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Thursday, 4 December 1986
Page: 3327

Senator GRIMES (Minister for Community Services)(10.10) —I move:

That the Bill be now read a second time.

I table a revised explanatory memorandum and seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows-

A number of important reforms to the Act are put before the Parliament in this Bill.

Undoubtedly the most substantial and difficult issue that is addressed in the Bill relates to the provision of secure title to land for Aboriginals living in pastoral areas in the Northern Territory. Such people are among the most deprived of Australians, and many live in conditions that can only be described as a disgrace to this country. As a matter of national pride, and as a simple matter of respect for human dignity, we must give the highest priority to resolving the problems of these people.

We have made it clear, in our discussions with the Northern Territory Government and with representatives of the Northern Territory Cattlemen's Association, that our prime target is to provide, for Aboriginals living in the pastoral zone, secure land bases with good living conditions. We want fast, lasting results. We have also stressed that we would much prefer that solutions are found by negotiation between the parties, rather than be imposed from outside.

We have been assured by the Northern Territory Government and the Cattlemen's Association that they share these objectives.

Our negotiations with the Northern Territory Government and the pastoralists, and with the Land Councils as the representatives of Aboriginal interests, have been proceeding for some time. These have reached a point where I can now put before the Parliament the package of proposals-not all involving legislative action-that we are implementing.

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 2 or more segments, with consequent disruption and costs for the pastoralist 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 the 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.

We 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.

In order to provide protection, however, against a possible situation where negotiations fail to produce a satisfactory outcome, the Bill also provides a power to prescribe a stock reserve or reserves in respect of which land claims would be allowed to proceed.

Let me make our intentions totally clear on this issue. We want negotiated, not imposed, solutions.

If all parties concerned-the Land Councils and the Aboriginal people, the Northern Territory Government, and the pastoralists-approach the negotiations in a truly co-operative spirit, outstanding issues should be able to be resolved. But the Commonwealth must also ensure that, if the negotiations do break down for any reason, it retains sufficient power to take other action to achieve our objectives.

We are not in the business of making concessions, then later finding that results have not been forthcoming and there is nothing we can do about it. Above all else, we have an obligation to safeguard the interests of those Aboriginal people who are presently deprived of any reasonable basis on which to plan and build their lives in their own country.

The Government has also under consideration requesting a Land Commissioner to inquire, in accordance with paragraph 50 (1) (b) of the Act, into the likely extent of traditional land claims to alienated Crown land.

I turn now to the other main provisions of the Bill.

One of the most innovative parts of the Act is the scheme for people to claim certain categories of land on the basis that they are the traditional Aboriginal owners of that land. Since 1977 26 traditional land claims have been heard and reported on by Aboriginal Land Commissioners, and inalienable freehold title to many of these areas has been granted to Aboriginal Land Trusts.

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, 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 will effectively 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.

The Act will be amended to clarify the position in respect of repeat land claims. Where a claim has not resulted in a recommendation for grant from a Commissioner it will be possible, in certain circumstances, for a Commissioner to hear a later claim to the same land. These criteria to be applied by a Commissioner are aimed at ensuring that claimants are not disadvantaged, while ensuring that the status of land which has been unsuccessfully claimed is not frozen indefinitely by claims which have little or no chance of success.

An anomaly will be rectified whereby pastoral leases held by Aboriginals can be claimed by Aboriginal people other than the landholders, without their consent. In future, such consent will be required before a hearing can proceed.

As already noted, as a general rule, claims to stock routes and stock reserves will cease to be heard. Claims which are already part heard by a Commission will be allowed to be completed. Claims to parts of stock routes and reserves which are bounded on both of the longer sides by land which is available for claim will also continue, ensuring that land claim land will not be divided into segments by stock routes.

The Act will also be amended to provide that no land claims lodged more than 10 years after the commencement of these amendments will be dealt with by a Commissioner.

These amendments will help give much needed certainty to the land claim process.

Other aspects of the land claim process will be improved and clarified. Lawyers appearing before an Aboriginal Land Commissioner will be given the sort of protection already accorded to a Commissioner and a witness. A Commissioner will be empowered to give directions prohibiting or limiting the publication of, or access to, information or material produced to the Commissioner under this Act. A Commissioner will also be able to require specific persons, or persons within a specified class of persons, not to be in the vicinity of the place where information is to be given or material produced. Penalties will be provided where a person knowingly contravenes or fails to comply with such a direction.

A Commissioner will be able to refer a question of law arising in connection with a traditional land claim to the Federal Court of Australia, where it will be dealt with by a Full Court. Where a Commissioner has been unable to complete the performance of his functions before his term of office has expired, the Commissioner will be deemed to continue to hold office for the purpose of completing the performance of the functions. So, for example, where a Commissioner has heard evidence and addresses in respect of a traditional land claim, but has not reported his findings and made any recommendations before his term expires, he could write such a report after that date. Finally, in order to provide a wider base from which to select Land Commissioners, it is proposed that a Commissioner may be chosen from the bench of the Federal Court. At present the only source is the Northern Territory Supreme Court. The views of the Northern Territory Government will of course be sought before any appointment is made.

Other Amendments

There will be a scheme for the amalgamation of Land Trust areas if the traditional Aboriginal owners wish to have such amalgamations.

Provision is made for compensation to be granted to persons who hold grazing licences over unalienated Crown land which is granted to a Land Trust.

The scheme for the grant of estates or interests in Aboriginal land will be revised, for example, to remove the need for Ministerial consent to certain types of short and medium term grants.

The powers and responsibilities of Land Councils will be amended in a number of respects, consonant with the requirements of effective administration practice.

The Consultative Processes

The various proposals put forward in this Bill are the result of discussion and consultation over the past three years concerning what changes should be made to the Act. The Act was an innovative piece of legislation. It established a set of rights in respect of traditional land which the common law had failed to recognise, and gave the traditional Aboriginal owners of that land real control over what happened on it.

It was inevitable that legislation of this kind would create some practical problems. In 1974 Mr Justice Woodward, on whose recommendations much of the Act was based, anticipated that the scheme would need to be reviewed. He noted that he had ``experienced great doubt on a number of issues-particularly those relating to mineral rights and additional claims in pastoral lease areas''. He suggested that there be deliberate and planned examinations of the system to ensure that anomalies were brought to light and the system did not become rigid and unresponsive to changing needs.

One of Clyde Holding's first actions as Minister for Aboriginal Affairs was to ask Mr Justice Toohey to make a general review and report on the provisions and operation of the Act. The Minister asked Mr Justice Toohey to recommend amendments to the Act having regard to the general principles which Government sees as fundamental in relation to Aboriginal land rights.

Mr Justice Toohey, the first Aboriginal Land Commissioner and a Judge of the Federal Court of Australia, received oral and written submissions from a number of interested persons and bodies. In December 1983 he reported to the Minister, recommending a wide range of amendments and supporting other ways in which land justice could be achieved for Aboriginals in the Northern Territory. The report, entitled `Seven Years On', was printed in book form, tabled in the Parliament, and distributed widely.

Then in 1984 Dr Jon Altman conducted a review of the Aboriginals Benefit Trust Account.

Release of these reports was followed by a most extensive process of consultation and debate. That led, earlier this year, to the development by the Government of a set of proposals for amending the Act; these proposals, in turn, have been discussed at considerable length with the Aboriginal Land Councils, the Northern Territory Government, and mining and pastoral interests.

This is as it should be; difficult questions of policy are involved, in which the reconciliation of conflicting interests must be given the greatest attention if the best possible results are to be achieved.

The Government is satisfied that it has done everything that it reasonably could to provide scope for reconciliation and accommodation. Indeed, I would doubt whether there are any instances of legislation that have been so exhaustively canvassed and discussed before introduction.

Although good progress has been made on a number of fronts, there remain some contentious aspects on which there are some sharp divergences of views. We have decided to allow more time for these problems to be analysed and discussed, and will look at them again early in the New Year. We did not believe, however, that we can afford to delay other much needed improvements until these outstanding issues can be resolved.

The main elements being deferred are those dealing with exploration and mining on Aboriginal land; the granting of an estate or interest in Aboriginal land to the Northern Territory Government for essential services; protection of sacred sites; methods for calculating payments of royalty equivalents to the Aboriginals Benefit Trust Account; and the removal from claim of pastoral properties owned by Aboriginals, and of public purpose land.

In relation to the Aboriginals Benefit Trust Account, we have also decided to defer consideration of a number of possible legislative changes in order that the changes that have been introduced by administrative means, following on Dr Altman's recommendations, have time to take effect and can be evaluated.

Financial Impact

There will be little additional cost to the Commonwealth arising directly from these amendments.

Provisions will be made to compensate persons who have lost the use of a grazing licence or other licence upon land becoming Aboriginal land. I do not expect that such situations will occur often or that substantial payments will be involved.


In 1976 the Aboriginal Land Rights Act was seen to be a bold innovation at law. In social terms it was, and remains, an attempt at what Mr Justice Woodward described as ``the doing of simple justice to a people who have been deprived of their land without their consent and without compensation'' and ``the promotion of social harmony and stability within the wider community by removing as far as possible, the legitimate causes of complaint of an important minority group within that community.''

The Act has done much to achieve those and other aims. Yet in its operation the need for some amendment has been apparent. As Mr Justice Toohey wrote in his review of the Act: The number of amendments recommended to the Land Rights Act may be thought to suggest substantial defects in the legislation. It would be a mistake to draw that conclusion. Given the legislative novelty of the subject matter of the Act and the need to marry complex notions of traditional Aboriginal law and culture with European institutions and administrative procedures, the Act has worked surprisingly well. But it is inevitable that after 7 years cracks in the edifice have started to show.

The amendments before the Senate will, I believe, do much to strengthen the Act for the present and well into the future.

I commend the Bill to the Senate.

The PRESIDENT —Pursuant to the order of the Senate of 14 November 1986, the resumption of the debate shall be an order of the day for the first day of sitting in 1987.