Pastoral Land Bill Changes Wanted

When the Government announced the Bill in October last year, it said sub-leases would “help boost jobs and economic productivity in regional and remote areas by unlocking the development potential of the pastoral estate.”

“Specifically, sub-leases for non-pastoral uses will expand the range of existing uses … and will be registered on the title to provide a security for investors,” the Minister for Environment and Natural Resources, Lauren Moss, said in a press release on 18 October last year.

The Government, while having “listened to” the NT Cattlemen’s Association’s advocacy of sub-leases, did not consult with Land Councils about the Bill. That led NLC CEO Joe Morrison to say, “It’s outrageous that there has been absolutely no discussion with the NLC or native title holders about these proposed changes. The Northern Territory Government needs to include Aboriginal people in the future development of the pastoral estate, as is their right as native title holders. This government should know better than to further marginalise us through discriminatory legislation. We want to be involved in economic development while protecting our culture and sacred sites.”

Chief Minister Michael Gunner conceded that Land Councils should have been consulted, and agreed to put the Bill on hold until after its consideration by the Parliament’s Economic Policy Scrutiny Committee.

Mr Morrison and the NLC’s Principal Legal Officer Michael O’Donnell subsequently met with Minister Moss and her advisers. “It was apparent at that meeting that neither the Minister nor her advisers were aware of the significant impact these proposed amendments would have on native title holders as they seem to be regarded as merely technical,” Mr Morrison and CLC Director David Ross wrote to the Chief Minister on 29 November.

Mr Morrison has also considered the pastoral land issue in the context of the government’s wish to negotiate a treaty with Aboriginal people. “If these legislative amendments are rushed through the Parliament, it will put into question the government’s bona fides, because a lot of what would be in a treaty needs to consider the pastoral estate that covers almost half of the Territory land mass,” he said.

“These amendments would undermine the treaty process and I ask, why would Aboriginal people then bother talking about a treaty?’ If we could have a process such as that which drove Project  Sea Dragon on Legune Station (for a huge prawn farm),then we may have a future co-existing in the NT. But, if the NT Parliament persists in passing these amendments, then we are in for a hell of a ride.”

The NLC is the native title representative body recognised under the Native Title Act 1993, in relation to the top end of the NT including the Tiwi Islands, Groote Eylandt and the adjacent seas. There are currently 62 determinations of native title on 63 pastoral leases in the NLC region (there are 20 such determinations in the CLC region).

In their letter to the Chief Minister, Messrs Morrison and Ross said, “It’s important to note that pastoral lessees do not own the land and do not have a right of exclusive possession. Native title co-exists with a pastoral lease on the same area and the rights of native title holders require equal respect along with the pastoral lessee. This has been clear since 1996 from the High Court case in Wik and confirmed in the Northern Territory in a number of Federal cases since that time.”

The NT Government was able to back the NT Cattlemen’s Association’s push for sub-leases on pastoral properties because of the Howard Government’s amendments to the Native Title Act – the so-called 10-point plan which then Deputy Prime Minister Tim Fischer said provided “bucket loads of extinguishment” (of native title) to the disadvantage of native title holders. Mr Morrison and Mr Ross also recorded in their letter to the Chief Minister that their talks with Minister Moss and her advisers had revealed “an alarming lack of the awareness” that the power for the NT Government’s to legislate for sub-leases was sourced in the Howard 10-point plan. 

That was the same power that enabled the previous CLP government to legislate for non-pastoral use permits, which can be approved for 30 years to allow for pastoral lease land to be used for activities such as agriculture, horticulture, aquaculture, forestry and tourism (non-pastoral use permits were introduced before Mr Morrison was appointed NLC CEO, and he has said it was “a matter of personal regret that the NLC did not rise up to oppose the legislation” at the time).

The 10-point plan provided for a range of primary production activities on pastoral leases without the right-to-negotiate provisions of the Native Title Act applying. The native title is effectively suspended without upfront compensation for the term of the activities.

The NT Government’s latest Bill would mean that native title holders and claimants would have only minor procedural rights – to be notified of the proposal, an opportunity to comment, and to seek compensation through a court case for the effect on their native title. On current trends, that would take years to finalise. By contrast, the right-to-negotiate allows native title holders to be at the negotiating table and to be actively involved in the approvals for the development, and provides an opportunity to be involved in and benefit from the economic development proposed.

The 29 November letter from Messrs Morrison and Ross to the Chief Minister concluded:

“In summary, the effect of the previous introduction of the non-pastoral use permits and now potentially to provide for sub-leases for intensive uses of the land is of deep concern, as it clearly will (at a practical level) preclude the carrying out of native title rights and interests. The removal of the right-to-negotiate provisions of the Native Title Act to apply to the approval of these developments means there is no requirement and effective opportunity for native title holders to be involved in the economic activity that affects their interests and will occur on their traditional lands without their consent. It would also significantly impact their ability to protect sacred sites as the mere notification and comment procedures are demonstrably inadequate where intensive land uses are proposed.

“The primary production activities that may now be facilitated through the grant of a non-pastoral use permit or proposed registrable sub-lease (such as forestry, agriculture and horticulture) are predominantly intensive land uses that preclude the carrying out of native title rights and interests in those areas, as the Explanatory Notes state in relation to the proposed amendments to bring in sub-leasing for non-pastoral purposes: ‘The intent of this provision is to support the non-pastoral use amendments made to the Act in 2014 and potential investment and diversification of the pastoral estate’.

“Whilst at one level there is no objection to diversification on pastoral leases everything else being equal in terms of environmental, social and cultural impacts it is the effective exclusion of native title holders from the proposed development because of the impact of the implementation of the 10 Point Plan amendments in the Northern Territory that is of concern. 

‘It is appreciated that in communications with Mr. Morrison that you have decided to withdraw the proposed amendments in relation to sub-leasing at this time. If the Developing the North agenda is to be inclusive and equitable then it must also respectfully and meaningfully involve the many thousands of Aboriginal people in the NT that hold native title where pastoral leases also exist on their traditional country.

“To address this issue in a fair and equitable manner we are proposing that a legal right be recognised in the Pastoral Land Act that will enable the co-existing native title holders on pastoral leases a substantive say and involvement in the grant of any non-pastoral use permit or sub-lease. This is so they can also benefit from new economic activities on their traditional lands. This should be set in an agreed policy framework that also provides for an economic development package to facilitate this process and involvement in new developments by native title holders.”

The Economic Policy Scrutiny Committee is due to report back to Parliament by mid-March.

This article first appeared in Land Rights News Northern Edition February 2018.