Northern Territory Consolidated Acts

MISCELLANEOUS ACTS AMENDMENT (ABORIGINAL COMMUNITY LIVING AREAS) ACT 1989 - SCHEDULE

Schedule

section 3

MEMORANDUM OF AGREEMENT BETWEEN THE COMMONWEALTH AND THE NORTHERN TERRITORY OF THE GRANTING OF COMMUNITY LIVING AREAS IN NORTHERN TERRITORY PASTORAL DISTRICTS

Discussions were held between the Prime Minister and the Chief Minster of the Northern Territory on 6/7 September in relation to the question of Aboriginal living areas and Aboriginal land claims to stock routes and stock reserves in the Northern Territory.

They agreed that action will be taken as a matter of urgency to give effect to the provisions of this Memorandum which constitute a package to be implemented in a cooperative and coordinated manner.

For the Commonwealth's part action will be taken to provide land on portions of stock routes and stock reserves. For the Northern Territory's part action will be taken to provide living areas through excisions from pastoral leases.

Stock Routes and Stock Reserves

The Commonwealth will amend the Aboriginal Land Rights (Northern Territory) Act 1976 , as a matter of priority, to provide for the grant, by way of inclusion in a Schedule to the Act, of certain parts of existing stock routes and reserve claims.

The selection of the areas to be included within the Schedule to the Act will be determined after consultation between the two Governments.

The Commonwealth undertook that, in providing Aboriginals with living areas on stock routes and stock reserves, the following principles will apply:

•     it will schedule only a small proportion of the land subject to existing claims;

•     scheduling will not take place where agreement has been reached that the Aboriginals' needs can be satisfactorily met by a pastoral excision, or a combination of part of the stock route claim with an adjacent excision; and

•     there will be no scheduling in relation to those parts of claims which might unreasonably interfere with a pastoralist's interest, for example, by dividing a property, or encroaching on the homestead.

Upon enactment of the scheduling legislation the Commonwealth will then proclaim the June 1987 amendments to the Land Rights Act, which will mean that the stock route claims not scheduled will lapse. The Commonwealth also agreed that the regulation-making power providing for a stock reserve to be deemed to be available for land claim will be removed.

Pastoral Lease Excisions

Excisions will be granted under a special freehold title to be provided under Northern Territory legislation, the details of which are indicated at Attachment A. Such title will ensure that:

•     there is statutory protection against alienation or encumbrance of the land;

•     the Minister may not compulsorily acquire any such land except for a purpose agreed at the time of the grant, or the provision of certain essential services to, or across, the land;

•     the power to compulsorily acquire shall not extend to acquisition of a fee-simple interest;

•     actual living areas with a substantial buffer zone are to be reserved from mineral exploration and mining, with provision for compensation for disturbance; and

•     there is a statutory right of access to the land.

The eligibility criteria for applications for pastoral lease excisions are to be:

1.     Any group with the consent of the pastoral lessee.

2.     Any group with a demonstrated need which was ordinarily resident on the pastoral lease at any time since 1968.

3.     Any other group with an historical residential association with a lease that can demonstrate that it has a present need for a community living area.

In determining need, the Minister and the Tribunal referred to below will have regard to whether the applicants already have adequate housing circumstances or land upon which this might be provided.

The primary intention is to provide secure tenure for those Aboriginal groups in need, particularly for those Aboriginal groups presently or recently resident on pastoral leases. There is no intention to allow for a flood of claims which may be seen as providing for a land rights approach to alienated land.

The process for dealing with applications is outlined in the flowchart at Attachment B.

In essence, the parties will initially seek to reach agreement on the application. Failing agreement, application may be made to the Minister for determination. If the Minister does not accept the application, he will seek advice of a Special Tribunal, which will comprise a legal practitioner of 10 years standing appointed by the Chief Justice of the Northern Territory Supreme Court, a Land Council representative and a representative of the pastoral industry. If the Minister rejects a recommendation of the Tribunal, he must state his reasons and there will be provision for appeal to the Northern Territory Supreme Court.

Role of the Land Councils

The Northern Territory's legislation will specify that, when requested to do so, a Land Council may act on behalf of an applicant. In accordance with Section 23(2) of the Land Rights Act, the Commonwealth Minster for Aboriginal Affairs will approve the Land Councils performing this function.

Timing

Reflecting their joint intention to give effect to their agreement as a matter of urgency, the two Governments intend that passage of legislation will be sought in the Commonwealth Parliament and the Northern Territory Legislative Assembly in October 1989. This will provide the necessary legislative base for early progress on the granting of living areas.

Joint Review Group

Recognising the importance of the issue and of the action to flow from this Memorandum, the Prime Minister and the Chief Minister have agreed to establish a Joint Review Group to monitor implementation. The Review Group will report to the Prime Minister, the Minister for Aboriginal Affairs and the Chief Minister on a regular basis.

    (Signed)                         (Signed)
    R. J. L. Hawke                     Marshall Perron
    Prime Minister                 Chief Minster of the
                                Northern Territory

ATTACHMENT A

PROPOSED NORTHERN TERRITORY STATUE LAW REVISION BILL –

COMMUNITY LIVING AREAS

1.     Crown Lands Act

–     provide for voluntary surrender of part of a pastoral lease expressly for the purpose of a living area;

–     admit the eligibility criteria and procedural guidelines as a schedule to the Act;

–     note that recently enacted amendments to the Associations Incorporation Act and the Real Property Act address the question of alienability.

2.     Lands Acquisition Act

–     provide for the compulsory acquisition of part of a pastoral lease for the purposes of a living area;

–     provide a process for handling applications for excisions as outlined in the flow chart at Attachment B;

–     provide that the Minister may not compulsorily acquire land comprising a pastoral lease excision or an interest in such land except

•     where the prescribed land was granted subject to the reservation that the Territory can acquire the part or interest for the purpose for which it is proposed to be acquired; or

•     for the purpose of the provision of essential power, water, sewerage, road or communication services to or across the prescribed land;

    Any dispute will be determined in accordance with the procedures at Attachment B.

–     provide that power to compulsorily acquire shall not extend to acquisition of a fee-simple interest.

3.     Mining Act

–     provide that a mineral lease cannot be granted in respect of living area within a specified (greater than the currently prescribed 50 m or 200 m) distance of the principal location of the community,

–     (N. B. the provisions of the Mining Act 1980 section 73 and Petroleum Act 1984 section 81 provide for compensation to be payable to owners or occupiers);

4.     General

–     provide that the grounds for acquisition for essential public purposes could be identified at the time of a grant and be registered as a memorial on the title under the Real Property Act 1886 ;

–     those protections and restrictions would apply to the current living areas held under Crown Lease (term) when leases surrendered in exchange for a freehold title;
–     where living areas are already held under freehold title, titles may be surrendered in exchange for a new freehold title in order to be subject to the same protections and restrictions.

ATTACHMENT B

FLOW CHART

PROCESS FOR ISSUE OF PROPOSED COMMUNITY LIVING AREAS UNDER NORTHERN TERRITORY LEGISLATION

DISCUSSION BETWEEN PARTIES
AGREEMENT TITLE ISSUED	NO AGREEMENT APPLICATION TO MINISTER
MINISTER MAY ACQUIRE TITLE ISSUED	MINISTER MAY REFER TO COMMUNITY LIVING AREAS ARBITRATION PANEL
PANEL	PROCEDURE
(a)     Legal Practitioner 10 yrs standing appointed by C. J.         (b)     Land Council REP         (c)     Pastoral Industry REP	(a)     Panel to determine upon receipt of written submissions         (b)     May proceed in absence of written submission after failure of party to make a submission and after giving notice         (c)     Where considers in the interest of resolution may order compulsory conference before panel
	PANEL TO MAKE RECOMMENDATION TO MINISTER
MINISTER MAY ACQUIRE	MINISTER MAY REJECT MUST GIVE WRITTEN REASONS
	REVIEW OF MINISTER'S DECISION TO REJECT BY SUPREME COURT
MINISTER BOUND BY COURTS DECISION	(a)     Where decision manifestly wrong         (b)     Error of law
*     The Parties will generally be permitted up to 6 months before application may be made to the Minister but the Minister will have discretion to increase or decrease that period if he considers this to be appropriate in the circumstances of a particular case or cases.