Stated purpose:
The purpose of this Act is to provide for land rights for Aboriginal persons in NSW. Further, this Act provides for the creation of Aboriginal Land Councils, and for land to be vested in those Councils.
Native title implications:
Aboriginal Land Councils
This Act places a restriction on land which can be dealt with by Aboriginal Land Councils. Land Councils can only deal with land which is the subject of native title rights and interests where a native tile determination has been made. This provision commonly results in Aboriginal Land Councils seeking declarations that native title does not exist in relation to particular land and waters. Once this has occurred, the Aboriginal Land Council is able to undertake dealings with the land.
In Lightning Ridge Local Aboriginal Land Council v Premier of New South Wales [2012] FCA 792, Justice Perram said s 42(1) of the Aboriginal Land Rights Act 1983 (NSW) should be amended to relieve the Federal Court from having to determine a ‘constant stream of non-claimant applications from local Aboriginal Land Councils’ and that it is ‘a matter which warrants attention from the New South Wales Parliament’.
Aboriginal Land Agreements
The ALRA provides for Aboriginal Land Agreements to be made between land councils and the Crown Lands Minister. July 2015 amendments to the ALRA provides that land claims cannot be made to areas subject to Aboriginal Land Agreements where the Agreement provides that no later claims will be made. These Agreements can cover the exchange, transfer or lease of land to an Aboriginal land council, undertakings not to lodge a claim or to withdraw a claim, and issues like financial compensation and joint access to and management of land.
Statutory Fund
The ALRA provided for guaranteed funding to NSW Aboriginal Land Council as compensation for land lost. Half of the money was available for land acquisition and administration, while the other half was invest in a Statutory Investment Fund to provide for the future.
Minerals
The transfer of land under the ALRA includes the transfer of the minerals within the land. No one can undertake mining on the relevant land without the consent of the land council.
Relevant provisions:
Aboriginal Land Agreements
s 36AA Aboriginal Land Agreements
(1) In this section,
"Aboriginal Land Agreement" means an agreement, in writing, between the Crown Lands Minister and one or more Aboriginal Land Councils (whether or not the agreement also includes other parties) that, in addition to any other matter that may be included in the agreement, makes provision for:
(a) the exchange, transfer or lease of land to an Aboriginal Land Council, or
(b) an undertaking by an Aboriginal Land Council not to lodge a claim, or to withdraw a claim, in relation to specified land.
(2) An Aboriginal Land Council and the Crown Lands Minister may, at any time by notice in writing, commence negotiation , in good faith and in a manner agreed between the parties, for an Aboriginal Land Agreement whether or not a claim has been made under section 36 by the Council in relation to the land that is the subject of the proposed agreement.
(3) The Aboriginal Land Council or the Crown Lands Minister may, with the approval of the other party, invite one or more other Aboriginal Land Councils, or any other person, to join the negotiations and enter into the Aboriginal Land Agreement.
(4) An Aboriginal Land Council, the Crown Lands Minister or any other party may, at any time before the making of an Aboriginal Land Agreement, withdraw from negotiation for the agreement by notice in writing to the other party or parties.
(5) Without limiting the matters that may be included in an Aboriginal Land Agreement, such an agreement may make provision for or with respect to the following:
(a) financial or other consideration,
(b) exchange, transfer or lease of land,
(c) conditions or restrictions on the use of any land to which the agreement relates,
(d) joint access to and management of land (including a lease of a type referred to in section 36A),
(e) undertakings by an Aboriginal Land Council or the Crown Lands Minister with regard to the lease, transfer, management or use of any land,
(f) the duration of the agreement,
(g) the resolution of disputes arising under the agreement.
(6) The Crown Lands Minister may enter into an Aboriginal Land Agreement whether or not a claim has been made under section 36 in relation to any lands to which the agreement relates.
(7) If a proposed Aboriginal Land Agreement provides for the transfer or lease of lands for which a Minister other than the Crown Lands Minister is responsible, the concurrence of that other Minister is required before the agreement is made.
(8) The provisions of section 36 (9)-(13), (15) and (17) apply (with necessary modifications) to the transfer of lands in accordance with an Aboriginal Land Agreement in the same way as those provisions apply to the transfer of lands under that section.
(9) An Aboriginal Land Council or the Crown Lands Minister may, at any time during the negotiation for an Aboriginal Land Agreement, notify the other party, in writing, that the agreement must not make provision with respect to specified lands.
(10) The Crown Lands Minister is, on the making of an Aboriginal Land Agreement, authorised to transfer or lease Crown lands the subject of the agreement in accordance with the agreement.
(11) If an Aboriginal Land Agreement provides for termination or transfer of an interest in land, other than an interest of the Crown, the transfer or termination may only be effected with the approval of the holder of the interest.
(12) The Registrar is to keep and maintain a register in relation to Aboriginal Land Agreements made under this section.
(13) The register required to be kept under this section is, subject to the regulations, to include such information and to be in such form as is determined by the Registrar.
(14) The provisions of the Crown Lands Act 1989 that provide for the transfer of Crown lands do not apply in respect of the transfer of land carried out in accordance with an Aboriginal Land Agreement.
(15) In this section:
"Crown Lands Minister" has the same meaning as in section 36.
"interest in land" includes:
(a) a legal or equitable interest in the land, or
(b) an easement, right, charge, power or privilege over, or in connection with, the land.
s 42 Restrictions on dealing with land subject to native title
(1) An Aboriginal Land Council must not deal with land vested in it subject to native title rights and interests under section 36 (9) or (9A) unless the land is the subject of an approved determination of native title (within the meaning of the Commonwealth Native Title Act).
(2) This section does not apply to or in respect of:
(a) the lease of land by the New South Wales Aboriginal Land Council or one or more Local Aboriginal Land Councils to the Minister administering the NPW Act under Part 4A of that Act in accordance with a condition imposed under section 36A (2), or
(b) a transfer of land to another Aboriginal Land Council, or
(c) a lease of land referred to in section 37 (3) (b).
s 45 Mineral rights and mining on Aboriginal land
(1) In this section:
(a) "mining operations" means prospecting, exploring or mining for mineral resources or other natural resources, and
(b) "uranium" has the same meaning as it has in the Mining Act 1992 .
(2) Notwithstanding any other Act, but subject to this section:
(a) any transfer of lands to an Aboriginal Land Council under section 36 includes the transfer of the mineral resources or other natural resources contained in those lands,
(b) any vesting of the title to lands in an Aboriginal Land Council under section 37 includes, subject to that section, the vesting of the title to the mineral resources or other natural resources contained in those lands, and
(c) where:
(i) an Aboriginal Land Council purchases lands under section 38, or
(ii) lands are acquired under section 39 and vested in an Aboriginal Land Council,
any mineral resources or other natural resources which were, immediately before the purchase or vesting, vested in the Crown shall, on that purchase or vesting, become vested in the Aboriginal Land Council.
(3) To the extent to which an Act provides for a person to explore for or exploit mineral resources, or other natural resources, vested in another person, the Act does not apply to or in respect of mineral resources, or other natural resources, vested in the New South Wales Aboriginal Land Council or a Local Aboriginal Land Council.
(4) Subject to this section, no person shall carry on mining operations on the lands of an Aboriginal Land Council without the consent of that Council.
(5) An Aboriginal Land Council may give a consent under subsection (4) subject to such terms and conditions, including terms or conditions with respect to payment of fees or royalties, as it thinks fit to impose.
(6) A Local Aboriginal Land Council shall not give its consent under subsection (4) unless either:
(a) the New South Wales Aboriginal Land Council, or
(b) the Court, under subsection (8),
has approved of the consent being given and of any terms and conditions proposed to be attached to the consent.
(7) Where a Local Aboriginal Land Council has submitted to the New South Wales Aboriginal Land Council a proposal to give a consent under subsection (4), and any terms and conditions proposed to be attached to the consent, and the New South Wales Aboriginal Land Council:
(a) has refused to approve of the proposed consent being given or of the proposed terms and conditions, or
(b) has not, within 1 month after the submission of the proposed consent and of the proposed terms and conditions or such longer period as the Local Aboriginal Land Council and the New South Wales Aboriginal Land Council agree to, approved of the consent being given and of the proposed terms and conditions (or those terms and conditions as altered with the consent of the Local Aboriginal Land Council),
the Local Aboriginal Land Council or the New South Wales Aboriginal Land Council may refer the proposal or the proposed terms and conditions, as the case may require, to the Court to be dealt with under subsection (8).
(8) Where a proposal to give a consent or the terms and conditions proposed to be attached to a consent are referred to the Court under subsection (7), the Court shall approve or refuse to approve of the giving of the consent or of the proposed terms and conditions, with or without alterations specified by the Court.
(9) The New South Wales Aboriginal Land Council or the Court shall not, under this section, refuse to approve of the giving of a consent or of the terms and conditions proposed to be attached to a consent except on the ground that the giving of the consent is, or those terms and conditions are, inequitable to the Local Aboriginal Land Council concerned or would be detrimental to the interests of members of other Local Aboriginal Land Councils.
(10) A consent given in contravention of this section is void.
(11) Nothing in or done under this Act operates to abridge or control the prerogative rights and powers of the Crown with respect to gold mines and silver mines or affects the Crown’s ownership of coal, petroleum and uranium.
(12) This section does not apply to or in relation to any mining operations that are or may be carried on on any lands of an Aboriginal Land Council:
(a) in respect of gold, silver, coal, petroleum or uranium, or
(b) in respect of any other mineral, pursuant to any right conferred by or under the Mining Act 1992 , the Offshore Minerals Act 1999 , or any other law, being a right in force at the time the lands were vested in that Council or a mineral claim or authority referred to in subsection (13) (b), or a renewal or extension of any such right, mineral claim or authority.
(13) Nothing in this section prevents:
(a) the renewal or extension of any right, mineral claim or authority referred to in subsection (12) (b), or
(b) the granting of an authority or mineral claim in accordance with an exclusive right conferred by the Mining Act 1992 or of a licence in accordance with an exclusive right conferred by the Offshore Minerals Act 1999,
under and subject to the provisions of the Mining Act 1992 or the Offshore Minerals Act 1999 as the case requires.