Aboriginal Law Bulletin --- "Northern Territory Excisions Update" [1990] AboriginalLawB 16; (1990) 1(43) Aboriginal Law Bulletin 13

• Nt Excisions Update
• The Nt Legislation
• The Commonwealth Legislation
• Conclusion

---

NT Excisions Update

An Agreement between the Northern Territory Government and the Commonwealth on 7th September 1989, signalled some hope for the thousands of Aborigines who were dispossessed by the pastoral industry and excluded from claiming land under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). (See “White Cattlemen / Aboriginal Country” AboriginalLB No 39 June 1989 p9.) Ensuing from the Memorandum of agreement between the Prime Minister and the Chief Minister of the Territory was the Miscellaneous Acts Amendment (Aboriginal Community Living Areas) Act 1989, and the Aboriginal Land Rights (Northern Territory) Amendment Act 1989. Both pieces of legislation came into effect on March 1 1990. These two pieces of legislation purport to give effect to each parties obligations under the Memorandum of Agreement.

The legislation is based on a compromise between the negotiating parties and reflects the traditional conservative influence of pastoralists upon the actions of the NT Government and the Commonwealth's reticence to intervene too stringently in the decisions of the NT Government. The Memorandum of Agreement was formed in the shadow of promised Commonwealth intervention. As such the legislation was drafted in the context of perceived political necessity rather than bona fide recognition of responsibility.

The NT Legislation

The Central Land Council noted at its November 1989 meeting that the NT legislation is not consistent with the Memorandum of Agreement and called upon the NT Government to make amendments to it in the November 1989 sitting of Parliament. Such amendments were not forthcoming. The legislation provides a process for the excision of small pieces of land from pastoral properties in the NT.

Mr. David Ross, director of the CLC, stated that basic problems with the legislation include:

• the lengthy time frame it establishes,
• its failure to adequately control mining in living areas, and
• the failure to guarantee access to living areas.

The Act provides for excision applications to be made to the NT Lands Minister. The Minister may grant an excision or refer the application to a Tribunal which makes a recommendation to the Minister. The Tribunal is made up of three members; a chairperson who must be a senior lawyer, a person nominated by pastoralists and a person nominated by the Land Council. Unless the pastoralist has given written consent to an excision application, the applicant in conjunction with other criteria must demonstrate 'a present need for a community living area.

Once an application has been lodged, there is a mandatory waiting period of six months for the purpose of negotiation between the parties, unless the Land Council can prove that the pastoralist is not co-operating. After this period the Minister has three months in which to approve the application or refer it to the Tribunal. There is no time limit on the Tribunal to make its decision. The Minister may take any factors into account when considering whether to accept the Tribunal's recommendation. If the excision is not granted there is a limited right of appeal to the Supreme Court. Title to excisions granted will be NT freehold title rather than Aboriginal freehold title. Under NT title there will be no royalty payments for mining on excisions. In addition the NT Government may resume the land if it is not used as a principal place of residence during any five year period, if the pastoral lessee applies for the land

The Commonwealth Legislation

The Aboriginal Land Rights (Northern Territory) Amendment Act 1989 opens the way for granting about 50 small areas of land on disused stock routes and reserves in the NT. These represent only one quarter of the stock routes and reserves that were under claim by the land councils on behalf of traditional owners. The remaining areas are no longer claimable. Title granted under this legislation will have the same stains as land granted under the Land Rights Act. Mr. David Ross the Director of the CLC has cautiously welcomed the legislation, however he has expressed concerns about possible delays in its implementation. He has pointed out that the NT Government demands that the land be surveyed before title deeds- are handed over. This could delay transfer of title for up to two years unless sufficient funds are made available to ensure expedition in surveying living areas.

Conclusion

To provide excisions for all of the land-less Aborigines dispossessed by the pastoral industry would require just 0.5% of the total area of the NT which is under pastoral lease, yet under the present scheme many of those seeking excisions will be precluded from grants, and those who fit the criteria may have to wait years before being granted a tiny piece of land.