Rethinking Aboriginal Governance I: Why the Aboriginal Land Rights Act doesn’t really deliver sovereignty or development and how to fix it

The Aboriginal Land Rights Act (ALRA) was enacted by the Commonwealth in 1976, preceded by the famous image of Prime Minister Gough Whitlam pouring sand into Vincent Lingiari’s hand, as a way of Aboriginal people in the NT claiming and owning their traditional lands. Administered by a number of statutory Aboriginal Land Councils, the majority of land in the Northern Territory is now governed by this act, which under Liberal governments in Canberra and Darwin has become a source of significant controversy with calls for reform from a number of angles.

The Commonwealth Indigenous Affairs Minister, Nigel Scullion, appears determined to reform the administration of the ALRA, ostensibly in order to promote economic development. Scullion has championed increased local control of Aboriginal land and reduced influence by the Northern Land Council (NLC), appearing to support “breakaway” land councils. (The Northern Territory Government also wants to get its hands on the steering wheel, previously calling for repatriation of the ALRA to the NT Government, although Giles’ most recent proposal is merely for an exchange of staff to build mutual understanding). For opponents of the current regime, and as also alluded to in the recent Developing Northern Australia White Paper, ALRA makes economic development difficult because of the barriers it sets up to companies wanting to build things on Aboriginal land like mines. These barriers include the extremely long waiting times for approval by the Council, coupled with high levels of uncertainty over whether the negotiations will be successful at all, and a poor understanding of either party by the other.

For the Northern Land Council, and many Aboriginal people, ALRA is the central plank of Aboriginal sovereignty. The Northern and Central Land Councils are hugely powerful organisations, governments in all but name, in contrast to largely dysfunctional local governments, known as regional councils. Traditional Owners (TOs) in the NT enjoy a level of control over their land unmatched by other states, which have significantly weaker land councils and land rights regimes. Joe Morrison, the recently appointed, charismatic and widely respected head of the NLC stated in a widely circulated speech that ALRA is “a beautiful thing – a beacon that marks the high point of recognising dispossession, of customary ownership and enduring practice of an ancient culture rooted in the land and waters of the Northern Territory”. Arguing that the attack on the institution of the Northern Land Council is an attack on the land rights of Traditional Owners itself, Joe has sought to rally support around the NLC and resist devolution of powers and reform of ALRA administration.

Whilst the real benefits from major developments on Aboriginal land to local people may be disputed, nobody would argue that the approvals process is lengthy, uncertain and fraught with misunderstanding on both sides. For many, this is the price to pay to ensure Aboriginal people have a genuine seat at the table, and exercise meaningful control over their lands and waters. Yet if this is control and Aboriginal decision-making, it is a very limited form of it. The central problem with the ALRA approvals process is that it is reactive. Traditional Owners rarely, if ever make proactive decisions over what they want to do with their land. Instead, others decide, put forward a proposal, which is then vetoed or approved with conditions. It’s a limited, reactive form of control that leaves the destiny of Aboriginal land largely in the hands of others.

There has been other controversies over the years, including allegations of manipulation of the approvals process by NLC staff in the recent court case regarding the proposal to build a nuclear waste storage facility on Muckaty Station near Tennant Creek, the operations of the highly secretive NLC subsidiary, the Aboriginal Investment Group, and the unending discussion over who the real TOs are of any given place. Let’s face it, where substantial power and money is involved, these type of allegations appear inevitable – just look at the mainstream development approvals process elsewhere. That shouldn’t stop us from asking the big question – what could we change to make the Land Rights regime in the Northern Territory better?

The obvious answer is to move to a proactive approach to land use planning on Indigenous land by Traditional Owners. Widely practiced in Canada and elsewhere, Indigenous Land Use Planning (ILUP) in the NT is confined to conservation planning in protected areas and some consultation over town planning. In contrast, genuine ILUP starts with Traditional Owners looking at their whole estates, supported by information on its cultural, environmental and economic values, and making a whole of country plan for the future. Do they want agriculture? If so, where – along with mining, protected areas, settlements and the like. Mainstream governments do it for non-Aboriginal land after all. Not only would Traditional Owners exercise a higher level of control and sovereignty than now, but proponents would know in advance what Traditional Owners would agree to or not, delivering certainty for their proposals. Companies (including Aboriginal owned entities) might even start to look at how they can make money through delivering the TOs own development agenda, bringing in private capital to enact the Aboriginal vision. This could be combined with economic modelling using Game Theory (BATNAs – the Best Alternative to a Negotiated Agreement) to put a clear financial value on Indigenous Land Use Agreements (ILUAs) – the end point of the negotiation process between developers and TOs. Unlocking development and delivering increased sovereignty at the same time? It’s certainly possible, but we need to have a higher quality of debate than presently exists on the matter.

This post is a first in the series of looking at why Aboriginal governance in the NT needs reform – and what that reform might look like

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