Indigenous Law Bulletin
by Graeme Neate
The first comprehensive review of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the 'Act') since the review by Justice John Toohey in 1983 was tabled in the Senate on August 21.
The Report is entitled Land Rights for the next generation. Report of the Review of the Aboriginal Land Rights Act (NT) 1976, and was prepared for the Federal Government by Darwin barrister John Reeves QC.
Mr Reeves concludes that although it is difficult to arrive at a complete assessment of the overall costs and benefits of the Act for the Northern Territory, `on balance, I lean towards the view that the benefits of the Act have outweighed its costs, but that the balance would have been much more favourable' if some aspects of the legislative scheme were different. He recommends numerous changes to the Act, and to other legislation.
The Federal Government's response to the Report and recommendations will not be known until after the Federal election, when the report will be available in printed form.
Mr Reeves observes that justice Toohey reviewed the Act after the first seven years of its operation `when the land claims process was relatively young and when the institutions formed under the Act were relatively new'.
The present review was conducted in `very different circumstances'. About 42.3% of the Northern Territory (573,000 square kilometres) has been granted to Aboriginal Land Trusts for the benefit of Aboriginal people; the land claims process is nearing completion; and the two large Land Councils `have become substantial bureaucracies filling roles and functions beyond those originally intended'.
Mr Reeves notes that the Land Rights Act is widely regarded as the `high water mark of land rights legislation in Australia'.
There can be no doubt that the Land Rights Act has had many positive results for Aboriginal people in the Northern Territory. It has returned much of their traditional land to them and helped to enrich their culture and rebuild their confidence as a people.
He identifies a number of 'negative results' of the Act, including:
According to Mr Reeves, the most significant area in which the Act is not beneficial is that it does not, and was not intended to, provide Aboriginal people with economic or needs-related entitlements, such as mineral rights, commercial fishing rights, or rights to commercially harvest native fauna.
Mr Reeves considers how reforms might be made which would address the negative results whilst preserving the 'very real benefits' that have been achieved. He attempts to weigh the costs of reforms against their likely benefits, and recommends that 'substantial and far-reaching changes' be made to the Act. The reforms are aimed at the next generation of Aboriginal Territorians in order to 'maintain and strengthen their long-term security with respect to their culture and their traditional lands, and offer them the opportunity to achieve better social and economic outcomes than their parents have been able to'.
He recommends that a preamble and purposes clause be inserted into the Act expressing the future purposes of the Act along the following lines:
Mr Reeves concludes that the Act (and associated Northern Territory legislation) have been very effective in:
However, he also finds that there is a need to reform the Act to provide Aboriginal people with effective control over activities on their land.
If Aboriginal self-determination has any meaning at all, 'it must apply first and foremost to the processes and practices of Aboriginal tradition and the effective control by Aboriginal people, of their lands'.
According to Mr Reeves, the two large Land Councils [NLC and CLC] have been successful in developing their political role and in preparing and presenting land claims, but have not been successful in performing other roles. They are perceived to be 'bureaucratic, remote, tardy and uninterested in local Aboriginal problems'. He contrasts them with the two smaller Land Councils which he says are closer to their constituencies, perform their functions following their view of Aboriginal tradition, and appear to operate more pragmatically and flexibly.
He argues that any adequate basis for Aboriginal land rights must accommodate both local and regional interests, and take into account the fact that regional cultures and ways of life are maintained on a regional level.
The importance of regional populations has not been acknowledged in the scheme of the Act, which does not 'adequately reflect either the state of anthropological knowledge, or the reality, of traditional Aboriginal processes and practices in relation to the control of land'.
The Act should be reformed to:
He recommends the establishment of representative Regional Land Councils (RLCs) based on the eighteen existing Land Council regions, including the two small Land Council areas. Such bodies should be autonomous but subject to a system of supervision and accountability.
Aboriginal persons who have a traditional affiliation to an area of land within the region or who are permanent residents of the region would be entitled to be members of an RLC. No person could be a member of more than one RLC at any one time. Each RLC would be required to keep a register of its members.
Each RLC would have a Board of Directors, a Chief Executive Officer and staff.
The RLCs would undertake all the functions of the present Land Councils in its region - with the exceptions of completing the land claims process, sacred sites assistance, and assistance with commercial ventures. These functions would be undertaken by the proposed Northern Territory Aboriginal Council (NTAC) or other specified bodies.
Each RLC would also:
Mr Reeves recommends the establishment of the Northern Territory Aboriginal Council, an appointed (and eventually elected) authority to assist in the long-term social and economic advancement of Aboriginal Territorians through its social and economic advancement program.
The NTAC would also, among other things:
Under the Act, access is restricted to `almost half the land mass of the Northern Territory and about 80% of its coastline'. These restrictions have caused the greatest cost imposed by the Act on other Territorians (including government and the mining industry).
Mr Reeves recommends the removal of the requirement for permits to enter Aboriginal land. He concludes that reforms to access regulations would `not only pay dividends for Territorians at large, but would reduce opposition to Aboriginal land rights because they would no longer impose such heavy costs' on other Territorians.
Mr Reeves concludes that the 1987 amendments to the Act `did not overcome the deficiencies in the system'.
He notes that although the existing arrangements for exploration and mining on Aboriginal land are quite unsatisfactory and ought to be changed, no mining company, mining association, Land Council or Aboriginal organisation proposed that the current `veto' provision should be removed.
He recommends that:
Mr Reeves is critical of aspects of the legislation governing the administration of the Aboriginal Benefits Reserve (ABR) and Royalty Associations. He recommends that:
Mr Reeves recommends that the Act be amended to enable the Northern Territory government to compulsorily acquire an estate or interest in Aboriginal land (or claimed land), other than the freehold interest, for public purposes. The nature and extent of the estate or interest would be limited to that necessary for the public purpose, and certain procedures would have to be followed.
Mr Reeves argues that there are some problems with the application of some Northern Territory laws on Aboriginal land. Any reform must recognise and protect the rights of Aboriginal people to use their land in accordance with Aboriginal tradition. However, these rights should not be absolute, and thus must give way to laws that protect the rights and interests of the broader community on issues such as the supply of essential services and conservation of the environment.
Provision should be made for the general application of Northern Territory laws to Aboriginal land. The Act should specify the subject areas in relation to which Northern Territory laws will apply to Aboriginal land, with the qualification that every endeavour should be made to ensure that the rights under s71 of the Act are preserved to the greatest extent possible.
Mr Reeves concludes that inalienable freehold title is the most appropriate form of title for Aboriginal land.
It is the form of title that is most likely to protect the interests of Aboriginal people, including future generations, in their traditional lands.
The inalienability of Aboriginal freehold title does not significantly restrict the capacity of Aboriginal Territorians to raise capital for business ventures or to make commercial use of inalienable freehold land, if they so wish.
He recommends that:
Mr Reeves suggests that in relation to native title claims, precedence should be given to the rights of Aboriginal people under the Act and under the Community Living Areas provisions of the Pastoral Land Act (NT).
He recommends that the Native Title Act 1993 (Cth) be amended to provide that:
Mr Reeves further recommends, among other things:
The Report has been printed by the Canberra office of ATSIC and is also available on the ATSIC website at http://www.atsic.gov.au
Graeme Neate it Chairperson of the Queensland Lane Tribunals, and is author of Aboriginal Land Rights Law in the Northern Territory, (APCOL, Chippendale, 1989).
 Seven Years On, AGPS, Canberra, 1984. Justice Toohey was the first Aboriginal Land Commissioner, from 1977 to 1982.
 This summary is based on the summary of findings and recommendations set out in the Report.
 The Northern Land Council and the Central Land Council. Two other smaller bodies are the Tiwi Land Council (which covers Bathurst and Melville Islands; and the Anindilyakawa Land Council which coven Groote Eylandt.