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Berg, Shaun; d'Assumpcao, Kate --- "The Pitjantjatjara Land Rights (Miscellaneous) Amendment Act" [2006] IndigLawB 30; (2006) 6(19) Indigenous Law Bulletin 8


The Pitjantjatjara Land Rights (Miscellaneous) Amendment Act

by Shaun Berg and Kate d’Assumpcao

The Pitjantjatjara Land Rights Act 1981 (SA) (‘the 1981 Act’) was the result of extensive negotiations. When it was introduced, both sides of Parliament applauded the 1981 Act.[1] It was seen as an important milestone in the South Australian State Government’s relationship with Indigenous people.[2] The 1981 Act endorsed the process of Indigenous decision-making, specifically in relation to the Anangu Pitjantjatjara and the Pitjantjatjara Lands (‘the Lands’).[3]

The purpose of the 1981 Act was considered by the High Court of Australia in Gerhardy v Brown.[4] Justice Brennan commented:

[I]ts purpose appears to be the restoration to the Pitjantjatjaras of the use and management of the lands free from disturbance from others so that they may foster the traditional affiliations that Pitjantjatjaras have with the lands and discharge the traditional responsibilities to which they are subject in respect of the lands.[5] (Our emphasis.)

The High Court characterised the 1981 Act as a ‘special measure’ and therefore concluded that it did not breach the Racial Discrimination Act 1975 (Cth).[6] The 1981 Act was considered an appropriate measure as it was directed to ensuring that the Anangu Pitjantjatjara could protect and preserve their culture.[7]

In terms of corporate structure, the 1981 Act created a close relationship between the Anangu Pitjantjatjara and the Body Corporate. It is typical for Indigenous corporations to be structured to recognise the close relationship between those in control of the corporation and the members. This is not the corporate structure that profit-motivated trading corporations will have, where members are clearly at arms length to the company. The close relationship with the members was demonstrated by the functions of the Anangu Pitjantjatjara in the 1981 Act; they were to:

The close association between the members and the corporate body was further borne out by the 1981 Act providing that ‘[t]he Executive Board shall carry out resolutions of Anangu Pitjantjatjara’.[9] The 1981 Act provided that:

The Executive Board shall act in conformity with the resolutions of Anangu Pitjantjatjara and no act of the Executive Board, done otherwise than in accordance with a resolution of Anangu Pitjantjatjara, is binding on Anangu Pitjantjatjara.[10]

Thus the 1981 Act provided for little or no State Government intervention. The corporate structure was ‘free from the disturbance of others’.[11] The control and management of the Lands rested with the Traditional Owners through its land rights holding body.

The Pitjantjatjara Land Rights (Miscellaneous) Amendment Act 2005 (SA) (‘the Amendment Act’) was passed in October 2005. The Act, as amended, is called the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA). The Amendment Act significantly altered the structure established by the 1981 Act. The State Government has, as a result, interposed itself into the relationship between the members and the corporate body by centralising the powers of the Executive Board. The Amendment Act also provides the Minister of Aboriginal Affairs and Reconciliation with greater powers and control of the Executive Board.[12]

The increased control and intervention by the Minister undermines the position of the Traditional Owners in their interactions with the Executive Board. The Executive Board may be placed in the invidious position whereby it has contrary directions from both the Traditional Owners and the Minister on a matter. An example where such conflict could arise would be in relation to the consent to mining activities on the Lands. The Act is silent as to how a circumstance such as this would be resolved.

There appears to have been no consideration of whether the intervention by the Minister in the land rights holding body unsettles the balance achieved in the 1981 Act as it relates to the Racial Discrimination Act 1975 (Cth). Nor, it seems, has there been any question of whether the changes introduced by the Amendment Act affect the ‘special measures’ characterisation based on the purpose as annunciated by the High Court in Gerhardy v Brown.[13]

Obviously these are complex matters which typically would require extensive and comprehensive negotiation or consultation. We understand there was only minimal consultation with the Traditional Owners regarding the less complex amendments, such as the change in name of the body corporate[14] and the extension of the term of appointment for the Executive Board.[15] There was no negotiation or consultation undertaken in relation to the more complex amendments, such as the greater ministerial control over, or involvement in, the land rights holding body.[16]

This article is not intended to have regard to whether there was fair dealing with the Anangu Pitjantjatjara in relation to the amendments, although this is an issue which has troubled many of the Traditional Owners. To come to any conclusions on this matter would require a thorough examination of what actually happened on the Lands and an understanding of the proper processes of consultation with Anangu Pitjantjatjara. That said, we consider that some general observations can be made.

The process relating to the incorporation of the 1981 Act was one of negotiation. The supposed consultation process regarding the Amendment Act was not comparable with the original process during which there were regular meetings over a long period. The Anangu Pitjantjatjara had legal and anthropological support throughout the original negotiation process.

It seems many Traditional Owners feel aggrieved by the process that occurred. This was expressed in their submissions made to the Aboriginal Lands Parliamentary Standing Committee.[17] We ourselves have wondered how complex changes could have occurred without there being plain evidence of interaction between the Traditional Owners and the State Government.

The original legislation was an endorsement of self-determination and of the legitimacy of Aboriginal decision-making processes. The 1981 Act sought to enable Anangu Pitjantjatjara to protect and preserve their culture. In our view, the changes resulting from the Amendment Act are in contradiction with the purpose for which the 1981 Act was introduced. A management structure akin to a non-Indigenous corporate structure has been imposed but with the added complexity of Ministerial intervention hanging over the land rights holding body. The Amendment Act has disenfranchised the Traditional Owners by undermining the nexus and control the Traditional Owners had over Anangu Pitjantjatjara. Implicit in these amendments is the assumption that the Indigenous decision-making process is unworkable and inferior to non-Indigenous decision-making processes.

In our view the amendments were as important in substance as the original legislation. In this article we have reiterated arguments regarding the amendments, which were put to the State Government and the lawyers representing the Anangu Pitjantjatjara Executive Board. We felt it necessary to put forward such views in order to provide an alternative perspective to that expressed in an earlier article appearing in this journal.[18]

Shaun Berg is a Partner at Hunt & Hunt in the Adelaide office. Kate d’Assumpcao is a Law Clerk in the office. The views and opinions of the authors expressed in the article do not necessarily represent those of Hunt & Hunt.


[1] South Australia, Parliamentary Debates, House of Assembly, 23 October 1980, 1387-1392 and South Australia, Parliamentary Debates, Legislative Council, 4 March 1981, 3428-3432 and 3452-3456.

[2] South Australia, Parliamentary Debates, Legislative Council, 4 March 1981, 3454 (Kenneth Trevor Griffin, Attorney-General).

[3] Pitjantjatjara Land Rights Act 1981 (SA) s 11(2).

[4] Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70.

[5] Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70, 136.

[6] Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70, 136.

[7] Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70, 85 (Gibbs CJ), 111, 113 (Wilson J), 136 (Brennan J).

[8] Pitjantjatjara Land Rights Act 1981 (SA), s 6(1).

[9] Pitjantjatjara Land Rights Act 1981 (SA) s 11(1).

[10] Pitjantjatjara Land Rights Act 1981 (SA) s 11(2).

[11] Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70, 136.

[12] Pitjantjatjara Land Rights Act 1981 (SA) ss 9(8)(9), 9D(4), 9E, 11, 13A-13D, 13F, 13G, 13L, 13N, 13O and 14.

[13] Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70.

[14] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA) ss 4(1) and 5(1).

[15] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA) s 9(6)(a). Term extended from one year to three years.

[16] Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA).

[17] Submissions to the Aboriginal Lands Parliamentary Standing Committee, South Australia, (25 August and 29 August 2005).

[18] Ruth Morley, ‘The Pitjantjatjara Land Rights Amendment Act: Addressing Governance on APY Lands’ [2004] IndigLawB 25; (2005) 6 Indigenous Law Bulletin, 15, 10-11.


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