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The Aboriginal Land Rights (Northern Territory) Bill 1976



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PARLIAMENT OF AUSTRALIA

The Parliamentary Library

LEGISLATIVE RESEARCH SERVICE

BASIC PAPER

THE ABORIGINAL , LAND RIGHTS (NORTHERN TERRITORY) BILL 1976

Education and Welfare Group

6 August 1976

THE ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) BILL 1976

Introduction

The purpose of this paper is to compare the provisions of the Bill with the recommendations of the Aboriginal Land Rights Commission, April 1974 (the Woodward Report) and the Opposition's Aboriginal Land (Northern Territory) Bill 1976, and to discuss some

of these provisions. Itis not the intention of the paper to comment for example on the recommendations of the Woodward Commission.

The Aboriginal Land Rights (Northern Territory) Bill 1976 and the Aboriginal Land (Northern Territory) Bill 1976 both provide for the handing over to Aboriginal owners the full title of some land in the Northern Territory.

In preparing its land rights legislation the labor Government accepted in principle the recommendations contained in the final report of Mr Justice Woodward's Land Rights Commission.

It established by Act of Parliament -

(a) the Aboriginal Loans Commission to administer the Aboriginal Enterprises Fund and the Housing and Personal Loans Fund which enabled Aboriginals to obtain loans at concessional rates.

(b) the Aboriginal Land Fund to purchase land for significant continuing Aboriginal communities. For the next 10 years, $5m per annum was to be appropriated to this Fund.

The Aboriginal Councils and Associations Bill was before

Parliament at the dissolution on 11 November 1975. It provided for a simplified procedure for Aboriginal communities and groups throughout Austr4lia to incorporate for local government, economic and legal purposes. Senator Keeffe reintroduced this Bill to the

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Senate on 7 April 1976. A Bill described as "basically the same" was introduced by the Minister for Aboriginal Affairs, Mr Viner, an

3 June 1976. This will be debated in the next session of Parliament.

The final Bill in the Labor legislative programme was the

Aboriginal Land (Northern Territory) Bill 1975 (also reintroduced by

Senator Keeffe on 7 April 1976).

The Government's Land Rights Bill implements some of the Woodward recommendations. It deals primarily with reserve lands which are not in dispute and establishes an administrative structure

for handing these lands over to Aboriginal ownership. It is not

intended to deal with the broader questions of the general land needs

of Aboriginals, the protection of sacred sites, the needs of Aboriginals

in towns, and the possibility of forms of compensation other than land.

The Minister for Aboriginal Affairs has stated that the Bill is based on the recognition of traditional land rights only and alternative macninery within the Government would be used to deal with other claims based on Aboriginal needs.(1)

A. COMPARISON

Title of the Bill

The title of the Government Bill - "A Bill for an Act Providing for the granting of Traditional Aboriginal Land in the

Northern Territory for the benefit of Aborigines and for other purposes" - is more specific than that of the Opposition Bill, which is a "Bill ... relating to the Provision of land in the Northern Territory for Aboriginals. The latter title is closer to the suggested title in the Woodward Report "to provide for the acquisition and administration of land for Aboriginal people in the

Northern Territory of-Australia and for other purposes. (2)

(1) Press Release, Canberra, 9 June 1976. .(?) Aboriginal Land Rights Commission, Second Report, April 1974, Appendix D, p.155.

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Part I Preliminary

This Part of the Bill contains definitions of terms used.

There are several terms which do riot appear in the Opposition Bill,

the most significant being:

1. "alienated Crown land" does not include land in a town.

2. "area" in relation to a Land Council means an area for which the Council is established under-this Act.

3. "traditional land claim" in relation to land, means a claim by or on behalf of the traditional Aboriginal .

owners of the land arising out of their traditional ownership.

4. nunalienated Crown land" does not include land in a town.

Land on which there is a road over which the public has a right of way is put outside the operation of the Act even where such land is included in the Schedule. (8.3(5)).

The exclusion of town land from either "alienated" or

unalienated" Crown land ((I) and (4) above) is intended to limit the application of the Bill. The Woodward Report and the Opposition Bill both include consideration of the land needs as distinct from

land claims of Aboriginals in towns.

Traditional Ownership

Mr Justice Woodward discussed Aboriginal concepts of

land ownership in some detail in his first report. In the second report, however, he did not limit land claims in any way to traditional land; in fact he specifically stated:

"I believe the only appropriate direct recompense for those who have lost their traditional lands (1) is other lands."

(I) Para. 55.

In the suggested drafting instructions for proposed legislation in Appendix D of this report, traditional Aboriginal owners in respect of an area of land were defined as:

111 a local descent group of Aborigines who have common spiritual affiliations to a site or sites within that area of land,which affiliations place

the group under a primary spiritual responsibility for that site or sites and for that land, and who are entitled by Aboriginal tradition to forage as of right over that land."

This definition is included in both the Government and Opposition Bills but the Government Bill further defines land claims arising out of traditional ownership.

Part II Grants of Land to Aboriginal Land Trusts

This Part in the Government Bill corresponds to Part IV in the Opposition Bill and to the Recommendations in Paragraph 144 of the Ifoodward Report.

The Government Bill provides for the establishment of Aboriginal Land Trusts tb "hold title to land in the Northern Territory for the benefit of groups of Aboriginals entitled by Aboriginal tradition to the use or occupation of the land concerned, whether or not the traditional entitlement is qualified as to place, time, circumstance, purpose or permission." (3 .4(1)). The Opposition Bill provides for the establishment of Land Trusts "to hold title.

to land in the Northern Territory for the benefit of Aboriginal communities or groups". (8.39(1)). The Woodward Report saw the Land Trusts as landholding corporations which would hold title to Aboriginal land "for the benefit of all those having traditional

interests in it or rights over it." (Para.144(ii)).

4.

5.

The functions and powers of the Land Trusts are substantially the same in both Bills. The Government Bill, however, does not have S.40(1)(d) and 3.47 of the Opposition Bill

which provide for the establishment of a Land Trust for grants of Crown land, other than that described in the Schedule, in which

a person has an interest, and the acquiring of such interest by The Land Trust with a view to its surrender to the Crown.

Both Bills provide that a deed of grant is subject to the reservation that mineral rights remain with the Crown. This is also one of the Woodward recotmendations. (1)

The Government Bill also

excludes roads over which the public has a right of way. (S.12(3)(10)).

The Government Bill provides that all members of

a Land Trust shall be "Aboriginals living in the area of the Land Council in the area of which the land of the Land Trust is situated". (8.7(6)). The Opposition Bill simply provides that all members Shall be Aboriginals. (8.42(6)).

In both Bills, Land Trusts are seen as acting under the direction of the Land Council for the area in which the land is situated. They are not empowered to handle money, their main function being to hold title to lands. Woodward saw these trusts as providing "an opportunity to show proper respect for older

traditional leaders and thus to temper the growing powers of the community councils with a due regard for .traditional values." (2)

A Land Trust requires the consent of the Land Council to grant leases and before such leases are granted the Land Council must be satisfied that:

(1) Government Bill 8.12(2), Opposition Bill S.48(2), Woodward Report Para, 708(1). (2) Para. 89.

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(a) the traditional Aboriginal owners understand and consent;

(b) any Aboriginal group affected has been consulted and given adequate opportunity to express its views;

(c) the terms of the lease or licence are reasonable.

These provisions are the same in both Bills (Government Bill S.19(5), Opposition Bill S.55(5)).

Part III Aboriginal Land Councils

Both Bills provide for the establishment of at least two Land Councils, covering the whole of the Northern Territory. Provision is made for the establishment of a new Land Council where appropriate.

The two Bills and the Woodward Report envisage widely differing functions for the Land Councils, viz.:

1. The Woodward Report

The main functions of the Land Councils are:

Para.359. (a) providing the main meeting places for developing Aboriginal policies on matters relating to land;

(b) representing Aborigines in negotiations with the

Government on all matters relating to land rights in their regions, particularly any proposed

legislation or regulations;

(c) protecting the interests of traditional owners in all negotiations concerning the use of land;

(d) acting for traditional owners and for communities in all discussions and negotiations with departmental officers, mining companies, tourist interests or others, concerning land usage;

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(e) establishing a register of traditional owners of Aboriginal lands, similar to that recommended

to be established by the Land Commission for

pastoral lands; (f) investigating and reporting on the land

requirements of Aborigines in towns;

(g) co-ordinating and making claims to vacant Crown

lands;

(h) making representations to the Land Commission

about priorities in the expenditure of moneys for.land purchase and land development;

(i) nominating appropriate trustees to hold lands for Aborigines;

(j) providing administrative services to Such trustees and directing them in the performance

of their duties wherever necessary;

(k) conciliating disputes between Aboriginal groups or communities over matters concerning land ownership or usage; and

(1) issuing entry permits to non-Aborigines visiting

Aboriginal lands and arranging for rangers and others to check that the permit system is

observed.

2. The Opposition Bill

23. (1) The functions of a Land Council are -(a) to administer Aboriginal land in its area that is held by Land Trusts;

(b) where the Land Council holds in escrow a deed of

grant of land made to a Land Trust under section 48 -(i) to negotiate with persons having estates or

interests in that land with a view to the acquisition of those estates or interests by the Land Trusts; and

(ii) until those estates or interests have been so

acquired, to negotiate with those persons with a view to the use by Aboriginals of the land .

in such manner as may be agreed between the Land Council and those persons;

(c) to negotiate, on behalf of traditional Aboriginal owners of land in its area held by a Land Trust,

being those owners as shown in the register maintained by the Council under section 24, and any other

Aboriginals interested in the land, with persons desiring to use, occupy or obtain an interest in that land;

(d) to investigate, and to make representations

concerning -(i) the requirements for land of Aboriginals living in its area;

(ii) the use, whether by means of the acquisition

of an interest or otherwise, by Aboriginals of Crown Land in its area in which no person

(other than the Crown) has an estate or interest; and

(iii) priorities in the expenditure of public

moneys in connexion with the acquisition or

development of land in its area for the benefit of Aboriginals;

(e) to compile and keep -(i) a register recording the names of the members of the Land Council; and

(ii) a register recording the names of the members of the Land Trusts holding, or established to hold, Aboriginal Land in its area and descriptions of each area of such Aboriginal

land;

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(f) to co-operate with, and assist, the Land _Commissioner in exercising his functions and powers in connexion with land in its area;

(g) to issue, and revoke, permits to persons, other than Aboriginals, entitling them to enter and remain on Aboriginal land in its area and to impose conditions to be complied with by holders of permits so issued; and

(h) to supervise, and provide administrative assistance for, Land Trusts holding, or established to hold, Aboriginal land in its area.

3. The Government Bill

S.22 (1) The functions of -a Land Council are -

(a) to ascertain and express the opinion of Aboriginals living- in the area of the Land Council as to the management of Aboriginal land in that area and as to appropriate legislation concerning that land;

(b) to protect the interests of traditional Aboriginal owners of, and other Aboriginals interested in,

Aboriginal land in the area of the Land Council;

(c) to consult with traditional Aboriginal owners of, and

other Aboriginals interested in, Aboriginal land in the area of the Land Council with respect to any proposal relating to the use of that land; .

(d) where the Land Council holds in escrow a deed of grant of land made to a Land Trust under section 12 -(i) to negotiate with persons having estates or

interests in that land with a view to the acquisition of those estates or interests by the Land Trust; and

(ii) until those estates or interests, have been so acquired, to negotiate with those persons with a view to the use by Aboriginals of the land in such manner as may be agreed between the Land Council and those persons;

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(e) to negotiate, on behalf of traditional Aboriginal owners of land in its area held by a Land Trust and any other Aboriginals interested in the land, with persons desiring to use, occupy or obtain an interest in that land;

(f) to compile and keep -(i) a register recording the names of the members of the Land Council; and

(ii) a register recording the names of the members of the Land Trusts holding, or established to hold, Aboriginal land in its area and descriptions of each area of such Aboriginal

land; and

(g) to supervise, and provide administrative assistance

for, Land Trusts holding, or established to hold,

Aboriginal land in its area.

The Woodward Report recommended several significant

functions for the Land Councils which are not included in either of the Bills. The Woodward Report saw the Land Councils as providing the chief meeting place for the development of Aboriginal land

policies and as co-ordinating and making claims to vacant Crown

lands. They were also to represent Aboriginals in negotiations over land with the Government.

The Oppositiön Bill proposes that the Tand Councils should administer Aboriginal land, negotiate on behalf of traditional, owners with those holding or wishing to hold leases etc., and

investigate requirements for and use of land and priorities in expenditure. The Land Councils are to co-operate with and assist the Land Commissioner and supervise the Land Trusts. As recommended by Woodward, the Land Council is to have the power to issue and revoke permits of entry for non-Aboriginals on Aboriginal land.

11.

In the Government Bill the functions of the Land Council

are to ascertain and express the opinion of Aboriginals about land management and protect the interests of and consult with traditional

owners and other interested Aboriginals about proposals relating to the use of land.

The specific functions which are common to the two Bills and the Woodward recommendations are the compilation of a register, the power to negotiate with persons holding or desiring to acquire an

interest in Aboriginal land and supervision of the Land Trusts.

The Government Bill does not provide for the Land Council to have power -

(a) to investigate and make representations concerning the land requirements of Aboriginals, the use by Aboriginals of

unalienated Crown land and priorities in expenditure;

(b) to issue entry permits; and

(a) to negotiate with the Government.

Neither Bill includes the Woodward recommendation concerning Aboriginal land requirements in towns, though the Opposition Bill

does not specifically exclude this in .the Definitions in Part II, as does the Government Bill, and it could be dealt with under Section 23(d).

Membership of Land Councils

In the Government Bill, membership of Land Councils is kept to "Aboriginals living in the area of the Land Council chosen by Aboriginals living in the area of the Land Council." .(S.28(1)(2)). The Opposition Bill does not have the same emphasis on local control, members being "Aboriginals chosen by Aboriginals living in the area of the Land Council". (S.29(1)).

12.

Meetings

In the Government Bill the Minister is given the power to convene a meeting of the Land Council and appoint a member to preside when he considers circumstances require it. (S.30(3)).

This provision does not appear in the Opposition Bill. Otherwise meetings are convened by the Chairfflan who is elected by the Council.

Application of Moneys of Land Council

In the Government Bill moneys paid to the Land Council from the Aboriginals Benefit Trust Account shall be paid within six months of their receipt to Aboriginal Councils and incorporated Aboriginal communities in the area of the Land Council in such proportions as the Land Council determines having regard to the needs

of the Aboriginals concerned. Moneys received in respect of the Land Council giving consent to the granting of a mining interest, unless otherwise agreed, shall be similarly disbursed to Aboriginal

Councils and corserations affected by the agreement. (S.34).

There the Land Council receives a payment from the Crown

in respect of a lease of Aboriginal land, an equal amount will be paid to or for the benefit of the traditional Aboriginal owners

of the land. (S.34(4)).

The Land Council is required to keep proper financial records which shall be subject to audit. (S.36, S.37).

The provisions in the Opposition Bill are similar and are in line with the recommendations of the Woodward Report.

(S.35, S.36, S.37, Woodward Appendix D, Part V, 29ff.)

Part IV Mining Interests and Mining Operations

This Part corresponds to Part VI of the Opposition Bill but there are some major differences.

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Both Bills provide that both the Minister and the Land Council for the area have to consent in writing to the making of a grant of a mining interest in respect of Aboriginal land. If the national interest requires that such a grant be made, the Governor-General has to declare this by proclamation.

(1) The Opposition Bill

provides that such a proclamation requires the consent of both Houses of Parliament and sets out the procedure for this. (S.71).

The Government Bill does not have this provision.

Both Bills provide that the Atomic Energy Act 1953 or any other Acts authorising mining for minerals does not apply in relation to Aboriginal land so as to authorise entry or remaining on the land unless the Governor-General has by proclamation declared either that the Minister and Land Council for the area have consented

or the national interest requires the application of that Act in

relation to entry on that land. These provisions do not apply to land where occupation and use commenced before the land became Aboriginal land. Provision is made in the Opposition Bill (3.71).

but not in the Government Bill for the Proclamation to come before the Houses of Parliament for consent.

Where the Land Council refuses consent to a grant of a mining interest the Government Bill makes provision for the appointment by the Minister of a person to conduct an inquiry and report to the Minister within 6 months on all matters relevant to the question whether the national interest requires the making of that grant. The Minister shall not advise the making of a Proclamation until he has received and considered the report.

(3.41). The Opposition Bill does not have this provision.

The Government Bill also has a section (not in the Opposition Bill) providing for the appointment of an impartial arbitrator when an agreement proposed by the Land Council is unacceptable to the applicant for the grant of a mining interest

(3.42). The Land Council is required to enter the agreement

(1) Government Bill 3.39, Opposition Bill 3.57.

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proposed by the Arbitrator, but if it refuses and those terms are agreeable to the applicant, the Minister may enter into such agreement and consent on behalf of the Land Council to the grant

(S.42(3)).(1)

Fart V Aboriginal Land Commissioner

This Part of the Government Bill corresponds to Part I of the Opposition Bill. Both Bills make provision for the appointment of a single Aboriginal Land Commissioner by the Governor-General, unlike the Woodward recommendation of a Commission with several members.

(2). The Government Bill requires that the

Commissioner should be a Judge of the Supreme Court of the Northern

Territory (S.50(1));the Opposition Bill makes no such provision.

The 'Woodward Report recommended the establishment of . a Land Rights Commission either for the Northern Territory or as an arm of a national, body. The Commission should be an independent administrative body and determine its own procedures. The Report thought it desirable that the Commission should be headed by

a Judge (as both Land Councils recommended) (3) but made no firm

recommendation. The question of the other membership of the Commission was also left open beCause of the importance of finding the right persons for the work. Members of the Commission and the senior staff should be experienced in law, Aboriginal affairs, primary industry and town planning. If the Commission were designed to operate only in the Northern Territory there should be

a strong Territory element among its personnel.

(1) This section would seem to have the effect of applying only where the Land Council has begun to negotiate an agreement. If, from th outset, the Land Council refused to entertain any sort of agreemer the national interest requirement would be the enly means of overriding the Land Council's decision. (2) Government Bill 5.46, Opposition Bill 3.4,- Woodward Report

paras 724 ff. (75)These Land Councils were appointed as a result-of the first Report of the Woodward Commission to make recommendations to the Commission before its final report.

e t

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The Functions of the Land Commissioner

The GOvernment Bill provides for application to be made to the Land Commissioner by or on behalf of Aboriginals claiming

to have a traditional land claim to unalienated Crown land. The Commissioner must ascertain who are the traditional Aboriginal owners and make recommendations to the Minister for the granting

of the land to a Land Trust (S.47).

The Commissioner must also inquire into the likely extent of traditional land claims by Aboriginals to alienated Crown land and report to the Minister and the Minister of the

Northern Territory. He mast establish and maintain a register of such traditional land claims; advise the Minister on matters

referred to him by the Minister and perform, with the approval of the Minister, any function conferred on him by a law of the

Northern Territory.

The functions of the Land Commissioner in the Opposition Bill (3.5) are to report to the Minister on the needs of Aboriginals for land in the Northern Territory; to determine and report on the availability of such land and prepare plans for its acquisition and

development, together with financial estimates of the costs involved.

He is to advise the Minister on grants of unalienated Crown land not in the Schedule; on grants of alienated Crown land and on grants• of land to Aboriginal Councils for particular purposes. (1)

He also

is to advise the Minister on the resumption of Crown land held under

a lease; on the reservation by planning authorities of land for Aboriginal community purposes in towns; the revocation of grants of

land made to Aboriginal Councils and any other matter relevant to the operation of the Act. The Commissioner is also to inquire into and report on applications by traditional Aboriginal owners for Crown land and the desirability of securing such land for the use of

its traditional owners. He is to compile and keep maps and other records concerning traditional Aboriginal owners of land, other (2) than "Aboriginal land", in the Northern Territory.

(1) See Opposition Bill Part V, Section 55. This Part is omitted from the Government Bill.

(2) "Aboriginal land" is defined in both Bills. (3.3(1)).

16.

These functions are closer to the recommendations for the Land Commission in the Woodward Report (Para.733). The Government Bill provides only that the Commissioner "shall inquire into the likely extent of traditional land claims ... and report

to the Minister and to the Minister of the Northern Territory from time to time, the results of his inquiries." The Bill lists the factors which the Commissioner shall take into account in making his report but these relate only to traditional land claims. The

general land needs of Northern Territory Aboriginals are not included.

In the Government Bill the Minister for the Northern Territory is also to receive reports and advice from the Land

Commissioner and together with the Minister, can refer matters relating to land in the Northern Territory to the Commissioner.

This was contained in the Woodward recommendations but is not in

the Opposition Bill.

The provisions relating to the power of the Commissioner

to require a person to give evidence and produce documents is the same in both Bills. (1)

Part VI Aboriginals Benefit Trust Account

Both Government and Opposition Bills (in Part -VIII) make similar provisions for the establishment of an Aboriginals Benefit Trust Account into which amounts equal to any royalties

received by the Crown in respect of a mining interest in Aboriginal land are to be paid. (2) The Government Bill has a sub-section

providing that where there is an increase in the rate of royalties such amounts in excess shall only be paid into the Trust Account

as the Minister determines (S.60(3)).

Where mining is carried out on Aboriginal land under the Atomic Energy Act 1953 or any other Act by or on behalf of the Commonwealth or any Authority, amounts shall be. paid into the Trust Account out of Consolidated Revenue such as would be payable

(1) Government Bill S.51, Opposition Bill S.9.

(2) Government Bill S.59,&60(2), Opposition Bill S.62, S.63(2.).

to the Crown as Royalties under the law of the Northern Territory

unless the Ministers concerned determine a higher rate.

Distribution to Land Councils ,

In both Bills, 40% of the amounts paid into the Trust

Account shall be paid from the Account to the Land Councils in such proportions as the Minister determines having regard to the numbers of Aboriginals in the area of each Council. If there are only two Land Councils each shall have 50% of the above distribution.

Of the amounts paid into the Trust Account in respect of a mining interest or mining operations, 30% shall be paid to each Land Council where the mining interest or operation is situated.

Such other amounts as the Minister directs shall be paid

out of the Trust Account for the benefit of Aboriginals living in the Northern Territory. Provision is made for a Trust Account

Advisory Committee consisting of a Chairman appointed by the Minister

and an equal number of members elected by each Land Council, the number to be fixed by the Minister. The Chairman and members must

be Aboriginals living in the Northern Territory. (I)

Part VII Miscellaneous

The Government and Opposition Bills both provide that Aboriginal land shall not be resumed, compulsorily acquired or forfeited under any law of the Northern Territory.(2)

The Government Bill (3.65) then makes provisions regarding roads over Aboriginal land which are much the same as the recommendations of the Woodward Report (Paras.452 ff) and the .provisions of the Opposition Bill (3.69). The Government Bill,

however, sets out in greater detail that the Land Council shall not consent to the construction of a road without the consent of the traditional Aboriginal owners and consultation with any Aboriginal community or group affected.

(1) Government Bill 3.61, S.62, Opposition Bill 3.64, 3.65. The provisions are the same in both Bills except that the Government Bill specifies "Aboriginals living in the Northern Territory" for benefits and membership where the Opposition Bill provides

simply that they shall be Aboriginals. (2) Government Bill S.64, Opposition Bill 3.67.

17.

18.

Both Bills provide that such a road may not be used by non-Aboriginals unless the Minister otherwise directs but the Government Bill adds "except as provided by or under a law of the Northern Territory" (S.65(3)). The Woodward Report suggested that only a main road should be dedicated to public use and there

should be signs at all turn-offs to Aboriginal communities forbidding entry without a permit. Check points should be set up where necessary and hunting by non-Aboriginals should be strictly

forbidden (Para.455(v)).

Entry on Aboriginal Land

The Government Bill provides that no person shall enter and remain on Aboriginal land except in accordance with the Act or a law of the Northern Territory (S.66(1)).

A person who has an estate and interest in Aboriginal land is entitled to enter and remain on the land for any purpose that is necessary for the use and enjoyment of that estate or interest. A law of the Northern Territory shall not authorise anyone to enter or remain on the land if his presence would

interfere with such use and enjoyment (S.66(2a) and (2b)).

An Aboriginal or group of Aboriginals is entitled to enter and remain on Aboriginal land if such is in accordance with Aboriginal tradition, unless such entry interferes with the use and enjoyment of an estate or interest held by a non-Aboriginal (S.67).

The Opposition Bill (S.73) provides that:

(a) Any Aboriginal is entitled to enter and remain on Aboriginal land if his presence does not interfere with the use and enjoyment of an estate or interest held by a person other than a Land Trust or Aboriginal Council.

(b) Non-Aboriginals cannot enter without a written permit of the Land Council for the area.

(c) The Minister shall consult the Land Council before making any regulations relating to entry on Aboriginal land.

19.

(d) The Land Council may require a person (whether holding a permit or not) to leave Aboriginal land unless he holds an estate or interest in the land, is a traditional owner or is on the land in accordance with the regulations.

(e) Persons holding an estate or interest in Aboriginal land are entitled to enter and remain for any purpose necessary for the use and enjoyment of that interest.

(f) Permits will only be issued on the condition that such interest ((e) above) is not interfered with.

The Woodward recommendations (Para.144 (xiii),(xiv)) were:

1. Any Aboriginal should be able to enter and remain on Aboriginal land.

2. The Land Council or a community Council acting within the authority delegated to it by the Land Council or the Director of the Northern Territory Division of the Department of Aboriginal Affairs should issue entry permits.

Aboriginal Reserves

Both Bills provide that land constituting part of an

Aboriginal reserve continues to be a reserve under Northern Territory law notwithstanding the vesting of title of part or all of this land

in Land Trusts under the proposed legislation. (1)

APplication of Northern Territory laws to Aboriginal Land

The Government Bill provides that the Act does not affect

the application to Aboriginal land of a law of the Northern Territory to the extent that that law is capable of operating concurrently with the Act (3.69). The Opposition Bill, in a similar clause (3.76), continues:

"The regulations may provide for the exclusion or modification of a law of the Northern Territory in its application to Aboriginal land." (2)

(1) Government Bill 3.68, Opposition Bill 3.75. (2) The application of this sub-Clause does not seem to be limited to the matters dealt with by the Bill.

20.

The Woodward Report recommended that the land rights

legislation "should be protected in such a way that its provisions cannot be eroded by the effect of any Northern Territory legislation." (1)

In the suggested drafting instructions for proposed legislation the clause reads:

... the Ordinances of the Northern Territory shall apply to Aboriginal land ... provided however that no ordinance shall have any effect so as to diminish any benefit conferred upon Aborigines by this Act or

to restrict any Land Council, Land Trust or the Commission in the discharge of their respective functions." (2)

Miners' Rights

Both Bills provide that a miner's right should not apply to Aboriginal land unless immediately before the land became Aboriginal land it was used or occupied by virtue of a miner's right

Sections of Part VII a-ID-nearin g only in the Opposition Bill

These include (in addition to those already mentioned):

1. A provision that the Act shall not be deemed to appropriate funds from Consolidated Revenue for which a separate

Act is required (S.66).

2. Detailed provisions for the right of Aboriginals to enter and remain on pastoral leases, kill wildlife and use natural and bore waters (3.68).

(1) Para. 740. (2) Appendix D, p.175. (-3) Government Bill S.70, Opposition Bill 3.77.

21.

3. The exclusion of Aboriginal lands from the provisions of the National Parks and Wildlife Conservation Act 1975 providing for the protection and conservation of wildlife unless, by Proclamation, the Gavernor-General declared that a committee for the area consented or the national

interest required it (5.70). This provision is similar

to the Woodward recommendations (Para. 492 ff).

4. Arrangements for a proclamation (to declare that the national interest required grants of mining interest or as

in (3) above) to be laid before both Houses of Parliament (S.71).

5. The protection of sites of significance according to Aboriginal tradition (S.72).

6. The inclusion of the territorial sea adjoining and internal waters to a distance of 2 kilometres from the boundary of

the Aboriginal land (5.74) (also a Woodward recommendation,

Para. 144 (vi)).

Schedule

The Government Bill does not have in its Schedule

(describing the land in respect of -which Land Trusts are to be established) Daly River (No.2), Kildurk, 'Wave Hill and Willowra. (1) These are included in the Schedule of the Opposition Bill.

(1) According to a spokesman for the Department of Aboriginal Affairs, Daly River (No.2) was omitted as the result of a petition from some people in the area who did not want it included. It is still, however, possible for them to have it included if they wish Kildurk, Wave Hill and Villowra are lesehold pro perties (the leases being held by Aboriginal groups) and as such do not come within the provisions of the Bill.

B. DISCUSSION

Traditional Ownership of Land

The definition in the Government Bill of land claims "arising out of traditional ownership" would seem to assert a principle which has not previously been recognised in-Australian law, although the term "traditional Aboriginal owners" is used in the Opposition Bill. Previously, Mr Justice Blackburn in 1971 found against the claimants in the Yirrkala land claim versus the Nabalco Consortium in the Gove Peninsula on the ground that common law did not recognise native customary land rights and had no doctrine of communal native title. The spiritual ties of the Aboriginals with their land were not recognised as giving legal title. Mr Justice Blackburn in fact felt that these ties meant

that the Aboriginals belonged to the land, rather than the land to the Aboriginals.

In Canada and the United States, native land claims could be based on "original occupancy and use" of the land but the social and economic organisation of the native peoples in these countries made the land awning group a recognisable entity. The Australian

Aboriginals, on the other hand, were nomadic, had no fixed settlements and their concepts of land ownership were different from those of the Europeans and of the American Indians.

Mr Justice Woodward made the following comments on Aboriginal concepts of land ownership:

The land owning clan is merely a group of people who share the same links with the same land.

These clans have close spiritual associations

with particular tracts of land. Their religion or

mythology teaches them that particular areas were given to them, or claimed on their behalf, by their spirit ancestors in the Dreamtime

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The spiritual connexion between a clan and its land involves both rights and duties. The rights are to the unrestricted use of its natural products; the duties are ... to tend the land by the performance of ritual dances, songs and ceremonies at the proper times and places ...

... the connexion of the Aborigines with their

land is timeless, commencing before birth and continuing after death ...

... his connexion with it is not broken by the

fact he may have lived away from it for many years

...I have so far come across no case in which ownership of land has been disputed among full

blooded Aborigines." (1)

In his first report, Mr Justice Woodward considered the problems connected with giving title to land on the basis of traditional ownership. He pointed out that divisions of land were evolved for a food collecting and hunting life system in which the use of land was shared between neighbouring groups. Some areas of

land could be very small and entirely surrounded by land belonging to another clan. Such land divisions would have no regard for

productivity or needs and a large group might own a small, sparse area useless for food production or hunting and a small group might• own a large fertile area. It could also happen that the traditional

owners might live in communities hundreds of miles apart. Most authorities seem to agree that given the time and the finance it would be possible to mark accurately the land belonging to each

group, but that group would probably be widely scattered and not occupying the land to which it was traditionally tied.

The emphasis on the concept of traditional ownership in the Government Bill in. that the Land Trusts will hold title "for the benefit of groups of Aboriginals entitled by Aboriginal tradition to the use or occupation of the land concerned" could present some

difficulty. On the one hand, it could be seen as an attempt to narrow down and define the land ownirg group by excluding Aboriginals, perhaps from the States, who have no traditional ties with the area.

(1) Final Report, Appendix A.

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On the other hand, it is possible that the traditional owners might live in another State and if so they are debarred from

membership of the Land Councils, Land Trusts and the Aboriginal Benefits Trust Account, since members must be resident in the

Northern Territory. The more general phrasing of the Opposition Bill "for the benefit of Aboriginal communities or groups" embraces the traditional owners but also includes groups who have been living in an area, though they may not be the traditional owners or entitled to use and occupancy according to strict Aboriginal tradition.

Alienated Crown Land - Pastoral Leases.

The problem of alienated Crown lard is a serious one for the Northern Territory. The Government Bill does not make specific provision for grants of alienated Crown land other than that described in the Schedule. This exclusion of alienated Crown land would seem to be aimed at protecting the existing interests of persons

in Crown land in the Northern Territory and to limit the application of the Bill to the land described in the Schedule. This leaves the position of pastoral properties of which Aboriginal groups already have the leasehold (e.g. Kildurk, Wave Hill, Willowra) unsettled.

The Minister for Aboriginal Affairs has informed the Aboriginal communities at Wave Hill and Willowra that they could put claims for the granting of these areas ab freehold land to the Land Commission if they wished. However, he emphasised that "it was more appropriate for the procedures laid down in the Bill to be followed for all land

outside reserves, rather than having some lands granted by arbitrary decision of the Government." (I) These procedures, as far as alienated Crown lard are concerned, rest with the Land Commissioner, who Can make a report to the Minister on the situation. No

procedure is laid down for the granting of such a claim through the establishment of a Land Trust. The decision would therefore seem to rest with the Minister, as indeed does the decision with reF;ard to grants of unalienated Crown Land.

(1) Press Release, 9 June 1976.

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The Opposition Bill has a provision that if the Minister

is satisfied that an existing interest in the land would be transferred to a Land Trust, such a Trust could be established to hold the land and once the interest has been transferred could hold title in fee simple. It thus makes provision for the establishment of land trust before the title is clear. Land in a town was excluded from thisprovision.

The question of pastoral properties was considered at some length in the Woodward Report. (1) Although both Land Councils in submissions to the Woodward Commission urged that traditional

claims by Aboriginals to landwhich was at present held on pastoral

leases should be heard and determined by an appropriate tribunal,

Justice Woodward felt that the settlement of such claims would involve

a great-deal of time, energy and money and false expectations could be created as to the availability of the land when the leases expired.

He considered it important to avoid making decisions in this area now which would cause trouble in later years when the leases terminated.

The great majority of leases would terminate between 2010 and 2020 and constant reference to the Aboriginals as legal owners in the intervening 30-odd years could mean that the Aboriginals might not be willing to compensate for improvements or the leaseholders might let properties ran down as the lease neared expiry date.

The Woodward Report therefore recommended that the

Aboriginal Land Commission should inquire into the likely extent of traditional Aboriginal claims to pastoral lands, establish a register of such claims and report on the feasibility of

determining such claims with sufficient certainty to justify

interfering with the rights of others. These recommendations are followed in the Opposition Bill and to a certain extent in the Government Bill (S.47).

(1) Paras 191 ff.

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Land Councils

The omission of the power of the Land Councils to investigate and initiate land claims has been commented on by Aboriginals and the Minister (Mr Viner) has indicated that he regards the role of the Land Councils as providing administrative help in looking after land proclaimed as Aboriginal land-.

"The Aboriginal Legal Services, with whom solicitors acting for land councils were already involved, would be available to assist in the preparation and submission of claims."(1)

Specialist officers in the Department of Aboriginal Affairs would

also be able to assist.

If the Aboriginal Legal Aid Service is to be responsible for the investigation and preparation of land claims, the Service may need to be substantially supplemented. The Court work of the Service would have to be given priority and its present resources would be overtaxed if they have to include the detailed work necessary in the preparation of a wide variety of land claims. With the restructuring of Legal Aid Services announced in June 1976 it is

possible that some changes may be made in the Aboriginal Legal Aid

Service. The Minister has indicated that no announcement is likely.

before investigation by Mr D.O. Hay into the Department of Aboriginal Affairs is concluded. (2)

Aboriginal Land Commissioner

The provision in the Government Bill that the Commissioner shall be a Judge of the• Supreme Court of the Northern Territory identifies the Commissioner with the established structure of white administration in the Territory and limits the choice of a Commissioner to a lawyer.

(1) Press Release, Canberra, 9 June 1976.

(2) Press Release, Canberra, 24 May 1976.

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Both Bills provide for the appointment of a Commissioner rather than a Land Commission. A Commissioner would be directly responsible to the Minister, whereas a Commission would perhaps be further removed" from Government policy direction. A sole Commissioner would also be able to work more quickly and efficiently without the

problem of differing points of view among a number of Commissioners.

Against this, however, must be weighed the disadvantage of having a single person responsible for advising on complex land problems with

sometimes widely differing interests involved.

Mining Interests

The provisions in the Government Bill relating to -arbitration on agreements sought by the Land Council, and to an

inquiry to determine whether the national interest requires the making of a grant, place major decisions relating to Aboriginal land within the discretion of the Minister. The absence of the

arrangements for the Proclamation to be laid before both Houses of Parliament could mean that there need be no public debate on the matter and, perhaps, that decisions may be taken which are

unacceptable to the Aboriginal land owners. (In both Bills the absence of guidelines or definitions as to what constitutes "the national interest" has caused some concern. ) (1) Such decisions may nevertheless have to be taken where the national interest requires it. However, where the Land Council does not accept the terms of

an agreement determined by an independent arbitrator, the Minister is given power to enter such an agreement on behalf of the Land Council. No qualification is placed on this power of the Minister, although the Land Council, to enter an agreement concerning a mining interest, has to ensure that its consent reflects the views of the traditional Aboriginal owners or the Aboriginal community or group which is affected.

It is not clear whether the granting of an exploratory lease by a Land Council implies willingness to enter into a mining lease. If it does imply such consent, the power of the Minister to enter the agreement on behalf of the Land Council could lead to an anWillingness on the part of Land Councils to grant the initial consent. t2)

(1) See, for example, R.J. Bilicott,House of Representatives Debate, 4 November 1975, p.2757; Geoff Barnes, Land Rights or a Sell Out, p.10. (2) This point is discussed by Geoff Eames, op.cit., p.12.

Entry Permits to Aboriginal Land

The Government Bill permits free entry only to Aboriginals with traditional rights. No provision for entry permits is made and the Minister has stated that this will be introduced in complementary legislation through the Northern Territory Legislative Assembly. He has stated that the control of entry to Aboriginal land

will be in -the hands of Aboriginals. One question is whether Aboriginals without traditional rights should be made subject to the same-permit regulations as non-Aboriginals. Concern has been

expressed by some Territprians about the uncontrolled entry of interstate Aboriginals. The Land Councils recommended to the Woodward Commission that.any person having Aboriginal ancestry, however remote, should be exempt from permit provisions,

(I) However,

it is possible that some Aboriginal communities would wish to have

the right to refuse entry to certain Aboriginals in some circumstances.

Northern Territory Laws

Some concern has been expressed (2) that the benefits of

the Government Bill could be diminished by Northern Territory Ordinances. The Minister, in several important areas, has indicated that complementary legislation will be passed by the Northern

Territory Legislative Assembly and has given an assurance that the Commonwealth will make certain that the rights of Aboriginals will be completely protected under Territory law.

Sacred Sites

The Minister has indicated that the question of sacred sites will be the subject of Northern Territory legislation. The existing legislation in this area provides inadequate protection and it could be argued that if this matter were more adequately

covered in Commonwealth legislation for the Territories it could provide a model for appropriate State legislation.

(1) Para. 114.

(2) e.g. letter to Canberra Times, 7 July 1976; Eames op.cit. p.14-15.

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Territorial and Inland Waters

The rights to two kilometres of territorial sea and inland waters was a recommendation of the Woodward Report and in that the interests of countries other than Australia could be

involved legislation should perhaps include this aspect of land rights. For the Aboriginals, their traditional land could include adjoining waters. The right of access by other Territorians would

have to be considered, and perhaps a distinction could be drawn between casual leisure use and other use.

Right to Enter and Remain.on Pastoral Properties

These provisions are not included in the Government Bill but are already dealt with by the Northern Territory Crown Lands

Ordinance 1931-1972, which gives Aboriginals the right:

(i) to enter and be on leased land;

(ii) to use the natural waters and springs on the leased

land; and

to kill upon the leased land and use for food birds and

animals ferae naturae.

The Opposition Bill adds the rights to bring horses on to the land for transport and to use bore waters where natural waters are not available, subject to the. reasonable requirements of the lessee,

the latter also being a Woodward recommendation.

The Wdodward Report felt that these rights needed to be strengthened and that the existing penalty for their breach (loss

of lease, which has never been invoked) should be made more realistic.

Education and Yelfare (3-roar LEGISLATIVE RESEARCH SERVICE 6/8/76

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