Purpose of the Bill

The purpose of the Aboriginal Land Rights (Northern Territory) Amendment (Scheduling) Bill 2024 (the Bill) is to amend the Aboriginal Land Rights (Northern Territory) Act 1976 (the Act) to add two parcels of Crown land in the vicinity of Canteen Creek (Owairtilla), in the Barkley region of the Northern Territory (NT), to Part 4 of Schedule 1 of the Act. This will allow the land in question to be granted as Aboriginal land to an appropriate Aboriginal Land Trust under sections 10 and 12 of the Act. For a plain language overview of the Act, see The Aboriginal Land Rights Act.

Background

The Bill is the result of a negotiated settlement of Aboriginal Land Rights claim No. 130, Wakaya Alyawarre (Repeat), between the Northern Territory government (NTG) and the Central Land Council (CLC). According to the Aboriginal Land Commissioner Annual Report: 2022–23 (p.15), this claim was lodged on 25 June 1990, 34 years ago, replacing a previous land claim lodged in 1980. The Aboriginal Land Commissioner commenced an inquiry into the claim on 22 August 2017 (p. 38).

According to the second reading speech for the Bill, the land is associated with Emu and many other Dreamings of the peoples of the Wakaya and Alyawarre language groups.

In December 2017 the CLC and the NTG agreed to enter into an Indigenous Land Use Agreement (ILUA) to resolve the claim.

The agreement provides for the joint request by the CLC and NT government to the Minister for Indigenous Affairs for the grant of the claim area as ALRA freehold (excepting Canteen Creek), together with the withdrawal of the land claim over the Canteen Creek community, extinguishment of native title within the community, and grant of NT freehold over non-NT government assets within Canteen Creek. (CLC Annual Report: 2017–2018, p. 43)

The agreement was delayed by otherwise unrelated litigation relating to certification of ILUAs (CLC Annual Report: 2018–2019, p. 41), but in November 2019 the ILUA setting out the terms of settlement to resolve the claim was executed. The claimants subsequently withdrew the land rights claim, pending grant of the agreed claim area by Parliament (Aboriginal Land Commissioner Annual Report: 2022–23, p. 38). On 20 May 2020 the ILUA was registered with the National Native Title Tribunal as Canteen Creek Area ILUA DI2019/001. The required amendment to the Act is contained in this Bill.

Policy position of non-government parties/independents

At the time of writing, no non-government parties had expressed views on the Bill.

Historically, Bills implementing negotiated land rights settlement agreements have received bipartisan support. For example, the Turnbull/Morrison government Aboriginal Land Rights (Northern Territory) Amendment (Land Scheduling) Bill 2018 and Aboriginal Land Rights (Northern Territory) Amendment Bill 2018 both passed without opposition.

Position of major interest groups

The Bill is the result of a negotiated settlement between the CLC, acting on behalf of the Wakaya Alyawarre traditional owner claimants, and the NTG. The CLC and NTG have jointly approached the Commonwealth government to request this amendment.

Financial implications

There are no financial implications for the Commonwealth.

Granting the land to the Wakaya and Alyawarre traditional owners may provide economic opportunities to the traditional owners.

Resolution of any Aboriginal land rights and native title claims over the township of Canteen Creek itself, and the grant of NT freehold over all non-NTG assets within the township, may promote residential or commercial development within the township.

The area to be granted is vacant Crown land. According to available geospatial data there are no mines or pastoral interests within the area. Some areas of Land Portion 8009 are covered by existing mineral or petroleum exploration licences.[1] As these licences were granted after the current application for Aboriginal land rights was lodged in 1990, the holders of those licences would have been aware of the land rights claim and have had the opportunity to enter into appropriate agreements with the CLC under section 11A of the Act.

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible. The Statement of Compatibility with Human Rights can be found in the Explanatory Memorandum (pp. 2–3).

Key issues and provisions

Item 1 of Schedule 1 of the Bill adds NT land Portions 8009 and 8383 to Part 4 of Schedule 1 of the Act, facilitating the grant of the land.

Maps of these land portions can be downloaded from the NT Land Information System as Survey Plan S2022/073A (8009) and Survey Plan S2022/073B (8383). Portion 8009 is a large (484,000 hectares) area of unallocated Crown land surrounding Canteen Creek. Portion 8383 is a small section of road (Cemetery Road) joining the Canteen Creek Road to the southwest portion of the Canteen Creek township.

Concluding comments

This Bill fulfils an agreement between the CLC and the NTG which was finalised in 2019, to resolve a land claim lodged in 1990. However, as scheduling of land for grant to an Aboriginal Land Trust requires amendment of the Act, it has taken an additional five years before this Bill was brought before Parliament. Similar or longer delays attended the Aboriginal Land Rights (Northern Territory) Amendment (Land Scheduling) Bill 2018 (passed in 2019), which fulfilled an ILUA made in 2014, and the Aboriginal Land Rights (Northern Territory) Amendment Bill 2017 (passed in 2019), which fulfilled an ILUA made in 2005, a delay of 14 years. Both these Bills were uncontroversial and attracted bipartisan support.

Both Coalition and ALP governments have previously committed to faster resolution of longstanding land claims under the Act. As such, a potential area of legislative reform could be to enable lands over which a negotiated agreement exists to be added to Schedule 1 of the Act by regulation or other disallowable legislative instrument, rather than by amendments. While this might be regarded as a ‘Henry VIII’ clause, it could be regarded as bringing the Act’s current operation in line with legislation such as the Environmental Protection and Biodiversity Conservation Act 1999, the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, or the Defence Housing Australia Act 1987, all of which establish general schemes for land or heritage acquisition or protection and enable the relevant Minister or Department to designate specific species, heritage sites or lands for Crown protection, acquisition or disposal via appropriate instruments. This allows decisions under those acts to be made within reasonable time frames, rather than the extremely extended periods that now attend remaining land claims under the Aboriginal Land Rights (Northern Territory) Act 1976.