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Tuesday, 13 May 1980
Page: 2140


Senator CAVANAGH (South Australia) - I do not rise to oppose the amendment but to seek clarification, which the Minister for Aboriginal Affairs (Senator Chaney) seems unable to give us. Firstly, I am at a loss to understand the amendment. Secondly, I cannot see the necessity of it. It is obvious that some mistake has been made in defining land for the purpose of handing it to a land trust. It is stated that the amendment is to rectify such mistakes when they occur. I do not know who is the author of the material referred to by Senator Gietzelt. Apparently an aluminium mining company was granted a lease over an area covered under the legislation and therefore the present steps are to take away that mining lease. Is this necessary? The Minister made a recommendation that a grant be made either to the initial trust mentioned in the schedule to the Aboriginal Land Rights (Northern Territory) Act- I think the Fox inquiry named and designated the areas which were to be handed over- or to a trust given any unalienated Crown land which the Aboriginal Lands Commisssion submits should be given to Aborigines. Therefore he acts and the Government issues the grant to the land trust. Having issued the grant, it is found- in the case of the mining rights- that someone has the right to use the land. I wonder whether this is in section 10 which states:

Where, before the commencement of this section, a deed of grant of land that was, or formed part of, an area of land described in Schedule 1 to the Aboriginal Land Rights (Northern Territory) Act 1976 in this section referred to as the first deed of grant' in relation to the land (has been delivered by the Governor-General to the grantee or to the Land Council concerned, the Minister shall, as soon as practicable after the commencement of this section, recommend to the Governor-General that a grant of an estate in fee simple in the land to which the first deed of grant relates be made to the Land Trust named in the first deed of grant as if the first deed of grant had not been executed.

After a grant has been made section 12 of the Aboroginal Land Rights (NT) Act 1976 applies to a recommendation under sub-section ( 1 ) in relation to land as if, where the first deed of grant in relation to the land was delivered to the Governor-General or the grantee, the recommendation was a recommendation under sub-section 10 (1) of that Act, or in any other case the recommendation was a recommendation under sub-section 10 (2) of that Act and included a recommendation for the delivery of the deed of grant of the land in accordance with the requirements of that sub-section in relation to a recommendation under that sub-section.

Possibly I did not get the point. The Minister can grant the deed of trust to the land council for the land to be held in escrow if it has been said either by the royal commission or by the Lands Commission that certain lands should belong to the tribal Aboriginals. If the only thing preventing it is that someone has the right of occupancy of that land, the titles can be handed over and the land held by trust in escrow for such time until it becomes evailable. One becomes suspicious as to why we need this provision. A mining company has a certain amount of the land. We made an error. Although it is Aboriginal land, is it the fact that we do not want to interfere with the mining rights of the company?

In respect of clause 10, the Committee is asked:

.   . after sub-clause ( 1), insert the following sub-clause: (1a) where the Minister, in considering the making of a recommendation under sub-section ( 1 ) in relation to land, is satisfied that the first deed of grant in relation to the land-

(a)   does not include land that was required to be included in accordance with the Aboriginal Land Rights (Northern Territory) Act 1976 . . .

I think the power should embody recommendations of the royal commission or of the land commissioner. But, if under the Act land required to be included is not included, the amendment provides: the Minister shall, in making the recommendation under sub-section ( 1 )-

(c)   Include in that recommendation the land referred to in paragraph (a)

That is land that should have been included but which, in accordance with the Act, was not included. However, if the Act includes land that was not authorised to be included in accordance with the provisions of the Aboriginal Land Rights (Northern Territory) Act 1976, the Minister shall:

(d)   exclude from that recommendation the land referred to in paragraph (b) . . .

I question this point: After the land is handed over in trust to the Aboriginals, and that action is not authorised by the Act- I do not know what land actually is authorised by the Act- if, subsequently, the land commissioner finds there is a small plot of land that should be in that area, it would appear that the Minister excluding -


Senator Chaney - No, we are only dealing here with Schedule 1 land, in other words, the land identified in the Act.


Senator CAVANAGH - Even in respect of Schedule 1, if the Minister finds that the land to be included was not authorised to be included in accordance with the Act, it is mandatory on him that he shall not make the recommendation to include that land. Despite the fact that a certain area of land is not included, I think common sense advises that it may be desirable to include that land. The explanation makes the point that an area of land was excluded, which should have been included, despite the fact that its inclusion was not authorised by the Act. Although a trust has been set up with respect to that land, it may be common sense to include that land within the control of the Aboriginals.

The word used is 'shall'. If we were to use the word 'may', despite the fact that the inclusion of such land was not recommended by the Act, whether to place it under the control and ownership of the Aboriginals would be left to the discretion of the Minister. On every occasion, without such a provision, he is compelled to exclude such recommendations from the memorandum. I wonder whether we cannot get over this problem in a more acceptable way by giving him the option to decide whether, in view of the mistake that has occurred, it is advisable to leave the control as it is and not compel him to take from Aboriginals land that in the terms of the legislation has been excluded.







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