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ABORIGINAL LAND RIGHTS () 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 2

CONTENTS

Subject Page

Introduction 1 Aboriginal Land Councils 5 The establishment of a new Land Council 5 The Application 7 The Inquiry 9 The Qualifying area 12 The functions of a Land Council 19 Unresolved traditional land claims 21 Mining 22 Native Title 22 Land Council membership 23 Statutory royalty equivalents 23 Submission by the NLC 24 Third party responses 25

ANNEXURES 1. Terms of reference for the inquiry. 29

2. Traditional land claims applications within the qualifying area not 31 finally disposed of.

3. MAPS Map 1 : Local authority boundaries 34 Map 2 : Aboriginal land 35 Map 3 : Native title applications and determinations 36 Map 4 : Mining tenements and applications. 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. 4

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; 5

(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 6

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); 7

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 No of Signatories Ngukkar 39 Katherine 14 Timber Creek 10 Elliot 14 Yarralin 1 Robinson River 39 Borroloola 50 Total 167

11. 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 8

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 .

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: 9

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.

13. 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 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: 10

• 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: 11

• 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. 13

• 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 14

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 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 15

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 people (Elliott / Marlinja), o Ngalakan (Ngukurr), o Ngaliwurru / people (Timber Creek), o Ngalkbon people (Bulman), o (Ngukurr), o (Yarralin / Amanbidji), o Nunggubuyu (Ngukurr), o Rambarrngna people (Bulman), o Ritharangu (Ngukurr), o people (Nicholson River) o Wagaman (Pine Creek), o Wandarang (Ngukurr), o (Katherine west), o 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 and to the east of Katherine as far as the . Having regard to the signatories referred to in paragraph 10 above it will be 16

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 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 17

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. 19

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 Mittiebah Alawa (No. 1) Muckaty Beswick Murranji Bilinara Nagurunguru Burudu Nalipinkak Dillinya Narwinbi Garawa Ngaliwurru Nungali Gulangulu Udoongul Gulgunnorr Upper Daly Gunlom Urapunga Jandanku Waanyi/Garawa 20

Jawoyn Wagiman 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 Menngen

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

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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.

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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 Name of Claim Report No. No. 70 Lower Land Claim 65 71 Maria Island and Land 61 Claim 129 Mataranka Area (NT Potion 916) Land 68 Claim 141 Western Roper River (Beds and Banks) 68 Land Claim 164 Roper Valley Area Land Claim 68 178 Garrwa (Wearyan and Robinson River Beds 64 and Banks) Land Claim 184 McArthur River Region Land Claim 62 185 Manangoora Region Land Claim 62 & 66 186 Seven Emu Region Land Claim 66 187 Wollogorang Area Land Claim 66 198 Maria Island Region Land Claim 61 & 63 199 Lorella Region Land Claim 63 245 Elsey Region Land Claim 68

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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

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. 76 Land Claim

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. 111 Area III Land Claim

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 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. 151 Yirwalalay Land Claim

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. 167 Gregory National Park/Victoria River Land Claim

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. 172 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

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. 188 Legune Area Land Claim

The areas remaining under claim are part of the beds and banks of each of Sandy Creek, and Victoria River and the intertidal zone adjacent to Legune pastoral lease. The comments made in relation to Claim 167 apply. 189 Region Land Claim

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). 240 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.

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MAPS 31

Map 1: Local Authorities Boundaries

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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.

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Map 2: Aboriginal Land

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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

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Map 3: Mining Tenements

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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

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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