Woodward’s aims and guiding principles were particularly influential in shaping and constraining subsequent policy making on Aboriginal land rights. However, it is important to note that not all his recommendations were adopted when the land rights policy was finally legislated in 1976. The legislation fell victim to a remarkable period of unstable politics in Australia, having just failed to pass the final hurdle in the legislative process when the Whitlam government was dismissed in November 1975, and succeeded by the Liberal government under Prime Minister Malcolm Fraser. Despite the Liberal Party’s persistent hostility to Aboriginal land rights over the previous decade, Fraser was convinced of the importance of the legislation, but there were political and ideological caveats to be applied. By the time the legislation was reconsidered and passed by the new government, it had been modified in several key respects.
Aboriginal affairs had received minimal attention during what was an especially divisive election campaign in 1975. During the campaign, the Liberal Party promised that there would be “no change in policy or funding” for Aboriginal communities (cited in Eames 1983, 270), and this was interpreted to mean that the land rights legislation would be left unscathed. Not long after the election, the tensions within the coalition over Aboriginal land were becoming hard to conceal, and Fraser was wrestling with objections from members of the National Party, the coalition partner, and also within his own party room (Fraser and Simons 2010, 170). Interest groups had mobilised against the legislation of land rights, notably the Australian Mining Industry Council, and the Northern Territory government was also vocal. As Dexter recalls, “In January 1976 [the CAA] submitted the lapsed land
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rights legislation to Fraser in some trepidation, as we were not at all sure he would pick it up… Fraser wavered under pressure from the right wing of the Liberal Party; but this was countered by strong pressure from Senator Fred Chaney and colleagues” (Dexter 2008, 85).
Eames describes fears within communities in the Northern Territory during this period that the new government intended the “virtual abolition of the land councils” with the removal of their anticipated role in making land claims, and the reduction of their role to administrative tasks. Reports circulated that the Commonwealth intended to hand the land rights legislation to the Northern Territory Assembly to enact (Eames 1983, 270-1). Neither of these changes to Woodward’s governance recommendations was acceptable to the Central Land Council. Land councils had not been in existence for long but already the positive feedback process was working to create expectations within the Aboriginal communities of their right to be adequately represented and treated with respect as political actors. Activists were also horrified at the proposed weakening of Woodward’s recommendations on access, in particular with the softening of the power to veto mining activities, and the suggested handing of control over access to Aboriginal land, including roads, to the Northern Territory government (Lippmann 1981). Most significantly, observers were deeply disappointed at the removal of the provision within the legislation of the ability to claim land on the basis of need, a substantial revision to Woodward’s recommendation on the purpose of Aboriginal land rights (Howie 1981; Lippmann 1981). The last three of these proposals were ultimately included in the legislation, despite fierce protests.
The land councils and Aboriginal leaders were quick to make their views known to the Fraser government, making representations directly to Fraser and his ministers. The institutional arrangements around Woodward’s inquiry and his recommendations had given these leaders a confidence in their right to engage critically with government on matters which were to affect them. They were also much better informed about policy decision making processes in Canberra than they had been before Woodward’s inquiry, another important product of the new land council structures which Woodward had helped to create. Protest marches were also held in Alice Springs as well as in the southern states. As Charles Perkins observed, the protest march in Alice Springs in March 1976 revealed the strength of the views of Aboriginal people on the promised land rights legislation: land rights were not simply the product of activism by well-meaning supporters in the south, but were an urgent necessity for Aboriginal people who were still being pushed off their land and losing sacred sites to miners, pastoralists and developers (Perkins 1998, 18-19). This show of strength was also important in reinvigorating the land councils as more than simply a creature of the government designed to simplify consultation with Woodward. The feedback processes had taken hold, and the
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consequences would stretch far beyond anything imagined by Woodward or the Whitlam government.
The broad purpose of Fraser’s legislation was the same as that of the earlier version drafted by Whitlam’s government. Neate (1989, 12) observes the strong similarities between the second reading speeches of the respective Ministers for Aboriginal Affairs when presenting the Labor and then the Liberal versions of the Aboriginal land rights bills to the House, especially with respect to the “general purposes of the legislation”, and notes the remarkable level of bipartisanship which these speeches captured during this period of time, despite the adversarial political atmosphere more generally. The purpose for the Liberal government was narrowed in a substantial manner, however, with the decision to remove the possibility of claiming land on the basis of need. Instead, as the Minister Ian Viner argued in his second reading speech, the beneficiaries of land rights would be restricted to those who retained a traditional cultural connection to areas of land which remained unalienated, that is, still Crown land.
This was a particularly disappointing outcome for many in the land rights movement (Howie 1981). By excluding those who had moved (or been moved) away from their traditional lands, or those who could no longer access their traditional land, the Fraser government was withholding land rights from many Aboriginal people in the Northern Territory who lived in town camps, or who lived on land which was subject to a pastoral lease (ALRC 1974, 32-64). The Liberal government’s legislation also effectively excluded areas of land which had been deserted as traditional owners were no longer alive and able to claim them (Lippmann 1981). For those whose lands were not already identified reserves or missions, the prospect of an adversarial and contested claims process was a daunting one. The Liberal government’s reframing of the purpose of the land rights legislation also pointed to a more restricted understanding of difference, compared to the earlier version drafted by the Labor government. Where the ALP had sought to use the legislation to positively acknowledge the Aboriginal system of law around land ownership, which had been the subject of the Milirrpum decision, for the first time, the Liberal legislation in contrast adopted a more protectionist tone in awarding land rights as a means of allowing traditional culture to continue, in isolation and out of sight (Neate 1989 13).
The Northern Territory was granted self-government from 1 July 1978, and the relative timing of this initiative is significant. The Commonwealth passed the ALRA before authorising Northern Territory self-government, and the Territory government was bound by the Commonwealth legislation from the beginning, unable to amend or repeal it. The Fraser government decided to give responsibility for essential elements of access to the Northern Territory Legislative Assembly, though it continued
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to take an active interest in the practical implementation of any resulting legislation. In particular, the Assembly was given power to legislate on the management of Aboriginal land, a permit system to control access to Aboriginal land, the protection of sacred sites, and also wildlife conservation and the management of coastal waters (ALRA Section 74; see also Lippmann 1981, 54). On being granted self-government, the Northern Territory government passed the Aboriginal Land Act 1978 and the
Aboriginal Sacred Sites Act 1978 to fulfil these objectives. These Acts had come under the scrutiny of
the Commonwealth parliament in their drafting, with the Commonwealth parliament’s Joint Select Committee on Aboriginal Land Rights in the Northern Territory (JSC), chaired by Senator Neville Bonner, conducting a critical review in 1977. Bonner’s review noted a number of unsatisfactory aspects of the Territory’s legislation, especially where it departed from the Commonwealth’s legislation or Woodward’s recommendations, but the government-dominated committee did not question the role of the Territory in making its own legislation (JSC 1977). A dissenting “Protest” by the ALP’s Gordon Bryant deplored the delegation of power to the Territory, however, pronouncing it “an abdication of the responsibilities imposed upon the Parliament by the people of Australia by the referendum of 1967”, and “a failure” (JSC 1977, 71).
Consolidation
The legislating of Aboriginal land rights in the Northern Territory did not immediately calm the divisive politics around the issue, and protest and resistance continued in a number of policy venues for years after the ALRA took effect. The mining sector was especially vocal in criticising the land rights legislation and its impact on exploration and access to minerals in the Northern Territory (Altman and Peterson 1984; Rowse 1986; O’Fairchealleagh 1988). Other interests which depend on access to land were also mobilised against the legislation, including those engaged in pastoralism, fishing, tourism and agriculture (Altman and Dillon 1988). Public opinion in the Northern Territory was also hostile, as Lippmann noted in 1981:
Parts of the Land Rights Act have been implemented and parts rejected: the political fight goes on. Innumerable public statements are made in the Territory and letters to the editor are published in the press claiming that Aborigines are secretly practising apartheid in reverse and restricting whites from entering Aboriginal territory. (Lippmann 1981, 58)
The key sources of tension were thus access and difference, with respect to the treatment of Aboriginal and non-Aboriginal Territorians.
The establishment of the new level of government in the Northern Territory provided an additional political arena for those opposed to land rights. It was widely recognised at the time that the electoral politics in the Northern Territory were very different from those in the states (Jeansch and
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Loveday 1979). The political culture in the Northern Territory in the 1970s was observed to be especially conservative, being the product of isolation and poor transport and communications, a distinct frontier pastoralist economy, and an unusual political environment where there was no urban working class, no large metropolis, and no labour movement (Rumley 1979). The Territory was heavily reliant on Commonwealth funding to support its weak economy, and self-government was bestowed by the Fraser government, after seven years of debate in Canberra, despite relative apathy on the part of Territorians and active opposition from the Darwin-based public service (Heatley 1996, 55-56). This culture generated a new legislature which was effectively a one-party polity for a remarkably long, uninterrupted period, with the Country Liberal Party holding government in the Territory from self-government in 1978 through to 2001.
The Country Liberal government was a consistent critic of land rights, challenging land claims through the Aboriginal Land Commission and the court system at every opportunity, and arguing tenaciously against ceding to Aboriginal ownership a growing proportion of Territory land. Altman and Dillon (1988, 133) describe the CLP government during this period as the “natural adversary of the land rights legislation”, though they contend that the economic development of the Northern Territory would depend on a more cooperative relationship between the government and the Aboriginal land councils.
Despite differences of opinion within the Federal government, notably between the Liberal Party and its coalition partner the National Country Party, Prime Minister Fraser’s support for the broad policy directions outlined in the ALRA was unwavering (Heatley 1980, 45). The ALRA was amended several times during the Fraser years, partly to address operational issues emerging as the Act took effect, and partly to address the demands of mining companies, particularly around the Ranger Uranium mine, but the core principles of the legislation remained unchallenged. Meanwhile, the land councils were growing in capacity and experience, by this time, and were active in negotiations between mining companies and Aboriginal communities, and also engaging in disputes between the Northern Territory and Commonwealth governments (Altman and Dillon 1988). This period of consolidation was essential in establishing the patterns of positive feedback which would later reinforce the land rights regime and the land councils which were its primary defenders.
In 1978, Coombs was cautious about the success of the land rights legislation, in the face of the negative public opinion and the sustained campaign by interests and the Northern Territory government. He questioned the permanence of land rights:
The present situation has a transitory air. It seems likely that either political pressure will generalise more widely the proposals established by the Woodward Commission, or the present backlash will
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whittle them away, returning Aborigines to their former dependent and powerless condition. (Coombs [1978] 1994, 40)
It was certainly true that the Aboriginal Land Rights (Northern Territory) Act had significant enemies, and the Coalition parties later came to see the legislating of land rights as a mistake (Bennett 1989, 31; Goot and Rowse 2007, 67). Nevertheless, the critical juncture of the Woodward report and the legislation which followed had set in place a path dependency which would make the policy difficult to turn back.