The Report of the Review of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) by John Reeves, QC has a delightful photo of an Aboriginal child on the cover, no doubt to reflect the title given to the Report, "Building on Land Rights for the Next Generation" The aptness of this title will be much discussed in the Northern Territory, for Reeves’ recommendations would remove the cornerstones of the structure which has given land rights to the current generation of Northern Territory Aboriginal people.
The Cornerstones Removed:
- The Northern and Central Land Councils will be abolished;
- Traditional Aboriginal owners and their authority under the Act will go;
- The functions and duties of traditional owners will be dispersed to Regional Land Councils;
- Eighteen new Regional Land Councils will be established;
- Title held by existing Land Trusts will be transferred to the new Regional Land Councils;
- A new Aboriginal governing body, the Northern Territory Aboriginal Council (NTAC)will be established over the whole of the Territory;
- The NTAC will take over the assets and liabilities of royalty associations and the Aboriginal Benefits Reserve;
- The NTAC will receive, control and distribute mining royalty equivalents, negotiated royalties and other monies from the use of Aboriginal land;
- The NTAC will act as banker to the Regional Land Councils;
- The NTAC will take over programme funding for the Northern Territory from ATSIC and the Northern Territory Government with a combined annual budget, with Aboriginal Benefit Reserve income, of between $448m and $738m;
- The NTAC, the staff of which would be wholly appointed by the Northern Territory and Commonwealth Governments, is to become a "central institution of governance" for Northern Territory Aboriginals;
- The NTAC will have powers of "strategic oversight" to control the financial and administrative functions of Regional Land Councils, with the capacity to override key decisions of a Regional Land Council;
- Miners will be given easier access to Aboriginal lands for exploration;
- The permit system will be abolished.
Transfer of Power to the Northern Territory Government
Under Reeves’ proposals, a major shift of power and control over Aboriginal land into the hands of the Northern Territory Government will take place:
- The principle that government could not compulsorily acquire Aboriginal land would be abolished and the Northern Territory Government would be given this power of compulsory acquisition;
- The Commonwealth Minister would delegate that Minister’s powers under the Aboriginal Land Rights Act (Northern Territory) 1976 (Cth) ("the Land Rights Act")to the Northern Territory Government;
- Northern Territory laws will apply more extensively to Aboriginal land.
Governance of Aboriginal land will be centralised in a superordinate non-traditional Aboriginal institution, the NTAC. Initially, membership of this body would be wholly by appointment. Only later, at some indeterminate time, and by some indeterminate method, would this body be elected by Aboriginal people themselves. Whilst control over Aboriginal land would on a superficial level be decentralised to Regional Land Councils, the actual political and financial power would be centralised in the NTAC and the Northern Territory Government. The authority of traditional Aboriginal owners under the Land Rights Act will be extinguished. Their authority under Aboriginal tradition will be removed and shifted by the legislative processes recommended by Reeves to Regional Land Councils and the NTAC, with ultimate power resting with the Northern Territory and Commonwealth Governments.
Whither land rights in the Northern Territory? Whither Aboriginal self-determination?
It is little wonder that the Land Councils, ATSIC and Aboriginal communities have resented being forced into the role of defenders of an Aboriginal land rights system which has been in operation for nearly 25 years and which has become a benchmark recognised nationally and internationally as a high point in the struggle for indigenous land rights. Reeves recommendations are, in reality, instruments for the destruction of the Northern and Central Land Councils and the imposition of a radical system of governance of Aboriginal affairs in the Northern Territory which allows for direct intervention and control by the Commonwealth and Territory Governments. The irony is that these changes are spuriously recommended in the name of self-determination. For over 20 years, the nature of Aboriginal relationship to traditional land has been the basis for identifying traditional owners, for the land claims process established under Land Rights Act, and for the management of Aboriginal land in the Northern Territory. And yet Reeves attempts to sustain his proposals using anthropological views which are completely at odds with the nature of traditional Aboriginal land relationships.
I believe that the Reeves proposals will be seen as the product of non-Aboriginal political ideas, designed with non-Aboriginal political concepts in mind to create a system of Aboriginal governance of traditional Aboriginal land which non-Aboriginal governments want to see established. The system of governance proposed is alien to the traditional Aboriginal relationship to land which supports and sustains Aboriginal social organisation, which is based on an identifiable and unmistakable group of people forming a descent group or clan living in relation to an identifiable territory publicly recognised as the "country" of that group. Certainly, the lifestyles of Aboriginal people in the Northern Territory have been changed through contact with modern non-Aboriginal society, particularly technology, transport, communication and economics. In some cases, ties to traditional lands have also changed. But over 20 years of successful land claims hearings and the continuing maintenance of traditional lifestyle testify that Stanner’s account of Aboriginal society is as good today as it was when the Land Rights Act was enacted.
The Reeves model may well be a convenient way of destroying the Northern and Central Land Councils, both of which have long been a target for destruction by the Northern Territory Government and, more recently, by Deputy Prime Minister Tim Fischer and the Commonwealth Minister for Aboriginal and Torres Strait Islander Affairs, Senator Herron but it will be interesting to see the reaction of the smaller Tiwi and Anindilyakwa Land Councils when they realise that the autonomy and independence they now enjoy, with the same functions, authority and duties as the Northern and Central Land Councils, will be stripped from them under Reeves’ proposals. The Tiwi and Anindilyakwa Land Councils will become two of the 18 Regional Land Councils subservient to the power and authority of the NTAC and, through the NTAC, to the Commonwealth and Territory governments.
Reeves relies on the decision of Blackburn J. In the Gove Land Rights Case (Millirrupum) but he has completely ignored the majority High Court reasoning in Mabo and Mabo’s decision that traditional land rights are property rights in Australian law. Reeves’ reasoning is fundamentally flawed and taints the whole of his attack upon the Northern Territory land rights system based on traditional Aboriginal owners and Aboriginal tradition.
Like the Native Title Act, the Land Rights Act in using the definitions of Aboriginal tradition and traditional Aboriginal owners recognises that according to customary law, "native title" is communal, spiritual and physical. By recognising common law "native title" holders and the bundle of native title rights and interests they are entitled to enjoy under customary law, both Acts recognise that "native title" may be enjoyed by all those persons who have traditional affiliations with the land held by a Land Trust.
Reeves recommends that traditional ownership continue to be the threshold test for land claims. On the other hand, he argues that traditional owners should no longer continue to enjoy their central role within the Act in relation to control of land and the receipt of benefits. Many readers will marvel at the inherent inconsistency of Reeves’ conclusion that it is good enough to require land claimants to establish traditional Aboriginal ownership in the land claimed but, having done so, it is not good enough to accord those owners the position Aboriginal tradition gives them in relation to the land for which they have responsibility by Aboriginal tradition.
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