Aboriginal Land Division

The Aboriginal Land Division provides specialist legal services to the Northern Territory Government on Native Title and Aboriginal land and related matters. It provides advice, legal representation and assistance on issues concerning, or claims under, the 'Native Title Act' (Cth) and the 'Aboriginal Land Rights (NT) Act' 1976 (Cth), also known as the ALRA.

The Division is involved in all stages of the Native Title and Aboriginal land claim process. The Division has 7 legal positions and 3 support staff positions.

Native Title Matters pursuant to the Native Title Act 1993 (Cth) (NTA)

The NTA is the principal Commonwealth response to the decision of the High Court in Mabo v Queensland (No. 2) (1992) 175 CLR 1 in which the High Court held that the common law of Australia recognizes the existence of native title.  The NTA, among other things, provides a process by which claims for native title and compensation for its extinguishment can be determined.

The Northern Territory has the largest number of native title applications in Australia.

The majority of these applications have been filed over the pastoral estate and were filed in response to “future act” notices in relation to, for example, applications for exploration licences and other mining tenements.  The applications do not, in the majority of cases, claim the whole of a particular pastoral lease in its entirety.

The Federal Court’s Territory case management approach to these matters has been to group the various applications into the following eight categories:

• Darwin matters
• Compensation Applications
• Offshore matters
• Northern towns and Related
• Pastoral estate matters
• Central Region matters
• Parkes and Reserves
• Miscellaneous matters

Currently, the resources of the Division, under the supervision of the Federal Court, are focused on resolving certain town and pastoral estate matters.

Claims under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALRA)

The ALRA provides a comprehensive scheme for the claiming and granting of freehold title to “…traditional Aboriginal land in the Northern Territory for the benefit of Aboriginals, and for other purposes”.  Land claimed under ALRA must be “unalienated Crown land” outside a town or land in which all the non-Crown interests are held for the benefit of Aboriginal people.  Once land is claimed the Northern Territory cannot deal with the land and once land becomes Aboriginal land (that is the land is granted to an Aboriginal land trust pursuant to ALRA) a special legal regime applies, including:

• “inalienable freehold” title is granted;
• The Territory cannot compulsorily acquire Aboriginal land;
• Access to Aboriginal land is regulated (via a permit system); and
• Mining on Aboriginal land is subject to a special procedure.

The Aboriginal Land Commissioner’s report for the year ended 30 June 2008, notes that since the commencement of ALRA on 26 January 1977, 249 applications have been lodged.  Of these applications:

• 80 have been finally disposed of following inquiries and reports;
• 4 are currently the subject of incomplete inquiries;
• 10 relate only to land which comprises the beds and banks of rivers and/or the inter-tidal zone and are susceptible to being finally disposed of without an inquiry in the event that regulations are made pursuant  to s.67A(12) of ALRA;
• 137 have been finally disposed of either by way of withdrawal or some other process not involving an inquiry;
• 18 are currently the subject of settlement negotiations which if successful are likely to result in the applications being finally disposed of without involving an inquiry.

Pursuant to the time limited for the lodging of applications, no new applications have been made since 5 June 1997.