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CONTENTS
Passage History
Purpose
Background
Main Provisions
Endnotes
Contact Officer and Copyright Details
Aboriginal Land Rights (Northern
Territory) Amendment Bill (No.1) 1998
Date Introduced: 25 November 1998
House: House of Representatives
Portfolio: Aboriginal and Torres Strait Islander
Affairs
Commencement: On the 28th day after Royal
Assent
The Bill alters
the retiring age of the Aboriginal Land Commissioner. It also adds
two parcels of land to those granted to Aboriginal Land Trusts in
the Northern Territory for the benefit of the traditional
Aboriginal owners.
The Aboriginal Land Rights (Northern
Territory) Act 1976 (Cwlth) (the Principal Act) 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. In general, traditional land
claims can be made to 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, Aboriginal
people.(1)
Title
In general, 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 and is granted by the Governor-General on the
recommendation of the Minister for Aboriginal and Torres Strait
Islander Affairs.
Although a 'fee simple' title usually means
freehold ownership-a title clear of any condition, limitation or
restrictions-the Principal Act is actually prescriptive about the
ways in which a Land Trust can deal with or dispose of any estate
or interest in land vested in it. By way of example, Aboriginal
land cannot be sold by the Land Trust holding title to it, though
it can be transferred to another Land Trust or surrendered to the
Crown (the Commonwealth or the Northern Territory). Furthermore,
although Aboriginal land cannot be resumed, compulsorily acquired
or forfeited under any law of the Northern Territory, the
Commonwealth could acquire it by virtue of its constitutional power
to acquire property for any purpose in respect of which the
Commonwealth Parliament has power to make laws.
Title to Aboriginal land is also subject to a
reservation that the right to any minerals remains with the
Crown.(2) In addition, the Principal Act preserves a variety of
interests in, and uses of, land which became (or may become)
Aboriginal land. For example, any road over which the public has a
right of way is expressly excluded from the grant.
However, the Principal Act also creates rights
in the traditional Aboriginal owners of the land to control other
uses of the land. It requires that anyone wishing to explore for
minerals or mine on Aboriginal land must obtain the consent of the
traditional owners through the relevant Aboriginal Land Council.(3)
The Land Councils also determine questions of access to Aboriginal
land.
The Aboriginal Land
Commissioner
Under the Principal Act, land claims are lodged
with the Aboriginal Land Commissioner. The Commissioner is a
statutory office holder whose functions include inquiring into and
making recommendations about land claims made under the Principal
Act.(4)
Settlement of Land
Claims
When a land claim has been made under the
Principal Act, a settlement is sometimes reached by
agreement between the Northern Territory Government and the
relevant Land Council.(5) In such cases, the Aboriginal Land
Commissioner's office is asked to adjourn the land claim until the
land can be scheduled under the Principal Act and an approach is
made to the Minister for Aboriginal and Torres Strait Islander
Affairs asking for the land to be scheduled. Land which is added to
the Schedule becomes Aboriginal land under the Principal Act. Once
scheduling has occurred, then no further inquiry by the Aboriginal
Land Commissioner is needed.
Item 1 of Schedule 1 changes
the retiring age of Aboriginal Land Commissioner. The retiring age
is currently set at 65 years. The amended retiring age is 70 years.
Section 53 of the Aboriginal Land Rights (Northern Territory)
Act 1976 provides that the Aboriginal Land Commissioner must
be a Judge of the Federal Court of Australia or the Supreme Court
of the Northern Territory. The retiring age for those judges is 70
years of age.(6)
Item 2 of the Schedule adds a
parcel of land called 'Innesvale' to the land scheduled under the
Principal Act.
Item 3 of the Schedule adds a
parcel of land called 'Urrpantyenye' to the land scheduled under
the Principal Act.
-
- By virtue of a 1987 amendment to the Principal Act a sunset
clause now precludes the Aboriginal Land Commissioner from
inquiring into land claims made after 5 June 1997.
- Note that royalties from mining on Aboriginal land are paid
into the Aboriginal Benefit Trust Account.
- The Governor-General may override a refusal only if the
national interest requires that a licence be granted. Additionally,
if the Aboriginal owners consent to minerals exploration then they
cannot refuse to consent to mining.
- Section 50(1), Aboriginal Land Rights (Northern Territory)
Act 1976.
- 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 Aboriginal and
Torres Strait Islander Affairs. In such a case, the ultimate
decision about whether to accept the recommendation rests with the
Minister.
- See Constitution, section 72 in relation to Federal Court
judges and, in relation to judges of the Northern Territory Supreme
Court, see section 38 of the Supreme Court Act (NT). The
only exception to the retiring age of 70 years of age in the
Northern Territory is acting Supreme Court judges. Such judges are
also defined as 'Judges' under the Aboriginal Land Rights
(Northern Territory) Act 1976. See subsection 53(4) of that
Act and section 38 and subsection 32(2) of the Supreme Court
Act (NT).
Jennifer Norberry
2 December 1998
Bills Digest Service
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ISSN 1328-8091
© Commonwealth of Australia 1998
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