Posted 11/02/2019 by James Haughton
The Aboriginal Land Rights (Northern Territory) Amendment (Land Scheduling) Bill 2018 (the Bill) was introduced in the Senate on 5 December 2018. It contains one item in one Schedule that amends the Aboriginal Land Rights (Northern Territory) Act 1976 (the Act) to add 3,105 hectares of land within Ammaroo Station to Part 4 of Schedule 1 of the Act, so that they can be granted as Aboriginal land. This fulfils the Ammaroo Indigenous Land Use Agreement made in October 2014. That agreement exchanges any exclusive native title held by the Kayteyte Alyawarr Awenyerraperte Ingherr-Wenh Aboriginal Corporation over approximately 193 km2 of former stock routes on the Ammaroo station, for Land Rights (inalienable fee simple) title over 31 km2 (3,105 hectares) of land. This land will be added to the existing land of the Aherrenge Aboriginal Land Trust, on which the community of Ampilatwatja is located. Native Title was determined over these lands as part of the Sandover River Native Title Determination, first lodged in 2001 and determined in 2014. Maps of the areas to be surrendered and granted are shown below:
Figure 1 Former stock routes and reserves with Native Title to be surrendered
Source: National Native Title Tribunal, Extract from Register of Indigenous Land Use Agreements: DI2014/003 (Ammaroo ILUA) Schedule 1.
Figure 2 Area to be granted as under Land Rights Act (diagonal lines)
Source: National Native Title Tribunal, Extract from Register of Indigenous Land Use Agreements: DI2014/003 (Ammaroo ILUA) Schedule 3.2.
In the second reading speech, Senator Ruston, speaking on behalf of Minister Scullion, stated that the land grant is supported by the Native Title holders, the pastoral lease holder, the Central Land Council and the Northern Territory Government. On 6 December, the Selection of Bills Committee agreed that the Bill would not be referred to a Committee. The Bill has not yet been reviewed by the Parliamentary Joint Committee on Human Rights or the Senate Standing Committee for the Scrutiny of Bills, but in the past, neither committee has commented on Bills of this nature (for example, the Aboriginal Land Rights (Northern Territory) Amendment Bill 2017 was not commented upon by either). Bills which recognise negotiated Aboriginal Land Rights claims by adding them to Schedule 1 of the Act have historically received bipartisan support (see, for example, the second reading debates on the Aboriginal Land Rights (Northern Territory) Amendment Bill 2002, or the second reading debates on the Aboriginal Land Rights (Northern Territory) Amendment Bill 2015). A short overview of why Land Rights grants require parliamentary approval is provided in the Discussion below.
Historical background and operation of the Act
The Act sets out a scheme for the claiming, granting, control and management of Aboriginal land by traditional Aboriginal owners in the NT. The Fraser Government passed the Act after the dismissal of the Whitlam Government meant the Aboriginal Land (Northern Territory) Bill 1975 lapsed. Fraser’s Act and Whitlam’s Bill both responded to Justice Woodward’s 1973–1974 Aboriginal Land Rights Commission report, which was accepted in principle by both major parties. While there were some significant differences between the two, the ALP ultimately voted in favour of the Act.
The Act has previously provided two main methods for land to be granted to traditional Aboriginal owners.
The first, which was closed to new applications in 1997, involved applying to the Aboriginal Land Commissioner (the Commissioner), seeking recognition of a group's traditional attachment to unalienated Crown land. The Commissioner then conducted an inquiry and reported to the Minister whether a grant should be made. This did not need parliamentary action, but the land claim inquiry and grant process was time consuming. Despite the claim process closing in 1997, as of the Commissioner’s 2017–18 annual report, 16 grants recommended by the Commissioner between 1981 and 2004 had not yet been acted upon and were being reviewed, six claims were still being inquired into, 10 were still being negotiated between parties (this includes lands to be scheduled as a result of negotiated outcomes by the Aboriginal Land Rights (Northern Territory) Amendment Bill 2018, currently before the House of Representatives—see previous FlagPost on that Bill), and five awaited regulatory determinations on claimed inter-tidal zones and the beds and banks of rivers.
The other method is for Parliament to add a description of the land to be granted to Part 4 of Schedule 1 of the Act. The Minister then establishes, by notice published in the Gazette, an Aboriginal Land Trust to hold the land and recommends that the Governor-General grant the land to the Trust. This mechanism facilitates negotiated outcomes and is not limited to unalienated Crown land, but requires Parliamentary action.
While in office, both the Coalition and the ALP have committed to resolving longstanding claims, and a number of high profile claims including the Jabiluka land claim in 2013 and the Kenbi land claim in 2016 have been resolved in recent years. In the second reading speech to the Bill, the Government recommitted to ‘finalising land claims in the Northern Territory which have remained unresolved for decades’. Past manifestations of the Government’s commitment include a grant of $7.5 million to the Northern Land Council to assist with finalising unresolved claims in the post Blue Mud Bay case era, an additional $1 million in funding to the Commissioner to help resolve outstanding claims, and a review of detriment issues by the Commissioner to enable the 16 grants recommended but not yet made to be finalised by the Minister.
Discussion
Since the Native Title Act 1993 was passed, Parliamentary action to grant land by amending Schedule 1 of the Act has become more common. Aboriginal native title holders in the Northern Territory have, in this and previous cases, agreed to surrender Native Title over land in exchange for the greater security of tenure provided by land rights title under the Act. For example, the Aboriginal Land Rights (Northern Territory) Amendment Bill 2018, currently before the House after being passed by the Senate (as the Aboriginal Land Rights (Northern Territory) Amendment Bill 2017), gives effect to the Urapanga Indigenous Land Use Agreement, in which Native Title holders surrendered native title over parts of Urapanga in exchange for Land Rights title over some lots of land within Urapanga. As an indication of the delays inherent in waiting upon Parliamentary action, the Urapanga Indigenous Land Use Agreement was agreed by the parties in 2005; should the House fail to pass the Bill before being prorogued for an election in 2019, further delays can be expected.
These delays highlight the highly administrative nature of the Act as it has come to be applied. In cases not falling under the purview of the Commissioner, granting land to traditional owners requires Parliament to amend the primary text of the Act by adding the land to a Schedule of the Act. In effect Parliament must administer the Act directly, instead of the application of the Act to individual cases being administered by the Commissioner, legislative instrument, delegated authority, regulation, or other governance mechanisms.
This somewhat cumbersome method is a legacy of the decisions made by the Fraser Government to restrict the application of the Act to unalienated Crown lands and lands explicitly listed in the Schedules. Parliamentary Library analysis at the time the Act was passed suggested that this was done in order to protect existing land interests in the Northern Territory, particularly pastoral lease holders, from any future claims. In contrast, the lapsed Whitlam Government Bill would have allowed the Commissioner to advise the Minister upon, and the Minister to create Land Trusts for, land not explicitly included in the Schedules. As hostility to land rights in the NT has dulled with time and since the legal watershed of the Mabo decision the Government may wish to consider reviving this less prescriptive mechanism if it wishes to finalise current and future Northern Territory land rights claims in a timely manner.