SPEECH BY DAVID ROSS, DIRECTOR, CENTRAL LAND COUNCIL
AT THE LAUNCH OF THE
ABORIGINAL AND TORRES STRAIT ISLANDER SOCIAL JUSTICE COMMISSIONER, 2001
SOCIAL JUSTICE AND NATIVE TITLE REPORTS
ARALUEN CENTRE, ALICE SPRINGS
FRIDAY, 9 AUGUST 2002
The right of Aboriginal people to control what happens on their land was
acknowledged in the Woodwood Commission report into the protection of
Aboriginal land in the Northern Territory. The report recognised that
ownership of land was a meaningless concept if the owners were not able
to control access to their land.
In 1976 the recommendations in that report were acted upon and the Aboriginal Land Rights (Northern Territory) Act was passed by the Federal Government.
The concept of controlling access was broken down into three easily identifiable components:
1. Traditional owners must understand the nature of the proposal that involves access to their land.
2. Traditional owners must have been given an opportunity to have their say about the proposal.
3. Traditional owners must give their consent to the proposal.
This can be simply summarized as "informed consent". These concepts are found in other land rights legislation such as the Pitjatjantjarra Land Rights Act 1981.
Due to the communal nature of the ownership of Aboriginal land ownership, the land councils were given a key role in determining that the three components of consent were satisfied.
As a result, the Northern Territory Land Councils have developed a solid body of expertise that is recognised and utilised by its constituents. Those same constituents have demonstrated great loyalty to their land councils during times when political forces have attempted to remove their role in this process.
What Has This Got To Do With Native Title And The Right To Negotiate?
It is the Central Land Council's experience that sound governance and solid expertise are the foundations on which good negotiations can proceed.
On the passage of the Native Title Act in 1993 a number of Aboriginal and Torres Strait Islander bodies were recognized as native title representative bodies (NTRB's). Their role was to represent Aboriginal and Torres Strait Islander peoples who asserted ownership of native title rights. Many of these bodies were established at the time the legislation was passed, or were existing bodies that had been set up for other purposes, not to deal with issues of land and justice. They had little or no experience in the business of consulting with their constituents over land rights issues. The result was that there was a proliferation of native title claims over mainland Australia many with little or no hope of success and many filed outside the representative body process.
This did not occur in the Northern Territory. The land council decided to take a strategic approach and only to lodge claims that tested specific legal principles, for example:
- Alice Springs
- claim within the town boundary
- Croker Island
- sea rights
- Davenport/Murchinson
- rights within a national park
- Yulara - compensation
for extinguishment
- St Vidgeons - rights on land held by the Northern Territory Land Corporation.
Outside this process no other claims were filed.
More importantly, under the 'right to negotiate', applicants seeking access to land on which native title continued to exist came to the land councils for assistance.
This situation became less clear when the previous Northern Territory government refused to use the 'right to negotiate' provisions in the Native Title Act after the High Court judgment in Wik.
The government of the day felt aggrieved with the decision that native title continued to exist on land held under a pastoral lease. They refused to acknowledge it. The NTG actively lobbied a Federal Government sympathetic to its view that the Native Title Act should be amended with a view to achieving "bucket loads of extinguishment".
Despite great efforts, at the end of 1998 the federal government passed amendments to the Native Title Act which greatly diminished rights. This paved the way for the second phase of the previous territory government's proposal regarding the 'right to negotiate'. They proposed a territory based scheme under section 43A of the amended Native Title Act.
Fortunately the Senate demonstrated responsibility in this debate and disallowed the Territory's scheme in August 1999.
The Territory Government stubbornly refused to recognize the Native Title Act for nearly twelve months until September 2000 when it finally commenced using the current right to negotiate provisions of the Native Title Act.
The procedures to activate the right to negotiate provisions of the Native Title Act are extremely cumbersome. Essentially they involve invoking the jurisdiction of the Federal Court where there has not been a determination of native title but where there is an assertion the native title rights continue to exist. While this process might be appropriate in areas of Australia where Aboriginal dispossession from land runs deep and may involve generations of people that is not the case in the Northern Territory.
Unfortunately the Native Title Act establishes a future act regime on the basis that one situation fits all. The legislation does not take into account the circumstances of Aboriginal people in the Territory. By this I mean:
- Aboriginal people
in the remote parts of the Territory do not have daily or even weekly
access to newspapers as is assumed under the Native Title Notices
Determination.
- The vast majority
of Aboriginal people in the remote parts of the Northern Territory are
not literate in English as is assumed in the same Determination.
- The majority
of Aboriginal people in the Territory live in remote locations where
communication is difficult.
- Aboriginal contact and ownership of "COUNTRY" is paramount in the Territory but is assumed not to be in the legislation.
If the Native Title Act set out to establish a procedure where control over Aboriginal country was considered important enough to afford Aboriginal people to three elements of control I have already spoken about (effectively informed consent) then it has plainly failed.
The report by the Social Justice Commissioner quite rightly asserts that to date the outcomes we all expected would arise from the recognition of native title in 1992 have largely failed to eventuate. The system has aimed to restrict rather than maximize the rights and benefits which should have flowed from this recognition of native title.
However the land councils with their twenty odd years of experience have attempted to alleviate some of these problems. And they are able to do so because of:
- Good stable governance
- Expertise in dealing
with mining companies
- Expertise in
dealing with government.
- Support of their constituents.
While I accept the arguments put forward in this Native Title Report that the Commissioner is going to release today regarding funding inequalities, I wish to emphasise that money and resources do not necessarily provide good and stable governance. In my view the Federal Government should provide assistance to Aboriginal organisations and in particular representative bodies for the purpose of ensuring good and strong governance. This means we will have strong, healthy organisations that can concentrate on their statutory functions and last into the future.
The Central Land Council has managed to successfully negotiate twelve Indigenous land use agreements covering exploration and mining. This is a testament to both Aboriginal people in our region who understand that they have the right and ability to control access to their country, and to the exploration and mining industry who have grown to respect the rights of traditional owners and the professionalism of the land council.
However we have a
long way to go before equality of opportunity, and full enjoyment of native
title rights (in their broadest sense), are afforded to Aboriginal people
in Central Australia.
