Editors --- "Aboriginal Lands Act 1995 (Tas.) - Digest" [1996] AUIndigLawRpr 41; (1996) 1(2) Australian Indigenous Law Reporter 284

Aboriginal Lands Act 1995 (Tas.)

Tasmania is the one Australian jurisdiction in which, until recently, there had been no legislative recognition of Aboriginal land rights. However, lengthy negotiations between the Government and Aboriginal people in the State have resulted in the Aboriginal Lands Act 1995 (Tas.), which received the royal assent on 14 November 1995.

Part 2 of the Act establishes the Aboriginal Land Council of Tasmania, consisting of eight Aboriginal persons: 2 to be elected for each of the three regions -- south, north and north-west; 1 to be elected for each of the Flinders Island group and the Cape Barren Island group. Part 2 also provides for the electoral roll and the conduct of elections.

The functions and powers of the Council are set out in s. 18:

Functions and powers of Council

18 (1) The Council has the following functions:-

(a) to use and sustainably manage Aboriginal land and its natural resources for the benefit of all Aboriginal persons;

(b) to exercise, for the benefit of all Aboriginal persons, the Council's powers as owner of Aboriginal land;

(c) to prepare management plans in respect of Aboriginal land;

(d) to use and sustainably manage any other land in which the Council acquires an interest;

(e) such other functions as are imposed on it by or under this Act or any other Act.

(2) The Council must perform its functions for the benefit of all Aboriginal persons and in the interests of reconciliation with the broader Tasmanian community.

(3) In its use and management of Aboriginal land and its natural resources, the Council is to have regard to the interests of local Aboriginal communities.

(4) The Council may do all things necessary or convenient to be done for or in connection with, or incidental to, the performance of its functions.

(5) The Council may, in respect of any area of Aboriginal land, nominate a local Aboriginal group for that area.

(6) The Council may delegate any of its functions or powers in respect of the use and management of Aboriginal land or other land acquired by the Council to any Aboriginal group which, or Aboriginal person who, the Council considers appropriate.

Section 21 establishes the Aboriginal Land Council of Tasmania Fund:

Aboriginal Land Council of Tasmania Fund

21(1) There is established a fund to be known as the Aboriginal Land Council of Tasmania Fund.

(2) The Fund consists of-

(a) money derived by the Council from leases and licences issued under this Act in respect of any Aboriginal land; and

(b) money provided by the Parliament of the Commonwealth or the State for the purposes of the Council; and

(c) other money received from any other source by the Council.

(3) The Fund is to be administered by the Council.

Section 27 vests the land referred to in Schedule 3 in the Council in trust for Aboriginal persons in perpetuity. Twelve areas of land are listed in Schedule 3:

Oyster Cove

Mount Cameron West

Mount Chappell Island

Steep (Head) Island

Kutikina Cave

Ballawinne Cave

Wargata Mina Cave

Badger Island

Babel Island

Great (Big) Dog Island

Risdon Cove

Cape Barren Island (part)

Under s. 27(2) the land is vested to a depth of 50 metres and includes minerals other than oil, atomic substances, and geothermal substances, within the meaning of the Mining Act 1929 (Tas.), and helium.

The remainder of s. 27 indicates that the land vests subject to any existing estate and to various rights of access. Under s. 28 when prior leases or licences expire, the Council must, on request, give consideration to granting further leases or licences.

Section 30 prohibits the Council from mortgaging Aboriginal land or using it as any form of security for any purpose.

Section 31 gives the Council a duty, in certain circumstances, to involve a local Aboriginal group or person in the management of Aboriginal land.

Schedule 5 amends various other Acts with respect to Aboriginal land - the Fire Service Act 1979 (Tas.), the Land Acquisition Act 1993 (Tas.), the Land and Income Taxation Act 1910 (Tas.), the Local Government Act 1993 (Tas.), the Mining Act 1929 (Tas.), and the National Parks and Wildlife Act 1970 (Tas.).