Indigenous Law Bulletin
In its Submission to the Review of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)(‘ALRA’) (January 1998), the Northern Territory government indicated that it is seeking to replace the rights and interests of the Aboriginal people under the ALRA with the rights and interests held by native title holders under the Native Title Act 1993 (Cth) (‘NTA’).
Aboriginal people in the Northern Territory see their rights to land through their own laws and customs. However, the history of colonisation in Australia has made them acutely aware of the need for the greatest possible level of recognition and protection of their rights within the non–indigenous legal system. Whilst both the ALRA and the NTA recognise indigenous law and culture, the NTA fails to deliver the protection of rights and interests provided under the ALRA. This was acknowledged at the time that the NTA was passed, and the NTA was specifically excluded from trespassing on the protective processes afforded to holders of Aboriginal land under the ALRA.
Hence any move to replace the protective regime of the ALRA with that of the NTA is opposed by Aboriginal people, as it will significantly reduce their rights and ability to protect their lands.
This article looks at the joint operation of the ALRA and the NTA in the Northern Territory and questions the basis of the Northern Territory government’s proposal.
The ALRA arose out the failure of the Yolngu people to have their rights legally recognised at common law in 1971 in the first native title case in Australia: Milirrpum v Nabalco. The consequent Woodward Commission recommendations led to the proclamation of the ALRA on 27 January 1977.
The ALRA established a statutory process for the recognition and protection of Aboriginal interests in land in the Northern Territory based on the customary and group nature of Aboriginal land ownership. By providing processes for obtaining access, resource development and other commercial activity on Aboriginal land, a workable balance has been established between the interests of Aboriginal people and other interested parties.
Integral to the process for the recognition and protection of Aboriginal interests in land was the creation of a unique statutory form of inalienable freehold defined under the ALRA as ‘Aboriginal land’ (s3 ALRA). Aboriginal land is held on trust by Aboriginal Land Trusts and gives exclusive possession to the traditional owners and other rights to Aboriginal persons recognised under the ALRA. The statutory rights attaching to Aboriginal land reflect customary land ownership and ensure that cultural and community concerns are paramount in decision making processes relating to land use such as exploration and mining.
The land currently held as Aboriginal land amounts to approximately 41% of the Northern Territory. This was achieved in two ways:
Approximately 59% of the Northern Territory is land other than Aboriginal land. That land, as a percentage of the Northern Territory, is as follows:
Vacant Crown Land (4.72%)
Pastoral Leases (perpetual and term) (48.38%)
Perpetual Crown Leases (2.95%)
Approximately 10.5% of the Northern Territory is subject to unresolved claims lodged under s50(1) of the ALRA—the majority being vacant Crown land (approx. 4%) and pastoral leases (3%).
In Mabo v Queensland [No.2], the High Court overruled Millirrpum and recognised the existence of native title at common law in Australia. The Court found that native title was a right that had survived the coming of non–indigenous peoples and must be determined in accordance with the acknowledged traditional laws and observed customs of the native title holders.
At common law, native title may be lost through abandonment. It may also be extinguished or, arguably, suppressed by legislative or administrative acts (or permitted activity) which are inconsistent with native title. There must be a clear and plain intention to extinguish or suppress all, or part of, native title.
Where native title co–exists with other valid rights and interests, the non–native title rights prevail over native title rights to the extent of any inconsistency.
The NTA arose out of the necessity to deal with native title fairly in the light of Mabo and, like the ALRA, to provide for ongoing resource development and the provision of public services in land where native title exists. The NTA operates only where native title exists at common law and establishes statutory processes for the protection of native title, whilst permitting resource development and the use and regulation of native title.
Important issues which arose in the Northern Territory in the formulation of the NTA were the questions of the validity of past grants of statutory title under the ALRA (by virtue of the Racial Discrimination Act 1975 (Cth)), and whether the future operation of the ALRA should be subject to the NTA. The resolution of these questions resulted in the NTA ensuring the validity of past grants of statutory title under the ALRA and precluding the operation of the future act provisions of the NTA from such land, as discussed below.
The NTA guarantees the validity of the ALRA and all grants made under that Act before 1 January 1994. If any invalidity exists, the ALRA is validated as a category D past act and all native title involved is subject to the non–extinguishment principle. Likewise, all grants made under the ALRA before 1 January 1994 are validated as category D past acts and all native title involved is subject to the non–extinguishment principle.
Section 210(c) of the NTA provides that the NTA’s operation does not affect the rights and interests of Aboriginal people under the ALRA.
The operation of the NTA is excluded from any future acts (acts occurring on or after 1 January 1994) which are either the grant of Aboriginal land [s233(3)(a) & s253 NTA]; or acts affecting Aboriginal land [s233(3)(b) & s253 NTA].
There are four main reasons for the NTA excluding its own operation in certain areas:
History is now repeating itself, with the Northern Territory government adopting the same stance with the NTA. It would be counter–productive to Aboriginal people, resource developers and the Government alike, to squander the benefits, efficiencies and precedents arising from the ALRA over the past 20 years by replacing ALRA processes with those of the NTA.
The ALRA and the NTA have largely operated independently since 1 January 1994, with the potential for overlap occurring through the following:
However, these overlaps are of minimal practical effect for the reasons set out below.
The current state of the law, as expressed by the Full Federal Court in Pareroultja, is that native title is not affected by the grant of Aboriginal freehold. As a result, the grant of Aboriginal freehold is not a past act as defined by s228 of the NTA and hence the past act provisions of the Act do not apply. If the Federal Court decision is not followed by the High Court, there would appear to be no practical effect, as native title would be protected by the non–extinguishment principle and people with traditional rights to use or occupy the land already hold the land as Aboriginal land, with all its attendant rights and interests, leaving no basis for compensation.
There is no legal bar to lodging native title determination applications over Aboriginal land. However, there is no practical incentive to embark upon such a course. Native title determination applications over Aboriginal land, or any possible outcomes, will not affect the rights or interests of any person under the ALRA [s210(c) NTA]. Nor are the future act processes of the NTA available to any successful applicant where Aboriginal land is concerned [ss233(3)(b) & 253 NTA].
The future act processes of the NTA are not excluded from acts affecting land subject to an ALRA claim as the definition of ‘Aboriginal/Torres Strait Islander land or waters’ in s253 of the NTA is limited to land held under the ALRA. Therefore, where native title exists, or is likely to exist, the future act provisions of the NTA must be complied with irrespective of whether the land is also subject to an ALRA claim. Should dealings occur with such land, it will be necessary to concurrently resolve the ALRA claim due to the operation of s67A of the ALRA which prohibits the grant of interests in the claimed land until the ALRA claim is determined or withdrawn.
Irrespective of the NTA, an ALRA claim will protect native title due to the operation of s67A of the ALRA.
There is no practical incentive for Aboriginal owners to lodge a native title determination application over land which is claimed under s50(1) of the ALRA other than to ensure compliance with the future act provisions of the NTA.
ALRA land claims were lodged over land held by the Conservation Land Corporation (reserves and national parks) and Northern Territory Development Corporation (reserves and other land) prior to the activation of the land claim sunset clause, on 5 June 1997. As these and other outstanding ALRA claims are determined, the NTA will be the only vehicle available for the recognition and protection of native title on land, other than Aboriginal land, in the Northern Territory.
Large projects such as the proposed Alice Springs to Darwin railway involve the complementary operation of the ALRA and NTA because they affect various forms of tenure, including Aboriginal land, land subject to ALRA claim, vacant Crown land and pastoral leases. This does not pose a problem where ‘umbrella’ Aboriginal organisations, responsible for large areas of land and which have responsibility to represent and assist Aboriginal people under both the NTA and ALRA exist. In the Northern Territory, such organisations exist—the Central and Northern Land Councils.
Where large projects, such as the proposed railway are concerned, ALRA and NTA matters can be resolved through a comprehensive agreement. This can be achieved under the current Acts, but the flexibility of the process would be enhanced by the Indigenous land Use Agreements (ILUA) process contained in the Native Title Amendment Bill 1998 (NTAB).
The ILUA process in the NTAB provides processes to deal with acts affecting native title through alternative (regional) agreements and area agreements which do not require the lodgement of determination applications; are based upon the consent of the native title group in the same manner as is required for dealing with Aboriginal land under the ALRA; and offer greater certainty than the current s21 of the NTA. The proposed amendments will reduce process differences that exist between the agreement processes in the NTA and the ALRA and increase the joint operational efficiencies of the ALRA and the NTA.
Opposition to the NTA
The Northern Territory government clearly intends to test the existence of native title and the operation of the NTA in the Territory to the fullest extent. The Government’s conduct in all native title applications to date has been to deny the existence of native title, forcing all applications into the Federal Court for determination. Such a process is expensive and time consuming, and a level of uncertainty will exist over the operation of the NTA in the Territory until legal precedents have been established.
Many of the proposed Commonwealth amendments contained in the NTAB are intended to shift the current balance of interests in the NTA away from native title holders, particularly regarding statutory extinguishment of native title, the right to negotiate process, the freehold test, the rights of native title holders on reserves and leases, the test for the registration of native title applications, the operation of a sunset clause on applications under the NTA, the regulation and management of water and airspace, and the diversification of activity on pastoral leases. Such a course may attract the protection of s51(31) of the Constitution, necessitating the payment of just terms compensation, which would lead to Constitutional challenges, disputes about compensation, and legal uncertainty.
Given the Northern Territory government’s ongoing opposition to the NTA, and the unresolved attempts by the Commonwealth to amend the NTA, it is unlikely that resource developers will appreciate the uncertainty that the replacement of ALRA rights with NTA rights would create.
The NTA was intended to operate concurrently with the ALRA in the Northern Territory in a manner that recognised the rights of native title holders who were not able to obtain the benefits of the ALRA, without eroding the ability of traditional owners to protect their lands under the ALRA. The resulting legislative mix is both clear and workable, providing no basis for fundamental change in either the NTA or the ALRA. However, there is no doubt that the concurrent operation of both Acts can be improved by giving legal effect to ILUAs, based on the informed consent of native title holders, under the NTA.
Any call to replace the strong and certain procedural rights of traditional owners under the ALRA with lesser rights under the NTA is rightly viewed with concern by indigenous people in the Northern Territory. These concerns are only exacerbated by the uncertainty that looms over the ability of the NTA processes to protect native title after it has sustained more than two years of attack from the Commonwealth government at the national level, and the Northern Territory government’s refusal to accept the NTA’s operation in all but a few cases in the four and one half years since it came into operation.
Chris Athanasiou is a lawyer in the Northern Territory.
 Millirrpum v Nabalco Pty Ltd (1971) 17 FLR 141.
 Section 70 ALRA.
 Part IV & s19(4A), (7) & (11) ALRA.
 Section 19(4A), (7) & (11) ALRA.
 Sections 4 & 5 ALRA.
 People with traditional rights to use or occupy the land s71 ALRA.
 Sections 4(1) & 10 ALRA. Aboriginal land which was formerly a reserve comprises 46% of all land held as Aboriginal land in the Central Land Council region.
 Section 11 ALRA.
 Central Land Council Geographic Information system, compiled from data provided by the Northern Territory Department of Lands, Planning and Environment.
 Mabo v Queensland [No.2]  HCA 23; (1992) 175 CLR 1.
 Mabo v Queensland [No.2].
 In Wik Peoples v Queensland (1996) 141 ALR 129 the question of the revival of native title was left to be resolved at another time: see Toohey J at 188 and Gummow J at 248.
 Wik Peoples v Queensland at 1.
 NTA, Division 3 of Part 2.
 Section 228(2)(a)(i) & 232 NTA.
 Section 228(2)(a)(i) & 232 NTA.
 Section 15(1)(d) NTA.
 Section 14(1)&(2) NTA.
 Sections 228(2)(a)(ii) & 232 NTA.
 Section 15(1)(d) NTA.
 Definition of ‘Aboriginal/Torres Strait Islander land or waters’.
  HCA 59; (1993) 117 ALR 1.
 Lockhart J (with whom O’Loughlin and Whitlam JJ agreed) at 214.
 The High Court refused special leave to appeal the decision on the basis that the NTA had been proclaimed in the intervening period and the Act ensured the validity of a grant of Aboriginal land, irrespective of any effect it may have on native title. In refusing leave, the Court cast doubt upon the Federal Court’s ruling, by holding that it was not necessarily agreeing with the conclusion that a grant of Aboriginal land is consistent with the preservation of native title. Per Mason CJ, Brennan, Dawson, Toohey & McHugh JJ; unreported decision of the High Court 13 April 1994.
 One of the major criteria for the arbitration of land use proposals under the right to negotiate process in the NTA is the effect of the proposal on native title rights and interests: s39(1)(a) NTA. Furthermore, the Commonwealth is seeking to amend the NTA such that the right to negotiate will not apply where land has previously been subject to current or historical grants or reserves: proposed s43A NTAB.
 Newcrest Mining (WA) Limited v The Commonwealth of Australia & Anor.  HCA 38; (1997) 147 ALR 42.
 The Northern Territory government is seeking to replace the rights and interests of the Aboriginal people under the ALRA with the rights and interests afforded to native title holders under the NTA (Submission to the Review of the ALRA; January 1998).
 It is also possible for the past act provisions to apply to a grant made after 1 January 1994 if the grant was the exercise of a legally enforceable right or an offer, commitment arrangement or undertaking: s 228(3) NTA.
 Aboriginal land granted under the ALRA is excluded from the definitions of category A [NTA s229(2)(b)(ii)] and of category B [NTA s230(d)(iv)] past acts and hence the grants are category D past acts, to which the non–extinguishment principle applies [NTA s232 & s15(1)(d)].
 Section 67A would have full effect due to the operation of s210(c) of the NTA.
 The validity of these claims has been challenged by the Northern Territory, on the basis of the decision of the High Court in R v Kearney ex parte Japanangka  HCA 13; (1984) 158 CLR 395, where the High Court held that land held by the Conservation Land Corporation and the Northern Territory Land Corporation was not Crown land and hence could not be claimed under s50(1) of the ALRA. The validity of the claims will turn on grounds other than those considered in R v Kearney ex parte Japanangka.
 ALRA, s50(2A).
 Agreements under ss21 & 31 NTA and ss 19 & 11A ALRA.
The Northern Territory Land Councils do not accept the entire ILUA model proposed in the 1998 Bill—the model proposed is sufficient, but not optimal, to resolve ALRA and NTA matters concurrently.
 Sections 23(1)(c) & 77A ALRA and proposed ss24CG(3)(b)(ii), 202 (4)(e) & (8), & 251A NTAB.
 Proposed s199C NTAB.
 A detailed analysis of the Ten Point Plan, the Commonwealth’s policy document which provided the basis for the NTAB is contained in The Native Title Report (July 1996—June 1997) of the Aboriginal and Torres Strait Islander Social Justice Commissioner at the Human Rights and Equal Opportunity Commission.