Clarke, Jenny --- "'Genuine Concerns': the Saga of Brunette Downs" [1993] AboriginalLawB 56; (1993) 3(65) Aboriginal Law Bulletin 6

• ‘Genuine Concerns’: The Saga Of Brunette Downs

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‘Genuine Concerns’: the Saga of Brunette Downs

by Jenny Clarke

As Parliament debates the finely-tuned Native Title Bill 1993 (Cth), the fate of Commonwealth-sponsored 'Aboriginal land needs' legislation in the Northern Territory demonstrates the dangers inherent in hasty drafting and in allowing the states and territories to administer Aboriginal rights.

Part 8 of the Pastoral Land Act 1992 (NT) (hereafter Pastoral Land Act) substantially reproduces 1989 legislation[1] purportedly enacted in pursuit of a joint Commonwealth-Northern Territory agreement "to provide secure tenure for those Aboriginal groups in need, particularly ... those ... presently or recently resident on pastoral leases .[2] It sets up a three-step procedure for consideration and determination of Aboriginal applications for excision of community living areas from pastoral leases. The Minister has first discretion to approve an application or refer it to a special Tribunal[3] for recommendation and comment.[4] After the Tribunal's thorough inquiry into the application, the Minister has a final broad discretion to accept or reject the Tribunal's recommendations.[5]

As other commentators have noted, the legislation is badly drafted and diverges from both the letter and the spirit of the joint agreement. (For example, while the agreement provides that community living area titles will be issued where a pastoral lessee consents to an Aboriginal application[6], the Act allows the Minister to refuse a consent application or to delay it by referring it to the Tribunal.) Administration of the legislation by the Minister for Lands and his Department involves a serious conflict with their responsibility for (and, in political terms, loyalty to) the pastoral industry. From the outset, the Department has approached interpretation of the legislation in a spirit of parsimony towards Aboriginal applicants, reflecting an institutional desire to limit its application to 'deserving' cases. This institutional culture - which has its origins in the Department's past involvement in various unworkable and ungenerous schemes to provide secure title for Aboriginal housing - has survived well-intentioned intervention by the Commonwealth because of the scope of discretion vested in the Minister under the Pastoral Land Act. The role of the Tribunal in the determination of applications has been seriously impeded not only by the Ministerial discretion to ignore a Tribunal recommendation, but also by legislative gaps in the powers conferred on the Tribunal itself.

The history of an application in respect of Brunette Downs pastoral lease illustrates the illusory nature of Aboriginal rights under the Pastoral Land Act. In September 1993, two years and seven months after Aborigines applied for title to the site they have occupied since early this century, the Minister determined that he would not act on the application. His decision was based on an 'informal' report from the Tribunal to the effect that the Tribunal was without jurisdiction following the death of the principal applicant in May 1993. In March 1993 the Tribunal had refused to allow amendment of the application to add the names of this man's wife and her community members, on the basis that the legislation gave it no power to do so.

The Northern Territory Government appears to be taking no steps to remedy this legislative defect. Its lack of response to the detrimental effect of bad drafting on Aboriginal applicants is interesting when compared with the swiftness with which, in 1991, it moved to correct a drafting omission which 'disadvantaged' pastoralists. The Crown Lands Amendment Act 1997 tightened retrospectively the application criteria for community living areas within two kilometres of pastoral homesteads by requiring that Aboriginal applicants have lived on-site since 1979. Among those who lobbied for the amendment was the Brunette Downs lessee.

The present Minister for Lands, Mr Steve Hatton, was appointed at a time when the Brunette Downs application had already been referred to the Tribunal by his predecessor, Mr Max Ortmann. While the application was still before the Tribunal, Mr Hatton made the following comments in the Legislative Assembly:

"The [Brunette Downs] lessee ... opposes that application because ... it does not want a freehold lease to be granted so close to the homestead because it is believed people living at the homestead have a right to live in peace and quiet without the continuing interference and annoyance to their lives and the operation of [the] station homestead by having community living areas in such close proximity. That is the essence of the problem ... It could lead to a totally uncontrolled development and anybody moving in and setting up ... I might say that the pastoral company involved has a genuine concern about the proximity of this living area ... That concern is genuine ...
[T]he pastoralist has expressed to the Tribunal and to myself serious concerns about the behaviour that is occurring there, and the interference in the requirements that are being demanded of them to solve disputes, conduct treatment of people and resolve interference within the particular community ...." [7] (Emphasis added.)

Given the timing of his appointment, one might ask how it was that Mr Hatton was in a position to entertain the lessee's 'genuine concerns' and 'serious concerns' about matters properly the subject of Tribunal comment[8] The Tribunal had before it no evidence of "the continuing interference and annoyance to their lives and the operation of [the] station homestead by having community living areas in such close proximity". By contrast, the applicants' evidence (supported by that of a visiting doctor and former teacher) was that their community is a quiet place unaffected by alcohol or other social problems. Nonetheless, the inability of the lessee and the Aboriginal community to coexist under circumstances of Aboriginal control of the community living area seems to be a matter about which the lessee and the Minister share a deep common understanding. The fact that private communications between the Minister and the lessee might amount to a breach of the rules of procedural fairness does not appear to trouble Mr Hatton. Nor do such matters trouble his Department, which from the outset has tended to treat representations from parties as in the nature of 'personal correspondence' rather than submissions.

The Northern Territory legislation has not been the subject of public scrutiny and criticism during the past 18 months because the heat has been on the Commonwealth over its proposed native title legislation. However, it is not clear what the Native Title Bill 1993 will achieve for pastoral communities like the one at Brunette Downs. While the National Aboriginal and Torres Strait Islander Land Fund[9] will facilitate land acquisition, pastoral lessees everywhere are likely to take the position taken by Brunette Downs: that land near the homestead (no matter how long it has been occupied by Aborigines and no matter what economic contribution those Aborigines and their ancestors made to the station as unpaid labour) is not for sale.

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[1] Miscellaneous Acts Amendment (Aboriginal Community Living Areas) Act 1989, which commenced on December 22,1989.

[2] Memorandum of Agreement between the Commonwealth and the Northern Territory on the granting of community living areas in Northern Territory pastoral districts, September 7,1989

[3] Pastoral Land Act 1992 (NT) s104

[4] Ibid, ss lO8 and 109

[5] Ibid, s110.

[6] Amendment B to the Memorandum of Agreement.

[7] Hansard, May 25,1993.

[8] See s109Q)(b) and (2) Pastoral Land Act 1992 (NT).

[9] Established under s192 of the Native Tide Bill 1993 (Cth).