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Way, Frith; Beckett, Simeon --- "Discussion Paper 4: Land-Holding and Governance Structures under Australian Land Rights Legislation [Governance Structures for Indigenous Australians on and off Native Title Lands - Australian Research Council Collaborative Research Project]" [1998] IndigLRes 32

GOVERNANCE STRUCTURES FOR INDIGENOUS AUSTRALIANS ON AND OFF NATIVE TITLE LANDS

DISCUSSION PAPER 4

LAND-HOLDING AND GOVERNANCE STRUCTURES UNDER AUSTRALIAN
LAND RIGHTS LEGISLATION

By Frith Way
(with Simeon Beckett)

Australian Research Council Collaborative Research Project
Investigators Professor Garth Nettheim • University of NSW
Assoc Professor Gary Meyers • Murdoch University
Ms Donna Craig • Macquarie University
Industry Partner National Native Title Tribunal

© The University of New South Wales
Murdoch University

This work is copyrighted under the laws of Australia. It may be reproduced, in part or in whole, for study or educational purposes subject to an acknowledgement of the source. Reproduction for other purposes requires written permission from the University of New South Wales
and Murdoch University.

ISBN — 07334 0560 6


Thanks to Father Frank Brennan, Damien Hogan, Susan Phillips,
Peter Sutton, the Indigenous Law Centre.




HOW TO MAKE COMMENTS AND SUBMISSIONS

You are invited to make comments and submissions on the material included in this Paper. These should be sent to:

Professor Garth Nettheim
Indigenous Law Centre
School of Law
The University of New South Wales
Sydney 2052 Australia
g.nettheim@unsw.edu.au

If you have any enquiries about the Project please contact:

Ms Frith Way
Senior Research Assistant
School of Law
The University of New South Wales
Sydney 2052 Australia
Ph 02 9385 2231
Fax 02 9385 1175
f.way@unsw.edu.au

If you want your submission, or any part of it, to be treated as
confidential please indicate this clearly.

Closing Date — 30 June 1999

GOVERNANCE STRUCTURES FOR INDIGENOUS AUSTRALIANS ON AND OFF NATIVE TITLE LANDS

DISCUSSION PAPER 4

LAND-HOLDING AND GOVERNANCE STRUCTURES UNDER AUSTRALIAN
LAND RIGHTS LEGISLATION

By Frith Way
(with Simeon Beckett)

ABBREVIATIONS

ABS Australian Bureau of Statistics

AGPS Australian Government Publishing Service

AIATSIS Australian Institute of Aboriginal and Torres Strait Islander Studies

AILR Australian Indigenous Law Reporter

ALRA Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)

ALRC Australian Law Reform Commission

ATSIC Aboriginal and Torres Strait Islander Commission

CAEPR Centre for Aboriginal Economic Policy Research

CLC Central Land Council

DOGIT Deed of grant in trust

HREOC Human Rights & Equal Opportunity Commission

LALC NSW Local Aboriginal Land Council

Mabo Mabo v Queensland (No 2) (1992) 175 CLR 1

NLC Northern Land Council

NTA Native Title Act 1993 (Cth)

NTRB Native title representative body

UQP University of Queensland Press

CONTENTS

Page

1. INTRODUCTION
The Project 1
Discussion Paper 4 1
Brief Overview of Native Title in Australia 2
Relationship to land 2
Meaning of ‘native title’ 3
Native Title Act 5
Governance structures under the NTA 6
Towards self-governance 8
Accountability 9

2. NORTHERN TERRITORY
Land-Holding and Governance Structures 10
Introduction 10
Aboriginal Land Rights Act 11
Excisions 19
National parks 21
Self-Government 24
Aboriginal Land Rights Act 24
Excisions 26
National parks 28
Indigenous local government 29
Comments and Discussion Points 31

3. SOUTH AUSTRALIA
Land-Holding and Governance Structures 32
Aboriginal Lands Trust lands 32
Anangu Pitjantjatjara and Maralinga Tjarutja lands 32
Self-Government 34
Aboriginal Lands Trust lands 34
Anangu Pitjantjatjara and Maralinga Tjarutja lands 36
Comments and Discussion Points 38

4. VICTORIA
Land-Holding and Governance Structures 39
Aboriginal Lands Acts 39
Lake Condah and Framlingham Forest 39
Northcote 40
Manatunga 40
Self-Government 41
Aboriginal Lands Acts 41
Lake Condah and Framlingham Forest 41
Northcote 43
Manatunga 44
Comments and Discussion Points 44

5. NEW SOUTH WALES
Land-Holding and Governance Structures 45
Aboriginal Land Rights Act 45
National parks 47
Self-Government 48
Aboriginal Land Rights Act 48
National parks 51
Comments and Discussion Points 52

6. QUEENSLAND
Land-Holding and Governance Structures 53
Introduction 53
Reserves 53
DOGITs 54
Aurukun and Mornington Island Shire Councils 56
Aboriginal and Torres Strait Islander Land Acts 57
Community councils and Indigenous
local government 60
Self-Government 61
Reserves 61
DOGITs 62
Aurukun and Mornington Island Shire Councils 63
Aboriginal and Torres Strait Islander Land Acts 64
Comments and Discussion Points 67

7. TASMANIA
Land-Holding and Governance Structures 68
Aboriginal Land Council 68
Council membership 69
Self-Government 70
Access 70
Mining 71
Decision making processes 71
Comments and Discussion Points 72

8. WESTERN AUSTRALIA
Land-Holding and Governance Structures 73
Introduction 73
Reserves 74
Aboriginal Communities Act 76
Self-Government 76
Reserves 76
Aboriginal Communities Act 78
Comments and Discussion Points 79

9. AUSTRALIAN CAPITAL TERRITORY
Land-Holding and Governance Structures 80
Wreck Bay Aboriginal Community Council 80
Self-Government 82
Access 82
Mining 82
Decision making processes 82
Comments and Discussion Points 83

1. INTRODUCTION

THE PROJECT

In 1997 the Australian Research Council awarded a Collaborative Research Grant to support this Project to develop recommendations for more effective interaction between Indigenous and non-Indigenous governance structures. The central problem that the Project seeks to address is the question of ‘fit’ between traditional forms of Indigenous land ‘ownership’ and control, and the non-Indigenous legal system. The focus is on management of land subject to native title. However, the Project extends to a consideration of Indigenous structures for asserting and protecting interests on land and waters that are not subject to native title. Discussion Paper 1 gives a more detailed overview of the Project.^[1]

Other Discussion Papers will cover material on Indigenous land holding structures in overseas jurisdictions, Indigenous associations and other governance bodies not administering land, and governance structures off Indigenous lands and waters.

All members of the Project Team are non-Indigenous. We make no claim to speak for any Indigenous community but hope that the recommendations we develop will provide ways of improving the relationship between Indigenous and non-Indigenous governing bodies when administering native title. The Project’s goal is to help to identify avenues and strategies for effective self-government by Indigenous peoples.

DISCUSSION PAPER 4

This Discussion Paper is an overview of the land-holding and governance structures established by land rights and Indigenous affairs legislation throughout Australia. The material has been drawn together for comparative purposes. Any reform of the governance structures under native title legislation may be able to draw on the experiences of land rights and other governance bodies, some of which have been in operation for several decades.

This is a preliminary document aimed at provoking discussion and deliberation. The discussion of each jurisdiction is relatively brief and does not extend to a discussion of structures, such as land funds, set up to purchase freehold land for Indigenous communities on the open market.

The discussion of each jurisdiction’s laws is divided into a general section on land-holding and governance structures and material on the degree of self-government allowed for by the legislation. The main indicia of self-government examined are control over access to lands, control over mining activity and decision making powers. These were chosen because they provide a good opportunity for comparison across jurisdictions.

BRIEF OVERVIEW OF NATIVE TITLE IN AUSTRALIA

Relationship to land

The Project Team operates from the assumption that Indigenous peoples’ relationship to land is qualitatively different from that of other Australians. In a paper written for the Council for Aboriginal Reconciliation, Dr Dermot Smyth stresses the importance of non-Indigenous Australians recognising the breadth of the Indigenous concept of country.

‘Country’ refers to more than just a geographical area: it is shorthand for all the values, places, resources, stories and cultural obligations associated with that geographical area. For coastal Aboriginal peoples, ‘country’ includes both land and sea areas which are regarded as inseparable from each other.^[2]

Indigenous people have a spiritual connection to the land and see themselves as custodians of it rather than owners in the common law sense. For Indigenous peoples, the natural features of Australia have specific spiritual origins described in dreamtime stories and songlines making the land and sea particularly significant.^[3]

I received the title in the land from those old people and there is nothing I can do: I cannot refuse that title because it is inside me.^[4]

The survival of the indigenous foundations of life are woven into the land. Without it, our laws, culture, languages and history struggle to find form in a land that we are dispossessed of.^[5]

Membership of a particular clan and thus association with a particular clan country is given at birth. Membership confers access to clan resources and imposes certain ceremonial obligations.^[6] Each Indigenous community has its own system of law.

By Dreaming Law no country is dominated by another.^[7]

Generally, non-Indigenous Australians have a proprietary relationship with land, not a spiritual one. While particular parcels of land may have great significance to certain families or communities, this is generally based on pride in ownership or length of association. The sense of identity derives not from being part of the land, but of exercising control over it through formal rights of exclusive possession and occupation. In this regime land is a commodity.

Meaning of ‘native title’

Aboriginal and Torres Strait Islander groups operate according to highly developed systems of laws. The non-Indigenous community has been slow to recognise this.^[8] The phrase ‘native title’ is a relatively new description of the common law mechanism through which Australian law recognises rights under ancient Indigenous systems of land law.^[9]

In 1992, the Meriam people of the Murray Islands in the Torres Strait irrevocably changed the way the non-Indigenous legal system must accommodate Indigenous land rights in Australia. They successfully asserted their native title to land before the High Court of Australia in Mabo v Queensland (Mabo).^[10] The Mabo decision was revolutionary to the extent that it correctly applied the common law after years of misapplication. The application of the doctrine of terra nullius to Australia had been more revolutionary; not so much an overthrowing of an old regime as a disavowal of

its existence.^[11] The doctrine is the archetypal example of Colonial solipsism.^[12]

We learned that [English colonial] law told them a story called terra nullius, which meant that if you go to a land where the people don’t look like you or live like you, then you can pretend they don’t exist and take their land.^[13]

According to the High Court, native title is good against the whole world.^[14] However, it is not an easily defined set of rights. The elements of native title depend on the traditional laws and practices of the particular group of Indigenous people holding it.

Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the Indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs.^[15]

Generally, native title will embrace rights of occupation, rights to participate in ceremonial activity, including hunting and fishing, and the right to exclude others from the land. However, it is not helpful to focus on developing a definitive list of native title rights.

There is something untranslatable inherent in Indigenous relationships to land that will never be captured by a declaration of the connection as a bundle of rights.^[16]

It is essentially the way that we live, the beliefs that we practice, the values that we ascribe to that make up our identity. It is what the High Court calls Native Title but essentially it’s the foundations of our society and the way our society’s maintained itself.^[17]

Deciding what native title encompasses should be a matter for individual Indigenous groups.

Where the Crown alienates land by granting an interest that is inconsistent with a continuing right to enjoy native title, the latter is extinguished to the extent of the inconsistency.^[18] For example, the grant of an estate in freehold (a form of exclusive

possession) extinguishes native title over that land for the purposes of non-Indigenous law.^[19] According to non-Indigenous courts, native title cannot be revived.^[20]

Native Title Act

In response to the uncertainty which many in the non-Indigenous community perceived the Mabo decision to have created, the Keating Labor Government decided to legislate on native title.^[21] This process was of limited substantive benefit to Indigenous peoples. If native title exists at common law, it does not require confirmation by statute. Moreover, to those who live by its rules, the legitimacy of Indigenous law does not depend on recognition by the mainstream legal system.

The idea that Aboriginals actually have rights that are not given to them by the grace of the white community is very hard for many people to absorb.^[22]

The Native Title Act 1993 (Cth) (NTA), is a highly complex scheme for determining which land is subject to native title according to non-Indigenous law, protecting native title, regulating land use agreements and regulating access to native title lands (including for resource development).^[23] The legislation has recently been extensively amended.^[24]

‘Native title’ is defined in the NTA as the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters where

(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c) the rights and interests are recognised by the common law of Australia.^[25]

Governance structures under the NTA

Introduction

There are two kinds of governance structures involved in the native title application and administration process. Native title representative bodies (NTRBs) are dealt with briefly below. Prescribed bodies corporate may hold native title on trust for the common law holders or act as their agents and have various statutory functions.^[26] They will be examined at length in a forthcoming Project Discussion Paper.

Native Title Representative Bodies

NTRBs are key players in the process that Indigenous groups must follow to have their native title recognised by non-Indigenous law. Broadly speaking their functions have been assisting members to make native title claims and facilitating the resolution of intra-group disputes about native title. In the second reading speech for the original Native Title Bill 1993 (Cth), Prime Minister Keating described the role of NTRBs as follows:

Representative organisations will...assist in co-ordinating claims: it is important that claims come forward in a sensible, organised way. They will also be a channel for notification of proposed actions affecting native title as provided for in the Bill. The organisations will, of course, be fully accountable for any funds provided.^[27]

The Native Title Amendment Act 1998 (Cth) introduced major changes to the functions of NTRBs and the process for becoming recognised as one by the Minister for Aboriginal and Torres Strait Islander Affairs. The new provisions commence in two stages. The first stage of amendments came into effect on 30 October 1998, triggering the commencement of a ‘transition period’ of at least 12 months. During this transition period, the functions of existing NTRBs will be governed by section 202(4) of the NTA. They include facilitating the preparation of native title claims, assisting in the resolution of disputes and becoming a party to indigenous land use agreements.

At the end of the transition period, the second stage of amendments will commence.^[28] As part of this process, section 202 of the NTA will be replaced by section 203B. Under the new provision, NTRB functions will be classified under the headings of facilitation and assistance, certification, dispute resolution, notification, agreement making, internal review and other.

Under the amended NTA, the Minister may invite applications from eligible bodies for recognition as the NTRB for a particular geographical area.^[29] During the transition period, existing representative bodies will be invited to re-apply for representative body status.^[30] When determining whether to recognise an Indigenous organisation as a representative body, the Minister must be satisfied that:

• the body will satisfactorily represent persons who hold or may hold native title in the area; and
• it will be able to consult effectively with Aboriginal and Torres Strait peoples living in the area; and
• it satisfactorily performs or has the ability satisfactorily to perform the functions of an NTRB.^[31]

More detailed information on the legislative changes affecting NTRBs can be found in an Information Paper released by the Aboriginal and Torres Strait Islander Commission (ATSIC) in November 1998.^[32]

Towards self-governance

The question at the centre of this Project is how title holders can best control what happens on their land. Jacqui Katona, Executive Officer of the Gundjehmi Aboriginal Corporation,^[33] has recently suggested that to answer this question it is necessary for non-Indigenous governments and academics to recognise Indigenous peoples’ ability to manage themselves.^[34] She also suggests that there needs to be greater emphasis on explaining the dominant society to Indigenous people so that they can properly take advantage of the aspects of western society that could benefit their culture.^[35]

It is essential that NTRBs have infrastructures that reflect Indigenous aspirations and assist communities to exercise or enjoy their rights. Indigenous governance paradigms are required. While it may be reasonable to expect Indigenous organisations to comply with certain non-Indigenous bureaucratic requirements, such as financial accountability, questions need to be asked about the measures against which compliance is judged.

Effective co-existence must be more than constant compromises by Indigenous peoples. The non-Indigenous community could benefit from a more reciprocal flow of ideas. For example, the sharing that is a fundamental part of Indigenous culture represents a finely calibrated social contract that imbues both generosity and responsibility in society members.^[36] It is vital that there is scope for such values to be incorporated into governance structures if an Indigenous community desires it. Non-Indigenous bureaucratic requirements should not impede this.^[37]

In Aboriginal Dispute Resolution, Larissa Behrendt explores ‘how the values of the Aboriginal community can be used imaginatively to develop real alternatives to the dispute resolution mechanisms used by the dominant legal system.’^[38] Behrendt is concerned mainly with alternatives to courts but the principles she develops are also useful in considering governance structures.

Aboriginal and Torres Strait Islander communities should be able to implement models in their own communities, which recognise traditional cultural values and traditional structures of decision making.^[39]

A community must always decide for itself what is best for its members. Only the community knows what is best for the community.^[40]

In October 1998, the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) finalised a concept study into an Australian Indigenous leadership development program. The Research Report focuses on the structure and content of any such program.^[41] However, it also offers some insights into what leadership can mean in Indigenous communities and organisations:

Indigenous leadership involves representation and articulation of issues to protect the often diverse interests of communities and decision making that reflects collective ideas and ideals of communities.^[42]

Accountability

Accountability of NTRBs is relevant at two levels. First, there is public accountability which is usually manifested through accounting requirements. The second arm is accountability to the body’s members and the community it represents. Internal accountability mechanisms must be able to reflect Indigenous political culture which emphasises the primacy of local groups and the obligations of individuals to their immediate kin.^[43]

...a policy focus on mechanisms to better achieve internal accountability for Aboriginal organisations would assist in the realisation of both Aboriginal self-determination and public accountability.^[44]

In 1995, ATSIC conducted a review of NTRBs.^[45] Many of the review’s observations, findings and recommendations remain relevant to this Project despite the recent amendments to the NTA.

The ATSIC review recommended that NTRBs be accountable to their clients in a manner consistent with section 23 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). This recommendation was prompted by finding that accountability functions need to be formalised.^[46] Section 23 emphasises Land Councils’ consultation and negotiation roles. In particular, the legislation provides that a Land Council cannot take any action unless it is satisfied that the traditional owners understand the nature of the proposed action and consent to it and unless it has consulted any Aboriginal community that will be affected.^[47] On the face of it, this legislative approach gives Indigenous communities a direct say in governance decisions that affect their lands.

2. NORTHERN TERRITORY

LAND-HOLDING AND GOVERNANCE STRUCTURES

Introduction

In the Northern Territory Aboriginal people can acquire land either under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALRA) or as an ‘excision’ from a pastoral lease under the Pastoral Land Act 1992 (NT). ^[48] Both mechanisms are available in addition to the rights Aboriginal people may have as native title holders.

In Pareroultja v Tickner the full bench of the Federal Court held that a grant of an estate in fee simple to a Land Trust under the ALRA does not extinguish native title.^[49] In the leading judgement Justice Lockhart stated as follows:

A grant of an estate in fee simple to a Land Trust under the Land Rights Act would ordinarily be made for the benefit of Aboriginals who have native title to the land. The Land Rights Act protects the interests of traditional Aboriginal owners...A grant of land in fee simple to a Land Trust under the Land Rights Act does not prevent Aboriginals having the benefit of native title from continued occupancy, use or possession of their land to the extent that it is in conformity with Aboriginal tradition governing the rights of the relevant Aboriginals with respect to that land.^[50]

This principle cannot be extended to all land rights legislation throughout Australia. Where such legislation confers title other than on the basis of traditional rights it will almost certainly extinguish native title if the grantees are people other than the native title holders, unless there is a statutory provision to the contrary.^[51]

In addition to grants to Land Trusts under the ALRA and excisions from pastoral leases, Aboriginal communities exercise some control over certain traditional lands within national parks in the Northern Territory.

Aboriginal Land Rights Act

Introduction

The ALRA is Australia’s oldest land rights regime and has set the benchmark for other such legislation.^[52] It accords traditional Aboriginal owners greater rights at law than other land rights regimes elsewhere in Australia and has been used to claim over 40% of land in the Northern Territory.^[53]Indigenous peoples in the Northern Territory fought long and hard for the legislation. For example, in 1966 Gurindji pastoral workers walked off Wave Hill Station in protest against appalling living conditions and inadequate wages. Their protest quickly developed into a political campaign for land rights.^[54] The Gurindji people set up camp on traditional Aboriginal land at Daguragu where they stayed until the Wave Hill lease was handed to elder Vincent Lingiari by Prime Minister Whitlam in 1975.^[55]

An Aboriginal Land Rights Commission was established by the Federal Government in February 1973. Commissioner Woodward’s first report, submitted in July that year, recommended that two regional Aboriginal land councils be set up in the Northern Territory. The additional suggestions made by Woodward about land councils were concerned mainly with administrative arrangements for expediting their establishment and provided little detail on possible decision making structures.^[56]

In his second report, submitted in May 1974, Commissioner Woodward made more concrete recommendations about the administration and funding of Aboriginal organisations. His findings were based on a number of underlying conclusions including the following.

• Aboriginal people must be fully consulted about all steps proposed to be taken.

• Aboriginal communities should have as much autonomy as possible in running their own affairs.

• Aborigines should be free to follow their traditional methods of decision-making.^[57]

Legislation to provide for Aboriginal land rights in the Northern Territory was originally introduced by the Whitlam Labor Government as part of its Aboriginal Affairs legislative package.^[58] In the second reading speech the Minister for Aboriginal Affairs articulated the policy behind the proposed legislation.

This legislation will at last give Aboriginal ownership in our law over land which, according to traditional law, belongs to them, and they to it. Future generations of Aboriginals will continue to reap the benefits of the land base this Bill will provide for Aboriginal people of the Northern Territory.^[59]

The Aboriginal Land (Northern Territory) Bill 1975 (Cth) lapsed when Parliament was prorogued following the dismissal of the Whitlam Government. The conservative Fraser Government introduced substantially similar legislation in June 1976. The new Minister for Aboriginal Affairs’ statements supporting the legislation echoed those of the previous government.

It is a fundamental change in social thinking in Australia to recognise that within our community there are some people, the Aborigines, who live by a unique and distinct system of customary laws.^[60]

The introduction of legislation to grant land rights in the Northern Territory is an essential, progressive measure in the social and political history of Australia.^[61]

Under the ALRA, land can be granted to Aboriginal people if it is ‘scheduled’ to the Act or has been successfully claimed according to the procedures outlined in it.^[62] A number of areas of land were listed in Schedule 1 to the ALRA when it was enacted including many former Aboriginal reserves. The Act has been amended on a number of occasions to include further land in this Schedule.^[63]

The ALRA enables traditional Aboriginal owners to lodge land rights claims over Crown land.^[64] Traditional Aboriginal owners are defined in the legislation as:

a local descent group of Aboriginals who:
(a) have common spiritual affiliations to a site on the land, being affiliations that place the group under a primary spiritual responsibility for that site and for the land; and
(b) are entitled by Aboriginal tradition to forage as of right over that land.^[65]

In 1987 a ten-year ‘sunset’ clause was inserted in the ALRA. 5 June 1997 was the last date on which a new claim for land rights could be made.^[66]A total of 249 claims were lodged with the Aboriginal Land Commissioner up to this date.^[67] At the time of writing, 51 of these claims have been finalised, 26 have been withdrawn and 12 claimed areas have been added to Schedule 1 of the ALRA.^[68]

The ALRA also allows for claims over alienated Crown land in which ‘all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals’, for example, land under pastoral lease.^[69]

Whether the land has been included in Schedule 1 or has been successfully claimed, a freehold estate is granted by the Governor-General to a recipient Aboriginal Land Trust. The ALRA restricts the dealings in the land in such a way that it has been characterised as ‘inalienable freehold’ title . The land can only be leased at the direction of the relevant Land Council and, in certain circumstances, only with the consent of the Minister.^[70] The land may not be sold, although it can be surrendered to the Crown.^[71]

Dealings in land must generally be done with the consent of the Minister and at the direction of the Land Council for the area.^[72] However, an estate or interest may be granted to an Aboriginal Council, association or Aboriginal business without Ministerial consent for any period up to 21 years. The same applies to interests or estates granted to the Federal or Northern Territory Governments or to any other person for a period of up to 10 years.^[73] Such grants must still only be done on a direction from the Land Council. A crucial protection for the traditional Aboriginal owners is contained in section 19(5):

A Land Council shall not give a direction under this section for the grant, transfer or surrender of an estate or interest in land unless the Land Council is satisfied that:

(a) the traditional Aboriginal owners (if any) of that land understand the nature and purpose of the proposed grant, transfer or surrender and, as a group, consent to it;

(b) any Aboriginal community or group that may be affected by the proposed grant, transfer or surrender has been consulted and has had adequate opportunity to express its views to the Land Council; and

(c) in the case of a grant of an estate or interest ¾ the terms and conditions on which the grant is to be made are reasonable.

The alienation provisions of the ALRA are most commonly used for the lease of land for community and governmental purposes. For example, medium term leases are granted for health clinics, hospitals, schools and for medical staff and teacher accommodation. Residential leases are rarely granted.

Aboriginal Land Trusts

The only land holding structure under the ALRA is the Aboriginal Land Trust. Land Trusts are established by the Minister to hold title to land ‘for the benefit of Aboriginals entitled by Aboriginal tradition to the use and occupation of the land concerned ...’.^[74] They are bodies corporate with perpetual succession which may sue and be sued in their own name.^[75]

A Land Trust must exercise its power as owner of the land for the benefit of the Aboriginal people concerned.^[76] However, a Trust may not exercise its functions in relation to land except in accordance with a direction given to it by the Land Council for the area.^[77] A Land Trust must not receive moneys owing to it. Instead, these may be paid to the relevant Land Council.^[78]

The members of an Aboriginal Land Trust are appointed by the Minister, after being nominated by the relevant Land Council.^[79] The trustees nominated by the Land Council and appointed by the Minister are usually senior men and women who are traditional Aboriginal owners for the trust area. Occasionally, the members are younger people who are promoted for their understanding of English and/or non-Indigenous culture. There is provision for a Land Trust not to have a chairperson.^[80] All members of the Land Trust must be living in the Land Council area in which the land held by the Land Trust is situated, although they do not have to be living on land held by the Land Trust.^[81] Members are appointed for three years.^[82]

Aboriginal Land Trusts are essentially passive holders of title. They have no direct funding and are almost entirely reliant on the relevant Land Council to convene meetings and provide advice. Although strictly separate in the legal sense, it could not be said that an Aboriginal Land Trust is able, in effect, to act independently of the Land Council concerned. Trusts were established as a means of fulfilling the non-Indigenous requirement for an identifiable title holder to land. This model was chosen because ‘it is in harmony with traditional Aboriginal social organisation’.^[83]

Aboriginal Land Councils

Aboriginal Land Councils are the principal administrative structure for the functioning of the land rights scheme established by the ALRA. They are expected to perform a liaison role between Government, the traditional Aboriginal owners of land and the general public. Councils are funded from consolidated revenue, the allocation being calculated according to the amount of royalties received for mining on Aboriginal land.^[84]

Aboriginal Land Councils are bodies corporate established by the Minister in relation to a particular geographical region of the Northern Territory.^[85] Currently there are two large Land Councils. The Northern Land Council (NLC) represents Indigenous peoples in the northern half of the Northern Territory. The Central Land Council (CLC) represents those in the southern half.^[86] There are also two small Land Councils: the Tiwi Land Council for Bathurst and Melville Islands; and Anindilyakwa Land Council for Groote and Bickerton Islands.

The NLC and the CLC have become major players not just in the Northern Territory struggle for land rights but also in the national campaign. Their relatively independent source of funding has meant that they have been able to challenge the decisions of both the Northern Territory and the Federal Governments legally and politically. They play a more prominent role than purely administering Aboriginal land and the claims process under the ALRA.

The statutory functions of the Land Councils are as follows:

• to ascertain and express the wishes of Aboriginal people living in the Council area in regard to land management and legislative reform;
• to protect the interests of traditional Aboriginal owners and other Aborigines with an interest in Aboriginal land;
• to assist Aborigines to take measures to protect sacred sites in the Council area;
• to consult the traditional Aboriginal owners of Aboriginal land in relation to any proposed use of that land;
• to negotiate with persons wishing to obtain an interest in Aboriginal land, including land under claim;
• to obtain and pay for legal advice for Aboriginal people claiming land under the ALRA; and
• to supervise and provide administrative assistance for Aboriginal Land Trusts.^[87]

In performing their functions Land Councils must consult with the traditional Aboriginal owners and any other interested Aboriginal people and must not take any action in connection with land held by an Aboriginal Land Trust without the consent of the traditional Aboriginal owners. They must also have given other affected Aboriginal communities the opportunity to express their views.^[88] Where the traditional Aboriginal owners of an area of land are required to have consented, as a group, to a particular act or thing under the ALRA, the consent shall be taken to have been given if:

(a) in a case where there is a particular process of decision making that, under the Aboriginal tradition of those traditional Aboriginal owners or of the group to which they belong, must be complied with in relation to decisions of that kind — the decision was made in accordance with that process; or
(b) in a case where there is no such process of decision making — the decision was made in accordance with a process of decision making agreed to and adopted by those traditional Aboriginal owners in relation to the decision or in relation to decisions of that kind.^[89]

Land Councils must conciliate disputes over land between Aboriginal people, Land Trusts, Aboriginal Councils and associations in its area.^[90]

In other respects Land Councils resemble federal statutory authorities. They have the power to do all things necessary in connection with the performance of their functions, including employing staff and engaging advisers.^[91] They must prepare estimates for the approval of the Minister in each financial year^[92] and seek the Minister’s consent for any borrowings.^[93] Land Councils must maintain bank accounts,^[94] and keep proper accounts and records of their transactions and affairs.^[95] Annual reports must be provided to the Minister which include the audited financial statements in respect of that reporting year.^[96] In addition, Land Councils can be audited by the federal Auditor-General.^[97]

Membership of a Land Council is in accordance with a method approved by the Minister, the only requirement being that the members be Aboriginal people living in the area of the Council.^[98] The members of a Land Council may elect a Chairperson and a Deputy Chairperson at a Council meeting.^[99] They hold office for three years.^[100] In the 1997-98 financial year, the CLC had 83 members and the NLC had 78.^[101]

The larger Land Councils are based in the major administrative capitals, the NLC in Darwin and the CLC in Alice Springs. They also operate at a regional level.^[102] This reflects the make-up of the members of the Land Councils who are appointed to represent regions within the Land Councils’ areas. Members are typically nominated by communities for their traditional seniority or ability to liaise with the non-Aboriginal world rather than by direct election. Such membership reflects a more traditional basis of authority rather than a Western democratic model.

Land Council decisions are made by majority vote.^[103] A Land Council may make rules for the convening and conduct of meetings with the approval of the Minister.^[104] The ALRA contains useful mechanisms for the administration of less contentious matters: a Land Council can delegate certain of its powers to the Chairperson or a specially formed committee.^[105]

Reviews of the ALRA

The ALRA was first reviewed after being in operation for only four years.^[106] Western Australian barrister, Barry Rowland QC was asked to examine representations on the practical application of the Act and to consult with affected groups. The terms of reference specifically stated that the examination was to be ‘without detriment to the basic principles of the Act’.^[107] Rowland focussed on technical difficulties with the legislation, both actual and anticipated, particularly those arising from the mining provisions.

In September 1983, the Federal Government commissioned a review of the ALRA which had been in operation for 7 years. Justice Toohey, then of the Federal Court, reported in December of that year. His recommendations included several aimed at reforming the structure and organisation of Land Councils. Justice Toohey suggested that Land Councils consider representation in terms of traditional estate boundaries as well as in terms of communities.^[108] He also recommended that they authorise the establishment of regional committees with broad decision making powers including identifying traditional owners.^[109] The latter reform has been implemented.

In August 1998, a review of the ALRA by Darwin Barrister John Reeves QC was tabled in the federal Parliament.^[110] The Reeves Report recommended numerous changes to the Act and other legislation affecting land rights in the Northern Territory. One of the main proposed Reeves reforms is the replacement of the existing four Land Councils by 18 regional land councils overseen by a new Northern Territory Aboriginal Council.^[111] Under the scheme, Aboriginal people who have a traditional affiliation to an area of land within a region or who are permanent residents of the region would be entitled to be members of that region’s council.

Under the proposed reforms, each regional council would have a board of directors, chief executive officer and staff. Regional councils would undertake all the functions currently performed by the Land Councils except: completing the land claims process; sacred sites assistance; and assistance with commercial ventures. In addition, each regional council would:

• hold Aboriginal land in its region on trust for the benefit of all Aboriginal people who are entitled by tradition to use that land;
• regulate the use of Aboriginal land, for example, by determining applications to mine;
• assist in the social and economic advancement of Aboriginal people living in the region; and
• co-ordinate the implementation of social and economic development programs administered by the proposed Northern Territory Aboriginal Council, ATSIC, the Commonwealth and the Northern Territory Government.^[112]

Reeves envisages the Northern Territory Aboriginal Council as a co-ordinating body, overseeing the activities of regional councils and funding their administrative costs. It would also complete outstanding land claims, act as the sole native title representative body in the Northern Territory and receive and distribute mining royalties (including administering the Aboriginal Benefits Reserve).^[113]

Governance of Aboriginal land will be centralised in a superordinate non-traditional institution, the [Northern Territory Aboriginal Council].^[114]

Reeves’ recommendations have been subject to considerable scrutiny and criticism by many in the Indigenous and non-Indigenous communities.^[115] In particular, concern has been raised about the potential for a reduction in current levels of autonomy and for disturbance to traditional Aboriginal authority systems:

The recent Review of the Aboriginal Land Rights act features recommendations that, if implemented, will totally transform the nature of Aboriginal Land Rights in the NT. Control of Aboriginal land by identified traditional owners will end and the two large mainland Land Councils will be abolished. Instead a system of administration effectively superintended by the relevant NT Minister would be instituted.^[116]

In December 1998, the Minister for Aboriginal and Torres Strait Islander Affairs referred the Reeves Report to the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs for response within six months.

Excisions

Legislation was enacted by the Northern Territory in 1989 to allow certain Aboriginal people to claim small areas of land on pastoral leases.^[117] If an excision claim is successful an enhanced freehold title is granted to the Aboriginal claimants. The freehold is ‘enhanced’ to the extent that there are restrictions on the land’s disposal, on its compulsory acquisition and on mining on the land.^[118] Only a small number of excisions have been granted and these generally cover no more than 1% of the total area of the lease.^[119] Excised lands are described as Aboriginal community living areas in the legislation.

The excisions legislation, now included in Part 8 of the Pastoral Land Act 1992 (NT), was a result of a ‘Memorandum of Understanding’ between the then Prime Minister and the Chief Minister of the Northern Territory.^[120] One of the principal terms of the Understanding was that, in return for the enactment by the Northern Territory of appropriate excisions legislation, the Commonwealth would block further land claims to stock routes and reserves under the ALRA.^[121]

Aboriginal people making an application to the Minister for an excision under the Pastoral Land Act 1992 (NT) must prove residence on the pastoral lease or ‘historical residential association’ as well as ‘need’.^[122] The Minister may refer the application to the Community Living Areas Tribunal.^[123] In making its recommendation on the application the Tribunal must take into account matters such as whether the excision will reduce the economic viability of the pastoral lease, whether the applicants already have land (including under the ALRA) and whether they have adequate housing.^[124] It is clear from the legislation that the Northern Territory Parliament wished to distinguish the excisions legislation from the ALRA and its focus on traditional Aboriginal ownership of land.^[125]

The Minister makes the final decision on the application. If it is successful, title is granted to the land holding body. Such bodies are usually associations established under either the Aboriginal Councils and Associations Act 1976 (Cth) or the Associations Incorporation Act 1978 (NT).^[126]

The CLC has recently expressed its dissatisfaction with the excision provisions of the Pastoral Land Act 1992 (Cth):

[T]he legislation is seriously flawed as it contains restrictive eligibility criteria that mean relatively few Aboriginal people dispossessed by the pastoral industry can benefit.^[127]

The majority of applicants who fit the historical residential association criteria are now elderly. Many of those who fit the ‘ordinarily resident’ criteria do so because they have worked on pastoral leases away from their traditional country, yet under Aboriginal law they are not entitled to live permanently on these pastoral leases. Applicants who live with relatives, often in overcrowded accommodation, in settlements, towns or communities, are subjected to an exhaustive process of having to prove so-called need.^[128]

National Parks

Introduction

Both Kakadu National Park and Uluru-Kata Tjuta (Ayers Rock-Mount Olga) National Park are Aboriginal land managed by the Australian National Parks and Wildlife Service under lease-back from the Aboriginal land owners. The provisions of the National Parks and Wildlife Conservation Act 1975 (Cth) apply to the Parks which are co-managed by boards of management.^[129] There are also several national parks in the Northern Territory that are co-managed by government agencies and the traditional Aboriginal owners pursuant to a statutory regime.^[130] The Project team is interested in whether this latter group can provide insight into governance structures for Indigenous communities living in the Northern Territory.

Cobourg Peninsula Sanctuary

Cobourg Peninsula Aboriginal Land, Sanctuary and Marine Park Act 1987 (NT) establishes the Cobourg Peninsula Sanctuary Land Trust, a statutory body corporate.^[131] Title in the Cobourg Peninsula Sanctuary is vested in the Land Trust in trust for ‘the group’.^[132] The NLC determines which Aborigines are members of the group.^[133] The members are entitled to use and occupy the Sanctuary and Cobourg Marine Park.^[134] Their title is inalienable.^[135] The Land Trust consists of a chairperson and three other members appointed by the NLC.^[136]

The Sanctuary is established in perpetuity as a national park ‘for the benefit and enjoyment of all people’ and must be used in accordance with any plan of management in force.^[137]The NT Government pays an annual fee to the NLC for the use of the Sanctuary as a national park.^[138] The NLC forwards this money to the group.^[139]
The Sanctuary is partly administered by the Cobourg Peninsula Sanctuary and Marine Park Board.^[140] Of the 8 Board members appointed by the Minister, 4 are nominated by the NLC from the members of the group.^[141] The Chairperson and Deputy Chairperson of the Board must be elected from the NLC nominees.^[142] The Board’s statutory functions include:

• preparing plans of management for the Sanctuary and/or Marine Park;
• protecting and enforcing the right of the group to use and occupy the Sanctuary and Marine Park;
• determining access rights for persons who are not members of the group;
• advising the Minister on mineral exploration; and
• ensuring adequate protection of sites of spiritual or other importance in Aboriginal tradition.^[143]

The Parks and Wildlife Commission of the Northern Territory has statutory responsibility for preparing plans of management and also has ‘the control and management of the Sanctuary and Marine Park’.^[144] Any difference of opinion between the Board and the Commission, is resolved by a resolution of the Board.^[145] Under the legislation, plans of management are ‘detailed description[s] of the manner in which it is proposed that the Sanctuary and/or Marine Park shall be managed’.^[146] When preparing a plan, the Commission must consider a number of factors including:

• the protection of areas and things of significance to Aborigines;
• any limitations imposed by Aboriginal tradition on the use of any part of the sanctuary;
• the conservation and management of native flora and fauna; and
• the employment and training of Aborigines.^[147]

Before it becomes operative, a plan of management must be approved by the NLC.^[148] Plans are subject to disallowance by the Parliament.^[149]

Nitmiluk National Park

Statutory arrangements similar to those for Cobourg Peninsula Sanctuary apply to Aboriginal land in Nitmiluk (Katherine Gorge) National Park although they are predicated on vesting of title under the ALRA. The Jawoyn Aboriginal Land Trust leases land to the Conservation Land Corporation as a national park ‘for the benefit and enjoyment of all people’.^[150] The Aboriginal traditional owners of the Park and Aborigines who have traditionally used the land are entitled to use and occupy it.^[151]

The Nitmiluk (Katherine Gorge) National Park Board, a statutory body corporate, has 13 members appointed by the Minister including 8 traditional Aboriginal owners of the Park nominated by the Jawoyn Association Aboriginal Corporation.^[152] The Board has a number of functions including preparing plans of management for the Park, protecting the rights of Aborigines entitled to use and occupy the Park and ensuring adequate protection of sites of spiritual importance.^[153] The Parks and Wildlife Commission of the Northern Territory is responsible for facilitating the preparation of plans of management and managing the Park in accordance with such plans.^[154] It pays an annual rent of $100 000 and 50% of all revenue to the NLC.^[155] Under the terms of the current 99 year lease, the Conservation Land Corporation and the Parks and Wildlife Commission must consult regularly with the Jawoyn Association regarding the control and management of the Park.^[156]

The factors that must be taken into account when a plan of management is prepared are similar to those stipulated in the Cobourg Peninsula Sanctuary legislation.^[157] The written consent of the Jawoyn Association Aboriginal Corporation is required before a plan can be forwarded to the Minister for tabling in the Parliament.^[158] However, the process for developing the plan is slightly different. Under the Nitmiluk (Katherine Gorge) National Park Act 1989 (NT), the Board must advertise in the Government Gazette for representations on draft plans of management from interested members of the public.^[159]

Another difference between the Acts is the procedure if a plan of management is disallowed by Parliament. Where the NT Legislative Assembly disallows a plan twice under the Nitmiluk (Katherine Gorge) National Park Act 1989 (NT), the Minister can forward it to either an Aboriginal Land Commissioner (appointed under the ALRA) or a 3 person panel appointed under the legislation for advice.^[160]

Park revenue received by the Board or the Conservation Land Corporation must be paid to the Parks and Wildlife Commission which holds it on behalf of the Nitmiluk (Katherine Gorge) National Park Board.^[161] The Chief Minister of the Northern Territory has statutory power to give the Board general written directions on how to perform certain of its functions and exercise its powers.^[162] This power was not conferred on the Minister in regard to Cobourg Peninsula Sanctuary.

SELF-GOVERNMENT

Aboriginal Land Rights Act

Access

Aboriginal people who have a traditional right to enter, use and occupy Aboriginal land are entitled under section 71 of the ALRA to enter, use and occupy that land. The right is subject only to the proviso that they do interfere with the use or enjoyment of an estate or interest in land granted to a non-Aboriginal person, for example, to the Department of Health for a health clinic.^[163] Other members of the general community must have a legal right to enter Aboriginal land, otherwise they will have committed an offence.^[164]

The Northern Territory has legislated to provide a permit system for entry to Aboriginal land. Permits are issued by the Land Council responsible for the area, traditional land owners and by the Minister (to government employees) under the Aboriginal Land Act 1978 (NT).^[165] There is also provision for the Chief Minister to close waters within 2 kilometres of Aboriginal land.^[166] Entry for people other than those entitled by Aboriginal tradition to enter and use those closed areas is by permit.^[167]

The Reeves Report recommended the removal of the requirement for permits to enter Aboriginal land on the basis that the current system is too administratively complex and is racially discriminatory.^[168] Reeves also recommended that the ALRA be amended to enable the NT Government compulsorily to acquire an interest (other than a freehold interest) in Aboriginal land for a public purpose.^[169]

Mining

The traditional Aboriginal owners of land have extensive control over mining on their land. This continues to be controversial with the resource development sector. In the second report of the Aboriginal Land Rights Commission, Commissioner Woodward stated:

I believe that to deny Aborigines the right to prevent mining on their land is to deny the reality of their land rights.^[170]

Generally, an exploration licence for mining may not be granted over Aboriginal land without the consent of the Minister and the Land Council.^[171] However, the Governor-General can declare that the national interest requires that a licence be granted.^[172] Prospective miners must submit a comprehensive proposal to the Land Council which then forms the basis for consultations with the traditional Aboriginal owners. ^[173] The Land Council must consult both with the traditional Aboriginal owners of the land in question and with any Aboriginal communities that may be affected by the proposal. A Land Council may not consent to the grant of a licence unless:

(a) it is satisfied that the traditional Aboriginal owners (if any) of the land understand the nature and purpose of the terms and conditions and, as a group, consent to them;

(b) it is satisfied that the terms and conditions are reasonable; and

(c) it has agreed with the miner upon the terms and conditions.^[174]

A miner wishing to proceed from exploration to mining must submit a further comprehensive proposal to the Land Council which includes particulars for mining activities, access, water and timber requirements, proposals for rehabilitation, infrastructure requirements and payment.^[175] Mining cannot occur without an agreement based on such a proposal and the Minister’s consent.^[176] Any such agreement may include compensation for damage or disturbance although not for the value of the minerals extracted.^[177]

The Reeves Report recommended that the power to veto mining be transferred to regional councils subject to the existing national interest provisions. Under the proposed regime, regional councils would be empowered to negotiate legally enforceable agreements directly with mining companies. In addition, the ALRA and the Mining Act 1980 (NT) would be amended to provide for licences to enter Aboriginal land for specific periods to conduct reconnaissance exploration.^[178] This would considerably reduce traditional Aboriginal owners’ control over exploration on their land.

An amount equivalent to the royalties received by the Commonwealth or the Northern Territory in relation to mining on Aboriginal land is paid into the Aboriginal Benefit Reserve (formerly the Aboriginals Benefit Trust Account).^[179] That money is distributed according to a formula in the ALRA to Land Councils for their administrative costs, to the traditional Aboriginal owners for the land on which the mining has taken place and to affected Aboriginal communities.^[180]

Decision making processes

Neither Land Trusts nor Land Councils have the power to make by-laws.^[181] Under section 25 of the ALRA, Land Councils have an obligation to attempt to conciliate any dispute about land between Aborigines, Land Trusts, Aboriginal councils or incorporated Aboriginal associations. A court can adjourn proceedings at any time to enable a Land Council to attempt conciliation in a land dispute.^[182]

Excisions

Access

Aboriginal land excised from a pastoral lease is freehold and, as such, the general law of the Northern Territory applies to it. The Aboriginal association that holds the land has the right to exclusive possession and is entitled to the protection of the common law against trespass.

Mining

The grant of a community living area is subject to any mining tenement or exploration licence under the Mining Act 1980 (NT).^[183] However, once the excision has been made, no further mining interest may be granted within one kilometre of a point on the

land designated by the relevant Aboriginal association.^[184] Outside this area Aboriginal community members must rely on the general protections provided by the Mining Act 1980 (NT).

Decision making processes

Many of the Aboriginal associations that have title to a community living area are incorporated under the Associations Incorporation Act 1978 (NT). This legislation gives communities considerable flexibility in shaping the operation and membership of each body. ^[185] The usual controls over finances are included, as are provisions for winding up.^[186]

Once incorporated an association is a body corporate with perpetual succession which may acquire, hold and dispose of real or personal property (subject to certain restrictions) and sue and be sued in its own name.^[187] There is no requirement for the association to have an executive committee although there must be some person or persons who have the ‘management of the association’.^[188] There are no requirements concerning meetings of the association. An association must file an audited financial statement with the Registrar annually.^[189]

While Aboriginal communities are free to determine the internal structure of their association, the Registrar and the Minister have broad oversight powers. Either may investigate the affairs of an association if he or she has information that ‘calls for an investigation’.^[190] On the basis of such a report the Registrar may apply to the Supreme Court for the appointment of a judicial manager.^[191] Further, the Registrar may, after certain requirements have been met, dissolve an association that is not ‘carrying out its objects’ or is not in operation.^[192]

Associations that hold real property are subject to particular constraints under the Associations Incorporation Act 1978 (NT) . Special purpose leases and ‘prescribed property’, which includes property purchased with funding from the Northern

Territory or Federal Governments, may only be transferred with the consent of the Minister.^[193] Special purpose leases have been used in the past to grant Aboriginal people small areas of land within town boundaries and on pastoral leases.^[194]

Land that has been granted to an Aboriginal as a community living area under the Pastoral Land Act 1992 (NT) is subject to even tighter control. The Minister may not give his or her permission to transfer of the land.^[195] The only way in which such land may be transferred is if it has been abandoned for a period of five years.^[196]

National parks

Cobourg Peninsula Sanctuary

The Aboriginal owners of Cobourg Peninsula Sanctuary are able to control access to their lands to some extent through their representation on the Cobourg Peninsula Sanctuary Board. However, the Board’s by-law making power in this respect is balanced by the obligation to ensure the Sanctuary is accessible as a national park.

The NLC has considerable control over Cobourg Sanctuary lands, through its role in determining membership of the group for whom the land is held in trust, appointing members to the Land Trust and nominating members of the Cobourg Peninsula Sanctuary Board. The NLC represents many Aborigines who have no connection with the Cobourg lands so this could be seen as a fairly indirect means of self-government for the traditional owners of the Sanctuary. However, the legislation requires the NLC to consult with the traditional owners and get majority approval before consenting to any actions in Cobourg Sanctuary.^[197] The NLC has lodged an ALRA claim over the Cobourg Peninsula Region.^[198]

Mineral exploration and recovery can only be conducted on the Sanctuary in accordance with the plan of management.^[199] Miners must pay fees to the NLC.^[200] These must be paid out by the NLC as if they were royalty payments under the ALRA.^[201]

The Cobourg Peninsula Sanctuary Board has a broad by-law making power encompassing matters such as fishing, use of firearms, water pollution, restrictions on access and entrance fees.^[202]

Nitmiluk National Park

The traditional owners and users of Nitmiluk National Park are entitled to continue occupying it and the Jawoyn Association has a majority on the Park Board. However, the Chief Minister’s ability to direct the Board on the exercise of its functions could undermine this level of control. The NLC has lodged an ALRA claim over the Katherine Region.^[203]

As the Nitmiluk National Park land is vested in the Jawoyn Association under the ALRA, the provisions of that Act in relation to mining apply.^[204]

The Nitmiluk National Park Board has the same by-law making power as the Cobourg Peninsula Sanctuary and Marine Park Board.^[205] In addition, the legislation makes specific mention of the power to make by-laws regulating the consumption of alcohol in the Park.^[206]

Indigenous local government

There are no provisions for Land Councils or Land Trusts to perform local government functions under the ALRA. Where Aboriginal communities fall outside the boundaries of a local government municipality those functions are provided by either an association or a community government council. Associations are incorporated under the Associations Incorporation Act 1978 (NT) or the Aboriginal Councils and Associations Act 1976 (Cth).^[207] They are provided with Northern Territory Government funding for local government functions but do not have the power to make by-laws or levy rates.

Community government councils are constituted under the Local Government Act 1993 (NT).^[208] They were not designed specifically for Indigenous governance but the structure is used most frequently by Aboriginal communities as they are commonly located in remote areas. There are few differences between ‘mainstream’ local government councils and community government councils except size and location. They have the same functions and powers^[209] including the making of by-laws and levying of rates, and are subject to the same regulatory requirements.^[210]
In terms of governance powers, the main difference between local government councils and community government councils is that the latter are subject to community government schemes.^[211] Schemes are a type of management and development plan. A draft scheme may only be proposed by the Minister after an application has been received from 10 members of the community and a meeting has been held to discuss the application with the community .^[212] There must be majority community support for the scheme and the proposed council functions before the scheme can be approved by the Chief Minister.^[213]

Community government schemes may encompass such matters as the eligibility of persons to be members and to vote, the conduct of elections and procedures for the calling and conduct of meetings.^[214] A scheme may also contain provisions about commercial development, health, education or training, housing, roads and sewerage within the community government council’s area.^[215] The functions of a community government council are ultimately determined by the scheme. In the event of a conflict between a scheme and the Local Government Act 1993 (NT), the former prevails.^[216]

While there are no special provisions in the Local Government Act 1993 (NT) regarding Aborigines, community government schemes can provide Aboriginal community members with scope to affect the structure and functions of their community government council. Such ‘flexibility’ needs to be weighed against the powers of the Minister and the Chief Minister with regard to the approval of the scheme. Whereas incorporation as a community government council brings the community squarely within the purview of the Minister and the relevant government department, incorporation under the Associations Incorporation Act 1978 (NT) or the Aboriginal Councils and Associations Act 1976 (Cth) provides some degree of autonomy from the Territory Government.

Martin Mowbray has suggested that the degree of pressure exerted on Aboriginal communities by the Northern Territory Government to choose the community council model amounts to coercion.^[217] He argues that the Local Government Act 1993 (NT) is fundamentally inconsistent with the principles of consultation and accountability which underlie the land rights regime:

Overall, the NT government has used its Local Government Act to undermine the Land Rights Act and by-pass Land Councils.^[218]

COMMENTS AND DISCUSSION POINTS

The structure of Aboriginal Land Trusts together with the powers and responsibilities of Land Councils provides a communal form of ownership and decision making in the Northern Territory. The principal characteristic of the land holding and management structure of the ALRA regime is the diffuse nature of control. It is difficult for individuals to control decisions about land management.

When combined with the other means through which Indigenous people can participate in the management of traditional lands in the Northern Territory ¾ Aboriginal associations, community government councils and national park boards ¾ the governance structures under the ALRA provide the most effective means of autonomy of any Australian jurisdiction. However, the administrative structures under the Act were largely based on non-Indigenous governance paradigms. Tension remains between non-Indigenous bureaucratic requirements and customary Indigenous decision making processes.

• Does the land council governance model established by the ALRA allow adequate scope for Indigenous modes of decision making in the administration of community lands?

• Are the Reeves recommendations concerning Land Councils’ structures and powers consistent with the goal of Indigenous self-governance?

• Does the Pastoral Land Act 1992 (NT) give Indigenous peoples resident in community living areas scope for effective self-governance?

• Do Indigenous communities in the Northern Territory have adequate control of traditional lands in national parks?

• Are community government councils a means by which Indigenous peoples in the Northern Territory can achieve efficient service delivery and effective self-government in accordance with Indigenous processes?

3. SOUTH AUSTRALIA

LAND-HOLDING AND GOVERNANCE STRUCTURES

Aboriginal Lands Trust lands

South Australia was the first Australian jurisdiction to pass legislation allowing for the transfer of reserve lands to Aboriginal people. The Aboriginal Lands Trust Act 1966 (SA) established a land trust to act on behalf of the traditional owners of land covered by the legislation.^[219] The Governor can transfer any Crown land reserved for Aborigines to the Trust. If an Aboriginal Council has already been established for the area it must consent before any such transfer can be made.^[220] There is no provision in the Aboriginal Lands Trust Act 1966 (SA) for additional lands to be reserved to the Trust. However, as a body corporate the Trust can acquire property.^[221]

The Aboriginal Lands Trust consists of a Chairperson and two other members appointed by the Governor. Additional members can be appointed on the recommendation of Aboriginal Councils, established under the regulations to the Community Welfare Act 1972 (SA), or of communities residing on Trust lands. All members must be Aboriginal.^[2] As well as its function as a land-holding body, the Trust is increasingly involved in enterprise development and land management.^[222]

There is no claims procedure under South Australian land rights legislation. The Aboriginal Lands Trust Act 1966 (SA) was reviewed between 1988 and 1990. The confidential report submitted to the Minister for Aboriginal Affairs was considered by the South Australian Cabinet but has never been publicly released.

Anangu Pitjantjatjara and Maralinga Tjarutja lands

In 1976, the Pitjantjatjara, Yankunytjatjara and Ngaanyatjara peoples formed the Pitjantjatjara Council as a vehicle for making claims to their traditional lands.^[223] In response to intense lobbying by the Council, in 1977 the Premier of South Australia, the late Don Dunstan, appointed a Working Party to examine the feasibility of establishing a separate Pitjantjatjara lands trust to cover the North West Reserve, Everard Park, Indulkana, Ernabella and Fregon. The terms of reference specifically stated that any proposals arising from the inquiry were not to ‘contravene the wishes of any of the Pitjantjatjara communities’.^[224]

When the Working Party reported in June 1978 it recommended that legislation be enacted transferring title to the lands in the north-west of South Australia to the Pitjantjatjara.^[225] The Working Party went on to make a series of detailed recommendations about a variety of subjects including access to and mining on Pitjantjatjara lands.^[226] Importantly, they stated that the ‘Pitjantjatjara peoples should have full powers of management of lands’.^[227]

In November 1978, the Pitjantjatjara Land Rights Bill (SA) was introduced into the South Australian House of Assembly. It was referred to a select committee. Before the committee could report, Premier Dunstan retired from politics suddenly.^[228] When the select committee reported in May 1979 it recommended only minor changes to the draft bill.^[229] Despite this a final vote on the Bill was never taken. The Tonkin Liberal Government came to office in September 1979. Again, the Pitjantjatjara peoples campaigned fiercely for land rights.^[230] On 19 March 1981, the Pitjantjatjara Land Rights Act 1981 (SA) became law. It gave land rights to some Pitjantjatjara peoples although the majority of the lands of the Western Desert people were not covered by the legislation.^[231]

The Pitjantjatjara Land Rights Act 1981 (SA) vests ownership of a large former reserve in a corporate body, Anangu Pitjantjatjara, comprising all the traditional owners in the area.^[232] A traditional owner is defined in the legislation as

an Aboriginal person who has, in accordance with Aboriginal tradition, social, economic and spiritual affiliations with, and responsibilities for, the lands or any part of them.^[233]

The legislation was the first negotiated land rights settlement in Australia.^[234]

Anangu Pitjantjatjara has a statutory responsibility to protect the interests of traditional owners and to obtain their consent for development proposals.^[235] The daily administration of the lands is undertaken by an Executive Board of the corporate body which must act on its resolutions.^[236] The freehold title granted by the Act is inalienable.^[237]

The Maralinga Tjarutja Land Rights Act 1984 (SA) establishes a similar scheme for land directly south of the Pitjantjatjara lands, formerly used for atomic testing by the British Government. The relevant body corporate is Maralinga Tjarutja. The lands are administered by the Council of Maralinga Tjarutja which consists of all persons ‘who are for the time being leaders of the traditional owners’.^[238] In conducting its business the Council must consult with the traditional owners and have regard to their customs.^[239]

Together the Pitjantjatjara Land Rights Act 1981 (SA) and the Maralinga Tjarutja Land Rights Act 1984 (SA) have resulted in the transfer of 18% of land in South Australia to Indigenous owners.^[240]

There is a Pitjantjatjara Lands Parliamentary Committee and a Maralinga Lands Parliamentary Committee.^[241] These Committees are responsible for monitoring the operation of the relevant Act and the way the lands are managed. Each prepares an annual report for the Parliament.

SELF-GOVERNMENT

Aboriginal Lands Trust lands

Alienation and access

The Aboriginal Lands Trust can dispose of most of its lands with ministerial consent and subject to authorisation by both Houses of Parliament.^[242] The Trust has followed a policy of leasing its land to Aboriginal people where possible and allowing them to make the land management decisions.^[243] There are no provisions in the Aboriginal Lands Trust Act 1966 (SA) that empower the Trust to restrict access to its lands.

Mining

When reserve land is transferred to the Aboriginal Lands Trust mineral resources remain vested in the Crown.^[244] However, the rights of entry, prospecting, exploration and mining conferred by the Mining Act 1971 (SA) and the Petroleum Act 1940 (SA) only apply to Trust lands by proclamation of the Governor.^[245] The proclamation can include conditions on and modifications of those rights.^[246] There is provision for mining royalties paid to the Crown to be transferred to the Trust from general revenue.^[247] The Trust has no statutory power over the conditions on which mining activities can proceed.

Decision making processes

There are no general provisions in the Aboriginal Lands Trust Act 1966 (SA) relating to by-laws or decision making on Trust lands. However, the Act gives the Trust a special role in regard to alcohol. It can make a recommendation to the Governor that he or she declare, by proclamation, part of Trust lands to be a public place for the purposes of the Public Intoxication Act 1984 (SA).^[248] The Trust can only recommend a proclamation if it has first been proposed by the Aboriginal communities that would be affected by it.^[249] A proclamation of this nature can empower an authorised officer ‘appointed with the concurrence’ of the Trust to search premises or vehicles for alcohol and confiscate and dispose of it.^[250] The Governor may only make, vary or revoke regulations in regard to alcohol on the recommendation of an Aboriginal community.^[251]

The Aboriginal Lands Trust Act 1966 (SA) establishes an Aboriginal Lands Business Advisory Panel to assist Aboriginal persons and communities residing on Trust lands to establish and manage businesses and community enterprises.^[252] The Panel consists of seven members including the chairperson of the Aboriginal Lands Trust. Five members are nominated from the business sector by the Minister after consultation with the Aboriginal Lands Trust Parliamentary Committee.^[253]

Anangu Pitjantjatjara and Maralinga Tjarutja lands

Access

Those other than Pitjantjatjara or traditional Maralinga owners must have a permit to enter the lands of Anangu Pitjantjatjara or Maralinga Tjarutja.^[254] Conditional entry can be granted.^[255] Applications for access must be made in writing to either the Pitjantjatjara Executive Board or the Council of Maralinga Tjarutja.^[256]

Maralinga Tjarutja has less control over access to its lands than Anangu Pitjantjatjara. An Aboriginal person who is not a traditional owner can enter Maralinga lands without a permit if invited by a traditional owner.^[257] In addition, the public is entitled to use certain roads to cross the lands without obtaining permission although reasonable notice must be given.^[258]

Mining

Pitjantjatjara Land Rights Act 1981 (SA) and the Maralinga Tjarutja Land Rights Act 1984 (SA) do not vest ownership of minerals or petroleum in the communities.^[259] Despite this, Anangu Pitjantjatjara and Maralinga Tjarutja have some control over mining on their lands.^[260] A mining tenement may only be granted to a person who has their permission to enter the lands for that purpose.^[261] If Anangu Pitjantjatjara or Maralinga Tjarutja refuses an application, imposes conditions unacceptable to the miner or takes longer than 120 days to make a decision, the miner can request arbitration.^[262] Where the application relates to Maralinga lands, an attempt must be made to resolve the matter by conciliation prior to arbitration.^[263] The arbitrator has to

take into account a number of factors including the effect on the Pitjantjatjara or Maralinga people and the preservation of the environment.^[264] The arbitrator is a judicial officer or experienced legal practitioner, depending on the nature of the application.^[265]

The Maralinga Tjarutja Land Rights Act 1984 (SA) has additional provisions concerning mining on land that incorporates sacred sites. Section 16 empowers Maralinga Tjarutja to keep a confidential register of sacred sites on its lands. The register can contain sites for which particular boundaries have been identified and those where the boundaries have not yet been determined.^[266] When an application is made for a mining tenement on Maralinga lands, the Minister of Mines and Energy and the Minister of Aboriginal Affairs must consult with Maralinga Tjarutja to determine whether the land contains a sacred site listed in the register.^[267] Mining tenements for land including sacred sites must make necessary provision for the protection of the site, by excluding land from the tenement or imposing conditions on it.^[268] Maralinga Tjarutja must consent to any such conditions.^[269]

Mining royalties are divided between the South Australian Government, Anangu Pitjantjatjara or Maralinga Tjarutja and a fund maintained by the Minister of Aboriginal Affairs to benefit South Australian Aborigines generally.^[270] Apart from their share of statutory royalties, there is provision for Anangu Pitjantjatjara and Maralinga Tjarutja to receive fair compensation for the disturbance to their lands and way of life that is likely to arise from a mining tenement.^[271] Maralinga Tjarutja is limited to receiving amounts payable as compensation under the Mining Act 1971 (SA) or the Petroleum Act 1940 (SA).^[272]

Decision making processes

Any Pitjantjatjara or member of the Maralinga people who does not agree with a decision of Anangu Pitjantjatjara or Maralinga Tjarutja is entitled to appeal to the Tribal Assessor appointed by the Minister of Aboriginal Affairs.^[273] Proceedings before the Assessor are conducted on the lands with minimal formality and are not

subject to the rules of evidence.^[274] However, directions made by the Assessor are enforceable by an order of the Local Court.^[275]

Anangu Pitjantjatjara has the power to make by-laws in relation to alcohol, petrol sniffing, gambling and any other matters prescribed by regulation.^[276] By-laws are subject to disallowance by the Parliament.^[277] Maralinga Tjarutja does not have this power although it can make recommendations to the Governor regarding regulations to restrict the supply and consumption of alcohol on its lands.^[278]

Pitjantjatjara and Maralinga lands do not lie within a local governing body area for the purposes of federal or South Australian legislation, thus no municipal council has jurisdiction over the communities. A 1994 local government project conducted by Anangu Pitjantjatjara recommended against the creation of a new local government body for Pitjantjatjara lands.^[279]

The imposition of bureaucratic requirements is of course necessary to ensure accountability. However there has to be some limit on how many different systems of accountability the communities are expected to comply with at one time.^[280]

COMMENTS AND DISCUSSION POINTS

Indigenous communities living on Aboriginal Lands Trust land in South Australia have little control over their lands. By contrast the Pitjantjatjara and Maralinga communities have considerable autonomy.

• Should the Aboriginal Lands Trust Act 1966 (SA) be amended to allow greater scope for Indigenous self-governance on Trust lands? Should the composition of the Trust be altered to accommodate Indigenous laws, structures and processes more effectively?

• Do the Maralinga Tjarutja Land Rights Act 1984 (SA) and Pitjantjatjara Land Rights Act 1981 (SA) provide a basis for effective self-governance?

• Do the Maralinga Tjarutja Land Rights Act 1984 (SA) and Pitjantjatjara Land Rights Act 1981 (SA) allow adequate scope for Indigenous modes of decision making in administrative structures?

4. VICTORIA

LAND-HOLDING AND GOVERNANCE STRUCTURES

Aboriginal Lands Acts

There is no formal claims procedure for land rights in Victoria.^[281] The small amount of Aboriginal land is governed by six acts.

The Aboriginal Lands Act 1970 (Vic) returned reserves at Lake Tyers and Framlingham to Aboriginal ownership.^[282] The legislation establishes separate trusts for each of the former reserves which are granted as freehold estates.^[283] The Trusts have power to develop the land and conduct any business on it.^[284] Land can only be disposed of by unanimous resolution of the relevant Trust.^[285] Each of the members of the bodies corporate that constitute the Trusts are entitled to shares that are transferable subject to certain conditions.^[286] The Trusts are administered by elected committees of management.^[287]

The Aboriginal Lands Act 1991 (Vic) revokes the reservation of three missions^[288] and authorises the granting of that land to certain Aboriginal organisations.^[289] These grants of inalienable freehold are subject to the condition that the land must be used for Aboriginal cultural and burial purposes.^[290]

Lake Condah and Framlingham Forest

In the mid 1980s the Cain Labor Government repeatedly tried to pass limited land rights and cultural heritage legislation but was blocked by the Legislative Council in which the Opposition parties had the majority.^[291] As a means of circumventing this deadlock, the Victorian Government requested that the Commonwealth pass similar

legislation.^[292] This led to the Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cth) which vests ownership of the respective areas in Aboriginal Corporations.^[293] Half of a square kilometre of land at Lake Condah is vested in the Kerrup-Jmara Elders’ Aboriginal Corporation and 11 square kilometres of land at Framlingham Forest is vested in the Kirrae Whurrong Aboriginal Corporation.^[294] The Corporations can transfer land to another Aboriginal Corporation but it cannot be otherwise disposed of.^[295]

Northcote

In 1981 an Aboriginal community centre was established in Watt Street in Northcote, a suburb of Melbourne. The land was temporarily reserved by order of the Governor-in-Council.^[296] The following year, the Victorian Parliament passed the Aboriginal Lands (Aborigines’ Advancement League) (Wall Street, Northcote) Act 1982 (Vic) vesting the land in the Aborigines’ Advancement League, which had been acting as the management committee for the Centre.^[297] The grant was made subject to the condition that the land continue to be used for an Aboriginal community centre.^[298]

In 1989, a similar process was followed for land adjacent to the area managed by the League that had been temporarily reserved for public recreation. The Aboriginal Land (Northcote Land) Act 1989 (Vic) vested the land in the League which had since become an incorporated body.^[299] Again, the grant was subject to conditions, this time that the land ‘continue to be used for Aboriginal cultural and recreational purposes’.^[300]

Manatunga

Under the Aboriginal Land (Manatunga Land) Act 1992 (Vic) Crown land at Robinvale in the north-west of the State was transferred to the Murray Valley Aboriginal Cooperative.^[301] The land must be used for Aboriginal cultural purposes.

The Act is brief and makes no mention of the Cooperative’s structure or powers in regard to the land. Presumably these matters are determined by the legislation under which the Cooperative was formed.^[302]

SELF-GOVERNMENT

Aboriginal Lands Acts

There are no specific provisions in the Aboriginal Lands Act 1970 (Vic) concerning resource development, thus the general law applies. In addition, the Framlingham Aboriginal Trust and the Lake Tyers Aboriginal Trust have power to develop any land held by them.^[303] The communities’ ability to self govern is limited to the powers of a proprietor operating through corporate forms and procedures.^[304]

The Aboriginal Lands Act 1991 (Vic) does not cover resource development or detail specific by-law making powers. Again, the general mining laws of Victoria apply.

Lake Condah and Framlingham Forest

Access

The Kerrup-Jmara Elders’ Aboriginal Corporation and the Kirrae Whurrong Aboriginal Corporation can regulate who visits their land through their by-laws. This includes charging visitors for access.^[305] However, with the exception of certain roads, the legislation preserves legal rights of access to Lake Condah and Framlingham Forest prior to vesting in the Corporations.^[306] Persons performing official duties can also enter the lands.^[307]

Mining

Minerals in the land vested in the Kerrup-Jmara Elders’ Aboriginal Corporation and the Kirrae Whurrong Aboriginal Corporation remains the property of the State of Victoria.^[308] However, the Corporations have substantial control over mining activity.^[309] Any applicant for a mining tenement must apply to the relevant Corporation in writing for permission to carry out their operations.^[310] Approval can be conditional.^[311] If the applicant miner objects to the conditions imposed it can apply to

the Minister who must attempt to resolve the matter by conciliation.^[312] Failing this, an arbitrator must be appointed by the applicant and the relevant Corporation to review the Corporation’s decision.^[313] The arbitrator must take a number of factors into account including the effect of mining operations on the ‘lifestyle, culture and traditions of the traditional owners of the land’ and the preservation of the natural environment.^[314]

Each Corporation must compile a confidential register of sites on their lands that are sacred or significant.^[315] When assessing an application for a mining tenement the Minister must consult with the relevant Corporation to ascertain whether the land involved includes any registered sacred or significant site.^[316] The Minister must give the applicant any information about the site he or she considers appropriate.^[317] In addition, the Corporation is deemed to have requested that the Minister make a declaration of preservation for the site under the Aboriginal and Torres Strait Islanders Heritage Protection Act 1984 (Cth).^[318]

The applicant miner must notify the Minister of the terms of any mining agreement that includes payment to the Corporations.^[319] Payment must be reasonable in light of any disturbance or likely disturbance to the land or the traditional owners.^[320] In some circumstances, payment cannot exceed that which would be payable under Victorian resource exploration legislation.^[321]

Decision making processes

The Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cth) provides for a Committee of Elders in each community. The Committees comprise members of the Corporation who are considered ‘by Aboriginal traditional practice’ and by recognition of the relevant community to be elders.^[322] At least half the members of the Kirrae Whurrong Committee of Elders must be residents of Framlingham Reserve.^[323] These committees have considerable powers and responsibilities, including determining who is eligible to be a member of the relevant Corporation and the management of sacred sites on the lands.^[324] The Committees can determine disputes relating to traditional beliefs and customs.^[325] A decision of a Committee is final and binding on all members of the Corporation.^[326]

The Act establishes a trust fund for each Corporation.^[327] Prescribed amounts are paid into the funds from consolidated revenue.^[328] The Minister is also obliged to establish an Aboriginal Advancement Reserve to further the social and economic advancement of Aboriginal people living in Victoria.^[329] Monies in the Corporation funds are distributed by the Minister, half to the relevant Corporation and half to the Advancement Reserve. All of these funds are administered by the Minister.

The Kerrup-Jmara Elders’ Aboriginal Corporation and the Kirrae Whurrong Aboriginal Corporation have full management of their lands and significant community governance powers, including the ability to make by-laws.^[330] The by-law making power extends to a variety of matters including economic enterprise, cultural activities, declaration of sacred sites, cutting and removing of timber, hunting, shooting and fishing, control of visitors and control of motor traffic. The by-laws can create offences for their contravention.^[331] The regulations may provide for certain financial penalties for these offences.^[332] By-laws are subject to disallowance by the Parliament.^[333]

Northcote

The Aboriginal Lands (Aborigines’ Advancement League) (Wall Street, Northcote) Act 1982 (Vic) and the Aboriginal Land (Northcote Land) Act 1989 (Vic) are brief and contain no provisions concerning access to the land. This is not surprising given the restricted purpose for which it can be used. The land can only be mined with the consent of the Aborigines’ Advancement League.^[334] As an incorporated association, the League’s powers are those of a freehold landowner, subject to the statutory condition that its lands be used for Aboriginal cultural and recreational purposes.

Manatunga

The Aboriginal Land (Manatunga Land) Act 1992 (Vic) is brief and contains no provisions regarding access to the land. It specifically states that land granted under it is to be subject to Victorian resource development legislation on the same basis as any other land in the State.^[335] Mineral resources remain the property of the State of Victoria.^[336] The Act makes no provision for decision making by the Murray Valley Aboriginal Cooperative. Again, the general Victorian law of co-operatives applies.

COMMENTS AND DISCUSSION POINTS

Indigenous peoples in Victoria have limited access to and control of community lands, particularly those groups who rely on grants under the Aboriginal Lands Acts of 1970 and 1991 and specific purpose grants, such as those at Northcote and Manatunga. While the communities at Lake Condah and Framlingham Forest own small parcels of land, they have a relatively high degree of control over its management.

• Does the small amount of Aboriginal land in Victoria affect Indigenous peoples’ ability to achieve greater political autonomy?

• Does the Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cth) provide a basis for effective self-governance?

• Do the Committees of Elders established under the Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cth) allow adequate scope for Indigenous modes of decision making in the administration of community lands?

5. NEW SOUTH WALES

LAND-HOLDING AND GOVERNANCE STRUCTURES

Aboriginal Land Rights Act

Introduction

The Aborigines Act 1969 (NSW) was repealed by the Aboriginal Land Rights Act 1983 (NSW) and land formerly vested in the Aboriginal Lands Trust was transferred to the relevant Local Aboriginal Land Council (LALC) or the NSW Aboriginal Land Council.^[337] The Act also introduced a mechanism for making claims to certain Crown land.^[338] In NSW, Aboriginal land claims do not rely on traditional affiliation with the land.^[339] This is appropriate given the extent to which Aboriginal communities in NSW have been alienated from their land by the process of colonisation.^[340] The legacies of this history of alienation are acknowledged in the Preamble to the Act:

Land in the State of New South Wales was traditionally owned and occupied by Aborigines:

Land is of spiritual, social, cultural and economic importance to Aborigines:

It is fitting to acknowledge the importance which land has for Aborigines and the need of Aborigines for land:

It is accepted that as a result of past Government decisions the amount of land set aside for Aborigines has been progressively reduced without compensation.^[341]

Land councils can assert ownership of ‘claimable Crown lands’ as defined in section 36(1) of the legislation. This effectively means they can claim unoccupied Crown land that is not needed for a public purpose. Under the Aboriginal Land Rights Act 1983 (NSW) land is granted as freehold except in the Western Lands Division where claimants can be granted leases in perpetuity outside urban areas.^[342] Grants are subject to any pre-existing native title rights.^[343]

Land Councils

The statutory scheme for administering Aboriginal land in NSW has three tiers: LALCs, Regional Aboriginal Land Councils and the NSW Aboriginal Land Council. For the purposes of this Chapter they will be referred to collectively as Land Councils.

LALCs are bodies corporate that perform a number of important functions in regard to Aboriginal land holding.^[344] There are currently 118 throughout NSW. All adult Aborigines on the Council roll are members.^[345] Functions include acquisition and management of land, consideration of applications to mine on Aboriginal lands and making land rights claims.^[346] LALCs also perform broader community welfare functions, such as upgrading and extending Aboriginal housing and conciliating disputes.^[347] LALCs and the NSW Aboriginal Land Council can purchase or lease land.^[348] Before purchasing land, a LALC must have the written approval of the NSW Aboriginal Land Council.^[349]

Each LALC has an elected executive of Chairperson, Secretary and Treasurer^[350] and is represented by two members at the relevant Regional Aboriginal Land Council.^[351] Regional Aboriginal Land Councils are bodies corporate that act as co-ordinating agencies for certain geographical areas and as a conduit between LALCs and the NSW Aboriginal Land Council.^[352] Their statutory functions include assisting LALCs to prepare claims to Crown land and assisting the NSW Aboriginal Land Council to conciliate disputes between LALCs.^[353]

The NSW Aboriginal Land Council is the peak body representing the interests of Aboriginal land holders and claimants in NSW.^[354] It is a body corporate.^[355] Each elected full time councillor represents a Regional Aboriginal Land Council.^[356] The Council has an important policy and decision making role. For example, it gives advice about the listing of land of cultural significance under the National Parks and Wildlife Act 1974 (NSW).^[357] The Council also performs a number of significant support and financial management functions including the administration of the NSW Aboriginal Land Council Account and the Mining Royalties Account.^[358]

National parks

The National Parks and Wildlife Act 1974 (NSW) contains a number of provisions aimed at safeguarding Aboriginal cultural interests in national parks. For example, the Minister may declare any place that in his or her opinion is of special significance with respect to Aboriginal culture to be an ‘Aboriginal place’.^[359] Such a declaration imposes obligations on the Government to preserve and protect the place. Similarly the Governor can declare an area to be an ‘Aboriginal area’ to preserve and protect Aboriginal relics or places on the land.^[360]Again, the Government has the care and management of these areas.^[361] These declarations are based on decisions by non-Indigenous governments.

There is also scope under the Act for Indigenous peoples to participate in the management of community lands in national parks. Part 4A of the National Parks and Wildlife Act 1974 (NSW) enables LALCs to claim Crown land that would ordinarily be claimable under the Aboriginal Land Rights Act 1983 (NSW) but for the fact that it is needed for the essential public purpose of nature conservation.^[362] The LALC must lease the reserved land back to the Government.^[363]

The National Parks and Wildlife Act 1974 (NSW) contains a second mechanism for Indigenous communities to claim land in national parks. Land listed in Schedule 14 of the Act is ‘identified as being of cultural significance to Aboriginals’.^[364] Land can only be added to the Schedule by an Act of Parliament.^[365] Part 4A provides a claim like mechanism for reclassifying land in national parks. When land is listed in Schedule 14 (or successfully claimed under section 36 or 36A of the ALRA), the original reservation is revoked and the land is vested in the NSW Aboriginal Land Council or a LALC, subject to any native title claims. The land must then be leased back to the Government and reserved again.^[366]

Under any Part 4A lease, the Minister must pay the rent stipulated in the lease agreement to compensate the LALC for the fact that it does not have the ‘full use and enjoyment of the lands’.^[367] Each area of land reserved under Part 4A of the National Parks and Wildlife Act 1974 (NSW) is administered by a board of management.^[368] Boards are made up of between eleven and thirteen members appointed by the Minister, the majority of whom must be Aboriginal owners.^[369] The boards’ chief function is the care, control and management of lease lands.^[370]

Aborigines who own land in national parks are exempt from certain prohibitions. For example, plants can be picked for ceremonial or cultural purposes provided the species is not threatened.^[371]

SELF-GOVERNMENT

Aboriginal Land Rights Act

Access

Access to Aboriginal land in NSW is governed by general property law. Their freehold interest entitles Land Councils to exclusive possession of the land and common law remedies for trespassing.

The Aboriginal Land Rights Act 1983 (NSW) provides mechanisms for LALC members to have access to non-Aboriginal land for the purpose of hunting, fishing or gathering. This can be done by way of negotiated agreement with the owners of the land or court ordered permit.^[372]

Mining

Land owned by a LALC or the NSW Aboriginal Land Council includes minerals other than gold, silver, coal and petroleum.^[373] This is the case whether the land was transferred from the Aboriginal Lands Trust, ^[374] transferred as a result of a land claim,^[375] purchased^[376] or transferred by the Minister after consensual or compulsory acquisition.^[377]

Generally, mining cannot occur on a LALC’s land without its consent.^[378] Consent can be conditional and may include an obligation to pay royalties.^[379] A LALC cannot consent to a mining operation without the approval of the NSW Aboriginal Land Council or the NSW Land and Environment Court.^[380] The Council and the Court can only refuse approval on the ground that giving consent would be ‘inequitable to the LALC concerned or detrimental to the interests of members of other LALCs’.^[381] All fees and royalties for mining on land owned by a LALC are payable to the NSW Aboriginal Land Council which must deposit them in the Mining Royalties Account.^[382] LALCs have statutory power to explore for and exploit mineral resources or other natural resources.^[383]

Decision making processes

Land Councils’ power to acquire and manage land is heavily circumscribed by the Aboriginal Land Rights Act 1983 (NSW). There are numerous restrictions on the disposal of land and on the way money in the NSW Aboriginal Land Council Account can be spent.^[384] In addition, the Minister has broad supervisory powers. For example, he or she can appoint an investigator to inquire into various matters such as a Council’s efficiency and effectiveness.^[385] The Minister can also appoint an administrator to a Land Council in certain circumstances.^[386]

The Governor can declare that the NSW Aboriginal Land Council has ceased to function if the Minister is of the opinion that the Council has ‘wilfully failed or neglected to exercise any of its functions’.^[387] On the recommendation of the NSW Aboriginal Land Council, the Minister can declare that a Regional Aboriginal Land Council or a LALC is dissolved.^[388] This can occur at the request of the relevant Council or where the NSW Aboriginal Land Council is satisfied that it has ceased to function.^[389]

The Minister has statutory power to determine rules of conduct to be observed by Land Councils and their members.^[390]

For the purposes of public accountability, Councils are equated with public authorities in terms of administrative review and anti-corruption legislation.^[391] The Independent Commission Against Corruption recently released the report of its investigation into NSW Land Councils.^[392] The Commission made 26 recommendations aimed at reducing the likelihood of corruption. These included recommendations for greater openness in decision making processes and greater clarity in management roles.^[393] The Commission also recommended greater centralisation of some aspects of Council business, for example, that membership requirements be revised to apply to the system as a whole rather than a particular LALC.^[394]

The Minister can require the NSW Aboriginal Land Council to submit quarterly financial statements about the amounts and purpose of grants to Land Councils.^[395] This is in addition to annual budgetary obligations.^[396] The Minister has directed the NSW Aboriginal Land Council to establish and monitor a uniform system of accounting for Land Councils.^[397]

The Aboriginal Land Rights Act 1983 (NSW) provides for the appointment of a NSW public servant as a Registrar.^[398] The Registrar’s primary function is to prepare and maintain a register of Aboriginal owners. The register should include the name of

every Aborigine who has a cultural association with land in NSW.^[399]The Registrar can refer various kinds of disputes between NSW Land Councils or their members to the Land and Environment Court, at the request of the NSW Aboriginal Land Council or on his or her own initiative.^[400] The Registrar is responsible for approving the rules of all Land Councils in NSW.^[401]

National parks

Access

Boards of management for lands leased under the National Parks and Wildlife Act 1974 (NSW) are responsible for considering proposals for cultural activities, such as hunting and gathering, on lease lands.^[402]

An example of a lease for Schedule 14 land under the National Parks and Wildlife Act 1974 (NSW) is the 30 year agreement entered in 1998 by the Minister for the Environment with Mutawintji LALC for the land comprising Mutawintji National Park, Mutawintji Historic Site and Mutawintji Nature Reserve. The Board of management for the land operates according to joint management principles set out in the lease.^[403] It can restrict public access to Mutawintji lands.^[404]

The Board [has] power to preclude or restrict public access to ceremonial places or other cultural sites by zoning or other mechanism including restrictions based on gender necessary for the cultural protection of such ceremonial places or other cultural sites.

The Board may, at the request of the Land Council or a group of Aboriginal owners or on its own volition:

• declare the whole or part of the lands a ‘no grog’ area for short periods for cultural reasons; and
• declare a defined area of the lands to be a ‘no grog’ area for any term or permanently,

by prohibiting the possession and/or consumption of alcohol within the lands or the defined area.^[405]

Mining

It is illegal to prospect or mine for minerals in a national park in NSW unless expressly authorised by an act of Parliament.^[406] The Mining Act 1992 (NSW) and the Petroleum Act 1955 (NSW) do not apply in national parks.^[407] However, the Minister can approve prospecting being carried out on behalf of the Government.^[408] The mineral rights that Land Councils have under the Aboriginal Land Rights Act 1983 (NSW) do not extend to land leased back to the NSW Government for nature conservation under the National Parks and Wildlife Act 1974 (NSW).^[409]

Decision making processes

Boards of management that administer Aboriginal land under the National Parks and Wildlife Act 1974 (NSW) must comply with any plan of management that is in force for the lease lands and are subject to the ‘control and direction of the Minister’.^[410]

COMMENTS AND DISCUSSION POINTS

Land Councils in NSW exercise considerable control over community lands, including certain land in national parks, through the three tiered system of administration.

• Does the Land Council system adequately reflect Indigenous decision making structures throughout NSW?

• Does the Land Council governance model established by the Aboriginal Land Rights Act 1983 (NSW) allow adequate scope for Indigenous modes of decision making in the administration of community lands?

• Is the role of the registrar under the Aboriginal Land Rights Act 1983 (NSW) consistent with the goal of Indigenous self-governance?

• Do Indigenous communities in NSW have sufficient opportunity to participate in the management of Aboriginal land in national parks?

6. QUEENSLAND

LAND-HOLDING AND GOVERNANCE STRUCTURES

Introduction

Indigenous land holding in Queensland has multiple bases. Aboriginal reserves are the oldest form of land tenure established for the purported benefit of Indigenous communities.^[411] The reserve system was partly replaced in the 1980s by a system of ‘deeds of grant in trust’ (DOGITs) to Aboriginal and Torres Strait Islander communities. In 1991 the DOGIT regime was supplanted by legislation intended to increase Indigenous control over former reserve and DOGIT land. The legislation also established a limited land claim process. The Aurukun and Mornington Island Shire Councils were established at this time under separate legislation.

This Chapter provides a brief overview of each type of land occupancy by and tenure held by Indigenous peoples in Queensland. The main governance structures, community councils, are then discussed in relation to each species of land holding. Where separate but similar legislation applies to Aborigines and Torres Strait Islanders, only that relating to Aborigines is cited.^[412] This is purely to save space. The Project Team acknowledges that Torres Strait Islanders are a distinct people with a unique history and culture.^[413]

Reserves

The reserve system was an integral part of both the protection regime of the early twentieth century and the later assimilationist policies of successive Queensland Governments. The protection regime, characterised by legislation such as the Aboriginals Protection and Restriction of the Sale of Opium Acts of 1897 and 1901, allowed the Minister to remove any Aboriginal person to an Aboriginal reserve.^[414] Reserves were governed by non-Indigenous superintendents. The Governor-in-Council could make regulations for residence and behaviour on reserves including the prohibition of ‘aboriginal rites or customs that, in the opinion of the Minister, [were] injurious to the welfare of aboriginals living upon a reserve’.^[415] Other powers included control over Aboriginal people’s property and the marriage of Aboriginal

people to certain Aboriginal and non-Aboriginal people.^[416] The legislation specifically governing Torres Strait Islanders did not provide for their removal to reserves. Instead, it allowed for the establishment of island councils with local government functions.^[417]

The legislation governing Aboriginal people was made less draconian with the enactment of the Aborigines Act 1971 (Qld) but the Queensland Government retained significant powers of supervision and management.^[418] This included power over the creation and revocation of Aboriginal reserves.^[419] Aboriginal reserves were, and remain, areas of land reserved for a ‘public purpose’ by the Governor-in-Council. A ‘public purpose’ could include an ‘Aboriginal purpose’ but it was also possible for the Governor-in-Council to reclassify the reserve for other purposes such as roads, quarries or ports.^[420] The Governor-in-Council could also revoke a reserve so that the land could be used for commercial purposes. An infamous example of a revocation occurred at Weipa in 1959 when a reserve of 354,000 hectares was reduced to 124 hectares to make way for bauxite mining by Comalco.^[421]

The Minister had the power to grant fixed term leases of up to 30 years over land on a reserve.^[422] Leases of up to 75 years were sometimes granted.^[423]Currently, the Governor-in-Council can grant leases of up to 30 years over reserve land, subject to certain conditions and provided any trustees are consulted.^[424] The Aboriginal Land Act 1991 (Qld) allows the continuation of leases on transferable land, including Aboriginal reserves.^[425]

DOGITs

The reserve system was partly replaced with a system of DOGITs made to the councils for Indigenous residents on each reserve.^[426] The changes occurred through a series of amendments to the Land Act 1962 (Qld) from 1982 to 1988.^[427] The

fundamental change in policy was that Aboriginal and Torres Strait Islander people were given some degree of control over the land on which they lived and greater security of tenure.^[428] Under the DOGIT system, the trustees manage the land for the Indigenous grantees. The role of trustee can be performed by a statutory body, an incorporated body, a group of individuals or a named individual.^[429] The relevant community council commonly acts as trustee.^[430]

DOGITs quickly replaced reserves throughout Queensland and each comprises an area of land which is generally at least the size of the former reserve.^[431] Aboriginal reserves still exist as granted under the Land Act 1962 (Qld) but they are subject to the Land Act 1994 (Qld).^[432]

The DOGIT granted to Aboriginal and Torres Strait Islander communities is essentially inalienable in nature. Only an Act of Parliament can reduce or cancel an existing grant.^[433] The DOGIT scheme does not include a land claim mechanism or a way for Indigenous people to apply for the granting of further DOGITs. Existing interests survive when a DOGIT is made.^[434]

The Aborigines and Torres Strait Islanders (Land Holding) Act 1985 (Qld) allows for leases of DOGIT land by community councils and leases in perpetuity to Aboriginal organisations or community councils.^[435] The practice of granting perpetual leases on DOGITs undermines the inalienability of DOGIT land by removing community control in favour of individual residents (or corporations comprised solely of such residents).^[436] This scheme was enacted to pursue a Queensland government policy of promoting individualised free enterprise in Indigenous communities. It may be at some considerable cost to traditional (and communal) responsibilities for land.^[437]

Aboriginal or Torres Strait Islander people living on DOGIT land may take forest products or quarry material provided they do not sell them.^[438] In addition, an Aboriginal Council on DOGIT land may authorise the gathering or digging of forestry products or quarry material for use on that land.^[439]

The Queensland Government can reserve areas of land within DOGITs for a public purpose.^[440] Each reservation must be for a stated amount of land but the grant need not identify the location of that parcel.^[441] This enables the Government to have a kind of floating charge over DOGIT land. All Crown improvements on DOGIT land are also reserved from the grant.^[442]

Like Aboriginal reserves, DOGITs can be converted to inalienable freehold under the Aboriginal Land Act 1991 (Qld) and the Torres Strait Islander Land Act 1991 (Qld). On the granting of the inalienable freehold under those Acts, the DOGIT is cancelled.^[443] There is provision for part of DOGIT land to be converted to Aboriginal land and part to remain under deed.^[444] For a brief description of the conversion process see pages 57-58.

Aurukun and Mornington Island Shire Councils

The Fraser Government attempted to protect emerging self-government in the Aurukun and Mornington Island communities by passing the Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities Self-Management) Act 1978 (Cth). However, ‘the Governor-in-Council sat in the middle of the night and de-gazetted these reserves leaving it to [the Queensland] parliament to resurrect them some days later as shires’.^[445] The Local Government (Aboriginal Lands) Act 1978 (Qld) established the Council of the Shire of Aurukun and the Council of the Shire of Mornington as local government councils.^[446] Both Councils were granted 50 year leases.^[447] They must operate in accordance with the Local Government Act 1993 (Qld).^[448]

Aurukun and Mornington Island were the only two former reserve communities not to be granted DOGITs.^[449] This anomaly was the product of a major confrontation on the issue of Aboriginal self-management between the Queensland and Federal Governments. Frank Brennan recalls that the Queensland Government was concerned about the fostering of an outstation movement at both reserves by the Uniting Church trustees and wanted to assert control over the communities.^[450] There was also a high level of conflict about mining on the lands.^[451] When the Aboriginal Land Act 1991 (Qld) came into operation, Aurukun and Mornington Island Shire Council lease land became eligible for conversion to inalienable Aboriginal freehold. See the discussion of this conversion process below.

Aboriginal and Torres Strait Islander Land Acts

In 1991 the Goss Labor Government enacted limited land rights legislation in Queensland. Both the Aboriginal Land Act 1991 (Qld) and the Torres Strait Islander Land Act 1991 (Qld) had a stormy passage through Parliament due to Indigenous concern about the lack of consultation on the bills and dissatisfaction with the final form of the legislation. During the policy debate Premier Goss was at pains to ensure that the Government was not seen to be supporting land rights on the Northern Territory model:

... Mr Goss knew land rights was an unpopular issue with the Queensland electorate. According to his priorities he had better things to do with his credibility than spend it on selling a land rights package which actually redistributed rights between Aborigines and other Queenslanders. He was happy to lead his caucus ... to a gradual accommodation of Aboriginal interests and to a commitment for increased access by Aborigines to land provided no other citizens’ interests were reduced and provided no citizens had anything at all to fear ...^[452]

The Aboriginal Land Act 1991 (Qld) and the Torres Strait Islander Land Act 1991 (Qld) are an advance on the previous Indigenous land holding system in Queensland but weaker than the land rights regimes in both the Northern Territory and NSW. The Acts allow for the transfer of land occupied by Indigenous peoples to a new form of inalienable freehold title.^[453] The land is held by the grantees as trustees for the ‘benefit of Aboriginal people and their ancestors and descendants’.^[454]

To be eligible for this conversion to ‘Aboriginal land’ or ‘Torres Strait Islander land’,^[455] the area concerned must be ‘transferable’ within the terms of the legislation.^[456] The Aboriginal Land Act 1991 (Qld) and the Torres Strait Islander Land Act 1991 (Qld) deem existing Aboriginal reserves, DOGITs and the Aurukun and Mornington Island shire leases to be ‘transferable land’.^[457] When the Minister appoints the trustees of the land he or she must consider the views of Aboriginal

people and, as far as is practicable, act in a way that is consistent with Aboriginal tradition.^[458] The Crown is entitled to continue in occupation when an area becomes Aboriginal land under the legislation.^[459]

The Aboriginal Land Act 1991 (Qld) and the Torres Strait Islander Land Act 1991 (Qld) also establish a limited claim procedure for land that has been transferred under the legislation^[460] and Crown land that has been declared by regulation to be claimable.^[461] Where an area successfully claimed includes national park land, the grant is subject to the grantees leasing it to the Queensland Government in perpetuity for conservation management.^[462] This is referred to collectively as granted land in the legislation.^[463]

Land that has been transferred to inalienable freehold under the Aboriginal Land Act 1991 (Qld) and the Torres Strait Islander Land Act 1991 (Qld) can only taken outside the claim process by specific regulation.^[464]Such a regulation may only be made if the land is primarily ‘used or occupied by Aboriginal people for residential or community purposes’ or the majority of Aboriginal people ‘concerned with the land’ are opposed to it being claimable.^[465] This provision enables communities with historical connections to land to block claims by the traditional Aboriginal owners.^[466]

The Aboriginal Land Act 1991 (Qld) and the Torres Strait Islander Land Act 1991 (Qld) also exclude certain land from claim including areas within city or town boundaries, state forest or timber reserves, roads and stock routes.^[467] All grants are subject to native title rights and interests.^[468]

Any group of Indigenous people may claim land under the Aboriginal Land Act 1991 (Qld) or the Torres Strait Islander Land Act 1991 (Qld) on one or more of the following grounds: traditional affiliation; historical association; or economic or cultural viability.^[469] To establish a claim on the ground of traditional affiliation, the members of the group must show that they ‘have a common connection with the land based on spiritual and other associations with, rights in relation to, and responsibilities for, the land under Aboriginal tradition’.^[470] In determining the claim, the Land Tribunal must consider the views of the elders of the group.^[471]
In establishing a land claim on the basis of historical association, a group of Aborigines must demonstrate that they or their ancestors have lived on or used the land (or land in the district) for a substantial period.^[472] Again, the Land Tribunal must consider the views of the elders of the group.^[473] A grant will be made on the ground of economic or cultural viability if the Tribunal is satisfied that this would ‘assist in restoring, maintaining or enhancing the capacity for self-development, and the self-reliance and cultural integrity, of the group’.^[474]

The lodgement of a claim entitles the claimants to go before the relevant Land Tribunal established under the Aboriginal Land Act 1991 (Qld) or the Torres Strait Islander Land Act 1991 (Qld).^[475] If the claim is established the Tribunal may recommend to the Minister that a grant be made.^[476] If the claim is based on traditional or historical affiliation the Tribunal must recommend that the land be granted in fee simple. If, however, the claim is based on economic or cultural viability the Tribunal can only recommend that the land be granted as a lease, either in perpetuity or for a fixed term.^[477] The Tribunal recommends trustees for the land having regard to any Aboriginal tradition applicable to the land.^[478] Section 61(2) of the Aboriginal Land Act 1991 (Qld) establishes a hierarchy between competing claimants. A claim based on traditional affiliation is to be preferred by the Tribunal to one based on historical association or economic/cultural viability. An historical association claim is to be preferred over one based on economic/cultural viability.

The Minister must be satisfied that the land ‘should be so granted to the group’ before a direction is given to the registrar of titles to prepare the grant or lease.^[479] In addition, the Minister must appoint grantees to act as trustees of the land.^[480] Both provisions provide a degree of Ministerial control over the granting of land and appointment of trustees which may not fully accord with the recommendations of the Tribunal. However, in exercising his or her powers with respect to the appointment of trustees, the Minister is bound to consult the Aboriginal people concerned and, unless ‘exceptional circumstances exist’, act in a way consistent with Aboriginal tradition and the views of the Aboriginal people concerned.^[481]

The grounds for claim under the Aboriginal Land Act 1991 or the Torres Strait Islander Land Act 1991 (Qld) are considerably wider than the land rights model in the Northern Territory, encompassing historical association as well as traditional affiliation. This seems to reflect the degree to which Aboriginal people in Queensland have been forcibly moved off their traditional lands and placed on government or church reserves and missions.

Members of Aboriginal or Torres Strait Islander communities can take marine products or fauna by traditional means from their lands for consumption by members of the community.^[482] However, they may not do so for sale.^[483]

Community councils and Indigenous local government

There is no provision in the Aboriginal land Act 1991 (Qld) and the Torres Strait Islander Land Act 1991 (Qld) for the establishment or funding of representative land councils. Aboriginal land and Torres Strait Islander land is instead administered by community councils acting as trustees.^[484] Community councils are bodies corporate which may sue and be sued and are capable of holding real and personal property.^[485] Council members hold tenure for three years.^[486] A voters’ roll is established in accordance with the Local Government Act 1993 (Qld).^[487] There is no provision for an Indigenous person with traditional or historical association with a shire area to vote for an Indigenous council if they are not resident in that area. The membership requirements, membership procedures and financial administration of community councils are governed by regulation.^[488]

Community councils take over local government functions for their area and are charged with good government ‘in accordance with the customs and practices of the Aborigines concerned’.^[489] Their statutory functions include constructing and maintaining roads, providing sanitation and drainage, water conservation, village planning and fence construction.^[490]

Finally, the Acts establish the Aboriginal Co-ordinating Council and the Island Co-ordinating Council.^[491] These bodies are comprised of the chairpersons of each Aboriginal or Island Council and another representative member from each.^[492] The Councils can act on behalf of their constituents, advising on the ‘progress, development and well-being’ of their respective Indigenous peoples including makingrecommendations to the Minister or the chief executive.^[493] The Councils have played a prominent role in Queensland Indigenous affairs but have been unable to match the political impact nationally of some of the major land councils. The Island Co-ordinating Council formed the basis of the ATSIC Torres Strait Regional Council which was later reconstituted as the Torres Strait Regional Authority.^[494]

In 1991, the Queensland Legislation Review Committee recommended that new community government legislation be enacted to ensure equal participation in government by Aboriginal and Torres Strait Islander communities.^[495] Under the proposed legislation, each community government structure would have broad local government powers and service delivery responsibilities including the administration of justice, education, housing and conservation of natural resources.^[496] No such legislation has been enacted. The reforms in the recently introduced Community Services Legislation Amendment Bill (Qld) are chiefly aimed at improving councils’ financial management and accountability. However, the Bill would also remove the requirement that a council area must be a trust area.^[497] Under the proposals the Governor in Council would have power to declare that a council by-law has no effect if this is ‘necessary to protect State interests’.^[498]

In 1996, the then Queensland Office of Aboriginal and Torres Strait Islander Affairs introduced an alternative governing structures program in response to perceived inadequacies in the community government system.^[499] This governance program has been absorbed into the general community development program administered by the Department of Aboriginal and Torres Strait Islander Policy and Development. The program provides funding for localised planning and development activities.^[500]

SELF-GOVERNMENT

Reserves

Aboriginal and Torres Strait Islander reserves were, on the whole, not controlled by Aboriginal and Torres Strait Islander people. Typically they were held in trust for Aboriginal people with the Department of Aboriginal and Islander Affairs acting as trustee.^[501] In some circumstances the trustee was a church organisation or the (non-Indigenous) local government authority.^[502] The Aboriginal and Islander Affairs Corporation acts as trustee for surviving reserves.^[503]

The Aboriginal Land Act 1991 (Qld) changed the trustee relationship for reserve land that was transferred to Aboriginal inalienable freehold. Questions of access become subject to either the Community Services (Aborigines) Act 1984 (Qld) or the Aboriginal Land Act 1991 (Qld) regime for transferred land. The relevant provisions of these Acts are considered at page 64.

Land that is not under the control of a community council is subject to the general law of trespass.^[504] Indigenous communities have no control over mining on reserve land.

DOGITs

Access

Roads within DOGIT land are often excised from the deeds allowing full public access.^[505] Members of the public can enter a DOGIT and be in any public place, road, park or place of business on it.^[506] Entry to other areas of a DOGIT is generally only at the request of a community resident^[507] although public servants and those acting under statutory authority can both enter and reside on a DOGIT.^[508] In effect, access to DOGIT communities is much like any small Queensland town although residence in the community is, apart from those with statutory rights to do so, controlled by the community council.^[509]

Mining

Community councils have little control over mining on DOGIT land. Minerals, petroleum, and quarry materials are reserved to the Crown.^[510] The only safeguard is that a mining tenement, authority to prospect, permit, claim, licence or lease land under the Mineral Resources Act 1989 (Qld), cannot be issued without the consent of the Governor-in-Council who must consider the views and recommendation of the trustees of the land (the community council in most cases).^[511]

Decision making processes

The Governor-in-Council can make model by-laws for DOGIT land by regulation.^[512] This includes by-laws protecting trust land, regulating trust business and imposing penalties for contraventions of by-laws.^[513] A by-law may state that all or part of DOGIT land is a public place for the purposes of legislation conferring duties about such places on police.^[514] If a local government body is acting as trustee, it can make model by-laws for DOGIT land under the Local Government Act 1993 (Qld) and adopt a model by-law consistent with the Land Act.^[515]

If DOGIT land is managed by a community council or has been converted to Aboriginal land by law, the provisions of the Community Services (Aborigines) Act 1984 (Qld) and the Community Services (Torres Strait Islanders) Act 1984 (Qld) apply.^[516]

Aurukun and Mornington Island Shire Councils

Access

The Local Government (Aboriginal Lands) Act 1978 (Qld) sets out who is entitled to enter or reside on Aurukun and Mornington Island community lands. Residence is limited to Indigenous people who had a lawful right to be on the reserves on 5 April 1978, their descendants and spouse(s) and those who once lawfully resided on the reserves and now have the consent of the relevant Council to resume such residence.^[517] Certain government officials and employees may also be resident on the shire lands or remain there temporarily.^[518]

Mining

The terms of the original leases for the Aurukun and Mornington Island Shire Council lands allowed for limited fishing, hunting, foraging, timber and quarrying rights. The Councils could also negotiate mining agreements for their land and take a share of the profits.^[519] However, this has been overtaken by the provisions of the Aboriginal Land Act 1991 (Qld) which apply the provisions relevant to reserves in the Mineral Resources Act 1989 (Qld) to all transferable land. This is discussed further at
pages 64-65.

Decision making processes

Each Council can make local by-laws authorising certain classes of persons to reside on shire lands and excluding other classes of persons.^[520] Councils must have the consent of the grantees to these local laws and must achieve the general agreement of the Aboriginal people concerned through consultation.^[521] A large part of the Local Government (Aboriginal Lands) Act 1978 (Qld) is taken up with the control of possession and consumption of alcohol in Aurukun Shire.^[522] The Aurukun Alcohol Law Council is empowered to declare controlled and dry places.^[523]

Aboriginal and Torres Strait Islander Land Acts

Access

The access provisions of the Aboriginal Land Act 1991 (Qld) and the Torres Strait Islander Land Act 1991 (Qld) do not generally improve Indigenous community control over Aboriginal land. Roads are specifically excluded from Aboriginal land.^[524] Access to Aboriginal land is guaranteed to the public under the Community Services (Aborigines) Act 1984 (Qld) and the Community Services (Torres Strait) Act 1984 (Qld) as discussed above in relation to DOGITs.^[525] In addition, the Crown can continue in occupation rent free.^[526] Government officers, employees, servants and agents are guaranteed access to land used by the Crown.^[527]

Community Councils must have the consent of the grantees to any by-laws about who is permitted to enter or who is excluded from their lands.^[528] The grantees must have explained to the ‘Aboriginal people particularly concerned with the land’ the nature, purpose and effect of the proposed by-law, have given them an adequate opportunity to express their views on it and have obtained their general agreement.^[529]

Mining

The Aboriginal Land Act 1991 (Qld) and the Torres Strait Islander Land Act 1991 (Qld) contain an important protection. The trustees (who may not necessarily be Indigenous people) may not grant an interest in transferred or granted land, including a

mining interest, unless the following steps have been taken:

(a) they have explained to the Aboriginal people particularly concerned with the land the nature, purpose and effect of the proposed grant, consent or agreement; and

(b) the Aboriginal people are given adequate opportunity to express their views on, and are generally in agreement with, the grant, consent or agreement; and

(c) they have subsequently given the Aboriginal people notice of not less than 1 month of their intention to make the grant, give the consent or enter the agreement.^[530]

The provision appears to be a weaker version of the requirements to consult traditional Aboriginal owners under s 19(5) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).

A deed of grant for transferred or granted land must include a reservation to the Crown of all minerals and petroleum.^[531] Forest products or quarry materials ‘of vital State interest’ may also be reserved to the State by regulation. Reasonable compensation must be paid to the grantees for the reservation.^[532]

The Mineral Resources Act 1989 (Qld) applies to Aboriginal land as if it were a reserve.^[533] This means that the grantees only have a veto over prospecting permits.^[534] A mining claim or exploration permit can be granted with the consent of the owner (the grantees) or the Governor-in-Council.^[535]

When a miner wishes to proceed to the mining stage and applies for a mining lease the owner of the land can object.^[536] If a conference between the miner and the owner fails then the matter is referred to the Mining Warden. The Mining Warden makes recommendations to the Minister.^[537] The Minister may reject the application or recommend to the Governor-in-Council that the lease be granted.^[538]

The trustees of Indigenous land are entitled to receive a prescribed percentage of any mining royalties paid to the Crown.^[539]

An Aboriginal Council can authorise the gathering or digging of forestry products or quarry material on Aboriginal or Torres Strait Islander land if the grantees have authorised it or reasonable compensation has been paid to them, and provided the materials are not reserved to the Crown.^[540]

Decision making processes

Community councils can make by-laws on a number of matters including: discipline, health, housing, planning and development, and consumption of alcohol.^[541] By-laws can wholly or partly adopt local government laws.^[542] A notice of intention to make a new by-law must be displayed in a prominent council area and include a deadline for lodging objections with the clerk of the council.^[543] By-laws are subject to the approval of the Governor-in-Council.^[544] When a by-law is submitted to the Governor-in-Council it must be accompanied by any objections submitted to the clerk.^[545]

The State Government plays a significant role in overseeing community councils. On instructions from the Minister, the Governor-in-Council can dissolve a community council.^[546] He or she must appoint an administrator in such circumstances and that person is deemed to be the community council.^[547] Other supervisory provisions include the power of the Aboriginal and Islander Affairs Corporation and the Auditor-General to enter community lands and inspect a council’s accounts .^[548]

The Community Services (Aborigines) Act 1991 (Qld) and Community Services (Torres Strait) Act 1991 (Qld) include innovative provisions on community policing and Indigenous courts. The Acts give the weight of the general law of Queensland to by-laws authorising Indigenous police to do certain acts.^[549] Indigenous police are appointed by the council for the area and are charged with maintaining peace and good order.^[550] Commissioned Queensland police have the same powers on DOGITs and Aboriginal and Torres Strait Islander land as they have elsewhere.^[551]

The Acts establish an Aboriginal or Torres Strait Islander Court for each trust area. These courts are constituted by two justices of the peace both of whom must be Indigenous residents of the community, or failing that, members of the community council.^[552] The Indigenous courts determine complaints about breaches of community by-laws.^[553] In addition, the courts may determine disputes about other matters that are ‘governed by the usages and customs’ of the community provided they are not breaches of State or Federal law.^[554] Decisions of Indigenous courts have the status of magistrates’ decisions under the Justices Act 1886 (Qld) for the purposes of appeal rights.^[555]

COMMENTS AND DISCUSSION POINTS

Indigenous land holding and management structures in Queensland are a complex web of inherited idiosyncrasies and relatively innovative recent legislation. Community councils have a broad role but continue to be subject to considerable government oversight and control.

• Does the lack of a full land claim process in Queensland affect Indigenous peoples’ ability to achieve greater political autonomy?

• Does the complex interaction of the land holding and management structures in Queensland inhibit effective Indigenous self-governance?

• Is the role of the Land Tribunals under the Aboriginal Land Act 1991 (Qld) and the Torres Strait Islander Land Act 1991 (Qld) consistent with the goal of Indigenous self-governance?

• Do community councils established under the Community Services (Aborigines) Act 1991 (Qld) and the Community Services (Torres Strait) Act 1991 (Qld) allow adequate scope for Indigenous modes of decision making in the administration of community lands?

7. TASMANIA

LAND-HOLDING AND GOVERNANCE STRUCTURES

Aboriginal Land Council

Relative to many of the mainland jurisdictions, the Tasmanian Parliament was late to pass land rights legislation.^[556] This was probably due to longstanding official commitment to the fiction that Tasmanian Aborigines died out with Truganini in 1876.^[557] The Aboriginal Lands Act 1995 (Tas) establishes the Aboriginal Land Council (the Council), a body corporate of eight Aborigines elected to represent five regions.^[558] Its main function is to ‘use and sustainably manage Aboriginal land and its natural resources for the benefit of all Aboriginal persons’.^[559] Aboriginal land is that vested in the Council in trust for Aborigines under section 27 of the Act.^[560] The twelve areas vested in the Aboriginal community are culturally significant but amount to only 0.06% of land in the State.^[561] There is no land claim procedure but the Council can purchase additional land.^[562]

There is no explicit reference to the nature of the title of Aboriginal land in the Aboriginal Lands Act 1995 (Tas). Certain sections imply that it is freehold. For example, the Council is referred to as the owner of Aboriginal land^[563] and can lease land to certain persons.^[564] Aboriginal land vests subject to any estate existing in the land immediately before the date the Act commenced.^[565] Aboriginal land may not be compulsorily acquired by the Tasmanian Government.^[566]

The Council administers the Aboriginal Land Council of Tasmania Fund which includes money raised from leases and licences of Aboriginal land and grants from the Federal or State Government.^[567] The money in the Fund is used for general administration and wages payable under the Act.^[568]

Council membership

The Chief Electoral Officer of Tasmania is required to prepare guidelines concerning the eligibility of persons to be included on the roll for Council elections ‘on the basis that the person is or is not an Aboriginal person’.^[569] Guidelines issued on 29 July 1996 state that to be included on the electors’ role, a person must be able to:

provide authentic documentary evidence that shows a direct line of ancestry linked back through an identifiable family name to traditional Aboriginal society; and

demonstrate communal recognition of acceptance by members of the broader Aboriginal community.^[570]

The Guidelines state that the required documentary evidence will usually be in the form of a verifiable family tree, or archival or historical documentation that links a person to a traditional family or person. Photographic evidence or family folklore alone will not normally be sufficient to prove Aboriginal ancestry.^[571] In practical terms, evidence of communal recognition will usually be established for the purposes of the Guidelines by a combination of signed statements from individual Aboriginal community members from a different family group and from community organisations.^[572]

The Guidelines apply the definition of ‘Aboriginal person’ in the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) as interpreted by the Federal Court in Gibbs v Capewell.^[573] This definition was recently litigated by parties challenging the eligibility of electors in ATSIC Regional Council elections in Tasmania.^[574] In that decision Merkel J found that the three criteria to consider when determining whether someone is Aboriginal are descent, self-identification and community recognition. This finding reiterates the leading judgement of Brennan J in Mabo:

Membership of the Indigenous people depends on biological descent from the Indigenous people and on mutual recognition of a particular person’s membership by that person and by the elders or other persons enjoying traditional leadership among those people.^[575]

Before attempting to have some effective role in the way community land is administered, Aborigines have to clear the difficult hurdle of being recognised as such for the purposes of Tasmanian laws. The process is dominated by non-Indigenous standards of proof that fundamentally undermine self-determination. Merkel J acknowledged this in Shaw v Wolf:

It is unfortunate that the determination of a person’s Aboriginal identity, a highly personal matter, has been left by a Parliament that is not representative of Aboriginal people to be determined by a Court which is also not representative of Aboriginal people.^[576]

Sixty days before nominations are called for in an Aboriginal Land Council of Tasmania election, the Chief Electoral Officer must make the electoral roll available for inspection.^[577] Objections about exclusions from or inclusions on the roll can be made by any person.^[578] Persons lodging objections and those to whom objections relate have the right to appeal decisions of the Chief Electoral Officer to the Supreme Court of Tasmania within seven days of notification.^[579]

The contemporary nature of the Aboriginal Lands Act 1995 (Tas) is highlighted section 18(2) which provides that the Council must perform its functions ‘for the benefit of all Aboriginal persons and in the interests of reconciliation with the broader Tasmanian community’.

SELF-GOVERNMENT

Access

With the exception of the land at Oyster Bay and Mount Cameron West, the public has a general right of access over Aboriginal land in Tasmania.^[580] Access to the Aboriginal land at Risdon Cove is limited to daylight hours when no significant Aboriginal cultural event is being held.^[581]

The National Parks and Wildlife Act 1970 (Tas) specifically states that it does not preclude Aboriginal cultural activity on park lands provided the Minister is satisfied it is not likely to have a detrimental effect on fauna and flora.^[582] ‘Cultural activity’ is defined in that Act as hunting, fishing or gathering by an Aboriginal person for his or her personal use based on Aboriginal custom as passed down to that person.^[583]

Mining

Land is vested in the Aboriginal Land Council of Tasmania to a depth of 50 metres and includes minerals other than oil, atomic substances, geothermal substances and helium.^[584] Under s 76(1) of the Mineral Resources Development Act 1995 (Tas), any person with an interest in an area of land for which a mining lease is sought may object to the granting of such a lease. Disputes are resolved by the Mining Tribunal. The Tribunal is established as a division of the Magistrates’ Court but proceedings are relatively informal.^[585] For example, the Tribunal is not bound by the rules of evidence.^[586] Despite this, it has the same enforcement powers as the Supreme Court of Tasmania.^[587]

Decision making processes

While the Aboriginal Land Council of Tasmania represents all Aborigines in that State, it has a statutory obligation to take into account the interests of local Aboriginal communities when managing Aboriginal land.^[588] There is also provision for local communities to be directly involved in the management of Aboriginal land.^[589]

One of the Council’s statutory functions is the preparation of management plans for Aboriginal land.^[590] Local Aboriginal groups can also prepare management plans but they must be submitted to the Council for approval.^[591] Local Aboriginal groups are those nominated by the Council for a particular geographic area.^[592]

When deciding whether a local Aboriginal group or person should be involved in the management of Aboriginal land the Council must consider:

the extent to which a local Aboriginal group or person has an association or connection with the land;

the extent to which a local Aboriginal group or person has the desire and capacity to manage the land; and

the importance of the land to all Aboriginal persons.^[593]

Under the Aboriginal Lands Act 1995 (Tas) the right to construct drains, sewers and waterways is reserved to the Crown.^[594]

Decisions of the Aboriginal Land Council of Tasmania are subject to internal review in certain circumstances, including the involvement of local Aboriginal groups in land

management.^[595] Review is only available if the request is signed by 50 Aborigines eligible to vote at a Council election.^[596] The Council has no statutory power to make by-laws.

Aboriginal land that is used principally for Aboriginal cultural purposes is exempt from land tax.^[597] In addition, the Aboriginal Land Council of Tasmania is exempt from general council rates, construction rates and contributions to the cost of fire brigades.^[598] The Council continues to be liable for rates and charges for services such as water supply, sewage, garbage removal and stormwater removal.^[599]

COMMENTS AND DISCUSSION POINTS

The Premier of Tasmania, Mr Bacon, recently handed Wybalenna mission on Flinders Island back to the Aboriginal Land Council to be co-managed by traditional Aboriginal owners of the Island.^[600] The mission was the site of Aboriginal genocide in the 1830s and ‘40s. Despite this gesture towards reconciliation, Tasmanian Aborigines continue to have control of a tiny amount of their traditional lands. Even where they are recognised as owners by non-Indigenous laws and bureaucracy, their control over access to the land and their role in its management is minimal.

• Does the lack of a land claim process and the small amount of Aboriginal land in Tasmania affect Indigenous peoples’ ability to develop effective self-governance structures?

• Does the land council governance model established by the Aboriginal Lands Act 1995 (Tas) allow adequate scope for Indigenous modes of decision making in the administration of community lands?

• Are the Election Procedures and Guidelines for the Aboriginal Land Council of Tasmania consistent with the goal of Indigenous self-governance?

8. WESTERN AUSTRALIA

LAND-HOLDING AND GOVERNANCE STRUCTURES

Introduction

Despite that fact that it has the third highest proportion of Indigenous residents of any Australian jurisdiction, Western Australia is the only State not to have any form of land rights legislation.^[601]

In 1974, the Western Australian Royal Commission into Aboriginal Affairs made some commentary on the findings of the Woodward Royal Commission in the Northern Territory^[602]but did not make any recommendations in regard to land rights.^[603]

...whatever is done in the way of establishing the Aboriginal descendants of the original occupiers of this land on land, it should be clear that the process is being achieved either as a matter of legal right or humanitarian and benevolent gesture and for the present, I am of the opinion it occurs for humanitarian and benevolent reasons.^[604]

Between May 1983 and September 1984, Perth barrister Paul Seaman QC conducted an Aboriginal Land Inquiry at the request of the Western Australian Minister with Special Responsibility for Aboriginal Affairs.^[605] Seaman conducted extensive public hearings with Indigenous and non-Indigenous people and received over 230 written submissions.^[606] Seaman recommended that legislation be drafted to enable incorporated Aboriginal bodies to claim Aboriginal reserves, unallocated Crown lands, unused public lands, conservation reserves and mission lands.^[607] Seaman also recommended the establishment of a Tribunal to determine any land claim which could not be dealt with by negotiation between public authorities and Aboriginal people.^[608] The recommendations of the Aboriginal Land Inquiry have never been implemented.

Reserves

Introduction

Under the Land Act 1933 (WA) the Governor can grant a lease, either fixed term or in perpetuity, of Crown land to an Aboriginal person.^[609] Land can be reserved for specific purposes, including for the benefit of Aboriginal inhabitants.^[610] Reserves are classified by the Minister. Class A reserves ‘forever remain dedicated to the purpose declared’ unless reclassified by legislation.^[611] Class B reserves remain reserved from alienation until the Governor proclaims otherwise.^[612] All other reserves are designated as Class C.^[613] Reserves can be vested in, leased to or granted to Aboriginal organisations and communities.^[614]

Aboriginal reserves in Western Australia include:

• Crown land reserved under the Land Act 1933 (WA) as outlined above;
• reserves proclaimed under the now repealed Native Welfare Act 1963 (WA); and
• reserves proclaimed for ‘persons of Aboriginal descent’ under the Aboriginal Affairs Planning Authority Act 1972 (WA).^[615]

Aboriginal Affairs Planning Authority

Aboriginal reserves vest in the Aboriginal Affairs Planning Authority, a statutory body corporate.^[616] The power to proclaim the reservation of additional Crown lands under the Aboriginal Affairs Planning Authority Act 1972 (WA) can only be exercised on the recommendation of the Minister who must first refer the matter to the Authority. The Minister lays his or her own proposed recommendation and the report of the Authority before the Parliament.^[617] If either House of the Parliament rejects the recommendation, the Minister cannot present it to the Governor.^[618]

The Aboriginal Affairs Planning Authority has a statutory duty to promote the well being of persons of Aboriginal descent in Western Australia and to take their views into account, as expressed by their representatives.^[619]Its functions include:

• fostering the involvement of persons of Aboriginal descent in their own enterprises in all aspects of commerce, industry and production, including agriculture;
• making available such services as may be necessary to promote the effective control and management of land held in trust for persons of Aboriginal descent; and
• taking, instigating or supporting such action as is necessary to promote the economic, social and cultural advancement of persons of Aboriginal descent in Western Australia.^[620]

Aboriginal Lands Trust

The Aboriginal Affairs Planning Authority can transfer reserve land to the Aboriginal Lands Trust.^[621] The Aboriginal Lands Trust is a statutory body corporate comprised of a chairperson and six other members of Aboriginal descent appointed by the Minister.^[622] The Trust has a number of specific statutory functions including ensuring that land is managed in accordance with wishes of the Aboriginal inhabitants of the area ‘so far as that can be ascertained and is practicable’.^[623]

The Aboriginal Lands Trust can only sell or lease reserve land with the prior approval of the Minister.^[624] In addition, the Minister can issue general or specific directions which the Trust must follow in exercising its functions.^[625]In administering the Aboriginal Affairs Planning Authority Act 1972 (WA), the Minister is required to have regard to the recommendations of the Authority and the Trust but is not bound to give effect to them.^[626]

In 1996, the Western Australian Aboriginal Affairs Department reviewed the Aboriginal Lands Trust. The review recommended that title to lands managed by the Trust be transferred to Aboriginal corporations in trust for Aboriginal people by the year 2002.^[627] It also proposed that members of the Trust be nominated by Aboriginal organisations with community membership to ensure regional representation.^[628]
Aboriginal Communities Act

Aboriginal communities in Western Australia have no control over local government issues, such as public order or the availability of alcohol, on reserve lands. However, they may have access to greater self-government under the Aboriginal Communities Act 1979 (WA) which enables certain groups to manage and control community lands. The Act applies to certain specified communities and to any incorporated Aboriginal community that the Governor proclaims to be within the ambit of the legislation.^[629] The Governor is also responsible for proclaiming the boundaries of community lands.^[630]

SELF-GOVERNMENT

Reserves

Access

Certain people can enter reserve lands without incurring liability for trespass. These are Aborigines, Western Australian and federal Members of Parliament, persons fulfilling legal duties and persons authorised by the regulations.^[631] All other persons must apply for a permit to enter the lands. Before granting such a permit the Minister must consult the Aboriginal Lands Trust.^[632] If the Minister’s decision differs materially from the views expressed by the Trust he or she must lay a report on the matter before the Parliament.^[633] The Authority can authorise entry to reserve lands for any purpose if the Minister is of the opinion that it would ‘benefit the Aboriginal inhabitants’.^[634]

Under the Aboriginal Affairs Planning Authority Act 1972 (WA), the Governor may declare that the right to exclusive use and benefit of any area of reserve land is restricted to the Aboriginal inhabitants of the area.^[635] Regulations can be made in regard to such areas providing for the compilation of documentary evidence about the entitlement of persons to use or benefit from specific areas of land, including customary use of natural resources.^[636]

The 1996 review of the Aboriginal Lands Trust recommended that Aboriginal communities manage their own entry permits for reserve lands. It also proposed that communities be able to take action against trespassers without the intervention of the Commissioner of Aboriginal Affairs.^[637]

Mining

The Crown retains title to all mineral resources on reserves in Western Australia.^[638] Mining can be carried out on lands reserved under Part III of the Aboriginal Affairs Planning Authority Act 1972 (WA) with the consent of the Minister for Mines.^[639] Before granting his or her consent the Minister must consult with the Minister for Aboriginal Affairs.^[640] There is no obligation to consult the Aboriginal Affairs Planning Authority.

Mining tenements on reserve lands are subject to the miner receiving an entry permit.^[641] Before deciding whether to grant a permit the Minister must consult the Aboriginal Lands Trust.^[642] In practice the Trust consults the relevant Aboriginal community. Agreements between applicant miners and communities have included provision for training, sacred sites and payment for disruption.^[643]

Royalties for mineral exploration and mining must be paid to the Crown.^[644] However, section 28(a) of the Aboriginal Affairs Planning Authority Act 1972 (WA) empowers the Authority to receive royalties for the use of its land or natural resources, pursuant to negotiations or the regulations. This power has been delegated to the Aboriginal Lands Trust by proclamation.^[645]

The 1996 review of the Aboriginal Lands Trust recommended that the Trust pay all mining revenue to the Aboriginal communities affected by the mining. It also recommended that the Western Australian Government review the scheme for the payment of mining royalties to the Trust.^[646]

Decision making processes

Neither the Aboriginal Affairs Planning Authority nor the Aboriginal Lands Trust have a specific statutory power to make by-laws. However, the Authority has ‘all such powers, rights and privileges as may be reasonably necessary to enable it to carry out its duties and functions’.^[647]

Section 18 of the Aboriginal Affairs Planning Authority Act 1972 (WA) establishes the Aboriginal Advisory Council.^[648] The Council comprises Aboriginal people chosen by Aborigines living in Western Australia according to a method approved by the Minister.^[649] The purpose of the Council is to advise the Authority on ‘matters relating to the interests and well-being of persons of Aboriginal descent’.^[650] The Minister is required to have regard to the Council’s recommendations but is not bound to give effect to them.^[651]

Aboriginal Communities Act

The council of a community to which the Aboriginal Communities Act 1979 (WA) applies is empowered to make by-laws with respect to a range of matters including access to the lands, traffic on the lands, erection of buildings and supply of alcohol.^[652] By-laws apply to all persons on community lands whether or not they are members of the community.^[653] By-laws cannot override the exercise of any other statutory function such as policing.^[654] They do not come into effect until approved by the Minister and the Governor and are disallowable by Parliament.^[655]

Proceedings to enforce community by-laws are dealt with summarily under the Justices Act 1902 (WA).^[656] The by-laws operate in addition to general State and Federal law. There is no scope for breaches to be resolved by community mechanisms or according to Indigenous laws.

Aboriginal reserves may constitute or be part of a Western Australian local government area for the purposes of the Local Government Act 1960 (WA). Thus communities are potentially governed by Federal Law, State law, local government law and community by-laws.

COMMENTS AND DISCUSSION POINTS

Indigenous communities in Western Australia have limited means of having their traditional ownership of land recognised under State law. The administration of reserve lands is subject to a high level of ministerial and executive control. The Aboriginal Communities Act 1979 (WA) provides greater scope for Indigenous input in the management of community lands although it too is circumscribed by non-Indigenous legal and bureaucratic requirements.

• Does the lack of a land claim process in Western Australia affect Indigenous peoples’ ability to achieve greater political autonomy?

• Is the Aboriginal Communities Act 1979 (WA) a tool for greater self-governance by Indigenous peoples?

• Are Indigenous communities in Western Australia over-governed?

9. AUSTRALIAN CAPITAL TERRITORY

LAND-HOLDING AND GOVERNANCE STRUCTURES

Wreck Bay Aboriginal Community Council

The only land rights legislation that applies in the Australian Capital Territory is the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth).^[657] Under the Act, the Crown made an initial transfer of land at Jervis Bay to the Wreck Bay Aboriginal Community.^[658] There is also provision for land to become ‘Aboriginal land’ by ministerial declaration.^[659] The Minister may make grants of vacant Crown land in this way if it adjoins Aboriginal land and is of significance to the Aborigines who are members of the community.^[660] Parliament can disallow the declaration.^[661] There are separate provisions that enable the Minister to declare areas within Booderee National Park or Booderee Botanic Gardens to be Aboriginal land.^[662] However, the Wreck Bay Aboriginal Community Council is compelled to grant a 99 year lease of any such land to the Commonwealth so it can continue to be used by the general public.^[663]

When an area becomes Aboriginal land under the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth) it is automatically vested in the Wreck Bay Aboriginal Community Council.^[664] The Council, established under Part II of the Act, is a body corporate subject to the Commonwealth Authorities and Companies Act 1997 (Cth). For the purposes of the application of that Act, the members of the executive committee that administers the Council are its directors.^[665]

The Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth) does not specify the nature of the title vested in the Council when areas are declared as Aboriginal land.

However, section 55 amends the Jervis Bay Territory Acceptance Act 1915 (Cth) to provide:

Subject to the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth), Crown lands in the Territory shall not be sold or disposed of for any estate of freehold.

This provision implies that land vested under the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth) is freehold.

The vesting of land under the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth) is subject to the Commonwealth’s right to continue existing occupation or usage for as long as required.^[666]

There is no claims procedure under the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth). However, one of the statutory functions of the Council is to make representations to the Minister concerning land that it considers should become Aboriginal land.^[667] The Council can only challenge a decision not to declare the land to be Aboriginal under administrative law procedures.^[668]

The Wreck Bay Aboriginal Community Council has a number of statutory functions including land use planning, management and maintenance of Aboriginal land, providing community services and protecting and conserving natural and cultural sites on Aboriginal land.^[669] All adult Aborigines resident in the Jervis Bay Territory on 24 May 1986 were entitled to be registered as members of the Council.^[670] The names of adult Aborigines who are members of the community can be added to the register by a motion of a general meeting.^[671] The Council is administered by an executive committee of chairperson, deputy chairperson, secretary and six others elected from the registered membership.^[672]

The Wreck Bay Aboriginal Community Council has no power to dispose of land vested in it under the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth) but it can lease areas for a number of purposes.^[673] For example, 99 year leases can be granted to Council members for domestic purposes and 25 year leases for business

purposes.^[674] On his or her death a member who has a domestic purposes lease or sub-lease can transmit that interest to a relative, either by will or under the laws of intestacy.^[675] The Council may grant a person a licence to use Aboriginal land.^[676]

SELF-GOVERNMENT

Access

The Council can restrict access to areas of Aboriginal land that have been declared significant sites by the Minister.^[677] People who are not members of the community can only enter these areas for official purposes.^[678] However, the Minister can declare that the public continues to have access to a place that forms part of Aboriginal land provided it is not used for domestic purposes and is not a significant site.^[679]

Mining

Any minerals on or below the surface of Aboriginal land in the Jervis Bay Territory are reserved to the Commonwealth.^[680] Mining can only take place pursuant to an agreement between the Wreck Bay Aboriginal Community Council, the Commonwealth and the miner.^[681] The Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth) specifically states that laws applying in the Territory that authorise entry onto land for the purpose of mining or exploration for minerals do not apply on Aboriginal land.^[682]

Decision making processes

The Wreck Bay Aboriginal Community Council is empowered to make by-laws on certain matters for Aboriginal land that is the Jervis Bay Territory but outside Booderee National Park and Booderee Botanic Gardens.^[683] These include economic and cultural activities, land management, conservation of flora or fauna, hunting, shooting and fishing, and the regulation of motor traffic. The by-laws can apply any regulation made under the National Parks and Wildlife Conservation Act 1975 (Cth) including in modified form.^[684] By-laws are disallowable by the Parliament.^[685]
The Minister is required to appoint an officer from his or her Department or from ATSIC as Registrar of the Wreck Bay Aboriginal Community Council.^[686] One of the functions of the Registrar is to inquire into grievances between members concerning actions taken under the Act.^[687] There is no mechanism in the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth) to enable members to resolve disputes themselves although the by-laws may be relevant in some circumstances, for example, in regard to disagreements over the management of Aboriginal land.^[688]

The Wreck Bay Aboriginal Community Council is exempt from rates and taxes, imposed by laws applying to the Jervis Bay Territory, on Aboriginal land.^[689] However, it has no power to levy monies for community services. The Council needs Ministerial approval to enter any contract under which it is liable for more than
$100 000.^[690]

COMMENTS AND DISCUSSION POINTS

The Wreck Bay Aboriginal Community Council has some control over the way Aboriginal land in the Jervis Bay Territory is managed. Although it can only regulate access to significant sites, it has significant by-law making powers and a veto power over mining.

• Does the lack of a land claim process in the ACT affect Indigenous peoples’ ability to achieve greater political autonomy?

• Does the community council governance model established by the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth) allow adequate scope for Indigenous modes of decision making in the administration of community lands?

• Is the role of the registrar under the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth) consistent with the goal of Indigenous self-governance?

^[1] G Nettheim Introduction: Overview of the Project UNSW Sydney 1998.

^[2] Understanding Country: The Importance of Land and Sea in Aboriginal and Torres Strait Islander Societies Council for Aboriginal Reconciliation Canberra 1994, 1.

^[3] Id at 4. Recently, writer David Malouf has spoken of the need for non-Indigenous Australians to come to terms with the way Aboriginal people possess the world at an imaginative level as well as physically and legally: A Spirit of Play: The Making of Australian Consciousness ¾ Boyer Lectures 1998 ABC Books Sydney 1999, 39.

^[4] G Yunupingu ‘We Know These Things to be True’ The Third Vincent Lingiari Memorial Lecture 20 August 1998, 7. Reproduced on the Reconciliation and Social Justice Library hosted by <www.austilii.edu.au>. Yunupingu is an elder of the Gumatj clan at Yirrkala on the Gove Peninsula. He is Chairperson of the NLC.

^[5] I Watson ‘The Future We Leave our Children: Dream or Nightmare?’ December 1998 Rights Now 7.

^[6] D Smyth Understanding Country: The Importance of Land and Sea in Aboriginal and Torres Strait Islander Societies Council for Aboriginal Reconciliation Canberra 1994, 6.

^[7] DB Rose Dingo Makes us Human: Life and Land in an Aboriginal Australian Culture Cambridge University Press Melbourne 1992, 121.

^[8] In Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 (the Gove Land Rights Case) Blackburn J acknowledged that Indigenous law was ‘a subtle and elaborate system highly adapted to the country in which the people led their lives, which provided a stable order of society and was remarkably free from the vagaries of personal whim or influence’ (at 267) but held that the doctrine of communal native title has never formed part of the law of any part of Australia. See N Williams The Yolngu and Their Land: A System of Land Tenure and the Fight for its Recognition Stanford University Press California 1986.

^[9] The principle has a longer history in other former British colonies such as Canada and the United States. See the Project’s third discussion paper: G Meyers & B Landau Environmental and Natural Resources Management by Indigenous Peoples in North America: Inherent Rights to Self-Government: Part 1 — The US Experience UNSW Sydney 1998.

In particular, the position in the Australian common law can be contrasted with that in Canada. There the Supreme Court has recently held that ‘aboriginal title’ derives from the unique source of native occupation and possession of lands prior to assertions of British sovereignty: Delgamuukw v British Columbia (1997) 79 DLR (4th) 185. See the paper on the Delgamuukw decision recently prepared for ATSIC by R Blowes: <www.atsic.gov.au/native/delgamuukw/>.

^[10] (No 2)(1992) 175 CLR 1. There is a wealth of commentary on the decision. See, eg, MA Stephenson and S Ratnapala (eds) Mabo: A Judicial Revolution UQP Brisbane 1993; R Bartlett The Mabo Decision Butterworths Sydney 1993, v-xxvi; Essays on the Mabo Decision Law Book Company Sydney 1993.

^[11] One of the ways that international law has historically recognised the acquisition of sovereignty is by the settlement of land classified as deserted or terra nullius. In this way territory of so-called ‘backward peoples’ was occupied without apparent conquest: Mabo at 32.

^[12] Settlers in other European colonies ‘did not deny that the indigenes were the original owners of the soil, whatever else they might have done in the course of colonisation’: H Reynolds The Law of the Land Penguin Melbourne 1987, 3-4. See also G Nettheim ‘Native Title, Fictions and “Convenient Falsehoods”’ (1998) 4 Law Text Culture 70.

^[13] G Yunupingu ‘We Know These Things to be True’ The Third Vincent Lingiari Memorial Lecture 20 August 1998, 2. Reproduced on the Reconciliation and Social Justice Library hosted by <www.austilii.edu.au>.

^[14] ‘[N]ative title is effective...as against the whole world unless the State, in valid exercise of its legislative or executive power, extinguishes the title.’: Mabo at 75.

^[15] Mabo at 58.

^[16] Aboriginal and Torres Strait Islander Social Justice Commissioner Native Title Report July 1994 - June 1995 HREOC Sydney 1995, 50.

^[17] S Perera & J Pugliese ‘“If native title is us, its inside us”: Jabiluka and the Politics of Intercultural Negotiation ¾ Interview with Jacqui Katona’ (1998) 10 Australian Feminist Law Journal 1, 8.

^[18] Mabo at 69.

^[19] See Aboriginal and Torres Strait Islander Social Justice Commissioner Native Title Report January ¾ June 1994 HREOC 1995 ch 3.

^[20] Fejo v Northern Territory of Australia (unreported) HCA 10 September 1998. See L Strelein ‘Fiction Over Fact: Extinguishing Native Title in the Larrakia Case’ [1999] IndigLawB 16; (1999) 4(18) Indigenous Law Bulletin 18.

^[21] Specifically, the non-Indigenous community was concerned about the need to validate titles since 1975 that were probably invalid under the Racial Discrimination Act 1975 (Cth), the need for a process to allow development to occur on native title land and the need for certainty about whether land was subject to native title: H McRae, G Nettheim & L Beacroft Indigenous Legal Issues 2nd ed LBC Sydney 1997, 219.

^[22] H Wootten ‘Mabo: Issues and Challenges’ Selected Conference Papers Judicial Commission of NSW Sydney 1994, 347.

^[23] For an overview of the land currently subject to a native title claim see National Native Title Tribunal Annual Report 1997-98 National Native Title Tribunal Perth 1998, 66-133; <www.nntt.gov.au>.

^[24] Native Title Amendment Act 1998 (Cth). The Federal Government stated that the amendments were a response to the decision in Wik Peoples v Queensland (1996) 134 ALR 637 in which the High Court held that pastoral leases and native title could co-exist. The Government argued that the decision created further uncertainty and proposed a ‘10 point plan’ to amend the NTA: Department of the Prime Minister and Cabinet Media Release 4 June 1997. However, the plan itself had largely been developed by the Coalition in opposition well before Wik was handed down: F Brennan The Wik Debate: Its Impact on Aborigines, Pastoralists and Miners UNSW Press Sydney 1998, 35. See also ‘Wik: The Aftermath and Implications’ (1997) 3(2) UNSW Law Journal Forum; The Wik Summit Papers: 22-24 January 1997 Cape York Land Council Cairns 1997.

In March 1999, the UN Committee on the Elimination of Racial Discrimination decided that the amended NTA breaches the UN Convention on the Elimination of All Forms of Racial Discrimination: CERD/C/54/Misc.40/Rev.2.

^[25] NTA s 223(1).

^[26] NTA Pt 2 Div 6.

^[27] Hansard (H of R) 16 November 1993, 2881.

^[28] These amendments appear in Sch 3 to the 27 July 1998 reprint of the NTA.

^[29] NTA s 203A. ‘Eligible body’ is defined as a body corporate registered under the Aboriginal Councils and Associations Act 1976 (Cth) with objects that enable it to perform the new functions of a representative body, a body corporate that is a pre-existing representative body or a body corporate established under a prescribed law. A ‘registered native title body corporate’ cannot be a representative body: NTA s 201B. Registered native title bodies corporate are prescribed bodies corporate that are registered on the National Native Title Register: s 253. The Minister has announced proposed invitation areas. A final decision will be made once interested parties have had the opportunity to comment on the proposal: Senator John Herron, Minister for Aboriginal and Torres Strait Islander Affairs Media Release 19 February 1999.

^[30] NTA ss 203AA. Under the new regime, only one NTRB will be able to represent each geographical area. This will have a significant effect in some areas. Eg in Western Australia there are regional NTRBs and, in addition, the Aboriginal Legal Service of WA is currently recognised as an NTRB for the State.

^[31] NTA s 202(3). In considering these first two criteria, the Minister must take into account whether the body’s organisational structures and administrative processes will operate in a fair manner: s 203AI(1). The criteria for assessing fairness include the opportunities for those the body represents to participate in its processes and be consulted, its decision making procedures, its rules of conduct, its management structures and its procedures for reporting back to Indigenous communities: s 203AI(2).

^[32] ATSIC Information Paper: Implementation of New Legislative Provisions Relating to Native Title Representative Bodies ATSIC Canberra 1998. See also ATSIC Video Changes to Native Title Representative Bodies ATSIC Canberra 1998.

^[33] The Corporation represents the Mirrar peoples: Mirrar Gundjehmi, Mirrar Urningangk and Mirrar Mengerrdji. It was established to collect royalties after the Mirrar people agreed to the federal Government building the Ranger uranium mine on their country.

^[34] S Perera & J Pugliese ‘“If native title is us, its inside us”: Jabiluka and the Politics of Intercultural Negotiation ¾ Interview with Jacqui Katona’ (1998) 10 Australian Feminist Law Journal 1, 12 & 17.

^[35] Id at 16.

^[36] See CAEPR Issue Brief 17: Principles and Implications of Aboriginal Sharing March 1997: <online.anu.edu.au/caepr/brief17.htm>.

^[37] This means accommodating what anthropologists have referred to as the ‘Aboriginal domain’: T Rowse Remote Possibilities: The Aboriginal Domain and the Administrative Imagination North Australia Research Unit, Australian National University Canberra 1992.

^[38] Federation Press Sydney 1995, 2.

^[39] Id at 6.

^[40] Id at 108.

^[41] M Cranney & D Edwards Research Report: Concept Study into an Australian Indigenous Leadership Development Program AIATSIS Canberra 1998.

^[42] Id at 16. The authors acknowledge (at 14) that the term ‘Indigenous leadership’ may be considered inappropriate and elitist by some Indigenous people who would emphasise the role of representative spokespersons instead.

^[43] CAEPR Issue Brief 7: Linking Accountability and Self-Determination in Aboriginal Organisations November 1996: <online.anu.edu.au/caepr/brief7.htm>.

^[44] Ibid.

^[45] ATSIC Review of Native Title Representative Bodies ATSIC Canberra 1995.

^[46] Id at 21.

^[47] Aboriginal Land Rights Act (Northern Territory) 1976 (Cth) s 23(3). See pp 15-16 for further discussion of this provision.

^[48] 46 277 out of 195 101 people in the NT identified as Indigenous at the 1996 ABS Census. This is 23.7% of the population: <www.abs.gov.au>.

^[49] [1993] FCA 465; (1993) 117 ALR 206. The Reeves Report recently recommended that the NTA be amended to provide that a past or future grant of land under the ALRA extinguishes all native title rights in that land: J Reeves QC Building on Land Rights for the Next Generation: The Review of the Aboriginal Land Rights (Northern Territory) Act 1976 ATSIC Canberra 1998. See pp 18-19 for further detail on the Reeves recommendations.

^[50] [1993] FCA 465; (1993) 117 ALR 206 at 215.

^[51] G Nettheim ‘The Relationship Between Native Title and Statutory Title Under Land Rights Legislation’ in MA Stephenson (ed) Mabo: The Native Title Legislation UQP Brisbane 1995, 183-200.

^[52] See W Deane ‘Preface’ in G Yunupingu (ed) Land Rights ¾ Past, Present and Future UQP Brisbane 1997, x.

^[53] C Athanasiou ‘Land Rights or Native Title’ (1998) 4 (12) Indigenous Law Bulletin 14, 15.

^[54] See A Wright (ed) Take Power Like This Old Man Here: An Anthology of Writings Celebrating Twenty Years of Land Rights in Central Australia 1977-97 IAD Press Alice Springs 1998, 1-35.

^[55] The Gurindji purchased the land at Wave Hill with money from the Aboriginal Land Fund. They received inalienable freehold title to the land under the ALRA in 1986. The Aboriginal Land Commissioner recommended that the grant be made in Report 20 submitted to the Federal Government in April 1985: Aboriginal Land Commissioner Report for the Year Ended 30 June 1998 ATSIC Canberra 1998, 21.

For an overview of politics and Indigenous Australia see the time-line in: Aboriginal and Torres Strait Islander Social Justice Commissioner Fifth Report 1997 HREOC Sydney 1998, 54-75.

^[56] Aboriginal Land Rights Commission First Report AGPS Canberra 1973, 41. Woodward also made a number of comments about how land could vest in Aboriginal groups: 45-48.

^[57] Aboriginal Land Rights Commission Second Report Government Printer of Australia Canberra 1975, 9-11.

^[58] Aboriginal Land (Northern Territory) Bill 1975 (Cth): Hansard (H of R) 16 October 1975, 2222. The package included land fund, loans fund and Aboriginal associations legislation.

^[59] Hansard (H of R) 16 October 1975, 2225.

^[60] Hansard (H of R) 4 June 1976, 3082.

^[61] Id at 3084. For an overview of the impact of the ALRA in the past 20 years see G Yunupingu (ed) Land Rights ¾ Past, Present and Future UQP Brisbane 1997.

^[62] Grants of Sch 1 land are made under ALRA ss 10, 12. ‘Aboriginal land’ is defined as land held under freehold title that has been granted to the traditional Aboriginal owners either as a result of a land claim or as a result of its inclusion in Sch 1: s 3(1).

^[63] See Aboriginal Land Rights (Northern Territory) Amendment Act 1978 (Cth), Aboriginal Land Rights Legislation Amendment Act 1982 (Cth), Aboriginal Land Rights (Northern Territory) Amendment Act 1985 (Cth), Aboriginal Land Rights (Northern Territory) Amendment Act 1989 (Cth), Aboriginal Land Rights (Northern Territory) Amendment Act 1993 (Cth), Aboriginal Land Rights (Northern Territory) Amendment Act 1994 (Cth), Aboriginal Land Rights (Northern Territory) Amendment Act 1995 (Cth), Aboriginal Land Rights (Northern Territory) Amendment Act(No 2), 1995 (Cth), Aboriginal Land Rights (Northern Territory) Amendment Act 1997 (Cth).

^[64] ALRA ss 11, 12.

^[65] ALRA s 3. Aboriginal tradition is defined as ‘the body of traditions, observances, customs and beliefs of Aboriginals or of a community or group of Aboriginals, and includes those traditions, observances, customs and beliefs as applied in relation to particular persons, sites, ares of land, things or relationships’ (s 3).

^[66] ALRA s 50(2A).

^[67] Aboriginal Land Commissioner Report for the Year Ended 30 June 1998 ATSIC Canberra 1998, 10-20.

^[68] Id at 21-24. Outstanding claims include matters where no inquiry has commenced, matters where the inquiry is incomplete, repeat claims and claims to stock routes: 25-29

^[69] ALRA s 50(1)(a).

^[70] ALRA ss 19, 20. The role of Land Councils is outlined at pp 15-17.

^[71] ALRA s 19(4).

^[72] ALRA ss 19(2)-(4A).

^[73] ALRA s 19(7).

^[74] ALRA s 4(1).

^[75] ALRA s 4(3). Two or more areas of land held by different Land Trusts can be amalgamated: ALRA ss 4(1C), 10, 11. It is also possible for an area of land the subject of a claim under s 50(1)(a) of the ALRA to be split between a number of Trusts: ALRA s 11.

^[76] ALRA s 5(1)(b).

^[77] ALRA s 5(2).

^[78] ALRA s 6.

^[79] ALRA ss 7(1), (3).

^[80] ALRA s 7(1A).

^[81] ALRA s 7(6).

^[82] ALRA s 7(7).

^[83] Aboriginal Land Rights Commission Second Report Government Printer of Australia Canberra 1975, 14.

^[84] ALRA ss 35(1), 64(1). See p 26.

^[85] ALRA ss 21(1), (2) & 22(1).

^[86] See CLC The Land is Always Alive: The Story of the Central Land Council CLC Alice Springs 1994; A Wright (ed) Take Power Like This Old Man Here: An Anthology of Writings Celebrating Twenty Years of Land Rights in Central Australia 1977-97 IAD Press Alice Springs 1998.

^[87] ALRA ss 23(1)(a), (b), (ba), (c), (e), (f), (h).

^[88] ALRA s 23(3).

^[89] ALRA s 77A.

^[90] ALRA s 25(2).

^[91] ALRA s 27.

^[92] ALRA s 34(1).

^[93] ALRA s 33.

^[94] ALRA s 32.

^[95] ALRA s 37.

^[96] ALRA s 37A(1).

^[97] Commonwealth Authorities and Companies Act 1997 (Cth) ss 7, 8. In addition, Land Councils must prepare budget estimates: ALRA s 34(3A).

^[98] ALRA s 19(1).

^[99] ALRA ss 30(1), (4).

^[100] ALRA s 30(5).

^[101] CLC Annual Report 1997-1998 CLC Alice Springs 1998, 9; NLC Annual Report 1997-1998 NLC Darwin 1998, 8.

^[102] The CLC has 7 regional offices. Several of these service two Council regions. For example, the Alice Springs office services the Central and Eastern Plenty Regions: CLC Annual Report 1997-1998 CLC Alice Springs 1998, 10. The NLC has 8 regional offices: NLC Annual Report 1997-1998 NLC Darwin 1998, 8.

^[103] ALRA s 31(5).

^[104] ALRA s 31(7).

^[105] ALRA ss 28(1), 29A(1).The Council cannot delegate core policy functions such as the power to consent to the grant of a mining interest in Aboriginal land: s 28(a)(ii).

^[106] B Rowland QC An Examination of the Aboriginal Land Rights (Northern Territory) Act 1976-1980 Department of Aboriginal Affairs Canberra 1980.

^[107] Id appendix 1.

^[108] J Toohey Seven Years On AGPS Canberra 1994, 53.

^[109] Ibid.

^[110] Building on Land Rights for the Next Generation: The Review of the Aboriginal Land Rights (Northern Territory) Act 1976 ATSIC Canberra 1998.

^[111] Id at 600, 616. It is proposed that Northern Territory Aboriginal Council members would be appointed jointly by the federal Minister for Aboriginal and Torres Strait Islander Affairs and the Chief Minister of the Northern Territory from a list of nominations made by Indigenous Territorians: 607.

^[112] Id at 601.

^[113] Id ch 28. Substantive recommendations on the Aboriginal Benefits Reserve are included in ch 16.

^[114] I Viner ‘Whither Land Rights in the Northern Territory? Whither Self-Determination? A Review of the Reeves Report’ [1999] AUIndigLawRpr 24; (1999) 4 Australian Indigenous Law Reporter 1 at 2.

^[115] See, eg, ibid; ATSIC Aboriginal and Torres Strait Islander Peoples and Australia’s Obligations Under the UN Convention on the Elimination of all Forms of Racial Discrimination: A Report to the UN Committee on the Elimination of Racial Discrimination ATSIC Canberra 1999, 56-67; Josie Crawshaw, ATSIC Commissioner Media Release 11 March 1999.

^[116] M Mowbray ‘Redefining Land Rights: The Review of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)’ [1999] IndigLawB 13; (1999) 4(18) Indigenous Law Bulletin 9. Concern has also been raised about Reeves’ use of anthropological sources: see, eg, H Morphy ‘The Use of Anthropology in the Reeves Report’ [1999] IndigLawB 14; (1999) 4(18) Indigenous Law Bulletin 13; P Sutton Anthropological Submission on the Reeves Review 10/2/99 unpublished ¾ prepared for the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs.

^[117] Miscellaneous Acts Amendment (Aboriginal Community Living Areas) Act 1989 (NT).

^[118] The Minister cannot consent to the disposal of the fee simple in part of the excision unless the land has been abandoned (see fn 196): Associations Incorporation Act 1963 (NT) s 26A(3A). Excised land can only be compulsorily acquired to provide essential services such as power, water or sewerage: Lands Acquisition Act 1978 (NT) s 28A. Mining Act 1980 (NT) s 174AA(1) prohibits mining on excised land. See p 26.

^[119] Sixteen excision claims (out of 42 applications) have been granted in the CLC region and 11 in the NLC region: CLC Annual Report 1997-1998 CLC Alice Springs 1998, 21; NLC Annual Report 1997-1998 NLC Darwin 1998, 20.

The Northern Territory Government has frozen excision grants due to concerns about liability for compensation under the future acts provisions of the NTA: CLC Annual Report 1997-1998 CLC Alice Springs 1998, 21.

^[120] The Memorandum of Understanding is a Schedule to the Miscellaneous Acts Amendment (Aboriginal Community Living Areas) Act 1989 (NT) but has not been reproduced in the Pastoral Land Act 1992 (NT).

^[121] The Aboriginal Land Rights (Northern Territory) Amendment Act 1987 (Cth) inserted s 50(2D) to implement this element of the Memorandum but the provision has yet to be commenced.

^[122] Pastoral Land Act 1992 (NT) s 92. The CLC has pointed out that ‘need’ is based on the western concept of ‘adequate housing circumstances or land upon which this might be provided’: CLC Annual Report 1997-1998 CLC Alice Springs 1998, 20.

^[123] Pastoral Land Act 1992 (NT) s 104(1).

^[124] Pastoral Land Act 1992 (NT) s 109(1)(b).

^[125] This distinction between traditional Aboriginal owners and those with rights arising from historical association with land is also made under Queensland legislation. See pp 58-59 .

^[126] These Acts provide a form of incorporation generally used to set up associations for religious, sporting, cultural and recreational activities. See discussion at pp 27-28.

^[127] CLC Annual Report 1997-1998 CLC Alice Springs 1998, 19.

^[128] Id at 20.

^[129] This management structure may change if the Federal Government continues with its plan to transfer responsibility for environmental management to the States and Territories: id at 67; Aboriginal and Torres Strait Islander Heritage Protection Bill 1998 (Cth).

^[130] Co-management can also arise outside national parks. For example, the settlement agreement for the Kartangurruru, Warlpiri & Walmajeri (Repeat) land claim provides for a joint committee of traditional owners and the Northern Territory Parks and Wildlife Commission to oversee flora and fauna surveys, feral animal control and bushfire management in the region: id at 17.

^[131] s 7(2)(a).

^[132] Cobourg Peninsula Aboriginal Land, Sanctuary and Marine Park Act 1987 (NT) s 5(1). The deed of grant excludes all public roads and all minerals on the land are reserved to the Crown: s 13(2), (3). The Trust is under a statutory obligation to grant a lease to enable the Paspaley Pearling Company to continue its business until at least 2012: s 39(1).

^[133] Cobourg Peninsula Aboriginal Land, Sanctuary and Marine Park Act 1987 (NT) s 5(2).

^[134] Cobourg Peninsula Aboriginal Land, Sanctuary and Marine Park Act 1987 (NT) s 11. Cobourg Marine Park was established under Territory Park and Wildlife Conservation Act 1978 (NT) s 12.

^[135] Cobourg Peninsula Aboriginal Land, Sanctuary and Marine Park Act 1987 (NT) s 16.

^[136] Cobourg Peninsula Aboriginal Land, Sanctuary and Marine Park Act 1987 (NT) ss 8(2), (3).

^[137] Cobourg Peninsula Aboriginal Land, Sanctuary and Marine Park Act 1987 (NT) s 12.

^[138] Cobourg Peninsula Aboriginal Land, Sanctuary and Marine Park Act 1987 (NT) s 15(1). The original fee was $20 000. The amount is adjusted annually according to percentage rises in the average weekly wage: s 15(4).

^[139] Cobourg Peninsula Aboriginal Land, Sanctuary and Marine Park Act 1987 (NT) s 15(2).

^[140] Cobourg Peninsula Aboriginal Land, Sanctuary and Marine Park Act 1987 (NT) s 18(1).

^[141] Cobourg Peninsula Aboriginal Land, Sanctuary and Marine Park Act 1987 (NT) s 19(1).

^[142] Cobourg Peninsula Aboriginal Land, Sanctuary and Marine Park Act 1987 (NT) ss 22(3), (5).

^[143] Cobourg Peninsula Aboriginal Land, Sanctuary and Marine Park Act 1987 (NT) s 24. ‘Aboriginal tradition’ is defined in s 3 as the body of traditions, observances, customs and beliefs of Aboriginals or a community or group of Aboriginals and includes ‘traditions, observances, customs and beliefs as applied in relation to particular persons, sites, areas of land, things or relationships’.

^[144] Cobourg Peninsula Aboriginal Land, Sanctuary and Marine Park Act 1987 (NT) s 25(1).

^[145] Cobourg Peninsula Aboriginal Land, Sanctuary and Marine Park Act 1987 (NT) s 25(2).

^[146] Cobourg Peninsula Aboriginal Land, Sanctuary and Marine Park Act 1987 (NT) s 27(2).

^[147] Cobourg Peninsula Aboriginal Land, Sanctuary and Marine Park Act 1987 (NT) ss 27 (4)(a), (b), (f), (h).

^[148] Cobourg Peninsula Aboriginal Land, Sanctuary and Marine Park Act 1987 (NT) s 27(6).

^[149] Cobourg Peninsula Aboriginal Land, Sanctuary and Marine Park Act 1987 (NT) s 28(2). If a plan of management is disallowed twice by the Parliament, the matter is referred to the Chief Justice of the Northern Territory for advice: s 28(6).

^[150] Nitmiluk (Katherine Gorge) National Park Act 1989 (NT) ss 5(1), 6(1). The Corporation was established under the Parks and Wildlife Commission Act 1995 (NT) s 39(1) to acquire, hold and dispose of real property. The Parks and Wildlife Commission has the care, control and management of all land held by the Corporation: s 39(6).

^[151] Nitmiluk (Katherine Gorge) National Park Act 1989 (NT) s 8. Traditional owners are defined in the same terms as under the ALRA: see p 12.

^[152] Nitmiluk (Katherine Gorge) National Park Act 1989 (NT) s 10(1)(a). The Chairperson and Deputy Chairperson of the Board must be elected from the members who are traditional owners.

The Jawoyn Association can authorise the NLC to perform any of its functions under the Act: s 3(2).

^[153] Nitmiluk (Katherine Gorge) National Park Act 1989 (NT) ss 16(a), (c), (d).

^[154] Nitmiluk (Katherine Gorge) National Park Act 1989 (NT) s 17.

^[155] Memorandum of Lease cl 6: Nitmiluk (Katherine Gorge) National Park Act 1989 (NT) Sch 1. The rent is reviewed every 3 years: cl 7.

^[156] Memorandum of Lease cl 11(q): Nitmiluk (Katherine Gorge) National Park Act 1989 (NT) Sch 1. There are a number of other relevant covenants, including encouraging Aboriginal business and commercial initiatives within the Park (cl 11(p)) and engaging as many Aborigines as practicable to provide services in the Park (cl 11(n)).

^[157] Nitmiluk (Katherine Gorge) National Park Act 1989 (NT) s 20(7). A plan can be in force for up to 10 years: s 20(4). The Cobourg Peninsula Aboriginal Land, Sanctuary and Marine Park Act 1987 (NT) does not impose a time limit.

^[158] Nitmiluk (Katherine Gorge) National Park Act 1989 (NT) s 20(9).

^[159] Nitmiluk (Katherine Gorge) National Park Act 1989 (NT) s 20(2).

^[160] Nitmiluk (Katherine Gorge) National Park Act 1989 (NT) s 21(6). A panel appointed under s 21(7) must include one person nominated by the Board and one person nominated by the Minister. These people nominate the other panellist.

^[161] Nitmiluk (Katherine Gorge) National Park Act 1989 (NT) s 27.

^[162] Nitmiluk (Katherine Gorge) National Park Act 1989 (NT) s 19(1).

^[163] ALRA s 71(2).

^[164] ALRA s 70(1).

^[165] Aboriginal Land Act 1978 (NT) ss 4, 5.

^[166] Aboriginal Land Act 1978 (NT) ss 12, 13.

^[167] Aboriginal Land Act 1978 (NT) ss 15, 16.

^[168] Building on Land Rights for the Next Generation: The Review of the Aboriginal Land Rights (Northern Territory) Act 1976 ATSIC Canberra 1998, 308-09.

^[169] Id at 383.

^[170] Aboriginal Land Rights Commission Second Report Government Printer of Australia Canberra 1975, 108.

^[171] ALRA s 40(a).

^[172] ALRA s 40(b).

^[173] ALRA s 41(6).

^[174] ALRA s 42(6).

^[175] ALRA s 46(1).

^[176] ALRA s 45. Under this system, traditional owners may have to decide on the merits of a project early when relatively limited information is available: NLC Annual Report 1997-1998 NLC Darwin 1998, 7.

^[177] ALRA s 44A(1).

^[178] Building on Land Rights for the Next Generation: The Review of the Aboriginal Land Rights (Northern Territory) Act 1976 ATSIC Canberra 1998, 540-41. cf CLC Mines and Myths: The Truth about Mining on Aboriginal Land CLC Alice Springs 1998.

^[179] ALRA s 63(2).

^[180] ALRA ss 64. 40% of the money goes to Land Councils for their administrative costs. The NLC receives 22% of this, the CLC 15%, the Tiwi Land Council 2% and Anindilyakwa Land Council 1%: NLC Annual Report 1997-1998 NLC Darwin 1998, 50.

^[181] See the Indigenous local government material at pp 29-30.

^[182] ALRA s 25(3).

^[183] Lands Acquisition Act 1978 (NT) s 46(1B)(a)(ii).

^[184] Mining Act 1980 (NT) s 174AA(1).

^[185] The definition of ‘association’ indicates the breadth of organisations covered by the Associations Incorporation Act 1978 (NT): ‘an association, society, institution or body formed or carried on for a religious, educational, benevolent or charitable purpose, for the purpose of providing medical treatment or attention or promoting or encouraging literature, science or art or for the purpose of recreation or amusement or of beautifying or improving a community centre, being an association, society, institution or body the activities of which are carried on in whole or in part in the Territory...’: Associations Incorporation Act 1978 (NT) s 4(1). The Act regulates trading associations more comprehensively than other associations.

^[186] Associations Incorporation Act 1978 (NT) ss 20, 25.

^[187] Associations Incorporation Act 1978 (NT) s 9(1).

^[188] Associations Incorporation Act 1978 (NT) s 7(2)(d). The Registrar must be notified of the committee members or persons who have management of the association at the time of incorporation but there is no continuing requirement to notify him or her as those persons change. However, the public officer of the association must notify the Registrar of his or her current identity and address: s 14.

^[189] Associations Incorporation Act 1978 (NT) s 25(3).

^[190] Associations Incorporation Act 1978 (NT) s 25AU.

^[191] Associations Incorporation Act 1978 (NT) s 25AX.

^[192] Associations Incorporation Act 1978 (NT) s 23A.

^[193] Associations Incorporation Act 1978 (NT) ss 4, 22A.

^[194] The ‘town camps’ in Alice Springs that are represented by Tangentyere Council are on special purpose leases granted by the Northern Territory Government pursuant to the Special Purposes Leases Act 1979 (NT). Under this Act, lessees pay rent and the land can be resumed for certain purposes, for example, water conservation: s 28(a)(iv).

^[195] Associations Incorporation Act 1978 (NT) s 26A(3A).

^[196] Land is defined as abandoned if no association member has occupied it as a principal place of residence in the last five years: Pastoral Land Act 1992 (NT) s 114(1). An adjacent lessee can apply to have abandoned land incorporated in his or her lease: s 114(2). The application is determined by the Community Living Areas Tribunal: ss 114(3), (4).

^[197] Cobourg Aboriginal Land, Sanctuary and Marine Park Act 1987 (NT) s 4.

^[198] Claim No 193 Lodged 29 May 1997: Aboriginal Land Commissioner Report for the Year Ended 30 June 1998 ATSIC Canberra 1998, 18.

^[199] Cobourg Peninsula Aboriginal Land, Sanctuary and Marine Park Act 1987 (NT) s 33.

^[200] Cobourg Peninsula Aboriginal Land, Sanctuary and Marine Park Act 1987 (NT) s 34(1).

^[201] Cobourg Peninsula Aboriginal Land, Sanctuary and Marine Park Act 1987 (NT) s 34(2).

^[202] Cobourg Peninsula Aboriginal Land, Sanctuary and Marine Park Act 1987 (NT) ss 35(1)(a), (b), (g), (k), (u).

^[203] Claim No 240 Lodged 4 June 1997: Aboriginal Land Commissioner Report for the Year Ended 30 June 1998 ATSIC Canberra 1998, 19.

^[204] See p 23.

^[205] Nitmiluk (Katherine Gorge) National Park Act 1989 (NT) s 25(1).

^[206] Nitmiluk (Katherine Gorge) National Park Act 1989 (NT) s 25(2)(zh).

^[207] The Local Government Act 1993 (NT) applies to incorporated associations performing local government functions: Associations Incorporation Act 1978 (NT) s 25AZF.

^[208] Pt 5.

^[209] Local Government Act 1993 (NT) Pt 6.

^[210] Local Government Act 1993 (NT) Pts 10-13.

^[211] Local Government Act 1993 (NT) s 97.

^[212] Local Government Act 1993 (NT) ss 100, 101.

^[213] Local Government Act 1993 (NT) s 105(2).

^[214] Local Government Act 1993 (NT) s 97(1).

^[215] Local Government Act 1993 (NT) s 97(2).

^[216] Local Government Act 1993 (NT) s 122(2).

^[217] M Mowbray ‘Subverting the Aboriginal land Rights (NT) Act 1976: the NT Local Government Act 1993’ [1998] IndigLawB 27; (1998) 4(10) Indigenous Law Bulletin 12,13.

^[218] Ibid.

^[219] Aboriginal Lands Trust Act 1966 (SA) s 5.

^[220] Aboriginal Lands Trust Act 1966 (SA) s 16(1).

^[221] Aboriginal Lands Trust Act 1966 (SA) s 5(2).

^[2]18 Aboriginal Lands Trust Act 1966 (SA) s 6(1). For a list of current members see Aboriginal Lands Trust Annual Report for the Year Ended 1997 Aboriginal Lands Trust Adelaide 1998, 9.

^[222] Id at 4, 11.

^[223] For a history of this land rights movement see P Toyne & D Vachon Growing up the Country: The Pitjantjatjara Struggle for Their Land Penguin Books Melbourne 1984.

^[224] Pitjantjatjara Land Rights Working Party Report of the Pitjantjatjara Land Rights Working Party of South Australia Pitjantjatjara Land Rights Working Party Adelaide 1978, 2.

^[225] Id rec 1.

^[226] Id at 6-10.

^[227] Id rec 11.

^[228] P Toyne & D Vachon Growing up the Country: The Pitjantjatjara Struggle for Their Land Penguin Books Melbourne 1984, 66-69.

^[229] Select Committee of the House of Assembly Report of the Select Committee of the House of Assembly on the Pitjantjatjara Land Rights Bill, 1979 Government Printer Adelaide 1979.

^[230] This included publishing an open letter to the Premier in the Adelaide Advertiser: P Toyne & D Vachon Growing up the Country: The Pitjantjatjara Struggle for Their Land Penguin Books Melbourne 1984, 89.

^[231] Id at 121.

^[232] Pitjantjatjara Land Rights Act 1981 (SA) s 15.

^[233] Pitjantjatjara Land Rights Act 1981 (SA) s 4.

^[234] N Peterson ‘South Australia’ in N Peterson (ed) Aboriginal Land Rights: A Handbook AIATSIS Canberra 1981, 121.

^[235] Pitjantjatjara Land Rights Act 1981 (SA) ss 6(1)(b), 7.

^[236] Pitjantjatjara Land Rights Act 1981 (SA) ss 9(1), 11.

^[237] Pitjantjatjara Land Rights Act 1981 (SA) s 17.

^[238] Maralinga Tjarutja Land Rights Act 1984 (SA) ss 6, 7. ‘Leader’ is defined as a person who has been accepted, in accordance with the customs of the traditional owners, as one of their leaders: s 3. Traditional owners is defined in the same terms as under the Pitjantjatjara Land Rights Act 1981 (SA): s 3.

^[239] Maralinga Tjarutja Land Rights Act 1984 (SA) s 8.

^[240] Relative to other jurisdictions this represents progress on purely statistical grounds. At the 1996 ABS Census, 1.4% of the SA population reported being Indigenous: <www.abs.gov.au>.

^[241] Pitjantjatjara Land Rights Act 1981 (SA) s 42c; Maralinga Tjarutja Land Rights Act 1984 (SA) s 43.

^[242] Aboriginal Lands Trust Act 1966 (SA) s 16(5)(a). s 16(6) prohibits the alienation of land in the North-West Reserve.

^[243] Aboriginal Lands Trust Annual Report for the Year Ended 1997 Aboriginal Lands Trust Adelaide 1998, 10 & 32. Leases are generally granted for 25 years, 99 years or the lifetime of an individual.

^[244] Aboriginal Lands Trust Act 1966 (SA) s 16(2). This includes gold, silver, copper, tin and other metals, ore, minerals and other substances containing metal, gems and precious stones, coal and mineral oil in and on the land.

^[245] Aboriginal Lands Trust Act 1966 (SA) ss 16(8), (9).

^[246] Aboriginal Lands Trust Act 1966 (SA) s 16(9).

^[247] Aboriginal Lands Trust Act 1966 (SA) s 16(4).

^[248] Aboriginal Lands Trust Act 1966 (SA) s 16a(2).

^[249] Aboriginal Lands Trust Act 1966 (SA) s 16(3).

^[250] Aboriginal Lands Trust Act 1966 (SA) ss 16(1)(b), (c).

^[251] Aboriginal Lands Trust Act 1966 (SA) s 21. In 1990, the Aboriginal Lands Trust (Control of Alcoholic Liquor and Regulated Substances on Yalata Reserve) Regulations 1990 (SA) were promulgated to prohibit the transportation of alcohol to the Yalata Aboriginal Community and to prohibit its possession or consumption.

^[252] Aboriginal Lands Trust Act 1966 (SA) s 20a.

^[253] Aboriginal Lands Trust Act 1966 (SA) ss 20a(3)(b), (4). The Committee is established by s 20b of the Act. For a list of current Panel members see Aboriginal Lands Trust Annual Report for the Year Ended 1997 Aboriginal Lands Trust Adelaide 1998, 8.

^[254] Pitjantjatjara Land Rights Act 1981 (SA) s 19. This section was the subject of challenge under the Racial Discrimination Act 1975 (Cth) in Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70. A ‘Pitjantjatjara’ is defined as a member of the Pitjantjatjara, Yungkutatjara or Ngaanatjara people: s 4. See also Maralinga Tjarutja Land Rights Act 1984 (SA) s 18(1).

^[255] Pitjantjatjara Land Rights Act 1981 (SA) s 19(5)(b); Maralinga Tjarutja Land Rights Act 1984 (SA) s 18(3).

^[256] Pitjantjatjara Land Rights Act 1981 (SA) s 19(3); Maralinga Tjarutja Land Rights Act 1984 (SA) s 18(5)(b).

^[257] Maralinga Tjarutja Land Rights Act 1984 (SA) s 18(11)(e).

^[258] Maralinga Tjarutja Land Rights Act 1984 (SA) s 20. Special provisions also apply to the residents of Cook for recreational and sporting purposes and to certain rabbit trappers: ss 19, 18(11)(f), 18(15). This lesser control over access is criticised in P Toyne & D Vachon Growing up the Country: The Pitjantjatjara Struggle for Their Land Penguin Books Melbourne 1984, 131.

^[259] Property in all minerals and petroleum in SA is vested in the Crown: Mining Act 1971 (SA) s 16(1); Petroleum Act 1940 (SA) s 4(1).

^[260] Anangu Pitjantjatjara’s powers do not extend to the Mintabie Precious Stones Field: Pitjantjatjara Land Rights Act 1981 (SA) Pt III Div IV. See P Toyne & D Vachon Growing up the Country: The Pitjantjatjara Struggle for Their Land Penguin Books Melbourne 1984,

104-107.

^[261] Pitjantjatjara Land Rights Act 1981 (SA) ss 20, 21; Maralinga Tjarutja Land Rights Act 1984 (SA) ss 21, 23.

^[262] Pitjantjatjara Land Rights Act 1981 (SA) s 20(8); Maralinga Tjarutja Land Rights Act 1984 (SA) s 21(10).

^[263] Maralinga Tjarutja Land Rights Act 1984 (SA) s 21(11). Conciliation involves the Minister of Mines and Energy, the Minister of Aboriginal Affairs, Maralinga Tjarutja and the applicant. Any references to the SA Minister of Aboriginal Affairs should currently be read as references to the Minister for Environment, Heritage and Aboriginal Affairs.

^[264] Pitjantjatjara Land Rights Act 1981 (SA) ss 20(15)(a), (c); Maralinga Tjarutja Land Rights Act 1984 (SA) ss 21(19)(a), (c). The factors listed in these sections resemble those to be taken into account in similar circumstances under the Native Title Act 1993 (Cth) s 39(1).

^[265] Pitjantjatjara Land Rights Act 1981 (SA) s 20(11); Maralinga Tjarutja Land Rights Act 1984 (SA) s 21(13).

^[266] Maralinga Tjarutja Land Rights Act 1984 (SA) s 16(1).

^[267] Maralinga Tjarutja Land Rights Act 1984 (SA) s 22(1).

^[268] Maralinga Tjarutja Land Rights Act 1984 (SA) s 22(2)(b)(i).

^[269] Maralinga Tjarutja Land Rights Act 1984 (SA) s 22(5).

^[270] Pitjantjatjara Land Rights Act 1981 (SA) s 22(2); Maralinga Tjarutja Land Rights Act 1984 (SA) s 24(2).

^[271] Pitjantjatjara Land Rights Act 1981 (SA) s 24; Maralinga Tjarutja Land Rights Act 1984 (SA) s 26. The miner must notify the Minister for Mines of the amount of or terms of agreement for any such payment although the Minister’s consent is not required.

^[272] Maralinga Tjarutja Land Rights Act 1984 (SA) s 26(3).

^[273] Pitjantjatjara Land Rights Act 1981 (SA) ss 35, 36. Maralinga Tjarutja Land Rights Act 1984 (SA) ss 33, 34.

^[274] Pitjantjatjara Land Rights Act 1981 (SA) ss 36(2), (3); Maralinga Tjarutja Land Rights Act 1984 (SA) ss 34(2), (3).

^[275] Pitjantjatjara Land Rights Act 1981 (SA) s 37; Maralinga Tjarutja Land Rights Act 1984 (SA) s 35.

^[276] Pitjantjatjara Land Rights Act 1981 (SA) s 43(3).

^[277] Pitjantjatjara Land Rights Act 1981 (SA) s 43(6)(b).

^[278] Maralinga Tjarutja Land Rights Act 1984 (SA) ss 44(1)(d), (4).

^[279] Anangu Pitjantjatjara Mayatja Manta Nyangaku Kutju: Local Government for Aboriginal Communities Pitjantjatjara Council Inc 1994, 9.

^[280] Id at 10.

^[281] The Aboriginal Claims Bill 1983 (Vic) was defeated in the Legislative Council. It would have established an Aboriginal Land Claims Tribunal: H McRae, G Nettheim & L Beacroft Indigenous Legal Issues: Commentary and Materials 2nd ed LBC Sydney 1997, 196.

^[282] Aboriginal Lands Act 1970 (Vic) s 9. Lake Tyers was established as a Mission in 1861 under the auspices of the Church of England. Framlingham was first reserved for Aboriginal purposes in the same year. For a brief history of these communities see B Moore ‘Victoria’ in N Peterson (ed) Aboriginal Land Rights: A Handbook AIATSIS Canberra 1981, 148-155.

^[283] Aboriginal Lands Act 1970 (Vic) s 8(a).

^[284] Aboriginal Lands Act 1970 (Vic) ss 11(1)(a), (b).

^[285] Aboriginal Lands Act 1970 (Vic) s 11(3).

^[286] Aboriginal Lands Act 1970 (Vic) ss 12-14.

^[287] Aboriginal Lands Act 1970 (Vic) s 15.

^[288] The Ebenezer Mission near Dimboola, the Ramahyuck Mission near Stratford in Gippsland and the Coranderrk Mission near Healesville.

^[289] Aboriginal Lands Act 1991 (Vic) ss 3, 6.

^[290] Aboriginal Lands Act 1991 (Vic) ss 6(1), (2), (3), (5), 7.

^[291] Aboriginal Land (Lake Condah) Bill 1986 (Vic); Aboriginal Land (Framlingham Forest) Bill 1985 (Vic); Aboriginal Land (Framlingham Forest) Bill (No 2) 1986 (Vic); Aboriginal Cultural Heritage Bill 1986 (Vic).

^[292] The Commonwealth passed the legislation pursuant to the race power in s 51(xxvi) of the Constitution: Hansard (H of R) 25 March 1987, 1514. It could also have used the acquisitions power in s 51(xxxi).

^[293] Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cth) ss 6, 7. Both Corporations are incorporated under the Aboriginal Councils and Associations Act 1976 (Cth).

^[294] Given that at the 1996 ABS Census 0.5% of the Victorian population identified as Indigenous (21 474 people), this is a minuscule amount of land: <www.abs.gov.au>.

^[295] Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cth) ss 13(1)(b), 21(1)(b).

^[296] Under the Crown Land (Reserves) Act 1978 (Vic).

^[297] Aboriginal Lands (Aborigines’ Advancement League) (Watt Street Northcote) Act 1982 (Vic) s 3(2). The League is a benevolent society registered under the Hospitals and Charities Act 1958 (Vic).

^[298] Aboriginal Lands (Aborigines’ Advancement League) (Watt Street Northcote) Act 1982 (Vic) s 3(3).

^[299] Aboriginal Land (Northcote Land) Act 1989 (Vic) s 5(2).

^[300] Aboriginal Land (Northcote Land) Act 1989 (Vic) s 5(3)(a).

^[301] At the 1996 ABS Census, Robinvale was the urban centre locality with the highest proportion (17.8%) of Victorians identifying as Indigenous: <www.abs.gov.au>.

^[302] Victorian co-operatives are governed by the Co-operatives Act 1996 (Vic).

^[303] Aboriginal Lands Act 1970 (Vic) s 11(1)(a).

^[304] Laws of Australia Title 1.3 Land Law (at 1 April 1997) Ch 8, Legislative Regulation in Victoria, para 344.

^[305] Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cth) ss 15(1)(j); 23(1)(j).

^[306] Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cth) ss 14(1), 22(1). The rights of access provided by the roads in Sch 1 Pt A are not maintained.

^[307] Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cth) ss 14(2), 22(2).

^[308] Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cth) ss 6(1), 7(1). Mineral is defined as any substance, except water, that occurs naturally as part of the earth’s crust: s 3(1).

^[309] Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cth) Pt V.

^[310] Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cth) ss 31(1), (2).

^[311] Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cth) s 31(5)(c).

^[312] Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cth) s 33(1). The applicant can also apply for conciliation if permission is refused.

^[313] Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cth) s 33(2). If the applicant and Corporation cannot agree on an arbitrator, the applicant can ask the Minister to appoint a suitably impartial person under s 33(3).

^[314] Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cth) ss 33(4)(a)(i), (b).

^[315] Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cth) ss 16, 24.

^[316] Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cth) s 34(1).

^[317] Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cth) s 34(2). In this regard, the legislation is similar to that governing Maralinga lands in South Australia. See p 37.

^[318] Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cth) s 34(2)(b). Section 21E(3) of the Aboriginal and Torres Strait Islanders Heritage Protection Act 1984 (Cth) provides that after a 14 day notice and consultation period, the Minister can make a declaration of preservation specifying the manner of preservation, including any prohibitions on access. If the Minister refuses to make such a declaration the relevant Aboriginal community can request that he or she appoints an arbitrator to review the decision: s 21E(6). Protection applications are governed by Pt 4 of the Aboriginal and Torres Strait Islander Heritage Protection Bill 1998 (Cth) introduced into the House of Representatives on 1 December 1998.

^[319] Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cth) s 32(1).

^[320] Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cth) s 32(2)(a).

^[321] Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cth) s 32(2)(b).

^[322] Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cth) ss 17, 26(1).

^[323] Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cth) s 26(2).

^[324] Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cth) ss 18(1)(a), (b)(ii), 27(1)(a), (b)(ii).

^[325] Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cth) ss 18(1)(c), 27(1)(c).

^[326] Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cth) ss 18(2), 27(2).

^[327] Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cth) ss 38(1), (3).

^[328] Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cth) ss 38(2), (4).

^[329] Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cth) s 38(6).

^[330] Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cth) ss 15, 23.

^[331] Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cth) ss 15(2), 23(2).

^[332] Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cth) ss 15(3), (4), 23(3), (4). Regulations can be made by the Governor pursuant to s 41.

^[333] Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cth) ss 15(9), 23(9).

^[334] Aboriginal Lands (Aborigines’ Advancement League) (Watt Street Northcote) Act 1982 (Vic) s 3(4); Aboriginal Land (Northcote Land) Act 1989 (Vic) s 5(4).

^[335] Under s 3(1)(b) no grant can affect the operation of the Mineral Resources Development Act 1990 (Vic), Petroleum Act 1958 (Vic) or the Extractive Industries Development Act 1995 (Vic).

^[336] Aboriginal Land (Manatunga Land) Act 1992 (Vic) ss 3(2)(a), (b).

^[337] Aboriginal Land Rights Act 1983 (NSW) s 35. For an overview of land rights in NSW prior to this time see M Wilkie Aboriginal Land Rights in NSW Alternative Publishing Co-operative Sydney 1985 chs 1-3.

^[338] Aboriginal Land Rights Act 1983 (NSW) s 36. In exceptional circumstances the Minister may acquire land, by agreement or compulsorily, to satisfy the objectives of the Act: s 39.

^[339] However, when making a claim for land that is part of a travelling stock reserve, as defined in the Pastures Protection Act 1934 (NSW) s 4, the applicant Land Council must satisfy the Minister that ‘Aborigines have traditional rights to the land or that Aborigines have had a long association with the land’: Aboriginal Land Rights Act 1983 (NSW) s 37(4).

^[340] See, eg, H Reynolds The Law of the Land Penguin Books Melbourne 1987, 31-2 & 53-4.

^[341] Indigenous people make up 1.7% of the NSW population. This represents more than 100 000 people: 1996 ABS Census: <www.abs.gov.au>.

^[342] Aboriginal Land Rights Act 1983 (NSW) ss 36(9), (9A). Generally, leases under the Western Lands Act 1901 (NSW) can be perpetual or for up to 40 years: ss 28A, 45. The Western Division comprises about 40% of land in NSW.

^[343] Aboriginal Land Rights Act 1983 (NSW) ss 36(9), (9A).

^[344] Aboriginal Land Rights Act 1983 (NSW) s 6(1). Section 5(1) empowers the Minister to constitute LALCs in the manner prescribed. An application for the constitution of an area as a LALC may be made by 10 or more adult Aborigines living in, or having an association with, the area: Aboriginal Land Rights Regulation 1996 (NSW) reg 6(1).

^[345] Aboriginal Land Rights Act 1983 (NSW) s 6(3). Members include Aborigines who live in the Land Council area and have requested that they be enrolled and those with a close association with the area who have been accepted as members by Council: s 7(2).

^[346] Aboriginal Land Rights Act 1983 (NSW) ss 12(1)(a), (e), (f).

^[347] Aboriginal Land Rights Act 1983 (NSW) ss 12(1)(g), (j).

^[348] Aboriginal Land Rights Act 1983 (NSW) s 38.

^[349] Aboriginal Land Rights Regulations 1996 (NSW) reg 24.

^[350] Aboriginal Land Rights Act 1983 (NSW) s 9.

^[351] Aboriginal Land Rights Act 1983 (NSW) s 11; Aboriginal Land Rights Regulation 1996 (NSW) reg 26(2).

^[352] Aboriginal Land Rights Act 1983 (NSW) s 15(1).

^[353] Aboriginal Land Rights Act 1983 (NSW) ss 20(b), (e). Regional Councils are also responsible for conciliating disputes about entry on the electoral roll between a LALC and one of its members: Aboriginal Land Rights Regulation 1996 (NSW) reg 19(4).

^[354] The NSW Aboriginal Land Council is currently the sole NTRB for NSW. The federal Minister for Aboriginal and Torres Strait Islander Affairs has announced proposed invitation areas for recognition of NTRBs under the amended NTA (see p 7). At this stage it is anticipated that there will be two NTRBs in NSW, one in the far north-east, encompassing Lord Howe Island, and one representing the rest of the State: Senator John Herron, Minister for Aboriginal and Torres Strait Islander Affairs Media Release 19 February 1999.

^[355] Aboriginal Land Rights Act 1983 (NSW) s 22(1).

^[356] Aboriginal Land Rights Act 1983 (NSW) ss 22(2), (3).

^[357] Aboriginal Land Rights Act 1983 (NSW) s 23(c2). See discussion at p 48.

^[358] Aboriginal Land Rights Act 1983 (NSW) s 23(1). The NSW Aboriginal Land Council Account, required by s 29(1) of the Act, includes money allocated by the NSW Parliament and annual payments of 7.5% of NSW land tax for the years 1984-1998: s 28(1). In regard to the Mining Royalties Account see p 49.

See NSW Aboriginal Land Council policy document Beyond the Sunset, which sets out the Council’s 11 objectives, including maximising land acquisition. Acquiring land for LALCs that do not have a land base is a priority.

^[359] National Parks and Wildlife Act 1974 (NSW) s 84.

^[360] National Parks and Wildlife Act 1974 (NSW) s 62.

^[361] National Parks and Wildlife Act 1974 (NSW) s 63(1). If a board of management is established for the area under Part 4A of the Act, care of the area is vested in the board: s 63(2). See p 52.

^[362] Aboriginal Land Rights Act 1983 (NSW) s 36A.

^[363] Aboriginal Land Rights Act 1983 (NSW) s 36A(2)(a).

^[364] National Parks and Wildlife Act 1974 (NSW) s 71D(2). Land is defined as being of cultural significance to Aborigines if it is ‘significant in terms of the traditions, observances, customs, beliefs or history of Aboriginals’: s 71D(1).

^[365] National Parks and Wildlife Act 1974 (NSW) s 71AW(1). Any person can propose that land be added to Sch 14: s 71AS.

^[366] National Parks and Wildlife Act 1974 (NSW) s 71O. Pt 4A Div 2 sets out the procedure for negotiating leases.

^[367] National Parks and Wildlife Act 1974 (NSW) s 71AE(3).

^[368] National Parks and Wildlife Act 1974 (NSW) s 71AN(1).

^[369] National Parks and Wildlife Act 1974 (NSW) s 71AN(2), (3)(a). Aboriginal owner board members are nominated by themselves or another Aboriginal owner.

^[370] National Parks and Wildlife Act 1974 (NSW) s 71AO(1)(a).

^[371] National Parks and Wildlife Act 1977 (NSW) s 57(7).

^[372] Aboriginal Land Rights Act 1983 (NSW) ss 47, 48.

^[373] Aboriginal Land Rights Act 1983 (NSW) s 45(11).

^[374] Aborigines Act 1969 (NSW) s 17(1A)(a)(iii).

^[375] Aboriginal Land Rights Act 1983 (NSW) s 45(2)(a). This is also the position for land transferred to a LALC after a successful claim to a travelling stock reserve: s 45(2)(b).

^[376] Aboriginal Land Rights Act 1983 (NSW) s 45(2)(c)(i).

^[377] Aboriginal Land Rights Act 1983 (NSW) s 45(2)(c)(ii).

^[378] Aboriginal Land Rights Act 1983 (NSW) s 45(4). Consent is not required in certain specific circumstances, for example, in regard to mining rights in force before the land was vested in the LALC: s 45(12)(b). See also ss 45(12)(a), (13)(b).

^[379] Aboriginal Land Rights Act 1983 (NSW) s 45(5).

^[380] Aboriginal Land Rights Act 1983 (NSW) s 45(6).

^[381] Aboriginal Land Rights Act 1983 (NSW) s 45(9).

^[382] Aboriginal Land Rights Act 1983 (NSW) ss 46(1), (2).

^[383] Aboriginal Land Rights Act 1983 (NSW) s 41(a).

^[384] Aboriginal Land Rights Act 1983 (NSW) Pt 6 Div 4, s 29A(1).

^[385] Aboriginal Land Rights Act 1983 (NSW) s 56D(1). An investigator can only be appointed for a Regional Aboriginal Land Council or a LALC with the approval of the NSW Aboriginal Land Council.

^[386] Aboriginal Land Rights Act 1983 (NSW) ss 57, 57A.

^[387] Aboriginal Land Rights Act 1983 (NSW) s 58(1).

^[388] Aboriginal Land Rights Act 1983 (NSW) s 58A(1).

^[389] Aboriginal Land Rights Act 1983 (NSW) ss 58A(1)(a), (b).

^[390] Aboriginal Land Rights Act 1983 (NSW) s 56A.

^[391] Aboriginal Land Rights Act 1983 (NSW) s 65A provides that each Aboriginal Land Council is to be taken to be a public authority for the purposes of the Ombudsman Act 1974 (NSW), the Independent Commission Against Corruption Act 1988 (NSW) and the Freedom of Information Act 1989 (NSW).

^[392] Independent Commission Against Corruption Report on Investigation into Aboriginal Land Councils in New South Wales: Corruption Prevention and Research Volume Independent Commission Against Corruption Sydney NSW 1998.

^[393] Id recs 5-8.

^[394] Id rec 2(1).

^[395] Aboriginal Land Rights Act 1983 (NSW) s 34(3). The NSW Aboriginal Land Council can, in turn, direct another Aboriginal Land Council to submit quarterly financial statements: s 34B.

^[396] Aboriginal Land Rights Act 1983 (NSW) s 34(1).

^[397] Pursuant to Aboriginal Land Rights Act 1983 (NSW) s 34(4).

^[398] s 49.

^[399] Aboriginal Land Rights Act 1983 (NSW) ss 49B(1), 49C(1)(a). Priority must be given to registering the names of Aborigines who have cultural associations with lands listed in Sch 14 to the National Parks and Wildlife Act 1974 (NSW): s 49C(3).

^[400] Aboriginal Land Rights Act 1983 (NSW) s 59(1). Certain disputes must have first been referred to the relevant Regional Aboriginal Land Council for conciliation: s 59(1)(a). The Registrar cannot refer disputes if provision is made for their determination elsewhere in the Act: s 59(2).

^[401] Aboriginal Land Rights Act 1983 (NSW) ss 13(1), 21(1), 24(1). These rules may include some determined by the Minister under s 56A. See p 50.

^[402] National Parks and Wildlife Act 1974 (NSW) s 71AO(2).

^[403] Mutawintji Lease: <www.austlii.edu.au/au/special/rsjproject/rsjlibrary/>.

^[404] Sch 3 of the Lease lists individuals and organisations who have scientific or general licences under the National Parks and Wildlife Act 1974 (NSW) to enter the Mutawintji lands. For example, Mr W Bates is entitle to ‘hunt rabbits, goats, kangaroos and emus...for domestic purposes and for ceremonial and cultural purposes in accordance with the tradition of the Aboriginal owners’: <www.austlii.edu.au/au/special/rsjproject/rsjlibrary/>.

^[405] Mutawintji Lease cl 12.2(5): <www.austlii.edu.au/au/special/rsjproject/rsjlibrary/>.

^[406] National Parks and Wildlife Act 1974 (NSW) s 41(1). This prohibition also applies to proclaimed Aboriginal areas: s 64.

^[407] National Parks and Wildlife Act 1974 (NSW) s 41(2).

^[408] National Parks and Wildlife Act 1974 (NSW) s 41(4). Notice of intention to approve mining must be laid before both houses of Parliament without objection: s 41(5).

^[409] Aboriginal Land Rights Act 1983 (NSW) s 36A(6).

^[410] National Parks and Wildlife Act 1974 (NSW) ss 71AO(3), (4).

^[411] 2.8% of the Queensland population identified as Indigenous at the 1996 ABS Census. This represents more than 95 000 people: <www.abs.gov.au>.

^[412] For example, citations are only given for the Aboriginal Land Act 1991 (Qld) as the Torres Strait Islander Land Act 1991 (Qld) is almost identical. For a brief overview of the latter Act see G Neate ‘Torres Strait Islander Land Act 1991’ [1997] IndigLawB 101; (1997) 4(7) Indigenous Law Bulletin 13.

^[413] For some general background material see B Hocking ‘Torres Strait Islanders and the Law’ (1987) 2 Law & Anthropology 359; E Mabo ‘Land Rights in the Torres Strait’ in E Olbrei (ed) Black Australians: The Prospects for Change James Cook University Students’ Union Townsville 1982, 143-148.

^[414] Laws of Australia Title 1.3 Land Law (at 1 April 1997) Ch 9, Legislative Regulation in Queensland, paras 357-358.

^[415] Ibid.

^[416] Ibid.

^[417] Torres Strait Islanders Act 1939 (Qld) s 18(1).

^[418] See G Nettheim ‘The Queensland Acts and Human Rights’ in E Olbrei (ed) Black Australians: The Prospects for Change James Cook University Students’ Union Townsville 1982, 82-109.

^[419] See Land Act 1994 (Qld) ss 31, 33 for the current formulation of these powers.

^[420] Since the 1994 amendments this power has rested with the Minister: Land Act 1994 (Qld) s 31(2)(b) .

^[421] See F Brennan Land Rights Queensland Style: The Struggle for Aboriginal Self-Management UQP Brisbane 1992, 86-88 for a fuller account of this episode.

^[422] Land Act 1962 (Qld) s 203(b).

^[423] Laws of Australia Title 1.3 Land Law (at 1 April 1997) Ch 9, Legislative Regulation in Queensland, para 366.

^[424] Land Act 1994 (Qld) s 32.

^[425] Aboriginal Land Act 1991 (Qld) s 33(2). Reserve land can be converted to Aboriginal inalienable freehold under this Act. See the outline of this process at pp 57-58. Leases granted by the Crown under the Aborigines and Torres Strait Islanders (Land Holding) Act 1985 (Qld) can also be continued under s 33.

^[426] For the purposes of this Chapter, Aboriginal Councils and Island Councils are referred to collectively as ‘community councils’. See the discussion of the community council system at pp 60-61.

^[427] Land Act (Aboriginal and Islander Land Grants) Amendment Act 1982 (Qld), Land Act (Aboriginal and Islander Land Grants) Amendment Act 1984 (Qld), Land Act Amendment Act (No 2) 1986 (Qld), Land Act Amendment Act 1987 (Qld) and Land Act and Another Act Amendment Act 1988 (Qld).

^[428] F Brennan Land Rights Queensland Style: The Struggle for Aboriginal Self-Management UQP Brisbane 1992, 57-79.

^[429] Land Act 1994 (Qld) s 44(2).

^[430] See discussion of Community Services (Aborigines) Act 1984 (Qld) and Community Services (Torres Strait) Act 1984 (Qld) at pp 60-61.

^[431] After the Mer (or Murray) Island community in the Torres Strait refused to accept a DOGIT, the Island’s traditional owners successfully claimed native title rights over the land in Mabo: see pp 3-5.

^[432] Ch 3 Pt 1 Div 2. The Land Act 1962 (Qld) was repealed by s 524 of the Land Act 1994 (Qld).

^[433] Land Act 1994 (Qld) s 43(1).

^[434] Land Act 1994 (Qld) s 508(1).

^[435] s 6(1).

^[436] F Brennan Land Rights Queensland Style: The Struggle for Aboriginal Self-Management UQP Brisbane 1992, 96.

^[437] Ibid.

^[438] Community Services (Aborigines) Act 1984 (Qld) ss 77B(1), (2).

^[439] Community Services (Aborigines) Act 1984 (Qld) s 77B(3).

^[440] Land Act 1994 (Qld) s 23(1). Existing reservations are preserved by s 508(3).

^[441] Land Act 1994 (Qld) s 23(2).

^[442] Land Act 1994 (Qld) s 40(1).

^[443] Aboriginal Land Act 1991 (Qld) s 35(1).

^[444] Aboriginal Land Act 1991 (Qld) s 35(2).

^[445] F Brennan Land Rights Queensland Style: The Struggle for Aboriginal Self-Management UQP Brisbane 1992, 11.

^[446] s 12.

^[447] Local Government (Aboriginal Lands Act) 1978 (Qld) s 6, Sch 1.

^[448] Local Government (Aboriginal Lands Act) 1978 (Qld) s 14.

^[449] For background material see K Jacobs, R Felton & D Mudunathi ‘Mornington Island Perspectives’ in E Olbrei (ed) Black Australians: The Prospects for Change James Cook University Students’ Union Townsville 1982, 119-123.

^[450] F Brennan Land Rights Queensland Style: The Struggle for Aboriginal Self-Management UQP Brisbane 1992, 10-11.

^[451] This led to extended litigation: Peinkinna and Others v Corporation of the Director of Aboriginal and Islanders Advancement W No 553 of 1976 (5 October 1976); Corporation of the Director of Aboriginal and Islanders Advancement v Peinkinna and Others [1978] 52 ALJR 286. See also G Nettheim Victims of the Law: Black Queenslanders Today Allen & Unwin Sydney 1981 ch 7.

^[452] F Brennan Land Rights Queensland Style: The Struggle for Aboriginal Self-Management UQP Brisbane 1992, 153.

^[453] Aboriginal Land Act 1991 (Qld) ss 30, 35, 39. Dealings in transferred land and granted land (land which has been successfully claimed) are limited to granting certain leases, licences, mining interests, easements etc: ss 39(2), 76(2).

^[454] Aboriginal Land Act 1991 (Qld) s 27(3).

^[455] ‘Aboriginal land’ is defined in s 10 of the Aboriginal Land Act 1991 (Qld). Torres Strait Islander land’ is defined in s 9 of the Torres Strait Islander Land Act 1991 (Qld).

^[456] Aboriginal Land Act 1991 (Qld) s 30. The term ‘transferable land’ is defined in s 11(1).

^[457] Aboriginal Land Act 1991 (Qld) ss 12(a), (c), (d).

^[458] Aboriginal Land Act 1991 (Qld) ss 28 (1), (3), (4).

^[459] Aboriginal Land Act 1991 (Qld) s 84(1). Any pre-existing interest in granted land, other than a government interest, continues when it becomes Aboriginal land: s 71.

^[460] The term ‘transferred land’ is defined in s 11(2) of the Aboriginal Land Act 1991 (Qld).

^[461] Aboriginal Land Act 1991 (Qld) s 18.

^[462] Aboriginal Land Act 1991 (Qld) s 83. Similar arrangements apply in NSW: see pp 47-48.

^[463] See Aboriginal Land Act 1991 (Qld) s 17(2).

^[464] Aboriginal Land Act 1991 (Qld) s 18(3).

^[465] Aboriginal Land Act 1991 (Qld) s 18(4).

^[466] See the discussion of traditional affiliation and historical association below.

^[467] Aboriginal Land Act 1991 (Qld) ss 19 (b), 22, 19(d), (e), (f), 3.

^[468] Aboriginal Land Act 1991 (Qld) ss 31(1), 77.

^[469] Aboriginal Land Act 1991 (Qld) ss 45, 46. Land that was DOGIT land, Aurukun Shire lease land or Mornington Island Shire lease land immediately before it become claimable, cannot be claimed on the ground of economic or cultural viability: s 46(3). National park land cannot be claimed on this ground either: s 46(2).

^[470] Aboriginal Land Act 1991 (Qld) s 53(1). ‘Aboriginal tradition’ is defined in s 9 as ‘the body of traditions, observances, customs and beliefs of Aboriginal people generally or of a particular group of Aboriginal people, and includes any such traditions, observances, customs and beliefs relating to particular persons, areas, objects or relationships’.

^[471] Aboriginal Land Act 1991 (Qld) s 53(2).

^[472] Aboriginal Land Act 1991 (Qld) s 54(1).

^[473] Aboriginal Land Act 1991 (Qld) s 54(3).

^[474] Aboriginal Land Act 1991 (Qld) s 55(1). When determining the claim, the Tribunal must have regard to the proposed use of the land: s 55(2).

^[475] Aboriginal Land Act 1991 (Qld)  s 89(1). 

^[476] Aboriginal Land Act 1991 (Qld) s 60.

^[477] Aboriginal Land Act 1991 (Qld) s 60(1).

^[478] Aboriginal Land Act 1991 (Qld) ss 60(3), (4).

^[479] Aboriginal Land Act 1991 (Qld) ss 63(1), 64(1).

^[480] Aboriginal Land Act 1991 (Qld) s 65(1).

^[481] Aboriginal Land Act 1991 (Qld) s 65(3).

^[482] Community Services (Aborigines) Act 1984 (Qld) s 77(1).

^[483] Community Services (Aborigines) Act 1984 (Qld) s 77(2).

^[484] Community Services (Aborigines) Act 1991 (Qld) s 14; Community Services (Torres Strait Islanders) Act 1991 (Qld) s 14. Aurukun and Mornington Island Shire Councils operate as community councils but are established under separate legislation as outlined at pp 56-57.

^[485] Community Services (Aborigines) Act 1991 (Qld) ss 15(2), (3). Councils existing at the commencement of the legislation are preserved by s 15(1).

^[486] Community Services (Aborigines) Act 1991 (Qld) s 16.

^[487] Community Services (Aborigines) Act 1991 (Qld) s 18. A person whose name appears on an Aboriginal Council roll cannot vote at local government elections for the area: s 19(1)(b)(i).

^[488] Community Services (Aborigines) Regulation 1988 (Qld); Community Services (Torres Strait Islanders) Regulation 1985 (Qld).

^[489] Community Services (Aborigines) Act 1991 (Qld) ss 19(2), 25(1).

^[490] Community Services (Aborigines) Act 1991 (Qld) ss 25(3)(a), (b).

^[491] Community Services (Aborigines) Act 1991 (Qld) s 46(1); Community Services (Torres Strait Islanders) Act 1991 (Qld) s 44(1).

^[492] Community Services (Aborigines) Act 1991 (Qld) s 47(1).

^[493] Community Services (Aborigines) Act 1991 (Qld) ss 48(1)(a), (b). The Councils also have a number of responsibilities for official appointments, financial administration and business operations.

^[494] Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) Pt 3A.

^[495] Queensland Legislation Review Committee Final Report: Inquiry into the Legislation Relating to the Management of Aboriginal and Torres Strait Islander Communities in Queensland Legislation Review Committee Brisbane 1991 recs 5, 6, 9.

^[496] Id rec 21.

^[497] Community Services Legislation Amendment Bill 1999 (Qld) cl 14.

^[498] Community Services Legislation Amendment Bill 1999 (Qld) cl 13D.

^[499] See program description and funding guidelines reproduced in (1996) 1 AILR 675.

^[500] See Department of Aboriginal and Torres Strait Islander Policy and Development Community Development Program ¾ Funding Guidelines Internal Publication 1998.

^[501] Land Act 1962 (Qld) s 335(1) now included in Land Act 1994 (Qld) s 44.

^[502] Land Act 1994 (Qld) s 44.

^[503] Community Services (Aborigines) Act 1984 (Qld) s 8.

^[504] Aboriginal Land Act 1991 (Qld) s 26(1).

^[505] Laws of Australia Title 1.3 Land Law (at 1 April 1997) Ch 9, Legislative Regulation in Queensland, para 369.

^[506] Community Services (Aborigines) Act 1984 (Qld) s 65(1).

^[507] Community Services (Aborigines) Act 1984 (Qld) s 65(2).

^[508] Community Services (Aborigines) Act 1984 (Qld) s 66(1)(b).

^[509] Community Services (Aborigines) Act 1984 (Qld) s 68. See discussion at p 64.

^[510] Land Act 1994 (Qld) s 22(1); Mineral Resources Act 1989 (Qld) s 8; Petroleum Act 1923 (Qld) s 10. Quarry material is defined as under s 5 of the Forestry Act 1959 (Qld) and includes guano, gravel and clay.

^[511] Land Act 1994 (Qld) s 452A. Although the protection existed at least from 1982 under the Land Act (Aboriginal and Islander Land Grants) Amendment Act 1982 (Qld).

^[512] Land Act 1994 (Qld) s 56(1).

^[513] Land Act 1994 (Qld) s 56(2).

^[514] Land Act 1994 (Qld) s 56(3)(a).

^[515] Land Act 1994 (Qld) s 56(4).

^[516] See p 66.

^[517] Local Government (Aboriginal Lands) Act 1978 (Qld) ss 23(a), (b), (c), (d), (f).

^[518] Local Government (Aboriginal Lands) Act 1978 (Qld) ss 23(g), 24(1).

^[519] F Brennan Land Rights Queensland Style: The Struggle for Aboriginal Self-Management UQP Brisbane 1992, 12.

^[520] Local Government (Aboriginal Lands) Act 1978 (Qld) s 25(1).

^[521] Local Government (Aboriginal Lands) Act 1978 (Qld) s 25(2).

^[522] Local Government (Aboriginal Lands) Act 1978 (Qld) Pt 6 (ss 40-108).

^[523] Local Government (Aboriginal Lands) Act 1978 (Qld) s 58(1).

^[524] Aboriginal Land Act 1991 (Qld) s 19(1)(e).

^[525] See p 62.

^[526] Aboriginal Land Act 1991 (Qld) ss 84(1), 85.

^[527] Aboriginal Land Act 1991 (Qld) s 86(1).

^[528] Community Services (Aborigines) Act 1984 (Qld) s 68(2)(a)(i). The grantees are those to whom the land grant was initially made, that is, the owners.

^[529] Community Services (Aborigines) Act 1984 (Qld) ss 68(2)(a)(ii), (b).

^[530] Aboriginal Land Act 1991 (Qld) ss 39(5). See 76(6) in regard to granted land. Contravention of these provisions does not invalidate the interest or agreement: ss 39(6), 76(7).

^[531] Aboriginal Land Act 1991 (Qld) ss 42, 80.

^[532] Aboriginal Land Act 1991 (Qld) ss 43(1), (3), 81(1), (5).

^[533] Aboriginal Land Act 1991 (Qld) s 87.

^[534] Mineral Resources Act 1989 (Qld) s 129 (3).

^[535] Mineral Resources Act 1989 (Qld) s 54.

^[536] Mineral Resources Act 1989 (Qld) ss 252(2)(c), 254.

^[537] Mineral Resources Act 1989 (Qld) s 269(1).

^[538] Mineral Resources Act 1989 (Qld) s 271(1).

^[539] Aboriginal Land Act 1991 (Qld) s 88(1). The monies must be applied for the benefit of the people for whom the trustees hold the land, particularly those most affected by the mining: s 88(2). See Aboriginal Land Regulation 1991 (Qld) s 55 for the current prescribed percentages. [Eg 50% of every dollar of royalties up to $100 000 and 25% of every dollar between $100 000 and $200 000.]

^[540] Community Services (Aborigines) Act 1984 (Qld) s 77A.

^[541] Community Services (Aborigines) Act 1991 (Qld) ss 25(2)(a), (b), (2A).

^[542] Community Services (Aborigines) Act 1991 (Qld) s 25(1A).

^[543] Community Services (Aborigines) Act 1991 (Qld) ss 26(3), (3A).

^[544] Community Services (Aborigines) Act 1991 (Qld) s 26(2).

^[545] Community Services (Aborigines) Act 1991 (Qld) s 26(4A)(b).

^[546] Community Services (Aborigines) Act 1991 (Qld) s 20(a). This can also occur at the petition of at least a fifth of the electors on the roll: s 20(b).

^[547] Community Services (Aborigines) Act 1991 (Qld) s 21.

^[548] Community Services (Aborigines) Act 1991 (Qld) ss 32(2), 8(1), 8(2), 32F(1).

^[549] Community Services (Aborigines) Act 1991 (Qld) s 36(3).

^[550] Community Services (Aborigines) Act 1991 (Qld) ss 39(2), (1).

^[551] Community Services (Aborigines) Act 1991 (Qld) s 36(1).

^[552] Community Services (Aborigines) Act 1991 (Qld) ss 42(1), (2).

^[553] Community Services (Aborigines) Act 1991 (Qld) s 43(2)(a).

^[554] Community Services (Aborigines) Act 1991 (Qld) s 43(2)(b).

^[555] Community Services (Aborigines) Act 1991 (Qld) s 45.

^[556] In February 1990 the Tasmanian Minister Assisting the Premier on Aboriginal Affairs circulated a five page discussion paper setting out options for reform but legislation was not introduced for another five years: Land Rights for Tasmanian Aborigines Government of Tasmania Hobart 1990.

^[557] H McRae, G Nettheim & L Beacroft Indigenous Legal Issues 2nd ed LBC Sydney 1997, 198. Ironically, at the 1996 ABS Census Tasmania had the second highest percentage of population identifying as Indigenous of all Australian jurisdictions. The number of people identifying as Indigenous rose by 56.1% from the 1991 ABS Census to 3% of the population (13 873 people): <www.abs.gov.au>. For a detailed overview of land rights in Tasmania see L Ryan The Aboriginal Tasmanians 2nd ed Allen & Unwin Sydney 1996.

^[558] Aboriginal Lands Act 1995 (Tas) ss 5, 6. It should be noted that the Aboriginal Land Council of Tasmania is not the same as the separately incorporated Tasmanian Aboriginal Land Council.

^[559] Aboriginal Lands Act 1995 (Tas) s 18(1)(a).

^[560] The land is vested in perpetuity: Aboriginal Lands Act 1995 (Tas) s 27(1). Any alienation would have to be in accordance with trust principles, that is, in the interest of beneficiaries.

^[561] Aboriginal Lands Act 1995 (Tas) Sch 3; H McRae, G Nettheim & L Beacroft Indigenous Legal Issues: Commentary and Materials 2nd ed LBC Sydney 1997, 199.

^[562] Aboriginal Lands Act 1995 (Tas) s 18(1)(d). In addition, lands could be added to Sch 3 by legislative amendment.

^[563] Aboriginal Lands Act 1995 (Tas) s 18(1)(b).

^[564] Aboriginal Lands Act 1995 (Tas) ss 30, 28.

^[565] Aboriginal Lands Act 1995 (Tas) s 27(3). The Act commenced on 6 December 1995.

^[566] Land Acquisition Act 1993 (Tas) s 5A.

^[567] Aboriginal Lands Act 1995 (Tas) s 21.

^[568] Aboriginal Lands Act 1995 (Tas) s 22. The Council may temporarily invest money for which it has no immediate use in a trust fund: s 24.

^[569] Aboriginal Lands Act 1995 (Tas) s 9(3).

^[570] Chief Electoral Officer The Aboriginal Land Council of Tasmania: 1996 Election Procedures and Guidelines Tasmanian Electoral Office Hobart 1996, 6.

^[571] Ibid.

^[572] Id at 7.

^[573] [1995] FCA 1048; (1995) 54 FCR 503; Chief Electoral Officer The Aboriginal Land Council of Tasmania: 1996 Election Procedures and Guidelines Tasmanian Electoral Office Hobart 1996, 6.

^[574] Shaw v Wolf (unreported) Federal Court 20 April 1998. See R Connell ‘Casenote: Shaw v Wolf’ [1998] IndigLawB 49; (1998) 4(12) Indigenous Law Bulletin 20; (1998) 3 AILR 357.

^[575] Mabo at 70.

^[576] Shaw v Wolf (unreported) Federal Court 20 April 1998, 80. See (1998) 3 AILR 357.

^[577] Aboriginal Lands Act 1995 (Tas) ss 10(3)(a), (b).

^[578] Aboriginal Lands Act 1995 (Tas) s 10(3)(c).

^[579] Aboriginal Lands Act 1995 (Tas) s 10(6).

^[580] Aboriginal Lands Act 1995 (Tas) s 27(8). There is limited access to Oyster Bay and Mount Cameron as specified in the Central Plan Register. Section 27(8) states that the right of access is equivalent to that which would exist if the land was a coastal reserve under the Crown Lands Act 1976 (Tas) s 57.

^[581] Aboriginal Lands Act 1995 (Tas) s 27(5).

^[582] s 49A(1).

^[583] National Parks and Wildlife Act 1970 (Tas) s 49A(2).

^[584] Aboriginal Lands Act 1995 (Tas) s 27(2).

^[585] Mineral Resources Development Act 1995 (Tas) Pt 7.

^[586] Mineral Resources Development Act 1995 (Tas) s 131(2)(a).

^[587] Mineral Resources Development Act 1995 (Tas) s 133(4).

^[588] Aboriginal Lands Act 1995 (Tas) s 18(3).

^[589] Aboriginal Lands Act 1995 (Tas) s 31.

^[590] Aboriginal Lands Act 1995 (Tas) s 18(1)(c).

^[591] Aboriginal Lands Act 1995 (Tas) s 32.

^[592] Aboriginal Lands Act 1995 (Tas) ss 3, 18(5).

^[593] Aboriginal Lands Act 1995 (Tas) s 31(2).

^[594] Aboriginal Lands Act 1995 (Tas) s 27(4).

^[595] Aboriginal Lands Act 1995 (Tas) s 19(1).

^[596] Aboriginal Lands Act 1995 (Tas) s 19(2). Separate review and appeal rights exist in regard to decisions about the renewal of certain leases and licences: ss 28(3), 29.

^[597] Land and Income Taxation Act 1910 (Tas) s 10(1)(r).

^[598] Local Government Act 1993 (Tas) s 87(1)(da); Fire Service Act 1979 (Tas) s 78(ba).

^[599] Local Government Act 1993 (Tas) ss 93, 94.

^[600] A Darby ‘Reconciled to a Savage Land’ The Sydney Morning Herald 1 March 1999, 4. See L Ryan The Aboriginal Tasmanians 2nd ed Allen & Unwin Sydney 1996 chs 12, 13.

^[601] At the 1996 ABS Census, 2.9% of the WA population reported being Indigenous. This represents more than 50 000 people: <www.abs.gov.au>. For a brief history of the land rights movement in WA see C Pierluigi ‘Aboriginal Land Rights History: Western Australia’ (1991) 2(52) Aboriginal Law Bulletin 24.

^[602] See p 11.

^[603] Royal Commission into Aboriginal Affairs Report Western Australian Government Perth 1974, 446-456.

^[604] Id at 456.

^[605] See terms of reference in P Seaman Aboriginal Land Inquiry: Discussion Paper Aboriginal Land Inquiry Perth 1984, 3.

^[606] P Seaman Aboriginal Land Inquiry: Report Vol 1 Aboriginal Land Inquiry Perth 1984, ch 1.

^[607] Id at 38, 126. Under the proposals, Aboriginal people who claimed land successfully would gain inalienable freehold title: 93.

^[608] Id at 111.

^[609] Land Act 1933 (WA) s 9.

^[610] Land Act 1933 (WA) s 29(1). In addition to reserves there are numerous outstation communities established on an ad hoc basis by Aboriginal people returning to their traditional lands. See K Muir ‘Back Home to Stoke the Fires: The Outstations Movement in Western Australia’ [1999] IndigLawB 23; (1999) 4(19) Indigenous Law Bulletin 11.

^[611] Land Act 1933 (WA) s 31(1)(a).

^[612] Land Act 1933 (WA) s 31(2). Before such a proclamation is made, the Minister must table a report in both houses of Parliament setting out the reasons for it and the intended use of the land.

^[613] Land Act 1933 (WA) s 31(3).

^[614] Land Act 1933 (WA) s 33. None of the reservation provisions in the Land Act 1933 (WA) relate specifically to Aboriginal land.

^[615] Aboriginal Affairs Planning Authority Act 1972 (WA) ss 25, 26.

^[616] Aboriginal Affairs Planning Authority Act 1972 (WA) ss 8, 26, 27. In 1995 the land management functions of the Authority were transferred to the newly created Aboriginal Affairs Department. The legislation was not amended so in the interests of clarity all references in this Chapter will be to the Aboriginal Affairs Planning Authority.

^[617] Aboriginal Affairs Planning Authority Act 1972 (WA) s 25(2)(a).

^[618] Aboriginal Affairs Planning Authority Act 1972 (WA) s 25(2)(c)(iii).

^[619] Aboriginal Affairs Planning Authority Act 1972 (WA) s 12. The Authority is staffed by public servants: s 15. There is no specific provision for Aboriginal staff.

^[620] Aboriginal Affairs Planning Authority Act 1972 (WA) ss 13(1)(d), (f), (g).

^[621] Aboriginal Affairs Planning Authority Act 1972 (WA) ss 23, 24.

^[622] Aboriginal Affairs Planning Authority Act 1972 (WA) s 21. The Minister appoints one of the members to act as chairperson: s 21(3).

^[623] Aboriginal Affairs Planning Authority Act 1972 (WA) s 23(c). ‘Person of Aboriginal descent’ is defined as any person living in Western Australia wholly or partly descended from the original inhabitants of Australia who claims to be an Aboriginal and who is accepted as such in the community in which he or she lives: s 4.

^[624] Aboriginal Affairs Planning Authority Act 1972 (WA) s 20.

^[625] Aboriginal Affairs Planning Authority Act 1972 (WA) s 7(2). The Aboriginal Affairs Planning Authority is also subject to such Ministerial direction.

^[626] Aboriginal Affairs Planning Authority Act 1972 (WA) ss 7(1)(a), (d).

^[627] Aboriginal Lands Trust Review Team Report of the Review of the Aboriginal Lands Trust Aboriginal Affairs Department Perth 1996 recs 1, 5. Cited in (1997) 2 AILR 110 at 115.

^[628] Id rec 6.

^[629] Aboriginal Communities Act 1979 (WA) s 4(1). The communities identified in the legislation are the Bidyadanga Aboriginal Community La Grange Incorporated and the Bardi Aborigines Association Inc. By 1997, 26 communities had been proclaimed under the Act: Aboriginal Affairs Department Annual Report 1996-97 Government Printer Perth 1997, 11.

^[630] Aboriginal Communities Act 1979 (WA) s 6(1).

^[631] Aboriginal Affairs Planning Authority Act 1972 (WA) s 31. The regulations authorise Police, public health authorities and officers of public authorities to enter reserves in the exercise of their official duties: Aboriginal Affairs Planning Authority Regulations 1972 (WA) reg 7.

^[632] Aboriginal Affairs Planning Authority Regulations 1972 (WA) reg 8(3).

^[633] Aboriginal Affairs Planning Authority Regulations 1972 (WA) reg 8(3).

^[634] Aboriginal Affairs Planning Authority Act 1972 (WA) s 28(b).

^[635] s 32(1). ‘Aboriginal inhabitants’ are defined within the section as Aboriginal persons who are or have normally been resident within the area, and their descendants.

^[636] Aboriginal Affairs Planning Authority Act 1972 (WA) s 32(2).

^[637] Aboriginal Lands Trust Review Team Report of the Review of the Aboriginal Lands Trust Aboriginal Affairs Department Perth 1996 rec 8. Cited in (1997) 2 AILR 110 at 115.

^[638] Land Act 1933 (WA) s 15. Resources include gold, silver, copper, tin or other metals, ore, minerals or other substances containing metals, gems or precious stones, coal or mineral oil and phosphatic substances in or upon the land.

^[639] Mining Act 1978 (WA) s 24(7)(a).

^[640] Mining Act 1978 (WA) s 24(7)(b).

^[641] Mining Act 1978 (WA) s 24(7)(c); Aboriginal Affairs Planning Authority Regulations 1972 (WA) reg 8.

^[642] Aboriginal Affairs Planning Authority Regulations 1972 (WA) reg 8(3).

^[643] Laws of Australia Title 1.3 Land Law (at 1 September 1997) Ch 6, Legislative Regulation in Western Australia, para 236.

^[644] Mining Act 1978 (WA) ss 108, 109; Petroleum Act 1967 (WA) ss 137-149.

^[645] The delegation was pursuant to Aboriginal Affairs Planning Authority Act 1972 (WA) s 24(2).

^[646] Aboriginal Lands Trust Review Team Report of the Review of the Aboriginal Lands Trust Aboriginal Affairs Department Perth 1996 recs 9 & 10. Cited in (1997) 2 AILR 110 at 115.

^[647] Aboriginal Affairs Planning Authority Act 1972 (WA) s 14(1).

^[648] The Act also provides for an Aboriginal Affairs Co-ordinating Committee: s 19. The Committee is made up of the heads of WA government departments that deliver services to Indigenous peoples. It was established to co-ordinate service delivery.

^[649] Aboriginal Affairs Planning Authority Act 1972 (WA) s 18(2).

^[650] Aboriginal Affairs Planning Authority Act 1972 (WA) s 18(1).

^[651] Aboriginal Affairs Planning Authority Act 1972 (WA) s 7(1)(b).

^[652] Aboriginal Communities Act 1979 (WA) ss 7(1)(a), (b), (d), (g).

^[653] Aboriginal Communities Act 1979 (WA) s 9(1).

^[654] Aboriginal Communities Act 1979 (WA) s 13(2).

^[655] Aboriginal Communities Act 1979 (WA) s 8.

^[656] Aboriginal Communities Act 1979 (WA) s 11. It was originally intended that breach of by-laws matters would be heard by courts staffed by Aboriginal Justices of the Peace and Aboriginal Magistrates: ALRC Report 31 The Recognition of Aboriginal Customary Laws Vol 2 AGPS 1986 para 750. This aspect of the scheme has been controversial among certain commentators. See, eg, A Hoddinott That’s ‘Gardia’ Business: An Evaluation of the Aboriginal Justices of the Peace Scheme in Western Australia Government Printer Perth 1986.

^[657] At the 1996 ABS Census, 1% of the ACT population (2900 people) identified as Indigenous: <www.abs.gov.au>.

^[658] Aboriginal Land (Jervis Bay Territory) Act 1986 (Cth) s 8, Sch. The Jervis Bay Territory on the south coast of NSW is part of the ACT. The territories power in s 122 of the Constitution enables the Commonwealth to pass legislation for the ACT.

^[659] Aboriginal Land (Jervis Bay Territory) Act 1986 (Cth) ss 2(1), 9.

^[660] Aboriginal Land (Jervis Bay Territory) Act 1986 (Cth) s 9(1)(a).

^[661] Aboriginal Land (Jervis Bay Territory) Act 1986 (Cth) s 9(3).

^[662] Aboriginal Land (Jervis Bay Territory) Act 1986 (Cth) s 9A. In 1998, Jervis Bay National Park and Jervis Bay Botanic Gardens were re-named Booderee National Park and Booderee Botanic Gardens.

^[663] Aboriginal Land (Jervis Bay Territory) Act 1986 (Cth) ss 38B, 38C.

^[664] Aboriginal Land (Jervis Bay Territory) Act 1986 (Cth) s 10.

^[665] Aboriginal Land (Jervis Bay Territory) Act 1986 (Cth) s 4A. Pt IV Div 4 of the Act concerns the executive committee. See p 81. The Commonwealth Authorities and Companies Act 1997 (Cth) regulates certain elements of the financial affairs of federal authorities such as reporting and accountability. The Act imposes certain duties on the directors of an authority, eg, preparation of an annual report: s 9.

^[666] Aboriginal Land (Jervis Bay Territory) Act 1986 (Cth) s 13(1).

^[667] Aboriginal Land (Jervis Bay Territory) Act 1986 (Cth) s 6(c).

^[668] Eg, decisions of an administrative nature made under certain enactments are reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

^[669] Aboriginal Land (Jervis Bay Territory) Act 1986 (Cth) s 6.

^[670] Aboriginal Land (Jervis Bay Territory) Act 1986 (Cth) s 17(2).

^[671] Aboriginal Land (Jervis Bay Territory) Act 1986 (Cth) ss 18(1), (2). Such a motion must be supported by two-thirds of registered members voting: s 26(2).

^[672] Aboriginal Land (Jervis Bay Territory) Act 1986 (Cth) ss 28(3), 29(1), (2).

^[673] Aboriginal Land (Jervis Bay Territory) Act 1986 (Cth) s 38. The Council can acquire real property under s 7(2)(a) but it does not fall within the definition of Aboriginal land.

^[674] Aboriginal Land (Jervis Bay Territory) Act 1986 (Cth) ss 38(2)(a), (b). ‘Domestic purposes’ is defined in s 37(2). ‘Business purposes’ is defined in s 37(3). Leases of up to 15 years can be granted to non-members, with Ministerial permission, or to the Commonwealth: ss 38(2)(e), (f), 38(3)(c).

^[675] Aboriginal Land (Jervis Bay Territory) Act 1986 (Cth) s 42. ‘Relative’ is defined in s 37(1) to include immediate family, lineal descendants and de facto spouses.

^[676] Aboriginal Land (Jervis Bay Territory) Act 1986 (Cth) s 38(4).

^[677] Aboriginal Land (Jervis Bay Territory) Act 1986 (Cth) ss 48(1), (2).

^[678] Aboriginal Land (Jervis Bay Territory) Act 1986 (Cth) s 48(3).

^[679] Aboriginal Land (Jervis Bay Territory) Act 1986 (Cth) s 49.

^[680] Aboriginal Land (Jervis Bay Territory) Act 1986 (Cth) s 14. Minerals is defined broadly to include precious metals, petroleum, gems and precious stones, and ores: s 2.

^[681] Aboriginal Land (Jervis Bay Territory) Act 1986 (Cth) s 44.

^[682] s 43.

^[683] Aboriginal Land (Jervis Bay Territory) Act 1986 (Cth) ss 52A(1), (2).

^[684] Aboriginal Land (Jervis Bay Territory) Act 1986 (Cth) s 52A(3).

^[685] Aboriginal Land (Jervis Bay Territory) Act 1986 (Cth) s 52A(14).

^[686] Aboriginal Land (Jervis Bay Territory) Act 1986 (Cth) s 15.

^[687] Aboriginal Land (Jervis Bay Territory) Act 1986 (Cth) s 50.

^[688] Aboriginal Land (Jervis Bay Territory) Act 1986 (Cth) s 52A(2)(c).

^[689] Aboriginal Land (Jervis Bay Territory) Act 1986 (Cth) s 45.

^[690] Aboriginal Land (Jervis Bay Territory) Act 1986 (Cth) s 7(3).