Australian Indigenous Law Reporter
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The Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) was the first statute to comprehensively provide for Aboriginal land rights in Australia, and remains the high water mark of legislative recognition of these rights. The Act is a direct result of Australia’s first native title case which, following on from the 1963 bark petitions, challenged bauxite mining near Nhulunbuy and was heard by Blackburn J of the Northern Territory Supreme Court in 1971.
Although the Court held that ‘the doctrine of communal native title never formed part of the law of Australia’, Blackburn J found at 171 that the Yolngu clans’ traditional laws and customs were recognisable as a ‘system of law’. This finding was not appealed, meaning the issue could be subsequently agitated in Mabo V Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1:
The evidence shows a subtle and elaborate system highly adapted to the country in which the people led their lives, which provided a stable order of society and was remarkably free from the vagaries of personal whim and influence. If ever a system could be called ‘a government of laws, and not of men’, it is that shown in evidence before me.
This finding provided the basis for a Royal Commission conducted by Justice Woodward from 1973 to 1974, whose recommendations formed the basis of legislation which was introduced by the Whitlam Government in 1975 and enacted in substantially similar form by the Fraser Government in 1976.
The Act provided for the scheduling of existing reserves (about 15% of the Northern Territory) as inalienable freehold held in trust for Aboriginal people, with a claim process (outside town boundaries) to unalienated crown land or land owned by Aboriginal interests (eg pastoral leases). A sunset clause was inserted in 1987 requiring that all claims be lodged by June 1997. Presently about 44% of the Northern Territory is Aboriginal land, which may moderately increase after remaining claims are finalised.
The Act is administered by Land Councils, which are Aboriginal organisations funded from mining royalties deriving from Aboriginal land (through a fund known as the Aboriginal Benefits Account). Development cannot proceed or interests be granted in respect of Aboriginal land (or, other than exploration/mining, land under claim) without the consent of the traditional owners and the responsible Land Council.
The Act has generated significant controversy since its inception, particularly in relation to claims which returned Kakadu, Nitmiluk (Katherine Gorge) and Uluru (Ayers Rock) to Aboriginal ownership under a joint management lease. Importantly, post claim, these settlements and others such as the Alice Springs to Darwin railway are not controversial and are internationally recognised.
Numerous challenges during the 1980s provided jurisprudence which informed the High Court in its 1992 Mabo No 2 judgment when it reversed Blackburn J’s finding that native title could not be recognised by the common law.
The Act was the subject of a 1998 review by John Reeves QC which recommended extensive amendment. These recommendations were largely rejected by a 1999 report of the Joint House Standing Committee, which recommended that the Act should only be amended after comprehensive consultations and with the consent of traditional owners.
On 15 June 2006 the Aboriginal Land Rights (Northern Territory) Amendment Bill 2006 was passed by the House of Representatives. The Bill was referred to the Senate Community Affairs Committee (Legislation) which conducted a hearing in Darwin on 21 July 2006 and will report on 1 August 2006.
The Bill includes workability amendments which are intended to rationalise processes for mining and other developments, as jointly recommended by the Northern Territory Government and Land Councils in 2002.
The Bill also includes amendments which are intended to facilitate economically healthy communities including entrepreneurship and private ownership through a head lease and sub-leases in towns on Aboriginal land.
Before the Senate Committee the Northern Land Council (NLC) recognised that such a leasing arrangement may enable traditional owners of major communities (which are predominantly located in its region), for the first time, to obtain full recognition of their rights (currently the ownership and use of most improvements are vested in the NT Government) – including a financial return and the opportunity to participate commercially.
The NLC expressed serious concerns regarding other amendments which:
The NLC submitted that the ‘delegation’ function was unworkable because (inter alia) it would involve both a Land Council and an Aboriginal corporation being separately responsible for identifying the traditional owners of the same Aboriginal land.
The NLC also submitted that the requirement that Land Council minutes be disclosed to any Aboriginal resident was unworkable since, in practice, it would result in disclosure to the media and public at large - including sensitive matters of national interest, such as the recent Commonwealth legislation to establish a radioactive waste facility which was privately considered by the NLC Full Council in 2005.
The Central Land Council raised similar concerns. The Land Councils and other Aboriginal bodies also expressed concern that there had been insufficient consultation with traditional owners regarding the Bill, particularly as to the community leasing scheme.
Ron Levy
Principal Legal Officer
Northern Land Council
…
(6) Schedule 1, page 6 (before line 4), before item 2, insert:
Insert:
approved entity means a Commonwealth entity or an NT entity. [township leases to Commonwealth entities]
(7) Schedule 1, page 6 (after line 7), after item 2, insert:
Insert: Commonwealth entity means a person approved by the Minister under section 3AAA.[township leases to Commonwealth entities]
(8) Schedule 1, page 7 (after line 6), after item 4, insert:
4A Subsection 3(1) (definition of exploration retention lease)
Repeal the definition.
Insert: exploration retention licence means an exploration retention licence granted under a law of the Northern Territory relating to mining for minerals and includes a retention licence granted under the Petroleum Act of the Northern Territory as amended from time to time.
4C Subsection 3(1) (definition of mining interest)
Omit ‘exploration retention lease’, substitute ‘exploration retention licence’.[exploration retention licences]
…
(12) Schedule 1, item 13, page 8 (before line 16), before section 3AA, insert:
3AAA Approval of Commonwealth entities
The Minister may, by writing, approve a person for the purposes of the definition of Commonwealth entity in subsection 3(1).
Note: Paragraph 22(1)(a) of the Acts Interpretation Act 1901 provides that person includes a body corporate or body politic. [township leases to Commonwealth entities]
…
(20) Schedule 1, item 44, page 21 (after line 7), after subsection 19(8B), insert:
(8C) A consent of the Minister or a Land Council under subsection (8) relating to a transfer or grant may:
(a) be general; or
(b) be expressed to be limited to a specified person or a person included in a specified class. [consents by Minister or Land Council]
…
(24) Schedule 1, item 46, page 22 (lines 28 to 31), omit paragraph 19A(6)(b), substitute:
(b) must not provide for the amount of the annual rent to be paid to exceed 5% of the improved capital value of the land, as last assessed, before the start of the year concerned, by:
(i) a person approved under subsection 19B(1); or
(ii) a person who is included in a class of persons approved under subsection 19B(2).[township leases]
(28) Schedule 1, item 46, page 24 (after line 6), after section 19A, insert:
19B Approval of valuers
(1) The Minister may, by writing, approve a person for the purposes of subparagraph 19A(6)(b)(i).
(2) The Minister may, by writing, approve a class of persons for the purposes of subparagraph 19A(6)(b)(ii).
(3) An approval under this section is not a legislative instrument.[township leases]
(29) Schedule 1, item 46, after proposed section 19B, insert:
19C Modification of certain NT laws for a township lease held by a Commonwealth entity or transferred from a Commonwealth entity to an NT entity
(1) This section applies to:
(a) the grant of a lease to a Commonwealth entity under section 19A; or
(b) the transfer of a lease to a Commonwealth entity in accordance with that section; or
(c) the transfer of a lease from a Commonwealth entity to an NT entity in accordance with that section.
(2) No stamp duty or similar tax is payable under a law of the Northern Territory in respect of the grant or transfer.
(3) On the application of the Commonwealth entity or the NT entity, the Registrar-General or other appropriate officer under the law of the Northern Territory relating to the transfer of land must register the instrument of grant or transfer as if it were duly executed under that law. [township leases]
(30) Schedule 1, item 46, after proposed section 19C, insert:
19D Modification of NT subdivision law for grant of a township lease to a Commonwealth entity
The procedures for the subdivision of land under the law of the Northern Territory relating to the transfer of land do not apply in respect of the grant of a lease to a Commonwealth entity under section 19A. [township leases]
(31) Schedule 1, item 46, after proposed section 19D, insert:
19E Modification of certain NT laws for a township lease held by a Commonwealth entity
(1) This section applies in relation to a lease:
(a) granted to a Commonwealth entity under section 19A; or
(b) transferred to a Commonwealth entity in accordance with that section.
(2) The regulations may make modifications of any law of the Northern Territory relating to:
(a) planning; or
(b) infrastructure; or
(c) the subdivision or transfer of land; or
(d) other prescribed matters;
to the extent that the law applies to land the subject of the lease.
(3) In subsection (2):
modifications includes additions, omissions and substitutions.
(4) The regulations cease to have effect if the lease is transferred to an NT entity in accordance with section 19A.[township leases]
…
(34) Schedule 1, item 113, page 53 (before line 11), before subsection 42(1A), insert:
(1AA) The Land Council must notify the applicant, the Minister and the Northern Territory Mining Minister of its decision within 7 days of making the decision. [period of notification of decision on application for consent to exploration licence]
(35) Schedule 1, item 119, page 55 (after line 31), after subsection 42(18), insert:
(18A) If:
(a) subsection (17) applies; and
(b) any necessary meetings of the kind referred to in subsection (4) were held in relation to the original application;
then the Land Council is not required to hold any further meeting of the kind referred to in subsection (4) in relation to the later application. [no further meetings for some later applications under section 41]
…
(43) Schedule 1, page 78 (after line 13), after item 201, insert:
Insert:
(1A) If the Minister delegates the Minister’s powers under section 19B to the Chief Minister of the Northern Territory, the Chief Minister of the Northern Territory is taken to have executive authority to exercise the delegated powers. [township leases]
(44) Schedule 1, item 202, page 78 (after line 20), after subsection 76(1), insert:
(1A) If the Minister delegates the Minister’s powers under section 19B to the Chief Minister of the Northern Territory, the Chief Minister of the Northern Territory is taken to have executive authority to exercise the delegated powers. [township leases]
…
31 May 2006
1. This Bill implements reforms to the Aboriginal Land Rights (Northern Territory) Act 1976 (ALRA) arising from three reviews of the ALRA conducted over the last nine years. Each of the reviews recommended amendments to streamline and modernise the ALRA to facilitate better outcomes for Aboriginal people and other stakeholders.
2. The Bill seeks to promote economic development on Aboriginal land by providing for expedited and more certain processes related to exploration and mining on Aboriginal land. It also facilitates the leasing of Aboriginal land and the mortgaging of leases. In addition the Bill makes provision for long term leases over townships on Aboriginal land to make it easier for Aboriginal people to own homes and businesses on land in townships.
3. The Bill contains provisions which foster the devolution of decision making to local Aboriginal communities. This includes allowing the delegation of Land Council powers to regional groups and clarifying the provisions for the establishment of new Land Councils.
4. The Bill seeks to improve the performance and accountability of Land Councils and incorporated bodies which receive payments for the use of Aboriginal land. Land Councils will in future be funded on the basis of workloads rather than a guaranteed funding formula, and bodies receiving payments for the use of land will have to specify the purpose of payments they make to Aboriginal people.
5. The Bill also disposes of claims to land which cannot be heard or finalised or which are clearly inappropriate to grant.
6. There are expected to be costs of up to $15 million over five years from 2006-07 to 2010-11 to assist with the establishment of the township leasing scheme. The necessary funds will be sourced from the Aboriginals Benefit Account.
1. The purpose of the Aboriginal Land Rights (Northern Territory) Act 1976 (ALRA) is to provide for the granting of traditional Aboriginal land in the Northern Territory (NT) for the benefit of Aboriginal people. The ALRA also regulates development on that land. The ALRA establishes Aboriginal Land Councils to assist, consult with and protect the interests of traditional Aboriginal owners of the land and other Aboriginal residents.
2. In November 1997, Mr John Reeves QC commenced a comprehensive independent review of the ALRA. The report of the review (Building on Land Rights for the Next Generation – the Reeves report) was provided to the Australian Government in August 1998. The House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs (HORSCATSIA) was asked to inquire into the Reeves report in December 1998. The report of the HORSCATSIA inquiry (Unlocking the Future – the HORSCATSIA report) was tabled in Parliament in August 1999. As HORSCATSIA was conducting its inquiry, a national competition policy review of Part IV (the exploration and mining provisions) of the ALRA was being undertaken by Dr Ian Manning of the National Institute of Economics and Industry Research as part of the Australian Government’s review of legislation that may restrict competition. The report of that review (the Manning report) was also released in August 1999.
3. The Australian Government’s primary objective in seeking to reform the ALRA is to facilitate a higher level of economic development on Aboriginal land. This is to be done without undermining the ALRA’s current balance of interests under which traditional owners of Aboriginal land must consent to minerals exploration. The Government’s reform proposals relate predominantly to two areas: Part IV of the ALRA dealing with exploration and mining; and provisions that will allow for more direct Aboriginal traditional owner participation in decisions about development of their land (by devolution of decision-making by Land Councils).
4. All three reports contain recommendations for reform.
5. The Reeves report criticised the two large mainland Land Councils as being overly centralised and unresponsive to the local concerns of NT Aboriginal people. Mr Reeves found that the ALRA has been very successful in granting land to Aboriginal people but that it has been less successful in benefiting Aboriginal people in other ways. Mr Reeves concluded that most Aboriginal people in the NT do not appear to have gained a significant economic benefit from inalienable freehold title to over 40 per cent of the NT. Mr Reeves also found that development on Aboriginal land, especially mining, has not proceeded optimally. The key recommendations of the Reeves report include a system of 18 Regional Land Councils (RLCs) with a peak organisation, the NT Aboriginal Council (NTAC), and a deregulated system for exploration and mining on Aboriginal land.
6. The HORSCATSIA report rejected the key recommendations of the Reeves report but agreed with many of the Reeves report’s findings and suggested incremental reform rather than the Reeves report’s more comprehensive changes.
7. The Manning report found that the operation of the exploration and mining provisions was improving and recommended incremental changes to: limit the time for the negotiation of agreements to two field seasons (a period slightly longer than two years taking into account the NT wet season) with the possibility of extensions; and improve relations between the Land Councils and the NT Government (which regulates exploration and mining on Aboriginal land under the NT Mining Act).
8. The principal objectives are to improve access to Aboriginal land for development, especially mining, to provide for the establishment of devolved decision making structures for Aboriginal people, and to improve the socio-economic conditions of NT Aboriginal people.
9. Part IV of the ALRA provides for an administrative regime to control exploration and mining on Aboriginal land. It provides Aboriginal landowners with a right to consent to exploration on their land (the exploration veto) and negotiation timeframes that can be extended (without limitation as to the length or number of extensions) by the Australian Government Minister. A veto on an exploration licence application generally places a five year moratorium on the land concerned before any negotiations can recommence. There is a national interest override of the exploration veto exercisable by the Governor-General (that has never been used). The process is initiated by a mining company obtaining a consent to negotiate with traditional owners (issued by the NT Government) for an agreement which covers exploration and (usually) provisions about any possible mining.
10. The issue for Government is how to facilitate more exploration and mining while retaining the veto. The three reports all recommend retaining the traditional owners’ right to refuse development. Prior to 1987 the ALRA provided for Aboriginal people to have a veto at both the exploration and mining stages. Amendments to the ALRA in 1987 restricted the veto to the exploration stage. The Government made a commitment in its 1996 election platform to retain the veto at the exploration stage.
11. In relation to the development of Aboriginal land, the principal objective is to improve the processes for exploration and mining companies to operate on Aboriginal land. The main problems that need to be addressed include shortening the long negotiation timeframes (which currently are regularly extended with the agreement of the Minister) and restricting the ability of some mining companies to gain exploration access to large tracts of Aboriginal land, allegedly without having any real intention of pursuing exploration (known as warehousing), thereby restricting access by other companies that would be willing to explore.
12. There are four Land Councils established under the ALRA. Two represent small island communities (the Tiwi and Anindilyakwa Land Councils) and the mainland is divided into two areas represented by the large Northern and Central Land Councils. The large Land Councils have a limited regionalisation policy that is hampered by restrictions on delegation in the ALRA. The Land Councils can and have established Regional Committees but those Committees have limited decision making powers due to the restrictions on delegation (for example, Regional Committees are unable to approve exploration and mining agreements). Previous attempts to establish new Land Councils have failed under the current provisions of the ALRA (with the exception of the Tiwi and Anindilyakwa Land Councils).
13. In relation to devolved decision making the objective is to enable NT Aboriginal people to have more control over development decisions on the mainland by allowing for the decentralisation of the present Land Council structure. There is a need for a more flexible administrative structure to better represent the concerns of NT Aboriginal people at the local level.
14. The ALRA establishes the Aboriginals Benefit Account (ABA) to receive mining royalty equivalent payments (from consolidated revenue), which are equal to the amount of any mining royalties received by the NT (or the Australian Government for uranium) in respect of a mining interest on Aboriginal land. The ABA received $49.8 million in 2004/2005. Under the ALRA, the ABA has distributed 40 per cent of revenue to Land Councils for administrative costs; 30 per cent via royalty associations to Aboriginal people in areas affected by mining; and the remaining 30 per cent is used: to provide supplementary funding for Land Councils, for general purpose grants to NT Aboriginal people, for ABA administration costs (ABA administration costs have been only 0.5 per cent), and to increase the equity of the ABA ($102.9 million at 30 June 2005). The Minister is advised on the distribution of general purpose grants by a statutory Advisory Committee.
15. Due to the sunset clause on making new claims, that took effect in 1997, the processing of land claims is approaching finalisation. This heralds an increasing focus on other aspects of the ALRA, including social and economic benefit derived from the optimal management of Aboriginal land. The Reeves report criticised the ALRA for failing to improve the socio-economic conditions of NT Aboriginal people. The HORSCATSIA report argued that socio-economic advancement was not the primary purpose of the ALRA. Both reports recommended improvements in accountability provisions related to the disbursement and expenditure of funds under the ALRA.
16. There is a need to maximise the social and economic benefits of the ALRA for NT Aboriginal people. However, the funds derived from the operation of the ALRA are small in comparison with other Government outlays. The main responsibility for the social and economic advancement of NT Aboriginal people rests with the NT Government and relevant Australian Government agencies. The objective is to ensure that the mining royalty equivalent payments are used optimally to increase Aboriginal participation in the economy through business activities and to expand industry development in the NT.
17. Possible options for achieving the principal objectives are set out below.
18. The Reeves report recommended a deregulated approach to mining in which mining companies and RLCs would reach agreements that were unrestricted as to content in an unrestricted timeframe and present them to the NT Government to issue the relevant tenement. There would be no role for government in the process.
19. The HORSCATSIA report recommended unrestricted exploration and mining agreements and the retention of the current role of the NT Government as ‘gatekeeper’ for the process.
20. The Manning report similarly recommended unrestricted agreements. The report also recommended: a core negotiating period of two ‘field seasons’ (the seven months between April and October which excludes the wet season and busy ceremonial times); greater cooperation between the NT Government and the Land Councils; prevention of inactive exploration and mining companies restricting access by other companies to Aboriginal land; and confirmation of Land Council user charging arrangements.
21. To encourage shorter timeframes for the negotiation of exploration agreements the NT Government and Land Councils have proposed that the NT Minister be provided with the discretion to set a deadline for negotiations after a core negotiating period of essentially two ‘field seasons’ (approximately 30 months). If a company was not pursuing negotiations adequately, a company’s consent to negotiate could be withdrawn by the NT Minister. The current five year moratorium which applies after traditional owners have vetoed exploration could be set aside at any time on the initiative of the Land Council and agreement of the NT Minister, subject to the current safeguard that it not be for commercial advantage.
22. The prohibition on delegating the Australian Government Minister’s powers under Part IV (the exploration and mining provisions) could be removed. This would allow for a greater role for the NT Government in the exploration and mining provisions and is proposed by the NT Government and Land Councils. The national interest override and final approval of exploration and mining agreements would however remain with the Australian Government.
23. The Reeves report recommended the dismantling of the two large mainland Land Councils and the establishment of 18 RLCs with an umbrella organisation, the NTAC, providing financial and strategic oversight. The aim of the Reeves report’s recommendations is to provide for decision making at the regional level.
24. The HORSCATSIA report recommended improving the procedures to create new Land Councils by outlining a transparent process and defining that the Aboriginal majority in favour of a new Land Council should be at least 60 per cent. The report also recommended relaxing the restrictions on the delegation powers of the existing Land Councils to allow for regional groups to exercise decision making responsibilities. The HORSCATSIA report also recommended that Aboriginal landowners be able to ‘opt out’ of representation by a Land Council.
25. A more appropriate hurdle for a new Land Council would be a 55 per cent majority. Another option proposed by the NT Government and Land Councils to ensure that new Land Councils are workable would be to include a viability assessment. The assessment would include an examination of governance structures, administrative capacity and representative capacity.
26. An alternative option to the HORSCATSIA report for devolution of decision making would be to provide for application to the Minister by Aboriginal groups seeking to exercise regional Land Council powers as a step towards full Land Council status. This would enable regional groups to develop their organisational capacity without needing to perform the full range of Land Council functions.
27. The Reeves report recommended using the ALRA as the primary mechanism to address Aboriginal socio-economic disadvantage in the NT. The report recommended that all Government money, both NT and Australian Government, be provided to the proposed NTAC for distribution for the advancement of Aboriginal people. The Reeves report recommended that mining royalty equivalents be distributed only in accordance with a statement of purposes which would include prohibiting individual payments and an improved system of reporting and accountability for Aboriginal organisations which receive payments. The Reeves report recommended that the mining royalty equivalents derived from mining on Aboriginal land be paid in the first instance to the NTAC and only passed on to Aboriginal landowners who could demonstrate that mining had an actual adverse effect.
28. The HORSCATSIA report put the view that the ALRA is not the primary vehicle for the economic advancement of NT Aboriginal people. The report recommended appropriate accountability mechanisms, a statement of purposes for the use of mining royalty equivalents and canvassed increasing from 30 per cent to 40 per cent the share of funds going to Aboriginal people in areas affected by mining. The HORSCATSIA report also canvassed distributing the ABA payments that go to Aboriginal people in areas affected by mining through a grants scheme rather than as an entitlement.
29. To address the concerns about the payment of mining royalties, it could be a requirement that such payments not be made without a specified purpose. This should result in more targeted expenditure of royalty moneys. Formalising the Minister’s capacity to build up the equity of the ABA, by allowing the Minister to prescribe a minimum level from time to time, would ensure the long term viability of the ABA. Enabling the Minister to appoint members with professional expertise to the ABA Advisory Committee would strengthen the Committee.
30. All reform options have a potential impact on Aboriginal people in the NT and their representative bodies, business (including the mining industry), the NT Government and the Australian Government.
31. Each option considered has the intention of increasing access to Aboriginal land for development and each is expected to achieve this benefit, although with varying degrees of success. As per the Government’s commitment in its 1996 election policy the veto at the exploration stage is to be retained, despite its cost to business.
32. Removing government from the process of exploration and mining on Aboriginal land, except for issuing a tenement following a successful negotiation, would benefit traditional owners by recognising that the right of veto is equivalent to an ownership right. The veto is regarded as a de facto property right, and an unregulated system of land access would essentially give de jure recognition to the veto as a property right. This would allow Aboriginal people greater power in agreement making. It may benefit miners by reducing bureaucratic red tape.
33. The Reeves report recommendation of an unregulated system for mining on Aboriginal land would place unreasonable pressure on Aboriginal people and possibly lead to anti-competitive arrangements between Land Councils and resource companies. There is a proper role for Government to regulate resource development in the interests of orderly access and transparency. The Reeves report recommendations would leave the NT Government with little ability to properly manage the mineral resources vested in the Crown. An unregulated system that had few statutory controls could result in little incentive for negotiations to progress to finalisation, an outcome of no benefit to Aboriginal people or the mining industry. This potential inefficiency in the management of mineral resources would not be of benefit to either the NT Government or the NT community (including business other than mining). The Reeves report recommendations may mean that mining companies may be involved in protracted negotiations with Aboriginal traditional owners that would have a negative impact on the companies by tying up their resources and allocation of capital. Mining companies may be limited in their ability to pursue other opportunities while their resources are expended on these negotiations. The difficulty experienced by mining companies under such a system may act as a disincentive for the future development of mineral resources in the NT.
34. This option is marginally better than Option A because it maintains a role for the NT Government.
35. Freedom of contract would remove a legislative fetter that is generally ignored in any case. It would remove the legal uncertainty in regard to exploration agreements that include reference to the value of minerals likely to be extracted at the mining stage, and is supported by the NT Government and Land Councils. The retention of the role of the NT Government in managing mineral resources should be of benefit to all groups because it provides for a fair and transparent system for resource companies to seek access to Aboriginal land on a first-come, first-served basis and is supported by all stakeholders.
36. Freedom of contract has been criticised by elements of the mining industry as it could raise unrealistic expectations of Aboriginal people of the likely benefits from any mining. It is likely to require resource companies to engage in negotiations about terms of agreement that would apply at the mining stage up front prior to exploration. Some companies see this as a disincentive as pre-exploration they have no indication as to the real minerals potential of a tenement (and few exploration proposals lead to development). Removing the restrictions on exploration agreements would alter the balance of interests under the ALRA.
37. Option C maintains the role of government, supports freedom of contract and goes further in addressing negotiating timeframes than the previous two options.
38. The Manning report recommendation of a core negotiating period encompassing two ‘field seasons’ reflects current best practice. It is proposed by the NT Government and Land Councils and is supported by the mining industry. Preventing inactive mining companies from warehousing Aboriginal land is of benefit to all groups except mining companies that want to warehouse. Statutory confirmation of the ability of Land Councils to charge for services as recommended by the Manning report would add transparency to existing arrangements and would benefit developers. These proposals are supported by the NT Government, Land Councils and mining industry.
39. The proposals retain the ability to extend negotiating timeframes indefinitely. There is no mechanism to set a deadline for negotiations, which allows for an unending process which is of no benefit to traditional owners, miners or Government.
40. This option includes mechanisms for encouraging agreement which the other options do not (ie. ability to set a deadline for negotiations, ability to withdraw consent to negotiate and greater role for the NT Government in administration).
41. Processes to streamline negotiations on exploration and mining agreements would improve the access to Aboriginal land for these purposes for the benefit of all groups. The ability of the NT Government to set a deadline for negotiations after an appropriate core period may encourage quicker agreements, end unnecessarily protracted negotiations and benefit all groups. It would penalise inactive mining companies and allow traditional owners to cease fruitless negotiations without having to exercise the veto. There would be a greater incentive for mining companies to negotiate on access for exploration and development which may potentially offer further royalties to the NT Government (and royalty equivalents to the ABA) and increased economic benefits for the NT community, particularly Aboriginal people.
42. Allowing for the consent to negotiate to be withdrawn if a mining company is not pursuing negotiations adequately will benefit traditional owners who want to negotiate with a company that wants to negotiate properly and reward those companies that have a good reputation in negotiating with traditional owners. Mining companies will no longer be able to ‘warehouse’ areas of Aboriginal land with no intention of exploring in the short or medium term.
43. Allowing for the moratorium to be set aside with Land Council consent at any time will be beneficial to the development of Aboriginal land for all concerned. It introduces more flexibility to the process.
44. An increased role for the NT Government in the exploration and mining provisions would provide more direct and local administration which would benefit all groups. It would reduce the role of the Australian Government Minister in a matter that is primarily a NT land management issue.
45. The above proposals are the recommended Australian Government position and are supported by the NT Government, Land Councils and the mining industry.
46. Allowing negotiations to continue beyond a core period by allowing extensions to that core period may not result in any quicker timeframes for the negotiation of agreements than the current ALRA. However, key stakeholders would not support removing the ability for extensions to a core negotiating period because it removes their flexibility. A review of the operation of the new arrangements will be conducted after five years, primarily to test whether timeframes are being observed.
47. The intention of each option considered is to support local decision making structures. The benefits of more accountable Land Councils with responsibilities devolved to local groups would be greater attention to the needs of local Aboriginal groups and better social and economic outcomes for them. Local decision making could potentially lead to more economic (especially exploration and mining) development or, at least, lower costs for developers and quicker negotiation of land access.
48. The large Land Councils provide a degree of certainty to developers that the required consent and consultation processes of the ALRA have been fulfilled. Any reform measures to provide for devolved decision making must retain the current checks and balances that protect the interests of both Aboriginal landowners and developers. The benefits of dealing more directly with the traditional owners of the land must be balanced with the need to ensure agreements continue to provide certainty for developers and are beneficial to Aboriginal people.
49. Smaller Land Councils with decision making at the regional level would potentially benefit traditional owners and developers. RLCs would have the flexibility to make decisions according to their own decision making processes and based on their own assessment of their needs (economic, social and cultural). Exploration and mining companies would be better able to deal with local traditional owners without going through a large Land Council intermediary and build direct, constructive working relationships. The companies would then be better able to negotiate outcomes with traditional owners that reflected their shared interests in development. Outcomes would be more timely with local decision making as the processes and resource constraints of the large Land Councils can lead to lengthy negotiation timeframes.
50. The proposed NTAC’s oversight functions would reduce local autonomy. 18 RLCs would not be operationally feasible at this stage given the limited physical and social infrastructure in the NT and limited community governance capacity. Regionally decided decision making processes would not necessarily provide primary decision making power to traditional Aboriginal landowners. Such processes could be counter to traditional Aboriginal decision making processes.
51. The HORSCATSIA report recommendations concerning new Land Council provisions and regionalisation by the existing Land Councils would provide mechanisms for Aboriginal groups desiring increased local decision making to achieve it. The maintenance of Land Council certification of traditional owner consent as recommended by HORSCATSIA would retain the existing certainty that developers have under the ALRA. On balance, the HORSCATSIA proposals are a more moderate and viable step towards Land Council reform than the approach of the Reeves report. The proposals would allow for the evolutionary development of local decision making bodies as those bodies would be established when local groups were ready and willing to take on further responsibilities.
52. A 60 per cent majority hurdle for new Land Councils would continue to, in effect, make the establishment of new Land Councils difficult. ‘Opting out’ presents potential administrative problems and could lead to a lack of certainty. Any group that opted out of the Land Council structure would have to be adequately resourced and there may be increased pressure on development interests to resource those groups. Under the ALRA a Land Council endorses that traditional owners have consented to an agreement and that other Aboriginal people affected have been consulted. This ensures that the right Aboriginal people have been consulted on any development proposal. Opting out of the Land Council system may reduce the certainty that all of the right people have been consulted.
53. Rather than the 60% threshold proposed by HORSCATSIA, a 55% majority hurdle for new Land Councils would be a more appropriate threshold. It would allow change to the status quo, but still ensure a new Land Council was supported by the community. A viability assessment for the establishment of a new Land Council would ensure organisational capacity existed. This would be beneficial to all identified affected groups. Regionalisation of decision making by application to the Minister would ensure a transparent process and would provide regional groups, that may not have a good relationship with the existing large Land Councils, with the opportunity to initiate the devolution process independently of the existing large Land Councils. These proposals are the preferred Australian Government position.
54. Each option considered has the intention of increasing the economic development of Aboriginal land. This is in the interests of developers and Aboriginal people as long as both benefit from development of the land. For those benefits to be realisable it is important that public moneys are spent optimally for the benefit of recipients.
55. While increased accountability requirements for those Aboriginal organisations in receipt of mining royalty equivalents may raise their compliance costs, the benefits of ensuring the long term viability of those organisations should outweigh any costs. Improved accountability is the preferred Australian Government position.
56. The ALRA is primarily a land management Act. To expand its functions to include the Reeves report’s proposal that all Government funding be channelled through the proposed NTAC is not favoured by either the Australian Government or NT Government as it would centralise decision making about funding of Aboriginal affairs in the NT. This would not benefit any group.
57. The Reeves report recommendation that Aboriginal landowners only receive payments if they can demonstrate an actual adverse effect from mining would provide less incentive to agree to mining than the current arrangements which entail an automatic entitlement to payments. This would not benefit Aboriginal people or mining companies as it would reduce the incentives to proceed with negotiations. Fewer agreements would not benefit the NT Government or community.
58. The increased accountability mechanisms for the use of mining royalty equivalents is favoured by all affected groups and is the preferred Australian Government position.
59. An increase from 30 per cent to 40 per cent of mining royalty equivalents going to areas affected may not result in more exploration agreements as the veto is primarily exercised for cultural reasons. There would be consequently less funds for the general benefit of all Aboriginal people in the NT. A grants scheme for areas affected monies would be detrimental to Aboriginal landowners and is not recommended as the funds are essentially compensation. It is not appropriate for affected people to compete for compensation payments. This would be of no benefit to any group.
60. Requiring specific purposes for payments should result in more targeted expenditure of royalty moneys. Given the volatility of mining royalty equivalent income, allowing the Minister to prescribe a minimum level for the equity of the ABA would ensure the long term viability of the ABA. Adding professional expertise to the ABA Advisory Committee should assist in providing more strategic advice to the Minister. These proposals are the preferred Australian Government position.
61. Requiring specific purposes for payments may be criticised by some NT Aboriginal people as constraining their choices.
Summary of Impact Analysis of Issue 1: Development of Aboriginal Land
62. All four options considered include the maintenance of the veto at the exploration stage. Maintaining the veto is a Government policy commitment. The deregulated system proposed by Option A (Reeves) would likely lead to anti-competitive outcomes and less exploration and mining. The incremental approach of Option B (HORSCATSIA) fails to address the timeframes for negotiations and is likely not to lead to improvements. Option C (Manning) fails to address the extensions to the core negotiating period but would nevertheless likely lead to marginal improvements that would benefit all groups. Option D (alternatives) attempts to limit extensions and most significantly delegates most exploration and mining decisions on Aboriginal land to the NT Government. Option D is likely to be of considerable benefit to all groups. The likely outcome of a more responsive local administration is increased exploration and mining where traditional owners wish it to occur, which is in the interests of all affected groups.
63. The three reviews provided all stakeholders with a number of opportunities to present their views. The Reeves and HORSCATSIA review processes involved extensive public hearings at which 2000 people attended and 170 written submissions totalling 6000 pages were produced.
64. The then Minister for Aboriginal and Torres Strait Islander Affairs, Senator the Hon John Herron, announced a review of the ALRA and the terms of reference in July 1997. Mr Reeves was appointed to conduct the review in October 1997. Mr Reeves conducted a full public review. An issues paper was circulated in November 1997, community visits and public hearings in 22 Territory communities occurred between December 1997 and March 1998 and 98 written submissions were received. Mr Reeves reported in August 1998.
65. The then Minister referred the Reeves report for inquiry by HORSCATSIA in December 1998. HORSCATSIA conducted 31 public hearings and meetings between March and June 1999 and received 72 written submissions. The HORSCATSIA report was tabled in Parliament in August 1999.
66. The national competition policy review of Part IV of the ALRA conducted by Dr Manning for the National Institute of Economics and Industry Research was commissioned by the Aboriginal and Torres Strait Islander Commission in January 1999. Submissions were received from the major stakeholders, a statistical survey was conducted, an informal meeting of the major stakeholders was held, a draft report was circulated to major stakeholders and comments were taken into account. The report was publicly released in August 1999.
67. The Land Councils, representing NT Aboriginal people, have criticised the Reeves report and generally supported the HORSCATSIA report. The mining industry favours proposals to encourage development on Aboriginal land.
68. The former Minister for Immigration and Multicultural and Indigenous Affairs, the Hon Philip Ruddock MP, initiated a new round of consultation early in 2002 with the particular aim of seeking the views of the new NT Government. The Minister released an options paper on reforms to the ALRA to all major stakeholders in April 2002. Most stakeholders responded promptly. Independently of the Australian Government, the Land Councils and the NT Government conducted discussions and a joint NT Government/Land Council response to the options paper was provided to the Australian Government in June 2003, and publicly released in September 2003.
69. The Australian Government has proceeded to build on the NT Government/Land Council response to develop some alternative options on the basis of the views of other groups as expressed through the extensive review and consultation processes and by taking into account the recommendations of the reviews.
70. The preferred option for improving development on Aboriginal land is Option D which has appropriate timeframes for the negotiation of agreements. A core period of essentially two field seasons (approximately 30 months) sets a realistic timeframe for the negotiation of exploration and mining agreements. The possibility of the NT Government setting a deadline after the core period should add rigour to the expectation that most negotiations will be completed within the core period. A flexible moratorium and the withdrawal of companies that do not pursue negotiations adequately introduces further flexibility to the processes for mining companies to obtain access to Aboriginal land and for traditional owners to negotiate with mining companies.
71. Delegation of most Part IV decisions to the NT Government would lead to faster and more responsive processes under a local jurisdiction and would enable the Australian Government Minister to be largely removed from issues that are primarily land management issues for the NT. However, only the Australian Government would have the power to override the veto in the national interest as it is not appropriate that such a decision be made locally.
72. A review of the operation of the revised exploration and mining provisions will be conducted after five years to test whether the new arrangements have led to improved outcomes.
73. Statutory confirmation of the ability of Land Councils to charge for its services will confirm existing practice.
74. These mechanisms should strengthen Aboriginal control of their land and facilitate an increase in business development on Aboriginal land.
75. The preferred option to encourage devolved decision making is to facilitate the establishment of new Land Councils and allow for greater devolution of existing Land Council powers to the regions by either the large Land Councils or the Minister. The amended new Land Council provisions will provide for a transparent assessment process, viability criteria and a plebiscite of resident Aboriginal people requiring that 55 per cent of those voting be in favour, of the establishment of a new Land Council. This will ensure that any new Land Council will be operationally viable and represent all Aboriginal people in its area. The delegation powers of the Land Councils will be expanded to allow regional groups to exercise decision making responsibilities. Regionalisation through application to the Minister will provide a platform for those groups to later become new Land Councils.
76. These recommendations provide a balance in allowing for local decision making while retaining organisational viability and certainty for business. Business will be able to negotiate more directly with Aboriginal landowners in an environment where it can be certain that it is dealing with the right people and that any agreements will be secure.
77. Within the ALRA context, the preferred option to improve the socio-economic conditions for Aboriginal people is to ensure that mining royalty equivalents are used for the best interests of recipients. A prescribed minimum level of equity for the ABA will provide for the long term viability of the ABA. Adding professional expertise to the ABA Advisory Committee will improve advice to the Minister.
78. Improved accountability will ensure that royalty monies are not dissipated and are used for beneficial purposes. The royalty associations that receive mining royalty equivalents will benefit from monitoring mechanisms that assist long term financial viability. The royalty associations will be subject to consistent reporting requirements, transparent royalty distribution mechanisms and a requirement that moneys paid by the associations must be for a specified purpose.
79. New Land Councils will be initiated by application to the Minister. Regionalisation of existing Land Councils will be initiated by the Land Council or by application to the Minister. The Minister will delegate most Part IV decisions to the NT Government. A review of the operation of the new arrangements for exploration and mining will be conducted after five years.
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2006/33.html