Report of the Aboriginal Land Commissioner for the year ended 30 June 2006
Aboriginal Land Rights(Northern Territory) Act 1976
Report of the Aboriginal Land Commissioner for the year ended 30 June 2006
Table of contents
- Report for the year ended 30 June 2006
- Appendix 1 - Part I
- Appendix 1 - Part II
- Appendix 2
- Section 61(1) of the Aboriginal Land Rights (Northern Territory) Act 1976 (the Act) provides that each Aboriginal Land Commissioner shall, as soon as practicable after 30 June in each year, prepare and furnish to the Minister a report of his operations during the year that ended on that date. This report has been prepared and is furnished to the Minister for Families, Community Services and Indigenous Affairs in compliance with s 61(1).
- During the year under review the office of Aboriginal Land Commissioner has been held in an acting capacity by The Hon. Howard Olney AM QC who prior to 30 April 2003 had held the position on a substantive basis in his capacity as a Judge of the Federal Court of Australia. In May 2006 Mr Olney's appointment as Acting Commissioner was renewed for a further 12 months.
- Although the period of office of former Commissioner The Hon. Justice P.R.A. Gray expired on 24 October 1997, he is deemed to continue to hold the office of Commissioner for the purpose of completing the performance of a function under the Act commenced but not completed before the period of office expired (s 52(4)). Reference to such incomplete functions is made later in this report.
- The functions of the Commissioner are set out in s 50 of the Act. The principal functions are those prescribed by s 50(1)(a) namely, that on an application being made to the Commissioner by or on behalf of Aboriginals claiming to have a traditional land claim to an area of land in the Northern Territory, being unalienated Crown land or alienated Crown land in which all estates and interests not held by the Crown are held by or on behalf of Aboriginals, the Commissioner is required to:
- ascertain whether those Aboriginals or any other Aboriginals are the traditional Aboriginal owners of the land; and
- report his findings to the Minister and to the Administrator of the Northern Territory, and where he finds that there are Aboriginals who are the traditional Aboriginal owners of the land, to make recommendations to the Minister for the granting of the land or any part of the land in accordance with s 11 and s 12.
- In addition to the Commissioner's primary function referred to above, s 50(1)identifies the following further functions, namely:
- to inquire into the likely extent of traditional land claims by Aboriginals to alienated Crown land and to report to the Minister and to the Administrator of the Northern Territory, from time to time, the results of his inquiries; (s 50(1)(b))
- to establish and maintain a register of the traditional land claims referred to in paragraph (b); (s 50(1)(c))
- to advise the Minister in connection with any other matter relevant to the operation of the Act that is referred to the Commissioner by the Minister; (s 50(1)(d))
- to advise the Minister and the Administrator of the Northern Territory in connection with any other matter relating to land in the Northern Territory that is referred to the Commissioner by the Minister with the concurrence of the Administrator of the Northern Territory. (s 50(1)(e))
- Section 50(3) provides that in making a report in connection with a traditional land claim the Commissioner is required to comment on each of the following matters:
- the number of Aboriginals with traditional attachments to the land claimed who would be advantaged, and the nature and extent of the advantage that would accrue to those Aboriginals, if the claim were acceded to either in whole or in part;
- the detriment to persons or communities including other Aboriginal groups that might result if the claim were acceded to either in whole or in part;
- the effect which acceding to the claim either in whole or in part would have on the existing or proposed patterns of land usage in the region; and
- where the claim relates to alienated Crown land – the cost of acquiring the interests of persons (other than the Crown) in the land concerned.
- The ability of the Commissioner to perform a function under s 50(1)(a) is restricted in a number of respects, notably by:
- s 50(2A) which prohibits the Commissioner from performing a function in respect of an application made after the expiration of 10 years after the commencement of the subsection. Subsection (2A) commenced on 5 June 1987 and is frequently referred to as "the sunset clause".
- s 50(2B) which restricts the Commissioner's capacity to perform a function under s 50(1)(a) in cases where an application relates to land which has been the subject of an earlier report in which no recommendation has been made for the granting of title to that land. Applications to which subsection (2B) apply are frequently called "repeat claims".
- s 50(2C) which prohibits the Commissioner from performing a function in respect of an application relating to land in which it appears that an estate or interest is held by or on behalf of Aboriginals unless the Aboriginals who hold that estate or interest have, or the body which holds that estate or interest on their behalf has consented in writing to the making of the application.
- s 50(2D) which prohibits the Commissioner from performing a function in respect of an application relating to land which prior to 1 March 1990 was reserved, dedicated or otherwise set aside under a law of the Northern Territory as a stock route or stock reserve other than a stock route or stock reserve that is, along each of its two longer boundaries, contiguous to land to which the application relates. Applications to which subsection (2D) applies are frequently referred to as "stock route claims".
- The Aboriginal Land Act (NT) confers upon the Aboriginal Land Commissioner the function of reporting to the Administrator of the Northern Territory in relation to sea closure applications referred by the Administrator to the Commissioner pursuant to section 12 of that Act. The Commissioner has not been required to perform any function in relation to a sea closure application in the year under review.
- In addition to the obligation to furnish a report to the Minister each year the Commissioner is required to furnish to the Minister such additional reports as the Minister requires and may furnish such other reports as the Commissioner thinks fit (s 61(2)).
- The Office of the Aboriginal Land Commissioner is situated at 7th floor, 9–11 Cavenagh Street, Darwin.
- The position of Executive Officer to the Office of the Aboriginal Land Commissioner is held by Mr Robert Bird who has served in that role since 1988.
- Recording and transcription services have been supplied under contracts negotiated on a case by case basis. These arrangements have proved to be satisfactory.
- No new applications have been made since the sunset clause (s 50(2A)) took effect on 5 June 1997.
- As at 30 June 2006 the only report outstanding in relation to a completed inquiry is in relation to the Alcoota Land Claim (No 146). The inquiry was originally commenced by the then Commissioner Justice Gray on 13 May 1996. The matter was delayed by a series of court proceedings which were finalized in 2004. The inquiry was ultimately concluded on 28 October 2004. Justice Gray is currently engaged in preparing his report.
- Two inquiries commenced by Justice Gray during his term in office as the Commissioner have not been concluded. In the case of the Loves Creek Land Claim (No 143) agreement has been reached between the claimants and the Northern Territory government that the Minister be requested to arrange for the land to be added to Schedule 1 of the Act with a view to it being granted to Land Trust. Although the Office of the Aboriginal Land Commissioner has not been provided with any formal information it is understood that relevant surveys have been concluded and that resolution of the matter is likely to be achieved in the near future.
- The second inquiry commenced by Justice Gray but not concluded is in relation to the Wangkangurru Land Claim (No 156). Evidence in the inquiry was concluded on 3 December 1997. It remains for the Central Land Council on behalf of the claimants to tender final written submissions before a report can be prepared. The Central Land Council (CLC) has indicated informally that it would like to negotiate settlement of the claim with the Northern Territory government but, so far as the Office of the Aboriginal Land Commissioner is aware, no action towards that end has been initiated.
- In December 2004 in an endeavour to assist in the disposal of a number of unresolved applications made by the Northern Land Council (NLC), the Acting Commissioner initiated the formal commencement of inquiries in relation to eight traditional land claims. These are identified in paragraph 19 of the 2005 Annual Report. With the exception of the Avon Downs Region Land Claim (No 249) (to which reference is made below), and despite the holding of a number of callover hearings, no progress has been achieved. The NLC is not in a position to proceed with the applications and has been unable to give any indication of when, if at all, it will be ready to proceed.
- On 27 July 2005 the NLC, on behalf of the claimants, withdrew the application in the Myra Falls Region Land Claim (No 180). Although no explanation for the withdrawal accompanied the formal notice it had previously been pointed out to the NLC that the claimed land had in fact been vested in the Arnhem Land Aboriginal Trust since 30 May 1980.
- The hearing of the Avon Downs Region Land Claim (No 249) was scheduled to commence on 14 September 2005 however, on 8 September 2005 the NLC, on behalf of the claimants, withdrew the application. The NLC advised that the application was withdrawn on the instructions of the claimants after consideration of the detriment material filed by the Northern Territory government. The claimants propose to pursue the possibility of securing a community living area under Northern Territory legislation.
- The claimants in land claim No 157 withdrew their application on 4 June 2006. This application, which was also entitled Alcoota Land Claim, related to the same area of land that is the subject of the similarly named claim No 146. The applicants in claim No 157 had previously opposed the first application and it was their opposition to that application that gave rise to the court proceedings to which reference is made above.
- The only application that was scheduled for hearing during the year under review was the Avon Downs Region Land Claim (No 249) which was withdrawn shortly before the hearing was due to commence. The Acting Commissioner has however conducted callover hearings in both Darwin and Alice Springs throughout the year in an endeavour to encourage the parties, where appropriate, to resolve claims by negotiation. There are at present at least 10 applications that are capable of resolution by this process.
- Currently there are no claims scheduled for hearing during the 2006-2007 year. This situation may change in the event that amendments to the Act (to which reference is made below) become law.
- On 19 June 2006 a Bill for an Act to amend the Land Rights Act was passed by the House of Representatives and was later presented to the Senate for its concurrence. A number of provisions in the Bill will, if enacted, impact upon the future operations of the Commissioner.
- At the present time the Commissioner has no power to force applicants to pursue their claims. Once an application has been lodged with the Commissioner the land owner (the Crown in relation to the Northern Territory) is unable to grant any estate or interest in the land, or to reserve, dedicate or set aside the land, unless and until the application is "finally disposed of". The result is that there is no incentive for claimants (i.e. the major Land Councils) to research and present their claims. Of the claims presently unresolved, the most recent was lodged more than nine years ago, whilst the longest outstanding application dates back to 1978. The proposed amendments will enable the Commissioner to require that applicants make their claim material available within a timeframe determined by the Commissioner (being not less than six months) with the sanction that failure to comply may result in the application being treated as "finally disposed of".
- A number of applications in which claims are made to stock routes, to the intertidal zone and to the beds and banks of rivers will also be affected in the event of the proposed amendments being adopted.
- In accordance with past practice, Appendix 1 to this report contains details of all applications that have been made under s 50(1)(a) of the Act. In Part I of the Appendix there is a list of applications in chronological order and in Part II there is an alphabetical list. The Tables which follow Part I are intended to show the current status of each application. The function of each Table is explained in the following paragraphs. A slightly different format has been adopted in this report in an endeavour to ensure that the information provided is meaningful. Some minor errors which appeared in previous reports have been corrected.
- Table 1 lists the reports that have been submitted pursuant to s 50(1)(a)(ii) since the commencement of the Act. Seventy-nine applications have been the subject of reports. In three cases not all of the claimed land has been dealt with and those areas remain subject to claim.
- Table 2 deals with 66 applications which have been wholly withdrawn or are not properly to be regarded as within the Commissioner's jurisdiction. In some cases the claimed land does not fit the description in s 50(1)(a) and in some others the application duplicates a claim in another application which has been the subject of an inquiry, report and recommendation for a grant of title. Applications relating to claims to the seabed below the low water mark (designated as seabed claims) are included on the basis that current judicial opinion is that such land is not "land in the Northern Territory" and accordingly is not available to be claimed. In cases where the application has been withdrawn and the claimed land added to Schedule 1 of the Act, the number and date of the amending Act is shown. In each of such cases the land has subsequently been granted to a Land Trust. In a number of cases applications have been withdrawn in order to facilitate the granting of title pursuant to Northern Territory legislation.
- Table 3 lists 107 applications which have not been wholly disposed of. The third column of the Table identifies the nature and status of the claimed land. Applications in respect of which the Commissioner is unable to perform any function by virtue of subsections (2B), (2C) or (2D) of s 50 are included, as are applications which relate to land held by the Northern Territory Land Corporation (NTLC) and the Conservation Land Corporation (ConLC). It should be noted that although current judicial opinion is that neither the NTLC nor the ConLC is properly to be regarded as "the Crown" or an instrumentality of the Crown (and thus land held by those corporations would not be Crown land for the purposes of the Act), the NLC and CLC have from time to time asserted that in at least some (albeit unspecified) cases the vesting of land in the corporations is, or may be, defective for one or other of a number of reasons including procedural irregularity or improper purpose. The only instance in which these assertions have been tested is in relation to the Billengarrah Land Claim (No 175) to which reference is made in numerous previous Annual Reports, most recently at paragraphs 11–13 of the 2005 Report. As each case must be dealt with on its own particular facts, it is not possible to assert with any certainty that all claims to NTLC and ConLC land are invalid. At the present no request has been made by either the Land Councils or the Northern Territory government for the status of any particular area of NTLC or ConLC land to be determined.
- Information in respect of sea closure applications referred to an Aboriginal Land Commissioner by the Administrator of the Northern Territory pursuant to s 12 of the Aboriginal Land Act (NT) has been provided in previous Annual Reports. As there has been no change in the information provided for over 18 years it is not proposed to repeat the previously published details in this report.
- The expenditure of the Office of the Aboriginal Land Commissioner is included in the financial statements relating to the Office of Indigenous Policy Co-ordination (OIPC) (presently within the Department of Families, Community Services and Indigenous Affairs but previously within the Department of Immigration and Multicultural and Indigenous Affairs) and is submitted to the Minister under subsections 63(2) and 70(2) of the Public Service Act 1999, and to the Finance Minister under s 50 of the Financial Management and Accountability Act 1997, and as such are subject to scrutiny through the Senate Estimates Committee process. A financial statement in respect of the funding of the operations of the Aboriginal Land Commissioner for the year ended 30 June 2006 appears in Appendix 2. The information has been supplied by OIPC and has not been verified by the Aboriginal Land Commissioner.
- Since the above report was prepared the Federal Parliament has passed the Aboriginal Land Rights (Northern Territory) Act 2006 in essentially the same terms (so far as the functions of the Commissioner are affected) as the Bill referred to in paragraph 23. The Acting Commissioner is currently assessing what steps are required in order to give proper effect to the amendments.
Note 1: Report 16 contains 7 decisions on procedural and jurisdictional issues arising
in application No 37 (Kenbi (Cox Peninsula)) between 1979 and 1981.
Note 2: Applications No 11 (Douglas (Wagaman)) and No 12 (Umbrawarra Gorge-
Jindare (Wagaman)) were amalgamated with application No 32 and reported
on in report No 37 under the name of Upper Daly Land Claim which was
furnished in 3 volumes published on the respective dates indicated.
Note 3: Application No 18 (Dum-in-Mirrie Island) has been amalgamated with
application No 37 (Kenbi (Cox Peninsula)). Report No 40 was set aside by
the Federal Court of Australia (See Northern Land Council v Aboriginal Land
Commissioner (1992) 105 ALR 539). The application has since been the
subject of report No 59.
Note 4: Application No 111 is a claim to two adjacent former pastoral properties
known as Gimbat and Goodparla. The inquiry in relation to Goodparla was
adjourned for hearing at a later date. In Report No 48 the part of the claim in
application No 111 dealt with is described as the Jawoyn (Gimbat Area) Land
Note 5: The land recommended for grant in report No 49 includes the whole of the
land claimed in applications No 34 (Borroloola No 3) and No 117 (South West
Note 6: Applications Nos 184 and 198 claim other areas which are not dealt with in
Reports Nos 61, 62 and 63.
Note 1: The claimed land was later included in application No 19 (Alligator Rivers
Stage II). Application No 4 was not proceeded with.
Note 2: The claim has not been withdrawn. The claimed land is now vested in a
land trust in perpetuity under the Cobourg Peninsula Aboriginal Land and
Sanctuary Act 1981 (NT) as Gurig National Park.
Note 3: The whole of the land claimed in applications No 34 and 117 was
recommended for grant in Report No 49.
Note 4: The claimed land was included in the recommendation in Report No 1.
Note 5: The claimed land was included in the recommendation in Report No 59
UCL - Unalienated Crown Land
AL - Leasehold land held by Aboriginal interests
SR - Stock route/stock reserve
BB - Bed and banks of a river
ITZ - Intertidal zone
NTLC - Northern Territory Land Corporation
ConLC - Conservation Land Corporation
MAG - Museums and Art Galleries NT
Note 1: The original application has been amended on five occasions by the withdrawal of portions of the claim in respect of which separate applications were made. An area of 30,400 square kilometers remains under claim.
Note 3: This application was originally expressed to be a repeat claim but on examination of the Commissioner’s report in the Mount Allan Station Land Claim (Report No 19) it appears that the area in question was not under claim in that application.
Note 5:Application No 192 includes the whole of the land claimed in application No 162. The two applications have been amalgamated.