The Aboriginal Land Rights Act

The Aboriginal Land Rights (Northern Territory) Act 1976 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 has provided land for many Aboriginal people in the Northern Territory and so enabled them to maintain, and in some cases to re-establish, their cultural identity. The Land Rights Act 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. Download the CLC publication The Land Rights Act Made Simple.

Traditional Landowners

The Land Rights Act  defines ‘traditional landowners’ as a group of Aboriginals who have “primary spiritual responsibility” for sacred sites on a piece of land, and who are entitled by Aboriginal tradition to hunt and gather on that land. Traditional landowners are the key decision makers for their land, although Land Councils must also talk to affected communities.

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.

As a result of an amendment to the Aboriginal Land Rights act by the Hawke Government, no more land claims could be lodged after June 30 1997. However some claims before then are still outstanding.

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.It is not held by Land Councils. The Northern Territory Government cannot ‘compulsorily’ acquire the land.

As the owner, the Land Trust may grant an interest over that land for homes for Aboriginal people or workers, for Aboriginal businesses, or for any community purpose.
However, a Land Trust cannot grant any interest until directed by the Land Council. Before giving a direction, a Land Council must:
• consult with and have regard to the interests of traditional owners
• ensure that traditional owners understand any proposal
• ensure any affected Aboriginal community has expressed its views
• comply with traditional decision making processes
• not give a direction without the consent of traditional owners.

So a Land Trust owns the land and the Land Council checks if traditional owners agree with proposals. The Land Council then directs the Land Trust to carry out the proposals and the Land Trust must follow the directions.

Land Councils

Establishment of Land Councils

The Land Rights Act established the Northern Land Council and Central Land Council. Anindilyakwa and Tiwi Land Councils were formed from areas within the Northern Land Council region.

Any Aboriginal person or association may apply to the Minister to form a new Land Council. If the Minister agrees with the application, and 55 per cent of people support it in a vote, the Minister may form the new Land Council (previously a new Land Council could be formed if the Minister was satisfied a ‘substantial majority’ supported it).

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.

Mining

The Land Rights Act sets out how exploration ‘looking around’ and mining must be done on Aboriginal land. A mining company must provide details of its plan and a Land Council must consult with traditional land owners about that plan to explore on their land. Traditional owners have around two years to make a decision, which may be extended if the company agrees. (previously one year with provision for extensions)

If traditional owners say no, the mining company and any other company will be blocked for five years, unless the Land Council applies to remove this block. (previously could not apply to remove block but could remove block after two years in special cases)

If traditional owners say yes, the mining company and traditional owners must make an agreement about looking around. The company must provide further details and make a further agreement before mining, but traditional owners cannot block mining if they say yes to exploration.

Royalty or Land Use Money

  • All money paid to Land Councils arising from mining agreements or other land uses is held in trust by Land Council for traditional owners.
  • Land Council must pay these monies to traditional owners within six months of receiving the money as determined by the Land Council.
  • Monies will generally be paid to royalty associations which have rules about distributions to their members.
  • When a royalty association spends money, it must tell the person to who it pays the money what the purpose of the payment is.
  • All royalty associations must report the names of people receiving payments, and the dates, amounts and purposes of payments to the Land Council.
  • If a royalty association does not report to the Land Council, Land Council may suspend further payments to that royalty association.
  • The activities and operations of royalty associations receiving certain payments under determinations may be audited by the Australian Government Office of Evaluation and Audit.
  • These changes are designed to increase the accountability of royalty money. (previously royalty associations did not have to specify purposes for expenditure and did not have to report details to Land Councils)

Aboriginals Benefit Account

The Land Rights Act establishes the Aboriginals Benefit Account (ABA).

Payments are made to the ABA from the Commonwealth and the Territory based on how much mining has been done on Aboriginal land.
Of the money in the ABA:
• a proportion determined by the Minister goes to the Land Councils {previously 40% of the ABA money was guaranteed to fund the Land Councils}
• 30% goes to the areas affected by  mining, and
• the balance is for the benefit of Aboriginals living in the NT and may be used for community grants and administration of the ABA. (previously the balance was set at 30% but now the balance could be higher if Land Councils receive less funding;  previously this money could also be made as extra payments to the Land Councils but now cannot)
The job of the ABA Advisory Committee is to ‘advise the Minister’ about how to use the balance of funds for the benefit of Aboriginals living in the NT.
The Committee is made up of:
•  a Chair appointed by the Minister
• one or two members appointed by the Minister who have land management or business expertise
• members elected by each Land Council.
The CLC currently elects five members to sit on the Advisory Committee.
The NLC has seven  members on the Advisory Committee and the Tiwi Land Council and Anindilyakwa Land Councils have one each.
The ABA only has an advisory role, so it cannot tell the Minister what to do with money in the ABA, it can only advise the Minister about how it would like the community grant money to be spent.

Other

The Land Rights Act offers a range of further protections for Aboriginal land:
• roads cannot be built on Aboriginal land without the consent of traditional land owners
• damaging sacred sites is an offence
• entering Aboriginal land without a permit is an offence although in some cases permits for public areas in communities have been abolished
• the Northern Territory Government is given the power to make laws for the protection of sacred sites and permits to enter Aboriginal land.