Evidence to the Economic Policy Scrutiny Committee on changes to the Pastoral Land Legislation Amendment Bill

Date: Mar 13, 2018

Publication Type: Newsroom

Subject: Pastoral

NLC CEO Joe Morrison and Principal Legal Officer Michael O’Donnell gave evidence to the NT Legislative Assembly’s Economic Policy Scrutiny Committee on 2 February, and argued for changes to the Pastoral Land Legislation Amendment Bill.

Joe Morrison and Michael O'Donnell

Here is an edited transcript of their evidence:

Mr Morrison: I think the NLC’s position on the bill you are considering today is pretty plain and straightforward. I think our position is well known from various media events. We have stated on the record that the pastoralists do not have exclusive rights nor ownership of the land on which they are leasing. Native title where it has been determined over the pastoral leases provides for coexisting rights with native title holders.

The Northern Land Council and Central Land Council were rightly alarmed when we first became aware of the contents of this bill. Like the Central Land Council, we were not consulted about this bill which severely curtails the rights of native title holders. I recognise that Chief Minister Michael Gunner moved immediately to address our concerns and to refer the bill to this committee and I thank him for that.

Our position should not be taken as antagonistic towards the Northern Territory Cattlemen’s Association or Territory cattlemen in general, even though the government consulted with the Northern Territory Cattlemen’s Association and not the land councils as the native title representative bodies. Our fight is not with the NTCA; I want to make that very clear. In fact, there is a long history of the land councils working with the NTCA around the Indigenous Pastoral Program to create jobs on the pastoral estate.

Many people who have advocated for this bill have said this is a natural extension of the non-pastoral use permits and its administration, and that it is just an administrative process. I say the bill is a step too far, because it is a matter of personal regret that the Northern Land Council did not rise up to oppose the legislation in 2014 prior to my appointment. The rights enjoyed by native title holders are already fragile enough, especially because of the Howard government’s 1998 amendments to the Native Title Act, otherwise known as the “10 Point Plan”. 

The bill entrenches the Howard amendments because native title holders will not have a right to negotiate or a say if a pastoralist wants to create a sublease that will have a lasting effect on native title holders’ rights, whose ancestors have lived on those lands for tens of thousands of years.

What we are seeking is for native title holders and pastoral leasers to have a say in the development at subsequent grant of any non-pastoral use permits or subleases. We are also seeking to ensure that Indigenous interests are taken into consideration in the deliberation of the Pastoral Land Board by suggesting that there be a specific position created on the Pastoral Land Board for Indigenous people. 

We are hoping that this committee will concur with those two major recommendations and I conclude my opening statement.

Mr Gerry Wood (Independent MLA, Nelson): You raised a point that always worried me, Joe—not worried me, I was just confused about it. You said that there were changes in years gone by and I thought when those changes were going through, I was expecting the Land Council to say, ‘Well, we have some concerns’, but I did not hear anything. So my presumption was there was no issue with this particular change to the land tenure. Is it a case of now bringing forward your concerns? Is it that they are too late because some things have already been previously permitted? Can you turn back the clock in some ways, can the changes be retrospective that you think should happen?

Mr Morrison: I will just clarify. When these first amendments went through in 2014, I was not the Chief Executive of the Northern Land Council at the time, so I want to make that clear. Personally and professionally I do have some regret about the fact that the Land Council did not say anything about that, when in fact I thought that the Land Council should say a lot about it.

The amendments that took place in those negotiations under the Howard government in 1998 were in fact setting the groundworks for what we are discussing here today and the Principal Legal Officer next to me was part of those original negotiations with the governments and Indigenous leaders at the time and I will defer to Michael to say more about that. 

Mr O’Donnell: With the right to negotiate provisions that used to apply, the National Native Title Tribunal acts as an independent arbitral body that can determine issues. This has become what you would suppose call a minor procedural right that you get notified that X pastoralist want a non-pastoral use permit to grow opium poppies on such and such, can be rather large areas of land that, by the very nature of their development, mean you cannot exercise native title rights and interests anymore because it needs to be fenced off, there are security considerations, all sorts of things. Then, if the native title holders concerned want to be compensated for that, they have to run a court case, effectively after the event.

The current test case for native title compensation which has been run in this jurisdiction at Timber Creek has been going on for close to 10 years now and has cost more in legal fees than what the judge awarded at the first instance. We are up before the High Court on special leave applications on 16 February. But that is an Australia-wide problem, it is not only a Territory problem. 

The fact is, the non-extinguishment principle applies. At the moment you get a non-pastoral use permit that is of a 30-year term. If this amendment was to go through, it would be a registerable sublease, which is proprietary interest, permanent for the period of the head pastoral lease. That effectively sterilises that area of land – which can be up to half of the pastoral lease legally under the Native Title Act—for many years if not decades. People then have to run an expensive court case to get compensation.

Now we are left with the situation for native title holders where they have a right to get a notice and opportunity to comment—and there it goes. You can catch up with the compensation case later. That is really, in broad terms, the primary concern. With the best of intentions, some people have moved these amendments forward and see them as merely a technical land tenure exercise. 

It has been quite an historic view as to what is being implemented in Aboriginal rights. It is not something the Territory government has to do. The Native Title Act empowers a state or territory parliament to do it, it does not mandate that it does it. There is some discretion within this parliament to determine how these things can work. It cannot be inconsistent, obviously, with the Native Title Act. It is not without its legal complexity, but there are, I believe, ways forward to get Aboriginal people at the table with the pastoralists to be involved in these activities.

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