Building the bush

The number of micro-enterprise, private business, Government and community development activities occurring on Aboriginal land is increasing.

Aboriginal land is private property owned under special freehold title. It is inalienable – in other words, it cannot be bought, acquired or forfeited.

For the most part, Aboriginal landowners with inalienable Aboriginal freehold have the exclusive power to control the direction and pace of development on their lands. The public, in the form of Government at various levels, has only limited rights to impose external development or conservation direction or constraints.

Under the Land Rights Act, decisions over the use of Aboriginal land must have the consent of the traditional owners as a group and ratified by the Land Council. Aboriginal land in the Northern Land Council area is held as inalienable Aboriginal freehold – the strongest form of title in Australia.

The nature of Aboriginal inalienable tenure differs from mainstream definition of private land inasmuch as such land cannot be bought or sold. It can however be leased from the Aboriginal Land Trusts (which hold title) to Aboriginal corporations or to non-Aboriginal interests with the informed consent of traditional owners.

The Land Rights Act sets out processes which require the Northern Land Council to ensure that informed consent has been given and that terms and conditions are reasonable.

Powers of control

For the most part, Aboriginal landowners with inalienable Aboriginal freehold have the exclusive power to control the direction and pace of development on their lands. The public, in the form of Government at various levels, has only limited rights to impose external development or conservation direction or constraints.

Role of Councils and Associations

It is important to note that except where leases or licences have been issued to Aboriginal community councils or resource agencies, these incorporated bodies have no legal interest in land, nor control over its development, with that right remaining firmly in the hands of groups of landowners as defined by the application of the Aboriginal Land Rights (Northern Territory) Act and Aboriginal customary law.

Even a well-established Aboriginal organisation may not have the mandate to make decisions about land without reference to the landowning group. Applications for land use or commercial developments on Aboriginal land should be made through the Land Council, not through a local council, association or resource agency. See Section 19 Land Use Agreements

Land Council Role

Because of the communal form of land ownership, it is unlikely that a single individual or even a single group has an absolute right to approve a business activity carried out on Aboriginal land, particularly where that activity involves substantial interference and disturbance to 'country'.

Relations within a landowning group and between groups may be diverse and complex, reflecting the richness and complexity of Aboriginal tradition and Aboriginal peoples' relationship with their land. The Land Council's role is to ensure, as far as possible, that Aboriginal culture, traditions and law are respected and followed on Aboriginal land; that the relevant Aboriginal people make informed decisions and that commercial and resource exploitation agreements are fair. The Land Council must be satisfied that the relevant traditional Aboriginal landowners understand the nature and content of any land use agreement which is entered on their behalf and that they agree to it.

The relevant provisions of the Land Rights Act are Part IV in the case of mining and sections 19 and 23 in the case of other business operations.

Land Use Agreements

The process of entering a land use agreement or joint venture for Aboriginal land takes time, it can be expensive and a high level of openness and financial disclosure is required of the proponent.

Businesses need to follow all the relevant procedures to comply with the Land Rights Act, have financial security, security of tenure and a genuine and lasting relationship with the Aboriginal landowners concerned.

Some examples of existing Land Use Agreements include agreements for a diamond mine, pearl farms, crabbing ventures, safari hunting, retail stores, commercial filming and infrastructure development.

See Section 19 Land Use Agreements

Process

A detailed business proposal is required, including a business plan, financial projections, proposals for payments, local employment, joint venture proposals and other benefits to the relevant Aboriginal land owners and environmental impacts.

The Northern Land Council will consider the proposal and may request further information from the proponent, an environmental study and/or expert analysis.

Where preliminary inquiries indicate that traditional Aboriginal owners may be interested in a particular business proposal, the proponent will be invited to contribute to the Land Council's expenses in carrying out consultations with traditional Aboriginal owners. This usually takes the form of reimbursing the costs of bringing the traditional Aboriginal owners and affected communities and groups together for a meeting or meetings, which are preferably held on the land concerned. A contribution to the legal costs of the Land Council/Land Trust is usually sought on a "user pays" basis.

Steps after Consent of Traditional Owners

Land Use Agreements where the term is less than two years may be entered upon the direction of a delegate of the Land Council, that is the Chairman, Chief Executive Officer or the relevant regional Council.

The Land Rights Act requires that longer and larger agreements must be approved by the Full Council of the Northern Land Council, which meets twice a year.

Agreements where the term could exceed 10 years or consideration could be more than $100,000 require the consent of the Minister for Aboriginal and Torres Strait Island Affairs.

Any enquiries or proposals for business development on Aboriginal land should be directed to the Chief Executive Officer of the Northern Land Council.

Work Permits

Work permits issued by the Northern Land Council only authorise the holder to work in a specific area. If you wish to fish and camp at any time during the job, you must also have a recreational permit.

Government contractors: All Government contractors or sub-contractors need to fill out a permit application form, stating what Government department they are doing the contract for, along with a phone number for the department.

Self-employed contractors: Self-employed contractors need to complete an application form for a work permit and also supply a supporting letter from the contractor stating the following:

·         your company name

·         what your company does

·         your name

·         what you do

If a particular community has offered you a position, the Northern Land Council requires a letter from that community stating that you have the job and providing the name of the contact person you have dealt with in the community.