Course:CONS370/2019/The promise and the reality of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 for the Anangu Indigenous Peoples of Australia
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Description
Aboriginal people have occupied the land of Central Australia for approximately 30,000 years (1). It is currently understood through numerous sacred sites, rock engravings and cave paintings that Anangu culture and occupation were established no more than 5,000 years ago (1). Colonisation and dispossession of land are considered to have lead to loss of autonomy, depreciation of culture, poverty and a sense of alienation and despair for Indigenous peoples (2). Currently and during the late 20th century an attempt at the resurgence of indigenous identity through land rights claims has been sought not only to secure economic benefits but also to heal, grow and sustain indigenous culture and spiritual values (2).
In this particular case study the legal mechanisms by which land rights and sovereign authority have been obtained for the Anangu Pitjantjatjara Yankunytjatjara (APY) peoples have been by statutory or common law title. This was accomplished through the Anangu Pitjantjatjara Yankunytjatjara (APY) Land Rights Act of 1981. This Act was the result of extensive negotiations between APY people and Parliament and was seen as an important milestone in South Australian State Government relations with the Indigenous peoples (3). The Act endorsed the process of APY people’s decision-making in relation to traditional APY lands and provided little or no State Government Intervention (3).
This case study is an attempt to consider: APY people's views on the Act prior and post to the Act being passed; affected stakeholders, interested stakeholders; any further alterations to the Act affecting legal land tenure and further recommendations to improve either the Act or APY Indigenous people’s land sovereignty and relations with the state.
Tenure arrangements
‘Native title’ refers to rights held by indigenous inhabitants of Australia prior to European settlement and after (4). These titles are often recognized in customary law. The significance of the APY Land Rights Act is that it is recognized under statutory law, that is, the land rights for APY people, ie. land tenure rights for APY, are in accordance with de jure practices. This freehold title for traditional Aboriginal owners is held by a statutory body authority (Anangu Pitjantjatjara members) who determine how the land is to be managed (5). The 'Bundle of rights' for APY are considered communal property where the land is held by an identifiable community of interdependent users, outsiders are excludable, use by insiders is regulated by mutual agreement, insiders' rights are equally accessible, not exclusive and are non transferable. The APY hold the 102,630 square kilometers of Southern Australian land in fee simple, where the land cannot be sold, compulsorily acquired, resumed or forfeited. The land is also not tax payable (4).
Administrative arrangements
Under section 6 of the Act, powers and functions of the Anangu Pitjantjatjara people include protecting the wishes of traditional owners (Anangu Pitjantjatjara's people) in relation to management, use and control of lands. Section 6 also considers negotiations with outside interested stakeholders desiring to use, occupy or gain access to the land. These powers and functions under section 9 of the Act are run by an executive board. Section 11 of the Act describes the function of the executive board. It states that resolutions are to be carried out by Anangu Pitjantjatjara (a body of 2,000-3,000 members) to collectively make decisions. This decision making process was thought to be difficult. That decision making body is too large to be efficient so over the next 22 years, decision making processes were carried out in accordance with Section 6 and 7 (5).
Section 7 required Anangu Pitjantjatjara to regard the interests of, and consult with traditional owners, ensuring that they understand the nature and purposes of proposals, have the opportunity to express their views and consent to proposals. The continued struggle with the role and function of the executive branch was thought to have stemmed from the administrative role never being adequately described. Even so this branch continued to meet over the next 22 years, addressing land management issues such as livestock exploration, mining, native title, tourism, housing and essential services, infrastructure and research (5). In 2005 during the Annual General Meeting (AGM), the Pitjantjatjara’s Land Rights Amendment Bill 2005 (SA) was put forth to the Legislative Council and assented to as the Pitjantjatjara Land Rights Amendment Act 2005. This Act amended the membership, election, term, chair, powers and functions, performance, and accountability of the Executive Board. It also requires the presentation of an Annual Report to the Minister, budgets for approvals for funding. The Act further sets out the terms for the appointments, performance and functions of the Director of Administration and General Manager and requires review of the amendments upon the third anniversary of commencement (5).
Affected Stakeholders
Anangu Pitjantjatjara Yankunytjatjara (APY) Citizens - This category includes all traditional land owners of the communities including Indulkana, Mimili, Kaltjiti, Pukajata, Amata, Pipalyatjara, and Watarru and the homelands of Kalka, Kanpi, Nyapari and Yunyarunyi. APY oversee activities of the various constituent groups serving the needs of the people on the Lands as well as create policies regarding economic and social development. They come together to elect an Executive Board with an administration centre of the Lands located in Umuwa (*). APY Executive involve themselves with the organization structure, APY annual and special general meetings, elections, APY Land Rights Act, finance, annual reports, executive forms, code of conducts, constitution, and minutes (6). They’re responsible for creating permits pertinent to lands with regard to employment, general land accessibility, research and media. These permits each have conditions which permit holders must follow at all times that are created by the APY (7). Present day goals include seeking to improve electronic services and sees the internet as a way to connect communities (6). Medium power, high degree of care.
*Under the APY Land Rights Act, the Executive Board is the governing body of APY. Its 14 elected members from across the APY Lands and are elected for a 3-year term under an election supervised by the Electoral Commission of South Australia. The Executive Board chooses its own Chairperson. The APY Chairperson in the year xx was Mr. Frank Young. The APY Executive Board must meet at least every two months, though it often meets monthly because of the number of issues they consider.
Pitjantjatjara Council - Composed of Ngaanyatjarra, Pitjantjatjara and Yankunytjatjara people who formed the council in 1976 (8). Composed of lawyers, anthropologists, engineers, accountants, administrators, horticulturalists, and support staff to provide service for individuals, communities, outstation and organizations to work on issues such as land rights, land management, work supervision, legal advice, community development advice, researching and coordination of women's groups and issues, economic development projects, water exploration, community employment and management training, communications and welfare assistance. Their major objectives are to organize and protect land and culture by focusing on land and the land rights (9). From 1994 into present day the Pitjantjatjara Council has been working on the Ara Irititja Project. This was created as a form of outreach to remote Aboriginal communities in Central Australia, historical and contemporary photos, movies and other multimedia materials and to support the maintenance and intergenerational transfer of Aboriginal cultural information, traditional ecological knowledge, family and community history and language (10). High power, high degree of care.
Non-Anangu Indigenous People - Surrounding areas are also occupied by other indigenous peoples. These include communities such as the Murrawarri, Koori (Koorie), Ngunnawal, Goorie, Murrdi, Murri, Nyungar, Yamatji, Wangai, Nunga, Yapa, Arrernte, Yolngu, Bininj, Tiwi, Anindilyakwa, and Palawah who numbered close to 750,000 at the time of the first European settlement (11). Many groups of indigenous peoples continuously strive to retain their culture and heritage, given the scale of their losses from the history of conflict with the Australian nation. Such as the abuse they received from the government in the time period of 1800’s to the 1970’s pertaining to removal of indigenous children, forcible imposition of new religions and deviation of missions from prior indigenous heritage (11). Low power, medium degree of care.
Interested Outside Stakeholders
All Non-APY People (excluding police) - All other people residing in Australia are relatively unaffected, as major cities are predominately by the coast. A goal for these individuals could be to explore areas in their country that are less visited, areas where APY people could be residing. People would be less inclined to want to be prohibited from visiting an area if they wished to do so, and to be more mindful when travelling into unknown areas. Low power, low degree of care.
Exploration Companies - This involves all companies that are involved with gas and oil. Major goals of these companies would be to be able to access the lands that are desirable for their materials and be able to utilize it in the most convenient manner possible. The simplest process that would be ideal from the company's point of view is to get licensed through the government, negotiate terms on how to best access the land and managing for the best way to keep both themselves and potentially outsiders satisfied with their practice. This includes companies such as ABRA Mining, Burey Gold, DMC Mining etc. (12). Medium power, low degree of care. If APY people do not agree with mining companies or reach an agreement, they cannot veto the mining absolutely (15). In other words the mining company may refer this case to an arbitrator (this could be a judge of the High Court, the Federal Court of Australia, or the Supreme Court of a State or Territory of Australia) is asked to either affirm the APY people's decision to refuse or bind the mining company with terms and conditions and ensure that reasonable payments are made to APY people's (15).
Tourist Groups/Companies - These groups include people that are trying to access the land to entertain nationals or foreigners to typically unseen areas. Groups such as G Adventures, Uluru Camel Tours and Emu Run Experience – Day Tours wish to access the lands by means of tours, walks, hikes, camping etc. (13-15). The easiest way for this to be done is to have as few restrictions as possible as having to talk to more people would be indicative of a longer process with more people to negotiate/accommodate to. Low power, medium degree of care.
Discussion
The Anangu Pitjantjatjara Yankunytjatjara (APY) Land Rights Act in 1981 intention was for the acknowledgement and return of proper ownership of land to the APY people. With doing this, a positive relationship could be formed between colonizers of the land (Australian government) and the traditional land owners. With this return of land, and the creation of the Land Rights Act, proper tenure arrangements were properly fulfilled. With a successful implementation of the APY executive board, proper arrangement of rules and enforcing these rules can be easily done. This of course, being only successful if the executive board is created fairly with input from all APY people. Below is a conflict list of the inside and outside stakeholders and the opinions that should be considered upon the return of this traditional APY land.
Conflict List
Anangu Pitjantjatjara Yankunytjatjara (APY) Citizens – No conflict, aside from a large change in life.
Pitjantjatjara Council – Increased responsibly with managing land use for other people, including both creating laws that all APY citizens could have an input in and enforcing these rules. Therefore, representative of creating a more organized community. The act requires APY to state their wishes and opinions of traditional owners in relation to the management, use and control of the lands. They may also require compensation for disturbance to their way of life which may result from the granting of resource extractive licenses by the government (7).
Non-Anangu Indigenous People – The inability to access the land that was returned to the APY people without their approval. However this returned land to the APY could be used a prime example for future Indigenous people's to gain control of their ancestral traditional land.
All Non-APY People (excluding police) – Lack of ability to access land.
Exploration Companies – More thorough application process. Must first seek approval of the Minister for Energy Mining before entering. Submit application to the Executive Board of APY to grant unconditional permission, permission subject to conditions or to refuse the application. As well royalties from minerals or petroleum are paid into fund maintained by Ministry for Energy and Mining which is then divided evenly amongst APY, the Minister for Aboriginal Affairs and Reconciliation for the benefit of Central Australian Aboriginal People and to State Revenue (7).
Tourist Groups/Companies – Obtaining the right to use the land with permission from APY Council.
Assessment
Anangu Pitjantjatjara Yankunytjatjara (APY) Citizens (Medium Power, High Degree of Care) - Input goes through the APY council on laws and regulations. Occupy their traditional land that cannot be forfeited.
Pitjantjatjara Council (High Power, High Degree of Care) - Authorize laws and regulations. Admittance/denial of others from accessing land and the agreements that are made with those individuals/companies.
Non-Anangu Indigenous People (Low Power, Medium Degree of Care) - Require permission to be on land, therefore not prevalent in decision making processes. However may still have emotional, cultural or spiritual attachments to the land.
All Non-APY People (excluding police) (Low Power, Low Degree of Care) - To request admittance to the land. Are not affected if the land is degraded. May not have cultural, spiritual or emotional attachments to APY land.
Exploration Companies (Medium Power, low Degree of Care) - Potential for conflict with regard to regulations that are implemented by APY people and the state. Compensation to allow benefit to APY peoples through land extractions practices. May seek an arbitrator (this could be a judge of the High Court, the Federal Court of Australia, or the Supreme Court of a State or Territory of Australia) to either affirm the APY people's decision to refuse or bind the mining company with terms and conditions (15). Only occupy APY land for short term but have long lasting degrading effects to the land.
Tourist Groups/Companies (Low Power, Medium Degree of Care) - To form relationships with APY people to give incentive to allow experiences on the land for other people that are non APY visitors. This could then transfer to cultural and spiritual values of APY peoples being shown to outsiders.
Recommendations
In Practice the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 grants APY people's the with ability to grant permission unconditionally, grant permission subject to conditions, or refuse permission entirely to any activity occurring on APY land (16). In reality if APY people do not agree with activities or reach an agreement such as mining, they cannot veto the activities absolutely (15). In other words activities occurring on APY land may be referred to an arbitrator (this could be a judge of the High Court, the Federal Court of Australia, or the Supreme Court of a State or Territory of Australia) and asked to either affirm the APY people's decision to refuse or bind the interested stakeholder with terms and conditions and ensure that reasonable payments are made to APY people's (16). It is therefore a recommendation that APY people's obtain Free, Prior and Informed Consent (FPIC) recognized in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) which would allow them to give give or withhold consent to a project that may affect APY lands (17).
References
In-Text Citations
(1) Chatty, D., & Colchester, M. (Eds.). (2002). Conservation and mobile indigenous peoples: Displacement, forced settlement, and sustainable development (Vol. 10). Berghahn Books.
(2) Langton, M. (Ed.). (2006). Settling with Indigenous people: Modern treaty and agreement-making. Federation Press.
(3) Berg, S., & D'Assumpcao, K. (may 2006). The Pitjantjatjara Land Rights (Miscellaneous) Amendment Act. INDIGENOUS LAW BULLETIN,6(19), 8-9. https://search.informit.com.au/documentSummary;dn=20062501;res=AGISPT.
(4) Farrelly, S., Mr. (2018). Aboriginal Interests. Retrieved from http://www.energymining.sa.gov.au/petroleum/licensing_and_land_access/aboriginal_interests
(5) Morley, R. (november 2015). The Pitjantjatjara Land Rights Amendment Act : Addressing governance on APY lands. INDIGENOUS LAW BULLETIN,6(15), 10-11. https://search.informit.com.au/documentSummary;dn=20060362;res=AGISPT.
(6) Anangu Pitjantjatjara Yankunytjatjara, A. (2019). About Us. Retrieved from http://www.anangu.com.au/index.php/about-us.html
(7) Anangu Pitjantjatjara Yankunytjatjara, A. (2019). Permits. Retrieved from http://www.anangu.com.au/index.php/permits.html
(8) Pitjantjatjara Council, A. (n.d.). History. Retrieved from
http://www.pitjantjatjaracouncil.com.au/history.html
(9) Pitjantjatjara Council, A. (n.d.). Activities. Retrieved from http://www.pitjantjatjaracouncil.com.au/activities.html
(10) Pitjantjatjara Council, A. (n.d.). Ara Irititja Project. Retrieved from
http://www.pitjantjatjaracouncil.com.au/arairititja.html
(11) World Atlas. (2019). World Map / World Atlas / Atlas of the World Including Geography Facts and Flags - Worldatlas.com. Retrieved from https://www.worldatlas.com/article
(12) Mining and Exploration, A. (2010). Australian Mining & Exploration Companies. Retrieved from
http://www.miningandexploration.com.au/Companies/index.html
(13) Sayej, N., & Bloom, J. (2019). Connect to the World with Small Group Adventure Travel. Retrieved from https://www.gadventures.com/
(14) Tours, U. C. (2019). Uluru Camel Tours (Yulara). Retrieved from https://www.tripadvisor.ca/Attraction_Review-g255065-d1763992-Reviews-Uluru_Camel_Tours-Yulara_Red_Centre_Northern_Territory.html
Staff, E. (2018, April 23). Get the Emu Run Experience | Uluru & Central Australia Tours. Retrieved from https://emurun.com.au/
(15) Ali, S. (2000). WMC: Olympic Dam Mine [Scholarly project]. Retrieved from https://www.ulethbridge.ca/sites/default/files/saleem_ali_2.pdf
(16) Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981. (2005). Adelaide: South Australian Govt. Pr.
(17) The Food and Agriculture Organization of the United Nations. (n.d.). Free, Prior and Informed Consent. Retrieved from http://www.fao.org/indigenous-peoples/our-pillars/fpic/en/
Image Citations
Lee, A., & Lewis, M. (2018). Testing the Price of Healthy and Current Diets in Remote Aboriginal Communities to Improve Food Security: Development of the Aboriginal and Torres Strait Islander Healthy Diets ASAP (Australian Standardised Affordability and Pricing) Methods. International journal of environmental research and public health, 15(12), 2912.
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