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Monday, 2 December 1985
Page: 2655

Senator KILGARIFF(3.54) —by leave-I move:

That the Bill be now read a second time.

I seek leave to incorporate my second reading speech in Hansard.

Leave granted.

The speech read as follows-

When the Aboriginal Land Rights (Northern Territory) Act was passed by this Parliament, some nine years ago, it was hailed as one of the most important pieces of legislation ever to be considered in the field of Aboriginal affairs.

It was also said at the time that the legislation to grant land rights to Aboriginals in the Northern Territory would be a most significant and progressive step in the social and political history of this country. It would, at long last, signal Australia's acceptance of Aboriginals as a people having a unique and distinct culture within Australian society. Indeed, many saw the Northern Territory Act as the forerunner to acceptance of land rights legislation throughout the whole of Australia.

The fundamental principle of the Land Rights Act was to encourage Aboriginals in the Northern Territory to give full expression to their affinity with the land, that characterises their traditional society and gives a unique quality to their way of life, by granting them inalienable freehold title to their traditional lands. The land would be theirs in perpetuity for the enjoyment of this and future generations.

Nine years ago there was considerable support throughout the Australian community for Aboriginal land rights. The basic philosophy of the Land Rights Act in extending inalienable freehold title was accepted and seen as essential for the preservation of this unique part of Australian society.

However, today this is not the case. The Aboriginal Land Rights Act has created divisiveness in the Australian community and open resentment of the benefits extended to Aboriginals which are not enjoyed by other Australians. This has been most unfortunate as the main reason for this changed attitude has not in essence been aversion to Aboriginals being granted land, but to the manner in which, and the extent to which, land claims have been made with little regard to the needs and aspirations of other Australians.

In the Northern Territory we have witnessed wholesale severance of land to the degree that nearly half of the land mass of the Northern Territory is either now held by Aboriginal interests, or is under Aboriginal land claim. This has led to the development of severe racial tensions in the Territory and turned the community against the principles and intentions of the Land Rights Act.

I do not believe that it was the intention of the original proponents of the Act for this to happen. The intentions surely were to recognise the special social and cultural aspirations of the Aboriginal people and to implement policies for the betterment of those people which could effectively coexist with public and private business sector initiatives and which would be readily accepted by the community at large.

Despite those well intentioned and honourable objectives it is an undeniable fact that in practice the Land Rights Act is not working and is in need of change. That change does not have to interfere with the underlying commitment to granting title to Aboriginals in respect of their traditional lands, where those needs can appropriately be met, but to the manner and basis on which land may be claimed and, following the grant of title, administered.

I have lived in the Northern Territory for most of my life and have always held a deep commitment to furthering the well-being of the Aboriginal people. In the early years following introduction of the Land Rights Act I was pleased to witness the development in Aboriginal communities of a sense of purpose and desire on the part of Aboriginal people to have a real and effective say in the management of their lives.

To this extent the Act has obviously made some worthwhile contribution to meeting the needs of the Aboriginal people, but I ask you at what cost? I have been saddened by the racial disharmony that has now eventuated from the operations of the Act. In the first instance we witnessed a commitment to Aboriginal people which would lead to their acceptance as an integral part of the Australian community. By the very operation of the Act on which this assumption was based we now see again their deterioration of status within the white community. We therefore have to ask ourselves whether land rights has gone too far. Is it defeating the original purposes, and if so, what can we do about it?

Over recent years I have witnessed the development of racial tensions not only in the Northern Territory, but over the whole country. I believe that there has been a general lessening of support within the Australian community for certain Aboriginal policies. I am quite convinced that the disharmony which has developed is directly related to the concept of Aboriginal land expressed in its present form in the land rights Act.

In the Territory, the legislation has led to the granting to Aboriginal people, or claiming, of title to land, which includes stock routes on pastoral leases, reserves, national parks, public rivers, roads and so on. This has created divisions and resentment and, most of all, has created unacceptable uncertainty. For instance, pastoralists with stock routes running through their land can never be sure that a claim will not be lodged on those stock routes. The effect of such claims could be to fragment the pastoral property, sometimes literally cutting the property in half.

Mining interests can never be sure that, if they proceed with expensive and time consuming exploration for minerals on land which is available at the time, their efforts will not be thwarted by the effective right of veto which Aboriginal organisations have over land use in the Territory under the current legislation. Figures from the Northern Territory Chamber of Mines bear witness to that fact. Since the introduction of the land rights legislation in 1976 no new mining operation, aside from the Tanami gold project, has been commenced in the Territory on Aboriginal land or land under claim. This is largely attributable to the difficulty which the legislation causes those mining interests which might wish to proceed with exploration and development. In almost ten years, despite the fact that over 175 applications have been under consideration in respect of Aboriginal land, only one new mining permit has been granted. This is a situation which cannot be allowed to continue.

Many of you will have heard me speak on pastoral and mining difficulties on Aboriginal land before and my words may sound familiar and repetitious. I make no apologies for raising those matters again. The economic and overall future development of the Territory is heavily dependent on continued growth within those two essential industries and it is important that something be done to alleviate their problems and regenerate their activities.

That is not to say that this must be done to the exclusion of all other interests. Government land use policies must take account of the various competing interests concerned and government must adopt management objectives which allow for appropriate recognition of public and private sector requirements, whilst at the same time fostering the reasonable aspirations and expectations of the Aboriginal people. I do not accept the argument that these interests are necessarily mutually exclusive and that an integrated land use policy is unobtainable.

In recent years there have been repeated attacks on the land rights legislation and calls for amendment of the Act from a wide variety of community interests. It could be said that a number of those representations have been made on ill-conceived contentions and can be easily put aside. However, there have been many that have put forward genuine grievances, substantiating the fact that the Act is operating on too self-centred a basis to the detriment of wider community needs.

This contention is no more exemplified than through recent observations made by none other than Mr Justice Woodward, the principal architect of the original land rights legislation. Mr Justice Woodward was reported as having questioned, during a recent address at the Australian legal convention, as to whether land rights had gone too far. Mr Justice Woodward was further reported as having recommended that Aboriginal land councils and their advisers give careful thought to the extent of future claims and even consider the advisability of foregoing or surrendering some land already claimed or granted. Clearly, Mr Justice Woodward supports the contention that all is not well in the land rights arena and that there is need for review.

The confusion and anxiety in relation to land rights throughout the Australian community is an undeniable result of the present Federal Government's procrastination. The Federal Government has admitted that the Act is in need of change, but its ministers and advisers are clearly unable to come to any agreement within their own ranks as to how best to deal with the issues. They continue to vacillate on proposed amendments.

The Government has had the benefit of Mr Justice Toohey's findings on his review of the Act for two years. We have continually been informed that as a result of the Toohey report the Minister for Aboriginal Affairs intends to make appropriate amendments to the Act. However, the Minister has been saying this for some time and many of us doubt his intentions, or the ability of the Federal Government, in that regard. Quite simply, none of us, Aboriginal or otherwise knows what to expect from the present Federal Government.

I believe that we cannot allow this procrastination to continue any longer, the Aboriginal Land Rights (Northern Territory) Act must be made to work efficiently and effectively to the benefit of all concerned. If the present Federal Government is not prepared to look to its obligations and responsibilities then someone must do it for them. It is for this reason that I have decided to introduce this Bill to amend the Act.

I would now like to take the opportunity to explain the main amendments to the Act which I have proposed in the Bill.


The most significant and perhaps controversial changes suggested are those associated with mining activities on Aboriginal land. The Bill repeals all of the current mining provisions of the Act and replaces them with entirely new regulatory procedures.

Mining has been, and will continue to be, a major contributor to the economic development of this country. Its progress over the years has been encouraged by both Federal and State Governments on the presumption of exploration and mining taking place, subject to appropriate controls to protect land owners, the environment and the public interest. Experience has shown that any policies which depart from that presumption will inevitably retard development and deter investment, cutting off a major source of government revenue, export earnings and economic stimulus.

Mining industry activities in the Northern Territory have been paralysed by the existing legislation. The main contributing factor to this situation has been the power of ``veto'' which can be exercised by Aboriginal traditional owners with regard to any exploration or mining proposal. This has led to excessive financial demands for consent to exploration and mining proposals, intended imposition of unrealistic and inappropriate conditions on exploration and mining activities, protracted agreement negotiations with land councils and unnecessary moratoriums on the processing of mining applications pending determination of land claims.

Although minerals on Aboriginal land, by virtue of the Act, are owned by the Crown, title to explore for and mine those minerals can only be granted with the consent of the relevant land council. This in fact means that traditional owners have de facto ownership and control of minerals on or under their land. That is a right not enjoyed by other private land owners in the Northern Territory and most other parts of Australia.

Practice has shown that a land council will not consent on behalf of the Aboriginal traditional owners until an agreement has been reached with the miner on the terms and conditions under which exploration and mining will take place and the compensation monies to be paid. By requiring agreements to be negotiated in this manner land councils have been using the ``veto'' provisions of the Act to hold miners to ransom. Excessive financial incentives for consent are being demanded which have little or no regard to assessment of compensation in real terms which in respect of other private land is related to loss or damage of the land.

The right to ``veto'' applications under the existing legislation negates the principle of Crown ownership of minerals and the responsibility of government for resource management in the interest of all territorians. It is a provision which I believe cannot continue to be supported and must be removed. If it is removed, Aboriginals' interests would still be sufficiently protected by the mechanisms necessary for entering into compensation agreements with miners and consultation processes which must take place.

The Bill which you have before you will remove the `veto' provisions but will make it compulsory for a miner to enter into an agreement with the Land Council before any mining interest can be granted. Unlike the existing legislation, under the amendments I have proposed, the matters which may be negotiated and incorporated in agreements will be prescribed in the Act. Those matters concern-

(a) compensation payments which must be assessed in the same manner as for other private land (i.e. loss or damage);

(b) guidelines to be adopted by the miner for identification and protection of Aboriginal sacred sites;

(c) employment opportunities to be offered to Aboriginals by the miner;

(d) the method of distribution of compensation payments to traditional owners;

(e) security or bond provisions to secure compliance with prescribed conditions of the mining interest;

(f) provision for restoration work and the like to be completed by the Land Council where the miner fails to do that work, with the cost thereof being a debt due and recoverable by the Land Council from the miner, and

(g) arbitration process to determine all disputes relating to compliance with the prescribed conditions of the mining interest.

A limit of twelve months has been placed on the agreement negotiation process. If the negotiations are not completed within that time, either party has the right to refer the matter to arbitration for decision. The decision of the arbitrator is to be binding on both parties but will not compel the miner to proceed with the grant of the mining interest.

For the purposes of arbitration on agreements, or for determining disputes in relation to compliance with conditions where no other arbitration process has been agreed to, the Bill provides for the Warden's Court established under the Northern Territory Mining Act to be the arbitrator.

Placing the role of arbitration with the Northern Territory Warden's Court has been done in the interests of appropriate expertise and cost savings. The Warden's Court is an established institution with established procedures and experience in the mining field and is an established court hierarchy within the Territory legal system. I see no reason why some other special tribunal to arbitrate on mining matters under the Land Rights Act should be used when an acceptable alternative exists. The setting up of a specialist tribunal would require additional government expenditure and would not have any advantages over and above the Warden's Court.

Prescribing in the Act those matters which may only be negotiated in agreements, and limiting those matters to realistic and appropriate considerations, will overcome what hitherto has been a major contributing factor to agreements being delayed, and at best finalised after many years of negotiations. In the interests of overcoming other potential avenues for delay I have also made provision in the Bill for the Act to prescribe certain conditions which must be included in the grant of a mining interest.

These cover matters which have previously been revealed as being of particular concern to Aboriginals in coping with possible exploration or mining activities on their land. Those conditions, prescribed in greater detail in the Bill, will ensure that a miner, his servants or agents, shall-

(a) have regard to the aspirations and welfare of Aboriginals;

(b) not interfere with Aboriginal sacred sites;

(c) not bring firearms onto the land;

(d) not bring alcohol onto the land except for consumption by employees;

(e) not bring animals onto the land without permission;

(f) employ as many Aboriginals as practicable;

(g) adjust working hours of Aboriginal employees to suit their culture;

(h) rehabilitate disturbed land in accordance with good environmental practice;

(i) liaise with traditional owners on all work programs;

(j) comply with government directions for protection of the environment; and

(k) comply with government directions on waste disposal.

The final mining change in the Bill relates to access to Aboriginal land by the holder of a mining interest. This is covered in two parts. Firstly in ensuring ingress and egress to the mining interest area by the shortest practicable route. Secondly, by prescribing an entitlement to a right of way for all reasonable ancillary purposes in connection with the operations to be conducted under the mining interest. A right of way is to extend to access for or in connection with-

(a) conveyor apparatus for transporting minerals;

(b) electricity lines and roads;

(c) water races or drains; and

(d) obtaining water supplies.

Both forms of access must be by agreement with the Land Council. In respect of right of way if agreement cannot be reached the matter may be referred to the Warden's Court for determination. Compensation is to be paid to the Aboriginal traditional owners in respect of a right of way and again, as for the grant of a mining interest, compensation is limited to normal private land assessment for loss of or damage to the land.

Before leaving the mining section and passing on to other issues in the Bill, I would like to assure honourable members that nothing that I have proposed in the mining amendments will dilute in any way the existing provisions of the law relating to the protection of Aboriginal sacred sites. Aboriginal sacred sites will retain the full protection that the Land Rights Act and the laws of the Northern Territory currently offer. No miner will be exonerated from the obligation to protect known sacred sites in the strictest sense possible.

Land Claims

Under the Act as it now stands there is no cut-off date beyond which no further Aboriginal land claims may be made. There is also nothing to prevent repeat land claims being made for the same parcel of land which was previously the subject of an unsuccessful claim or claims.

The Aboriginal Land Rights Act has now been in force for nine years and in that time any land that could be rightfully claimed has been. At this stage there is a considerable backlog of claims awaiting hearing by the Land Commissioner and it is going to take many more years before they can be settled.

I do not believe that we can allow land claims, repeat or otherwise, to be able to continue unabated. To this time nearly half of the total land mass of the Northern Territory, including the majority of the coastline, is either now under Aboriginal land grant or subject to claim. Surely, we have to ask ourselves whether it is the intention to ultimately hand the whole of the Territory over to Aboriginal title, or is there to be some realistic and sensible cessation of the land claim process.

We must face the fact that not all Aboriginals will be able to achieve the grant of title to their traditional lands. In the Territory there will be continuing need to foster the pastoral and fledgling agricultural industries, and to provide further lands for government and community requirements. These cannot be ignored to the total satisfaction of Aboriginal aspirations and expectations.

I firmly believe that the time is now right to decide upon a date for cessation of land claims. In the Bill I have proposed that the effective date should be 1 July, 1986.

Public Purpose Land

The Land Rights Act as it now stands allows for applications for the conversion of unalienated Crown land to Aboriginal land. Some of the land which falls within the description of unalienated Crown land has been nominated over the years by the crown for any number of public purposes. These range from land set aside for the purposes of stock routes and travelling stock to uses as racecourses and for other entertainment purposes, from reserves for the erection of police stations to land for historical monuments and conservation parks, from forestry reserves to land set aside as a cemetery. It is the intention of the Bill that land so dedicated, set aside or reserved shall no longer be identified as Crown land for claim purposes.

It is my intention, through this Bill, that the land specified in Schedule 5 to the Bill will not be available for conversion to Aboriginal land. This land is of two types; the first being the beds and banks of various streams and estuaries which would otherwise be available for claim; the second being the remaining foreshore areas of the Territory which are not already Aboriginal land.

There is already more than 60% of the coastline of the Northern Territory to which more than 75% of the population (including many Aboriginals) have effectively been denied access because it is Aboriginal land. This, in proportional terms, would in New South Wales be equivalent to depriving something in the order of the population of Sydney, Newcastle and Wollongong of access to a stretch of coastline from Batemans Bay to Coff's Harbour or, in Victoria, the population of Melbourne, Geelong and the Latrobe Valley of access from the South Australian border to Wilson's Promontory. I do not believe that exclusion of this magnitude would be considered a fair thing or, indeed, be politically tolerated in either of those states. I also firmly believe that the right to enjoy the coastline by the majority of territorians should not be further eroded from that undesirable poisition which already exists. My Bill is designed to prevent that.

Leasehold Conversions

Most Australians will recognise that Aboriginals have played an important part in the establishment of the pastoral industry in the Northern Territory and other parts of Australia and I pay tribute to them for this role. Indeed, until fairly recent times it could be said that they effectively subsidised the industry through their cheap labour. As a result of their participation in the industry population groups were established on pastoral properties, sometimes quite away from their traditional areas. Many of those involved in the industry have acquired skills which have equipped them to seriously contemplate running pastoral leases of their own and both the previous Commonwealth Government and the present one have encouraged the purchase of properties for this purpose.

In my view it is in the interest of all Australians and, in the long run, of the Aboriginals concerned, that acquired pastoral properties should continue to be conducted as pastoral enterprises. However, as the Land Rights Act at present stands such properties are susceptible to conversion to Aboriginal land and not always for the benefit of those who are suited to operating them as productive units. One of the purposes of my Bill is to remove from the possibility of conversion to Aboriginal land pastoral leases held by or for the benefit of Aboriginals and by so doing, hopefully, ensure that large areas of the Territory remain as productive land for the benefit of the economy as a whole.

There is however a trade-off in my proposal, a trade-off that was in the course of being negotiated between the Territory and Commonwealth Governments in 1982. The Territory in 1983 introduced a system of pastoral tenure which would allow qualifying pastoralists to convert their leases from a term of years to perpetual leasehold tenure. That tenure is seen as a more acceptable basis on which to plan and develop the pastoral industry. The conditions on which such conversions are permitted however are quite onerous requiring in part the demonstration of sufficient financial resources to ensure compliance with lease conditions. It was seen that Aboriginal pastoral leaseholders would not always have access to resources to enable them to avail themselves of the conversion and a scheme had been suggested whereby the Commonwealth would guarantee the necessary condition requirements to enable the Territory to grant the new titles. Clause 13 of the Bill is designed to bring that arrangement into effect when the corresponding Northern Territory provisions are in place.

I should emphasise that the scheme is completely elective and depends on agreement in each particular case. Some Aboriginals may not be interested in converting their tenure. Others may be able to do so relying on means other than under the scheme.

Acquisition for Public Purposes

When the Land Rights Act was passed the Commonwealth reserved to itself the right to acquire under a law of the Commonwealth, Aboriginal land for public purposes. A similar power was not reserved to the Territory. The Commonwealth does not have a monopoly on good works. There are even some in the Territory (those of a less charitable disposition I hasten to say) who suspect the Commonwealth's motives in the Territory completly. Whatever the historical reason for the dichotomy, it is the Northern Territory Government that is expected and expects to provide most of the community services, such as health and educational services, on Aboriginal land or for the communities that can only be serviced across Aboriginal land. It is apparently expected to fulfil its obligations without the concomitant power of acquisition which is seen as essential to enable governments in other parts of Australia to provide such services. The lack of such power has caused aberrations such as suggestions that the Territory should meet some quite unjustifiable demands for payment for the privilege of providing such services. Clauses 14 and 15 of my Bill suggest a saner approach by allowing the Territory a power of acquisition for the public purposes indicated.

The Bill represents the results of careful consideration of operational difficulties and injustices which I have seen emerging from the current Aboriginal land rights legislation. I firmly believe that the Bill should be subjected to the widest possible scrutiny and debate and I would welcome constructive comments and suggestions on the proposed amendments.

I have a fond hope that I will see before I die all Australians treated equally before the law and with equal rights to pursue their opportunities. I believe that the creation of distinctions by statute law on the basis of race, call it traditional ownership or what you will, in the long term is not a course we should be following as a nation as a sound basis on which to be venturing into the next 200 years of our system of government. The Parliament, in my view, should not be in the business of creating cultural museums in perpetuity.

Although I do not see the Land Rights Act as appropriate to remain on our statute books indefinitely, I am not so naive as to think that land rights, once so enshrined can necessarily, or should be, swept aside precipitously, and I am not in my Bill suggesting this. However, there are other means by which governments can make amends for past perceived injuries other than by the creation of legislative ``hair shirts''. It is not my desire that my grandchildren should be constantly reminded of my own shortcomings, but rather that they should be able to put such considerations aside and with all their fellow Australians strive towards a better Australian future for all rather than a more comfortable past.

I commend the Bill to honourable senators.

Debate (on motion by Senator Robertson) adjourned.