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The WA Aboriginal Lands Trust was established in 1972 under the Aboriginal Affairs Planning Authority Act. More than 300 pieces of land are currently vested with the ALT, including 230 Aboriginal reserves.
WA is the only State or Territory which does not have land legislation that provides for traditional or residential Aboriginal land ownership. Instead a system of Aboriginal Reserves is still in existence.
The review of the ALT was chaired by Neville Bonner, AO.
The Report of the Review has been presented to WA State Cabinet and released for public comment. The recommendations made are part of an overall review of the AAPA act. It is proposed that a new AAPA Act will be presented to State Parliament late in 1997.
Reproduced here are the "Introduction", "Terms of Reference/Commentary" and the "Summary of Recommendations".
The Aboriginal Lands Trust is one important factor in a complex set of legal, economic, social and cultural issues impacting on Aboriginal people and the wider population.
Wherever possible this Report aims to keep a clear eye on how reforms to the Aboriginal Lands Trust itself can deliver practical benefits to Aboriginal people.
In the interests of brevity, this Report does not revisit a range of other studies linked to the management of land by the Aboriginal Lands Trust. The Report of the Chief Executive Working Party on Essential Services to Aboriginal Communities (the `Hames Report') 1995 is particularly relevant and its recommendations have the endorsement of this Report. In addition the 1995 Report into the future of Town Reserves shares common ground with this Report. The 1984 Aboriginal Land Inquiry, (the `Seaman Report') is also an important point of reference.
In any overview of the Aboriginal Lands Trust, a number of key perceptions should be recorded:
(i) the lands managed by the Aboriginal Lands Trust have been badly managed. As a foundation for building a better future for Aboriginal people, much of the ALT land is `damaged goods';(ii) the social, cultural and economic results of neglect, will only be corrected by sustained Government support -- to assist Aboriginal people, through communication, training, education and provision of the basic services the rest of Australia takes for granted;
(iii) no single `grand gesture' will achieve a transition to productive, healthy and economically sustainable Aboriginal communities able to enjoy the full benefits of owning land title. Neither the Aboriginal Lands Trust nor the Native Title Act nor the Indigenous Land Fund nor any other single initiative is going to succeed on it own. The very range of `solutions' being offered to Aboriginal people highlights the need for cooperative action between Governments, between agencies within Government and between Aboriginal people;
(iv) Aboriginal people in Western Australia are remarkably and proudly diverse. Furthermore the history of Aboriginal people since colonisation is by no means uniform, leading to significant differences in regional and local circumstances. Any administrative process put in place as a result of this Report must be flexible and creative in order to respond to that diversity.
The following issues require extended comment as a background to this report:-
The fact that the ALT lands are only a small proportion of land which Aboriginal people see as their land illustrates the difficulty of attempting to deal with the ALT in isolation from other Aboriginal land issues.
Critically, Aboriginal relationships with land do not readily adapt to European concepts of real estate and economics. European land administration -- intimately linked to the economic system -- does not yet have the vocabulary to readily adapt to an Aboriginal language of land.
Wherever possible this Report aims to distinguish between `the ownership of land title' which is a European convention and `the ownership of land' which has much broader meaning in traditional Aboriginal terms. This Report is able to recommend the transfer of land title over ALT lands to Aboriginal people. The Review Team can only urge the State Government to move towards a more expansive view of the relationship between Aboriginal people and land and its eventual recognition in State legislation.
With regard to numerous comments made by Aboriginal people on the need for a new form of land title, exclusively for Aboriginal people, the Report concludes:
(3.17) the issue of providing Aboriginal people with wider options in terms of land title and land management is more reliant on political commitment than the creation of new legislation. The challenge for governments is to provide models of land tenure to Aboriginal people which integrate economic and cultural aspirations. Economic development should not be at the expense of cultural maintenance.
Under current legislation there is already extensive scope for Government to recognise the particular values of particular areas of land. The question is not therefore one of a simple lack of the Crown having the legal `tools' to generate special title for Aboriginal people. The Report concludes that education about land title is vital to expand the scope for both Aboriginal people and Government to make land title work `two-ways'. It also recommends that more progressive use be made of existing forms of land title under existing legislation to provide Aboriginal people with greater choice about how to own and manage land.
In general the level of discussion about how to integrate cultural and economic rights over land is not well developed and there is a vast need for open dialogue to increase comprehension on both sides.
In terms of how the Review Team believes the Aboriginal Lands Trust can be reformed to have a functional impact on Aboriginal needs, there has been a conscious decision to focus the Report on ownership of land title. That decision is supported by Aboriginal community priorities. In simple terms, while title to land is still under the Aboriginal Lands Trust, most other strategies to assist Aboriginal social and economic development will always, to varying degrees, be impeded. Resolving issues of ownership of title to land is, adamantly, the most effective starting point for broad economic advancement of Aboriginal people.
The key question which emerged during the Review was how to define the future form and role of the Aboriginal Lands Trust.
The form we have recommended for the ALT concentrates on Aboriginal people making decisions over Aboriginal land in consultation with Aboriginal people.
The role we have recommended for the ALT is to oversee the transfer of land title to Aboriginal ownerships with a six year timetable to complete this task.
It is recommended that the Aboriginal Lands Trust be given a new mandate -- to return ALT lands to Aboriginal people, with a new ALT membership drawn from nominations made by Aboriginal organisations.
There are no illusions that the task for the new ALT will be simple, particularly where there are conflicting Aboriginal interests in land. The process of land transfer which has been recommended is heavily dependent on the ALT facilitating regional and local Aboriginal input.
The key emphasis placed on ownership of land title does not avoid the fact that the ALT, the Aboriginal Affairs Department and other State and Commonwealth Government agencies must make every effort to improve Aboriginal land -- before and after the transfer of title -- and to provide Aboriginal people with resources which will assist better use of land.
A frequent question asked of the Review Team was `whether this is a good time to conduct a review of the Aboriginal Lands Trust', given the legal and political climate linked to native title. The question implies that it might be possible to maintain the status quo over land managed by the ALT while other issues are resolved. In reality this is impossible.
The Native Title Act guarantees that fundamental issues linked to Aboriginal rights must be addressed over all land in Western Australia, including land managed by the ALT. In addition the accumulated opinion of -- among many others -- the 1984 Aboriginal Land Inquiry (the Seaman Report), the 1994 Report of the Social Justice Taskforce, and the 1995 Report of the Chief Executive Working Party on the Delivery of Services to Aboriginal Communities (the Hames Report) all add weight to the critical need for reform.
In effect, there is no better time to review the ALT. In simple terms, the social, economic and legal environment has overtaken the potential for the Aboriginal Lands Trust to sink into another 20 years of inertia.
The transfer of title to land will require a new level of commitment to communication between people involved with the ALT lands. The last two years of experience under the Native Title Act have demonstrated that extraordinary efforts need to be made if we are to create a spirit of effective negotiation over issues concerning ownership and access to land. The Report recommends that a restructured Aboriginal Lands Trust become a constructive party in resolving issues of native title and land title ownership.
In no sense is the mediation strategy recommended in this Report intended to compete with the legal rights provided by the Native Title Act or the organisations implementing the Native Title Act.
Where the Native Title Act and the ALT's roles intersect, the ALT has a duty to play a constructive role in resolving land disputes. Its role is not to compete with the roles of representative bodies under the Native Title Act but to assist where appropriate as a legitimate party (the land holder) to mediation. In that environment, the ALT's primary concern must be to resolve Aboriginal -- Aboriginal disputes while native title issues are resolved by the National Native Title Tribunal or the courts or through other avenues of negotiation.
This Report outlines guidelines for progressing the transfer of land title from the Aboriginal Lands Trust to Aboriginal ownership. In some cases those negotiations will have no immediate legal reference to the Native Title Act because of underlying land tenure. In some cases the transfer of title may in the first instance, involve an impermissible future act under the Native Title Act but the process itself may still be intimately tied to identifying traditional rights over the land. In all cases, the principle of reconciling traditionally and historically-acquired rights over the land must be honoured and full reference must be made to the appropriate Aboriginal groups and organisations -- the representative bodies, the regional Commission of Elders, Aboriginal resource agencies and community groups.
The delivery of essential services to Aboriginal communities is without doubt the most contentious issue linked to the future of ALT land.
The need for effective collaborative action by governments on living standards in Aboriginal communities has been a subject of alarm for too long by successive State and Commonwealth Governments without tangible improvements being delivered.
It is noted that the question of providing resources for the delivery of essential services to Aboriginal communities is not confined exclusively to properties managed by the Aboriginal Lands Trust. However as most State Government funding for essential service delivery to Aboriginal communities is directed to communities on ALT land, it was no surprise that concerns were raised during consultations that a transfer of title to the land might trigger a reduction in the State Government's support.
Such concerns reflect long-term insecurity about the delivery of essential services to reserve communities and the split between Commonwealth and State-Government funded services. The Report of the Chief Executive Working Party on Essential Services to Aboriginal Communities (the `Hames Report') noted (p 8) -
`there has been on-going policy confusion between the State and Commonwealth Governments over the establishment of new communities and the responsibility for the maintenance of essential service infrastructure. This confusion stems from the practice by ATSIC of funding the provision of infrastructure to small emerging remote communities without consulting State agencies or local governments. These communities then put demands upon the State Government to provide services such as housing schools and the maintenance of infrastructures'.
The Hames Report proposes a strategy for a State-Commonwealth division of responsibilities which could lead to real impact on living conditions in remote communities. (Please refer to Appendix 1 for a summary of recommendations of the Hames Report).
This Report endorses the recommendations of the Hames Report as one key factor in meeting the goals of this Review. In the context of the Review of the ALT it is critical that the Western Australian Government reassure Aboriginal people that there is no intention of reducing its commitment to improve essential services to Aboriginal communities as a result of reform to the ALT.
Fundamentally, the Review of the Aboriginal Lands Trust assumes that Government responsibilities to improve conditions in Aboriginal communities are not contingent on the land remaining vested with the Crown.
The provision of essential services should not be affected by the tenure of the land. The obligation to provide these services stems from a human right which attaches to the person irrespective of where that person lives. To agree that government support for Aboriginal communities is determined by the underlying land tenure would be to simply perpetuate a history of prejudice in dealing with Aboriginal reserves.
The Review Team concluded that progress on the transfer of land title in Aboriginal hands must proceed in its own right.
It must also be noted that it is highly likely that much of the ALT land may retain reserve status for some time (i.e. vested with a community rather than the ALT) or be exchanged for leasehold status (i.e. a crown lease). The relationship between the adopted land tenure form and the delivery of essential services must be fully explored at the point of land transfer and, if necessary, detailed in the terms of the transfer (e.g. as a condition attached to the reserve or the lease).
The confused relationship between land tenure and essential services is further highlighted by the fact that Federal Government agencies are increasingly reluctant to commit resources to Aboriginal communities which do not have secure land tenure. State Government agencies are similarly limited if the resident community does not have the power to make autonomous decisions over land. As the Hames Report states (p 9):
`As communities proceed towards normalisation of service delivery, issues of land ownership also need to be addressed in terms of provision of easements for utilities, access to communities by non-Aboriginal people, and responsibilities of local governments within Aboriginal communities'.
In that context the recommendations of this Report and government initiative linked to the delivery of essential service are critical to one another.
1.0 To assess the commercial and developmental potential of the Aboriginal Lands Trust land estate;
The 1994 Report of the Task Force on Aboriginal Social Justice suggested (p.531) that `the lands currently held by the Aboriginal Lands Trust could have considerable potential if used as the basis for a component of an economic development strategy designed to benefit the Aboriginal community'. The Task Force further suggested that Government should support in principle the concept of `an Aboriginal Commercial Land Corporation'.
The Review Team concluded that the Aboriginal Lands Trust estate cannot be addressed as one economic asset and that any scheme like a commercial land corporation would not be acceptable. The Review Team also found that it was not reasonable to assume that different parts of the land estate can be treated as marketable assets by anyone other than those Aboriginal people holding rights over that land.
In addition, the Review Team believes there is a great danger in seeing the ALT estate become the limit of Aboriginal economic aspirations -- i.e. by seeing it as the only means for raising capital or the only focus of resource development involving Aboriginal people.
Without question, a small number of properties within the Aboriginal Lands Trust have a high economic value either as real estate or because of identified natural resources. The overwhelming factor in terms of estimating what commercial potential can be attached to ALT properties rests, however, with the capacity for Aboriginal people to become equal participants in the mainstream economy. In that respect the economic development of ALT land cannot be separated from fundamental issues related to ownership of land title, education and training, health and housing.
This Report concentrates on the fundamental question of ownership of land title. The transfer of ownership to Aboriginal people is seen to be an inescapable building block in overall Aboriginal economic advancement.
This approach does not deny the vast interest among Aboriginal people to move from economic dependence to economic independence. The range of commercial development propositions among Aboriginal people is overwhelming and indicative of a great deal of undeveloped human potential.
2.0 To report on the most appropriate forms of land tenure and associated matters (e.g. administrative and legal options) for development of the ALT land estate and the enhanced self sufficiency of Aboriginal people;
This Report makes lengthy and detailed reference to matters related to land tenure and the choices which are available to Aboriginal people with regard to future land title over ALT properties. These issues are discussed specifically in Recommendations 2, 3, 4 and 8.
3.0 To accommodate the cultural and spiritual attachment of Aboriginal people to land;
The central role of land within Aboriginal culture essentially means that all recommendations involving ALT land have both cultural and economic implications.
The preservation and development of Aboriginal culture has been addressed predominantly through propositions linked to (i) ownership of title to land, (ii) a decision-making framework which is centred on Aboriginal input at a community and regional level, and (iii) honouring both traditional and historically-derived rights over land.
4.0 To report on practical land management models which can provide Aboriginal people with improved options to manage, utilise and develop land;
The need for increased resources and training which will assist Aboriginal people to take full advantage of title to land is a recurring theme in this report. Recommendations 3, 4 and 7 identify a series of issues which must be part of the process of transferring land from Aboriginal Lands Trust, including the need for resources to develop land management plans over individual properties and to expand Aboriginal choice in terms of future land use.
5.0 To recommend a development structure which will advance the development of the ALT land estate and provide a means to respond to other issues that the Review may identify;
The restructuring of the Aboriginal Lands Trust for a six year period is outlined in Recommendation 6.
6.0 To advise on new legislation or legislative amendments which may be required to complete the Review;
The review of the Aboriginal Lands Trust parallels the full review of the Aboriginal Affairs Planning Authority Act 1976. Recommended reforms to the Aboriginal Lands Trust will therefore become part of the overall repeal or amendment of the AAPA Act and be integrated into any new legislation. It is understood that the Aboriginal Lands Trust has, under existing legislation, the power to commence the processes recommended in this report. A comprehensive analysis of the legislative impact of the reforms to the Aboriginal Lands Trust will be developed by the Aboriginal Affairs Department, subject to adoption of this Report by the Western Australian Government.
7.0 To identify the scope for an integrated land management strategy between State and Commonwealth authorities focusing on advancing Aboriginal economic development and self-reliance.
There is extensive scope for integrated government planning involving Aboriginal land. This report does not, however, provide comprehensive analysis of where integration can be improved and this task must be undertaken by the Aboriginal Lands Trust and the Aboriginal Affairs Department as the recommendations of the Report are addressed.
It was concluded that there is extensive potential for new land development partnerships at a regional level -- drawing on State, Commonwealth and local government resources and the input of the private sector. There is convincing evidence that regional co-operation can provide the lead to state and national policies.
Without question, the fragmentation of interests in Aboriginal land is a major concern. Polarisation of interests between State and Commonwealth Governments is wasteful in terms of the resources available to Aboriginal people and has undermined Aboriginal confidence in dealing with governments.
It is recommended that:
1. Title to lands managed by the Aboriginal Lands Trust be transferred into the ownership of Aboriginal people, with all transfers to be completed in the period 1996-2002.
2. The transfer of land title reconcile traditionally and historically-acquired rights of Aboriginal people over each property;
3. Aboriginal people are given wider choice in the types of land tenure which can be adopted over ALT land, leading to a more effective balance of cultural and economic interests on Aboriginal land -- for example, through the use of special agreements like State Agreement Acts to develop regional or local land use agreements, the flexible use of perpetual Aboriginal leasehold and through mixed tenure and multiple land use options within Aboriginal reserves.
4. The Aboriginal Lands Trust and the Department of Land Administration initiate a comprehensive program to expand understanding about land title among Aboriginal people.
5. Land title must be transferred to legally dura durable and constitutionally fair corporate bodies which will protect the interests of Aboriginal owners and inhabitants of the land.
6. The members of the Aboriginal Lands Trust:
8. The administration of access permits to Aboriginal reserves be revised to:
10. The Aboriginal Affairs Department, the Department of Minerals and Energy and the State Treasury conduct a full review into the scheme for the payment of rent and royalty equivalents to the Aboriginal Lands Trust for mining on Aboriginal reserves, with the review to be completed by the end of 1996.
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/1997/18.html