Mr DUNHAM - 1997-11-26
All of us are aware that the federal government introduced the Wik bill into the Senate last night. Much has been made of the uncertainty that arises about pastoral leases as a result of this bill. Can the minister confirm whether Aboriginal Territorians are also caught up in this uncertainty?
ANSWER
Madam Speaker, for some time, members on this side have asserted that theNative Title Act, especially following the Wik decision, has not worked in anyone's interests - certainly not in the
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interests of the pastoral industry in the Territory, nor in the interests of Territory Aboriginals. This could be no more clearly demonstrated than by the brief I received the other day from the Department of Lands, Planning and Environment. I intend to read it for the benefit of members opposite and I am prepared to table it in full, although I have deleted the names of the officers who prepared it because they would only be harangued and abused by members opposite. I quote:
Community living area (CLA) freehold grants over native title land must be made in compliance with the future act provisions of the Native Title Act (NTA) in order to be valid and to
ensure that the Territory will not be liable to compensate native title holders whose native title rights have been affected or impaired as a result of the grant and/or the subsequent
use of that native title land.
Eligible Aboriginal applicants can apply for community living areas under part 8 of the Pastoral Land Act. CLA grants are made following the compulsory acquisition of proprietary
interests in the land. CLA grants can also be made following the surrender of pastoral and/or crown lease land under the Crown Lands Act. CLA grants are made to Aboriginal
associations incorporated under the Aboriginal Incorporations Act (Northern Territory) or the Aboriginal Councils and Associations Act (Commonwealth) to hold title to the land.
In order to ensure that they are valid permissible future acts, proposed CLA grants are required to be authorised by the native title holders pursuant to section 21 of the NTA.
The rights and interests of native title holders can only be legally ascertained and defined by a native title determination pursuant to the NTA after detailed anthropological,
historical and land tenure evidence have been considered. Prior to such a determination, there may accordingly be a real risk for the Territory by entering into agreements with
Aborigines who claim to be native title holders because those persons may not represent all the native title holders with the decision-making capacity. Where there is a lack of
authority from native title holders, the agreement could be invalidated, and where native title rights have been affected or impaired in accordance with the provisions of an invalid
agreement, the Territory may in fact be liable for the payment of compensation to native title holders not validly represented in theagreement. Where a CLA grant has been invalidated,
the Territory could also be held liable by the CLA grantees.
It is imperative that all those native title holders with the decision-making capacity be identified and they consent to the CLA grant. The Territory requires the assistance of Aboriginal
organisations such as the land councils to identify those native title holders who have the decision-making capacity. Where the Territory relies on a land council to identify those native
title holders, the land council should, however, be required to warrant that all the native title holders with the decision-making capacity are represented, and the land council also
indemnify the Territory against any future claims for compensation by native holders not adequately represented. The land council should also be required to indemnify the Territory
against any claims for compensation by CLA grantees on the basis that the CLA has been invalidated due to a lack of authority from the relevant native title holders.
The Territory's need for an indemnity has been the subject of correspondence between the Solicitor for the Northern Territory and the Northern Land Council. The NLC remains
adamant that an indemnity is not necessary as CLA grants are not inconsistent with the continued right to enjoy native title ... In addition to that, the NLC argues that it does not have
the statutory capacity to incur liabilities of this nature and that it is merely acting in a representative capacity without obtaining any benefit from the indemnity. For these reasons, the
NLC is of the view that it should not be required to indemnify the Territory.
Senior Crown Counsel has advised the Solicitor for the Northern Territory that CLA grants are inconsistent with the co-existence of native title and that the permissible future act
provisions of the Native Title Act are required to be followed in order to protect the Territory and to ensure that the grants are valid. Senior Crown Counsel has also advised that
the land councils do have the capacity to indemnify the Territory as referred to above.
Page 19
Correspondence and discussions between the Territory and officers from the Central Land Council have also taken place, and the CLC is fully aware of the native title
implications associated with CLA grants and the Territory's concerns as outlined above.
Settlement of matters such as the Anthony Lagoon Land Claim, which involves a proposed CLA grant to the claimants, are subject to the resolution of the
abovementioned native title problems. The issue of titles to approved community living areas on the Goyder stock route, Jinka (2), Phillip Creek (2), Yambah
and Spirit Hills are also delayed pending the resolution of native title implications.
The Solicitor for the Northern Territory holds the view that concerned land councils should, in order to be satisfied that they do have the statutory capacity to validly provide
indemnities, obtain the consent of the federal minister in that respect. The land councils may also need to commit the federal government to provide funds to satisfy any
future indemnity claims against the Territory. Should the land councils reject the abovementioned proposals, the onus should be on them to find an acceptable solution to
the problem.
Following that advice, it is clear that the Northern Territory is in no position to issue title to community living areas for the benefit of Aboriginal people. How can members opposite argue that the provisions of the Native Title Act have in no way hampered the development of Aboriginal people in the Northern Territory? It is clear to all free-thinking Australians and all those of sane mind that the Native Title Act has not worked to the benefit of Aboriginal people. It has worked actively against the benefit of pastoralists. I support the Prime Minister's 10-point plan and urge the members of the Senate, who are now considering the Native Title Act, to consider the issues deeply.
I table a copy of that brief, together with a letter that I wrote to Mr Galarrwuy Yunupingu, the chairman of the Northern Land Council.
Page 20
ANSWER
Madam Speaker, for some time, members on this side have asserted that theNative Title Act, especially following the Wik decision, has not worked in anyone's interests - certainly not in the
Page 18
interests of the pastoral industry in the Territory, nor in the interests of Territory Aboriginals. This could be no more clearly demonstrated than by the brief I received the other day from the Department of Lands, Planning and Environment. I intend to read it for the benefit of members opposite and I am prepared to table it in full, although I have deleted the names of the officers who prepared it because they would only be harangued and abused by members opposite. I quote:
Community living area (CLA) freehold grants over native title land must be made in compliance with the future act provisions of the Native Title Act (NTA) in order to be valid and to
ensure that the Territory will not be liable to compensate native title holders whose native title rights have been affected or impaired as a result of the grant and/or the subsequent
use of that native title land.
Eligible Aboriginal applicants can apply for community living areas under part 8 of the Pastoral Land Act. CLA grants are made following the compulsory acquisition of proprietary
interests in the land. CLA grants can also be made following the surrender of pastoral and/or crown lease land under the Crown Lands Act. CLA grants are made to Aboriginal
associations incorporated under the Aboriginal Incorporations Act (Northern Territory) or the Aboriginal Councils and Associations Act (Commonwealth) to hold title to the land.
In order to ensure that they are valid permissible future acts, proposed CLA grants are required to be authorised by the native title holders pursuant to section 21 of the NTA.
The rights and interests of native title holders can only be legally ascertained and defined by a native title determination pursuant to the NTA after detailed anthropological,
historical and land tenure evidence have been considered. Prior to such a determination, there may accordingly be a real risk for the Territory by entering into agreements with
Aborigines who claim to be native title holders because those persons may not represent all the native title holders with the decision-making capacity. Where there is a lack of
authority from native title holders, the agreement could be invalidated, and where native title rights have been affected or impaired in accordance with the provisions of an invalid
agreement, the Territory may in fact be liable for the payment of compensation to native title holders not validly represented in theagreement. Where a CLA grant has been invalidated,
the Territory could also be held liable by the CLA grantees.
It is imperative that all those native title holders with the decision-making capacity be identified and they consent to the CLA grant. The Territory requires the assistance of Aboriginal
organisations such as the land councils to identify those native title holders who have the decision-making capacity. Where the Territory relies on a land council to identify those native
title holders, the land council should, however, be required to warrant that all the native title holders with the decision-making capacity are represented, and the land council also
indemnify the Territory against any future claims for compensation by native holders not adequately represented. The land council should also be required to indemnify the Territory
against any claims for compensation by CLA grantees on the basis that the CLA has been invalidated due to a lack of authority from the relevant native title holders.
The Territory's need for an indemnity has been the subject of correspondence between the Solicitor for the Northern Territory and the Northern Land Council. The NLC remains
adamant that an indemnity is not necessary as CLA grants are not inconsistent with the continued right to enjoy native title ... In addition to that, the NLC argues that it does not have
the statutory capacity to incur liabilities of this nature and that it is merely acting in a representative capacity without obtaining any benefit from the indemnity. For these reasons, the
NLC is of the view that it should not be required to indemnify the Territory.
Senior Crown Counsel has advised the Solicitor for the Northern Territory that CLA grants are inconsistent with the co-existence of native title and that the permissible future act
provisions of the Native Title Act are required to be followed in order to protect the Territory and to ensure that the grants are valid. Senior Crown Counsel has also advised that
the land councils do have the capacity to indemnify the Territory as referred to above.
Page 19
Correspondence and discussions between the Territory and officers from the Central Land Council have also taken place, and the CLC is fully aware of the native title
implications associated with CLA grants and the Territory's concerns as outlined above.
Settlement of matters such as the Anthony Lagoon Land Claim, which involves a proposed CLA grant to the claimants, are subject to the resolution of the
abovementioned native title problems. The issue of titles to approved community living areas on the Goyder stock route, Jinka (2), Phillip Creek (2), Yambah
and Spirit Hills are also delayed pending the resolution of native title implications.
The Solicitor for the Northern Territory holds the view that concerned land councils should, in order to be satisfied that they do have the statutory capacity to validly provide
indemnities, obtain the consent of the federal minister in that respect. The land councils may also need to commit the federal government to provide funds to satisfy any
future indemnity claims against the Territory. Should the land councils reject the abovementioned proposals, the onus should be on them to find an acceptable solution to
the problem.
Following that advice, it is clear that the Northern Territory is in no position to issue title to community living areas for the benefit of Aboriginal people. How can members opposite argue that the provisions of the Native Title Act have in no way hampered the development of Aboriginal people in the Northern Territory? It is clear to all free-thinking Australians and all those of sane mind that the Native Title Act has not worked to the benefit of Aboriginal people. It has worked actively against the benefit of pastoralists. I support the Prime Minister's 10-point plan and urge the members of the Senate, who are now considering the Native Title Act, to consider the issues deeply.
I table a copy of that brief, together with a letter that I wrote to Mr Galarrwuy Yunupingu, the chairman of the Northern Land Council.
Page 20
Last updated: 09 Aug 2016