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Aboriginal Land Rights (Northern Territory) Act - Aboriginal Land Commissioner - Report - Year - 1980-81


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The Parliament of the Commonwealth of Australia

ABORIGINAL LAND COMMISSIONER

Annual Report 1980-81

Presented pursuant to Statute and ordered to be printed 25 March 1982

Parliamentary Paper No. 53/1982

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Aboriginal Land Rights (Northern Territory) Act 1976

Aboriginal Land Commissioner

Report for year ended 30 June 1981

AUSTRALIAN GOVERNMENT PUBLISHING SERVICE, CANBERRA, 1982

© Commonwealth of Australia 1982

Printed by Graphic Services Pty. Ltd., Northfield, S. Aust.

CONTENTS

The general picture . .

Creation of Land Trusts .

Applications received . .

Claims to be heard . .

Future claims . . .

Discernible trends in land claims

Major legal issues . .

Northern Territory legislation

Closure of the seas . .

Disposition of material .

Canada and the United States

Acknowledgments . .

Appendix . . . .

Office of the

ABORIGINAL LAND COMMISSIONER

Supreme Court

Darwin.

Telephone 81 9 3 2 6 .

3 December 1981

Senator the Hon. Peter Baume, Minister for Aboriginal Affairs, Parliament House, Canberra, A.C.T.

Dear Minister,

In accordance with s .61 of the Aboriginal Land Rights (Northern Territory) Act 1976, I present a report of my operations during the year ended 30 June 1981.

Yours truly,

John Toohey

Aboriginal Land Rights (Northern Territory) Act 1976

Report by the Aboriginal Land Commissioner, Mr Justice Toohey, to the Minister for Aboriginal Affairs for the year ended 30 June 1981

The general picture 1. This report covers my fourth complete year as Aboriginal Land Commissioner.

2. During that year the Limmen Bight report was sent to the Minister for Aboriginal Affairs and to the Administrator of the Northern Territory; the Finniss River land claim was heard and a report submitted; and the Alligator Rivers Stage II land claim and the Warlmanpa, Warlpiri, Mudbura and Warumungu

land claim was each heard. In addition I carried out the first inquiry into closure of the seas in accordance with s,12(3) of the Aboriginal Land Act 1978, a statute of the Northern Territory.

3. During the year the Minister tabled the Utopia, Willowra and Limmen Bight reports, accepting the recommendations which they contained. On 9 June 1981 the Minister tabled the Finniss River report, announcing that he would take no action on the report for a period of two months to enable those having an interest

in the hearing to prosecute any challenge they might wish to make to the decisions on jurisdiction and law which the report contains. As at 30 June 1981 no such challenge had begun.

Creation of Land Trusts 4. The year saw the establishment of several Land Trusts as a result of reports under the Land Rights Act.

5. By notices published in Commonwealth of Australia Gazettes No. SI26 of I 1 June 1980, No. S I65 of 24 July 1980, and No. S186 of 27 August 1980 the Minister established the Yunkanjini Aboriginal Land Trust and the Katiti Abori­ ginal Land Trust. The former followed upon recommendations relating to Area 1 of the Warlpiri land claim. The latter gave effect to recommendations in the Uluru

report.

6. By notice published in Gazette No. S171 of 6 August 1980 the Minister established the Central Desert Aboriginal Land Trust to give effect to recom­ mendations relating to Area 2 of the Warlpiri land claim.

7. By notice published in Gazette No. S95 of 18 May 1981 the Minister estab­ lished the Narwinbi Aboriginal Land Trust. This gave effect to recommendations in the Borroloola report regarding the Borroloola common. The Wurralibi Abori­

ginal Land Trust, established by Gazette No. S71 of 2 April 1980, related to part of the Sir Edward Pellew Islands also the subject of that report.

8. By notice published in Gazette No. SI00 of 26 May 1981 the Minister established the Wirliyajarrayi Aboriginal Land Trust to hold title to the land recommended for a grant in the Willowra report. This was a pastoral lease in which all estates and interests not held by the Crown were held by or on behalf

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of Aboriginals. Although this was the second such claim heard, it was the first to be the subject of a grant.

9. By notice published in Gazette No. S104 of 1 June 1981 the Minister estab­ lished the Yingawunarri Mudbura Aboriginal Land Trust following recommenda­ tions in the report on the Yingawunarri (Old Top Springs) Mudbura land claim.

Applications received 10. As usual I list all applications received since my appointment as Aboriginal Land Commissioner together with a statement of the extent to which they have been dealt with. For convenience they appear as an appendix to the report.

11. It will be seen that nine applications were received in August 1980, one in September 1980 and three in June 1981. The reason for the number of applica­ tions in August 1980 is, I assume, this. On 24 August 1978 the Chief Minister of the Northern Territory announced that for a period of two years the Govern­

ment of the Northern Territory would take1 no steps to alienate any land that was the subject of an application under the Land Rights Act, at least until that application had been dealt with. The applications lodged in August 1980 just met the deadline. Those lodged in June 1981 related in two cases to pastoral leases said to have been forfeited and so to have become unalienated Crown land and available for claim. The third (Mount Barkly station) is a pastoral lease said to have been acquired by Aboriginals, hence alienated Crown land in which

all estates and interests not held by the Crown are held by or on behalf of Aboriginals. In that event it is available to be claimed.

Claims to be heard 12. As at 30 June 1981 the Daguragu land claim had been listed to begin on 15 July and the Daly River land claim to begin on 27 July.

13. In my report for the year ended 30 June 1980 I said that I expected that within two years or so most of the claims likely to produce substantial issues of jurisdiction and to involve a sweeping range of interests would have been heard, adding: ‘It is too early to make any wider prediction than that.’

14. That estimate was made at a time when it was thought that most if not all applications had been lodged; it may require some revision in the light of the thirteen applications received since 30 June 1980. But it is still too early to make any confident predictions. One unknown quantity is this. The Cobourg Peninsula

land claim, to which I shall refer later, has apparently been resolved by the passing of the Cobourg Peninsula Aboriginal Land and Sanctuary Act 1981, a statute of the Northern Territory. To the extent that any pending application is resolved by similar legislation, it will reduce the number of applications to be heard under the Land Rights Act.

15. in the 1980 Annual Report para. 13, I referred to an application made to the High Court for certiorari and mandamus in regard to a decision I had given that the Cox Peninsula was not ‘unalienated Crown land’ as it was land in a town and so outside the definition of that term in the Land Rights Act. That decision had important implications for the Kenbi (Cox Peninsula) land claim. As at 30 June 1981, indeed at the time of writing this report, the High Court had not handed down its decision on that application.

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Future claims 16. On the assumption that traditional land claims to all unalienated Crown land and to all alienated Crown land in which all estates and interests not held by the Crown are held by or on behalf of Aboriginals have now been lodged, there are two respects in which it may be said that the Act is open-ended. The first is that any forfeiture or for that matter surrender of a lease under the Crown Lands Act

results in an area of unalienated Crown land. That land is then available for claim although it is still within the power of the Crown to alienate it. The operative date or event after which the Crown is precluded from alienating land the subject of a land rights claim is a matter of debate. It is something I have discussed in the Warlmanpa Report paras 12-23. But as the issue appears to have been argued

before the High Court in regard to the Kenbi land claim mentioned earlier, I have expressed no concluded view on it.

17. The other respect in which the Act is open-ended arises in regard to leases, primarily pastoral leases, which are presently alienated Crown land but which may be acquired by or on behalf of Aboriginals. The Utopia and Willowra land claims are examples of this. That land is then available for claim under the second limb of s.50( 1) of the Land Rights Act.

18. The extent to which either of these matters is likely to give rise to future claims must again be a matter for conjecture. In this respect it is relevant to mention the report of the Inquiry into Pastoral Land Tenure in the Northern

Territory published in October 1980. Recommendations of that committee of inquiry include amendments to the Crown Lands Act to allow lessees to be fined as an alternative to forfeiture for non-compliance with lease covenants and also to introduce a system of perpetual leasehold tenure for pastoral lands. If either or both of these recommendations are accepted, the chances of alienated Crown

land bcoming unalienated will be considerably reduced.

Discernible trends in land claims 19. It has not been my practice in annual reports to refer in any detail to the contents of reports dealing with particular land claims. Those reports speak for themselves. But it may be useful to speak of some trends discernible in recent land claim hearings.

20. In earlier claims there was a tendency to proffer the patriline as the ‘local descent group’ for the purposes of the Act. The Warlpiri land claim is perhaps the best example. In the Utopia land claim, ‘workers’ or kurdungurlu were, for the first time, put forward as claimants along with members of the patriline. Although, on the material advanced during the hearing, I was not satisfied that the kurdungurlu should be included among the traditional owners, I accepted that in principle they might well qualify. In fact they did so in the next claim to be heard, the Willowra land claim. In the Limmen Bight land claim there were difficulties in the way of including the djunggaiyi, the counterpart of the kurdun­ gurlu. But again I accepted in principle their entitlement to be listed. I have included kurdungurlu among traditional owners in later reports. In addition, as early as the Uluru land claim, persons were said to be traditional owners through

their mothers. This was accepted as consistent with the Act.

21. In general then, the somewhat restricted approach to the notion of local descent group taken by anthropologists in the earliest claims has broadened. That

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is not to say that the term ‘local descent group’ has ceased to have any real meaning under the Act. The characteristics of local, descent and group remain as necessary components but it is possible to take a wider approach to the notion than was offered in the earliest claims.

Major legal issues 22. In the course of the land claims, various legal issues have arisen, of general importance. One of these, the meaning of ‘on behalf o f in s .5 0 (l) (a) of the Land Rights Act, was discussed by the High Court in connection with the Utopia land claim; see paras 10 and 11 of the 1980 Annual Report. The meaning and scope of the words ‘land in a town’ still awaits a decision of the High Court; see paras 13-15 of the 1980 Annual Report.

23. Among other issues of general application are the status of grazing licences, the notion of detriment under the Land Rights Act and the extent to which matters for comment under s.50(3) of the Act play a part in the making of a recom­ mendation for a grant of land. These matters are discussed in a number of reports. Put shortly, I have held that grazing licences are not estates or interests in land, hence the land may be claimed under the Act; that the requirement in Part IV of the Act that mining may not take place on Aboriginal land without the consent of the Land Council is not of itself a detriment in terms of the Act

and that matters of comment do not condition the making of a recommendation. These issues are discussed in the following paragraphs of the Finniss River report:

grazing licences — paras 10, 16, 18-36 detriment — paras 12, 278-283

recommendations — paras 11, 244-255

Northern Territory legislation 24. The Cobourg Peninsula Aboriginal Land and Sanctuary Act 1981 concerns land the subject of an application under the Land Rights Act. It came into opera­ tion on 3 September 1981 (Northern Territory Government Gazette S17, 3 Sep­ tember 1981). in the preamble to the Act, the Legislative Assembly acknow­ ledges that there are and will be Aboriginals entitled by Aboriginal tradition to the use, control and occupation of that land or part thereof. It continues with a recital that the Assembly considers it desirable to secure in perpetuity the right

of those Aboriginals to use and occupy the land, to participate in the management of a national park to be declared in respect of the land and to vest the title to the land in trustees for those Aboriginals.

25. By force of the Act the estate and interest held by the Crown is vested in a Land Trust in perpetuity in trust for the traditional Aboriginal owners and Aboriginals entitled to use or occupy the land. The Act then establishes in per­ petuity a sanctuary as a national park for the benefit and enjoyment of all people. The administration of the sanctuary is to be carried out by the Cobourg Peninsula Sanctuary Board, a body of eight persons appointed by the Minister, four of whom are from the traditional Aboriginal owners and the Aboriginals entitled to use or occupy the sanctuary and are appointed on the nomination of the Northern Land Council.

26. It is not my purpose to comment upon the legislation nor to analyse it in any detail. Although the application made under the Land Rights Act still stands,

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in that it has not been withdrawn, no move has been made to relist it. The legisla­ tion must be seen as an alternative means of recognising traditional ownership and granting title to Aboriginals, at any rate in those areas which are acknow­ ledged to have the character of a national park. It is too early to assess the impli­

cations of this type of legislation for claims under the Land Rights Act.

Closure of the seas 27. The 1980 Annual Report refers to the provisions of the Aboriginal Land Act, a statute of the Northern Territory enacted pursuant to s.73 of the Land Rights Act. Part III of the Act provides machinery for the closure of the seas adjoining and within two kilometres of Aboriginal land. That Annual Report reproduces practice directions relating to an inquiry by the Aboriginal Land

Commissioner under that part of the Act and it also reproduces the published reasons for those directions.

28. As mentioned earlier in this report I carried out the first inquiry under this legislation; it related to the Milingimbi, Crocodile Islands and Clyde River area. The report on the inquiry falls within the next year and it has not yet been made public. All I seek to do in this report is to draw attention to the differences between

the functions of the Aboriginal Land Commissioner under the Aboriginal Land Act and his functions under the Land Rights Act.

29. The Aboriginal Land Act does not oblige the Commissioner to ascertain traditional owners. That does not mean that examination of traditional ownership is excluded. It may arise for consideration but only as incidental to questions such as interference by strangers with the use of adjoining Aboriginals lands by

traditional owners.

30. More fundamentally, the Commissioner is not required, under the Aboriginal Land Act, to make recommendations. His function is to inquire into and report to the Administrator on those matters mentioned specifically in s.12(3) of the Act and on such other matters as he considers relevant to the closure of the seas. The matter then becomes one for the decision of the Administrator under s,12(l) of the Act. The Commissioner’s report is of course intended to assist

in the making of that decision but the Administrator does not have a recom­ mendation as the Minister has under the Land Rights Act.

31. At the request of the Tiwi Land Council, the other reference from the Administrator relating to Bathurst and Melville Islands has not yet been the subject of an inquiry. I have agreed to this course because it is desirable that the first report under the Act be available before beginning another inquiry.

Disposition of material 32. From time to time during the hearing of land claims I have been asked to receive on a restricted basis both, oral and written evidence. With two exceptions, those restrictions have been sought on behalf of claimants. The exceptions arose

in the course of the hearing of the Borroloola land claim when I received on a restricted basis a copy of an agreement made between a mining company and the Commonwealth and also information regarding the financial affairs of a fisherman.

33. It is I think apt to say something about the ultimate disposition of this material. But I wish to do so in the wider context of all material emanating from land claim hearings.

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34. Much of the evidence, especially that of the claimants, is given orally. It is recorded and then transcribed. 1 have made it a practice to retain the tapes of Aboriginal evidence, for two reasons. The first arises from the circumstances in which that evidence is given. Sometimes it is given in English, sometimes through an interpreter and sometimes a mixture of both. In the main the evidence of Aboriginal claimants is given in groups. Naturally this presents some problems for the monitor and transcribers and the tapes are available should any question

arise as to the accuracy of transcripts. The second reason is simply that the tapes are such an invaluable aspect of oral history, it would be a pity to see them erased in the usual way.

35. The evidence of anthropologists is usually given in the form of a report supplemented by oral testimony. The same is true of many Government officers. Other witnesses may give oral evidence only. In all cases the oral evidence is tran­ scribed.

36. Thus at the end of a hearing there will be tapes, a transcript of the oral evidence, reports and written statements and usually written submissions by those participating, for the most part supplemented by oral argument. On occasions there may be videotapes of evidence.

37. Now in general there is nothing confidential about that material. It is the product of a public hearing and culminates in a report by me to the Minister which is tabled in Federal Parliament. Copies of transcript are held by a number of organisations including the public libraries at Darwin and Alice Springs. Australian Archives is the agency responsible for the provision of archival services

to Commonwealth Government agencies and I take it that my office falls, at least for that purpose, within that description. Thus Australian Archives is the appropriate body to hold the material emanating from land claim hearings. At the present time Australian Archives in Darwin holds most of that material although on a custodial basis only. In other words Archives has, at my request, agreed to act as a storehouse. Because one land claim may bear upon another, it is necessary from time to time for me to have access to that material. Occasions may also arise when a party to a land claim hearing may also wish access and as a

general proposition that material will be made available on application to me.

38. None of this presents any great difficulty. There is however a question as to the ultimate disposition of material received on a restricted basis. For the most part that material is in the form of written reports. Sometimes however it may be the transcript of oral evidence given by claimants and the tapes of that evidence.

39. From time to time claimants wish to speak of matters that are of a secret and sacred nature. Those matters may relate to the details of particular ceremonies or to the description of ritual objects, the latter usually involving the display of objects in the bush where they are stored. When that evidence relates to what is usually referred to as ‘men’s business’, the male claimants wish no women to be present. Equally when those matters relate to ‘women’s business’, the female claimants wish no men to be present although they may make an exception in the case of the Commissioner. During the display and explanation of ritual objects, claimants are often reluctant to have their evidence recorded and transcribed. In that case it has been my practice to ask the anthropologist giving evidence for the claimants to prepare a written summary of what took place, sometimes in more general terms than the evidence itself.

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40. In this type of situation, evidence is usually received on a restricted basis. The terms of the restriction may vary but mostly it is one that confines the avail­ ability of the material to counsel and their advisers. Given the usual composition of counsel and their advisers, there is ordinarily no difficulty in making the

material available in the terms of that restriction. Where however it relates to women’s business, although the restriction may be couched in comparable terms, it may prove necessary at times for female counsel and anthropologists to be

engaged specifically for the task of considering and commenting on that material. These are matters that I have discussed in the course of some land claim hearings. My purpose here is not to dwell at any length on the basis for receiving material in a restricted way; rather it is to point to some of the problems of storing and

disposing of material so received.

41. Professor R. G. Neale, Director-General of Australian Archives, has assured me that, subject to statutory regulation, material may be deposited with Archives on any condition I think appropriate. The conditions usually attached to the restricted exhibits are not particularly apt once the hearing has been completed. To protect the secrecy of the material, some broader restriction would need to be attached, for example that an exhibit be available only on the authority of the

appropriate Land Council.

42. It should be appreciated that the circumstances giving rise to the secrecy of the material are not likely to be affected by the passage of time. This puts the material in a different category from political documents and the like where the

reason for confidentiality may disappear over the years or at any rate be out­ weighed by the advantages of making information public.

43. The Archives Bill 1978 and the Freedom of Information Bill 1981 are useful guides to what may happen in regard to access to official documents of the Government and of its agencies. Each classifies as an ‘exempt document’ or ‘exempt record’, i.e. one in respect of which no public right of access is con­ ferred, ‘one the disclosure of which would constitute a breach of confidence’. The disclosure of a document received by the Aboriginal Land Commissioner

subject to the restrictions I have just described would constitute a breach of confidence. But each bill contains provision for review by the Administrative Appeals Tribunal.

44. One resolution of the matter would be simply to return to the Land Council at the end of the hearing of a claim or at any rate after the report had been con­ sidered by the Minister, any exhibits of a restricted nature. Indeed, at the request of the Central Land Council, I agreed to do this on one occasion on the assurance of the Land Council that it would retain the exhibit in secure circumstances. That

condition, incidentally, was not one I sought but it was offered by the Land Council.

45. There are some short term and long term objections to this course. Short term, the objection to returning a restricted exhibit is that it may prove to have some relevance in a future land claim, for instance one to adjoining land. No doubt this can be met either by the Commissioner retaining the exhibit until it is no

longer thought necessary or alternatively returning it on an assurance from the Land Council to produce it if required. Long term it may be said that the restricted exhibits contain material of such importance historically that it is desirable that they not be lost. But the answer to that is that by definition the material is likely

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to be available to a very limited number of people. Speaking both as Aboriginal Land Commissioner and as an individual, I can offer no guarantee about material once it has left my hands. Of course I accept the assurance of Australian Archives that so far as it is concerned any restrictions imposed would be honoured. But no-one can predict what policies or legislation may operate in future years. To the extent then that the Land Councils require the return of material I think they’ should be entitled to it. Of course if they are content for it to be deposited in Archives with a restriction they think appropriate, I can follow that course.

46. The disposition of material is not confined to restricted exhibits. In the ordinary courts parties who tender exhibits are entitled to their return, subject to questions of appeal. Indeed many rules of court impose an obligation on parties to apply for the return of exhibits. These principles are not necessarily applicable in the case of an inquiry. In any event the land claim hearings produce such a volume of material that is of importance in historical and contemporary terms, it is desirable that it be retained unless there is good reason for it to be dispersed.

47. From time to time I have raised this matter with Land Council and others regularly participating in hearings under the Land Rights Act. I have not been able to obtain a very clear picture of what participants regard as a proper course for me to take or of all the options available. I am therefore using this report in part as an opportunity to put my thoughts on paper. I intend to direct the attention of the Land Councils and of the Commonwealth and Northern Territory Governments again to this, matter and invite them to discuss it with me.

48. Where a restriction has been imposed for reasons unconnected with Aboriginal culture, I see no reason why a similar course should not be followed, in other words, so long as the exhibit is no longer required for future land claims, it ought to be returned to the party tendering it if requested.

Canada and the United States

49. In July 1980 I was able, through the courtesy of the then Minister for Aboriginal Affairs, Senator Chaney, and his Department to spend five weeks in Canada and the United States making some examination of land claim procedures in those countries.

50. In a visit that took in Vancouver, Whitehorse, Yellow Knife and Ottawa in Canada, and Washington, D.C., Albuquerque, Phoenix and San Francisco in the United States, I spoke with many representatives of native organisations and of governments. I was able to visit a number of reservations in both countries includ­

ing the Navajo nation with its centre at Window Rock. It is not possible in a report such as this to record detailed observations. And many aspects of what f saw related to land rights in its broader social, economic and political frame­ work. I shall confine my comments to those matters that have more direct relevance to the functions of the Aboriginal Land Commissioner under the Land Rights Act.

51. Any legislation recognising the title to land of an indigenous people is neces­ sarily the product of a combination of factors— historical, political, social and economic. That does not preclude comparisons between countries but it does demand some caution in making them.

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52. Both Canada and the United States have a background of treaties between indigenous people and their conquerors. Those treaties resulted in the dispos­ session of large areas of land. In return the native people received in some cases

a bundle of entitlements in the form of money, goods and services. Many of the claims made by Indians and others in Canada and the United States have been based upon breaches of those treaties. What has been sought is largely financial compensation. To the extent that there has been resolution, it has been the result

of negotiation, arbitration and litigation. However litigation has produced only limited restoration of land.

53. Claims to land have been made, both in Canada and the United States, based on Aboriginal title. In the east of the United States some claims have suc­ ceeded on the ground that treaties made by States without the required assent of Congress were invalid and did not disturb native title to land. In the western part of the United States claims have been made on the basis that Aboriginal title prevails unless extinguished by Act of Congress, thereby necessitating an examina­ tion of Federal legislation to determine the extent to which, directly or indirectly,

it evidences an intention to abrogate that title. In Canada the status of native title is still largely unresolved.

54. Thus claims have been made and continue to be made on grounds broadly similar to those advanced in the Gove Land Rights case (Milirrpum v. Nabalco Pty. Ltd. and the Commonwealth of Australia (1971) 17 FLR 141). But there is neither in Canada nor the United States anything truly comparable to the Aboriginal Land Rights (Northern Territory) Act 1976. Perhaps the closest, in procedural though certainly not in substantive terms, was the United States Claims

Commission whose functions were later taken over by the United States Court of Claims.

55. For those who argue for the recognition of Aboriginal title to land in Aus­ tralia, the primary characteristic of the Land Rights Act is that it does just that. The outcome of a successful claim is a grant of inalienable fee simple. From the point of view of those claiming land, the Act prescribes criteria upon which

such a claim may be based. Those criteria have not always proved easy to apply but they do offer to all concerned yardsticks by which a claim may be measured. The emphasis which the Act places upon title to land is in contrast to much of the litigious activity in Canada and the United States which has focused upon

compensation for loss of land.

56. The Land Rights Act contains no provision for monetary compensation for groups whose traditional country is no longer available to be claimed. There is indirectly a means of compensation, and in some cases of substantial compensa- sation, through payments generated by mining on Aboriginal land where approval

to mining is given. The money thus generated is capable of being used to acquire other land through the ordinary processes of the market place. The activities of the Aboriginal Development Commission and its predecessor, the Aboriginal

Land Fund Commission, in the purchase of land are outside the scope of the Land Rights Act. They are mentioned only because land so acquired may become the subject of an application under the Land Rights Act once that land is held by or on behalf of Aboriginal people.

57. The speed with which land claims are resolved will always be a matter of debate. It turns upon the time taken by Land Councils in the preparation of claims,

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the giving of adequate notice to others who may be interested in the claim, the listing of that claim along with others to be heard, the hearing itself, the preparation of a report to the Minister for Aboriginal Affairs and to the Administrator of the Northern Territory and the consideration of that report by the Minister. Once a land claim has been notified as ready for hearing, the time taken in the remaining steps may be less than a year. It may be longer, especially if there are legal challenges to any of the matters contained in a report or indeed if a challenge is made during the currency of a hearing. The Kenbi land claim which began in May

1979 remains part heard until the extent of the Commissioner’s jurisdiction in regard to the land claim has been determined by the High Court.

58. But in the main claims made under the Land Rights Act are heard and determined with a speed which was the envy of those to whom 1 spoke in Canada and the United States. Since the Canadian Government's policy statement on land claims in 1973, acknowledging the possibility of native title to land where it had

not been extinguished by treaty or superseded by law, the James Bay agreement is the only claim to have been resolved. In the United States I was told of negotiations over particular areas of land that had been continuing for forty years or more without resolution.

59. The Land Rights Act provides a system of inquiry and report. It imposes an obligation upon the Commissioner faced with a claim, to determine who are the traditional Aboriginal owners of the land claimed. It is an obligation which the Commissioner has to satisfy for himself; it is not met by some agreement or

acknowledgement by those participating in a hearing. That is not to say that there is no scope for those participating to consider and discuss, outside the framework of the hearing, such questions as traditional ownership, advantage and detriment. To take one example. The identification of traditional owners involves quite extensive inquiry into the identity and relationship of people. I have encouraged the anthropologists working with claimants to liaise with the anthro­

pologist consultant to me and with any other anthropologist who may be involved with a view to the presentation of lists of claimants and of genealogies that are accepted as being correct. In this way much time that would otherwise be taken up during the hearing can be saved. In a particular case it may be possible to present the local descent group on a basis which all concerned in the hearing accept as a correct statement in Aboriginal terms. It is still necessary to see whether that notion accords with the Act but time taken during the hearing in anthro­ pological analysis may be substantially reduced.

60. On matters of detriment there is, I think greater scope for discussion and negotiation than has hitherto taken place. I accept that often there arc difficulties in the way of this. For instance the Northern Territory Government may well contemplate the use of land for a public purpose such as a water or power supply. The timing of the claim may be such that the Government is unable to identify with any precision the land it is likely to require. The Land Council concerned may be unwilling to give undertakings about the availability of land to Govern­ ment or to members of the community because of an uncertainty as to how far it may bind the traditional owners in the event of a claim succeeding and a Land Trust being established. Nevertheless assurances given by a Land Council must carry some weight and go some distance towards alleviating concern on the part of those who fear that a land claim may, for instance, interfere with access to their own land. The Act obliges the Commissioner to comment upon detriment

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that might result if a claim succeeds. It has proved difficult to give real content to such comment where no proper consideration has been given to the matter by those participating. The point is that any agreement on the matter does not relieve the Commissioner of the obligation to comment but it may prove of con­ siderable assistance to the Minister in deciding whether he is ‘satisfied’ in terms of the Act that there should be a grant of all or any of the land recommended.

61. The matter of self determination for Aboriginal people is far outside the scope of this report. I mention it only because in Canada and the United States land rights is very much bound up with self determination. Negotiations for the one tend to go very much hand in hand with negotiations for the other. In Australia

it is only in the last year or so that the move for a Makarrata or treaty has pro­ duced anything comparable to the situation in Canada or the United States. But the operation of the Land Rights Act proceeds independently of that movement.

Acknowledgments 62. Since early this year Kathy Clayden has been my secretary, Marian Podobnik my associate and Graeme Neate, formerly my associate, has acted as Principal Research Officer (Legal). I would like to thank them and Anita Campbell, my

Principal Research Officer in Canberra for their help.

Darwin 3 December 1981

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Aboriginal Land Rights (Northern Territory) A ct 1976

Consolidated list of applications received by the Aboriginal Land Commissioner, Mr Justice Toohey, as at 30 June 1981

*(1) Borroloola land claim hearing concluded, report

tabled, Minister’s decision given

*(2) Warlpiri and Kartangarurru-Kurintji hearing concluded, report land claim tabled, Minister’s decision

given

*(3) Alyawarra land claim hearing concluded, report

tabled, Minister’s decision given

Alligator Rivers Region land claim received 31 March 1978, later replaced by Alligator Rivers Stage II land claim

*(8) Limmen Bight land claim hearing concluded, report

tabled, Minister’s decision given

Cobourg Peninsula land claim by request hearing adjourned,

legislation passed by Northern Territory Govern­ ment vesting the land in perpetuity in a Land Trust

Daly River land claim received 31 March 1978,

hearing to commence 27 July 1981

Gregory Tree area (Victoria River) received 31 March 1978, land claim notice of withdrawal received

24 July 1978

Vernon Islands land claim received 31 March 1978

Woolner land claim received 31 March 1978

Douglas land claim received 31 March 1978

Urnbrawarra Gorge (Jindare) land claim received 31 March 1978 Katherine land claim received 31 March 1978

Cox River land claim received 26 April 1978

Murranji land claim received 26 April 1978

Wombaya land claim received 26 April 1978

*(5) Montejinnie land claim later known as hearing concluded, report Yingawunarri (Old Top Springs) tabled, Minister’s decision Mudbura land claim given

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* *

* ( 6 )

*(7)

*(4)

Dum-in-Mirrie Island land claim

Alligator Rivers Region Stage II land claim (a consolidated claim for Stage II of the proposed Kakadu National Park, Gimbat Resumption and

Waterfall Creek Reserve) Nicholson River land claim

Utopia land claim, later known as the Anmatjirra and Alyawarra land claim to Utopia pastoral lease

Warramunga Alyawarra land claim to area between Dalmore Downs and Tennant Creek Tjila (Chilla Well) Warlpiri land claim

Willowra land claim by Warlpiri later known as the Lander Warlpiri Anmatjirra land claim to Willowra pastoral lease Kaititja, Warlpiri land claim to an area

between Willowra and McLaren Creek stations

Walmanba Warlpiri land claim to an area between Wave Hill pastoral lease and Tennant Creek, now known as Warlmanpa Warlpiri Mudbura and Warumungu land claim Kartangarurru Warlpiri and Walmajcri

land claim to an area between Mongrel Downs and Wallamunga stations Lake Amadeus Luritja area land claim

Uluru (Ayers Rock) National Park and Lake Amadeus Luritja land claim (amends preceding claim) Borroloola land claim No. 2

Kidman Springs Jasper Gorge land claim Collah Water Hole Jinduckin Creek Mount Bowman land claim Dargaragu Kurintji land claim

hearing commenced, later consolidated with Kenbi (Cox Peninsula) land claim received 27 July 1978, hearing concluded 27 March

1981

received 16 October 1978

hearing concluded, report submitted to Minister, report tabled, Minister’s decision given

received 20 November 1978

received 20 November 1978

hearing concluded, report submitted to Minister, report tabled, Minister’s decision given

received 20 November 1978 claim book received 17 August 1981 titled ‘Kaytej

Warlpiri and Walmanpa Land Claim’, hearing to commence 7 December 1981 received 20 November 1978 hearing concluded 17 June

1981, report submitted to Minister

received 20 November 1978

received 1 December 1978, see next claim listed

hearing concluded, report tabled, Minister’s decision given received 25 January 1979

received 6 February 1979 received 9 February 1979

received 26 February 1979, hearing to commence 15 July 1981

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received 5 March 1979 Ukuri and Andthawarra land claim (Borroloola area) Larrimah vacant Crown land claim Minganini vacant Crown land claim,

now known as Yutpundji-Djindiwirritj (Roper Bar) land claim

Kenbi (Cox Peninsula) vacant Crown land claim

Ti Tree station land claim Fogg Bay to Adelaide River land claim, now known as Finniss River land claim

Mount Allan station land claim

Simpson Desert land claim Wakaya Alyawarra land claim Western Desert land claim Lake Amadeus land claim Amanbidji land claim Ngadi and Warlpiri land claim Ormiston Gorge land claim Palm Valley land claim Simpson Gap land claim Tarlton Downs land claim Ooratippra land claim Ammaroo land claim Deep Well land claim Beetaloo land claim St. Vidgeon land claim Eva Valley land claim

Mount Barkly Station land claim

Amendments have been received as follows:

Simpson Desert land claim to include two small areas of unalienated Crown land to the west and north of the Simpson Desert Minganini land claim to be titled

Yudbundu Djindiwirridj land claim Warramunga Alyawarra land claim

received 12 March 1979 received 15 March 1979, claim book received, hearing due to commence 2 February

1981 received 22 March 1979, part heard and adjourned pending outcome of proceedings in High Court

received 5 July 1979 received 20 July 1979, hearing concluded, report to Minister tabled, no decision announced received 2 November 1979, claim book received received 19 February 1980 received 24 March 1980 received 5 June 1980 received 18 June 1980 received 20 August 1980 received 21 August 1980 received 21 August 1980 received 22 August 1980 received 22 August 1980 received 22 August 1980 received 22 August 1980 received 22 August 1980 received 22 August 1980 received 18 September 1980 received 10 June 1981 received 10 June 1981 received 12 June 1981

amendment received 9 July 1980

amendment received 14 July 1980 amendment received 22 August 1980

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amendment received 22 August 1980 amendment received 25 August 1980

* indicates report printed and number of report

** indicates interim edition of report

Wakaya Alyawarra land claim

Warlmanpa Warlpiri land claim (now known as Warlmanpa Warlpiri Mudbura and Warumungu land claim)

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