Bennelong Society Conference 2003:
An Indigenous Future? Challenges and Opportunities

Aboriginal Land Rights in The Northern Territory
'From Little Things, Big Things Grow'

David Tollner, MP

A parliamentary colleague, Labor's Senator Trish Crossin, noticed a couple of weeks ago that I was to address the Bennelong Society Conference today.

'What would you know about land rights?' she said and laughed hard.

Well, I'll tell you what I know.

I know the Northern Territory's got them. I know that Labor are great supporters of the Aboriginal Land Rights (N.T.) Act 1976

And I know that right across the country there are Labor State administrations---and any one of them could introduce mirror legislation in their home States but none of them do---or will ever do so (as was proved when former Labor Minister for Aboriginal Affairs Clyde proposed a similar Act for West Australia to then Labor Premier Burke---who told the Commonwealth Minister exactly what to do with his proposal.)

The Past

It is said that nothing in history can be understood except in the context of its time and place---and so it is with the Aboriginal Land Rights (NT) Act 1976.

This Act had its architects in Canberra, including the late 'Nuggett' Coombes and when completed was tabled and passed by both Houses of the Commonwealth Parliament, and imposed exclusively upon the Northern Territory, in 1976.

By that time the national and international pressure for Aboriginal rights had reached boiling point.

It is important to understand the political climate of the time.

The world was discovering it had rights. South Pacific nations shook off their colonial oppressors, MGM stopped making films featuring white Americans gunning down red indians, the cult heroes were Che Guavare, Martin Luther King, Malcolm X. In Australia Charlie Perkins had boarded freedom buses.

In the Northern Territory the Aboriginal stockmen of Newcastle Waters and Wave Hill had walked off the job, demanding equal pay---a strike that became symbolic of Aboriginal dispossession when the Gurindji at Wave Hill turned the pay dispute into a demand for the return of their land.

The national referendum, giving the Commonwealth responsibility for Aboriginal welfare, had been given 90% support in 1967 and the Aboriginal Tent Embassy was established on the lawns of Parliament House just as Prime Minister Whitlam was moving into his office---brimming with reformist zeal.

The Gurindji strike lasted seven years. In 1975, the year before NT Land Rights, Gough Whitlam symbolically poured red sand into the hand of Vincent Lingiari and handed over the lease to 1250 sq miles of former Vestey's land with a promise to further 'redress the injustice and oppression that has so long been the lot of black Australians'.[1]

The Commonwealth Parliament had earlier been surprised, then charmed, that in 1963 Yolngu Aborigines had sent them a bark petition, detailing their complaint that 140 acres of the Arnhem Land Reserve had been excised for bauxite mining on the Gove Peninsula.

The Parliament responded, as is its habit, with a Select Committee---which recommended the preservation of hunting rights, the protection of sacred sites and Aboriginal consultation on the anticipated arrival of mineworkers and their families in the new town of Nhulunbuy.

Under whelmed by this response eleven clans sued the mining company and Commonwealth Government, asserting a proprietary interest in the land.

There were (at least) two people who sat through the Gove Land Rights case who were to be extraordinarily influential in the future of Northern Territory Aboriginal Land Rights.

One was Counsel for the Yirrkala plaintiffs, Mr A.E. Woodward QC, who was to head the Woodward Royal Commission into Northern Territory Land Rights established by Whitlam and who wrote the founding documents of the 1976 legislation---recommending a statutory scheme for grants of land to Aboriginal people.

The other person to become enormously influential was the Gove case court interpreter, Galarrwuy Yunupingu, a young man with a Brisbane Methodist Bible College education and son of Gumatj clan leader, MunGalarrwuy---one of the Yirrkala plaintiffs. Galarrwuy had helped his father draft the bark petition.

The presiding judge, Justice Blackburn was shown, after great hesitation and deliberation by clan leaders, the secret symbols of traditional power, which, as far as the clans were concerned proved their ownership of the land.

But the judge concluded 'it seems easier on the evidence, to say that the clan belongs to the land than that the land belongs to the clan.'[2] In short no Aboriginal proprietary interest.

The elders were so devastated that they never recovered their health. It was Galarrwuy Yunupingu who gave the elders the news---that the land that they had always considered 'theirs' was, in fact, 'crown land'.[3]

Whitlam was out of office before his Government could translate Justice Woodward's findings into legislation---but Fraser willingly took up the cause.

This then is my first point. The Aboriginal Land Rights legislation is a Rights Bill---not a lands bill.

It was about putting things right, about appeasing a national conscience and international opinion in the only place the Commonwealth could---in the Northern Territory.

It was not about good land management or land administration, not about planning for the future exploitation and productivity of the land.

The Act doesn't concern itself with how the new land owners are going to make a buck---quite the opposite---it's about protection of land as a right, the preservation of culture, locking the gates, defending Aboriginal people and their land from the intrusions of outsiders, whether miners, pastoralists, tourists or anyone without a permit---even their own future government.

Aborigines, it was thought, would now be able to return to hunting and foraging on their newly acquired land. Why would they need to make a buck?

Justice Woodward penned those intentions, writing of preserving 'the spiritual link' with land providing Aboriginal sense of identity and allowing 'Aborigines to be free to choose their own manner of living.'[4]

Aboriginal Affairs Minister, Ian Viner, picked up on the theme while introducing the legislation.

He waxed lyrical about Aboriginal 'spiritual connection with the land, and the 'dream time'. He said that 'ancestors left in each 'country' certain vital powers' that 'make that country fruitful and ensure a good life for people forever.'[5]

An Aboriginal's country, he said, ' no matter how stricken a wilderness it may seem to others---is, to him, a Canaan'.[6]

And he stated his belief that there had been 'a fundamental change in social thinking in Australia---recognising that within our community there are some people, the Aborigines, who live by a unique and distinct system of customary law'.

Thus we can see the intent of the Land Rights Act---to establish rights, to protect the country and its inhabitants from intruders, to create inalienable title in perpetuity for a people who lived differently and thereby to 'ensure a good life for people forever'.

The Land Rights Act was to establish a sanctuary, a preserve of living prehistory within modern Australia.

Spurring on this mood was the Commonwealth's deep suspicions about the intentions of the embryonic Territory Government, the Legislative Council.

To defend Aboriginal Territorians from their future Government---the Act stipulates that the Territory Parliament could not acquire Aboriginal land for public purposes.[7]

At that time Canberra genuinely believed that given half a chance the Territory Council would repossess Aboriginal land en masse and Viner felt compelled to tell the Commonwealth Parliament that he'd had 'assurances' that the Territory Assembly was prepared to cooperate.

In fact there was uncertainty and resentment in the Territory. And division.

It was not so much about Aboriginal land ownership---it had more to do with the way the Rights Act was imposed exclusively upon the Territory from above. It seemed, and it was, hypocritical, to impose upon a Territory a land regime that is applauded by the same people who wouldn't have a bar of it in their home States.

Mr Viner had some sense of the impact his legislation might have in the Territory.

Alarmed by what he feared was a 'white back-lash' he wrote articles and distributed pamphlets in the Territory in 1978 assuring Territorians that rumours that Aborigines would get 50% of the land were untrue and downright 'dangerous to racial harmony.'[8]

Today, of course, about 43 per cent of the Territory is under Aboriginal title and when all claims are finalised it will be slightly above the 50 per cent that Mr Viner said wouldn't happen.[9]

He simply did not anticipate the real outcome of his legislation. I can't believe he was just lying.

His stated desire for an end to divisiveness was not backed by his actions. He left the Territory a legacy that has soured relations between the Northern Territory Government and the Land Councils for 25 years.

That legacy was his scant regard for the public interest in his plan to affect the biggest transfer of crown and pastoral land to new select communal ownership since Captain Cook.

The Commonwealth Act prohibits any compulsory acquisition of land under the ALRA by the Territory Government.[10]

As vast tracts of land were handed over to select communal ownership the Territory Government was forced into the land claims court room to represent the public interest.

It cannot be argued that the Territory Government should not have done this---government is required to represent the public interest, to plan for future services, providing water from catchment areas, pasture for cattle on the move, pipelines, powerlines, public parks, access for the enjoyment of beaches and rivers. To ignore such future considerations would be dereliction of public duty.

But the adversarial nature of the courtroom leads inevitably to acrimony---and today most Aboriginal Territorians believe that the Territory Government has opposed every land claim.

They have been told that by the Land Councils, and the Labor Party---which finds polarisation of Aboriginal---CLP Government relations politically convenient.[11]

It has been an effective message. Even Ian Viner believes it.

In his submission to the Reeves Review, Viner said the political attitudes of Northern Territory Governments had been a disgrace.

He said successive Territory Governments had constant and unremitting opposition to land rights claims, had failed to honour the 'letter and spirit' of his legislation, failed to introduce complementary sacred sites legislation, played the race card at every election and now wanted compulsory land acquisition powers, to weaken the mining provisions of the Act and to keep Aboriginal customary law out of its proposed Constitution.[12]

Strong words. Mr Viner should watch his tongue.

There would have been far less cause for the Territory Government to join in the lands claim courts process if Mr Viner had not totally ruled out the acquisition of Aboriginal land for public purposes at some later date.

John Reeves QC, says in his Review that the provisions preventing the Territory Government from compulsorily acquiring land meant that the land claims process was the only chance the Territory Government to present possible matters of detriment.

If the Territory Government could acquire land in the future in 'certain limited circumstances' it would not be necessary for matters of detriment to be predicted way into the future and thus occupy so much court time and argument, he said.[13]

Today there is no real answer to who owns schools, health centres and other community facilities on Aboriginal land. The Land Councils count such assets as having zero value---as they are not their asset. Taxpayers, through their government, also have no proprietary interest---as the buildings do not stand on public land.

Mr Viner, consciously or unconsciously, set up the dispute between the Territory Government and the Land Councils.

As for 'playing the race card' it is a charge brought by the Labor Party and a few fellow travellers, every time a (white) politician or other individual speaks honestly about race relations or the social problems which are widely apparent in the towns and communities of the Australia.

I fully expect someone to say I played the race card this afternoon by daring to talk about land rights. But as the Liberal Students Federation has asked: 'Why be politically correct when you can be right?'

Mr Viner's allegation that the Territory Government has failed to 'to honour the letter and spirit of the intention of the 1976 Act, or complementary sacred site and Aboriginal heritage laws' is particularly hard to stomach.

The Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund recognised that the sacred site regime in place in the Territory as 'best practice.'[14]

And the Hon Elizabeth Evatt, AC, in her Report, compared Aboriginal heritage protection legislation in the Commonwealth, States and Territories and found that the CLP's Aboriginal Sacred Sites Act, was the only such act in Australia that met agreed minimum standards in every respect.[15]

Perhaps Mr Viner is unaware of the Northern Territory Sacred Sites Act, or perhaps he's looking for someone to blame that his Act failed to create the Caanan where people were assured 'a good life ... for ever.'

The late author Shiva Naipaul visited the Northern Territory in the mid eighties and was appalled by what he described as this 'confining of the Aborigine in his aboriginality?'

'... the escape into an adventure playground of timelessness, of goannas and kangaroos and red earth, the running off into a world of unalterable Aboriginal essences ... is a condescending and profoundly flawed prescription for regeneration' he said---and followed up with the challenge: ' Either the Aborigine is, or is not, a citizen of Australia. And if he is (which he is) he must face the consequences.'[16]

The Present

The reality today is that most Northern Territory Aborigines are now land rich and dirt poor. They are not, as expected, hunting, fishing and foraging in the land of Caanan. Nor are they, generally, signing up mining leases, entering joint ventures and providing jobs for the young.

That's not just because the Land Councils have taken on the modern role of 'Chief Protector of Aborigines' in the Northern Territory (which they have).

That is bad enough---but it gets worse. Because: along came Centrelink.

Sit down money. The final enslavement. A fortnightly cheque through the mail.

You know the old adage about teaching a man to fish rather than giving him a fish---this is the reverse---Centrelink is the equivalent of an endless free fish supply.

Aboriginal health statistics in the Territory, like everywhere else in Australia, are appalling. Many people think that is because Aborigines are trapped in third world conditions.

To an extent they are, but let's be frank---many of the diseases that are killing people are the illnesses of bad habits and over-indulgence---diabetes, heart and lung disease, alcoholism, substance abuse. Aboriginal community life is all too often plagued with 'family violence', suicide and short life expectancy---the young grow up in despair, without purpose or hope.

It's hardly necessary nowadays to explain why social welfare is poison in Aboriginal communities (and arguably elsewhere). An old school mate of mine, Noel Pearson, has said the 'descent into passive welfare dependency' had taken a decisive toll of his 'mob' and the social problems which it has created had 'a cancerous effect on relationships and values'.[17]

It's not a new discovery---the trap of welfare dependency.

Northern Land Council Chairman, Galarrwuy Yunupingu said in 1990 that his people had been 'made to bludge' and called on the Government to cut off unemployment benefits altogether.

'The hand-out program is demoralising. It kills the dignity of my people and makes them reliant on a cheque in the mail. A whole mentality develops around that,' he said.[18]

Some might find that surprising, given that he presides over a system of 'cheques in the mail' that stem directly from the Land Rights Act.

It is important to understand the authority and power that Galarrwuy Yunupingu wields after 40 years (from the date of the bark petition) at the forefront of the land rights movement.

He was the man who negotiated the Ranger Uranium Agreement with Malcolm Fraser, and our friend Ian Viner. That agreement, and other mines already established before the land rights regime, provides substantial Royalty Equivalents which flow from the compulsory royalty payments from the mining companies to Government and are then allocated to the Aboriginals Benefit Account for distribution.

Currently mining royalty equivalents (MRE's) paid by the Commonwealth amount to some $45 million a year---equivalents to royalty revenue from bauxite at Gove, manganese at Groote Eylandt, uranium at Ranger and, until now, Narbalek, and gold, oil and gas from Central Australia.[19]

Justice Woodward made what he called an arbitrary decision that the mining royalty equivalents should be allocated 40 per cent to the Land Councils for administrative expenses, 30 per cent to the local community and 30 per cent to the Aboriginals Benefit Trust Fund---now called the Aboriginal Benefit Account (ABA).[20]

Woodward also suggested that a portion of the royalty money be allocated for the formation of smaller land councils.

The distribution of these funds has been effectively controlled to date by three groups---the Land Councils, the Royalty Associations and the ABA Advisory Committee.

Galarrwuy is a member of the 15 person Advisory Committee which recommends to the Minister the grants to be made from the 30 per cent allocation to the Aboriginals Benefit Account to, or for the benefit of, Aboriginals living in the Northern Territory.[21]

He is also the salaried Chairman of the Northern Land Council---which gets the majority of the 40 per cent royalty money earmarked for administrative expenses and 30 per cent or $5.5 million (in 2001-02) for distribution to the Royalty Associations and Aboriginal organisations in areas directly affected by mining operations.[22]

He's also the Chairman of the Gumatj Royalty Association, a recipient of the lion's share of royalty distributions in the Gove region distributed by the Northern Land Council.

In preparing his Report John Reeves QC wrote to the Northern Territory Royalty Associations, seeking information on their investments, distributions to individuals and provision of community facilities.

Two Royalty Associations did not answer at all. The Gumatj Association responded with 'a brief letter from the NLC ... which did not provide any of the information sought.'[23]

Auditing of the Royalty Associations is, as you might guess, a responsibility of the Land Councils. As Reeves discovered it just doesn't happen.

How that Royalty money is distributed by Galarrwuy Yunupingu, wearing his Gumatj Chairman hat, rather than his NLC hat, was described by reporter, Elisabeth Wynhausen in an article in the West Australian in 1996.[24]

She describes Galarrwuy Yunupingu as 'the all powerful leader of a branch of his Gumatj clan' and explains 'as the boss of the Gumatj Association he controls the distribution of close to $2 million a year in royalty payments from the federal government as he is entitled to do under Aboriginal tradition and the land rights legislation.'

Wynhausen describes the scene at a 'quarterly meeting' for royalty distributions when locals and clan envoys gather to 'get a bit of the money Galarrwuy distributes to cement his political alliances.'

'Only a fraction of the royalty payment $1.5m to $2m a year is handed out at the quarterly meetings,' she writes. 'Yunupingu holds most of the money back for sudden demands and ceremonial purposes...'

She quotes 'friend and political consultant Jamie Gallagher as saying: 'If you're part of the family you never have to worry---he'll provide for you. But you have to do as he says.'

Yunupingu passes 'a batch of envelopes to his older brother Joe', who then hands out 15 or so envelopes that seem to contain 'several hundred dollars' rather than the thousands the division of half a million dollars would be expected to create, Wynhausen reports.

That's probably as close a look as anyone is going to get at the books of the Gumatj Association---which incidentally has rules prohibiting the distribution of royalty monies to individuals.[25]

As Wynhausen says: 'The process (could) be quite a problem for bureaucrats trying to regulate the use of public money---kinship defines who gets what in Aboriginal society. One mob gets the good houses. The other mob gets the tin sheds.' [26]

The Gumatj Association, and some other Royalty Associations, distributes to other royalty associations, a practice seen as highly undesirable because it allows some to 'cement political alliances' on a 'grace and favour' basis.[27]

Dr David Martin, commissioned by Minister Robert Tickner to investigate demands for breakaway land councils, reported that the Chairman of the NLC was seen by many as having a conflict of interest because of his (second) role as Chairman of the Gumatj Association---the major recipient of royalties.

'For some Yolngu this reflected on the NLC as a whole,' he said.[28]

He reported that of $7.5 million 'areas affected' monies distributed to royalty associations in the Gove region between 1989 and 1994, some 69% were paid to the Gumatj Association, about 15% to the Rirratjingu Association, about 9% to the Dhanbul/Laynhapuy Association, about 3% to the Dhimmurru Association and the remainder (4%) to others.'[29]

Reeves comments: 'The financial power of the Gumatj Association, especially allied with the Rirratjingu, among the generally poor Yolngu is immense. This financial power linked to position in the NLC is a politically potent combination capable of distorting, not only public opinion ... but also the interpretation of Yolngu tradition.'[30]

Mr Yunupingu, according to 'Who's Who' 2003, is Chairman of the NLC since 1983, Chairman of the Gumatj Association since 1983, Director Yunupingu Industries since 1983, Director of the Yothu Yindi Foundation since 1998, Executive Director of Yothu Yindi since 1993, Director of Gapwu Marine since 1991, Director Garrangali Crocodile Farm since 1991, a past Chairman and Director of Yirrkala Business Industries and past Director of the Finances, Training and Accounting Service (FACTS).[31]

He was also Australian of the Year in 1978 and was honoured as 'One of Australia's National Living Treasures' in 1998.

I do not seek to criticise Mr Yunupingu. He has, as I have stated, been at the forefront of the Land Rights movement from the very start. He is a long serving leader of his people. The record shows that power and wealth have been thrust upon him. Unfortunately most Territory Aborigines have not done nearly as well.

A former director of the Land Council, now Minister in the Northern Territory Labor Government, John Ah Kit, has been congratulated for telling it how it really is in 'the land of Caanan'.

John Ah Kit said it was almost impossible to find a functional Aboriginal community anywhere in the Northern Territory.

He said Aboriginal people acknowledged that the rot lies within their own communities---sexual assault, domestic and other violence, the 'enormous shame at the antisocial behaviour of their countrymen and women; of drunks and beggars in the streets; and of the lack of will from so many Aboriginal people to take charge of their own lives'.

He said Aboriginal people must escape from the cargo cult mentality of government doing everything for them and that Aboriginal organisations must 'bite the bullet and develop new, innovative strategies to overcome the cancerous ideology of despair'.

He said Aboriginal people in the Northern Territory were at the bottom of the socio-economic heap, quoting the Commonwealth Grants Commission judgement that 'on nearly every measure, the Northern Territory's remote ATSIC regions demonstrate amongst the greatest relative needs of any Indigenous groups in Australia'.[32]

Is this what Minister Viner and the other progressive thinkers envisaged as a future under Land Rights.

Is this distribution of monies on a 'grace and favour' basis what Justice Woodward meant when he said: 'Aborigines should be free to follow their traditional methods of decision making.'[33]

I don't think so. In fact Justice Woodward recommended strongly against payments going to individuals---because it made people rely on hand-outs---and if that sounds familiar then you're listening.

Minister for Indigenous Affairs, Philip Ruddock, has aired his concerns for 'a clear separation between those making funding decisions and recipients of funding under the ATSIC Act'.

It would seem appropriate to seek similar separations in the Land Council pyramid of power.

The Northern Land Council has been audited twice in the past 12 years. The financial audit in 1992 found embarrassing irregularities[34] and the performance audit of last year found that there were no performance targets in place so it was impossible to report on whether the Land Councils were meeting them.[35]

The Joint House Committee of Public Accounts and Audit is looking at the Auditor General's reports for last year. It needs to look closely.

I have mentioned Justice Woodward's 40/30/30 formula for distribution of Mining Royalty Equivalents.

In fact the formula has been distorted to the benefit of Land Council administration costs and the detriment of Northern Territory Aborigines.

Land Council administration costs have gobbled up about 50 per cent of the Royalty money and only about 12 per cent, after discounting ABA money spent by the Land Councils on pastoral property acquisitions, has gone to grants for the benefit of Aboriginal people in the NT.[36]

The Land Council's demand on the ABA monies earmarked for 'the benefit of Northern Territory Aborigines' was so great that in the early 1990s the reserve fund was $7 million short of being exhausted.

Ministers Tickner and Herron and of course, Ruddock, tightened the purse strings and today I am glad to report the ABA has reserves of around $50 million.[37]

The Minister is currently resisting Land Council pressure to get hold of a major portion of those funds.

Any way you look at it Aboriginal people in the Territory have been short changed over the past 20 years by at least $50 million---by the very bureaucracy which is charged with looking after their interests.

The Future

I have never forgotten an ABC Radio interview with a visiting American Indian tribal representative, who was being questioned about the similarities between Aboriginal and Indian land rights.

'Is land important to American Indians as it is to Aboriginals?' the somewhat naïve female interviewer asked.

'Sure is,' said the American.

'And what is its special significance to your people?'

'Collateral,' came the instant reply. I could hear the scandalised interviewer trying to gather her thoughts before her next question.

I am not going to suggest that Aboriginal Territorians should set up casinos and Irish theme pubs on their land---although there should be nothing to prevent it if that is what they wished to do.

But, for the sake of Aboriginal Territorians who find themselves locked up in their traditional lands relying on welfare payments, it is time, as Jack Ah Kit suggests, for the Land Councils to work proactively towards engaging Aboriginal Territory with private enterprise and economic development.

There is some movement.

More than a year ago the Minister for Indigenous Affairs produced an 'Options Paper' for the future of the Land Rights Act. Among the options was the offer of patriation of the Act to the Northern Territory. This is not an insignificant offer---given that it would mean at least some control by the Territory's own government over some 50 per cent of the land in the Northern Territory.

The offer was not just rejected, but ignored, by the Territory Labor Government.

Rather the Labor Government hired consultants to sit down with the two Land Councils and work out what amendments were possible.

Other interested parties---the mining industry, tourism operators, the fishing industry and Aboriginals 'on the ground'---were almost completely excluded from the process, quite deliberately and unapologetically.

The consultation was entirely about what the Land Councils wanted or would accept as amendments to the Act

The political influence of the Land Councils is why a Labor Territory Government would think this course is the only one available to it.

It takes just one phone call from a Land Council spokesman to the Labor or Democrat or Green parties in the Senate to ensure that nothing that the Land Council deems undesirable will pass through the Senate.

The evidence of this is that the Act has not changed (except for the veto provisions) since inception, irrespective of widespread concern about its 'unworkability'.

A joint Northern Territory Government and Land Council submission on Minister Ruddock's Options Paper is now before the Minister.

For reasons best known to the Territory Government and the Land Councils initially asked the Minister that the submission remain confidential.

That seemed quite improper---the submission is put forward in the name of the people that the Territory Government and the Land Councils represent---the Northern Territory constituency and the Traditional Owner constituency.

Chief Minister, Clare Martin, has now agreed to the submission's release. The attempt at secrecy doesn't surprise me. Minister Viner's legislation, as I have outlined, set the scene for a number of outcomes.

In summary they were:

• The creation of a prehistoric preserve of Aboriginality within the Northern Territory---Viner's land of Caanan.
• A royalty flow from pre-existing mines on land on Aboriginal Reserves to fund massive administration costs (about $200 million so far) of an all powerful 'protective' bureaucracy
• The distribution of monies to select groups and individuals, mostly on a 'grace and favour' basis by a few individuals who can and do clearly benefit personally from their distribution decisions
• A political alliance of Labor and the Land Councils which has allowed the Labor Party to 'play the race card' at every election, claiming former Territory Government opposition to Land Rights,
• The creation of an elite Aboriginal leadership with a multiplicity of interlocking interests that ensures their continuing success and earns national awards, and
• The continuing subjugation of the great majority of Territory Aboriginals, reliant on welfare and, for a few, the crumbs from royalty payments, as long as they 'do what they are told'.

This seems bad enough---but the evidence shows that the Land Rights Act has even failed its primary and most high minded purpose---a structure for governance of land in accordance with Aboriginal tradition.

That was the conclusion of the Human Rights and Equal Opportunities Commission in its submission to the Reeves Review, which only echoed the words of Justice Toohey in his 'Seven Years On' report to the Minister in 1984, yes---1984, just short of 20 years ago.

Justice Toohey pointed out that a Land Council 'is a European institution---not part of traditional Aboriginal decision making' and added that 'it cannot pretend to be representative of every community within its boundary.'[38]

Justice Toohey's warning was not heeded. The Western Arrente people told the Reeves Review that they needed neither anthropologist nor Land Commissioner to 'tell them what they already know' and that 'The traditional affiliation and ownership questions in a traditional land claim are regarded by some traditional groups as a circular and unnecessary exercise' which 'undermines the traditional systems of tenure and is prone to unexpected and unacceptable outcomes.'[39]

Centralian Pastor Paul G.E. Albrecht revolutionarily suggested in the 1960s that Aborigines should be given their land back. But, today, he says, the ALRA has failed its clients.

Noting that 'the Central Land Council and its supporters favour the current Act because it serves their political interests' he says 'the Act gives the CLC authority to over-ride their traditional land management laws and to meddle in affairs which the traditional law says is the sole prerogative of the various patrilineal descent groups and their kin' and that it 'allows the CLC to speak on behalf of all Aborigines in the Central Australian area, when in fact many Aborigines do not support the various stands taken by the Council.'[40]

Arguing against the system that places land authority in land trusts Pastor Albrecht says that 'the direct and unfettered possession of the title deeds to a particular 'country' is fundamental to Aboriginal principles of land ownership and land management' and is 'the bedrock on which Aboriginal authority is grounded.'[41]

The Act has sabotaged not only the positions of the (traditional owners) 'but the whole traditional system' allowing 'the CLC to come between (traditional owners) and their 'country' and sabotage the traditional system at its very foundations'.

'... if that were not damaging enough, (traditional owners) find their position undermined even further by the land management role the Act gives the CLC---which 'has the effect of giving Aborigines who, according to Aboriginal 'law' have no right to say anything about the management of land belonging to other patrilineal descent groups, the right to interfere in other Aborigines' private affairs.'[42]

Reeves concludes that 'the authority of oral traditions, and that of the living and remembered Aboriginal elders are diminished---even subverted---when disputes about traditional matters are played out in legal, or bureaucratic processes' ... 'The result is an unquantifiable but real loss of value, authenticity and meaning of such traditions for subsequent generations,' he says.[43]

On all fronts then, except for the creation of Aboriginal owned real estate, the Land Rights Act is a total failure.

The blame lies with the 'progressive thinkers' who were its architects.

As Noel Pearson says: 'Many of the conventional ideas and policies in Aboriginal Affairs---ideas and policies which are considered to be 'progressive'---in fact are destructive.'[44]

Aboriginal Affairs, he said, is dominated by journalists, academics, politicised clergy, politically active medical doctors, party careerists, writers, musicians, actors, cartoonists and 'other inner city dwellers with socially suitable left-liberal opinions about everything.'

'I and my people have suffered the intellectual and cultural hegemony of the progressive scribes for decades,' he complains.[45]

It is fairly clear, in my mind what needs to be done.

The Act must be seen for what it is---a rights bill.

The big Land Councils must be seen for what they are---a culturally inappropriate, administratively high cost, politically contaminated, vested interest regime which is, arguably, at risk of financial corruption, and that has overseen the diversion of funds for Aboriginal benefit into administrative expenses and selective individual benefit.

Once these truths are realised the solutions present themselves:

• The dismantling of the big Land Council system to culturally appropriate regional trusts---with royalty monies flowing direct to those trusts;
• Immediate provision for the Northern Territory Government to acquire, with agreement, small parcels or strips of land for the provision of government services and the like; leading to:
• An end to the divisive and acrimonious Land Titles arguments in the courts and a negotiated finalisation of the 112 outstanding claims to a further 10 per cent of Territory land;
• Immediate separation of roles so that decision makers in the royalties distribution process cannot also be beneficiaries of that distribution;
• Simplified arrangements for established Traditional Owners to enter into lease arrangements or joint ventures that would allow mining, pastoral, tourism and other enterprises to proceed; and
• Patriation of the Land Rights Act to the Northern Territory Government in order to bring land administration in the Territory under a single regime, guaranteeing, along the way that established Land Rights are both inalienable and incontrovertible.

References

[1] Speech by the Prime Minister, the Hon Gough Whitlam, at the hand over of land to the Gurindji people, August 16 1975.

[2] Milirrpum and others vs Nabalco Pty Ltd and the Commonwealth. Judgement: Justice Blackburn.

[3] 'The Black Prince. Our most powerful Aborigine' Heather Brown. The Australian Magazine December 8-9 1990.

[4] Woodward Second Report and 'Principles'.

[5] Minister for Aboriginal Affairs, Ian Viner. Second Reading Speech, Aboriginal Land Rights (Northern Territory) Act 4 June 1976.

[6] Ibid.
[7] Section 67 Aboriginal Land Rights (Northern Territory) Act 1976.

[8] Aboriginal Affairs Minister, Ian Viner. Article NT News. 1978.

[9] Annual Report Northern Land Council 2001-02.

[10] Section 67 Aboriginal Land Rights (Northern Territory) Act 1976.

[11] Media Release, Member for Lingiari, Warren Snowdon, 6 May 1999 (and numerous others).

[12] Ian Viner. Submission to the Reeves Review. 1997.

[13] The Reeves Review P 254.

[14] Report of the Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund 2001-2002.

[15] The Evatt Report 1996.

[16] Shiva Naipaul, 'Why the dreaming can never come back' The Australian April 13 1985.

[17] Noel Pearson: Ben Chifley Memorial Lecture 12 August 2000.

[18] Galarrwuy Yunupingu, The Australian Magazine December 8-9 1990.

[19] The Reeves Review.

[20] Woodward Royal Commission.

[21] ABA Annual Report 2001-02.

[22] Northern Land Council Annual Report 2001-02.

[23] The Reeves Review.

[24] Elisabeth Wynhausen: The West Australian 6-7 January 1996.

[25] Gumatj Association. Articles of Incorporation.

[26] Elisabeth Wynhausen: The West Australian 6-7 January 1996.

[27] Justice Toohey 'Seven Years On' 1985.

[28] Dr David Martin: Report to the Minister 1994.

[29] Ibid.

[30] The Reeves Review.

[31] Who's Who in Australia 2003. P 2195.

[32] NT Minister for Community Development and Minister Assisting the Chief Minister of Aboriginal Affairs, John Ah Kit. Speech to the NT Parliament 7 March 2002.

[33] Woodward Royal Commission.

[34] Australian National Audit Office Report No 20 1993-94.

[35]Australian National Audit Office Performance Audit Report 2002.

[36] Reeves Review.

[37] ATSIC/ABA Report 2001-02.

[38] 'Seven Years On' Justice Toohey 1985.

[39] Reeves Review .

[40] Submission to the Reeves Review by Pastor Paul Albrecht on behalf of Arrente people.

[41] Ibid.

[42] Ibid.

[43] Reeves Review.

[44] Noel Pearson 'The road less fellow travelled' The Australian 7 August 2002.

[45] Ibid.