by Frank McKeown, AIATSIS
In this paper I wish to compare three aspects of land rights in
the Northern Territory and Queensland (1). The first aspect is
the history of land rights in the two regions which explain some
of the differences between the current legislative frameworks.
Under this heading I also wish to highlight the continuity in
approach of successive conservative and labour governments in
Queensland. The second aspect I wish to compare is the way in
which the legislation was introduced. The resulting contrast I
believe is a measure of the Queensland government's commitment to
non Aboriginal interests. The third aspect I wish to compare is
the legislation itself highlighting not only the differences but
also some of the more obvious problems with the Queensland Act.
1.HISTORY OF LAND RIGHTS IN QUEENSLAND AND THE NORTHERN TERRITORY
The most significant difference in relation to the history of land
rights in the two regions is that the issue of land rights in the
Northern Territory has remained substantially the responsibility
of the Federal Government (Anderson 1988:71). There is otherwise
little to distinguish the approaches of the Queensland and
Northern Territory governments. The two regions have a similar
history of invasion and dispossession punctuated by massacres and
the subsequent establishment of reserves and missions so as to
isolate the remnants from the rest of the population. (See
generally Rowley 1972a, Evans 1977, Fitzgerald 1984 and Anderson
1988). Both regions have also generated more recent examples of
dispossession by mining (Yirrkala and Mapoon) that have become
cause celebre for the land rights movement. (See Mckeown 1976 and
Wells 1982 on Yirrkala, Roberts 1974-75 and Stevens 1969 on Mapoon
and Rowley 1972b on both ). However the rate and extent to which
dispossession occurred was much greater in Queensland. The
frontier in Queensland probably reached its absolute limit by the
turn of the century leaving perhaps a few isolated spots on the
Cape beyond the control of the colonial government (Evans 1977).
Whereas in the Northern Territory certain parts of Arnhem Land
were still being brought under control in the 1930s as evidenced
by the famous Caledon Bay killings (Thomson 1983). It is also
reflected in the size of the Aboriginal Reserves and Vacant Crown
Land (VCL) at the time of the passing of the legislation in the
two regions. In 1976 Aboriginal reserves in the Northern Territory
totaled 258000 square kilometres and VCL 250000 square kilometres
(Neate 1989:351). In 1991 Queensland reserves amounted to 30462
square kilometres or almost nine times smaller in size from those
in the Northern Territory and VCL 3500 square kilometres or over
seventy times less than in the Northern Territory (Fitzgerald
1984:542). The comparison is even more stark if you include the
fact that both the land mass and Aboriginal population is greater
in Queensland (2). There has been a history of considerable
agitation for land rights in both regions by Aborigines and their
supporters and a number of similar legal challenges have been
mounted in both areas (the Gove land rights case and the Ranger
case in the N.T.
-see Woodward 1974,Mckeown 1976, Williams 1983, 1986, Maddock
1980, 1983, Neate 1989, Powell 1988 and the Coe and Mabo cases in
Queensland -see Fitzgerald 1984 and Aboriginal Law Bulletin 1991).
However Land rights legislation was introduced into the Northern
Territory some fifteen years earlier. Clearly the most influential
factor has been that the federal government has been largely
unconstrained by a state government in introducing the
legislation. The Northern Territory did not obtain self
government till 1978 a year after the federal government passed
the Aboriginal land rights (Northern Territory) Act and was
granted powers considerably less than those of a state
government (Heatley 1990:113). The conservative Country liberal
party government was bitterly opposed to the federal legislation
and has not ceased campaigning to have it patriated to the
Northern Territory (Heatley 1990:129-130). The federal government
also sought to introduce land rights in Queensland at about the
same time but had to contend with much more powerful opposition
from the state government. The National Party government was
implacably opposed to any federal initiatives and successfully
defeated a number of attempts by the federal government to
override state powers (Fitzgerald 1984:538, Anderson 1988:76). In
1978 the federal government introduced legislation to transfer the
Aboriginal reserves of Aurukun and Mornington Island to Aboriginal
freehold. The Queensland government replied with legislation of
its own converting the Aurukun and Mornington Island reserves into
shires and thereby removing them from the province of federal
legislation. Another celebrated case of Queensland government
obfuscation, and all the more tragic with the recent death of the
senior man, is the battle for Archer Bend. The federal government
sought to purchase this pastoral property on behalf of its
Aboriginal owners only for the state government to declare it a
national park (Fitzgerald 1984:538). The Queensland government
pursued a general policy of assimilation and viewed land rights
as a form of apartheid and an impediment to economic development
(Bennett 1989:27-28, Fitzgerald 1984:521-522, Anderson
1988:75-76), whereas the federal labour and liberal governments of
the seventies were committed to policies of Aboriginal self
determination and self management and viewed land rights as an
important expression of these policies (Bennett 1989:23- 26,31)
(3). The Queensland government, under both federal and internal
pressure finally repealed the infamous Queensland Acts in 1982
and replaced them with the Deed Of Grant In Trust (DOGIT)
legislation which provided perpetual term leases to some former
reserve lands (country reserves were excluded ) and vested the
titles in community councils (Fitzgerald 1984:537, Anderson
1988:76-80). The federal government about the same time as the
Queensland government was enacting its DOGIT legislation proposed
to introduce land rights legislation nationally but due to a
combination of a number of factors including Aboriginal opposition
to the proposed model and a fear of electoral backlash this
initiative was eventually shelved(Bennett 1989:35-37, Altman
1991:8, Anderson 1988:71-72). Queensland Aborigines were to wait
another nine years to receive freehold title to some of their
lands.
2. PROCESS FOR ESTABLISHING THE LEGISLATION : ALRA 1976 AND ALA
1991 There can be no greater contrast between the manner in which
the respective governments set about to establish land rights
legislation in the two regions. In summary the N.T. legislation
was preceded by a lengthy formal inquiry and considerable public
and parliamentary consultation and debate whereas the Queensland
legislation was the product of confidential cabinet discussions
advised by a working party operating in secret, with little public
or parliamentary debate and virtually no consultation of
Queensland's Aborigines. In 1973 the federal labour government
established the Aboriginal Land Rights Commission to examine ways
for the implementation of land rights in the Northern Territory.
The inquiry was also known as the Woodward Commission after its
head Mr Justice Woodward who had been appointed to the federal
court specially for this purpose and who had previously when a
Queens Counsel acted as senior counsel for the Yirrkala Aborigines
in the Gove land rights case. Woodward was therefore eminently
qualified to advise on how Aboriginal land rights, which Mr
Justice Blackburn found in the Gove case could not be recognised
under common law, could be recognised through legislation. The
Woodward Commission ran for approximately fifteen months and
received more than one hundred written submissions including
submissions from the Northern and Central Land Councils which had
been specifically established for this purpose. The Commission
also held public hearings in all the major centres in the Northern
Territory as well as in over thirty Aboriginal communities.
Woodward published his first report after six months and
circulated 2500 copies (Woodward 1973). His final report was
published nine months later in April 1974 and included draft
legislation, which in a somewhat modified form was passed by
federal parliament in January 1977 (Woodward 1975). In Queensland
the process was a much quicker and much less public affair. It
seems that the preparation of confidential departmental
submissions began sometime in mid to late 1990 but did not become
public til February 1991 with the tabling of a Department of
Family Services, Aboriginal and Islander Affairs (DAIA) submission
to the Fraser Island Inquiry conducted by Tony Fitzgerald.
According to press reports DAIA argued in a written submission to
the Inquiry that any management strategies for Fraser island must
take account of the claims of prior Aboriginal occupation and
ownership (Courier Mail, February 14, 1991). At first this led to
denials by the premier Wayne Goss of any intention on the part of
his government to introduce land rights legislation and to his
Aboriginal Affairs minister Ann Warner distancing herself from her
own department's submission. However a week later and in a
dramatic about face on the matter premier Goss announced that his
government proposed to introduce land rights legislation before
the end of the year. Following this announcement a working party
was established of officials from various departments under the
leadership of the newly appointed Director General of the Cabinet
Office, Kevin Rudd (4). This working party worked in secret for
several months preparing the draft legislation and consultation
with Aboriginal people was limited to one or two day trips by the
premier by air to the Cape (CYLC 1991a)(5). No attempt was made
to hold public hearings or to solicit oral or written comments on
the proposed legislation (6). The draft bill was briefly debated
in caucus but despite proposals for amendment by sympathetic
backbenchers led by Matt Foley the bill was put unchanged to
parliament and rushed through unamended in one sitting. The
politics of pragmatism, now surely the hallmark of the labour
party, were apparently the order of the day. It seems that Goss
was fearful of an electoral backlash if the debate over land
rights became too public or too prolonged. Indeed given their
limited circumstances the conservative political leaders still
managed to provide the media with some good copy. Cooper the
leader of the National party claimed for example that
Queenslanders could fear the emergence of a black state or a
system of apartheid as a result of labour government legislation
(Courier Mail February 22, 1991). Not to be outdone the liberal
leader warned that the Gold Coast would be endangered by the
labour government proposals (ibid). It is therefore ironic that
it was the same conservative leaders, after the tabling of a piece
of land rights legislation that had the approval of mining and
pastoral interests, who criticised the labour premier for creating
false and unfulfilled hopes of significant land rights in the
Queensland Aboriginal population (Courier Mail May 20, 1991).
3. THE LEGISLATION : THE ABORIGINAL LAND RIGHTS (N.T.) ACT 1976
(ALRA) AND THE ABORIGINAL LAND ACT 1991 (ALA) The two pieces of
legislation contain several similarities and differences but on
the whole the Queensland legislation (ALA) is somewhat weaker than
the NT legislation (ALRA) in terms of Aboriginal powers of
decision making and, as has already been observed by Fr Frank
Brennan in a recent commentary on the Act, the ALA is
characterised by an extra- ordinary level of discretionary power
in the hands of government (1991b:7). Inalienable Title First the
similarities. All reserve lands (DOGITS, Country Reserves and the
Shires of Mornington Island and Aurukun) are to become Aboriginal
land under inalienable freehold title as a result of the passing
of the Act (section 2.06). But unlike in the NT this does not
occur upon proclamation of the Act (which at the time of writing
in late October has yet to occur). Under the ALA these lands do
not become Aboriginal land until a deed of grant has been issued
by the minister and this cannot be done until the minister has
consulted those Aborigines with traditional,historical,
residential and economic connections with the land, obtained a
commitment from them in relation to their responsibility for the
land and has appointed trustees to hold the title (sections 3.01,
3.02 and 3.05). It is unclear from the legislation how the
minister (even which minister responsible is left undefined ) will
go about the process of identification of the Aborigines
particularly concerned with the land nor how comprehensive the
identification will be (7). In the absence of the provision of a
statutory body such as an Aboriginal land council it is likely
that this potentially time consuming task of identification will
fall to a government department presumably DAIA (8). In the NT
all reserve land automatically became Aboriginal land with the
passing of the ALRA in 1977. It then became the job of the land
councils to identify the traditional Aboriginal owners for
various purposes under the Act. If this somewhat onerous task is
in the Queensland context to be carried out by government
bureaucrats then it is highly likely that questions of
impartiality and conflict of interests will arise. I return to
this point later. Land Management A provision of the ALRA
regrettably copied in the ALA is the one protecting commercial
agreements from being declared invalid as the result of lack of
consultation (9). Both Acts have consultation provisions which
require that Aborigines with a particular interest in the land
must be consulted prior to any commercial agreement being reached,
but such agreements cannot later be invalidated even if it can be
shown that there was insufficient or inadequate consultation
(sections 3.11(6) and
5.13(7)) . This similarity raises another which is all the more
surprising in the light of the Queensland government's arguments
for refusing to legislate for statutory land councils. Goss has
been quite vehement in his rejection of Territory style land
councils claiming that they are 'neo-paternalistic ' (sic) (Goss
1991:6). Goss intends to avoid the domination of local Aboriginal
interests by centralised and unwieldy Aboriginal bureaucracies,
but not only does his legislation continue the National party
pattern of dependence on the more centralised and less accountable
government bureaucracies but it also creates an intermediate
category of Aborigines, the as yet undefined grantees who on
behalf of the Aboriginal people with a particular interest in the
land enter into agreements with others (sections 3.11 and 5.13),
and it is the decisions of these grantees, like those of the land
council in the Northern Territory, which cannot be set aside due
to lack of consultation with the Aboriginal people they are
supposed to represent. This critical category of Aboriginal
decision makers is a some what elusive one in terms of the
provisions of the Act. The term is no where defined in the Act,
nor even their number given. The grantees for a particular land
grant are to be selected by the minister, after consultation with
those Aboriginal people particularly concerned with the land, and
the minister 's discretion is fettered only by a requirement that
the minister act in a way consistent with Aboriginal tradition
(sections 3.02 and 5.03). The land management provisions of the
ALA permit the grantees to negotiate leases or licences over
Aboriginal land for a term not exceeding 10 years or longer with
the written consent of the minister (sections 3.11 and 5.13).
This statutory authority of the grantees includes the power to
consent to the creation of a mining interest in the granted
Aboriginal land (sections 3.11(2)(b) and 5.13(2)(b)) , but the Act
provides no framework for negotiation apart from a solitary
provision that urges, but does not make mandatory, that
prospective miners negotiate voluntary access agreements (section
7.01(6)) (10). What is of greatest concern is that no provision
is made in the ALA for the supply of independent advice to the
grantees or those they represent. The grantees are empowered to
enter into commercial agreements affecting Aboriginal land and are
required to consult and inform those Aboriginal people who they
represent and who are particularly affected by such agreements,
but no provision has been made for assisting them in carrying out
these responsibilities. A significant part of the resources of
the Northern Territory land councils is spent providing expert
advice and consultations in relation to land management issues
(11). It is obvious that the Goss government expects the grantees
to rely upon departmental advice and assistance. The integrity of
this paternalistic arrangement must surely be jeopardised whenever
grantees of a particular land grant seek advice concerning an
agreement that involves the government . The Act has ensured that
this potential conflict of interest will occur by specifying that
grantees can only negotiate with government in relation to the
sale of forest and quarry materials on Aboriginal land (sections
3.11(4) and 5.13(5)), and if the Northern Land Council's
experience is anything to go by, grantees will also often be
negotiating with government for commercial agreements over other
issues (12). In relation to mining matters the Act does little
more than confirm the status quo with a simple affirmation of the
application of the Mineral Resources Act 1989 to any mining
related matters on Aboriginal land (section 7.01). Under its
granting provisions the ALA (sections 3.14 and 5.17) reserves all
minerals and petroleum to the crown, removing any basis for
Aboriginal ownership or control of mineral and gas development on
Aboriginal land. Grantees will receive an unspecified percentage
of government royalties arising from mining on Aboriginal land but
it is unclear how it will be distributed. The Act simply directs
that the royalties be applied by the grantees
for the benefit of the Aboriginal people for whose benefit they
hold the land, particularly those that are affected by the
activities to which the royalty relates' (section 7.02(2)).
The grantees are required to carry out this task but are not
provided with any administrative resources to do so. The lesson
from the Northern Territory is that the division of royalties is
one of the most complex and conflict ridden tasks of the land
councils (Kesteven 1983:358-384; Altman 1983:100-105, 1984:202-
206). It is difficult to envisage how government appointed
representatives will be able to easily or equitably distribute
these resources. It is most likely that the government
bureaucracy will have a major role to play here in addition to its
explicitly stated role under section 7.02(3). According to this
section the head of an unspecified department will receive an
unspecified percentage of government royalties which is to be
applied 'for the benefit of the Aboriginal people of Queensland.'
The departmental head's discretion is unfettered as to how this
money is to be spent. Land Claims A number of similarities can
be found in the provisions governing land claims, but the ALA
provisions are distinguished by a much greater level of government
discretion. Vacant or unalienated crown land (VCL) is available
for claim, but unlike in the Northern Territory where a land
council can lodge a claim on any land it believes to be VCL, in
Queensland the land must first be gazetted by the Governor-
in-Council (section 2.12) (13). The CYLC has expressed what must
surely be recognised as a legitimate concern that by this device
of gazzettal the government rather than prospective Aboriginal
claimants will be able to set the priorities on what areas of land
should be claimed (CYLC 1991a:22-27). There is also the worry
that various interests both within and outside government will
seek to influence what VCL is to be gazetted or worse what areas
that will be allowed to remain VCL. Lists of areas and types of
land exempted from the claim provisions are similar in the two
Acts and include areas of former reserve land now subject to
mining agreements (section 2.13). The ALA specifically mentions a
number of mining agreements including those affecting Mapoon and
Weipa (section 1.03). Both Acts also contain time limits on
lodging claims -ten years in the Northern Territory and fifteen
years in Queensland (section 4.05) (14). Land claims under both
pieces of legislation must be made by lodging a written
application with a land claim tribunal which after considering the
application is required to make a recommendation to the minister.
The minister has absolute discretion to accept or reject the
tribunal's recommendation (section 5.01).It is a pity the
Queensland government which in general has been highly critical
of the NT legislation did not take the opportunity to improve on
this area in the way recommended by Seaman in his report to the
Western Australian government. Seaman proposed that the tribunal
hearing the claim should also decide rather than simply recommend
its outcome (1984:44). One of the major flaws in the NT system is
the time which it takes to obtain title and while a number of
factors undoubtedly contribute to the delay not least the
litigiousness of the NT government, there is typically a
significant time lag between tribunal recommendation and
ministerial decision. For example the recommendations in relation
to the Finniss River Land Claim were submitted by the Aboriginal
land Commissioner to the Federal Minister in May 1981. The
successful claimants did not receive title til some ten years
later in early 1991. Land Ownership and the Bases for Claiming
Land The two Acts contain several differences and while in general
terms the Queensland Act affords fewer and weaker rights to
Aborigines it does improve on the NT Act in some areas. A major
positive change over the NT Act is the broadening of the
definition of ownership. Under the land management provisions
persons to be consulted are described as those Aboriginal people
particularly concerned with the land (sections 3.11 and 5.13).
Elsewhere in the Act these people are defined as being either
members of a group that has a particular connection with the
land under Aboriginal tradition; or they live on or use the
land or neighbouring land (section 1.04). This contrasts quite
sharply with the consultation provisions of the ALRA which focus
on traditional Aboriginal owners narrowly defined according to a
principle of descent and traditional spiritual connections with
the land. The land claim provisions of the ALA further expand the
basis for recognising affiliations to land by providing three
grounds for making a claim,that is on the grounds of 1.
traditional affiliation, 2. historical association or 3. economic
and cultural viability (section 4.03).
1.TRADITIONAL AFFILIATION In order for a claim of traditional
affiliation to be successfully made the members of the claimant
group must establish that they
have a common connection with the land based on spiritual and
other associations with, rights in relation to, and
responsibilities for, the land under Aboriginal tradition
(section 4.09).
This basis for claim contains certain similarities with the only
one allowed under the ALRA. Both Acts require that the claimants
be members of a group but in the Northern Territory the group must
be defined by reference to a particular locality and by a
principle of descent. Both of these elements are absent in the
Queensland Act. The ALA also specifically recognises that a group
can be composed of a membership of one (section 1.03), something
which various land commissioners have ruled is not possible under
the ALRA (Aboriginal Land Commissioner 1981a:34, 1991:117. See
also Keen 1984 for a commentary on this aspect of Northern
Territory land claims). Under both Acts the members of the
claimant group must have a common spiritual connection or
affiliation to the land and responsibility for that land but
absent from the ALA is the NT requirement that the claimants must
demonstrate a primacy of such responsibility or connection. And
again while both Acts refer to the rights of the members of the
claimant group the ALA does not contain the specific reference of
the ALRA to foraging rights.
2.HISTORICAL ASSOCIATION A claim on this basis will be successful
if members of the claimant group can establish
that the group has an association with the land based on them
or their ancestors having, for a substantial period, lived on
or used- (a) the land ; or (b) land in the
district or region in which the land is located (section
4.10). This basis for claim, absent from the NT system, is
otherwise undefined. Presumably we will have to await the hearing
of the first claim made on this basis to learn for example what
constitutes a "substantial period".
3. ECONOMIC OR CULTURAL VIABILITY A claim on this basis under the
ALA will be successfully made if members of the claimant group can
establish
that granting the claim would assist in restoring,
maintaining or enhancing the capacity for self-development, and
the self-reliance and cultural integrity, of the group (section
4.11).
A claim on the grounds of cultural and economic viability can be
made to VCL but not to a national park (section 4.03(2)). If
successful claimants will be granted either a fixed term or a
perpetual lease , whereas a claim successfully made out under
either of the other two grounds result in the grant of an
inalienable freehold title (section 4.16(1)). This third basis
for claim is the one that most resembles the provision for needs
based claims recommended by Woodward and included by the Whitlam
labour government in its draft Northern Territory land rights
bill, only to be dropped by the Fraser liberal government prior to
enacting the ALRA (Woodward 1975:170). This along with the
provision for claims based on historical association represents a
marked improvement on the land claim provisions of the ALRA as
they greatly expand the possible types of claimant groups. More
is the pity therefore that so little land is available for claim
in Queensland. While a positive development over the narrow
Northern Territory model the ALA model of land claims may also
give rise to conflict between competing groups of claimants. For
example the ALA does not specify the type of traditional
affiliation needed to make a claim on this basis. It is therefore
possible for two or more groups to present claims to the same
piece of land on the basis of different types of traditional
affiliation. For example one group may claim the land on the
basis of say ceremonial connections while another group may claim
the land on the basis of clan ownership. A further possible
complication may be that those claimants with ceremonial
connections may be resident on or near the claim area and actively
engaged in looking after the country while those claimants
claiming the land as their clan country may otherwise be
physically remote from the claim area. My hypothetical situation
may never arise (though it did in the Northern Territory-see
Aboriginal Land Commissioner 1981b) or alternatively if it did it
may well be quickly settled by the land tribunal in conference
with knowledgeable local Aborigines as it is required to do in any
case in the course of hearing the claim (section 4.09(2)). A more
likely conflict is one between completing claims of historical
association. Trigger (1983) in a paper to an Australian Institute
of Aboriginal Studies conference on Aboriginal land rights in 1981
suggests that the two most likely bases for a claim on the ground
of historical association in Queensland would be that the claimed
land was country the claimants were removed FROM or that it was
country the claimants were removed TO. Given the great deal of
movement of Queensland Aborigines by government and missions (cf
Rowley 1972b:177) the probability of both sets of claimants
emerging for the same piece of land would seem quite high. The
ALA does avoid some competition of different types of claim by
specifying a hierarchy of types, traditional affiliation first
then historical association and lastly economic and cultural
viability. Claimants are able to present their claim on one or
all three grounds but if there is more than one claimant group
based on different grounds then the tribunal will apply this
hierarchy in formulating its recommendations (section 4.17(2)).
It of course applies only if the claim is successfully made out
therefore making it possible for a claimant group on the grounds
of say historical association getting the tribunal's
recommendation where another group failed to successfully make out
their claim on the ground of traditional affiliation. The
possibility for conflict between competing groups of claimants is
further compounded by the fact that former reserve land including
DOGIT areas are also claimable under the ALA (section 2.12(1)(b))
(15). It is unclear to me why the Queensland government included
this provision (16). It is possibly connected with that
government's opposition to statutory land councils which under the
ALRA have the function of identifying traditional Aboriginal
owners of former reserve land and thereby seeks to provide
Queensland Aborigines with an alternative to government
departments determining which Aborigines are particularly
associated with the land. Another disappointing aspect of the ALA
is the way it deals with land claims over national parks. Under
section 2.18 national parks may be claimed but will be granted
only on the condition that they are automatically leased back as a
national park on a perpetual lease (section 5.20(1)(a)). Under the
Act (section 6.02) the government would seem not to be liable for
any payment of consideration under the lease and Goss has
announced that his government will only consider paying a pepper
corn rent (Goss 1991:9, Brennan 1991a:11). The claimants will be
given representation on the board of management but receive no
guarantees that they will have a majority or even joint management
status on the board (section 5.20(3)). The Director of National
Parks in determining a plan of management for the Park is required
to consider the views of the Aboriginal claimants and must not
include anything that is contrary to Aboriginal tradition
(sections 5.20(4), (5) and(6)). Given the apparent opposition to
Aboriginal occupation or even hunting and foraging in national
parks in some quarters of the conservation movement in Queensland
it will be interesting to see whether management plans are
produced that acknowledge contemporary Aboriginal tradition of
hunting and foraging which include the use of toyotas and guns.
Land Claim Tribunal The land claim tribunal under the ALA seems to
be in general somewhat of an improvement on the Northern Territory
scheme. There has been an attempt to make the tribunal more
informal and less legalistic, and conciliatory rather than
adversarial. The tribunal will be chaired by a barrister or
solicitor of seven years standing (section 8.03(1)) (in the
Northern Territory it must be a judge of the supreme or federal
court) who will either sit alone or together with two other
members of the tribunal (section 8.13). The category of persons
from whom these additional tribunal members may be drawn seems
unnecessarily broad and while it allows for the obvious choices of
Aborigines and anthropologists others such as industrialists,
businessmen, public servants, unionists, or even medical doctors
or dentists could conceivably be selected (section 8.03(2)).
Claimant groups and others appearing before the tribunal are not
permitted to be represented by legal counsel (section 8.19) and
while this will undoubtedly make the process less legalistic and
probably a lot cheaper it may well hamper the ability of some
parties to present their case to the tribunal and in particular
that of Aboriginal claimants who will have to interpret both the
legislation and any future practice directions issued by the
tribunal in putting forward their claim. However in what
undoubtedly must be regarded as a major improvement over the NT
system the ALA does specifically allow the tribunal to make its
recommendation to the minister, without going through an expensive
and demanding hearing, based on an agreement reached at a
conference of the parties prior to the hearing (section 8.21).
FUTURE PROSPECTS
The Goss government clearly intends that its land rights
legislation be implemented by government departments and has
recently advertised no less than twenty-one positions in the DAIA
for this purpose (see appendix one). It is likely that as many as
four departments (DAIA, Department of Mines and Energy, Lands and
Conservation) will be involved in the implementation of various
aspects of the legislation. For example it has been suggested that
it will be the ministry of Lands that considers any
recommendations concerning land claims. The number of land
councils have proliferated in Queensland since Goss's announcement
on the introduction of land rights legislation. In the month
following the announcement FAIRA Coordinator Bob Weatherall
announced the formation of the Queensland Federation of Land
Councils representing more than forty local land councils (Courier
Mail March 23,1991). However Goss has refused to include land
councils in his legislation or to fund their activities though he
has been prepared to meet with them, and in particular with the
Cape York Land Council (CYLC), on occasion. Land councils remain
dependent on the federal government for funding and in the light
of the Hawke government's commitment to the so- called "New
Federalism" it is unlikely that adequate funding can be obtained
in this way (17). However whether it be poorly funded land
councils or government departments who implement the Act, in the
area of land claims it is hard to see how much can be achieved
with so little land available for claim. A much more effective
strategy in getting land but one which the former National party
so vigorously opposed would be the purchase of land. On one
estimate fifty million dollars would buy the Cape and if the
number of calls made to the Cairns office of ATSIC every week is
any indication most of it is for sale. One can only hope that the
recent decision of the Northern Territory Aboriginal Benefit Trust
Account to spend sixteen million dollars to purchase pastoral
properties in the NT will be matched by ATSIC in places like
Queensland.
CONCLUSION
Queensland land rights has been a long time coming and despite its
delivery by a labour government it has all the hallmarks of the
parochialism and paternalism that characterised the policies of
the previous national government. In summary Goss's land rights
reflect the same fundamental commitment of his national party
predecessors to economic development so well characterised by
Fitzgerald in his history of Queensland. Land rights, says Goss,
is of emotional rather than economic significance in Queensland
and he is determined not to allow any moral commitment to land
rights to fetter the economic development of his state. Thus no
land councils, no mining veto, no royalty equivalents, no fund for
purchasing land and land grants restricted to 2.9 per cent of the
state. Little wonder then that the ALA drew no criticism from the
old opponents of land rights, the miners or pastoralists.
FOOTNOTES
1. Two days after arriving at the Institute to take up a three
year research fellowship I was asked to give a paper a few weeks
hence in the seminar series hosted by the Institute. A late
withdrawal by the Federal Minister for Aboriginal Affairs had left
a blank spot in the seminar program and I was called upon to say
something about how the Northern Land Council (NLC) in the
Northern Territory processes requests. The person organising the
seminar series had no doubt learnt that I had until recently been
employed by the NLC and probably thought that such a topic would
not represent too great a difficulty despite the short notice.
However I had arrived in Canberra via Brisbane where I had spent
six months teaching at Griffith University, and had been exposed
to the excitement and controversy surrounding the proposed land
rights legislation. The state premier, Wayne Goss, had made it
quite clear in a number of press releases and speeches that his
government had rejected the land rights legislation in the
Northern Territory as a model for Queensland. It therefore seemed
apposite that I give a paper comparing the two regimes and at the
same time at least obliquely refer to the topic as originally
proposed. (2). 61,268 Aborigines and 17.3 million square
kilometres in Queensland and 34,739 Aborigines and 13.5 million
square kilometres in the Northern Territory. The population
figures are derived from the 1986 census and taken from
Tesfaghiorghis and Gray 1991:50. (3). It should be remembered
that it was the Fraser Liberal government that passed the ALRA
complete with mining veto. Bennett (1989:25-27) notes however
that the Liberal Party's advocacy of Aboriginal self management
and land rights during the Fraser years has since the mid 80s been
dropped in favour of a return to policies of assimilation. (4).
The only outsider as far as I am aware was Noel Pearson who was
invited to join the working party by the premier as a
representative of the Cape York Land Council. The CYLC
(1991a:6-7,11) has expressed regret for its decision to
participate in the working party but was persuaded by the
government's arguments at the time that any prolonged public
consultation risked a repeat of the situation in Western Australia
in 1984 where in response to the state government's Seaman Inquiry
into land rights the mining industry launched a multi million
dollar media anti land rights campaign. The CYLC now believes it
was deceived by the premier and when it became clear that the
legislation would not include a mining veto, land fund or
statutory land councils its representative Noel Pearson and Marcia
Langton (then a DAIA official ) resigned from the working party
in protest. (5). According to Brennan (1991a:10) even the head of
DAIA was not privy to the deliberations of the working party.
(6). A then unfinanced CYLC did in fact manage to prepare a
lengthy written submission for the premier but this document was
apparently ignored (CYLC 1991a:8). (7). It has been rumoured
that the various ministerial responsibilities identified in the
Act will be shared by four ministers, Lands, Minerals and Energy,
and Conservation and Environment as well as Aboriginal Affairs
rather than follow the Territory model which essentially leaves
all matters to the Minister for Aboriginal Affairs. (8). In the
case of the Northern Land Council the task of identification is
carried out by its Anthropology section. This task some fifteen
years after the passing of the ALRA continues to consume the
services of five NLC anthropologists as well as the occasional
consultant. (9). This provision protecting commercial agreements
was inserted into the ALRA by way of amendment by the then liberal
government in 1980 in order to protect certain mining agreements
(The Naberlek and Koongarra agreements). See Carroll 1983:345-
346). (10). The CYLC (1991a:19-20) has pointed out that this
provision in relation to Aurukun and Mornington Island actually
waters down previous National Party legislation that gave the
shire councils of these two communities veto rights over miners'
access to land within their respective shires. (11). In the
1988-89 financial year the NLC spent nearly 1.3 million dollars on
meetings. In the same period the CLC spent just under one million
dollars. Neither figure includes vehicle or staff salary costs,
as they are not readily available from the Annual Reports, but
would undoubtedly be in the millions. (12). In the 1988-89
financial year the NLC entered into sixteen leases or licences.
Government was a party to nine. The CYLC (1991b) has expressed
similar concerns about the likelihood of DAIA providing
administrative support to local land trusts in a discussion paper
circulated by the CYLC in June subsequent to the passing of the
ALA. (13). Governor-in-council is another way to refer to
Cabinet. (14). The time limit was introduced into the ALRA by
way of amendment in 1987. Therefore the lodgment of claims in the
Northern Territory will cease in 1997. Assuming that the ALA is
activated sometime this year land claim applications will not be
able to be lodged in Queensland after 2006. (15). It is
interesting to note that this category of land does not require
gazzettal before it can be claimed. DOGIT land and the Aurukun
and Mornington Island Shire leases can however only be claimed on
the grounds of traditional affiliation or historical association
(section 4.03(3)). This leaves only country reserves available
for claim on the ground of cultural and economic viability. Cribb
(1991:6-7) is fearful of these provisions causing conflict in
Aboriginal communities and of the likelihood that their
application will lead to the 'systematic disadvantage of
historical claimants'. (16). According to press reports (Courier
Mail October 26, 1991) this provision has caused some concern
among Community Councils and it seems that the Act will now be
amended to prevent at least the township areas on former DOGIT and
reserve areas from being claimed. (17). The CYLC has managed to
obtain approximately 290000 dollars for 1990-91 through the local
regional council of ATSIC. By way of contrast the 1988-89 budgets
of the Central and Northern Land Councils in the Northern
Territory were 4.6 and 7.7 million dollars respectively. Add to
this Keating's recent comments to the National Press Club that the
New Federalism is certain to harm Aboriginal interests (The Age,
October 26, 1991).
BIBLIOGRAPHY Aboriginal Land Commissioner. (1981a), Alligator
Rivers Stage II Land Claim. A.G.P.S., Canberra.
---------------------------- (1981b), Finniss River Land Claim.
A.G.P.S., Canberra.
---------------------------- (1991), Kenbi (Cox Peninsula) Land
Claim. Office of the Aboriginal Land Commissioner,
Darwin.Aboriginal Law Bulletin. (1991), Mabo V Queensland and The
Commonwealth. Vol 2, No 48. Altman, J.C. (1983), Aborigines and
mining royalties in the Northern Territory. Australian Institute
of Aboriginal Studies, Canberra.
----------- (1984), Report on the review of the Aboriginals
Benefit Trust Account in the Northern Territory Land Rights
Legislation. ANUTECH, Canberra.
----------- (1991), The economic impact of Australian Aboriginal
land rights. In Society and Culture: Economic Perspectives, eds
J. Whitwell and M.A. Thompson. New Zealand Association of
Economists Incorporated, Wellington. Anderson, J.C. (1988),
Queensland Aborigines and land holding legislation in Australia.
In Law and Anthropology, vol.3:71- 82. Bennett, S. (1989),
Aborigines and Political Power. Allen and
Unwin, Sydney. Brennan, F. (1991a), Assessment of the
Aboriginal Land Bill 1991. Ms. ---------- (1991b), The
Queensland Aboriginal Land Act 1991. Aboriginal Law Bulletin.
vol 2 no 48. Cape York Land Council. (1991a), Open Letter to the
Queensland Branch of the Australian Labor Party. Ms.
----------------------- (1991b), The State of Play: a discussion
paper on future directions. Ms. Carroll, P. (1983), Uranium and
Aboriginal land interests in the Alligator Rivers region. In
Aborigines, land and land rights, eds N. Peterson and M.
Langton. Australian Institute of Aboriginal Studies, Canberra.
Central Land Council. (1989), Annual Report 1988-89. CLC, Alice
Springs. Cribb, R. (1991), It's a pup! The 1991 Queensland
Aboriginal Land Act: A non-legal commentary. Tharpuntoo Legal
Service, Cairns. Evans, R. (1975), "The Nigger shall disappearI"
Aborigines and
Europeans in Colonial Queensland. In Exclusion, Exploitation and
Extermination :Race Relations in Colonial Queensland, eds R.
Evans, K. Saunders and K. Cronin. Australia and New
Zealand Book Company, Sydney. Fitzgerald, R. (1984), A history of
Queensland: From 1915 to the 1980s. University of Queensland
Press, St. Lucia. Goss, W. (1991), Aboriginal land policy
briefing paper, ms. Heatley, A. (1990),Almost Australians: The
Politics of Northern Territory Self Government. NARU, Darwin.
Keen, I. (1984), A question of interpretation: the definition of
"traditional Aboriginal owners" in the Aboriginal Land Rights
(N.T.) Act. In Aboriginal Landowners: Contemporary Issues in the
Determination of Traditional Aboriginal Land Ownership. ed
L.R. Hiatt. Oceania monograph no. 27, University of Sydney,
Sydney.
Kesteven, S. (1983), The effects on Aboriginal communities of
monies paid out under the Ranger and Nabarlek agreements. In
Aborigines, Land and Land Rights, eds N. Peterson and M.
Langton. Australian Institute of Aboriginal Studies, Canberra.
Maddock, K. (1980), Anthropology, Law and the Definition of
Australian Aboriginal Rights to Land. Katholieke Universiteit,
Nijmegen.
----------- (1983), Your Land is Our Land: Aboriginal Land
Rights. Penguin, Ringwood. Mckeown, F.A. (1976) Land and the
Yirrkala Aborigines: A privatisation of clan territory.
Unpublished B.A. honours thesis, Monash University, Clayton.
Neate, G. (1989), Aboriginal Land Rights Law in the Northern
Territory. APCOL, Chippendale. Northern Land Council. (1989),
Annual Report 1988-89. NLC, Darwin. Powell, J.M. (1988),An
historical geography of modern Australia:
The restive fringe. Cambridge University Press, Cambridge.
Roberts, J.P. et. al. (1975-76), The Mapoon Story. 3 volumes,
International Development Action, Fitzroy. Rowley, C.D.
(1972a), The Destruction of Aboriginal Society. Penguin,
Ringwood.
----------- (1972b), The Remote Aborigines. Penguin, Ringwood.
Seaman, P. (1984), The Aboriginal Land Inquiry. Government
Printer, Western Australia. Stevens, F. (1969),WEIPA: The
Politics of Pauperization. In The Australian Quarterly, vol.
41, no.3. Tesfaghiorghis, H. and A. Gray. (1991), The demographic
structure and location of the Aboriginal population: employment
implications. In Aboriginal employment equity by the year
2000. CAEPR, Canberra. Thomson, D. (1983), Donald Thomson in
Arnhem Land. Currey O'neil, South Yarra. Trigger, D. (1983),
Land Rights Legislation in Queensland: The
issue of historical association. In Aborigines, Land and Land
Rights. eds N. Peterson and M. Langton. Australian Institute
of Aboriginal Studies, Canberra.
Wells, E. (1982), Reward and Punishment in Arnhem Land 1962- 1963.
Australian Institute of Aboriginal Studies, Canberra. Williams,
N.M. (1983), Yolngu concepts of land ownership. In Aborigines,
Land and Land Rights. eds N. Peterson and M. Langton. Australian
Institute of Aboriginal Studies, Canberra.
------------- (1986), The Yolngu and their Land: A system of Land
Tenure and the Fight for its Recognition. Australian Institute
of Aboriginal Studies, Canberra. Woodward, A.E. (1973),
Aboriginal Land Rights Commission: First
Report, July 1973. AGPS, Canberra.
------------- (1975), Aboriginal Land Rights Commission: Second
Report, April 1974. AGPS, Canberra.