This is the first part of a two part guest post by Darwin-based legal academic Ken Parish* that was presented at the Northern Territory Archives Centre in Darwin on Thursday 28 June 2018. You can read the second part here.

Reforming Northern Territory self-government – Reconciling the Two Towers of Power

One of the biggest problems about NT self-government is that very little thought was given back in 1978 to what legal and institutional relationships needed to exist between the new government, land councils and traditional owners to allow for a smoothly functioning polity. Those relationships remain confused and ill-defined.

There are effectively no structures or institutions tying government, land councils and traditional owners together in a defined or workable manner, even though Aboriginal Territorians own more than fifty percent of the Northern Territory and can largely prevent development on that land if they wish.

Native title had been recognised over 238,120km2 or approximately 17 per cent of land and waters in the Northern Territory. In December 2015, native title had been recognised in 78 of the 79 consent claimant determinations and 8 of the 9 litigated claimant determinations, with a further 86 claims awaiting finalisation. At that time, 19 registered prescribed bodies corporate had been set up to hold on trust or manage that land on behalf of the native title holders in the Northern Territory, and there were a further 39 successful determinations of native title for which the prescribed body corporate was yet to be advised. The Northern Territory also has a land rights regime, brought in with the enactment of the Aboriginal Land Rights (Northern Territory) Act (Cth) (ALRA) in 1976. This was the first legislation in Australia to establish a land claim process by which traditional owners could claim land. Since then approximately 50 percent of the land in the NT has become Aboriginal land in addition to 85 percent of the coastline.*

Yet the Territory government and land councils each have significant real world authority over the same land mass, and therefore real roles in important decisions made about land use, tenure and development on half of the Territory’s land, which in turn comprises twenty percent of Australia’s land mass. In constitutional terms the Territory actually possesses a complex, evolved but largely unplanned system of separation of powers between two levels of government (federal and territory), land councils and traditional owners (customary law authority structures) which isn’t constitutionally or legislatively defined, and whose interrelationship isn’t clearly understood by any of the participants. It’s hardly surprising that it doesn’t work very well.

Although the ALR(NT)A was the product of detailed consultation and evaluation by the Woodward Royal Commission, the same wasn’t true for the Northern Territory (Self-Government Act 1978 (“NT(S-G)A”) :

In 1947 a Legislative Council was established and comprised six elected and seven appointed members. It was not until 1974 that a fully elected Legislative Assembly was established.
3 2.5 During the 1975 federal election campaign, caretaker Prime Minister Malcolm Fraser made a surprise announcement that the Territory would be granted ‘statehood in five years’. In 1977, an interdepartmental Committee on Northern Territory Constitutional Development, in consultation with the Northern Territory Cabinet, decided to defer the issue of statehood until the achievement of self-government.
The Northern Territory was granted self-government in 1978 with the passage of the Commonwealth Northern Territory (Self-Government) Act 1978.**

Longstanding former Chief Minister Marshall Perron has subsequently commented that, although there was discussion about postponing statehood, there was very little meaningful consultation about what sort of constitutional model of self-government would be enacted by the Commonwealth. What we ended up with was a Canberra-drafted concoction that was essentially a “cookie-cutter” Westminster colonial constitution but with no upper house, no constitutionally entrenched rights or freedoms except a right to compensation for property acquisition on unjust terms, and with significant restrictions on the new Territory Government’s powers. There was no express reference to Aboriginal Territorians in the NT(S-G)A and only scant reference in the Regulations.

Whether such a model was appropriate to a place of the Territory’s population (200,000 people spread over 1/5 of Australia’s land mass), and at a stage of social and economic development with a very narrow economic base and stark disparities of wealth, culture and customs between Indigenous and non-Indigenous Territorians is at the very least questionable.
The lack of carefully designed and broadly agreed governance structures means that negotiating business and development deals on Aboriginal land is much more difficult, time-consuming and expensive than elsewhere. As a direct result significantly less economic activity takes place.

Moreover, I would argue that the failure of the Commonwealth to consult meaningfully and implement an appropriate self-government model has entrenched a racial and cultural conflict model which drastically impacted the first 20 years of self-government and continues to cast a deep shadow over present-day politics. The “sunset” clause for new ALR(NT)A claims took effect in 1998 along with the Native Title Act 1998 (Cth); together those enactments largely put to rest exaggerated fears that Aborigines were about to claim people’s suburban backyards.

The Two Towers of Power – Government and land councils

The Territory government and land councils represent competing but largely unreconciled major sources of power over the same land (more than half of the Territory). The two central pieces of “constitutional” federal legislation which establish them (the Northern Territory (Self-Government Act 1978 (“NT(S-G)A”) and Aboriginal Land Rights (Northern Territory) Act 1976) (“ALR(NT)A”) contain only rudimentary provisions spelling out how those Towers of Power should interact with each other.

Aboriginal traditional owners control more than 50% of the Territory’s land mass and 85% of its coastline, but do so indirectly through a plethora of Aboriginal Land Trusts which are in turn controlled by the land councils.
Aboriginal land is inalienable freehold private land and cannot be acquired or resumed by the Northern Territory Government or otherwise interfered with by Northern Territory legislation or exercise of executive power. Regulation 4(2)(b) of the Northern Territory Self-Government Regulations expressly provides that Ministers have no executive authority in relation to “rights in respect of Aboriginal Land under the Aboriginal Land Rights (Northern Territory) Act 1976”.
Moreover, Aboriginal traditional owners have a right of veto over all mining activity on ALR(NT)A land. See Part IV of the Act.
However, the Territory Minister can issue permits allowing public servants, teachers, police and some others to enter Aboriginal land for official purposes. See Aboriginal Land Act (NT).

Land councils and traditional owners

However, the relationship between land councils and the traditional owners they represent/manage is also fairly ill-defined, despite the fact that the ALR(NT)A is largely the product of the Woodward Royal Commission established by the Whitlam Labor Government in 1973-74. It was one of numerous Whitlam government initiatives that the Fraser Coalition Government followed through and enacted.

Under the ALR(NT)A Aboriginal traditional owners can only exercise power over their own land via the agency of the land councils, whether they like it or not, and quite a few of them don’t. Exactly which TOs the land councils consult, whose wishes they regard as binding, and to whom they distribute mining royalties and in what proportions, are all quite opaque to many traditional owners.

The land councils are obliged to act in accordance with the wishes of traditional owners and after consulting other affected Aboriginal people. See for example section 19(5) ALR(NT)A.

Some years ago the land councils managed to convince the federal government that they should have an unchecked statutory discretion as to whether they maintain a register under section 24 of the ALR(NT)A setting out who they regard as the traditional owners of a given area of land. The word “shall” was converted to “may”. It appears that the land councils mostly choose not to do so. That gives them considerable unchecked and potentially arbitrary power. I’m not suggesting land councils do not make good faith attempts to consult and implement the wishes of the right people. But the lack of transparency and clear accountability mechanisms is a big problem that in my view we can’t afford to keep ignoring.

Groups of traditional owners regularly attempt to move away from the big land councils and form their own “breakaway” land councils because they don’t believe the existing ones are representing their interests. However, despite the fact that the Land Rights Act provides for the formation of new land councils, successive federal governments have chosen to ignore those demands. It’s more convenient for governments only to deal with the large land council bureaucracies and leave to them the messy job of reconciling often fractious disputes between traditional owner groups about land tenure and development issues.

Even though the land councils’ efforts may not accord with any recognisable version of democratic deliberation and may even play fast and loose with customary law authority structures, governments prefer not to disturb this ill-designed status quo. Former NT senior counsel and now Federal Court Judge John Reeves researched and wrote a report some years ago in 1998 commissioned by the Howard government. Among other things it recommended that serious consideration be given to creating smaller land councils whose membership equated more closely to traditional authority structures.

While I don’t agree with everything in the Reeves report I certainly think that this recommendation should have been taken more seriously. Inalienable freehold title is in some respects an illusory form of ownership when it is impossible to make any meaningful decisions about the use of your land without the permission or direction of the Federal Minister, a land council consisting of Aboriginal owners of up to half of the Territory (of which your land is a tiny part), and especially the land council’s employed bureaucracy whose views and advice unavoidably inform and sometimes dictate the decisions the land council will take about your land. Imagine if you couldn’t build or conduct any business on your suburban block of land without the permission of all the local residents of the surrounding suburbs for kilometres around.

The entire structure of the ALR(NT)A is inherently paternalistic and patronising: traditional owners are legislatively deemed to be too childlike, naïve or gullible to be trusted to make their own decisions about their own land.
Poorly designed governance structures impact jobs and growth directly and in a major way. It’s not that Aboriginal Territorians don’t want jobs or development for themselves or their kids, it’s just that they also insist on maintaining their land, law, language and culture. Those aims aren’t incompatible, but they require not only mutual respect and listening to each other, but also suitable governance structures, institutions and clear rules on which we can all agree. The vehicle of a treaty or treaties is the most obvious and perhaps only one that can achieve those aims. For anyone who truly wants more jobs, growth and development for the Territory, knee-jerk opposition to even the possibility of a treaty is just not sensible.

Super-shires and the Howard/Brough Intervention

An article by Amos Aikman in The Weekend Australian is especially noteworthy from a Territory governance perspective:

A policy designed to reward indigenous business owners with easier access to government contracts is instead exposing taxpayers to fraud and corruption, including serious misconduct by public officials, whistleblowers warn.
In a letter to the head of the Prime Minister’s department, a group of concerned public servants say the indigenous procurement policy is enriching a few “already privileged and wealthy” indigenous businesspeople, allowing large corporations to escape competitive tendering through “sham joint ventures” and allowing departmental staff to commit “a form of corruption” by handing lucrative work to close friends. …

“Using your position as a commonwealth official to promote the business interests of close friends is corrupt. It does not change that your friends are indigenous,” the letter states. “This is corruption dressed up as indigenous engagement. It is hard to avoid the ¬conclusion that years spent ¬socialising with … are paying ¬lucrative business dividends.”

The whistleblowers say the IPP encourages “cosy arrangements” to flourish in an environment with “insufficient controls … to prevent mismanagement of public ¬resources”.
The story reminds me of my own experiences in providing legal advice to a variety of Territory Aboriginal communities and associations over a period of almost 20 years until I came to CDU as an academic. It sometimes seemed as if white employees and Aboriginal traditional owners were taking it in turns to raid the public funding biscuit tin. Standards of integrity, governance and accountability were woefully inadequate and prudent management standards were poorly understood at best.

Super-shires

It appears to have been similar concerns which led the Martin/Henderson Territory Labor government to implement its notorious “super shires” Aboriginal local government amalgamation scheme in 2007-8. Sixty small Aboriginal community local council corporations had their assets confiscated and transferred to just eight new “super shire” or regional councils and were then abolished by Ministerial fiat.

Although then Local Government Minister Elliot McAdam gave various rationales for the scheme, it appears that the dominant concern was very significant waste, mismanagement and even corruption in quite a few of the Aboriginal community local council bodies. However, at least in most communities poor administration flowed from a lack of understanding of “whitefella” bureaucratic structures and expectations, poor literacy and numeracy levels, and demands imposed on committee members by occasionally aggressive relatives demanding that they honour “kinship obligations” by sharing the cash and material bounty of the local club or community store.

It was an entirely legitimate concern for a Territory government to have, but both the solution itself and the manner of its implementation were drastically ill-conceived and eventually led to the demise of the Henderson government in 2012 when Aboriginal people deserted it en masse and voted for the Country Liberals, in many cases for the first time ever.

It was a classic example of authoritarian top-down imposition of radical policy change with little or no consultation with either the affected local communities or the federal government. Had they consulted local communities it would not have taken very long to discover that removing Aboriginal people’s rights to manage their own communities would result in white-hot anger although initially it only caused mass confusion, allowing new Labor Chief Minister Paul Henderson to limp across the line and win the 2008 election. As Ruth Elvin writes:

There was a great deal of confusion about the nature of the reforms as expressed at meetings and in conversation with community members, particularly as the reforms took place at the same time as the Northern Territory Emergency Response (NTER, also sometimes referred to as ‘the Intervention’), which was announced on 21 June 2007. Much of the time at local government transition meetings and community chief executive officer (CEO) meetings was taken up with questions about the impact of the NTER, particularly on housing, income and CDEP. It was only by March 2008 that residents of local communities were beginning to ask ‘This local government: is it good? What is it?’

Had the Territory Labor government consulted the then Howard federal government they may perhaps have discovered that there was a better solution for endemic Aboriginal community waste, mismanagement and corruption, one that would not have involved wholesale removal of Aboriginal people’s rights to manage their own communities.

But then again maybe not.

* Native Title Information Handbook Northern Territory 2016, AIATSIS.

** A Heatley, Almost Australians: The Politics of Northern Territory Self-Government, Australian National University North Australia Research Unit Monograph, 1990, 63, 134-35.

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* About Ken Parish: Ken Parish is a legal academic at Charles Darwin University, with research areas in public law (constitutional and administrative law) and teaching & learning theory and practice. He has been a legal academic for almost 12 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.