3.1
This chapter will canvass the range of views the Senate Finance and Public Administration Legislation Committee (the committee) received from submitters regarding the Aboriginal Land Rights (Northern Territory) Amendment (Economic Empowerment) Bill 2021 (the bill).
3.2
It will examine a number of key issues in greater detail, including:
concerns around the consultation process for the development of the bill;
matters relating to the establishment and operation of the Northern Territory Aboriginal Investment Corporation (NTAIC); and
matters relating to the streamlining of exploration and mining processes.
3.3
The chapter will conclude with the committee's views and recommendation.
Support for the bill
3.4
A number of submitters to the inquiry expressed support for the bill.
3.5
For example, the joint submission from the four Northern Territory (NT) Land Councils — the Anindilyakwa Land Council (ALC), the Central Land Council (CLC), the Northern Land Council (NLC) and the Tiwi Land Council (TLC) — expressed strong support for the bill and commended its passage into legislation without amendment.
3.6
Aboriginal Peak Organisations Northern Territory (APONT) and the Aboriginals Benefit Account Advisory Committee (ABAAC) also recommended the committee support the bill.
3.7
Additionally, the Minerals Council of Australia (MCA) informed the committee it supported the passage of the bill through the Senate, noting that the reforms in the bill would 'help bring forward minerals investment in a way that supports Traditional Owner aspirations and priorities'.
Other views
3.8
Other submitters to the inquiry expressed concern with various elements of the bill, in particular the adequacy and inclusivity of the consultation process surrounding the development of the proposed reforms to the Land Rights Act, and the speed with which the bill was proceeding through Parliament. Many of these submitters called for the passage of the bill to be delayed in order for greater consultation with Aboriginal Territorians to occur. This matter is discussed further below.
3.9
Additionally, a number of submitters drew the committee's attention to the matters (canvassed earlier in this report) raised by the Senate Standing Committee for the Scrutiny of Bills.
Consultation process
3.10
The consultation process undertaken in the development of the bill was a key issue raised during the inquiry. Some submitters expressed satisfaction with the consultation process, while others raised concerns and argued the process had been insufficient, particularly given the significance of the Aboriginal Land Rights (Northern Territory) Act 1976 (Land Rights Act).
Support for the consultation process
3.11
The NT Land Councils submitted that the design and development of the bill was 'open and transparent'. They emphasised that:
…unlike most other changes to ALRA [Aboriginal Land Rights Act (Northern Territory) Act 1976] over many years, the voice of Aboriginal people and their representatives were determinative of the substance of the reforms contained in the Bill.
3.12
Additionally, the NT Land Councils argued:
While others outside the Northern Territory may feel they have some claim to be consulted on the reforms, it is those directly affected by the changes – Aboriginal people across the Northern Territory – who have been consulted through their Land Council membership.
It is for this reason the Aboriginal Land Councils of the Northern Territory, on behalf of our constituents, support the reforms and recommend the Committee support the passage of the bill without amendment.
3.13
APONT informed the committee that the process followed in developing the reforms contained in the bill 'set the standard' for what partnership and shared decision making should look like.
3.14
It advised that the fundamental principle of Aboriginal people being directly involved as partners in the reform process was followed throughout, commenting:
There are few examples of reform that have so comprehensively involved the Aboriginal people directly affected, as the reforms contained in the bill currently before the Parliament.
3.15
The National Indigenous Australians Agency (NIAA) described the reforms as being developed 'in partnership' with Aboriginal peoples in the NT. It informed the committee that it had worked together with the NT Land Councils for the past three and a half years to develop the package of reforms that led to the bill. It also noted that it had ‘consulted closely’ with the ABAAC, which currently provides advice to government on Aboriginals Benefit Account (ABA) beneficial payments.
3.16
The NIAA explained the process as follows:
The NIAA, Aboriginal industry and Territory Government stakeholders have come together in partnership to design the Economic Empowerment Bill over 26 meetings since 2018 and we are continuing to consult with Aboriginal stakeholders as the Bill progresses through Parliament. This is in addition to the consultation undertaken by the Northern Territory Land Councils across their membership, with four meetings of the joint Land Councils, and ongoing meetings within each of the Land Council regions.
3.17
The NIAA also provided the following infographic to illustrate the consultation process that led to the bill:
3.18
The NIAA highlighted the central role of the Land Councils under the Land Rights Act in representing Traditional Owners in the NT. It noted that one of the core statutory roles of the Land Councils is to seek the consent of Traditional Owners and consult other Aboriginal peoples living within their region on a range of matters relevant to Aboriginal land.
3.19
APONT also emphasised the grass-roots role of the NT Land Councils, reporting that they provided a voice for Aboriginal Territorians across towns, regions, remote communities, homelands and outstations 'across the length and breadth' of the NT.
3.20
The NT Land Councils informed the committee that through their elected representatives they represented the 'aspirations and interests' of Traditional Owners and other people resident in the NT on issues affecting lands, seas and communities.
3.21
Their joint submission set out details of the meetings of the CLC, NLC and TLC where the development and content of the bill had been the subject of discussion and consultation.
3.22
At the public hearing, the committee queried the CLC about what Land Council engagement with local communities looked like. Mr James Nugent, Executive Manager of Professional Services for the CLC, explained:
Because the council members who've sought the reform are elected—and, in the CLC's case elected from amongst 75 communities, outstations and/or organisations—those delegates bring the views of their constituencies with them to the council meetings. Over the last six years, this council and the four land councils have certainly engaged, I think our records show, in 12 discussions where the councils have met in communities, in meetings of the council that are open to communities to discuss these matters, as well as the executives—smaller committees of each land council—who have then met to progress discussions either amongst themselves, based on their own constituents' views or with government agencies.
3.23
The NIAA stated that throughout the co-design process, the Land Councils had continued to take on board the views of their constituents, including the Traditional Owners and other Aboriginal people living in the NT. The NIAA detailed:
The four Land Councils have held four joint meetings about the reforms since 2016. The reforms have been discussed at 19 Central Land Council meetings since 2015 and the Northern Land Council has discussed the reforms regularly at the roughly 20 full, executive and regional council meetings they hold each year.
Responding to calls for change
3.24
The committee heard that the co-design and consultation process for the proposed reforms to the Land Rights Act had been ongoing for a number of years, based on long-standing calls for change from Aboriginal Territorians.
3.25
For example, the ABAAC and APONT emphasised that NT Land Councils had been calling for Aboriginal control over the ABA over almost 40 years.
3.26
The Land Councils advised that they had sought to guide the reform process in keeping with the views of their Aboriginal constituents whilst working in partnership with the Commonwealth Government.
3.27
They explained that they had taken the initiative to develop principles to guide the reform process of the ABA, noting that the proposal to develop these principles was agreed at the joint meeting in Kalkarindji in June 2016. Development of the principles with their constituents subsequently occurred during 2017, and the 12 final principles were articulated at a joint meeting at Barunga in 2018.
3.28
The NIAA echoed that it was the members of the NT Land Councils who had developed a model for greater Aboriginal control of the ABA, noting that after endorsement in 2018 the 12 principles were submitted for government consideration.
3.29
The NIAA advised that the proposal for the NTAIC was built on those 12 principles through 'extensive, ongoing collaboration' with the NT Land Councils and their full membership.
3.30
Specifically, the NIAA explained that it had collaborated with the Land Councils and the ABAAC on the design of the NTAIC through 10 formal co-design meetings since 2018 and numerous working group meetings. It noted that the land administration changes in Schedule 3 of the bill were also requested by the Land Councils through this co-design process, with some of the changes seeking to remove unused or ineffective provisions inserted into the Land Rights Act in 2006 and 2007.
3.31
Further, the NIAA detailed that it had continued its partnership with the Land Councils and the ABAAC since the bill was introduced to Parliament by:
holding an additional two meetings with the Land Councils and the ABAAC; and
establishing a steering committee to prepare for implementation and establishment of the NTAIC's interim board, should the bill be passed.
3.32
APONT reiterated to the committee that the reform package in the bill was the product of a co-design process that took place over at least five years. It noted that the reforms, based on the abovementioned 12 guiding principles, had been 'openly discussed' in dozens of meetings among hundreds of grass-roots members of the Land Councils.
Concerns with the consultation process
3.33
A number of submitters raised significant concerns around the adequacy of the consultation process for the development of the bill, as well as with the short timeframe for the committee’s inquiry.
3.34
In raising their concerns, many of these submitters referred to the principle of 'free, prior and informed consent' and argued that it was unclear whether Aboriginal Territorians, in particular Traditional Owners and those in remote communities, had been meaningfully consulted in line with this principle. They argued that the co-design process was inherently flawed and placed too much weight on the views of the NT Land Councils.
3.35
Many of these submitters recommended the passage of the bill through the Senate be delayed to allow for further consultation on, and scrutiny of, the proposed reforms, particularly amongst the broader First Nations NT community beyond the Land Councils.
3.36
For example, the Australian Human Rights Commission (AHRC) recommended that the committee request a 'significantly longer' time frame for the inquiry in order to properly consider the bill and ensure that the amendments proposed had the genuine free, prior and informed consent of the Aboriginal Territorians who would be impacted, including but not limited to Traditional Owners.
3.37
In making this recommendation, the AHRC emphasised that its key concern was that there be 'no disadvantages' to Traditional Owners and other Aboriginal Territorians from the amendments proposed in the bill. It explained:
The Commissioner is particularly concerned that there be no increased difficulty for Traditional Owners being heard and respected in
decision-making about their country and the royalties from the use of their country.
3.38
The AHRC informed the committee that the right to free, prior and informed consent is enshrined in the United Nations Universal Declaration on the Rights of Indigenous Peoples (UNDRIP), which applies to First Nations peoples the right to self-determination found in the Universal Declaration on Human Rights.
3.39
The AHRC noted that free, prior and informed consent required genuine consultation. It further observed that, in the case of remote Aboriginal Territorians, achieving this genuine consultation would take time and resources.
3.40
In regard to the timeframe of the committee's inquiry, the AHRC flagged that the stakeholders most impacted by the amendments in the bill — remote Aboriginal Territorians, including Traditional Owners – were 'highly likely' to face barriers preventing them from being able to contribute to a Senate inquiry within the space of ten days
3.41
Additionally, the AHRC commented that it appeared as though the Commonwealth Government had delegated its responsibility to consult with Aboriginal Territorians to the NT Land Councils. While recognising the 'significant and unparalleled' capacity of the Land Councils to access and represent Traditional Owners and other Aboriginal Territorians, the AHRC reminded the committee that although consultation could be outsourced, the 'duty to consult' ultimately remained with the Commonwealth Government. It explained:
In relying on third parties — including land councils — to fulfil these obligations, Government should be able to demonstrate in a fulsome and transparent manner how these obligations have been met.
In the case of these proposed amendments, the combination of many unique factors makes it critical that the Government conduct an independent, culturally competent consultation process using the appropriate time and resources for a task of such gravity. The Human Rights Commission would like to be assured that this has happened and suggests that the Committee might also consider this appropriate.
Without clarity and transparency as to how representative the support for this legislation is, there is no certainty that the changes proposed in this Bill have the free, prior and informed consent of the Aboriginal Territorians affected.
3.43
Emeritus Professor Jon Altman, an economist and anthropologist who has undertaken research in the NT since 1979, submitted in a private capacity. He argued that questions remained around the extent to which Traditional Owners, custodians and other interested parties were aware of and consulted on the scope and legal effects of the proposed changes.
3.44
He voiced concern that the views of the Land Councils had been elevated at the expense of views held by other stakeholders:
…it appears that the views of the land councils who represent traditional owners on certain matters are being conflated with the free, prior and informed consent of all traditional landowners. However, a co-design process dealing with institutional mechanisms that potentially affect the balance of powers/responsibilities between land councils and traditional owners that is only undertaken with one side of the equation is arguably a flawed co-design process.
3.45
Mr Michael Dillon, a former senior public servant with the NT and Commonwealth Governments with experience in Indigenous policy and legislation, and former Chief Executive Officer of the Indigenous Land Corporation, submitted in a private capacity. Like Professor Altman, he also raised concern about the dominance of the Land Councils in the consultation process. He highlighted the complexities inherent in negotiating reforms that would impact the balance of power between Land Councils and other Indigenous stakeholders like Traditional Owners, and argued that as a result, a co-design process which engaged only with Land Councils was problematic.
3.46
Mr Dillon explained the dynamics at play:
At its core, this Bill impacts on the one hand the balance of power between land councils and a wide array of amorphous and dynamically evolving groups of traditional owners, and on the other hand, between the land councils and their constituent TOs [Traditional Owners] who own and manage land under Aboriginal tenure and a wider group of potential financial beneficiaries resident in the NT but who may have lost their land rights over the course of white colonisation and settlement, and thus have less engagement with land councils. The result has been to shift the balance of power in the legislation away from TOs to the land councils, and away from the wider group of potential beneficiaries to the land councils and their constituent TOs. Even just stating these facts demonstrates the complexities involved.
3.47
Mr Dillon continued:
The result has been a Bill that favours land councils over TOs, and that favours land councils and TOs over the wider group of potential beneficiaries. Yet the codesign process was undertaken only with the land councils. Yes, land councils have a proud history of representing TOs, and Aboriginal people generally across the NT; but in the context of designing a complex piece of legislation impacting different elements of the diverse Aboriginal population differently, it is patently inadequate to negotiate and codesign (effectively in secret) with just one of those elements.
3.48
Mr Yingiya Mark Guyula MLA made a submission in his capacity as Member for Mulka in the NT Legislative Assembly, Yolŋu elder and land owner from North East Arnhem Land, and senior leader of the Ḻiya Dhalinymirr people of the Djambarrpuyŋu clan. He informed the committee that greater consultation was required with Aboriginal Territorians due to the complex and significant nature of the reforms proposed in the bill. He advised that he was aware of many First Nations people in the NT who were unable to make a submission to the committee's inquiry but wanted more information about the bill and wished to engage in consultation on the proposed reforms.
I have now spoken widely to elders and leaders in my electorate and they do not know about any changes to the ALRA [Aboriginal Land Rights Act]. I have also spoken to members of the Land Councils from my own electorate and more broadly across the regions, and they have advised that they do not know the detail of the Bill. One councillor said, “we hear rumours about changes to the Land Rights Act but no one ever comes to talk to us about what it is.” Other councillors believed they would be consulted at their next meeting.
3.50
Mr Guyula also made comment on the potential limitations of a consultation process that relied too heavily on the NT Land Councils to gather views, given that he was aware of Aboriginal Territorians who were dissatisfied with their interactions with the Land Councils in consultations on other matters:
In my role as a parliamentarian I have been approached by many people from across the Northern Territory who feel that they may have been unfairly treated by a Land Council or unfairly impacted by a Land Council decision. Generally these issues include, where a person is not recognised by the Land council as a land owner, or where they are considered part of the land owning group but do not feel they have been thoroughly consulted on an issue.
3.51
Mr Guyula recommended that the bill be 'withdrawn or placed on hold' until there could be a greater level of consultation undertaken across the NT.
3.52
The Urapuntja Aboriginal Corporation informed the committee that it had not been consulted 'in any meaningful sense' in regard to the potential changes to proposed in the bill. As Chief Executive Officer, Mr Michael Gravener, outlined:
I am very aware most Traditional owners have not been informed or nor provided with any meaningful consultations. Delegates for the Utopia Homelands are limited in passing on information to our population of 700 people due to language, disempowerment, and distances that create an environment that experiences an intensity of poverty.
[Changes to] The 1976 ALRA [Aboriginal Land Rights Act] should not be passed until Aboriginal owners understand and consent to the nature and Purpose of amendments. In addition any Aboriginal communities or groups that may be affected need to be consulted and be given adequate opportunity to express their views. We feel that we have not been consulted adequately and that the vast majority of our people are unaware of the impending changes to this important Act.
3.53
A submission received from the Ngurratjuta/Pmara Ntjarra Aboriginal Corporation expressed similar sentiments:
We were never aware of it [the co-design process] and we think that is the case for most if not all community organisations across the Northern Territory. There were no public announcements by the Coalition Government that such a process was underway. Unlike with the co-design process that was led by the Coalition Government to develop the National Agreement on Closing the Gap, there was no agreement negotiated or published beforehand as to how the co-design process was to be conducted and more importantly there wasn’t any formal engagement process with communities and their organisations. We and many other communities and their organisations had no input which is unfair and unjust and meanwhile the Government which is proposing that Parliament agree to this Bill has not involved us.
3.54
The Ngurratjuta/Pmara Ntjarra Aboriginal Corporation also argued it was problematic to base the consultation process solely around Land Councils:
Communities are each able to choose one or two traditional owners to be Land Council members but that does not constitute a fully representative body. Moreover, many traditional owners do not engage with the Land Councils and have chosen to establish their own organisations to advance their interests which is their human right. This is no different to non-Indigenous people choosing if they want to engage with government bodies and deciding to make a choice about who should represent them. We should not be forced to be represented by Land Councils only.
3.55
Mr Ian Mongunu Gumbula, a senior cultural elder from the Ngukurr and Galiwinku Community in the NT, called for more time for people in his community to be involved in consultation:
Our people out on country do not know that this Bill is in parliament. They have not heard about the changes.
There were no consultations or engagement with our people out on our country. That means that the great majority have been excluded from the process.
The Bill has over 80 pages of changes to the Aboriginal Land Rights Act and it is complex law. We don’t know what all of these changes mean and while these amendments may be helpful, we have not had time to understand or give our consent or consideration to the changes. We hold concerns about some of these changes and whether they are going to grow our self-determination or disempower us.
The creation of a new corporation for investment and economic development may be good. But we need to see the detail and we need to say if this model supports self determination.
Issues relating to NTAIC
3.56
Submitters to the inquiry raised a number of matters relating to the establishment and operation of the NTAIC. These included:
the design and purpose of the NTAIC;
the composition and representativeness of the NTAIC Board; and
the adequacy of the governance and review arrangements of the NTAIC.
3.57
These three issues will be examined briefly below.
Design and purpose
3.58
As outlined earlier in this report, the NTAIC will be an Aboriginal-controlled corporate Commonwealth entity that will:
strategically invest in Aboriginal businesses and commercial projects; and
make other payments for the benefit of Aboriginal peoples in the NT.
3.59
Specifically, the bill provides that the NTAIC's statutory purposes are:
(a)
to promote the self-management and economic self-sufficiency of Aboriginal people living in the NT; and
(b)
to promote the social and cultural wellbeing of Aboriginal people living in the NT.
3.60
The NTAIC will replace the ABAAC and its establishment will allow Aboriginal Territorians to directly make decisions about ABA funding.
3.61
The ABA collects and distributes royalty equivalents from mining on Aboriginal land. The Commonwealth Government pays amounts equivalent to royalties generated for the NT Government from mining on Aboriginal land into the ABA. It has a current balance of around $1.3 billion and is expected to grow steadily.
3.62
Currently, all decisions about ABA funding, including those on beneficial payments, are made by the Commonwealth Government. For example, while the ABAAC provides advice to the Minister for Indigenous Australians about beneficial payment funding priorities, decisions are ultimately made by government and the ABA beneficial payments are then administered by the NIAA through a grants program.
3.63
The NIAA informed the committee that the NTAIC fundamentally aims to create opportunities for Aboriginal Territorians to build long term prosperity by:
increasing Aboriginal control of funding debited from the ABA; and
empowering Aboriginal Territorians to determine their own funding priorities based on local knowledge, cultural and financial expertise.
3.64
In specific terms, the NIAA advised that the NTAIC will have a broad economic remit and will be able to:
make beneficial payments;
invest in Aboriginal businesses;
invest its surplus funding in financial markets to generate returns to feed back into community;
provide financial assistance (like sponsorships and loan guarantees);
make loans to Aboriginal businesses;
borrow additional funding;
enter into joint-ventures and other partnerships; and
form companies and subsidiaries.
3.65
As noted earlier in this chapter, NT Land Councils have been calling for Aboriginal control over the ABA for over 40 years. The joint submission from the Land Councils conveyed their support for the NTAIC and reiterated that they had sought to guide the ABA reform process in keeping with the views of their constituents.
3.66
APONT expressed support for the establishment of the NTAIC. In doing so it commented that while the ABAAC had done a good job under the limitations placed on it, the current system was 'desperately in need of improvement' due to slow processes, excessive red tape and a reactive (as opposed to strategic) focus.
3.67
The ABAAC also voiced support for the establishment and purpose of the NTAIC, stating:
The proposed establishment of the NTAIC demonstrates that Government no longer focuses on the weakness[es] and deficits of Aboriginal decision making processes and, is prepared to acknowledge the strengths, success and dedication that we as Aboriginal people have in relation to ensuring the economic future of our people through large and long term investments and self-determination.
3.68
The Indigenous Land and Sea Corporation (ILSC) indicated it was supportive in principle of providing the NTAIC with the legislative scope to effect change for Aboriginal Territorians. However, drawing lessons from its own experience, it suggested that the purposes of the NTAIC may be more effectively served through the inclusion of two additional key provisions within the bill:
(i)
Consideration should be given to the introduction of a requirement for the granting of NTAI acquired (land and water-based interests) assets into the control of Aboriginal Corporations to achieve the purposes of the reform more directly.
(ii)
Consideration of additional provisions in relation to consultation on the development of the NTAIC's strategic investment plan.
3.69
In regard to the first point, the ILSC explained its reasoning as follows:
The ATSI Act [Aboriginal and Torres Strait Islander Act 2005] requires that the ILSC acquire interests in land and water-related rights for the purpose of granting those interests to Aboriginal or Torres Strait Islander corporations.
In the experience of the ILSC, this requirement supports the realisation of benefit by and for Indigenous Australians; maximises economic self-sufficiency and self-management and builds on the capability of Aboriginal and Torres Strait Islander corporations. This experience has directed the ILSC’s recent strategy focus strongly on granting assets more quickly, reflecting the ILSC’s observations that: (i) the value of assets are better realised on the balance sheet of Indigenous organisations than ‘on the books’ of a Statutory entity; and (ii) Indigenous people derive more direct benefits when they own, control and manage the property themselves.
3.70
In regard to the second point, the ISLC outlined:
The ILSC notes the requirement for consultation with Aboriginal people and Aboriginal organisations across the Territory under cl.65C(2)(a) however it is suggested that, specifically setting out the detail on how consultation will extend beyond the existing network of the four Land Councils framework would be prudent. This would increase confidence in the Strategic Investment Plan’s ability to achieve the purpose of the NTAIC.
A shift in priorities
3.71
Some submitters expressed concern that the design of the NTAIC would lead to a shift in the priorities of the ABA, which could disadvantage some Aboriginal Territorians.
3.72
For example, Professor Altman argued that the mix of purposes and functions of the NTAIC (including economic self-sufficiency and socio-cultural goals) would likely be 'extraordinarily challenging' to manage. He noted this was likely given that the 'grant function' of existing section 64(4) of the Land Rights Act would be 'intermingled with an investment instrument'. He expressed concern that the NTAIC may look to prioritise investment over grant-making, noting that government statements on the bill appeared to give little reference to the social and cultural aspirations of the Aboriginal Territorians.
3.73
At the public hearing, Professor Altman elaborated on this concern:
[The NTAIC] has three functions, and these are far from clear. One of the functions is to pick up that role under the land rights act under section 64(4) to make grants 'to or for the benefit of Aboriginals living in the Northern Territory'. The second role that this entity will have is to manage an endowment of $500 million that will be transferred from the ABA. A third role will be to be an active investor in businesses. The way that the explanatory memorandum and the releases from the government have been framed is very much in relation to activating the potential of Indigenous land in the Northern Territory.
It strikes me that this new entity has got a diversity of objectives, but the emphasis in its name and on how its development has been framed is very much as operating as an investment corporation focused on business. I think that there is a risk that its functions to provide grants to or for the benefit of Aboriginal people in the Northern Territory, which often encompasses social, cultural and community objectives, will somehow be diluted with its focus on mainstream economic development and its operations as an investment instrument.
3.75
Mr Dillon argued that the design of the NTAIC could lead to a change in the ABA's focus, namely from a scheme designed to benefit all Aboriginal Territorians (whether or not they benefit directly from land rights) to one that potentially privileges those who do benefit from land rights. He explained:
…the original conceptual scheme of the ABA was to split the available funds in three main ways: (i) amounts for land council funding; (ii) amounts to communities affected by mining; and (iii) amounts to Aboriginal Territorians generally including those Aboriginal Territorians who do not benefit from land rights. These amendments leave categories (i) and (ii) untouched, but potentially strengthen the trend to allocate the majority of category (iii) funding towards land council priorities and away from beneficial payments.
3.76
Mr Dillon also asserted that the 'three conceptually distinct' functions of the NTAIC would inevitably come into conflict with each other. For instance, he contended that as beneficial payments would not return a revenue stream, they could potentially be minimised once the NTAIC builta portfolio of investments.
Composition of the NTAIC Board
3.77
As set out in Chapter 2, the bill provides that the NTAIC Board will be 12 members, comprised of:
two members appointed by each Land Council (i.e. eight members in total across the four Land Councils);
two members appointed by the Commonwealth; and
two independent members appointed by the Board.
3.78
Professor Altman asserted that the proposed NTAIC Board composition was not proportionally representative in a population sense when compared to the the current representation on the ABAAC. He argued that as the Board would have two members appointed by each Land Council, the TLC and the ALC would be overrepresented based on the size of the populations they represented.
3.79
Professor Altman also noted that those Aboriginal people in the NT who are unrepresented by the Land Councils (due to not being Traditional Owners of land under the Land Rights Act) were not allocated any mandated representation on the NTAIC Board. He called for the 'apparent bias' in favour of the Land Councils to be addressed as it could negatively impact on the interests of other Aboriginal Territorians.
3.80
Mr Guyula stated that he was concerned about the lack of representation on the NTAIC Board for some First Nations groups. He asserted that the composition arrangement proposed in the bill was not adequate for fair representation and good decision-making.
3.81
Mr Dillon also asserted that the design of the NTAIC Board would mean it would be dominated by Land Councils, with the potential for significant conflicts of interest to arise.
3.82
The Ngurratjuta/Pmara Ntjarra Aboriginal Corporation raised concern that the NTAI would become 'dominated' by Land Councils and end up as 'another bureaucracy controlled by the Commonwealth' which was neither responsive or accountable to Aboriginal people. It explained:
Our biggest concern with this Bill is that it gives Land Councils even more control than what they already have over our land by allowing their representatives to also control access by communities to the ABA. We accept that Aboriginal people in communities and their own organisations should have more say in ABA grants and forming partnerships with Governments and industry to do this. The model of representation for the NTAIC that has been chosen by the Coalition Government, however, is likely to alienate our people and meanwhile Land Councils which are also funded by the ABA and control distributions of its mining royalty equivalents to affected communities, will now control payments to communities. There is a significant conflict of interest in these arrangements and it was never intended to occur.
3.83
To addresses these concerns, the Ngurratjuta/Pmara Ntjarra Aboriginal Corporation argued for a more diverse Board composition:
Not surprisingly, as they were the only ones consulted, Land Councils dominate the membership of the new statutory body. No provision has been made for any other Aboriginal bodies to automatically be able to nominate Board members. We see no reason why nominations are not called for in a public manner that allows any Aboriginal Territorian to be considered who has demonstrable experience and outcomes related to achieving the objectives of the new body.
3.84
The ILSC questioned whether the composition of the Board as contemplated by the bill would enable a 'sufficient balance' of cultural, social economic, business and land/water management expertise to be brought to the
decision-making of the NTAIC.
3.85
It noted that it was specifically interested in ensuring comprehensive engagement and representation of all Aboriginal Territorians beyond Land Council membership, in line with the purpose of the NTAIC. It suggested that a NTAIC Board that equally balanced Traditional Owner elected representation and skills-based representation should be considered, and put forward recommendations of how this could be achieved.
3.86
The NIAA informed the committee that the NTAIC would have a 'diverse and representative' Board with a range of cultural, financial and environmental management expertise.
3.87
In particular, it clarified that in regard to the two Commonwealth-appointed directors, one would be appointed by the Minister for Indigenous Australians, and the other by the Minister for Finance. It noted that the directors would be required to have expertise in financial, business or land, water or environment management.
3.88
The NIAA also advised that the two directors appointed by the Board must be independent from the Land Councils and the Commonwealth Government, noting:
These directors must have land, water or environmental management expertise and/or financial or business expertise and could also represent community interests.
3.89
The joint submission from the NT Land Councils pointed out that under the current arrangements for the ABAAC, the NLC has seven members, more than any other Land Council. It noted that under the NTAIC Board arrangements, the NLC would only have two members on the Board, equal to the other Land Councils.
3.90
The Land Councils observed that although this arrangement could be seen as unfair, it considered it 'critical' that Aboriginal people had majority control of the NTAIC. It explained that it would not be right for one Land Council to have more board members than another because the NTAIC's purpose is to serve all Aboriginal Territorians, regardless of the Land Council region they live in.
3.91
The Land Councils also indicated support for the appointment of independent directors by the Board, noting that this feature in the governance design was informed by a comparative analysis of comparable organisations that was commissioned by the minister with their support.
3.92
Additionally, the Land Councils submitted that they did not consider that the NTAIC Board required other Aboriginal people on it to represent the views of Aboriginal communities. It argued that the Land Council representation was sufficient:
Land Council members are elected to represented the views of Traditional Owners and other Aboriginal residents in their Land Council region. If they fail at this, they get voted out.
Review mechanism
3.93
The bill provides for the operation of the NTAIC to be reviewed after seven years. Some submitters argued that this timeframe was inadequate and that a review should occur sooner. For example, Professor Altman proposed that a review should occur 'far sooner', potentially after two or three years.
3.94
Mr Dillon also argued that the review process proposed in the bill was inadequate in a number of respects. He explained:
…it [the review] would be limited to the NTAIC whereas the NTAIC proposals have the potential to affect the operations of land councils, land trusts, royalty corporations, and other elements of the legislation (and indeed the operation of entities such as PBCs established under the Native Title Act 1993). Any review should be of the operation of the whole Act [Land Rights Act]. It should also be unequivocally independent.
3.95
The AHRC recommended a 'transparent, accessible and independent review mechanism' be built into the legislation at the three year mark, rather than the seven years proposed in the bill.
3.96
The NIAA advised the committee that a review after seven years was appropriate as it would provide an opportunity to:
reflect on the NTAIC's achievements;
ensure its functions are fit for purpose; and
further consider the strategic direction of the remaining ABA funding.
3.97
The NT Land Councils indicated they were comfortable with the review after seven years as proposed by the bill, given that:
It will take several years following the establishment of the corporation for the first strategic investment to be made, following the transfer of the $500 million endowment which itself is contingent on the development and tabling in Parliament of a Strategic Investment Plan. It will be several years after that before it will be possible to evaluate the success or otherwise of those investments, including any financial returns on that investment.
3.98
The Land Councils also commented that while calls for an earlier review of the NTAIC were understandable, they did not consider an earlier review would be a good use of public money or ABA funds. They explained:
Unless there is sufficient time for the new corporation to demonstrate success, it is likely there will be insufficient evidence on which to make findings about the success or otherwise of the new corporation in generating returns on strategic investments.
3.99
Mr Nugent of the CLC further outlined:
I'm aware of submissions that have proposed that a review period of three years might be put forward. My own view is that that would be far too short a period in which to establish the mechanism of a new statutory entity for the board to engage the CEO and staff and to commence consultation on the ground regarding investment plans and how it will engage in the process of the business of the entity.
Streamlining exploration and mining
3.100
As set out in Chapter 2, the bill seeks to reduce inefficiencies associated with exploration and mining processes on Aboriginal land in the NT through a number of reforms to the Land Rights Act.
3.101
In particular, the bill will make amendments to improve the application and consent process for exploration licences on Aboriginal land so that:
applications can be amended without the need to recommence the application process;
Land Councils can take a more flexible approach to meetings with traditional Aboriginal owners; and
the minister's consent is not required following the Land Council providing notice of consent for the grant of an exploration licence.
3.102
Part IV of the Land Rights Act provides processes for the administration of exploration and mining on Aboriginal land which operate in conjunction with relevant NT legislation, including the Mineral Titles Act 2010 (NT), the Petroleum Act 1984 (NT), and the Geothermal Energy Act 2009 (NT). Significantly, Part IV provides for Traditional Owners to 'veto' or refuse consent to the grant of an exploration licence or mining on their land.
3.103
According to the EM, the current processes for exploration and mining under the Land Rights Act can be 'difficult to navigate, unnecessarily time consuming and costly for all stakeholders'.
3.104
To remedy this, the bill seeks to:
…clarify and improve and efficiency of processes for exploration and mining under Part IV of the Act while retaining appropriate controls for traditional owners over exploration and mining on their land.
3.105
The NIAA advised that a reduction in the time and cost of processing licence applications over Aboriginal land would increase clarity and confidence for all stakeholders.
3.106
However, it also emphasised that Land Councils have statutory responsibilities to consult with and ensure informed, group consent of Traditional Owners about land use on Aboriginal land. It reiterated that the bill preserves the existing rights and entitlements of Traditional Owners to exercise their 'veto' power and refuse consent to land use proposals. Additionally, the NIAA noted that the existing timeframes for Traditional Owners to negotiate exploration and mining proposals will be retained, meaning there would be no added time pressures on Traditional Owner decision-making.
3.107
The NIAA informed the committee that the reforms to Part IV (Mining) of the Land Rights Act had a long history. For example, the Aboriginal Land Rights (Northern Territory) Amendment Act 2006 included a number of reforms to Part IV (Mining), along with the requirement for an independent review of the operation of Part IV five years from the amendments coming into operation. Subsequently, the report on the Review of Part IV of the Aboriginal Land Rights (Northern Territory) Act 1976 was released in March 2013.
3.108
The NIAA outlined the various consultation processes that had been undertaken between key stakeholders (including the Land Councils, the NT and Commonwealth Governments, and mining industry peak bodies) from 2016 onwards, firstly to consider the recommendations of the 2013 review, and later to consider the exposure draft of the bill.
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The MCA also highlighted the long and collaborative nature of the development of the Part IV reforms, advising that during consultation the MCA NT and the NT Land Councils recognised the potential for minerals development to support Aboriginal community aspirations and priorities.
3.110
The NT Land Councils advised the committee that they were supportive of the mining reforms proposed in the bill, which they considered to be 'largely administrative or technical in nature'. The joint submission explained:
The reforms have the potential to reduce the amount of time associated with the application process for exploration licenses and permits. Creating more efficient and consistent processes will benefit Traditional Owners and mining parties equally.
3.111
The CLC highlighted that that amendments in the bill do not weaken the existing rights and entitlements of Traditional Owners. As Mr Nugent commented:
Contrary to what some of the submissions to this inquiry have indicated, they [the amendments] in no way derogate from the central requirements of traditional owners. The so-called 'veto right' that traditional owners maintain is sacrosanct under the land rights act. That is absolutely protected. The provisions are largely administrative and go to the ordinary practicalities of administering what is a reasonably compact set of provisions…
3.112
Additionally, Mr Wayne Beswick, Senior Manager of Government Relations and Engagement for the NLC, reiterated that the Land Councils and their memberships had considered the amendments in the bill and were comfortable with the streamlining reforms.
3.113
Some submitters raised concerns that the amendments would weaken the rights of Traditional Owners. For example, Oxfam Australia noted that it was not aware of any evidence of Traditional Owners calling for the 'streamlining of the approvals process' or flexibility around holding consent meetings. It argued that it appeared as though the interests of Land Councils and industry were being addressed, but not those of the wider population of Traditional Owners.
3.114
The Ngurratjuta/Pmara Ntjarra Aboriginal Corporation was of the view that the veto power was being weakened and sought clarification around why the amendments were needed. It explained:
We are concerned that they by reducing some of the checks and balances in the approval process, in fact the veto is being weakened. There must have been good reason for why the steps to be repealed through the amendments were originally included in the Land Rights Act. If they are to be taken out now, we need to know why the original reason for their inclusion is no longer valid. Citing benefits for other stakeholders is not sufficient on its own to make these changes which could hurt us.
3.115
Mr Guyula pointed out that mining and mining negotiations were an area of 'great concern' for First Nations land owners in the NT. He outlined:
Right now, we see mining on country and fracking on country that has caused great anguish for the land owners. For this reason, any amendments to this section of the law must result in robust processes that protect the land owners’ rights and interests and reinforce the principle of free, prior and informed consent. There should never be a decision made for us. The Land Councils are the intermediary not the decision-maker.
3.116
Mr Guyula expressed concern that any amendments to streamline approval processes and create greater flexibility may come at the cost of the land owners' autonomy. He stated that any amendments required a high level of scrutiny to ensure that this did not happen.
3.117
The AHRC stated that while in principle it supported reforms to make decision-making and approval processes more efficient, such efficiencies must not come at the expense of the procedural rights of Traditional Owners.
3.118
It submitted that it was critical that the rights of Traditional Owners to consent (or not consent) to use of their land not be diminished in any way by the amendments proposed in the bill. It urged the committee to give serious consideration to how any 'streamlined' processes would operate in practice and examine closely what a more flexible approach would entail from the perspective of Traditional Owners who may wish to not provide consent. The AHRC emphasised that the reforms must not make it harder for Traditional Owners to say 'no' to the use of their land.
3.119
Professor Altman contended that, in the absence of property rights in minerals, the 'streamlining' of processes could commercially weaken the de facto collective property rights that Traditional Owners could exercise with right of consent provisions. He explained:
This is because the potential of protracted negotiations is the most effective commercial lever that traditional owners can exercise in their dealings with applicants/developers. In the name of streamlining, traditional owners and communities affected by exploration and mining might be less, rather than more, economically empowered.
3.120
He submitted that there were three amendments in the bill —new subsections 42(4), 42(4C) and 42(4D) — that needed urgent clarification as they could potentially dilute the decision making powers of Traditional Owners.
3.121
For example, new subsection 42(4) in the bill provides that a Land Council is required to convene meetings with Traditional Owners as it considers appropriate, rather than necessary, for the purpose of considering exploration licence applications. As the EM explained:
This provides the Land Council with greater flexibility in convening meetings for the purpose of considering applications. This might involve the convening of more meetings as considered appropriate by the Land Council. It may also provide for standing instructions to be provided by traditional owners in relation to applications over certain areas resulting in fewer meetings.
3.122
Professor Altman asserted that the while this discretion to provide Land Councils with greater flexibility might result in more or fewer meetings, the power to convene such meetings seemed to lie entirely with Land Councils, not Traditional Owners.
3.123
The Land Councils stated that the amendments proposed in section 42(4) of the bill would resolve a 'major source of frustration' for Traditional Owners – namely unnecessary meetings on matters where Traditional Owners had already made their views clear to a Land Council.
3.124
Their joint submission explained:
This change does not diminish or alter the primacy of Traditional Owners in determining whether mining can proceed on their land and the related terms and conditions. The reform is likely to save time and cost associated with unnecessary meetings. It will reduce the frustration of Traditional Owners who feel their decisions are not respected when meetings are held on matters where they have already made up their mind.
3.125
In regard to new subsection 42(4C), Professor Altman asserted that while Traditional Owners maintain a right to exclude the applicant's representative from meetings, the onus would be on them to seek exclusion via the Land Council. He argued it would be more appropriate for Traditional Owners to be afforded the right to invite a representative of the application to a meeting. In regard to new subsection 42(4D), he argued it was far from clear why the minister should have such a right of oversight or regulation in a meeting and contended that it was counter to notions of self-determination.
3.126
The Law Council of Australia (LCA) advised that it viewed the changes proposed in new subsections 42(4), 42(4A), 42(4B), 42(4C), 42(4D) and 42(5) as 'generally being negligible'. However, it suggested that new subsections 42(4A) and 42(4B) were poorly worded, meaning the intent of the amendments was unclear. It recommended these new subsections be redrafted for clarity.
Committee view
3.127
On balance, the committee is persuaded that the reforms provided in the bill realise the longstanding aspirations of Aboriginal people in the NT for greater control over decision-making to realise the potential of their land. The committee is of the view that the reforms appropriately respond to calls for change from Aboriginal Territorians.
3.128
The committee is mindful of the significance of the Land Rights Act to Aboriginal Territorians and is pleased that the Australian Government has committed to only reform it with the support of the NT Land Councils.
3.129
The committee considers that the measures in the bill will empower Aboriginal peoples in the NT to activate the economic potential of their land and grow the prosperity of their communities.
3.130
In coming to this position, the committee is cognisant of the strong support for the reforms in the bill expressed by the NT Land Councils, APONT and the ABAAC.
3.131
The committee also recognises the extensive co-design process undertaken in the development of the bill, and considers this to be an excellent example of shared decision-making in practice. Additionally, the committee is pleased to see that shared decision-making is a foundational principle of the NTAIC.
3.132
The committee acknowledges the views of submitters around the importance of consultation. However, the committee is satisfied that the operation of the NTAIC will be subject to ongoing consultation with Aboriginal stakeholders in the NT. The committee is of the view that Aboriginal Territorians will be able to have an ongoing voice in the activities of the NTAIC through the governance, consultation and review mechanisms outlined in the bill.
3.133
The committee recognises the vital role played by the four NT Land Councils in representing the views of Aboriginal Territorians, including but not limited to Traditional Owners. The committee encourages the NT Land Councils to continue to listen to and advocate for their constituents.
3.134
The committee recommends that the Senate pass the bill.
Senator Claire Chandler
Chair