Aboriginal Law Bulletin
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by David Dalrymple
The Aboriginal Councils and Associations Act (Clth) AC & AA came into operation on 14th July 1978. It was clearly legislation designed to provide a new form of incorporated status for the benefit of Aboriginal groups and communities seeking to have themselves recognized as legal entities by Australian law.
The Act distinguishes the activities that such groups and communities might be involved in into two broad categories and specifies a particular kind of incorporated structure for each. Part IV of the Act is headed Incorporated Aboriginal Associations, and provides a vehicle for the establishment of Aboriginal Corporations for commercial or general purposes.
Part III of the Act provides for the establishment of Aboriginal Councils which (as indicated in sub - section 11(3)) are contemplated as carrying out local government-type essential services. The Act is drafted in such a way that the designation of an Aboriginal Council Area for land not already covered by some existing Local Government body can be processed as a matter of course (by the Registrar whose position is created by Part 11 of the Act), while the designation of an Aboriginal Council Area in an existing Local Government area can only occur if the Minister for Aboriginal Affairs gives his consent sent (after consultation with the Minister responsible for Local Government in the relevent State or territory).
The AC & AA was first presented to Parliament as an ALP bill on the 30th September 1975 by the then Minister for Aboriginal Affairs, Mr Les Johnson. In accordance with the general mood prevailing at the time of bipartisan support for measures to assist Aboriginal people (now unfortunately identifiable as an ephemeral mood which accompanied the high-water mark of such measures), the 2nd Reading Speech for the for the Bill described it as one of a series of four Bills the Government had undertaken to introduce, to assist in the implementation of its policy of ‘assisting Aboriginal people to take their rightful place as citizens in the Australian community’. The failure in that speech and in the course of subsequent debate on the Bill to spell out whether ‘rightful place’ entails a right to maintain Aboriginal community governments distinct from uniform local government structures set up pursuant to Legislation of a State or Territory, means that the answer to this question must be found either obliquely (by inference from the words of the final Second Reading Speech), or from the clear wording of the Act itself.
The final Second Reading Speech was given by then Minister for Aboriginal Affairs Mr Viner on 3rd June 1976, to introduce a Liberal/Country Party Bill which was, (as he described it), basically the same as the one that had been introduced by the ALP the previous year, except with amendments precluding Aboriginal Councils from passing by-laws inconsistent with those of an existing Local Government Authority, and requiring Aboriginal Council by-laws to be submitted to Parliament.
In the third paragraph of the Hansard transcript of Viner's Second Reading Speech he says:
"What is so important about this measure is that it will recognize cultural differences between the Aboriginal and non-Aboriginal societies and enable Aboriginal communities to develop legally recognisable bodies which reflect their own culture and do not require them to subjugate this culture to overriding Western European legal concepts. This is a very real manifestation of the growing recognition throughout Australia of the validity and strength of Aboriginal Society which, I might add, is clearly acknowledged in the policy of the Government Parties which recognizes a special obligation 'to provide opportunities for Aborigines to preserve their tradition, languages and customs from further encroachment and destruction where possible"
The AC & AA itself, while clearly intending that an Aboriginal council should not be able to "undo" the by-laws of an existing Local Government Authority, does not spell out the permissible scope of an Aboriginal Council's activities in an existing local government area. Presumably an Aboriginal Council operating according to custom (as it is permitted to under sub-section 23 (3) of the Act) would not be involved in passing many by-laws anyway. And where Aboriginal people living in remote parts of Australia (where there is often no Local Government Authority) are concerned, the Act appears to give them untramelled local government power without any prima facie restrictions on by-law making power (although by-laws must still be approved by the Minister and then tabled in Parliament).
The legislation has never been tested in practice. While many Aboriginal Corporations have been formed under the AC & AA there is still no registered Aboriginal Council, and in a telephone conversation on 4/12/87, the Registrar informed me that there had only been about 15 applications under PartIII since 1978 (none of which were pursued to completion).
I will restrict this section of my article to Aboriginal Land granted pursuant to the Aboriginal Land Rights (Northern Territory) Act 1976 (Clth) (ALRA), but it goes without saying that as the AC & AA (unlike ALRA) is not limited to the Northern Territory, much of what is covered in relation to local government on ALRA land will apply to land granted under land rights legislation passed by the States, and also to land held by Aboriginal bodies under conventional freehold title.
Most of the places referred to as "communities" on Aboriginal land in the N.T. are in fact service and administrative centres originally established as missions and government settlements pursuant to an assimilationist policy of drawing Aboriginal people away from their traditional foraging lifestyles, and urging them to adopt more sedentary European roles.
The Federal Government has endorsed the recommendations of last years House of Representatives Standing Committee on Aboriginal Affairs Report on outstations Return to Country, March 1987. The Report recommends that the establishment and maintenance of outstations be encouraged, as a measure calculated to enable Aboriginal people to regain as much as possible of their traditional foraging lifestyles without being dependent on the mission centres.
These mission Centres are usually populated by about 200 to 2000 Aboriginal people (fluctuating depending on the time of year and the viability of surviving on bushfood) and varying numbers of non-Aboriginal support staff and their families. Up until the last few years most of these communities were administered by Community Councils incorporated under the Northern Territory Associations Incorporation Act. De facto control was largely exercised by the various agencies providing funding: DAA, ADC, and the relevant Northern Territory department which until quite recently was called Department of Community Development (now Office of Local Government - OLG)
Most Community Councils are still incorporated as associations, but several have been persuaded by OLG to reconstitute themselves as Community Government Councils under Part VIII of the N.T. Local Government Act. Part VIII of the Act provides the machinery for Shire Council bodies to be established in small communities throughout the N.T. generally, and appears to have been modelled in many respects on Part III of AC & AA (although minus any special reference to Councils that are specifically Aboriginal).
However, the political reasoning behind behind Part VIII is probably influenced by the policy adopted by the Queensland Government to avoid pressure to enact land rights legislation (i.e. the Aurukun model). The N.T. Government has made no secret of its desire to have ALRA 'patriated" to the N.T and in the long term, to dismantle the existing framework of Land Councils, Land Trusts, and inalienable freehold title. It is likely that a system of Community Government Councils operating in population centres in what is now Aboriginal land under ALRA is seen as a viable alternative system.
There are two problems that have immediately become apparent in relation to the N.T. Government's policy of persuading Aboriginal Communities to constitute themselves as Community Government Councils under the N.T. Local Government Act.
The first is the continued independence and viability of outstations. The N.T. Minister for Local Government at the time was on record last year as saying that the N.T. Government's policy would from that point on be one of limiting the provision of essential services to those outstations with 50 or more permanent residents. This statement flew in the face of what the Return to Country Report indentified as the guiding principle behind outstations, i.e. that they should be support camps providing a base for traditional living throughout a surrounding area rather than obligatory residential centres. The N.T. Government's stated policy would have the effect of requiring reognized outstations to be in fact, embryonic mission - style centres.
The pattern that is emerging in the Community Government Schemes drafted for the Community Councils by OLG (with a view to persuading these Councils to reconstitute themselves under the N.T. Local Government Act) is one of local Government Authorities based in established community centres, making decisions with regard to essential services and administration generally for surrounding outstations.
The other immediately apparent problem is that Part VIII of the N.T. Local Government Act makes no reference to the scheme of Protection for the rights of traditional owners entrenched in ALRA. Given that decisions relating to essential services usually involve some use of land or structures on land, and given that any use of Aboriginal land or structures on Aboriginal land is governed by procedures set out in ALRA, traditional owners are understandably concerned that their rights are going to be undermined.
One solution to the above two problems would be for Aboriginal people to incorporate separate Local Government-type bodies for established population centres on the one hand and for outstations on the other (under AC & AA if possible), and for these bodies to negotiate leases or licences from the traditional owners of the particular areas of land in relation to which they would be carrying out their functions.
What will hopefully be argued in the Ranger case (or at least raised) is that Aboriginal sovereignty rights in much of Australia have never been formally extinguished. A formal arrangement in which Aboriginal communities acknowledge Federal sovereignty (over Australia generally and over those aspects of their everyday life that the Australian constitution allows the Federal Government to control) should still leave Aboriginal communities with sovereignty to determine local government matters in their own way.
Along the lines outlined in the USA by the Supreme Court in Indian sovereignty cases, a formal acceptance of the sovereignty cases, a formal acceptance of the sovereignty of another nation's government by an indigenous population (which previously enjoyed untramelled sovereignty), should entail obligations on the part of that nation's government - even when the loss of indigenous sovereignty occurred through outright conquest. These obligations should include the obligation to provide appropriate funding to compensate the indigenous population for loss of the total sovereignty it previously enjoyed over its land, and for dislocations and loss of land that occurred in the process. In the USA this obligation has translated into special funding to recognised Indian tribes for training, welfare and cultural protection, (similar to funding provided by ADC, DAA, and ABTA, etc).
The U.S. Federal Government has tended to recognise whatever political body has evolved on Indian Reservations as the sovereign body to which such funding should be distributed, regardless of whether that body is incorporated as a Tribal Government under the U.S. Indian Reorganisation Act (a 1930’s equivalent of AC & AA). However for those Reservations which were persuaded to incoporate under the Indian Reorganization Act since the 30's, it would probably not be possible to set up an alternative tribal body to receive funding instead.
It has been accepted and confirmed by the US Supreme Court that Indians living on tribal reservations (some of which cover an area which includes parts of two or more states) are both citizens of the State in the area where they live, and also citizens of a semi-sovereign Tribal nation. Accordingly they are entitled to the benefit of services provided by the State on the same basis as any other citizen of the State, and also entitled to the benefit of funding from Federal Agencies to the Tribal Government, (being members of a recognised tribe for which the Federal Government has a special duty of trust and care etc.).
The most important aspect of this interlocking system of governments and functions is that the relevant State Government Departments in the U.S.A. recognise Tribal Governments as the bodies with which they must deal when providing local government services. Where possible, the Tribal Government provides local government services itself, either directly or as a contractor for the relevant State or Federal Department. Where the Tribal Government does not have the resources or skilled staff to perform the function (eg. construction of water reservoirs or roads) the State Department will perform these functions in the same way as the relevant Northern Territory Departments have provided services to Aboriginal communities to date (i.e. liaising with the Community Councils as the relevant Local Government bodies).
By analogy with the situation in the USA, it is possible to argue that there are firm legal grounds for asserting that the right on the part of Aboriginal Communities to incorporate as Aboriginal Councils under AC & AA, entails the right to be recognised both as sovereign Aboriginal Governments for the purposes of Federal funding, and as the rele rant Local Government bodies for their par titular localities by the Northern Territory Government Departments involved in providing essential services assistance.
AC & AA is by no means perfect legislation in terms of its being free of paternalistic regulation by Federal Government officers. It has exactly the same sort of flaws as the equivalent US and Canadian legislation setting up machinery for incorporating indigenous governments. In particular, the .Registrar has enormous and untramelled discretion pursuant to S. 21 to run the first Council election, and pursuant to S. 22 to veto or approve the operating rules of the Council at the first Council meeting. Under S.25 the Registrar has a continuing involvement in council elections.
Under S.30 the Aboriginal Council may not make by-laws ‘inconsistent with any other law in force in the area of the Council’. This begs the question whether a Northern Territory government could incorporate an alternative Local Government body covering the same area after the Aboriginal Council has already been established. Under S.33 a by-law does not have to apply in relation to a person who is not an Aboriginal (presumably to avoid possible racial discrimination actions taken by non Aboriginal residents). This requires all regulation of non Aboriginal residents in Aboriginal communities to be pursued through indirect means (eg. permits). The Registrar must approve alterations to the functions of the Council (S. 33) and has an overseeing function regarding appointment of a public officer (S. 36), and lodging of annual financial statements (S. 38). S. 23(3) allows an Aboriginal Council to base its rules on Aboriginal custom/tradition, (though this is also possible to a limited extent pursuant to Regulations to part VIII of the N.T. Local Government Act.
In favour of AC & AA it should be pointed out that an Aboriginal community incorporated under that Act would have a much firmer basis for legal recognition as a Local Government body than an association incorporated under the N.T. Associations Incorporation Act. An association would have to wear the sort of encroachment foreshadowed in S. 30 as a matter of course. The only other alternative (accepted by Federal and State governments in the U.S., where some Tribal Governments are recognized as such without having any formally constituted status under conventional statute law) is non - incorporated status. This does not appear to be politically viable in the present conservative mood predominant in both Federal and State/Territory Parliaments.
Local Government funding is presently distributed through an arrangement between the Federal and State/Territory Governments. Essentially, the Federal Government provides the money in accordance with the Local Government (Financial Assistance) Act 1986 and the States/Territories distribute it pursuant to their own legislation drafted for that purpose.
The spirit of the arrangement as it relates to the N.T. is that Aboriginal communities should receive local government/essential services funding because they are communities that need to be serviced rather than because they are formally constituted Local Government bodies. If the N.T. Government were to withdraw funding from Aboriginal Communities that adopted a Local Government structure pursuant to AC & AA the Federal Government could of course constitutionally legislate for direct funding to go to the communities in question. Whether the Federal Government would have the political will to do so is of course another matter.
The recent Constitutional Commission Report on Local Government has recommended that a new section 119A be added in the Constitution in the following terms:
119A. Each State shall provide for the establishment and continuance of local government bodies elected in accordance with its laws and empowered to administer, and to make by-laws for their respective areas in accordance with the laws of the State.
As far as potential Aboriginal Councils incorporated under AC & AA in the States are concerned, such an amendment would essentially remove the legitimacy as Local Government bodies that they would have otherwise enjoyed. There are presumably remote areas populated by Aboriginal in at least some States that are not yet covered by an existing Local Government Authority. The opportunity that has been open to such communities from 1978 to date to establish a semi-sovereign Aboriginal government will have to be withdrawn.
As for the N.T. the above position would simply be delayed until the advent of Statehood - something that the N.T. Government is pushing for very hard.
As indicated earlier in the article, AC & AA was one of four pieces of legislation which, taken together, can be regarded as the high water mark of support for Aboriginal self-determination in Australian politics. Although there are serious flaws in it, AC & AA is the only available vehicle so far for establishing governmental (as opposed to corporation-type) bodies which can run at a 'grass roots' level. It is bewildering to discover that many of the vital and significant Aboriginal organizations that today have the word 'Council' in their formal title (e.g. Tangentgyre Council) are not in fact constituted under AC & AA but under the N.T. Association Incorporation Act. There is a clear need for action on two fronts:
(i) Aboriginal bodies involved , or contemplating being involved, in the local government-type activities listed in sub-section 11(3) of AC & AA, should seriously consider constituting themselves as Aboriginal Councils under AC & AA especially if they operate in a' vacant' Local Government area;
(ii) Strong pressure should be brought to bear on the Federal Government by all Aboriginal organizations with the capacity to do so, to ensure that the proposed referedum question on Local Government specifically includes Aboriginal Councils constituted under AC & AA in the category of bodies that are recognised as Local Government bodies in the Australian Federal Constitution.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1988/32.html