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Published online by Cambridge University Press: 24 January 2025
The Australian legal system in the last fifteen to twenty years has increasingly recognised and accommodated traditional Aboriginal rights, customs, practices and beliefs. The Commonwealth Parliament has been particularly active in this area, as illustrated by its enactment of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), (the “Land Rights Act”), the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), and the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth). While there is no general treaty or “makarrata” between the Commonwealth or any State or Territory on the one hand and Australian Aboriginals either generally, or at a tribal or regional level on the other, this has been seriously considered by the Commonwealth and is regularly called for by Aboriginal leaders, see, for example the Barunga Statement of 12 June 1988.
The Australian legal system does not currently recognise that any antecedent native title is held by Aboriginals, as sovereignty over the Australian continent is considered to have been gained by settlement over terra nullius rather than by conquest, see for example Milirrpum v Nabalco Ply Ltd; there are indications however that the current members of the High Court may be prepared to review those fundamental legal assumptions provided a suitable legal vehicle can be found.
The views expressed are mine and are not necessarily held by the Commonwealth, the Northern Territory or their agencies. I have attempted to state the law as at November, 1990.
1 Report by the Senate Standing Committee on Constitutional and Legal Affairs on the Feasibility of a Compact or “Makarrata” between the Commonwealth and the Aboriginal People: Two Hundred Years Later (1983). See also Final Report of the Constitutional Commission, (1988) Vol 2, paras 10.412-10.460.
2 The Barunga Statement comprises a Statement by Aboriginal leaders making a number of demands on the Commonwealth and a rather general response by the Prime Minister Mr R J L Hawke. The statement is reproduced as an appendix in J Crawford, , “The Aboriginal Legal Heritage : Aboriginal Public Law and the Treaty Proposal” (1989) 63 AU 392, 402-403Google Scholar.
3 (1971) 17 FLR 141.
4 See Mabo v Stale of Queensland (1988) 166 CLR 186 and the determination of facts in that case by Moynihan J of the Supreme Court of Queensland upon remitter from the High Court, dated 16 November, 1990. However there are important distinctions between Aboriginals and Miriams (the Plaintiffs in the case), so that this case may not be of much assistance in determining whether mainland Aboriginals have any enforceable antecedent native title to any particular area of land. See also Northern Land Council v Commonwealth (1986) 161 CLR 1.
5 Teori Tau v Corrunonwealth (1969) 119 CLR 564, 570. Confirmed in relation to the Northern Territory in Northern Land Council v Corrunonwealth (1986) 161 CLR 1, 6.
6 Infra text at n 55 ff.
7 7 Section 9(1) of the Northern Territory (Self-Government) Act 1978 (Cth) allows the Governor-General to disallow any Northern Territory statute within 6 months of its enactment. This power has only been exercised once, and then at the request of the Northern Territory.
8 Eg Part IV of the Land Rights Act prescribes a regime for mining on Aboriginal land. See also ss 19, 20(3), 67, 68, 70, 71 and 77A.
9 Eg Native and Historical Objects and Areas Preservation Act 1955 (NT), Archaeological and Aboriginal Relics Preservation Act 1972 (Vic), Aboriginal Relics Act 1975 (Tas); see GK Ward, “Archaeology and Legislation in Australia” in G Connah, (ed), Australian Field Archaeology, A Guide to Techniques (3rd ed 1983)Google Scholar.
10 Eg Australian Heritage Commission Act, 1975 (Cth), World Heritage Properties Conservation Act 1983 (Cth), Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987 (Qld), Heritage Act 1977 (NSW). Various environmental planning and assessment statues are also capable of being used to protect sites. They are beyond the scope of this paper.
11 Eg Northern Territory Aboriginal Sacred Sites Act 1989 (NT), Aboriginal Heritage Act 1988 (SA).
12 Eg P Vincent, “Noonkanbah”, in N Peterson, , M Langton, (eds), Aborigines, Land and Land Rights(1983), 327Google Scholar.
13 (1971) 17 FLR 141.
14 Ibid 167.
15 For a critical discussion of the definition of “traditional Aboriginal owners” in the Land Rights Act, see eg M Gumbert, “Paradigm Lost : An Analysis of Anthropological Models and their effect on Aboriginal Land Rights” Oceania Vol 52 No 2 1981CrossRefGoogle Scholar, M Gumbert, Neither Justice Nor Reason: a legal and anthropological analysis of aboriginal land rights, (1984); Mr Justice Toohey, Seven Years On (1984); K Maddoclc, “'Owners', 'Managers' and the choice of statutory traditional owners by anthropologists and lawyers” in Aborigines, Land and Land Rights, supra n 12, 211; Repon on the Waromungu Land Claim para 19.1.2; Report on the Lake Amadeus Land Claim, paras 99-100 and Justice Toohey “Aboriginal Land” (1985) 15 FL Rev 159, 160-164.
16 (1984) 158 CLR 327.
17 Ibid 357-358.
18 Aboriginal Sacred Sites Protection Authority, “What is a Sacred Site?” (Darwin). Undated pamphlet.
19 Warumungu Land Claim, Reasons for Decision of Mr Justice Maurice, Aboriginal Land Commissioner's Office, 1 October 1985, 77-78.
20 Section 3(1).
21 Id
22 Aboriginal Land Rights Commission, Second Report (1974).
23 Ibid 96.
24 A E Woodward, “Land Rights and Land Use : A View from the Sidelines” (1985) 59 ALJ 413Google Scholar.
25 Ibid 421.
26 RM Berndt (ed), Aboriginal Sites, Rights and Resource Development (1982) 7. See also K Maddock, Your Land is Our Land: aboriginal land rights (1983) Ch 7.
27 Report by the Aboriginal Land Commissioner to the Minister for Aboriginal Affairs and the Minister for the Northern Territory: The Warlpiri and Kartangarurru-Kurintji Land Claim (1979) para 68.
28 Ibid paras 69-70.
29 Report to the Chief Minister of the Northern Territory of the Committee to Review Legislation Relating to Sites of Significance to Aboriginals (1987).
30 Ibid 228-229.
31 RM Berndt, , supra n 26, 7Google Scholar.
32 Report of the Select Committee of the Northern Territory Legislative Council on the Native and Historical Objects Preservation Ordinance 1965 (1965); see E P Milliken, “Protection and Preservation of Aboriginal Sites” and C Jack-Hinton, , “Existing and Proposed New Legislation for the Protection of Antiquities and Cultural Material” in R Edwards, (ed), The Preservation of Australia's Aboriginal Heritage (1975) 19, 23Google Scholar.
33 Commonwealth Parliament: Report of the Joint Select Committee on Aboriginal Land Rights in the Northern Territory (“The Bonner Committee Report”) (1978) para 91.
34 Ibid iv.
35 Ibid paras 99-103.
36 (1971) 17 FLR 141.
37 Aboriginal Land Rights Commission, First Report (1973) iii. Sir Gerard Brennan was counsel assisting the Commission.
38 Report, supra n 22, 2.
39 Ibid 98. Cf Parliament of NSW, First Report of the Select Committee of the Legislative Assembly upon Aborigines (1980) Div II; P Scaman, The Aboriginal Land Enquiry (1984) Ch 8, Appendices 36, 37.
40 Report, supra n 22, 172.
41 Aboriginal Land (Nonhem Territory) Bill, clause 72. In full this read : “72.
(1) A person shall not desecrate land in the Nonhem Territory that is a site of significance according to Aboriginal tradition.
Penalty: $1,000.
(2) Without limiting the generality of sub-section (!), a person shall be deemed to have desecrated a site if, on or near the site, he does an act, or causes damage, of such a nature that the doing of the act or the causing of the same, as the case may be, would, if witnessed by Aboriginals to whom the site is significant, be offensive to them by reason of the Aboriginal tradition in respect of that site.
(3) It is a defence to a charge under sub-section (1) if the person charged proves
(a) that the doing of the act, or the causing of the damage, as set out in the charge was accidental;
(b) where the site was not on Aboriginal land - that the person charged had no reasonable grounds for suspecting that the site was of significance according to Aboriginal tradition; or
(c) where the site was on Aboriginal land - that -
(i) the person charged was lawfully on the land and sought the services of a guide from the Land Council for the area in which the site was situated; and
(ii) a guide was not provided within a reasonable time or the guide provided failed to identify the site as one of significance according to Aboriginal tradition.
(4) The regulations may declare areas of land in the Nonhem Territory to be sites of significance according to Aboriginal tradition for the purposes of this section.
(5) In proceedings for an offence against sub-section (1) in relation to an area declared under sub-section (4) -
(a) the declaration is conclusive proof that the area to which it relates is a site of significance according to Aboriginal tradition; and
(b) the defences set out in paragraphs 3(b) and (c) do not apply.
(6) This section does not apply in relation to an act done in relation to land if -
(a) the Land Council for the area in which the land is situated has given consent in writing to that act; or
(b) that act is done in the course of, or in connexion with, mining operations authorized by a law of the Nonhem Territory or by the Atomic Energy Act 1953- 1975 or any other Act authorizing mining for minerals and the Minister has authorized, in writing, the doing of that Act.
(7) A Land Council may agree with an applicant for a consent referred to in paragraph (6)(a) for the giving of that consent by the Land Council in consideration of the payment to the Land Council by the applicant of an amount specified in the agreement.
(8) The Minister shall not grant an authorization under paragraph (6)(b) unless he is satisfied that the applicant for the authorization had sought the consent of the relevant Land Council to the doing of the act to which the proposed authorization relates and that consent has been refused or has not, within 60 days after application for it was made, been granted, and, in deciding whether to grant or refuse such an authorization, he shall have regard to -
(a) the extent of the hardship that the proposed act would cause to the traditional Aboriginal owners of the land concerned if the authorization was granted;
(b) the extent of the loss to persons interested in the mining operations concerned if the authorization were not granted; and
(c) the extent to which the national interest would be affected by granting or refusing to grant the authorization.
42 Section 2, except for s 70 which commenced on 1 February 1979.
43 H Reps Deb 1976, Vol 102, 2780-2781 (17 November 1976).
44 H Reps Deb 1976, Vol 102, 2782-2789, 3077 (17 November 1976); Sen Deb 1976, Vol 70, 2740, 2795, 2906 (7-9 December 1976).
45 Ibid H Reps Deb 2807 (Mr Innes).
46 Ibid 3077.
47 Supra n 41, sub-ell (6) and (8).
48 Sections 10 and 12 and Sch 1 of the Land Rights Act; cf s 13.
49 See the definition of “alienated Crown land”, “Crown land”, “town” and “unalienated Crown land” in s 3(1) of the Land Rights Act, and also ss 3(6), 3A, 3B and 50(l)(a).
50 (1986) 66 ALR 299; see also the comments of Beaumont J at first instance (1984) 53 ALR 711, 724, and R v Toohey; ex parte Meneling Station Pty Ltd (1983) 158 CLR 327, 334, 362.
51 This policy is achieved by the differing definitions of “estate or interest in land” to be found in different parts of the Land Rights Act eg ss 3(2), ll(l)(d), 19, 66, 67A, 70(2) and 71(2), see Attorney General (NT) v Kearney (1990) 94 ALR 488, 493. Further, the right of the Crown or an Authority to continue to occupy or use Aboriginal land is provided for in s 14, subject to making payments (ss 15-17) where this is not for a “community purpose”: see Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 91 ALR 125. Missions which occupy land with the licence or permission of the Crown, may by s 18 continue that occupation when land becomes Aboriginal land, subject to a Land Council terminating the occupation or use or the Land Trust issuing a lease. There are special provisions relating to the Alligator Rivers Region: ss 12A, 12B, 12C, 18A, 18B, !SC, and to the issue of leases on Aboriginal land in compliance with Commonwealth obligations: s 20.
52 (1982) 18 NTR 13, 15-16.
53 Eg R v Kearney; ex parte Northern Land Council (1984) 158 CLR 365, 387, 392- 393; Report on Warumungu Land Claim, supra n 15, Chs 43, 47.
54 Eg s 19 and Pan IV of the Land Rights Act; cf s 3(4).
55 In Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 90 ALR 59 it was held that the limitation on creation of estates and interests under s 67A of the Land Rights Act existed in any event prior to enactment of the section, by implication.
56 Section 1 5AA of the Acts Interpretation Act 1901 (Cth) provides:
(1) In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.
57 R v Toohey; ex parte Meneling Station (1983) 158 CLR 327, 349.
58 R v Kearney; ex parte Northern Land Council (1983) 158 CLR 365, 376.
59 R v Kearney; ex parte Jurlarna (1983) 158 CLR 426, 433.
60 R v Kearney; ex parte Northern Land Council (1983) 158 CLR 365, 383.
61 Northern Territory Self Government Regulations 4(5)(c). See also Regs 4(5)(g) and (h).
62 Land Rights Act s 38; see also s 3A.
63 Repon, supra n 33.
64 Id.
65 Aboriginal Sacred Sites Act 1978 (NT) s 13.
66 Ibid ss 24, 25.
67 Ibid ss 26-27.
68 Ibid s 28(1)(e).
69 Request to the Administrator of the Nonhem Territory to declare Marla Marla/Kanttaji (Mount Samuel) as a sacred site (12 October 1988).
70 Ibid s 3.
71 Ibid s 31(1).
72 Ibid s 31(3).
73 Ibid s 31(4).
74 Ibid s 31(5).
75 Ibid s 31A.
76 (1986) 65 ALR 247.
77 Ibid 265-266.
78 Supra n 76.
79 These issues are discussed by Maurice Jin his Warumungu Decision, su1pra n 19, 8- 13.
80 Ibid 85-86.
81 For a general discussion see G Neate, , Aboriginal Land Rights Law in the Northern Territory (1989) Vol 1, Ch 8.Google Scholar
82 (1979) AC 440.
83 (1913) AC 417, 438 per Lord Haldane LC.
84 Australian Law Reform Commission Report No 31: The Recognition of Aboriginal Customary Laws (1986).
85 Northern Territory Supreme Court, 30 May 1981, unreported decision of Forster CJ.
86 See generally G Neate, , “Legal Language Across Cultures: Finding the Traditional Aboriginal ownen of land” (1981) 12 FL Rev 187.Google Scholar
87 AI.RC Repon, supra n 84, Vol 1, 648.
88 Aboriginal Sacred Sites Authority v Maurice (1986) 65 ALR 247.
89 (1978) AC 171, 225.
90 Supra n 88, 255-256.
91 (1971) 17 FLR 141.
92 Ibid 151-158; see also Cross on Evidence (2nd ed 1979) paras 18.31-18.41.
93 Report by Mr Justice Toohey to the Minister for Aboriginal Affairs on the Aboriginal Land Rights (Northern Territory) Act 1976 and Related Matters: Seven years On (1984) para 838.
94 (1979) 142 CLR 397 per Barwick CJ, Gibbs, Mason and Aickin JJ.
95 (1943) 68 CLR 261.
96 Bank of NSW v Commonwealth,(1948) 76 CLR l, 349 per Dixon J.
97 Commonwealth v Tasmania (1983) 158 CLR 1.
98 Ibid 145.
99 Ibid 181, 247.
100 Ibid 283-284.
101 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, 273-274.
102 See s 59 of the Interpretation Act 1978 (NT) which provides :- 59. ACT TO BE CONSTRUED SUBJECT TO POWER Every Act shall be read and construed subject to the Northern Territory (Self-Government) Act 1978 and any other Act of the Commonwealth relating to the power of the Legislative Assembly to make laws in respect of particular matten, and so as not to exceed the legislative power of the Legislative Assembly, to the intent that where any Act would, but for this section, have been construed as being in excess of that power it shall nevertheless be a valid Act to the extent to which it is not in excess of that power.
103 (1904) 1 CLR 363.
104 Teori Tau v Commonwealth (1969) 119 CLR 564, 570.
105 Aboriginal Land Rights (Northern Territory) Act 1976 s 3A; Petermann Aboriginal Land Trust (Boundaries) Act 198S (Cth) s 5.
106 Report, supra n 93.
107 Ibid para 868.
108 See for example Aboriginal Law Bulletin Vol 2, No 39.
109 Northen Territory Aboriginal Sacred Sites Act 1989 (NT), s 4.
110 Ibid s 6.
111 Ibid s 45.
112 Ibid s 51.
113 Ibid s 35.
114 Ibid s 34.
115 Ibid s 33.
116 Supra text at nn 94-105.
117 Undated document “Central and Northern Land Councils Sacred Sites Position”.
118 Northern Territory Parliamentary Record, 5th Assembly, 1st session, part 1, 6293.
119 The Territory Minister may extend the period: s 20(2).
120 Ibid s 21.
121 Ibid sub-s 22(1).
122 Ibid s 23.
123 Ibid s 24.
124 Ibid s 30.
125 Ibid sub-s 30(3).
126 Ibid s 31.
127 Ibid sub-s 32(1)(b).
128 Ibid sub-s 32(2).
129 Ibid sub-s 32(3).
130 Ibid sub-s 32(5).
131 The anomalous position of s 116 in Chapter V is explained in J Quick and R Garran, The Annotated Constitution of the Australian Commonwealth (1976) 952- 953. It does not apply to state laws: Grace Bible Church v Reedman (1984) 54 ALR 571; although see the curious comments of Griffith CJ to the contrary in Baxter v Commissioner of Taxation (NSW) (1907) 4 CLR 1087, 1128.
132 (1980) 146 CLR 559.
133 Ibid 593.
134 Teori Tau v Commonwealth,(1969) 119 CLR 564, 570.
135 Id
136 Id; see also Adelaide Company of Jehovah's Witnesses Inc v Commonwealth (1943) 67 CLR 116, 123, 156 and Attorney General (Vic); ex rel Black v Commonwealth, (1980) 146 CLR 559, 621, 649.
137 Church of the New Failh v Commissioner of Payroll Tax (Vic) (1982) 154 CLR 120.
138 Ibid 151.
139 Ibid 136.
140 Ibid 172-176.
141 Eg WE H Starmer, , On Aboriginal Religion(1964) 36Google Scholar.
142 Constitutional Commission, Final Report of the Constitulional Commission (1988).
143 Ibid Vol 1, para 9.805.
144 (1987) 71 ALR 578.
145 Ibid 593.
146 Id.
147 Church of the New Failh v Commissioner of Payroll Tax (Vic) (1982) 154 Cl.R 120, 136.
148 Adelaide Company of Jehovah's Witnesses Inc v Commonwealth (1943) 67 Cl.R 116, 131, sec also 149-150, 154-155, 157, 160-161.
149 99 L Ed 2d 534 (1988).
150 The First Amendment provides inter alia,: “Congress shall make no law prohibiting the free exercise [of religion]”, See generally The Constitution of the USA - Analysis and Interpretation (1987) 963-967, 989-999.
151 Rehnquist CJ, White, Stevens, O'Conner and Scalia JJ.
152 99 L Ed 2d 534, 542-552.
153 (1988) 166 CLR 186.
154 Ibid 218.
155 Id
156 Ibid 228-233.
157 Ibid 205-206.
158 Id.
159 This is in practice less likely as the activities that may take place on Aboriginal land without the consent of the traditional Aboriginal owners is strictly limited: see supra n 9.
160 (1988) 166 Cl.R. 186.
161 (1984) 158 Cl.R. 395.
162 Ibid 418; adopted by Mason J in University of Wollongong v Mohamed Naguib Fawzi Ahmed Metwally (1984) 158 Cl.R. 447, 464. For a recent discussion see the judgment of Lockhart J in Attorney General (NT) v Minister for Aboriginal Affairs (1989) 90 ALR 59, 70-71.
163 4 and 5 Will IV, c 95.
164 Williams v Attorney General (NSW) (1913) 16 CLR 404, 428, 439.
165 Cooper v Stuart (1889} 14 App Cas 286, 291. See also Mili"pum v Nabalco Pty Ltd (1971) 17 FLR 141.
166 (1979) 24 ALR 118.
167 Ibid 128.
168 Ibid 138.
169 Supra n 166.
170 (1971) 17 FLR 141.
171 Constitution s 51(31); Northern Territory (Self-Government) Act 1978 (Cth) s 5O; Australian Capital Territory (Self-Government) Act sub-s 23(1)(a).
172 (1988) 166 CLR 186.
173 (1971) 17 FLR 141.
174 174 Ibid 268.
175 Ibid 273.
176 Eg s 47 provides:
47. ACCESS TO SACRED SITES ACROSS OTIIER LAND
(1) Notwithstanding any Act or rule of law to the contrary, a person with the express approval of the custodian of a sacred site, the Authority or the Minister may, for a purpose -
(a) permitted by Aboriginal tradition;
(b) reasonably necessary for or in connection with the performance of a function or the exercising a power under this Act; or
(c) reasonably necessary for or in connection with the preparation of an application under this Act or the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 of the Commonwealth or the preparation or hearing of a claim under the Land Rights Act,
by reasonable means and by the most direct practical route between a place of public access and the sacred site (or between sacred sites), after giving reasonable notice to the owner of the land he or she proposes to cross, but subject to subsection (2), cross any land to that sacred site or between sacred sites.
(2) Where the owner of land given notice under subsection (1) requests that an alternative route across the land be taken so as not to obstruct the owner's normal activities on the land, a person to whom subsection (1) applies shall not cross the land except by that alternative route.
(3) Nothing in subsection (1) shall be taken to authorize a person to whom it applies to camp or otherwise reside on the land which under that subsection he or she may cross.
(4) A person who prevents a person from or obstructs a person exercising a right under subsection (1) is guilty of an offence.
Penalty: Where the guilty person is a natural person - $5,000 or imprisonment for 12 months.
177 Aboriginal and Torres Strait Islander Heritage Protection Act 1984 s 4. For a full discussion of the purpose and manner of enactment of this Act see G Neate: “Power, Policy, Politics and Persuasion - Protecting Aboriginal Heritage under Federal Laws” (1989) 6 EPU 214.
178 Sen Deb 1984, Vol 104, 2587 (6 June 1984).
179 Ibid 2587.
180 Ibid 2588.
181 Sub-s 10(4).
182 Section 11.
183 Section 28.
184 Section 15.
185 The High Court has since declared that the Crown in right of Westem Australia is bound by that Act: Bropho v Western Australia (1990) 93 ALR 207.
186 Section 10(1)(b)(i).
187 They were acquired upon self-government pursuant to s 70 of the Northern Territory (Self-Government) Act, see Commonwealth Government Gazelle No Sl 16, 29 June 1978.
188 Resources Assessment Commission: Terms of Reference for Kakadu Conservation Zone Inquiry (1990). The Draft Report of the Commission was released on 8 February 1991, the Final Report is due by 26 April 1991, as is the report under sub-s 10(4) of the ATSIHP Act.
189 See s 124 of Lands Acquisition Act 1989 (Cth); National Parks and Wildlife Conservation Act 1975 (Cth) ss SA, 8B and generally, the regulations made under this Act.
190 Aboriginal Areas Protection Authority, Submission to Resources Assessment Commission: Kakadu Conservation Zone Inquiry (September 1989) 5.
191 It seems clear that s 22(1)(a) of the Northern Territory Aboriginal Sacred Sites Act is inapplicable.
192 (1985) 159 CLR 70.
193 Ibid 151.
194 K Maddock, , “Aboriginal Customary Law” in P Hanks, , B Keon-Cohen, (eds), Aborigines and the Law: Essays in Memory of Elizabeth Eggleston (1984)Google Scholar.
195 Ibid 236.
196 (1985) 159 CLR 70, 151.