Bills Digest no. 158 2005–06
Aboriginal Land Rights
(Northern Territory) Amendment
Bill 2006
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage
History
Aboriginal
Land Rights
(Northern Territory) Amendment Bill 2006
Date introduced: 31 May
2006
House: House of
Representatives
Portfolio: Families,
Community Services and Indigenous Affairs
Commencement: The formal
provisions commence on Royal Assent. Most items in the Schedule
commence on proclamation or six months after Royal Assent,
whichever occurs first. However, the mining provisions come into
effect on proclamation, with no default commencement provision,
because they are designed to commence at the same time as
complementary Northern Territory legislation.(1)
To amend the Aboriginal Land Rights
(Northern Territory) Act 1976 ( the ALRA )
in a variety of ways including:
- changing the rules for the establishment of new Land Councils
and dealing with Aboriginal land
- enabling the granting of 99-year township leases to NT entities
and for sub-leasing to occur
- expediting the granting of exploration licences on Aboriginal
land
- removing the statutory formula governing allocations from the
Aboriginals Benefit Account to Land Councils for their
administrative costs
- enabling certain of the Commonwealth Minister s powers under
Part IV (Mining) to be delegated to the Northern Territory Mining
Minister including the power to bring negotiations in relation to
exploration licences to an end
- disposing of certain land claims under the ALRA, and
- providing for a statutory review of Part IV (Mining).
In a 2005 lecture, Fr Frank Brennan provides a useful background
to the passage of the ALRA.(2) In 1963, the Commonwealth
excised 300 square kilometres from the Aboriginal reserve in Arnhem
Land in order to grant a bauxite mining lease to Nabalco. The
Yirrkala people of the area, with the assistance of Methodist
missionaries, sent a bark petition to Canberra asking for a
parliamentary committee to be established to hear their views
before the excision occurred and requesting that no arrangements be
entered into that would destroy their livelihood and independence.
This approach was unsuccessful and in 1968 the Yirrkala commenced
legal action.
In 1971, the Federal Court handed down its decision in
Milirrpum v. Nabalco the case that had been brought by the
Yirrkala. They had argued that, as holders of communal native
title, they owned land and minerals the subject of mining leases
granted to Nabalco. They argued that the leases and the statute
under which they were granted were unlawful and invalid. In the
Federal Court, Blackburn J recognised that the Yirrkala had a
complex and elaborate system of rules and customs constituting a
government of laws not of men .(3) However, he held that
their relationship to the land under those rules did not constitute
a property right. He also held that the common law did not
recognise communal native title. Partly in response to Blackburn J
s decision, the Labor Opposition announced in 1972 that, once in
government, it would legislate to give Aboriginal people in the
Northern Territory communal freehold ownership of their land.
In 1973, the Whitlam Labor Government appointed Mr Justice
Woodward to inquire into and report on the appropriate means to
recognise and establish the traditional rights and interests of the
Aborigines in and in relation to land, and to satisfy in other ways
the reasonable aspirations of the Aborigines to rights in or in
relation to land. (4) Justice Woodward handed down his
first report in July 1973, recommending the establishment of a
northern and a central Land Council to present him with the views
of the Northern Territory s Aboriginal people, together with expert
legal advice on the subject of land rights. Justice Woodward s
second report was presented in April 1974.
In response to the second Woodward report, an Aboriginal Land
(Northern Territory) Bill was presented to Parliament in October
1975 but lapsed when Parliament was dissolved. In June 1976, the
Coalition Government introduced an amended bill the Aboriginal Land
Rights (Northern Territory) Bill 1976. In his Second Reading Speech
Ian Viner MP, then Minister for Aboriginal Affairs, said:
The coalition Parties policy on Aboriginal affairs
clearly acknowledges that affinity with the land is fundamental to
Aborigines sense of identity and recognises the right of Aborigines
to obtain title to lands located within the reserves in the
Northern Territory. The Bill gives effect to that policy and,
further, will provide Aborigines in the Northern Territory with the
opportunity to claim and receive title to traditional Aboriginal
land outside reserves.
the Government s proposal to recognise Aboriginal
land rights in legislation is one more expression of the Government
s commitment to liberal and progressive reform.
The Australia we, as a Government, look to is one
in which there is diversity and choice, because it is in diversity
that people can pursue the lives they want in ways that they
determine. Securing land rights to Aborigines in the Northern
Territory is a significant expression of this objective.
(5)
The 1976 Act vested Aboriginal reserves, the Hermannsburg and
Santa Teresa missions in Central Australia and the Delissaville
area near Darwin in Land Trusts holding title on behalf of the
traditional owners. Since then, land grants either through the land
claims process before an Aboriginal Land Commissioner or via
parliamentary amendment to the ALRA following a negotiated
agreement settling a land claim have added considerably to the
amount of Aboriginal land in the Northern Territory. As at 28 June
2006, it is anticipated that there will be 593,942.75 km2 of ALRA
land in the Northern Territory.(6) This equates to about
44% of the Northern Territory, with a further 10% being subject to
claim.(7)
As stated above, title to land granted under the ALRA is held by
a Land Trust on behalf of the traditional owners. Title is
inalienable and equivalent to freehold title but is held
communally, reflecting the nature of Aboriginal land ownership. The
ALRA also provides for Land Councils who represent traditional
owners and negotiate with developers on their behalf; enables
traditional owners to exercise a veto over exploration on their
land; provides that royalty equivalents from mining on Aboriginal
land are paid into an Aboriginals Benefit Account ( ABA ) and then
distributed to Land Councils and others according to a statutory
formula; and requires anyone wishing to enter Aboriginal land to
obtain a permit from the relevant Land Council.(8)
Initially, there were two Land Councils the Northern Land Council
and the Central Land Council. Two smaller Land Councils were
subsequently established the Tiwi Land Council and the Anindilyakwa
Land Council. A 1987 amendment to the ALRA prevents the Aboriginal
Land Commissioner from dealing with claims lodged after 5 June
1997. However, there are a number of land claims still under
consideration or not disposed of.
The ALRA was followed in the 1980s and early 1990s by other
state-based land rights legislation, by Aboriginal heritage
legislation (Commonwealth and State), by joint management
legislation and by legislation setting up land acquisitions
programs in various jurisdictions. In 1992, the High Court s
decision Mabo [No. 2] held that the common law
recognises that native title to land can survive the acquisition of
sovereignty by a colonising power.(9) In response to
that decision, the Native Title Act 1993 recognised and
protected native title rights, established a system for the
adjudication of native title claims and provided a right to
negotiate over future acts on native title land.
Throughout this period the ALRA was reviewed on a number of
occasions,(10) but the most significant review started
in October 1997 when the Commonwealth appointed barrister John
Reeves to examine the overall effectiveness of the legislation, the
operation of its exploration, mining and royalties provisions, the
operation of the Aboriginal Benefits Trust Account and the future
role and structure of the Land Councils.
In August 1998, the Reeves report The
Aboriginal Land Rights Act (Northern Territory) 1976, Building on
Land Rights for the Next Generation was tabled in the
Senate. Reeves concluded that the ALRA has been very effective in
granting traditional Aboriginal land in the Northern Territory and
that the benefits of the Land Rights Act have greatly exceeded
their costs for Aboriginal Territorians. (11) However,
he made many recommendations for change, including:
- the establishment of a new central body, the Northern Territory
Aboriginal Council (with members appointed by the Northern
Territory and Commonwealth) to replace the Northern and Central
Land Councils
- the formation of a system of 18 Regional Land Councils to make
all decisions in relation to Aboriginal lands at the regional
level
- the removal of the permit system to enter Aboriginal land and
the application instead of the Northern Territory s trespass laws,
and
- giving the Northern Territory the power to compulsorily acquire
Aboriginal land for public purposes.
In December 1998, the Minister for Aboriginal and Torres Strait
Islander Affairs referred the Reeves Report to the House of
Representatives Standing Committee on Aboriginal and Torres Strait
Islander Affairs (HORSCATSIA). HORSCATSIA released its
report in August 1999. Though concurring with some of Reeve s
findings, it did not fully endorse Reeves recommendations.
In 2002, the Federal Government provided the Northern Territory
Government with an options paper Reform of the
Aboriginal Land Rights (Northern
Territory) Act 1976. The Northern Territory
Government and the Land Councils together produced a response in
June 2003 in their Detailed Joint Submission to the
Commonwealth - Workability Reforms of the Aboriginal Land Rights
(Northern Territory) Act 1976 (ALRA).(12)
The Bill provides for the creation of new Land Councils by a 55%
vote of Aboriginal people in any qualifying areas and for the
removal of the guarantee to Land Councils of 40% of annual ABA
revenue reflecting some of the spirit of the Reeves report.
Reeves concluded that monies received under the Act (ie mining
royalty equivalents paid into what is now the ABA) had largely been
dissipated in Land Council administrative costs and cash payments
to individual Aborigines in particular areas of the Territory.
(13) He suggested that accountability in the Land
Councils administration of these funds was often poor and also
referred to the development of a strident, oppositional political
culture in the Northern Territory between the two large Land
Councils and the NT Government.(14) He proposed reforms
to the financial framework of the legislation, recommending its
replacement by discretionary allocations determined by a new
statutory authority the Northern Territory Aboriginal Council
(NTAC). As stated above, he recommended dismantling the two large
mainland Land Councils and establishing 18 regional Land Councils.
He also recommended that mining royalties only be distributed in
accordance with a statement of purpose, and then only through the
mediation of the new NTAC.
The HORSCATSIA report also recommended some changes to the Land
Council system. It recommended that Aboriginal landowners be able
to opt out of Land Council representation. It also proposed that
new Land Councils be established with the support of at least 60%
of Aboriginal people living in the area and the informed consent of
relevant traditional owners; that mining royalties only be
distributed in accordance with a statement of purposes; and that
more attention be paid to directing funds to Aboriginal people in
areas affected by mining. However, HORSCATSIA did not share Reeves
belief that the ALRA should primarily be a vehicle for Aboriginal
economic advancement. Further, it rejected Reeves recommendation
for the establishment of 18 autonomous Regional Land Councils to
replace existing Land Councils.
Since the Reeves report another significant report has been less
critical of the Land Councils. The Australian National Audit Office
(ANAO) report on
Northern Territory Land Councils and the Aboriginals Benefit
Account found that all five agencies (ATSIC and the 4
Northern Territory Land Councils) could improve their
effectiveness, performance monitoring, governance arrangements and
communication with stakeholders. It concluded that there was a need
for the Land Councils to place greater emphasis on outcomes,
outputs and cost effectiveness, rather than simply reporting on the
level of inputs. However, it found no evidence of financial
mismanagement.
In their June 2003 Joint Submission to the Commonwealth, the
Northern Territory Government and the Land Councils recommended
that no change be made to the distribution formula but that:
subject to the implementation of the ANAO
recommendations, that adjustments be made to the Land Council
budgets to ensure they are adequately resourced to carry out their
statutory functions.(15)
The Joint Submission also recommended that proposals for new
Land Councils should require the consent of a substantial majority
of adult Aboriginal people living in the area, the traditional
owners and other Aboriginals with traditional interests in the
area.(16)
The Bill changes the requirements for the establishment of new
Land Councils and contains delegation provisions including
provision for Ministerial override where a Land Council has refused
to delegate its powers. It also removes the existing funding
formula for Land Councils and makes funding decisions the
responsibility of the Minister.
The ALRA enables interests or estates in land to be granted for
residential, business and other purposes to Aboriginal people and
to others with Land Council consent and, additionally, in some
circumstances with the consent of the Minister. Nonetheless, the
issue of private ownership on Indigenous communal land has been
discussed for some years. In his review, Reeves remarked:
At present, all houses and other buildings (with
certain exceptions specified in the Act) are owned by the Land
Trust that holds the title to the land. During the course of the
Review a number of persons proposed that the residents of
Aboriginal communities on Aboriginal land should be given the
opportunity to sub-lease their house, or land within the community
for business purposes.
In their oral submission to the Review, members of
the Ngukurr community in South East Arnhem Land expressed the
desire to be able to own their houses at Ngukurr. One speaker felt
that Aboriginal people would be proud of their houses if they owned
them. Assuming that could occur, home ownership on Aboriginal
communities might represent part of the solution to the very
serious housing problems on Aboriginal communities (see Appendix
F).
The town of Nhulunbuy is situated on Aboriginal
land. However, the residents of the town are able to sub-lease
their houses from the corporation that holds the head lease to the
township. The residents are able to sell their sub-lease and obtain
finance to purchase a sub lease. This system is similar to the
leasehold system that operated in the Northern Territory prior to
the introduction of freehold title in the early 1980s.
I have already recommended (above) that all
Aboriginal communities should be afforded the opportunity to obtain
secure title to the land upon which their community is situated.
Taking into account the submissions referred to above, the ability
of the Community Council, or other body, if it wished, to sub-lease
its land for housing or business purposes, would be a sensible
refinement of this arrangement. I therefore recommend
it.(17)
In late 2004, the issue of private as against communal ownership
of Aboriginal land was raised by Warren Mundine, a member of the
National Indigenous Council (a Government appointed
body).(18) Mr Mundine said:
We need to move away from communal land ownership
and non-profit community businesses and take up home ownership,
economic land development and profit-making
businesses.(19)
This call was taken up by the Government, with the Prime
Minister stating in April 2005:
I believe there is a case for reviewing the whole
issue of Aboriginal land title, in the sense of looking towards
private recognition. I certainly believe that all Australians
should be able to aspire to owning their own home and having their
own business. Having the title to something is the key to your
sense of individuality; it s the key to your capacity to achieve,
and to care for your family and I don t believe that indigenous
Australians should be treated any differently in this
respect.(20)
In June 2006, the National Indigenous Council endorsed the
Indigenous Land Tenure Principles and presented them to the
Government. While acknowledging that communal interest in land is
fundamental to Indigenous culture and should be inalienable, the
Council considered that individuals and families [should be able]
to acquire and exercise a personal interest in those lands, whether
for the purposes of home ownership or business development.
Further, it said, the consent of traditional owners should not be
unreasonably withheld to requests for individual leasehold
interests and that involuntary measures should not be used except
as a last resort. (21)
A number of Indigenous leaders have criticised these proposals.
Former Social Justice Commissioner, Professor Mick Dodson, and
former Northern Land Council Chairperson, Galarrwuy Yunipingu, took
the view that such proposals are the first step in trying to remove
communal ownership.(22) Noel Pearson has commented:
The concern from the indigenous community that I m
hearing is that the legitimate issue of home ownership might be
used as a Trojan horse for a reallocation of land rights a taking
of rights away from Aboriginal people.(23)
In his Native Title Report 2005, Aboriginal and Torres
Strait Islander Social Justice Commissioner, Tom Calma pointed to
existing leasing provisions in statutes like the ALRA and
commented:
As a consequence, it is not necessary to put the
communal tenure of Indigenous land at risk as the NIC Principles
propose.
Furthermore, both the United States of America and
New Zealand had made significant attempts to convert Indigenous
customary land to individual freehold title, and recently both
countries have taken steps to overturn this approach due to adverse
impacts. The major adverse impacts have been:
Significant loss of land by the Indigenous
peoples;
Complex succession problems that is, who inherits
these land titles upon the death of the owner in relation to both
freehold and leasehold interests;
Creation of smaller and smaller blocks
(partitioning) as the land is divided amongst each successive
generation; and
The constant tension between communal cultural
values with the rights granted under individual
titles.(24)
Mr Calma added:
The NIC Principles are premised on the idea that
private land ownership will lead to economic development because
the land owners will have an economic interest in seeing land value
improved. The NIC Principles also assume that communal land
ownership will not lead to development, and the interests of the
land will not be protected.
International experience demonstrates that
individual title does not lead to improved economic
outcomes.(25)
In a 2005 Oxfam Australia report, an Australian National
University team found no evidence to suggest that individual land
ownership is either necessary or sufficient to increase economic
development or housing construction. (26) They
concluded:
The evidence does not support the notion that
private individual ownership of low-value land in remote settings
can be the driving force in addressing housing or other needs. The
principal issues for any new policy framework continue to be
contemporary Indigenous poverty, and the historic lack of services,
housing and associated infrastructure. The notion that land rights
reform can be the main driver for economic development should be
reconsidered in light of the legacy of disadvantage, cultural
difference and structural factors faced by these communities. Such
debates must also recognise that there are fundamental Indigenous
cultural reasons for attachment to land, irrespective of its
commercial potential, as well as unique and diverse Indigenous
perspectives on what development is appropriate for their
communities and country.
The report concludes that very significant
structural issues must be addressed to encourage economic
development and address housing needs, including the remoteness of
communities from mainstream markets; relatively low populations and
population densities; the need for greater investment in education
and vocational skills; poor infrastructure; and the generally
economically marginal nature of most Aboriginal
lands.(27)
A contrary view has been taken by others including researchers
at the Centre for Independent Studies. In A New Deal for
Aborigines and Torres Strait Islanders in Remote Communities,
Professor Helen Hughes and Jenness Warin argue:
Communal ownership of land, royalties and other
resources is the principal cause of the lack of economic
development in remote areas. Commonwealth, State and Territory
legislative and regulatory frameworks have to make it possible for
Aborigines and Torres Strait Islanders who choose to do so to
become individual land owners and entrepreneurs. Royalties from
mining, fishing, telecommunications and other sources must become
transparent and flow to individuals. An end to communal ownership
and asset management would cut into the power of councils,
associations and their big men , making income distribution more
equitable and greatly reducing the need for bargaining and
political power plays that make life miserable and lead to
incessant violence. Investment in land and other assets has to
become viable. With individual property rights, land could be used
for collateral to borrow for business, allowing the application of
capital and technology to create productive enterprises with
employment capacity. Private property rights in land are essential
to attracting outside investment that is a pre-requisite to a major
expansion in employment opportunities.(28)
On 30 May 2005, the Prime Minister said that his Government
was:
Committed to protecting the rights of communal
ownership And that the Government does not seek to wind back or
undermine native title or land rights. Rather we want to add
opportunities for families and communities to build economic
independence and wealth through use of their communal land
assets.(29)
On 5 October 2005 the Federal Government announced new
initiatives to support Indigenous home ownership.(30)
According to the Government s press release, the three initiatives
(expected to commence in 2005-06) were:
- an initial allocation of a $7.3 million addition to the
successful Home Ownership Programme run by Indigenous Business
Australia (IBA) for a new
programme targeted to Indigenous Australians living in
Aboriginal communities. Under this program people can borrow money
from the IBA at concessional interest rates.(31)
- an initial allocation of up to $5 million from the Community
Housing and Infrastructure Programme to reward good renters with
the opportunity to buy the community house they have been living in
at a reduced price.
- use of the Community Development Employment Projects (CDEP)
programme to start building houses, support home maintenance, and
to maximise employment and training opportunities.
The Bill seeks to promote individual property rights on
Aboriginal land by enabling an NT entity (such as the Northern
Territory Government or a statutory authority established by it) to
be granted a 99-year township lease. Long-term subleases can then
be granted to Aboriginal people and others by the NT entity without
each lease being negotiated with the relevant Land Council. The
Government takes the view that this will make it significantly
easier for individuals to own their own homes and establish
businesses (32) and points to the availability of
low-interest home loans under its Home Ownership Indigenous Land
Program. The Bill also reforms section 19 of the ALRA, which
relates to dealing in Aboriginal land.
Originally, the ALRA provided that both exploration and mining
on Aboriginal land needed the approval of the traditional owners.
However, a 1987 amendment to the ALRA removed the second veto that
could block mining once an exploration licence had been
granted.(33) As the ALRA stands, once consent has been
given to exploration it cannot be withheld from mining.
Some have been critical of the mining regime in the ALRA. The
Reeves review claimed that mining transaction costs in the Northern
Territory had:
Undoubtedly led to a reduction in the rate of
exploration and, therefore, the potential development of new
mines.(34)
Reeves recommended deregulating mining to the point where small
regional Land Councils could reach agreements with mining companies
without government or big Land Council involvement, and then
present the agreement to the Northern Territory Government to issue
the relevant tenement.
The HORSCATSIA report, although making several recommendations
intended to facilitate the decision making process, did not call
for the same fragmentation of the present Land Councils as did
Reeves. It also referred to claim and counter-claim on the question
of whether the ALRA has impacted on mining activity in the Northern
Territory. It referred to some equivocation in the Reeves report.
On the one hand, Reeves claimed that that transaction costs had
negatively impacted on the rate of exploration and mining in the
Northern Territory. On the other hand, he said that the ALRA has
probably had a negligible impact on costs and benefits for the
mining industry. HORSCATSIA concluded:
there has been some loss of opportunity and impact
due in part to the Act s operation. Given improved goodwill,
improved leadership and a genuine commitment to develop meaningful
partnerships and work to achieve shared strategies, the Act can
continue to work well for the people of the Northern Territory.
That said, the Committee concludes that some
changes to Part IV of the Act and streamlining of the application
processes should be considered. They are needed and can assist all
parties to achieve worthwhile outcomes and an improved
future.(35)
In its submission to the House of Representatives Standing
Committee on Industry and Resources inquiry into impediments to
increasing investment in mineral and petroleum exploration in
Australia, the Minerals Council of Australia stated that the Land
Council structure is cumbersome and causes significant delays in
the processing of applications for exploration
licences.(36) It proposed allowing Regional Councils to
ratify the decisions of traditional owners in relation to
exploration submissions. The Northern Territory Minerals Council
stated in its submission that the ALRA is responsible for a
considerable decline in exploration and subsequent development of
ore bodies in the Northern Territory.(37) It claimed
that:
No new mines have opened up on Aboriginal freehold
land, with the exception of the approval of subsequent deposits in
the Tanami region, since the inception of the Aboriginal
Land Rights Act (NT) 1976.(38)
The Central Land Council and Northern Land Council rejected this
claim, stating that several new mines have resulted from
exploration carried out under exploration licences granted under
the Land Rights Act:
The no new mines claim has a certain superficial
plausibility due to the fact that a number of these new mines use
processing facilities which existed at the time of discovery.
However, without the ore from mines discovered on exploration
licences granted under the [Aboriginal Land
Rights (Northern Territory) Act 1976]
these facilities would have been junked 15 years ago, when the
original finds ran out.(39)
In its final report,
Exploring: Australia s Future impediments to increasing investment
in minerals and petroleum exploration in Australia, the
Committee declared that it did not wish to enter a debate about the
extent of mining activity in the Northern Territory. However, it
expressed concern at the amount of time expended by companies in
obtaining exploration licences in the Northern Territory over land
subject to the provisions of the Aboriginal Land Rights
(Northern Territory) Act 1976 ; and noted that these delays
amount to a significant deterrent to minerals and petroleum
explorers and that there is a need to address negotiation time
frames and associated costs .(40) The Committee
accordingly recommended:
The Minister for Immigration and Multicultural and
Indigenous Affairs implement a simplified and accelerated process
for granting exploration licences on land granted under the
Aboriginal Land Rights (Northern
Territory) Act 1976 with a view to reducing the
economic transaction costs emanating from the existing provisions
of the Land Rights Act.(41)
The Bill seeks to improve flexibility and streamline the
exploration and mining provisions of the ALRA. As indicated
earlier, these amendments have generally been welcomed by Land
Councils.
The federal ALP has acknowledged that the Bill contains a number
of positive measures that are broadly consistent with the reforms
agreed to by the Land Councils and Northern Territory Government.
(42) It has welcomed amendments to the mining regime as
helping to facilitate economic development on Aboriginal land and
also said:
Labor is pleased that the consent of traditional
owners is still protected under the 99 year leasing scheme.
However we are keen to ensure that traditional
owners are not pressured into trading off their legal rights in
return for basic entitlements, like health clinics, housing and
schools.(43)
Additionally, the federal member for Lingiari, Warren Snowdon MP
(ALP), has noted amendments that will enable money from the
Aboriginals Benefit Account to be used to pay rent to traditional
owners who lease their land to the NT Government. Mr Snowdon is
quoted as saying that the Government is using the Aboriginals
Benefit Account as a slush fund and discriminating against
Aboriginal people by capping their rent payments. He added,
Aboriginal people pay tax like every other Australian and should
get the same benefits from that pool. (44)
The Central Land Council has welcomed some of the amendments,
especially amendments to the ALRA s mining provisions. It says that
the amendments will make mining and exploration processes more
flexible and remove time-consuming regulation. However, Central
Land Council Director, David Ross, said:
We see whole-of-community leases by the Northern
Territory Government on Aboriginal land as unnecessary, expensive
and flawed. Rent will come from the ABA (estimated at $15 million
over five years) to pay traditional owners and this could cause
significant tensions in the communities affected.
Leasing the entire community could also deprive
the traditional owners of the benefits of commercial development in
the future and runs the risk that commercial leases will be granted
to businesses that the traditional owners do not want in their
community.
There are also no guarantees that this amendment
will improve the Northern Territory Government s service delivery
record.
The delegation provisions also have some problems.
While we generally support delegating decision making to more local
groups, we do have concerns that devolving decisions about mining
and commercial enterprises could encourage corruption.
We do not support the new funding arrangements
which put the Land Council s funding at Government whim. It
significantly undermines the CLC s independence.(45)
Like the Central Land Council, the
Northern Land Council has supported amendments that improve
workability. However, it has concerns that some of the amendments
breach the Racial Discrimination Act 1975, appear to be
aimed at breaking up Land Councils by removing their financial
independence, and terminate valid land claims. The Northern Land
Council also says that it is inappropriate for community funds from
the Aboriginals Benefit Account to be used to meet the Northern
Territory Government s rental expenses.(46) Northern
Land Council Chief Executive, Norman Fry, said that:
it is wrong, and discriminatory, to provide that
traditional owners may only receive rent rather than other benefits
and that rent be capped at 5% per annum of the improved capital
value of the land.
It is also unnecessary. Fair and reasonable
outcomes will be achieved without imposing restrictions, such as
the Alice Springs to Darwin railway and the ENI Blacktip gas
processing plant near Wadeye
It is also inappropriate for community funds from
the Commonwealth Aboriginals Benefit Account to be used to meet the
NT Government s rental expenses. (47)
Following the Government s announcement of changes to the ALRA
in late 2005, Australians for Native Title and Reconciliation
(ANTaR) expressed concern about changes relating to the funding of
Land Councils and delegation of their functions and powers, the
establishment of new Land Councils and proposed leasing
provisions.(48)
Also responding to the Australian Government s announcement of
changes to the ALRA in 2005, the Northern Territory Chief Minister
said:
Commonwealth changes to leasing Aboriginal land
was in principle a step in the right direction and as a broad
policy direction could deliver lasting benefits to remote
communities.(49)
The Northern Territory Chief Minister also referred to the
Australian Government s new home loan package for Indigenous
Australians in remote communities:
The NT sees this as a practical commitment and a
good start but the reality of unemployment and the limited ability
to service mortgages needs to be taken into
account.(50)
The functions of the Senate Selection of Bills Committee include
considering Bills introduced into the Senate and recommending
whether each Bill should be referred to a Senate committee for
inquiry and report. On 13 June 2006, the Committee deferred
consideration of the Aboriginal Land Rights (Northern Territory)
Amendment Bill 2006 until its next meeting. A possible reason for
the deferral by the Committee may be concern that the Bill would be
progressed very quickly through both Chambers and was likely to
pass before a Senate committee could properly consider its
provisions.
The Explanatory Memorandum states that:
There are expected to be costs of up to $15
million over five years from 2006-07 to 2010-2011 to assist with
the establishment of the township leasing scheme. The necessary
funds will be sourced from the Aboriginals Benefit
Account.(51)
Item 1 enables the Office of Evaluation and
Audit (Indigenous Programs) (OEA(IP)) to evaluate and audit Land
Councils when requested to do so by the Minister. OEA(IP) will also
be able to evaluate and audit the operations of persons receiving
money or benefits under the ALRA.
Amendment of the Aboriginal Land
Rights (Northern Territory) Act 1976
When land is granted under the ALRA either by an amendment to
the Act or through the claims process, a Land Trust is established
by the Minister to hold that land on behalf of its traditional
owners. Land trusts do not make decisions. Rather, they act in
accordance with directions given to them by the relevant Land
Council.
Item 15 enables the Minister to establish new
Land Trusts for the purpose of holding land transferred to it by
another Land Trust.
Anindilyakwa Land Trust
As things stand, the Arnhem Land Aboriginal Land Trust holds the
Aboriginal land covered by the Anindilyakwa Land Council (Groote
Eylandt and Bickerton Island). Item 34 amends the
ALRA so that a new Land Trust, called the Anindilyakwa Land Trust,
will hold the land.
Section 14 of the ALRA provides that where the Crown or its
authorities have been occupying land granted under the ALRA, they
can continue to do so. Item 36 enables such land
to be the subject of a township lease under new section
19A (see below). Nothing in section 14 will prevent the NT
entity holding a section 19A lease from subleasing to the body
entitled to occupation (the Commonwealth, Northern Territory or an
Authority). However, if a sublease is granted, section 14 will
cease to apply to the land. The Explanatory Memorandum remarks, The
intention is that bodies entitled to occupation will move towards
getting a sublease rather than rely on the statutory rights in
section 14. (52)
Section 15 of the ALRA provides that where a section 14
occupation is not for a community purpose, the Crown must pay rent
to the Land Council at a rate fixed by the Minister having regard
to the economic value of the land. Items 37-38
provide that if land to which section 15 applies is subleased under
new section 19A, then the Crown must pay rent to
the NT entity rather than the Land Council. If there is no
sublease, then rent will also go to the NT entity as the head
lessee.
Item 46, new section 19A enables a Land Trust
to grant a lease of a township to an NT entity . The Land Trust can
only act with the consent of the Minister and on the direction of
the relevant Land Council. Before the Land Council issues a
direction, the traditional owners must have consented, any affected
Aboriginal community must have been consulted and the terms and
conditions of the proposed lease must be reasonable. Failure to
comply with these requirements does not invalidate the grant,
unless the grantee obtained the Land Council s agreement
fraudulently. In general, the term of a township lease is 99
years.
The expression township is widely defined. Townships are either
prescribed types of land in relation to all Land Trusts (ie generic
descriptions of land) or prescribed types of land relating to the
applicable Land Trust only (new section 3AB,
inserted by item 13).
An NT entity is a person (including a body corporate or body
politic) who is appointed by the Chief Minister of the Northern
Territory. A media release issued by the Northern Territory Chief
Minister in October 2005 stated that An independent statutory
authority with a board including an independent Chair and
representation from Land Councils and both the Northern Territory
and Australian Governments is the favoured structure at this stage.
(53)
If an NT entity is the Northern Territory, a Minister of the
Northern Territory can enter into a lease for a township and
exercise all the powers of a lessee (including the power to
sublease) (item 8 and new section
3AA, inserted by item 13) New
subsection 19A(14) provides that a lease must not contain
any provision requiring the consent of any person to the granting
of a sublease of the lease.
A section 19A lease must provide for the payment of annual rent
capped at 5% of the improved capital value of the land (new
subsection 19A(6)). Leases cannot be transferred, except
to another NT entity with the approval of the Minister (new
subsection 19A(8)). New subsection
19A(10) preserves existing rights, titles and interests in
a township once it is leased.
Land that becomes Aboriginal land under the ALRA is granted as
inalienable, communal freehold title. However, section 19 of the
ALRA enables Aboriginal land to be surrendered to the Crown by a
Land Trust. Section 19 also enables Land Trusts to deal with
Aboriginal land in other ways. At present, with the written consent
of the Minister and at the direction of the relevant Land Council,
a Land Trust can grant an estate or interest in land (such as a
lease) to an Aboriginal person, an Aboriginal Council or an
Incorporated Aboriginal Association for:
- residential purposes
- business purposes, or
- community purposes (subsection 19(2)).
Ministerial consent is not required in relation
to business or community purposes if the term of the grant does not
exceed 21 years (subsection 19(7)).
Once again, with Ministerial consent and at the
direction of the relevant Land Council, a Land Trust can grant an
estate or interest in land to the Commonwealth or the Northern
Territory for any public purpose or to a mission for any mission
purpose (subsection 19(3)). It can also grant an estate or interest
in land to any person for any purpose (subsection 19(4A)). In these
cases, Ministerial consent is not required if the term of the grant
does not exceed 10 years (subsection 19(7)).
Item 43 repeals subsection
19(7). The effect is that Ministerial consent will not be required
in any of the circumstances mentioned above if the term of the
grant does not exceed 40 years.
Item 45 provides that if an
estate or interest in land is granted under section 19, then the
Land Trust, at the direction of the relevant Land Council, can
authorise persons or classes of person to enter or remain on that
land for a specified purpose. This amendment is tied to
item 200, which amends section 70 the net effect
being that a person acting in accordance with such an authorisation
will not be guilty of the offence of entering or remaining on
Aboriginal land.
Aboriginal Land Councils
The functions of Land Councils include ascertaining and
representing the views of traditional owners, protecting their
interests and negotiating on their behalf with people who want to
obtain an interest or estate in Aboriginal land. In performing
their functions, Land Councils must act in accordance with the
directions of traditional owners and must obtain their informed
consent before taking action.
Item 51 repeals existing subsections 21(3)-(6)
of the ALRA, dealing with the establishment of new Land Councils.
At present, the Minister can establish a new Land Council if he or
she is satisfied that a substantial majority of adult Aboriginals
living in an area covered wholly or partly by a Land Council is in
favour of setting up a new Land Council and that the area is an
appropriate area for the operation of a new Land Council. The two
smaller Land Councils the Tiwi Land Council and the Anindilyakwa
Land Council were established under these provisions.
Item 52 substitutes new provisions for the
establishment of new Land Councils. It provides that an Aboriginal
group or body can ask the Minister to establish a new Land Council.
The application must set out boundaries, a name for the proposed
Land Council, an estimate of the number of Aboriginal people living
in the area, and proposed arrangements for consulting and
representing Aboriginal people living in the area. The Minister may
support the application and ask the Australian Electoral Commission
to hold a vote. The Minister may also refuse the application. The
Minister cannot support an application unless he or she is
satisfied that the area is an appropriate area for the
establishment of a new Land Council and that the proposed Land
Council will satisfactorily perform the functions of a Land
Council.
If a vote is held, then any adult Aboriginal whose name is on
the Commonwealth Electoral Roll and whose place of living is in the
qualifying area or who is entitled to vote under rules for
holding the vote, can vote. The Minister may establish a new Land
Council if at least 55% of the formal votes are cast in favour of
the proposal.
These amendments can be contrasted with HORSCATSIA s
recommendations. HORSCATSIA recommended the establishment of new
Land Councils should require the support at least 60% of Aboriginal
people living in the area and the informed consent of appropriate
traditional owners.(54) HORSCATSIA also recommended that
a working party consisting of relevant stakeholders should be
established to define the boundaries of a proposed new Land
Council; a discussion paper should be prepared for the Minister
summarising the arguments for and against, the costs involved in
establishing and operating a new Land Council and economic
viability indicators; and that the working party inform affected
Aboriginal people of the implications of the proposal.
Section 23 of the ALRA sets out the functions of a Land Council.
Item 56 inserts new section 23AA
which sets out how those functions are to be performed. New
section 23AA provides that a Land Council must determine
priorities and must give priority to the protection of traditional
owners and other Aboriginal people interested in Aboriginal land in
the Land Council s area. Additionally, Land Councils must perform
their functions in a timely manner and maintain organisational
structures and processes that promote representation and
consultation, and which operate fairly.
Item 59 gives Land Councils a new power that
is, to provide administrative and other assistance to an
Incorporated Aboriginal Association. Land Councils will be
empowered to charge a fee for such services (see item 74,
new section 33A).
Item 60 amends subsection 27(3) of the ALRA.
The effect of the amendment is that Land Councils must obtain
Ministerial approval for contracts whose value exceeds $1,000,000
or a higher amount (if prescribed). Currently, approval must be
obtained for contracts exceeding $100,000 in value.
Item 61 amends Land Councils powers of
delegation. In particular, the amendment will enable Land Councils
to delegate decisions about exploration and mining. Item
65 inserts new section 28A into the ALRA,
thereby enabling a body corporate established under the
Aboriginal Councils and Associations Act 1976 to apply to
a Land Council to have the Land Council delegate functions or
powers to it. Such delegations can be revoked or varied by the Land
Council (new section 28B). A Land Council cannot
perform functions or exercise powers that it has delegated
(new section 28D). A body corporate that has a
delegation from a Land Council must advise the Land Council of any
decision it makes under that delegation (new section
28F).
If a Land Council refuses to delegate its powers or functions,
the Minister can agree to the delegation if satisfied that the
delegate will be able to satisfactorily perform the functions or
exercise the powers (new section 28C). However,
there appears to be no provision in this case for reporting to the
Land Council by the delegate or any prohibition on a Land Council
exercising delegated functions or powers.
Item 66 adds eligibility requirements to
section 29 of the ALRA, the section that deals with membership of
Land Councils. The amendments provide that a person cannot become
or remain a member of a Land Council if they have been convicted
of:
- an offence against Australian law and sentenced to 12 months or
more in prison
- an offence against Australian law involving dishonesty and
sentenced to 3 months or more in prison
- 2 or more offences against Australian law and sentenced to a
total of 12 months or more in prison; or
- 2 or more offences against Australian law involving dishonesty
and sentenced to a total of 3 or more months imprisonment.
If the person serves a term of imprisonment, then the period of
ineligibility is 2 years starting on the day they are released. If
they do not serve a term of imprisonment (for instance, if their
sentence is suspended), the period of ineligibility is 2 years
beginning on the day of their conviction.
Item 67 requires Land Council members to make
written disclosures of their direct and indirect pecuniary
interests. These interests must be recorded in a register kept by
the Council.
Item 70 amends section 29A of the ALRA, the
section that enables Land Councils to appoint committees to assist
them in performing their functions. Item 70
provides that committees established by Land Councils must have at
least 7 members or such other number as is prescribed. Committees
must follow meeting rules made by the Land Council, keep minutes of
their meetings and allow the Land Council, traditional owners or
Aboriginal people in the area to inspect the rules and the minutes.
However, access cannot be given to any part of the minutes that
contains excludable matter. Excludable matter includes matter
relating to a Land Council staff member, personal hardship, trade
secrets, confidential information, the security of a Land Council
or its staff, or sacred information (item 4).
Item 71 provides that a Land Council must make
written meeting rules for itself and give a copy to the Minister
for approval. Rules must be available for inspection by the
traditional owners and Aboriginal people living in the area.
Item 73 provides that Land Councils must keep
minutes of their meetings and, with the exception of excludable
matter , allow them to be inspected by the traditional owners and
any Aboriginal person living in the area.
Item 74 enables Land Councils to charge fees
for their services, so long as the fees do not amount to taxation.
Costs incurred by Land Councils in providing fees for service will
be included in the definition of administrative costs (item
80).
Item 77 amends section 34 of the ALRA, the
section that requires Land Councils to prepare estimates of their
expenditure for the Minister. The amendment provides that, when it
submits estimates, a Land Council must also notify the Minister of
the total amount of fees and other income it expects to receive.
The Minister must take these amounts into account when deciding
what amounts are to be debited from the Aboriginals Benefit Reserve
see items 173 and 174.
Items 78 and 75 enable Land Councils to obtain
funds for capital costs as well as administrative costs and require
them to include capital costs as well as administrative costs in
the estimates they prepare for the Minister.
Item 102 adds to the annual reporting
requirements of Land Councils. For instance, annual reports will be
required to specify the total fees for services received during the
financial year, details of section 35 determinations and amounts
paid by the Council under section 35 determinations, details of
amounts held in trust, details of section 28 delegations, details
of section 29A committees, and details of consultants engaged.
Item 103 empowers the Minister to give written
directions to a Land Council about its finances. The Land Council
must comply with such directions.
The ALRA contains protections for Aboriginal people in relation
to exploration and mining on Aboriginal land. They can consent or
refuse consent to exploration, subject to a national interest
override. However, once consent has been given to exploration, they
cannot refuse consent to mining.
Under the Mining Act (NT), a company wanting to obtain
an exploration licence on Aboriginal land must first obtain a
consent to negotiate from the Northern Territory Minister for Mines
and Energy. The ALRA then provides that exploration licences cannot
be granted in respect of Aboriginal land unless the consents of the
relevant Land Council and the Commonwealth Minister are obtained
(section 40). In general, a detailed, written application must be
sent to the Land Council by the company within 3 months after it
receives a consent to negotiate from the Northern Territory
Minister for Mines and Energy (section 41). The Land Council must
identify the traditional owners of the area and organise a meeting
between them and the applicant. The applicant can also attend
subsequent meetings with the consent of the traditional owners
(section 42). The ALRA also establishes negotiation timeframes.
Items 106-107 amend section 41 to provide that
a person applying for an exploration licence on Aboriginal land
must make the application within 3 months of the Northern Territory
Mining Minister consenting. In some circumstances, this period can
be extended for a further 3 months.
At present, subsection 42(7) of the ALRA provides that a Land
Council will be deemed to have given consent to an exploration
licence application if, at the end of the negotiating period, it
has neither consented or refused consent to the grant of the
licence. Item 115 removes this provision.
Item 119 amends subsection 42(13) of the ALRA
the subsection that defines the negotiating period in relation to
exploration licences. At present, the negotiating period is the
longest of the following:
- 12 months after the Land Council receives the application
- a longer period if this is agreed to by the applicant and the
Land Council
- a longer period determined by the Minister, or
- the period of extension under subsection 42(15).
In other words, the period is open-ended. The new negotiating
period will be a minimum of 22 months from the date of the
application. This period can be extended by 2 years if the parties
agree, with possible further extensions of 12 months at a time.
However, in relation to extensions, the Minister will be able to
step in and determine that specified day is the end of the
negotiating period. This must be a day at least 12 months after the
date of the determination.
As indicated above, the ALRA provides that an exploration
licence cannot be granted in relation to Aboriginal land unless
both the Minister and the Land Council have agreed or the
Governor-General (acting on the advice of the Government) has
proclaimed that the national interest requires the licence to be
granted. Section 43 of the ALRA provides that in the case of a
national interest override, the Land Council and the applicant must
try to agree on the terms and conditions to which the licence will
be subject. The Land Council must first consult the traditional
owners and any other Aboriginal people who may be affected by the
grant of the licence.
Item 121 amends section 43. It provides that in
order to facilitate consultation between the Land Council and the
traditional owners, the Land Council must convene meetings and give
reasonable notice to the applicant and the Minister before each
meeting. Representatives of the applicant may attend so much of the
first meeting as enables them to outline their views of the terms
and conditions. They may attend other meetings unless the
traditional Aboriginal owners as a group decide against this and
notify them. Similar attendance rules apply to the Minister s
representative. The negotiating period in the case of national
interest Proclamations is 180 days after the Proclamation takes
effect. A longer negotiating period operates if agreed between the
Land Council and the applicant or if the Minister agrees
in writing.
Items 122-124 provide that any arbitration
under section 42 will be in accordance with the Commercial
Arbitration Act (NT) rather than under section 44 of the ALRA. It
appears that the section 44 arbitration provisions have never been
used.
Section 45 of the ALRA provides that a mining interest cannot be
granted to an intending miner unless the Land Council and the
intending miner have entered into an agreement under section 46 and
the Minister has consented. Items 5, 6 and
126 make substantial amendments to this provision.
Their effect is that no further agreement between the Land Council
and the miner is needed if the terms and conditions of renewal were
included in the original mining lease, licence etc. Further,
new subsection 45(3), inserted by item
126 provides that the Minister can consent to a
renewal when giving consent to the original
lease, licence etc.
Item 128 amends section 46 of the ALRA the
section that deals with negotiations for the grant of a mining
interest on Aboriginal land. Subsection 46(6), which enables a
representative of the Minister to attend the first negotiation
meeting and, with the consent of the traditional owners any
subsequent meeting, is repealed. It is replaced with a provision
allowing the Minister to authorise a person or class of person to
attend the first meeting and, with the consent of the traditional
owners, any subsequent meeting.
If a Land Council refuses to consent to the grant of an
exploration licence in relation to particular land, the ALRA places
restrictions on further applications being made within certain
periods (section 48). Item 133 amends section 48
to distinguish between applications for petroleum exploration
licences and applications for other exploration licences. The
effect is that if an application for a petroleum licence is
refused, this will not prevent an application for a licence for
minerals other than petroleum being made, and vice versa. Section
48 also enables a Land Council to ask the Minister to authorise a
further application not less than 2 years after its original
refusal to grant an exploration licence. Item 136
will remove the 2 year limitation and allow a Land Council to
approach the Minister at any time after it refused the initial
application.
Section 48A of the ALRA provides that a Land Council may enter
into an agreement with a person who has applied for or who holds an
exploration licence in relation to land that is subject to a land
claim. Item 146 amends section 48A to enable
agreements to be made with a person who wishes to renew a mining
interest.
Subsection 48J(1) of the ALRA creates an offence of making
payments or gifts in connection with the granting of an exploration
licence or a mining interest in Aboriginal land. Item
159 ensures that fees for services paid to Land Councils
under new section 33A will not be caught by the
offence.
Items 160 and 161 replace references to
monetary penalties with references to penalty units in subsections
48J(2) and 48J(4) of the ALRA.
Aboriginal Land Commissioners
The functions of Aboriginal Land Commissioners include hearing
land claims under the ALRA, reporting their findings and making
recommendations for the granting of land. Subsection 52(3) of the
ALRA provides for a compulsory retirement age for Land
Commissioners of 70 years. Item 165 repeals this
provision. Item 166 allows for former judges to be
appointed as Land Commissioners. At present, eligibility is
restricted to serving judges.
Sections 54-54B of the ALRA contain offence provisions relating
to failure to comply with requirements of the Land Commissioner for
instance, failure to answer questions or produce documents.
Items 168-170 change the current monetary
penalties in these sections to penalty units.
In the 1950s, an Aboriginal Benefit Trust Fund was first
established as a result of pressure to allow bauxite mining on
Aboriginal reserves in the Northern Territory land that was
reserved for the sole use of Aboriginal people and on which mining
had been, until then, prevented. The purpose of statutory royalties
was compensatory.
The equivalent of royalties received by the Commonwealth and the
Northern Territory in respect of minerals produced on Aboriginal
land is now paid into a statutory trust fund called the Aboriginals
Benefit Account ( ABA ). Funds provided from the ABA are used for
the benefit of Aboriginal people in the Northern Territory. The
Northern Land Council describes them as being designed to
compensate traditional owners whose lands are affected by mining;
to compensate more widely for loss of lands and for the
disadvantage experienced by Aboriginal people; and to ensure that
Land Councils, the representatives of Aboriginal people, can
function effectively and independently. In the Northern Land
Council s view, ABA funds are not designed to replace normal
Government funding of services for Aboriginal people.
Under section 64 of the ALRA, royalty equivalents are
distributed from the ABA to Land Councils and Aboriginal people in
the Northern Territory in the following way:
- 40 per cent is earmarked for Land Council administrative costs
and is distributed to the four existing Land Councils in accordance
with their respective populations of Aboriginal people
- 30 per cent is given to Land Councils for distribution to
Aboriginal organisations in areas affected by mining, and
- the remainder is applied at the discretion of the Minister and
can be used for grants for the benefit of Aboriginal people in the
Northern Territory; extra payments to Land Councils; administration
of the ABA; or increasing the equity of the
ABA.(55)
Items 173 and 174 remove the present
requirement in section 64 of the ALRA that 40% of payments from the
ABA goes to Land Councils for their administrative costs. Instead,
the Minister will determine what will be paid having regard to Land
Council estimates, their expected income from fees and other
services, and any existing surplus.
Item 177 enables the ABA to be used for the
acquisition or administration of leases granted to NT entities or
for the payment of rent under leases granted to NT entities under
new section 19A. Thus, for example, rents payable
to traditional owners who agree to lease their land under
new section 19A will come, at Ministerial
direction, not from the lessee (eg the NT Government) but from the
ABA.
Item 186 makes changes to the composition of
the Reserve Advisory Committee. This Committee has the function of
advising the Minister about the payment of grants mentioned above.
At present, the Committee consists of a Chair appointed by the
Minister and members elected by each Land Council. All must be
Aboriginal people. Item 186 enables the Minister
to appoint 1 or 2 additional people to the Committee who have
expertise in land management or business or financial
management.
Section 67A sets out the circumstances in which a land claim
will be disposed of. Claims will be disposed of when a claim is
withdrawn; the Governor-General executes a deed granting the land
to the traditional owners; the Commissioner advises the Minister
that there are no traditional owners; or where, despite a finding
that there are traditional owners, the Minister does not recommend
that a land grant be made by the
Governor-General.(56)
The issue of land claims over stock routes and stock reserves
has been the subject of negotiation between the Commonwealth and
Northern Territory Governments for many years. In 1995, an
agreement was reached between the Commonwealth and Northern
Territory Governments in which the Commonwealth agreed to amend the
ALRA so that claims over stock routes and stock reserves that could
not be heard by the Land Commissioner would be disposed of. In
return, the Northern Territory agreed to amend its
Pastoral Land Act 1992 to expedite the
granting of community living areas on pastoral properties to
Aboriginal people.(57) However, Commonwealth Bills
incorporating this undertaking were never passed by Parliament.
Other vexed issues relate to claims over the inter-tidal zone
not adjoining Aboriginal land, and claims relating to the beds and
banks of rivers and creeks that form a boundary between Aboriginal
and non-Aboriginal land or where rivers and creeks flow through
areas that are not Aboriginal land or not claimable.
These issues were examined by the Reeves Review and by
HORSCATSIA. The Reeves Review recommended that such rivers and
creeks should not be claimable, while the HORSCATSIA recommended
that a project team consider the matter. In submissions to the
HORSCATSIA, the Northern Land Council and the Central Land Council
argued that these matters should be determined through the normal
claims process. In a media release issued on 1 June 2006, the
Northern Land Council stated that some of outstanding claims have
already been granted, or heard and recommended for grant, as
Aboriginal land provided that the interests of adjacent
stakeholders such as pastoralists are met. (58)
The Northern Territory Government has also agreed that
outstanding land claims and land claims that cannot proceed be
addressed through negotiation rather than legislative amendment.
(59)
The Government has attempted unsuccessfully in the past to amend
the ARLA to add to the circumstances in which a land claim will be
deemed to have been finally disposed of.(60) Three
grounds contained in the Bill generally reflect amendments proposed
by earlier, unsuccessful Bills. These grounds are that:
- the Land Commissioner reports that he or she is unable to make
a finding that there are traditional owners of the area
- the land was claimed on or after 5 June 1997 (when a sunset
clause took effect preventing new land claims being made under the
ALRA), or
- the claim relates to a stock route or reserve, which was lodged
after 1 March 1990 (items 191 and 192).
Item 192 also adds further grounds on which
claims will be taken to have been finally disposed of. These
are:
- where insufficient information has been provided to the Land
Commissioner, the Commissioner has requested further information
and this has not been provided within 6 months
- repeat claims where the Land Commissioner has been unable to
make the requisite findings needed for a repeat claim
- where the consent of Aboriginal people with estates or
interests in the land is required for the claim to progress and has
not been obtained
- claims to the intertidal zone; beds and banks of rivers and
creeks; and to islands in rivers and creeks, where the claimed land
is not contiguous with other claimed land or Aboriginal land,
or
- parts of a particular claim Coomalie Shire/Deepwater Area (No.
238) made by the Northern Land Council identified in new
subsection 67A(17).
The second reading speech for the Bill notes that A separate
Bill to come before the House will schedule substantial areas of
land, including a series of claims to national parks and reserves
settled between the Northern Territory Government and Land
Councils. (61)
The ALRA enables claims to made over unalienated Crown land in
the Northern Territory. After the enactment of the ALRA,
governments acted on occasion to change the status of land under
claim (ie to alienate it) in order to deprive the Aboriginal Land
Commissioner of his jurisdiction. As a result, section 67A was
inserted into the ALRA in 1987. The effect of section 67A is that
any grant of an estate or interest in land that is made after a
land claim is lodged and before the claim is disposed of, has no
effect.
Item 193, new section 67B will allow estates or
interests in land subject to a land claim to be granted if the
relevant Land Council enters into a written agreement with the
person concerned and the Minister consents (Ministerial consent is
required where the term of the grant exceeds 40 years). However,
new section 67B will not apply to grants of fee
simple or leases in perpetuity. A Land Council will not be able to
enter into an agreement under new section 67B
unless satisfied that the traditional owners have given informed
consent to the grant, any Aboriginal community affected by the
proposal has been consulted, and the terms and conditions of the
grant are reasonable. However, failure to comply with these
requirements will not invalidate the agreement.
It is an offence under section 69 of the ALRA to enter or remain
on a Northern Territory sacred site except to perform functions
under the ALRA or a Northern Territory law. Item
194 repeals the existing monetary penalty and substitutes
penalty units.
Section 70 of the ALRA creates an offence of entering or
remaining on Aboriginal land. Item 199 replaces
monetary penalties in section 70 with references to penalty units.
Item 200 adds additional defences to the section
70 offence. At present, it is a defence to be on Aboriginal land in
accordance with the ALRA or a Northern Territory law. It will be a
defence for the person to be on Aboriginal land in accordance with
an authorisation under subsection 19(13) of the ALRA. It will also
be a defence if the person entered or remained on Aboriginal land
leased under section 19A and was there for any purpose related to
the use or enjoyment of an estate or interest in the land.
Item 202 enables the Minister to delegate any
of his or her functions or powers under Parts II, III, V, VI or VII
of the ALRA, with the exception of those under new section
19A (leasing of townships to NT entities) This means that
the Minister can delegate powers relating to grants of land to Land
Trusts, Aboriginal Land Councils, Aboriginal Land Commissioners,
and the Aboriginal Benefits Reserve.
Powers and functions under Part IV (Mining) can only be
delegated to the NT Mining Minister. However, some Part IV powers
cannot be delegated including powers relating to the consent to the
grant of an exploration licence, determining an extension of
negotiating time in national interest cases, consenting to the
grant of a mining interest to an intending miner and making
national interest determinations.
Item 234 requires the Minister to establish an
independent review of Part IV of the ALRA (the mining provisions)
as soon as practicable after the commencement of the item that is,
on proclamation or 6 months after the legislation receives Royal
Assent, whichever occurs first. A report must be given to the
Minister and must be tabled in Parliament within 15 sitting days of
receipt by the Minister.
Parliament may wish to consider the following matters:
- as things stand, a new Land Council can be created if a
substantial majority of adult Aboriginals living in an area agree
and the area is an appropriate area for the operation of a new Land
Council. The amendments incorporate some but not all HORSCATSIA s
recommendations in relation to the establishment of new Land
Councils. In particular, they do not adopt HORSCATSIA s
recommendations that substantial majority be defined as at least
60% and that the informed consent of appropriate traditional owners
is obtained. Instead, a 55% majority will be sufficient and there
is no provision requiring consent from the traditional owners.
Questions that might be asked include whether setting the threshold
at 55% is sufficiently high (especially in areas where traditional
owners may be outnumbered by other Aboriginal people) and whether
the informed consent of traditional owners should also be
required.
- whether a Land Council s refusal to delegate powers and
functions should be subject to Ministerial override
- whether amendments that enable 99-year township leases to be
granted to NT entities and then subleased should be supported. The
Government says that the new tenure system for townships on
Aboriginal land will allow individuals to have property rights. It
is individual property rights that drive economic development.
(62) Others have argued that such leases have the
potential to deprive traditional owners of the benefits of
development and may unacceptably restrict their say over future
development. Related questions include whether money from the
Aboriginals Benefit Account should be used for the acquisition or
administration of leases granted to NT entities or to pay their
rent and whether the maximum amount of rent payable should be
capped at 5% per annum of the land s value.
- whether the existing funding formula for Land Council
administrative costs should be replaced with Ministerial
allocations based on estimates, expected income and any existing
surplus. Will these amendments unacceptably compromise Land Council
independence and viability as some have argued or, as the
Government maintains should payments for administration be based on
work to be done and outcomes achieved rather than on an arbitrary
percentage?
- whether the legislation should dispose of land claims rather
than allowing them to be the subject of determinations or
agreements.
Finally, the Bill provides for an independent review of the ALRA
s mining provisions to be established by the Minister. However, the
composition of the review is not dealt with. Parliament may wish to
consider whether membership should be statutorily prescribed for
instance, providing by that Indigenous people or Land Councils
should be represented. Nor does the amendment provide for a
reporting time or empower the review to canvass submissions or hold
public hearings.
- Explanatory Memorandum, p. 18.
- Frank Brennan, Standing deep in time; standing in the law: a
non-Indigenous perspective on land rights, land wrongs and
self-determination, Oxford Amnesty Lecture, Sheldonian Theatre,
Oxford, 11 February 2005 at: http://www.uniya.org/talks/brennan_11feb05.html#ftref10
- (1971) 17 FLR 141 at 267.
- Quoted by Ian Viner MP, Second Reading Speech, Aboriginal Land
Rights (Northern Territory) Bill 1976, House of Representatives,
Hansard, 4 June 1976, p. 3081.
- ibid., pp. 3081, 3084.
- Office of Indigenous Policy Coordination. At the time of
writing there were 593,731.75 km2 of ALRA land in the Northern
Territory. This figure is expected to increase to 593,942.75 km2
when the Borroloola No. 2 claim is added.
- Department of the Chief Minister (Northern Territory),
Detailed Joint Submission to the Commonwealth. Workability
Reforms of the Aboriginal Land Rights
(Northern Territory) Act 1976 (ALRA)
accessible at: http://www.nt.gov.au/dcm/people/indigenous.shtml
- For a brief summary, see Heather McRae et al, Indigenous
Legal Issues. Commentary and Materials, 3rd ed,
Lawbook Co., 2003.
- (1992) 175 CLR 1.
- BW Rowland QC, Examination of the Aboriginal
Land Rights (Northern Territory) Act
1976-80. Report to the Minister for Aboriginal Affairs,
Department of Aboriginal Affairs, 1980; Mr Justice Toohey,
Seven Years On. Report by Mr Justice Toohey to the Minister for
Aboriginal Affairs on the Aboriginal Land Rights (Northern
Territory) Act 1976 and Related Matters, AGPS, Canberra,
1984.
- John Reeves, Building on Land Rights for the Next
Generation. The Review of the Aboriginal
Land Rights (Northern Territory) Act
1976. Report, 1998, p. v.
- Accessible via: http://www.nt.gov.au/dcm/people/indigenous.shtml
- Reeves, op. cit., p. II.
- ibid.
- Detailed Joint Submission, op. cit., recommendation 3.
- ibid, recommendation 1.
- Reeves, op. cit., p. 500.
- Material relevant to the debate about communal versus private
ownership can be found on the website of the Australian Institute
of Aboriginal and Torres Strait Islander Affairs at:
http://ntru.aiatsis.gov.au/research/resourceguide/PDF_FILES/Current%20Debates%20Indigenous%20Land%20Tenure.pdf
See also: Stuart Bradfield, White picket fence or Trojan horse?
The debate over communal ownership of Indigenous land and
individual wealth creation , Land, Rights, Laws: Issues of
Native Title, vol. 3, Issues Paper no. 3, June 2005.
- Land systems holds us back , Sydney Morning Herald, 7
December 2004.
- Transcript of the Prime Minister, the Honourable John Howard
MP, Doorstop interview, Wadeye, Northern Territory, 6
April 2005 at: http://www.pm.gov.au/news/interviews/Interview1305.html
- National Indigenous Council, Indigenous Land Tenure Principles,
reproduced in Aboriginal and Torres Strait Islander Social Justice
Commissioner, Native Title Report 2005, Annexure
2. Accessible at: http://www.humanrights.gov.au/social_justice/ntreport05/
- See Land Rights under Threat, Australians for
Native Title and Reconciliation:
http://www.antar.org.au/index.php?option=com_content&task=view&id=94&Itemid=104
- Pearson warns PM on home title fears , The Australian,
14 April 2005.
- Aboriginal and Torres Strait Islander Social Justice
Commissioner, Chapter summary , Native Title Report 2005
at:
http://www.humanrights.gov.au/social_justice/ntreport05/summary.html
- ibid.
- Jon Altman, Craig Linkhorn and Jennifer Clarke, assisted by
Bill Fogarty and Kali Napier, Land
rights and development reform in remote Australia, Oxfam
Australia, 2005, p. 5.
- ibid.
- http://www.cis.org.au/IssueAnalysis/ia54/IA54.pdf
- Transcript of the Prime Minister, the Honourable John Howard
MP, Address at the National Reconciliation Planning Workshop, Old
Parliament House, 30 May 2005 at: http://www.pm.gov.au/news/speeches/speech1406.html
- See
joint press release by Minister for Immigration and
Multicultural and Indigenous Affairs, Senator Amanda Vanstone,
Minister for Family and Community Services, Senator Kay Patterson
and Minister for Employment and Workplace Relations, Kevin
Andrews.
- The 2006-07 Budget committed $107.7 million over four years,
including capital investment in financial assets of $54.6 million
to an initiative that includes an expansion of the Home Ownership
on Indigenous Land Programme. See:
http://www.atsia.gov.au/budget/budget06/Fact_sheets/factsheet08.aspx
- Government to reform Aboriginal land rights , The World
Today, 31 May 2006.
- Aboriginal Land Rights (Northern
Territory) Amendment Act (No. 3) 1987, subsections
46(12) & (13).
- Reeves, op. cit., p. 563.
- HORSCATSIA, op. cit., p. 97.
- Submission No.81, p. 1181.
- Submission No.26, p. 232.
- ibid.
- Submission No.62, p. 821.
- House of Representatives Standing Committee on Industry and
Resources, Exploring: Australia s Future
impediments to increasing investment in minerals and petroleum
exploration in Australia, August 2003, p. 98.
- Recommendation 21.
- Senator Chris Evans & Warren Snowdon, Land rights
amendments housing crisis continues , Media Release, 31
May 2006.
- ibid.
- Anger at indigenous lease plan , The Age, 1 June
2006.
- Central Land Council, Aboriginal Land Rights Act amendments ,
Media Release, 31 May 2006.
- Northern Land Council, NLC has serious concerns regarding
amendments , Media Release, 1 June 2006.
- ibid.
- Australians for Native Title and Reconciliation, Land Rights
Act changes a smokescreen , Media Release, 6 October 2005;
Government plans may force 30,000 people off their land , Media
Release, 9 December 2005.
- Chief Minister Claire Martin, Federal land rights changes step
in right direction , Media Release, 5 October 2005.
- ibid.
- Explanatory Memorandum, p. 1.
- ibid., p. 23.
- Chief Minister Claire Martin, Federal land rights changes step
in right direction , Media Release, 5 October 2005.
- HORSCATSIA, op. cit., recommendations 7 & 9.
- Australian National Audit Office, Audit Report No. 28
2002-2003, Performance Audit, Northern Territory
Land Councils and the Aboriginals Benefit
Account.
- See Sean Brennan, Aboriginal Land Rights (Northern Territory)
Amendment Bill (No. 2) 1999, Bills Digest No. 181,
1998-99.
- For a background to this issue see Brennan, ibid.
- Northern Land Council, NLC has serious concerns regarding
amendments , Media Release, 1 June 2006.
- Detailed Joint Submission, op. cit., recommendation 8.
- Aboriginal Land Rights (Northern Territory) Amendment Bill 1997
and the Aboriginal Land Rights (Northern Territory) Amendment Bill
(No. 2) 1999.
- House of Representatives, Hansard, Second reading
speech, Aboriginal Land Rights (Northern Territory) Amendment Bill
2006, 31 May 2006, p. 5.
- ibid., p. 4.
Jennifer Norberry
Law and Bills Digest Section
John Gardiner-Garden
Social Policy Section
19 June 2006
Bills Digest Service
Information and Research Services
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