by Bruce Reyburn
The Aboriginal Land Commissioner, Justice Peter Gray, has made
a ruling in the Kanturrpa-Kanttaji Land Claim (near Tennant
Creek). His ruling and reasons (which I reprint below) are in
response to my request that he investigate the issue of the
rights of native title holders for the land involved.
This claim hearing commenced on 20 July, 1992. Some weeks
earlier (3 June 1992) the High Court of Australia had decided
that the common law could now recognise native title. I sought
to have the Land Commissioner identify the native title
holders as defined by indigenous considerations and as
distinct from the 'traditional Aboriginal owners' as defined
by the imperial notions (descent) contained in the Land Rights
Act.
I had earlier worked with senior lawmen in the region, and had
argued in other claims that the relationship between people
and country was not the same as that demanded by the
definition in the Land Rights Act. The difference has
important consequences. However I was not appearing on behalf
of the native title holders in the sense of a lawyer
representing a client. I am not a lawyer - my limited advocacy
role was as the bit of grit which (in some cases) produces the
pearl.
Being, I suppose, somewhat simple-minded in such matters it
seemed obvious to me that the native title holders (if they
survived) for the area would be a significant party for any
dealing with their lands. Merely as a matter of diplomacy and
courtesy, the newly recognised indigenous authorities would be
treated with due respect. They are the land!
What I found was that the process was being manipulated to
freeze all concerns of native title out of the action.
Before the hearing got down to real business, the Northern
Territory Government and the Central Land Council did a deal
(involving water rights for the town of Tennant Creek) and
rapidly moved to by-pass the hearing process by having the
Minister for Aboriginal Affairs grant the land to a Land
Rights Act trust by amending the Land Rights Act. This he did.
>From what I can make out, the deal may involve giving away
valuable rights to water (life in the desert) in return for
very little indeed. Just as Warumungu people in the area have
had their mineral wealth (gold and copper - and grasses and
surface waters) expropriated in return for misery, it seems
that they have been denied the opportunity to establish their
rights in relation to subsurface water and to obtain a
reasonable return for its use. They say future wars will be
fought over water.
The Land Commissioner has ruled that he has no further
function to perform. In a surprising line of argument, he
reasons that the people who I would regard as having the most
significant rights in the land have no place in any land claim
under the Land Rights Act! Yet their lives are inseparable
from the land in question. Beats me.
A legal challenge to this complex play by the Crown (in its
various guises as 1. The Northern Territory Government 2 The
Central Land Council 3 The Commonwealth Government) would
require mounting a case to review the Commissioner's ruling in
the Federal Court.
------------------
Aboriginal land Rights (Northern Territory) Act 1976.
Kanturrpa-Kanttaji Land Claim No 114
Ruling and Reasons of the Aboriginal Land Commissioner.
The Kanturrpa-Kanttaji Land Claim No 114 was received in
the office of the Aboriginal Land Commissioner on 19th July
1988. The application was made by the Central Land Council, on
behalf of Aboriginal people claiming to have a traditional
claim to an area, said to be unalienated Crown land, on the
western side of the Stuart Highway, south of the town of
Tennant Creek.
The claim fell within the provisions of s.50(2B) of the
Aboriginal Land Rights (Northern Territory) Act 1976 ("the
Land Rights Act"). The land to which it related was the same
as part of the land to which an earlier application related.
The report made in relation to the earlier application made no
recommendation that the relevant part of the land be granted
in accordance with ss.11 and 12 of the Land Rights Act. The
earlier application concerned the Warumungu Land Claim No.22.
The report was forwarded on 8th July 1988 and is printed and
published as report no. 31.
In accordance with provisions of s. 50(2B) of the Land Rights
Act, I heard evidence and submissions of the matters referred
to in paras. (d), (e) and (f) of the subsection. The hearing
was conducted at Cabbage Gum Bore and at other places on the
land the subject of the claim on 19th and 20th May 1992. On
the latter date, I announced that I was satisfied of the
matters referred to in s. 50(2B). As a result, dates were
fixed for the hearing of the claim.
The hearing began at Cabbage Gum Bore on 20th July 1992.
On that day, Mr. Bruce Reyburn attended, having advised me by
letter beforehand of his concerns and his desire to play a
part on the hearing. Appearances were announced by counsel on
behalf of the claimants and by counsel on behalf of the
Attorney-General of the Northern Territory. The Northern
Territory government adopts the role of an opponent to land
claims, especially those involving unalienated Crown land. Mr.
Reyburn did not announce any appearance at that stage,
although I called for other appearances.
On the application of counsel for the claimants and
counsel for the Attorney-General for the Northern Territory,
the hearing was stood down to enable them to pursue
negotiations, to see if the claim could be resolved otherwise
than by conduct of a full hearing, followed by a report.
Negotiations continued on 21st July, to the point where I was
asked to adjourn the hearing further, to enable a settlement
to be finalised.
Directions hearings in relation to the claim were
conducted by telephone on 25th September and 1st December
1992. On the latter date, the hearing was adjourned to a date
to be fixed. Mr. Reyburn was informed of the results of these
hearings.
By s. 4 of act no. 6 of 1993, which came into operation
on 27th May 1993, the land the subject of the claim was added
to Schedule 1 to the Land Rights Act. The Minister fro
Aboriginal and Torres Strait Islander Affairs then became
obliged by s. 4(1) of the Land Rights Act to establish a land
trust to hold the land. A deed of grant in respect of the land
was executed on 28th June 1993 and the title was formally
handed over to the Kanttaji Land Trust on 6th July 1993. The
land thereby became Aboriginal land, in accordance with the
definition of the term in s. 3(1) of the Land Rights Act. I
understand that, in the negotiations conducted by the
claimants through the Central Land Council, the Northern
Territory Government and the Australian Government,
arrangements were made which are designed to preserve access
to supplies of underground water, and to bores by which those
supplies are tapped, for the purpose of maintaining the supply
of water to the town of Tennant Creek.
By letter dated 15th July 1993, addressed to my Executive
Officer, Mr. Reyburn suggested that, notwithstanding that the
land the subject of the claim hearing had become Aboriginal
land, I was still obliged or entitled to continue and complete
the hearing of the claim. Mr. Reyburn's concerns, expressed in
that letter, may be summarised as follows:
(a) native title might exist over the land the subject of the
claim;
(b) native title holders might not have been consulted prior
to the grant to the Kanttaji Land Trust to any interest in the
land;
(c) the Australian Government might thereby have acted in a
discriminatory way, in breach of its obligations under the
Racial Discrimination Act 1975 and international treaties;
(d) the definition of "traditional Aboriginal owners" in the
Land Rights Act might exclude from consideration native title
holders, when decisions are made about the granting of land to
land trusts;
(e) if a system of native title operates over the land the
subject of the claim, neither that system nor the indigenous
authorities had been identified formally:
(f) native title holders might have interests in water,
especially in light of the importance of water in the
dreamings of people who have lived traditionally in an arid
area and of the system of "indigenous regulations";
(g) the Central Land Council might have acted without
authority in purporting to cede or exchange rights in water
underlying the land;
(h) the interests of native title holders in underground water
might be the subject of a future claim;
(i) native title holders might suffer detriment arising from
both the terms of any agreement entered into with respect to
underground water and the granting of the land to the Kanttaji
Land Trust;
(j) the rights of native title holders might have been by-
passed by the short circuiting of the inquiry or the fast
tracking of the claim.
Mr. Reyburn urged that I have "jurisdiction", pursuant to s.
50(1)(a) of the Land Rights Act, to complete my inquiry into
the claim and to report, particularly by way of comment on the
detriment to persons or communities, including other
Aboriginal groups, that might result if the claim were acceded
to in part or in whole. Such a comment is required in the case
of a report by s. 50(3)(b) of the land Rights Act. He
requested that I advise what action, if any, I proposed to
take to complete the hearing of the claim, especially in
regard to the question of possible detriment to native title
holders.
By letters dated 24th August 1993, I sought submissions
from the Central land Council and the Solicitor for the
Northern Territory, on the issue whether there remains
functions for me to perform in relation to the claim, and
advised Mr. Reyburn that I had taken this step. I
subsequently received submissions from the Central Land
Council, by letter dated 4th October 1993, and from the
Solicitor for the Northern Territory, by letter dated 7th
October 1993, to the effect that I had no further function to
perform in relation to the claim. I also received a further
letter from Mr. Reyburn, dated 6th October 1993, which was
expressed in terms of a response to the Central Land council
submissions.
For the purposes of these reasons, I am prepared to make
certain assumptions in favour of the arguments put forward by
Mr. Reyburn. I have no way of assessing the truth or otherwise
of those assumptions, and make no comment on whether they are
true or false. The assumptions are:
(a) there is in existence a group of people who are native
title holders of the land the subject of claim, according to
the principles derived from the decision of the High Court of
Australia in Mabo v. State of Queensland (No.2) (1992) 175
C.L.R. 1, which are summarised in the judgement of Lockhart J.
in Pareroultja v. Tickner (Full Court, Federal Court of
Australia, 20th September 1993, not yet reported);
(b) it is possible to ascertain the identities of at least
some members of the group and the precise incidents of the
native title which they hold;
(c) some of the native title holders are persons who do not
fall within the statutory definition of "traditional
Aboriginal owners" in s. 3(1) of the Land Rights Act;
(d) the incidents of the native title include some entitlement
to water beneath the surface of the land the subject of the
claim.
It is clear from the decision of the Full Court in
Pareroultja that a grant of land to a Land Trust, pursuant to
the Land Rights Act, does not affect native title. As Lockhart
J. said, with the agreement of the other two members of the
Court:
"In my opinion when grants of land to which there is
native title are made to Land Trusts under the Land
Rights Act, the native title is not extinguished; and
such grants are not inconsistent with the continued
existence of native title to the land."
No distinction can be drawn between extinguishment of
native title and detriment to native title holders, as Mr.
Reyburn attempted to do in his submissions of 6th October. It
is clear that the grant to a Land Trust is "not inconsistent"
with the continued existence of native title. The rights of
native title holders remain unaffected by the grant.
It follows from this proposition that the functions of
the Aboriginal Land Commissioner pursuant to s. 50 of the Land
Rights Act do not extend to ascertaining whether native title
exists in respect of any land; if native title remains
unaffected by the result of a land claim, no holder of native
title can suffer detriment is a claim is acceded to. If the
claim the subject of these reasons had followed the course of
completed hearing and report, followed by the necessary
recommendations and a grant of the land to a Land Trust, there
would have been no investigation of the rights of native title
holders. The position is exactly the same as a result of the
inclusion of the land in Schedule 1 to the Land Rights Act,
and the subsequent grant to the Kanttaji Land Trust, namely
that the rights of the native title holders are unaffected.
If it is true, as Mr. Reyburn suggests, that the rights
of native title holders might have been affected adversely by
the arrangements made with respect to water, that is an issue
which is entirely beyond the jurisdiction of the Aboriginal
Land Commissioner. Those arrangements have been perfected, I
assume, by the granting of some rights by the Kanttaji Land
Trust, following the grant of the land to that Land Trust. The
Land Rights Act gives the Aboriginal Land Commissioner no
powers at all with respect to the actions of Land Trusts once
land has become Aboriginal land. Had the hearing of the claim
proceeded, the arrangements for the preservation of water
supply to the town of Tennant Creek would not have been
investigated, except to the extent that proposals for them
were put forward as ameliorating any detriment which would
otherwise have resulted from acceding to the claim. In the
event of a recommendation that the land be granted in
accordance with ss. 11 and 12 of the Land rights Act, steps
would no doubt have been taken by the Minister for Aboriginal
and Torres Strait Islander Affairs to resolve any question of
detriment before any grant was made to a Land Trust. These
steps may well have resulted in arrangements of the type which
have been made, which would then have been perfected by the
Land Trust after the grant. The arrangements would not have
been reviewed by the Aboriginal Land Commissioner.
The Aboriginal Land Commissioner's functions are
specific. They do not include the provision of a general right
to be heard for all people interested in the land the subject
of a claim. This is especially so if, for whatever reason, the
claimants to any land do not desire to continue a hearing.,
The functions do not include any which involve reviewing the
actions of the Australian Government from the point of view of
the Racial Discrimination Act 1975, or obligations under
international treaties. Nor do they include any power to
supervise the conduct of land councils in representing
aboriginal people.
Both the Central Land Council and the Solicitor for the
Northern Territory drew my attention to s. 67A(5) of the Land
Rights Act, and relied on its provisions as a ground fro
asserting that the land claim has been disposed of finally.
The subsection provides, so far as is relevant:
"(5) A traditional land claim shall be taken not to have
been finally disposed of insofar as it relates to a
particular area of land until:
(a) ...........
(b) the Governor-General executes a deed of grant of an
estate in fee simple in the area of land, or in an area
of land that includes the area of land, under section 12;
........"
The subsection lists several other events until the happening
of one of which a land claim is said not to have been disposed
of finally. I do not rely on the provisions of this
subsection, in making this ruling. It is part of s. 67A, which
concerns the validity of grants of interests inland which is
the subject of claims under the Land Rights Act. Although in
its terms, the subsection is not restricted in effect to that
section, it should be read in the context of that section.
For the foregoing reasons, I rule that I have np further
functions to perform under the Land Rights Act with respect to
the Kanturrpa - Kanttaji Land Claim No. 114.
(signed)
Peter R. A. Gray
Aboriginal Land Commissioner
(ends)
(covering letter to Reyburn dated 22 November 1993)