Aboriginal Law Bulletin --- "Seven Years On: Review of the Aboriginal Land Rights (NT) Act 1976 (Cth)" [1984] AboriginalLawB 10; (1984) 1(11) Aboriginal Law Bulletin 3

• Seven Years On: Review Of The Aboriginal Land Rights (Nt) Act 1976 (Cth)

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Seven Years On:

Review of the Aboriginal Land Rights (NT) Act 1976 (Cth)

In September, 1983, Mr. Justice Toohey of the Federal Court of Australia (and formerly Aboriginal Land Commissioner) was asked by the Minister for Aboriginal Affairs to review the Aboriginal Land Rights (Northern Territory) Act, 1976 (Cth.). In December, 1983, Mr. Justice Toohey's report entitled Seven Years On was presented to the minister. It examines many aspects of the Act and makes many recommendations. For the benefit of those who may not have access to the full report, it is worth quoting three paragraphs from the final chapter.

877. Consideration of reports is often assisted by drawing together all recommendations made. To do so in the present case would merely inflate the report and be of little assistance, given the diversity and multiplicity of recommendations, most of which need to be studied in the context of the chapter in which they appear. An attempt to summarise the recommendations is likely to be misleading. But it may help if I simply draw attention to the principal recommendations of the report and indicate what their implementation is likely to achieve. I shall do so largely, though not entirely, in the sequence of the chapters of the report, not intending thereby to suggest any order of priority.

878. I have recommended that there be:

(a) legislation providing for community living areas on pastoral leases;
(b) greater security of title for Aboriginals living in town camps;
(c) adequate machinery in the Land Rights Act, by way of undertakings, agreements, conditional grants and statutory powers to make Aboriginal land available for public purposes where necessary, without affecting title to that land;
(d) prohibition of alienation of unalienated Crown land while it is the subject of a land claim;
(e) maintenance of the concept of traditional Aboriginal owners of land as currently defined in the Act;
(f) more emphasis on areas of agreement by those participating in land claims as a means of simplifying and expediting the disposition of applications;
(g) decentralisation of Land Councils at the level of decision making in regard to Aboriginal land, achieving greater I representation of women on Land Councils and extending the functions of Land Councils to include assisting with applications for community living areas and other matters referred to in the report;
(h) removal of the obligation to maintain registers of traditional Aboriginal owners of land;
(i) further consideration of the notion of `group consent' in relation to dealings with Aboriginal land;
(j). clarification of the position of existing mining interests in relation to Aboriginal land and mining interests on land under claim;
(k) provision of a more practicable scheme for agreements for the exploration and mining of Aboriginal land, including separate agreements for exploration and mining;
(l) more detailed provision for arbitration in default of agreement as to the terms and conditions upon which exploration and mining may be carried out on Aboriginal land;
(m) clarification of the position with regard to access to Aboriginal land for mining, including ancillary mining interests;
(n) removal from the consent to mining provisions of the Land Rights Act of any reference to extractive minerals;
(o) consideration of the formulae for distribution of moneys to and by Land Councils;
(p) maintenance of the basis upon which mineral royalty equivalents are paid to Land Councils and some modification of the basis upon which financial agreements for mining on Aboriginal land are concluded;
(q) consideration of the operation of the Aboriginals Benefit Trust Account;
(r) amendment to the legislation concerning income tax liability on certain mining payments;
(s) some changes to the role of the Minister for Aboriginal Affairs under
the Land Rights Act; and
(t) some changes to legislation for the protection of sacred sites and sacred objects

880 The number of amendments recommended to the Land Rights Act may be thought to suggest substantial defects in the legislation. It would be a mistake to draw that conclusion. Given the legislative novelty of the subject matter of the Act and the need to marry complex notions of traditional Aboriginal law and culture with European institutions and administrative procedutres, the Act has worked surprisingly well. But it is inevitable that after seven years cracks in the edifice have started to show. This report seeks to show how those cracks might be mended while leaving the overall structure intact.