Bills Digest No. 197  1999-2000Aboriginal Land Rights (Northern Territory) Amendment Bill (No.3) 2000


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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 & Copyright Details

Passage History

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

Purpose

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').

Background

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.

Main Provisions

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.

Endnotes

  1. 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.

  2. Subsection 12(3) of the Aboriginal Land Rights (Northern Territory) Act 1976 ('Land Rights Act').

  3. Subsection 11(1AF) of the Land Rights Act.

Contact Officer and Copyright Details

Sean Brennan
28 June 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

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 2000.

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