Dodson, Pat --- "Conflict over Statehood" [1987] AboriginalLawB 17; (1987) 1(25) Aboriginal Law Bulletin 9

• Conflict Over Statehood

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Conflict over Statehood

by Pat Dodson

The Northern Territory government's bid for statehood is producing contradictory statements from the government on Aboriginal land rights.

As part of its statehood proposals, the territory wants the power to make its own laws to replace the strong federal legislation developed by the Whitlam government and implemented by the Fraser government.

Some government advertising appears to be aimed at convincing Aboriginal people that they would be better off under new state laws than under the current federal arrangements. One advertisement, which appeared in the NT Times, 15 November 1986, states:

Aborigines cannot sell their land nor can they borrow money against it. It therefore cannot be mortgaged so is of little help in improving their standard of living.

While Aboriginal people indeed cannot sell their land they can gain revenue from it by leasing it to miners. pastoralists or tourist developers. Most of the Commonwealth Land Rights Act is concerned with providing mechanisms for facilitating these kinds of developments. And although it has not yet been done, there is nothing to stop Aboriginal people from raising finance on the basis of their right to lease their land for development.

The Commonwealth's inalienable freehold title protects an essential Aboriginal cultural principle - the land was given to its traditional owners by their ancestors, to hold forever. The Act also provides traditional owners with access to advice from lawyers and other professional and technical staff employed by the Aboriginal Land Councils established under the Act. These staff have no power to make decisions about Aboriginal lands, they can only advise. Under the present system Aboriginal people are able to negotiate at arms length from those who want to use their land.

It is disturbing that the Chief Minister Steve Hatton's remarks on the issue are not clearcut. Mr Hatton, in a policy speech last August, indicated his view that:

We surely have a legitimate claim for a much greater share of the fruits of our own resources! Nor should the considerable potential revenue denied to us by the territory's inability to control mineral exploration and production on a sizeable proportion of its land be forgotten.

Yet Mr Hatton has argued that statehood will not disadvantage Aborigines. Presenting its case to the Constitutional Commission's Individual and Democratic Rights Committee, the Central Land Council has argued a counter view:

The Aboriginal Land Rights Act 1986 confers considerable rights traditional Aboriginal owners in respect of the land which they hold under that Act and together with the Northern Territory (Self Government) Act 1978 restricts the power of the Northern Territory government over that land.

The Provision which transferred all the national government's interest in land to the territory on self-government in 1978 provided that the national government is not obliged to compensate the Northern Territory if land now vested in the Northern Territory is transferred under the Aboriginal Land Rights Act to the traditional Aboriginal owners.

The Northern Territory government does not have the power to compusorily aquuire Aboriginal land and a Northern Territory law does not apply to Aboriginal land if it is inconsistent with the Aboriginal Land Rights Act.

The Northern Territory government submitted to the Toohey inquiry into the operation of the Act that it should have the power to compulsorily acquire land under the Act for public purposes.

Mr Justice Toohey recommended against this, saying that such a power in the hands of the Northern Territory would destroy the inalienability of Aboriginal freehold title which is its distinguishing feature.

Pat Dodson is the Director of the Central Lands Council.

Australian Society, February 1987