Land Rights Act must not go to the Territory: The original policy architect

It would be terribly wrong if the Land Rights Act was patriated (to the Northern Territory). A Territory government could smash the whole basis of land tenure and change provisions to deal with mining. They could drive a train through the Act.

John Herron and John Howard sitting on the Elsey land claim no. 132, and burning the 1976 Northern Territory Land Rights Act, watched by Ian Viner and a group of Aboriginals (picture: Pen and ink drawing by Ward O'Neill 1999)

Land Rights News - Northern Edition
July 2014

Mr Ian Viner AO QC, the Federal Minster for Aboriginal Affairs in the Fraser Government who introduced the Aboriginal Land Rights (Northern Territory) Act in 1976, is totally opposed to the idea that the Commonwealth should surrender the Act to the Northern Territory.

The idea was floated by the NT Chief Minister, Adam Giles, in an interview with the ABC's radio current affairs pro-gram, Background Briefing, on Sunday July 13.

Mr Giles told the ABC: "I think at the end of the day patriation (of the Act to the Northern Territory) is the best model. I think there's probably an opportunity for us ... to be able to get the Land Rights Act here, which will allow us to work closer to the people on the ground, because fundamentally, Canberra is a long, long way away from the Territory."

Attorney General John Elferink was quick to push the same line on ABC radio the next day, couching his support for NT control of the Act in terms of economic development. "After 40 years you would hope for much greater outcomes. Certainly the paperwork released from the then Minister Viner and the Fraser government, saying what the Land Rights Act was going to achieve. established expectations far beyond what has been achieved and we believe that part of the reason for that is the link between the governed and parliament that governs is tenuous.

If the link was more direct. i.e. the Territory government and government took care of that legislation. we'd find a more responsive act," Mr Elferink said. Mr Viner, who still practises as a barrister in Perth, spoke to Land Rights News and challenged the claim that the Land Rights Act was a vehicle to promote economic development.

"My statement should not be misused. The Act was an instrument, expressed in the second reading speech (see below) to recognise, in Australian law, ownership of Aboriginal land," he said. "Woodward (Mr Justice A.E. Woodward, who was appointed Aboriginal Land Rights Commissioner by the Whitlam government and whose report led to the land rights legislation) said ownership would give Aboriginal people the opportunity to use their land for economic purposes: in those days it was really just pastoral use and mining.

These days, there will be new agricultural uses as Northern Australia is seen as a new frontier of food production. "But the purpose of the Land Rights Act was not primarily for economic development. That may have been a secondary outcome. Certainly, it was always foreseen that land ownership opens up economic opportunity, but the primary purpose was to grant title. "It's wrong to say the Act was introduced for economic purposes. If you look at it only in economic terms, it's easy to say, change the law of ownership and open the land up to being bought and sold.

"That's what happened in New Zealand, and it destroyed Maori traditional ownership. Any economic development has to be on Aboriginal terms and under Aboriginal control."

Asked whether he would trust a Northern Territory government to own the Land Rights Act, Mr Viner said: 'That's a rather loaded question.

I would avoid public debate in those terms. Rather. I'd put it in terms that the Land Rights Act was a national responsibility and should stay a national responsibility, certainly at this stage of history when the NT is still only a territory of the Commonwealth. "There are deeper issues than putting it in terms of trust or mistrust.

So-called land reform can only mean two things: Seeking to destroy Aboriginal freehold title and, two, taking away from Aboriginal people control over their own lands, subverting what Woodward and the Land Rights Act was all about. "It would be terribly wrong if the Land Rights Act was patriated (to the Northern Territory). "A Territory government could smash the whole basis of land tenure and change provisions to deal with mining. They could drive a train through the Act."

Having said that.,Mr Viner said he was also fearful about what the Commonwealth government has done to the Act since its enactment.

"Ever since it was passed. Commonwealth governments have been eating away at it. I don't trust the Commonwealth Parliament too much, either ... Mr Viner said. "Particularly since the intervention when the whole of the Parliament - Liberal. National, Labor. Greens and Independents - disgracefully voted to suspend the Racial Dis-crimination Act to allow discriminatory laws directed against Northern Territory people on race grounds. "The Aboriginal people of the Northern Territory have reason to distrust any government either Northern Territory or the Commonwealth - and have to be extremely vigilant against all governments trying to weaken the Land Rights Act and take even greater control over the lives of Aboriginal people and governance of their communities."

The Aboriginal Land Rights (Northern Territory) Act is the first national land rights legislation. Initially prepared by the Whitlam Labor government, it is passed with minor modifications by the Fraser Liberal/National Party government. The Act recognises 'traditional Aboriginal owners' for the first time in Australian law and it provides for 'the granting of Traditional Aboriginal Land in the Northern Territory for the benefit of Aboriginals, and for other purposes'. Although the Act has been amended more than 15 times since 1976 it remains substantially the same as passed in 1976.

Presentation of land title to the Yirrkala Council - The Minister for Aboriginal Affairs, Hon. Ian Viner, presented the land title to Roy Marika in 1978. (Picture: Northern Territory Library and Information Service)

Viner's original reading of the Act: Hansard

Excerpts from the Second Reading Speech on 4 June 1976 by Mr Ian liner.

Ian Viner AO QC

Minister for .Aboriginal Affairs to the Aboriginal Land Rights (Northern Territory)

Bill: "This Bill will give traditional Aborigines inalienable freehold title to land on reserves in the Northern Territory and provide machinery for them to obtain title to traditional land outside reserves. The coalition Parties' policy on Aboriginal affairs clearly acknowledges that affinity with the land is fundamental to Aborigines' sense of identity and recognises the right of Aborigines to obtain title to lands located within the reserves in the Northern Territory.

The Bill gives effect to that policy and, further, will provide Aborigines with the opportunity to claim and receive title to traditional Aboriginal land outside reserves. The Government believes that this Bill will allow and encourage Aborigines in the Northern Territory to give full expression to the affinity with land that characterised their traditional society and gave a unique quality to their life. the creation of ... Land Trusts will achieve the primary objective of any Land Trust scheme which is the vesting, under Australian law, of rights corresponding with traditional Aboriginal rights, without risk that the rights conferred are not sufficient to cover traditional Aboriginal rights.

I cannot over-emphasise the importance of this last mentioned aspect of land rights. It is a fundamental change in social thinking in Australia to recognise that within our community there are some people. the Aborigines, who live by a unique and distinct system of customary law.

'Some people have watched with interest - even suspicion - the statements which have been made by the Government on its intentions to legislate for land rights. Some have expressed surprise that a Liberal-Country Party government should have made the decision to grant land rights to Aborigines in the Northern Territory. Let there be no more suspicion. Let there be no more surprise, because the Government's proposals to recognise Aboriginal land rights in legislation is one more expression of the Government's commitment to liberal and progressive reform. It is the objective of the government to secure conditions in which all Australians can realise their own goals in life - to find fulfilment in their own way - consistent with the interests of the whole Australian community.

"The Australia we, as a Government, look to is one in which there is diversity and choice, because it is in diversity that people can pursue the lives they want in ways that they determine. Securing land rights to Aborigines in the Northern Territory is a significant expression of this objectise. It is an objective that will he pursued in a way consonant with the rights of other Australians. I am sure this progressive step will be studied with interest in the States with respect to their land. This bill is a major step forward for Aborigines in the Northern Territory not only for this generation but also for future generations who will benefit from it. They will have a land base that will be preserved in perpetuity. The introduction of legislation to grant land rights in the Northern Territory is an essential, progressive measure in the social and political history of Australia."