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ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) ACT 1976
Report to the Minister for Families, Housing, Community Services and Indigenous
Affairs by the Aboriginal Land Commissioner (the Hon. Howard Olney AM QC) on
an application to establish a new Land Council proposed to be known as Katherine
Regional Land Council
Office of the Aboriginal Land Commissioner
39-41 Woods Street
Darwin NT 0800
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CONTENTS
Subject
Introduction
Aboriginal Land Councils
The establishment of a new Land Council
The Application
The Inquiry
The Qualifying area
The functions of a Land Council
Unresolved traditional land claims
Mining
Native Title
Land Council membership
Statutory royalty equivalents
Submission by the NLC
Third party responses
ANNEXURES
Terms of reference for the inquiry.
1.
2.
Traditional land claims applications within the qualifying area not
finally disposed of.
3.
MAPS
Map 1 : Local authority boundaries
Map 2 : Aboriginal land
Map 3 : Native title applications and determinations
Map 4 : Mining tenements and applications.
Page
1
5
5
7
9
12
19
21
22
22
23
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24
25
29
31
34
35
36
37
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Introduction
1.
This report to the Minister for Families, Housing, Community Services and
Indigenous Affairs (the Minister) is furnished pursuant to the provisions of
s 50(1)(d) of the Aboriginal Land Rights (Northern Territory) Act 1976
(the Act) which provides that the functions of the Aboriginal Land
Commissioner (the Commissioner) include, intia alia, the function to advise
the Minister in connection with any matter relevant to the operation of the Act
that is referred to the Commissioner by the Minister.
2.
By letter dated 19 April 2011 the Minister referred to the Commissioner the
task of undertaking an inquiry into an application made to the Minister
pursuant to s 21A of the Act (the application) for the establishment of a new
Land Council in respect of an area (the qualifying area) the boundaries of
which are illustrated on each of the maps annexed to this report. The terms of
reference for the inquiry (a copy of which is annexed to this report) initially
required the Commissioner to report to the Minister by 31 July 2011 but the
Minister subsequently agreed to extend the time for providing his report to
30 September 2011 to enable all of the material provided to be properly
considered by the interested parties.
However, in the week preceding
30 September the Commissioner received 3 additional submissions raising
important issues and although each has been referred to the applicants for
comment there has not been adequate time or opportunity for this to be done.
In the circumstances it would be appropriate to treat this report as an interim
report pending receipt of any further submissions which the applicants may
wish to make.
3.
In the course of this report reference will be made to various documents that
have a bearing upon the matters under consideration. Those documents have
been compiled into a separate volume accompanying this report to which
reference should be made for more precise detail of their content.
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Aboriginal Land Councils
4.
Part III of the Act (sections 21 to 39) deals with the establishment and
functions of Aboriginal Land Councils. Upon the commencement of the Act
(26 January 1977) the Minister was required by notice published in the
Gazette, to divide the Northern Territory into at least two areas and to
establish an Aboriginal Land Council for each area.
By notices published in Gazette 1977 No S6 the then Minister established the
Northern Land Council (NLC) and the Central Land Council (the CLC) and in
each of such notices identified a boundary line which separated the areas of
the two Land Councils. The area for which the NLC was established was
stated to be the land north of the boundary whereas the area for which the
CLC was established was stated to be south of the boundary. (The boundary
line was subsequently amended by notice published in Gazette 1977 No G34
on 30 August 1977 in order to correct several errors in the original description
of the boundary). Since the establishment of the NLC and the CLC two
further Land Councils have been established namely the Tiwi Land Council
and the Anindilyakwa Land Council. The areas of responsibility of the latter
land Councils relate to islands off-shore from the mainland which were
originally part of the area of the NLC.
The establishment of a new Land Council
5.
Amendments made to the Act in 2006 replaced previous provisions dealing
with the establishment of new Land Councils with new sections 21A to 21D
(inclusive)
6.
Section 21A(1) provides that an application for the establishment of a new
Land Council may be made by:
(a) one or more adult Aboriginals living in the qualifying area;
(b) an Aboriginal and Torres Strait Islander Corporation, the majority of
whose members live in the qualifying area;
(c) an association of Aboriginals, or a company whose shareholders are all
Aboriginals, incorporated under a law of the Northern Territory and the
majority of whose members or shareholders live in the qualifying area;
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(d) any other body prescribed by the regulations, the majority of whose
members live in the qualifying area;
and section 21A(2) provides that an application must:
(a) set out the boundaries of the qualifying area; and
(b) specify a name for the proposed new Land Council; and
(c) include an estimate of the number of Aboriginals living in the
qualifying area and an explanation of how the estimate was arrived at;
and
(d) specify the proposed management structure for the proposed new Land
Council; and
(e) specify the proposed arrangements for consulting and representing
Aboriginals living in the qualifying area on issues affecting that area;
and
(f) include details of any consultation that has occurred with Aboriginals
living in the qualifying area on the proposed establishment of the new
Land Council; and
(g) include any other information prescribed by the regulations.
The term “qualifying area” is defined in s 3(1) of the Act to mean an area that:
(a) is wholly included in the area of a Land Council; or
(b) is partly included in the area of one Land Council and partly included
in the area of one or more other Land Councils.
7.
Section 21B provides that upon receipt of an application under s 21A the
Minister must by notice in writing:
(a) state that he or she supports the establishment of the new Land Council
and that he or she will request the Australian Electoral Commission to
hold a vote on the matter; or
(b) refuse the application;
but must not give a notice that he or she supports the establishment of the new
Land Council unless satisfied that:
(a) the qualifying area is an appropriate area for the establishment of a
new Land Council; and
(b) the proposed new Land Council will be able to satisfactorily perform
the functions of a Land Council.
The Minister must give the applicant written notice of his or her decision and
if he or she refuses the application, the notice must also include reasons for the
refusal (s 21B(3)).
If the Minister gives a notice in support of the establishment of a new Land
Council the Minister is required to request the Australian Electoral
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Commission to hold a vote on the proposal (s 21C(1)). For present purposes it
is not necessary to explore the remaining provisions of s 21C relating to
eligibility to vote and other processes relating to the conduct of the vote.
Sufficient to say that the Minister may, by notice in writing, establish the new
Land Council for the qualifying area if at least 55% of the formal votes cast by
persons entitled to vote on the proposal are in favour of it (s 21C(5)).
8.
It may be observed that the processes mandated by the Act in relation to an
application for the establishment of a new Land Council leave considerable
discretion in the hands of the Minister. First, it will be noted that s 21B(2) is
expressed in negative terms in that the Minister may not give a notice
supporting an application unless satisfied as to the matters referred to in
subparagraphs (2)(a) and (2)(b). Even if satisfied as to those matters, the
Minister is not obliged to support the application. There may well be other
factors which militate against the establishment of a new Land Council.
Similarly, the provisions of s 21C(5) are expressed in permissive rather than
mandatory terms. Even after a favourable vote of 55% the Minister is not
obliged to establish the new Land Council.
The Application
9.
The application was submitted to the Minister on 25 January 2011 under cover
of a letter signed by Mr Preston Lee. On the face of it (but subject to the
reservation expressed in paragraph 18) the application meets all of the
statutory criteria required for such an application namely:
a) The application is made by one or more adult Aboriginals living in the
qualifying area (para. 1);
b) The boundaries of the qualifying area are specified by reference to a
map annexed to the application (para. 3);
c) The name of the proposed new Land Council namely the Katherine
Regional Land Council (KRLC), is specified (para. 4);
d) There is an estimate of the number of Aboriginals living in the
qualifying area (namely in excess of 14,000) and an explanation of
how the estimate was arrived at (para. 5);
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e) The proposed management structure for the proposed new Land
Council is specified (para. 6);
f) The proposed arrangements for consulting and representing
Aboriginals living in the qualifying area are specified (para. 7);
g) Details of consultations which have occurred with Aboriginals living
in the qualifying area on the proposed establishment of the new Land
Council are provided (para. 8);
h) There is no other information prescribed by the regulations required to
be included in the application.
10.
Attachment C to the application is in the form of a petition signed in support
of the establishment of a new Land Council by a total of 167 individuals from
seven different locations within the qualifying area. Although it has been
thought undesirable to specifically identify the individuals who signed the
petition it is nevertheless appropriate that the number of signatories from each
of such locations be disclosed. The following table reflects the relevant
details.
Location
11.
No of Signatories
Ngukkar
39
Katherine
14
Timber Creek
10
Elliot
14
Yarralin
1
Robinson River
39
Borroloola
50
Total
167
It is apparent from the annexed maps that the qualifying area covers a large
part of the area currently assigned to the NLC. In fact the qualifying area is
approximately 78% of the NLC’s area.
In these circumstances it is
understandable that there is some tension between the applicant group and the
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NLC and this was demonstrated at the meetings to which reference is made
below. In the introduction to the application the applicants state:
The applicants are mindful of the very positive contribution which the
Northern Land Council (“NLC”) has made over many years to the
welfare of Aboriginals across the Top End.
It is time for Aboriginal groups and communities to take a more active
and direct role in the management of their traditional interests in land
and in advocating their interests generally.
This cannot be achieved through the NLC. Conscious of growing
needs and aspirations of Aboriginal communities in the Top End, the
NLC has tried for many years to give effect to some kind of
meaningful ‘regional’ decision-making. It has, however, failed again
and again.
Subsequently, in a covering letter forwarding a detailed submission in support
of the application, a more conciliatory approach was adopted as is indicated by
the following extract:
We are aware of various experiences by traditional owners of NLC
services which have caused them frustration, disillusionment and
disappointment. Instances of these can be provided to you by those
who have experienced it – and we could provide you with contact
details if you request. You heard of some during your meeting with us
in Katherine on 17 May 2011.
However, our association is not based on the NLC’s performance,
good or bad and it may be that such is not relevant for the purposes of
the Minister’s response to our Application (under s 21B of the Land
Rights Act). For us, it is time for us and others in the qualifying area
to take a more active role in the management of our traditional lands
and more real responsibility for our communities.
The Inquiry
12.
The establishment of the inquiry was advertised in each of the major
newspapers circulating in the Northern Territory, namely
a) the Katherine Times on 25 May 2011;
b) the Centralian Advocate on 27 May 2011;
c) the NT News on 28 May 2011.
Persons and bodies wishing to make submissions were invited to do so in
writing by 1 July 2011. In addition the Commissioner wrote to each of the
following inviting submissions:
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13.
i)
Central Land Council;
ii)
The Chief Minister of the Northern Territory;
iii)
Department of Natural Resources Environment, the Arts and Sport;
iv)
Northern Territory Minerals Council;
v)
Northern Territory Tourist Commission;
vi)
Amateur Fishermen’s Association of the Northern Territory;
vii)
Northern Territory Seafood Council;
viii)
Chamber of Commerce Northern Territory;
ix)
Northern Territory Cattlemen’s Association;
x)
West Arnhem Shire Council;
xi)
Katherine Town Council;
xii)
Barkly Shire Council;
xiii)
Victoria-Daly Shire Council;
xiv)
Roper Gulf Shire Council.
In the course of the inquiry the Commissioner took part in the following
consultations with groups of people both supporting and opposing the
application:
a) 17 May 2011 at Katherine, meeting organized by the Steering
Committee of the proposed KRLC;
b) 17 May 2011 at Darwin, meeting with NLC Executive Committee;
c) 18 May 2011 at Darwin, meeting with Corporate Services officials of
the NLC;
d) 9 June 2011 at South Alligator, meeting with Full Council of the NLC;
e) 5 July 2011 at Ngukurr, meeting organized by NLC;
f) 7 July 2011 at Katherine, meeting organized by NLC;
g) 2 August 2011 at Yarralin, meeting organized by NLC;
h) 30 September 2011 at Katherine, consultation with members of the
Executive Board of the Jawoyn Association.
14.
The meeting at Katherine on 17 May 2011 was attended by about 60
Aboriginals from Katherine and surrounding areas who expressed their
support for the proposed new Land Council. At the outset the meeting was
addressed by [Name Removed] who has been providing legal advice to the
applicants. A total of 17 speakers spoke in favour of the establishment of a
new Land Council. There was no dissenting speaker. The main themes
emerging from the meeting can be summarized as follows:
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
Dissatisfaction with the performance of the NLC, including poor
representation.

Disenfranchisement of local communities in relation to the recognition
of traditional ownership and traditional decision-making processes.

Cultural decline due to a lack of education and economic development
opportunities.

A desire to institute new culturally-based engagement processes with
government and industry to facilitate economic development referred
to as ‘meeting halfway’. The applicants proposed to support
integration into the broader economy through the utilization of land
while respecting traditional decision-making processes and ensuring
the equitable access to the returns from economic activity.
At the conclusion of the meeting the Steering Committee undertook to provide
a written submission addressing the issues relevant to the application.
15.
The meetings with the NLC Executive on 17 May 2011 and with NLC
Corporate Services officials on 18 May 2011 were initiated by the
Commissioner for the purpose of explaining the purpose of the inquiry and to
identify various issues which it was thought appropriate for the NLC to
address in response to the application. The Commissioner invited the NLC
Executive to provide a written submission addressing a range of issues
including the:

financial requirements and funding sources to support the proposed
KRLC based on its operations;

impact on the NLC of the proposed KRLC taking over its regional
network structure;

resolution of outstanding land claims and native title applications; and

overall impact of the proposed KRLC on the NLC.
The NLC Corporate Services officials were also asked to provide information
relating to the effect on the NLC of establishing the proposed KRLC and in
particular the Commissioner identified a number of specific issues for
consideration including the:
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
change in the flow of funding from the Aboriginal Benefit Account
(ABA) if the qualifying area is excised;

composition of the NLC regional network and how it operates,
including the overarching corporate structure;

funding requirements of the regional network and corporate support;

impact of changing of proprietorship of NLC assets within the
qualifying area;

effect on the contractual commitments of the NLC with its related
entities and third parties; and

regional network staffing levels and their functions/duties.
The intention of the applicants to seek to have the proposed KRLC recognized
as the Native Title Representative Body (NTRB) for the qualifying area was
raised. The Commissioner indicated that this was a matter to be dealt with
under the Native Title Act but as it was a matter that the Minister may wish to
consider he would be happy to receive a submission from the NLC on the
impact of having the proposed KRLC recognized as the NTRB for the
qualifying area.
16.
At the meeting of the NLC Council on 9 June 2011 the Commissioner
explained to the members then present the statutory framework in relation to
the application and also his function to inquire and report to the Minister. A
number of council members spoke in support of the NLC’s opposition to the
application. No contrary views were expressed.
17.
The meetings at Ngukurr (5 July 2011), Katherine (7July 2011) and Yarralin
(2 August 2011) followed much the same pattern. The general thrust of the
views expressed was that the NLC has functioned satisfactorily for nearly 40
years, that it is a strong organization and that there is considerable uncertainty
as to how the proposed KRLC would operate and who would control it. At the
Katherine and Yarralin meetings a number of speakers expressed grave
reservations as to the KRLC’s involvement with the Jawoyn Association.
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The qualifying area
18.
The application asserts that the area in respect of which the new Land Council
is proposed to be established is a “qualifying area” for the purpose of the
relevant definition in s 3(1) of the Act “because it is wholly included in the
area of the NLC”.
This assertion is not entirely correct in that the area identified as the qualifying
area clearly extends beyond the low-water mark of the coast and to that extent
encompasses areas which are not “land in the Northern Territory” as expressed
in the Gazettal Notice establishing the area of the NLC. This conclusion is
based upon the decision of the High Court of Australian in Risk v Northern
Land Council and Olney (30 May 2002). This matter has been raised with the
applicants. It would appear however that it would be appropriate to treat the
application as simply applying to land in the Northern Territory within the
boundaries identified in the application.
19.
In the application the boundaries of the qualifying area are described as
co-inciding with the boundaries:

of existing Shire Councils (along the north),

of land held by Aboriginal Land Trusts (along the north east),

of the area for which the NLC is currently recognized as the
Representative Aboriginal/Torres Strait Islander Body (in respect of
the seaward areas),

between the NLC and the Central Land Council (along the south).
(The reference to “north east” in the second dot-point should more
approximately be to the north west).
Subsequent to a number of minor issues being raised with the applicants by
the Commissioner the position in relation to the northern boundary was
clarified in the applicants’ written submission of 30 June 2011 as follows:
Boundaries

The qualifying area is shown on maps included in the Application and
is intended (and required) to be wholly included in the area of the
NLC.
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
Judge Olney, Aboriginal Land Commissioner, as in his letter to the
Applicants received on 23 May 2011 raised a few queries with respect
to the boundaries.
Seabed
 Judge Olney has pointed out in his letter that the qualifying area
boundary shown in the KRLC Application extends beyond the low
water mark of the coastline along both the eastern and western
sides and, as such, extends beyond the area of the NLC.
 Accordingly, the boundary of the qualifying area cannot extend
beyond the low-water mark of the mainland and should be
changed.

However, if there are any islands within the seaward boundaries
shown in the Application which are “land in the Northern
Territory” (see Risk v Northern Territory and Olney: 30 May 2002)
they should be included in the qualifying area.
Fitzmaurice and Daly Rivers
 In addition, Judge Olney’s assumption is confirmed to the effect
that the northern boundary of the qualifying area is adjacent to the
land held by the Daly River/Port Keats Aboriginal Land Trust and
by the Upper Daly Aboriginal Land Trust.
 As such, the qualifying area extends to the boundaries of the lands
held by those Land Trusts and thus includes such parts of the
Fitzmaurice and Daly Rivers which are not part of the lands held
by those Land Trusts.
South Alligator River
 So far as the boundary along the South Alligator River is
concerned, it is to the follow the centre line of that River.
Jim Jim Road
 So far as the boundary along the Jim Jim Road is concerned, it is,
more or less, to follow the centre line of that Road.
No question arises as to either the location or extent of the southern boundary
which coincides with the boundary between the NLC and CLC as defined in
1977.
20.
The Act is silent as to what factors are relevant in determining whether a
particular area is “an appropriate area for the establishment of a new Land
Council”. The Minister is provided with no guidance as to factors which
should be taken into account in order to be satisfied that a qualifying area is an
appropriate area for such a purpose. Such was of course the position from the
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outset of the Act when the Minister was simply directed to “divide the
Northern Territory into at least 2 areas” (s 21(1)).
However, there are a number of matters that could properly be considered in
making an assessment as to the appropriateness of a qualifying area including:
a) the size of the area;
b) any geographic features that identify the area;
c) the social, cultural and historic connections of the inhabitants of the
area;
d) the availability of relevant infrastructure and administrative facilities.
21.
The qualifying area contains approximately 436,062 square kilometres which
although large by any measure, in the context of the Land Rights Act, is not
remarkable in that the NLC’s current area is 561,274 square kilometres and
that of the CLC is 767,054 square kilometres. What is significant is that if the
qualifying area is excised from the NLC, that Land Council’s area of
responsibility will be reduced by approximately 78%.
The qualifying area encompasses the whole of the areas of both the Katherine
Municipality and the Roper Gulf Shire as well as most of the Victoria-Daly
Shire. In addition about half of the Barkly Shire and a small portion of the
West Arnhem Land Shire are also within the qualifying area.
22.
Unlike the areas of the Tiwi Land Council and the Anindilyakwa Land
Council which extend to clearly defined and identifiable physical features,
there is no obvious basis, in geographic terms, for the northern boundary of
the qualifying area. Whilst much of the western end of the boundary follows
the boundaries of existing Aboriginal land to its north, a significant part of the
eastern section merely adopts the northern boundary of the Roper Gulf Shire
without reference to any particular physical feature or existing Aboriginal or
pastoral land boundary. In fact, this section of the boundary in effect bisects
the area of the Arnhem Land Aboriginal Land Trust.
23.
In the application it is asserted that so far as reasonably practicable, the
qualifying area encompasses the traditional lands of traditional groups of
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people which share close social, cultural and historical connections which are
said to include the following groups:
o Alawa-people (Hodgson Downs / Minyerri),
o Dalabon people (Bulman),
o Dargaman people (Katherine),
o Garawa people (Borroloola / Robinson River),
o Jawoyn people (Katherine / Kakadu south),
o Jingili people (Elliott / Marlinja),
o Mangarrayi people (Jilkminggan),
o Mara (Borroloola),
o Mayali people (Katherine / Pine Creek),
o Mudburra people (Elliott / Marlinja),
o Ngalakan (Ngukurr),
o Ngaliwurru / Nungali people (Timber Creek),
o Ngalkbon people (Bulman),
o Ngandi (Ngukurr),
o Ngarinman (Yarralin / Amanbidji),
o Nunggubuyu (Ngukurr),
o Rambarrngna people (Bulman),
o Ritharangu (Ngukurr),
o Waanyi people (Nicholson River)
o Wagaman (Pine Creek),
o Wandarang (Ngukurr),
o Wardaman people (Katherine west),
o Yangman people (Mataranka),
o Yanyula (Borroloola)
Apart from the groups identified above as:

Ngaliwurru / Nungali people (Timber Creek)

Ngarinman (Yarralin / Amanbidji)
all of the groups mentioned are located in the general vicinity of the town of
Katherine and to the east of Katherine as far as the Gulf of Carpentaria.
Having regard to the signatories referred to in paragraph 10 above it will be
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noted that all but 11 of the 167 are from locations within that general area.
There is however no basis to suggest that all of the people associated with the
nominated groups live within the qualifying area.
Whether or not the groups identified in the application share close social,
cultural and historical connections is not something that can readily be
established but it does seem unlikely that such connections would exist
between say the Garawa people of Robinson River and the Ngarinman of
Amanbidji. In any event the relevance of such connections, if they do in fact
exist, is not immediately apparent. The NLC and CLC both cover vast areas
involving very disparate cultures and communities.
24.
It is contemplated by the applicants that the administrative centre of the new
Land Council would be at Katherine which is said to be the business and
government centre for the qualifying area. The fact that each of the Katherine
Municipality, the Roper Gulf Shire and the Victoria-Daly Shire has its main
administrative office in Katherine leads to a reasonable assumption that
relevant infrastructure and administrative facilities exist in Katherine to
support the administrative requirements of a Land Council responsible for the
qualifying area.
25.
There is nothing about the size or general location of the qualifying area which
necessarily renders it as an inappropriate area for a new Land Council.
Currently the NLC and CLC administer areas vastly greater than the
qualifying area whereas the Tiwi and Anindilyakwa Land Councils administer
areas that are very much smaller. Furthermore, there is a significant
population of indigenous people living in the qualifying area particularly in
and around Katherine and the region east of Katherine. However, the question
of whether the qualifying area is an appropriate area for a new Land Council
clearly involves more than a consideration of area, boundaries and population.
26.
Apart from a very small portion which follows the Central Arnhem Road, the
northern boundary of the Roper Gulf Shire which traverses the Arnhem Land
Aboriginal Land Trust (and which has been adopted by the applicants as the
boundary of the qualifying area) is not identifiable by reference to any specific
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physical feature or other established boundary such as a pastoral lease or Land
Trust area.
Whilst this fact in itself is unremarkable it is however significant that if a new
Land Council is established as sought by the applicants it would result in the
Arnhem Land Aboriginal Land Trust being divided into two parts one of
which would remain with the NLC and the other would be within the area of
the new Land Council. This is not an outcome that is contemplated by the
Act.
27.
There are numerous provisions of the Act which indicate a clear intention that
land held by a Land Trust must be within the area of a single Land Council.
Provisions which lead to this conclusion include s 5(2), s 6, s 7, s 8, s 10(2),
s 11(1AF), s 11B(2), s 12(1)(b), s 12(2B), s 12(2C), s 13, s 15, s 16, s 18, s 19,
s 19A and s 20(2). None of these provisions contemplate that land held by a
single Land Trust may be within the area of two or more Land Councils.
28.
There is however an anomaly in s 4(1B) and s 4(1C) which deal with the
amalgamation of two or more areas of Aboriginal land into a single Land
Trust. The subsections in question appear to contemplate the amalgamation of
land within the areas of one or more Land Councils but fail to explain which
Land Council area the amalgamated land would be in. With respect, it would
appear that the inclusion of the words “or Land Councils” in s 4(1B) is the
result of a drafting error which is entirely inconsistent with the general policy
of the Act as exemplified by the various provisions identified in paragraph 27.
29.
There is no doubt that the Minister could establish a Land Trust with a view
to it holding that part of the land held by the Arnhem Land Aboriginal Land
Trust that is within the qualifying area. Subsection 19(4) clearly contemplates
the transfer of land from one Land Trust to another but for this to happen in
the present circumstances it would first be necessary for the NLC to direct the
existing Land Trust to transfer the area in question to the new Land Trust and
this could only take place after the NLC had complied with the requirements
of s 19(5) with respect to obtaining the consent of the traditional owners and
consulting the relevant communities and groups. Furthermore, until any such
18
transfer has in fact been made it would remain open to the NLC to decline to
proceed with the transfer (s 4(1AC)).
30.
In view of the expressed opposition of the NLC to the establishment of the
KRLC it is highly unlikely that it would participate in the process
contemplated by s 19(4). It follows that, in practical terms, the only way that
the Arnhem Land Aboriginal Land Trust could be divested of the area within
the qualifying area would be by legislative amendment.
The functions of a Land Council
31.
Whether or not a proposed new Land Council will be able to satisfactorily
perform the functions of a Land Council would appear to be dependent upon
to capacity and experience of the persons having responsibility for the day to
day administration of the Land Council’s affairs and the availability of
sufficient financial resources to enable those functions to be carried out.
Given the right people and adequate resources there would appear to be no
insuperable barrier to the satisfactory performance of the functions mandated
by the Act.
32.
The Act contains numerous provisions conferring upon Land Councils a great
of variety of functions and imposing many quite onerous responsibilities.
There is nothing to be gained by attempting to catalogue all of those functions
and responsibilities. Even a cursory examination of the Annual Reports of the
NLC and the CLC give some understanding of the extent of a Land Council’s
activities and of the financial resources required to maintain those activities.
For example, the 2009-2010 Annual Report of the NLC shows total staff of
224 and total revenue of $36,497,000 whilst the comparable figures for the
CLC were 203 and $23,782,834. These figures highlight the need to ensure
that any new Land Council must be adequately resourced from the outset
given that it would be required to take over from day one all of the
responsibilities which had previously been placed upon the existing Land
Council in respect of the qualifying area.
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33.
One of the problems facing the applicant group is that the people concerned
have no resource base upon which to rely to finance the preparation of
financial and other advice to support the proposition that the new Land
Council would be able to satisfactorily perform the functions of a Land
Council. Without some precommitment from government as to the extent of
the financial resources that would be made available to it there would appear
to be little or no basis upon which an opinion as to the capacity of the Land
Council to perform its functions could be formed.
However, in the light of the figures quoted above as to the staffing levels of
the NLC and CLC it seems highly unlikely that the KRLC could, as suggested
in its submission to the inquiry, satisfactorily function with a proposed “small
administrative office” comprising:
o Chief Executive Officer
o Financial Management Officer
o Secretary / PA
o 3 Project Officers
o Legal Officer (to advise the KRLC itself, not groups of traditional
Aboriginal owners)
o Anthropologist
o Associations Officer (to assist with financial management and
governance of Aboriginal Corporations)
o 2 Administrative Officers
34.
In addition to the Arnhem Land Aboriginal Land Trust area to which reference
has been made above there are 47 existing Aboriginal Land Trusts within the
qualifying area namely:
Alawa
Alawa (No. 1)
Beswick
Bilinara
Burudu
Dillinya
Garawa
Gulangulu
Gulgunnorr
Gunlom
Jandanku
Mittiebah
Muckaty
Murranji
Nagurunguru
Nalipinkak
Narwinbi
Ngaliwurru Nungali
Udoongul
Upper Daly
Urapunga
Waanyi/Garawa
20
Jawoyn
Kalumpitja
Kalumpitja 2
Kewulyi
Kurnturlpara
Lorrl
Mambaliya Rrumburri
Mangarrayi
Manyallaluk
Marlinja
Marra
Mataranka
Mayat
Menngen
Wagiman
Wagiman No 2
Wambardi
Wanimiyn
Winan
Wubalawun
Wurralibi
Wurralibi 2
Yingawunarri Mudbur
Yubulyawun
Yutpundji-Djindiwirritj
The KRLC would be responsible for the performance of all relevant statutory
functions in respect of all of the above.
Unresolved traditional land claims
35.
The position with regard to traditional land claim applications in respect of
land within the qualifying area is not entirely straight forward. Annexure 2
sets out details of 13 land claims which have been the subject of an inquiry
and report containing recommendations for the granting of title which have
not been finally disposed of and of 10 applications which have not been the
subject of a completed inquiry and report. Each of the 23 claims referred to
was instigated by the NLC on behalf of the claimant traditional owners and in
many cases negotiations in relation to settlement of the claims have been
conducted by the NLC over a considerable period. The establishment of the
KRLC would raise questions as to the standing of the NLC in relation to the
finalization of these claims.
Mining
36.
Part IV of the Act deals in great detail with the role and functions of a Land
Council in relation to all aspects of mining in respect of Aboriginal land
within the area of the Land Council.
Many of those functions involve ongoing negotiations whilst others involve
the obligation to consult with and to ascertain the views of relevant Aboriginal
communities for particular purposes. In addition, the Land Council has
important decision making functions that affect the use of Aboriginal land
21
within its area. The establishment of the KRLC would mean that the NLC
would cease to have any role in relation to matters arising under Part IV of the
Act in respect of land within the qualifying area. In the absence of any
transitional provisions in the Act it is difficult to know just how a new Land
Council would effectively step into the shoes of the old in relation to existing
obligations and to unresolved negotiations.
37.
Map 3 illustrates the extent to which mining tenements exist or have been
sought throughout the qualifying area. Whilst many of such tenements relate
to land this is not Aboriginal land, there are obviously some areas of
Aboriginal land that are affected and would come within the scope of the
provisions of Part IV of the Act. Furthermore, there are a number of
Exploration Permit Applications which are bisected by the northern boundary
of the qualifying area.
Native title
38.
The applicants have indicated their desire that, if established, the KRLC would
seek to become the Native Title Representative Body (NTRB) for the
qualifying area. By ministerial direction dated 2 February 2000 the NLC is
presently recognised as the NTRB for the whole of its area as well as certain
offshore areas. Map 4 illustrates the extent of native title claims and
determinations made by the NLC within its total area of responsibility.
According to its 2009-2010 Annual Report, as at 30 June 2010 there were 136
active claimant applications. Whilst the exact figures are not available it is
obvious from Map 4 that the vast bulk of these applications are in relation to
land within the qualifying area.
The establishment of the KRLC would not of itself affect the status of the
NLC as NTRB within the qualifying area. That would be a matter to be dealt
with, if at all, pursuant to the Native Title Act. Unless and until the current
position is changed the NLC would continue to have a very significant
presence in the qualifying area in relation to native title issues.
22
Land Council membership
39.
Section 29(1) of the Land Rights Act provides that:
The members of a Land Council shall be Aboriginals living in the area of the
Land Council, or whose names are set out in the register maintained by the
Land Council in accordance with section 24, chosen by Aboriginals living in
the area of the Land Council in accordance with such method or methods of
choice, and holding office on such terms and conditions, as is or are, approved
by the Minister from time to time.
(In addition a Land Council may with the Minister’s approval co-opt up to 5
additional members – s 29(2)).
Currently membership of the NLC is in accordance with a Ministerial
Direction dated 17 September 2001 which identifies a total of 54 communities
and outstations which are represented individually by between 1 to 4 members
making a total of 78 members (apart from co-opted members). Of the 54
communities and outstations referred to, 28 are within the qualifying area and
are represented by a total of 37 members. The effect on the NLC of the
establishment of the KRLC would be to reduced its membership by about 47%
and reduce the number of communities and outstations represented by about
approximately 52%.
Statutory royalty equivalents
40.
Information made available by the relevant authority indicates that whilst there
are mines operating in the qualifying area no statutory royalty equivalents are
yet paid by the Commonwealth into the Aboriginal Benefit Account in respect
of them. The only ABA income producing mines in the NLC’s area are
Ranger Uranium mine and the Gove Bauxite Mine. Both of these mines are
outside the qualifying area.
MATERIAL REMOVED DUE TO PRIVACY AND CONFIDENTIALITY
CONCERNS
Third party responses
23
44.
A variety of responses have been received from parties other than the
applicants and the NLC following the announcement of the inquiry. In each
case the response has been in writing and is included in the accompanying
volume of documents. The following is a summary of the matters raised:
i)
Tourism NT advised that it works co-operatively with the four existing
Land Councils and would do the same with the proposed KRLC should
it be established.
MATERIAL REMOVED DUE TO PRIVACY AND CONFIDENTIALITY
CONCERNS
iii)
The Chamber of Commerce Northern Territory advised that it had been
made aware of the application by the Jawoyn Association which is a
member of the Chamber as is the NLC. In the circumstances the
Chamber did not wish to make any comments or prepare a submission
in relation to the application.
iv)
[Name Removed] wrote at length in support of the proposed KRLC.
The main thrust of [Name Removed] submission relates to the
processes involved in dealing with interests in land by Land Trusts
pursuant to s 19 of the Act.
It is his belief that a Land Council based in Katherine would be better
able to deal promptly with s 19 issues than is at present the case
particularly in relation to the development of small business.
MATERIAL REMOVED DUE TO PRIVACY AND CONFIDENTIALITY
CONCERNS
Howard W. Olney
Aboriginal Land Commissioner
14 October 2011
24
ANNEXURES
1.
Terms of reference for the inquiry.
2.
Traditional land claim applications within the qualifying area not finally
disposed of.
3.
Maps
Map 1:
Local authority boundaries;
Map 2:
Aboriginal Land;
Map 3:
Native title applications and determinations;
Map 4:
Mining tenements and applications.
25
1. Terms of Reference
Terms of Reference for an enquiry on an application to establish a Katherine Regional Land
Council pursuant to s. 21A of the Aboriginal Land Rights (Northern Territory) Act 1976
1. Investigate and report upon the extent to which the qualifying area of the proposed Katherine
Regional Land Council (KRLC) is an appropriate area for the establishment of new Land
Council, for the purpose of s. 21B(2)(a) of the Aboriginal Land Rights (Northern Territory) Act
1976 (‘the Act’).
2. Investigate and report upon the extent to which the proposed Land Council will be able to
satisfactorily perform the functions of a Land Council, for the purpose of s. 21B(2)(b) of the
Act. Your report on the capacity of the proposed Land Council to satisfactorily perform these
functions should include, but not necessarily be limited to, the following matters:
a. any practical issues that may arise in satisfying the relevant provisions of the Act in
respect of obtaining the informed consent of the relevant Traditional Owners; and
b. any practical issues that may arise in satisfying the statutory functions of a Land
Council in respect of the mining provisions outlined in Part IV of the Act.
3. Investigate and report upon the nature and scope of functional responsibilities that would be
transferred from the NLC to the KRLC if the new Land Council was established. In addition
to other matters you may consider relevant, your report should:
a. identify the Aboriginal Land Trusts located wholly or partially within the qualifying
area of the proposed Land Council;
b. identify any Land Claim areas located wholly or partially within the qualifying area of
the proposed Land Council that you have not as yet finally disposed of the purpose of
the Act;
c. quantify the number and gross 2009-10 value of income derived from existing land use
agreements pertaining to Aboriginal Land Trusts located wholly or partially within the
qualifying area of the proposed Land Council; and
d. quantify the 2009-10 value of statutory royalty equivalents paid by the Commonwealth
into the Aboriginals Benefit Account, for the purpose of Part VI of the Act, in respect
of mining operations located wholly or partially within the qualifying area of the
proposed Land Council.
4. Meet with the applicants and invite them to provide additional information in support of their
application to establish a new Land Council, including but not limited to the proposed:
a. budget and funding sources for its operations;
b. governance arrangements;
c. administrative and service delivery arrangements; and
d. arrangements for the distribution of mining royalties and income to Aboriginal Land
Trusts located wholly or partially within the qualifying area.
26
5. So far as is practical for the purpose of preparing your report, canvass and document the
views of other parties with a significant interest in the application, including but not limited
to:
a. the existing Land Councils established under the Act;
b. incorporated Indigenous organisations operating in the qualifying area;
c. the Shire Councils with local government service responsibilities in the qualifying area
of the proposed KRLC;
d. relevant industry representative bodies; and
e. the Northern Territory Government.
6. Investigate and report upon any other matters you consider relevant to an assessment of the
application to establish the proposed Katherine Regional Land Council.
7. In accordance with s. 60 of the Act, engage persons having suitable qualifications and
experience as consultants for the purpose of assisting with your enquiry if you are of the view
that such assistance is required.
8. Commence your enquiry no later than 1 May 2011 and provide a report to the Minister for
Families, Housing, Community Services and Indigenous Affairs no later than 31 July 2011.
27
2.
Traditional land claim applications within the qualifying area not
finally disposed of
Applications that have been subject of an inquiry and
report but no grant of title made
Claim
No.
70
71
129
141
164
178
184
185
186
187
198
199
245
Name of Claim
Lower Roper River Land Claim
Maria Island and Limmen Bight River Land
Claim
Mataranka Area (NT Potion 916) Land
Claim
Western Roper River (Beds and Banks)
Land Claim
Roper Valley Area Land Claim
Garrwa (Wearyan and Robinson River Beds
and Banks) Land Claim
McArthur River Region Land Claim
Manangoora Region Land Claim
Seven Emu Region Land Claim
Wollogorang Area Land Claim
Maria Island Region Land Claim
Lorella Region Land Claim
Elsey Region Land Claim
Report No.
65
61
68
68
68
64
62
62 & 66
66
66
61 & 63
63
68
28
Applications that have not been the subject of a completed
inquiry and report
Claim
Name of claim and brief description of land remaining under claim
No.
and present status of claim
74
Anthony Lagoon Area Land Claim
76
An irregular area comprising approximately 198.9 hectares within the
boundaries of Anthony Lagoon pastoral lease. The NLC is currently
negotiating with the pastoral leaseholders and the NT Government with a
view to substituting for the claim area an alternative area not presently
under claim for the purpose of establishing a community living area.
Wickham River Land Claim
111
An irregular area comprising approximately 3100 hectares in the
Wickham River region adjacent (in part) to the Yarralin Community and
(in part) to NT Portion 1568. An inquiry was commenced on 18 May
2009. On 26 August 2009 the NLC advised that the NT Government had
agreed to request that the claim area together with NTP 1568 (held by the
NT Land Corporation) and NTP 2719 (Yarralin) be added to Schedule 1
of the Act and granted to a Land Trust.
Alligator Rivers Area III Land Claim
151
The claim original included the areas known as Gimbat and Goodparla.
Following an inquiry and report, which dealt only with Gimbat, that area
was granted to a Land Trust. It has been proposed that the Goodparla
area be scheduled and leased back to Parks Australia as part of Kakadu
National Park. The portion of Goodparla north of Jim Jim Road and
South Alligator River is not within the qualifying area.
Yirwalalay Land Claim
167
The claim is to an area to the east of Delamere pastoral lease within
which an area has been set aside for a Defence practice area. The NLC,
the NT Government and the Commonwealth have been in negotiation
concerning settlement for several years.
Gregory National Park/Victoria River Land Claim
172
The only area left under claim is part of the bed and banks of the Victoria
River between the boundary of Spirit Hills Pastoral Lease and the
boundary of the town of Timber Creek. The parties have not sought an
inquiry pending resolution of issues arising out of the Blue Mud Bay
decision.
Daly River Region Land Claim
The only remaining areas under claim are portions of the beds and banks
of each of the Fergusson, Edith and Daly Rivers. The comments made in
relating to Claim 167 apply.
29
Claim
Name of claim and brief description of land remaining under claim
No.
and present status of claim
176
Dry River Stock Route Land Claim
188
The area is claimable by virtue of s 50(2E)(a) in that it is a stock route
passing through the area claimed in Claim 151. The comments made in
respect of Claim 151 apply.
Legune Area Land Claim
189
The areas remaining under claim are part of the beds and banks of each of
Sandy Creek, Keep River and Victoria River and the intertidal zone
adjacent to Legune pastoral lease. The comments made in relation to
Claim 167 apply.
Fitzmaurice River Region Land Claim
240
The only area remaining under claim is part of the bed and banks of the
Fitzmaurice River and islands with the boundaries of the river. The
comments made in relation to Claim 167 apply. (To the extent that the
Fitzmaurice River forms the southern boundary of the Daly River/Port
Keats Land Trust, the title of the Trust extends to the low water mark of
the river).
Katherine Region Land Claim
The only area remaining under claim is the bed and banks of the
Katherine River from the Katherine town boundary to the southern-most
point of the western boundary of NT Portion 2294. The comments made
in relation to Claim 167 apply.
30
MAPS
31
Map 1: Local Authorities Boundaries
32
Map 1 description:
The map outlines the boundary of the Proposed Katherine Regional Land Council. The qualifying area is approximately 436,062 sqkm in size
and includes the whole of Roper Gulf Shire and the Katherine Municipality. The northern border of the proposed qualifying area follows the
northern border of the Roper Shire Council to the eastern border of the Northern Territory and through the West Arnhem Shire and the Victoria
Daly Shire towards Southern Alligator River to the western border of the Northern Territory.
The east and west land boundaries of the qualifying area continue along the corresponding borders of the Northern Territory to the boundary
between the Northern Land Council and the Central Land Council. The southern border runs along the boundary between the Northern Land
Council and the Central Land Council bisecting the Victoria Daly Shire and Barkly Shire.
The boundary of the qualifying area also extends past the low water mark on both the east and west sides of the Northern Territory coastline.
The map also outlines the Central Desert, Belyuen, Coomalie, East Arnhem, Tiwi Islands, Wagait and MacDonnell Shires as well as the Darwin,
Litchfield and Palmerston Municipality boundaries which are not included in the qualifying area.
33
Map 2: Aboriginal Land
34
Map 2 description:
The map outlines the boundary of the Proposed Katherine Regional Land Council seeks responsibility. The qualifying area is approximately
436,062 sqkm in size. The northern border of the proposed qualifying area coincides with existing Shire councils and land held by Aboriginal
Land Trusts. The east and west land boundaries sit along the border of the Northern Territory and the southern border runs along the boundary
between the Northern Land Council and the Central Land Council.
The boundary of the qualifying area also extends past the low water mark on both the east and west sides of the Northern Territory coastline.
The qualifying area encompasses various forms of tenure and includes but is not limited to the following Aboriginal Land Trusts:
Alawa
Menngen
Alawa (No.1)
Mittiebah
Arnhem Land
Muckaty
Beswick
Murranji
Bilinara
Nagurunguru
Burundu
Nalipinkak
Dillinya
Narwinbi
Garawa
Ngaliwurru Nungali
Gulangulu
Udoongul
Gulgunnorr
Upper Daly
Gunlom
Urapunga
Jandanku
Waanyi/Garawa
Jawoyn
Wagiman
35
Alawa
Menngen
Kalumpitja
Wagiman No 2
Kalumpitja 2
Wambardi
Kewulyi
Wanimiyn
Kurnturlpara
Winan
Lorrl
Wubalawun
Mambaliya Rrumburri
Wurralibi
Mangarrayi
Wurralibi 2
Manyallaluk
Yingawunarri Mudbur
Marlinja
Yubulyawun
Marra
Yutpundji-Djindiwirritj
Mataranka
Mayat
36
Map 3: Mining Tenements
37
Map 3 description:
The map outlines the boundary of the Proposed Katherine Regional Land Council. The
qualifying area is approximately 436,062 sqkm in size. The northern border of the proposed
qualifying area coincides with existing Shire councils and land held by Aboriginal Land Trusts.
The east and west land boundaries sit along the border of the Northern Territory and the southern
border runs along the boundary between the Northern Land Council and the Central Land
Council.
The boundary of the qualifying area also extends past the low water mark on both the east and
west sides of the Northern Territory coastline.
The map shows areas of land over which licenses for mining, geothermal, petroleum and/or
exploration applications have been submitted or licenses granted in the Proposed Katherine
Regional Land Council qualifying area.
Resource related applications and licenses are located predominantly over the eastern portion of
the qualifying area.
Resource related applications and licensed areas cross the qualifying area boundaries at both the
northern and southern borders.
Information relating to resource related applications and licenses in the Northern Territory is
available from the Department of Resources - Minerals and Energy (Northern Territory
Government) at the following link: http://www.nt.gov.au/d/Minerals_Energy
38
Map 4: Native Title Claims and Determinations
39
Map 4 description:
The map outlines the boundary of the Proposed Katherine Regional Land Council. The
qualifying area is approximately 436,062 sqkm in size. The northern border of the proposed
qualifying area coincides with existing Shire councils and land held by Aboriginal Land Trusts.
The east and west land boundaries sit along the border of the Northern Territory and the southern
border runs along the current boundary between the Northern Land Council and the Central Land
Council.
The boundary of the qualifying area also extends past the low water mark on both the east and
west sides of the Northern Territory coastline.
The map shows areas of land subject to native title claims and determinations in the Proposed
Katherine Regional Land Council qualifying area.
Native title claims are active across the majority of the qualifying area with some claims crossing
the north and south boundaries of the proposed qualifying area.
Information relating to native title claims and determinations in the Northern Territory is
available from the National Native Title Tribunal at the following link: http://www.nntt.gov.au