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Bills Digest No. 33 1997-98
Aboriginal Land Rights (Northern Territory) Amendment Bill 1997
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
Aboriginal Land Rights (Northern Territory) Amendment Bill 1997
Date Introduced: 18 June 1997
House: House of Representatives
Portfolio: Aboriginal and Torres Strait Islander Affairs
Commencement: If the substantive provisions of the legislation
have not been commenced 12 months after the legislation receives Royal
Assent, then they commence on the first day thereafter.
To amend the Aboriginal Land Rights (Northern Territory) Act 1976
to dispose of certain Aboriginal land claims over stock routes and stock
reserves.
Aboriginal Land Rights (Northern Territory) Act 1976 as originally
enacted and stock routes and stock reserves
The Aboriginal Land Rights (Northern Territory) Act 1976 (Cwlth)
(the Principal 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, Aboriginals.(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. The Minister then decides whether
or not to accept the recommendation.
As well as specifying what land is potentially available for claim,
the Principal Act also excludes certain land from claim. For example,
roads are excluded.
Following the passage of the Principal Act, a number of land rights
claims were lodged claiming areas of land which included stock routes.
Stock routes are not specifically excluded from claim. A series of cases
in the 1980s established that stock routes and stock reserves were claimable
under the Act.(3) In Re Warumungu Land Claim, the Full Court of
the Federal Court referred to the Principal Act's Second Reading Speech
and the subsequent history of the legislation in order to decide whether
the term 'road' used in the Principal Act without any definition included
'stock routes'. Sweeney J said:
It is not to be supposed that the Parliament, when it came to consider
what land should be incapable of being included within a recommendation
of the Commissioner [for the granting of an Aboriginal land claim],
was unaware of the separate treatment in the ordinances [of the Northern
Territory] of roads and stock routes. The Parliament chose to use the
word 'road' without defining it. It did not say 'road or stock route'
as it might easily have done, had there been any intention to exclude
stock routes. It is to be remembered that the area of the latter amounted
in total to some thousands of square miles, which would have been a
substantial exclusion, even bearing in mind the vast area of the Territory.(4)
In a recently published text, Indigenous Legal Issues, the authors
comment: 'In cattle country, stock reserves and stock routes were often
the only portion of traditional land that were claimable. Pastoralists,
however, expressed concern about loss of access to stock routes.'(5)
Amendments to the Principal Act relating to stock routes and stock
reserves
Aboriginal Land Rights (Northern Territory) Amendment Act 1987
In 1986, the Commonwealth Labor Government introduced the Aboriginal
Land Rights (Northern Territory) Bill 1986 (the 1986 Bill). That Bill
subsequently became the Aboriginal Land Rights (Northern Territory)
Amendment Act 1987 (the 1987 Act) and provided that, with certain
exceptions, the Aboriginal Land Commissioner could not hear a traditional
land claim to a stock route or stock reserve.(6)
At the time of the introduction of the 1986 Bill, the then Minister
for Aboriginal Affairs, the Hon. Clyde Holding, said:
Under the present Act it is possible for Aboriginals to claim title
to stock routes and reserves, and a number of the claims that have yet
to be heard and reported on by Aboriginal land commissioners are in
respect of such stock routes and reserves.
Some practical problems have emerged. On the one hand, a claim to
such lands may offer, to some Aboriginal groups living in the pastoral
areas of the Northern Territory, the best or in some cases the only
prospect of obtaining title to some of their traditional lands. On the
other hand, to proceed to grant title to some of these areas-assuming
that a land commissioner had so recommended-would result in the splitting
of existing pastoral leases into two or more segments, with consequent
disruption and costs for the pastoralists concerned.
Against this background, it has been the Government's position that
it would be preferable, as a general rule, that claims to stock routes
and reserves not proceed and that a program be developed, with the co-operation
of the Northern Territory Government and pastoralists, whereby excisions
from pastoral leases to provide living areas for Aboriginal groups would
be negotiated. Useful progress has been made in these negotiations.
These negotiations are now well advanced in 40 cases, and actual title
has been granted in 13 cases. There are some 61 applications at varying
stages in the pipeline.
There are, however, some Aboriginal groups living in pastoral areas
for whom the excisions program offers limited prospects and who may
therefore, in view of the land councils, be seriously disadvantaged
if they were forced to forgo the prospect of obtaining living areas
on stock reserves. We have also been discussing these special cases
with the Northern Territory Government.
I have now informed the Chief Minister of the Northern Territory,
the land councils and the Cattlemen's Association that the Commonwealth
will proceed, in this Bill, with an amendment which will prevent a land
commissioner from hearing claims to stock routes and reserves, unless
a hearing has already commenced or unless the stock route or reserve
is wholly encompassed in the overall area of land under claim. This
is a significant concession.(7)
In general, the provisions of the 1987 Act commenced on Royal Assent.(8)
However, two of the sections it inserted into the Principal Act [subsections
50(2D) and (2E)] were to come into operation on a date fixed by Proclamation.(9)
These two subsections related to claims over stock routes and stock reserves.
The Proclamation was not made until February 1990 and set a commencement
date of 1 March 1990 (see below).
Negotiations between the Commonwealth and the Northern Territory Government
Between 1987 and 1989, the Commonwealth negotiated with the Northern
Territory Government for the establishment of a statutory regime to cover
the grant of Aboriginal community living areas on pastoral land. It appears
that these negotiations involved 'trade-offs' concerning stock routes
and stock reserves in return for Territory legislation enabling community
living areas to be excised from pastoral leases.(10)
The need for a statutory regime in the Northern Territory relating to
Aboriginal community living areas on pastoral land was referred to in
Minister Holding's speech above. It had been raised at least as early
as the 1970s,(11) and was addressed by Justice John Toohey in his 1983
report on the Aboriginal Land Rights (Northern Territory) Act 1976.(12)
Justice Toohey remarked in that report:
While the amount of land available for claim under the [Principal]
Act is substantial, there are many Aboriginals to whom the benefits
of the legislation are not available because their traditional country
is on alienated land (mainly pastoral leases) which cannot be claimed....
Most of these communities have no security of title to the land on
which they live and many are anxious for that security. Without it they
do not qualify for some forms of government assistance and so are unable
to improve their material conditions significantly. Understandably,
governments are reluctant to spend substantial sums on improvements
to land in which Aboriginals have no legal interest.(13)
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).(14)
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.(15)
- the Commonwealth undertook to proclaim the 1987 amendments relating
to stock routes and stock reserves. The Proclamation was made February
1990 with effect from 1 March 1990.(16)
- the Commonwealth introduced what became the Aboriginal Land Rights
(Northern Territory) Amendment Act 1989, under which certain land
claims then existing over stock routes and stock reserves were granted
to Aboriginal people.(17) In return, it appears that other land claims
over stock routes and stock reserves were withdrawn by Aboriginal Land
Councils on instruction from the claimants.(18)
However, it appears that difficulties may remain—both with the
Commonwealth's 1987 amendments and the Northern Territory's statutory
regime for Aboriginal community living areas.(19) 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 Principal Act, it may be that such land cannot be dealt with by the
Northern Territory Government.(20) 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.(21)
Further negotiations between the Commonwealth and the Northern Territory
Government resulted in an agreement in 1995 that the Commonwealth amend
the Principal 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.'(22)
The Northern Territory Legislative Assembly was recently prorogued for
the Territory election. It is expected that amendments to the Pastoral
Land Act 1992 (NT) in the form of a new Bill will be introduced
into the new Assembly.
Clause 2 of the Bill is the commencement provision. The Schedule
to the Bill which contains the substantive provisions will commence on
proclamation. However, if no proclamation has been made 12 months after
the date on which the legislation receives Royal Assent, then the Schedule
commences the day after the expiration of the 12 month period.
Items 1 and 2 of Schedule 1 amend section 67A of the Principal
Act. Section 67A provides that interests in land cannot be granted where
land is subject to a land claim under the Act.
Subsection 65A(5) of the Principal Act sets out the circumstances in
which a traditional land claim will be regarded as being disposed of.
At present, a land claim is disposed of if, for example, the claim is
withdrawn, the claim is granted or a decision is made to reject the claim.
Item 2 of Schedule 1 inserts new subsection 65A(6) into
the Principal Act. New subsection 65A(6) adds to the circumstances
in which a land claim will be taken to have been disposed of. The circumstance
is that the claim involved a stock route or stock reserve and the Aboriginal
Land Commissioner had not commenced an inquiry into the land claim as
at 1 March 1990 (ie the commencement date of subsection 50(2D)(23) of
1987 Act).
- 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.' McCrae,
H et al Indigenous Legal Issues. Commentary and Materials, 2nd
ed, LBC, Sydney, 1997.
- As a result of amendments made to the Principal 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).
- McCrae et al, op.cit.
- (1987) 77 ALR 27 at 29.
- McRae et al, op.cit:189.
- However, the Commissioner was enabled to deal with such claims where:
the Commissioner had commenced an inquiry before the amendment came
into force [section 50(2D)(c)]; the stock route or stock reserve is
bounded along each of its two longer sides by contiguous land which
is also land to which the claim relates [section 50(2E)]. This exception
relates to the situation where a larger claim area includes part of
a stock route or reserve and would be split by that land if the rest
of the claim were to succeed; or there is a declaration by regulation
that the stock reserve is not one to which the amendment applies.
This exception was deleted from the Act by the Aboriginal Land Rights
(Northern Territory) Amendment Act 1989. It had been provided
to allow a claim to a particular stock reserve to succeed where the
Aboriginal group in question may not have had any other prospect of
obtaining title to a suitable living area.
- Parliamentary Debates (Hansard), House of Representatives, 22 October
1986: 2568-9.
- Subsection 2(1), Aboriginal Land Rights (Northern Territory) Amendment
Act 1987.
- Subsection 2(2), Aboriginal Land Rights (Northern Territory) Amendment
Act 1987.
- McCrae et al, op.cit: 173.
- See, for example, The Gibb Report—the Report of the Committee
to Review the Situation of Aborigines on Pastoral Properties in the
Northern Territory (December 1971), the Second Report of the Aboriginal
Land Rights Commission (April 1974), the 1980 Report of the Inquiry
into Pastoral Land Tenure in the Northern Territory and the 1982 Report
of the House of Representatives Standing Committee on Aboriginal Affairs—Strategies
to Help Overcome the Problems of Aboriginal Town Camps.
- See 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.
- ibid: 3.
- Provision for Aboriginal community living areas is now contained in
Part 8 of the Pastoral Land Act 1992 (NT).
- 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.
- See Commonwealth of Australia, Special Gazette S 51, 28 February
1990.
- 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.
McCrae et al state that about 50 claims were scheduled and the land
vested in Aboriginal Land Trusts.
- McCrae 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: 25.
- 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; Indigenous Legal Issues. Commentary and Materials
(1997): 190.
- See Second Reading Speech, Aboriginal Land Rights (Northern
Territory) Amendment Bill 1997.
- See Second Reading Speech, Aboriginal Land Rights (Northern
Territory) Amendment Bill 1997.
- See Second Reading Speech, Aboriginal Land Rights (Northern
Territory) Amendment Bill 1997.
- Section 50(2D) does not apply where: an inquiry into the land claim
was underway before the commencement of section 50(2D) (ie 1 March 1990);
or the stock route or stock reserve ... is along each of its two longer
boundaries, contiguous to land to which the application relates' (section
50(2E)).
Jennifer Norberry
3 September 1997
Bills Digest Service
Information and Research Services
This Digest does not have any official legal status. Other sources should
be consulted to determine whether the Bill has been enacted and, if so,
whether the subsequent Act reflects further amendments.
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 1997
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Published by the Department of the Parliamentary Library, 1997.
This page was prepared by the Parliamentary Library, Commonwealth of
Australia
Last updated: 9 September 1997
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