Northern Territory
The Northern Territory Validation (Native Title) Act validates past acts attributable to the Northern Territory, but does not cover future acts, write partner Tony Wassaf and lawyer, Penny Creswell. A range of other Territory and Commonwealth Acts aim to identify and protect Aboriginal heritage sites and objects; create Land Councils; regulate access to and use of Aboriginal land and land in which native title is claimed or exists.1
Last updated December 2005
Territory native title legislation
Land rights legislation
- Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)
- Aboriginal Land Act 1978 (NT)
- Cobourg Peninsula Aboriginal Land, Sanctuary and Marine Park Act 1981 (NT)
- Nitmiluk (Katherine Gorge) National Park Act 1989 (NT)
- Parks and Reserves (Framework for the Future) Act 2004 (NT)
Mining and petroleum legislation
Heritage legislation
- Northern Territory Aboriginal Sacred Sites Act 1989 (NT)
- Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)
- Heritage Conservation Act 1991
(NT)
Territory native title legislation
Validation (Native Title) Act 1994 (NT)
This Act:
(a) validates past and intermediate period acts in accordance with the terms and requirements of the Commonwealth Native Title Act 1993 (the NTA);
(b) confirms the past extinguishment of native title by certain valid or validated acts, including previous exclusive possession acts, in accordance with the NTA ; and
(c) confirms the NT's existing ownership of any natural resources; the NT's existing rights to use, control and regulate the flow of water; existing fishing access rights; and existing public access to waterways and public places.
The NT Government is liable for any compensation payable as a result of validation of past or intermediate period acts, and the past extinguishment of native title.
The Act does not contain any provisions dealing with future grants. As a result, future acts and grants of interests in land in the Northern Territory are governed by the future act provisions (including the right to negotiate procedure) in the Commonwealth Native Title Act.
Land rights legislation
The Aboriginal Land Rights Act (Northern Territory) Act 1976 (Cth) provides for the granting of inalienable freehold title to traditional Aboriginal owners of land in the Northern Territory, and the establishment and management of Land Trusts to hold the Aboriginal land for the benefit of traditional owners of the land. Amongst other things, the Act also sets out the procedures to be followed to gain access to Aboriginal land for exploration and mining, and for other purposes including recreational use.
Effect of the legislation
Following the Act coming into force, former Aboriginal reserves were granted as Aboriginal land and unalienated Crown land became available for claim. A sunset clause prevented further claims being made after 5 June 1997. The Aboriginal Land Commissioner conducts inquiries into the traditional ownership of claimed areas and reports to the Minister for Aboriginal Affairs who considers the report as well as detriment and land use issues before making a recommendation to the Governor General, who is responsible for making grants.
The legislation also establishes Land Councils which are responsible for assisting Aboriginal people to protect sacred sites, manage areas held on trust, carry out commercial activities, negotiate with persons seeking access to Aboriginal land and to make and pursue claims to available land.
Exploration and Mining
The Act also regulates exploration and mining on Aboriginal land and sets out the processes to be followed when negotiating with traditional owners for access to Aboriginal land. An exploration licence cannot be granted in relation to Aboriginal land without the consent of the relevant Land Council (for the traditional owners) and the Minister. The terms and conditions of these licences must take into account the effect entry onto land has on the lifestyle, culture and traditions of the traditional owners of the land. A mining lease cannot be granted unless an agreement has been entered into under the Act. Various other procedures apply including a 5 year moratorium on further negotiations where traditional owners have exercised a veto in relation to proposed exploration.
In November 2005, Senator Amanda Vanstone, the then Minister for Immigration and Multicultural and Indigenous Affairs announced proposed reforms to the Act including changes to the current processes for exploration and mining aimed at speeding up decision making for mining and development on Aboriginal land.
Breaches and penalties
A person who enters or remains on land in the Northern Territory that is a sacred site or is Aboriginal land, without requisite permission, is in breach of the Act and is liable to a penalty of $1,000.
These breaches do not apply to traditional owners. The Act also provides defences of no reasonable grounds for suspecting that the land was a sacred site and of necessity. However if the sacred site is on Aboriginal land the 'no reasonable grounds' defence will only apply if the person was otherwise lawfully on the Aboriginal land and had taken all reasonable steps to avoid going to any sacred sites.
Permits for entry can be granted by the Land Councils and traditional owners under the Aboriginal Land Act 1978 (NT).
Aboriginal Land Act 1978 (NT)
This Act provides for access to Aboriginal land, certain roads bordered by Aboriginal land and the seas adjacent to Aboriginal land. 'Aboriginal land' has the same meaning as in the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).
Effect of the legislation
A person may not enter onto or remain on Aboriginal land or use a road unless they have been granted a permit. A permit is issued by the appropriate Land Council for the area, or by the traditional Aboriginal owners of the area. There are a number of exceptions where members of Parliament, the Administrator and candidates for election may enter without a permit while on office business.
The Administrator may also close the seas adjoining and within two kilometres of Aboriginal land. In considering whether to close seas, the Administrator may consider, among other things, whether strangers were traditionally restricted, and also the commercial, environmental and recreational interest of the public.
Permits may be granted to enter closed seas.
Breaches and penalties
A person entering onto land without a permit faces a penalty of up to $1,000. A defence of necessity is provided by the Act.
A similar penalty is provided in relation to closed seas.
The Act provides that no hearing of a breach of the Act may be heard unless the complaint is supported by notice in writing, given by the Land Council for the area.
Cobourg Peninsula Aboriginal Land, Sanctuary and Marine Park Act 1981 (NT)
The Cobourg Peninsula Aboriginal Land, Sanctuary and Marine Park Act 1981 (the Act) acknowledges and secures the right of Aboriginals to occupy and use certain land on the Cobourg Peninsula in the Northern Territory of Australia. This land comprises of the parcel of land known as the Cobourg Peninsula, an area of about 1916 square kilometres.
Effect of legislation
The Act allows for land to vest in trustees for Aboriginals. It also provides for land to be declared a national park and creates certain provisions relating to the management of marine areas adjacent to land in the sanctuary.
Subject to the Act, Aboriginals who are members of the group are entitled to use and occupy a sanctuary or marine park at all times.
The Act creates a Board known as the Cobourg Peninsula Sanctuary and Marine Park Board. The Board is a body corporate and may create by-laws in accordance with the Act and with other laws of the Northern Territory. These by-laws may provide for the imposition of a fine of up to $5,000.
The functions of the Board include:
- to prepare plans of management for the control and management of the sanctuary and marine park;
- to protect and enforce the right of the group to use and occupy the sanctuary and marine park;
- to determine, in accordance with the plan of management, the rights of access to parts of the sanctuary and marine park of persons who are not members of the group; and
- to ensure adequate protection of sites on the sanctuary and marine park of spiritual or other importance in Aboriginal tradition.
The Act restricts operations for the exploration, recovery or processing of minerals on the sanctuary to those carried out with the approval of the Board and in accordance with a plan of management. No mining interest is to be granted in respect of the sanctuary except with the prior written approval of the Board.
Breaches and Penalties
Unauthorised persons entering restricted or designated areas of the sanctuary face a fine of up to $1,000.
Nitmiluk (Katherine Gorge) National Park Act 1989 (NT)
The Nitmiluk (Katherine Gorge) National Park Act 1989 (the Act) acknowledges and secures the right of Aboriginals who are the traditional Aboriginal owners of certain land in the Northern Territory of Australia, and certain other Aboriginals, to occupy and use that land, to establish a National Park comprising that land and to provide for the management and control of that Park and certain other land.
The Act provides for access to the Park to be restricted in accordance with the Act and the plan of management. It also provides for the creation of by-laws in relation to the Park. The by-laws may provide for the imposition of a fine of up to $5,000 or $1,000 for each day during which the offence continues.
Parks and Reserves (Framework for the Future) Act 2004 (NT)
In 2004 the Government enacted the above Act to provide a framework for negotiations between the Northern Territory and the traditional Aboriginal owners of various existing and proposed parks and reserves, including areas subject to land claims or native title claims and areas of Aboriginal land.
In relation to scheduled areas, the Act provides for the granting of
Aboriginal land under the Aboriginal Land Rights (Northern Territory) Act 1976
(Cth) and the granting of 'park freehold title' to traditional owners provided
agreement is reached regarding the long-term lease back of the land to the
Territory for use as a park pursuant to joint management arrangements. The Act
also provides for the joint management of other areas that remain Crown land.
Mining and Petroleum legislation
Mining Act 1980 (NT)
This Act governs exploration for and production of minerals.
'Mining' means all methods of extracting minerals or extractive minerals by underground, surface or open cut workings.
Mining tenements available under the Act include:
- exploration licences;
- exploration retention licences;
- mineral leases;
- mineral claims;
- extractive mineral leases; and
- extractive mineral permits.
Effect of the legislation
The Mining Act provides that all mining tenements may be made subject to specific conditions dealing with the protection of, or minimisation of disturbance of, the environment. This may include Aboriginal heritage areas and objects. Conditions may also be imposed in relation to ways of minimising the impact of the grant on registered native title rights and interests including in relation to access to the area or ways in which things authorised by the grant might be done.
The alternative right to negotiate procedures set out in the Act are not in force, having been disallowed by the Senate in 1999. The Commonwealth Native Title Act procedures continue to apply.
Breaches and penalties
Mining tenements may be cancelled if the holder contravenes or does not comply with a condition of the tenement and does not rectify it within the required time.
The penalty for breaching an environmental requirement under the Act is a fine of up to $40,000 or imprisonment for 12 months and $2,000 for each day the offence continues. The court may also order the offender to pay the costs of remedying damage to the environment.
Mining Management Act 2001 (NT)
The Mining Management Act 2001 (NT) (the Act) provides for the authorisation of mining activities, the management of mining sites and the protection of the safety and health of persons and the environment on mining sites.
Effect of the legislation
The Act requires a mining operator to obtain an authorisation to commence mining. An authorisation takes into account the results of environmental assessments and has various conditions included in it. Conditions may relate to the operational aspects of health, safety and environmental protection associated with a particular mine. Environment is defined to include the well-being of humans as well as cultural and social conditions. These protection measures may include arrangements with local indigenous groups in respect of the protection and preservation of Aboriginal heritage areas and objects.
For new mines, authorisation under the Act replaces conditions which were previously placed on leases issued under the Mining Act (1980) (NT) (see our commentary).
An authorisation includes a requirement for the operator to provide a security for the purpose of ensuring an operator's obligation to comply with the Act, or for the payment of work in relation to environmental harm or rehabilitation in relation to the mining site.
The Act also requires the operator to prepare a Mining Management Plan for the operation.
Breaches and Penalties
The general penalty for failing to take all reasonable and practical measures to ensure compliance with the Act is a fine up to $110,000 for natural persons or $550,000 for a corporation.
Petroleum Act 1984 (NT)
The Act regulates the exploration for and the production of petroleum.
'Aboriginal land' has the same meaning as in the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) above.
Mining tenements available under the Act include:
- exploration permit;
- retention licence;
- production licence; and
- access authority.
Effect of the Legislation
The Petroleum Act provides that any permit or licence granted will contain a condition requiring that the technical works programme and other activities be carried out in such a way as to cause as little disturbance as practicable to the environment. Where a permit or licence area is located wholly or partly in Aboriginal land, a licensee must inform its employees, agents and contractors working within the permit or licence area of:
- the relevant provisions of the Aboriginal Land Rights Act and other Acts relating to conduct upon Aboriginal land; and
- the principal provisions of any agreement between it and the relevant Land Council in relation to the permit or licence area relevant to the activities of its agents, contractors and employees.
The Act also contains alternative native title 'right to negotiate' procedures for prescribed petroleum acts however these procedures are not operational. For such alternative State or Territory procedures to apply there must be a determination under the s43A(1)(b) of the Native Title Act. The determination in relation to the Territory's alternative regime was disallowed in 1999 by the Senate. The Commonwealth Native Title Act future act (and right to negotiate) procedures must be followed.
Breaches and Penalties
The Minister may cancel a permit or licence where the permittee or licensee:
- has not complied with a condition of the permit or licence;
- has not complied with a provision of the Petroleum Act;
- has not complied with a direction lawfully given by the Minister;
- has not paid money due under the Act (within 3 months of the date on which it became due); and
- has been found guilty of an offence under the Petroleum Act.
The penalty for exploring or engaging in operations for the recovery of petroleum without a valid permit or licence is a fine of up to $55,000 or imprisonment for five years for an individual and $275,000 for a body corporate.
The general penalty for failing to comply with the Petroleum Act or a direction notice under the Act, where a penalty is not provided by the Act, is a fine of up to $11,000 for a natural person and $55,000 for a corporation.
A person who has been found guilty of contravening the Act and where the contravention continues after the person has been found guilty, may be liable for a fine up to $1,100 (for a natural person) or $5,500 (for a corporation) for each day that the offence continues.
Heritage legislation
Northern Territory Aboriginal Sacred Sites Act 1989 (NT)
This Act provides for the protection and preservation of Aboriginal sacred sites and objects in the Northern Territory. 'Authority' is defined under this Act to mean the Aboriginal Areas Protection Authority (AAPA).
Effect of the legislation
A person who proposes to work on land that may contain a sacred site may apply for an authority certificate. The AAPA has the power to issue a certificate when the Aboriginal custodians and the applicants have reached agreement on the use of land, or the AAPA does not feel there is a substantive risk of damage to an Aboriginal site.
Where the AAPA is satisfied that work can proceed without risk of damage or interference to a sacred site or an agreement has been reached with the Aboriginal custodians, an authority certificate may be issued stating the conditions on which the work may be carried out. This enables identification of sites of importance on mining tenements.
Breaches and penalties
Unless performing a function under the Act, no person may enter or remain on a sacred site without permission or an authority certificate. The penalty for a breach is a fine of up to $22,000 or 12 months' imprisonment for a person and a $110,000 fine for a company. Failure to comply with the provisions of an authority certificate carries the same penalty.
Carrying out work on a sacred site without a valid authority certificate is an offence with a penalty of up to $44,000 or two years' imprisonment for a person and a fine of up to $220,000 for a company. The offence of desecrating a sacred site carries the same penalties.
It is a defence if it is proved that the defendant had no reasonable grounds for suspecting the presence of a sacred site in an area. However, where land involved is Aboriginal land under land rights legislation, this defence cannot be used unless it is proved that the defendant's presence would have been lawful if land had not been a sacred site and the defendant took reasonable steps to ascertain the location of such sites.
Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)
This Act gives the Commonwealth Minister for Aboriginal Affairs wide powers to protect significant Aboriginal areas or objects which may be under threat of injury or desecration. The protection is achieved by a ministerial declaration, which can follow an application from an Aboriginal person or group.
The declaration must sufficiently describe the area or object to enable it to be identified. It must contain measures to protect and preserve the area or object from injury or desecration. It is an offence to contravene a provision of a declaration.
The legislation is not intended to exclude or limit the operation of the law of a State or Territory that is capable of operating concurrently with the Act. Under the Act, the Minister cannot make a declaration without consulting the appropriate State or Territory Minister as to whether, under State or Territory law, the area or object is effectively protected from threat, injury or desecration. As soon as practicable after making the declaration, the Minister must take reasonable steps to notify people who are likely to be substantially affected by the declaration.
Heritage Conservation Act 1991 (NT)
This Act provides a system for the identification, assessment, recording, conservation and protection of places and objects of historic, aesthetic, social or scientific value.
Effect of the legislation
A place or object that it is a heritage place or object can be made the subject of a declaration and may also be made the subject of an interim conservation order. A conservation management plan may be prepared for a heritage place. This contains a description of the work that may be carried out in that area. Conservation orders may be made over a mining tenement.
Breaches and penalties
Except as prescribed in a conservation management plan, no person may carry out work of any sort which may damage, desecrate or alter a heritage place or object, without ministerial consent. The penalty for a breach is a fine of up to $10,000 or 12 months' imprisonment for a person and $200,000 for a company. Daily default penalties apply if the offence continues. Similar provisions apply to areas covered by interim conservation orders.
Where an offence committed by a company is proved to have happened with the consent or connivance or wilful neglect of an employee, an officer, the body corporate or a person purporting to act as such, that officer or person is also guilty of an offence and liable to the same penalty for that offence.
Footnotes
- Allens Arthur Robinson acknowledges the assistance of George McKenzie of Finlaysons in preparing this document.
Native title: Mabo Commonwealth WA NSW Victoria SA Tasmania ACT
