Morley, Ruth --- "The Pitjantjatjara Land Rights Amendment Act: Addressing Governance on APY Lands" [2005] IndigLawB 62; (2005) 6(15) Indigenous Law Bulletin 10

• The Pitjantjatjara Land Rights Amendment Act: Addressing Governance On Apy Lands

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The Pitjantjatjara Land Rights Amendment Act: Addressing Governance on APY Lands

by Ruth Morley

The Pitjantjatjara Land Rights Act 1981 (SA) remains unprecedented in Australian land rights history in that it granted inalienable freehold title to its traditional Aboriginal owners. It did this by creating Anangu Pitjantjatjara, a statutory authority in which title of the land is vested. Anangu Pitjantjatjara’s members are the traditional owners who are to determine, collectively, how the land is to be managed.

Section 6 of the Act provides:

Powers and functions of Anangu Pitjantjatjara

• The functions of Anangu Pitjantjatjara are as follows:

(a)	to ascertain the wishes and opinions of traditional owners in relation to the management, use and control of the lands and to seek, where practicable, to give effect to those wishes and opinions; and
(b)	to protect the interests of traditional owners in relation to the management, use and control of the lands; and
(c)	to negotiate with persons desiring to use, occupy or gain access to any part of the lands; and
(d)	to administer land vested in Anangu Pitjantjatjara.

Section 9 created an Executive Board, whose function under section 11 was to ‘carry out the resolutions of Anangu Pitjantjatjara’. Essentially this required the 2,000-3,000 members to collectively make decisions. Naturally this was impossible, and Anangu Pitjantjatjara has, over the last 22 years, concentrated on carrying out its duties pursuant to section 6(1) and section 7. Section 7 required Anangu Pitjantjatjara to

have regard to the interests of, and consult with, traditional owners...[ensuring that they] understand the nature and purpose of the proposal; and

(a)	have had the opportunity to express their views to Anangu Pitjantjatjara; and
(b)	consent to the proposal.

Anangu Pitjantjatjara has struggled with its role and function. Most would agree however that it was never adequately described.[1] However, the Executive has consistently met over its 22 years of existence to address land management issues in the key areas of livestock, exploration, mining, native title, tourism, housing and essential services, infrastructure, and research.[2]

Anangu Pitjantjatjara has long recognised that the structure around the Executive Board has required strengthening, and its core functions more accurately defined. In October 2004, after the election of the new Executive Board, the South Australian Government,[3] approached the Executive to work with the Department of the Premier and Cabinet and the Attorney-General’s Department towards amending the Pitjantjatjara Land Rights Act 1981 (SA).

The Executive sought advice on potential areas of reform that would benefit Anangu Pitjantjatjara and in March 2005 held its Annual General Meeting (‘AGM’). At the AGM, its members unanimously resolved to review the Act in two stages; initially in terms of the structure and role of Anangu Pitjantjatjara, then subsequently through a review of external commercial activity and policy. The review was to take place through the Executive, having regard to its obligations pursuant to sections 6 and 7 of the Act.

A call for submissions was published and community consultations commenced. Drawing on its 22 years of experience managing the lands, the Executive worked closely with the Department of the Premier and Cabinet and with the Attorney-General’s Department to discuss approaches to Anangu Pitjantjatjara’s structure and function.

Feedback from the community consultations[4] was fed into the discussion, and proposals for amendment taken back to another round of community consultations in May 2005. The information gathered was again fed into the discussion and in June 2005 the proposed amendments were taken to a Special General Meeting. The resolution of that meeting was to support the proposed amendments.

The Pitjantjatjara Land Rights (Miscellaneous) Amendment Bill 2005 (SA) was put before the Aboriginal Lands Parliamentary Standing Committee for scrutiny in September and answers provided to questions on notice. In mid-September the Bill was approved by the Labor caucus and put before the Legislative Council. In mid-October the Bill was debated and moved, then assented to on 27 October 2005.

Most importantly, the Pitjantjatjara Land Rights (Miscellaneous) Amendment Act 2005[5] (‘the Amendment Act’) does not amend sections 6(1) or 7 of the 1981 Act. The principal purpose and original intent of Anangu Pitjantjatjara remains – that is, to ascertain the wishes and opinions of traditional owners, protect their interests, negotiate on their behalf and administer the Lands. What the Amendment Act does do is provide a manageable and effective governance structure for Anangu Pitjantjatjara Yankunytjatjara[6] by defining the responsibilities of the Executive Board. This will in turn ensure Anangu Pitjantjatjara Yankunytjatjara’s future as an effective authority able to build capacity within itself and empower its members.

In short summary, the substantive amendments regarding Anangu Pitjantjatjara Yankunytjatjara and its Executive Board of the amending legislation see that the Act:

•	Amends the membership, election, term, Chair,[7] powers and functions,[8] performance[9] and accountability[10] of the Executive Board;
•	Provides objects of the organisation Anangu Pitjantjatjara;[11]
•	Requires the presentation of an Annual Report to the Minister and a budget for approval[12] (thereby streamlining funding applications);
•	Appoints and directs performance and functions of the Director of Administration and General Manager;[13]
•	Provides for review of the operation of the amendments upon the third anniversary of commencement.[14]

Other consequential and incidental amendments have also been made that flow from these substantive amendments. Significantly, the renaming of the statutory authority to Anangu Pitjantjatjara Yankunytjatjara recognises the two principal language groups which, by way of tradition, own the land.

The amendments to the Pitjantjatjara Land Rights Act 1981 (SA) represent the outcome of reflection by Anangu Pitjantjatjara Yankunytjatjara on its performance and function over its 22 years of operation. Anangu Pitjantjatjara Yankunytjatjara has acted to ensure that self-governance continues on the Anangu Pitjantjatjara Yankunytjatjara Lands.

Ruth Morley is a Senior Associate with Povey Stirk Lawyers & Notaries, based in Alice Springs, Northern Territory. Ruth acted as an advisor to the Anangu Pitjantjatjara peoples during the amendment consultation process.

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[1] See, eg, Robert Lawson QC MLC, ‘The Pitjantjatjara Land Rights Act 1981’ (speech delivered to the Bennelong Society Conference: An Indigenous Future? Challenges and Opportunities’, Acton, ACT, 30 August 2003). In this paper, Lawson accurately describes the inadequacies of the Act to guide the Executive in the performance of its role and function, as well as impediments to performance that the executive has endured. <http://www.bennelong.com.au/papers/Conference2003/Lawson2003.html> at 17 November 2005.

[2] The only year the Executive Board did not meet was in 2003 when it wrongly made changes to its Constitution, extending the term of the Executive from one to three years. The Constitution can only reflect changes to the Act and cannot be inconsistent with the Act.

[3] In seeking to amend the Act, the South Australian Government were responding to advice from a series of eminent and experienced persons engaged to assist in brokering improvements on the Pitjantjatjara Lands.

[4] Each community consultation and General Meeting was broadcast on Radio 5NPY as well as visually and audibly recorded by PY Media. Present as observers were representatives from the Aboriginal Lands Parliamentary Standing Committee.

[5] The Pitjantjatjara Land Rights (Amendment) Act 2005 (SA) can be found at <http://www.parliament.sa.gov.au> .

[6] Renamed in section 1, Pitjantjatjara Land Rights (Miscellaneous) Amendment Act 2005 (SA).

[7] Sections 9C-F, Pitjantjatjara Land Rights (Miscellaneous) Amendment Act 2005 (SA).

[8] Section 9B Pitjantjatjara Land Rights (Miscellaneous) Amendment Act 2005 (SA).

[9] Sections 12B-12H Pitjantjatjara Land Rights (Miscellaneous) Amendment Act 2005 (SA).

[10] In accordance with section 11, Ministerial intervention can only compel the Executive to perform, not make any decisions for it. Section 13N then subsequently directs the Executive Board in the event of no continued performance which is to the detriment of its members and finally, section 13O provides for suspension of the Executive Board: Pitjantjatjara Land Rights (Miscellaneous) Amendment Act 2005 (SA).

[11] Section 4A Pitjantjatjara Land Rights (Miscellaneous) Amendment Act 2005 (SA).

[12] Section 13A Pitjantjatjara Land Rights (Miscellaneous) Amendment Act 2005 (SA).

[13] Section 13A-M Pitjantjatjara Land Rights (Miscellaneous) Amendment Act 2005 (SA).

[14] Section 32 Pitjantjatjara Land Rights (Miscellaneous) Amendment Act 2005 (SA).