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Editors --- "Building on Land Rights for the Next Generation. Report of the Review of the Aboriginal Land Rights (Northern Territory) Act 1976 - Digest" [1999] AUIndigLawRpr 6; (1999) 4(1) Australian Indigenous Law Reporter 136
Building on Land Rights for the Next Generation.
Report of the Review of the
Aboriginal Land Rights (Northern Territory) Act 1976
August 1998
On 16 July 1997, the Federal Minister for Aboriginal Affairs, Dr John Herron,
announced a review of the Aboriginal Land Rights (Northern Territory) Act
1976 (Cth) and terms of reference. The review was conducted over a
nine month period between November 1997 and July 1998 by John Reeves QC, a
Darwin solicitor, and made use of extensive oral and written submissions. The
report was tabled in Federal Parliament on 20 August
1998. After the Federal
election in October, the report was referred in December 1998 to the House of
Representatives Standing Committee
on Aboriginal and Torres Strait Islander
Affairs, for response within six months. Submissions to the Standing Committee
were due
by 12 March 1999.
This was the first comprehensive review of the Act since Justice Toohey's
review in 1983.
[1] Unlike previous reviews, Reeves' proposals are
designed to radically transform the Act, and have generated considerable
controversy.
The report is nearly 1000 pages long, including lengthy
appendices, and only the introduction and synopsis are reproduced here. The
report is the subject of the Commentary in this edition of AILR.
This
report is the product of a comprehensive review of the Aboriginal Land
Rights (Northern Territory) Act 1976 (the Act). It is the first
comprehensive review of the Act since Justice Toohey's review in 1983. Justice
Toohey reviewed the first
seven years of the operations of the Act when the
land claims process was relatively young and when the institutions formed under
the Act were relatively new.
The present review has been conducted in very different circumstances. About 42
per cent of the Northern Territory has now been
granted to Aboriginal Land
Trusts for the benefit of Aboriginal people; the land claims process is nearing
completion; and the two
large Land Councils have become substantial
bureaucracies filling roles and functions beyond those originally intended.
There can be no doubt the Act has had many positive results for Aboriginal
people in the Northern Territory. It has returned much
of their traditional
land to them and helped to enrich their culture and rebuild their confidence as
a people.
However, the Act has produced some negative results as well. These were
highlighted during this review. The most fundamental source
of these in the Act
is the linking of Aboriginal tradition with statutory controls over, and
benefits flowing from, Aboriginal land,
through a statutory definition of
'traditional Aboriginal owners'. This scheme has undermined Aboriginal
self-determination in relation
to Aboriginal tradition and the control of
traditional lands. If Aboriginal self-determination has any meaning at all, it
must apply
first and foremost to the processes and practices of Aboriginal
tradition and the effective control, by Aboriginal people, of their
lands.
This scheme has had other negative results. It has given rise to many disputes
about traditional Aboriginal ownership, as defined
in the Act, and the
individual rights and benefits associated therewith. These individual rights
and benefits are incongruous with
the general scheme of the Act. Under the Act,
Aboriginal lands are not held privately by traditional Aboriginal owners, or
other
individuals, but by Land Trusts, collectively, for the wider Aboriginal
community that is entitled to use and occupy Aboriginal land.
At least three other negative results of the Act were highlighted during this
review. Firstly, the monies received under the Act
have not been strategically
applied to the social and economic advancement of the Aboriginal people of the
Northern Territory as
a whole. These monies have largely been dissipated in
Land Council administrative costs and cash payments to individual Aborigines
in
particular areas of the Territory.
Secondly, a strident, oppositional political culture has developed in the
Northern Territory with respect to Aboriginal land rights.
The main players
have been the two large Land Councils and the Northern Territory Government.
Wherever the fault may lie, the absence
of a productive partnership between the
Northern Territory Government and Aboriginal people and their institutions,
especially the
two large Land Councils, has been to the detriment of the people
of the Northern Territory, and, especially, of Aboriginal Territorians.
Finally, the processes and procedures set out in the Act, in particular the
'go-between' status of the Land Councils and the requirement
to obtain a permit
to enter Aboriginal land, have imposed unnecessary costs on Aboriginal and
non-Aboriginal Territorians alike.
These processes and procedures have, for
example, increased the costs for the mining and other industries, and
restricted access
by non-Aboriginal Territorians to almost a half the land mass
of the Northern Territory and about 80 per cent of its coastline.
In considering what reforms might be made to address these negative results I
have had to consider how such reforms can be made
while preserving the benefits
that have been achieved. I have also been mindful that changes normally come at
some cost and that
these costs need to be weighed against the likely benefits
such reforms will produce.
It is in the belief that reforms can be made that will build on what has been
achieved for the lasting benefit of the Aboriginal
people of the Northern
Territory, particularly the next generation, and the whole of the Northern
Territory, that I have recommended
that substantial and far reaching changes be
made to the Act.
These reforms are intended to address the negative results of the Act referred
to above whilst retaining the very real benefits.
They can be reduced to the
following very broad summary:
- Aboriginal self-determination in relation to Aboriginal tradition and the
primary control of Aboriginal lands will be best achieved
by the formation of a
system of Regional Land Councils (RLCs) that will make all decisions in
relation to Aboriginal lands at the
regional level.
- A new central body, the Northern Territory Aboriginal Council (NTAC) is
proposed. Its main function will be to achieve the socio-economic
advancement
of the Aboriginal people of the Northern Territory. It will apply the monies
presently received under the Act to these
purposes, but it can only effectively
achieve this outcome if it forms a genuine productive partnership with the
Northern Territory
and Commonwealth Governments, and individuals and
organisations from the broader Northern Territory community.
- Current statutory impediments to a productive partnership between
Aboriginal people and other Territorians should be removed. These
reforms
include removing the need to obtain permits to enter Aboriginal land (and
applying instead the Northern Territory's trespass
laws), and giving the
Northern Territory Government a limited power to compulsorily acquire an
interest in Aboriginal land for public
purposes.
The details of these proposals, and the ways in which I recommend they
interact, are set out in the body of this report.
As the title to this report suggests, it is aimed at the next generation of
Aboriginal Territorians - the young people living in
settlements, on
out-stations and in towns in the Northern Territory. They will soon jointly
inherit vast areas of Aboriginal land
in the Northern Territory, and a strong
and vibrant Aboriginal culture. However, they will also inherit profound and
deepening social
and economic problems. The reforms I have proposed will
maintain and strengthen their long-term security with respect to their culture
and their traditional lands, and offer them the opportunity to achieve better
social and economic outcomes than their parents have
been able to.
The principal findings and recommendations of this review are set out below by
term of reference and chapter number.
- The main purpose of the Act was to grant traditional Aboriginal land in
the Northern Territory to, and for the benefit of, Aboriginals.
- The other purposes of the Act included:
- to recognise traditional Aboriginal interests in, and relationships to,
land; and
- to provide Aboriginal people with effective control over activities on
the land so granted.
- The Act and associated Northern Territory legislation have been very
effective in granting traditional Aboriginal land in the Northern
Territory for
the benefit of Aboriginal people and in recognising traditional Aboriginal
interests in, and relationships with, land.
- The Act has been less than effective in providing Aboriginal people with
effective control over activities on their traditional
land.
- The main purpose of the Act is likely to be achieved in the near future
and one of the other purposes has been achieved. As to the
remaining purpose,
there is a need to reform the Act to provide Aboriginal people with effective
control over activities on their
land.
- That a preamble and purposes clause be inserted in the Act expressing the
future purposes of the Act along the following lines:
- to encourage the formation of a partnership between Aboriginal people in
the Northern Territory and the Government and people of
the Northern Territory;
- to provide Aboriginal people with effective control over decisions in
relation to their lands, their communities and their lives;
and
- to provide opportunities for the social and economic advancement of
Aboriginal people in the Northern Territory.
Costs and benefits of the Act for Aboriginal Territorians
- Easily the most important social, cultural and economic outcome arising
from the transfer of 573,000km
[2] - 42.3 per cent of the Northern
Territory - to Aboriginal Territorians is the huge consumption gain that has
accrued to them as
a result. Since much of the land claimed is of marginal
economic value in alternative uses, creating a situation that enables
Aboriginal
Territorians to own, live on or freely visit their traditional
'countries' is a highly productive use of this land.
- The immense satisfaction that Aboriginal Territorians derive from their
land rights is the only justification needed to support
their ownership of the
land, notwithstanding that no 'productive' use is made of it. It is simply
their home - and valued as such
like anyone else's.
- There can be no doubt that the benefits of the Act have greatly exceeded
their costs for Aboriginal Territorians. However, the benefits
would have been
much greater still, if the process of acquiring Aboriginal land had been less
expensive. The market value of the
lands acquired per km
[2] (excluding
the reserve lands transferred free) is very substantially less than the value
of the funds used per km
[2] to acquire them. Opportunities have been
missed to acquire even more land or to use more funds for the social and
economic advancement
of Aboriginal Territorians through expanded programmes for
Aboriginal education, housing, health, technology and business.
Costs and benefits of the Act for other Territorians
- The main cost imposed on other Territorians by the Act has been caused by
restrictions on access to Aboriginal land.
- The permit system imposes unnecessary transactions costs on innocent and
legitimate interests in access that impose no costs on
owners of, or dwellers
on, Aboriginal land.
- Attempts to build joint management arrangements to meet the wishes of
various legitimately interested parties (such as the commercial
and sports
fishing industries, for example) have been supported by the smaller Land
Councils but not by the NLC.
- The Government has been faced with unacceptable restrictions and an
unacceptable negotiating position on behalf of the public in
its ability to
gain access to Aboriginal land for important public purposes.
- Reforms to access would not only pay dividends for Territorians at large,
but would reduce opposition to Aboriginal land rights
because they would no
longer impose such heavy costs on non-Aboriginal (and many Aboriginal)
Territorians.
- The costs of Act have probably exceeded their benefits for other
Territorians because of these unnecessary costs that have been
imposed on them.
Costs and benefits of the Act for the pastoral industry
- As pastoral property, notwithstanding the vast area of land involved,
land in the Northern Territory is capable of supporting only
a handful of
people at income levels commensurate with expectations in the community at
large. This is true irrespective of whether
the land is occupied by Aboriginal,
or other Territorians.
- There can be little doubt that the impact of the Act on the pastoral
industry in the Northern Territory has been negligible in an
economic sense.
The impact on the economically productive use of pastoral properties formerly
held as Crown leaseholds is even less.
A good case can be made that the
voluntary transfer of Crown leasehold properties to freehold under the Act must
have resulted in
an economically superior use of the land, because the
leaseholders were willing to sell to the new owners at mutually agreeable
prices.
Costs and benefits of the Land Rights Act for the mining industry
- Exploration and mining activities on Aboriginal land in the Northern
Territory have contributed to the social and economic well-being
of Aboriginal
Territorians both directly, as a result of negotiated settlements with mining
companies and indirectly because of payments
under the Act by the Commonwealth
Government of 'mining royalty equivalents' for the benefit of Aboriginal
Territorians.
- It is debatable, however, whether these payments have been of as much
benefit as they might have been (including whether more could
have been
accomplished for Aboriginal Territorians under different institutional
arrangements and decision-making processes).
- The Act has probably had negligible impact on the costs and benefits for
the mining industry itself. The main difficulties have
been the complications
and transactions costs involved in gaining access to Aboriginal land.
Costs and benefits of the Land Rights Act for the tourism industry
- Tourism on Aboriginal land has grown rapidly. Prospects for future growth
look promising. Tourism appears to have benefited from
increased involvement by
Aboriginal Territorians. An obvious reason for this is that visitors are
interested in the traditional culture
of Aboriginal Territorians and its
relationship to the unique scenery, flora and fauna of the Territory. Tourism
offers one of the
best prospects for jobs for Aboriginal Territorians living on
Aboriginal land outside the main urban areas.
- However, to date, most of the businesses associated with the tourism
industry on Aboriginal lands have been owned and operated by
non-Aboriginal
Territorians, and most of the jobs have been occupied by non-Aboriginal
Territorians, as well.
- The benefits flowing from the Act for the tourism industry appear to have
exceeded the costs.
Costs and benefits of the Act for other industries
- The main other industries that might be able to provide jobs and incomes
for Aboriginal Territorians living on Aboriginal land in
rural areas appear to
be the harvesting of 'bush tucker' and wildlife, and aquaculture.
- It is not easy to know how to assess the potential jobs and incomes that
might be generated for Aboriginal Territorians from these
other industries. But
it would not seem wise to assess the prospects as providing more than a
marginal contribution to job generation.
- The benefits of the Act for these other industries appear to have
marginally exceeded the costs.
Costs and benefits of the Act for the Northern Territory - a summing
up
- It is difficult in the present state of knowledge to arrive at a
conclusive assessment of the overall costs and benefits of the
Act for the
Northern Territory. On balance, I lean towards the view that the benefits of
the Act have outweighed its costs, but that
the balance would have been much
more favourable:
- if the rules of access to Aboriginal land had been the same as the rules
of access to any freehold land (with special exceptions
recognising its
inalienability and the spiritual significance of particular places to
Aboriginal Territorians);
- if the transactions costs associated with the operations of the Act for
mining and other business activities on Aboriginal land
had been better
addressed, particularly the transactions costs associated with giving the Land
Councils a monopoly, in the representation
of traditional Aboriginal owners
with miners and other business ventures with respect to Aboriginal land; and
- if the funds available from the Aboriginals Benefit Reserve under the Act
had been applied more cost-effectively to the land claiming
and land
acquisition processes, and for the benefit of Aboriginal Territorians
generally.
Land rights and Aboriginal economic advancement in the future
- A focus on directly developing the land granted to Aboriginal
Territorians as providing their best economic way forward is misplaced.
Such a
focus leads to an economic cul de sac for Aboriginal Territorians in the
face of the shrinking employment opportunities provided by agriculture,
world-wide.
- Far more important modern sources of economic advancement than the
possession of land are the possession of productively useful
skills, technology
and capital of the kind in demand in the mainstream Australian economy.
- The evidence that education and training has a big payoff to Aboriginal
Australians is overwhelming.
- What is needed in the future is a stronger and more sustained effort from
Aboriginal Territorians, governments, the non-Aboriginal
private sector and the
broader community to raise the education and skills of Aboriginal Territorians
and to form strong, genuine
partnerships.
- The 1987 amendments to the Act did not overcome the deficiencies in the
system.
- No mining company, mining association, Land Council or Aboriginal
organisation proposed the veto on exploration and mining on Aboriginal
land
should be removed.
- The existing arrangements for exploration and mining on Aboriginal land
are quite unsatisfactory and should be changed. Continuing
the status
quo (or even skillfully crafted variations of it) is not in the interests
of Territorians and, in particular, not in the interests of
Aboriginal
Territorians. It appears that the complex, prescriptive and regulated system in
the Act is the source of many of the problems.
- The veto is seen by Aboriginal people as an essential element of their
land rights.
- Aboriginal people have expressed a clear desire to this review to make
their own decisions about land use matters at the local community
or regional
level.
- If the right to a veto applies, the usual approach to exploration and
mining in Australia, will not be appropriate.
- Excessive delays and costs will usually destroy the viability of a mining
project.
- Successful commercial dealings between mining companies and Aboriginal
people, or any two parties, depend upon the parties being
able to establish a
relationship of trust.
- Mining companies want the security of a binding enforceable agreement in
relation to mining before they will invest large sums in
exploration. This
requires somebody with the authority to make such an agreement on behalf of the
Aboriginal people concerned.
- Mining companies dealing with Aboriginal people have to appreciate that
they are operating in a unique cultural and social environment.
For example,
many Aboriginal people remain suspicious of mining companies, the Aboriginal
decision-making process is usually communally
oriented and many of the
Aboriginal participants in the process will not be able to read or write and
will be living in a state of
poverty. This is the sort of environment that
could give rise to allegations of unconscionable conduct if the mining company
is not
careful in its dealings.
- The Act and the Mining Act (NT) should contain provisions which
allow a person to obtain a licence to enter Aboriginal land for a specific
period for the purpose
of reconnaissance exploration subject to various terms
and conditions (as outlined in this Chapter 24).
- The Act should be amended to provide that the relevant RLC and the holder
of an existing mining lease should negotiate the terms
and conditions of any
renewal of that mining lease, provided that the relevant RLC shall not have a
veto over that renewal. If the
parties are unable to agree on the terms and
conditions, the Act should contain provisions for the appointment of a Mining
Commissioner
to determine that dispute, following the procedures set out in the
existing s 48F, amended to remove the requirement under s 48F(2)
that a Federal
Court judge has to be appointed as Mining Commissioner.
- Each of the proposed RLCs should have the existing power to consent to
(or veto) any exploration or mining proposals in respect
of Aboriginal land
within their region, subject only to the existing national interest provisions.
- Each RLC should be empowered to negotiate legally enforceable agreements
directly with any mining company, or number of mining companies,
and be free to
engage any outside help they need for that purpose, including drawing on the
professional resources of the proposed
new NTAC.
- The Northern Territory Government should be kept informed which mining
companies a RLC is negotiating with.
- The Northern Territory Government should accept whatever enforceable
agreements are made between a mining company and a RLC (unless
it considers the
agreement should fail on other grounds) and issue the required exploration
licence or mining interest accordingly.
- The Commonwealth Government should continue to have the power to cause a
Proclamation to be issued that an exploration or mining
project should proceed
in the national interest.
- Mining companies operating on Aboriginal land should be bound by law to
pay normal royalties to the Northern Territory Government
(as is the case now)
and all so-called negotiated royalties to the relevant RLC.
- The Commonwealth Government should continue to pay mining royalty
equivalents into the Aboriginals Benefit Reserve for the benefit
of all
Aboriginal Territorians.
and
- The operations of the ABR have suffered from the lack of a clear:
- statement of purposes for the ABR;
- allocation of responsibilities in the administration of the ABR to one
Aboriginal body; and
- understanding about the responsibility to account for the expenditure of
all ABR funds, particularly by the Royalty Associations.
- The distribution of funds from the ABR has effectively been controlled by
Aboriginal bodies and people to date, specifically:
- the Land Councils;
- the Royalty Associations;
- the ABR Advisory Committee.
- However, Aboriginal people have had a lesser control over the investment
strategy of the ABR.
- The administration of the ABR has been fragmented and this has detracted
from the ABR adopting and pursuing a unified and dedicated
purpose in the
allocation of ABR funds.
- The mining royalty equivalent payments made to the ABR from the
consolidated revenue fund are 'public' monies paid pursuant to a
public policy
decision of the Government. The recipients of these monies are accountable for
them as public monies. The Royalty Associations
should have been required to
give an account of the expenditure of these monies pursuant to the same
regulatory regime under which
the Land Councils and ATSIC were working.
- The Royalty Associations should also have been required to give an
account of their expenditure of all other monies paid under the
Act pursuant to
the same regulatory regime mentioned above.
- Section 35A has not been an effective accountability measure, largely
because of the reluctance of the Land Councils to properly
enforce it.
- Nonetheless, even if they had, it is doubtful whether these reporting
requirements operate as an effective measure to ensure that
these Royalty
Associations are applying their funds to their proper purposes and complying
with the law and their rules or constitutions.
- Because of various administrative and cultural factors, the Royalty
Associations have generally not been required to account to
their membership in
relation to their distribution of monies under the Act.
- For these reasons, the Royalty Associations have not been required to
give a proper account of their expenditure of the 'areas affected'
monies and
it is doubtful whether those monies have been applied to their intended
purposes. It is probable that a large part of
those monies have been
distributed in payments to individuals unrelated to a purpose. Such payments
will only increase the dependence
of Aboriginal Territorians on unearned income
and prevent an accumulation of those monies for the long-term benefit of
Aboriginal
Territorians.
- There is a perception among Aboriginal people that if they spend monies
on community facilities then the Northern Territory and
Commonwealth
Governments will not provide funds they might otherwise provide to that
community.
- A substantial portion of the ABR's funds has been used to fund the Land
Councils and consequently a much-diminished proportion has
been devoted to the
benefit of Aboriginal Territorians generally. Some of these people have not had
the benefit of land grants under
the Act and have therefore missed out twice.
There is a need, therefore, to continue to curb the administrative costs of the
Land
Councils.
- The link between the ABR's funds and the mining industry should be
maintained to underscore the fact that the payment of these funds
is based upon
a unique and historical factors.
- The Act should be amended to include a clear statement of purposes for
the distribution of the funds in the ABR.
- The ABR should, in future, be administered by the proposed NTAC.
- The formula for the distribution of the ABR's funds should be abolished.
In its place, NTAC should decide on the distributions within
the statement of
purposes set for the ABR.
- In future, 'areas affected' monies should only be paid to the proposed
new RLCs in the region for the benefit of those communities
that can establish
an actual adverse affect from mining on the community in net terms, that is
taking into account the receipt of
negotiated payments and any countervailing
benefits obtained from the mining.
- All expenditure of all ABR funds and all other income from activities on
Aboriginal land should be applied by NTAC or the RLCs to
particular purposes
for example ceremonies, scholarships, housing, health. Conversely, none of
these funds should be paid to an individual
without a related purpose.
Furthermore, any Association receiving ABR funds should not be able to pay
those funds to another Association
that makes individual payments. Measures
should also be adopted to remove the perception that the practice of
substitution is occurring.
- Mining withholding tax should not be applied to the funds paid to the
ABR.
- NTAC should develop an investment strategy which is aimed at it becoming
self-sufficient to the amount of the income from a particular
mining resource
by the time that resource is estimated to be expended. The balance of the ABR's
funds should be expended by NTAC
and the RLCs on programs for the cultural,
social and economic advancement of Aboriginal Territorians.
- NTAC should only invest the investment component of its funds in
commercial investments that are likely to provide a satisfactory
rate of return
for the investment.
- A special system of assistance, accountability and transparency should be
adopted for Aboriginal incorporated associations to take
account of:
- the effect of Aboriginal culture and tradition;
- the undesirability of a multiplicity of such associations; and
- the general lack of familiarity and experience among Aboriginal people
with administering such bodies.
- The establishment of the NTAC as an authority under the Act.
- The members of the council of NTAC should be appointed jointly by the
Commonwealth Minister and the Chief Minister of the Northern
Territory from a
list of nominations of Aboriginal Territorians made by Aboriginal Territorians.
- The Council members should elect their own chairperson and appoint their
own chief executive officer from a list of candidates approved
by the relevant
Commonwealth and Northern Territory ministers. The CEO should also be a member
of the Council ex officio.
- In due course, Government appointment of the members of the Council
should be replaced by their election by Aboriginal Territorians
on a basis
providing for an appropriate spread of regional representation. This election
should take place once the land claims process
has been completed, the
boundaries of the RLCs have been settled, and a further review of the Act has
been undertaken.
- The main functions of NTAC will be to:
- assist in the long-term social and economic advancement of Aboriginal
Territorians through its social and economic advancement program;
- maintain strategic oversight of the activities of the RLCs relating to
major agreements, delegation of their functions, their financial
and
administrative functions and the appointment of their CEOs;
- house and support the operations of the congress of RLCs;
- establish an investment trust and act as a 'bank' for the RLCs;
- complete the outstanding land claims;
- act as the sole native title representative body in the Northern
Territory;
- endeavour to resolve disputes between Aboriginal people, or Aboriginal
organisations, in relation to land or other matters as discussed
in more detail
in Chapter 10 of this report;
- provide financial, technological and human resource support (at cost) for
the RLCs;
- on request by a RLC, act on the RLC's behalf in any matter;
- maintain a (non-public) register of all agreements entered into by each
RLC;
- NTAC will be responsible for receiving and distributing the mining
royalty equivalents paid to the ABR by the Commonwealth Government
and any
other funds allocated to it by the Northern Territory and Commonwealth
Governments or ATSIC;
- NTAC will be required to fund the administrative costs of the RLCs.
- It seems to be generally accepted, in principle, that a government should
have a power of compulsory acquisition, at least to the
extent necessary to
provide essential services to the community it serves.
- The primary concerns of all parties on the issue of compulsory
acquisition can be accommodated by providing the Northern Territory
government
with a power to compulsorily acquire Aboriginal land, or land under claim, for
public purposes, in limited circumstances
and subject to various special
measures to protect Aboriginal interests and concerns.
The
Act should be amended by repealing ss 67 and 68 and by inserting, in Pt VII, a
new s 67 along the following lines:
1. Subject to subs (2) and (3), notwithstanding anything in this Act, including
s 71, or any other Act, save for the Racial Discrimination Act 1975
(Cth), the Northern Territory Government may compulsorily acquire an estate or
interest in Aboriginal land or in land the subject
of an application of the
kind referred to in s 50(1)(a), other than the freehold interest, for public
purposes provided that the
nature and extent of the estate or interest shall be
limited to that necessary for the public purpose concerned.
2. An estate or interest in Aboriginal land or land the subject of an
application of the kind referred to in s 50(1)(a) can not
be compulsorily
acquired except by an Act of the Northern Territory Parliament that expressly
provides for that acquisition.
3. Prior to any compulsory acquisition of an estate or interest in Aboriginal
land or land the subject of an application of the
kind referred to in s
50(1)(a), and within the period prescribed by the regulations, the Northern
Territory Government shall:
(a) notify the relevant RLC in writing as to the area of the land affected, the
nature of the estate or interest that is to be compulsorily
acquired, the
purpose of the acquisition, and the alternative courses which have been
considered; and
(b) allow the relevant RLC, reasonable access to all documents held and advice
received relevant to the proposed acquisition.
4. In relation to the acquisition of an estate or interest in land the subject
of an application of the kind referred to in
s 50(1)(a), any compensation
payable shall be held in trust, in accordance with the regulations, pending the
final disposition of
the claim in accordance with s 67A(5).
There
are some practical problems with the application of some Northern Territory
laws, for example the Local Government Act, and some genuine, perceived
problems with the application of others, for example the Water Act.
However, any reform must recognise and protect the rights of Aboriginal people
to use their land in accordance with Aboriginal tradition.
The primary question
is whether those rights should be absolute. In my view they should not be. They
must give way to laws that protect
the rights and interests of the broader
community on issues such as the supply of essential services and conservation
of the environment.
- That provision be made for the general application of Northern Territory
laws to Aboriginal land. Specifically, that the Act specify
the subject areas
in relation to which Northern Territory laws will apply to Aboriginal land,
with the qualification that every endeavour
should be made to ensure that the
rights under s 71 of the Act are preserved to the greatest extent possible.
- Specifically, I recommend that s 74 be repealed and s 71 be amended along
the following lines :
- Insert a new subs (3) as follows:
Subject to subs (4) to (6), the laws of the Northern Territory made pursuant to
ss 67 and 73 or laws of the Northern Territory, including delegated laws, with
respect to environmental protection and conservation, public health
and safety,
the supply of essential services, the maintenance of law and order, or the
administration of justice shall apply in relation
to Aboriginal land in the
Northern Territory.
- Insert a new subs (4) as follows:
In the application of a law of the Northern Territory described in subs (3) in
relation to Aboriginal land, all reasonable steps
shall be taken to minimise
any negative effects on the use or occupation of the land pursuant to subs
(1).
- Insert a new subs (5) as follows:
The application of a law of the Northern Territory described in subs (3) in
relation to Aboriginal land does not affect the right
to use or occupy land in
accordance with subs (1), other than to the extent that that use or occupation
is directly inconsistent
with the effective operation of the law of the
Northern Territory.
- Insert a new subs (6) as follows:
Any law of the Northern Territory other than a law of the Northern Territory
described in subs (3) applies to Aboriginal land other
than to the extent that
that law is directly inconsistent with this Act.
- That provision be made to ensure that the costs of fencing arising under
the Fences Act are met by the relevant RLC. Specifically, it is
recommended that s 26 of the Act be amended by inserting a new subs (2) as
follows:
In this section the term 'charges' includes, but is not limited to, the cost of
fencing which is due and payable in relation to
Aboriginal land pursuant to a
law of the Northern Territory or the Commonwealth.
- That the Northern Territory Government be given a limited power to
compulsorily acquire Aboriginal land for public purposes, including
for the
purpose of water supply. A detailed recommendation on compulsory acquisition
appears elsewhere in this report.
The
two large Land Councils have been successful in developing their political role
and in preparing and presenting land claims under
the Act. They have not been
so successful in performing other aspects of their representative role under
the Act. They are perceived
to be bureaucratic, remote, tardy and uninterested
in local Aboriginal problems. The two small Land Councils are much closer to
the
constituencies they serve. They do not operate with large centralised
bureaucracies. They appear to perform their functions following
their own view
of Aboriginal tradition. They appear to operate more pragmatically, with less
formality and with much more flexibility
in performing their functions.
An
adequate basis for Aboriginal land rights needs to accommodate both the local
and the regional interests, and the fact that regional
cultures and ways of
life are maintained at regional levels.
The present scheme of the Act, in which traditional Aboriginal ownership is the
centrepiece, places paramount importance on the
spiritual relationships of
local descent groups to sites on land. These are not units of land 'ownership',
land use, domestic units
or political bodies. Nor are they in any sense
self-sufficient in the performance of Aboriginal ceremonies. Although the
current
system grants land for Aborigines entitled by Aboriginal tradition to
the use or occupation of the land, in practice this has little
application.
Traditional Aboriginal owners have the ultimate control of land (conditional on
the cooperation of the Land Council)
and they are even entitled to receive
monies arising from rents on that land. The importance of regional populations
as the level
at which Aboriginal culture is reproduced and at which the land
was occupied, used and 'owned', has not been acknowledged in the
current scheme
of the Act.
The current Act scheme did not, and does not, adequately reflect either the
state of anthropological knowledge, or the reality,
of traditional Aboriginal
processes and practices in relation to the control of land.
The
focus on statutory traditional Aboriginal ownership within the bureaucratic and
legalistic framework of the two large Land Councils
has led to irreconcilable
disputes about traditional Aboriginal ownership. Disputes with respect to
similar issues among the constituencies
of the smaller Land Councils had not
become entrenched in this way. The key reason, in my view, is that the smaller
Land Councils
have tended to merge the identification of traditional Aboriginal
ownership within their representative structures and they have
taken a
pragmatic and flexible approach to it.
As well as being faced with irreconcilable disputes in relation to their
responsibilities to traditional Aboriginal owners, the
representative
structures of the large Land Councils have also come under attack from
breakaway Land Council movements. These movements
have sought greater
self-determination in relation to the control of traditional lands within their
regions. At the same time, they
have made claims for autonomy based on their
having better foundations in the Aboriginal traditions of their regions.
For these reasons there is a need for reform of the existing scheme of the Act.
This reform has to involve:
- providing for representative bodies at the regional level to make
decisions about the use of their lands;
- allowing the representative bodies to adopt decision-making processes
that accord with their traditions, as they interpret them;
and
- providing a system of dispute resolution that accommodates Aboriginal
traditional practices and processes and is accessible, inexpensive
and
effective.
- A system of representative RLCs should be established based on the 18
existing Land Council regions (including the two small Land
Council areas).
- These RLCs should be autonomous, subject to the system of supervision and
accountability (detailed in Chapter 27).
- Each RLC should be required to make its decisions in the best interests
of the Aboriginal people of its region and should be entitled
to adopt the
decision-making process that it considers best reflects Aboriginal traditional
processes in its region.
- All disputes arising out of the Act should be dealt with at first
instance by the relevant RLC by the methods it considers appropriate.
- A person aggrieved by a decision of a RLC should have a right of appeal
to NTAC, which should deal with the appeal by the methods
it considers
appropriate.
- A person aggrieved by a decision of NTAC should have a right to appeal on
a question of law only to the Aboriginal Land Commissioner,
or some similar
body. No question of Aboriginal tradition should be entertained on such an
appeal.
- An (existing) Ombudsman should receive and deal with non-traditional or
administrative complaints against a RLC or NTAC.
- If any disputes arise about the boundaries of any of the RLC regions the
minister should request the Aboriginal Land Commissioner
to inquire into the
most appropriate boundaries and report to him pursuant to s 50(1)(d) of the
Act.
- Each RLC will be comprised of its:
- membership;
- board of directors;
- chief executive officer; and
- staff.
- The universal rules of membership of each RLC should be that:
- any Aboriginal person, who has a traditional affiliation to an area of
land within the region, or who is a permanent resident of
the region, is
entitled to be a member of an RLC;
- no person may be a member of more than one RLC at any one time; and
- each RLC shall be required to keep a register of its members.
- The membership of the RLC should decide the number of directors on the
board of the RLC and how they will be chosen.
- The Act should simply prescribe that the system for choosing the
directors of the board of each RLC should be fair, representative
of the region
and non-discriminatory.
- The CEO of each RLC should be appointed by its board of directors from a
list of candidates acceptable to the board and approved
by NTAC.
- The staff of each RLC should be appointed by the CEO, to whom the staff
will be responsible for the proper execution of their duties.
- The main functions of a RLC should be as follows:
- to undertake all the functions of the present Land Councils in its region
with the exceptions of completing the land claims process,
sacred sites
assistance, and assistance with commercial ventures, which functions will be
undertaken by NTAC, or other bodies as
specified elsewhere in this report;
- to make decisions in relation to proposals for the use of Aboriginal land
in its region that do not conflict with the functions
above, including
decisions relating to exploration and mining, tourism, and specialist primary
production (horticulture, aquaculture,
and so on);
- to hold in trust all Aboriginal land in its region for the benefit of all
Aboriginal people who are entitled by tradition to use
or occupy that land;
- to receive and spend funds made available by NTAC for the administration
of the RLC or for public purposes approved by NTAC;
- to assist in the social and economic advancement of Aboriginals living in
its region; and
- to co-ordinate and assist the implementation of the Aboriginal social and
economic advancement programs of NTAC, the Northern Territory
and Commonwealth
Governments and ATSIC, in its region.
- The annual budget for each RLC should be left to its own discretion. Each
RLC will be required to meet its administrative expenses
from the annual
allocation provided to it by NTAC.
- All agreements made by a RLC will be required to be registered with NTAC.
Findings
- The Act is widely regarded as the high-water mark of land rights
legislation in Australia, guaranteeing as it does secure (inalienable)
freehold
title to Aboriginals over what might eventually be nearly half of the Northern
Territory.
- It is time for this generation to look afresh at the Act's provisions and
to implement contemporary solutions based upon the ideas
underlying the Act and
current needs and circumstances, as well as building strong foundations for
future generations of Aboriginal
Territorians.
- There is a basic and widespread lack of knowledge on the part of
Aboriginal Territorians about the Act, its provisions and the way
it has
operated.
Findings
The affirmation of rights over land has been a developing process
internationally - some of it voluntarily undertaken on the part
of governments
wishing to make amends for past injustices, and some of it flowing from court
decisions.
When compared with the approach taken in other jurisdictions in Australia and
elsewhere around the world, the Act provides one of
the most far reaching
systems for granting Aboriginal traditional lands and one of the strongest
systems for protecting the traditional
rights of Aboriginal people in their
land. The most significant area in which the Act is not so beneficial is
that it does not, and was not intended to, provide Aboriginal people with
economic, or needs-related entitlements,
such as mineral rights, commercial
fishing rights, or rights to commercially harvest native fauna.
Findings
From early in the land claims process Aboriginal Land Commissioners approached
their task, not as an exercise in anthropology, but
on the basis that the
definition of traditional Aboriginal owners in the Act was expressed in
ordinary English words and was not
a technical term of anthropology. On this
basis, they were able, somewhat pragmatically, to identify a broad range of
different kinds
of groupings and relationships to land in different parts of
the Northern Territory, as falling within the definition of traditional
Aboriginal owners in the Act.
Recommendations
The definition of traditional Aboriginal owners in the Act should be retained
for the purposes of the remaining land claims under
the Act.
Findings
- The land claim process under the Act has been divisive and expensive for
all concerned. Following the coming into effect of the
'sunset clause' on
further claims, it is in everyone's interest that the outstanding claims should
be settled as quickly as possible.
This will free a lot of time, effort and
money to be devoted to the benefit of Aboriginal Territorians as the Act enters
a new phase.
- To settle outstanding land claims within, say, two to three years will
require new strategies involving at least the following:
legislative
intervention; settlement of claims by agreement; devoting additional resources
to the task; and reforming present processes
to make them more efficient.
- Categories of claims which could be settled by legislative intervention
include: banks and beds of rivers; the intertidal zone;
seas and sea beds;
Conservation Land Corporation/Northern Territory Land Corporation land; stock
routes and stock reserves.
- What is meant by 'low watermark' is a matter that should be clarified by
amendment to the Act, so that it is made clear which particular
definition of
low watermark applies in the Act.
- As things currently stand, claims over stock routes and stock reserves
effectively fall between two stools: the Act prevents the
Aboriginal Land
Commissioner from hearing such claims (except those already commenced and those
where the stock route or stock reserve
is contiguous along each of its two
longer boundaries to the land to which the land claim relates); but they are
not dismissed, determined
or finally disposed of (thereby preventing any
estates or interests being granted in land which is subject to such claims).
There
is a similar problem with the 'sunset clause'.
- If the recommendations of this review are adopted, a great deal of time,
effort and resources can be diverted form establishing
traditional Aboriginal
ownership of land and instead outstanding land claims could focus on issues
like strength of attachment and
detriment.
- There should be an attempt to settle all the outstanding land claims.
Recommendations
Banks and beds of rivers
- The land claims to the banks and beds of rivers that fall wholly within
other land that is claimable, should be granted without
further delay and
expense.
- The Act should be amended to prevent land claims to the banks and beds of
rivers that form the boundary between land that is available
for claim and that
which is not, or that comprise a strip of land between two areas of land that
are not available for claim.
Intertidal zone
- The Act should be amended to provide that the areas of the Northern
Territory on the seaward side of the high watermark, that are
not already
Aboriginal land under the Act, are not available for claim under the Act.
- The common law position regarding the ownership of living fish and native
fauna on Aboriginal land should be confirmed in the Act.
- The Northern Territory Legislative Assembly should be given the power to
pass legislation to provide for the joint management of
the resources in the
intertidal zone and the territorial waters of the Northern Territory both on
and off Aboriginal land in conjunction
with those Aboriginal people who have
traditional interests in those resources and areas and other persons and groups
with interests
in those resources and areas.
- The Northern Territory's power to make laws in this regard should be made
sufficiently broad to allow it to permit members of the
public, who are
lawfully fishing in such waters and commercial fishermen licensed to fish in
such waters, to place anchors, nets,
fishing lines or other similar items of
equipment on the bed or shore of the intertidal zone on Aboriginal land.
- The order of priorities given to the interests of the various groups
involved in the joint management regime should be:
- conservation and certain other identifiable overriding interests;
- traditional hunting and fishing;
- commercial and recreational hunting and fishing.
Seas and sea beds
- The expression 'low water-mark' should be defined in s 3 of the Act to
mean the mean low water-mark.
- The Act should be amended to provide that the areas of the Northern
Territory on the seaward side of the (mean) low water-mark on
land granted to
an Aboriginal Land Trust under the Act, and on the seaward side of the high
watermark of all other land in the Northern
Territory (including the sea bed
under the Northern Territory's territorial waters), should not be available for
claim under the
Act.
Conservation Land Corporation/Northern Territory Land Corporation land
- The Act should be amended to put it beyond doubt that lands held by the
Conservation Land Corporation or the Northern Territory
Land Corporation are
not available for claim under the Act.
- The Northern Territory Government should do all in its power to recognise
and protect traditional Aboriginal interests in land held
by the Conservation
Land Corporation/Northern Territory Land Corporation and, in relation to the
former, give those Aboriginal people,
with traditional interests in that land,
an effective role in the management of any national park involved.
Other matters
- The 'sunset clause', s 50(2A), should be retained.
- Encourage the early passage of the Aboriginal Land Rights (Northern
Territory) Amendment Bill (No. 2) 1997.
Settlement of outstanding claims
- The Aboriginal Land Commissioner's functions should be expanded as
follows:
- to intervene by way of conciliation or mediation to assist in the
settlement or disposal of land claims;
- to make findings and recommendations under s 50(1)(a)(ii) of the Act by
consent;
- to dismiss a land claim subject to such an order not taking effect under
s 67A(5) until all parties have exercised their right to
challenge it; and
- to specify in s 51 of the Act a range of measures to reduce formalities
and improve efficiencies in the land claims process.
- Sections 50(1)(a)(ii) and 50(3) should be amended to provide that the
Aboriginal Land Commissioner shall, in making his report and
recommendations to
the minister, have regard to all of the matters set out in s 50(3).
- A settlement conference should be convened by the Aboriginal Land
Commissioner in an attempt to settle as many of the outstanding
land claims as
possible (including sea closure applications), with such conference proceeding
on the bases that the Aboriginal Land
Commissioner will not need to inquire
into the question of traditional ownership, the Aboriginal Land Commissioner
will be required
to report his recommendations on strength of attachment and
detriment (see above) and the Aboriginal Land Commissioner will only
need to
make recommendations on real and immediate detriment (on the assumption the
Northern Territory Government will have a limited
power of compulsory
acquisition in relation to Aboriginal land).
- If the Minister is minded to entertain an application to amend Sched 1 to
bring further land under the Act, a standard approach
should be adopted,
involving the Aboriginal Land Commissioner inquiring into any such proposals.
- Section 52(3) of the Act should be amended to bring the retiring age for
an Aboriginal Land Commissioner into line with the retiring
age of Federal
Court and Supreme Court judges.
- Once the land claims process is complete, the final register of the land
claims made under the Act should be placed in the custody
of the registry of
the Supreme Court of the Northern Territory, the control of access to archival
material under the Act should be
a function of that registry, and the remaining
functions of the Aboriginal Land Commissioner under ss 50(1)(d) and (e) and
50(2)
of the Act should then be conferred on a Northern Territory Supreme Court
judge, from time to time, as required.
Other matters
- As many outstanding land claims as possible should be resolved by
legislative intervention or settlement, and the remainder within
two to three
years.
- The error in relation to the grant made to the Gurungu Aboriginal Land
Trust to include the Elliott Stockyards should be remedied
without further
delay.
- The minister should be required to consider and make his recommendations
on a report from the Aboriginal Land Commissioner pursuant
to s 50(1)(a) within
six months of the receipt of such a report.
- A special allocation of resources should be made to the proposed Northern
Territory Aboriginal Council and the Office of the Aboriginal
Land Commissioner
to ensure that the land claims process is completed within two to three years.
Findings
- The Northern Territory Aboriginal Sacred Sites Act offers a high
level of protection to Aboriginal sacred sites in the Northern Territory and
the Aboriginal Areas Protection Authority
is a well-resourced and effective
body. According to the Evatt Report and the Parliamentary Joint
Committee Report, it is the best legislation of its kind in any
jurisdiction in Australia. The workings of the Act are controlled by a Board
where
10 of the 12 members are Aboriginal people chosen from throughout the
Northern Territory. I have every confidence that the Northern Territory
Aboriginal Sacred Sites Act and the Aboriginal Areas Protection Authority
provide a high level of protection to Aboriginal sacred sites in the Northern
Territory.
There is even less reason to change the system now than there was
when Justice Toohey rejected such a proposal in 1983.
Recommendations
- The Act should be amended by deleting both ss 23(1)(ba) and 69.
- Section 44 of the Northern Territory Aboriginal Sacred Sites Act
should be amended to include in it a provision along the lines of s 28 of the
Aboriginal and Torres Strait Islanders Heritage Protection Act.
- The Northern Territory Aboriginal Sacred Sites Act should be
amended so that a person is not guilty of an offence under that Act in relation
to a sacred site on freehold land in a
town in the Northern Territory, where
that freehold land was purchased without notice that it contained a sacred
site.
- The Northern Territory Town Planning Act should be amended to
include provisions requiring notice to be given to the Aboriginal Areas
Protection Authority of all sub-divisional
development applications within
towns in the Northern Territory.
- The Northern Territory Government should take steps to amend the
Heritage Conservation Act and Regulations to make it clear that
Aboriginal people may enter and remain upon ancient Aboriginal sites, may use
Aboriginal sacred objects and
may otherwise deal with the places or objects
referred to in the Act and Regulations, in accordance with Aboriginal
tradition.
Findings
- In many respects the permit system is a carry over from the native
welfare system that applied to Aboriginal reserves in the Northern
Territory
prior to the introduction of the Act. Under that system, Aboriginal people were
not allowed to travel off those reserves
without permission and other
Australians were not allowed to enter those reserves without permission. Whilst
the former aspect has
not been retained in the permit system, the latter has.
- It is patently clear that the permit system is in need of reform.
- If the permit system were removed and Aboriginal people were provided
with similar rights in relation to their land to those held
by other
Territorians, Aboriginal people would not be disadvantaged in the process.
Indeed, in my view, they would be considerably
advantaged by being unburdened
of a system they do not support and from the improvement in race relations that
would probably follow
as a result of the removal of a racially discriminatory
measure.
Recommendations
- Section 70 of the Act should be repealed;
- Part II of the Aboriginal Land Act (NT) should be repealed;
- Amendments should be made to the Trespass Act (NT) (as set out in
this Chapter) to make it applicable to Aboriginal land and to allow Aboriginal
landowners to make better use
of it.
Findings
- In the event that the Northern Territory is admitted (or established) as
a new state of the Commonwealth, the most likely options
for the future of the
Act are:
- the Commonwealth retaining the Act as a Commonwealth law;
- the transfer of the Act to the new state upon conditions set by the
Commonwealth, for example, that the basic principles of the
Act be entrenched
in the new state's constitution; or
- the transfer of the Act to the new state with no conditions being
attached by the Commonwealth.
- It is obviously desirable, if not essential, that the Aboriginal people
of the Northern Territory continue to be involved in the
processes leading to
the establishment of a new State of the Northern Territory.
Recommendations
- That the minister and the Government have regard to the submissions made
to the review on this important issue (see Appendix S to
this report).
- Native title and community living areas - Chapter
20
Findings
- In relation to native title claims, precedence should be given to the
rights of Aboriginal people under the Act and under the Community
Living Areas
provisions of the Pastoral Land Act (NT). This will not disadvantage the
vast majority of Aboriginal people. The small percentage of the Aboriginal
population that may
be disadvantaged, and the very limited extent of any such
disadvantage, when compared with the security and certainty provided to
all
other Aboriginal people, and all others involved in the process, justify the
adoption of such an approach. Furthermore, if this
approach is adopted it will
result in: a single comprehensive and certain system in relation to Aboriginal
land rights and associated
claims on all Aboriginal land and community living
areas and all land under claim pursuant to the Act and pursuant to the
community
living areas provisions of the Pastoral Land Act (NT) in the
Northern Territory; and the preservation of all native title rights or
interests in all other land in the Northern Territory.
Recommendations
The Native Title Act should be amended to provide that:
- A past or future grant of land under the Land Rights Act
extinguishes all native title rights and interests in that land.
- A native title claim may not be commenced or continued over any area of
land that is the subject of a claim under the Land Rights Act until the
Land Rights Act claim is finally disposed of.
- Any native title rights that may exist in relation to any area of land
that is the subject of a claim under the Land Rights Act cannot be
asserted or relied upon until the Land Rights Act claim is finally
disposed of.
- A grant of an estate or interest in an area of land that is the subject
of a claim under the Lands Rights Act is exempted from the future act
provisions of the Native Title Act in the same way as land that is
granted under the Land Rights Act is exempted.
- The grant of a community living area in favour of an incorporated
association of Aboriginal people pursuant to the Pastoral Lands Act (NT)
be deemed not to constitute a future act under the Native Title Act, by
including the grant of such a community living area within the definition of an
act that causes land or waters to be held by
or for the benefit of Aboriginal
peoples or Torres Strait Islanders under a law mentioned in the definition of
'Aboriginal/Torres
Strait Islander land or waters' for the purposes of ss
233(3) and 253 of the Native Title Act.
- Such a grant of an area of land as a community living area under the
Pastoral Land Act (NT) should be deemed to extinguish any existing
native title rights and interests in that land.
- Where an area of land is the subject of an application for a community
living area under the Pastoral Land Act (NT), a native title
determination application may not be commenced or continued in relation to that
area of land until such time
as the community living area application has been
finally determined.
- Any native title rights that may exist in relation to any area of land
that is the subject of an application for a community living
area under the
Pastoral Land Act (NT) cannot be asserted or relied upon in relation to
that land until such time as the community living area application has been
finally determined.
Findings
- The inalienability of Aboriginal freehold title does not significantly
restrict the capacity of Aboriginal Territorians to raise
capital for business
ventures or to make commercial use of inalienable freehold land, if they so
wish.
- The inalienability of Aboriginal freehold title means that the land
cannot be again lost from Aboriginal possession as happened
to a great extent
in Canada, where the Indian bands were given ordinary freehold title over
tribal lands.
- Inalienability of title is a source of deep reassurance to Aboriginal
Territorians that they cannot again be dispossessed of their
lands for whatever
reason. This is an important benefit of inalienability.
- Inalienable freehold title is the most appropriate form of title for
Aboriginal land. It is the form of title that is most likely
to protect the
interests of Aboriginal people, including future generations, in their
traditional lands.
- At present more than 500 Aboriginal people in the Northern Territory are
members of these various Land Trusts. Apart from holding
Aboriginal land and
from time to time acting on the direction of the relevant Land Council, for
example to sign an agreement, Land
Trusts have little else to do. In my view,
the effort that is devoted to maintaining the memberships of all these Land
Trusts is
largely wasted. A much simpler and more efficient system is needed.
- Land Trusts should be able to hold land, other than freehold land, under
the Act. There seems to be no reason why a Land Trust cannot
hold Territory
title land, or land purchased on the open market which cannot become Aboriginal
land under the Act. Among other things,
this would avoid the necessity to have
a multiplicity of incorporated associations to hold such land and it would
bring the land
under the more rigorous regulatory regime applicable to the
Regional Land Councils as statutory authorities.
Recommendations
- The provisions of the Act that prevent the sale, transfer, or perpetual
lease of Aboriginal land, except to another Aboriginal Land
Trust, or the
Northern Territory or Commonwealth Governments, should be retained.
- All other restrictions in relation to the Act upon the grant of any
estates or interests, including licences, in Aboriginal land,
should be
removed.
- The provisions of ss 11A, 19 and 67A of the Act should be amended to
provide that an agreement made pursuant to them can operate
to grant an estate
or interest in the land under claim before that land is granted under the Act.
Any monies payable under such an
agreement should be held in trust.
- Transfer all Aboriginal land into 18 separate regions with the RLC for
each region becoming the trustee of the Land Trust in that
region and the
members of the council of the RLC carrying out the trustee duties presently
carried out by the members of the existing
Land Trusts.
- Aboriginal Land Trusts be permitted to hold land under any form of title
available in Australia, as well as freehold title, under
the Act.
Findings
- The significant and extensive role of the minister in the Act is a
product of the era of the 1970s.
- Limiting the minister's role in this way is consistent with Aboriginal
people having greater control over their destinies and a
real measure of
self-determination.
Recommendations
That the Act should be amended so that all the existing ministerial consents,
approvals, permissions and the like are removed.
That consideration should be given to having the minister delegate some, or all
of his functions under the Act, to the relevant
minister in the Northern
Territory Government.
Findings
- Traditional Aboriginal rights and interests do not, and cannot, found a
claim to such things as:
- commercial rights in energy assets or radio frequencies in Australia;
- commercial fishing rights in the Northern Territory; and
- the ownership of wild animals, or a specific species of wild animals (for
example crocodiles).
- Aboriginal Territorians' traditional land rights are simply that -
traditional land rights. These rights are recognised and protected
in numerous
Commonwealth and Northern Territory statutory provisions. Apart from those
traditional rights, Aboriginal Territorians
possess the same rights as other
Territorians do in relation to wild animals, fish, plants and other similar
things.
- Traditional Aboriginal fishing rights are non-exclusive, traditional,
communal rights to forage. These rights are already recognised
and protected
under various Commonwealth and Northern Territory statutory provisions.
- Public knowledge and understanding of the provisions of the Act is poor.
- Different incorporated Aboriginal associations performing essentially the
same functions can be faced with different regulatory
regimes. It seems
desirable to rationalise the various systems - so that Aboriginal people have a
simplified and culturally appropriate
system for Aboriginal incorporated
associations in the Northern Territory that also contains the necessary
elements of assistance,
transparency and accountability to ensure that public
and private funds paid to the associations are applied to their proper purpose.
Recommendations
- That the definition of 'Aboriginal' in the Act should be retained and it
should be left to each RLC to give whatever Aboriginal
traditional content is
needed to the definition on a case by case basis. Any person aggrieved by a
decision of a RLC on this matter
should have a right of appeal in accordance
with the dispute resolution system recommended elsewhere in this report.
- That the RLCs should be required to negotiate and cause the relevant Land
Trusts to provide to any Aboriginal community in their
regions that wishes to
obtain it, a rent free sub-lease for a suitable term, of the land upon which
that community is situated. In
each case, the sub-lease should be provided to
the local Community Council, or some other suitable body. That the Community
Council,
or other body holding such a lease should be permitted to enter into a
sub-lease of the land for housing or business purposes.
- That the Northern Territory Government should consider amending the
provisions of the Associations Incorporation Act (NT) to allow the
relevant minister to consent to the grant of a lease or sub-lease of land for a
term of 12 months or less, similar
to the provisions of s 26A(1)(b) of that
Act.
- That the Commonwealth and Northern Territory Governments should consider
drawing up a single Northern Territory scheme to regulate
the affairs of
incorporated Aboriginal associations in the Northern Territory.
- The RLCs and NTAC should be given the function to inform and educate the
people of the Northern Territory, and particularly Aboriginal
Territorians, on
the provisions of the Act and how it operates.
- The following amendments should be made to the Act:
- ss 50(1)(b), 50(4) and 72 of the Act should be repealed;
- ss 10 and 77C of the Act should be amended such that land can be
scheduled under the Act without requiring an amendment to the Act;
- the Act should be amended to ensure that confidential information held by
a RLC or NTAC is protected;
- ss 16 and 63 of the Act should be amended to provide that the relevant
Government must notify NTAC of payments received and where
the Northern
Territory is the recipient, it must also notify the Commonwealth Government;
- ss 16 and 63 of the Act should be amended to require that any monies
received under those sections must be paid out within 28 days
of their receipt.
Where a part of the payment is in dispute, the Act should provide that at least
the amount not in dispute is paid
within 28 days.
- That a comprehensive review of the operations of the Act should be
conducted in three to five years time.
Endnotes
1 [Attachment 5 includes issues which should be given consideration when
investigating possibilities for regional authorities. It
includes matters such
as the relationship between a regional authority and other bodies such as
regional councils, government departments,
ATSIC and portfolio agencies such as
the Commercial Development Corporation and the Indigenous land Corporation, and
bodies established
under other legislation such as Native Title Representative
Bodies. Attachment 5 also lists matters relating to the powers and functions
of
regional authorities, accountability arrangements for regional authorities,
election of boards for such authorities and their
funding.]
2 [Attachment 2 includes 24 recommendations and an additional 11 matters which
were considered in a prior discussion paper but which
did not progress for
further consideration in the final Review Report. Many of the recommendations
in attachment 2 are of a technical
nature correcting inadvertent limitations on
powers or obsolete powers which pertained to the transition between the former
DAA and
ATSIC. Some of the proposed amendments have important implications
including impacts on: the capacity of regional councils to fund
land purchases
(rec 2), delegation of powers to regional councils and others (recs 7 and 16),
payment by the Commission for incidental
program-related costs (rec 13),
capacity to appoint committees and sub-committees (recs 1 and 17), powers to
legally transfer programs
to other agencies (rec 24), amongst other matters.]
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