|
Navigation: Previous Page | Contents | Next Page
Aboriginal land rights (Northern Territory) amendment Bill 2006
THE
INQUIRY
1.1
The Aboriginal Land Rights (Northern
Territory) Amendment Bill 2006 was introduced into
the House of Representatives on 31 May
2006 and into the Senate on 20
June 2006. The Senate Scrutiny of Bills Committee commented on the Bill
in its Fourth Report of 2006, dated 21
June 2006. On 22 June 2006,
the Senate, on the recommendation of the Selection of Bills Committee (Report
No. 6 of 2006), referred the Bill to the
Committee for inquiry and report by 1
August 2006.
1.2
The Committee received 15 public submissions and one
confidential submission relating to the Bill.
The public submissions are listed at Appendix 1. The Committee considered the Bill
at a public hearing in Darwin
on 21 July 2006, details of
which are referred to in Appendix 2. The submissions
and Hansard transcript of evidence may be accessed through the Committee's
website at http://www.aph.gov.au/senate_ca
1.3 The Committee considers the time made available for
this inquiry to be totally inadequate. The Aboriginal Land Rights (Northern
Territory)
Act is one of the most fundamentally important social justice reforms enacted
in Australia
and these are the most extensive and far reaching amendments that have been
proposed to the Act. There was insufficient time for many groups to prepare
submissions and a single hearing was complicated by the necessity to include a
number of teleconferences within the hearing. Additionally, time constraints
prevented the Committee hearing from a number of witnesses. The inadequacy of
time to do justice to the complex nature of the issues involved was reinforced
by a number of groups in evidence:
In view of the length of time taken to draft and introduce this
legislation and the fundamental nature of the changes the legislation will make
to Aboriginal land rights and tenure, it seems extraordinary that stakeholders
have been given little more than 2 weeks to provide comments to the Senate
Committee, which in turn must report to Parliament within 1 month.[1]
Further comment on the consultative
processes leading to this Bill
are made later in the report.
The Bill
1.4
The amendments of the Aboriginal Land Rights
(Northern
Territory) Act
1976 (the Act) contained in this Bill are designed to:
-
provide for individual property rights in Aboriginal
townships,
-
streamline processes for development of Aboriginal land, and
-
improve efficiency and enhance accountability of
organisations under the Act.[2]
1.5
The explanatory memorandum indicates that the
Government's primary objective in seeking to reform the Act is:
To facilitate a higher
level of economic development on Aboriginal land. This is to be done without
undermining the [Act's] current balance of interests under which traditional
owners of Aboriginal land must consent to minerals exploration. The
Government’s reform proposals relate predominantly to two areas: Part IV of the
[Act] dealing with exploration and mining; and provisions that will allow for
more direct Aboriginal traditional owner participation in decisions about development
of their land (by devolution of decision-making by Land Councils).
1.6
To achieve the Government's objective, the bill
provides for a new tenure system for townships on Aboriginal land that will
allow individuals to have property rights. The fundamentals of the Act such as
inalienable Aboriginal land title and the role of traditional owners will be
preserved. Ninety-nine year head leases over townships with individual
subleases under the head lease will make it significantly easier for
individuals to own their own homes and establish businesses. The bill enables
the Northern Territory government to establish its own legislation
to administer the scheme.
1.7
To make home ownership a reality, the government has
established the Home Ownership on Indigenous Land Program and a Home Purchase
Incentive Scheme to provide low interest loans and other incentives and
assistance to prospective home owners. The States are also expected to move to
amend their Indigenous land legislation to enable unencumbered long-term
leasing of Indigenous land.
1.8
Amendments are proposed to the cumbersome and
open-ended mining provisions of the Act and are based on a package agreed
between all parties: governments, land councils and the mining industry. There
will be expedited and more certain processes for exploration and mining on
Aboriginal land and current ministerial powers will be delegated to the
Northern Territory Government.
1.9
The changes include a core negotiating period in which
the government expects most exploration applications to be considered. The Northern Territory mining minister will be provided with a new
power to set a deadline to bring negotiations to a conclusion. Importantly, the
power of traditional Aboriginal owners to withhold consent to, or veto,
exploration is retained.
1.10
The Bill includes further measures to cut red tape
and facilitate economic development on Aboriginal land. The requirement for
ministerial approval of leases and contracts entered into by land councils will
be significantly relaxed. The minister will only need to approve leases
that are over 40 years duration, rather than the current 10 years, and
contracts of over $1 million, rather than $100,000 at present. The bill
facilitates the mortgaging of leases by confirming that a lease can include agreement
to future transfers.
1.11
The bill provides for the delegation of decision-making
powers from land councils to regional groups, including for exploration and
mining.
1.12
The provisions for the establishment of new land
councils will be amended to specify that, to establish a new land council, a 55
per cent majority vote of Aboriginal people is required. The performance of
land councils will be enhanced by the legislation. No longer will land council
funding from the Aboriginals Benefit Account (ABA) be based on an artificial
statutory formula. The guaranteed 40 per cent of annual ABA revenues for land councils will be removed
and in the future, land councils will be funded on the basis of workloads and
results.
1.13
The bill seeks to expedite the finalisation of a
number of outstanding land claims by disposing of land claims that cannot
legally proceed or which are inappropriate to grant.
Background
1.14
The Aboriginal Land Rights (Northern
Territory)
Act was introduced 30 years ago. It is one of the most important social justice
reforms enacted in Australia. The Act provides for the granting of
traditional Aboriginal land in the Northern
Territory
for the benefit of Aboriginal people and regulates development on that land.
The Act establishes Aboriginal Land Councils to assist, consult with and
protect the interests of traditional Aboriginal owners of the land and other
Aboriginal residents. The Minister stated in the second reading speech that the
Act has been successful in returning land to Aboriginal people with almost half
of the Northern
Territory
now Aboriginal land; however, the Act has been less successful in facilitating the
economic exploitation of that land for the benefit of its owners.
1.15
The Minister indicated that the reforms proposed in
this Bill
are the culmination of three major reviews of the Act and extensive
consultations over a period of almost 10 years.
1.16
John Reeves QC conducted a comprehensive independent
review and reported in 1998.[3]
The central message from the Reeves Review was that the Act was not delivering
economic development, as measured by mainstream social indicators, to
Aboriginal land owners. Reeves recommended a range of reforms including a new
regionalised structure of representative and service delivery institutions,
changed institutional accountability for the use of income derived from
Aboriginal land, the abolition of the permit system, and enhanced powers for
the NT Government over Aboriginal land. The Reeves Review was itself reviewed
in 1999 by the House of Representatives Standing Committee on Aboriginal and
Torres Strait Islander Affairs[4]
which, though concurring with some of Reeve's findings, did not fully endorse
Reeve's recommendations, and also by the former Minister Ian Viner and a number
of academics during a conference at ANU[5] who
were highly critical of fundamentally all of Reeves proposals.
1.17
The exploration and mining provisions contained in Part
IV of the Act were reviewed in the Manning Report in 1999 which considered the
provisions needed some streamlining. In 2002 the Federal Government provided
the Northern Territory Government with an Options Paper – Reform of the Aboriginal
Land Rights (Northern Territory) Act 1976 to which the NT Government and Land
Councils responded in June 2003 with their Detailed Joint Submission to the
Commonwealth – Workability Reforms to the Aboriginal Land Rights (Northern
Territory) Act 1976.
1.18
In October 2005 Minister
Amanda Vanstone
announced details of the proposed reforms to the Act including a new voluntary
township leasing scheme. OIPC advised that since the announcement consultation
occurred with the NT Government on the provisions of the Bill
requiring complementary NT legislation in relation to township leasing and
exploration and mining. The Land Councils were consulted on the details of the
reforms affecting their operations.[6]
Issues
Introductory Comments
1.19
There was general support for the Bill
from submissions and witnesses, though support for a number of the proposals in
the legislation was qualified. There was recognition that the framework and
principles underpinning the Bill to assist with
economic development and home-ownership would be longer term propositions,
although critical comment may be directed at some details in the shorter term.
1.20
The NT Government described an almost ambivalent though
not inconsistent approach:
What is in the Chief Minister’s letter and what we are saying
here today is that we agree with the principles. We think this is part of a
broad framework of things that need to be done to improve the economic lot of
Indigenous people in the Territory. We think it is beneficial in that sense.
What we are saying here today, though, is that we always have concerns about
getting people on board, because we think that is the best way to have public
policy owned and implemented well. We continue to caution that there need to be
discussions about the legislation. Particularly, we need to be selling the
benefits of the proposed legislation to those who may want to take it up. I
think those two positions are consistent.[7]
1.21
The Northern and Central Land Councils noted that the Bill
largely adopted the amendments proposed in the 2003 Joint Submission and these
were supported. The NLC commented that 'many of the amendments improve
workability and are welcome, since they will remove red tape and speed up
processes for mining and other developments'.[8]
1.22
Some groups however, held serious concerns about or expressed
heavily qualified support for the Bill. The Law
Council of Australia did not support the Bill
'at the present time, as there are a number of impediments to the realisation
of its objectives in many communities affected by this legislation'.[9] The LCA was concerned that 'there is a
significant risk the proposed Bill will lead to further disenfranchisement of
Aboriginal people in the Northern Territory at the present time, given the vast
gulf in education, wealth and basic services existing between Indigenous
communities and the broader Australian community'.[10]
1.23
Tom Calma, the ATSI Social Justice Commissioner, had
'serious concerns' about the Bill arguing that 'the amendments make significant
changes to the existing land rights legislation which has the potential to
compromise the rights and interests of Indigenous people living in the Northern
Territory'.[11]
1.24
Professor Jon Altman
argued that the proposed amendments 'will result in a statutory framework that
lacks internal consistency and that will make the meeting of the amendment
objectives (especially with respect to mainstream economic development) less
likely than the current framework'.[12]
Consultation
1.25
The consultative process and agreement reached with the
NT Government and Land Councils is described in the minister's second reading
speech, explanatory memorandum and OIPC Submission. However, the Committee
received in evidence much criticism of the limited nature and direction of the consultation
undertaken.
1.26
A number of amendments included in the Bill,
especially relating to the township leasing proposals, had not been part of the
earlier consultative process with the NT Government and Land Councils. These
groups now raised concerns over these developments outside of the earlier
processes.
1.27
The NLC stated that 'some of these amendments have only
recently been raised, have not been the subject of comprehensive consultations,
and do not have the consent of traditional owners, as recommended by the HORSCATSIA
Committee in 1999.'[13] The CLC
commented that 'whilst these jointly-developed reforms were largely adopted in
the Amendment Bill, and are supported by the CLC, there are several amendments
that will detrimentally impact on the rights of traditional landowners and the
functions of Land Councils'.[14]
1.28
The NT Government similarly noted that other elements
in the Bill should have been properly considered
by, and discussed with the NT Government and Land Councils prior to
introduction.
It is the Northern Territory’s firm view that other elements in the bill should
have been properly considered by and discussed with the Northern Territory government and the land councils prior to their
introduction. However the government was only provided a small window of
opportunity to provide comment on the draft bill. In the time allowed, which
was three days, it was only possible to provide comments on priority issues as
well as technical and drafting concerns.[15]
1.29
The traditional owners who had not been part of the
consultative process expressed their views forcefully:
Our foremost concern, which we want to convey to the Committee,
is that despite our direct interest in this matter, we have not been part of
any process of discussion, consultation, or information provision regarding the
proposed changes to the Act. Neither the Australian Government, the Northern
Territory Government, or the Northern Land Council have ever spoken with us
directly about these matters... There may have been 9 years of
consultation leading to these proposed amendments, but it was not with us...
The changes the Government are
making to Indigenous affairs generally, and in this case Land Rights, are
happening much too quickly for our people to understand let alone respond to.
This is placing enormous stress on our leaders, and the sense of ‘loss of
control’ and powerlessness to respond is resulting in demoralisation,
depression and fatigue... Yes, changes are needed and new ways forward need to be
carefully developed in partnership with government and business, but the
changes must be led by us, and implemented in consultation – not imposed.[16]
1.30
Tom Calma,
the ATSI Social Justice Commissioner, reinforced these comments indicating that
'I am concerned that the ALRA amendments have been made without the full
understanding and consent of traditional owners and Indigenous Northern
Territorians.'[17] Ms Raymattja
Marika, a traditional owner from Yirrkala, spoke
strongly of the identity and connection with land and emphasised:
The federal Government must provide information that reaches
traditional owners across the Northern Territory:
As the traditional owners, we must be informed, and we want to be informed. This land rights legislation is our legislation. This is what we fought for. This affects us. We really need to be able to talk
about it together.[18]
1.31
ANTaR referred to Commissioner Calma's
comments on the importance of governments upholding the principles of free, prior
and informed consent and thought that it appears that the proposed amendments
fall well short of adhering to these principles.[19] The Law Council of Australia also
believed that because what is contemplated is grounded on a change in
traditional lifestyles 'the prior informed consent of Indigenous communities
affected by this legislation must be obtained for all aspects of the Bill
before enactment.'[20]
1.32
An option was canvassed that, given the consultations
with the NT Government and Land Councils had not covered all the provisions of
the proposed amendments, the Bill should be
split so that the agreed amendments could proceed and further consultation
could be undertaken on the remaining amendments, especially the leasing
provisions. The NT Government indicated that they 'would not be unhappy' with
such a proposal.[21]
1.33
OIPC described the consultative process of providing
draft legislation to and meeting with the NT Government and Land Councils on
township leasing and mining matters since December 2005 [22] and indicated that:
We work with the land councils as the representatives of the
traditional owners in the Northern Territory,
which is the appropriate role and that is the way we would normally deal with
them... We take our obligations very seriously in relation to the requirement to
consult and we do that through their representative organisations in the Northern
Territory. Without wishing to delay the committee in
a discursion on the current state of international law, I think it is fair to
say that the principle of free, prior and informed consent is still a bit vague
around the edges.[23]
Township or community leasing of
Aboriginal land
1.34
The amendment that attracted most debate related to the
subject of 99 year head leases to an 'Entity' which would take responsibility
for granting sub-leases within an Aboriginal community. A number of groups,
including the Northern and Central Land Councils, expressed considerable
concern over the leasing proposal.[24]
1.35
The NLC noted that the purpose of the reforms included
to promote housing and other development and to facilitate economically healthy
Aboriginal communities including entrepreneurship and private ownership of
interests in land. The NLC considered that 'there is potential for much common
ground between traditional owners of communities and Commonwealth objectives'. However,
the NLC expressed concern that:
in their current form the reforms include significant
deficiencies and unforeseen consequences which will hamper and impede the
Commonwealth's policy of promoting private investment and entrepreneurship, as
well as reducing the likelihood of agreed outcomes with traditional owners.[25]
1.36
The CLC and NLC jointly summed up their concerns as
follows:
In short, the amendments seek to promote private investment in
housing and entrepreneurship by community residents, without also promoting
such investment and entrepreneurship by traditional owners.
Instead traditional owners are expected to forgo their right to
engage in commercial development over large areas of vacant land for 99 years,
in return for a rental determined by valuation rather than negotiation.
These requirements restrict the freedom of traditional owners to
bargain commercially, appear discriminatory, might invite international
complaint, and may be unlawful. They are also unnecessary. Fair and reasonable
outcomes will be achieved (eg the railway and gas pipeline) without imposing
restrictions on the capacity of traditional owners or Land Councils to
negotiate. These outcomes may be achieved through leases under s19, without
amendment to the Act. The current amendments are unnecessary.[26]
1.37
Tom Calma
submitted that the proposed 99 year leasing provision 'will have the practical
effect of alienating Indigenous communal land'. He argued that:
If implemented, head leases will mean that traditional owners
relinquish control over decision-making processes relating to their ancestral
lands for up to four generations. While a lease is not alienation in fact,
there is no doubt that it will have the effect of alienation in practice.[27]
[He further argued that the effect of the sub-leasing provision
would be] to take away traditional owners rights to carefully consider and
consent to any economic development that occurs on their land. This provision
effectively allows any type of unwanted or inappropriate commercial
development.[28]
1.38
Commissioner Calma
also expressed concern that, while the Bill
provides that communities are free to agree or not to a head lease agreement,
'there are some serious flaws in the legislation in terms of establishing
consent of traditional owners'. In particular, the Commission does not consider
that proposed s19A(3) provides a sufficient threshold of protection to ensure
that traditional owners give permission to head lease agreements.[29]
1.39
Due to the uncertainty surrounding the operation of the
leasing provisions, some groups suggested that they be trialled. The
Traditional Owners of NE Arnhem Lands proposed that there should not be more
than two town leases negotiated within the next 3-5 years to enable these
provisions to be carefully ‘trialled’ and monitored so the financial costs and
other impacts could be properly determined.[30]
1.40
On the issue of the extent to which the leases are
voluntary with comments about the provision of additional resources or services
being made conditional on the acceptance of leasehold arrangements, OIPC
responded:
The government has made it clear right from the outset that the
arrangements are voluntary. I have listened to some of the questioning that was
put, particularly to the Northern Territory
government, around persuading groups to agree to a township lease in exchange
for essential services. I flatly deny that and I think it is absolutely not the
case.
[And in response to a specific example cited of housing to be
provided on Elcho Island]
I think it is an oversimplification of the government’s position... As part of a
broad plan that ultimately goes to achieving much better outcomes for
Indigenous people on Galiwinku, the government is putting on the table the
notion that it would like to see the community agree to a headlease as part of
that broad plan... Why the government thinks a headlease is so important is
that the housing is being provided on the basis that it is like public housing,
which requires tendering arrangements, and in the longer term there might be an
opportunity for people to buy and own those houses.[31]
1.41
In response to the issue of loss of control over land
that may be sub-leased, OIPC advised that:
Under the scheme that both governments have supported, subleases
can only be issued in accordance with the terms and conditions which have been
agreed to at the stage when the headlease has been negotiated and agreed to by
traditional owners and the land council. I think that is a very important point...
The entity will not be able to act in some sort of willy-nilly way, to just
start issuing subleases; it has to act in accordance with the law, in
accordance with what has been negotiated in the headlease.[32]
1.42
The introductory comments to this section of the report
note that there was recognition that the framework and principles underpinning
the Bill to assist with economic development and
home-ownership would be longer term propositions. OIPC expanded on this aspect
of the leasing issue in additional information:
New section 19A of the Bill
provides a framework for the new scheme. The Australian and Northern Territory
Governments will continue to work together with interested communities and the
Land Councils to decide on the more detailed arrangements including the
headlease.
The scheme is evolving... It is inevitable that the first
headleases will require considerable negotiations and are likely to become a
model or template to follow, noting that each township is different and that
traditional owners are likely to want to negotiate different terms and
conditions...
The process for negotiations is the same as for any other lease
over Aboriginal land. That is, the negotiations will involve the relevant Land
Council who must be satisfied that the traditional owners understand the nature
and purpose of the proposed headlease and, as a group, consent to it. In
addition the Land Council must consult all other Aboriginal people affected and
be of the view that the terms and conditions of the headlease, allowed for
under section 19A, are reasonable.[33]
Delegation of Land Council powers
1.43
The Northern and Central Land Councils were critical of
the amendments to delegate Land Council functions. The Land Councils noted that
the 2003 Joint Submission had sought the capacity to delegate certain Land
Council functions to regional committees established by the Land Council to
allow for the functions to be performed at a regional level. However the Bill
proposes to permit a Land Council to delegate functions regarding land use
including leasing, exploration and mining to an incorporated body.
1.44
The CLC argued that the 'delegation' mechanism proposed
was unsatisfactory and unacceptable as it did not frame a proper delegation
procedure 'but an ill considered process to remove core functions from Land
Councils without providing for the informed consent of traditional landowners.[34] The NLC argued that:
This proposal is unworkable. It will mean that Land Council
decisions regarding complex issues (eg to resolve traditional owner disputes
relating to lease payments) are never final and may be continually agitated by disgruntled
or self interested persons. This will promote disputes and litigation.[35]
1.45
Both Land Councils contend that the proposal should be
withdrawn.
1.46
The Minerals Council of Australia (MCA) also considered
that the delegation of Land Council powers proposed in the Bill go further than
anticipated in the 2003 Joint Submission. In particular, the delegation of
powers to a body corporate includes the delegation of powers under the mining
related provisions of Part IV. The MCA advised that:
It is the Australian minerals industry's primary
interest that institutions with Land Council powers be stable, and
appropriately resourced, both financially and in terms of human capacity, to
effectively and efficiently carry out their responsibilities. Stability and
workability can only be assured when there is a substantive majority of support
for the establishment of new institutional arrangements by both the Traditional
Owners of the area affected by the decision, in addition to substantive support
by the Aboriginal residents of a given area...
The MCA does not support situations where a project proponent
needs to negotiate with a raft of institutions that have discrete
responsibilities for land issues within a given area. Under the current
proposals there exists the extraordinary "unintended consequence"
that a project proponent may be required to negotiate with multiple
institutions each carrying different decision making responsibilities over the
same land area. Such a scenario would lead to disjunctive processes, increased
complexity, and inefficiencies to the detriment of all interested parties.[36]
1.47
The Traditional Owners of NE Arnhem Land were very
concerned about giving the Minister power to override Land Councils and to
delegate Land Council functions to other incorporated bodies, and to vary and
revoke such delegations. They asserted that changes to the Act should increase
and enforce downward accountability to the traditional owners/electors where a
Land Council is not appropriately responsive to its constituents. 'It is not appropriate
to just 'by pass' the Land Council, as this potentially subverts the governance
of the Land Council and gives undue leverage to the Minister.'[37]
Governance of Land Councils
1.48
The NLC and CLC made some comments and suggestions in
relation to the amendments proposing a number of Land Council governance
improvements including disclosure of minutes, annual reporting, Land Council
funding, limiting the ability to spend funds in excess of total approved
expenditure and public benevolent institution status.[38]
Establishment of new Land Councils
1.49
The Traditional Owners of NE Arnhem Land want Land
Councils to be responsive to local concerns and diversity of interests, though
this responsiveness should not be at the expense of the resources, expertise
and capacity necessary to strongly advocate the interests of traditional owners
to government, mining companies and others when necessary. They were concerned
that the amendments had potential to undermine this capacity.
1.50
The Traditional Owners believe there may be some merit
in allowing a very few additional Land Councils to be formed, where they would
reflect broad regional communities of interest or identity. However, they also
considered:
- these new land Councils should not be
smaller than the smallest of the currently existing Land Councils.
- the decision to form a new Land Council must be
made only by "traditional owners”, with full recognition that
"traditional ownership" is a layered complex of interests held by
different clans and individuals – not all of whom may be resident on the land
concerned.
- the amendments should not
"encourage" the formation of new Land Councils potentially
representing only small sectional, but well organised interests. This situation
would promote instability and conflict for our people, and is open to
manipulation and potentially undue external influence by Government and
business interests.[39]
1.51
The Act currently provides that a new Land Council may
be established where a 'substantial majority' of Aboriginals living in the area
is in favour of the proposal. The bill proposes that a 55% vote in favour be
required. Both the NLC and CLC commented that the diminution of the 'substantial
majority' test to a mere 55% of those voting is unacceptable and unworkable,
and will likely establish conditions whereby small Land Councils will find it
difficult to avoid conflicts of interest. It was also important that the
amendments ensure that the traditional owners would have to consent to any
proposed new Land Council.[40]
1.52
The MCA similarly considered that a decision to
establish a new Land Council should require a more substantive majority vote in
favour of the proposal by persons affected by the proposal, and particularly
Traditional Owners of the area to be covered.
1.53
The MCA was also concerned that the establishment of
new Land Councils should not be approved where this would result in the
establishment of separate institutional arrangements under the Native Title Act
and ALRA which would add complexity, delays, inefficiencies and costs.[41]
1.54
In response to the comments surrounding a 'substantial
majority' and the proposed 55% vote required, OIPC noted that over the course
of the last 10 years and various inquiries, there have been different views put
about what might constitute a substantial majority. All parties had agreed that
the term needed to be defined, but the question was what it ought to be. OIPC
observed:
I am saying that the current legislation has not proved to be
very workable in trying to find a process for setting up new land councils that
is transparent, fair and rigorous... I think what the government wanted to do was
put in place a rigorous, transparent framework that would allow for new land
councils to be set up—that is, not to just set up a whole lot of new land
councils but to put in place something that was workable... There are different
arguments about what the majority should actually constitute; the government
chose 55 per cent.[42]
Use of the Aboriginal Benefits
Account
1.55
The funding to establish the new leasing arrangements
will initially be drawn from the Aboriginal Benefits
Account (ABA). The Government estimates that this may amount to $15 million
over five years to cover the costs of surveying land, valuations and any rental
payments made to traditional landowners The CLC considered that 'by using money
from the ABA traditional landowners are being asked to pay for renting their
own land'. The CLC was also concerned
that the cost of surveying, valuation and rental may be far in
excess of the estimates made by the Australian government, meaning that
substantial ABA funds that could be
used for economic development and land management projects on Aboriginal land
will be diverted into the leasing scheme.[43]
1.56
OIPC advised that the figure of $15 million was:
just our best estimate at the time of a combination of the
number of communities or townships which might be interested in entering into
such an arrangement, the length of time it would take to negotiate headleases,
the possible terms of a headlease - given, of course, that that estimate at the
time incorporated a figure, the five per cent, which it has since been
announced is not continuing. It was really our best guess at the time of the
level of demand.[44]
1.57
The MCA noted that the ALR Act had been designed to
ensure that the equivalent of mining royalties paid from mining on Aboriginal
land was reinvested in the administration of the ALRA, distributed to
Aboriginal persons affected by mining and otherwise distributed for the benefit
of Aboriginal people in the NT. The MCA expressed concern:
That the proposed amendments to the distribution of ABA and
other related amendments in ALRA indicate a significant policy change towards
increased cost shifting to the minerals industry for the costs of Indigenous
participation in the legislative procedures related to exploration and mining
under ALRA.
In the case of ALRA, the cost shifting to industry acts as a
"double dip effect" against the minerals industry, given that the
minerals industry already pays mining royalties whose equivalent should already
be directed towards such costs. The MCA is also concerned that Government
appears to be prepared to use ABA
monies as a substitute for Government shortfall in funding basic social
services to communities, that is, that Government may use ABA
monies to fund government services that should be funded by mainstream
programs.[45]
1.58
The use of ABA
funding rather than additional Commonwealth funding was the subject of much
debate. The Law Council of Australia outlined this issue:
It is concerning that the Commonwealth has not volunteered its
own funding to assist in implementing the scheme it is proposing and the Law
Council does not support the use of ABA
funds for this purpose. The ABA has
been established to assist Aboriginal communities in reaching some semblance of
self-government, not to fund the implementation of Commonwealth Government
policies and legislative schemes.[46]
1.59
Professor Altman
was more critical considering that the amended Act 'will destroy the integrity
of the ABA, as a unique institution
of Indigenous Australia and will undermine the thoughtful balance embedded in
the financial framework of the current ALRA.'[47]
1.60
Commissioner Calma
asserted that 'in essence, the control and administration of the ABA
funds has been taken from land councils and redirected to a government entity.
Not only is this a derogation of a self determining function of an indigenous
entity it also contradicts the government's intention to promote a culture of
enterprise and economic development amongst indigenous peoples.'[48]
1.61
Commissioner Calma
considered that spending ABA money
to pay for head lease rental will significantly reduce the overall amount
available from the ABA. 'Further I
am the view that the use of ABA to
fund the 99 year leasing scheme is a misuse of funds.'[49] ANTaR made similar comments relating
to the use of ABA funds.[50]
1.62
In response to this issue about the use of ABA
funds, OIPC advised that:
The government took the view that this was a scheme which would
directly benefit Indigenous people. The Aboriginals Benefit Account is set up
for that purpose... [OIPC explained the funding arrangements for the ABA]
Under the land rights act the equivalent amount [of mining royalties] to what
has been received generally gets paid by the government into the Aboriginals
Benefit Account. That is done by way of an appropriation that gets covered off
in the portfolio budget statements in the process going through parliament. The
Australian government takes the view, and I believe it has been the view of
successive Australian governments for a very long time, that, while it is
absolutely there to benefit Indigenous people and must do so, it is funding
appropriated by parliament and has to be spent like any other government money.[51]
Mining and Exploration
1.63
The amendments aimed at providing expedited and more
certain processes for mining and exploration were generally supported, though a
number of comments were received.
1.64
The CLC and NLC noted that the amendments were broadly
consistent with the jointly agreed package of reforms though there remained one
significant omission in that the amendments do not remove the current
restrictions regarding the negotiation of mining agreements. The NLC noted that
the 2003 Joint Submission had recommended that there should be no restrictions
on the content of agreements, leaving the parties to be governed by general commercial
law.[52] The CLC advised that retaining the
restrictions in the Act:
Provides a clear disincentive to enter into exploration
agreements since traditional Aboriginal owners are asked to accept significant
consequences arising from their consent without any compensatory
framework. The Land Councils strongly
believe that removing the fetters to agreements will provide traditional
landowners with a greater level of confidence and greater incentive to provide
their consent where appropriate and the net result will be greater certainty
for both land owners and miners/explorers.[53]
1.65
In response to why this particular amendment had not
been adopted, OIPC commented that:
This is something that has been in the act since 1987, when the
mining provisions were extensively revised by the then government. I think the
government just took the view that there wasn’t a good reason to change those
provisions. That is essentially the view.[54]
1.66
The MCA, while supporting the amendments to Part IV of
the Act, made some suggestions that it believed could improve the Bill.
The MCA considered that during the negotiation periods for the grant of
exploration licences or a mining interest, there should be a requirement that
the parties 'negotiate in good faith' as currently exists under the Native
Title Act. The MCA also considered that the NT Mining Minister should be
empowered with the right to revoke the consent to negotiate at the end of the
negotiation period for the terms and conditions of exploration licences, in
cases where the Land Council has not made a decision before the end of the
negotiation period, rather than have the consent deemed to be withdrawn as
currently proposed.[55]
1.67
The Traditional Owners of NE Arnhem Land were concerned
about the proposal to remove the 30 day period of notification which could
result in delays during the negotiating period in receiving advice about an
application for an exploration licence.[56]
Finalising land claims
1.68
The Bill seeks to
expedite finalisation of land claims which cannot proceed or are inappropriate
to grant. The Aboriginal Land Commissioner, the Hon
Howard Olney,
gave evidence to the Committee explaining the different outstanding land claims
that would be affected by these provisions and their geographic location. He
advised that:
The situation is that there are numerous areas of intertidal
zone that have been recommended for grant which, if the bill is passed, will no
longer be capable of being granted as the areas will be deemed to be finally
disposed of. Likewise, the outstanding claims to the intertidal zone will also
be deemed to be finally disposed of. Most of the claims involving the beds and
banks of rivers will also be dealt with in that way.[57]
1.69
The NLC was critical that the proposed termination of
non-contiguous claims to the intertidal zone or to the beds and banks of rivers
which are not adjacent to or contiguous with Aboriginal land 'is unnecessary,
unfair and unprecedented, especially given that most such claims have been
heard and are the subject of positive recommendations by the Land
Commissioner'. The NLC also considered that the proposed termination of the
claims to land vested in the NT Land Corporation is also unfair and suggested
that:
Rather than terminating the claims
there should be an amendment to enable them to be heard, or alternatively a
settlement whereby the more significant areas are scheduled as Aboriginal land.
It may be appropriate to request the Land Commissioner to assist in identifying
these areas.[58]
1.70
The NT Government, while supporting the amendments in
proposed section 67A, expressed concern that if the amendments proceed 'they
are workable and/or don't result in any unnecessary continued uncertainty or
protracted litigation'.[59] The NT
Government considered that the purpose of the original Act was to create land
capable of being lived on. They contend that 'an intertidal zone, the bed of a
river, by its very nature is not capable of being resided upon and is in our
view outside the intent of the legislation'.[60]
Conclusion
1.71
The Committee notes the Government's positive response
to feedback about some provisions in the Bill
and the subsequent amendments made in the House of Representatives. The
Minister also indicated in his second reading summing up speech in the House a
willingness to consider further amendments to the Bill.[61]
1.72
The Committee believes that such fundamentally
important legislation should have bipartisan support with broad consensus among
stakeholders affected by the Bill. This already
exists in relation to many of the provisions in the Bill.
However, it is apparent from this inquiry that there remain concerns over a
number of issues which require further negotiation and clarification with the
affected communities, traditional owners, Land Councils and the NT Government.
1.73
The Committee acknowledges the comments in relation to
the leasing provisions that this legislation puts in place a structure or
framework that may not operate immediately and will develop over ensuing years.
1.74
Had the timeframe for this inquiry been more generous,
the Committee may well have had the ability to explore certain amendments to
the Bill. However, the Committee considers that
rather than delaying the introduction of the many provisions which have wide
agreement, the Government should commit to further negotiations and
dissemination of information on those provisions which have not yet been the
subject of the broad processes that the other provisions have been subjected
to.
Recommendation
1.75
The Committee reports to the Senate that it has
considered the Aboriginal Land Rights (Northern Territory) Amendment Bill 2006
to the extent possible within the available time and recommends that the Bill
proceed subject to the amendments foreshadowed by the Minister and a commitment
by the Government to undertake further ongoing negotiations and dissemination
of information to the NT Government, Land Councils, traditional owners and
communities likely to be affected by this legislation.
Senator Gary Humphries
Chairman
August 2006
Navigation: Previous Page | Contents | Next Page
|
