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Aboriginal Land Rights (Northern Territory) Act 1976

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1 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 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 3 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.
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