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The great majority of the land mass of northern Australia has been claimed or recognised under land rights or native title legislation. Land is the greatest asset for Aboriginal and Torres Strait Islander peoples in the region. But the huge challenge today is leveraging land and sea assets for the economic and social advancement of Indigenous communities.
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This report examines the nature of this challenge and considers the potential for making the best use of the opportunities provided by title to land.
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A principal challenge for utilising land assets for economic development is the limitations of the rights provided by the different forms of Aboriginal and Torres Strait Islander land tenure, and the variety of different Commonwealth and state/territory legislative and administrative regimes which define that tenure and provide for its application. A glance at a map of land title in northern Australia reveals a patchwork of often overlapping systems and rights. Of special concern is the obstacles in the way of making land a fungible asset for use for investment in commercial and other enterprises.
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Secondly, traditional owner organisations are confronted with a huge range of tasks that they are expected to manage with extremely limited financial and institutional resources. Representative bodies and other Aboriginal and Torres Strait Islander organisations are expected to:
meet the statutory and other obligations created by native title and land rights
discharge governance responsibilities
advocate on behalf of communities
conduct the consultations and negotiations necessary in
agreement-making
facilitate the take-up of opportunities for economic and social development.
There is an urgent need to re-think funding arrangements for representative bodies and to broaden the support they receive.
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This report does not aim to be a comprehensive survey of the overall economic challenges facing Aboriginal and Torres Strait Islander peoples in northern Australia. Rather, it focuses on the opportunities and challenges for traditional owners associated with land rights, native title and other
land-related agreements, especially as it relates to structure and funding of representative bodies, other Indigenous organisations and government entities.
Landscape of native title and land rights
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This section describes the landscape of native title and land rights and the architecture of the various bodies associated with the systems that have grown up since the 1970s.
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There are two main forms of Aboriginal and Torres Strait Islander rights to land. The first form is land rights in the Northern Territory under the Aboriginal Land Rights Act 1976 (ALRA), and the second is native title rights under the Native Title Act 1993 (NTA), which is applicable across all jurisdictions. As detailed in Chapter 2, land rights under ALRA provide a stronger form of title than native title under NTA, with a representative from the Attorney-General’s Department describing native title under NTA ‘not as useful for a range of purposes’, as land rights under ALRA.
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In the report, land rights will refer to Aboriginal tenure under the ALRA, providing inalienable Aboriginal title to land, while native title will refer to rights conferred under the NTA. 78 per cent of land in northern Australia has been claimed or recognised under land rights or native title legislation as at December 2018.
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The NTA establishes the regulatory and legal framework for the operation of native title organisations – namely, Native Title Representative Bodies (NTRBs), Native Title Service Providers (NTSPs), Prescribed Bodies Corporate (PBCs) and Registered Native Title Bodies Corporate (RNTBCs).
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In addition, each of the jurisdictions in northern Australia has legislation governing different approaches to Aboriginal and Torres Strait Islander title and land management. See Appendix C for a list of the principal statutory land rights schemes and native title legislation in Australia.
Native title
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Native title recognises, under Australian common law, pre-existing communally held Indigenous rights and interests according to traditional laws and customs. Native title is often described as a ‘bundle of rights’ in land, meaning a collection of rights. These rights may include the right to camp, hunt, use water, hold meetings, perform ceremony and protect cultural sites. It is important to note that native title only recognises the right to perform certain activities which come from traditional laws and customs but does not recognise those traditional laws and customs themselves. When a native title claim is determined, not all rights within the bundle are automatically granted.
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The NTA establishes statutory processes through which native title rights to land and waters can be recognised. For 35 per cent of native title land nationally, this includes a right to exclude others and is referred to as ‘exclusive’ native title. Exclusive possession native title rights are valued like freehold title. In most cases, native title is found to exist alongside other
non-Indigenous property rights, such as pastoral leases. This form of native title is referred to as non-exclusive possession because others also have rights to the land. Non-exclusive native title rights may include the right to access, hunt and camp on traditional country, but not the right to control access to, and use of, an area.
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For native title to be recognised under the NTA, claimants must demonstrate a connection to land and waters in accordance with traditional laws and customs. Native title may be extinguished by past activities over land and waters, in which case the NTA may provide an entitlement to compensation.
Prescribed Bodies Corporate (PBCs)
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Under the NTA, after native title has been determined, native title holders are required to register a PBC. PBCs are often formed in the pre-determination phase to negotiate agreements. PBCs hold, manage and protect native title on behalf of common law holders. They have a range of statutory obligations, including:
basic compliance activities
negotiations and agreement-making
monitoring and implementation of agreements
management and distribution of benefits to members.
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There are three main regimes governing PBC functions: the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act), NTA and PBC Regulations.
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In addition, PBCs are increasingly expected to carry out roles associated with state and territory legislation, to act as sources of legal and consultative advice, as well as involving themselves in community development activities. PBCs have the potential to act as vehicles for the broader aspirations of native title holders. They also often seek to undertake activities relating to cultural heritage, advocacy, land management, enterprise and service delivery.
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The corporate design of a PBC will be influenced by a range of considerations including the traditional laws and customs of the native title group, whether it is located in a remote, regional or urban area, as well as its size and future aspirations. PBCs do not necessarily operate under that title, but may choose to adopt other names, such as an Aboriginal Corporation.
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The number of PBCs is growing as more native title claims are resolved. As at May 2021, there were 232 PBCs, while the NNTT reports 128 outstanding claims of native title on their register.
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PBCs have obligations to all common law native title holders, not all of whom will necessarily be members of the PBC. A PBC’s membership may provide a rough indication for the size of the group that the PBC represents. In 2018, the median PBC had 116 members, 25 per cent had fewer than
40 members and 25 per cent had more than 248.
Native Title Representative Bodies and Service Providers (NTRB/SPs)
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NTRB/SPs provide native title services and support at a regional level to PBCs and native title claimants. There are fifteen NTRB/SPs across the country, with ten in northern Australia. Key functions include:
Supporting native title claims
Assisting traditional owners with agreement making
Certifying applications and agreements
Notifying traditional owners of potential impacts on their native title.
Native title in northern WA
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There are three NTRB/SPs operating in northern WA: Kimberley Land Council, Yamatji Marlpa Aboriginal Corporation, and Central Desert Native Title Services.
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The bulk of exclusive native title in Australia is in Western Australia (WA), including northern WA. In northern WA, 13 per cent of land is covered under state statutory land rights legislation, under the Aboriginal Affairs Planning Authority Act (WA). This land largely overlaps with native title.
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WA is not generally considered to have a statutory land rights regime. The Aboriginal Affairs Planning Authority Act 1972 designates reserved land for the ‘use and benefit’ of Aboriginal inhabitants. The land is held by the Aboriginal Lands Trust under a government-appointed board.
Native title in northern Queensland
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There are five NTRB/SPs operating in northern Queensland: the Torres Strait Regional Authority, Cape York Land Council, Carpentaria Land Council, North Queensland Land Council and Queensland South Native Title Services. There are 71 PBCs in this region, which is over a third of all PBCs. Seven per cent of land in northern Queensland is covered by one of several state-based statutory land rights regimes. This land largely overlaps with native title.
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Provision for land rights also exists in Queensland under the state’s Aboriginal Land Act 1991 (ALA), which both parallels and overlaps with native title. Further references to the rights provided by ALA are made later in this chapter.
Native title and land rights in the Northern Territory (NT)
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As mentioned, the NT has a system of land rights under ALRA, alongside the native title system established by the NTA. Both are acts of the Commonwealth.
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The NTRB/SPs in the Northern Territory (NT) are the Central Land Council (CLC) and Northern Land Council (NLC). The NLC also performs NTRB/SP functions for the Tiwi Islands and Groote Eylandt. Almost all native title in the Northern Land Council region is held by the Top End Default PBC, which is the default PBC for all positive determinations of native title in the NLC region. Almost all native title in the NLC region is managed by the Top End Default PBC, representing 58 per cent of all native title land in the NT and 70 separate determinations. Future determinations are also likely to be managed by the Top End Default PBC, so few new PBCs are expected
Procedural rights under the NTA
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The NTA contains a number of procedural safeguards and rights to ensure native title claimants and holders are notified, consulted. In some circumstances they have the opportunity to negotiate or enter into agreements with project proponents before any development activities occur.
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The primary source of these processes is the ‘future acts’ regime of the NTA, which sets out requirements which must be met before development and other activities on native title land can be done. Depending on the kind of activity being proposed, this can include a requirement to notify, consult or negotiate with native title claimants and holders.
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In the case of mining and exploration, native title holders or claimants have the right to negotiate with the proponent, including negotiating for compensation for the impairment of their native title rights. Such agreements are referred to as section 31 agreements.
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Alternatively, the NTA allows traditional owners to enter into an Indigenous Land Use Agreements (ILUAs) with proponents of development. An ILUA is a voluntary agreement about the use and management of land or waters where native title exists or might exist. Once registered by the National Native Title Tribunal (NNTT), an ILUA is legally binding not only on the people who are parties to the agreement but also on all native title holders for that area.
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NTRB/SPs and PBCs are required to act on the consent of the native title holding group when making decisions relating to native title.
Land Councils
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There is a range of bodies called Land Councils across northern Australia which play important roles in the management of native title and land rights regimes. Their similar titles, however, belie that fact that they can be very different bodies with differing histories, activities and roles in relation to legislation in Commonwealth and state/territory jurisdictions. The first Land Councils were formed as advocacy bodies in the 1970s to organise in support of the rights of Aboriginal and Torres Strait Islander peoples, in relation to land issues and to the advancement of Aboriginal and Torres Strait Islander people in general. The Councils have taken on other responsibilities as legislation governing land rights and native title has been enacted.
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In the Northern Territory, Land Councils were created to assist Aboriginal people to claim land under ALRA. They have additional functions in managing the use of such lands, which are held as inalienable freehold by Aboriginal land trusts whose members are traditional owners. They have overseen the implementation of land, water and sea tenure covering approximately
45 per cent of the Northern Territory landmass and 85 per cent of its coastline and have become key institutions in the governance of the Northern Territory more generally..
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As mentioned above, the Tiwi Land Council (TLC) Anindilyakwa Land Council (ALC) are not NTRBs, but carry out other functions for traditional owners, including the administration of Land Trusts.
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In WA and Queensland, Land Councils and Aboriginal Corporations have also taken on the roles of NTRBs under the NTA, while continuing to perform other roles for local traditional owners. Most were established before the passage of the NTA.
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The Indigenous Reference Group (IRG) observed that:
‘Land Councils’ (in their various forms) have been instrumental in establishing land, water and sea rights for Indigenous people in Northern Australia. The land rights advocacy activity of some of these organisations in the early 1970s was critical in driving change and creating awareness among Australian political institutions and the wider electorate, of what is becoming an increasingly better and more widely understood injustice.
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In a similar vein, the National Native Title Council (NNTC) stated that:
Land councils are uniquely placed to support Aboriginal-driven development. In their respective regions, they possess unequalled relationships with communities and traditional owners, multi-disciplinary expertise in Aboriginal governance, land tenure, agreement-making, land management, and a vast footprint built up on decades of experience working with and for Aboriginal constituents in the region.
The NNTC also noted that the Councils ‘perform a range of functions outside their defined statutory responsibilities under the NTA and Aboriginal Land Rights (Northern Territory) Act 1976’.
Native title and land rights in the northern economy
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Evidence to the Committee highlighted the critical role of land in facilitating Aboriginal and Torres Strait Islander economic empowerment. With the majority of northern Australia’s landmass covered by some form of land rights or native title, land is the key asset upon which Aboriginal and Torres Strait Islander peoples’ participation in the modern commercial economy will be based. In these circumstances, a great deal depends on ensuring that land rights and native title legislative and administrative arrangements, institutions and relationships operate well.
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This view was put to the Committee by the National Native Title Council (NNTC), which highlighted the importance of a well-functioning native title system to the economy of northern Australia, both for Aboriginal and Torres Strait Islander peoples and for the region as a whole:
To the NNTC an efficient and effective native title system can make a vital contribution to Australia’s community and economy, particularly in Northern Australia. The native title system is an important component of the nation’s land management processes and a vital component in the minerals and petroleum exploration and production industries. Crucially, the native title system can create an opportunity for both a resurgence of Indigenous culture and also opportunities to create economic advancement and independence for Australia’s Indigenous Peoples … particularly for remote and regional communities.
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Similarly, the Cape York Land Council submitted:
Economic development for Traditional Owners in Northern Australia, including Cape York, will substantially be based on the productive use of Indigenous peoples’ rights and interests in land and sea. Generally speaking, land is Indigenous peoples’ main asset and potential means of production in Northern Australia. Challenges exist to establishing economic uses of Indigenous land, but CYLC’s experience in working with Indigenous land rights and interests on Cape York demonstrate that a set of arrangements can be established that enable and enliven the productive use of land and engage Traditional Owners in economic development, creating employment and wealth in the process.
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The submission from the Office of Northern Australia highlighted the importance of Aboriginal and Torres Strait Islander lands to the northern economy:
Land rights, native title and Indigenous land holdings are particularly important to development in northern Australia. Seventy eight per cent of northern Australia is either Indigenous land, subject to native title, or subject to an unresolved native title claim. ... Enabling Traditional Owners and other Indigenous people to leverage their assets for economic development is a critical pathway to improving quality of life and autonomy for current and future generations.
Conduct of the inquiry
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On 18 October 2018, the Chair of the Committee, Hon Warren Entsch MP, wrote to the Minister for Resources and Northern Australia, Senator the Hon Matthew Canavan, seeking his endorsement for the inquiry, with terms of reference attached. On 4 December 2018 the Minister endorsed the inquiry. The inquiry received 26 submissions and held one hearing in February 2019. The inquiry lapsed when the Committee ceased to exist at the dissolution of the House of Representatives on 11 April 2019.
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On 1 August 2019, Mr Entsch again wrote to Minister Canavan, seeking
re-endorsement of the inquiry for the 46th Parliament. On 26 August 2019 the Minister conveyed his support for the inquiry. The inquiry received a further 31 submissions from Aboriginal and Torres Strait Islander organisations, academics, private individuals, and Commonwealth, state and territory government agencies. Nine hearings were conducted from October 2019 to December 2021.
The report
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Chapter 2 demonstrates the need for Aboriginal and Torres Islander representative bodies and other organisations to be provided with increased secure, long term funding and other forms of support, in the context of the responsibilities and expectations placed upon them. This reflects the fact that they are bodies that will exist in perpetuity and will carry an ongoing burden of discharging statutory obligations and supporting the economic and social development of their communities. The chapter describes the responsibilities that have been placed on bodies such as PBCs, NTRB/SPs and Land Councils, the complexity of the legislative and administrative systems in which they operate, the problems created by the various forms of land tenure and the efforts that have been made to overcome such problems.
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Chapter 3 provides details of the government entities designed to provide support for Aboriginal and Torres Strait Islander economic enterprises. It discusses the resourcing and legal constraints the entities face, and reviews their record in promoting economic and social development for traditional owner communities in northern Australia.
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Chapter 4 examines the strategies that Aboriginal and Torres Strait Islander peoples have adopted to leverage their title to land. It outlines the importance of the community-based character of most traditional owner economic activity and the role of collective decision-making. The chapter considers the economic activities that traditional owners have been involved in and new initiatives that are being taken. Discussion is focused on areas, such as environmental management, that bolster cultural and community strength, use traditional knowledge and care for country. The challenges of participation in other industries such as pastoralism and mining are also explored.
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Chapter 5 concludes with an overview of the main findings of the report.