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Regulations not in the interests of Traditional Owners

Posted: Fri, March 28, 2014

UNITED: CLC Director, David Ross (left) and NLC CEO, Joe Morrison.

THE Northern and Central Land Councils have welcomed the further protection of traditional owners’ rights following the disallowance by the Senate of regulations made under s28A of the Aboriginal Land Rights (Northern Territory) Act 1976.

The Land Councils were given less than a week to comment on draft regulations in November 2013, and in that process expressed strong concerns about the timeframes and lack of detail in the regulations.

Senator Nigel Scullion chose to proceed regardless of these concerns and the regulations commenced in December 2013.

CLC Director, David Ross said, “The Land Councils have consistently maintained their opposition to s28A, which was inserted into the Land Rights Act by the Howard Government in 2006 against the wishes of traditional land owners and the land councils.”

The provision allows for the permanent delegation of core land council functions to Aboriginal corporations. The functions that can be transferred under s28A are the power to grant leases (including township leases), consent to exploration and mining tenements as well as powers to make agreements or grant interests in land under claim.

The CLC and NLC have serious concern with the provisions relating to delegation because they:

• Do not guarantee the informed consent of traditional owners to the performance of Land Council functions by an Aboriginal corporation;
• Are contrary to common law and legislative principles of delegation – the ‘delegator’ being stripped of all powers with no ability to review or amend decisions, and no power to revoke a delegation;
• Deliver disproportionate power to the Minister over the exercise of Land Council functions on Aboriginal land by enabling the reallocation of powers to corporations whose members need not include traditional owners;
• Expose Land Councils to liability for the conduct of an Aboriginal corporation without the accompanying power to address that conduct, and with that liability unable to be covered by insurance held by the Land Councils;
• Mean that the performance of Commonwealth statutory functions will not be subject to the operation of the Public Governance, Performance and Accountability Act 2013 (effective from 1 July 2014) - which imposes strict probity, governance, and financial accountability requirements on all Commonwealth entities including Land Councils, because a delegate Aboriginal corporation under s28A is not a “Commonwealth entity” as defined in that statute; and
• Are likely to contribute to confusion, inefficiency and a lack of certainty, particularly for mining companies and other developers seeking to access or use Aboriginal land.

Mr Morrison said the proposals were problematic on a number of fronts, including handing over disproportionate powers to the Minister over the exercise of land council functions.

“There is a real risk to Traditional Owners here – the proposal to invest powers in corporations which may be unstable or unaccountable; those powers would end up in the hands of an administrator if the corporation failed,” Mr Morrison said.

“By contrast, land councils are governed by legislation requiring open and accountable reporting.

“This regulation undermines the ability of Land Councils to offer TOs properly funded processes of decision-making based on informed consent.”

Mr Morrison added that he is disappointed that Senator Scullion has questioned Land Councils’ accountability.

Mr Ross said Land Councils adhere to the obligations in the Aboriginal Land Rights (NT) Act 1976 and the most important requirement is for the informed consent of traditional land owners to underpin all of those processes.

“It always was and always will be our job to be accountable to our members and constituents,” Mr Ross said.

“The Land Councils originally proposed better mechanisms for regional delegations but these were ignored and the current powers, created by Mal Brough, hark back to the days of the Intervention.”

The Land Councils are getting on with the job of working with and enhancing the rights and interests of traditional land owners.