Sexton, Sean --- "Homeland and Movement: High and Low Roads" [1996] AboriginalLawB 52; (1996) 3(83) Aboriginal Law Bulletin 4

Homeland Movement: High and Low Roads

by Sean Sexton

This paper will examine the legal basis of Aboriginal land holdings in the Northern Territory and Western Australia, and how this influences the return to traditional lands, known as the outstation or homeland movement. It will also discuss the impact of the Native Title Act 1993 (Cth) (`the NTA') on this movement. The central question of this article is whether outstation communities are given the kind of tenure that enables the promise of the movement to be fulfiled.

Origins

In 1788, the continent of Australia was invaded by an English colonising force, led by Captain Arthur Phillip. Australia had been `discovered'. What followed was a pattern of behaviour encountered by Indigenous peoples all across the world. Aboriginal people were dispossessed of their land, and in some instances actively pursued and exterminated.[1] What was once part of the fabric of Aboriginal society, that is the land, became the property of the British Crown and was divided amongst the settlers and used to establish the pastoral industry.[2] The push across the country by the pastoralist, and the impact of missionaries meant that many Aboriginal people no longer lived in the country of their ancestors. This movement was reinforced by the disastrous assimilation program, which sought to integrate Aboriginal people into a European Australian society.[3] The legacy of dispossession, forced labour, and assimilation is all too apparent.

From at least the 1960s Aboriginal people have begun to emerge from the shadows of Australian society. The Constitutional referendum of 1967, and the granting of equal pay, were part of a rekindling of Aboriginal activism and consciousness, which saw many people wishing to return to the country of their ancestors.[4] The land rights movement was part of this political activity. A byproduct of land rights is the outstation, or homeland movement, which is about returning to traditional lands, and attempting to reassert control over both lifestyle and land use.[5]

Definition

There are several definitions of outstations in the literature. I have chosen the following:

`[outstations are ]... small, relatively permanent, decentralised communities consisting of closely related individuals which have been established by Aboriginal people with a strong traditional orientation'.[6]

There are two main contexts in which outstations appear, and the above definition covers the following situations:

1. Small communities on land designated, granted, or successfully claimed as Aboriginal Land. In the Northern Territory this is land granted or claimed under the Aboriginal Land Rights (NT) Act 1976 (Cth) (`the LRA'), and in Western Australia this is land granted under the Land Act 1933 (WA) or the Aboriginal Affairs Planning Authority Act 1972 (WA) ( `the AAPA Act').

2. Groups seeking excisions from pastoral properties. In the Northern Territory, excisions are granted under provisions in the Pastoral Land Act 1992 (NT), and in WA, under the Land Act 1933 (WA).

This paper will focus on the first category, largely in the interests of brevity.

Essential components of outstations

The primary focus of this paper is on the law that relates to Aboriginal people regaining title to, and control of, land. There are three main reasons for examining the nature of Aboriginal land holding. First, because land, and access to it, are absolutely fundamental to the establishment of outstations. Without land, there can be no return to country. Second, returning to country means that the links between people and land can be re-established. Third, the kind of tenure that a group has directly influences the level of funding that it can attract from Government agencies. The Commonwealth Government's peak Indigenous organisation, the Aboriginal and Torres Strait Islander Commission (ATSIC), like its predecessor, the Department of Aboriginal Affairs, tends not to fund fixed assets unless a group can demonstrate secure title to land.[7]

Apart from land, there are several other elements to an outstation. Communities need to have access to a reliable water supply, adequate and appropriate housing, communications in case of emergency, and access by either road or sea. Some outstations also have air strips. They may also need electricity, usually supplied by diesel generator, although some use solar power systems. Populations in outstations can vary from as low as 10, to as many as 100 or more, with an average population across Australia of 25 people.[8]

What the movement means to Aboriginal people

The outstation or homelands movement is primarily aimed at caring for sacred country, and at obtaining a satisfactory lifestyle that is controlled by Aboriginal people: `We truly thought to look after our father's sacred places, north, south, east and west ... and we will stay here and fight for it and never let it go again'.[9] There is also a belief that outstations provide opportunities to pass on language and traditions: `We want to give our young people their country, teach them hunting and fishing, our law',[10] or the comment:

`There is no bush tucker in town, but at Marralam [an outstation] we can get yam and lily roots, kangaroo and fish and turtle [which are] things we really like to eat. [Out here] we teach our children to hunt and gather bush tucker'.[1]¹

Outstations may also offer opportunities for economic development, with some communities involved in the production of artefacts or tourism ventures, and others with cattle enterprises. Outstation economies are a mixture of subsistence through hunting and gathering, and cash through social security benefits; few opportunities exist for formal employment.[12]

In essence, the movement has the following key components: actual return to country; control of the land; responsibility for land management (care for country). An outstation should allow people to return to their country, control activities that are undertaken on their land, and be allowed the opportunity to determine issues such as education and lifestyle.

Gaining title to land

The Northern Territory: Aboriginal Land Rights (NT) Act 1976 (Cth)

To gain title to land under the LRA, an Aboriginal community must successfully make a claim to a specified area of land. The LRA defines the types of land that can be claimed, and provides that Aboriginal people may claim `unalienated 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'.[13] The definition of unalienated Crown land means that land under pastoral lease is not available for claim under the LRA, unless the lease is owned by or on behalf of Aboriginal people.[14] Communities wishing to return to country which is part of a pastoral lease are severely hampered by the selective nature of land claimable under the LRA. One method of avoiding the bar to claiming pastoral leases is for an Aboriginal community to purchase the lease with funds from the Aboriginal Benefit Trust Account (s62), which collects and distributes the royalty equivalents from mining on Aboriginal land (s64), or with funds provided by ATSIC.

Claims to land under the LRA are based on proof of traditional Aboriginal ownership (s3(1)). Claims are made by application to an Aboriginal Land Commissioner (s50) and are usually initiated and conducted by an Aboriginal Land Council with responsibility for the particular area (ss21-23).

The Land Commissioner conducts hearings in order to ascertain whether the people making the claim are the traditional Aboriginal owners (s50(1)(i)), and makes a report to the Commonwealth Minister for Aboriginal and Torres Strait Islander Affairs on the strength of these claims (s50(1)(ii)). Included in the Commissioner's report are comments on the extent of any detriment that would be caused by granting the land to other members of the community, such as mining interests and neighbouring pastoral properties, and recommendations as to whether the claim should be granted in part or in full (ss11, 12). The final decision on the grant of land rests with the Minister (s11).

The title obtained by Aboriginal people under the LRA is an estate in fee simple (s10(1)). Title is vested in a land trust (s4) controlled by the Aboriginal people of the region (s7). Land claimed or granted under the LRA affords significant control over access. The LRA states that unless a person is acting in accordance with the Act, or a law of the Northern Territory, it is an offence to enter or remain on Aboriginal land (s70(1)). Permits are required for entry,[15] and these are issued by the relevant Land Councils after consultation with the traditional owners.[16]

Western Australia

A scheme by which Aboriginal people may claim land and obtain the title in fee simple, does not exist in Western Australia. The system provides for grants of land that are at the discretion of the Government, and can be made under the Land Act, or the AAPA Act. Western Australia also maintains a distinction between the grant of `broad acre' reserves and community living areas. These living areas often have more in common with pastoral excisions in terms of their size.[17] In addition, land set aside for Aboriginal people by the Land Act does not fall under Part III of the AAPA Act, which has important implications for the role of Ministerial discretion and control, and the authority to issue permits to enter Aboriginal land. Permit provisions apparently do not apply to reserves issued in this manner.[18] The second method of granting land is by the creation of an Aboriginal reserve under the AAPA Act, and is covered by provisions controlling access to Aboriginal land; however, access is not directly controlled by Aboriginal people.[19]

Under either method of reservation, there is no provision for the grant of inalienable freehold title to Aboriginal people in Western Australia. Amongst the best arrangements that either scheme can provide is a 99 year lease to the community from the Aboriginal Lands Trust.[20] Another outcome, which is directly linked to the Department of Mines, is the Special Purpose lease for periods of 25 to 50 years, which guarantee free entry to the holders of a mining tenement.[21] The Department of Mines opposes the granting of land to Aboriginal people, either as excisions from pastoral leases, as reserves or as community living areas. Indeed, at the instigation of the Department, the Western Australian Government declared a moratorium of two years on the granting of 99 year leases to Aboriginal communities.[22]

How the schemes affect the outstation movement

Returning to country and control of the land

The claim or grant of Aboriginal land in both jurisdictions enables a return to traditional country, and offers the kind of title that allows funding agencies to provide facilities. However, in several respects, the jurisdictions are very different in terms of the amount of land that has been returned, how much control of land is conferred on Aboriginal people, and the actual procedure by which land is granted.

More land has been returned to Aboriginal people in the Northern Territory than anywhere else, including Western Australia.[23] The ability of the LRA to return large tracts of land is the backbone of the movement.[24] However, the operation of the LRA demonstrates that there are winners and losers. The winners are people whose land was free of interests, such as the pastoral leases. The losers are those whose land is ineligible for claim, or have only part of their country returned. This is because boundaries created by Europeans that designate towns, pastoral leases, and reserves, often bear no resemblance to the boundaries traditionally recognised by Aboriginal people.[25]

In Western Australia, many Aboriginal people have had their intentions to return to their country frustrated by the two legislative schemes, which means that they are vulnerable to the `no title-no funding' cycle. At the time of the Blanchard Report, there were numerous Aboriginal groups occupying vacant Crown land.[26] Since then, some have had this land granted either as a reserve or a community living area, following an arrangement between the Commonwealth and the Western Australian State Government in 1986.[27] This involved the Commonwealth funding the provision of services and infrastructure to the tune of $100 million over 5 years, on the condition that the Western Australian Government make some effort to address the tenuous nature of Aboriginal land holding.[28] The homelands movement has been a major beneficiary of this arrangement, and outstations account for most of the growth in community numbers, with a 42 percent increase from 1985.[29] This clearly demonstrates the link between the movement back to traditional country and access to land tenure, and the key role that Governments play in homelands.

The aspirations of Aboriginal people are also affected by the degree of control that the grant allows. Land granted under the LRA offers significant control over access by non- Aboriginal people. It confers considerable control over mining and exploration activities. Permission for exploration on Aboriginal land is contingent on the consent of Aboriginal people.[30] In Western Australia, land under the AAPA Act also offers control over access, but this control ultimately rests with the Minister and not with Aboriginal people. Prior to the Native Title Act, mining on `Aboriginal land' in Western Australia basically rested with the discretion of the Minister for Mines,[31] and was not regulated by any statutes that compelled mining companies to consult with, or abide by, the wishes of Aboriginal people.[32] Despite shortcomings, and any amendments notwithstanding, the NTA may offer some increase in the level of Indigenous control of mining on traditional lands in Western Australia. This has positive implications for homelands.

An illustration of the unsatisfactory nature of `Aboriginal land' in Western Australia is given in a report by an Aboriginal Land Commissioner in the Northern Territory. It states that the grant of land he was recommending would provide the community at Ringers Soak (in Western Australia) with a more secure form of title than they currently have. The Commissioner said that, for this community, their interest in establishing an outstation would be better served by moving to the Northern Territory.[33] This example supports the contention that for Aboriginal people, land granted under the LRA is superior to all other forms of land holding. Moratoriums of the kind imposed by the WA government means that groups remain vulnerable to the `no title-no funding' cycle.

There is a further crucial difference between the LRA and the schemes in Western Australia. The LRA is a statutory scheme which enables land to be claimed according to the procedures it sets down. It is an inclusive process. In Western Australia, Aboriginal land is much more a product of government discretion. The wholesale return of Crown land has not occurred under the grant schemes. Such an approach is more in the nature of an eye dropper, sparingly used. Should the opportunity to access these lands arise (under native title, or a genuine land rights scheme in WA), the potential for outstations would be significant, as currently some 40 percent of WA is classified as unalienated Crown land.[34]

Caring for country

In terms of caring for country, outstation communities on large areas of land are not as fettered by the lack of land holding as they are on community living areas granted as `Aboriginal land' in WA. Generally, people living in outstations have the traditional knowledge that will enable them to live sustainably, and cause a minimum of environmental impact. On Aboriginal land, traditional burning practices, ceremonies, and site protection can occur, under the control of Aboriginal people.[35] When compared to the large `broadacre' reserves, community living areas in WA do not seem to contemplate care of the physical and spiritual elements of the land. They are not grants of large areas, and seem to be designed to allow people to gain access to title in order to satisfy the requirements of funding agencies, without conferring much actual land or control on Aboriginal people. In addition, the size of land holding is considered central to the standard of living which homeland communities can maintain.[37]

Potential for economic development

Development opportunities are closely related to land tenure, and the amount of land that a group can access. In addition, the subsistence activity that underpin outstation economies relies on having an extensive land base.[38]

It is hard to generalise about the merits of each jurisdiction and the economic opportunities they present, as there are many other variables such as remoteness, climate, and access to markets. However, the LRA may be considered as presenting more satisfactory opportunities, because it delivers more land, and does not restrict Aboriginal people to community living areas. Additionally, it offers considerable scope for constructive partnerships with mining companies, as opposed in Western Australia, where Aboriginal people remain largely unable to control mining development.

The effect of native title on outstations

The recognition of native title under the NTA may enable Aboriginal people to circumvent many of the laws that have prevented them from returning to their traditional country. It is, however, too soon to judge whether land recognised under the NTA will satisfy the requirements of Aboriginal people. One can speculate that if Aboriginal people succeed in gaining control of large tracts of country, enabling them to establish outstations and engage in traditional activities, then the NTA will be regarded as fulfiling much of the hope that accompanied the Mabo [No. 2] decision and the passing of the NTA itself. Just what native title will mean for the homelands movement may depend on how it is characterised by the courts or the National Native Title Tribunal. At this stage it seems that the journey home, via native title, will be difficult. The acceptance procedures have been before the Federal and High Courts.[39] The fate of people dispossessed by the pastoral sector will be influenced by the outcome of the Wik case currently before the High Court.[40]

Land management is clearly contemplated in native title, as it preserves the right to carry out traditional practices. Caring for country will also be influenced by the size of any land that can be successfully claimed. Outstations on native title land theoretically appear to be well positioned to care for country. Economic development will depend on the size of a particular area, and on how native title is characterised for each claimant group, but it may be the case that large areas in WA can be successfully claimed. The NTA offers most hope to those dispossessed by pastoralism, and to those without an inclusive claim process. But whilst native title is an important legal breakthrough, the NTA appears fraught with numerous problems. From the perspective of Indigenous people, mediation with Government and other parties, determination of native title claims, and the control of mining on traditional lands, all have significant shortcomings. The catch cry of `workability' driving critics of the NTA and proposed reforms is bound to impact on the ability of Aboriginal people to return to and care for country. The NTA does not appear to offer the levels of control contemplated by the LRA, a point illustrated by the contrast in procedures for dealing with exploration and mining.[41]

Conclusion

For the outstation movement, the LRA is more satisfactory than the Western Australian legislation in a procedural sense, because the requirements that need to be met are set out in the statutes, and are not so much the product of Ministerial discretion or the insistence of the resource sector, as is the case in Western Australia. Native title promises much for those not yet able to return to their country. However, before issues such as extinguishment over pastoral leases have been decided, it is not possible to say whether it can fulfil the aspirations of Aboriginal people. Doubts are emerging, especially in regard to exploration and mining, of the NTA's ability to give meaningful control and self determination to communities. In theory at least, the NTA should provide Aboriginal people access to land to which they have long been denied access and control, which will enable the outstation movement

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[1] J Downing, Country of my Spirit, North Australia Research Unit, Australian National University, Darwin, 1988, p2.

[2] E A Young, H Ross, J Johnson, J Kesteven, Caring for Country: Aborigines and Land Management, Australian National Parks and Wildlife Service, 1991, pp108-110.

[3] J Roberts, Massacres to Mining: The colonisation of Aboriginal Australia, Dove Communications, 1978, pp38-45, 80-88.

[4] C Fletcher, Aboriginal Politics: Inter governmental Relations, Melbourne University Press, 1992, pp1-2.

[5] C Blanchard (Chair), Return to Country: The Aboriginal Homelands Movement in Australia, Report of the House of Representatives Standing Committee on Aboriginal Affairs, Australian Government Publishing Service, Canberra, 1987 (`the Blanchard Report'), p1.

[6] Blanchard, ibid, p7.

[7] Blanchard, op cit pp1, 163, 310.

[8] J C Altman, L Taylor, The economic viability of Aboriginal outstations and homelands, Department of Political and Social Change, Research School of Pacific Studies, Australian National University, 1987, p4.

[9] Downing, op cit p95.

[10] B Parry in Land Rights News, Northern and Central Land Councils, June 1987, p7.

[11] Biddy Simon in Land Rights News, Northern and Central Land Councils, June 1987, p7.

[12] Blanchard, op cit, pp130-9.

[13] Aboriginal Land Rights (NT) Act 1976 (Cth), s50(1).

[14] Aboriginal Land Rights (NT) Act 1976 (Cth), s50(1)(a); R v Toohey [1980] HCA 2; (1980) 145 CLR 374 at 384 per Stephen, Mason, Murphy, and Aickin JJ.

[15] Aboriginal Land Act 1978 (NT), s4(1).

[16] Aboriginal Land Act 1978 (NT), s5.

[17] Western Australia Aboriginal Affairs Planning Authority, Annual Report 1992, p20.

[18] B Boer, The legal framework affecting Aboriginal people in the East Kimberley, East Kimberley Impact Project, Centre for Resource and Environmental Studies, Australian National University, Canberra, 1989, p38.

[19] Aboriginal Affairs Planning Authority Act 1972 (WA), s31.

[20] C Pierluigi, `Aboriginal land rights history: Western Australia', Vol 2, 52 Aboriginal Law Bulletin 25.

[21] Land Act 1933 (WA), s116.

[22] G Crough, C Christopherson, Aboriginal people in the economy of the Kimberley region, North Australia Research Unit, Australian National University, Darwin, 1993, p159.

[23] Young (1992), op cit, p152.

[24] Altman, op cit p8; Young, op cit p152.

[25] R Baker, `Land Rights in the Borroloola area of Australia's Northern Territory', Applied Geography, Vol 12, No. 2, 1992, p172.

[26] Blanchard, op cit, p167.

[27] Western Australia Aboriginal Affairs Planning Authority, Annual Report 1992, p20.

[28] Western Australia Aboriginal Affairs Planning Authority, Annual Report 1990-91, p6.

[29] Crough, op cit, p78.

[30] Aboriginal Land Rights (NT) Act 1976 (Cth), s46(6).

[31] Mining Act 1978 (WA), s27(7)(a).

[32] R Bartlett, `Inequality before the law in WA', Vol 3, 65 Aboriginal Law Bulletin 8.

[33] Western Desert Land Claim, Report No. 38, Findings, Reccomendation and Report of the Aboriginal Land Commissioner, Mr Justice Olney, to the Minister for Aboriginal Affairs and the Administrator of the Northern Territory, Australian Government Publishing Service, Canberra, 1991, p35.

[34] Op cit, p13.

[35] Ross, op cit, p29.

[36] Western Australia Aboriginal Affairs Planning Authority, Annual Report 1988-89, p38.

[37] Blanchard, op cit, p169.

[38] H Ross, E A Young, J Liddle, `Mabo: An inspiration for Australian Land Management', Australian Journal of Environmental Management, Vol 1, July 1994, p29.

[39] Northern Territory v Lane, O'Loughlin J, DG6001/94, 24 August 1995, unreported; North Ganalanja Aboriginal Corporation v Queensland (1996) 135 ALR 225.

[40] See J Fitzgerald, `Effect of pastoral leases in Queensland: Wik Peoples v State of Queensland &Ors', Vol 3, 78 Aboriginal Law Bulletin 28.

[41] S Sexton, `Law, Empowerment and Economic Rationalism', Vol 3, 81 Aboriginal Law Bulletin 12.