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Burke, Paul --- "Who Needs a Community Living Area? The 'Need' Requirement in N.T. Excisions Legislation" [1991] AboriginalLawB 49; (1991) 1(52) Aboriginal Law Bulletin 7


Who Needs a Community Living Area?

The 'Need' Requirement in N.T. Excisions Legislation

by Paul Burke[1]

Almost two years after the Memorandum of Agreement between the Commonwealth and the Northern Territory on the Granting of Community Living Areas in Northern Territory Pastoral Districts' (the 'Memorandum'), it seems that the only lasting legacy of that historic agreement will be the grant of the 35 areas scheduled under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the 'Land Rights Act')[2], which were part of the Commonwealth side of the bargain. It may prove true that this era will complete the dispossession of Aboriginal people of their traditional land - land now dominated by the pastoral industry - and it is therefore hard to comprehend the Commonwealth's apparent satisfaction with the above legislation enacted pursuant to the Memorandum.

Background

When the Land Rights Act was passed it was apparent that many Aboriginal traditional owners of land would be unable to claim their traditional land which had been alienated as pastoral leases. Since pastoral settlement of the NT many Aboriginal people have stayed on their traditional country, their interaction with the pastoralists ranging from being brutally exploited to more positive relationships.[3] Regional circumstances varied, but during the two decades leading up to the Land Rights Act many Aboriginal people left their traditional lands - now pastoral leases - for towns, government settlements and missions. The equal wages decision of 1965 and a subsequent decline in Aboriginal employment, together with the introduction of cash welfare payments, further removed Aboriginal people from land overtaken by pastoralists.

The reality was that while governments were busy putting much - needed resources into Aboriginal housing and health services in remote town camps, settlements and missions, many Aboriginal people remained unhappy with the prospect of continuing to live away from their traditional country and looked for ways to return to it without returning to• dependency and lack of services. The campaign for 'the people the Land Rights Act forgot' in some ways parallels the homelands movement on Aboriginal land, because its motivation is a desire to re-establish a physical presence on traditional country in order to maintain traditional culture and protect sacred sites, and also to improve living standards and environment.

Aboriginal demands can only be described as moderate. The area of the total number of existing excisions and outstanding excision applications is about 1% of the area of pastoral leases in the NT.

Excision applications have been continually frustrated by lack of a statutory process for granting even small areas of pastoral leases to traditional owners when the pastoralist has not consented. Commonwealth intervention in the form of the Memorandum, while eschewing a land rights approach to pastoral leases, did hold the possibility of satisfying some of their aspirations.

When NT politicians went into a huddle with Commonwealth bureaucrats in Canberra in September 1989, under intense pressure from all sides to come to an agreement about excisions, they did so with at least two complete draft bills - dusted off from years past -in their briefcases. The first was the NT Aboriginal Community Living Areas Bill 1983 introduced by the then Chief Minister Paul Everingham. The second was the NT Aboriginal Community Living Areas Bill 1984 which was linked to the passing of the Vesting of Land Bill, the latter designed to place all stock route and reserve land beyond the reach of land claims. The origin of many of the Bills' features were justice Toohey's recommendations in his review of the Land Rights Act but Toohey J did not contemplate any criteria other than consent and past or present residence.[4] It is a testament to the unfortunate success of the NT politicians with the Prime Minister and Commonwealth bureaucrats that the Memorandum and subsequent NT Miscellaneous Act Amendment (Aboriginal Community Living Areas) Act 1989 (the Excisions Law) not only retained essentially the same features, and in many sections the same wording, as the 1983 and 1984 Bills, but also added a new requirement: proof of present need.

The Origins of 'Need'

The idea of an investigation into land 'needs' features in the Woodward Reports[5] leading up to the Land Rights Act. The main thrust of the Report was the recognition of traditional rights to land but conservative political forces in the NT later realised that the malleable concept of 'need' could be of use in restricting land claims.

The period following pastoralist and Land Council opposition to the 1984 Bill saw the emergence of the 'need' criteria in the Ministerial Guidelines. In these Guidelines the basic criterion, apart from consent, was residence on the pastoral lease within the past 10 years. The Minister stressed that the scheme was not a new form of Aboriginal land claim and went on to list those persons who would not be eligible. The list included "groups who own or have an interest in land elsewhere or who lease or rent land or housing in a town".[6]

The central problem with the Excisions Law is the incorporation of the restrictive approach of the Ministerial Guidelines, an approach also adopted in the Memorandum but tightened even further in the wording of the legislation and in administrative practice. The Memorandum states the eligibility criteria to be:

"1. Any group with the consent of the pastoral lessee;
2. Any group with a demonstrated need which was ordinarily resident on the pastoral lease at any time since 1968;
3. Any other group with an historical residential association with a lease that can demonstrate that and has a present need for a community living area."

In the transition to legislation the wording "demonstrated need" in the second criterion was changed to "who can demonstrate a present need". Otherwise the drafting of the definition of applicant as it appears in the new s.94 of the Crown Lands Act 1981[7] is identical to the Memorandum.

Section 3 of the Excisions Law specifically ties the purpose of the Act to giving effect to the Memorandum (which is reproduced in full in a schedule). It is therefore likely that 'need' will be interpreted accordingly. The relevant words from the Memorandum are;

"In determining need the Minister and the tribunal referred to below will have regard to whether the applicants already have adequate housing circumstances or land upon which this may be provided.
The primary intention is to provide secure tenure for those Aboriginal groups presently or recently resident on pastoral leases. There is no intention to allow for a flood of claims which may be seen as providing for a land rights approach to alienated land."

The first hurdle then, is proving that the applicant's present housing circumstances are inadequate. In assessing adequacy will the Tribunal and the Minister take into account the culturally inappropriate location of such housing eg. that it is on someone else's traditional country and that this may be a source of friction and underlying tension in the community? Will land tenure be seen as relevant eg., will leasing a house from the NT Housing Commission disqualify an applicant? For applicants living in town camps, will the high crime rate be a relevant factor in proving inadequacy? Will there be a narrow concentration on the physical building currently occupied by the applicant based on some hypothetical national or international standard? One of the great paradoxes of this inquiry into present housing circumstances is that most excision applicants would willingly accept a reduction in their housing circumstances if only their excision was granted.

If applicants clear the first hurdle they must go on to prove that they do not have land on which adequate housing could be built. Applicants currently living in settlements on Aboriginal land, or who are named in an Aboriginal Land Commissioners Report, will no doubt face the heavy burden of establishing why such land is not appropriate. The extent to which the cultural inappropriateness of the location of the land will be taken into account is uncertain. For example: will the Tribunal and the Minister accept that there is a legitimate Aboriginal conception of overcrowding; or will applicants have to prove that there is no prospect of obtaining potable water on land which they currently have access to; or alternatively that it is flood-prone; or that it is too remote to efficiently provide services?

Another problem is extraordinary procedural restrictions. The new s.120F of the Crown Lands Act[8] specifies that in considering an application the Tribunal shall consider only written submissions or material before it, unless the Chairman orders a view of the land (s.102F(7)), or a compulsory conference (s.102G) or "in such exceptional circumstances as the Chairman may allow". This restriction was not foreshadowed in any previous draft of excision legislation and it is difficult to see how it could be linked to anything contained in the Memorandum. It means that applicants have to fight a paper war with pastoralists, a war waged with weapons of long written statements and written submissions.

The Minister's Interpretation

A public statement on ABC radio on 23 July, 1991, by the NT Minister for Lands and Housing provides a disheartening insight into the way he is likely to exercise his discretion under the Excisions Law. He sought to justify his referral to the Tribunal of an Aboriginal Community Living Area application which was consented to by the pastoralist[9]. That decision revealed a fundamental break with the Memorandum which stated that the consent of the pastoral lessee would be a separate criteria for the granting of an excision, not requiring proof of present need. For some excision applicants who have, through difficult negotiation or through quid pro quo deals, obtained consent of the pastoral lessee, the Minister's decision represents yet another obstacle being put in their path and will be a bitter disappointment.

It also reveals the Minister's potential approach to the 'need' question. He and his departmental officers will be scouring every membership list of every Aboriginal Housing Association, NT Housing Commission tenancy list and every list of traditional owners of Aboriginal Land for the name of excision applicants. If the applicants name appears, it means a referral to the Tribunal even in the case of consent or at the very least the shifting of the onus to the applicant to prove why other land could not be used to build suitable housing on.

Appeal Procedures

The importance of Ministerial discretion is underscored by. doubt about the effectiveness of the provision relating to appeal, against the Minister's decision, to the NT Supreme Court. Grounds of appeal are limited to error of law or that the decision "was so manifestly wrong that no reasonable person could have come to that decision."[10] But the real problem will be that the Minister has an absolute discretion whether to accept the recommendation of the Tribunal for a community living area. The only matter which the Act directs him to have regard to is whether the applicant has adequate housing circumstances or land upon which housing might be provided ie., the need requirement[11]

Even if the Tribunal finds the applicant is qualified and recommends a grant it must still comment on the need question. Thus, it is open for the Minister to take a different view of need based on the information supplied by the Tribunal and to decide against a grant.

It is extraordinary that the Minister should be able to reject a positive recommendation (based on consent or demonstrated need) from the Tribunal, with such a slight prospect of review by the Courts.

Excisions Legislation: Penultimate Act of Dispossession?

With the benefit of hindsight the restrictive criteria in the Excisions Law can be seen as another step by conservative political forces in the NT towards completely locking-out Aboriginal people from their traditional lands on pastoral leases.'[12]

The foundation for the effectiveness of the new criteria was the gradual watering-down of Aboriginal rights of access to pastoral leases under the Crown Lands Act.[13] Every pastoral lease granted in the NT contains a reservation - defined in s.24 of the Act - in favour of Aboriginal inhabitants of the NT. Prior to 1985 this simply granted a right to enter, and be on, the leased land which left open the possibility of Aboriginal people with a traditional right of access setting up a permanent dwelling on a pastoral lease. That possibility was specifically outlawed by a 1985[14] amendment to the Act which allowed a right to permanent residence only to those Aboriginal people who ordinarily reside on a pastoral lease, ie., only those who have maintained a continuous presence. Aboriginals who for whatever reason left the pastoral lease, whether for limited job prospects, poor housing and health services, the adverse attitude of pastoralists, or government encouragement to move to settlements, lost their rights to permanently reside on the lease. Their rights were reduced to basic hunting and gathering rights[15] and, since 1989, the right to visit sacred sites.[16]

By securing impossibly strict criteria for excision under the Memorandum and pursuant legislation the NT Government have all but dispossessed many Aboriginal people.

Figure 1
Excisions Application Progress (11 Septemebr 1991)

Excisions application (order of submission)
Application date
Date ending three month negotiation period
Date ending six month negotiation period
Extension of time for negotiation
Date due for Minister’s decision
Minister to recommend Yes/No referral to Tribunal
Deep Well
1.10.90
1.1.91
1.4.91
1.6.91
1.9.91
Referred to Tribunal on 16.7.91
The Garden
1.10.90
1.1.91
1.4.91
1.10.91


Ambalindum
10.12.90
10.3.91
10.6.91
10.10.91


Loves Creek
22.11.90
22.2.91
22.5.91
Nil
22.8.91 (requested more info 16.7.91)

Mt. Doreen
4.3.91
4.6.91
Non-applicable
Nil
4.9.91
Referred to Tribunal on 16.7.91
Derry Downs I
4.3.91
4.6.91
Non-applicable
Nil
4.9.91
Referred to Tribunal on 16.7.91
Tempe Downs
4.3.91
4.6.91
4.9.91
Nil
4.12.91

Glen Helen I
11.3.91
11.6.91
Non-applicable
Nil
11.9.91

Glen Helen II
11.3.91
11.6.91
Non-applicable
Nil
11.9.91

Napperby
14.5.91
14.8.91
Non-applicable
Nil
14.11.91

Limbunya
14.5.91
14.8.91




Tempe Downs II
20.8.91
14.8.91




Derry Downs II
4.6.91
4.9.91
Non-applicable
Non-applicable
4.12.91

Glen Helen III
4.6.91
4.9.91
Non-applicable
Non-applicable
4.12.91

Umbeara
4.6.91
4.9.91
Non-applicable
Non-applicable
4.12.91

Elkedra
18.7.91
18.10.91




Todd River
(4.9.91)
(4.12.91)




Nb. The CLC is currently researching another 12 applications, but there are 80 expressions of interest yet to be researched.

Future Directions

35 areas of stock routes or reserves will become Aboriginal land and .26 excisions negotiated prior to the Memorandum will receive "enhanced Territory title".[17] No new excisions have been granted under the Excisions Law, but applications are gradually working their way to the Tribunal. See Figure 1 for the current status of applications from the CLC region. The Land Council will have to constantly review the process.

Once the easy applications, if there are any, go through the process, the new stage of the struggle for excisions will begin. There are a number of possible directions. One is outright purchase followed by land claim under s.50 of the Land Rights Act . The fiscal limits of this strategy are obvious - prices for stocked pastoral leases range between $0.5 million and $4.5m - but there are also legal limits.

There is a 10 year time limit on land claim applications which expires in 1997.[18] Also, any transfer of a pastoral lease requires the consent of the NT Minister for Lands[19] who has thus far chosen not to use his power to prevent the transfer of pastoral leases to Aboriginals for claim, however the potential for political interference exists.

A second direction would be the investigation of common law court actions. This strategy will depend in part on the outcome of the Mabo Case. A finding by the High Court for the common law recognition of Aboriginal traditional rights to land will change the equation which now makes excision applications, however difficult, the most efficient use of resources. Serious consideration would then have to be given to whether there were any legal impediments to common law action in the Territory and whether the individual factual circumstances of the applicants were sufficiently analogous to the Murray Island situation.

The Land Councils were never a party to the Memorandum thus the third option is to convince one of the parties to the agreement to re-negotiate it. That could be a long battle and leads us to a fourth option: direct action - not beyond the realms of probability given the level of frustration of some applicants.

The Commonwealth's preparedness to intervene is currently being tested over the issue of the first amendment to the Excisions Law, passed in the NT Legislative Assembly in August 1991.[20]

Among other things, it retrospectively outlawed excision applications within 2 kms of a homestead, except for those Aboriginal people who already had rights to be there under s.24(4) of the Crown Lands Act. This amendment will affect 4 excision applications in the Northern Land Council (NLC) area and one in the Central Land Council (CLC) area. Particularly galling is that the large resident population on Brunette Downs, whose struggle was highlighted in the events leading up to the Memorandum, may be one of those affected. The NLC have been forced to reassess their application.

In the meantime the first 6 applications have been referred to the Tribunal: 2 from the NLC area and 4 from the CLC area. There is no time limit on the deliberations of the Tribunal but it is likely that the Tribunal's approach to 'need' will be known by the end of the year.

Thanks to David Avery for his comments and Central Land Council staff for background information.


[1] Currently employed as Senior Lawyer with the Central Land Council. The opinions expressed in this paper do not necessarily represent the views of the CLC.

[2] See s.16 Aboriginal Land Rights (Northern Territory) Amendment Act 1990.

[3] See Hardy, F, The Unlucky Australians, Adelaide, Rigby, 1976; Berndt, RM and C.M, End of An Era, Australian Institute of Aboriginal Studies; and for the more positive side see McGrath, A, Born in the Cattle, Allen & Unwin, 1987.

[4] See Toohey, Seven Years On, AGPS, Canberra, 1984, Ch.2.

[5] See Aboriginal Land Rights Commission Second Report, ALPS, Canberra, 1975.

[6] NT Legislative Assembly Statement on Aboriginal Residential Areas on Pastoral Properties: (18 April 1985).

[7] Added by Miscellaneous Acts Amendment (Aboriginal Community Living Arm) Act 1989.

[8] Inserted by s.4 Miscellaneous Acts Amendment (Aboriginal Community Living Arms) Act 1989.

[9] Transcript of "Territory Today", ABC Radio, 23rd July, 1991.

[10] S.102N Crown Lands Act 1981.

[11] S.102K Ibid.

[12] For the pre-Memorandum of Agreement history see Reyburn, R.B, "The Forgotten straggle", Cultural Survival Quarterly, 1988, Vol.12, No.3, p.7; and Rayburn, B, "White Cattleman/Aboriginal Country', Aboriginal Law Bulletin, Vol.2 No.39, p.6.

[13] For the early origins of this see Reynolds, H, The Law of the Land, Penguin, Melbourne, 1987, esp. pp.141-7.

[14] NT Crown Lands Amendment Act No.73 of 1985, s.3.

[15] . See Andrews, N, "Rights of Aboriginals on Pastoral Leases", unpublished, available from Central Land Council.

[16] .46 Northern Territory Sacred Sites Act 1989.

[17] s17. "Enhanced Territory title" refers to the improvements on standard freehold tide in the title issued under the Excisions Law and includes limits on compulsory acquisition by government, some protection against alienation, and restrictions on mineral exploration and mining.

[18] . S.50(2A) Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).

[19] S26 Crown Lands Act 1981.

[20] NT Crown Lands Amendment Act 1991.


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