Download PDFHouse: House of Representatives
Portfolio: Aboriginal and Torres Strait Islander Affairs
Commencement: Royal Assent
Main Purpose
To add one parcel of land to those granted to Aboriginal Land Trusts in the Northern Territory.
Background
The Western Desert Locality Claim
The Bill proposes to include one additional parcel of land, an area of approximately 236,000 hectares, in Schedule 1 of the Aboriginal Land Rights (Northern Territory) Act 1976 (the Principal Act) which describes land covered by the Principal Act. The whole of the land claimed is unalienated Crown land located between the Western Australian border and the Central Desert region, above Tanami Downs and about half way between the South Australian border and the Timor Sea. Topographically the land is largely undulating sandy plains covered in spinifex, shrubs and small trees.
This claim is a repeat land claim. It was first claimed as part of the larger Western Desert land claim in 1989. The Aboriginal Land Commissioner ("the Commissioner") did not recommend the whole area for grant at that time, but new research from 1993 found additional evidence to support a claim to this area. The inclusion of the Western Desert locality follows a settlement agreement reached between the Northern Territory Government, the claimants and the Central Land Council. This agreement includes a clause in which the Northern Territory Government agrees to ask the Commonwealth to grant fee simple title to the land.
The Aboriginal Land Rights (Northern Territory) Act 1976
The Aboriginal Land Rights (Northern Territory) Act 1976 provides a mechanism for the grant of traditional Aboriginal land in the Northern Territory to indigenous peoples. 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, Aboriginals. 1
The Land Claim Process
Section 51 of the Principal Act empowers the Commissioner to "do all things necessary or convenient to be done for or in connexion with the performance of his functions". Pursuant to this section the Commissioner issues Practice Directions setting out the procedures which govern land claims. The steps listed below outline the general process:
lodging a written application with the Commissioner - this application includes the name(s) of claimant(s), a full description and original map of the land, a statement as to whether the land is unalienated crown land or alienated crown land in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals, and a list of all parties likely to be affected by the claim.
notifying interested parties about the application - these could include Commonwealth and Northern Territory Government Departments, pastoral, mining, fishing and tourism bodies, and any other interested parties.
investigating the land claim - this may take months and is undertaken with a view to producing claim material which must be lodged with the Commissioner's office and served on the solicitor for the Northern Territory and any other interested party at least eight weeks prior to the date fixed for the commencement of the inquiry. The investigation usually includes anthropological research, fieldwork and analysis, linguistic and historical research.
producing the claim material - claim documentation must contain the following:
- a current set of documents establishing the status of the land claimed (eg, title
documents, maps and plans, etc),
- a list of claimants including European and Aboriginal names, date and place of birth, social or kinship classification, basis for inclusion in local descent group, etc)
- a genealogy for each local descent group of claimants
- a map or maps of spiritual sites accompanied by an alphabetical listing and showing dreaming affiliations
- a site information register detailing Aboriginal and non-Aboriginal names, locations and physical features, associated dreamings and summarised mythology and, Aboriginal informants.
- an anthropological report detailing matters like kinship and social organisation, dreamings, sites, traditional practices, ceremonies and rituals, land tenure systems, principles of descent, the structure and composition of land owning groups, variations in the rights, functions and responsibilities of different members of groups and, succession, amalgamation and incorporation of groups.
In addition a statement of the author(s) qualifications and experience is to be included.
- a statement as to whether the claimant intends to rely on any evidence on which a restriction will be sought to the effect that the evidence not be communicated other than to persons of one sex and, if so, which sex. 2
lodging the claim material - the claim material is lodged Commissioner at least two months before the hearing date.
fixing of inquiries - before the end of October each year, each land council must lodge in the Commissioner's office a list of the claims which that land council wishes to have heard in the following calendar year. In the month of November, the Commissioner, in consultation with the land councils and the solicitor for the Northern Territory fixes a program of hearings for the following calendar year.
advertising - once the claim material has been lodged with the Commissioner, she/he publishes a notice of intention to commence inquiry and invite written notice from any person wishing to be heard at the inquiry.
hearing and determining the land claim - in determining the claim the Commissioner hears evidence from indigenous people, expert witnesses and other interested parties. Although most indigenous evidence is given publicly, evidence which cannot be spoken of publicly is given in camera. Land claim hearings are not governed by the normal rules of evidence.
reporting to the Minister - having heard all the evidence the Commissioner, where she/he finds traditional Aboriginal owners with sufficient strength of 'traditional attachment' to the land, recommend the grant of the land to an Aboriginal Land Trust. After the hearing the Commissioner sends a copy of the report together with recommendations as to which parts, if any, of the land claim should be granted, to the Minister for Aboriginal and Torres Strait Islander Affairs. A copy of the report is also provided to the Northern Territory government.
finalising the claim - the Minister decides whether to recommend to the Governor-General that the land be granted.
The Commissioner's Practice Directions also set out procedures to be followed for a repeat claim. A "repeat claim" means a claim which relates to land to which another claim related, being a claim in respect of which the Commissioner made no recommendation for the granting of the relevant land to a land trust.
Title
As a general rule, where land is granted following a traditional land claim (or land described in Schedule 1 of the Principal Act and granted without the need for a 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. 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 had 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 also requires that anyone wishing to explore for minerals or acquire mining interests over land granted to indigenous owners must negotiate with the appropriate land council and may not directly approach the traditional owners.
Main Provisions
Clause 3 adds the Western Desert locality area, as defined by lines of distance, to Part 4 of Schedule 1 of the Principal Act.
Endnotes
1 Aboriginal Land Rights (Northern Territory) Act 1976 Practice Directions, June 1994, pages 7-11.
2 Neate. G, Aboriginal Land Rights Law in the Northern Territory Volume 1,
Commonwealth of Australia, 1989, p 61.
Allison Ballard (Ph. 06 2772751)
Bills Digest Service 31 March 1995
Parliamentary Research Service
This Digest does not have any 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.
Commonwealth of Australia 1995.
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Published by the Department of the Parliamentary Library, 1995.traditional attachment' to the land, recommends the grant of the land to an Aboriginal Land Trust.