Bills Digest No. 181  1998-99 Aboriginal Land Rights (Northern Territory) Amendment Bill (No. 2) 1999


Numerical Index | Alphabetical Index

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
Concluding Comments
Endnotes
Contact Officer and Copyright Details

Passage History

Aboriginal Land Rights (Northern Territory) Amendment Bill (No. 2) 1999

Date Introduced: 30 March 1999

House: House of Representatives

Portfolio: Aboriginal and Torres Strait Islander Affairs

Commencement: The provisions dealing with the Elliott stockyards commence 28 days after Royal Assent. Schedule 1, which amends the Aboriginal Land Rights (Northern Territory) Act 1976, commences on the day or days fixed by Proclamation, but in any case no more than 12 months and 1 day after Royal Assent.

 

Purpose

The purposes of this Bill are:

  • to invalidate that part of the land grant made to the Gurungu Land Trust in 1991 which related to about 3.8 hectares known as the Elliott stockyards and dip
  • to oust the Land Acquisition Act 1989 in relation to the Elliott stockyards and provide for compensation through Federal Court proceedings, but only if the resumption amounts to an otherwise invalid 'acquisition of property' in constitutional terms
  • to add 3 new circumstances in which a traditional land claim will be taken to have been finally disposed of.

Background

Some Relevant Features of the Aboriginal Land Rights (Northern Territory) Act 1976

Traditional Land Claims

The Aboriginal Land Rights (Northern Territory) Act 1976 (Cwlth) ('the Land Rights Act') provided for the immediate transfer to Aboriginal people of some 258 000 sq km of land which had previously been government reserve land set aside for Aboriginal people. It also 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.(1) In general, traditional land claims can be made on 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.(2) As a general rule, 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.

Aboriginal land claims are heard before an Aboriginal Land Commissioner who makes recommendations to the Commonwealth Minister for Aboriginal and Torres Strait Islander Affairs. If the Minister decides to accept the recommendation he or she recommends to the Governor-General that a deed of grant be executed and delivered to the Land Trust.

The final disposal of traditional land claims

Since the commencement of the Aboriginal Land Rights (Northern Territory) Amendment Act 1987 there has been a statutory freeze on the alienation of land subject to a land rights claim. In the parlance of the Act, the statutory freeze lasts so long as the land claim is not 'finally disposed of.' The background to these provisions is set out below.

The Land Rights Act provides that land claims can be lodged over 'unalienated Crown land' in the Territory. The expression 'unalienated Crown land' is defined to mean 'Crown land in which no person (other than the Crown) has an estate or interest, but does not include land in a town.'(3)

The Land Rights Act did not 'explicitly' deal with the situation where a Government took action to change the status of land under claim which had the effect of removing it from the categories of Crown land claimable under the Act.(4) Graeme Neate, author of a leading text on the Land Rights Act, says that a number of attempts were made to change the status of land '... in order to deprive the [Land] Commissioner of his jurisdiction to hear and report on ... [claims].(5) There were at least three situations that were, or might have been problematic for claimants. These involved including land under claim in a town, granting an interest in land under claim to a third party and granting the fee simple in the land to a third party.

Justice Toohey considered this problem in his 1984 report into the Land Rights Act-Seven Years On. His Honour gave as an example the Warumungu land claim. When this claim was part-heard the Northern Territory Government informed the Aboriginal Land Commissioner that it had vested part of the land under claim in the Northern Territory Development Land Corporation.

Justice Toohey recommended that:

... if an alienation by the Crown in right of the Northern Territory is effective, notwithstanding the existence of an application under the Land Rights Act, the Act should be amended to ensure that no such alienation may take place until disposition of the application.(6)

While some of the issues relating to dealings with land under claim were dealt with in a series of High Court cases,(7) other questions remained unanswered. As Gibbs CJ remarked in Re Kearney; Ex parte Northern Land Council: 'The obscurity of the legislation in this regard would appear to warrant the attention of Parliament ....'(8)

In his Second Reading Speech for the Aboriginal Land Rights (Northern Territory) Amendment Bill 1986,(9) the Minister for Aboriginal Affairs, Clyde Holding, stated:

The Act presently leaves open a number of questions about what can be done with land which has been claimed, but in respect of which a claim has not been determined. Some matters have been clarified by the High Court of Australia, but others remain.

As a result of these amendments it will not be possible to alienate land under claim, or to reserve, dedicate or set aside such land. The amendment effectively will freeze the status of land at the date on which a claim was or is lodged with a commissioner. So, for example, were the Northern Territory to purport to grant an estate or interest in land which is the subject of a traditional land claim, such a purported alienation would be deemed to be of no effect.(10)

Among the amendments passed in 1987 was section 67A. In general terms, section 67A provides that interests and estates cannot be granted where land is under claim and the claim has not been finally disposed of. For example, subsection 67A(2) provides that where a land claim is made on or after 5 June 1987 any grant of an interest or estate in the land purportedly made after the claim is lodged but before the claim is finally disposed of, has no effect.

Subsection 67A(5) sets out the circumstances in which a land claim is finally disposed of. This will occur when the claim is withdrawn,(11) the Governor-General executes a deed granting the land to the traditional owners,(12) the Commissioner advises the Minister that there are no traditional owners(13) or where, despite a finding by the Commissioner that there are traditional owners, the Minister determines not to recommend that the Governor-General make a land grant.(14)

The 'Sunset Clause'

The Land Rights Act was amended in 1987 to prohibit the Land Commissioner from dealing with land claims lodged more than 10 years after commencement of a 'sunset clause' contained in subsection 50(2A). The effect is that any claim lodged after 5 June 1997 cannot be considered by the Land Commissioner.

Aboriginal Land in Pastoral Areas

Land held by non-Aboriginal people under a pastoral lease has never been claimable under the Land Rights Act. Addressing the aspirations for secure title to land of Aboriginal people displaced from their traditional country by pastoralism in the Northern Territory has been a recurrent issue of tension between successive Commonwealth and Northern Territory Governments, Aboriginal people, Land Councils, pastoralists and their industry representatives.(15) Secure land title is frequently a pre-requisite to government or ATSIC funding for infrastructure and services necessary for sustainable community living areas.

A number of inquiries have reported on the issue over the last three decades and various agreements and legislative measures have been attempted. Two proposals in the Bill in particular can be more readily understood against the background of this difficult and long-running issue - the clauses dealing with the Elliott stockyards and item 4 in Schedule 1 which will treat as 'finally disposed of' claims over stock routes and stock reserves covered by subsection 50(2D) of the Land Rights Act.

Litigation, Legislation and Negotiations During the 1980s

Following the passage of the Land Rights Act, a number of land rights claims were lodged claiming areas of land which included stock routes. Stock routes were not specifically excluded from claim, although 'roads' were. A series of cases in the 1980s established that stock routes and stock reserves were claimable under the Act.(16)

Meanwhile, after extensive negotiations between it and the Commonwealth, the Northern Territory Government introduced administrative guidelines in 1985 for applications by Aboriginal people for land to be excised from pastoral properties as community living areas. In return, the Commonwealth enacted legislation in 1987 limiting the right of Aboriginal people to claim stock routes and reserves. Proclamation of the key provision -in subsection 50(2D) - was withheld pending further action by the Northern Territory Government on what the Commonwealth regarded as unsatisfactory aspects of the excision guidelines.(17)

In 1989, an agreement was reached between the Commonwealth and the Northern Territory:

  • the Northern Territory enacted legislation for the excision of Aboriginal community living areas on pastoral land-the Miscellaneous Act Amendment (Aboriginal Community Living Areas) Act 1989 (NT).(18) This legislation enabled certain Aboriginal people to apply for community living areas on pastoral properties-with a successful application leading to a grant of freehold title to them.(19)
  • the Commonwealth undertook to proclaim the 1987 amendments relating to stock routes and stock reserves. The Proclamation was made in February 1990 with effect from 1 March 1990.(20)
  • the Commonwealth introduced what became the Aboriginal Land Rights (Northern Territory) Amendment Act 1989 ('the 1989 Act'), under which certain land claims then existing over stock routes and stock reserves were granted to Aboriginal people.(21) In return, it appears that other land claims over stock routes and stock reserves were withdrawn.(22)

The grant of the Elliott Locality (discussed below) was an element in the 1989 legislation passed by the Commonwealth.

Unresolved Issues in the 1990s

It appears that difficulties remained after the 1989 agreement-both with the Commonwealth's 1987 amendments and the Northern Territory's statutory regime for Aboriginal community living areas.(23) The 1987 Act provided that the Aboriginal Land Commissioner could not hear certain land claims involving stock routes and stock reserves. However, the legislation did not dispose of those claims. As a result of section 67A of the Land Rights Act, it may be that such land cannot be dealt with by the Northern Territory Government.(24) In relation to the Northern Territory's legislative scheme for Aboriginal community living areas, the Commonwealth has suggested that amendments are needed to expedite the granting of those areas.(25)

Further negotiations between the Commonwealth and the Northern Territory Government resulted in an agreement in 1995 that the Commonwealth amend the Land Rights Act so that stock route and stock reserve claims that cannot be heard by the Aboriginal Land Commissioner would be disposed of. In return, the Northern Territory agreed to amend its Pastoral Land Act 1992 in relation to Aboriginal Living Areas. '... to expedite the granting of living areas to Aboriginal people, particularly those being dealt with by the Community Living Areas Tribunal.'(26)

The Elliott Stockyards and Dip

The area of approximately 4 hectares described in the Bill as the 'Elliott stockyards land' was included in a grant to the Gurungu Land Trust in 1991, as a small part of what was described in the relevant Regulation as the 'Elliott Locality'. Elliott is a small town on the Stuart Highway, about 260km north of Tennant Creek. According to the Explanatory Memorandum, the small area of land nominated in the Bill contains 'public trucking yards and a public dip facility'.

The grant of the Elliott Locality was made possible by legislation introduced by the then ALP Government in 1989. As discussed above, the 1989 Act stemmed from an agreement between the Commonwealth and the Northern Territory in September 1989 to provide secure title to land for Aboriginal people in pastoral areas.

The 1989 Act provided for the grant of title to about 2312 square kilometres under conditions which also sought to address concerns expressed by the pastoral industry such as access to water and roads. Although the Minister at the time indicated the Elliott stockyards land was excluded from the grant, it appears that when the description of the Elliott Locality was re-written by the Aboriginal Land Rights (Northern Territory) (Land Description) Regulations in 1991 the stockyards were included.

The Reeves Report (see below) called the inclusion of the stockyards an 'obvious error' and called for it to be remedied without further delay, noting that it had been the subject of extensive correspondence between the Territory and Commonwealth Governments. The Northern Land Council (NLC), within whose jurisdiction the land falls, has objected however that it would amount to an acquisition of property unless the remedy includes the original undertakings for addressing environmental health and social problems.(27)

In the material accompanying introduction of the Bill, the Government does not refer to the Reeves Report, but describes the inclusion of the stockyards as an 'administrative error which occurred in 1991'.(28) It does not refer to the environmental health issues raised by the NLC.

The 1997 Bill

In 1997 the Government attempted to achieve the same objectives as the current Bill, except for the provisions relating to the Elliott stockyards. The Aboriginal Land Rights (Northern Territory) Amendment Bill 1997 ('the 1997 Bill')(29) as originally introduced provided one new circumstance in which a traditional land claim would be considered to have been 'finally disposed of'. That circumstance was where the claim was covered by subsection 50(2D) of the Land Rights Act. That subsection applies where a claim related to a stock route or reserve and the Aboriginal Land Commissioner had not commenced an inquiry into the land claim as at 1 March 1990. Just before the Third Reading of the Bill in the House of Representatives, the Government amended it to include two additional circumstances in which a claim would be regarded as 'finally disposed of'. Those two circumstances were where the Land Commissioner is unable to make a finding that there are traditional owners for the area and where the application is made after expiry of the 'sunset clause'.

In other words, the 1997 Bill as passed by the House of Representatives was identical in terms to Schedule 1 of the current Bill. The only difference was that the Bill as a whole did not contain the clauses relating to the Elliott stockyards.

The Opposition took the position that the Bill should be deferred pending the review of the Land Rights Act which the Government had announced (see the Reeves Report discussed immediately below) and pending 'an assessment...as to the degree to which both the Commonwealth and the Northern Territory Governments are meeting their responsibilities to the Aboriginal people of the Northern Territory in these matters'.(30) The Shadow Minister for Aboriginal and Torres Strait Islander Affairs said that the Commonwealth Parliament should 'let the Northern Territory Government enact its part of the bargain first'.(31)

The 1997 Bill was introduced into the Senate but no further debate had occurred when it lapsed with the calling of the 1998 Federal Election.

The Reeves Report

In October 1997 the Commonwealth Minister for Aboriginal and Torres Strait Islander Affairs appointed barrister John Reeves to conduct a review of the Aboriginal Land Rights (Northern Territory) Act 1976. The resulting report, Building on Land Rights for the Next Generation, was presented to the Minister in August 1998 in two volumes. The Principal Findings and Recommendations alone account for 30 pages of the report and cover a wide variety of issues including mining, land council structures, royalties and access to Aboriginal land.

Since 10 December 1998, the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs (HORCATSIA) has been conducting an inquiry into the Reeves Report. A number of public hearings have already been held and dozens of written submissions have been received and published by the Committee.

Main Provisions

Resumption of the Elliott Stockyards and Dip

Clause 3 has the effect of taking back 3.8 hectares of land defined as the 'Elliott stockyards land' from the Gurungu Land Trust. That land was included in a grant made under the Land Rights Act in 1991. The effect of clause 3 is retrospective, in that the grant as it relates to those 3.8 hectares is taken 'never to have been executed'.

The Registrar-General in the Northern Territory is empowered to make any consequential changes to the land Register by subclause 3(3). However, if no action is taken, the resumption effected by clause 3 will nevertheless over-ride anything contained in the Register.

The Bill evinces no assumption that compensation is payable for the resumption of the 3.8 hectares of freehold land held by an Aboriginal land trust. Unless persons affected (presumably beneficiaries of the Gurungu Land Trust) commence proceedings in the Federal Court and demonstrate that clause 3 effects an otherwise invalid 'acquisition of property' in the constitutional sense of that term, then no compensation is payable under the Bill. That is the combined effect of clause 4 (which deals with 'acquisition of property' on just terms) and clause 5 which ousts the operation of the Lands Acquisition Act 1989 (Cwlth).

Schedule 1 - Amendment of the Aboriginal Land Rights (Northern Territory) Act 1976

The effect of Schedule 1 is to introduce 3 additional grounds for treating a traditional land claim as having been finally disposed of. Once a claim is 'finally disposed of', it frees the land from a restriction on its alienation by the Northern Territory Government. Essentially, section 67A of the Land Rights Act prevents land being alienated when it is the subject of a land claim which has not been finally disposed of.

Subsection 67A(5) of the Act lists four situations where a land claim will be taken to have been finally disposed of. Items 3 and 4 will add the following three situations to the list of circumstances in which a land claim will be deemed to have been finally disposed of:

  • the Land Commissioner reports that he or she is unable to make a finding that there are traditional owners of the area of land
  • the land was claimed after the 'sunset clause' took effect on 5 June 1997, and
  • subsection 50(2D) applies to the land claimed.

Subsection 50(2D) was discussed in the Background to this Digest. It prevents the Land Commissioner from dealing with a claim over stock routes or reserves lodged after 1 March 1990.

Item 1 is consequential on items 3 and 4, and item 2 is a typographical correction.

Concluding Comments

Resumption of the Elliott stockyards land

The small parcel of land in question has been Aboriginal-owned freehold for seven-and-a-half years. The Government proposes to resume that land by an Act of the Federal Parliament and pay compensation only if affected persons commence proceedings in the Federal Court and prove that clause 3 effects a section 51(xxxi) 'acquisition of property'.

There are provisions by which Aboriginal land can be made available for use by others on the basis of consent. A Land Trust may surrender part or all of its land to the Crown under subsection 19(4) of the Land Rights Act. It may also grant an estate or interest such as a lease to another person for a particular purpose. Neither the Second Reading Speech nor the Explanatory Memorandum makes any reference to whether such alternatives to compulsory acquisition by an Act of Parliament on a retrospective basis have been explored.

Ordinarily if the Commonwealth intends under the Lands Acquisition Act 1989 to compulsorily acquire freehold land it would issue a pre-acquisition notice giving 28 days notice. Landholders may challenge the notice by seeking a re-consideration from the Minister and then a review by the Administrative Appeals Tribunal, unless it has been declared unreviewable. An owner is entitled to be paid an amount which justly compensates them for the acquisition, and a number of factors relevant to valuation are spelt out in the statute. The Act also provides for acquisition by agreement.

The Bill specifically rules out the operation of the Lands Acquisition Act 1989. If enacted, clause 3 would take effect upon commencement and have immediate retrospective effect to 5 December 1991. There is no avenue of appeal or review provided. There is no statutory entitlement to compensation, only a provision to rescue the validity of clause 3 if it is found by the Federal Court to effect an invalid 'acquisition of property'. This clause, which simply expresses a constitutional entitlement to 'just terms', is discussed immediately below.

Compensation for the Elliott stockyards land

As pointed out above, the Bill provides no statutory entitlement to compensation for the retrospective resumption of the Elliott stockyards land. Instead it simply refers to a constitutional entitlement which, if it applies, would otherwise serve to invalidate clause 3. The Federal Court is given jurisdiction to determine if the constitutional entitlement is established and if so, what would constitute just terms.

The law surrounding section 51(xxxi) of the Constitution is complex. A number of critical questions remain unanswered. Litigation about clause 4 is therefore likely to be complex and possibly protracted.

For example, it was long thought that section 51(xxxi) had no application to acquisitions of property in the Northern Territory. This flowed from the High Court's interpretation of section 122 ('the Territories power') in Teori Tau,(32) a unanimous 1969 decision which was upheld in a number of subsequent cases well into the 1990s. However, in the Newcrest decision in 1997,(33) a majority of four to three held that the constitutional requirement of 'just terms' could apply in the Territory. Three judges over-ruled Teori Tau, while Toohey J refused to do so but substantially narrowed its application. The upshot is that the application of section 51(xxxi) in the Northern Territory is not a foregone conclusion, but that present authority leans heavily towards its application to acquisitions under Commonwealth law where they are referable to a legislative power other than the Territories power in section 122. The Bill dealt with in this Digest readily appears to be referable to another power - the races power found in section 51(xxvi) of the Constitution.

This is just one question which litigation over clause 4is likely to generate. Another question would be whether resumption of an interest in land granted by a statute such as the Land Rights Act will amount to an 'acquisition of property' for constitutional purposes. If the constitutional threshold is satisfied, another question would be what in the context of Aboriginal land would constitute 'just terms', an area yet to receive sustained judicial attention.

In summary, the Bill will acquire freehold land but in contrast to common acquisition practice, it will provide no statutory entitlement to compensation or a review. Instead, it provides for a process likely to entail prolonged litigation before 'just terms' compensation is recovered, if the constitutional entitlement can be established. The Explanatory Memorandum does not explain or substantiate the Government's assertion that 'any compensation which may be payable would be nominal'.(34)

The Government's approach is that it is taking legislative steps to correct an administrative error which inadvertently led to the inclusion of the stockyards in the Elliot Locality grant.

Action on Aboriginal Living Areas Within Pastoral Regions by the Northern Territory Government

The Background to this Digest demonstrated that the amendment relating to claims over stock routes and reserves has a context, and that context is one of protracted legal, political and practical difficulties. In 1997, when the Government first attempted to pass the provisions now contained in Schedule 1 of the current Bill, it emphasised the relevance of the 1995 agreement between the Commonwealth and Northern Territory governments. At that time, it said that proclamation of Commonwealth provisions would be delayed so that they would coincide with the commencement of amendments to the Northern Territory's Pastoral Land Act 1992. The aim of these amendments was said to be 'to expedite the granting of community living areas to Aboriginal people, particularly those being dealt with by the Community Living Areas Tribunal'.(35) The Government said it would be 'insisting that the Northern Territory government keep its side of the bargain and improve aspects of its Pastoral Land Act before this amendment comes into force'.(36)

When the current Bill was introduced in 1999, the Government again referred to the 1995 agreement and reiterated that the Commonwealth amendment on stock routes was in exchange for Pastoral Land Act amendments in the Territory, the aim of which was described in the same terms as used in 1997 (see above paragraph).

Again it was said that the Commonwealth amendments would be timed to commence at the same time as the Northern Territory amendments to its Pastoral Land Act 1992. The commencement provision in the Bill, however, does not refer to Northern Territory legislation - it provides for automatic commencement within 12 months of Royal Assent unless an earlier day is fixed by proclamation. Neither the Explanatory Memorandum nor the Second Reading Speech provide any information about progress on the Northern Territory's changes to expedite the grant of community living areas to Aboriginal people, except to say that they are 'yet to be enacted by the Northern Territory legislature'.(37)

The Northern Land Council, in its 1999 Supplementary Submission to the HORCATSIA inquiry into the Reeves Report, opposed the early passage of the provisions in Schedule 1 of the Bill in the following terms:

The stock routes amendments should not pass until there is some solution found for Aboriginal people dispossessed by the pastoral industry eg rectify [Northern Territory Government] Community Living Areas process.(38)

In light of:

  • the long and difficult history surrounding this issue
  • the fact that changes to Commonwealth legislation are explicitly a quid pro quo for changes in the Northern Territory to expedite the granting of community living areas to Aboriginal people, and
  • the fact that changes to Northern Territory legislation are apparently still yet to be enacted.

the question may be asked whether an automatic commencement provision is appropriate for the provision found in Schedule 1 dealing with claims over stock routes.

The Relevance of the Reeves Report

Both the resumption of the Elliott Stockyards and 'legislative intervention' to designate certain outstanding claims as 'finally disposed of'' were discussed in the Reeves Report. Reeves recommended that the 'error in relation to the grant made to the Gurungu Land Trust...be remedied without further delay'.(39) He also encouraged 'the early passage of the Aboriginal Land Rights (Northern Territory) Amendment Bill (No. 2) 1997' ('the 1997 Bill').(40) That Bill contained the same provisions as are now found in Schedule 1 of the current Bill.

Mr Reeves obviously attached some priority to these two changes in his report. On the other hand, those recommendations form a small part of the large and controversial reform agenda mapped out in the Reeves Report. As stated earlier, the Reeves Report has been referred by the Minister to the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs. The Opposition took the position on the 1997 Bill that it should be deferred until completion of the land rights review. The Government's position was that delay was not warranted as the amendments relate to 'minor technical anomalies...not relevant to any of the important policy issues' before the review.(41)

The question of whether such issues should be dealt with separately from the Parliament's overall review of the Reeves Report may well arise again in relation to the current Bill.

 

Endnotes

  1. As at April 1996 '... Aboriginal freehold (including land held under Northern Territory title) comprised 560,184 square kilometres, approximately 41.61 per cent of land in the Northern Territory. Land under claim at that date constituted another 8.33 per cent, approximately.' McRae, H et al Indigenous Legal Issues. Commentary and Materials, 2nd ed, LBC, Sydney, 1997, p. 176.

  2. 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, op.cit., p. 176).

  3. Section 3(1), Aboriginal Land Rights (Northern Territory) Act 1976.

  4. See Re Kearney; Ex parte Northern Land Council (1984) 158 CLR 365 at 372 per Gibbs CJ.

  5. Neate, G Aboriginal Land Rights Law in the Northern Territory, Volume 1, Alternative Publishing Co-operative Ltd, Sydney, 1989, pp. 138-139.

  6. Seven Years on. Report by Mr Justice Toohey to the Minister for Aboriginal Affairs on the Aboriginal Land Rights (Northern Territory) Act 1976 and Related Matters, AGPS, Canberra, 1984, p. 36.

  7. See Re Kearney; Ex parte Northern Land Council (1984) 158 CLR 365; Re Kearney; Ex parte Japanangka (1984) 158 CLR 395. For example, the decisions in these two cases were that an attempt to change the status of land under claim-to declare it to be land in a town or to grant an interest or estate in the land (such as a lease)-did not prevent the Aboriginal Land Commissioner from exercising his statutory functions.

  8. (1984) 158 CLR 365 at 374. Referred to in Neate, op.cit., p. 150.

  9. This Bill became the Aboriginal Land Rights (Northern Territory) Amendment Act 1987.

  10. House of Representatives, Parliamentary Debates (Hansard), 22 October 1986, p. 2568.

  11. Paragraph 67A(5)(a).

  12. Paragraph 67A(5)(b).

  13. Paragraph 67A(5)(c).

  14. Paragraph 67A(5)(d).

  15. The recognition by the High Court in the Wik decision in December 1996 that the grant of a pastoral lease does not necessarily extinguish native title has added an extra dimension to the debate.

  16. McRae et al, op.cit., pp. 188-189.

  17. House of Representatives, Parliamentary Debates (Hansard), Second Reading Speech, Aboriginal Land Rights (Northern Territory) Amendment Bill 1989, p. 2150.

  18. Provision for Aboriginal community living areas is now contained in Part 8 of the Pastoral Land Act 1992 (NT).

  19. In order to be an applicant for a community living area, an Aboriginal person must have been, at any time since 1968, ordinarily resident on pastoral lease land to which the application relates; or must have an historical association with the pastoral lease which is the subject of the application. An applicant must also be able to demonstrate a present need for a community living area. These criteria do not apply where the lessee of the pastoral property has consented in writing to the application being made. It appears that provision was made in the legislation for Aboriginal people not ordinarily resident on pastoral lease land because, '... after the equal wage decision in 1965 and a subsequent decline in Aboriginal employment [on pastoral land], together with the introduction of cash welfare payments ...[many Aboriginal people left their traditional lands] ... for towns, government settlements and missions.' Burke, P., 'Who needs a community living area? The 'need' requirement in the NT excisions legislation,' Aboriginal Law Bulletin, 2(52) October 1991: 7-9 at 7.

  20. See Commonwealth of Australia, Special Gazette S 51, 28 February 1990.

  21. According to Gerry Hand, who was then Commonwealth Minister for Aboriginal Affairs, about 26 per cent of the total stock route and reserve claims were granted at this time (equalling about 0.17 per cent of the total area of the Northern Territory). Mr Hand said these areas were selected for grant after consultation with the Northern Territory Government. See House of Representatives, Parliamentary Debates (Hansard), Second Reading Speech, Aboriginal Land Rights (Northern Territory) Amendment Bill 1989, p. 2150-2151. McRae et al (op.cit, at pp. 189-90) state that about 50 claims were scheduled and the land vested in Aboriginal Land Trusts.

  22. McRae et al, op.cit: 173. See also: Central and Northern Land Councils, Our Land. Our Life. Aboriginal Land Rights in Australia's Northern Territory, 1991, p. 25.

  23. A variety of views exist about the success of the Northern Territory's Aboriginal community living areas legislation. Readers are referred to:
  • 'The excision fiasco' Bulletin with Newsweek, 11 February 1992
  • 'Who needs a community living area? The 'need' requirement in the NT excisions legislation,' Aboriginal Law Bulletin, 2(52) October 1991, and
  • McRae et al., op.cit., p. 190.
  1. See House of Representatives, Parliamentary Debates (Hansard), Second Reading Speech, Aboriginal Land Rights (Northern Territory) Amendment Bill (No. 2) 1999, 30 March 1999, p. 4690.

  2. Ibid.

  3. Ibid.

  4. Northern Land Council, Preliminary Submission, House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, Inquiry into the Reeves Report on the Aboriginal Land Rights (Northern Territory) Act 1976, p. 68.

  5. Explanatory Memorandum, Aboriginal Land Rights (Northern Territory) Amendment Bill (No. 2) 1999, p. 2.

  6. to which the suffix '(No. 2)' was later added to avoid confusion with an earlier introduced Bill.

  7. House of Representatives, Parliamentary Debates (Hansard), Aboriginal Land Rights (Northern Territory) Amendment Bill 1997, 25 September 1997, p. 8587.

  8. Ibid., p. 8591.

  9. Teori Tau v Commonwealth (1969) 119 CLR 564.

  10. Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513.

  11. Explanatory Memorandum, Aboriginal Land Rights (Northern Territory) Amendment Bill (No. 2) 1999, p. 1.

  12. House of Representatives, Parliamentary Debates (Hansard), Second Reading Speech, Aboriginal Land Rights (Northern Territory) Amendment Bill 1997, 18 June 1997, p. 5556.

  13. House of Representatives, Parliamentary Debates (Hansard), Aboriginal Land Rights (Northern Territory) Amendment Bill 1997, 25 September 1997, p. 8539.

  14. Explanatory Memorandum, Aboriginal Land Rights (Northern Territory) Amendment Bill (No. 2) 1999, p. 2.

  15. Northern Land Council, Submission, House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, Inquiry into the Reeves Report on the Aboriginal Land Rights (Northern Territory) Act 1976, April 1999, p. 99.

  16. J. Reeves QC, Building on Land Rights for the Next Generation. Report of the Review of the Aboriginal Land Rights (Northern Territory) Act 1976, August 1998, p. 270.

  17. Ibid., p. 248.

  18. House of Representatives, Parliamentary Debates (Hansard), Aboriginal Land Rights (Northern Territory) Amendment Bill 1997, 25 September 1997, p. 8539.

 

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