Central Land Council

Our Land, Our Life

In 1994 the Central and Northern Land Councils jointly published a history of Aboriginal Land Rights in the Northern Territory.

Our Land, Our Life explores the first twenty years of land rights activism and legislation in the territory, and remains an important record of this period.

The full text of Our Land, Our Life can be found here.

A professionally laid out hard-copy version of Our Land, Our Life is available from the Central Land Council.

Table of Contents

1. Introduction
2. History of the Land Rights Act
3. What the Land Rights Act says
4. Role of the Land Councils
5. Responsibilities of Land Councils as set out in the Act
6. Reclaiming our land
7. Land claim procedure
8. Right People, Right Country
9. Living with the land
10. Proposals for Aboriginal land
11. Dealing with developers
12. Mining
13. Processing Exploration Applications
14. What are sacred sites?
15. Sacred sites and their protection
16. Still fighting for Sacred Site laws
17. Retrieving our culture
18. Why many people remain dispossessed
19. Permits and access to Aboriginal land
20. Government opposition to Land Rights
21. Deaths in Custody Commission

Our land is our life. Since time began we have cared for our country and it has provided for us. We belong to the land. For us its value isn't measured by money or land is an integral part of an Aboriginal person's identity. We have responsibilities to our land to ensure its spiritual, cultural and economic survival. When European people came to our land they ignored Aboriginal law and imposed their own law. After many years of hard struggle we finally forced non-Aboriginal Australians to recognise our land rights in their law. The Aboriginal Land Rights (Northern Territory) Act 1976 is a bench-mark law: 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.

The Land Rights Act is a fundamental piece of social reform. It is not perfect, and it needs improvement, but it has given us some hope. It has provided land for some of our people in the Northern Territory and so enabled them to maintain, and in some cases to re-establish, their cultural identity. It has given some security to those who have moved back to set up outstations on their ancestors' country. The Act has contributed to the peaceful and responsible development of the Northern Territory and helped avoid the violent confrontations between local indigenous landowners and developers experienced in other parts of Australia and other countries. By providing legal title and a measure of control over some of our traditional lands, the Act 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.

History of the Land Rights Act

We have always been here. The latest European scientific reports date Aboriginal occupation of northern Australia from at least 60,000 years ago. It was a little over one hundred years ago that the first missionaries and mineral prospectors arrived in our country - what today is called the Northern Territory. They were soon joined by government officers, and pastoralists with cattle and sheep which cropped the grass, chased away the kangaroos and other bush tucker, and fouled our waterholes. 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."

In the face of continuing resistance, and justifying their actions by a belief in the superiority of their civilisation, the colonisers pushed Aboriginal people off the fertile lands into controlled settlements. Some areas of the Northern Territory that were inaccessible and unwanted (by non-Aborigines) were set aside as 'native reserves'. Many of our people worked on cattle stations. For decades they were not properly paid, but for them it was a way to stay on their country and continue their responsibilities to it. Aboriginal people fought hard to defend their land - but spears and boomerangs proved no match for gunfire and hundreds of our people were brutally massacred. Even more died from introduced disease and sickness. Today, the struggle for our land rights continues but our new weapons are words and paper.

Every Aboriginal group has its own story to tell of resistance and the fight for their land. Two events in the Northern Territory in the 1960s captured international attention: In 1963, provoked by a unilateral government decision to excise a part of their land for a bauxite mine, Yolngu people at Yirrkala in north-east Arnhem Land sent to the House of Representatives a petition demanding that their land rights be respected. The bark petition provoked a government inquiry and later the Yolngu launched litigation, but the mine went ahead and today the Yolngu are still fighting to be a party to the agreement between government and the multinational company extracting the bauxite. In August 1966 Gurindji people at Wave Hill cattle station went on strike demanding wages and a return of some of their traditional lands. The demand was rejected but the Gurindji continued to camp on their traditional country at Daguragu - they broke the white mans law but obeyed their own. The campaign was taken up by supporters in Australia's cities and eventually the Gurindji won title to part of their land.

The Gurindji and the Yolngu had 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 "Yes" to amend the constitution. Voters overwhelmingly approved giving the Federal Government the constitutional power to make special laws on Aboriginal affairs which could over-rule any state legislation. It was a significant victory in our struggle. But no Federal Government yet has had the courage to take up its moral responsibility and use its constitutional power to ensure Aboriginal rights are respected nationally.

The Woodward Commission

The Australian Labor Party took up Aboriginal land rights as part of 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. But rather than pursue a national land rights law, Prime Minister Gough Whitlam chose to establish a precedent in the Commonwealth controlled Northern Territory. In February 1973 he appointed Mr Justice Woodward to inquire into appropriate ways to recognise Aboriginal land rights in the Northern Territory. In April 1974 Woodward presented his second and final report.

Justice Woodward reported that the aims of land rights were: The doing of simple justice to a people who have been deprived of their land without their consent and without compensation. The promotion of 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. The provision of land holdings as a first essential for people who are economically depressed and who have at present no real opportunity of achieving a normal Australian standard of living.

The preservation, where possible, of the spiritual link with his own land which gives each Aboriginal his sense of identity and which lies at the heart of his spiritual beliefs. The maintenance and, perhaps, improvement of Australias standing among the nations of the world by demonstrably 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.

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. 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. 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.

Justice Woodward said that in reaching his conclusions he had taken full account of the arguments put forward by sectional vested interests who opposed the granting of land rights. Prominent in this group were those from the mining and resources industry. He said: 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 mining and other development on Aboriginal land should proceed only with the consent of the Aboriginal landowners.

The right to withhold consent should only be over-ridden 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". Woodward 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 the transfer to Aboriginal ownership of the government reserve lands and the hearing by an Aboriginal Land Commissioner of 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 Legislation

The Whitlam Government introduced legislation based substantially on Woodward's recommendations. The Bill was before the Parliament when the Government was dismissed in the constitutional crisis of November 1975. Despite election campaign promises from the Liberal-Country Party coalition that the Bill would be passed without amendment, the new Government of Liberal Prime Minister Malcolm Fraser buckled to pressure from mining and pastoral industry groups and conservative politicians in the Northern Territory. He drafted a new bill from which many of the advances of the Whitlam Bill were absent.

A national campaign by our newly created Land Councils salvaged a number of key elements, but the final Bill removed needs-based claims and gave to the Northern Territory Legislative Assembly responsibility for 'complementary' legislation covering sacred site protection, sea closures and permits for access to Aboriginal land. Nonetheless, it was the recommendations of Mr Justice Woodward which formed the basis of the Aboriginal Land Rights (Northern Territory) Act which passed both houses of the Federal Parliament with historic bipartisan support in December 1976. It came into force on 26 January 1977, one-and-a-half years before the Northern Territory was granted self-government. The Northern Territory Government wants the Land Rights Act transferred to its control - a proposal which Aboriginal people strongly reject. However, all federal political parties are cautious of supporting such a move because of the blatantly anti-Aboriginal policies of the Northern Territory Government.

Some Land Won Back

With the advent of the Land Rights Act, most of the existing Aboriginal reserves became Aboriginal land, with inalienable freehold title held by local Aboriginal Land Trusts, and a procedure was established for the claiming of unalienated Crown land - that is, land which no one else is using or has an interest in - and Aboriginal-owned pastoral leases. In the 17 years that the Land Rights Act has been operating, progress in restoring land rights has been painfully slow. Many of our people died without seeing the title papers to land they had claimed over a decade earlier.

The Northern Territory Governments policy of opposing land claims has turned what was meant to be a beneficial process into a legalistic battlefield. The Government employs anthropologists and lawyers to represent it at land claim hearings and has consistently, although always unsuccessfully, challenged the Aboriginal Land Commissioner's recommendations, and decisions of the Federal Minister for Aboriginal Affairs, in the Federal and High Courts. It is estimated that over $10million has been spent by the Northern Territory Government in (unsuccessful) legal challenges designed to limit the amount of Aboriginal land granted.

It has also used its own legislative and administrative powers to undermine the smooth functioning of the Act. After 17 years in operation, about 530,000 square kilometres (39 per cent) of the Northern Territory is Aboriginal land. Over half of this is land formerly set aside as Aboriginal reserves. More than 40 claims, mostly concerning small areas of land, are still outstanding. The Act has produced unequal results for our people in the Northern Territory. While some have regained large areas of their traditional lands - most often in arid desert areas, wetlands and other places unwanted by non-Aboriginal people - thousands of people whose traditional country is in more fertile parts had already lost their land to the pastoral industry before the advent of the Act. Pastoral leases occupy more than half of the Northern Territory and most of them are owned by foreign or interstate business interests.

The Act Under Pressure

While some mining companies and individual pastoralists have come to appreciate the reality of land rights - and many have successfully negotiated use of Aboriginal land - the antagonism of industry lobby groups and conservative politicians continues. Opponents of land rights do not accept that Aboriginal people have a right to make our own decisions about our land and resent having to gain Aboriginal approval, and negotiate conditions, for exploration and mining on Aboriginal land. Yet every independent inquiry into land rights in Australia has strongly endorsed Woodwards finding on the importance of Aboriginal landowners control over mining. For example, Justice Toohey in a 1983 review of the Land Rights Act said: It is quite reasonable that the giving or withholding of consent is not subject to arbitration. If they choose not to permit the grant of a mining interest, the traditional owners are doing no more than exercising their legal rights. To subject this decision to arbitration would seriously weaken those rights. And, in his 1984 inquiry into land rights in Western Australia, Paul Seaman QC said: My assessment is that there is no compelling economic reason why, in the interests of the broader community, Aboriginal communities should not be afforded control over mining or petroleum activity on Aboriginal Land. A multi-million dollar public campaign led by mining industry lobby groups had some success when the Land Rights Act was weakened by substantial legislative amendments in 1987. Yet still the mining lobby groups and the Northern Territory Government have maintained their attacks on the Act.

Reviews And Amendments

In response to this continual pressure, the Land Rights Act has been reviewed several times in its short life and Aboriginal people and their Land Councils have spent much time and resources defending their achievements. The assimilationist policies of the Country Liberal Party Northern Territory Government and its unrelenting campaign against Aboriginal control of Aboriginal land have ensured that the Land Councils have always been forced to operate in a hostile environment. Rather than join the Land Councils in ensuring the responsible development of Aboriginal land, the Northern Territory Government has always tried to undermine the authority of the Land Councils and to defeat Aboriginal aspirations.

There have been two significant amendments to the Land Rights Act. 1987: The Labor Government's abandonment of its national land rights policy in the face of concerted pressure from wealthy mining industry groups left the Northern Territory Land Councils campaigning to prevent amendments to the Land Rights Act which would have emasculated Aboriginal control of their land. The compromise negotiated by the Land Councils staved off the worst of the proposals but the Aboriginal Land Rights (Northern Territory) Amendment Act 1987 meant a weakening of Aboriginal control. While the right to say "yes" or "no" to a mining proposal was maintained, a strict time constraint is now put on Aboriginal landowners making the decision - and unless the proposal is specifically rejected within that time, the landowners are deemed to have consented to it. As well, if landowners agree to an exploration proposal, they are also deemed to have agreed to any subsequent mining activity which is consistent with that proposal.

This means that they must decide in principle whether to allow mining at a time when there is little information about the type and extent of the potential mining project. The amendments introduced some uncertainty about the enforceability of agreements negotiated between the Land Councils and mining companies - this was later compounded by mischievous Northern Territory Government litigation against the parties to an exploration agreement. It remains unresolved. 1989: Consistent lobbying by the Land Councils to have the Federal Government amend the Act to give some chance for people whose traditional lands were under pastoral lease - and therefore unable to be claimed - to gain secure title to small living areas, met with limited success in 1989.

The Act was amended to allow the transfer to traditional owners of sections of the disused government-owned stock routes that traverse the pastoral leases. However, the Government refused the Land Councils' demand to provide a mechanism within the Act for small living areas to be excised from pastoral leases. Instead, this was left to the Northern Territory Government to legislate, and its law has proved to be inadequate. The Federal Government has refused other proposed amendments to the Land Rights Act which would promote and entrench in law Aboriginal rights. In particular, the Land Councils have urged changes to ensure the proper protection of sacred sites, and to allow the Act to function more efficiently.

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What the Land Rights Act says

Land granted: When the Act was passed, the former "reserves" became Aboriginal land. The land was granted without the need for a land claim. It is referred to as Schedule One land.

Land Claims: The only land able to be claimed is unalienated Crown land - land that no-one else is using or has an interest in - or land which is wholly owned by Aboriginal people. A successful land claim requires the Aboriginal landowners to prove their traditional relationship to the land under claim. This involves extensive research by anthropologists, and the claimants providing evidence before the Aboriginal Land Commissioner who is a judge of the Federal Court or the Supreme Court of the Northern Territory. The Commissioner must be satisfied that the claimants are the right traditional owners according to Aboriginal law. The Land Commissioner makes his recommendation to the Minister for Aboriginal Affairs. He 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 usage in the region. The Minister for Aboriginal Affairs decides whether to recommend to the Governor General to grant all or part of the land under claim.

Land Trusts: Land successfully claimed is granted under inalienable freehold title. It cannot be bought, acquired or mortgaged. Communal title is formally vested in Aboriginal Land Trusts comprised of Aboriginal people who hold the title for the benefit of all the traditional landowners. Land Councils: The Land Councils are representative bodies of elected Aboriginal people. The councils determine policy and employ expert legal, anthropological and land management staff to assist Aboriginal people in the claiming and management of their land, the protection of their sacred sites and the financial management of income received under the Act.

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Role of the NT Land Councils

Aboriginal Land Councils represent and promote the interests of Aboriginal people throughout the Northern Territory. They were set up by Aboriginal people in the early 1970s during the Federal Government's Aboriginal Land Rights Commission (the Woodward Inquiry). By bringing together landowners from their respective regions, the Land Councils were strong bodies able to represent the wishes of Aboriginal people to the Inquiry. When the Aboriginal Land Rights (Northern Territory) Act 1976 came into force, the Land Councils were formally established as statutory authorities with a secure funding base and the power to employ staff to assist them to carry out their work.

The specific functions of the Land Councils are defined in the Act, but further responsibilities are set out in other legislation, in particular the Aboriginal Land Act 1980 (NT) and the Native Title Act 1993 (Cwth). But first and foremost the Land Councils remain representative bodies promoting Aboriginal rights. The are four Land Councils in the Northern Territory: the Central Land Council, covering the southern half of the mainland Northern Territory - below a line drawn between the Barkly Tablelands in the east and the Victoria River in the west; the Northern Land Council, covering the area north of that line; the Tiwi Land Council, covering Bathurst and Melville Islands; and the Anindilyakwa Land Council, covering Groote Eylandt and Bickerton Island. This information was produced by the Central and Northern Land Councils - which represent the vast majority of Aboriginal people in the Northern Territory - to explain their Councils' structure and operations. While the Tiwi and Anindilyakwa Land Councils have the same statutory functions, their considerably smaller land area and population, as well as the fact that their areas are all Aboriginal land, means that their structure and operation differs in some ways from the Central and Northern Land Councils.

Council Structure

Every three years, Aboriginal communities elect their representatives to the Land Councils. Depending on the size of a community, it may have up to four Land Council positions. The Central and Northern Land Councils have 81 and 78 elected members respectively. Each Land Council elects a Chairman, a Deputy Chairman and an Executive which represents the regions within the Council's area of responsibility. The Chairman is a full-time employee of the Council. Land Council meetings are held in various places within their regions and are normally open to all Aboriginal people in the region, however the right to vote and hold elected office is reserved for members. Each Land Council normally meets four times a year to determine policy which directs the work of staff, and review and ratify agreements between traditional landowners and developers wanting to use Aboriginal land. Executive meetings are held in between Council meetings.

Land Council Offices And Staff

The main office of the Central Land Council is in Alice Springs, the Northern Land Council's main office is in Darwin and both maintain a network of regional offices. Each Land Council employs a Director to co-ordinate the day-to-day work of the staff and ensure the implementation of Council policies in accordance with the Land Rights Act. Professional staff including anthropologists, environmental scientists and lawyers, are amongst the more than 90 staff employed by each Council. The continual need to consult traditional landowners, the dispersed population and large geographical areas covered by the Land Councils means that field staff have a critical role and that efficient transport is vital - together the two Councils cover at least two million kilometres by road a year. While many Aboriginal people in the Northern Territory speak English, and some read and write it, for most it is not our first language. The Land Councils frequently conduct meetings and produce community information in local languages.

Funding

Mining companies pay royalties to the Federal and Northern Territory Governments. The Federal Government pays an amount equal to a proportion of the royalties received by it and the Northern Territory Government from mines on Aboriginal land. The payments are made from Consolidated Revenue to the Aboriginals Benefit Trust Account (ABTA). ABTA funds are divided between Aboriginal communities affected by the mines, Aboriginal groups on a grant basis, and the Land Councils for their operating costs. The budgets of the Land Councils are approved by the Minister for Aboriginal Affairs and must be accounted for in audited financial statements contained in Annual Reports which are tabled each year in the Federal Parliament. This system is not perfect but it does mean that our funding is not completely dependent on the whim of politicians for each annual budget. However the Land Councils' financial planning is made uncertain because the system depends on mining companies providing financial projections to the ABTA, and there are difficulties associated with fluctuating world mineral prices. Government amendments to royalty rates and their methods of calculation also impact upon ABTA receipts and therefore Land Council income.

Policy And Representation

The Land Councils are the major representative bodies of Aboriginal people in the Northern Territory and have a statutory responsibility to protect the interests of traditional landowners and express their wishes and opinions. This involves legal and policy staff making representations to governments about legislation, preparing submissions, conducting research, liaising with the media and producing educational material for both Aboriginal communities and the wider Australian public. A regular newspaper, Land Rights News, is produced by the two Land Councils and distributed nationally and internationally. The Land Councils also produce videos and printed newsletters for Aboriginal communities. The task of monitoring and making representations over Northern Territory legislation is made considerably harder by the lack of co-operation from the Government which does not necessarily inform the Land Councils of proposed legislative changes, even where they directly affect Aboriginal people.

Much of the Land Councils' work in the policy and representation area is spent defending Aboriginal rights from the hostile Northern Territory Government. The Land Councils are also prominent defending and promoting Aboriginal rights in the national and international political arenas. For example, the Land Councils helped organise protests and celebrations during the Australian bi-centennary in 1988 - notably with the presentation of the Barunga and were at the forefront of negotiations with the Federal Government over the High Court's judgement in the Mabo (Native Title) case. Land Council delegates continue to be leading participants in international forums and debates including those concerning the United Nations' draft Universal Declaration on the Rights of Indigenous Peoples.

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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. Section 23 of the Act says the functions of a Land Council are to: 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 Aboriginal owners of, and other Aborigines interested in, Aboriginal land; assist Aboriginal people to protect sacred sites, whether or not on Aboriginal land; consult traditional Aboriginal landowners and other Aborigines interested in Aboriginal land about proposals for the use of their land; negotiate on behalf of traditional landowners with people interested in using Aboriginal land and land under claim; assist Aboriginal people claiming land and, in particular, arrange and pay for legal assistance for them; 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 its functions, the Land Council must consult with traditional landowners and other Aborigines with an interest in the land.

Landowners must give their consent before the Land Council enters into an agreement, or takes any action affecting their land. The 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 ABTA to communities affected by mining operations and income received on behalf of landowners under negotiated agreements; process applications for permits to enter Aboriginal land.

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Reclaiming our land

The long, hard road home An important statutory function of the Land Councils is assisting Aboriginal people to secure land. The Land Rights Act provides a mechanism for claiming unalienated Crown land and land which is fully owned by Aboriginal people, for example a pastoral station where Aborigines have bought the pastoral lease. When successful, the claimed land is granted under inalienable freehold title. Land Council staff are responsible for co-ordinating land claims. This involves extensive and regular consultation with the traditional Aboriginal landowners who will often be dispersed over a wide area requiring much driving and many meetings.

The opposition of the Northern Territory Government has meant that land claims have become tortuous legalistic exercises which often drag out over many years. For example, the Kenbi land claim near Darwin has been going for well over a decade because of obstacles thrown up by the Government. The Warumungu land claim near Tennant Creek took more than 20 years to finalise. Because the Act only allows claims over vacant Crown land or Aboriginal-owned land, and pastoral leases occupy over half of the Northern Territory, the land claim provisions of the Act are useless for thousands of Aboriginal people. For many, the only hope is to get the excision of small areas from the pastoral leases. The story of these dispossessed people involves the Land Councils fighting for a political solution while also assisting people to negotiate directly with pastoral leaseholders and the Northern Territory Department of Lands. In response to pressure from conservative lobby groups, the Land Rights Act was amended in 1987 to prohibit the Land Commissioner from hearing any claims lodged after 1997.

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How the land claim process works

The first step is lodging the land claim with the Aboriginal Land Commissioner. This contains a description of the land and the names of claimants. To complete the full documentation in support of theclaim may take many months of anthropological field work and research.

The documents the Commissioner requires are: A report which usually runs to hundreds of pages and contains, among other things, a description of the land, a history of its use, and an anthropological model of the traditional land tenure system of the Aboriginal claimants; The genealogies of all claimants and their families; Claimant profiles which include their date and place of birth, gender, residence and the basis for their inclusion in the claim; Maps of sacred sites; and, A register of sacred sites. All documents are confidential and the Commissioner requires them to be lodged at least two months prior to the hearing date. A temporary camp is set up on the land under claim for the initial hearing by the Land Commissioner of evidence from the claimants. The claimants must satisfy him that they are the traditional landowners with 'primary spiritual responsibility' for the land under Aboriginal law. The claimants often take the Commissioner around the land showing him the sacred sites, important places and telling him the stories of the country. If appropriate, they may also perform ceremonies.

The Land Commissioner has secretarial staff and may be assisted by legal counsel and an anthropologist. Traditional owners are assisted at the hearing by legal, anthropological and field staff and consultants of the Land Council. The Northern Territory Government has continued its practice of employing anthropologists and lawyers to represent it at hearings, including cross examining the claimants. Later, expert anthropological evidence is taken by the Land Commissioner. He also receives submissions and hears evidence from parties who believe they will suffer detriment should the land be granted. The Land Council responds to detriment submissions. The Land Commissioner then reports to the Minister for Aboriginal and Torres Strait Islander Affairs recommending which parts, if any, of the claim should be granted and commenting on any detriment issues.

A copy of the report is also provided to the Northern Territory Administrator. The Minister then decides whether to recommend to the Governor General that the land be granted. Before the land is granted the boundaries must be surveyed. Land Council staff, in consultation with the claimants, ensure that the surveying does not disturb sacred sites. The Land Council assists traditional landowners to form a Land Trust to hold the title. The land is granted to the Land Trust.

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Right People, Right Country

The correct identification of traditional landowners is fundamental to ensuring the smooth operation of the Land Rights Act. In other parts of Australia, the failure to initially identify the right traditional landowners has led to later conflict both within Aboriginal communities and between developers and Aboriginal landowners. The Northern Territory Land Councils have developed careful procedures for identifying traditional landowners and resolving traditional land disputes. The success of the Land Rights Act and the procedures of the Land Councils is of large benefit to developers because it ensures the durability of land use agreements and therefore provides certainty to the future of the project. Identifying the right traditional landowners is a major task often involving extensive anthropological fieldwork and research. Approximately half of the Aboriginal land in the Northern Territory is land which was formerly set aside as Aboriginal reserves.

This land was not subject to a land claim, but became Aboriginal land after the proclamation of the Land Rights Act. Consequently, no anthropological research was necessary at that time to identify the traditional landowners. For Aboriginal land which was subject to a land claim or a previous land use application, there will already be records of traditional landownership. However, because of the dynamic nature of Aboriginal land tenure systems, these records need constant updating. So each new land use application requires further research. Originally the Land Rights Act specified that Land Councils had to maintain a register of traditional landownership, however the Act was later amended and this obligation was removed in recognition of the impracticability of the task and the dangers of such a record being relied upon.

The Northern Territory Government and mining lobby groups continue to campaign for the reintroduction of an obligatory register arguing that it would expedite the processing of land use applications. Their campaign refuses to recognise that Aboriginal land tenure systems are very different to the European system. The Land Councils have shown that the only way of ensuring the identification of the right people and the right country is for the process to be in the hands of Aboriginal controlled organisations.

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Living with the land

Creating wealth for Australia By recognising in Australian law our ownership of the land and returningsome land to our control, the Land Rights Act has given us a better chance tolive our lives our way. We have taken from non-Aboriginal Australia some ofthe good things that help us to carry out our responsibilities to our land, likemotor vehicles and two-way radios, and they have changed our lifestyles alot. But nothing has changed our identity with our land. Our land is our life. We look at it in a different way to non-Aboriginal people.For us, land isn't simply a resource to be exploited. It provides us with foodand materials for life, but it also provides our identity and it must be lookedafter, both physically and spiritually. If we abuse our land, or allow someone else to abuse it, we too suffer. The colonisation of our country caused a traumatic cultural upheaval for ourpeople.

Aboriginal people resisted, but our societies suffered as naturalresources - which had sustained hundreds of generations of Aboriginalpeople - were abused and depleted. People were forced off their traditiona llands. Thousands died from violence and introduced diseases. The Land Rights Act has given us some breathing space and, for the firsttime since the arrival of non-Aboriginal people, the ability to develop our landin a way that we choose and at a pace that we choose. It has given Aboriginalpeople the chance to maintain, and in some cases to re-establish, traditionalskills and cultural identity. We also recognise that we can use our land to help us achieve economicsecurity for the future. Many Aboriginal people have chosen to use their landto start up their own businesses.

Many have negotiated land use agreementswith non-Aboriginal entrepreneurs and companies. Economic activity on Aboriginal land contributes significantly to theNorthern Territory and Australian economy. All of the major mines andon-shore oil and gas wells in the Northern Territory are located on Aboriginalland. The main tourist destinations, including the spectacular Kakadu,Nitmiluk and Uluru National Parks, are on Aboriginal land. And Aboriginalpeople have set up enterprises contributing to the pastoral, tourist andmanufacturing industries.

Outstations

The Land Rights Act gave momentum to the outstation movement and some security to small, family-based groups who left the larger (government and mission created) Aboriginal communities and returned to their traditional country. There are over 600 'outstations', or 'homeland centres', in the Northern Territory today and their number is growing. A 1987 House of Representatives Standing Committee on Aboriginal Affairs report described outstations as

"one of the most significant developments in Aboriginal affairs ... (demonstrating) the desire of Aboriginal people to assert control over their lives."

The opportunity to return to their country has meant an increase in ceremonial and traditional activity. More bush tucker is being eaten, local languages spoken, and families are relieved of the social stresses of large communities and the alcohol abuse problems of towns. Most importantly it reaffirms people's identity and allows them to look after their country and carry out their responsibilities to it. The Land Councils try and assist groups establishing outstations and have helped establish outstation resource centres.

Unfortunately, although governments publically recognise the cultural, social and economic benefits of outstations to Aboriginal people, many outstation communities still lack basic infrastructure such as a safe water supply. Government programs for infrastructure provision are grossly underfunded. A continuing frustration for outstation communities is the lack of co-ordination between government departments and agencies - some of which actively discourage the establishment of new outstations. The Northern Territory Government has a formal policy that it will not attempt to provide essential services to any community with less than 50 residents. They actively encourage the centralisation of community resources through such programs as the Community Government Scheme and the mainstreaming of service delivery.

National Parks and Tourism

The biggest tourist drawcards in the Northern Territory are located on Aboriginal land. The World Heritage listed Uluru-Kata Tjuta (Ayers Rock) and Kakadu National Parks are on Aboriginal land which has been leased to the Australian Nature Conservation Agency (formerly the Australian National Parks and Wildlife Service). The Nitmiluk (Katherine Gorge) National Park, also on Aboriginal land, is leased to the Conservation Commission of the Northern Territory.

The leases guarantee thousands of visitors will continue to have access to the parks while at the same time ensuring sacred sites and other Aboriginal interests are protected. Local traditional landowners form a majority on the Parks' Boards of Management and are employed as rangers and cultural interpreters. Their knowledge of the country is a vital ingredient in successful environmental management. Under the terms of the leases negotiated by the Land Councils, the landowners also receive rental payments and a share of park usage fees. Gurig (Cobourg Peninsular) and Tnorala (Gosse Bluff) National Parks are on land granted in freehold title to the traditional landowners by the Northern Territory Government. Aboriginal landowners own the two major hotels in Kakadu National Park, are part owners of the Wattarka (Kings Canyon) Wilderness Lodge and run other tourist enterprises such as guided tours, community art galleries, cultural centres and cafeterias throughout the Northern Territory.

Through their Land Councils, landowners have also negotiated licences with tourist operators for specialist tours on their land such as hunting and photographic safaris, scientific expeditions and Aboriginal cultural experiences. Aboriginal enterprises Aboriginal landowners are using their land to develop new and expanding commercial enterprises. These include mud brick manufacturing, crocodile farming, road and building construction, aeroplane and helicopter charter, and foodstuff and art wholesaling and retailing companies. Several communities run cattle projects on Aboriginal land and the mustering of wild cattle, horses and buffalo contributes to environmental management as well as earning income for landowners. Aboriginal landowners are also active in commercial fishing and pearling enterprises. From crocodile egg collection in the northern wetlands to rabbit harvesting in the central Australian desert, Aboriginal people are using their land and traditional skills in ways that both help look after the country and provide employment.

Pastoral Development

Pastoral leases occupy more than half of the land mass of the Northern Territory and most are owned by overseas or interstate interests. The pastoral industry was originally built by Aboriginal labour but the advent of equal wages and technological change resulted in the industry discarding Aboriginal people, in many cases forcing them off the leases. Today, through the initiative of the Land Councils, Aboriginal people are leading the way in using the latest satellite and computer technology to develop land assessment and monitoring programs. The Land Assesment Project being piloted by the Land Council in central Australia is recognised by pastoral industry groups and government departments and agencies as an exciting initiative in sustainable development. The Land Councils have assisted Aboriginal landowners to access funds to purchase over 20 pastoral leases. The primary motivation is to regain control of traditional country - and all of the former leases have been successfully claimed or are under claim - however, the Land Councils are also assisting the landowners to rehabilitate the country and manage sustainable herds. This is necessary because of the massive land degradation suffered as a result of the Northern Territory Government's mismanagement of pastoral land.

Exploration And Mining

The resource development industry is the largest private sector of the Northern Territory economy and its backbone is Aboriginal land. Over three-quarters of the value of Northern Territory mineral production comes from mines on Aboriginal land. Natural gas produced from Aboriginal land in central Australia fuels the electricity generators of Alice Springs, Tennant Creek, Katherine and Darwin. Local traditional landowners have approved Land Council negotiated exploration agreements with resource development companies covering thousands of square kilometres of Aboriginal land. While some landowners have consented to exploration and mining on their land, some have refused consent. By recognising the right to say "no", and the right to negotiate through land councils the terms and conditions for exploration and mining to proceed, the Land Rights Act has added some balance to what has historically been a grossly unequal, exploitive relationship between Aboriginal people and the mining industry in the Northern Territory.

It has ensured that responsible mineral extraction can proceed free of the confrontations between local landowners and mining companies that have been experienced in Queensland, Western Australia and Bougainville. Mines operating on Aboriginal land in the Northern Territory are producing: uranium (Energy Resources of Australia Ltd at Ranger), bauxite and alumina (Nabalco Ltd at Nhulunbuy), manganese (Gemco at Groote Eylandt) and gold (North Flinders Mines Ltd at the Granites and Dead Bullock Soak; Zapopan at Tanami). As well, the Mereenie and Palm Valley oil and gas fields on Aboriginal land west of Alice Springs are the largest on-shore wells in the Northern Territory. And in 1992, the Jawoyn people successfully negotiated an agreement for the Mt Todd gold mine to proceed on their traditional land near Katherine. By early 1994 the Land Councils had entered agreements for exploration covering over 50,000 square kilometres of Aboriginal land and, at the direction of traditional landowners, negotiations were proceeding over many more areas. More than 80% of the value of minerals extracted in the NT comes from Aboriginal land - this is more than one billion dollars per annum. Contribution to economy While mining is the largest part of the private sector economy, its direct benefit to the Northern Territory is often overstated.

Most profits, interest and dividends accrue to foreign and interstate owners and banks, and much of the labour force is temporary and leave with their savings. On the other hand, all of the income that comes to Aboriginal people through the Aboriginals Benefit Trust Account's mining royalty equivalents and through agreements negotiated by the Land Councils is entirely spent in the Northern Territory. The Land Rights Act has been the basis for the direct injection of hundreds of millions of dollars into the Northern Territory economy. Recent economic studies show the vital role of Aboriginal people in attracting Federal Government funds and private investment to the Northern Territory. For example, it has been calculated that one third of the total value of the central Australian economy is derived from Aboriginal people. The Northern Territory is heavily subsidised by the Commonwealth - per capita it receives more than four times the support of other States. This is in recognition of the large number of Aboriginal people and their dispersal in remote areas, yet much of the money does not get spent on Aboriginal people. In effect Aboriginal people are subsidising public infrastructure and government services for non-Aboriginal people. Material reprinted here is from Our Land Our Life, a 42 page colour booklet which describes the role of the Northern Territory Land Councils under the Aboriginal Land Rights (Northern Territory) Act 1976.

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Aboriginal land use - sharing ... and protecting

The Land Councils have the statutory functions to assist Aboriginal people in the management of their land and to negotiate, on behalf of the traditional landowners, with entrepreneurs and companies wanting to use Aboriginal land. By employing lawyers and professional staff with expertise in land management, including mining, pastoral development, environmental protection, parks and tourism, as well as economic and commercial analysts, the Land Councils are a valuable resource for traditional landowners. Proposals involving the commercial use of Aboriginal land come from Aboriginal individuals and organisations as well as non-Aboriginal business and private interests and government agencies.

Land Council staff actively assist traditional landowners to develop commercial business opportunities which maximise financial returns and create employment opportunities. There are many tourist operations, cattle and fishing projects, community stores and other enterprises which Land. However the statutory requirements for processing land use applications from non-Aboriginal entrepreneurs and government agencies limit the amount of time staff can spend developing Aboriginal proposals. Each year Land Council staff process hundreds of land use applications involving such projects as exploration and mining, road construction, cattle agistment and mustering, tourist safaris, and the installation of telecommunications infrastructure. The value of Land Councils in providing for arm's length negotiations between proponents and local traditional landowners is well recognised. Land Councils make sure that Aboriginal interests are respected and reduce the likelihood that proponents could be seen as attempting to force or cajole local Aboriginal people into an agreement.

Where landowners instruct the Land Council to negotiate an agreement for a lease or licence, the technical, legal and commercial expertise of the Land Councils ensure that the benefits to the landowners are maximised. These benefits can include employment and training opportunities as well as financial returns. The Land Councils also perform a specialist cross-cultural role that ensures traditional landowners are correctly identified and consulted during negotiations. Before entering into any agreement for the use of Aboriginal land, the Land Council must be satisfied: that the traditional landowners, as a group, understand and consent to the proposal; that any other Aboriginal people with an interest in that land have had the opportunity to express their views; and, that the terms and conditions are reasonable. Land Councils monitor projects to ensure compliance with the terms and conditions of the lease or licence and distribute income received on behalf of landowners under lease and licence agreements.

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Dealing with developers

The Land Councils have the statutory functions to assist Aboriginal people in the management of their land and to negotiate, on behalf of the traditional landowners, with entrepreneurs and companies wanting to use Aboriginal land. By employing lawyers and professional staff with expertise in land management, including mining, pastoral development, environmental protection, parks and tourism, as well as economic and commercial analysts, the Land Councils are a valuable resource for traditional landowners. Proposals involving the commercial use of Aboriginal land come from Aboriginal individuals and organisations as well as non-Aboriginal business and private interests and government agencies. Land Council staff actively assist traditional landowners to develop commercial business opportunities which maximise financial returns and create employment opportunities.

There are many tourist operations, cattle and fishing projects, community stores and other enterprises which Land Council staff have assisted Aboriginal people to develop on their land. However the statutory requirements for processing land use applications from non-Aboriginal entrepreneurs and government agencies limit the amount of time staff can spend developing Aboriginal proposals. Each year Land Council staff process hundreds of land use applications involving such projects as exploration and mining, road construction, cattle agistment and mustering, tourist safaris, and the installation of telecommunications infrastructure. The value of Land Councils in providing for arm's length negotiations between proponents and local traditional landowners is well recognised. Land Councils make sure that Aboriginal interests are respected and reduce the likelihood that proponents could be seen as attempting to force or cajole local Aboriginal people into an agreement.

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Exploration and mining

In Australia, minerals are owned by governments not by landowners. This is contrary to traditional Aboriginal law which does not distinguish between surface and sub-surface rights and Land Councils argue that proper recognition of land rights should include the ownership of minerals. While this argument has been considered positively by some inquiries, for example the Industry Commission in its 1991 review of the mining industry, governments are loath to concede ownership. The Land Rights Act, while upholding crown ownership of minerals, legally recognises the right of Aboriginal landowners to refuse an application for exploration and mining on Aboriginal land, except where it is in the 'national interest'. It also recognises their right to set the terms and conditions under which exploration and mining can proceed, and, in a quasi-recognition of traditional mineral ownership rights, provides for the transfer to Aboriginal people of money from Consolidated Revenue in proportions equivalent to the royalties received by governments for mining on Aboriginal land.

The processing of exploration and mining applications has been one of the most costly and demanding tasks of the Land Councils. The opposition to Aboriginal land rights by mining industry lobby groups and the Northern Territory Government is particularly focussed on the right to control mineral exploration. These self-interested groups have used their massive resources to upset the smooth operation of the Land Councils and spread disinformation about exploration and mining on Aboriginal land. As well, substantial amendments to the Land Rights Act made at the insistence of the mining industry in 1987, have resulted in an increase in the cost of processing applications. Despite the adversarial climate, the Land Councils developed and maintained an efficient system for processing of applications according to the detailed provisions of the Land Rights Act. Within a few years of the amendments, tens of thousands of square kilometres of Aboriginal land was being explored under agreements with the Land Councils. Generally the Land Councils have very good working relationships with the companies that they deal with.

But in 1991 the Northern Territory Government threw a spanner in the works. The Minister for Mines and Energy stopped granting Exploration Licences over Aboriginal land and litigated against a mining company, the Northern Land Council and the Federal Aboriginal Affairs Minister over the contents of an agreement that had been struck. The court's decision put a question mark over the enforcability of some parts of agreements - removing the certainty wanted by both developers and landowners. The Land Councils have proposed a modest amendment to restore certainty to agreements, but the Northern Territory Government and mining lobby groups oppose this because they want major changes to remove Aboriginal landowners' control. Striking agreements Following the 1987 amendments, if traditional landowners consent to exploration on their land, they cannot rely on the Land Rights Act to withhold their consent to subsequent mining. This means that, although most exploration does not result in mining, all aspects of a possible mining operation must be addressed in detail at the time the traditional landowners are considering the exploration proposal.

The Act sets out the responsibilities of the Land Councils, traditional landowners, and exploration applicants. An administrative timetable places time limits to expedite the process - a twelve month negotiating period begins from the date a proper proposal is received by a Land Council. On advice from the traditional landowners, the Land Council must refuse or consent to the application within the time constraints of the Act, otherwise the Land Council is deemed to have consented and the terms and conditions of the agreement may be subject to arbitration.

A refusal to consent to exploration freezes the application for five years - it is not an absolute veto. In some areas mining companies have encouraged traditional landowners to refuse their application because they are not yet ready to explore the area, although they want to hold onto the application and lock out other miners. Some traditional landowners who are interested in pursuing resource development on their country have been frustrated by this practice of "warehousing". Land Council attempts to have the Act amended to prevent this anti-development practice have not been successful. Negotiation and Monitoring Where traditional landowners instruct their Land Council to enter into negotiations with an exploration applicant, the legal, technical and commercial skills of Land Council staff are drawn upon to ensure the most favourable benefit to the landowners.

The negotiations are conducted in close consultation with the landowners and before entering into any agreement, the Land Council must be satisfied that the traditional landowners consent to it. Agreements negotiated by the Land Councils have included provisions for the protection of sacred sites, work program approval, environmental protection and rehabilitation, employment and training, compensation payments for the landowners and potential landowner equity in the projects. Agreed procedures for close liaison and monitoring ensure that landowners interests are protected throughout the life of the project. Land Councils monitor exploration and mining projects to ensure their compliance with the agreements under which they operate. The Land Councils also receive, and distribute to Aboriginal communities, the money generated from exploration and mining agreements and the royalty equivalent payments received from the Aboriginals Benefit Trust Account.

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Processing Exploration and Mining Applications

The Land Rights Act sets out the responsibilities of the Land Council, traditional Aboriginal landowners and exploration applicants and proscribes time limits to expedite the process. An exploration licence or exploration permit which allows the holder to explore for minerals or hydrocarbons cannot be issued by the NT Minister for Mines and Energy unless the applicant and the Land Council have entered into an agreement.

The procedure for processing exploration applications is as follows:

1. Exploration Licence Application – The mining company applies to the NT Department of Mines and Energy (DME) for a licence or permit. DME notifies the Land Council of the application.
2. Consent to Negotiate – The Minister for Mines and Energy grants the mining company "consent to negotiate" with the Land Council.
3. Traditional Owner Identification – The Land Council identifies the traditional landowners for the area in question.
4. Application for Consent – The mining company must submit its application including exploration proposal to the Land Council within three months of getting consent to negotiate, otherwise the applicant is deemed to have withdrawn. The exploration proposal must describe all aspects of the exploration activity including possible impact on the environment and the likely effect on the local population. The Land Council ensures that the proposal provides adequate information for traditional landowners to make a decision.
5. Consultation – The Land Council organises a meeting of traditional landowners as soon as possible at which the applicant presents its proposal. The traditional landowners have the right to instruct the Land Council to refuse consent to an exploration proposal that affects their land. Refusal freezes the application for five years after which the same company may re-apply. Alternatively, traditional landowners may instruct the Land Council to negotiate an agreement with the company. Negotiations are pursued in close consultation with the landowners. The Land Council can only enter into an agreement with the approval of the traditional landowners of the area under application and the Minister for Aboriginal Affairs.

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What are sacred sites?

Sacred sites are an integral part of Aboriginal culture. They are places that bear the marks of the creative ancestral spirits which continue to have a presence in the landscape. Geographical features (not all of them spectacular or interesting to the non-Aboriginal eye) mark episodes in the stories of the ancestral spirits' travels across the country. The paths which the ancestral spirits followed, and the sacred sites which mark them, link people of the various language groups into a wider community of Aboriginal people. Sacred sites are the settings of their custodians' most important knowledge and activities. They are fundamental to the sense of self.

To destroy or damage a site is a distressing and dangerous act which threatens not only living and unborn generations, but also the spiritual forces and order of the world. As descendants of ancestral spirits, it is the task of contemporary Aboriginal people to care for their sacred sites by performing necessary rituals and singing the songs which tell of that ancestral spirit's deeds. This ceremonial work celebrates and maintains the world's order. Many sites and songs which are sacred are also secret, too powerful for disclosure. To disclose details of these sites may in itself be tantamount to desecration. This is why many custodians are loath to discuss a site until it is threatened by development and disclosure may be the only means of protection. Some sacred sites may be dangerous places, and Aboriginal people are particularly concerned to protect ignorant people, including non-Aborigines, from hurtful contacts with such places. Australian law recognises sacred sites as bounded entities - a necessary and useful tool if some protection is to be offered. But it should be remembered that while the power of the ancestral spirits may be concentrated in localities, the whole world, and therefore all land, is imbued with spirituality.

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Proper protection of sacred sites

The Land Councils routinely organise sacred site clearances to ensure sacred sites are protected during any work program. The procedures adopted by the Land Councils ensure that a proposed work program can proceed as submitted or amended while maintaining the confidentiality of any information about the sacred sites. The developer first submits a proposed work plan. The areas are then examined by traditional landowners assisted by anthropologists and a report is prepared. The Land Councils say that any sacred site protection law must contain the following principles: any sacred sites authority to be Aboriginal controlled; laws must apply to Ministers, the Government and all government instrumentalities; any clearances for work to be done around sacred sites are only to be approved by the Authority on the instructions of traditional landowners; access to non-Aboriginal land for Aboriginal custodians and their agents to perform any function under the law; full protection of all confidential information, including provision of penalties for any breach of confidentiality; strong penalties for damaging, disturbing or interfering with a sacred site; registration of any sacred site being accepted as evidentiary proof that it is a sacred site.

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Land of our spirit - still fighting for our sacred law

In the Northern Territory we still have to fight for proper legal protection of our sacred sites. For us, it is one of the most important issues in the Northern Territory. The integrity of sacred sites on Aboriginal land is protected by the Land Rights Act which provides Aboriginal control of access and use of land. However, sacred sites which are located off Aboriginal land do not have the same protection. The Land Rights Act gives the Land Councils a specific function to assist Aboriginal people to protect sacred sites, whether or not they are on Aboriginal land, but it also gives the Northern Territory Legislative Assembly the responsibility for sacred site protection legislation.

The Northern Territory Government has abused this power many times, preferring to accommodate its own pro-development stance and mining and pastoral interests rather than ensure Aboriginal sacred sites are properly protected. The culmination of their campaign against sacred sites was the repealing of the Aboriginal Sacred Sites Act 1980 and the passing of the Northern Territory Aboriginal Sacred Sites Act 1989. The new law does not provide proper protection for sacred sites. It has led to confrontations between Aboriginal people and government and private developers. Left out of the Land Rights Act The Woodward Aboriginal Land Rights Commission recommended that sacred sites be protected by land rights legislation.

"The basic legislation should be introduced into the Australian Parliament," Woodward reported, "I think it is important that it should be protected in such a way that its provisions cannot be eroded by the effect of any Northern Territory Ordinances."

Both the Whitlam and the Fraser government's land rights bills provided for the protection of sacred sites. But pressure from the Northern Territory Country Liberal Party led to Fraser agreeing that the Legislative Assembly should have the power to legislate to protect sacred sites. Section 73 of the Aboriginal Land Rights (Northern Territory) Act 1976 gives the Northern Territory Legislative Assembly this power. Next: Retrieving our culture Material reprinted here is from Our Land Our Life, a 42 page colour booklet which describes the role of the Northern Territory Land Councils under the Aboriginal Land Rights (Northern Territory) Act 1976.

Abuse of power

Since winning the power to legislate for sacred site protection the Northern Territory Government has abused this power and failed to accept the need for proper protection laws. In March 1977, the Government introduced the Aboriginal Lands and Sacred Sites Bill. It proposed that because of the need to consider the interests of "landowners", that sacred sites off Aboriginal land would only be protected by decision of the Administrator in Council. The Bill was rejected by a committee of the Australian Parliament and another law had to be drawn up.

The Aboriginal Sacred Sites Act was delayed for two years by the Northern Territory Government and after it was finally passed in 1980, the Government delayed for another year the setting up of the Aboriginal Sacred Sites Protection Authority. Subsequently, the Northern Territory Government attempted several times to weaken the Authority's powers. In 1983 the Act was amended to give the Northern Territory Minister for Lands the power to direct the Authority. The Minister directed it to remove all warning signs which had been erected near sacred sites at the request of custodians. The Government also attempted to make further amendments which would have weakened the protection of sacred sites. (One feature was the proposal to make it a criminal offence to write that a sacred site was a sacred site if the Government said it was not an attack not only on sacred sites but also on religious freedom and freedom of speech.)

In 1982 a Northern Territory Government Minister ordered the blasting and bulldozing of a registered sacred site in order to construct a straight road to the Alice Springs Casino. This occurred without warning and in the middle of negotiations with the custodians. A prosecution against the Minister was launched but later withdrawn because it was found that the Act gave the Government, which created it, immunity from prosecution. Confrontation between the Sacred Sites Authority and the Government continued with the Government repeatedly arguing that sacred sites were holding up the economic development of the Northern Territory.

The Final Act

In October 1988, without consulting Aboriginal people, the Northern Territory Government introduced into the Legislative Assembly the Aboriginal Areas Protection Bill (the name of the Bill was later changed to the Northern Territory Aboriginal Sacred Sites Bill). The proposed law was applauded by mining industry groups and opposed by Aboriginal people, churches and trade unions. The Central and Northern Land Councils condemned it as "completely unacceptable and an insult to all Aboriginal people" The Minister for Lands said the Bill contained, "the principles central to the Government's decision to change sacred sites legislation." He continued: The legislation will ensure that: detriment to landowners is taken into account when a site is to be registered by the Authority. landowners have access to an avenue for making legal agreements with custodians on how land on or near a site may be used. aggrieved parties will have an ultimate right of appeal to the Minister. Landowner is defined in the Act to include miners with an exploration licence. The central principles do not mention the protection of sacred sites, only how to accommodate the interests of "landowners'.

Refusing to seriously discuss the shortcomings of the Bill with the Land Councils, the Government pushed it through the Legislative Assembly in the early hours of Friday morning 26 May 1989. It was a potent symbol of the Government's poor relationship with Aboriginal people that, during the Assembly sittings, Aboriginal protest vigils were maintained outside the Assembly and in the other main towns of the Northern Territory.

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The Northern Territory Aboriginal Sacred Sites Act

The intention of the Northern Territory Aboriginal Sacred Sites Act 1989 is not to protect sacred sites but to provide "legal" means for miners and "developers" to desecrate sites. The full title of the Act makes this clear: An Act to effect a practical balance between the recognised need to preserve and enhance Aboriginal cultural tradition in relation to certain lands in the Territory and the aspirations of the Aboriginal and all other peoples of the Territory for their economic, cultural and social advancement..."

The Act is unacceptable to Aboriginal people because:

it gives the Northern Territory Minister for Lands and Housing the power to override Aboriginal custodians' wishes and authorise work on sites and even the destruction of those sites;

the Aboriginal Areas Protection Authority it establishes is not independent and is subject to Ministerial direction in several areas; it does not maintain the confidentiality of information about sites that custodians had provided under the former law;

it does not require developers to seek a site clearance before proceeding with work; the consultation procedures it provides isolate individual custodians and cause division amongst Aboriginal families and groups.

The Northern Territory Government has instructed its authorities and departments, and encouraged private developers, to directly approach Aboriginal custodians, by-passing the organisations with the legislative function and the expertise to perform sacred site avoidance surveys the Land Councils and the Aboriginal Areas Protection Authority. This has led to Aboriginal people being harassed by developers and has also caused divisions within Aboriginal families as individual custodians have been selectively consulted.

A proposed dam in Alice Springs and a proposed mine at Guratba (Coronation Hill) near Katherine are two clear examples of the failings of the Sacred Sites Act and the Northern Territory Government's disregard for Aboriginal rights. In both cases inquiries under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cwth) found serious deficiencies in the Northern Territory law and practices. (see dam story) Justice Stewart in his report on the inquiry into Guratba stated that the area was of particular significance to Aboriginal people and that: "... the protection and remedies available under the Northern Territory Aboriginal Sacred Sites Act 1989 are not such that they can be relied upon to avoid the threat of injury or desecration of the area".

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Federal Government responsibility

Aboriginal people's religious and cultural beliefs should not be subject to the insensitive and hostile Northern Territory Government.

The Land Councils say that sacred site protection laws should be the responsibility of the Federal Government which has the constitutional power to over-ride Northern Territory legislation. Despite requests for intervention, and detailed submissions on the inadequacies of the Northern Territory law, the Federal Government did not prevent the law taking effect. Nor did the Prime Minister's promise to "closely monitor its operation" result in any change. The Federal Government's Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cwth), which was designed as a last resort safety net for instances where state and territory laws have proved inadequate, will continue to be relied upon. The Land Councils and Aboriginal organisations in other states continue to campaign for proper national sacred site protection laws.

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Retrieving our culture

The Land Councils have helped many Aboriginal people retrieve cultural material from museums and private collections in Australia and overseas. These include secret and sacred ceremonial objects and human remains. While some collectors have voluntarily returned cultural material and others have been willing to once approached, some have refused and even attempted to smuggle objects out of the country and offered them for sale. Many objects were stolen by explorers, adventurers and tourists who came across them in their travels in remote areas. Others were given by their owners to missionaries, government officers and other non-Aboriginal people for safe-keeping during periods of rapid European encroachment. For non-Aboriginal people, the objects and skeletal remains were of academic or curiosity value and many have been publicly displayed in contravention of Aboriginal law. For Aboriginal people skeletal remains must be treated with respect for the person's spirit, and objects can be integral to ceremony and land ownership. The Land Councils have lobbied governments for stronger laws protecting Aboriginal cultural material from commercial exploitation and offensive treatment, as well as tracing and identifying material held overseas and in Australian collections and negotiating its return. The Land Councils have formal policies on sacred objects which include the following principles: That Aboriginal custodians remain the rightful owners of secret and sacred objects and they have the right to decide who shall hold these objects and under what conditions. Where custodians for sacred objects can be located, and they wish to have their objects returned, that they be speedily returned. If custodians do not wish to have them returned, their wishes as to future care, storage and access be respected. Where custodians cannot be located, sacred objects must be treated in accordance with Aboriginal law: e.g. not on public display, nor reproduced for public display. Sacred objects must not be sold or transferred to private or overseas parties.

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Why many people remain dispossessed - Refugees in their own land

Continuing Dispossession In Our Times

More than 20 years after the Aboriginal Land Rights (Northern Territory) Act 1976 became law, thousands of Aboriginal people in the Northern Territory remain landless. These people are refugees from the giant cattle stations that occupy most of the Northern Territory land mass. Clinging to the edges of towns or squatting on the pastoral properties that occupy their traditional country, many live in conditions like those found in some developing countries. Government agencies are reluctant to provide basic infrastructure like houses and a water supply to those Aborigines who have remained on their land because they have no legal title to that land. And they cannot claim land under the Land Rights Act which only allows claims over vacant Crown land. They have been called "the people that land rights forgot". In most cases, the only hope of securing land for these people is for small areas to be excised from the pastoral leases. Attempts to secure 'excisions' (as these small parcels of land are known) for the estimated 6,000 Aborigines from the "cattle country" is a major thrust of the Land Councils' work. It is estimated that to provide the minimum necessary number of "excisions" would require only 0.3 per cent of the total pastoral leasehold land in the Northern Territory. Pastoral lobby groups, backed by the Northern Territory Government, have trenchantly opposed constructive attempts by the Land Councils to resolve the problem, although some individual pastoralists - appreciating that an excision does not effect the viability of their cattle operations - have readily negotiated excisions from their leases.

Further, in May 1991, the NT Government introduced an amendment to the Crown Lands Act which removed the right of many Aboriginal residents of communities located within 2km of a station homestead to apply for living areas. Only those people who have been permanent residents at homesteads since 1979 will be able to apply for land within the "two kilometre limit". The rights of Aboriginal people to use pastoral lease areas for traditional purposes - rights enshrined in all NT pastoral leases since last century - have been diminished in recent years by Northern Territory Government legislation. The history of the pastoral industry, and the fate of the Aboriginal people who helped build it, is a sorry tale of dispossession, degradation and denial of rights. But it is also a story of determination by traditional landowners and the Land Councils to achieve a small measure of justice for people who have been made refugees in their own country. Building the cattle industry With the arrival of mobs of cattle in northern Australia in the latter part of last century the "battle for the waterholes" began.

The resistance of Aboriginal people to the colonisation of their land is well documented. There were frequent cattle spearings, occasional attacks on European outposts and all-too-common indiscriminate retaliatory massacres of Aborigines. The Europeans with their cattle and their guns soon occupied the more fertile lands. They were there to stay; but so were the Aborigines. The Europeans needed Aboriginal knowledge of the country, and they needed their labour. By working on the cattle stations Aboriginal people were able to stay on their land and continue their responsibilities to it. Up until about 25 years ago the Northern Territory cattle industry depended for its success on Aboriginal labour. It was Aboriginal people who built the fences, dug the bores and tendered, mustered and drove the cattle. It was common to find them 'paid' with meagre allowances of flour, tea, sugar and tobacco. Locked out In 1968 Aboriginal stock workers won the right to award wages and conditions equal to white workers. But it was a hollow victory.

With the mechanisation of the industry - sub-divisional fencing, modern trapping yards, road transport replacing droving and the advent of helicopter mustering - pastoralists had already begun to do away with Aboriginal labour. The Aboriginal camps which had been pools of cheap labour were no longer needed and many people were forced off the stations. As well, with the establishment of assimilation settlements run by government officers and missionaries, Aborigines were "encouraged" to move off the pastoral properties. Special clauses in the pastoral leases issued by the government guaranteed the rights of Aborigines to use their traditional lands.But this was not policed and often ignored and Aborigines found themselves increasingly locked out of their land.

Neglected Inquiries

Since the early 1970s governments have been aware of the need to address the specific land needs of Aborigines dispossessed by the pastoral industry. There have been numerous inquiries and reports, but none have been acted upon. In 1971 the Report of the Committee to Review the Situation of Aboriginals on Pastoral Properties in the Northern Territory (the Gibb Report) recommended the excision from pastoral leases of small community living areas. Since then a number of Government committees and independent inquiries have recognised the urgent need to provide secure title to land to Aboriginal people in pastoral areas: Justice Woodward's Aboriginal Land Rights Commission (1973/74), the Martin Report on Pastoral Land Tenure in the Northern Territory (1980) and Justice Toohey's 1983 review of the Land Rights Act.

Pushed Out Of The Land Rights Act

The Land Rights Bill introduced by the Whitlam Labor Government in 1975 followed Woodward's recommendation and included provisions to authorise the Aboriginal Land Commissioner to recommend the grant of land within pastoral leases on a needs basis. Following Whitlam's dismissal, the new Government of Liberal Party Prime Minister Malcolm Fraser acceded to pressure from pastoralist lobby groups, backed by conservative Northern Territory politicians, and removed the provision. Land claims could only be made over unalienated Crown land. The Fraser Government was given an assurance by the Northern Territory Legislative Assembly that it would pass legislation to meet the land needs of Aboriginal people unable to claim land under the Land Rights Act. The promise was not honoured and thousands of Aborigines remained landless. Dodging the flak The Northern Territory Government, which has close political links with the Northern Territory Cattlemen's Association - a staunch opponent of Aboriginal rights - long avoided addressing the excisions question.

The Land Councils continued to lobby the Federal Government to amend the Land Rights Act to allow excision claims. With more unfulfilled promises of legislation and, later, administrative guidelines which were supposed to, but didn't, provide the necessary excisions, the Northern Territory Government managed to stave off Federal Government intervention for many years. In the meantime, direct negotiations between the Land Councils and individual pastoralists resulted in a handful of excisions being delivered. The Land Councils maintained pressure on the Federal Government to act.

Keeping Up The Pressure

The Land Council campaign focussed national and international attention on the appalling living conditions endured by the pastoral refugees. Several Aboriginal groups took direct action and, with support from the Land Councils and other Aboriginal organisations, moved back on to their traditional land on pastoral leases. In an effort to secure some land, the Land Councils lodged claims under the Land Rights Act on the disused stock routes and reserves which traverse the Northern Territory pastoral leases. These thin strips of land were never part of pastoral leases - they were vacant public lands once used for droving in the days before cattle were transported by road trucks.

Some Success

Continual pressure on the Federal Government achieved limited success in early 1990 when the Land Rights Act was amended to provide for the granting of some parcels of land from the disused stock routes and reserves. The Land Councils, under instruction from traditional landowners, offered to withdraw three-quarters of the claims over stock route and reserve areas in return for the direct granting of the agreed portions.

The Land Councils also wanted a provision for claiming excisions inserted in the Land Rights Act, but were excluded from a September 1989 compromise agreed between the Prime Minister and the Northern Territory Chief Minister which committed the Northern Territory Government to excisions legislation. Forced to acknowledge the failure of its earlier administrative guidelines for handling excision requests, the Northern Territory Government passed legislation establishing a new system by which Aboriginal groups could claim small living areas on pastoral leases. Although the Miscellaneous Acts Amendment (Aboriginal Community Living Areas) Act 1989 is seriously flawed, the Land Councils are assisting people attempting to use the arduous bureaucratic procedure it provides in the hope of securing excisions.

The NT Law

The requirement of the Aboriginal Community Living Areas Act that even those groups with existing long standing excision applications must re-apply, and the inordinately long delays built into the whole procedure (see accompanying chart) mean it may take many more years for thousands of the Aboriginal people dispossessed by the pastoral industry to secure legal title to small areas of their land. As well, the Act does not provide sufficient control over mining and exploration activity, and the 'special' freehold title it provides for successful excision applicants is not as secure as the inalienable freehold title enjoyed by Aboriginal landowners under the Federal Land Rights Act. Mr Justice Toohey, in his 1983 review of the Land Rights Act, said: "It is not desirable that eligibility (of excision applicants) depend or be conditioned by the opinion of the relevant minister. Such an approach introduces an unnecessary note of uncertainty."

Need For Change

In December 1992 the Land Councils declared the Act was not working and needed to be scrapped. Following a meeting Prime Minister Keating said that he would give the Act a further six months trial before taking action. In that time, title to five excisions were finally handed over by the Northern Territory government. But more than 40 applications are still outstanding and the Land Councils say the Act remains unworkable.

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Permits

Access To Aboriginal Land

Mr Justice Woodward said in his 1974 report that: "The most important proof of Aboriginal ownership of land will be the right to exclude from it those people who are not welcome". The Aboriginal Land Act (NT) of 1980 requires anyone entering Aboriginal land or seas adjoining Aboriginal land to have a permit. These are processed and issued by the CLC. Applications can be made either through the Alice Springs office or any regional office. While Aboriginal people have that right of exclusion this does not mean that they are unwilling to share their land

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Causing trouble - for miners and landowners

The Northern Territory Government has always opposed the right of Aboriginal people to refuse consent to exploration and mining proposals on Aboriginal land. Successive NT Minister for Mines and Energy have sought to undermine the Land Rights Act by upsetting the smooth processing of exploration applications. In the mid-1980s, leading up to the 1987 amendments to the Act, exploration licence applications were deliberately withheld from the Land Councils to help create the appearance of exploration inactivity on Aboriginal land.

In 1991, the Minister refused to issue a number of Exploration Licences after agreements had been finalised between companies and Land Councils. He then took action in the Supreme Court against one company, Stockdale Prospecting Limited, the Northern Land Council and the Federal Minister for Aboriginal Affairs. Although all parties were happy with the exploration agreement that they had reached, and Stockdale was keen to commence exploration, the NT Minister didn't like some of the terms of the agreement. He argued that terms and conditions that the parties had agreed would apply in the event of any subsequent mining should not be included in the exploration agreement. The Land Rights Act, the Minister argued, did not allow for this.

In March 1992 the Court ruled in the Minister's favour finding that certain clauses in the Stockdale agreement were unenforceable. The ramifications of the court action are far reaching. Almost every exploration agreement reached between companies and the Land Councils includes provisions relating to any possible mining stage. This is because both companies and Aboriginal landowners want certainty about how possible future mining might proceed before commencing exploration.

The result of the Minister's action is that question marks now hang over many exploration agreements that are currently in operation. There is now the potential for dispute at the most critical stage of mine development. The certainty that both parties seek is lost. And some Aboriginal landowners are not prepared to finalise new exploration agreements because they can no longer be certain that their interests will be protected if a mineable deposit is discovered. The Land Councils have proposed a modest amendment to restore certainty to agreements, but the Northern Territory Government and mining lobby groups want major changes to further limit, or preferably remove, Aboriginal landowners' control. Meantime the smooth operation of the Act has once more been upset.

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An agenda for reform

The Royal Commission Into Aboriginal Deaths In Custody

The Royal Commission into Aboriginal Deaths in Custody was the most comprehensive investigation ever conducted into the position of Aboriginal people in Australia. The 5,000 page, 11 volume final report of the Commission, which was published in May 1991, is the result of over three years of investigation by five Royal Commissioners headed by Elliott Johnston, QC. The Commission was established jointly by the Commonwealth and all the state and territory governments and had two main tasks: to inquire into the immediate causes of death of 99 Aboriginal and Torres Strait Islander people who died in police or prison custody between 1 January 1980 and 31 May 1989; and, to report and make recommendations regarding the underlying issues associated with the deaths.

The 339 recommendations of the National Report refer to social, legal, economic and political issues including self determination, health, housing, education, economic opportunity, land needs and the criminal justice system. Soon after its publication, a joint statement by Ministers from Commonwealth, State and Territory governments praised the report saying it established "a national agenda for reform for this nation". The Ministers said that the Royal Commission had played an invaluable role in "graphically revealing to this country the full extent of Aboriginal disadvantage and the issues underlying that disadvantage". They pledged a comprehensive national response.

On 20 December 1991, in his final public statement as Prime Minister, Bob Hawke said of the Royal Commission: "There is no greater moral obligation on the governments of this country than to pick up those recommendations and run with them". In 1992 the Commonwealth formally endorsed all but one of the 339 recommendations and committed an extra $400million in funds over five years. The Prime Minister, Paul Keating, said, "there is no more central issue to our national identity and self esteem than the injustices brought home to all of us by the Royal Commission into Aboriginal Deaths in Custody. There is nothing more central to our reputation in the world, or to the kind of democratic, just society to which we aspire". However, the rhetoric has not translated into action. The Northern Territory Government - and some state governments - while professing to support its recommendations continues programs and policies which are in direct contradiction with the Royal Commission report. And the Commonwealth Government remains reluctant to intervene.

Land And Self Determination

In considering land needs and land rights, Royal Commissioner, Elliott Johnston QC, praised the Northern Territory Land Rights Act reporting: "... it is my observation that the fact that there is today tangible evidence of improved community relations and of improvement in the social and economic conditions of Aboriginal people, may be directly attributable, at least in part, to the very fact that the legislation was introduced there". Commissioner Johnston endorsed the inalienability of title provided by the Act and said of the consent provisions and the role of Land Councils: "Those rights and protections seem to me to be essential if land rights is to have any meaning". "…the Land Councils have become important and respected representatives of Aboriginal interests; a fact which has been of great importance in ensuring, generally, the advancement of Aboriginal people and, ultimately, the long-term betterment of community relations." Self determination was a central theme of the Commission's recommendations.

Commissioner Elliott reported, "that substantial change in the situation of Aboriginal people in Australia will not occur unless government and non-Aboriginal society accept the necessity for Aboriginal people to be empowered to identify, effect and direct the changes which are required". The Commission promoted the critical role of Aboriginal organisations in the design and delivery of services to Aboriginal people. It also said that the practice - itself not always followed - of government's consulting with Aboriginal people had to be replaced by negotiation. "That governments negotiate with appropriate Aboriginal organisations and communities to determine guidelines as to the procedures and processes which should be followed to ensure that the self determination principle is applied in the design and implementation of any policy or program or the substantial modification of any policy or program which will particularly affect Aboriginal people."