The information below summarises the relationship between minerals exploration and the Aboriginal Land Rights (NT) Act 1976.  This background information is highly relevant to understanding the contemporary issues of uranium mining on Aboriginal land.

• Exploration Licence Applications: The process for granting an ELA is summarised.

• Northern Land Council Exploration Agreements: A more detailed analysis of the ELA process is available in the article by C. O'Faircheallaigh.

• Included further below are the main changes to the Land Rights Act proposed by the recent federal government Reeves Review.  For a more detailed analysis see the article Whose Land? Whose Law?

• Exploration Statistics for the Northern Territory are also available.

 

Minerals Exploration and the

Aboriginal Land Rights (NT) Act 1976

The Aboriginal Land Rights (NT) Act 1976 attempted to set out provisions to allow Aboriginal people to retain some measure of control over mining activities on their land held under freehold title. It was envisaged that minerals exploration and development would only take place if traditional owners as a group were well informed about the economic, social and ecological consequences of such activity. Traditional owners retained the right to refuse consent to exploration and mining activity for a period of five years. This has become commonly known as the 'veto' provision, although it can be overridden by the Governor General in the national interest.

An important principle of the Act was that exploration agreements between mining companies and traditional owners (who were represented by the Land Councils in negotiations) should include details of the terms and conditions of the subsequent mining stage. If any subsequent mining was in 'substantial accordance' with the original mining proposal outlined in the exploration agreement then the further consent of traditional owners was not legally required. This was termed a 'conjunctive' agreement. The provisions were not tested until 1982, however, when the NT Government lifted a freeze on processing exploration applications.

Between 1982 and 1987 most companies negotiated exploration agreements whereby Aboriginal consent to exploration did not include consent to mining, which had to be negotiated at a later date. These were known as 'disjunctive' agreements. This seemed to suit traditional owners and also the mining companies, who generally found the process simpler and less time consuming. The Northern Territory Government then advised companies it would not grant exploration licences on this basis.

In 1987 a number of amendments to the Act were passed through the Federal Parliament. All of these served to shift the balance of power even further towards the mining companies. They included a 12-month time frame for negotiations and the removal of the obligation on mining companies to detail the mining stage of the proposal. Indeed, the terms and conditions of mining could not even appear in the exploration agreement. Yet consent to exploration was now automatically deemed to include consent to mining.

Furthermore, a Supreme Court decision in 1992, following an NT Government challenge to the validity of an exploration licence negotiated between Stockdale Prospecting Ltd, Narulindji Aboriginal Corporation and the NLC, determined that the NLC could not require further consent to mining even when the company itself agreed with this provision. Aboriginal people were left with no option but to negotiate watered-down conjunctive agreements. Negotiations could only be over the 'principles and parameters' of mining, which would generally be attached as an appendix to the exploration agreement. It remains uncertain whether these are even enforceable.

The NLC has recently argued that the 1987 Amendments and the 1992 litigation 'resulted in a reluctance on the part of traditional owners to grant exploration licences. It has taken five years for the system to settle down' (NLC submission to the Review of the Aboriginal Land Rights (NT) Act 1976). It specifically attributes the increase in exploration licences in West Arnhem Land over the past three years to 'traditional owners' positive first hand experience of the Nabarlek rehabilitation'. Its most recent strategic plan proposes that consideration of exploration licences should be delegated to Regional Councils. This would speed up the process of administration and negotiation as the full NLC meets only twice per year.

Proposed Changes to the Act

Below are the main changes proposed by the Report of the Review of the Aboriginal Land Rights (NT) Act 1976 - August 1998.  For a more detailed analysis see the article Whose Land?  Whose Law?:

Sixteen Regional Land Councils (plus the two existing ones) will replace the two large Land Councils. Mining companies will have to negotiate exploration agreements with the relevant Regional Land Council. The NT Government will automatically grant the licence if it is satisfied the agreement does not fail on environmental or other grounds. If it believes this to be the case, it can refer the agreement back to the Regional Land Council for review, or alternatively, appeal to the Commonwealth Government for a proclamation that the mining activity should proceed in the national interest.

The Act should cease to prescribe a 12-month timetable for reaching agreements.

The Regional Land Councils will receive their annual budgets from a new body, the Northern Territory Aboriginal Council (NTAC), which will be required to approve how that money will be spent. Most of this money will be derived from mining royalties. The members of the NTAC will be jointly appointed by the Commonwealth Minister for Aboriginal and Torres Strait Islander Affairs and the Chief Minister of the Northern Territory from a list of nominations supplied by Aboriginal people. Elections may be held in due course.

The Regional Land Councils, not the traditional owners per se, will exercise the veto subject only to the existing national interest provisions. Membership will be comprised of Aboriginal people with traditional affiliations to an area of land within the region, or who are permanent residents of the region. Members will choose the Board of Directors, but the CEO will be from a list of candidates acceptable to the Board and approved by the NTAC.

The Act should contain provisions which allow a person to obtain a licence to enter Aboriginal land for the purpose of reconnaissance exploration. The Regional Land Councils will grant these short-term licences.

The two large Land Councils were not impressed with most of these proposed changes, calling them unacceptable attacks on self-determination. 'The big losers are traditional owners' they concluded (Land Rights News September 1998). Two years on and the Howard Government has yet to act upon these recommendations. A bi-partisan House of Representatives Committee concluded that no significant changes to the Act should be made without the consent of traditional owners in the Territory. Lets hope that the Howard Government acknowledges the strength of this finding, or gets booted out of office before it can do any more damage.