Aboriginal land in the Northern Territory

In some respects, the history of Indigenous land ownership in Australia is unique. In comparable countries such as the United States, Canada and New Zealand, colonial laws gave at least some recognition to prior ownership of land by indigenous peoples. That recognition was both limited and problematic and, in the United States and New Zealand, it was accompanied by disastrous programmes for the allotment of land. It did nevertheless result in some indigenous groups retaining ownership of land after colonisation, which in North America was accompanied by a contained form of jurisdictional recognition. None of this happened in Australia. Until fairly recently, Australian law did not recognise prior Indigenous ownership of land at all. There were missions and reserves, areas of land that had been set aside for the use of Indigenous people, but this arrangement did not convey ownership rights of any kind, let alone jurisdiction. This was the situation that prevailed until the mid-1960s, since which time there has been a remarkable shift. Through statutory land rights schemes, and later through native title, Indigenous groups have regained exclusive rights to around 22.4 per cent of Australia.1 The scope of this achievement requires some context, in that nearly all of this land is located in remote and very remote areas, but it remains a significant restructuring of the Australian property landscape. This chapter does two things. It first summarises key elements of the way in which land is owned under Aboriginal law, according to current understandings. This is provided in Section 3.2, primarily by reference to published anthropological materials. Second, it describes how Aboriginalspecific forms of land ownership are provided for under the formal legal system.2 This is provided in Section 3.3. In order to make it clear which is intended, the term ‘Aboriginal land tenure’ is used when referring to the system under which rights and obligations to land are allocated under Aboriginal law, and the term ‘Aboriginal land’ is used when referring to land owned by Aboriginal groups under the formal legal system. This book takes as its primary case study the recent reforms to Aboriginal land in the Northern Territory, and this chapter is the first to take

that narrower focus. The reason for this will be readily apparent – there are 34 distinct statutory regimes and land acquisition mechanisms in operation across the country, in addition to native title.3 Describing them all would require pages of repetitious detail. At the same time, those details matter. Without them it is not possible to get a proper sense of who is, and who is not, an Aboriginal landowner, and what the recent land reforms actually mean for Aboriginal land. The Northern Territory is the jurisdiction in which the recent reforms are most widespread and advanced. It is also the jurisdiction with the largest proportion of Aboriginal land ownership. There are three statutory land rights schemes that together account for around half of the Territory. The first is land held under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), or ‘ALRA land’. The second is called Aboriginal community living area land, or ‘CLA land’, which is usually much smaller in area. The third is the land on which town camps are situated, or ‘town camp land’. Town camps are found in or on the fringes of larger urban centres such as Alice Springs, Tennant Creek and Darwin. Each of these schemes has a distinct history and land ownership structure. This chapter provides a picture of how they operate in practice, and in particular the relationship between these formal ownership systems and Aboriginal law. It is described how, of these three forms of Aboriginal land, it is only ALRA land that attempts to provide for formal ownership in accordance with Aboriginal law. The other two usually instead provide for ownership by the residential group. The important, and at times complex, distinction between traditional ownership and residence is fundamental to understanding how Aboriginal communities operate and how they have been impacted by the recent land reforms. This chapter makes clear how Aboriginal land tenure in the Northern Territory – in common with other parts of mainland Australia – was designed to support the activities of hunter-gatherer societies. Historically, there were no permanent settlements and no arrangements under Aboriginal law for ‘holdings’, or the allocation of exclusive rights over small areas to particular individuals and families. Instead, groups of people held collective rights to larger areas of land. Today, permanent settlements are the norm. Who, then, owns the land on which those settlements are situated, as well as the larger areas of land surrounding them? And what does it mean to talk about the ‘traditional owners’ for a community? This chapter answers these questions.