A Review of the Reeves Report: Whither Land Rights in the Northern Territory? Wither Aboriginal Self-determination?

The Report of the Review of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) by John Reeves, QC has a delightful photo of an Aboriginal child on the cover, no doubt to reflect the title given to the Report, "Building on Land Rights for the Next Generation" The aptness of this title will be much discussed in the Northern Territory, for Reeves’ recommendations would remove the cornerstones of the structure which has given land rights to the current generation of Northern Territory Aboriginal people.

The Cornerstones Removed:

• The Northern and Central Land Councils will be abolished;
• Traditional Aboriginal owners and their authority under the Act will go;
• The functions and duties of traditional owners will be dispersed to Regional Land Councils;
• Eighteen new Regional Land Councils will be established;
• Title held by existing Land Trusts will be transferred to the new Regional Land Councils;
• A new Aboriginal governing body, the Northern Territory Aboriginal Council (NTAC)will be established over the whole of the Territory;
• The NTAC will take over the assets and liabilities of royalty associations and the Aboriginal Benefits Reserve;
• The NTAC will receive, control and distribute mining royalty equivalents, negotiated royalties and other monies from the use of Aboriginal land;
• The NTAC will act as banker to the Regional Land Councils;
• The NTAC will take over programme funding for the Northern Territory from ATSIC and the Northern Territory Government with a combined annual budget, with Aboriginal Benefit Reserve income, of between $448m and $738m;
• The NTAC, the staff of which would be wholly appointed by the Northern Territory and Commonwealth Governments, is to become a "central institution of governance" for Northern Territory Aboriginals;
• The NTAC will have powers of "strategic oversight" to control the financial and administrative functions of Regional Land Councils, with the capacity to override key decisions of a Regional Land Council;
• Miners will be given easier access to Aboriginal lands for exploration;
• The permit system will be abolished.

Transfer of Power to the Northern Territory Government

Under Reeves’ proposals, a major shift of power and control over Aboriginal land into the hands of the Northern Territory Government will take place:

• The principle that government could not compulsorily acquire Aboriginal land would be abolished and the Northern Territory Government would be given this power of compulsory acquisition;
• The Commonwealth Minister would delegate that Minister’s powers under the Aboriginal Land Rights Act (Northern Territory) 1976 (Cth) ("the Land Rights Act")to the Northern Territory Government;
• Northern Territory laws will apply more extensively to Aboriginal land.

The Result

Governance of Aboriginal land will be centralised in a superordinate non-traditional Aboriginal institution, the NTAC. Initially, membership of this body would be wholly by appointment. Only later, at some indeterminate time, and by some indeterminate method, would this body be elected by Aboriginal people themselves. Whilst control over Aboriginal land would on a superficial level be decentralised to Regional Land Councils, the actual political and financial power would be centralised in the NTAC and the Northern Territory Government. The authority of traditional Aboriginal owners under the Land Rights Act will be extinguished. Their authority under Aboriginal tradition will be removed and shifted by the legislative processes recommended by Reeves to Regional Land Councils and the NTAC, with ultimate power resting with the Northern Territory and Commonwealth Governments.

Whither land rights in the Northern Territory? Whither Aboriginal self-determination?

It is little wonder that the Land Councils, ATSIC and Aboriginal communities have resented being forced into the role of defenders of an Aboriginal land rights system which has been in operation for nearly 25 years and which has become a benchmark recognised nationally and internationally as a high point in the struggle for indigenous land rights. Reeves recommendations are, in reality, instruments for the destruction of the Northern and Central Land Councils and the imposition of a radical system of governance of Aboriginal affairs in the Northern Territory which allows for direct intervention and control by the Commonwealth and Territory Governments. The irony is that these changes are spuriously recommended in the name of self-determination. For over 20 years, the nature of Aboriginal relationship to traditional land has been the basis for identifying traditional owners, for the land claims process established under Land Rights Act, and for the management of Aboriginal land in the Northern Territory. And yet Reeves attempts to sustain his proposals using anthropological views which are completely at odds with the nature of traditional Aboriginal land relationships.

I believe that the Reeves proposals will be seen as the product of non-Aboriginal political ideas, designed with non-Aboriginal political concepts in mind to create a system of Aboriginal governance of traditional Aboriginal land which non-Aboriginal governments want to see established. The system of governance proposed is alien to the traditional Aboriginal relationship to land which supports and sustains Aboriginal social organisation, which is based on an identifiable and unmistakable group of people forming a descent group or clan living in relation to an identifiable territory publicly recognised as the "country" of that group. Certainly, the lifestyles of Aboriginal people in the Northern Territory have been changed through contact with modern non-Aboriginal society, particularly technology, transport, communication and economics. In some cases, ties to traditional lands have also changed. But over 20 years of successful land claims hearings and the continuing maintenance of traditional lifestyle testify that Stanner’s account of Aboriginal society is as good today as it was when the Land Rights Act was enacted.

The Reeves model may well be a convenient way of destroying the Northern and Central Land Councils, both of which have long been a target for destruction by the Northern Territory Government and, more recently, by Deputy Prime Minister Tim Fischer and the Commonwealth Minister for Aboriginal and Torres Strait Islander Affairs, Senator Herron but it will be interesting to see the reaction of the smaller Tiwi and Anindilyakwa Land Councils when they realise that the autonomy and independence they now enjoy, with the same functions, authority and duties as the Northern and Central Land Councils, will be stripped from them under Reeves’ proposals. The Tiwi and Anindilyakwa Land Councils will become two of the 18 Regional Land Councils subservient to the power and authority of the NTAC and, through the NTAC, to the Commonwealth and Territory governments.

Reeves relies on the decision of Blackburn J. In the Gove Land Rights Case (Millirrupum) but he has completely ignored the majority High Court reasoning in Mabo and Mabo’s decision that traditional land rights are property rights in Australian law. Reeves’ reasoning is fundamentally flawed and taints the whole of his attack upon the Northern Territory land rights system based on traditional Aboriginal owners and Aboriginal tradition.

Like the Native Title Act, the Land Rights Act in using the definitions of Aboriginal tradition and traditional Aboriginal owners recognises that according to customary law, "native title" is communal, spiritual and physical. By recognising common law "native title" holders and the bundle of native title rights and interests they are entitled to enjoy under customary law, both Acts recognise that "native title" may be enjoyed by all those persons who have traditional affiliations with the land held by a Land Trust.

Reeves recommends that traditional ownership continue to be the threshold test for land claims. On the other hand, he argues that traditional owners should no longer continue to enjoy their central role within the Act in relation to control of land and the receipt of benefits. Many readers will marvel at the inherent inconsistency of Reeves’ conclusion that it is good enough to require land claimants to establish traditional Aboriginal ownership in the land claimed but, having done so, it is not good enough to accord those owners the position Aboriginal tradition gives them in relation to the land for which they have responsibility by Aboriginal tradition.

One observation in Chapter 7 reveals a great deal about Reeves’ thinking:

"how will Aboriginal people address the problems posed by the inevitable extinction of the small-localised patrilineal groupings that, ideally, hold the highest authority in relation to land?

This question reminds me of the "inevitable extinction" theories and schemes of "breeding out the colour" of earlier policy makers which held that Aboriginality would be bred out by the mixing of the races and the "Aboriginal problem" would thereby come to an end; see Russell McGrego, Imagined Destines "Aboriginal Australians and the Doomed Race Theory, 1880 - 1939". Reeves’ statement that Aboriginal local descent groups face inevitable extinction is a huge assumption which history contradicts, and which is tantamount to suggesting that Aboriginal tradition itself faces inevitable extinction. It is also a suggestion which I am sure Northern Territory Aboriginals will take exception to.

It is not difficult to see that this proposal will create enormous discontent amongst traditional groups or communities who already hold separate Land Trusts for their traditional land acquired through the land claims process or by schedule grants. Their reaction will be no different from the reaction of anyone whose property is forcibly expropriated and handed over to be controlled or used by someone else. Through the power of access and compulsory acquisition over Aboriginal land which Reeves proposes to give the Northern Territory Government, his proposals will be seen as yet another example of dispossession to the advantage of that Government.

The operation of Reeves’ proposals may be seen in their effect upon the past attempt of the Laynhapuy clans of North East Arnhem Land to have their own land council. The proposed Regional Land Councils ...their own North East Arnhem Land Ringgitj Land Council. Instead, Reeves’ Regional Land Councils will take away from the Laynhapuy clans and other traditional groups the right as traditional owners to give or withhold consent to manage and use their traditional lands in accordance with their own wishes. Under the current Land Rights Act regime, land councils may only do something in relation to Aboriginal land held by a Land Trust when the traditional Aboriginal owners give their consent. If consent is not given, then the proposed act cannot be carried out. Under the Reeves plan, the traditional owners (or any Aboriginal person or group having traditional affiliation with Aboriginal land) lose their right to withhold consent. Power and authority traditionally exercised by them over their traditional land will be given to persons who may not have any traditional affiliation with or authority over the land. Once the decisions reach the level of the NTAC and the Northern Territory and Commonwealth Ministers, decisions concerning the land will be made by people who have no traditional authority over the land whatsoever. A more radical and dramatic change to the land tenure system under the Land Rights Act could not be envisaged.

In Chapter 28 of his report, Reeves claims to lay down a pathway for "building on land rights for the next generation." The Northern Territory Aboriginal Council is designed to have ultimate control of Aboriginal land use and monies derived from such land use, including existing mining royalty equivalents, negotiated royalties and other monies. It would also undertake social and economic programmes "in partnership" with the Northern Territory and Commonwealth governments as well as individuals and organisations "from the broader Northern Territory community." In other words, it is to be an agency for the development of Aboriginal land held by the Regional Land Councils. The NTAC’s funding would come from the Aboriginal Benefits Reserve, augmented by funds from other sources including the Community Development Employment Programme (CDEP) and other funds earmarked for expenditure on Aboriginal economic, social and cultural advancement in the Northern Territory. If the combined funding for ABR, ATSIC and the total Northern Territory Government budget for Aboriginal programmes were channelled into the NTAC, this would, according to Reeves, give the NTAC a budget of between $448m and $738m.

As well as the significant financial control over the lives of Territory Aboriginals which NTAC would gain from such a budget, it would also possess great political power. This would come from Reeves’ proposals for NTAC to have the power to intervene in "major agreements" over land use, to control Regional Land Council funds and budgets and to be able to place a Regional Land Council under administration.

The NTAC would be an appointed body nominated by the Northern Territory and Commonwealth governments, which would become an elected body "in due course" when

"a positive partnership has developed with both governments and their agencies, and when the Council has established its effectiveness in achieving its purposes, government appointment of its members should be replaced by their election by Aboriginal Territorians on a basis providing for an appropriate spread of regional representation. This election should take place once the land claims process has been completed, the boundaries of the RLC’s have been settled, and a further review of the Act has been undertaken. "

When this might happen is a prospect, given the nature of governments, light years away. The NTAC would be a present-day example of old-style paternalism coupled with new- style cronyism and political favour. Although this may suit some interests, I do not think that it is in the overall interests of all Aboriginal Territorians.

In proposing the creation of the NTAC in Chapter 28, Reeves is suggesting a powerful new bureaucracy and political entity which would have far more control over the lives and land of Aboriginal Territorians than the Northern and Central Land Councils could ever have under the Land Rights Act, and which would be neither representative of Aboriginal people in the Territory, nor in keeping with Aboriginal tradition.

The NTAC and the Regional Land Councils would interface with the Reeves proposals to give the Northern Territory Government the power of compulsory acquisition over Aboriginal land for "public purposes". The Territory Government has long lobbied for this power. The Land Rights Act from its inception has prevented this by s.67. Experience with the States and the Wik amendments to the Native Title Act clearly indicates that the Northern Territory Government will wish to define "public purposes" as widely as possible, even to the extent, one would expect, of permitting compulsory acquisition for the purpose of making Aboriginal land available to third parties (non-Aboriginal) for private development perceived to be in the public interest, as the States have done in recent amending legislation. The inviolability of Aboriginal land would be lost. The destruction of Aboriginal control of Aboriginal land would have begun. The Northern Territory Government does not need the power to compulsorily Aboriginal land for public purposes as it is not necessary to "privatise" Aboriginal land in order to provide public works and services to the communities and homelands living on Aboriginal land. The Land Rights Act has ample provision, with Aboriginal consent, for the granting of necessary interests in Aboriginal land for the placing of public works and services on that land.

Conclusion

Reeves claims that his recommendations will build on land rights for the next generation.

In my Second Reading Speech I said of the Aboriginal Land Rights Bill, which I introduced into the House of Representatives:

"This Bill is a major step forward for Aborigines in the Northern Territory not only for this generation but also for future generations who will benefit from it. They will have a land base that will be preserved in perpetuity."

Will that objective of a land base preserved in perpetuity be achieved by the Reeves proposals?

Students of the history of the struggle for recognition of Aboriginal land rights in the Northern Territory will compare the story of the Woodward Aboriginal Land Rights Commission (1974), the Whitlam Land Rights Bill (1975) and the Fraser Government’s Land Rights Act (1976) with the Reeves’ Report and its radical proposals for changes to Aboriginal land rights in the Territory. The House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs will deliberate on Reeves’ proposed changes, and the Commonwealth Parliament may vote on them. But where will Aboriginal people themselves stand in all of this? How will they be informed of the vast ramifications for them of the proposals contained in nearly 1,000 pages of the Reeves Report and its Appendices? How will the voice of Aboriginal Territorians be heard by the policy makers, and by the Commonwealth Parliament? Above all, how will Aboriginal consent to any of the Reeves proposals be obtained before the policy makers decide and the legislators legislate?

Reeves has no mandate for change without Aboriginal consent. The Commonwealth Parliament has no mandate to change the Land Rights Act without Aboriginal consent. It is their land and their Act