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Recent Reports on Land Claims under the Aboriginal Land Rights (Northern Territory) Act 1976 - Introduction to the Aboriginal Land Rights (Northern Territory) Act 1976
The Aboriginal Land Rights (Northern Territory) Act 1976 ('the ALRA') was the first statute to comprehensively provide for Aboriginal land rights in Australia. Its main features include:
' the immediate transfer of ownership of all reserves (approximately 15 per cent of the Northern Territory (NT)) as inalienable freehold to Aboriginal people;
' procedures for claims (outside town boundaries) to unalienated Crown land, and to land already owned by Aboriginal interests (eg pastoral leases) - a sunset clause was inserted in 1987 requiring that all claims be lodged by June 1997;
' the appointment of an Aboriginal Land Commissioner, being a judge whose function is to inquire and report as to land claims, and to recommend whether the land claimed should be granted to the traditional owners as freehold. A recommendation is considered by the Commonwealth Minister for Aboriginal and Torres Strait Islander Affairs, who may accept or (wholly or partially) reject the recommendations.
' The Land Commissioner is required to report as to the existence of 'traditional responsibility' and 'primary spiritual responsibility' for sites on land (subs. 3(1)). [1] A finding of the existence of traditional Aboriginal owners is a hurdle which must be met before land can be granted under the ALRA, subsequently the land is held for the benefit of traditional Aboriginal owners and all other Aboriginal people how have traditional interests in the land (subs. 50(1) (a)). [2]
The Act's limitations are that:
' it does not provide for recognition of Aboriginal interests to land contained within gazetted town boundaries;
' it does not enable the recognition of traditional ownership to areas of sea, this issue being left to NT legislation;
' it does not provide for community living areas in respect of operating pastoral leases, this issue being left to NT legislation;
' Large areas of traditional lands, including most Territory national parks, have been transferred to statutory corporations which are immune from claim. [3]
The ALRA has delivered substantial rights to Aboriginal people. At present approximately 41 per cent of the NT is owned as Aboriginal freehold, with a further 9 per cent subject to claim. [4] Land councils are presently conducting cases pursuant to the High Court's decision in Mabo v. Queensland [5] and the Native Title Act 1993 which are intended to overcome the above limitations.
See also R. Levy 'Twenty Years of Land Rights - Lessons for the Native Title Act' [1996] AboriginalLawB 72; (1996) 3(85) Aboriginal Law Bulletin 22.
In March 1996 the Aboriginal Land Commissioner, Justice Gray, published his report and recommendations in the Warnarrwarnarr-Barranyi (Borroloola No. 2) Land Claim.
This matter is a 'repeat claim' to land which was unsuccessfully included in the Borroloola Land Claim (No. 1), and thus is Australia's longest running land claim (paragraph 1.2.1). The Borroloola Land Claim (No. 1) is usually regarded as the first to be lodged (July 1977) and heard (September 1977) under the ALRA, although it was preceded by an inquiry into Kakadu by Justice Fox as part of the Ranger Uranium Inquiry pursuant to s. 11(2) of the Act. [6]
The first Aboriginal Land Commissioner, Justice Toohey, published his report in March 1978. While the claim was substantially successful, Toohey J. was unable to find that there existed 'traditional Aboriginal owners' [7] , being 'a local descent group' with primary spiritual responsibility for sites on land [8] , in respect of a number of coastal islands contained in the Sir Edward Pellew group.
Subsection 50(2B) of the ALRA empowers a Land Commissioner to inquire in respect of land which has previously been subject to an unsuccessful claim. Before doing so the Land Commissioner must find that the repeat claim is put on a substantially different basis, that further information is available, or that some other appropriate ground exists; and that it is likely that the claimants are the traditional Aboriginal owners of the land (paragraph 1.3).
A repeat claim was lodged in January 1979. In 1992 Justice Gray found that the subs. 50(2B) criteria were satisfied. The repeat claim was asserted on a substantially different basis, included relevant information not available in the original claim, and was likely to be successful. His Honour also relied on the further ground (paragraph 1.3.2):
'that the basis on which traditional land claims are conducted has changed dramatically since claim no. 1 was heard, the crucial change being the extent to which evidence of Aboriginal witnesses has been taken into account.'
During the long period between lodgement and hearing the Northern Territory Government (NTG) utilised a number of devices in an effort to defeat the claim. In January 1980 the NTG gazetted the boundaries of a new town, the Town of Pellew, the contention being that land contained within town boundaries is not available for claim. [9] Subsequent decisions established that this argument was inapplicable because the town had not been proclaimed at the time the repeat claim was lodged. [10]
The NTG also purported to grant estates of freehold to Aboriginal associations and leases to non-Aboriginal interests for holiday houses on Centre Island. The grants to Aboriginal associations occurred in the context of alleged attempts to settle the claim (indeed the portion of the claim relating to North Island was withdrawn prior to hearing due to a settlement based on such a grant). No attempt was made to prove the terms of such a settlement, nevertheless the NTG asserted that the claimants had impliedly withdrawn the claim, that they were estopped from pursuing it, and or that it was unfair and unconscionable for it to be pursued. Justice Gray noted the weakness of these submissions and stated that (paragraph 1.13.26):
'[f]ar from it being unconscionable for the claimants to continue to press their claim in the face of the grants to the Aboriginal associations, it would be grossly unconscionable if they were not able to do so.'
The auction of 11 blocks for holiday houses on Centre Island occurred prior to the decision of the Federal Court in NT v. Hand which held that such grants were invalid until such time as the claim was concluded. [11] However the earlier decision of R v. Kearney; ex parte NLC [12] and the plain wording of the ALRA apparently rang 'alarm bells' with the NTG; each contract of sale included a clause stating that the Territory did not warrant that it had title to pass, and that compensation was limited to recovery of the purchase monies (paragraph 1.13.29).
The NTG then 'stood by and encouraged' the 'lessees' to expend considerable sums of money for the construction of houses built to cyclone proof specifications (paragraph 1.13.30). Indeed the leases included a covenant requiring the development of each block. The NTG insisted on its performance and continued to grant new leases regarding the 11 blocks even after the decision in NT v. Hand, and after the enactment of subs. 67A of the ALRA which clearly states that the grant of such leases 'shall be of no effect'.
Justice Gray found that the Yanyuwa people are the traditional Aboriginal owners of all of the land claimed, including the 11 blocks on Centre Island, and that the degree of their traditional attachment is 'very strong'. The claimants live in a manner which maximises elements of traditional Aboriginal life and maintain their spiritual associations with their traditional country.
The Land Commissioner considered the effect the claim may have regarding other interests including the Centre Island holiday houses, commercial fishing industry, recreational fishing groups, recreational use of the islands, environmental matters, and an NTG claim that this remote area requires its own port facility. His Honour concluded that a grant of land would greatly benefit the claimants, and recommended that the whole of the land claimed be granted as Aboriginal freehold to the low water mark.
The Minister for Aboriginal and Torres Strait Islander Affairs is now considering whether to accept the Land Commissioner's recommendation.
In June 1996 the Aboriginal Land Commissioner, Justice Gray, published his report and recommendation in the Malngin and Nyinin Claim to Mistake Creek Land Claim.
In his report, the Commissioner lists over three hundred people as traditional Aboriginal owners of the land under claim, and recommends that title to the land claimed be granted to a single Aboriginal Land Trust, for the benefit of Aboriginal people entitled by Aboriginal tradition to the use or occupation of the land.
A traditional land claim to Mistake Creek Pastoral Lease was lodged by the Central Land Council on behalf of traditional Aboriginal owners in September 1991, after the pastoral lease and cattle operation had been purchased by an Aboriginal corporation representing traditional landowners. The pastoral lease lies in the northwest of the Northern Territory in the Ord River basin, adjacent to the Western Australian border. Members of two language groups were represented in the claim -Malngin in the north, and Nyinin in the south.
An essential requirement for a land claim under the Aboriginal Land Rights (Northern Territory) Act 1976 (the ALRA) is that claimants constitute a local descent group. [13] This claim involved several local descent groups, each connected with its own estate or area of land. Each estate is associated with specific 'dreamings' which connect the people to the land and their sacred sites.
The Commissioner notes that the primary principle of descent determining membership of a local descent group in this claim is a combination of patrilineal descent (i.e. through one's father and father's father) and matrifiliation (through one's mother's father). He also comments that membership of a local descent group may occur by adoption, and where extinction of a group might occur because of failure of the patriline, there is a process that allows for the recognition of a new patriline to ensure continuity of land ownership (paragraph 3.4)
In his report the Commissioner accepts that members of a local descent group acquire their common spiritual affiliations to the land by the processes of descent referred to above. He notes that spiritual responsibility for country is exercised primarily through ceremony, with each member of the group having an obligation to exercise responsibility according to their role and knowledge. Together, the members of the local descent group exercise primary spiritual responsibility for their sacred sites and their land (paragraphs 4.3 and 4.11).
Under the ALRA the Commissioner is required to have regard to the strength of traditional attachment of the claimants to the land [14] , and in this claim he regards the strength of attachment as high. Many of the claimants participate regularly in traditional ceremonies and are actively involved in educating their children about spiritual and ceremonial matters. There is continued belief in and acknowledgment of the beneficial effects or certain sacred sites and the dangerous nature of others, and a number of claimants have 'bush' names that relate to places or dreamings associated with the land. Many of the claimants have had a long association with the land, having been employed in the pastoral industry on Mistake Creek Station, or having lived in the region for most of their lives.
In addressing the various matters on which he is required to comment, the Commissioner observes that as many as one thousand Aboriginal people with traditional attachments to the land could be advantaged if the claim were acceded to. He notes that the grant of the land would confer inalienable freehold title on people, thereby preserving the land for them and their descendants. This would make it easier to protect sites and areas of spiritual and cultural significance, and would also increase the ability of Aboriginal people to control the activities of those who seek to acquire mining interests in the land (paragraphs 6.1 and 6.2).
The Commissioner also emphasises that there would be a considerable intangible advantage conferred on people by the grant of title because it is (paragraph 6.2.3):
'a recognition of the traditional rights of people whose forebears were dispossessed. Such recognition is at the highest level of Australian society. It carries with it an affirmation of the value of traditional rights and of places of cultural significance. It enables the traditional Aboriginal owners of the land and others with traditional attachments to use the land as a focus for the further development of their community spirit and the maintenance and increase of their self-esteem. The importance of such an acknowledgment and such a focus for modern Aboriginal communities should not be underestimated.'
In September 1996 the Central Land Council was informed by the Minister for Aboriginal and Torres Strait Islander Affairs that he agreed with the Commissioner's recommendation that the land should be granted to an Aboriginal Land Trust. As a result, it is expected that title to the land will be granted before the end of the year.
[1] Under subsection 3(1) of the ALRA 'traditional Aboriginal owners' are defined as:
'traditional Aboriginal owners', in relation to land, means a local descent group of Aboriginal who:
(a) have common spiritual affiliations to a site on the land, being affiliations that place the group under a primary spiritual responsibility for that site and for the land; and
(b) are entitled by Aboriginal traditional to forage as of right over the land.'
[2] Subsection 50(1)(a) of the ALRA states:
'50. (1) The functions of the Commissioner are:
(a) on an application being made to the Commissioner by or on behalf of Aboriginals claiming to have a traditional land, being unalientated Crown land or alienated Crown land in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals -
(i) to ascertain whether those Aboriginals or any other Aboriginals are the traditional Aboriginal owners of the land; and
(ii) to report his findings to the Minister and to the Minister for the Northern Territory, and where he finds that there are Aboriginals who are the traditional Aboriginal owners of the land, to make recommendations to the Minster for the granting of the land or any part of the land in accordance with sections 11 and 12.'
[3] R v. Kearney; ex parte Japanangka [1984] HCA 13; (1984) 52 ALR 31.
[4] This information is contained in affidavit material dated 2 May 1996 filed by the Territory in the High Court in the Wik proceedings.
[5] Mabo v. Queensland [1992] HCA 23; (1992) 175 CLR 1.
[6] This inquiry proceeded on the basis of a relaxed test. Subsection 11(2) of the Aboriginal Land Rights (Northern Territory) Act 1976 ('the ALRA') states that the claimants were not required to establish the existence of 'traditional Aboriginal owners'. Land could be granted on a finding that a group of Aboriginal people with traditional rights to use or occupation of the land existed. The claimants had little difficulty in satisfying these criteria regarding most of the areas of land claimed.
[7] See Subs. 50(1)(a) of the ALRA.
[8] See definition of 'traditional Aboriginal owner' at s. 3 of the ALRA.
[9] The most celebrated example of this 'subterfuge' was the expansion by regulation of the boundaries of Darwin in 1978 from an area of 140 square kms to 4,350 square kms. In a landmark case the High Court enabled the claimants to adduce evidence to prove that the regulation had been enacted for an ulterior purpose, namely to remove the Cox Peninsula from claim and so defeat the Kenbi Land Claim (Re Toohey; ex parte NLC [1981] HCA 74; (1981) 56 ALJR 164). The Land Commissioner subsequently found that the regulation was ultra vires having been enacted in bad faith.
[10] R v. Kearney; ex parte NLC [1984] HCA 15; (1984) 158 CLR 365.
[11] NT v. Hand (1989) 25 FCR 345.
[12] Supra n. 1.
[13] See the definition of 'tradition Aboriginal owners' in subs. 3(1) of the ALRA.
[14] See subs. 50(3) of the ALRA.
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/1996/95.html