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Aboriginal Aboriginal and Torres Strait Islander Social Justice





The right of Aboriginal people to control what happens on their land was
acknowledged in the Woodwood Commission report into the protection of
Aboriginal land in the Northern Territory. The report recognised that
ownership of land was a meaningless concept if the owners were not able
to control access to their land.

In 1976 the recommendations
in that report were acted upon and the Aboriginal Land Rights (Northern
Territory) Act
was passed by the Federal Government.

The concept of controlling
access was broken down into three easily identifiable components:

1. Traditional
owners must understand the nature of the proposal that involves access
to their land.
2. Traditional owners must have been given an opportunity to have their
say about the proposal.
3. Traditional owners must give their consent to the proposal.

This can be simply
summarized as "informed consent". These concepts are found in
other land rights legislation such as the Pitjatjantjarra Land Rights
Act 1981.

Due to the communal
nature of the ownership of Aboriginal land ownership, the land councils
were given a key role in determining that the three components of consent
were satisfied.

As a result, the
Northern Territory Land Councils have developed a solid body of expertise
that is recognised and utilised by its constituents. Those same constituents
have demonstrated great loyalty to their land councils during times when
political forces have attempted to remove their role in this process.

What Has This
Got To Do With Native Title And The Right To Negotiate?

It is the Central
Land Council's experience that sound governance and solid expertise are
the foundations on which good negotiations can proceed.

On the passage of
the Native Title Act in 1993 a number of Aboriginal and Torres Strait
Islander bodies were recognized as native title representative bodies
(NTRB's). Their role was to represent Aboriginal and Torres Strait Islander
peoples who asserted ownership of native title rights. Many of these bodies
were established at the time the legislation was passed, or were existing
bodies that had been set up for other purposes, not to deal with issues
of land and justice. They had little or no experience in the business
of consulting with their constituents over land rights issues. The result
was that there was a proliferation of native title claims over mainland
Australia many with little or no hope of success and many filed outside
the representative body process.

This did not occur
in the Northern Territory. The land council decided to take a strategic
approach and only to lodge claims that tested specific legal principles,
for example:

  • Alice Springs
    - claim within the town boundary
  • Croker Island
    - sea rights
  • Davenport/Murchinson
    - rights within a national park
  • Yulara - compensation
    for extinguishment
  • St Vidgeons -
    rights on land held by the Northern Territory Land Corporation.

Outside this process
no other claims were filed.

More importantly,
under the 'right to negotiate', applicants seeking access to land on which
native title continued to exist came to the land councils for assistance.

This situation became
less clear when the previous Northern Territory government refused to
use the 'right to negotiate' provisions in the Native Title Act after
the High Court judgment in Wik.

The government of
the day felt aggrieved with the decision that native title continued to
exist on land held under a pastoral lease. They refused to acknowledge
it. The NTG actively lobbied a Federal Government sympathetic to its view
that the Native Title Act should be amended with a view to achieving "bucket
loads of extinguishment".

Despite great efforts,
at the end of 1998 the federal government passed amendments to the Native
Title Act which greatly diminished rights. This paved the way for the
second phase of the previous territory government's proposal regarding
the 'right to negotiate'. They proposed a territory based scheme under
section 43A of the amended Native Title Act.

Fortunately the Senate
demonstrated responsibility in this debate and disallowed the Territory's
scheme in August 1999.

The Territory Government
stubbornly refused to recognize the Native Title Act for nearly twelve
months until September 2000 when it finally commenced using the current
right to negotiate provisions of the Native Title Act.

The procedures to
activate the right to negotiate provisions of the Native Title Act are
extremely cumbersome. Essentially they involve invoking the jurisdiction
of the Federal Court where there has not been a determination of native
title but where there is an assertion the native title rights continue
to exist. While this process might be appropriate in areas of Australia
where Aboriginal dispossession from land runs deep and may involve generations
of people that is not the case in the Northern Territory.

Unfortunately the
Native Title Act establishes a future act regime on the basis that one
situation fits all. The legislation does not take into account the circumstances
of Aboriginal people in the Territory
. By this I mean:

  • Aboriginal people
    in the remote parts of the Territory do not have daily or even weekly
    access to newspapers as is assumed under the Native Title Notices
  • The vast majority
    of Aboriginal people in the remote parts of the Northern Territory are
    not literate in English as is assumed in the same Determination.
  • The majority
    of Aboriginal people in the Territory live in remote locations where
    communication is difficult.
  • Aboriginal contact
    and ownership of "COUNTRY" is paramount in the Territory but
    is assumed not to be in the legislation.

If the Native Title
Act set out to establish a procedure where control over Aboriginal country
was considered important enough to afford Aboriginal people to three elements
of control I have already spoken about (effectively informed consent)
then it has plainly failed.

The report by the
Social Justice Commissioner quite rightly asserts that to date the outcomes
we all expected would arise from the recognition of native title in 1992
have largely failed to eventuate. The system has aimed to restrict rather
than maximize the rights and benefits which should have flowed from this
recognition of native title.

However the land
councils with their twenty odd years of experience have attempted to alleviate
some of these problems. And they are able to do so because of:

  • Good stable governance
  • Expertise in dealing
    with mining companies
  • Expertise in
    dealing with government.
  • Support of their

While I accept the
arguments put forward in this Native Title Report that the Commissioner
is going to release today regarding funding inequalities, I wish to emphasise
that money and resources do not necessarily provide good and stable governance.
In my view the Federal Government should provide assistance to Aboriginal
organisations and in particular representative bodies for the purpose
of ensuring good and strong governance. This means we will have strong,
healthy organisations that can concentrate on their statutory functions
and last into the future.

The Central Land
Council has managed to successfully negotiate twelve Indigenous land use
agreements covering exploration and mining. This is a testament to both
Aboriginal people in our region who understand that they have the right
and ability to control access to their country, and to the exploration
and mining industry who have grown to respect the rights of traditional
owners and the professionalism of the land council.

However we have a
long way to go before equality of opportunity, and full enjoyment of native
title rights (in their broadest sense), are afforded to Aboriginal people
in Central Australia.

updated 23 August 2002