WARNING:
This Digest was prepared for debate. It reflects the legislation as
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CONTENTS
Aboriginal Land Rights (Northern Territory) Amendment
Bill 1997
Date Introduced: 18 June 1997
House: House of Representatives
Portfolio: Aboriginal and Torres Strait Islander
Affairs
Commencement: If the substantive provisions of the
legislation have not been commenced 12 months after the legislation
receives Royal Assent, then they commence on the first day
thereafter.
To amend the Aboriginal Land Rights (Northern Territory) Act
1976 to dispose of certain Aboriginal land claims over stock
routes and stock reserves.
Aboriginal Land Rights (Northern Territory) Act 1976 as
originally enacted and stock routes and stock reserves
The Aboriginal Land Rights (Northern Territory) Act
1976 (Cwlth) (the Principal Act) provided for the immediate
transfer to Aboriginal people of some 258,000 sq km of land which
had previously been government reserve land set aside for
Aboriginal people. It also provides a mechanism for the grant of
traditional Aboriginal land in the Northern Territory to Land
Trusts who hold title for the benefit of the traditional Aboriginal
owners.(1) In general, traditional land claims can be made on
either unalienated Crown land outside a town, or land outside a
town in which all the estates and interests not held by the Crown
are held by, or on behalf of, Aboriginals.(2) As a general rule,
where land is granted following a traditional land claim, the title
is held by an Aboriginal Land Trust in fee simple. This is the most
complete and secure form of title to land.
Aboriginal land claims are heard before an Aboriginal Land
Commissioner who makes recommendations to the Commonwealth Minister
for Aboriginal and Torres Strait Islander Affairs. The Minister
then decides whether or not to accept the recommendation.
As well as specifying what land is potentially available for
claim, the Principal Act also excludes certain land from claim. For
example, roads are excluded.
Following the passage of the Principal Act, a number of land
rights claims were lodged claiming areas of land which included
stock routes. Stock routes are not specifically excluded from
claim. A series of cases in the 1980s established that stock routes
and stock reserves were claimable under the Act.(3) In Re
Warumungu Land Claim, the Full Court of the Federal Court
referred to the Principal Act's Second Reading Speech and the
subsequent history of the legislation in order to decide whether
the term 'road' used in the Principal Act without any definition
included 'stock routes'. Sweeney J said:
It is not to be supposed that the Parliament, when it came to
consider what land should be incapable of being included within a
recommendation of the Commissioner [for the granting of an
Aboriginal land claim], was unaware of the separate treatment in
the ordinances [of the Northern Territory] of roads and stock
routes. The Parliament chose to use the word 'road' without
defining it. It did not say 'road or stock route' as it might
easily have done, had there been any intention to exclude stock
routes. It is to be remembered that the area of the latter amounted
in total to some thousands of square miles, which would have been a
substantial exclusion, even bearing in mind the vast area of the
Territory.(4)
In a recently published text, Indigenous Legal Issues,
the authors comment: 'In cattle country, stock reserves and stock
routes were often the only portion of traditional land that were
claimable. Pastoralists, however, expressed concern about loss of
access to stock routes.'(5)
Amendments to the Principal Act relating to stock routes and
stock reserves
Aboriginal Land Rights (Northern Territory) Amendment Act
1987
In 1986, the Commonwealth Labor Government introduced the
Aboriginal Land Rights (Northern Territory) Bill 1986 (the 1986
Bill). That Bill subsequently became the Aboriginal Land Rights
(Northern Territory) Amendment Act 1987 (the 1987 Act) and
provided that, with certain exceptions, the Aboriginal Land
Commissioner could not hear a traditional land claim to a stock
route or stock reserve.(6)
At the time of the introduction of the 1986 Bill, the then
Minister for Aboriginal Affairs, the Hon. Clyde Holding, said:
Under the present Act it is possible for Aboriginals to claim
title to stock routes and reserves, and a number of the claims that
have yet to be heard and reported on by Aboriginal land
commissioners are in respect of such stock routes and reserves.
Some practical problems have emerged. On the one hand, a claim
to such lands may offer, to some Aboriginal groups living in the
pastoral areas of the Northern Territory, the best or in some cases
the only prospect of obtaining title to some of their traditional
lands. On the other hand, to proceed to grant title to some of
these areas-assuming that a land commissioner had so
recommended-would result in the splitting of existing pastoral
leases into two or more segments, with consequent disruption and
costs for the pastoralists concerned.
Against this background, it has been the Government's position
that it would be preferable, as a general rule, that claims to
stock routes and reserves not proceed and that a program be
developed, with the co-operation of the Northern Territory
Government and pastoralists, whereby excisions from pastoral leases
to provide living areas for Aboriginal groups would be negotiated.
Useful progress has been made in these negotiations. These
negotiations are now well advanced in 40 cases, and actual title
has been granted in 13 cases. There are some 61 applications at
varying stages in the pipeline.
There are, however, some Aboriginal groups living in pastoral
areas for whom the excisions program offers limited prospects and
who may therefore, in view of the land councils, be seriously
disadvantaged if they were forced to forgo the prospect of
obtaining living areas on stock reserves. We have also been
discussing these special cases with the Northern Territory
Government.
I have now informed the Chief Minister of the Northern
Territory, the land councils and the Cattlemen's Association that
the Commonwealth will proceed, in this Bill, with an amendment
which will prevent a land commissioner from hearing claims to stock
routes and reserves, unless a hearing has already commenced or
unless the stock route or reserve is wholly encompassed in the
overall area of land under claim. This is a significant
concession.(7)
In general, the provisions of the 1987 Act commenced on Royal
Assent.(8) However, two of the sections it inserted into the
Principal Act [subsections 50(2D) and (2E)] were to come into
operation on a date fixed by Proclamation.(9) These two subsections
related to claims over stock routes and stock reserves. The
Proclamation was not made until February 1990 and set a
commencement date of 1 March 1990 (see below).
Negotiations between the Commonwealth and the Northern
Territory Government
Between 1987 and 1989, the Commonwealth negotiated with the
Northern Territory Government for the establishment of a statutory
regime to cover the grant of Aboriginal community living areas on
pastoral land. It appears that these negotiations involved
'trade-offs' concerning stock routes and stock reserves in return
for Territory legislation enabling community living areas to be
excised from pastoral leases.(10)
The need for a statutory regime in the Northern Territory
relating to Aboriginal community living areas on pastoral land was
referred to in Minister Holding's speech above. It had been raised
at least as early as the 1970s,(11) and was addressed by Justice
John Toohey in his 1983 report on the Aboriginal Land Rights
(Northern Territory) Act 1976.(12) Justice Toohey remarked in
that report:
While the amount of land available for claim under the
[Principal] Act is substantial, there are many Aboriginals to whom
the benefits of the legislation are not available because their
traditional country is on alienated land (mainly pastoral leases)
which cannot be claimed....
Most of these communities have no security of title to the land
on which they live and many are anxious for that security. Without
it they do not qualify for some forms of government assistance and
so are unable to improve their material conditions significantly.
Understandably, governments are reluctant to spend substantial sums
on improvements to land in which Aboriginals have no legal
interest.(13)
In 1989, an agreement was reached between the Commonwealth and
the Northern Territory:
- the Northern Territory enacted legislation for the excision of
Aboriginal community living areas on pastoral land—the
Miscellaneous Act Amendment (Aboriginal Community Living Areas)
Act 1989 (NT).(14) This legislation enabled certain Aboriginal
people to apply for community living areas on pastoral
properties—with a successful application leading to a grant
of freehold title to them.(15)
- the Commonwealth undertook to proclaim the 1987 amendments
relating to stock routes and stock reserves. The Proclamation was
made February 1990 with effect from 1 March 1990.(16)
- the Commonwealth introduced what became the Aboriginal Land
Rights (Northern Territory) Amendment Act 1989, under which
certain land claims then existing over stock routes and stock
reserves were granted to Aboriginal people.(17) In return, it
appears that other land claims over stock routes and stock reserves
were withdrawn by Aboriginal Land Councils on instruction from the
claimants.(18)
However, it appears that difficulties may remain—both with
the Commonwealth's 1987 amendments and the Northern Territory's
statutory regime for Aboriginal community living areas.(19) The
1987 Act provided that the Aboriginal Land Commissioner could not
hear certain land claims involving stock routes and stock
reserves. However, the legislation did not dispose of those
claims. As a result of section 67A of the Principal Act, it may be
that such land cannot be dealt with by the Northern Territory
Government.(20) In relation to the Northern Territory's legislative
scheme for Aboriginal community living areas, the Commonwealth has
suggested that amendments are needed to expedite the granting of
those areas.(21)
Further negotiations between the Commonwealth and the Northern
Territory Government resulted in an agreement in 1995 that the
Commonwealth amend the Principal Act so that stock route and stock
reserve claims that cannot be heard by the Aboriginal Land
Commissioner would be disposed of. In return, the Northern
Territory agreed to amend its Pastoral Land Act 1992 in
relation to Aboriginal Living Areas. '... to expedite the granting
of living areas to Aboriginal people, particularly those being
dealt with by the Community Living Areas Tribunal.'(22)
The Northern Territory Legislative Assembly was recently
prorogued for the Territory election. It is expected that
amendments to the Pastoral Land Act 1992 (NT) in the form
of a new Bill will be introduced into the new Assembly.
Clause 2 of the Bill is the commencement
provision. The Schedule to the Bill which contains the substantive
provisions will commence on proclamation. However, if no
proclamation has been made 12 months after the date on which the
legislation receives Royal Assent, then the Schedule commences the
day after the expiration of the 12 month period.
Items 1 and 2 of Schedule 1 amend section 67A
of the Principal Act. Section 67A provides that interests in land
cannot be granted where land is subject to a land claim under the
Act.
Subsection 65A(5) of the Principal Act sets out the
circumstances in which a traditional land claim will be regarded as
being disposed of. At present, a land claim is disposed of if, for
example, the claim is withdrawn, the claim is granted or a decision
is made to reject the claim.
Item 2 of Schedule 1 inserts new
subsection 65A(6) into the Principal Act. New
subsection 65A(6) adds to the circumstances in which a
land claim will be taken to have been disposed of. The circumstance
is that the claim involved a stock route or stock reserve and the
Aboriginal Land Commissioner had not commenced an inquiry into the
land claim as at 1 March 1990 (ie the commencement date of
subsection 50(2D)(23) of 1987 Act).
- As at April 1996 '... Aboriginal freehold (including land held
under Northern Territory title) comprised 560,184 square
kilometres, approximately 41.61 per cent of land in the Northern
Territory. Land under claim at that date constituted another 8.33
per cent, approximately.' McCrae, H et al Indigenous Legal
Issues. Commentary and Materials, 2nd ed, LBC, Sydney,
1997.
- As a result of amendments made to the Principal Act in 1987,
land claims cannot be lodged after 5 June 1997. However, most
available land is already subject to claim (see McRae,
op.cit).
- McCrae et al, op.cit.
- (1987) 77 ALR 27 at 29.
- McRae et al, op.cit:189.
- However, the Commissioner was enabled to deal with such claims
where: the Commissioner had commenced an inquiry before the
amendment came into force [section 50(2D)(c)]; the stock route or
stock reserve is bounded along each of its two longer sides by
contiguous land which is also land to which the claim relates
[section 50(2E)]. This exception relates to the situation where a
larger claim area includes part of a stock route or reserve and
would be split by that land if the rest of the claim were to
succeed; or there is a declaration by regulation that the stock
reserve is not one to which the amendment applies. This
exception was deleted from the Act by the Aboriginal Land
Rights (Northern Territory) Amendment Act 1989. It had
been provided to allow a claim to a particular stock reserve to
succeed where the Aboriginal group in question may not have had any
other prospect of obtaining title to a suitable living area.
- Parliamentary Debates (Hansard), House of Representatives, 22
October 1986: 2568-9.
- Subsection 2(1), Aboriginal Land Rights (Northern Territory)
Amendment Act 1987.
- Subsection 2(2), Aboriginal Land Rights (Northern Territory)
Amendment Act 1987.
- McCrae et al, op.cit: 173.
- See, for example, The Gibb Report—the Report of the
Committee to Review the Situation of Aborigines on Pastoral
Properties in the Northern Territory (December 1971), the Second
Report of the Aboriginal Land Rights Commission (April 1974), the
1980 Report of the Inquiry into Pastoral Land Tenure in the
Northern Territory and the 1982 Report of the House of
Representatives Standing Committee on Aboriginal
Affairs—Strategies to Help Overcome the Problems of
Aboriginal Town Camps.
- See Seven Years On. Report by Mr Justice Toohey to the
Minister for Aboriginal Affairs on the Aboriginal Land Rights
(Northern Territory) Act 1976 and Related Matters, AGPS,
Canberra, 1984.
- ibid: 3.
- Provision for Aboriginal community living areas is now
contained in Part 8 of the Pastoral Land Act 1992
(NT).
- In order to be an applicant for a community living area, an
Aboriginal person must have been, at any time since 1968,
ordinarily resident on pastoral lease land to which the application
relates; or must have an historical association with the pastoral
lease which is the subject of the application. An applicant must
also be able to demonstrate a present need for a community living
area. These criteria do not apply where the lessee of the pastoral
property has consented in writing to the application being made. It
appears that provision was made in the legislation for Aboriginal
people not ordinarily resident on pastoral lease land because, ...
after the equal wage decision in 1965 and a subsequent decline in
Aboriginal employment [on pastoral land], together with the
introduction of cash welfare payments ...[many Aboriginal people
left their traditional lands] ... for towns, government settlements
and missions.' Burke, P 'Who needs a community living area? The
'need' requirement in the NT excisions legislation,' Aboriginal
Law Bulletin, 2(52) October 1991: 7-9 at 7.
- See Commonwealth of Australia, Special Gazette S 51,
28 February 1990.
- According to Gerry Hand, who was then Commonwealth Minister for
Aboriginal Affairs, about 26 per cent of the total stock route and
reserve claims were granted at this time (equalling about 0.17 per
cent of the total area of the Northern Territory). Mr Hand said
these areas were selected for grant after consultation with the
Northern Territory Government. McCrae et al state that about 50
claims were scheduled and the land vested in Aboriginal Land
Trusts.
- McCrae et al, op.cit: 173. See also: Central and Northern Land
Councils, Our Land. Our Life. Aboriginal Land Rights in
Australia's Northern Territory, 1991: 25.
- A variety of views exist about the success of the Northern
Territory's Aboriginal community living areas legislation. Readers
are referred to: 'The excision fiasco' Bulletin with
Newsweek, 11 February 1992; 'Who needs a community living
area? The 'need' requirement in the NT excisions legislation,'
Aboriginal Law Bulletin, 2(52) October 1991;
Indigenous Legal Issues. Commentary and Materials (1997):
190.
- See Second Reading Speech, Aboriginal Land Rights
(Northern Territory) Amendment Bill 1997.
- See Second Reading Speech, Aboriginal Land Rights
(Northern Territory) Amendment Bill 1997.
- See Second Reading Speech, Aboriginal Land Rights
(Northern Territory) Amendment Bill 1997.
- Section 50(2D) does not apply where: an inquiry into the land
claim was underway before the commencement of section 50(2D) (ie 1
March 1990); or the stock route or stock reserve ... is along each
of its two longer boundaries, contiguous to land to which the
application relates' (section 50(2E)).
Jennifer Norberry
3 September 1997
Bills Digest Service
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ISSN 1328-8091
Commonwealth of Australia 1997
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Published by the Department of the Parliamentary Library,
1997.
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Last updated: 9 September 1997
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