GOVERNANCE CHALLENGES

I first took on the role of NLC CEO on an interim part-time basis from late March 2019 after the Interim CEO was hospitalised. I then began working in the position on a substantive full-time basis from early May 2019.

The organisation had experienced some significant internal disruptions and governance challenges. Some of these arose from the structural tension arising from the nature of the NLC’s relationship with AIG.

Another continuing area of difficulty has been the interpretation and implementation of the “method of choice” process for selecting Full Council members approved by the previous Minister. In my view, the existing process should be further reviewed in the interests of both transparency and operational efficiency, but for the time being the existing process is in place and has been used to select the Full Council members, who will assemble for the first meeting of the new Council at the beginning of December.

It will then be up to the new Council and the new Executive to consider the best way forward. The goal will be to ensure that the process is fully and appropriately inclusive of Traditional Owners and native title holders across their respective estates and regions within the NLC’s boundaries.

We will all be trying our best to preserve and develop the legacy of NLC members, leaders, and dedicated staff members, who have worked hard over the decades to achieve and harness land rights for our people in the Northern Territory.

There is general agreement that there is strength in unity and diversity. The NLC’s size and substance in terms of being an authoritative voice for Traditional Owners from the Western Australia border to the Queensland border is part of what gives the organisation its capacity to achieve outcomes on critical issues.

The challenge for the future is to ensure that the NLC is operationally sensitive and attuned to the needs and wishes of even our smallest communities, so that our broad-based model of governance can remain intact and undiminished.

ALRA

The Aboriginal Land Rights (Northern Territory) Act (ALRA) has enabled many Aboriginal Traditional Owner groups in the Northern Territory to enjoy what is by far the strongest form of land title for Indigenous people in this country. Through a combination of the scheduling of reserve and some special areas, and the successful claiming of other Crown land available for claim, the NLC now administers a large part of the Top End, including much of its coastline.

The main mechanism for making use of this land under ALRA title is the s19 lease or licence. In my relatively short period as CEO, I have heard and taken on board the concerns of some communities and Traditional Owners and will be looking to review our s19 processes in the coming year with a view to improving our service delivery. Because use and development of ALRA land requires leasing, the NLC and the other three land councils necessarily have a place at the table when it comes to improving the way governments deliver community housing in ALRA land communities. The relationships between the land councils and the NT and Commonwealth governments are in the process of being reconfigured, and a new entity has been established to progress these changes, with our Chairman as first Chair. Although no fresh land claims can be submitted under ALRA, there is a backlog of past claims still to be pursued, mostly to beds and banks of rivers. This is a priority area of NLC work to be undertaken in the coming year, and will be the subject of future reports.

One important example of the superiority of ALRA title is that the grants of coastal land around the Top End have extended to the low water mark. This has meant that the land and waters in the inter-tidal zone in effect belong to the Traditional Owners who are the beneficiaries of the relevant land trust.

This concept, confirmed as a result of the lengthy Blue Mud Bay case litigation, has been hard for some non-Aboriginal stakeholders to absorb, but the climate of hostility and opposition that followed the initial court decisions is now being replaced by a sensible relationship of cooperation and pragmatism. The Deputy Chairman in particular is to be commended for his nuanced and carefully articulated messaging in the media. This has been to the effect that while Aboriginal ownership is to be respected and access rules complied with, there is a pathway forwards to mutual benefit and co-existence between stakeholders.

The land councils established under ALRA are funded through the Aboriginals Benefits Account (ABA), which is sourced from mining royalty equivalents and has been used to pay for a range of projects and capital works over the decades. Allocations from ABA are ultimately determined by the Commonwealth minister responsible for ALRA. The CEOs of the other three NT land councils and I are looking forward to working with Minister Wyatt in relation to a process for the vetting and approval of ABA applications that better reflect the interests of Traditional Owners and the issues that the ALRA was enacted to address.

Not long before my commencement at the NLC, the High Court handed down its judgement in relation to the Timber Creek native title compensation case. The clarification of the law in this area provides potential opportunities to be pursued but will also require the two mainland land councils to work together to hose down concerns raised by some stakeholders that their operations and interests will be threatened. This in particular relates to potential compensation claims relating to structural works undertaken on pastoral land. The preservation and protection of native title rights in pastoral country is likely to be an important issue over the coming year, in circumstances where pastoralists are seeking increasingly streamlined approval processes for undertaking non-pastoral business operations on land allocated to them for the running of cattle. The Northern Territory Government is proposing an enhancement of Native Title Act rights in relation to applications over a stipulated projected dollar value, to be called a “Territory right to negotiate”. The NT Cattlemen’s Association is strongly opposed to that course, and the competing arguments that we will
have to engage in will take us back to the High Court’s judgement in the Wik case.

It is to be hoped that common sense and fair dealing all round will prevail, in a way that does not leave historically marginalised native title claimants and holders with no real say in how their traditional country is developed.

The other big development in the native title area has been the Full Federal Court’s judgement in the Quall case. The process of consultation that preceded the ILUA entered into for the purpose of finalising the Kenbi Land Claim will be the subject of internal review. There are always going to be things that the NLC can do better and it is particularly important that the NLC engages in full consultations with identified Larrakia stakeholders. Nevertheless, the technical legal issue in the Quall case relates to a delegation process that has been routinely adopted not just by the NLC but by native title registered bodies throughout the country. In those circumstances, the Full Council has made the decision to try to appeal further to the High Court.

The purpose of the Aboriginal Investment Group has always been to generate and grow investment for current and future generations of Aboriginal people living in the NLC area, in particular those residing on Aboriginal land.

AIG and NLC have different jobs to do, and although the NLC is AIG’s major shareholder, the difficulties we have encountered this year arise from the NLC Executive also playing the role of directors of AIG. The Executive of the NLC have made it clear that a new pathway needs to be found and taken. The Executive members have recognised this for many years and the work towards a greater degree of structural separation between NLC and AIG has now commenced.

In the meantime, as a result of independent legal advice that the NLC has obtained, it has become apparent that the NLC must “consolidate” its accounts together with those of AIG to comply with the relevant applicable Australian accounting standard. That is a completely new development for the NLC and to some extent introduces an element of uncertainty into our financial planning.

ADVOCACY & NEGOTIATION

As well as having a number of extremely constructive meetings with our new Minister, Ken Wyatt and his NIAA staff, I have had numerous meetings with representatives of the Northern Territory Government and various stakeholder bodies.

Issues covered have ranged from community housing, permit reform, outstations/homeland infrastructure funding, regional development, leases to NT local government bodies, the role of Traditional Owners and land councils in the development of the NT (in particular at the Facing The North conference), water security, hydraulic fracturing, morgues and remote health service provision.

THANKS

I thank the Chairman and the Council for the opportunity to try to make a difference for our mob on the ground. In particular, I thank all the NLC’s hardworking staff, including those located at our more remote regional offices, for their commitment and dedication.

Marion Scrymgour

CHIEF EXECUTIVE OFFICER