Aboriginal people and the law - Legal Information Access Centre

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56 The Law Handbook• the NSW Aboriginal Land Council (coveringthe state)• 13 regional land councils• 120 local Aboriginal land councils.However, amendments to the Act, passed on4 December 2006, abolished regional landcouncils.[2.340] Obtaining land underthe ActAboriginal people can obtain land or associatedrights under the Act through:• land claims (s 36)• purchase of lands (ss 12(b), 23(c), 38)• acquisition by the Minister for AboriginalAffairs (s 39)• access to land for hunting and fishing(ss 47, 48)• rights to minerals (s 45) and royalties(s 46)• community benefits schemes and socialhousing schemes provided by local Aboriginalland councils (ss 52A and 52B).Land claimsLand claims under the Act can be made onlyby local land councils, or by the NSWAboriginal Land Council on behalf of one ormore local land councils. The claims arelimited to vacant crown land not lawfullyused or occupied, or required or likely to berequired for an essential public purpose orfor residential purposes.ProcedureClaims are normally prepared by the localland council, often with legal advice fromsolicitors or the NSW Aboriginal LandCouncil. They are lodged with the registrarappointed under the Act, who certifies thatthe land claimed is within the boundary ofthe local land council and then sends theclaim to the Minister for Crown Lands (theMinister for Lands) for determination.The minister's responsibilityThe minister gives notice of the claim torelevant government agencies, including localgovernment. These agencies may object,but only on the ground that the land isrequired or likely to be required for anessential public purpose or for residentialpurposes.If the minister is satisfied that the land isvacant crown land and not required for anessential public purpose or residentialpurposes, the claim must be granted.Appeal against refusalIf the minister refuses the claim, the localAboriginal land council may take the matteron appeal to the Land and EnvironmentCourt. The claim is then heard from thebeginning by a justice of the Land andEnvironment Court, usually sitting with acommissioner who is Aboriginal.Either party may appeal from the decisionto the NSW Court of Appeal (Land andEnvironment Court Act 1979 (NSW), s 57).When a claim is grantedOnce a claim is granted the land is transferredas freehold to the claimant Aboriginalland council.Leaseback as national parkSection 36A of the Aboriginal Land Rights Actallows land to be leased back to the NationalParks and Wildlife Service as a nationalpark.This is a useful option where the lands arerecognised by the local land council asrequiring protection for natural or culturalheritage values. Under s 71AE of the NationalParks and Wildlife Act 1974 (NSW) theMinister pays rent for the land to the LocalAboriginal Land Council that owns theland. The leased land is managed by a boardof management under s 71AN of the Act,under which a majority of the board must beAboriginal people. The board must alsoprepare plans of management for the landsunder its control. Boards of managementhave access to funds to perform their functionsthrough s 71AQ of the National Parksand Wildlife Act.Purchase of landsThe Aboriginal Land Rights Act provided forthe NSW Aboriginal Land Council to bepaid 7.5% of the land tax collected each yearfrom 1983, when the Act was proclaimed,until 1998. Half the money had to be
2 Aboriginal people and the law 57allocated to an investment fund, and half toadministration and land acquisition.The investment fund now contains approximately$500,000,000. The interest ismade available to local Aboriginal landcouncils for administration and, potentially,land acquisition.Acquisition by the MinisterIf the Minister for Aboriginal Affairs believesthere are exceptional circumstancesjustifying the acquisition of land to satisfythe objectives of the Act (s 39), the ministermay acquire it.The power has been exercised only once,when Wellington Common was acquiredand then transferred to the traditional ownersin 2001 through an Indigenous agreementreached to resolve a native title claimto the Common.Access for hunting, fishing andgatheringUnder s 47 of the Act, local Aboriginal landcouncils may enter into agreements withlandholders to obtain access onto or acrosslands for hunting, fishing or gathering oftraditional foods. Under s 48, a local landcouncil that has been unable to negotiate anagreement may apply to the registrar, appointedunder the Act, who must refer thematter to the Land and Environment Court.The court may then issue a permit.It is an offence to refuse access after apermit has been issued.Rights to minerals and royaltiesUnder the Act, ownership of all mineralsexcept gold, silver, coal and petroleum istransferred from the Crown when land isacquired by a local Aboriginal land council.The land council can then veto mining(except for the reserved minerals), or consentto mining and receive royalties.Rights to deal with the landA land council may only deal with the landunder detailed provisions of the Act. “Dealingwith” land is very widely defined andincludes not just selling or mortgaging it butalso making an application to a consentauthority to undertake development on theland, such as subdividing or constructingbuildings. The NSW Aboriginal Land Councilmust be satisfied that all the proceduralrequirements imposed by the Act have beencomplied with, and that the cultural value ofthe land has been taken into account whenthe Local Land Council resolves to deal withthe land. In particular, land which is transferredunder the Act and which may besubject to native title must be cleared ofnative title by a determination that nativetitle does not exist. A dealing done by a landcouncil in breach of these provisions is void(s 42C).[2.350] Native titleUnder common lawIn Mabo v State of Queensland No 2, the HighCourt held that the common law of Australiarecognises Aboriginal and Torres StraitIslander title to land under traditional laws.The common law definitionNative title is recognised by the commonlaw as a bundle of rights affecting landwhich is based on the traditional laws andcustoms of Indigenous people until:• it is extinguished by an act of the Crown,or• the people lose their traditional connectionwith their land.Many aspects of the common law relating tonative title remain unclear. These includethe effect on native title of specific Crowngrants and other dealings (see Wik and othercases at [2.360]).
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