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ABORIGINAL LAND RIGHTS LAW IN AUSTRALIA:CURRENT ISSUES AND LEGISLATIVE SOLUTIONS

By Michael Barker*

In the year 1984, it is fair to suggest, Aboriginal Land Rights is nolonger a concept awaiting its day, but a present reality. 1 The landmarkCommonwealth Aboriginal Land Rights (Northern Territory) Act2 wasenacted in 1976 for the limited purpose of recognizing traditionalAboriginal ownership of land in the Northern Territory. South Australia, in1981, passed the Pitjantjatjara Land Rights Act3 • In 1983, a number ofsignificant steps were taken in other States: New South Wales enacted itsAboriginal Land Rights Act, 19834 ; an Aboriginal Land Claims Bill waslaid before the Victorian Parliament; a land rights inquiry was establishedin Western Australia; in 1982 and 1983, Queensland amended its Land Actto provide land rights in a form known as Deed of Grant in Trust. Additionally, the Commonwealth government established a Panel of Lawyersto draft national land rights legislation, and appointed a Federal Courtjudge to review the operation of the Aboriginal Land Rights (Northern Territory) Act 1976. 5 Only the State of Tasmania has failed to enact or initiatesubstantive land rights reforms.

No longer, therefore, do Australians stand at the policy crossroadsdebating whether land rights is a good or bad thing. Rather, there are nowtasks at hand, tasks to produce effective and workable land rights law. It ison these tasks that this article focuses. It is assumed that certain problemsof a constitutional nature in our federal system of government are surmountable. Except in passing, therefore, the discussion will not enter uponthe thorny, though certainly not barren, field of Commonwealth power toenact a national land rights law6 ; nor will it seek to explicate the complexissue of the impact of Commonwealth racial discrimination law on Statelaw-making activities7 •

* Michael L. Barker, Faculty of Law, Australian National University, Canberra, Australia.1 In this context, 'land rights' means rights in land granted to Aborigines individually or in

groups, including land councils, but does not include land held or acquired by governmentauthorities, such as the Commonwealth Aboriginal Development Commission, forAboriginal purposes.

2 No. 191 of 1976, as amended.3 No. 20 of 1981.4 No. 42 of 1983.5 As to the Panel of Lawyers, see Neate G., 'Land Rights News' (1984) 10 Aboriginal Law

Bulletin 1 (10 May 1984). The review of the operation of th~ Aboriginal Land Rights (Northern Territory) Act 1976 (Cth.), was completed in late 1983. See report of Mr. JusticeToohey to the Minister of Aboriginal Affairs, Seven Years On (1983).

6 It is generally accepted that the power of the Commonwealth Parliament under s.51(xxvi)with respect to 'the people of any race for whom it is deemed necessary to make speciallaws' is capable of supporting land rights legislation. See report by the Senate StandingCommittee on Constitutional and Legal Affairs, '200 Years Later ...' (1983) Ch. 5,79-105.

7 In Gerhardy v. Brown (unreported, Supreme Court of South Australia, 21 July 1983)Millhouse J. held s.19 of the Pitjantjatjara Land Rights Act 1981 to be invalid by reasonof its inconsistency with the Commonwealth Racial Discrimination Act 1975. The decision

484 1984 AMPLA Yearbook

The particular tasks at hand upon which the article will concentraterelate to the identification of:

the land to which Aborigines may gain rights;the basis, or bases, upon which land rights will be granted toAborigines;the Aborigines who will be entitled to land rights;the appropriate Aboriginal land-holding entity;the legal nature of the land rights granted to Aborigines;the extent of Aboriginal ownership, control or use of land, includingits mineral resources.These tasks relate primarily to land use rights8 • In illustrating the

complex, not to say controversial, nature of these tasks the article will drawon relevant State, Territory and Commonwealth legislation, as well as theBill currently before the Victorian Parliament.

ABORIGINAL LAND

The first important task when enacting a land rights law is identification of the land to which Aborigines may gain rights. If one acknowledgesthat land rights are to be accorded Aborigines by reason of their priorsovereignty over or occupation of the continent of Australia9 and amountto much more than 'recognition' of Aboriginal customary law10 or benigndiscrimination11, then fundamentally all Australia12 is within the contemplation of a land rights law. A land rights law is not, however, a reversalof the historic assumption of sovereignty by the colonizing British govern-

is discussed by Nettheim G. and Rees N., 'Discrimination and Land Rights' (1983) 9Aboriginal Law Bulletin 2.

8 Another issue altogether different is the application of Aboriginal law on AboriginalLands. See generally the Discussion and Research Papers of the Australian Law ReformCommission, Aboriginal Customary Law Reference.

9 Berndt R.M., 'Traditional Concepts of Aboriginal Land', Aboriginal Sites, Rights andResource Development (1981) says at p. 1: 'Aborigines occupied with out challenge virtually every part of the Australian continent and its adjacent islands for a still not finallyestimated period but one that is well in excess of 40,000 years'. See also Barker M.,'Aborigines, Natural Resources and the Law' (1983) 15 University of W.A. Law Review245.

10 As discussed infra, the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth.)essentially adopts the approach of recognizing customary Aboriginal law. See alsoCrawford J.R., 'Aboriginal Customary Law; A General Regime for Recognition'Australian Law Commission Research Paper No.8 (1982) 49, n.133. As a matter of policythis approach adopts the fiction of 'recognizing' existing rights rather than creating newrights. It may be suggested that this approach fails to treat the land rights issue adequatelyby, without regard to reality or justice, ignoring the rights of those Aborigines who are nolonger tradition-oriented.

11 E.g. Partlett D.F., 'Benign Racial Discrimination: Equality and Aborigines' (1979) 10Federal Law Review 238. Positive discrimination may justify special social and economicprogrammes for Aborigines by reason of their provable inferior social and economicstatus in the community, but it may be difficult to justify the wholesale return of land andresource control to Aborigines on this basis.

12 In this context all of Australia may be considered to include the continent and surroundingislands. See supra n.9. It is an interesting question whether Aborigines might also claimrights over the Australian continental shelf.

Aboriginal Land Rights in Australia 485

ment; it is merely an acknowledgement that British imperialism, law and administration erred in their relationship and attitude towards AustralianAborigines 13 • It follows that the task of identifying Aboriginal land for present purposes will necessarily involve a delicate balancing of private landinterests under the existing Anglo-Australian legal system and the interestsof Aborigines under the 'Sovereignty Acknowledgement Principle'.

There is, though, no reason why, in the implementation of theSovereignty Acknowledgement Principle, existing private land interestsshould not be overridden by a land rights law. Under the prevailing legalsystem, the owner of private property whose rights have been confiscated bythe government in the public good has always been entitled·to financial compensation14 • Upon a re-allocation of land rights by law, therefore, anyfinancial injustice may easily enough be remedied. Perceived spiritual oremotional injustices -long association with land, difficulty in establishingoneself elsewhere, love of the land - are less easily remedied. But, of course,a land rights law will in part be seeking to remedy the historic emotional orspiritual injustices suffered by Aborigines. Existing rights over otherlands - for example, in cities and towns - may be untouchable by a landrights law for the simple,· pragmatic reason that it provides the lifeblood ofthe nation's economy. But even then, not all of it may be untouchable andthe award of financial compensation to existing right-holders may justify aland rights law which re-allocates those rights.

Indeed, in its First Report upon Aboriginal Land Rights the SelectCommittee of the Legislative Assembly of the New South Wales Parliamentproposed that no land in the State should necessarily be immune from theoperation of a land rights law and recommended the establishment of anelaborate claim procedure to enable Aborigines to gain rights overprivately-owned land and to ensure the financial compensation of existingland owners 15 •

Under current Australian land rights law, however, no deliberate attempt has been made to allocate Aborigines rights in privately-owned land.Instead, Crown lands· have provided the basic source of Aboriginal lands.As the definitions of the land available differ from one piece of legislation tothe next, different lands are the subject of land rights law in the States andthe Northern Territory.

13 In 1770 Captain Cook annexed the east coast of Australia for the British Crown. In Coe v.Commonwealth ofAustralia (1979) 24 A.L.R. 118, 128, Gibbs J. states the orthodox legalview that the initial annexation of this part of Australia was an 'act of state' the validity ofwhich cannot be challenged in an Australian court. In Milirrpum v. Nabalco Pty. Ltd.(1971) 17 F.L.R. 141 (the Gove Lands Rights case) it was held that the British Australiancolonies were settled and not conquered or ceded, and that the English common lawreceived in the colonies did not recognize communal native title of prior inhabitants ofsuch a colony.

14 E.g. Burmah Oil Co. Ltd. v. Lord Advocate [1965] A.C. 75 which established that theCrown is obliged to compensate the owner of any property confiscated by the Crown pursuant to prerogative power. The Commonwealth Constitution in s.51 also provides thatthe acquisition of property by the Commonwealth should be on just terms which usuallymeans that compensation should be paid. Although an Act of a State Parliament mayconfiscate property without compensation being paid, the usual statutory principle is thatcompensation will be given to an owner of such property.

15 Select Committee of the. Legislative Assembly, First Report on Aboriginal Land Rights(1980).


The Northern Territory

The· landmark Commonw~alth Aboriginal Land Rights (NorthernTerritory) Act 197616 continues to operate in the Northern Territory despitethe large measure of self-government granted to the Territory in 197817 .Under this Act, certain Aborigines' may claim:

unalienated Crown land or alienated Crown land in which all estates and interests notheld by the Crown are held by, or pn behalf of, Aboriginals l8 •

'Unalienated Crown land' is defined in the Act to mean 'Crown landin which no person (other than the Crown) has an estate or interest, butdoes not include land in a town'l 9. A 'town' has the same meaning as in thelaw of the Northern Territory relating to the planning and development oftowns and the use of land in or near towns, and includes any area that, byvirtue of regulations in force under that law, is to be treated as a town20 .

'Alienated Crown land' means Crown land in which a person (otherthan the Crown) has an estate or interest, but does not include land in atown21 .

From this short introduction to the Commonwealth Act it is clearthat whilst an attempt has been made to identify lands claimable byAborigines, the identification formula does not physically identify land asAboriginal land and requires application of the definition from one claim tothe next. Only if lands fit within the formula may they be claimed byAborigines. Because of its 'floating' nature disputes can and have arisen asto whether Crown land in the Northern Territory is claimable under the Actby Aborigines. Some of these disputes have been tested in the High Court ofAustralia, others have been discussed by the Aboriginal Land Commissioner when dealing with Aboriginal land claims.

An early matter of dispute arose when Aborigines claimed Crownland- Utopia Station- in which a leasehold interest was held by theAboriginal Land Fund Commission (ALFC), the predecessor of theAboriginal Development Commission (ADC). Clearly, Utopia Station was'alienated Crown land' as a person other than the Crown held an interest inthe land; but could itbe said, given that the leaseholder was the ALFC, thatthis non-Crown interest was held 'by, or on behalf of, Aboriginals'?

In the Utopia case22 , a majority of the High Court, in a joint judgment, developed a wide interpretation of the relevant provision of the Act,holding that when the ALFC (as a Commonwealth agency) acquires land 'itmust be for the purpose of enabling Aboriginals to occupy it'23. Conse-

16 Supra n.4. For a discussion of the operation of the Act see: Barnett D.J., 'AboriginalLand Rights in the Northern Territory' and comments thereon (1978) 1 A.M.P.L.I. 399;MacPherson N.J., 'Aboriginal Land Rights in the Northern Territory Relating to Miningand Petroleum Developments' and comments thereon (1979) 2 A .M.P.L.I. 258; RogersV., 'Aboriginal Land Rights-An Update' (1980) 2 A.M.P.L.I. 92; Maxwell R.P., 'Mining and its Interaction with Commonwealth and State Laws Relating to Environmentaland Aboriginal Issues' (1982) 4 A.M.P.L.I. 55, 75-90.

17 Northern Territory (Self-Government) Act 1978 (Cth.).18 Aboriginal Land Rights (Northern Territory) Act 1976, s.50(1).19 S.3(1).20 Ibid.21 Ibid.22 R. v. Toohey; Ex parte Attorney-Generalfor the Northern Territory (1980) 28 A.L.R. 27.23 Ibid. 36 per Stephen, Mason, Murphy, and Aikin JJ.


quently, reasoned these judges, it involved 'no straining of language todescribe the Commission's hold of its leasehold interests in Utopia Stationas being "on behalf of' Aboriginals'24.

This may seem a victory for a commonsense approach to statutoryinterpretation and be treated as a welcome consideration by the Australianjudiciary of the policy motivations of social welfare legislation25 ; however,that former Chief Justice Barwick, in a dissenting opinion, was able to construe the Act so narrowly as to require specific Aborigines to hold a traditionally recognized interest in land before the definition of claimable landwas satisfied,26 provides, for present purposes, the instructive lesson of thecase. The lesson is this: there is a real danger in identifying Aboriginal landby reference to a broad definition which may be interpreted to restrict theavailability of land for claim by Aborigines. The lesson is even betterlearned from a brief analysis of two more recent decisions of the HighCourt.

In the first of these decisions, the Cox Peninsula case27 , the 'town' exception to Aboriginal lands obliquely came before the High Court. Thetown exception clearly has its valid applications, for example in the FinnissRiver Report of the Aboriginal Land Commission the town of Batchelorwas not included in the land claim area28 . On the 22 December 1978,however, Regulations made under the Town Planning Act 1964 (N.T.) extended the boundaries of various Territory cities and towns including thoseof the capital Darwin. The Planning Regulations made under the later Planning Act 1979 (N.T.) maintained the boundary extension. The effect, inDarwin, as Sir Harry Gibbs, the Chief Justice has explained29 , was to expand the city with a population of 50,000 and formerly occupying about 142square kilometres to an area of about 4350 square kilometres, including anarea of about 800 square kilometres known as the Cox Peninsula. There ismuch dispute as to whether the Cox Peninsula may truly be considered partof the Darwin metropolis. As Sir Harry has put it, '[a]lthough the nearestpoint of the peninsula is only about six kilometres from Darwin by sea,access by road is much longer and more difficult. Much of the peninsula isvacant land'30. If the town exception applies to except the Cox Peninsulafrom claim, the application of certain Aborigines in respect of it will befrustrated.

In the Cox Peninsula case the Northern Land Council alleged that itwas entitled to challenge the legality of the Northern Territory governmentaction which resulted in the boundary extension. So far, the High Court hasagreed that the law suit may be maintained; the substantive claim, as to theillegality of the government action, remains to be determined3!. The case

24 Ibid.25 See discussion in Barker M., 'The Utopia Case: Strengthening Land Rights' (1980) Legal

Services Bulletin 179.26 Ibid 181.27 Re Toohey; Ex parte Northern Land Council (1981) 56 A.L.J.R. 164.28 See report of Aboriginal Land Commissioner (Toohey J), 'The Finniss River Claim' (1980)

Exhibit 14, p. 97.29 Supra n.27, 165-166.30 Ibid.31 At the time of writing the substantive issue of validity of the planning regulations has not

been determined.


discloses the possibility, nonetheless, of legal techniques designed to avoidthe policy of a land rights law.

Two recent decisions of the High Court also point to the legal uncertainty inherent in broad definitions of the land available for land rights purposes. In Re Toohey; Ex parte Meneling Station Pty. Ltd. 32 it was argued inthe High Court that land in respect of which some person other than theCrown held a Grazing Licence under the Crown Lands Act 1931 (N.T.), wasalienated Crown land and so unavailable for claim by Aborigines. The courtunanimously found that such a statutory licence was personal in nature andnot, nor intended to be, in the nature of an interest in land33 . In the mostrecent case,34 however, the High Court, inter alia, held that land vested inthe Northern Territory Conservation Land Corporation constitutedalienated land for the purposes of the Land Rights Act. Under the TerritoryParks and Wildlife Conservation Act 1980 (N.T.), section 29, it wasspecifically provided that the Corporation, clearly a governmental authority, was not to be treated as a Crown instrumentality.

Whilst the integrity of the land rights legislation has largely beenupheld by the High Court, the uncertainty of its interpretation, and so thescope of the Act, loomed large until settled by these decisions35 .

It is also obvious that the broad definition of Crown land under theAct has created further difficulties. For example, land set apart for, ordedicated to, a public purpose under the Land Acquisition Act 1955 (Cth.)'or under any other Act' is not within the Act's notion of Crown land36 . Is aNorthern Territory Act included under the 'any other Act' exception?Toohey J., when Aboriginal Land Commissioner, took the sound view thatthe exception relates only to Commonwealth Acts, and does not includeTerritoriallegislation37 . The High Court has recently confirmed this view. 38

Finally, it should be noted that the broad identification of Aboriginallands under the Act may actually prejudice the land rights of existingAboriginal land owners. After all, an Aboriginal person who, for example,holds land under a lease from the Crown, would be in possession ofalienated Crown land, but in circumstances where the non-Crown interest isheld 'by Aboriginals'. As a result, the land technically should be availablefor claim by other Aborigines. Perhaps this is an anomaly, maybe it is not.On the one hand, an Aborigine has a present legal interest; on the otherhand, Aborigines who may be traditionally entitled to the land may presently be deprived of it. Whatever be the appropriate solution, Toohey J. asAboriginal Land Commissioner appears to have taken the view that the

32 (1983) 57 A.L.l.R. 59.33 Ibid. See in particular Mason 1. 63-65 and Wilson J. 67-69.34 Re Kearney; Ex parte Japanangka (M. 23 of 1983) and Re Perron; Ex parte Japanangka

(M. 80 of 1982) (1984) 52 A.L.R. 31, per Gibbs C.J., Wilson, Brennan and Deane lJ.35 See e.g. the discussion in the report of the Aboriginal Land Commissioner (Toohey 1.),

'The Borroloola Claim' (1981) paras. 138-143; 'The Finniss River Claim' (1980) paras.18-36.

36 See definition of 'Crown land' in s.3(1) of the Act.37 Aboriginal Land Commissioner (Toohey J.), Annual Report 1979-1980 (PIP 61-1981)

paras. 16, 17.38 Re Kearney; Ex parte Japanangka (M. 23 of 1983); Re Perron; Ex parte Japanangka (M.

80 of 1982) (1984) 52 A.L.R. 31.


Commonwealth Parliament never intended Aborigines to be deprived of existing legal interests in land39 •

New South Wales

The Aboriginal Land Rights Act, 1983 (NSW)40 provides a contrasting approach to the identification of Aboriginal lands. First, landspresently vested in the Aboriginal Lands Trust of New South Wales will vestin Local Aboriginal Land Councils41 . Apparently, these lands comprise aslittle as 43 square kilometres42 . Secondly, the Act allows Aboriginal landcouncils to gain rights over 'claimable Crown lands', which are defined as:

land vested in Her Majesty that, when a claim is made for the lands . . .(a) are able to be lawfully sold or leased, or are reserved or dedicated for any pur

pose, under the Crown Lands Consolidation Act, 1913, or the Western LandsAct, 1901;

(b) are not lawfully used or occupied; and(c) are not needed, nor likely to be needed, for an essential public purpose43 •

As I have suggested elsewhere,44 there are five ready comments to bemade concerning this identification formula. First, it only affects landsvested in 'Her Majesty'. Secondly, it includes only those Crown lands ableto be sold or leased under the Crown Lands Consolidation Act and theWestern Lands Act and so excludes Crown lands controlled by other Statelegislation such as the National Parks and Wildlife Act, 1974 or the ForestryAct, 1916. Thirdly, it is also restrictive in that it includes only land able tobe sold or leased 'at the time of the claim'. Fourthly, it is unclear whetherland not actually, physically used is included in the expression 'lawfully usedor occupied'. Finally, the expression an 'essential public purpose' is left notonly undefined in the Act but also an issue which may be conclusively determined by the Minister for Lands4s . As a result, the identification formulaemployed by the Act, which appears at first to be without any discretionaryelements, is subject to a number of potentially destructive interpretativeproblems. Taking the identification formula as it stands, however, it clearlyidentifies the type of Crown lands against which Aboriginal land councilsmay claim land rights. It remains a matter of subjective evaluation whetherthe formula will, in the final analysis, produce enough land to satisfyAboriginal demands for land justice46 .

It would appear that the New South Wales government has alwaysappreciated the inadequate land base of its otherwise innovative land rightslaw, for the Act also provides that a sum equivalent to 7.5070 of annual Stateland tax receipts be paid to the New South Wales Aboriginal Land Council

39 'Borroloola Claim Report' supra n.35, para 131.40 Supra n.3.41 Aboriginal Land Rights Act 1983 (N.S.W.), s.35.42 The Bulletin (Sydney), 10 May 1983, 40.43 Aboriginal Land Rights Act 1983 (N.S.W.), s.36(1).44 Barker M., 'N.S.W. Land Rights Reform-How Real?' (1983) 9 Aboriginal Law Bulletin

9.45 Aboriginal Land Rights Act 1983 (N.S.W.), s.36(8).46 How much land may potentially be available for claim under this identification formula is

presently unknown as there is no comprehensive land register in N.S.W.: personal communication, Ministry for Aboriginal Affairs, N.S.W., November 1983.


each year for a period of 15 years, to be applied, at least in part, towards thepurchase of land by land councils47 • It has been estimated by the government that what might be termed the 'Alaskan option', will produce a sum inthe order of $400 million over the 15 year payment period48 •

Clearly, if substantial financial compensation is·paid to Aboriginesin lieu of land lost or foregone by them in settlement of their demands forland justice, then the discomfort inherent in a re-allocation of existing rightsin land can be correspondingly reduced. 49 Without trying to be too clever,however, it is worth emphasizing that this financial remedy does costmoney, and that there may be a limit to what the community can actuallyafford to disburse in cash. In any event, a land settlement may be moreeasily achieved by governments and more acceptable to Aborigines. As Mr.Justice Woodward found in the Second Report of the Aboriginal LandRights Commission in 1974, 'cash compensation in the pockets of thisgeneration of Aborigines is no answer to the legitimate claims of a peoplewith a distinct past who want to maintain their separate identity in thefuture'S 0 •

Victoria

Leaving to one side the Aboriginal Land Act 1970 (ViC.)S1, by whichcertain portions of land at Lake Tyers in the South East of the State andFramlingham in the South West were vested in specially created Aboriginallands trustsS2 , Victoria does not have a land rights law. On 16 March 1983,however, an Aboriginal Land Claims Bill was introduced into the VictorianParliament. If passed, this would provide a significant step forward in theland rights movement in Victoria.

In its Preamble, similar to that appearing in the New South WalesAct, the Bill acknowledges that Victoria was traditionally owned and occupied by Aborigines; that the land is of spiritual, social, cultural andeconomic importance to Aborigines; and that it is 'fitting to acknowledgethe importance which land has for Aboriginals and the need of Aboriginalsfor that land.' In consequence of this general acknowledgment, the Bill provides that any group of Aboriginals may make a claim 'for any area ofpublic land's3. 'Public land' means:

(a) Crown land including land permanently reserved under section 4 of the CrownLand (Reserves) Act 1978, State forests (within the meaning of the Forests Act1958) and parks (within the meaning of the National Parks Act 1975);

47 Aboriginal Land Rights Act, 1983 (N.S.W.), s.28.48 Sydney Morning Herald, 23 March 1983. As to the Alaskan financial settlement, see

Barsh, 'Indian Land Claims Policy in the United States' (1982) 58 North Dakota LawReview 7, 37-61.

49 In 'Makarrata; Preliminary Findings of Makarrata Research', N.A.C. Newsletter (March1982) p. 3, clauses 1 and 4, it is suggested that a treaty between Aboriginal people andAustralia should include both the vesting of lands in Aborigines and the payment of 5070 ofthe G.N.P. p.a. for a period of 195 years to Aboriginal people.

50 Second report of the Aboriginal Land Rights Commission (1974) para. 53.51 Act No. 8044, s.9.52 Moore B., 'Victoria- The Present' in Peterson N., (ed.), Aboriginal Land Rights: A

Handbook (1981) 184-185 explains the background to the 1970 settlement.53 Cl. 7(1).


(b) land vested in any Minister of the Crown or in the Housing Commission, StateElectricity Commission, Gas and Fuel Corporation or Melbourne andMetropolitan Board of Works; and

(c) land vested in any other public authority which is declared by the Governor inCouncil to be public landS4 •

Unlike the Commonwealth and New South Wales land identificationformulae, the proposed Victorian law provides a more certain means bywhich claimable land may be identified, and one which is essentially freefrom interpretative difficulty. Unlike the New South Wales law, it is notrestricted to Crown land of a certain type, but includes also Crown land inState forests, national parks and land held by State Ministers and importantland-holding statutory authorities. Potentially, therefore, a greater part ofVictoria is claimable than of New South Wales. As under the other twoActs, however, private lands are not claimable.

South Australia

In the remaining States, no legislation actually makes lands availablefor claim by Aborigines. In South Australia, however, the PitjantjatjaraLand Rights Act, 1981 (S.A.)SS provides a model that should be consideredin the context of the present discussion.

Under section 15 of the Act, the Governor of the State is empoweredto issue a land grant to an Aboriginal land holding body, Anangu Pitjantjatjaraku. The Act itself, however, identifies the lands to be granted56 . AsNicholas Peterson has rightly observed, S7 this feature of the Act makes itthe first 'negotiated' land rights settlement in Australias8 • Of all Australianland rights laws, it most resembles the popular conception of the NorthAmerican treaty in respect of Indian lands settlements. As such it providesan interesting model for the settlement of all land rights claims in Australia.

It may be suggested, however, that outside the special circumstancesof tradition-oriented Aborigines occupying traditional lands, there may notbe many occas-ions on which Aborigines will be able to command sufficientpolitical clout to negotiate a satisfactory land settlement. Moreover, oneshould not lose sight of the fact that the Pitjantjatjara political claim wasnegotiated not only in an accommodating political climate, at least initially,but also against a background in which legal rights had already beenguaranteed to a certain extent under the existing Aboriginal Lands TrustAct, 1966, (S.A.)59.

Aside from this negotiated land settlement, Aborigines in SouthAustralia have no general right to claim identified or identifiable land.

54 Cl. 2(1).55 Supra n.2.56 See definition of 'the lands' in s.4 and the full description thereof in the First Schedule to

the Act. ..57 Peterson N., 'South Australia' in Peterson N. (ed.), Aboriginal Land Rights: A Handbook

(1981) 121.58 It may be suggested, of course, that the Victorian Aboriginal Land Act 1970 was a

negotiated settlement. Supra n.l.59 No. 87 of 1966. See discussion in Barker M.L., 'Aborigines, Natural Resources and the

Law'supra n.9. For a discussion of the history of the Pitjantjatjara Land Rights Act seeEdwards B., 'Pitjantjatjara Land Rights' in Peterson N. and Langton M. (eds.),Aborigines, Land and Land Rights (1983) 294.

JJ


Under the Aboriginal Lands Trust Act, 1966,60 the Governor is empoweredto vest any Crown lands in a lands trust61 . As the term 'Crown lands' is notdefined in the Act, clearly all Crown lands in the State including those heldby a Minister of the Crown or a statutory authority which may be consideredrepresentative of the Crown, may be dealt with by the Governor.The Governor's power, exercisable on the advice of the State government, isnevertheless quite discretionary. The Act does not oblige the Governor toact at all, and no land claim mechanism is established by the Act. Indeedmost of the land vested in the lands trust under this Act has comprised landsformerly within Aboriginal reserved areas62 .

Western Australia

In Western Australia, under the Aboriginal Affairs PlanningAuthority Act, 1972 (W.A.), Aboriginal lands identified by governmentdiscretion are vested in an Aboriginal Affairs Planning Authority, 63 whichauthority is, in fact, the State Minister of Aboriginal Affairs64 .

The Act also establishes an Aboriginal Lands Trust65 which may begiven, and indeed has been given, the power to manage the Authority'slands66 . The Trust may also acquire land itself 'for the benefit of persons ofAboriginal descent'67. The Trust is not, however, autonomous in the exercise of this function as it is bound to comply with any 'general or specificdirection' from the Minister concerning its functions68 . Nevertheless, theTrust presently controls in excess of 20,000,000 hectares of land in WesternAustralia69 . If nothing else, this primary identification of Aboriginal landsin the State will make one of the tasks of the present commission of inquiryby Mr. Paul Seaman Q.C., a little easier.

In January 1984, Mr. Seaman issued a Discussion Paper in which itwas broadly proposed that Aborigines should be entitled to inalienablefreehold title in respect of unalienated Crown lands. 70 His final report is expected to be released in August 1984.

Queensland

The state of land rights law in Queensland has been considered unsatisfactory for many years. Aborigines do not have the right to claimagainst identified or identifiable lands. As a result of the Aurukun andMornington Island incident in 1978,71 Aborigines in these areas in north

60 Ibid (Barker).61 S.16(1).62 See Peterson N., 'South Australia' supra n.57, 116.63 Ss.25, 26 and 27.64 S.8.65 S.20(1).66 S.24(1).67 Ss.20(3)(b) and 23(b).68 S.7(2).69 See McDonald G., 'Western Australia' in Peterson N. (ed.), Aboriginal Land Rights: A

Handbook (1981) 224.70 The Aboriginal Land Inquiry, Discussion Paper (Paul Seaman Q.C., Commissioner)

(1984) 27.71 Nettheim G., Victims of the Law (1981) provides a good legal account of events surroun

ding mining on Aboriginal reserve land at Aurukun. Also Lippman L., Generations ofResistance (1981) 84-93.


Queensland have recently been incorporated under Queensland law as ShireCouncils, with 50-year leases over the land within their shires72 • OtherQueensland Aborigines largely remain on land traditionally reserved forAboriginal use, and vested in the Director of Aboriginal and IslanderAffairs under the Land Act 196273 .

Recent amendments to the Land Act74 , when proclaimed, will affectthe position of these Aborigines by specifically allowing land to be grantedin trust for the benefit of the Aboriginal or Islander inhabitants of thelands75 • The Deed of Grant in Trust legislation does not, however, alter thefact that only Aborigines resident on existing community reserves willbenefit therefrom. It is hardly the negotiating settlement of the Pitjantjatjara model, or the broad claim right of the Commonwealth model. To theextent that Aborigines will benefit from the legislation, it has been suggestedthat it will go a long way towards satisfying the requirements of a satisfactory land rights law. 7 6

Tasmania

There are, contrary to melancholy legend, Aboriginal Tasmanians.There is, however, no Tasmanian land· rights law. Although Aborigines,like others in the general community, may obtain leases to Crown landunder the Crown Lands Act 1976,77 this is hardly a land rights law in thecontext of the present discussion. Whilst a State-appointed AboriginalAffairs Study Group recommended, in 1978, that certain small islands onwhich Aborigines have long resided be transferred to the ownership of anAboriginal land trust, 7 8 no legislative response to the recommendation hasbeen forthcoming from the present State government. Apparently theprevious government was proceeding to draft a Bill, although its contentswere never made public79 •

THE LAND RIGHTS CLAIM

The provision by law of a right in Aborigines to claim Aboriginalland is only relevant to land rights models other than the negotiated settlement. In the latter case, of course, it is decided, prior to enacting the law,who is to get what land. Thus in the Pitjantjatjara Land Rights Act, 1981(S.A.) there has been no need to provide Aborigines with a right to claim

72 Local Government (Aboriginal Lands) Act 1978 (Qld.) 5s.4, 6, 12, 13, 14.73 No. 42 of 1962, as amended.74 Land Act (Aboriginal and Islander Land Grants) Amendment Act, 1982. The Act has not

yet taken effect as it is still awaiting proclamation by the Governor.75 Ibid. s.5. It is proposed apparently to make a grant of land in trust to an Aboriginal Com

munity Council in respect of presently reserved lands. The land grant, however, may be ofuncertain duration and tenure.

76 Brennan F., 'Queensland Land Rights: A Comparison of Deeds of Grant in Trust(Amended) with Aboriginal Land Rights (N.T.) Act 1976' (1984) 10 Aboriginal LawBulletin 4 (10 May 1984).

77 No. 28 of 1976.78 Report of the Aboriginal Affairs Study Group of Tasmania (PIP 94-1978) paras. 14(1),

(4).79 Peterson N., 'Introduction' in Peterson N. (ed.), Aboriginal Land Rights: A Handbook

(1981) 9. It now appears, however, that the recently elected Liberal government inTasmania will not pursue the land rights issue; The Bulletin (Sydney), 10 May 1983,43-44.


land for the Act gives them specified land80 . Similarly, under the existingstatutory arrangements in Western Australia, Queensland, Victoria,Tasmania and in those parts of South Australia where the 1981 Act is notapplicable, it makes no legal sense currently to speak of land rights claims.Politically, of course, land rights claims can be, and are being, made inthose States. .

Under the more recent approaches to land rights law or proposed lawdeveloped in the Northern Territory under Commonwealth legislation, andin New South Wales and Victoria, claims may be made against prescribedlands, as noted supra. If a claim is possible, on what basis or bases may it bemade? Should land be available only to Aborigines who can prove an interest in the land according to customary law? What of those Aborigineslong since displaced from their land who can no longer establish traditionallinks with the land of their ancestors. Are they not also entitled to landjustice?

In the important Second Report of the Aboriginal Land Rights Commission in 1974, Mr. Justice Woodward considered that any land rights lawshould be 'sufficiently flexible to allow for changing ideas and changingneeds amongst Aboriginals over a period of years'81. Consequently, herecommended to the then Commonwealth government a legislative schemewhich would permit both traditional owners of land and those specially inneed of land on social or economic grounds, to claim land82 . The subsequent Commonwealth (Fraser) government in commendably implementingmuch of the judge's report, allowed only traditional owners to claim land.In other words, the philosophy of the Aboriginal Land Rights (NorthernTerritory) Act 1976 (Cth.) reflected merely a recognition of Aboriginalcustomary law. Consequently, as Dr. C. D. Rowley summed it up, '[t]here isno provision [in the Act] for the needs of the fringe-dwellers on town landsnor those of mixed groups or groups claiming other than traditional lands inrural areas'83.

Having anticipated the response of the Commonwealth Act to theclaim issue, it remains to explain a little more of the Act's restrictive approach and to examine the more recent responses to the issue of the NewSouth Wales and Victorian Parliaments.

Northern Territory

Under the Aboriginal Land Rights (Northern Territory) Act 1976(Cth.), 'Aboriginals claiming to have a traditional land claim' may lay claimto available land84 . The Aboriginal Land Commissioner, to whom a claim ismade, must then proceed to ascertain whether the claimant Aborigines, orany other Aborigines, are 'the traditional Aboriginal owners of theland'8s.Clearly, therefore, the basis of a claim to land under the Act is the proof byAboriginal claimants that, with respect to the piece of land claimed, they

80 See supra n.54 and accompanying text.81 See supra n.50, para. 50.82 Ibid., see Drafting Instructions.83 Rowley D., A Matter ofJustice (1978) 77.84 Aboriginal Land Rights (Northern Territory) Act 1976 (Cth.), s.SO(I)(a).85 S.50(1 )(a)(i).


are 'the traditional Aboriginal owners.' The Act defines the expression'traditional Aboriginal owners', in relation to land, to mean 'a local descentgroup of Aboriginals' who:

(a) have common spiritual affiliations to a site on the land, being affiliations thatplace the group under a primary spiritual responsibility for that site and for theland; and

(b) are entitled by Aboriginal tradition to forage as of right over the land86 •

It is apparent that proof of a claim under the Act requires specializedevidence8 ? It is also fairly obvious that the concept of traditional owners inthe Act is fairly inflexible and derived from generally accepted notions,substantially of anthropologists, of what the concept means in Aboriginalsociety. A perusal of the decision in the crucial Gove Land Rights case88

discloses, for example, a similarity in the court's understanding, on detailedanthropological evidence, of the concept of traditional ownership and thatwhich has found its way into the Act.

If the definition in an Act, and so the basis of a claim, is so inflexibleor narrow89 as to be incapable of adapting to changing circumstances inAboriginal society, or Aboriginal perceptions of what traditional ownershipmeans, then the effective operation of the Act will be severely curtailed.Judging by the Reports of Mr. Justice Toohey when he was AboriginalLand Commissioner, it appears that he had little difficulty in acceptingAboriginal evidence as to traditional land relationships which did notaccord with the anthropological views commonly held when the Act wasdrafted90 •

In other respects, however, the Act does suggest restrictions whichmay not fit easily with the reality of traditional ownership. For example, itwould seem, at first glance, that an Aboriginal claimant is obliged toestablish the existence of a site on the land claimed, being a site for whichthe claimant has the primary spiritual responsibility. This would suggestthat a claimant could not succeed in a claim to traditional land unless a 'site'could not be proved to exist on the land, even though a site might exist onnearby, even adjoining, but non-claimable land. Indeed, Mr. JusticeToohey had developed the view that the Act constrained him from findingtraditional· Aboriginal owners unless a site on claimed land could beproved91 •

In the Finniss River land claim this issue assumed special significanceas there existed no sites on the claimed land although sites were located on

86 See definition in s.3(1).87 E.g. Layton R., 'Ambilineal Descent and Traditional Pitjantjatjara Rights to Land' in

Peterson N. and Langton M. (eds.), Aborigines, Land and Land Rights (1983) 15.88 Milirrpum v. Nabalco Pty. Ltd. (1971) 17 F.L.R. 141.89 Maddock K., '''Owners'', "Managers" and The Choice of Statutory Traditional Owners by

Anthropologists and Lawyers' in Peterson N. and Langton M. (eds.), Aborigines, Landand Land Rights (1983) 211.

90 Aboriginal Land Commissioner (Toohey J.), 'Report for Year Ended 30 June 1981' paras.19-21; Layton R., 'Pitjantjatjara Processes and the Structure of the Land Rights Act' inPeterson N. and Langton M. (eds.), Aborigines, Land and Land Rights 226,231-235; alsoNeate O.J., 'Legal Language Across Cultures: Finding the Traditional Aboriginal Ownersof Land' (1981) 12 Federal Law Review 187.

91 Report of the Aboriginal Land Commissioner (Toohey J.), 'The Finnis River Claim'(1981) para. 176.


land adjacent to the claim area. Application of the Toohey view wouldsimply put an end to the claim. In the High Court of Australia, however, acontrary view was argued and accepted by the entire court. Mr. JusticeWilson, with whose reason Gibbs C.J. and Mason J. expressly agreed,pointed out that sites need only be shown 'in relation to land' and not literally 'on the land'. Thus he concluded:

The existence of sites on the land which is the subject of the claim will always, in apractical sense, retain primary significance in proving traditional ownership. If thatownership has to be proved by reliance on sites located elsewhere, then cogentevidence would no doubt be required in the form of dreaming tracks or other materialto link the land, the subject of the claim, to those sites and so establish a primaryspiritual responsibility for it92 •

The issue was put beyond doubt by the High Court in a recent casewhere, although sites existed on adjacent unclaimable land, there were noneon the claimed land. Relying on the Finniss River case, the entire court concluded that land should not be looked at in isolation but in relation to thewhole of the land which is traditionally owned by the claimants. 93

Clearly, the High Court has interpreted the Act according to its spiritor underlying policy, 94 and what might have been, for Aborigines,disastrous definitional problems have largely been resolved satisfactorily inways that do not limit the effective operation of the Act. Nevertheless, aclaim does have to be proved; the Aboriginal Land Commissioner must find'traditional Aboriginal owners' of land before he can proceed to recommendthat the land be granted to Aborigines. This gives rise to the next stage ofthe claim process; the function of the Commissioner under the Act.

There are basically two possible functions the Commissioner, or anybody, tribunal or court, might exercise under a land rights law. The Commissioner might, on the one hand, be empowered to hear and determine aclaim and finally dispose of proceedings. Thus the Commissioner's findingin favour of a claimant would effectively require land to be granted to theclaimant, and a finding against the claimant would conclusively end thematter - very much as traditional court proceedings do under the normalAustralian system of judicial administration.

On the other hand, the function of the Commissioner might be morelimited, requiring an investigation of a claim, perhaps according to usualjudicial procedures, but followed by a recommendatory report to government rather than a conclusive disposition of the proceedings. Thus the finaldecision to grant or refuse a land claim would remain political and government, in our accountable constitutional system, would bear full and finalresponsibility in the matter.

The High Court has not determined that, essentially, the AboriginalLand Commissioner performs the latter function. Under section 50(1)(a) ofthe Act, the Commissioner is required to:- ascertain whether claimed land has traditional Aboriginal owners;- report his findings to the Minister and to the Administrator of the

Northern Territory; and92 Re Toohey; Ex parte Stanton (1983) 57 A.L.J.R. 73, 75.93 Re Kearney; Ex parte Jurlama (M. 25 of 1983) (1984) 52 A.L.R. 24, 27, per Gibbs C.J.94 See e.g., Re Kearney; Ex parte Jurlama (M. 25 of1983) (1984) 52 A.L.R. 24, 28, per Gibbs

C.J.


- if there are traditional owners, make recommendations· to the Ministerfor the granting of the land in accordance with the Act.

Section 50(4) requires the Commissioner when carrying out his functions also to have regard to the following principles:

(a) Aboriginals who by choice are living at a place on the traditional country of thetribe or linguistic group to which they belong but do not have a right or entitlement to live at that place ought, where practicable, to be able to acquire secureoccupancy of that place;

(b) Aboriginals who are not living at a place on the traditional country of the tribe orlinguistic group to which they belong but desire to live at such a place ought, wherepracticable, to be able to acquire secure occupancy of such a place.

Section 50(3) requires the Commissioner, when making his report,to:

'have regard to the strength or otherwise of the traditional attachment by theclaimants to the land claimed, and shall 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 thatwould accrue to those Aboriginals, if the claim were acceded to either in wholeor in part;

(b) the detriment to persons or communities including other Aboriginal groupsthat 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 onthe 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.'

In Re Toohey; Ex parte Meneling Station Pty. Ltd., Mr. JusticeMason, in the High Court, in a dissenting opinion, accepted the contentionthat the Commissioner, in hearing a claim, was bound to consider all thematters in section 50(3)(a)-(d), balance the competing considerations andthen, having done so, recommend to the Minister whether in all the circumstances a land grant was justifiable. As His Honour put it:

[a]s he is the person who personally sees and hears the witnesses and reviews all theevidence, it is natural that he should be called upon in the first instance to evaluate thevarious competing considerations which are relevant to the recommendation which heis required to make. 95

The majority of the Court (Gibbs C.J., Murphy, Wilson and Brennan JJ .), however, thought otherwise. Mr. Justice Brennan, for example, ina most eloquent account of the Act and its underlying philosophy, foundthat the primary task of the Commissioner was to determine 'whether thereis a local descent group whose traditional attachment to the land makes itright that a grant of land be made'. Thus he concluded that if the Commissioner was to have regard (as distinct from commenting upon) the matters insection 50(3)(a)-(d), his function 'would be very different' because those factors 'are factors relevant to a political decision' which section 11 of the Actassigns to the Minister96 • The remaining three judges analyzed the Commissioner's function in a similar way97.

As all judges in this case pointed out, the final decision to grant or

95 (1983) 57 A.L.J.R. 59, 63.96 Ibid. 72.97 Ibid. Gibbs C.J. 61; Wilson J. 67; Murphy J. agreed with Wilson J.


refuse land once the Commissioner has reported his findings, is a politicaldecision which rests with the Minister under section 11. The Minister'spower, though discretionary, is structured in the following way. The grantmay only be made where the Commissioner has made a recommendationthat a land grant should be made; and the Minister is satisfied:(i) that the land, or part of it, should be granted for the benefit of'rele

vant Aboriginals'; that is, Aborigines entitled by Aboriginal tradition to the use or occupation of that area of land; or

(ii) that different parts of the land should be granted for the benefit ofdifferent groups of 'relevant Aboriginals'98.Clearly, 'relevant Aboriginals' need not be the 'traditional Aboriginal

owners', but persons who are otherwise traditionally entitled to use or occupy the land. As Mr Justice Brennan noted in the Meneling Station case,99this provision (see also section 71 of the Act) means that once land becomesAboriginal land, 'any Aboriginal has or any Aboriginal group have his ortheir traditional rights restored.'

It is appropriate also to note the effect a land claim may have on thefunction of the Aboriginal Land Commissioner as well as the ability of theNorthern Territory government to alienate Crown land once a claim hasbeen made under .the Act. First, it is now undoubted that once a claim hasbeen truly made against 'unalienated Crown land' the Commissioner isobliged to exercise his functions regardless of any subsequent purportedalienation of it from the Crown. l 00 The power of the Northern Territorygovernment to cause the alienation of Crown land subsequent to the makingof a claim is, however, less clear. In the recent decisions of the High Courttouching upon this issue, Gibbs C.J. appears to have taken the view thatsuch alienation is not prohibited under the Commonwealth Land RightsAct. lol Wilson J. clearly holds a similar view. 102 Brennan and Deane JJ.,however, have broadly accepted the submission that once a claim is properly made, the subject land may not subsequently be alienated. 103 MurphyJ. does not appear to have pronounced any view on this issue despite the opportunity to do SO.104 Mason and Dawson JJ. do not appear to have had theopportunity yet to indicate their views.

It may be that when the issue is formally determined a distinctionwill be drawn between those cases involving the alienation from the Crownof an estate in fee and those involving the alienation of a lesser, forexample, leasehold, interest in the land. l05

There is no doubt, however, that the Northern Territory Govern-

98 Aboriginal Land Rights (Northern Territory) Act 1976 (Cth.), s.II(1)(a), (b) and (4).99 See supra n.95, 71.

100 Re Kearney; Ex parte Northern Land Council (D. 3 of 1983) (1984) 52 A.L.R. 1; ReKearney; Ex parte Japanangka (M. 23 of 1980); Re Perron; Ex parte Japanangka (M. 80of 1982) (1984) 52 A.L.R. 31.

101 Re Kearney; Ex parte Northern Land Council (D. 3 of 1983) (1984) 52 A.L.R. 1,4,5.102 Re Kearney; Ex parte Japanangka (M. 23 of 1983) (1984) 52 A.L.R. 31,40,41.103 Ibid. 49, per Brennan J.; 51 (with reservation), per Deane J.104 See, e.g., his judgment in Re Kearney; Ex parte Japanangka (M. 23 of 1983) (1984) 52

A.L.R.31.105 See Re Kearney; Ex parte Japanangka (M. 23 of 1983) (1984) 52 A.L.R. 31, 45-49, per

Brennan J.; Re Kearney; Ex parte Northern Land Council (D. 3 of1983) (1984) 52 A.L.R.1, 5, per Gibbs C.J.


ment may cause land to be declared a 'town' under Territory planninglegislation subsequent to a claim being made under the Act in respect of thatland. 106 Unless such executed action is held to be ultra vires on traditionalgrounds of judicial review of administrative action, the planning law actionwould appear to be unassailable. 107 Such a subsequent declaration of theland does not, however, preclude the Commissioner from exercising hisfunctions in respect of the land. 108

We will turn in a later section to the precise legal means by which aland grant is made by the Minist~r.

New South Wales

Quite unlike the Commonwealth Act, the Aboriginal Land RightsAct, 1983 (N.S.W.) has what might be termed an arbitrary claim procedure.Rather than allow claims to available land on the basis of traditional ownership, long association, social or economic need,lo9 or according to anyother prescription, the Act employs an efficient statewide administrativestructure to achieve 'instant land rights'.

First, the Act provides for the establishment of the New South WalesAboriginal Land Council I I 0 as well as Regional Aboriginal Land Councils lll and Local Aboriginal Land Councils for certain defined regions andlocalities throughout the Statel12 . All land councils are able to hold and acquire land113. The Act then provides that claims to 'claimable Crownland'114 may be made by:- the New South Wales Land Council, on its own behalf or on behalf of a

local land council I I 5; or- a Local Aboriginal Land Council with respect to land within, its area or,

with the approval of a Registrar (appointed under the Act,116) land outside its areal 17 .

A claim is lodged with the Registrar but is determined by theMinister administering the Crown Lands Consolidation Act, 1913, or theWestern Lands Act, 1901-that is, a 'Crown Lands Minister'. The Ministeris obliged, to grant the claim if he is satisfied that:(i) the whole of the lands claimed is 'claimable Crown lands'; or(ii) part only of the lands claimed is 'claimable Crown lands'118

Equally the Minister must refuse the claim if he is not satisfied thatthe whole or part of the claimed lands are 'claimable Crown lands'119.

106 Re Kearney; Ex parte Northern Land Council (D. 3 of 1983) (1984) 52 A.L.R. 1.107 See supra n.31 and accompanyipg text.108 Re Kearney; Ex parte Northern Land Council (D. 3 of 1983) (1984) 52 A.L.R. 1.109 See supra n.15.110 Aboriginal Land Rights Act 1983 (N.S.W.), s.22.111 S.15.112 S.6.113 See ss.26(0, 20(h) and 12(a) respectively.114 See definition in s.36(1) and discussion supra.115 S.35(2).116 S.49.117 S.36(3).118 S.36(5)(a).119 S.36(5)(b).


Because the Minister is obliged to do one thing or the other, theclaim procedure may be considered arbitrary. It is obvious, however, thatthe procedure does in fact comprise a considerable discretionary element inthat the Minister must determine whether the land claimed is indeed'claimable Crown land'. The discussion supra concerning the interpretivedifficulties of the definition of 'claimable Crown lands' is thus relevant. Forpresent purposes, however, it need only be noted that lands which areneeded, or likely to be needed, for an 'essential public purpose' are notclaimablel20 .

The Act does not define, or even hint at, the meaning of an 'essentialpublic purpose'. Presumably 'public purpose' means a purpose whichbenefits the general community or a significant section of it in a nondiscriminatory way; for example, perhaps an electricity sub-station. 'Essential' presumably means, taking the standard dictionary definition, 'anindispensable element or adjunct'121. Whether a public service such as anelectricity sub-station is indispensable will never be an easy issue to resolve.Should the test be whether the community serviced by the sub-station wouldbe totally deprived of electricity supplies if it were non-operative or, instead,whether there is other land available upon which the public purpose activitycould be located? The task here is not finally to determine this issue but tonote the complexity of this exception to the Aboriginal land identificationformula, and its subsequent impact on the claim procedure.

The Act attempts to avoid the problem by providing that the CrownLands Minister may issue a certificate specifying whether lands are neededor likely to be needed for an essential public purpose, which certificate 'shallbe accepted as final and conclusive evidence of the matters set out in the certificate and shall not be liable to appeal or review'122. Unfortunately, thishas only compounded the problem. If this provision means what it says (forcourts have developed techniques for saying such 'privative clauses' do notmean what they say! 123), then the Minister clearly has an absolute discretionto decide, according to his own lights, what land is needed and what land isnot needed for an essential public purpose. As the High Court has, in recenttimes, shown a willingness to uphold such privative clauses, 124 theMinister's decision may well prove final. But there remains the possibilitythat a dissatisfied land council might seek review of the Minister's decision inthe Supreme Court on the ground that he erred in law when he determinedthat land was required for an essential public purpose.

Aside from this issue, a land council may appeal to the Land and Environment Court of New South Wales where its claim before the Minister isunsuccessful. On an appeal, the Minister effectively must prove that thelands are not 'claimable' .125

120 See definition in s.36(1)(c).121 See definition in e.g. the Shorter Oxford Dictionary.122 8.36(8).123 Whitmore H., Principles ofAustralian Administrative Law (1980) 206-209.124 E.g. Houssien v. Undersecretary of the Department of Industrial Relations and

Technology (N.S. W.) (1982) 56 A.L.J.R. 217, 219.125 S.36(7) which requires the Crown Lands minister to satisfy the Court that the lands are not

claimable.


Victoria

The Victorian Aboriginal Claims Bill 1983 proposes that any claimant group of,Aboriginals' may claim any area of public land for any of thefollowing reasons:(a) to satisfy its needs;(b) to continue an association it has had with the land;(c) to give effect to the traditional rights it has had to the land; and(d) to compensate it for the loss of traditional rights to the land. 126

The Bill contemplates a judicial-styled 'inquiry' before an AboriginalLand Claims Tribunal leading to a recommendation by the Tribunal that aland grant should be made127 . the Governor in Council may act on therecommendation and grant land to a claimant group,128 subject to theclaimant group having become incorporated. 129

This procedure obviously adopts the scheme of the CommonwealthAct in that the Tribunal's treatment of the claim is not dispository. Thedecision to grant land to a claimant group is political and rests with theGovernment.

Where different groups claim the same land the Bill proposes that aspecially established Victorian Aboriginal Authority should recommend tothe Tribunal the order of priority to be given the groups according to thefollowing criteria, in descending order:

(a) Aboriginals living on the land claimed;(b) Aboriginals otherwise using the land claimed;(c) Descendants of former traditional Aboriginal owners of the land claimed who

are living in the prescribed area;(d) Descendants of Aboriginals who lived on the land claimed who are living in the

prescribed area; and(e) Descendants of former traditional Aboriginal owners or Aboriginals who lived

on the land claimed who are not living in the prescribed area. 130

The Authority may change the order of priority where it is of theopinion that:

(a) action has been taken to prevent a group of Aboriginals from having priorityunder that sub-section; or

(b) action has been taken by a group of Aboriginals for the purpose of gainingpriority under that sub-section131.

The Tribunal must conduct a public inquiry into the claim at least 56days after it receives the claim. 132 Certain Ministers and any person affectedby the claim may be heard before the Tribunal. 133 The Tribunal is notbound by the rules of evidence and may inform itself as it thinks fit. 134

Significantly, the Tribunal is obliged to recommend that land begranted. to a claimant group or groups unless it is satisfied that:

126 Cl. 7(2).127 Cl. 12.128 Cl. 13(1).129 Cl. 13(2).130 Cl. 7(5), (6).131 Cl. 7(7).132 Cl. 9.133 Cl. 10.134 Cl. 11.


(a) the reason for which the claim was made has not been established;(b) the land should remain subject to its existing uses;(c) the land is required for a public purpose; or(d) the Consolidated Fund will be seriously affected by the making of the grant. 135

The Bill provides no indication of the meaning of these grounds ofdisallowance of a claim. Nor are the grounds upon which a group may claimland further defined; the nature of 'traditional· rights' in Victoria is,therefore, an unclear concept. So too is the concept of 'public purpose'.Most of these grounds of disallowance will involve the exercise of subjectivejudgment and must be supported by published reasons when a decision isfinally made}36

As the Tribunal knows that the final decision to grant land rests withthe State Government, this procedure may well have the advantage ofallowing the Tribunal to discuss fully the merits of each claim in an environment devoid of the excessive legality of a judicial proceeding. That the proposed Tribunal is to be comprised of only one person, being a lawyerexperienced in Aboriginal affairs,137 may suggest that this view should notbe fully endorsed.

ABORIGINAL CLAIMANTS

Aboriginal land rights laws are made for Aboriginal Australians.Who is an Aboriginal? Is it appropriate to deal with this issue in a law? Thedefinition of an 'Aboriginal' Australian has its own peculiar and racisthistory138 which will not be pursued here.

For the purposes of the Aboriginal Land Rights (Northern Territory)Act 1976 (Cth.), 'Aboriginal' has been rather simply defined to mean 'a person who is a member of the Aboriginal race of Australia'. 139

An equally open definition appears in the Aboriginal Lands TrustAct, 1966 (S.A.), which employs the definition of Aboriginal used in theState's Community Welfare Act, 1972, namely, 'a person who is wholly orpartly descended from those who inhabited Australia prior to Europeancolonization' .140

The Aboriginal Land Rights Act 1983 (N.S.W.) goes further, how-ever, and defines 'Aboriginal' to mean a person who:

(a) is a member of the Aboriginal race of Australia;(b) identifies as an Aboriginal; and(c) is accepted by. the Aboriginal community as an Aboriginal. 141

In rather similar terms the Aboriginal Affairs Planning AuthorityAct 1972 (W.A.), which affects a 'person of Aboriginal descent', defines thatexpression to mean:

any person living in Western Australia wholly or partly descended from the original

135 Cl. 12(1).136 Cl. 12(5).137 Cl. 3(1), (2).138 See Lippman L., Generations of Resistance (1981) 13-33; Rowley C.D., A Matter of

Justice (1978) Ch. 6.139 See definition in s.3(1).140 See Aboriginal Lands Trust Act, 1966, s.16(6) and Community Welfare Act 1972, s.6(1).141 S.4(1).


inhabitants of Australia who claims to be an Aboriginal and who is accepted as suchin the community in which he lives. 142

The Victorian Land Claims Bill, however, does not appear to be asparticular and defines an 'Aboriginal' as a person who:(a) is descended from an Aboriginal or Torres Strait Islander; and(b) identifies as an Aboriginal or Torres Strait Islander l43 .

These definitions all appear sufficiently broad to avoid subjectiveassessments of the degree to which a person is Aboriginal or non-Aboriginalin cases where a person is not wholly descended from the Aboriginal race.This does leave unresolved, however, the definition of the expression'Aboriginal race of Australia' and whether or not it includes Torres StraitIslanders. In this regard, the Victorian Bill includes both groups of personsin its definition. This is not an issue which shall be further explored in thisarticle; the purpose in raising it is merely to note the definitional point whichclearly may have consequences for the operation of a land rights lawl44 . Indeed, in New South Wales the point is of particular significance.

Under the New South Wales Act only an 'Aboriginal' may become amember of a land council. In addition to a person being Aboriginal andidentifying as such, a person may only be considered Aboriginal if he or sheis also accepted as an Aboriginal by the Aboriginal community. Basically,registration as a member of the Local Aboriginal Land Council entitles oneto membership of a Regional and the State Council. 145 Any adultAboriginal (that is, a person who has attained 18 years of agel46) whoresides within the area of a local council is entitled to be listed on the roll ofthe council and thus become a member. 147 The list of members is to be compiled and maintained by the secretary of a local council, although in the firstinstance a person appointed by a registrar shall complete the list. 148

As discussed elsewhere,149 as each part of the definition of'Aboriginal' in the Act must be satisfied to achieve enrolment, the task ofthe registrar, and later the secretary, may not be free from controversy.How a" person proves descent from the Aboriginal race is not stated in theAct; physical traits may be sufficient. Proving that one identifies as anAboriginal is a very subjective test, but one which the registrar or secretarymay believe has not been satisfied. The test requiring acceptance as anAboriginal by the Aboriginal community is, however, particularly hazy.The registrar or secretary may well need to take evidence provided by otherAboriginals on the 'aboriginality', in cultural terms, of the applicant.Whether the 'Aboriginal community' to which the Act refers is the local or

142 S.4.143 Cl. 2(1).144 See the Utopia Case, supra n.22 where Wilson J. considered whether an Aboriginal in

cluded a Torres Strait Islander. The general issue of the definition of 'race' is usefullydiscussed in the submission of Gary A. Rumble to the Senate Standing Committee onConstitutional and Legal Affairs on the feasibility of a compact or Makarrata between thepeople of the Commonwealth and Aboriginal people, 1983.

145 Aboriginal Lands Right Act 1983 (N.S.W.), ss.15(3), 22(3).146 See definition of 'adult Aboriginal' in s.4(1).147 S.7(2)(a).148 S.7(4); the registrar is appointed by the minister under s.49.149 Barker M.L., 'N.S.W. Land Rights Reform-How Real?' (1983) 9 Aboriginal Law

Bulletin 9.


the broader Aboriginal community is also unclear, however one defines theexpression 'community'. Moreover, it is uncertain whether the test requiresthe Aboriginal community to accept a person as a member of the'Aboriginal community' or simply as an 'Aboriginal'. Consequently, it isconceiveable that by virtue of this quite particular definition an Aboriginalperson who, in the parlance of an earlier era, is fully integrated orassimilated in European society and who does not maintain any real relationship with other Aborigines, may no longer be accepted by the broadAboriginal community as an Aboriginal.

THE ABORIGINAL LAND-HOLDER

No land rights law has attempted to provide individual Aborigineswith rights in land. This, one supposes, is quite unremarkable since in theleading Gove Land Rights case in 1972, it was strenuously argued thatAboriginal law recognized 'communal title' to land rather than individualtitle. 150 Thus, as we have seen, the Aboriginal Land Rights (NorthernTerritory) Act, 1976 (Cth.) seeks to identify the 'traditional Aboriginalowners' - note the plural 'owners', not 'owner'.

Apart from this law dealing with tradition-oriented Aborigines,there is no particular reason why individual Aborigines should not begranted rights in land. Of course, the land rights movement has generallyclaimed community rights for Aboriginal people, rather than individualrights of an Aboriginal person. A subtle difference but, nonetheless, a realone.

Consequently, the common approach has been until recent times toestablish Aboriginal lands trusts to hold and manage land for the benefit ofAborigines. This has been the past approach in New South Wales151 and isthe prevailing approach in Western Australia l52 and in South Australia outside the lands of the Pitjaotjatjara people. Whilst a lands trust may be ableto grant limited occupancy and use rights to Aboriginal groups and communities, the trust remains the holder of the major interest in land. 153

Northern Territory

The more recent developments in this area have been encouraged bythe Aboriginal Land Rights (Northern Territory) Act 1976 (Cth.) whichestablished, on the recommendation of Mr. Justice Woodward,154 landcouncils. 155 Under this Act, whilst the Aboriginal Land Commission mustfind traditional owners (who may be few), the grant of land is to a land trustto be held in 'escrow' by a land council, which is a body corporate. 156

A land trust consists of a Chairman and at least three other membersappointed by the Commonwealth Minister for Aboriginal Affairs, all of

150 See supra n.88.151 See Aborigines Act, 1969 (N.S.W.) which established the N.S.W. Aboriginal Lands Trust.152 See the Aboriginal Affairs Planning Authority Act, 1976 (W.A.) which established the

Aboriginal Lands Trust.153 See the Aboriginal Lands Trust Act, 1966 (S.A.).154 See supra n.50.155 See generally Part III of the Act.156 Ss.10-13. The term 'escrow' basically means thatia person other than the land owner or the

person entitled to a conveyance of the land holds the land title deeds.


whom must be Aboriginals living in the area of the land council in which theland to be granted to the trust is situated. 157

The membership of a land council comprises Aboriginals living inthe area of the council who have been elected by all Aborigines living in thearea according to the method or methods of choice approved by the Commonwealth Minister from time to timel58 . Decisions of a land council aretaken by a majority vote of members present and voting the presidingmember having both a deliberative and casting vote. 159

It is the land council, however, which wields the real control overAboriginal land; a lands trust may not deal with the land except in accordance with a direction given to it by the land council. 160 As discussed infra,however, the Act does impose certain obligations on a land council to haveregard to the wishes of traditional owners when land use decisions are takenbyit.

It may readily be appreciated, therefore, that whilst the creation ofland rights under the Commonwealth Act may depend upon the finding oftraditional owners, these people do not actually hold the land in law; ratherthis is the function of a specially created lands trust which, in turn, is effectively controlled by a specially established land council.

New South Wales

In New South Wales, the Aboriginal Land Rights Act, 1983(N.S.W.) has established a three-tiered land council structure for landholding purposes. The New South Wales Aboriginal Land Council, aRegional Aboriginal Land Council and a Local Aboriginal Land Councilmay all hold land. 161 The decisions of a council will be arrived at by themembership. 162

South Australia

It would appear that mainstream Australian land rights laws willcontinue to emulate the land council model. The negotiated PitjantjatjaraLand Rights Act, 1981 (S.A.) also creates a land council, the Anangu Pitjantjatjaraku, to hold and manage land traditionally owned by members ofth .Pitjantjatjara, Yungkutatjara and Ngaanatjara people. 163 All thesepeople are members of this body. 164 The Act, however, creates an ExecutiveBoard comprised of a Chairman and 10 other members, elected at the annualmeeting of the body, to carry out on a day-to-day basis the resolutionsof the body.165 The Act requires Executive Board decisions to be reached by

157 S.7.158S.29(1).159 S.31.160 S.5(2).161 See supra n.113 and accompanying text.162 The Act provides that rules may be made concerning the conduct of Land Council

meetings: see ss.23(4) and 27 respecting State Councils, ss.16(4), and 21 respectingRegional Councils and ss.8(4) and 13 respecting Local Councils.

163 Pitjantjatjara Lands Rights Act 1981 (S.A.), s.6.164 8.5(2).165 Ss.9 and 11.


a majority of members present (being a majority comprising not fewer thanfour). The Chairman appears to have only a deliberative and not a castingvote. 166 The Act does not specify the voting procedure for annual meetingof the Anangu Pitjantjatjaraku, but instead allows it to make its own constitution dealing with the conduct of meetings and resolution of disputes. 167

Victoria

In Victoria, in the absence of the proposed Aboriginal Land ClaimsBill, the Aboriginal Land Act 1970 (Vic.) has the limited effect of vestingsmall portions of lands at.Lake Tyers and Framlingham in specially createdlands trusts. These trusts provide an interesting variation of the normal kindof Australian lands trust. Each lands trust is comprised of the Aborigineswho resided on the former reserves at Lake Tyers and Framlington. Eachadult member is entitled to 1000 shares in the trust and each infant member500 shares. Each member has full ownership of the shares but may onlytransfer them to the trust, another member, the Crown or a relative. 168 Bystructuring the trust in a manner similar to the well-known private company, the Act strives to recognize community ownership of land as well asthe personal interest of each member of the trust in its operation and so inthe management and use of the land it holds.

The Victorian Aboriginal Claims Bill 1983 proposes to carry thismodel into further effect. The Governor in Council, if it decides that a landgrant should be made to a claimant group or groups, may grant the land tothe group or groups only if they have been incorporated. 169 Unlike the 1970Act, however, the Bill does not stipulate requirements additional to thebasic incorporation requirement. It does not seek in any way to control theprocess of incorporation or the operation of the group once incorporated,except as discussed below in relation to land use activities. Accordingly, itwould seem that claimant groups should incorporate under Victoriancompany law, settle for themselves share-holding rights and the proceduresto be applied concerning the voting rights of shareholders, and establish, ifthey so wish, a Board to manage the day-ta-day affairs of the company.

In other words, under the Victorian proposed law the land-holdingbody also make decisions relating to land use. The potential of this model,by comparison with the Pitjantjatjara and Commonwealth models, is thatthe· land-holding and decision-making body will be the same body and willcomprise those directly interested in the land held by it.

THE NATURE OF ABORIGINAL RIGHTS IN LAND

It should be recognized that when land rights are granted toAborigines fundamentally •they are rights capable ·of recognition and enforcement under the existing Australian legal system. Thus the permanencyand extent of land rights win··depend.on the terms of land rights legislation.

166 S.IO.167 Ss.6(2)(i) and 8.168 S.12.169 Cl. 13(1), (2).


Queensland

To make the point bluntly, the 'land rights' accorded the Aboriginalpeople at Aurukun and Mornington Island under the Local Government(Aboriginal Lands) Act, 1978 (Qld.) are merely 50-year leases of land} 70The Aborigines concerned do not own the land; their interest in it is limitedin time and quality. By contrast, the amendments to the Land Act of 1982and 1983 should ensure that former community reserves made the subject ofa Deed of Grant in Trust are held on a basis similar to that achieved by theCommonwealth Act in the Northern Territory.171

Northern Territory

Under the Aboriginal Land Rights (Northern Territory) Act 1976(Cth.), a Deed of Grant to a lands trust is in respect of an 'estate in feesimple'.172 This means that the full bundle of land rights recognized by thegeneral law is granted to the lands trust. The only exception to this is that allminerals in the land are reserved to the Commonwealth Crown. I73 A landtrust may not dispose of the land, except in certain circumstances, I74although it may grant certain Aborigines limited interests in the land. I75

Nor may the land be resumed by a law of the Northern Territory.

South Australia

Under the Pitjantjatjara Land Rights Act, 1981 (S.A.) the fee simplein land is granted to the Anangu Pitjantjatjaraku. 176

Whilst the Act does not explicitly say so, it seems that the minerals inthe land are not included in the grant. Section 22 of the Act dealing withroyalty payments from resource development assumes that the Crownretains mineral ownership.

The land rights granted are made more secure by a provision in theAct prohibiting compulsory acquisition by the State of the land granted. 177Nor may the Anangu Pitjantjatjaraku alienate the land. 178

New South Wales

The vesting in or transfer of land to a land council in New SouthWales would appear to convey a fee simple interest in it to the landcouncil. I79 It includes the vesting or transfer of 'mineral resources or other

170 Ss.4, 6, 12, 13 and 14.171 See Brennan F., 'Queensland Land Rights: A Comparison of Deeds of Grant in Trust

(Amended) with Aboriginal Land Rights (N.T.) Act 1976' (1984) 10 Aboriginal LawBulletin 4 (10 May 1984).

172 S.10(1).173 S.12(2).174 S.19(1).175 Ss.19 and 20.176 8.15(1).177 S.17(b).178 S.17(a).179 8.36(9) provides that lands 'transferred' to the Land Council shall be for an estate in fee

simple. Whilst there is no express provision to this effect regarding 'land vested' in a LandCouncil, a similar interest would appear to be conveyed.

KK


natural resources' in the land. 180 When a land council purchases land it alsoacquires the title to all mineral and other natural resources in the land whichwere at the time of the purchase vested in the Crown. 181 Any other land acquired by the Minister of Aboriginal Affairs and vested in a Land Councilalso includes a vesting of such resources. 182

There are, however, two broad exceptions to this grant of naturalresource ownership: first in respect of gold, silver, coal and petroleum; and,secondly, in respect of any mineral the subject of mining operations approval under the Mining Act, 1973, or other law, at the time lands are'vested' in the land council (or a renewal or extension thereof). 183 It wouldappear that the second exception does not affect land 'transferred' or 'purchased' by a land Council.

The land vested in a land council may not be disposed Of184,although a leasehold interest maybe granted to another person in certaincircumstances. 185 The Act does not, however, appear to prohibit the alienation of land transferred to or acquired by a land council if one accepts thatthe Act draws a distinction between land 'vested' in a land council and land'transferred' to it or 'acquired' by it. Although the functions of a land councilare not expressed to include the disposition of such land, section 41 of theAct allows a council to do with land anything a natural person with thesame estate or interest might do. As such land is held in fee simple, it mightbe sold or otherwise alienated as a land council sees fit. This would suggestthat natural resource ownership might also be conveyed.

Victoria

Where a land grant is made to an incorporated claimant group orgroups in Victoria, it appears that it conveys an interest in the land in thenature of a fee simple. Clause 13(4) of the Aboriginal Land Claims Bill 1983describes the interest as 'full power of management, control and enjoymentof the land'.

The land may not be alienated except to another group of Aboriginesentitled to claim it, or by way of a lease to the Crown or other person. 186

Existing leases or licences under various Acts may continue to operate. 187The Governor in Council may also impose covenants and other restrictionsin the land grant. 188 This power has the potential to affect quite substantially the full enjoyment of the land by its Aboriginal owners.

LAND USE AND RESOURCE CONTROL

Increasingly it is acknowledged that Aborigines should have a largemeasure of autonomy in the conduct of affairs which affect people of the

180 S.45(2)(a), (b).181 S.45(2)(c)(i).182 S.45(2)(c)(ii).183 S.45(12).184 S.45(1).185 S.45(2)-(11).186 Cl. 13(4)(c).187 Cl. 13(4)(a), (b).188 Cl. 13(4)(d).


Aboriginal race. So too it is suggested that Aborigines should have a largemeasure of autonomy in the determination of Aboriginal land and resourceuse questions. As argued elsewhere, 189 if a land rights law is truly enacted inacknowledgment of the prior sovereignty of Aboriginal people overAustralia, then it follows that as far as possible Aborigines should have theright to determine what should be done with or on Aboriginal land.

Nonetheless, even in a legally pluralist society, to which legal statesociety necessarily evolves with the advent of an effective land rights law,the singular groups within society remain subordinate to the sovereignty ofthe broader community. It becomes necessary, therefore, to decide in whatcircumstances the interests of the broader Australian community should beallowed to intrude upon Aboriginal autonomy. The tentative conclusion ofthe present writer is that, general though the test is, Aboriginal autonomy inrespect of land and resource use should give way to the sovereignty of thewhole Australian community where a proposed land or resource use hasimplications of national or international significance. An example of a proposed Aboriginal resource use which might be considered to have national(even international) significance is, perhaps, one having an acknowledgedsignificant environmental impact.

An example of a proposal which may be considered under the environmental exception or as one having international significance isuranium mining and processing. An Aboriginal decision not to use land or aresource, however, should be final.

It will always be difficult to cast these exceptions to Aboriginal landand resource use autonomy in anything but broad terms. Some circumstances will not be readily imaginable in 1984 and may only becomeascertainable with the passage of time and the unfolding of events. It is appropriate, therefore, that all Australians should retain full responsibility fora land or resource use decision made by any individual or group inAustralian society which may be of national or international significance.

In summary, it is suggested that while an Aboriginal decision not touse a resource should be final, a decision to exploit natural resources mightbe reviewed under an appropriate review mechanism designed to protect thenational and international interests of Australia. Current land rights laws inAustralia reflect these sentiments to varying degrees. It has been observedalready that some laws grant a fee simple interest in land to Aboriginalowners. Mineral ownership, though, is often retained by the Crown,whether State or Commonwealth. Where Aborigines hold the fee simple interest in land, they own other natural resources on the land such as forestsand other vegetation and may use the land as they desire subject to any relevant laws. Flowing water and lakes, however, are not at common lawcapable of private ownership and are not part of the fee simple interest.Riparian rights. to water, including the right to take water for reasonableusage, may possibly be included in the grant of fee simple. Animals andbirds in their wild state are usually considered incapable of private ownership and not part of the fee simple interest. 190

189 Barker M., 'Aborigines, Natural Resources and the Law' (1983) 15 University of WesternAustralia Law Review 245.

190 It appears that a grant by the Crown of land in fee simple in a colony was held to confer on


Only to the extent that a land rights law expressly or impliedly excludes the operation of an existing State or Commonwealth law havinggeneral application to the community can it be said that the general law isnot applicable on Aboriginal land. This conclusion carries with it the consequence, for example, that state law relating to land use planning anddevelopment control, environmental assessment of resource use proposalsand pollution control, as well as those relating to water use, are all capableof applying to Aboriginal land. It also means that State laws controllinghunting and fishing may be relevant to those activities when carried out onAboriginal land. So too might the common law remedies which enable anoccupier of land to prevent a person from committing a nuisance. Landrights laws often do not address these general land and resource use details.Minerals and. mining, matters of current interest, are on the other handusually extensively addressed.

Queensland

It is clear that under existing Queensland law Aborigines have littleopportunity to control land or resource uses. As we have seen, land occupied by them is not held in fee simple and the land they do occupy is subject to general Queensland law.

Mining control on Aboriginal Shire Council land at Aurukun andMornington Island and on reserved lands elsewhere in the State is, however,specifically entrusted to the Director of Aboriginal and Islander Affairs. 191

The Director is empowered to approve mining operations on Aboriginalland and may require mining companies to enter into agreements concerning the proposed mining including financial agreements. 192 As the PrivyCouncil decision in Peinkinna's case193 indicates, however, Aborigines arelegally quite powerless to influence the Director's authority. This court decision established that the Director is not accountable to Aborigines as aTrustee of Aboriginal land and that Aborigines themselves have no controlover resource uses.

The only special right over resources granted to Aborigines underQueensland law is the right of Aborigines at Aurukun and MorningtonIsland to hunt native fauna, remove forest products and quarry, but only toprovide 'sustenance' or to satisfy 'domestic uses'. 194

Western Australia

The Aboriginal Affairs Planning Authority and the Aboriginal LandTrust established by the Aboriginal Affairs Planning Authority Act 1972

the grantee the exclusive right to capture all wild animals which at any time are on theland: Falkland Islands Co. v. R. (1864), 2 Moo. P .C.C. (N.S.) 266. Such legislation as theFauna Conservation Act 1952 (Qld.) will have altered this common law position in mostjurisdictions.

191 Aborigines Act, 1971 (Qld.), s.29; Torres Strait Islanders Act, 1971 (Qld.), s.30; LocalGovernment (Aboriginal Lands) Act 1978 (Qld.), s.30(2).

192 Ibid.193 (1978) 52 A.L.J.R. 286.194 Local Government (Aboriginal Lands) Act 1978, s.29.


(W.A.) both have functions concerning land and resource use. TheAuthority - the Minister - is the primary land holder, although the Trust ischarged with the management and use of lands. 195 Generally, however,Trust decisions must be in accordance with the law of the State.

The Act interestingly provides, however, that no application for thegrant of any 'interest, right or licence' in reserved land may be 'processed'without the prior consent of the Authority. 196 This would seem to provide ameasure of protection for Aboriginal lands although equally it is capable ofallowing Ministerial control of Aboriginal land uses requiring governmentapproval. The provision, whatever be its general application, does not,however, extend to applications fOf government approval of mining orpetroleum operations. 197

The only possible control over these activities is under section 31 ofthe Act which makes it an offence for an unauthorized person to enterreserved land unless 'acting in pursuance of a duty imposed by law'. If thissection applies to all persons including those who have obtained mining approval, the Authority may have an indirect control over mining operations.The considered view of the Act suggests, however, that the section does nothave this effect. 198

Regardless of the controls which exist or arguably exist over land andresource uses in Western Australia, one should not lose sight of the fact thatthey are ultimately exercisable by the State Minister. In respect of thoselands vested in it, acquired by it, or over which it exercises managementfunctions, the Aboriginal Lands Trust is ultimately subject to Ministerialdirection. 199

Northern Territory

To this point we have not been discussing substantive land rightslaw. The Aboriginal Land Rights (Northern Territory) Act 1976 (Cth.) wasthe first such law in Australia. It provides Aborigines with considerable control over mineral resources even though mineral ownership is retained bythe Crown. But the Act does not provide Aborigines with completeautonomy of resource uses.

The starting point, in this regard, is section 74 of the Act whichallows Northern Territory law to have application to Aboriginal land to theextent that the law in question is capable of operating concurrently with theAct. Unless, therefore, specific Aboriginal land and resource use controlscan be attributed to the provisions of the Act, Northern Territory laws mayapply to Aboriginal land. A recent unreported decision of the Federal Courtof Australia provides a good example of this principle. 20o The case involved

195 See supra nn.63-68 and accompanying text.196 S.30.197 S.30 Proviso.198 See supra n.69 and discussion therein.199 See supra n.68. See also Vincent P., 'Noonkenbah' in Peterson N. and Langton M. (eds.),

Aborigines, Land and Land Rights (1983) 327 for an account of the exercise of similarministerial directive powers in Western Australia concerning the preservation ofAboriginal heritage.

200 The Northern Territory Planning Authority v. Murray Meats (unreported, Federal Court,31 May 1983; No. N.T.G. 30 of 1982).


the right of a private company, which had concluded arrangements with anincorporated Aboriginal community and lands trust (but apparently not theCentral Land Council), to conduct an abattoir on Aboriginal land nearAlice Springs. At issue was whether either the Alice Springs Town Plan of1972 made under the Town Planning Ordinance 1964 (N.T.), or the TownPlan of 1981 made under the Planning Act 1979 (N.T.), allowed an abattoirworks to be constructed on the land. In the event, the issue was decided according to familiar principles of town planning law. It is important to note,however, that at no time was it suggested that the planning laws, or thetown plans made thereunder, were incapable of applying to the land. 2ot

If, therefore, Territory land use control laws may apply toAboriginal land, is there any limit to the extent of such control? Might allland uses, including mining, be controlled by the Territory? The answer tothese questions depends on the provisions of the Commonwealth Act andthe extent to which they are incapable of operating concurrently with Territory laws.

Entry on Aboriginal land is prohibited except where it is authorizedunder the Act or a law of the Northern Territory. 202 Entry on a sacred site issimilarly prohibited. 203 Aborigines with traditional use rights are howeverpermitted entry as of right. 204 Roads may not be constructed overAboriginal land unless the Land Council consents to the construction. 205

Aboriginal land may not be compulsorily acquired by or under a law of theNorthern Territory.206 A miner's right does not apply to Aboriginal landunless immediately before the land became Aboriginal land "the land was occupied by virtue of a miner's right. 207

Clearly none of these provisions explicitly forbids the application ofa Northern Territory law concerning land use planning or development control. Unless the powers and functions of a Land Council to manageAboriginal land and to negotiate with persons wishing to use the land, as setout in section 23 of the Act, are construed as an exclusive power to determine land use questions, this conclusion seems inevitable. It should benoted, however, that the use and occupation of land to which an Aborigineor group of Aborigines is entitled according to Aboriginal tradition isguaranteed by section 71, and the laws of the Northern Territory, includingland use planning laws, are incapable of interfering with that use and occupation. 208 Additionally, the provisions of the Act do facilitate activeAboriginal control over road construction and mining, although entry onAboriginal land may clearly be regulated by Northern Territory law. Northern Territory law may also be made in respect of the protection of sacredsites and the protection or conservation of wildlife on Aboriginal land. 209

201 It was also argued, unsuccessfully, that Murray Meats could not lawfully carryon theabattoir use as the Central· Land Council had not approved the land use.

202 S.70(1). Note exemptions s.70(2).203 S.69(1).204 Ss.69(2), 71(1). Note limitation in s.71(2).205 S.68(1).206 S.67.207 8.75.208 See Re Kearney; Ex parte Northern Land Council (D. 3 of 1983) (1984) 52 A.L.R.I, 22,

per Brennan J.209 S.73(1)(a) and (c).


Commonwealth mining legislation, including the Atomic Energy Act1953, is expressly excluded from application to Aboriginal land in so far asit might allow entry on Aboriginalland. 210 In respect of mining, the Actmakes special provisions which permit the continued operation of NorthernTerritory mining law but grant significant controls to Aborigines. 211 Nomining interest in respect of Aboriginal land may be granted under Territory law unless both the Commonwealth Minister and the Land Councilfor the area in which land is situated have consented, in writing, to the making of the grant. 212 This includes not only a mining lease but also an exploration right.

To this grant of Aboriginal autonomy over resource use there aretwo broad exceptions: first, where the Governor-General declares that agrant should be made in the 'national interest';213 secondly, where an applicant for mining consent is unwilling to enter into an agreement proposed bya Land Council. 214

The first exception might allow the Commonwealth government torequire mining in circumstances where Aborigines do not desire it.Although the government must justify its action in terms of 'national interest', the actual grounds may be economic and social. The exception isnot, however, wholly a matter of executive discretion as either House ofParliament may disapprove the declaration. 215 This may provide somecheck on executive power.

The second exception allows the Commonwealth Minister to appointan arbitrator where a Land Council has refused or is unwilling to approvemining by reason of an applicant's failure to enter into an agreement respecting mining. The arbitration procedure cannot be invoked as of right by anapplicant, but it does allow the Minister to place pressure on a Land Council to agree to terms and conditions acceptable to the Minister. In practice itmight serve as a severe restriction on the autonomy of a Land Council overresource use.

Aboriginal autonomy over mining may further be compromised bythe requirement that the Commonwealth Minister approve mining. 216 Thispower may serve the necessary purpose of allowing government to reversean Aboriginal approval of resource use having adverse consequences, but asthere is no indication in the Act of the circumstances in which the power isto be exercised it may also provide in practice a means of significantly reducing Aboriginal mining control. 217

When approving mining a land council may require a financial agreement as a condition of its consent. Payment may be required from a miningapplicant as the land council thinks fit. 218210 S.41. Note exception in s.41(1)(a)(b), (2).211 S.40. Note exceptions in s.40(3)-(7).212 S.40(l)(a).213 S.40(a)(b). Note exceptions in case of pre-existing authorities and the Ranger Project

Area: s.40(3)-(7).214 S.45.215 S.42.216 S.41(l)(a).217 A Land Council decision to approve uranium mining, for example, may effectively be

reversed by the Commonwealth minister under this power.218 S.43(l). Note exception to Ranger Project Area: see discussion of controls in this area in


In cases w~ere land council consent to mining is not required219 amining interest may, nevertheless, not be granted unless the applicanttherefore has entered into an agreement with a land council dealing, interalia, with financial compensation. 220 The Commonwealth Minister may appoint an arbitrator to settle an agreement if a land council refuses to do soitself. 221

A land council is not only constrained, however, by de factoMinisterial supervision of its functions in respect of resource control, it isalso placed under statutory obligations concerning the exercise of its approval powers intended to protect the interests of the traditional Aboriginalowners. Firstly, a land council has the function 'to ascertain and express thewishes and the opinion of Aboriginals living in the area' as to land management issues,222 'to protect the interests or traditional owners,223 and 'toconsult with' traditional owners with respect to land use proposals. 224 Whilethese provisions arguably do not impose substantive obligations on a landcouncil, section 48 of the Act clearly does: a land council cannot consent toa mining proposal unless it is satisfied that:

(a) the traditional Aboriginal owners (if any) of the land to which the proposedgrant or application relates understand the nature and purpose of the proposedgrant or application, as the case may be, and, as a group, consent to it;

(b) any Aboriginal community or group that may be affected by the proposedgrant or application, as the case may be, has been consulted and has had adequate opportunity to express its view to the Land Council; and

(c) in the case of a proposed grant-the terms and conditions of that grant arereasonable.

The most significant restriction on Land Council power to approvemining is the requirement that the traditional owners, 'as a group' consentto mining. Whether this requires all the traditional owners to consent, sothat nine consents out of ten fail to meet the requirement, is an issue notwithout difficulty. In a recent decision in the Northern Territory SupremeCourt, Muirhead J. held that not all traditional owners must consent. 225

This holding is sensible given the extensive role played by the land councilunder the Act. If it was intended that all traditional owners should consent,this result could easily have been achieved by the legislative draftsman. 226

Apart from these restrictions, the Aboriginal mining power is notstructured in any way. Only the functions clause generally circumscribes thediscretion, but it also indicates that whatever factors are considered relevant

MacPherson N.J., 'Aboriginal Land Rights in the Northern Territory' (1979) 2A.M.P.L.J. 258-262.

219 Where s.40(3)-(7) is applicable.220 Ss.43(2), 44(2).221 S.46.222 S.23(1)(a).223 S.23(1)(b).224 S.23(1)(c).225 Alderson v. Northern Land Council (1983) 20 N.T.R. 1. His Honour held that it would be

inconsistent with the intention of the Act to empower a land council to determine suchmatters, to require all traditional owners to consent. At 11, His Honour suggests thatAboriginal decision-making by 'group consensus' is a relevant test. He further suggests at11, that it is largely for the Land Council, not the court, to decide whether group consenthas been given as it is in the best position to judge these traditional concerns.

226 C/. e.g. the Pitjantjatjara Land Rights Act, 1981 (S.A.), s.7(c).


by Aborigines living on the land or traditional owners are, per sevalid - their 'wishes' and 'opinions'.

New South Wales

The Aboriginal Land Rights Act 1983, (N.S.W.) takes the followingbroad approach to Aboriginal resource use control. First, a land council hasfull common law rights to use its land as it thinks fit subject to common lawrules and statutory laws of general application. This follows from the command in section 41 that a land council may do all things with its property'that it could lawfully do or suffer if it were a natural person having, in thecase of land, the same estate or interest in the property.' As a result,Aboriginal land use may be subject to generally applicable State land useplanning, development control and environmental legislation.

In relation to mineral and natural resource use, however, the Act notonly grants substantial resource ownership to land councils but also excludes from operation on Aboriginal land any legislation which 'providesfor a person to explore for or exploit mineral resources, or other naturalresources, vested in another person'. 227 Accordingly, except in relation togold, silver,coal and petroleum and in respect of existing mining authoritiesover 'vested' land, the New South Wales Mining Act, 1973 has no application to mining operations conducted on Aboriginal land. The questionarises, however, as to what other resources are included in the expression'natural resources' and so what other legislation is not applicable toAboriginal land.

The expression is not defined in the Act; nor does it appear to be usedexplicitly in any other New South Wales legislation. Just as 'minerals' atcommon law comprise 'every inorganic substance forming part of the crustof the earth, other than the subsoil and that layer of soil sustainingvegetable life', 22 8 'natural resources' might be construed to include everyother organic substance, including the subsoil and soil sustaining vegetablelife, and vegetable life itself. In one case at least, the expression 'naturalresources' was taken to include land. 229 It seems sensible to suggest,however, that the contextual meaning of the expression will provide themost useful definition.

In Part VII of the Act, 'natural resources' are spoken of in the samecontext as minerals. The Act in this part is also concerned to prohibit 'mining operations' on Aboriginal land unless approved by a land council. 230

'Mining operations' is itself defined to mean 'prospecting, exploring or mining for mineral resources or other natural resources'.231 Consequently,'natural resources' must be limited to those resources which are recoveredfrom land by a mining process. Of course, what activities constitute 'mining'is itself a nice question. 232 It seems that mining is primarily comprised of activities which involve the recovery of materials from underground, although

227 8.45(3).228 Lang A., and Crommelin M., Australian Mining and Petroleum Laws (1979) para. 407.229 Saskatchewan Natural Resources Settlement [1931] 4 D.L.R. 712.230 8.45(4).231 S.45(l)(a).232 Lang A., and Crommellin M., supra. n.228, paras. 402-404.


as Gibb J. (as he than was) has noted 'the expression is one whose ordinaryand natural meaning is flexible rather than fixed'.233

As noted, the Act specifically prohibits mining operations onAboriginal land. 234 However, a land Council may, however, consent tomining operations on its land,235 and may give its consent subject to suchterms and conditions, including terms or conditions with respect to fees androyalties, as it thinks fit to impose. 236 Importantly, and unlike other similarAustralian legislation, the Act provides no exception to the power of a landcouncil to refuse mining approval.

Where a Local Aboriginal Land Council proposes to consent tomining, on the other hand, its approval and any conditions thereto, must beapproved by the New South Wales Land Council or the Land and Environment Court. 237 The court may only exercise its approval power on areference from a Local or the New South Wales Land Council. 238 The consent or conditions of a local Council may only be refused or altered if theyare 'inequitable to the Local Aboriginal Land Council concerned or wouldbe detrimental to the interests of members of other Local Aboriginal LandCouncils' .239

On the face of it, the autonomy of a local Council (or the New SouthWales Council) to refuse or approve mining on its land is nearly absolute. Aclose examination of the Act reveals, however, that autonomy is only absolute in respect of a refusal to consent to mining. Relevant State land useplanning and environmental laws continue to have application toAboriginal land as they relate to land use, not the provision of authority toa person to explore or exploit another's resources. 240

The conditional consent power would appear to support a financialagreement between a land Council and a person proposing to conduct mining operations. Whereas it may be argued that the general power to imposeterms and conditions and fees may not extend to the imposition of a financial condition on consent, the additional power to impose a conditionrelative to 'royalties'241 largely puts this issue beyond doubt.

The continuing sovereignty of the broader community is, significantly, retained through the provisions excluding gold, silver, coal andpetroleum from Aboriginal ownership and control. Mining in respect ofthese resources remains subject to the Mining Act, 1973, the Coal MiningAct, 1973 and the Petroleum Act, 1955. Land councils have,· therefore, onlythose rights available under the general law to control such activities. Giventhe obvious economic importance of these particular resources, it may fairly

233 leI v. Commissioner of Taxation (1971) 46 A.L.J.R. 635, 687.234 S.45(4).235 Ibid. The act does not, however, specifically address the question of authorization for

mining of mixed-ore deposits - for example gold and copper. Approval to mine goldwould seem to carry with it the right to mine minerals incidentally with it, although ownership of the incidental mineral would appear to remain with the land council.

236 S.45(5).237 S.45(6).238 S.45(7).239 S.45(9).240 See Associated Consolidated Minerals Ltd. v. Wyong S.C. (1974) 48 A.L.J.R. 464 where

the Privy Council drew a similar distinction.241 S.45(5).


be asked how deep has been the commitment of the New South Waleslegislature to the principles or purposes of the Act set forth in its Preamble.

The Act also enables a local land council to negotiate with the ownerof any land, hunting, fishing or gathering rights for the benefit of specifiedAborigines or groups of Aborigines. 242 If unsuccessful, the local councilmay apply to the Land and Environment Court for a hunting, fishing orgathering permit for such Aborigines. 243 It will be entitled to succeed on itsapplication if it can show that land subject to the permit is 'traditionallyused' for such purposes. The Act does not define 'traditional use'. It is alsounclear whether a local council must show present use in accordance withtradition, or that at some time, any time, in the past, the land was traditionally used for such purposes.

Furthermore, it is unclear whether the traditional use must be of thespecified Aborigines or group (or of their ancestors) for whom the permit issought.

South Australia

As we have already seen, the Pitjantjatjara Land Rights Act 1981(S.A.), sets up the Anangu Pitjantjatjaraku as a corporate body of which allPitjantjatjara people are members and provides for the vesting in it of landin fee simple. Once vested in the Anangu Pitjantjatjaraku land cannot bealienated by it, or acquired compulsorily by the States. As discussed, it isunclear whether the ownership of minerals is also vested. Section 22 of theAct dealing with royalty payments from resource development seems toassume that the Crown'retains mineral ownership.

The Anangu Pitjantjatjaraku is basically empowered to manage andadminister land vested in it,244 although its powers are particularized to ensure that the traditional owners245 of the land have an effective voice in decision making. For example, functions of the Anangu Pitjantjatjaraku areboth to ascertain and, where practicable, give effect to the wishes and opinions. of traditional owners246 as well as protect the interests of traditionalowners in relation to the management use and. control of lands. 24 7 Thesefunctions are reinforced by an explicit requirement that the Anangu Pitjantjatjaraku must have regard to the interests of and consult with traditionalowners having a particular interest in a portion of lands in respect of whichthere has been made an administrative development or use proposal. 248 Furthermore, a proposal cannot be implemented unless the traditional ownersconcerned understand the nature of the proposal, have had the opportunityto express their views to the Anangu Pitjantjatjaraku and, significantly,consent to the proposal. 24 9

242 5.47.243 5.48.244 S.6.245 See s.4 definition of 'traditional owners'.246 S.6(1)(a).247 S.6(1)(b).248 S.7.249 S.7(a), (b) and (c). Cj. this with the Commonwealth Act: see supra nn.225, 226 and ac

companying text.


The Anangu Pitjantjatjaraku may do all things necessary to administer the land, for example, to lease land or grant a licence in respect ofit,250 to acquire by agreement, hold, deal in or dispose of land outside thevested lands,251 to enter into contracts,252 to appoint and dismiss staff,253and to receive and disburse monies;254 in other words, to carryon activities,communal or otherwise, as a natural person might, but subjectalways to the wishes and opinions of the traditional owners.

In broad terms, however, the Act does not exclude State laws ofgeneral application from operation on Aboriginal land so that, as in theNorthern Territory and New South Wales, land use planning laws mayapply to them. Various provisions of the Act, however, do provide a largemeasure of Aboriginal autonomy over land and resource use questions.

First, land entry is largely subject to the consent of the Anangu Pitjantjatjaraku. While Pitjantjatjara people have unrestricted access tolands,255 it is an offence for any other person256 to enter without the writtenpermission of the Anangu Pitjantjatjaraku,257 which permission isrevocable at wil1. 258 A person holding a pastoral lease over Anangu Pitjantjatjaraku land does not require permission to enter the lease. 259 It is theseentry rules which have been considered constitutionally invalid in a decisionof the Supreme Court of South Australia. 260

In relation to natural resource use, special rules are laid down by theAct in an apparent endeavour to balance Aboriginal interests against thoseof the broader community to realise the benefits of natural resource exploitation. This balance is attempted by making mining operations onAnangu Pitjantjatjaraku lands subject to the consent of the AnanguPitjantjatjaraku with provision for arbitration of a dispute between theAnangu Pitjantjatjaraku and a person wishing to mine.

As with the general entry provisions, it is an offence for a personeither to carry out mining operations on the lands or enter thelands for sucha purpose, without the permission of the Anangu Pitjantjatjaraku. 261 Theprovisions of mining or other legislation whereunder mining authorizationsare issued have no effect in relation to Anangu Pitjantjatjaraku lands,262although they are of some continued relevance, as noted below. A persondesiring to conduct mining operations on the lands must apply in writing tothe Executive Board of the Anangu Pitjantjatjaraku. 263 However, beforethe application can be made the applicant must first have applied for a min-

250 S.6(2)(b).251 S.6(2)(c).252 S.6(2)(d).253 S.6(2)(e).254 S.6(2)(0.255 S.18.256 S.19(8), but note exemptions.257 S.19(1)-(6).258 8.19(7).259 S.19(11).260 See supra n.7.261 S.20(1)(a), (b).262 S.20(1).263 S.20(3)(b).


ing tenement in respect of the proposed operations and have been notifiedby the Minister for Mines and Energy that he approves the making of themining application under Land Rights Act. 264 The Minister of Mines andEnergy clearly acts pursuant to the relevant Mining Act and should determine the application for a mining tenement in the usual way required bythat Act. If the Minister approves an application, the applicant must filewith its application to the Anangu Pitjantjatjaraku, all the information submitted to the Minister in support of the application for the miningtenements265 and such further information reasonably required by theAnangu Pitjantjatjaraku to determine the application. 266 The Anangu Pitjantjatjaraku may then determine the application before it and grantpermission unconditionally, or subject to conditions consistent with theprovisions of the Act, or refuse permission. 267

There is no explicit guidance provided in the Act as to how thisdiscretionary power is to be exercised; the Act does not structure the discretion by establishing criteria relevant to its exercise. As to the nature of otherconditions which may be attached to consent, the only guidance providedby the Act is that conditions must be 'consistent with the provisions of theAct'. This might possibly be the subject of two interpretations: first, that acondition cannot exempt or prohibit any conduct proscribed or permittedby a section of the Act; or, secondly, that conditions must relate to thegeneral objects and purpose of the legislation. As the second proposition isan orthodox legal proposition268 which applies to an unconditional grantand refusal of permission as well as a conditional grant, the first propositionseems the one most appropriate to the Act. In general terms, however, it appears clear that the Anangu Pitjantjatjaraku must, in exercising its miningapproval power, have regard to those provisions of the Act which circumscribe its power· to administer the Act, particularly sections 6(1) and 7concerning the wishes of traditional owners.

Where these sections do not delimit the power of the AnanguPitjantjatjaraku, the full extent of the approval power is difficult to define.It is a very wide power, as wide as the objects and purposes of the legislationthemselves, however they may be construed. There is no objects clause inthe Act, so one must read the Act as a whole to determine its purpose andthus the scope of the approval power. Arguably, any factor relative to thesocial, economic or spiritual concerns of the traditional owners would berelevant to the exercise of the approval power given the mandate of the Actfor the protection of these values. 269 On this view, not many issues would beirrelevant in the mining approval process.

Perhaps confirming the correctness of this view, the Act doesnot require the Anangu Pitjantjatjaraku to furnish an applicant with reasons forits decision, only of the decision itself. 270 On the other hand, it may be

264 S.20(3)(a).265 S.20(3)(c).266 S.20(4).267 S.20(6).268 See, e.g. Re Toohey; Ex parte Northern Land Council (1981) 3 A.L.R. 439 especially

Stephen J., for a contemporary statement of a court's review role.269 See ss.6(1), 7 and definition of 'traditional owners' in s.4.270 S.20(7).


argued that as the Act provides an arbitration procedure to allow an aggrieved applicant to take the matter further, 271 and then structures the decision making function of the arbitrator, 27 2 the Anangu Pitjantjatjaraku mayonly consider the factors relevant to the arbitrator's decision and no others.On this view, the limit on the arbitrator's discretion would set the bounds ofthe discretionary approval power of the Anangu Pitjantjatjaraku,although, unlike the arbitrator, the Anangu Pitjantjatjaraku would not bebound to consider every section 20(15) criterion.

Whatever the correct legal analysis may be, the issue is largelyacademic given that the arbitration procedure is available to an aggrievedapplicant as of right, that the criteria to be considered by an arbitratortraverse those suggested above, and that the arbitration is in the nature of arehearing on the facts rather than an appeal against the Anangu Pitjantjatjaraku decision on questions of law.

The arbitration procedure may be involved by an applicant formining approval in two circumstances: the first where the applicant is aggrieved by refusal of or the conditions attached to permission;273 the secondwhere the Anangu Pitjantjatjaraku fails to give notice of its decision within120 days of the date of the application. 274 On receiving a request for arbitration proceedings the Minister of Mines and Energy is obliged to appoint an arbitrator,275 subject to comment by the Anangu Pitjantjatjarakuon the proposed arbitrator,276 who must be a judge of the High Court, theFederal Court or the Supreme Court of a State or Territory of Australia. 277

In the conduct of the arbitration proceedings, the arbitrator may notonly hear such evidence as is brought before him by the Anangu Pitjantjatjaraku, the applicant, the Minister of Mines and Energy and the StateMinister for Aboriginal Affairs,278 but also require all persons to appearbefore him as he considers appropriate to the disposition of theproceedings.279

The arbitrator, having heard all the evidence, may either affirm, varyor reverse the decision of the Anangu Pitjantjatjaraku or where no decisionwas made by the Anangu Pitjantjatjaraku, make such decision as he thinksfit. 280

Although these provisions ensure a rehearing of the Anangu Pitjantjatjaraku decision, the arbitral function is structured so as to limit therehearing to consideration of only certain prescribed factors. The failure ofan arbitrator to so limit his or her discretion clearly would be an ultra viresact. The relevant factors, are set out in section 20(15) of the Act as follows:

(a) the effect of the grant of the mining tenement upon-(i) the preservation and protection of Pitjantjatjara ways-of-life, culture

and tradition;

271 S.20(8)(a).272 S.20(l5).273 S.20(8)(a).274 S.20(8)(b).275 S.20(9).276 S.20(l0).277 S.20(l1).278 S.20(l4).279 S.20(l2)(a).280 S.20(l4)(t).


(ii) the interests, proposals, opinions and wishes of the Pitjantjatjara people in relation to the management, use and control of the lands;

(iii) the growth and development of Pitjantjatjara social, cultural andeconomic structures;

(iv) freedom of access by Pitjantjatjaras to the lands and their freedom tocarry out on the lands rites, ceremonies and other activities in accordance with Pitjantjatjara traditions;

(b) the suitability of the applicant to carry out the proposed mining operations andhis capacity, in carrying out those operations, to minimize disturbance to thePitjantjatjara people and the lands;

(c) the preservation of the natural environment;and

(d) the economic and other significance of the operations to the State andAustralia.

It is also apparent that the sub-section attempts to balance the social,economic and religious interests of the Pitjantjatjara people (broadly thosefactors set out in section 20(15)(a) and (b» and the need to preserve thenatural environment (a factor in which Pitjantjatjara interests and European interests may well coincide) against the economic and general socialsignificance of a proposed resource development to the broader State andAustralian community (the factor set out in section 20(15)(d». It remains toexamine how much these factors, and indeed the availability of the arbitration procedure itself, restricts the prima facie autonomy of the Pitjantjatjara people to determine resource uses.

First, that there is an arbitration procedure available at all is a significant restraint on the autonomy of the Pitjantjatjara people. It means,especially as the procedure may be invoked as of right by a dissatisfied applicant for mining approval, that the Anangu Pitjantjatjaraku know thatthey may be second-guessed by a European arbitrator in respect of any finaldecision they may reach. This may result in the Anangu Pitjantjatjarakugenerally, if not specifically, observing the decision making criteria imposedon the arbitrator to avoid there occurring any substantial discrepancy between its decision and any subsequent determination of an arbitrator. If thiswere to occur· the Anangu Pitjantjatjaraku would be placed under considerable pressure in the first instance to allow mining and so to compromiseapplications for mining approval on traditional Aboriginal lands. Experience under this arbitration system may, however, prove that it is advantageous to Aborigines.

The criteria themselves reflect the compromises that must be madeon the clash of two sovereigns in the same territory. It has already been suggested that while Aboriginal sovereignty should be acknowledged as thebasis of legislative land grants to Aborigines there will be occasions whenthe continuing legal sovereignty of the broader plural society should prevail;issues of international significance and certain issues of national concernwere provided as examples. The Act has partially developed this viewthrough the explicit requirement that the arbitrator have regard. to 'thepreservation of the natural environment'.281 The further requirement,however, that the arbitrator have regard to the 'economic ... significanceof the operations to the State and Australia'282 is not so readily justifiableon this approach.

281 S.20(l5)(c). 282 S.20(25)(d).


Economic matters are notoriously hard to quantify and even moredifficult to weigh against social and environmental factors. 283 On the otherhand, it may be possible to make a qualitative assessment of the international economic significance of a proposal to Australia. The need forAustralia to engage in international trade and commerce and maintainbalanced trading operations with other countries, thereby necessitating continued exploitation of natural resources, including those on Aboriginallands, may be measured. But as a domestic concern, the economicsignificance of a proposal might often enable an arbitrator to conclude thatthe right of the broader community to a sustained resource-based economy,including employment opportunities for its members with its multipliereffect, and the general worth of a proposal to governments in taxation,royalty and other revenue devices, outweighs the wishes of the Aboriginalcommunity and environmental and other social concerns.

Similarly, the requirement that the arbitrator also have regard to 'theother significance of the operations to the State and Australia'284 maysignificantly affect the extent of Aboriginal mining control. The open endednature of this factor is obvious and the limits of the exception quite imprecise. The factor would at least appear to exclude from considerationissues of purely local and regional significance, although just when a localor regional issue becomes a State or national issue is difficult to resolve.

Moreover, whilst it is explicable that State legislation will seek topreserve the 'State' and national interest when acknowledging priorAboriginal· sovereignty to lands within State jurisdiction, the effect of sodoing is different from the Commonwealth national legislature's preservation of the national interest and maintaining control over issues of international significance. To put it quite simply, issues of State interest may notalways coincide with national or international interest.

Victoria

Under the Victorian Aboriginal Land Claims Bill 1983, it is proposedthat if a land claim is successful, then the land granted to an incorporatedclaimant group should remain subject to relevant Victorian law of generalapplication except in two important respects: first, where it is proposed thatmining, petroleum and extractive operations be carried out on the land;secondly, in respect of forestry, flora and fauna resources.

Although it is proposed that exploration licences and permits may beissued under the Mines Act 1958 and the Petroleum Act 1958, a personwould not be entitled to enter Aboriginal land without first obtaining theconsent of the claimant body, which consent may be granted on such termsand conditions and subject to the payment of such fees as the claimant bodythinks fit to impose. 28s .

As a general rule, however, an absolute restriction is proposed on theissue of any authority in respect of Aboriginal land under the Mines Act,the Petroleum Act and the Extractive Industries Act 1958: only if the claim-

283 Note, e.g. the political and constitutional debate over the region of South West Tasmania.284 S.20(l5)(d).285 Cl. 14(2).


ant body consents, which it may again do subject to such terms and conditions and the payment of such fees as it thinks fit to impose, may suchauthorities be issued. 286

The autonomy of the claimant body over such resource use would besubject only to a resolution of both Houses of Parliament permitting exploration or granting an authority for the conduct of mining, petroleum orextractive industries. 287

This exception to Aboriginal resource control may usefully be compared with the mining review mechanism of the Pitjantjatjara Land RightsAct, 1981 (S.A.). Unlike the latter, it avoids the establishment of a reviewprocedure which may be invoked by an aggrieved developer as of right;instead, the government must be requested to override an Aboriginal decision, and where another political party controls the Upper House of Parliament, it too must support the decision to override Aboriginal autonomy onthe matter. By contrast to the South Australian mechanism, the Victorianexception does not seek to limit in any way the circumstances in which anAboriginal decision may be overridden: simple political expediency mayprevail. On the other hand, the criteria underlying the exercise of the SouthAustralian exception may be considered so broad as to support reversal ofan Aboriginal resource decision on very many grounds. Ultimately, thechoice of the one exception procedure rather than the other will involve avalue judgment and an instinctive assessment of which in practical terms ismost likely to secure maximum Aboriginal control over resource use.

Royalties paid in respect of such resource activities would be sharedbetween the Victorian Aboriginal Authority and the claimant body, exceptin relation to coa1. 288 This suggests that a grant of land does not include theminerals so that they would remain largely in Crown ownership.

The extent of financial compensation which Aborigines may claimwhen granting consent to these resource activities is unclear. On the onehand, the power to impose such terms and conditions as it thinks fit maysupport a monetary agreement. On the other hand, if this power is referableonly to the power to require payment of fees, then the ability to, exact afinancial agreement in return for resource use approval may be questionable. 289 Usually, courts are reluctant to admit the power to attach amonetary condition to a licence unless the power is clearly spelt out inlegislation. 290 In town planning, however, law courts have often approached this issue by inquiring whether a monetary condition can be directlyrelated to a land use consent. 291 On this view, the general consent power inclause 14 would support a broad monetary condition on consent. Such aresult would appear consistent with the purpose of the Bill in granting to aclaimant body broad control over such resource use. 292

Aside from these resource issues, a claimant body would also be

286 Cl. 14(1).287 Cl. 14(3), (4).288 Cl. 14(5).289 See Marsh v. Shire of Serpenfine-Jarrahdale (1966) 40 A.L.J.R. 317.290 See Commonwealth and the Central Wool Committee v. Colonial Combing, Spinning and

Weaving Co. Ltd. (1922) 31 C.L.R. 421.291 See~ e.g. Greek Australian Finance Corp. v. Sydney C.C. (1974) 29 L.G.R.A. 130.292 See supra 0.289, 319 per Barwick C.J.LL

1984 AMPLA Yearbook

charged with the care and control of all flora and fauna on the land grantedto it,293 including the forestry resource. 294

The resource control envisaged by the Bill is great. Given that mining, petroleum, extractive, forestry and hunting laws are effectivelyexcluded from operation on Aboriginal land, a claimant body, in the absence ofother relevant laws of general application - such as land use planning andenvironmental laws - has extensive authority to determine resource uses onits land. That this is the intention of the Bill is confirmed by clause 15(6)which provides that the zoning of any land which is the subject of a grantmay be set aside by the Minister for Planning and the land may be re-zonedin accordance with the recommendations of an Aboriginal Land ClaimsTribunal.

SUMMARY

Although the landmark Aboriginal Land Rights (Northern Territory) Act 1976 (Cth.) created a general formula for the claim by traditional Aboriginal owners of traditional lands, it has not been emulated inother land rights laws in Australia. Rather the approach has been to demarkprecisely the land to be granted to identified Aborigines.

All land rights laws since the Commonwealth Act have endeavouredto grant Aboriginal landowners considerable control over mineral exploration. Land use control and control over other natural resources such asflora, fauna and water have, on the other hand, seldom been the subjects ofsubstantive land rights law.

All land rights laws have created a large Aboriginal council either tohold or to control land and mineral uses. The relationship between a counciland its individual members or groups within it, however, remains an issuenot uniformly regulated by the various laws we have examined.

Except in New South Wales, there is little difficulty in establishingwho is an Aboriginal person for the purposes of a land rights law.

There is a continuing trend in all States and·at the Commonwealthlevel of government to grant land rights to Aborigines and not merely toprovide land beneficially to Aborigines through such bodies as the Commonwealth Aboriginal Development Commission.

293 Cl. 15(1), but note exceptions in case of protected flora and fauna.294 Cl. 15(3), but note continued operation of fire suppre~sion regulations.

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