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CONTENTS
Passage History
Purpose
Background
Main Provisions
Endnotes
Contact Officer & Copyright Details
Aboriginal Land Rights (Northern Territory) Amendment
Bill (No.3) 2000
Date Introduced: 1 June 2000
House: House of Representatives
Portfolio: Aboriginal and Torres Strait Islander
Affairs
Commencement: Royal Assent
The purpose of the Bill is to facilitate the
grant of land over which a public right of way has ceased to exist,
to an Aboriginal Land Trust which holds title to surrounding land,
whether that title was obtained by successful land claim or by
scheduling under the Aboriginal Land Rights (Northern
Territory) Act 1976 ('Land Rights Act').
Alternative paths to the grant of land
to Aboriginal Land Trusts
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 Land Rights 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. The grant
does not involve parliamentary action, but does entail the usually
lengthy process associated with a land claim inquiry.
Alternatively, when a description of land is
added by Parliament to 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. Over 60 land parcels have been scheduled since
1977.(1) This mechanism tends to facilitate negotiated
outcomes but does require the involvement of Parliament, which must
amend the Schedule to add the land in question.
Roads: generally excluded but grants
possible if no longer public rights of way
Since its inception, the Land Rights Act has
required that any deed of grant to a Land Trust must be framed so
as to exclude roads within the parcel over which the public has a
right of way.(2) In other words, roads still in public
use are basically excluded from grants under the Land Rights
Act.
In 1987 the Land Rights Act was amended to
ameliorate this position where the public's right of way has
expired. Since 1987, if a road was excluded from a grant which
followed a successful land claim, but the public's right of way
subsequently has ceased to exist, the relevant Land Council can
apply for the former road to be granted to the Land Trust holding
title to the surrounding or adjoining land. The application is made
to the Minister, who in turn makes a recommendation to the
Governor-General for the land grant.(3) The amendment
was introduced to avoid the undesirable alternative, requiring a
separate land claim in relation to each such strip of land.
The significant limitation, however, is that
this procedure is only available under section 11 of the Land
Rights Act. Section 11 deals with land which involved the 'land
claim path' described above.
If land described in Schedule 1 included a road,
the road was excluded from the subsequent grant to a Land Trust, as
the Land Rights Act requires. If the public right of way ceased to
exist, however, there was no parallel process for the Minister to
grant title to an expired road contiguous with land already granted
by the Schedule 1 path. It is this anomaly which the Bill seeks to
address.
The Second Reading Speech explains that the
impetus for correction of the anomaly came from a request by two
Land Trusts and the Central Land Council that the Minister amend
the Act. Those parties are particularly concerned to achieve the
grant of several redundant roads on land at Hermannsburg and Haasts
Bluff included in Schedule 1.
The key provision is item 2
which inserts proposed section 11B. That section
will deal comprehensively with roads contiguous to Aboriginal land
over which a public right of way has expired, whether the
surrounding land has followed either the 'land claim path',
referred to in section 11, or the path of being added to Schedule 1
by Parliament, referred to in section 10.
Proposed section 11B will apply where:
-
- the only reason land has not been included in a recommendation
for grant of the surrounding land was the statutory prohibition on
granting public roads; and
-
- the public right of way has subsequently ceased to exist.
In that situation, the relevant Land Council may
apply to the Minister and the Minister may recommend to the
Governor-General that a fee simple grant be made to the relevant
Land Trust of the land formerly subject to a public road.
Item 1 is a consequential
amendment. It removes the reference to former public roads in
subsection 11(1AF) of the Land Rights Act. As it stands, subsection
11(1AF) is the provision which creates the anomaly described above,
by providing a remedial mechanism only in relation to non-Schedule
1 land. The effect of item 1 will be that subsection 11(1AF) in
future will only deal with former stock routes, allowing new
section 11B to deal comprehensively with former roads regardless of
which path the land grant has taken.
Items 3 and 4
are consequential drafting amendments. Item 5 is a
minor amendment which, out of abundant caution, confirms that while
public roads are generally excluded from a grant, the procedure
just outlined for the grant of former public roads is
permissible under the Land Rights Act.
-
- The Hon. Philip Ruddock MP, Debates, House of
Representatives, 8 December 1999, p. 13015, Second Reading Speech,
Aboriginal Land Rights (Northern Territory) Amendment Bill (No.3)
1999.
- Subsection 12(3) of the Aboriginal Land Rights (Northern
Territory) Act 1976 ('Land Rights Act').
- Subsection 11(1AF) of the Land Rights Act.
Sean Brennan
28 June 2000
Bills Digest Service
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ISSN 1328-8091
© Commonwealth of Australia 2000
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