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Aboriginal Land Rights (Northern Territory) Amendment Bill (No. 1) 1998
Bills Digest No. 59 1998-99
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not h ave any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
The Bill alters the retiring age of the Aboriginal Land Commissioner. It also adds two parcels of land to those granted to Aboriginal Land Tr usts in the Northern Territory for the benefit of the traditional Aboriginal owners.
The Aboriginal Land Rights (Northern Territory) Act 1976 (Cwlth) (the Principal Act) 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. 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, Aboriginal people.(1)
In general, 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 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.(2) 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 has 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 requires that anyone wishing to explore for minerals or mine on Aboriginal land must obtain the consent of the traditional owners through the relevant Aboriginal Land Council.(3) The Land Councils also determine questions of access to Aboriginal land.
Under the Principal Act, land claims are lodged with the Aboriginal Land Commissioner. The Commissioner is a statutory office holder whose functions include inquiring into and making recommendations about land claims made u nder the Principal Act.(4)
When a land claim has been made under the Principal Act , a settlement is sometimes reached by agreement between the Northern Territory Government and the relevant Land Council . (5) In such cases, the Aboriginal Land Commissioner's office is asked to adjourn the land claim until the land can be scheduled under the Principal Act and an approach is made to the Minister for Aboriginal and Torres Strait Islander Affairs asking for the land to be scheduled. Land which is added to the Schedule becomes Aboriginal land under the Principal Act. Once scheduling has occurred, then no further inquiry by the Aboriginal Land Commissioner is needed.
Item 1 of Schedule 1 changes the retiring age of Aboriginal Land Commissioner. The retiring age is currently set at 65 years. The amended retiring age is 70 years. Section 53 of the Aboriginal Land Rights (Northern Territory) Act 1976 provides that the Aboriginal Land Commissioner must be a Judge of the Federal Court of Australia or the Supreme Court of the Northern Territory. The retiring age for those judges is 70 years of age.(6)
Item 2 of the Schedule adds a parcel of land called ‘Innesvale’ to the land scheduled under the Principal Act.
Item 3 of the Schedule adds a parcel of land called ‘Urrpantyenye’ to the land scheduled under the Principal Act.
1. By virtue of a 1987 amendment to the Principal Act a sunset clause now precludes the Aboriginal Land Commissioner from inquiring into land claims made a fter 5 June 1997.
2. Note that royalties from mining on Aboriginal land are paid into the Aboriginal Benefit Trust Account.
3. The Governor-General may override a refusal only if the national interest requires that a licence be granted. Additionally, if the Aboriginal owners consent to minerals exploration then they cannot refuse to consent to mining.
4. Section 50(1), Aboriginal Land Rights (Northern Territory) Act 1976 .
5. In the absence of such an agreement, the Aboriginal Land Commissioner hears the lan d claim and submits a report with a recommendation to the Commonwealth Minister for Aboriginal and Torres Strait Islander Affairs. In such a case, the ultimate decision about whether to accept the recommendation rests with the Minister.
6. See Constitution, section 72 in relation to Federal Court judges and, in relation to judges of the Northern Territory Supreme Court, see section 38 of the Supreme Court Act (NT). The only exception to the retiring age of 70 years of age in the Northern Territory is acting Supreme Court judges. Such judges are also defined as ‘Judges’ under the Aboriginal Land Rights (Northern Territory) Act 1976 . See subsection 53(4) of that Act and section 38 and subsection 32(2) of the Supreme Court Act (NT).
Jennifer N orberry
2 December 1998
Bills Digest Service
Information and Research Services
This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and b alanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document. IRS staff are available to discuss the paper's contents with Senators and Members and their staff but not with members of the public.