Bradshaw, Richard; Collett, Andrew --- "Aboriginal Land Rights in South Australia" [1991] AboriginalLawB 54; (1991) 1(52) Aboriginal Law Bulletin 20

• Aboriginal Land Rights In South Australia
• The Pitjantjatjara Land Rights Act
• Maralinga Tjarutja Land Rights Act
• Aboriginal Lands Trust Act 1966

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Aboriginal Land Rights in South Australia

by Richard Bradshaw and Andrew Collett

The Pitjantjatjara Land Rights Act

In November this year Anangu (comprising the Pitjantjatjara, Yankunytjatjara and Ngaanyatjarra traditional owners) will celebrate the 10th anniversary of the grant of inalienable freehold title to over 100 000 sq. km of their traditional lands in South Australia. The freehold land is located in the far north-west of the State, adjoining the Northern Territory and Western Australian borders. It includes what were formerly the North West Aboriginal Reserve, Ernabella Mission Land and three pastoral properties, two of which had been acquired by the Aboriginal Land Fund Commission in the early 1970's. It also includes the Mintabie Precious Stones Field and Mintabie township.

The inalienable title was granted pursuant to the Pitjantjatjara Land Rights Act, 1981 (the PLR Act). The PLR Act gave effect to a negotiated agreement between the Pitjantjatjara Council and the SA Government. The negotiations had been carried on by the Council over a four year period, initially with the Dunstan Labor Government and subsequently with the Tonkin Liberal Government which came into power in September 1979[1].

In that the beneficiaries of this land rights legislation participated fully in the negotiating process leading up to its tabling in Parliament and ultimate enactment, the PLR Act was unique in Australia. At the same time, the legislation inevitably bears the hallmarks of compromise:

• Anangu claims over a larger part of their traditional lands were deferred;
• they do not have a veto power over mining;
• their entitlement to compensation and other financial benefits from mining operations is somewhat circumscribed;
• they have very little control over entry to, or mining at, Mintabie Precious Stones Field; and
• the existing pastoral leases over Granite Downs Station were to continue to run until expiry or earlier surrender - these were surrendered in December last year.

The major features of the PLR Act are:-

1. The lands are vested[2] inalienably[3] in a body corporate, created by s.5 of the Act, called Anangu Pitjantjatjara (literally 'the Pitjantjatjara people', and commonly abbreviated to 'AP')- The members of AP are all of the traditional owners[4] of the lands.

2. AP not only holds the inalienable freehold title, but is also given the function of administering the lands[5]. However, its primary duty is "to ascertain the wishes and opinions of traditional owners in relation to the management, use and control of the lands and to seek, where practicable, to give effect to [them]"[6]. Furthermore, under s.7, it may not authorise or permit any proposal for the administration, development or use of any part of the lands to be implemented, unless satisfied that the relevant traditional owners have given their informed consent. This requirement is of particular importance in relation to mining applications (see 4 below) where AP is obliged to engage in an exhaustive process of disseminating information to, and consultation with, traditional owners so that they 'understand the nature and purpose of the proposal' and are able to reach a consensus decision. These, and other[7] provisions in the Act, are designed to ensure that traditional owners properly remain 'bosses for country'.

3. Entry onto the lands by non-traditional owners (other than certain categories of persons, such as police officers) without permission from AP is an offence[8]. The validity of this offence has been challenged as infringing the right of freedom of movement without hindrance on any racial, ethnic or similar ground, guaranteed by the Racial Discrimination Act 1975 (Cth). However, the validity of the offence was upheld by the High Court in Gerhardy v Brown [1985] HCA 11; [1985] 159 CLR 70, on the basis that the PLR Act constituted a "special measure"[9] within s.8(1) of the Commonwealth Act, lawfully overriding such a right.

4. Section 20(1) of the PLR Act creates a quite separate offence of carrying out 'mining operations' on the lands without the permission of AP.[10] Under s.20, a mining (or oil) company must first seek approval from the Minister for Mines and Energy before an application for permission from AP may proceed. AP may grant or refuse permission to such an approved company to enter for exploration or mining purposes, but if the mining company is dissatisfied (eg. on the grounds that AP has refused permission or that the conditions are unacceptable) it may request that the application be referred by the Minister to arbitration. The arbitrator must be a Judge of the High Court, Federal Court or Supreme Court The arbitrator's powers are those of a Royal Commissioner and his or her decision is binding upon AP, the mining company and the Crown. There are some guidelines set out in s.20(15) of the Act which require the arbitrator to have regard to:

• the effect of the grant of the proposed mining tenement on Anangu and on their culture, traditions and ways of life;
• the mining company's suitability and its capacity to minimise disturbance to Anangu and the lands;
• the preservation of the natural environment; and
• the economic and other significance of the proposed operations to South Australia and Australia.

AP may attach financial conditions to the grant of permission, but such benefits, under s.24, must be "reasonably proportioned to the disturbance to the lands, the Pitjantjatjara people, and their ways of life, that has resulted or is likely to result from the grant of the relevant mining tenement". Whether such benefits are 'reasonably proportioned', or not, is a legal question. Section 23 states that the Minister may only interfere with payments, or other benefits, to be made or provided directly to an individual or to a body corporate other than AP; this is mainly intended as an anti-bribery provision.

Under s.22, AP is also entitled to a one-third share of statutory royalties in respect of minerals recovered from the lands but this is subject to a Government-prescribed maximum.

Liberal Party policy in 1985 was to amend the mining provisions of the PLR Act to the disadvantage of Anangu. That changed following the historic announcement of an oil exploration joint venture between Amoco and AP just before the State election in November that year. Significantly, the Liberal Opposition in Parliament in 1987 supported the minor amendments[11] to the PLR Act instigated by AP.

Whether the Act will survive unweakened, for another ten years however, is obviously another matter.

Maralinga Tjarutja Land Rights Act

On 18 December 1984 the Maralinga people were handed title to 76 420 sq. km of land immediately south of the Pitjantjatjara lands.

The Maralinga Tjarutja Land Rights Act (the MTLR Act) had been passed on 12 April 1984 but had then been delayed by the announcement of the Royal Commission into British Nuclear Tests in Australia. The granting of title in December 1984 was contrary to the express wishes of the Federal Government, who wanted its assent to wait until the Royal Commission had finished. The Maralinga Community was not prepared to wait that long, having fought a political battle spanning the previous three years, and the State Government agreed with them.

The Maralinga people had also participated in the negotiating process which surrounded the framing and tabling of the MTLR Act. However, by this time, there was a Labor Government in power. Whilst the views of the Labor Government were thought to be more sympathetic to Aboriginal land rights, it was in a minority in the Upper House. This proved to be of great significance in the final negotiations on the Bill and enabled the Liberal Opposition to force some amendments.

Ironically, these were essentially departures from the PLR Act which had been passed by the Liberal Government. Essentially, the MTLR Act is very similar to the PLR Act - containing similar or identical provisions in relation to inalienability of title[12], administration of the lands by a statutory body comprising traditional owners[13], entry onto the lands[14], mining[15] and the payment of royalties[16].

Probably the most significant variation from the PLR Act is contained in s.16(1) which allows Maralinga Tjarutja to compile a register of sacred sites to which the Minister of Mines and Energy and the Minister of Aboriginal Affairs may have regard when considering any application for exploration or mining rights[17]. This was undoubtedly one of the compromises forced by the Liberal Opposition due to a campaign by the mining industry suggesting that Aborigines were inclined to invent sacred sites. Maralinga Tjarutja, the statutory corporation of traditional owners which administers the Act, has not shown any interest in compiling a register of sacred sites. Notwithstanding this, Maralinga Tjarutja has negotiated successfully with mining companies who have sought exploration licences and has achieved its desired level of site protection.

The other significant difference from the PLR Act relates to three roads which traverse the Maralinga Tjarutja Lands and to which the public has a right of access, provided that their use of the road is limited to that involved in reasonably traversing the land and provided reasonable prior notice has been given to Maralinga Tjarutja. This provision has proved very difficult to police. It is clear that it is being breached - particularly by some outback tour operators.

Aboriginal Lands Trust Act 1966

This was the first land rights legislation enacted in South Australia. It is still important legislation, at least in the sense that the Aboriginal Lands Trust holds title to the land of at least five Aboriginal Communities - particularly those which were formerly Aboriginal Reserves. The Aboriginal Lands Trust holds freehold title to these lands and many other odd parcels of land around South Australia, and the community or-individual receives a 99 year sub-lease.

Generally, this has meant little more to the Aboriginal Community or individual than a change of ownership, as the Aboriginal Lands Trust has been a fairly passive land-holding body. However, the Trust recently exercised its broader powers and promulgated regulations relating to the prohibition of the possession, consumption or bringing on of alcohol, to the Yalata Aboriginal Community. These regulations were similar to by-laws which have been promulgated under the PLR Act.

The Aboriginal Lands Trust Act effectively provides that there shall be no mining on Trust Lands - except where the Governor proclaims otherwise. The only proclamation allowing mining was over an Aboriginal cattle station in the Flinders Ranges when the Liberal Government was in power.

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[1] For a more detailed account see: Toyne, Phillip and Vachon, Daniel, Growing Up The Country: The Pitjantjatjara Struggle For Their Land, McPhee Gribble, 1984.

[2] Pursuant to s.15.

[3] Section 17.

[4] The definition of 'traditional owner' in a. 4 is significantly wider than the corresponding definition in the Aboriginal Land Rights (Northern Territory) Act, 1976 (Cth).

[5] Section 6(1)(d). This is to be compared to Aboriginal land in the NT, where administration is by the relevant land council.

[6] Section 6(1)(a).

[7] Eg. s.11, which limits the powers of the AP Executive to implementing decisions made in general meeting.

[8] Section 19.

[9] Paragraph 4 of Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination allows "special measures [to be] taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms..."

[10] 'Mining operations includes mineral and petroleum exploration as well as production.

[11] Pitjantjatjara Land Rights Act Amendment Act, 1987.

[12] Section 15.

[13] Sections 4-11.

[14] Sections 17-20.

[15] Sections 21-26.

[16] Section 24.

[17] Section 22.