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This article outlines the history and main features of the Aboriginal Land Rights (NT) Act 1976 (ALRA). After twenty years of successful operation the act is a model which provides a legal and administrative interface between traditional law and custom and the non-Aboriginal system. It is argued that this model provides workable solutions to defects contained in the Native Title Act 1993 (Cth) ('NTA').
The ALRA was the first statute to comprehensively provide for Aboriginal land rights in Australia, and remains the high water mark of legislative recognition of these rights. The act is a direct result of Australia's first native title case, namely the Gove Land Rights case, which was heard by Justice Blackburn of the Northern Territory Supreme Court in 1971 (Milirrpum v. Nabalco).[1]
Legally the plaintiffs were unsuccessful in that the court held that ìthe doctrine of communal native title never formed part of the law of Australia'[2]. Politically the case was a spectacular success. Although the doctrine of terra nullius was upheld, Blackburn J. found that the plaintiffs' traditional laws and customs were recognisable as a 'system of law[3].
'The evidence shows a subtle and elaborate system highly adapted to the country in which the people led their lives, which provided a stable order of society and was remarkably free from the vagaries of personal whim and influence. If ever a system could be called "a government of laws, and not of men", it is that shown in evidence before me[4].
This finding provided the basis for legislation to recognise land rights in the Northern Territory (NT). Counsel for the plaintiffs, AE Woodward QC (as he then was), recommended against an appeal to ensure that the doctrine of terra nullius was not cemented in place by the conservative High Court, in the belief that the Commonwealth Parliament would legislate. Indeed this case was deliberately initiated before the NT Supreme Court, rather than directly in the High Court, on the basis that a sympathetic hearing was more likely[5]. Thus it was left open for terra nullius to be reagitated before a progressive bench in Mabo v. Queensland (No. 2).[6]
In 1973 the Whitlam Government commissioned Justice Woodward to inquire and report as to the means by which (not whether) Aboriginal land rights could be recognised in the NT. This inquiry was limited to the Territory, because of the potential for litigation on constitutional grounds which would arise should the Commonwealth attempt to legislate in respect of the States[7]. The commission produced two reports the first of which recommended the establishment of two representative Aboriginal organisations, the Northern and Central Land Councils, to advocate Aboriginal views. The recommendations contained in these reports were largely implemented and provide the basis for the ALRA.
Legislation was introduced by the Whitlam Government in October 1975, but had not been passed when parliament was prorogued in November 1975. In 1976 the Fraser Government enacted the ALRA in similar terms to the Whitlam bill, but with a number of important differences. The Whitlam bill contemplated inquiries as to the provision of land to meet the needs of Aboriginal people[8], and automatically closed seas within 2 kms of Aboriginal land (subject to regulations which could provide exemptions).[9]
The ALRA commenced operation on 26 January 1977 and has since been amended on a number of occasions. Its main features include:
The ALRA has delivered substantial rights to Aboriginal people. At present approximately 41% of the NT is owned as Aboriginal freehold, with a further 9% subject to claim.[13] Aspects of the act have provided a model for land rights legislation in other jurisdictions[14]. Justice Woodward's recommendation that a fund be established for the purchase of Aboriginal land anywhere in Australia was embodied in the Aboriginal Land Act 1974 (Cth), and more recently reflected in the Indigenous Land Fund legislation.
The Act's limitations are that:
Land councils are presently conducting cases under the NTA which are intended to overcome these limitations.[17]
The concept of ìtraditional Aboriginal owners' is crucial to any understanding of the ALRA. Section 3 states that:
'traditional Aboriginal owners', in relation to land, means a local descent group of Aboriginal who:
(a) have common spiritual affiliations to a site on the land, being affiliations that place the group under a primary spiritual responsibility for that site and for the land; andThis definition relies on anthropological concepts but its interpretation is ultimately a legal issue. The definition has been criticised as narrow and problematic but, as Justice Toohey observed when reviewing the act in 1983, the definition has generally been interpreted in a manner which is 'flexible and responsive to the situation of particular claimants, with its specific elements not constrained by any rigid anthropological or legal doctrine'.[18]Consequently Toohey J. did not recommend amendment, while recognising that the issue could be revisited at a later stage if necessary.(b) are entitled by Aboriginal tradition to forage as of right over that land.'
The existence of traditional Aboriginal owners constitutes a hurdle which must be overcome before an Aboriginal Land Commissioner can recommend a grant of land.[19] The decision as to whether to follow such a recommendation is made by the Commonwealth Minister for Aboriginal Affairs.[20] Once granted the land is held on trust and administered by land councils for the benefit of both 'traditional Aboriginal owners' and other Aborigines who hold traditional rights of 'entry, occupation, or use ( with respect to that land, whether or not those rights are qualified as to place, time, circumstances, purpose, permission or any other factor.'[21]
These statutory definitions together with the legislative scheme of the ALRA fully encompass the interests and rights contemplated by the common law term `native title'.
The role of land councils and their relationship to land trusts has been critical to the success of the act, but is often misunderstood. Land trusts are the vehicle which holds legal title to Aboriginal land.[22] The trustees are senior Aboriginal persons appointed by the minister[23]. All agreements in respect of Aboriginal land (other than exploration and mining agreements, and the construction of roads[24] ) are entered by the trust, and require the signature of the trustees.
A trust cannot enter an agreement unless the relevant land council has ensured that the informed consent of the traditional Aboriginal owners (as a group) has been obtained, and that consultation has occurred with other Aboriginal persons interested in the land or affected by the proposal.[25] Exploration and mining agreements[26], and agreements concerning land under claim[27], are directly by Land Counncils on the basis of the Informed consent of traditional owners (as a group), and provided that the Land Council Is satisfied that the terms and connnditions are reasonable.In doing so land councils provide an important administrative safeguard which protects the traditional interests of Aboriginal people. Mining companies cannot, as has happened elsewhere in Australia, negotiate agreements with an individual traditional owner while ignoring the rest of the land owning group.
It should be emphasised that Australian law is familiar with safeguards which protect the interests of persons who hold valuable property on a group basis. Corporations law and regulatory institutions ensure that individual shareholders, who jointly own a company with other shareholders, are identifiable and have the opportunity to participate in matters which affect their company (eg general meetings). Statutes regulate the conduct of trusts to protect the interests of beneficiaries - for example, the Tattersall's Trust is required to apply rules to identify beneficiaries and distribute benefits.
By contrast the NTA contains no such protections. It can be argued that this deficiency constitutes a form of racial discrimination. The future act processes of the NTA vest the power to enter binding agreements regarding land subject to claim in an individual, the 'registered native title claimant'[28]. This person is defined simply as 'the person who is taken to be the claimant'[29]. There are no provisions to ensure that this claimant acts on behalf of the native title holding group, or that the benefits of development agreements flow to the group as a whole.
This position is extraordinary and constitutes a distortion of traditional interests. In Mabo (No. 2) the High Court described native title as primarily a group or 'communal' right[30]. Traditional ownership of land is vested in the group itself. Individuals have a traditional right to be included in the process whereby the native title holding group reaches a decision, and to receive the benefits of development agreements made by the group. Under traditional processes some individuals, such as elders, will have a greater say or a more important role. Such processes are recognised by s. 77A of the ALRA[31], but ignored in the NTA.
The NTA provisions leave it open for underhanded mining companies to negotiate questionable agreements with individuals rather than the native title group. It is submitted that these provisions, and therefore all agreements negotiated in accordance with them, are invalid as contravening the Racial Discrimination Act 1975 (RDA).
With the exception of the past act provisions, the NTA is subject to the operation of the RDA[32]. In Pareloutja v. Tickner the Full Federal Court considered an argument that the ALRA contravenes the RDA on the basis that it is inconsistent with native title interests. The court held that the ìmechanisms of the ALRA, namely, Land Trusts and Land Councils, are completely consistentî with the communal nature of native title.[33] Lockhart J. stated:
'The establishment of Land Trusts and Land Councils is essentially a modern adaptation of traditional Aboriginal decision-making processes through their communities.'[34]
Sections of industry have recognised that the land council model, if applied to the NTA, can provide the certainty they seek. In statements to the Parliamentary Joint Committee on Native Title on 27 October 1995 CRA stated that it now found the Northern Territory situation, with established land councils identifying native title holders and facilitating negotiations, 'extremely attractive'[35]. For example the Northern Land Council completed exploration and mining negotiations between CRA and native title claimants at St Vidgeons in only three months.
The function of identifying traditional owners is a crucial function performed by land councils. In Alderson v NLC Muirhead J. described this task as a 'delicate and complex one' which requires anthropological expertise.[36] This is especially the case where land has not been the subject of a Land Commissioner's report which identifies traditional owning groups (eg Arnhem Land).[37]
Experience has shown that even in land claims it is not always possible to identify all individuals who are traditional owners of land. Thus land councils are not bound by the finding of a Land Commissioner and may form a contrary view where traditional owners have changed through `succession', relevant material was not before the Commissioner, or the Commissioner's inquiry was seriously flawed in some material respect.[38]
The NTA makes no provision for the concept of `succession'. Traditional ownership is not fixed in time. Numerous land claims have established that neighbouring groups can, in accordance with traditional law and custom, succeed to traditional ownership of related lands. Since colonisation this has usually (but not always) occurred when one group has died out. In Re Waanyi People's Native Title Application Justice French held that the common law recognises this concept.[39]
Justice Woodward in his address to the `Land Rights - Past Present and Future' conference held in Canberra on 16 August 1996 expressed his concern that the NTA ignores many important findings of his inquiry. For example the NTA requires that numerous `prescribed bodies corporate' be created to act as a trustee or agent in respect of native title[40]. In 1974 Woodward J. rejected this approach on the basis 'that it was not practicable to vest small areas of land in the individual clans'. [41]
This statement remains true today. The practical reality is that most prescribed bodies corporate will lack the resources and expertise to properly perform their functions. In particular theese bodies will not possess the legal and 'anthropologist expertise', and may not have sufficient Impartiality, to recognise the succession of traditional Interests over time. Some developers will take advantage of this situation to the detriment of traditional interests. Resultant litigation will create uncertainty for industry.
In May 1996, the Commonwealth Government has proposed amendments to the NTA which it claims are directed at `workability'. These amendments have been widely criticised by indigenous groups as discriminatory and as an attack on the common law and statutory rights of Aboriginal people. The Commonwealth proposes to enhance the role of representative bodies, but stops well short of the land council model.[42]
In October 1996, the Government proposed furthur amendments whhich Include various mechanisms to ensure that the Native Title Tribunal cannot register a native title application unless It Identifies, and appears to be made with the authority of, the native title holding group.[43]
The ALRA is the oldest and most successful model for recognising traditional interests while delivering certainty to industry. In 1993 government and industry interests ignored this model due to their dislike of the supposed `veto', and the success of land councils in promoting Aboriginal interests. After three years of confusion the Commonwealth should now embrace the land council model and ensure that representative bodies have comprehensive statutory powers and proper funding to perform their functions.
FOOTNOTES:
[1] Milirrpum v. Nabalco 1972-73 ALR 65; 1971 17 FLR 141.
35.Pareloutja v. Tickner [1993] FCA 465; 117 ALR 206 at 214 per Lockhart J.
36.Comments by Paul Wand CRA, to Parliamentary Joint Committee on Native Title, Launceston, 27 October 1995, p. 1492.
37.Alderson v NLC 20 NTR 1 at 8.
38.Most Aboriginal reserves were scheduled as Aboriginal land at the commencement of the ALRA without the conduct of a land claim process. Other land has been scheduled as part of the settlement of claims prior to hearing by a Land Commissioner.
39.Toohey J. Warlpiri and Kartangarurru-Kurintji Land Claim para. 86 and 263. At para 86 Toohey J. stated that ìthe identification of traditional owners can never be an exercise of 100% accuracy ( There may well be Aboriginals, traditional owners of land within Areas 1 and 2, whose existence did not come to light during the inquiries carried out by the Central Land Council or by reason of any investigation that took place during the hearing of this claim. Section 24 of the Act should protect them.î Section 24 enables a land council to maintain and update records as to the identity of traditional owners. A similar function may be implied from s. 23(3) (see Tapnguk v. NLC unreported, NT Supreme Court, 16 May 1996).
40.Tapnguk v. NLC unreported, NT Supreme Court, 16 May 1996.
41.Re Waanyi Peopleís Native Title Application 129 ALR 118 at 130, 131 and 132.
42.ss 55 to 57 of the NTA.
43.Aboriginal Land Rights Commission, Second report, April 1974, Justice Woodward, p. 14.
44.Discussion Paper May 1996;Native Title Ammendment Bill 1996 (Introoduced 27 June 1996).
45. Exposure draft, ammendments 39 and 42 of the Native Title ammendment Bill 1996 of 8 October 1996. The authourity of an Individual to lodge a claim Isascertained by reference to traditional processes of decision making, In similar terms of the ALRA (new s151A).
[2] Milirrpum v. Nabalco 1972-73 ALR 65 at 160.
[3] Milirrpum v. Nabalco 1972-73 ALR 65 at 171.
[4] Milirrpum v. Nabalco 1972-73 ALR 65 at 171 per Blackburn J.
[5] Comments by Woodward J. in an address to the 'Land Rights - Past Present and Future' conference held in Canberra on 16 August 1996.
[6] Mabo v. Qld (No. 2) [1992] HCA 23; 1992 175 CLR 1; 107 ALR 1.
[7] Comments by the then Prime Minister, Gough Whitlam in an address to the 'Land Rights - Past Present and Future' conference held in Canberra on 16 August 1996. Under the Constitution the Commonwealth has full legislative power in respect of Territories.
[8] cl. 5(1) Aboriginal Land Rights (Northern Territory) Bill 1975.
[9] cl. 74 Aboriginal Land Rights (Northern Territory) Bill 1975. Clause 73(2) required that the Minister take into account the views of the land council when drafting regulations to exempt persons from the sea closure.
[10] Section 40(b) of the ALRA. Also special provisions provide for arbitration In respect of Coronation Hill and the eastern arcs of Groote Yetlande (s48AA(5)).
[11] Section 64 of the ALRA.
[12] Section 64 of the ALRA.
[13] This information is contained in affidavit material dated 2 May 1996 filed by the Territory in the High Court in the Wik proceedings.
[14] eg Pitjantjatjara Land Rights Act 1981; Maralinga Tjaruatja Land Rights Act 1984 (SA). See G Neate Aboriginal Land Rights in the Northern Territory Volume 1 1989 p. 5.
[15] s. 73(1)(d) of the ALRA; Aboriginal Land Act (NT: 1978). This act enables ësea closuresí within 2 kms of Aboriginal land These closures fall substantially short of Woodward Jís recommendation that there be ìa buffer zone of the sea which cannot legally be entered by commercial fishermen or holiday makers.î In particular commercial fishing interests are effectively exempt from any closure of the seas.
[16] R v. Kearney; ex parte Japanangka [1984] HCA 13; 52 ALR 31.
[17] eg Croker Seas claim; Miriuwung/Gajerrong claim to Keep River National Park; Larrakia claim in Darwin area; St Vidgeons claim (land owned by NT Land Corporation); Alice Springs claim.
[18] Toohey J. Seven Years On para. 257.
[19] s. 50(1)(a) of the ALRA.
[20] s. 11 and 12 of the ALRA.
[21] s. 71. See also s. 11(1)(a) and s. 23 (especially ss 3).
[22] s. 5 of the ALRA.
[23] s. 7 of the ALRA.
[24] s.68 of the ALRA states that agreements regarding the construction of roads are entered by Land Councils on the basis of the Informed consent of the traditional Aboriginal owners (as a group).
[25] ss. 5(2) and 23(3) of the ALRA.
[26] Sections 40 and 41(6) (b) of the ALRA
[27] Section 11A of the ALRA
[28] Section 28(1)(d) of the NTA enables a future act to proceed if an agreement is reached with a 'native title party' (ss 31(1)(b) and 32(5)), and lodged with the arbitral body (s. 34). Prior to determination of a claim the native title party is the person ìtaken to be the claimantî pursuant to s. 186(1)(d) (see definitions of 'native title party' and 'registered native title claimant' in s. 253).
[29] s. 186(1)(d) of the NTA.
[30] Mabo v. Qld [1992] HCA 23; 107 ALR 1 at 45 per Brennan CJ.
[31] s.77A of the ALRA pppprovides that the consent of traditional Aboriginal ownersshall be obtained In accordance with traditional Aboriginal owners.
[32] s. 7 of the NTA.
[33] Pareloutja v. Tickner [1993] FCA 465; 117 ALR 206 at 214 per Lockhart J.
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