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Application for the Establishment of the Katherine Regional Land Council

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Application for the Establishment of the Katherine Regional Land Council Application for the Establishment of the Katherine Regional land Council Submission by the Northern Land Council to the Commission of Inquiry conducted by the Aboriginal Land Commissioner Howard Olney AM QC September 2011 APPLICATION TO ESTABLISH KATHERINE REGIONAL LAND COUNCIL COMMISSION OF INQUIRY CONDUCTED BY THE ABORIGINAL LAND COMMISSIONER HOWARD OLNEY AM QC NORTHERN LAND COUNCIL SUBMISSION 1. EXECUTIVE SUMMARY This submission responds to an application made by 15 persons on 25 January 20 II under s 21 A of the Aboriginal Land Rights (Northern Territory) Act 1976 for the establishment of a new Land Council within the present region of the Northern Land Council (NLC). Despite concerning almost 80% of the NLC's region, the applicants propose that the new entity have only 10 staff. The applicants submit that additional staff are not needed, because the new entity will delegate functions to traditional owner corporations (in most cases, yet to be established) with cost recovery being used to engage consultants and assistance for the performance of statutory functions. It is submitted that the application should be refused pursuant to s 21B(1)(b) because the Minister could not be satisfied that the qualifying area is an "appropriate" area under s 21B(2)(a), given that: (i) The application does not fulfil the statutory purpose of s 21A, which is to enable separate Land Councils for regional cultural groupings, but only where capacity and good governance is demonstrated and where it is otherwise appropriate. (ii) The boundary of the qualifying area bisects the Arnhem Land Aboriginal Land Trust, and is thus inconsistent with the statutory scheme which does not contemplate that two Land Councils will be responsible for administering and directing a single Land Trust. (iii) The boundary of the qualifying area bisects land subject to applications for minerals exploration licences, and is thus inconsistent with the statutory scheme which does not contemplate that two Land Councils will be responsible in relation to those applications. (iv) The boundary of the qualifying area bisects granted exploration licences and licences under s 19, despite the NLC retaining contractual rights under those agreements (regarding all land subject to the licence) if a new Land Council is established. (v) The boundary of the qualifying area bisects the area covered by other agreements such as for the Alice Springs to Darwin Raihvay and Kakadu National Park (albeit that a specific lease or licence is not bisected), despite the NLC retaining contractual rights under those agreements (regarding all land) if a new Land Council is established. (vi) The boundary bisects various unresolved land claims and native title applications, and concerns other claims and applications, despite existing solicitor/client relationships and there being no evidence that the applicants have consulted the claimants as to their proposal. It is further submitted that the application should be refused pursuant to s 21 B(l)(b) because the Minister could not be satisfied that new entity could "satisfactorily" perform a Land Council's functions regarding the qualifying area as required by s 21 B(2)(b), clue to the proposal being unworkable. Finally, it is submitted that the application should be refused because consultations demonstrate that there is considerable support for the NLC retaining its role regarding the qualifying area, and only minimal support for a new entity being established. 2. LEGISLATION In its original form s 21 of the Aboriginal Land Rights (Northern Territory) Act 1976 empowered the Minister to establish a new Land Council for a proposed area of land provided that he or she was satisfied that: (i) "a substantial majority of adult Aboriginals living in" the proposed area "is in favour" of the establishment; (ii) the proposed area is an "appropriate area for the operation of a new Land Council". Pursuant to that provision two new Land Councils were established, the Tiwi Land Council on 18 August 1978, and the Anindilyakwa Land Council on 1 July 1991. In both cases Aboriginal land within the regions of those Land Councils are vested in Aboriginal Land Trusts which operate solely under the auspices of one responsible Land Council. For the Tiwi Land Council, the Tiwi Aboriginal Land Trust received a separate title to Aboriginal land in 1980. For the Anindilyakwa Land Council, amending legislation in 2006 was required to achieve that outcome (s 12AAB). Hitherto Groote Eylandt and other islands were part of the Arnhem Land Aboriginal Land Trust and, where leases were executed, the NLC continued to perform that function since it retained possession of the Land Trust seal. This arguably dubious arrangement was implemented in circumstances where concerns as to stamp duty liability and legal doubt as to the process whereby part of a Land Trust's title may be transferred to a new Land Trust under s 19(4) were not removed until the 2006 amendments (ss 4(1AB) and 20A)1 In both cases, since the Aboriginal land comprised islands, mining and other development agreements or applications regarding that land did not overlap onto adjacent Aboriginal land. This meant that, in practice, no significant issue arose as to two Land Councils being responsible for administering and performing consultative or contractual functions regarding proposed or existing development on the same Land Trust. Further, both Land Councils represent traditional owners and residents from a small region who have a close cultural connection. These considerations direct attention to the size of the qualifying area specified in the application, which comprises almost 80% of the NLC's region and thus has increased potential for practical difficulties from overlapping responsibilities vis-a-vis existing or proposed developments. In 2006 an expanded three stage process was introduced through the insertion of ss 21A to 21D: 1 Section 4(1AB) ensures that a Land Trust may be established prior to, and for the purpose of, receiving a transfer of land under the former provision). Section 20A ensures that stamp duty and Northern Territory taxes do not apply. (i) Upon receiving a valid application for the establishment of a new Land Council the Minister must notify either support for, or refusal of, the application (s 21B(1)). (ii) If supported, a plebiscite must be conducted by the Australian Electoral Commission of adult Aboriginals living in the proposed area (s 21C(1)). (iii) If greater than 55% of the votes cast in a plebiscite favour a new Land Council, the Minister in his or her discretion may establish a new Land Council (s 21C(5)). If there is less than 55% support, the application lapses. This three stage process includes criteria which are directed at sound administration and management (eg ss 21A(2)(d) and 21B(2)). These increased measures directed at good governance accord with other legislation in recent years to ensure transparency and accountability in the operation of the Land Rights Act. This includes various amendments to the Land Rights Act (most recently, in 2006), the Commonwealth Authorities and Companies Act 1997 (CAC Act), and the Corporations (Aboriginal and Torres Strait Islander Act 2006. Also in 2006 a new process (ss 28A to 28F) was introduced whereby a Land Council may be requested to delegate to an Aboriginal corporation all development agreement functions involving the grant of a lease or tenement.2 The delegation cannot be revoked except with the consent of the corporation (s 28B), and a Land Council cannot also perform these functions during the delegation (s 28D(l)). If a Land Council declines to delegate its functions, the corporation may request the Minister to override the Land Council's decision (s 28C). Certain functions cannot be delegated, particularly the payment of mining royalty equivalents and lease rentals to Aboriginal corporations or traditional owners under s 35, a Land Council's general power to direct a Land Trust under s 5(2)(a) (which includes to terminate a lease or enforce conditions thereunder, but not to direct the grant of a lease of Aboriginal land under s 19), and a Land Council's contractual obligations regarding proposed development (eg provisions known as mining principles in Part IV exploration agreements oblige the proponent to negotiate a mining agreement with the NLC if minerals are discovered and mining occurs). These constraints, it is submitted, raise significant questions as to whether a s 28A delegation will deliver inefficiency and duplication rather than workable, practical outcomes. As drafted , the delegation provisions do not appear to achieve the stated purpose in the explanatory memorandum of the 2006 amending Bill of allowing "all of a Land Council's powers and functions regarding land use to be delegated" (noting that achieving that outcome may raise drafting complexities). In terms the s 28A process does not include equivalent criteria directed at sound administration and management, however those considerations must be paramount regarding any decision which a Land Council or Minister may make. This is particularly so since the probity measures in the CAC Act do not apply where, under delegation, an Aboriginal corporation performs statutory functions ordinarily performed by a Land Council. The delegation process is pertinent since the applicants have made it clear that a new Land Council "will delegate substantial powers" to traditional owner corporations.3 Indeed the s 21A application was preceded by two apparently associated s 28A applications, the first 2 Including the grant of part IV mining tenements, and s 19 leases and licences (eg pastoral, extractive minerals). 3 Applicants' letter dated 26 July 2011 to the Aboriginal Land Commissioner p 8. elated 4 August 2010 by the Mangarrayi Aboriginal Corporation regarding Elsey Station, and the second elated 31 August 20 l 0 by the Jawoyn Association Aboriginal Corporation (despite requests, the area of Aboriginal land for which this delegation is sought has not been identified).
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