Bills Digest No. 108  1999-2000 Aboriginal Land Rights (Northern Territory) Amendment Bill (No.3) 1999


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WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Endnotes
Contact Officer and Copyright Details

Passage History

Aboriginal Land Rights (Northern Territory) Amendment Bill (No.3) 1999

Date Introduced: 8 December 1999

House: House of Representatives

Portfolio: Prime Minister and Cabinet

Commencement: Royal Assent

Purpose

The purpose of the Bill is to give effect to an agreement which settles part of two land claims under the Aboriginal Land Rights (Northern Territory) Act 1976 ('the Land Rights Act'). It does so by adding three parcels of land to Schedule 1 of the Land Rights Act. Scheduling will lead to the land being granted to an Aboriginal Land Trust in the Northern Territory for the benefit of those with a traditional entitlement to its use or occupation.

Background

Alternative paths to the grant of land

The Land Rights Act provides two main paths by which land can be granted in fee simple to traditional Aboriginal owners. The 'land claim' path involves an application to the Aboriginal Land Commissioner seeking recognition of a group's traditional attachment to land which is available for claim under the Act. The Land Commissioner conducts a hearing and produces a report based on the evidence presented. In almost every case, the Land Commissioner has recommended to the Commonwealth Minister that a grant of fee simple be made over part or all of the area claimed. The Minister then considers the report of the Land Commissioner, and where a recommendation to grant is accepted, the Minister recommends to the Governor-General that a grant of fee simple be made to the relevant Aboriginal Land Trust.

Alternatively, where land is described in Schedule 1 of the Land Rights Act, the Commonwealth Minister must establish an Aboriginal Land Trust to hold it for the benefit of Aboriginal people with a traditional entitlement. The Minister must then recommend that the Governor-General grant the land in fee simple to the Aboriginal Land Trust. A number of areas (mostly ex-reserves) were transferred to Aboriginal ownership by this method soon after the passage of the Land Rights Act. Subsequently it has provided a means by which agreements designed to settle outstanding land claims can be given legal effect. The Minister's Second Reading Speech to the Bill reports that, if passed, it will bring the total number of land parcels scheduled since 1977 to 64.(1)

Both the above processes have been involved in the land claims to which this current Bill relates.

The Warumungu and Frewena Land Claims

The Warumungu Land Claim, to an area east of the town of Tennant Creek, was originally lodged with the Land Commissioner over twenty years ago in November 1978. Because of a variety of circumstances including the unsuccessful attempt of the Northern Territory Government to put part of the area beyond claim by alienating it to a statutory corporation, amendments to the claim area by the applicants and a High Court case, the Land Commissioner's inquiry, after a false start, did not formally commence until March 1985. The Land Claim was punctuated by collateral litigation which entailed repeated visits by the parties to the Federal and High Courts and the Land Councils' newspaper Land Rights News described it as 'one of the longest and most bitterly fought land claims in the history of the Land Rights Act'.(2)

In July 1988 the then Aboriginal Land Commissioner, Mr Justice Maurice, delivered his report to the Minister for Aboriginal Affairs. It began:

One has only to read the accounts and view the photographs and drawings of Spencer and Gillen to realise that in 1901 the Warumungu were a flourishing nation in the ordinary sense: a large number of people of mainly common descent, language and history, inhabiting a territory bounded by defined limits and forming a society under one government. They were once reputed to be the most numerous, most intelligent and physically the best tribe in Central Australia.

Within a matter of years, the Warumungu had been almost completely dispossessed. They had fought vigorously to defend their inland state from the white invasion, but their spears and boomerangs were no match for men on horseback carrying firearms. In 1962 the Commonwealth of Australia revoked the second, and last, of their token reserves: a worthless piece of land upon which no person could survive. When they made this claim in 1978, the Warumungu were landless.

Astonishingly, perhaps, much of the Warumungu identity remains, and even today the sense of belonging to land is a powerful influence in the lives of these people of the Barkly Region.(3)

His Honour noted that the areas the Warumungu were 'relegated to claiming are not the areas of their choice; on the contrary'.(4) It also appears that portions of the claim affected a stock route of value to adjoining pastoral stations.(5) The present Bill embodies a small attempt to remedy by negotiated agreement the mismatch between land aspirations and legal reality which the accidents of tenure history and the inflexible operation of law can produce.

Mr Justice Maurice recommended the grant of fee simple to Aboriginal people over most of the 16 areas which constituted the claim. Included in the recommendation was part of a stock route and a travelling stock reserve with bores and other improvements used by adjoining pastoral operations including Rockhampton Downs. His Honour noted that grant of these areas could cause financial detriment to the pastoral operations.

Following the Aboriginal Land Commissioner's recommendation, some portions of the claimed land were handed back but negotiations between various parties dragged on for eight years before agreement over most outstanding issues was reached in May 1996. Under two agreements between similar sets of parties, grants of title to land were made along with commitments on future management of the Mary Ann Dam and arrangements for ownership, management and access to the Devil's Pebbles.(6)

According to the Central Land Council, negotiations continued over the portion of the claim relating to the Barkly stock route which bisected the southern extremity of Rockhampton Downs and an adjoining cattle station. The following passage from the Land Council's 1996-97 Annual Report appears to provide the specific background to the current Bill, though over two years have elapsed since it was written:

In the case of Rockhampton Downs protracted negotiations eventually culminated in an agreement on a 'land swap' deal which takes into consideration the land needs of traditional owners and pastoral management considerations of the lessee. The basis of the agreement is that claimants forgo their claim to the greater part of the land recommended for grant in return for a parcel of land adjacent and to the south of land already returned to them. In giving up their claim to a portion of the stock route claimants have sought the scheduling under the Land Rights Act, of the alternative area. The "swap" of land will provide the traditional owners with a configuration of land better suited to their needs and make available to the lessees a portion of the stock route and associated bores so that it may be incorporated into their station lease.

In association with this arrangement, agreement has been reached to schedule the Frewena Land Claim which lies adjacent to and immediately to the south of the alternative area.(7)

Main Provisions

Item 1 in Schedule 1 to the Bill provides for 3 parcels of land totalling just over 8000 hectares to be added to Schedule 1 of the Land Rights Act. This will lead to the land being granted in fee simple to an Aboriginal Land Trust to hold for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of the land concerned.

Endnotes

  1. The Hon. Philip Ruddock MP, Debates, House of Representatives, 8 December 1999, p. 13015, Second Reading Speech.

  2. Central and Northern Land Councils, Land Rights News, Vol. 2, No. 41, March 1997, p. 11.

  3. Mr Justice Maurice, Warumungu Land Claim, Report No. 31, Report by the Aboriginal Land Commissioner, Mr Justice Maurice, to the Minister for Aboriginal Affairs and to the Administrator of the Northern Territory, Canberra, 1988, p. vii.

  4. ibid., p. viii.

  5. Central Land Council, Annual Report 1996-1997, Alice Springs, 1997, p. 20.

  6. ibid.

  7. ibid.

Contact Officer and Copyright Details

Sean Brennan
2 February 2000
Bills Digest Service
Information and Research Services

This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document.

IRS staff are available to discuss the paper's contents with Senators and Members
and their staff but not with members of the public.

ISSN 1328-8091
© Commonwealth of Australia 2000

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Published by the Department of the Parliamentary Library, 2000.

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