ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) ACT 1976 ABORIGINAL LAND COMMISSIONER Report for the year ended 30 June 2005 Office of the Aboriginal Land Commissioner 9–11 Cavenagh Street DARWIN NT 0801 © Commonwealth of Australia 1999 ISSN 0728 8875 This work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may be reproduced by any process without prior written permission from the Commonwealth available from Ausinfo. Requests and inquiries concerning reproduction and rights should be addressed to the Manager, Legislative Services, Ausinfo, GPO Box 1920, GPO Canberra 2601. Produced by the Department of Immigration and Multicultural and Indigenous Affairs. PRINTED BY: LG2 Designers, Canberra (ii) (iii) CONTENTS Subject Page Annual Report 1 Aboriginal Land Commissioner 1 Functions of the Commissioner 1 Administrative Arrangements 3 New Applications 3 Billengarrah Land Claim 3 Beetaloo Land Claim 4 Alcoota Land Claim 4 Reports Outstanding 4 Incomplete Inquiries 4 Hearing Schedule 5 Summary of report to the Minister 5 Details of Land Claim Applications 6 Sea Closure Applications 7 Expenditure Statement 7 APPENDIX 1 – PART I Chronological list of applications 8 Table 1 – Reports submitted 19 Table 2 – Claims withdrawn or unable to be heard 23 Table 3 – Incomplete inquiries 29 Table 4 – Outstanding applications 30 APPENDIX 1 – PART II Alphabetical list of applications 32 APPENDIX 2 Sea Closure Applications 42 APPENDIX 3 Expenditure Statement 44 (v) 1 ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) ACT 1976 REPORT OF THE ABORIGINAL LAND COMMISSIONER FOR THE YEAR ENDED 30 JUNE 2005 ANNUAL REPORT 1. 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 Immigration and Multicultural and Indigenous Affairs in compliance with s 61(1). ABORIGINAL LAND COMMISSIONER 2. 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 2005 Mr Olney’s previous appointment as Acting Commissioner (referred to at paragraph 3 of the 2004 Annual Report) was renewed for a further 12 months. 3. 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. FUNCTIONS OF THE COMMISSIONER 4. 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: (i) ascertain whether those Aboriginals or any other Aboriginals are the traditional Aboriginal owners of the land; and (ii) 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 ss 11 and 12. 2 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: (a) 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; (b) 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; (c) 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 (d) where the claim relates to alienated Crown land – the cost of acquiring the interests of persons (other than the Crown) in the land concerned. 5. The ability of the Commissioner to perform a function under s 50(1)(a) is restricted in a number of respects, notably by: a) 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”. b) 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”. c) 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. d) 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”. 3 6. 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. 7. 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)). In January 2005 in response to a request by the Minister pursuant to s 61(2) the Acting Commissioner furnished to the Minister a report on all of the outstanding traditional land claim applications made under the Act including the current status of such claims and any impediments, if known, to the settlement thereof. (A summary of the report appears below.) ADMINISTRATIVE ARRANGEMENTS 8. The Office of the Aboriginal Land Commissioner is situated at 7th floor, 9–11 Cavenagh Street, Darwin. 9. 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. 10. Recording and transcription services have been supplied under contracts negotiated on a case by case basis. These arrangements have proved to be satisfactory. NEW APPLICATIONS 11. No new applications have been made since the sunset clause (s 50(2A)) took effect on 5 June 1997. BILLENGARRAH LAND CLAIM (No 175) 12. The Billengarrah Land Claim has been referred to in numerous previous annual reports, most recently at paragraphs 21-23 of the 2004 Annual Report. The land is held in the name of the Northern Territory Land Corporation (NTLC), a body which the courts have held is not the Crown or an instrumentality of the Crown. 13. In March 2004 the Acting Commissioner determined that the acquisition of the land by the NTLC was not attended by an improper purpose (as asserted by the Northern Land Council (NLC) on behalf of the claimants). An application to the Federal Court of Australia to review the Acting Commissioner’s determination pursuant to the Administrative Decisions (Judicial Review) Act 1977 was dismissed on 14 September 2004. On 17 June 2005 the High Court of Australia refused to grant special leave to appeal against the decision of the Federal Court. 4 BEETALOO LAND CLAIM (No.54) 14. The Beetaloo Land Claim is referred to in detail at paragraphs 24–26 of the 2004 Annual Report. 15. In March 2004 the Acting Commissioner determined that by virtue of s 52(2C) of the Act, he was unable to perform or continue to perform any function under s 51(1)(a) in relation to the claim. An application to the Federal Court of Australia to review the Acting Commissioner’s determination was dismissed on 14 September 2004. ALCOOTA LAND CLAIM (No 146) 16. An inquiry by the then Commissioner Justice Gray in relation to the Alcoota Land Claim originally commenced on 13 May 1996.