Overview 

The Aboriginal Land Rights (Northern Territory) Amendment Bill 2017 (the Bill), introduced in the Senate on 6 December 2017, amends the Aboriginal Land Rights (Northern Territory) Act 1976 (the Act). The Act sets out a scheme for the claiming, granting, control and management of Aboriginal land in the NT. It was closed to new claims in 1997.

The Act provided two main paths for land to be granted to traditional Aboriginal owners. One involves applying to the Aboriginal Land Commissioner, seeking recognition of a group's traditional attachment to land. The Commissioner then conducts an inquiry and reports to the Minister whether a grant should be made. This does not need parliamentary action, but the land claim inquiry is usually lengthy.

Alternatively, as in this case, Parliament adds a description of land to Part 4 in Schedule 1 of the Act. The Minister then establishes 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, but requires Parliamentary action.        

The Bill was initially presented in two Schedules. Since the Bill’s introduction the Government has circulated an additional third Schedule, to list Anthony Lagoon lands in Schedule 1 of the Act.  The amendments:

• add parcels of land within the Kakadu National Park, the township of Urapanga, and (in proposed amendments to the Bill) Anthony Lagoon station to the listing in Schedule 1 of the Act, enabling them to be granted as Aboriginal land. These additions enact agreements made with the land claims parties over the Kakadu and Anthony Lagoon lands, and in the Township of Urapanga Indigenous Land Use Agreement which resolved Native Title claims over Urapanga
• make the Kakadu grants conditional upon the Aboriginal land owners leasing the land to the Director of National Parks (the Director) so that it may continue to be part of the National Park (this is consistent with previous Kakadu land grants). These lands, currently the subject of Land Claims 93, 111, 122, and 179, are shown on the map below. This grant is unlikely to affect the Park’s operations, as all areas of Kakadu National Park are already co-managed with traditional owners and the grants and accompanying leaseback are anticipated in the Kakadu National Park management plan
• resolve issues connected with the separate corporate identity of the Director from the Crown, who holds land interests (in National Parks) separate from the Crown’s interests. In general, land rights can only be granted under the Act if no entity other than the Crown has an estate or interest in the land. Currently there is no requirement for the Director’s land interests to be acquired before land rights are granted when a land grant recommendation is made by the Commissioner (subsection 11(1A) of the Act), but this exemption does not cover the ‘Parliamentary action path’ of addition of the land to Schedule 1 of the Act. Proposed subsection 10(4) addresses this by stipulating that the Director’s interests in Kakadu will be taken to be the Crown’s interests and therefore will not impede land rights grants to the traditional owners and
• repeal redundant references to the Kakadu lands in other parts of the Act and repeal subsection 11(1A), as there will no longer be any land subject to overlapping National Park and unresolved Land Rights claims to which the subsection could apply.

In the second reading speech, Senator McGrath stated that the land grants are supported by the Northern Territory Government and Northern Land Council.  The Joint Select Committee on Human Rights reviewed the Bill in Scrutiny Report 1 of 2018 and raised no concerns. The Senate Standing Committee for the Scrutiny of Bills reviewed the Bill in Scrutiny Digest 1 of 2018 and made no comment. Bills which recognise negotiated Aboriginal Land Rights claims by adding them to Schedule 1 of the Act have historically received bipartisan support.

Map of Kakadu Land Claims

Historical Background

The Fraser government passed the Act with bipartisan support, after the dismissal of the Whitlam government meant the Aboriginal Land (Northern Territory) Bill 1975 lapsed. The Act and Whitlam’s Bill both responded to Justice Woodward’s 1973–1974 Aboriginal Land Rights Commission report. Whitlam’s Bill included rights over sea country, and Fraser’s Act limited the powers of Land Councils to prevent some mines, including the Ranger Uranium mine.

Justice Fox’s 1975–77 Ranger Uranium Environmental Inquiry coincided with preparation for Land Rights legislation. Accordingly, Justice Fox was given the powers of the Commissioner to examine land rights claims to the Kakadu area. Justice Fox found that Aboriginal groups had traditional land rights and endorsed a Northern Land Council suggestion that Kakadu be granted to traditional Aboriginal owners, then leased back to the Commonwealth and declared a National Park. Some areas were excised for uranium mines and the associated township of Jabiru. The bulk of current Aboriginal land within Kakadu is grants recommended by Justice Fox, or from the 2013 Jabiluka land grant.

Kakadu National Park was extended in 1984, 1987, 1989 and 1991 by resuming or purchasing neighbouring pastoral and mining leases. Justice Fox had not recommended these for land grants as they were not unalienated Crown lands in 1976. As these lands became part of the National Park and thus Crown Land, traditional owners have made claims over them. It is these claims which the Bill seeks to settle.

Recently, a number of other high profile, long standing claims including the Jabiluka land claim in 2013 and the Kenbi Land Claim in 2016 have been resolved. In the Second Reading Speech to the Bill, the Government commits to ‘finalising land claims in the Northern Territory which have remained unresolved for decades’. Past manifestations of this 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, and a review of relevant issues by the Commissioner.

Previous operation of the Act

As set out above, the Act provided two main paths for land to be granted to traditional Aboriginal owners. Both paths have proven lengthy. The Urapanga Indigenous Land Use Agreement given effect by this Bill was agreed by the parties in 2005, and the Anthony Lagoon Area Claim (74/NLC) was lodged in 1983. The Act was closed to new claims in 1997, but as of 2017, 16 grants recommended by the Commissioner between 1981 and 2004 had not yet been acted upon, three claims were still being inquired into, 11 (including the Kakadu and Anthony Lagoon Area claims) were still being negotiated between parties, and seven awaited regulatory determinations on claimed inter-tidal zones and the beds and banks of rivers.

Implications

The lease of Kakadu is renegotiated on a five yearly basis, with the next review in 2021. With title over the whole Park, traditional owners might seek higher rental payments, changes in co-management, or more vigorous enforcement of their existing rights under the lease.

Details of the Urapanga Indigenous Land Use Agreement are not public, but resolving the township’s status will presumably give security of tenure to the parties involved and therefore assist town planning and economic development.

It is not clear whether the Anthony Lagoon grant (of 603.5 hectares) will have any impact on the Anthony Lagoon station. Parts of Anthony Lagoon station were also found to be under non-exclusive Native Title in 2014.