Mowbray, Martin --- "Subverting the Aboriginal Land Rights (NT) Act 1976: the NT Local Government Act 1993" [1998] IndigLawB 27; (1998) 4(10) Indigenous Law Bulletin 12

Subverting the Aboriginal Land Rights (NT) Act 1976: The NT Local Government Act 1993

By Martin Mowbray

Since election in 1996 the Howard government has introduced a range of initiatives designed to remove or diminish the rights of indigenous Australians. Concerted actions of the Commonwealth, states and Northern Territory against the interests of Aborigines have led to markedly deteriorating relations between Aboriginal people and governments—accompanied by heightened community tensions over race. The most prominent of these actions has been the attempt to amend the Native Title Act 1993 (Cth) (the ‘NTA’ or ‘Native Title Act’). The rejection by the Commonwealth Government of Senate changes to the Native Title Amendment Bill, on 6 December 1997, has potentially paved the way for a double dissolution in 1998.

Less conspicuous on the national stage has been government interest in amending the Commonwealth Aboriginal Land Rights (Northern Territory) Act 1976 (the ‘Land Rights Act’). The initial public step in this is the commissioning of the Review of the Act by John Reeves QC, which is due for completion in May 1998. Recommendations may well be made that if adopted will substantially weaken Aboriginal land rights in the Northern Territory. With the final report due at the end of May 1998 the future of the Land Rights Act is likely to become a key issue in a race based election.

The Commonwealth and NT Governments' underlying agenda for the Review of the Land Rights Act and subsequent action could be seen to include at least most of the following items, not all of which are wholly compatible.

• Use of a diminished Native Title Act to benchmark land rights or replace the Land Rights Act in the Northern Territory.
• Reduction in the amount of Aboriginal land in the Northern Territory.
• Diminution of title and eventual alienabilityof Aboriginal land in the Northern Territory (Keely, 1997-98:10).
• Reduction in control by traditional owners over use of their land. This will include removal of the right of traditional owners to refuse mining on their land.
• Transfer of the Land Rights Act to the Northern Territory government.
• Disempowerment of the Central and Northern Land Councils, by reduction in their resources and budgets.
• Removal of mining royalty equivalent payments as an independent revenue source for Land Councils, so as to
  constrict their degree of independence from government.
• Establishment of much smaller Land Councils in place of the Central and Northern Land Councils.
• Alternatively, conflation of variousorganisations,including the Land Councils, other Native Title Representative Bodies and the Aboriginal and Torres Strait Islander Commission (‘ATSIC’) into some new form of regional authorities. ATSIC canvasses this idea in its Discussion Paper for the ATSIC Act Review (1997:15). Local Government bodies, as service delivery agencies, could also be incorporated into such a structure.

The latter scenario is canvassed by the Reviewer (Reeves, 1997, par.72). The prospect of such a rationalised body, particularly if it was incorporated within its own legislation, would be welcomed by the Northern Territory government. The Local Government Act is incompatible with the Land Rights Act. The following is a review of the current problematic relationship between the two Acts.

Local government in Aboriginal communities

Local government has a substantial history as a tool for British and Australian colonial administration. It has been employed in the management of Aboriginal people in remote communities in the Northern Territory since the 1960s, when the idea of village councils was introduced. Such structures had been in place in Papua New Guinea, which was also administered by the Department of Territories. Aboriginal community based representative bodies have mostly been incorporated under Commonwealth or Northern Territory associations type legislation (Mowbray, 1986,1990).

Over recent years Aboriginal communities have been subjected to pressure from the Northern Territory Government to incorporate as community government councils within the terms of its Local Government Act (Northern Land Council, 1997:176–187). This pressure has been sustained and mounted by such means as:

propaganda that is often misleading; badgering by government officers; financial inducements sometimes overstated and commonly misunderstood; denigration of alternative forms of incorporation; imposition of unnecessary and unreasonable conditions on funding to be met by communities incorporating as associations; and trenchant political opposition to the use of the council provisions of the Commonwealth Aboriginal Councils and Associations Act 1976. Ironically, the latter Act modelled a good deal of the original community government provisions that were incorporated in the Northern Territory's Local Government Act (Dalrymple, 1988).

The extent of Northern Territory government pressure on Aboriginal communities to incorporate as community government councils under what is now the Local Government Act 1993, amounts to coercion. Government officers dealing with Aboriginal communities have simply refused to take 'no' as an answer. Under the NT Local Government Grants Program the formula for allocating Operational Subsidies to communities incorporates 'a status weighting of 30 per cent which recognised formal community government incorporation under the Local Government Act' (1996–97 Annual Report:10). Complementing this relatively substantial monetary inducement the NT government has moved to oblige recipients of normal financial assistance grants to conform to various provisions of the Local Government Act—whether or not they are incorporated under that legislation.

These, and other, provisions mean that opportunities for Aboriginal communities to exercise effective choice as to whether they incorporate as community councils under the Local Government Act 1993, as associations under the NT Associations Incorporation Act 1990, or as associations (or possibly councils) under the Commonwealth Aboriginal Councils and Associations Act 1976 (the ‘Aboriginal Councils and Associations Act’) are now seriously curtailed. There is no practical justification for discriminating against communities which might prefer to select their own form of incorporation. A Canadian academic has observed that the 'objective of the NTgovernment's promotion of community government' was actually the 'extension of its jurisdictional authority' (Wolfe, 1989:171). A basic fact is that none of the present alternatives are well adapted to Aboriginal self determination or the principles embedded in the Land Rights Act. This is not to say that present councils, however constituted, do not operate effectively in their own terms and that various Aboriginal people do not support them. They all provide essential services and provide opportunities for employment and community service.

Legislative conflict

The purpose of the Local Government Act is defined in its preamble as: 'to continue to provide for the constitution of municipalities and community government areas and for the election of self–governing authorities to control municipalities and community government areas.'

Given the terms of the Land Rights Act, this statement, referring as it does to the control of land, is manifestly problematic. This is reinforced by other aspects of the Local Government Act. Section 97(2) sets out allowable functions of community government schemes. These functions include physical infrastructure such as roads, electricity, water, sewerage and community amenities. They also include services such as commercial development, communications, health, education, welfare, housing, animal control, and so on. In addition, the functions make provision for rates and charges.

Twenty–five of the thirty community government councils in the Northern Territory are situated on Aboriginal land. The title to such land is held by an Aboriginal Land Trust 'for the benefit of Aboriginals entitled by Aboriginal tradition to the use and occupation of the land concerned' (Land Rights Act s4(1)). The Land Trust exercises its powers as owner of the land in accordance with directions from the Land Council for the area in which it is situated. (s5(1) & (2)).

In shaping the Local Government Act the NT government has consistently failed to consult the Land Councils or Aboriginal people in general. Nor has the Government proved amenable to accommodating proposals for amendment of the Local Government Act to render it consistent with the Land Rights Act. In administering the Local Government Act the NT government has almost invariably failed to consult Land Councils about its plans or dealings in relation to setting up and designing individual community government schemes. The Local Government Act does not even recognise the Land Rights Act or its provisions for administration of Aboriginal land.

Overall, the NT government has used its Local Government Act to undermine the Land Rights Act and by–pass Land Councils. It very likely sees the Local Government Act as a mechanism for replacing large parts of the Land Rights Act, thereby disempowering Traditional Owners. Instead of recognising the authority and rights of Traditional Owners, the Local Government Act provides for election of councils by and from persons on the relevant electoral roll. This means that Aboriginal and non–Aboriginal people, who have no particular affiliation with the land in question, other than current residence, may vote and be elected to the council. The council may in turn make decisions which are inimical to the interests of Traditional Owners of the land.

Deficiencies in the Local Government Act

The Local Government Act fails to meet the standards, of consultation with and accountability to Aboriginal owners and interests, built into the Land Rights Act. Under the Land Rights Act the Land Councils have exacting obligations to seek and reflect the views of their Aboriginal constituents. Section 23(3) reads:

In carrying out its functions with respect to any Aboriginal land in its area, a Land Council shall have regard to the interests of, and shall consult with, the traditional Aboriginal owners (if any) of the land and any other Aboriginals interested in the land and, in particular, shall not take any action, including, but not limited to, the giving of consent or the withholding of consent, in any matter in connexion with land held by a Land Trust, unless the Land Council is satisfied that:

(a) the traditional Aboriginal owners (if any) of that land understand the nature and purpose of the proposed action and, as a group, consent to it; and

(b) any Aboriginal community or group that may be affected by the proposed action has been consulted and has had adequate opportunity to express its views to the Land Council.

In failing to meet or reflect such standards the Local Government Act is at odds with the Land Rights Act. Community government councils may act as they please within the terms of the Local Government Act, which itself does not require any particular regard for Aboriginal people and their land. Community government constituencies are made up of electors of any race, cultural affiliation or background.

Along with this fatal flaw in the Local Government Act a number of other problems are evident. These include the following:

• Section 98 purports to allow a community government scheme to provide for declaration of rates on Aboriginal land without the consent of its owners.
• Section 119 purports to allow members and officers or employees of councils to enter any land in the council area 'for the purpose of making an inspection or for carrying out any work required or authorised to be done' under the Local Government Act. No provision is made for obtaining the consent from owners of the land.
• Staff with inappropriate skills and perspectives or understandings may be appointed to councils. Under s142 appointment of a clerk without prescribed qualifications (a relevant tertiary award and over three years administration or accounting experience in local government) to a community government council may only be with the approval of the NT minister. The position of council clerk in an Aboriginal township or settlement is often pivotal in community management and local politics. They commonly dominate decision–making processes in respect of services and administrative largesse.
• Council operations are subject to the authority of the NT Minister for Local Government. For example, under s181A the Minister may direct a council to take action in respect of 'an irregularity in the affairs of a council'. Just what constitutes an irregularity is not defined in the Local Government Act.
• Councils may make by–laws that are consistent with the Act under s182. Such by–laws are not bound to have the consent of traditional landowners or reflect the wishes or interests of Aboriginal people. Appropriate consultation is not even necessary.
• Under s242 the NT Minister for Local Government may appoint inspectors of local government with powers to investigate the documents of a council and the organisation and management of the council's activities. Inspectors may report on such matters as in their own opinion 'call for special notice' and 'shall inquire into and report on matters which the Minister requires to be investigated.'

These matters give rise to serious conflicts between the Land Rights Act and the Local Government Act. Under the latter act there is considerable power which can be used to diminish the rights of traditional owners and other Aboriginal people that are provided for in the LandRights Act.

Where there is inconsistency between the Acts, as Commonwealth legislation, the Land Rights Act prevails. However, the provisions of the Local Government Act that are at odds with the Land Rights Act have an insidious effect. They confuse and mislead. They create ambiguities and uncertainties. They create additional opportunities for individuals hostile to Aboriginal interests to infiltrate Aboriginal communities. In addition, through disingenuous assurances about self–government bolstered by one–off financial inducements, false impressions and false hopes are generated.

Cumulatively, such processes reflect the NT government's disregard for the established rights of Aboriginal people. More insidiously, the ever increasing discordant provisions in the Local Government Act suggest or prefigure government intent to erode Aboriginal rights. Through the Local Government Act, the purposes of the Land Rights Act are subverted.

In a few isolated instances, particularly in the top end of the Territory, individual community governments have displayed preparedness to respect the prerogatives of Traditional Owners of the land on which the council operates. Land use agreements have been developed and appropriate rental or royalty payments negotiated with assistance from the Northern Land Council. With support from the NT Department of Housing and Local Government this type of arrangement could be extended to modestly ameliorating the conflict between the two Acts.

Failure of community government

Apart from the critical issue of compatibility with the Land Rights Act, local government in Aboriginal communities can hardly be seen to be operating well, even in the Government's terms, as local administrative and service delivery organisations. The NT Office of Aboriginal Development provides a startling and abnormally frank admission that:

‘many Aboriginal communities and their elected councils often appear largely dysfunctional from a service delivery point of view. They have evidently not been empowered by the principles of self determination, expected as they are to administer themselves and to be accountable to a wider system which, on the basis of outcomes, is still largely incomprehensible to many of them. In some situations, relating to community management, it must be asked whether self–determination, in its implementation, is equivalent to abandonment’. (Annual Report 1995–96:18)

We can see in this alarmingly forthright statement some recognition of significant problems in providing adequate infrastructure and services through the existing local government arrangements. Whilst the NT government does not necessarily accept responsibility itself for this state of affairs, during the earlier years of its introduction to the Aboriginal communities it emphatically claimed the capacity to address relevant needs. Its declared interest in self–management and self–sufficiency for Aborigines was carefully linked with efforts to get communities to incorporate as community governments. In 1985, the Northern Territory Government asked the Commonwealth to restrict future revenue sharing monies to organisations incorporated under its Local Government Act. In pursuit of this course, the Minister for Community Development told the Legislative Assembly that:

‘We are trying to provide meaningful

self–determination for many Aboriginal communities so that they will be responsible for their own budgets and the development of capital works programs within their own areas. . . . Aboriginal communities have now reached the stage where they want to be masters of their own destinies in terms of negotiating with central governments to ensure that they have the development that best suits their requirements. Hand in hand with this responsibility is community government.’ (Legislative Assembly Debates, 13.11.85)

Principles

Clearly a better system for local governance must be built—one that is premised on respect for Aboriginal rights. To be consistent with the purposes of the Land Rights Act, local government provisions should reflect the following principles:

• Recognise the rights of traditional Aboriginal land
  owners under the Land Rights Act and be appropriately accountable.
• Require full consultation and informed consent from Aboriginal communities in shaping and administering any scheme of local governance that affects Aboriginal land and interests.
• Be consistent with cultural and developmental needs of Aboriginal people.
• Ensure adequate finance and other support for the effective provision of local infrastructure and services.
• Provide for adequate representation of the interests of Aboriginal communities collectively.

Commonwealth responsibilities

As the government with the most fundamental responsibility for Aboriginal rights and welfare the Commonwealth might be expected to ensure that such principles are put into practice. If this challenge was accepted, one available approach is through revision of its own local government provisions in the Aboriginal Councils and Associations Act. This Act originated in the Aboriginal Land Rights Commission of Mr. Justice Woodward. In his 1974 Report Woodward noted that:

‘It is important that Aboriginal communities should have as much autonomy as possible in running their own affairs. They should receive, without having to account for them except by way of audit, the necessary funds to cover all administration and other normal recurrent expenditures. Only major decisions involving the expenditure of public monies should have to be approved by outside authority.’ (Aboriginal Land Rights Commission, 1974: par.58)

The Aboriginal Councils and Associations Act was developed as complementary legislation to the Land Rights Act. It was to allow culturally appropriate incorporation, governance and management of Aboriginal communities. The policy goals for the legislation are

evident in the Minister for Aboriginal Affairs' Second Reading Speech. Ian Viner said:

‘What is so important about this measure is that it will recognise cultural differences between Aboriginal and non–Aboriginal societies and enable Aboriginal communities to develop legally recognisable bodies which reflect their own culture and do not require them to subjugate this culture to overriding Western European legal concepts.’ (Hansard, House of Representatives, 3/6/76:2946)

The Aboriginal Councils and Associations Act never delivered on its promise. This was to a large degree because the Commonwealth and Northern Territory administrations blocked applications by Aboriginal communities to incorporate as councils. Such denial was

surreptitiously coordinated, generally at officer level. Reasons for this action, or inaction, were not given. Most communities seeking incorporation were never even made aware of the council option.

In October 1995 the Minister for Aboriginal and Torres Strait Islander Affairs announced that a comprehensive review of the Aboriginal Councils and Associations Act was to be undertaken by ATSIC. ATSIC commissioned the Australian Institute of Aboriginal and Torres Strait Islander Affairs ('AIATSIS') to review the Aboriginal Councils and Associations Act. AIATSIS presented its final report in November 1996. It found that:

‘Indigenous people have been forced into either antiquated or inappropriate state and territory frameworks because states and territories have ensured that Part III of the Commonwealth legislation could never be used.' (AIATSIS, 1996:118)

The AIATSIS Review went on to state (p 145) that 'The Commonwealth has a responsibility for standard–setting in the area of indigenous self determination'. It noted that the Commonwealth's existing statutory provision for indigenous councils is flawed, but that it should be retained until replaced by a more appropriate Commonwealth 'financial and legal package'. So far the Commonwealth has failed to act on the AIATSIS Review's proposal to revitalise the Commonwealth options for incorporation of Aboriginal communities and other organisations. To do so might conflict with continuing efforts to diminish provisions for protecting or enhancing Aboriginal interests. However, it is still reasonable to call on the Commonwealth to ensure availability of a device for local incorporation that is compatible with the principles embodied in its own land rights legislation.

Martin Mowbray is a Professor at the Department of Social Science and Social Work, RMIT University.

References

Australian Institute of Aboriginal and Torres Strait Islander Studies (1996) Review of the Aboriginal Councils and Associations Act 1976, Final Report, Canberra, August.

Dalrymple, David (1988) 'The Forgotten Option—Part III of the Aboriginal Councils and Associations Act 1976', Aboriginal Law Bulletin, 2(32), 11–13.

Keely, Annie (1997–98) 'Aboriginal rights and the draft NT Constitution', Indigenous Law Bulletin, 4(8), December — January, 10–12.

Mowbray, Martin (1986) 'State Control or Self Regulation? On the political economy of local government in remote Aboriginal townships', Australian Aboriginal Studies, 2, 31–39.

Mowbray, Martin (1990) 'Mainstreaming as assimilation in the Northern Territory', Australian Aboriginal Studies, 2, 20–26.

Northern Land Council, Submission to the Review of the Aboriginal Land Rights (NT) Act 1976, Darwin, December.

Reeves, John (1997) Issues Paper, Review of the Aboriginal Land Rights (NT) Act 1976, Darwin.

Wolfe, Jackie (1989) 'That Community Government Mob': Local Government in Small Northern Territory Communities, North Australia Research Unit, Australian National University, Darwin.

Woodward, A.E. (1974) Aboriginal Land Rights Commission Final Report, Canberra, AGPS.

This paper is derived from material prepared for the Central Land Council.