Indigenous Law Bulletin
by Martin Mowbray
Before becoming Prime Minister in 1972, Gough Whitlam promised to 'legislate to give Aborigines Land Rights'. Justice Woodward was subsequently appointed to report on 'the appropriate means to recognise and establish the traditional rights and interests of the Aborigines in and in relation to land'? The resultant Aboriginal Land Rights (Northern Territory) Bill ('the Land Rights Act) lapsed when the Labor government was dismissed in November 1975. The next year, the Fraser Government introduced a more restricted Bill that became law in 1977. Though it has been subjected to various assaults, the Act has remained essentially intact.3
In October 1997, John Herron, Minister for Aboriginal Affairs, announced the appointment of Darwin barrister John Reeves to review the Land Rights Act. Reeves became a QC immediately afterwards and his Report was presented on 20 August 1998.`' Reeves describes his report as the 'first comprehensive review of the Act since Justice Toohey's review in 1983'.5 Since Toohey did not publicly call for submissions, Reeves claims that his Review is also the 'first full public review of the Act'.6 Unlike Toohey's report, Reeves' proposals are designed to radically transform the Act.
The most fundamental purpose of the current Land Rights Act is to allow Aboriginal people to regain, retain and manage their traditional lands. Ownership is inalienable other than to the Commonwealth or in the national interest. The Land Rights Act stipulates how land is to be acquired, held and administered. It gives traditional landowners the power to regulate access to and use of their land by third parties, including the power to veto mining. Because traditional landowners themselves are unlikely to have resources for investigating or negotiating a mining proposal, the Act provides for Land Councils to act as their agents.
While the Act preserves public title to all minerals, it provides for reparatory payments by the Commonwealth for the effects of the mining. These are roughly equal to royalties paid by the companies mining on Aboriginal land, but are subject to Withholding Tax and paid by the Commonwealth into the Aboriginals Benefit Reserve ('the ABR'). These monies are thus insulated from risks entailed in annual grants processes. Forty per cent of funds are disbursed to the four Land Councils on a population basis, with provision for additional payments. The Act also provides for negotiation of direct payments and other considerations by miners for their use of Aboriginal land. The Land Councils see such amounts as compensatory in nature and not meant to substitute for government expenditure on Aboriginal well being or development.7
Land Councils are also given the role of assisting in the acquisition of title to land and its subsequent management. The rights of traditional owners are recognised in various places by the phrase 'and as a group consents Such consent must be based on an understanding of the 'nature and purpose of the proposed action'. Consent may be given in accordance with the processes of Aboriginal tradition, or by a process agreed to by the traditional owners.9 The rights of Aborigines who may not come within the definition of 'traditional Aboriginal owner' are also recognised, both as beneficiaries of land trusts10 and as members of 'any Aboriginal community or group that may be affected by the proposed action.' Such communities must be consulted and have the opportunity to express their views to the Land Council.
The Reviewer states that the 'substantial and far reaching changes' to the Act that he recommends are designed to address what he sees as its 'negative results': disputes about land ownership and a lack of effective Aboriginal control.’ These, he says, result from a failure to recognise that Aboriginal culture is reproduced ... occupied, used and "owned"' at the regional level. Drawing on the Gove Land Rights decision,12 where it was found that the Aboriginal plaintiffs had failed to establish a proprietary interest in land, Reeves asserts that there is no such thing in Aboriginal culture as a 'corporate land owning group' which matches the definition of 'traditional owner'. 13 He finds that the population group best placed to control land and land councils is 'the regional community'. The large Central and Northern Land Councils, he contends, are unsuited to effectively representing Aboriginal interests.14 While Reeves suggests that this observation is based on 'new anthropological thinking',15 it also conforms to the longstanding argument of the Northern Territory Government that the Aboriginal population should be serviced by local organisations.
The Reviewer lists three other 'negative results' of the Act:
1) monies received under the Act have 'largely been dissipated in Land Council operational costs and cash payments to individual Aborigines'.
2) 'a strident oppositional political culture has developed' between 'the two large Land Councils and the NT Government'.
3) the costs arising from 'the "go-between" status of the Land Councils and the requirement to obtain a permit to enter Aboriginal land'6
The Reviewer suggests three main changes to address these 'negative results':
Reeves proposes replacing the two large (mainland) Land Councils with sixteen Regional Land Councils ('RLCs').17 These would have radically diminished powers incomes and autonomy.18 The new Land Councils would shed responsibilities for land claims, native title claims, sacred sites protection, issuing permits to enter Aboriginal land, and overall advocacy of Aboriginal interests. 'Costly and time-consuming processes' such as 'identification of traditional Aboriginal owners, obtaining their consent as a group and consulting with any Aboriginal community or group that may be affected' by development, will be abolished.19 The total ABR-derived annual income for the eighteen RLCs might be well under half of what the existing Land Councils receive,20 and it would be distributed at the discretion of the Northern Territory Aboriginal Council ('the NTAC').
The RLCs would be subordinate to a 'new central body', the NTAC.21 This body could refer decisions about land use, including mining, made by RLCs to the relevant Commonwealth or NT Minister if it believed that an agreement is 'contrary to the best interests of the Aboriginal people of the region' 22 Elsewhere, Reeves makes a recommendation that the Commonwealth Minister should `delegate some or all of his functions under the Act to a Minister in the NT Government 23
NTAC is to operate in `partnership with the NT and Commonwealth Governments'.24 NTAC would maintain `strategic oversight' or 'strategic supervision' over 'both specific decisions' concerning mining and other agreements and tasks delegated to other bodies, as well as over the 'general performance' of RLCs and their finances.25 The NTAC would have the power to 'intervene if it becomes necessary',26 for example in the case where someone was 'aggrieved by a decision of a RLC' and had made an appeal.27 The RLCs themselves would however be 'without right of appeal to a court'28
Any Aborigine who is a permanent resident or has a traditional affiliation with the region would be entitled to membership of an RLC.29 The RLC could make decisions without prior approval or notice to the traditional landowners.30 Individuals without traditional affiliation in the region could end up as decision-makers for the land. In any case, NTAC would oversee RLC decisions. If the Commonwealth considers a proposal to be in the national interest, the NT Government would also have the power to initiate a process leading to Commonwealth approval, and arbitration of a mining agreement.31 The right of veto on mining by traditional owners as it now exists would thus be effectively abolished.
NTAC would have 'responsibility for developing Aboriginal skills, assets, culture, employment and self reliance'. Its 'major function will be to assist the longterm social and economic advancement of Aboriginal Territorians'. This function would entail co-ordination and assistance in the implementation of social and community programs of the Northern Territory and Commonwealth Governments and ATSIC.32
To assist it in such work, 'any real assets the Royalty Associations and other Aboriginal organisations' have accumulated would be transferred to NTAC' for commercial investment. Implications concerning ownership and compensation are not considered. NTAC would also acquire all net receipts by RLCs 'from negotiated royalties, gate receipts, license fees, and the like'.33
Members of NTAC would be appointed jointly by the Commonwealth Minister and the NT Chief Minister until such time as 'a positive partnership has developed with both governments and their agencies'. These Ministers would also approve the list of possible Chief Executive Officers (CEOs). The CEO would be a member of the Council and appoint all other staff 34 NTAC would receive all monies presently received under the Act, including negotiated payments under mining agreements, some of which have been paid to traditional landowners for nearly twenty years. It would handle outstanding land claims, and be the sole Native Title Representative Body in the NT NTAC would approve candidates for appointment as CEOs to the RLCs. These CEOs would appoint all RLC staff.35
The requirement to obtain permits to enter Aboriginal land would be abolished. The NT Government would be given powers to acquire an interest in Aboriginal land 'for public purposes'36 and clear provision would be made for 'the general application of NT laws to Aboriginal land'.37
The Reviewer is profoundly concerned with disharmony between the NT Government on the one hand and Aboriginal people and the mainland Land Councils on the other. He notes the 'deep resentment and distrust among most Aboriginal people towards the NT Government' i8 To deal with this discord, Reeves proposes 'forging a working partnership'39 'based on mutual respect and recognition' 40 Though conceding that this cannot be legislated into existence, Reeves proposes 'changes in the operations of the Land Rights Act and in associated institutional arrangements'. He recommends inserting a new preamble and purposes clause into the Act.''
Essentially, the new partnership is to be forged by replacing the large Land Councils with organisations which have greatly diminished powers and resources (RLCs). These would be closely overseen by a new central agency (NTAC) composed of persons directly appointed by the Commonwealth and NT Governments, or perhaps only by the latter. Land Councils are currently free to contest issues with the NT Government. The assumption is that harmony will prevail once these Land Councils are abolished and replaced by the much weaker RLCs which will be effectively under the authority of a Territory Minister.
This somewhat unsubtle programme of pacification is based on the Reviewer's manifest satisfaction with the operation of the Anindilyakwa and Tiwi Land Councils. Not only are these bodies of ideal size, 'they have been run on modest lines and within their allocated budgets' 42
The one page (page 100), dedicated to the performance of the two small land councils, suggests that the Reviewer made little effort to develop a critical understanding of their accomplishments. The Tiwi Land Council made no submission, though the Reviewer met with some members and had access to its minutes. This enabled him to form a positive 'impression' which was 'reinforced by the absence of serious complaints'. He continues: 'while the Review did not have the same sort of information in relation to the Anindilyakwa Land Council, it did not receive any submissions complaining about the performance of their functions'.43
Elsewhere too, the flimsiest information is used to support sweeping findings. For example, relying on information about the Tiwi Islands from the early 1980s and with 'few details of the way the Anindilyakwa Land Council has approached identification of traditional Aboriginal owners' he concludes that the smaller Land Councils have managed the issue of effective representation in an exemplary fashion.`
In contrast, the Reviewer dedicates fifteen pages to the large Land Councils in his assessment in Chapter Six of the 'structure and performance' of the Land Councils. Three of these pages set out positive testimonies about their role, which the Reviewer qualifies. Twelve pages are then devoted to unqualified negative testimony. Though pronounced successful politically and in terms of winning land claims, the continental Land Councils are 'perceived to be bureaucratic, remote, tardy and uninterested in local Aboriginal problems'. He records unattributed accusations 'of duplicity, causing division within Aboriginal communities, disempowering Aboriginal people, ignoring Aboriginal tradition and generally, running their own political agendas .45 These have been cited as Reeves' findings by the Deputy Prime Minister.46
For Reeves, the differences between the favoured island Land Councils and the mainland Land Councils are due to their differing scale of operations. This does not fully take into account other variables, such as land claims. Since freehold on the islands was simply granted at the outset of the Act, neither of the small Land Councils have had to pursue land claims. As Reeves notes, for the mainland Land Councils, land claims have been their `main focus' 47 They have had no legally responsible alternative other than `lodging every possible claim to land that they have been asked to'.48 The Territory Government's proclivity to legally challenge these claims and almost invariably lose49 is also defended by Reeves, somewhat obtusely, as being in the interests of Aboriginal people.50
The Reviewer wishes to see the provision of `opportunities for the social and economic advancement of Aboriginal peoples in the NT' inserted as a new purpose of the Act.51 To give effect to this, Reeves wants funds paid under the Land Rights Act to be devoted to `education, training, health, housing and similar purposes'.52 He also wants the funds to be used for commercial activity.53 Reeves takes the view that mining royalty equivalents are public monies, whether or not they are compensatory.54 Therefore, he argues, it is reasonable for compensatory funds to be spent on programs, including essential services, that would otherwise be regarded as the normal responsibility of governments.
Reeves contemplates the possibility of the NT Government transferring the Aboriginal component of its expenditure to NTAC.55 This would have the extraordinary implication that NTAC would take responsibility for all public expenditure in relation to Aboriginal people.56
With the level of funding and the functions and powers outlined above, Reeves states that NTAC `could have a substantial impact on the rate of economic and social advancement of Aboriginal Territorians'. Ultimately, he says, it is up to Aboriginal people themselves to achieve better social and economic outcomes.57 It is not altogether clear how this conclusion sits with Reeves' earlier finding that `easily the most important thing to do to improve the [social and economic] standing of Aboriginal Territorians is to maintain the fast rate of economic growth in the NT'.58
The recent Review of the Aboriginal Land Rights Act features recommendations that, if implemented, will totally transform the nature of Aboriginal Land Rights in the NT. Control of Aboriginal land by identified traditional owners will end and the two large mainland Land Councils will be abolished. Instead a system of administration effectively superintended by the relevant NT Minister would be instituted. A government-appointed Northern Territory Aboriginal Council will oversee a group of eighteen Regional Land Councils made up of Aborigines qualified by residence or traditional affiliation. Land Council revenues will be drastically cut and responsibilities for land claims, native title claims, sacred sites protection, the issuing of permits to enter Aboriginal land and overall advocacy of Aboriginal interests would be removed. Current requirements that Land Councils meet certain consultative standards over decisions concerning Aboriginal interests would also be abolished. The new organisations will become responsible primarily for supporting education, training, health, housing and similar services, as well as commercial enterprise. The Land Councils would become more like local governments, concerned with local service delivery, rather than with the acquisition and control of Aboriginal land and the wider representation of Aboriginal interests.
Martin Mowbray is Head of the School of Social Science and Planning at the Royal Melbourne Institute of Technology
1.. Howie, Ross. 'Northern Territory', in Peterson, Nicolas (ed.) Aboriginal Land Rights: A Handbook, (Australian Institute of Aboriginal Studies, Canberra, 1981), pp 28-29.
2. Woodward, A.E. Aboriginal Land Rights Commission Final Report; (AGPS, Canberra, 1974). Woodward, A.E. Aboriginal Land Rights Commission, Second Report, (Government Printer, Canberra, 1975).
3. See Toohey, John. Seven Years On: Report by Mr. Justice Toohey w the Minister for Aboriginal Affairs on the Aboriginal Land Rights (Northern Territory) Art 1976 and Related Matters, (AGPS, Canberra, 1984).
4. Graeme Neate's abbreviated version of Reeves' Synopsis and Summary of Findings and Recommendations is published in 4(15) ILB (October
5. Reeves. John. Building on Land Rights for the Next Generation Report on the Review of the Aboriginal Land Right; (Northern Territory) Are, 1976 (Aboriginal and Torres Strait Islander Commission, Canberra, 1998), p i.
6. ibid, p 6. Cf Reeves, John. Israel Paper, Review of the Aboriginal Land
Rights (Northern Territory) Ace 1976, (Darwin, 1997), par 9. The Issues
Paper is also included ax Appendix B to die Report.
7. See Pritchard, Bill. 'Response to the Federal Government's discussion
paper; Removing the Welfare Shackles , 4(14) 1L8 (1998):9.
8. Land Rights Act; ss 19(3),23(3),28(4).35(9).42(2),42(6).
9. Land Rights Act s 77A.
10. Land Rights Act, s 4(1). 11. op cit above o 4, pp i-iii.
12. Milrrpum & On v Nabalco Pry Ltd and the Commonwealth (1970) 17
13. The term' traditional owner' is defined in s 3 of the Land Rights Act.
14. op cit above n 4, pp 140, 147, 174 & 203.
15. ibid p 139.
16. ibid p u. '
17. The existing island-based Anindilyakwa (Groan, Eylandt) and TIM (Bathurst and Melville Islands) would became RLCs. The mainland Land Council regions are considered 'obvious' because the Reviewer is able to 'assume the CLC and NLC gave careful consideration to geographical and cultural factors in defining and establishing their sixteen regions', ibid p 209.
18. See Ch 27, ibid
19. ibid p 210. 20. ibid p 612.
21. ibid pp. 597-8.
22. ibid p 609.
23. ibid p 493.
24. ibid pp iii & 604.
25. ibid pp 211,608-610.
26. ibid p 599.
27. ibid p 213. 28. id
29. ibid p 595.
30. ibid p 210.
31. ibid p 536.
32. ibid pp 604 & 610-611.
33. ibid pp 609-610.
34. ibid p 607.
35. ibid pp 608-611.
36. ibid p iii.
37. ibid p 412.
38. ibid pp 68-70.
39. ibid. p74.
40. ibid p 592.
41. ibid. pp 72-77.
42. ibid p 209.
43. ibid p 101.
44. ibid p 187.
45. ibid pp 117-8.
46. For example, ABC Radio News 28 & 29 September 1998, 13 January 1999. Cf The Australian, 29 September 1998. p 7.
47. op cit. above n 4, p 215 .
48. ibid p 216.
49. ibid p 104. 50. ibid p 216.
51. ibid p 77. 52. ibid p 362.
53. ibid pp 610-611.
54. ibid p 351.
55. ibid p 614.
56. ibid p 613.
57. ibid p 614, 616.
58. ibid p 91.