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
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.
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.
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.
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.
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.
-
- 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.
- 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).
- Section 3(1), Aboriginal Land Rights (Northern Territory)
Act 1976.
- See Re Kearney; Ex parte Northern Land Council (1984)
158 CLR 365 at 372 per Gibbs CJ.
- Neate, G Aboriginal Land Rights Law in the Northern
Territory, Volume 1, Alternative Publishing Co-operative Ltd,
Sydney, 1989, pp. 138-139.
- 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.
- 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.
- (1984) 158 CLR 365 at 374. Referred to in Neate, op.cit., p.
150.
- This Bill became the Aboriginal Land Rights (Northern
Territory) Amendment Act 1987.
- House of Representatives, Parliamentary Debates
(Hansard), 22 October 1986, p. 2568.
- Paragraph 67A(5)(a).
- Paragraph 67A(5)(b).
- Paragraph 67A(5)(c).
- Paragraph 67A(5)(d).
- 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.
- McRae et al, op.cit., pp. 188-189.
- House of Representatives, Parliamentary Debates
(Hansard), Second Reading Speech, Aboriginal Land Rights
(Northern Territory) Amendment Bill 1989, p. 2150.
- 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. 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.
- 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.
- 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.
-
- 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.
- Ibid.
- Ibid.
- 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.
- Explanatory Memorandum, Aboriginal Land Rights (Northern
Territory) Amendment Bill (No. 2) 1999, p. 2.
- to which the suffix '(No. 2)' was later added to avoid
confusion with an earlier introduced Bill.
- House of Representatives, Parliamentary Debates
(Hansard), Aboriginal Land Rights (Northern Territory)
Amendment Bill 1997, 25 September 1997, p. 8587.
- Ibid., p. 8591.
- Teori Tau v Commonwealth (1969) 119 CLR 564.
- Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR
513.
- Explanatory Memorandum, Aboriginal Land Rights (Northern
Territory) Amendment Bill (No. 2) 1999, p. 1.
- House of Representatives, Parliamentary Debates
(Hansard), Second Reading Speech, Aboriginal Land Rights
(Northern Territory) Amendment Bill 1997, 18 June 1997, p. 5556.
- House of Representatives, Parliamentary Debates
(Hansard), Aboriginal Land Rights (Northern Territory)
Amendment Bill 1997, 25 September 1997, p. 8539.
- Explanatory Memorandum, Aboriginal Land Rights (Northern
Territory) Amendment Bill (No. 2) 1999, p. 2.
- 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.
- 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.
- Ibid., p. 248.
- House of Representatives, Parliamentary Debates
(Hansard), Aboriginal Land Rights (Northern Territory)
Amendment Bill 1997, 25 September 1997, p. 8539.
Sean Brennan and Jennifer Norberry
12 May 1999
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