The Aboriginal Land Rights Act
The Aboriginal Land Rights (Northern Territory) Act 1976 is a fundamental piece of social reform. It was the first attempt by an Australian government to legally recognise the Aboriginal system of land ownership and put into law the concept of inalienable freehold title.
Many Aboriginal people in the Northern Territory have won their land back through grants under the Land Rights Act. Getting freehold title allows them to maintain, and sometimes re-establish, their cultural identity. The act has given some security to those who have moved back to set up outstations on their ancestors’ country. It has contributed to the peaceful and responsible development of the NT and helped avoid the kind of violent confrontations between indigenous landowners and developers seen in other parts of Australia and overseas.
By providing legal title and a measure of control over some of our traditional lands, the law has allowed us to determine the pace and extent of our involvement in the broader Australian society and economy. The many resource development projects and commercial enterprises now operating on Aboriginal land show that respecting our land rights can be compatible with national economic development. Our brochure The Land Rights Act Made Simple is a plain English summary of the law.
The act defines traditional owners as a group of Aboriginal people who have ‘primary spiritual responsibility’ for sacred sites on a piece of land, and who are entitled by Aboriginal tradition to hunt and gather on that land. Traditional Aboriginal owners are the key decision makers for their land, although land councils must also talk to other Aboriginal people affected by proposed developments.
When the Australian parliament passed the Land Rights Act, former reserves became Aboriginal land. The law granted this land without the need for a land claim. It is sometimes called ‘schedule one’ land.
The only land that could be claimed under the Act was unalienated Crown land – land that no one else has an interest in – or land that was wholly owned by Aboriginal people.
A successful land claim requires the traditional owners to prove their customary relationship with the land under claim. This involves extensive research by anthropologists, and the claimants providing evidence before the Aboriginal Land Commissioner (a judge of the Federal Court or the Supreme Court of the NT). The commissioner must be satisfied that the claimants are the right traditional owners according to Aboriginal law.
The commissioner makes a recommendation to the Minister for Aboriginal Australians and must also comment on any detriment to others that may occur should the land be granted and the effect a grant may have on existing or proposed patterns of land use in the region. The minister decides whether to recommend to the Governor General to grant all or part of the land under claim.
The Hawke government amended the Land Rights Act to ensure no more land claims could be lodged after 30 June 1997. We have won almost all claims in our region that were lodged before this ‘sunset clause’, and the land has been granted.
Land granted as inalienable freehold title cannot be sold or mortgaged. The title is granted to Aboriginal land trusts whose members are traditional owners. The trusts, not the land councils, hold the title for the benefit of all the traditional owners. The NT government cannot compulsorily acquire Aboriginal land.
The Land Rights Act mandated the establishment of land councils in the NT. Aboriginal people set up the Central Land Council, the Northern Land Council, the Anindilyakwa Land Council and the Tiwi Land Council.
Any Aboriginal person or association may apply to the minister to form a new land council. If the minister agrees with the application, and 55 per cent of people support it in a vote, the minister may form a new land council.
Land councils are representative bodies made up of elected Aboriginal people. The councils determine policy and employ expert legal, anthropological, land management, community and economic development staff to help Aboriginal people to claim and manage their land, protect their sacred sites and manage and distribute income received under the Land Rights Act.
The Act sets out how to deal with applications by mining companies to explore (look around) and mine on Aboriginal land. Companies must provide details of their plans and land councils must consult with traditional owners about the plans. Traditional owners have two years to decide. This period may be extended if the company agrees.
If traditional owners say no, the company will be blocked for five years from reapplying, unless the traditional owners change their minds part way through the five-year moratorium period. If that happens, they can ask the land council to ask the Minister for Indigenous Australians to remove this block.
If traditional owners say yes, the company and the land council must make an exploration agreement. The company must provide further details and make a further agreement before mining, but traditional owners cannot block mining if they have earlier agreed to exploration.
Land use agreements
The land trust may give a lease or licence over the land it owns, for example for shops, art centres, cattle grazing and government services. A land trust cannot deal with the land without a direction from a land council. Before giving a direction, a land council must:
- consult with and have regard to the interests of traditional owners
- ensure that they understand any proposal
- ensure any affected Aboriginal community has had a chance to say what it thinks about the proposal
- satisfy itself that the traditional owners have, as a group, consented to the proposal
The land council checks if traditional owners agree with proposals that affect the land. The council then directs the land trust to carry out the proposals and the trust must follow the directions.
Royalties and royalty associations
Royalties are income from a mining agreement paid to a land council. A land council must hold all this income in trust for the traditional owners. It must pay this income to traditional owners within six months of receiving the money unless they decide to invest it in a community development project.
If the traditional owners decide to distribute the money, the land council pays it to Aboriginal corporations known as royalty associations, such as the Kurra Aboriginal Corporation. These associations distribute the money to their members according to their rules.
Royalty associations must tell the recipients of the money what the purpose of the payment is. They must tell the land council the names of the people receiving payments, the dates, amounts and purposes of the payments.
If a royalty association does not report to the land council, the council may suspend further payments to that association.
The Australian Government Office of Evaluation and Audit may audit royalty associations.
Income from other land use agreements
Land councils must make payments under other land use agreements, such as leases and licences, to or for the benefit of the traditional owners. They must distribute this money within six months of receiving the payment unless the traditional owners decide to invest it in a community development project.
The Aboriginals Benefit Account
The Land Rights Act established the Aboriginals Benefit Account (ABA), a fund administered by the Minister for Indigenous Australians that accumulates so-called ‘royalty equivalent’ income from mining on Aboriginal land.
The ABA’s income from the Australian and the Territory governments depends on how much mining occurs on Aboriginal land. The minister decides how much of the ABA funds can be used to operate the land councils.
Thirty per cent of the funds is paid to Aboriginal corporations whose members are Aboriginal residents of areas affected by mining, and the rest is for the benefit of Aboriginal Territorians and may be used for community grants and the administration of the ABA.
CLC members currently elect five members of an advisory committee that suggests to the minister which ABA grant applications to approve. The other elected members of the ABA’s advisory committee are seven members from the NLC and one member each from the Tiwi Land Council and the Anindilyakwa Land Council. The minister appoints the chair and one or two members with land management or business experience.
The committee can only advise the minister about how to spend the community grant money, it cannot give directions.
Land council constituents have long believed that they, not a minister, should have the final say about these grants. The land councils embarked on an ABA reform process with the former Minister for Aboriginal Affairs, Nigel Scullion, and are continuing the process with the Minister for Indigenous Australians, Ken Wyatt, who replaced him.
The Land Rights Act offers a range of further protections for Aboriginal land.
Roads cannot be built without the consent of traditional owners and damaging sacred sites and entering Aboriginal land without a permit are offences (although in some cases permits for entering public areas in communities have been abolished). The act also empowers the NT government to make its own laws for the protection of sacred sites and entry permits.
The History of the Land Rights Act
The killing times
The latest European scientific reports date Aboriginal occupation of northern Australia from at least 60,000 years ago. In striking contrast, the first missionaries and mineral prospectors arrived in Central Australia in the 1870s. They were soon joined by government officers and pastoralists whose flocks fouled the waterholes and ate the bush tucker Aboriginal people relied on. Aboriginal people resisted the colonisation of their land.
The Government Resident of the Northern Territory reported in 1889:
“After careful inquiry I am of the opinion that this is the attitude of the aborigines towards Europeans: Entrance into their country is an act of invasion. It is a declaration of war, and they will halt at no opportunity of attacking the white invaders.”
Many Aboriginal people fought hard to defend their land – but spears and boomerangs proved no match for introduced diseases, guns and massacres. Every Aboriginal group has stories of resistance and fighting for their land.
In the face of this resistance, and with a belief in the superiority of their own culture, the colonisers pushed Aboriginal people off the fertile lands into controlled settlements. Inaccessible and unwanted (by non-Aborigines) areas were set aside as ‘native reserves’. Many Aboriginal people worked on cattle stations. For decades these workers received little or no pay, but used the opportunity to stay on their country and take care of it.
The Yirrkala bark petition and Wave Hill Walk Off
Two events in the 1960s captured international attention. In 1963, provoked by a government decision to excise a part of Yolngu land for a bauxite mine near Yirrkala in northeast Arnhem Land, Yolngu traditional owners sent a bark petition to the House of Representatives asserting their land rights. The petition resulted in a government inquiry and later the Yolngu launched litigation. The mine went ahead regardless and the traditional owners are still fighting to be a party to the agreement between government and the multinational company extracting the bauxite.
In August 1966, Gurindji families walked off Wave Hill cattle station and went on strike. The workers demanded wages and a return of some of their lands. The government rejected their demand but the traditional owners continued to camp on their country at Daguragu, breaking Australian law but obeying their own. The campaign was taken up by supporters in Australia’s cities and eventually the traditional owners won title to some of their land.
Both events put land rights on the national political agenda.
The 1967 Referendum
Campaigning by Aboriginal people and their supporters led to a historic national referendum in 1967. By the largest majority ever recorded, 91 per cent of Australians voted to amend the constitution to give the Federal Government the power to make special laws on Aboriginal affairs which could overrule any state legislation. The referendum was a significant victory in the struggle for land rights.
The Woodward Royal Commission
The Labor Party campaigned for Aboriginal land rights during its successful 1972 attempt to dislodge the conservative Liberal–Country Party coalition government in Canberra. Launching his party’s election campaign, Labor leader Gough Whitlam said:
“We will legislate to give Aboriginal land rights – because all of us as Australians are diminished while the Aborigines are denied their rightful place in this nation.”
Yet rather than pursue a national land rights law, Whitlam chose to establish a precedent in the Commonwealth-controlled NT. In February 1973, he appointed Justice Woodward to inquire into how to recognise Aboriginal land rights in the territory. In April 1974, Woodward reported that the aims of land rights were to:
- do simple justice to a people who had been deprived of their land without their consent and without compensation
- promote social harmony and stability within the wider Australian community by removing, as far as possible, the legitimate causes of complaint of an important minority group within that community
- provide land holdings as a first essential for people who were economically depressed and who had no real opportunity to achieve a normal Australian standard of living
- preserve, where possible, the spiritual link of Aboriginal people to their country which gives them a sense of identity and lies at the heart of their spiritual beliefs
- maintain and, perhaps, improve Australia’s standing among the nations of the world by demonstrating fair treatment of an ethnic minority
Justice Woodward recommended that these aims could be best achieved by “preserving and strengthening all Aboriginal interests in land and rights over land which exist today, particularly all those having spiritual importance’ and by ‘ensuring that none of these interests or rights are further whittled away without consent, except in those cases where the national interest positively demands it – and then only on terms of just compensation.”
He also recommended “the provision of some basic compensation in the form of land for those Aborigines who have been irrevocably deprived of the rights and interests which they would otherwise have inherited from their ancestors, and who have obtained no sufficient compensating benefits from white society.” He proposed “the further provision of land, to the limit which the wider community can afford, in those places where it will do most good, particularly in economic terms, to the largest number of Aborigines.”
He said that he had reached these conclusions after taking full account of the arguments put forward by sectional vested interests who opposed land rights but believed that mining and other development on Aboriginal land should proceed only with the consent of the traditional owners.
“I believe that to deny Aborigines the right to prevent mining on their land is to deny the reality of their land rights.”
Woodward insisted that the right to withhold consent should only be overridden if the government of the day decided that the national interest required it. He said such an issue “would not be determined on a mere balance of convenience or desirability but only a matter of necessity.”
He also proposed procedures for claiming land and conditions of tenure. Aboriginal land should be granted as inalienable freehold title – meaning it could not be acquired, sold, mortgaged or disposed of in any way – and title should be communal. He envisaged that the ownership of government reserve lands would transfer to Aboriginal people and that an Aboriginal Land Commissioner would hear claims to unalienated Crown land and Aboriginal-owned pastoral leases based on traditional affiliation. Smaller areas on pastoral leases and town areas could also be claimed on the basis of need.
The Whitlam government introduced legislation based substantially on Woodward’s recommendations. The bill was before the parliament when the government was dismissed in the 1975 constitutional crisis.
Despite election promises from the Liberal–Country Party coalition to pass it without amendment, the new government of Liberal Prime Minister Malcolm Fraser buckled to pressure from the mining and pastoral industries and conservative NT politicians. He drafted a new bill that lacked many of the advances of the Whitlam bill.
A national campaign by the newly created land councils salvaged a number of key elements, but the final bill removed needs-based claims and gave to the NT Legislative Assembly responsibility for ‘complementary’ legislation covering sacred site protection, sea closures and entry permits for Aboriginal land.
The final bill passed both houses of parliament with historic bipartisan support in December 1976 and came into force on 26 January 1977, one and a half years before the NT was granted self-government. It has been significantly amended since then.
What land councils must do
The functions and responsibilities of the land councils are set out in the Aboriginal Land Rights (Northern Territory) Act 1976. Councils must:
- find out and express the wishes of Aboriginal people about the management of their land and legislation about their land
- protect the interests of traditional owners of, and other Aboriginal people interested in, Aboriginal land
- help Aboriginal people to protect sacred sites everywhere
- consult traditional owners and other Aboriginal people interested in Aboriginal land about proposals for its use
- negotiate on behalf of traditional owners with people interested in using Aboriginal land and land under claim
- assist Aboriginal people claiming land
- keep a register of land council members and members of Aboriginal land trusts and descriptions of Aboriginal land
- supervise and assist Aboriginal land trusts
In carrying out these functions, land councils must consult with traditional owners and other Aboriginal people with an interest in the land. Traditional owners must give their consent before councils enter into an agreement, or take any action affecting their land. Councils also have statutory responsibilities and duties to:
- attempt to conciliate a dispute between Aborigines regarding land matters
- hold in trust, and distribute to Aboriginal associations, statutory payments from the Aboriginals Benefit Account (see above) to communities affected by mining operations and income received on behalf of landowners under negotiated mining agreements
- process applications for permits to enter Aboriginal land