Bills Digest No. 50 2002-03
Aboriginal Land Rights (Northern Territory) Amendment
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
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Aboriginal Land Rights (Northern
Territory) Amendment Bill 2002
19 September 2002
House: House of Representatives
Portfolio: Immigration and Multicultural and
To add 5 new
parcels of land to those granted to Aboriginal Land Trusts in the
Northern Territory for the benefit of the traditional Aboriginal
Schedule 1 of the Aboriginal Land Rights
(Northern Territory) Act 1976 (the Land Rights Act) lists
areas of land that become Aboriginal land under the Land Rights
When a land claim has been made under the Land
Rights Act, a settlement is sometimes reached by agreement
between the Northern Territory Government and the relevant Land
Council.(3) In such cases, the Aboriginal Land
Commissioner's office is asked to adjourn the land claim until the
land can be scheduled under the Land Rights Act and an approach is
made to the Commonwealth Minister for Indigenous Affairs asking for
the land to be scheduled. The Land Commissioner is a statutory
office holder whose functions include inquiring into and making
recommendations about land claims made under the Land Rights
Act.(4) Under the Land Rights Act, land claims are
lodged with the Aboriginal Land Commissioner. Once scheduling has
occurred, then no further inquiry by the Aboriginal Land
Commissioner is needed.
The Land Rights Act provides two main paths by
which land can be granted in fee simple (unfettered title to land)
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, ie. communal fee simple. The grant does not
involve parliamentary action, but does entail the usually lengthy
process associated with a land claim inquiry.
Alternatively, as in these cases, 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. The addition of these 5 parcels
will bring the total number of land parcels scheduled since 1977 to
69. 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.
The Minister describes the region and background
to the land to be scheduled in his Second Reading Speech:
The effect of this Bill would first of all be to
bring within Schedule 1 of the Land Rights Act four areas of land
that were the subject of the Upper Daly (Repeat) Land Claim. The
land, situated about 250 kilometres to the south-west of Darwin,
not far from the township of Pine Creek, was the subject of an
agreement between the Northern Territory Government, the Northern
Land Council and the claimants. The agreement was entered into on
15 November 1999 and finalised in February 2002 after discussions
relating to native title, the granting of other titles to the
Northern Territory government, and the making of a lease-back
agreement in respect of the Umbrawarra Gorge Nature Park Reserve.
The area to be scheduled comprises nearly 110,000 hectares.
The Bill will also bring within Schedule 1 of
the Land Rights Act a single block of land, situated some 40
kilometres north of Alice Springs, near the Stuart Highway. This
scheduling proposal arises from the Government's decision to
provide funding to enable the construction of one of the greatest
infrastructure projects in Australian history to proceed: the
Darwin to Alice Springs railway.
Title to this block of land will be granted to
the Harry Creek East community. The community's current land is
situated on the old North-South Stock Route and has been rendered
unfit for community purposes by its proximity to the Darwin-Alice
Springs Railway corridor. Hence, the former Government of the
Northern Territory agreed to grant the community another parcel of
land, located only a few kilometres to the south-east of their
As the Minister has noted, the Central Land
Council has agreed with the Northern Territory Government that a
parcel of land be allocated to the Arnapipe Aboriginal Land Trust
on behalf of the members of the Harry Creek East community.
This allocation is to allow the permanent
relocation of the community to allow for the construction of the
Darwin-Alice Springs railway.(5) The developers have
commenced operations in the area concerned earlier than
expected.(6) The operations cannot coexist with the
present location of Harry Creek East community. The Harry Creek
East community consists of 7 families representing up to 35 people.
It consists of 6 houses, 6 shower blocks, 1 generator shed and 2
other sheds, 2 large and 3 small stockyards, 2 large water storage
tanks and associated equipment, and 1 functioning pump shared with
Harry Creek West and South.(7) The closest community
buildings at Harry Creek East are located within 100 metres of the
railway centre line. The scheduling will allow for the long-term
relocation of the Harry Creek East community to a site south east
of their present location.
The families of the Harry Creek East community
were reluctant to relocate into a less certain situation than they
currently enjoy on the Land Trust. (8)One issue
affecting the timing of the relocation were the negotiations
regarding the location of the new site, to ensure there was minimal
interference with the many sacred sites in that
region.(9) The Social Impact Analysis of the Railway
states that identification of an acceptable relocation site has
been far from easy .(10)
On 20 August 2002, the Northern Territory
Minister for Central Australia, Dr Peter Toyne announced
$1 million as part of the NT Government budget to relocate the
Harry Creek East community, affected by the alignment of the new
railway corridor. On 21 August 2002, it was reported that
the NT Chief Minister Clare Martin says the community has agreed to
That is part of the railway contract, but I can
give you a very strong assurance that that will happen
appropriately and that community will be appropriately
The funding for the permanent relocation has
been agreed. The finalising of the freehold title of the land will
enable the relocation to occur.
In August 1999, the House of Representatives
Standing Committee on Aboriginal and Torres Strait Islander
Affairs, reported on its inquiry into a review of the Land Rights
Act by Mr John Reeves QC (the Reeves Report). The Recommendations
of the Reeves Report were controversial.(12) However,
the Committee s response to the Reeves Report, entitled Unlocking
the Future appears to have general bipartisan support (the
In particular, it is worth repeating the first
recommendation of the Committee Report which states that the Land
Rights Act should not be amended without:
- traditional owners in the Northern Territory first
understanding the nature and purpose of any amendments and as a
group giving their consent; and
- any Aboriginal communities or groups that may be affected
having been consulted and given adequate opportunity to express
their views. (13)
The ALP has emphasised the need to demonstrate
this informed consent very transparently on any possible reforms to
the Land Rights Act. (14)
In his Second Reading Speech, the Minister also
whilst supporting the return of Aboriginal land
to its Aboriginal owners, the Government considers that the Land
Rights Act in its current form is in urgent need of repair because
it has not assisted, as it should have, in improving the social and
economic position of Aboriginal land owners.
The Government has circulated a paper canvassing
options for reform to the Land Rights Act. At the time of the
Second Reading Speech, the Minister noted that the Government was
awaiting a response to these options from the Northern Territory
Government and the Central and Northern Land Councils.
In general, the options paper outlines the
Government s priorities as announced in the 2001 election campaign
- reducing barriers to economic development of Aboriginal
- facilitating devolution of control away from Land Councils to
more localised regional bodies, and
- improving management and distribution of the Aboriginals
A significant proposal in the Reeves report was
the preference for smaller, and more representative land
councils.(16) The Minister supports the regionalisation
of the large Land Councils.(17) However, the Committee
rejected the Reeves Report proposal to replace the 4 existing Land
Councils with 18 Regional Land Councils, but agreed with proposals
to streamline procedures for new land councils to be formed.
The Committee Report notes that a significant
feature of the Land Rights Act is that it gives the traditional
owners the right to veto possible mining activities on Aboriginal
land in all cases except those where it is in the national
interest.(19) Part IV of the Act establishes a financial
regime for the distribution of mining royalties among the affected
communities, and the broader Northern Territory Aboriginal
In his Second Reading Speech, the Minister
states that in the past 25 years since the Land Rights Act has been
operating, there has only been one new mine. This is despite the
fact that there have been over 1000 applications, more than half of
which remain outstanding. However, the Chairs of the two major Land
Councils note that there have been 13 mineral leases and also that
hundreds of exploration licenses have been consented to since the
Land Rights Act commenced.(20) The options paper
contains a number of recommendations to streamline the regulation
of exploration and mining.
Repatriation to Northern Territory
Meetings in May 2002 between the Minister, the
Land Council and the Chief Minister were, among other things, to
discuss the repatriation (giving control) of the Land Rights Act to
the Northern Territory Government. The Northern Territory
Government stated that such a move was not on its agenda.
Item 1 adds the Harry Creek
East parcel of land to Schedule 1 of the Land Rights Act and
Item 2 adds the four parcels of land in the Upper
- Material in the first two parts of the background section draws
heavily from previous Bills Digests. See in particular Sean
Brennan, Aboriginal Land Rights (Northern Territory) Amendment Bill
(No. 3) 2000, Bills
Digest No. 197, 1999-2000 and Jennifer Norberry, Aboriginal
Land Rights (Northern Territory) Amendment Bill (No. 1) 1998,
Digest No. 59, 1998-1999.
- For more detailed background to the origins and operation of
the Land Rights Act, see Unlocking the Future: the report of the
inquiry into the Reeves review of the Aboriginal Land Rights
(Northern Territory) Act 1976 , Standing Committee on Aboriginal
and Torres Strait Islander Affairs, August 1999, (hereinafter the
Committee Report), pp. 11 16.
- In the absence of such an agreement, the Aboriginal Land
Commissioner hears the land claim and submits a report with a
recommendation to the Commonwealth Minister for Indigenous Affairs.
In such a case, the ultimate decision about whether to accept the
recommendation rests with the Minister. It is also worth noting
that as a result of amendments made to the Land Rights Act in 1987,
land claims cannot be lodged after 5 June 1997. However, most
available land is already subject to claim. See McRae, H. cited in
Brennan and Norberry, Bills
Digest No. 181, 1998-99.
- Land Rights Act, ss. 50(1),
further information about the history of the railway at the
Northern Land Council website: www.nlc.org.au.
- Information made available from the Department of Immigration,
Multicultural and Indigenous Affairs notes that it was not
anticipated that clearing and associated structural work would
commence at the time the Bill was introduced. Also see ABC,
Interview with Prime Minister, PM, 7 May 2002, who noted that
the project was 3 months ahead of schedule.
- Richard Howitt, Sue Jackson, and Ian Bryson A railway
through our Country: social and cultural impacts of the Alice
Springs to Darwin Railway Project on Aboriginal people. Report
prepared for the Northern and Central Land Councils and the
Northern Territory Government, November 1998, Macquarie Research
Ltd, Sydney, p. 95.
- ibid., p. 95.
- Information provided by the Central Land Council, 14 October
- Howitt, op. cit., p. 96.
ABC Central Australia Online, 21 August 2002.
- Although the Committee generally restricted itself to comment
on the recommendations of the Reeves Report, the Committee Report
acknowledged this in its conclusion at p. 155.
- Committee Report, p. 8.
- See for example, Senator Trish Crossin, Speech on the
Aboriginal Land Rights (Northern Territory) Amendment Bill (No. 3)
1999, Senate Hansard, 16 March 2000.
- See section below on Options Paper.
- Chapter 6 of the Reeves Report, pp. 93 118. For further general
background to the Reeves Report, see Paul Toohey, We don t want
your land rights The Australian, 10 February 2001.
- The Hon. Philip Ruddock MP, Land rights reform will be a start
, Sunday Territorian, 8 September 2002.
- See Recommendation 4, Committee Report, pp. 40 and 43.
- Land Rights Act, ss. 40(a).
- See Galarrwuy Yunipingu and David Ross, Camouflaging of land
rights facts Sunday Territorian, 22 September 2002, in
response to the Minister s article cited above. Further information
about the Land Rights Act and successful exploration agreements is
also available at www.nlc.org.au , see especially
Northern Land Council
media releases of 29 May 2002, and 19 October 2001).
- Rod McGuirk, Martin rejects land control Northern Territory
News, 21 September 2002.
15 October 2002
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