboriginals who:
(a) have common spiritual affiliations to a site on the land, being affiliations that place the group under a primary spiritual responsibility for that site and for the land; and
(b) are entitled by Aboriginal tradition to forage as of right over that land.[20]
The land councils must protect the interests of traditional Aboriginal owners[21] by consulting with them[22] and obtaining their consent in any matter connected to the use of the land held by a Land Trust.[23]
The Aboriginal Land Commissioner ascertains whether the applicants or any other Aboriginals are the traditional Aboriginal owners of the land claimed.
The Land Trusts hold title to Aboriginal land 'for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of the land concerned'.[24]
One of the great features of the Land Rights Act is its use of the age-old legal concept of trust law. This provides the flexibility to allow a Land Trust to hold title to Aboriginal land so that both traditional social organisation and contemporary community activity can be accommodated within the Land Trust area at the same time. Woodward recognised the inherent contradiction between non-Aboriginal structures such as community councils and traditional affiliations to land which are the basis under which land is held by a Land Trust. For far longer than 25 years, pre-dating Woodward and the Land Rights Act, Aboriginal people have learned to accommodate these differences far better than many non-Aboriginal observers seem to understand.
The Land Rights Act vests control over land held by a Land Trust in the land's traditional owners; that group which is traditionally affiliated to the land, which holds primary spiritual responsibility for the land and which hence has authority over the use and occupation of the land under Aboriginal tradition.
The Act also recognises that Aborigines who are not traditional owners of the land may be living on the land held by a Land Trust or have a traditional interest in the land, or be affected by activities on that land. In these cases, the Land Council-must also consult them, obtain their views and protect their interests.[25] Ultimately however, it is the consent of the traditional Aboriginal owners which must be obtained in respect of any proposal affecting Aboriginal land, since by Aboriginal tradition they hold primary spiritual responsibility for that land.
The symmetry and coherence in the land tenure system created by the Land Rights Act comes from the fact that the controlling agent at the core of the system is Aboriginal tradition itself. In the frequent political attacks upon the functions, authority and duties of the Land Councils, this central fact is constantly overlooked or denied.
The Reeves proposals, on the other hand, would place non-Aboriginal political structures and lines of authority at the centre of a new system of Aboriginal land tenure by creating Regional Land Councils and a superordinate governing body, the Northern Territory Aboriginal Council (NTAC) at the apex of power over all Aboriginal land in the. Northern Territory and, hence, over all Aboriginals living on or having traditional affiliations to land for which the Regional Land Councils will hold title.
A carefully crafted system of land tenure in the Land Rights Act, based on Aboriginal tradition and traditional Aboriginal ownership, would thus be replaced by non-Aboriginal political structures with full powers over the use, occupation, access to and management of traditional lands. The gross weakness of Reeves' system is that he makes no distinction between institutional structures which are appropriate for Aboriginal land and the different institutional structures which are appropriate for all other land on the continent of Australia. According to the Reeves recommendations, Aboriginal land is to be used for the same economic purposes, and the people living on it are to be governed by the same institutional power structures as govern non-Aboriginal people.
Some might see the division of power and authority between Regional Land Councils (analogous to the States) and the NTAC (analogous to the Commonwealth) as a good federalist model. In reality, it is a classic model of centralist government, with the NTAC having ultimate and paramount power in all matters concerning the use and management of all Aboriginal land in the Northern Territory, irrespective of traditional Aboriginal social organisation and ownership. Such a system appears to me to be the very antithesis of self-determination and Aboriginal tradition in the Northern Territory.
The Reeves model may well be a convenient way of destroying the Northern and Central Land Councils, both of which have long been a target for destruction by the Northern Territory Government and, more recently, by Deputy Prime Minister Tim Fischer and the Commonwealth Minister for Aboriginal and Torres Strait Islander Affairs, Senator Herron. But it will be interesting to see the reaction of the smaller Tiwi and Anindilyakwa Land Councils when they realise that the autonomy and independence they now enjoy, with the same functions, authority and duties as the Northern and Central Land Councils, will be stripped from them under Reeves' proposals. The Tiwi and Anindilyakwa Land Councils will become two of the 18 Regional Land Councils subservient to the power and authority of the NTAC and, through the NTAC, to the Commonwealth and Territory governments.
Reeves attacks what he calls the 'classical model' of traditional Aboriginal ownership which underpins the Land Rights Act, concluding that:
at the time the Land Rights Act was being formed and implemented, the classical account of a corporate local group, recruited by patrilineal descent, residing and subsisting on its estate, its spiritual home, was no longer generally accepted by anthropologists working in Australia. It is no longer accepted at all within anthropology as an adequate account of Aboriginal traditional practices and processes in relation to the control of land.[26]
This assertion is likely to create enormous divisions within anthropological circles in Australia. Leaving this aside, if this observation is true, then it is remarkable that there has ever been even one successful land claim in the 20 or so years of the Act's operation because, ex hypothesi Reeves, there would be no traditional Aboriginal social group in existence which would conform to the definition of Aboriginal tradition or Aboriginal traditional owners as defined in the Act.
Reeves calls the Act a one-sided reflection of Aboriginal processes and practices because it accords special status to Aboriginal traditional owners 'compared to other Aboriginal people who have traditional affiliations to land'.[27] This demonstrates an inadequate understanding of traditional relationships to land, and suggests that the anthropological advisers he relies upon have a poor grasp of the definition of Aboriginal tradition and traditional owners as used in the Land Rights Act.
Reeves' fundamental misunderstanding is that he does not grasp the fact that traditional Aboriginal owners hold the land within a Land Trust by virtue of their status in Aboriginal tradition. This is defined in the Act as including 'those traditions, observances, customs and beliefs as applied in relation to particular persons, sites, areas of land, things or relationships'.[28] Hence the land is held by the Land Trusts in accordance with that definition on behalf of all Aboriginal persons who, by Aboriginal tradition, have traditional affiliation to that land, This is the trust on which the land is held, but Reeves does not seem to understand the nature or effect of this trust. He does not discuss the meaning or significance of the definition of Aboriginal tradition and the role it plays within the land tenure system created by the Act. The presumption within the Act, quite appropriately, is that the traditional Aboriginal owners hold their position or status by Aboriginal tradition in respect of an area of land and will, in giving their consent to a proposal in connection with that area of land, do so in accordance with Aboriginal tradition.
In his attempts to destroy the anthropological validity of the Land Rights Act and the reputation of Professor Stanner,[29] Reeves seeks to rely upon the dynamic and adaptive character of the 'man-land relationship' described by Dr LR Hiatt.[30] And yet Hiatt's description of this relationship is accommodated by the very definitions of Aboriginal tradition and traditional Aboriginal owners given in the Land Rights Act. These definitions are capable of responding and adapting to the dynamics of Aboriginal traditional society whether in the context of a local descent group which has primary spiritual responsibility for a site and for land, or in the context of a larger community or regional population of which that group may be a part.
It is noteworthy that Reeves quotes from a submission to the Review by Dr Nicholas Peterson, consultant anthropologist to Woodward and subsequently an advising anthropologist in land claims:
The Act accurately reflects the hierarchy of rights and the locus of authority in respect of native tide rights in estates in most situations. It also facilitates the decision-making process in inter-cultural contexts by identifying those with the authority to make decisions.[31]
But subsequently, Reeves tries to derive some support for his conclusion that the Act is deficient from other comments by Dr Peterson which, it seems to me, do not support Reeves at all. Reeves cites Dr Peterson in the context of an anthropological discussion of what are known as secondary rights or interests by Aboriginal people in land of which they are not traditional owners, but to which they have a traditional affiliation. Dr Peterson's comments in relation to these secondary rights that:
I do not believe that there is any way to remove the politics and the concomitant contested nature of control over certain areas, that will not itself create further conflicts, problems and delays in decision-making.[32]
Dr. Peterson's comments are a fair and, I dare say, very sound observation. But disputes within traditional society over inheritance, succession and decision-making are no more a justification for removing authority over land from traditional owners and replacing it with a non-traditional regional organisation than the same kinds of disputes which are endemic within non-Aboriginal society can be seen as a justification for replacing the present Australian judicial system. Dr Peterson's comments are just as applicable to Reeves' proposed system where Regional Land Councils would hold the trust over traditional Aboriginal land as they are to the present system under the Act. Surely this is a case of throwing the baby out with the bath water.
It was fascinating to read Reeves' attempts to prove that the Land Rights Act was wrong because of Justice Blackburn's decision in the Gove Land Rights case.[33] Reeves cites Justice Blackburn's findings that the Yolngu clans had no proprietary interest under Australian law in their traditional lands and that Yolngu witnesses in Milirrpum had indicated that Yolngu clan members had traditional rights to use and enjoy lands for which other Yolngu clans had primary spiritual responsibility. On this basis, he then argues that Professor Stanner, Professor RM Berndt and Dr CH Berndt were all wrong in their understanding of traditional Aboriginal society.
The Yolngu people themselves, of course, vigorously disputed the finding that they had no proprietary interest in their traditional lands. They had petitioned the Commonwealth Parliament in 1963 with their famous bark painting to stop mining on their traditional lands by calling on the Commonwealth to recognise their customary interest in those lands, an interest which would today be recognised within the common law of Australia as native title following Mabo [No 2]. The Woodward Royal Commission came three years after the Blackburn decision. There is a distinct historical link running through the Yolngu fight for recognition of their land rights to the Land Rights Act, Mabo [No 2] and the Native Title Act 1993 (Cth) (the NTA).
The finding of Justice Blackburn on which the Yolngu claim foundered was that the relationship of the Yolngu clans and their members to land was not a proprietary interest which could be recognised in Australian law.[34] 'My task', said Justice Blackburn, 'is to examine the relationship of the clan to territory associated with it and to decide whether that association is a matter of property.'[35] In deciding against the Yolngu clans Justice Blackburn did so not on the basis of anthropology but of law when he concluded:
in my opinion, therefore, there is so little resemblance between property, as our law, or what I know of any other law, understands that term, and the claims of the plaintiffs for their clans, that I must hold that these claims are not in the nature of proprietary interests.[36]
This approach by Justice Blackburn was rejected by the High Court in Mabo [No 2] and Milirrpum was disapproved and not followed.[37]
It is also illuminating to read Toohey J's comments in Mabo [No 2] on the Land Rights Act in relation to the right of shared use of land in accordance with Aboriginal tradition. This was really what the Yolngu witnesses were referring to in evidence in Milirrpum, and was one of the factors which led Justice Blackburn to mistakenly find that there was no proprietary right under Australian law in the Yolngu lands:
It may be noted that the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the Land Rights Act) speaks in various places of 'Aboriginals entitled by Aboriginal tradition to the use or occupation of ... land, whether or not the traditional entitlement is qualified as to place, time, circumstance, purpose or permission' (20). The Land Rights Act recognises that traditional occupation may not be exclusive. It may be, for instance, that one group is entitled to come on to land for ceremonial purposes, all other rights in the land belonging to another group.[38]
The fact that Land Trusts hold the title and that the traditional Aboriginal owners have the authority over traditional lands under the Land Rights Act does not mean, as Toohey J. observed, that other Aboriginals may not also have traditional rights in respect of those lands.
Reeves' consideration of Justice Blackburn's decision is notable, if not remarkable, for the absence of any discussion of the effect of the High Courts' Mabo [No 2] decision on Milirrpum. This needs to be borne in mind when Reeves reproduces Justice Blackburn's remarks about 'communal native title' and the Rirratjingu and the Gumatj clans in the passage Reeves quotes from Milirrpum:
If the relationship of the Rirratjingu and the Gumatj to particular areas of land cannot be shown to be some form of proprietary interest, then there is only one meaning left for the phrase 'communal native title' in relation to the facts of this case, namely that all those Aboriginals, irrespective of clan, who at any time are or were accustomed to be on the subject land for any purpose regarded by them as lawful, are the joint holders of the communal native title in the whole of the subject land. The action could, on this footing, have been brought by one representative plaintiff in respect of the whole of the subject land. This was certainly not the plaintiffs' case.[39]
Reeves should have acknowledged the majority decision in Mabo [No 2], and recognised that by customary law, the Yolngu clans and their members do indeed have a proprietary interest in their traditional lands. Then he would have understood that Justice Blackburn could not have reached the conclusion he did in the passage quoted if he had acted on the legal principles which guided the High Court in Mabo [No 2]. Reeves could not then have used Justice Blackburn to justify his recommendation to overthrow the place of traditional owners under the Land Rights Act. Nor could he then have made the unsound observation that the opinion expressed by Professor. Nancy Williams that Yolngu local descent groups have proprietary interests in land was contrary to Justice Blackburn's decision. Instead, he would have been forced to admit that Professor Williams' opinion is in complete conformity with Mabo [No 2].
In relying so heavily on Justice Blackburn, Reeves has completely ignored the majority reasoning in Mabo [No 2] and its consequences. This process of reasoning is fundamentally flawed and taints the whole of Reeves' attack upon the Northern Territory land rights system based on traditional Aboriginal owners and Aboriginal tradition.
Like the NTA, the Land Rights Act, in using the definitions of Aboriginal tradition and traditional Aboriginal owners, recognises that according to customary law, 'native title' is communal, spiritual and physical. With the NTA recognising common law 'native title' holders and the bundle of native title rights and interests they are entitled to enjoy under customary law, both Acts recognise that 'native title' may be enjoyed by all those persons who have traditional affiliations with the land held by a Land Trust or by a determination under the NTA. As Brennan J said in Mabo [No 2]:
Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory.[40]
The rights of the traditional owners and others in Aboriginal land under the Land Rights Act come from the same source in Aboriginal tradition.
I also find it noteworthy that in all Reeves' discussion of traditional owners in Chapter 7, he does not give any consideration to the actual definition of traditional Aboriginal owners, particularly to the emphasis on the necessity for spiritual affiliation to a site on the land and to the traditional owners having primary spiritual responsibility for that site and for the land. In his selective consideration of anthropology, Reeves has overlooked something which is fundamental to Aboriginal land title under the Land Rights Act, too heritage laws throughout Australia and to native title determinations under the NTA - namely, sacred sites and sites of particular significance which demonstrate traditional connection to land. This omission is remarkable, but it is also understandable given the narrowness of Reeves' reliance on anthropology rather than on the reality of traditional Aboriginal social organisation as it occurs today. Although Reeves quotes (then Aboriginal Land Commissioner) Toohey in Chapter 8, he does not allow Toohey to illuminate his understanding of the role of traditional owners in Aboriginal society and in the operation of the Act. Reeves quotes Toohey's comments that a land claim under the Act:
has to be looked at not so much as an exercise in anthropology as an application of the Land Rights Act.[41]
and
... in the end findings and recommendations must have regard to the material presented. Hence decisions about the identity of traditional Aboriginal owners may vary. This may not always reflect orthodox anthropological thought but, as I have tried to stress in earlier reports, the Land Rights Act is not an exercise in anthropology.[42]
By. contrasting the notion of a classical anthropological model with the so-called new thinking in anthropology in order to justify his recommendations Reeves has really erected a straw man to knock down. This is clear from two of Reeves' conclusions and his recommendations in Chapter 8. He concludes firstly that Aboriginal Land Commissioners have not approached their task as an exercise in anthropology, but have rather identified a broad range of different kinds of groupings and relationships to land. Secondly, he concludes that the right to forage required by the definition of traditional Aboriginal owners in the Act is not exclusive to local descent groups, but also applies to regional or community populations. From these two conclusions, Reeves agrees with Toohey that:
the broad and flexible construction given to the definition of traditional Aboriginal owners has allowed a broad range of Aboriginal traditional owners to succeed in land claims under the Act.[43]
On this basis, he recommends that traditional ownership continue to be the threshold test for land claims. On the other hand, Reeves argues that traditional owners should no longer continue to enjoy their central role within the Act in relation to control of land and the receipt of benefits. Many readers will marvel at the inherent inconsistency of Reeves' conclusion that it is good enough to require land claimants to establish traditional Aboriginal ownership in the land claimed but, having done so, it is not good enough for the Land Rights Act to accord those owners the position Aboriginal tradition gives them in relation to the land for which they have responsibility.
One observation in Chapter 7 reveals a great deal about Reeves' thinking:
how will Aboriginal people address the problems posed by the inevitable extinction of the small localised patrilineal groupings that, ideally, hold the highest authority in relation to land?[44]
This question reminds me of the 'inevitable extinction' theories and schemes for 'breeding out the colour' of earlier policy makers which held that Aboriginality would be bred out by the mixing of the races and the 'Aboriginal problem' would thereby come to an end.[45] Reeves' statement that Aboriginal local descent groups face inevitable extinction is a huge assumption which history contradicts, and which is tantamount to suggesting that Aboriginal tradition itself faces inevitable extinction. It is also a suggestion to which I am sure Northern Territory Aboriginals will take great exception.
Reeves proposes that Regional Land Councils should replace the Northern and Central Land Councils as the primary administrative agencies under the Act. The Tiwi and Anindilyakwa Land Councils will remain as two of the 18 Regional Land Councils, but as I have pointed out, they would lose their autonomy and become subservient to the NTAC.[46]
The Regional Land Councils will make all decisions in relation to Aboriginal land at the regional level except for decisions expressly reserved for the NTAC by virtue of the NTAC's 'strategic oversight' function proposed by Reeves. This is a euphemism for the NTAC's proposed powers over the management and use of Aboriginal land, ABT monies, mineral royalties and other monies from the use of Aboriginal land, and dealings with the Northern Territory and Commonwealth governments and other Territorians concerning Aboriginal land.
It is not only the Northern and Central Land Councils which are threatened with removal from the scheme of the Land Rights Act. The Regional Land Councils would usurp not only their functions, but also the function of the Land Trusts as the holders of title to Aboriginal land, and the function of the traditional owners as the statutory decision makers.
These proposals for the transfer of power and authority over Aboriginal land to Regional Land Councils and the NTAC must of their very nature be destructive of the traditional authority of traditional owners and, hence, destructive of traditional Aboriginal social organisation itself.
The Woodward Report and the Land Rights Act both recognised the Northern and Central Land Councils as the central administrative agencies for traditional owners and Aboriginal people living on traditional lands.[47] Woodward recognised that the creation of the land councils 'went beyond anything normal in Aboriginal social organisation'.[48] But he proposed that they should have functions and responsibilities which would allow them to represent communities within their regional area, and also allow them to protect the interests of traditional owners and Aboriginal people with traditional affiliations to the land within each region. This reflected the 'guardianship of Aboriginal land interests' which the land councils accepted as part of their stewardship of Aboriginal interests and their subordination to Aboriginal tradition and traditional owners in decision making about control and use of Aboriginal land. This is reflected within the structure of the Act by the relationship created between land councils, Land Trusts, traditional owners, and people living on and having traditional affiliations to an area of land.[49]
The many successful land claims have led to a growth in the area of land to be administered and the number of communities and people which need to be represented by the land councils. It is therefore not surprising that the two Land Councils have had to build up a large administrative and professional organisation. Nor is it surprising that tensions should arise between some traditional owners and communities or between them and the Northern and Central Land Councils. It is the nature of such organisations, no less than the nature of any public or private bureaucracy, that dissatisfaction with some particular action of the organisation should bring calls for change from disaffected parties. It is therefore rather trite of Reeves to criticise the Northern and Central Land Councils as legalistic and bureaucratic compared to the smaller Tiwi and Anindilyakwa Land Councils.
This is not to suggest that there is no place for the creation of other Land Councils, on the principle that governance is generally best placed close to the people concerned. This principle is, in fact, built into the Act to provide flexibility to accommodate the changing dynamics of Aboriginal traditional interests in the Northern Territory without the need for radical change. Section 4(1) permits the creation of Land Trusts over particular areas of traditional land. Section 4(1 A) permits the separation of larger land title areas nominated in Sched I into smaller. Land Trusts. The obvious intent of both these provisions is to enable land title to be held in a way which more closely reflects traditional ownership. The grant of a new land title after a successful land claim can also reflect this policy.
The scheme of the Land Rights Act comes very close, probably as close as one can within wider Australian law, to the objective of allowing title to be held directly by traditional owners.[50] Under the NTA, native title is similarly held on trust by a prescribed body corporate whose members are the common law holders of traditional land. The emphasis in both acts is on the derivation of traditional rights and interests in land, whether communal, group or individual, from Aboriginal tradition as defined in the Land Rights Act, or traditional laws and customs as defined in the NTA.[51]
Reeves proposes[52] that Regional Land Councils should hold the regional area of land in trust for the benefit of all Aboriginal people who are entitled by tradition to use or occupy that land. All the present Land Trusts will be prescriptively extinguished and the land titles they hold taken over and held collectively by a Regional Land Council. This will occur irrespective of any traditional ownership or affiliation with a particular group or community which may constitute the basis for those Land Trusts. It is not difficult to see that this proposal will create enormous discontent amongst traditional groups or communities who already hold separate Land Trusts for their traditional land, acquired through the land claims process or by schedule grants. Their reaction will be no different from the reaction of anyone whose property is forcibly expropriated and handed over to be controlled or used by someone else. Through the power of access and compulsory acquisition over Aboriginal land which Reeves proposes to give the Northern Territory Government, his proposals will be seen as yet another example of dispossession to the advantage of that Government.
The Land Rights Act already provides a second inbuilt mechanism to meet the requirements for more localised Land Councils such as the Tiwi and Anindilyakwa Land Councils. Where a substantial majority of Aboriginals is in favour of setting up a new Land Council, the Commonwealth Minister may create new Land Councils within the regional area of the Northern and Central Land Councils.[53] The only condition necessary for setting up the new Land Council is that it be 'an appropriate area for the operation of a new Land Council'.[54] The Tiwi and Anindilyakwa Land Councils were set up under this provision. The possibility of creating new Land Councils was deliberately included by me in the framing of the Fraser Government's legislation (to the chagrin of some). This was designed to allow change from within the Act at the request of Aboriginal people themselves, rather than by the imposition of radical change of the kind now proposed.
Not unnaturally, there has been and will continue to be tension between, on the one hand, those who wish to form new Land Councils and, on the other hand, the existing Land Councils which argue for the value of having large Land Councils when dealing with governments and powerful economic interests. There is much truth in the saying that 'unity is strength'. The need for this collective strength was foreseen by Woodward and by me in confirming the central administrative authority of the two original Land Councils, but the social dynamics also called for some inbuilt flexibility in the Act, to allow for the creation of new Land Councils.
Since I approved the establishment of the Tiwi Land Council as Minister, there have been a number of applications for the creation of new Land Councils. Of these, only the Anindilyakwa Land Council has been created. In Chapter 9 of his report. Reeves examines the movements to create new Land Councils in Arnhem Land and central Australia. One strange yet significant omission is any analysis of why Ministers have refused to accede to any of the other applications to establish new Land Councils after considering the applications and commissioning reports. Reeves clearly had access to these reports to the Minister and I would be surprised if he had not also had access to the reasons why the Ministers refused to create the new Land Councils. Without the opportunity for public examination of these reports to the Minister or an account of the reasons why these applications were refused, I do not see how Reeves can invite the public or the Commonwealth Parliament to accept his chapter on 'Traditional Aboriginal owners, disputes and breakaway Land Councils' (Chapter 9) or his argument that 'irreconcilable disputes about traditional Aboriginal ownership of land have developed within the constituencies of the large Land Councils'.[55]
Apart from a movement around Daly River in the 1980s, all other moves to set up new Land Councils have been centred upon Arnhem Land communities and Lutheran-influenced communities in central Australia. Chapter 9 contains claims and counterclaims about traditional ownership disputes and calls for breakaway Land Councils. Without knowing the full facts, one cannot make any considered judgement of these claims. However, I think that it can confidently be said that Reeves' proposal for Regional Land Councils will not answer the demands for local autonomy by those who have already sought to create separate Land Councils, with the possible exception of the Anmatyerre and Ngukurr communities, which would become two of the proposed Regional Land Council areas. Even within the proposed Anmatyerre Land Council area there was opposition from the Warlpiri people, I imagine on the grounds that local Warlpiri people have long held title to part of the area. However, apart from noting that the first Anmatyerre application did not succeed, Reeves apparently took no step to ascertain why the Minister refused it, Before using this example as a justification for setting up a new system of Regional Land Councils, it would be necessary to consider what these reasons were.
The other breakaway Land Council movements referred to by Reeves are all motivated by traditional affiliations to particular areas and by a desire for local autonomy with all the powers of the larger Land Councils, land title having already been vested in the local Land Trusts since the first titles were granted under the Act. Here, calls for local autonomy are designed to achieve control over the management and use of traditional lands and access to royalty monies independently of the Northern Land Council by the creation of a local Land Trust and a local Land Council. This is typical of calls for political and economic independence originating from a traditional land base. Without access to the facts, I cannot make any judgment on the strength of these individual requests to set up new Land Councils, although the Minister apparently rejected the applications in each case. However, I can say that the Land Rights Act, as it presently stands, can provide that kind of political and economic independence to a particular group of Aboriginal people over a particular area of land where it is justified. The Regional Land Councils proposed by Reeves will never do that.
Let us take the proposed North East Arnhem Land Ringgitj Land Council as an example of an attempt to set up a breakaway Land Council by the Yolngu Laynhapuy clans. From the Reeves report, this application to the Minister to set up a new Land Council appears to be the product of an internal dispute between Yolngu clans in which, to use Reeves' words, the new Land Council' sought to challenge this monopoly [of the Gumatj Association] of wealth, privilege and power'. With other remarks by Reeves in chapter 9, this is a not unsubtle fingerpointing at the Chairman of the NLC, Galarrwuy Yunupingu, and the Gumatj and Rirratjingu clans.
Under the Reeves plan:
(a) The Yolngu clans of the Laynhapuy Homelands Association seeking to establish their own Land Council will not retain their own Land Trust title to their traditional lands. The East Arnhem Regional Council will hold that title.
(b) Membership of the Regional Council will not be limited to the Laynhapuy Homelands Association clans or to persons with traditional affiliations to the traditional lands of those clans; membership of the Regional Council will be drawn from a much wider geographical area from persons with traditional affiliation to land outside the traditional lands of the Laynhapuy clans, including the Gumatj and Rirratjingu clans, as well as persons living on other traditional lands within the region.
(c) The Board of Directors of the Regional Council will be chosen from all clans and communities within the Regional Council area, not exclusively from the Laynhapuy clans and those living on the traditional land of those clans.
(d) The Regional Council will be able to make decisions concerning the use, management and occupation of the traditional lands of the Laynhapuy clans without the consent of the traditional owners of those lands, that is to say, without the consent of the Laynhapuy clans. Put another way, decisions made by the Regional Council can override the views of the traditional owners of Laynhapuy traditional land.
(e) Even if decisions about the use and management of the traditional lands of the Laynhapuy clans are made in accordance with their wishes, the NTAC may, with the cooperation of the Commonwealth Minister, override the Regional Council and the Laynhapuy clans in respect of their traditional lands.
(f) The Laynhapuy clans will not receive or control mining royalty equivalents, mining royalties or other monies derived from the use of Laynhapuy traditional lands or 'areas affected' monies; they will be received and controlled by the NTAC and dispersed through the Regional Land Councils.
Thus the proposed Regional Land Councils under the Reeves plan will do nothing to satisfy the wishes of the Laynhapuy clans to create their own North East Arnhem Land Ringgitj Land Council. Instead, Reeves' Regional Land Councils will take away from the Laynhapuy clans and other traditional groups their right as traditional owners to give or withhold consent to manage and use their traditional lands in accordance with their own wishes. Under the current Land Rights Act regime, Land Councils may only do something in relation to Aboriginal land held by a Land Trust when the traditional Aboriginal owners give their consent. If consent is not given, then the proposed act cannot be carried out. Under the Reeves plan, the traditional owners (or any Aboriginal person or group having traditional affiliation with Aboriginal land) lose their right to withhold consent. Power and authority traditionally exercised by them over their traditional land will be given to persons who may not have any traditional affiliation with or authority over the land. Once the decisions reach the level of the NTAC and the Northern Territory and Commonwealth Ministers, decisions concerning the land will be made by people who have no traditional authority over the land whatsoever. A more radical and dramatic change to the land tenure system under the Land Rights Act could not be envisaged.
In Chapter 28 of his report. Reeves claims to lay down a pathway for 'building on land rights for the next generation'. The NTAC is designed to have ultimate control of Aboriginal land use and monies derived from such land use, including existing mining royalty equivalents, negotiated royalties and other monies. It would also undertake social and economic programmes 'in partnership' with the Northern Territory and Commonwealth governments as well as individuals and organisations 'from the broader Northern Territory community.' In other words, it is to be an agency for the development of Aboriginal land held by the Regional Land Councils. The NTAC's funding would come from the Aboriginal Benefits Reserve, augmented by funds from other sources including the Community Development Employment Programme (CDEP) and other funds earmarked for expenditure on Aboriginal economic, social and cultural advancement in the Northern Territory. If the combined funding for ABR, ATSIC and the total Northern Territory Government budget for Aboriginal programmes were channelled into the NTAC, this would, according to Reeves, give the NTAC a budget of between $448m and $738m.
As well as the significant financial control over the lives of Territory Aboriginals which NTAC would gain from such a budget, it would also possess great political power. This would come from Reeves' proposals for NTAC to have the power to intervene in 'major agreements' over land use, to control Regional Land Council funds and budgets and to be able to place a Regional Land Council under administration.
The NTAC would be an appointed body nominated by the Northern Territory and Commonwealth governments, which would become an elected body 'in due course' when 'a positive partnership' has developed with both governments and their agencies. When the Council has established its effectiveness in achieving its purposes, government appointment of its members would be replaced by their election by Aboriginal Territorians on a basis providing for an appropriate spread of regional representation. Reeves proposes that this election should take place once the land claims process has been completed, the boundaries of the RLC's have been settled, and a further review of the Act has been undertaken.[56]
When this might happen is a prospect, given the nature of governments, light years away. The NTAC would be a present day example of old-style paternalism coupled with new-style cronyism and political favour. Although this may suit some interests, I do not think that it is in the overall interests of all Aboriginal Territorians.
In proposing the creation of the NTAC in Chapter 28, Reeves is suggesting a powerful new bureaucracy and political entity which would have far more control over the lives and land of Aboriginal Territorians than the Northern and Central Land Councils could ever have under the Land Rights Act, and which would be neither representative of Aboriginal people in the Territory; nor in keeping with Aboriginal tradition.
The NTAC and the Regional Land Councils would interface with the Reeves proposals to give the Northern Territory Government the power of compulsory acquisition over Aboriginal land for 'public purposes'.[57] The Territory Government has long lobbied for this power. The Land Rights Act from its inception has prevented this by s 67. Experience with the States and the Wik amendments to the NTA clearly indicates that the Northern Territory Government will wish to define 'public purposes' as widely as possible, even to the extent, one would expect, of permitting compulsory acquisition for the purpose of making Aboriginal land available to third parties (non-Aboriginal) for private development perceived to be in the public interest, as the States have done in recent amending legislation.[58] The inviolability of Aboriginal land would be lost. The destruction of Aboriginal control of Aboriginal land would have begun. The Northern Territory Government does not need the power to compulsorily squire Aboriginal land for public purposes as it is not necessary to 'privatise' Aboriginal land in order to provide public works and services to the communities and homelands living on Aboriginal land. The Land Rights Act has ample provision, with Aboriginal consent, for the granting of necessary interests in Aboriginal land for the placing of public or private works and services on that land.
Under the key Reeves proposals, traditional Aboriginal land would no longer be controlled by those people who, by Aboriginal tradition, have ownership and responsibility for that land. Instead, control would be handed over to the NTAC, a body which although Aboriginal, would be, or would become in reality, an agency of government. Reeves makes other recommendations in relation to permits and access to Aboriginal land, the operation of the Aboriginals Benefit Trust Account (Aboriginals Benefit Reserve) and the royalty associations, the application of Northern Territory laws, the role of the Minister and the operation of the mining provisions of the Land Rights Act. All of these recommendations in their own way fit into the pattern of radical change I have described. Each subject deserves to be analysed in its own right, as well as placed in the context of the new system of Aboriginal land tenure and land management which would be the consequence of accepting the Reeves recommendations.
I will mention only four of these matters here: the abolition of the permit system for access to Aboriginal land, the proposal for a non-negotiable right of access to Aboriginal Land for 'reconnaissance exploration', the large scale application of Northern Territory laws to Aboriginal land, and a very intriguing proposal to delegate some of the power and authority of the Commonwealth Minister over Aboriginal land under the Land Rights Act to the Northern Territory Government. These proposals all complement one another in an overt design to transfer political responsibility and legislative and executive authority over Aboriginal land from the Commonwealth to the Northern Territory.
This transfer of legislative and executive authority over Aboriginal land to the Northern Territory, the power of compulsory acquisition and increased rights of access to Aboriginal land, when combined with the removal of traditional Aboriginal owners from their central place in the Land Rights Act and the transfer of authority over traditional lands to the Regional Land Councils and the NTAC, should all be seen as the whittling away of Aboriginal traditional rights and interests in land which Woodward sought to ensure would never happen without Aboriginal consent.[59]
Reeves claims that his recommendations will build on land rights for the next generation.
In my Second Reading Speech I said of the Aboriginal Land Rights Bill which I introduced into the House of Representatives:
This Bill is a major step forward for Aborigines in the Northern Territory not only for this generation but also for future generations who will benefit from it. They will have a land base that will be preserved in perpetuity.[60]
Will that objective of a land base preserved in perpetuity be achieved by the Reeves proposals? I think not.
Students of the history of the struggle for recognition of Aboriginal land rights in the Northern Territory will compare the story of the Woodward Aboriginal Land Rights Commission (1974), the Whitlam Land Rights Bill (1975) and the Fraser Government's Land Rights Act (1976) with the Reeves Report and its radical proposals for changes to Aboriginal land rights in the Territory. The House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs will deliberate on Reeves' proposed changes, and the Commonwealth Parliament may vote on them. But where will Aboriginal people themselves stand in all of this? How will they be informed of the vast ramifications for them of the proposals contained in nearly 1,000 pages of the Reeves Report and its appendices? How will the voice of Aboriginal Territorians be heard by the policy makers, and by the Commonwealth Parliament? Above all, how will Aboriginal consent to any of the Reeves proposals be obtained before the policy makers decide and the legislators legislate?
Reeves has no mandate for change without Aboriginal consent. The Commonwealth Parliament has no mandate to change the Land Rights Act without Aboriginal consent. It is their land and their Act.
[1] Ian Viner QC was the Minister for Aboriginal Affairs under the Fraser Government from 1975 to 1978, and introduced the Northern Territory Land Rights Act legislation into Federal Parliament in 1976. He was later a Member of the National Native Tittle Tribunal (1996-97), and was a member of the Council for Aboriginal Reconciliation from 1995 to 1997. He is in private practice as a barrister in Perth.
[2] Reeves J, Building on Land Rights for the Next Generation: Report of the Review of the Aboriginal Land Rights (Northern Territory) Act 1976, ATSIC, Canberra, 1998. For a summary of the Reeves Report, see Neate G, 'Review of the Northern Territory Land Rights Act' 4(15) ILB (1998) p 7. See also Mowbray M, 'Redefining Land Rights the Review of the Aboriginal Land Rights (Northern Territory) Act 1976 and Morphy M,' The use of anthropology in the Reeves report' 4(18) ILB (1999).
[3] Woodward E, Second Report Aboriginal Land Rights Commission, AGPS Canberra 1974.
[4] Reeves Ch 28 p 606.
[5] Woodward 1974 para 84.
[6] Reeves Ch 7 p 119.
[7] Woodward 1974 para 85.
[8] Woodward 1974 para 367.
[9] Woodward 1974 para 368.
[10] Woodward 1974 para 369.
[11] Repeated in the Second Report, Woodward 1974 para 8.
[12] Woodward 1974 para 4(a).
[13] Woodward 1974 para 761.
[14] Woodward 1974 para 763.
[15] Contrast Reeves Ch 7 with Woodward E, First Report Aboriginal Land Rights Commission, AGPS Canberra, 1973 pares 20-65 and Woodward E, 1974, Appendix A.
[16] [1992] HCA 23; (1992) 175 CLR 1.
[17] Hansard, 4 June 1976, p 3081.
[18] Ibid, p 3082.
[19] Australian Law Reform Commission, Report No 31, 1986.
[20] Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the Land Rights Act) s 3(l).
[21] Section 23(1)(b).
[22] Section 23(1)(c).
[23] Section 23(3).
[24] Section 4(l).
[25] Section 23(1)(a), (b), (c) and (3).
[26] Reeves J, Ch 7 p 133.
[27] Ibid, p 140.
[28] Land Rights Act s3.
[29] Reeves J, Ch 7 p 127.
[30] Ibid. p 139.
[31] Reeves J, Ch 7 p 143.
[32] Ibid, Ch 7 p 144.
[33] Reeves Ch 7; Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141.
[34] Milirrpum at 262, 263.
[35] Ibid at 270.
[36] Ibid at 273.
[37] See Deane and Gaudron JJ at 101. 102; Toohey J at 183, 185 and 188 and Brennan J at 59 and 60 as to the nature of traditional native title, and at 61 and 62 as to native title as a proprietary interest in land.
[38] Ibid at 190.
[39] Ibid at 273.
[40] At 58.
[41] Toohey J, Uluru (Ayers Rock) National Park and Lake Amadeus-Luritja Land Claim Report No 4, AGPS Canberra, para 33. Quoted in Reeves Ch 8.
[42] Toohey J, Anmatyerre and Alywarra Land Claim to Utopia Pastoral Lease Report No 6. AGPS Canberra, pare 89. Quoted in Reeves Ch 8.
[43] Reeves J, Ch 8 p 171.
[44] Reeves J, Ch 7 p 144.
[45] See McGregor R, Imagined Destinies: Aboriginal Australians and the Doomed Race Theory 1880-1939, Melbourne University Press.
Melbourne, 1997.
[46] See my discussion on p 7.
[47] Woodward J, 1974 paras 335-9; Land Rights Acts 23. See also my Second Reading speech and my speech on 17 November 1976 (Hansard, p 2779).
[48] Ibid, para 336.
[49] Sections 5 and 23.
[50] See my Second Reading Speech, p 3082.
[51] NTA s 225.
[52] Reeves J, Ch 27 p 597.
[53] Section 23(1)(a).
[54] Section 21(3)(b).
[55] Reeves J, Ch 9 p 200.
[56] Reeves J. Ch 28 p 607.
[57] Reeves J, Ch 17 pp 381, 383.
[58] See Burke P, 'The Native Title outcome takes shape in Queensland' (1999) 4 (17) ILB 11 De Souza A, 'Proposed native title legislation in Western Australia' (1999) 4 (17) ILB 9.
[59] Woodward E, 1974. para 4(b).
[60] Hansard 4 June 1976 p 3094.
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/1999/24.html