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Thursday, 27 November 1986
Page: 3832

Mr CONNOLLY(10.59) —I move:

(2) Page 10, after clause 12, insert the following new clause:

``12a. After section 19 of the Principal Act the following section is inserted in Part II:

Grants to Northern Territory for an essential service

`19a (1) Where-

(a) the Northern Territory has requested a Land Council to direct a Land Trust holding land (in this section referred to as the ``relevant land'') in the area of that Land Council to grant an estate or interest in that relevant land to the Northern Territory for use for a particular essential service; and

(b) the Land Council has refused or is unwilling to give such a direction,

a Minister of the Northern Territory may apply, in writing, to the Minister for the matter to be dealt with in accordance with this section.

`(2) Where the Minister has received an application under sub-section (1) and the Minister is satisfied that the particular essential service necessitates the grant of an estate or interest in the relevant land, the Minister shall appoint an Arbitrator to deal with the matter in dispute and shall refer the matter to the Arbitrator.

`(3) The Minister shall not appoint as an Arbitrator for the purposes of sub-section (2) a person other than a judge of the Federal Court of Australia, or of the Supreme Court of the Northern Territory of Australia.

`(4) On a reference being made to an Arbitrator under sub-section (2), the Arbitrator shall determine-

(a) what part of the relevant land is required for the particular essential service;

(b) what form of estate or interest (other than an estate in fee simple) is necessary for that essential service;

(c) the terms and conditions under which the estate or interest is to be granted; and

(d) the compensation payable by the Northern Territory to the Land Trust in respect of any decrease in the value of the relevant land to the extent that the decrease is attributable to the grant of that estate or interest.

`(5) Where an Arbitrator has made a determination under sub-section (4), the Land Council concerned shall direct the Land Trust to grant the estate or interest in the relevant land to the Northern Territory on those terms and conditions.

`(6) Where the Minister is satisfied that a Land Council has refused, or is unwilling, to give a direction to a Land Trust to grant an estate or interest in relevant land in accordance with a determination under this section, the Minister may, in the name of, and on behalf of, the Land Trust, grant the estate or interest to the Northern Territory.

`(7) Upon the granting of the estate or interest to the Northern Territory, the Land Trust has a right to compensation from the Northern Territory in the amount determined by the Arbitrator.

`(8) In this section-

(a) a reference to an estate or interest in land includes a reference to a licence in respect of that land; and

(b) a reference to an essential service includes a reference to the provision of power, water, sewerage, communications, railways, boat landings, airstrips, health and education facilities, the provision of roads, and accommodation for Government employees.' ''.

My proposed new clause as originally circulated has been amended to add to sub-clause (3) the words `or of the Supreme Court of the Northern Territory of Australia'. As I briefly mentioned, the proposed new clause relates to the granting to the Northern Territory of land for essential services. As the Aboriginal Land Rights (Northern Territory) Act currently stands, there is explicitly excluded from the provisions of the Act the opportunity for justices of the Supreme Court of the Northern Territory to be involved in the settlement of disputes between Aboriginal communities and other organisations or individuals in relation to Aboriginal land. This is a matter which causes the Northern Territory considerable concern, and rightly so. It argues the case that its legislative base is now extended to the point where, as a result of an agreement with the Commonwealth some years ago, it has its own Supreme Court and it has justices of that Court who have had considerable experience in this field.

I am also aware, however, that there have been some limitations on the capacity of justices of the Supreme Court, by sheer weight of the work load they carry, to have their area of responsibility extended. Nevertheless, there is still a case that in this legislation the Northern Territory ought to be in a position where it can put forward to the Commonwealth its views on who arbitrators ought to be. If the provisions stand as they are, it would simply mean that arbitrators would be justices from the Federal Court of the Commonwealth, determined by the Minister, who is a Commonwealth Minister, without necessarily having to receive or ask for the views of the Northern Territory. The Minister needs to face the fact that it is only a question of time before the Northern Territory gains statehood, and in the meantime steps must be taken to ensure that the legislative base of the Northern Territory is adequate to take on these additional responsibilities. If they are to be excluded from having any legal input in the decision-making process in relation to legislation which affects the land mass of the Northern Territory and no other part of the Commonwealth of Australia, it is not unreasonable that the Northern Territory Government and the people of the Northern Territory should see such legislation as being directly aimed at excluding their legitimate interests from the decision-making process.

Proposed new clause 12a grants to the Northern Territory land for essential services. What it really means is that the Northern Territory would request the land council to direct a land trust, which is the title holder to land, to provide a grant or an estate or interest in that land to the Northern Territory for use for a particular essential service. In a case where the land council may refuse or be unwilling to make such a direction, under the Opposition's proposed new section 19a the Minister of the Northern Territory may apply, in writing, to the Commonwealth Minister to have the matter dealt with in accordance with the section. It is in that context in particular that the status of Northern Territory judges is very important indeed. In cases where the Commonwealth Minister may receive an application from the Northern Territory and is satisfied that the particular essential service necessitates the grant of an interest or interests in land, the Minister shall appoint an arbitrator. The important thing is that under this amendment the Commonwealth Minister still has the final say as to whether or not he is satisfied that the request for land for services is a bona fide request.

The Minister will undoubtedly respond to this by saying that in his opinion there is some evidence that in the past this may not have been the case. May I go on record as saying that if there have been any allegations of this nature in the past, that is simply because the original Northern Territory land rights legislation did not give to the Territory legitimate opportunities to have access to land for the provision of services to communities, whether they be white or Aboriginal. One of the fundamental weaknesses in the Northern Territory land rights legislation was that matters such as this were ignored. Mr Justice Toohey and also Mr Justice Woodward, who initiated the land rights legislation in his earlier report, made the point that from time to time this legislation would have to be fine tuned to ensure that it was meeting the legitimate needs of the Aboriginal Communities on the one hand while on the other hand ensuring that the overall interests of the Northern Territory, of which the Aboriginal communities form an important part, were also taken into account.

There has been since 1976 the strong perception in the Northern Territory that this legislation is not working in the interests of the majority of the people. The Minister for Aboriginal Affairs naturally will say that that is too bad and that he is here to look after the minority of the people-the Aboriginal people. But the best way we can look after minorities-this is an historical fact-is to give them the opportunity of becoming part of the mainstream of society while enabling them to have the opportunity to live their lifestyles and to maintain their social and community values as they think fit. Let there be no doubt about it: All the opinion polls in recent years have shown that whereas 10 or 15 years ago a substantial majority of Australians favoured giving Aboriginal Australians additional opportunities to encourage them to be able to catch up and be part of the Australian mainstream, the simple reality today is that as a result of the gross mishandling of the Aboriginal land rights issue in the Northern Territory, in Western Australia and elsewhere by the Federal Labor Government and by some of the State governments, we have seen a profound change in public perceptions on this issue.

Those of us who are genuinely interested in ensuring that the objectives of our policy can be implemented, that Aboriginal Australians can feel that they have a full and fair share of access to the opportunities of Australian citizenship, now face the perception that they have been given more, not less, than most average Australians. This point has been brought forward by justices of the High Court of Australia, who have questioned people's attitudes towards this issue, but that does not alter the fact that to a large degree politics depends on perceptions, and it is the role of government, and a solemn role of this Federal Government in relation to Aboriginal Australians, to make sure that it does not initiate actions which will ultimately discriminate against the very minorities it is attempting to support. Where mixed communities in the Northern Territory live in areas where certain land has been assigned for public purposes, we are well aware of the fact that in Aboriginal areas this is not the case.

There are complexities in relation to Aboriginal land tenure, there is no doubt about that, and people accept and understand that. Perhaps what we should have done in the past-it is still not too late to consider it for the future-was to build in a provision before land is granted, for the establishment of windows in communities which can then be used by State authorities for the provision of health, education, water supplies and the normal impedimenta of modern community living. While that is not the case, it will be even more difficult for the Northern Territory to proceed with its current policy, which the Opposition supports and to the best of my knowledge so does the Government, to give to Aboriginal communities essentially local government characteristics and powers.

The problem we will then have, even if we have a localised local government structure in Aboriginal communities, is for those structures to be able to determine in terms of land what is their legal relationship with the land trusts which claim and have title to all that area. There are difficulties, especially in mixed communities, where it can be argued, as it has been argued to me by both the Northern Land Council and the Central Land Council, that there are situations where one particular moiety or family group can generate the view that it has a responsibility for or relationship with a particular piece of land on which the State, for example, may wish to put a school. The fact that the rest of the community will gain from that school, including the actual owners of the land, is often misunderstood.

The DEPUTY CHAIRMAN (Mr Drummond) —Order! The honourable member's time has expired.