Aboriginal land, native title and heritage

Contributed by RebeccaHughes, Michael O'Donnell and Charlotte Deans and current to 1 May 2016

The primary pieces of legislation regarding Aboriginal rights to land are the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALRA), and the Native Title Act 1993 (Cth) (NTA).

Other important legislation includes the Aboriginal Land Act (NT) regarding permits to enter Aboriginal land and the closure of seas within two kilometres of Aboriginal land, the grant of Aboriginal community living areas on cattle stations under the Pastoral Land Act (NT), and heritage protection under the Northern Territory Aboriginal Sacred Sites Act (NT) and the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth).

Traditional rights of access, hunting and fishing (for non-commercial purposes) are recognised in relation to pastoral leases under the Pastoral Land Act (NT), and in relation to the sea and rivers under the Fisheries Act (NT).

Aboriginal Land Rights (Northern Territory) Act 1976

The ALRA resulted from Australia's first native title case, the 1971 Gove Land Rights Case, which challenged a bauxite mine and refinery in north-east Arnhem Land (Milirrpum v Nabalco Pty Ltd [1972-73] ALR 65; (1971) 17 FLR 141). In that case, the NT Supreme Court rejected a claim for native title on the basis that it had never formed part of Australian common law but otherwise made findings including that the Yolngu clans laws and customs were recognisable as a system of law, being a 'subtle and elaborate system' which constituted 'a government of laws, and not of men'.

These findings provided the basis for a Royal Commission which in 1974 recommended land rights in the Northern Territory. The ALRA largely implements the Commission's recommendations, was introduced by the Whitlam Government in 1975, and was enacted by the Fraser Government in 1976. Litigation under the Act informed the High Court in relation to its 1992 Mabo decision (Mabo v Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR 1) which overruled Milirrpum and held that the common law recognises native title.

The main features of the ALRA include:

• upon enactment most existing Aboriginal reserves (eg Arnhem Land) automatically became Aboriginal land, being 'inalienable' freehold vested in Aboriginal Land Trusts (ie the freehold can be leased, but not sold, to developers);
• a process for claims to crown land and Aboriginal owned pastoral leases (outside towns);
• a requirement that development can only occur on Aboriginal land, or land subject to claim, with the consent of the traditional owners;
• the establishment of land councils to, among other functions, represent the interests of traditional owners of Aboriginal land, and protect sacred sites on any land;
• the provision of 30% of funds equivalent to mining royalties on Aboriginal land to traditional owners or Aboriginal persons affected by mining, with the remainder available to meet land councils' administrative costs or to fund projects benefiting Aborigines in the Northern Territory;
• Aboriginal land cannot be compulsorily acquired or forfeited under any Northern Territory law. Power to compulsorily acquire is vested in the responsible Commonwealth Minister under the Lands Acquisition Act 1989 (Cth), and during the Intervention, the Commonwealth compulsorily acquired 5 year leases over 65 Aboriginal communities under the Northern Territory National Emergency Response Act 2007 (Cth); and
• Northern Territory laws apply to Aboriginal land (eg criminal law), except where not capable of operating concurrently with the ALRA (eg compulsory acquisition law).

Land claims

The ALRA enables claims to unalienated or vacant crown land (outside town boundaries), or Aboriginal owned pastoral leases. Submerged crown land in bays and gulfs of the Northern Territory cannot be claimed (Risk v Northern Territory [2002] HCA 23; (2002) 210 CLR 392). Due to a sunset clause claims are only valid if lodged prior to 5 June 1997, meaning new claims cannot be lodged. Presently approximately 44% of the Northern Territory is Aboriginal land, with some claims not yet finalised.

Claims are heard by the Aboriginal Land Commissioner (a judge of the Federal Court or the NT Supreme Court), who inquires into whether 'traditional Aboriginal owners' exist and recommends as to a grant of Aboriginal land. A positive recommendation empowers the Commonwealth Minister to facilitate a grant.

'Traditional Aboriginal owners' are defined as a local descent group of Aborigines who have common spiritual affiliations to a site on the land that place the group under a primary spiritual responsibility for that site and for the land, and who have a traditional right to forage on the land.

The Commissioner also reports as to the strength of traditional attachment, the number of Aborigines who would be advantaged by a grant of Aboriginal land, any detriment to others which may result from a grant (e.g. in relation to a railway, pipeline or access for cattle), and the cost of acquiring any interests in the land proposed for grant. In practice, the Commonwealth Minister requires any detriment to be resolved by agreement between stakeholders on reasonable terms before granting Aboriginal land.

Land may also be scheduled as Aboriginal land (ordinarily with the agreement of the NT Government), without going through the claims process, by the Commonwealth Parliament through an amendment to the Act. The Commonwealth Government is not liable to pay any compensation to the NT Government regarding the grant of Crown land as freehold to Land Trusts.

Land councils

There are four land councils, each being a statutory authority comprised of Aboriginal persons representative of the land council region: Central Land Council (Central Australia), Northern Land Council (the Top End), Tiwi Land Council (Bathurst and Melville Islands) and Anindilyakwa Land Council (Groote Eylandte and Bickerton Island).

The functions of a land council include to:

• represent, and protect, the interests of traditional owners and other beneficiaries of Aboriginal land
• assist in the protection of sacred sites, whether or not on Aboriginal land
• facilitate legal representation in land claims
• ascertain the identity of traditional Aboriginal owners of Aboriginal land
• consult with traditional owners and other beneficiaries regarding development proposals, and where satisfied that traditional owners consent execute agreements
• receive lease and royalty payments, and distribute to traditional owners and beneficiaries
• assist Aborigines to engage in commercial activities.

A land council employs staff and may engage consultants to assist in the performance of functions. The Central and Northern Land Councils both employ over 100 staff.

Land trusts, leases and licences

A land trust holds title for the benefit of both traditional Aboriginal owners and other Aborigines who have traditional rights, including rights of entry, occupation and use whether or not those rights are qualified under Aboriginal tradition. A land trust must, and can only, act as directed by the responsible land council.

A land council can only direct the grant of a lease or licence by a land trust where satisfied that the traditional owners consent. The Commonwealth Minister's consent is required for leases greater than 40 years or those that have a value of greater than or equal to $1,000,000.

A lease or licence may authorise any activity other than mining, since Aboriginal land does not include minerals. For further information on mining, see sections below.

Pre-existing government occupation or use of Aboriginal land for a community purpose may continue after the grant of that land (for example, police stations, schools and other facilities). The ALRA also provides, where traditional owners consent, for the grant of 99-year head leases of communities on Aboriginal land to a government entity or community corporation which would take responsibility for the grant of development, housing and other sub-leases in the community.

Blue Mud Bay Case

In 2008 the High Court in the Blue Mud Bay Case (Northern Territory v Arnhem Land Aboriginal Land Trust [2008] HCA 29; (2001) 109 FCR 488) affirmed that Aboriginal land includes the intertidal zone and tidal waters. This means that a Northern Territory fishing licence does not authorise access and that either a permit under the Aboriginal Land Act or an agreement with the Land Trust is required to access or use the area. The High Court also determined that the Northern Territory Parliament when enacting the Fisheries Act had abolished the common law public right to fish.

Since then, the NT Government, land councils and traditional owners of intertidal zones have negotiated agreements to provide for access to recreational and commercial fishers.

Mining and Petroleum Production on Aboriginal Land

Exploration for and production of minerals and petroleum may only occur in the Northern Territory pursuant to a tenement granted in accordance with the Mineral Titles Act (NT) and Petroleum Act (NT) respectively. The grant of an exploration tenement on Aboriginal land is only valid where that grant complies with the Aboriginal Land Rights (Northern Territory) Act (Cth).

All minerals are vested in the Northern Territory Government except for uranium and other radioactive ores that are vested in the Commonwealth. Extractive minerals such as sand, gravel, clay and limestone that are located on Aboriginal Land are vested in the Aboriginal Land Trust.

The Northern Territory Government may only grant an exploration tenement where the Land Council and Commonwealth Minister have provided consent or where the Governor-General has, by proclamation, declared that the national interest requires the grant. At time of writing the Governor-General has never made such a proclamation.

The Land Council shall not consent to the grant of an exploration tenement unless it has, to the extent practicable, consulted with the traditional Aboriginal owners of the affected land and any affected Aboriginal community or group. Before providing consent to grant, the Land Council must be satisfied that the traditional Aboriginal owners understand the terms and conditions of grant and, as a group, consent to them. The Land Council must also reach agreement with the grantee party regarding the terms and conditions of grant and be satisfied that these terms and conditions are reasonable.

Once agreement is reached with the Land Council, the grantee party does not need further consent from the Land Council in relation to mining or the production of petroleum. However, a mining or production agreement must be negotiated, with arbitration where the terms cannot be agreed. Prior to 1987, further consent from the Land Council was required.

Exploration licences which predate a grant of Aboriginal land are valid. However, future mining can only occur by agreement with the land council with arbitration if the terms cannot be agreed. Mines which predate a grant of Aboriginal land, such as the bauxite mine challenged in Milirrpum, are valid, and there is no requirement that an agreement be negotiated or arbitrated. Nevertheless, in 2011, traditional owners, the NLC and Rio Tinto entered into a landmark agreement in respect of that same mine.

Permits to enter Aboriginal land

Under the Aboriginal Land Act 1978 (NT) it is an offence to enter or remain on Aboriginal land without a permit. Permits are issued by land councils, and may also be issued in writing by relevant traditional owners. The NT Minister may issue permits to government employees requiring access.

A permit is not required for entry to a lease or interest in Aboriginal land where for a purpose necessary or related to the use of that lease or interest, or for access to a lease or interest by the owner across Aboriginal land by an agreed or arbitrated route. Further, government officials, politicians and Commonwealth or Northern Territory officers do not require a permit for entry to Aboriginal land.

Native Title Act 1993

In 1992 the High Court delivered its historic judgment in Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 ("Mabo") which overruled Milirrpum and held that the common law recognises a form of native title, subject to any extinguishment arising from legislation or executive action (e.g. a grant of freehold).

The court held that the Meriam People had rights of possession, occupation, use, and enjoyment of land 'as against the whole world' - the effect being that the Meriam People communally own their land (Brennan J in Mabo at 76).

The nature and content of native title is determined by reference to the traditional rights and interests recognised under the traditional laws and customs of an Aboriginal/Islander group, and may be comprised of exclusive possession rights (as in Mabo) or non-exclusive rights (such as to hunt, fish, or hold ceremonies).

The Mabo decision constituted a revolution in Australian property law. Subsequent key decisions include:

• In Wik Peoples v Queensland (1996) 187 CLR 1 the High Court held that non-exclusive native title may coexist with pastoral leases, since leases of this kind do not grant exclusive possession. Likewise non-exclusive native title may coexist with mining leases (Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1). In each case the exercise of native title rights must yield to the exercise of rights under the lease.
• In Commonwealth v Yarmirr (2001) the High Court held that native title may exist in the seas. The native title is subject to public rights of fishing and navigation, and thus is non-exclusive. In Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351 the High Court held that a native title right to hunt crocodiles for subsistence purposes provided a defence to a charge of killing a crocodile without a permit. The native title right had not been extinguished by Queensland conservation laws despite a declaration that such fauna were 'the property of the Crown'.
• In Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422 the High Court held that while traditional laws and customs may undergo significant adaptation, a substantial interruption in the acknowledgement and observance of those laws and customs will mean that native title ceases to exist. The native title cannot subsequently be revived, since only rights grounded in laws and customs which predate sovereignty are recognised by the common law.
• In Leo Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia [2013] HCA 33, the High Court found that native title rights and interests could comprise a right to access resources and take for any purpose resources in the native title claim area, in particular this was the first recognition that commercial fishing rights could comprise a native title right.
• In Western Australia v Brown [2014] HCA 8 ("Brown"), the High Court unanimously found that the rights under two mineral leases (granted pre-1975) were not inconsistent with the claimed native title rights and interests and hence native title was not extinguished. The case confirmed that inconsistency (and hence extinguishment) is determined by examining the nature and content of the two sets of rights at the time of grant, not by the manner in which either right is exercised. Brown also had the effect of overturning aspects of the De Rose decision (De Rose v South Australia (No 2) [2005] FCFCA 110) by finding that native title is not extinguished by improvements on pastoral leases.

The Commonwealth Government response to the Mabo decision was to enact the Native Title Act 1993 (NTA). The Act was significantly amended in 1998.

The main features of the NTA include:

• The validation of Crown grants prior to 1994 which were invalid due to the existence of native title and the operation of the Racial Discrimination Act 1975 (Cth) which precludes discrimination (this Act reverses the common law position that grants made in a discriminatory fashion extinguish native title). The 1998 amendments responded to the 1996 Wik case by extending the validation regime to cover grants which were invalid due to the incorrect assumption that pastoral leases totally extinguish native title.
• Procedures to ensure that Aboriginal/Islander groups have the same procedural protection regarding acts which affect native title as do other land owners regarding their property. For compulsory acquisition this protection involves notification, objection and a hearing before the Lands and Mining Tribunal (unlike the situation in respect of Aboriginal land, the NT Government may compulsorily acquire native title).
• The provision of a statutory 'right to negotiate' to native title holders and registered claimants regarding developments which concern mining or compulsory acquisition of native title (other than within towns or in relation to major infrastructure), with mediation and arbitration by the National Native Title Tribunal if agreement cannot be reached.
• Empowering State and Territory Parliaments to replace the 'right to negotiate' with State/Territory laws, provided that Commonwealth requirements are satisfied (known as a s 43A scheme). In 1999 the Senate disallowed such Territory laws, meaning that the 'right to negotiate' continues to apply in the Northern Territory. Presently there is no s 43A scheme operating in Australia.
• A process for native title claims which are heard by the Federal Court after mediation before the Tribunal, with a claims registration process conducted by the Native Title Registrar (claims must be registered to attract procedural protection and negotiating rights).
• Provisions which reverse common law extinguishment of native title in certain circumstances, including where vacant crown land is occupied by claimants [NTA s.47B] and in relation to land owned by or on behalf of Aboriginal interests under a statutory scheme [NTA s. 47A] (for example, Aboriginal land under the Land Rights Act).
• The establishment of prescribed bodies corporate as trustee or agent for native title holders once native title is determined to exist.
• The establishment of native title representative bodies to facilitate legal representation regarding native title claims, development agreements, and related functions. The Central and Northern Land Councils are the native title representative bodies for the Northern Territory.
• A process for development agreements, known as Indigenous Land Use Agreements, which are registered by the Native Title Registrar after an objection process.
• A right to apply for a determination of compensation for an act or acts that affect native title. At time of writing only one such successful compensation determination has been made (De Rose v State of South Australia [2013] FCA 988), however the final award of compensation in this matter was settled between the parties and the quantum kept confidential, limiting its use as a precedent for other claims. Also at time of writing, another compensation application (Griffiths v NTG & Ors (NTD 18 of 2011)) is before the Federal Court in the Northern Territory, which when handed down will be the first case in which judicial findings on the calculation of compensation for native title will be made.

The High Court's resolution of major legal issues, and the statutory emphasis on agreed outcomes, means that there have been many negotiated settlements regarding both claims and development proposals (for example, the Alice Springs to Darwin Railway). In every mainland state there have been consent determinations that native title exists without the necessity for a court hearing. There have been close to 80 such determinations by consent in the Northern Territory at the time of writing.

Indigenous Heritage Protection

In addition to the general protection which derives from grants or determinations under the ALRA and NTA, Aboriginal heritage may be protected under specific Commonwealth and Northern Territory legislation.

The Northern Territory Aboriginal Sacred Sites Act (NT) established the Aboriginal Areas Protection Authority which maintains a register of sites which are sacred to Aboriginal people. It is an offence to enter, remain on, or desecrate a sacred site (regardless of whether registered), with maximum penalties of a $10,000 fine or 12 months imprisonment for an individual and a $20,000 fine for a corporation. The Act contains a process whereby the Authority may issue a certificate authorising development where satisfied that it can proceed without damage or interference to a sacred site, or where an agreement has been reached with Aboriginal custodians. The Minister may override any refusal by the Authority to grant a certificate.

The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) applies where NT laws (or State laws) or actions under those laws, in the opinion of the Commonwealth Minister for Indigenous Affairs, have not adequately protected sites and objects of particular significance to Aborigines under Aboriginal tradition. The Commonwealth Minister by declaration may protect such sites or objects. In 1992 a declaration protected sites on the Todd River at Alice Springs, thus preventing the construction of a dam.

Formerly, Aboriginal sites could be nominated for inclusion on the Register of the National Estate under the Australian Heritage Commission Act 1975 (Cth) (repealed). However, the Register was closed in 2007, and the protection of heritage places for which the Australian Government is responsible continues under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The export of Aboriginal heritage is controlled by the Protection of Movable Cultural Heritage Act 1986 (Cth) and provides that certain Aboriginal and Torres Strait Islander objects cannot be exported.