Nettheim, Garth --- "Victoria Requests the Commonwealth to Legislate for Aboriginal Land Rights in Victoria" [1987] AboriginalLawB 16; (1987) 1(25) Aboriginal Law Bulletin 8

• Victoria Requests The Commonwealth To Legislate For Aboriginal Land Rights In Victoria

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Victoria Requests the Commonwealth to Legislate for Aboriginal Land Rights in Victoria

by Garth Nettheim

Commonwealth to Legislate for Aboriginal Land Rights in Victoria For several years the Victorian Government has been developing new Aboriginal land rights legislation. (See [1982] AboriginalLawB 4; 3 AboriginalLB 13, 5 AboriginalLB 12, 7 AboriginalLB 7, 12 AboriginalLB 18, 13 AboriginalLB 4, 20 AboriginalLB 3, 23 AboriginalLB 4) In 1986, however, the Legislative Council rejected the Aboriginal Land (Framlingham Forest) Bill, the Aboriginal Land (Lake Condah) Bill and the Aboriginal Cultural Heritage Bill.

The Victorian Government then asked the Commonwealth Government to legislate in similar terms, In reliance on the Commonwealth Parliament's power to make laws with respect to 'The people of any race for whom it is deemed necessary to make special laws': Constitution, s51 (xxvi).

On 26 March the Commonwealth Minister for Aboriginal Affairs, The Hon Clyde Holding, introduced in the House of Representatives two bills: The Aboriginal Land (Lake Condah and Framlingham Forest) Bill 1987 and the Aboriginal and Torres Strait Islander Heritage Protection (Amendment) Bill 1987.

The latter Bill is drafted as a new Part to be added to the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) and, in Mr Holding's words, establishes 'a revised regime for the protection of Aboriginal culture' within Victoria. The former bill is to vest inalienable freehold title to land at Lake Condah (1/2 sq km) and Framlingham Forest (11 sq km) in the relevant Aboriginal communities and to provide for the management of that land, including provisions about mining modelled on those in the Pitjantjatjara Land Rights Act 1981 (SA). An account of the content of the new legislation might best await enactment. What is of immediate interest is the use of Commonwealth legislative power to confer land rights and protect Aboriginal culture in one State.

In his second reading speech Mr Holding stated that the Victorian bills had been the subject of negotiation between the Victorian Government and the Victorian Aboriginal community for some three years. He said that the opposition in the Victorian Legislative Council had proposed amendments to the land bills to provide that title should take the form of alienable freehold and to delete provisions for Aboriginal control over mining. He added that the Opposition had opposed the cultural bill in toto. Mr Holding observed that the Bolte Victorian Government in 1970 had legislated to grant inalienable freehold title to the Lake Tyers and Framlingham communities.

The Minister went on to say that Commonwealth legislative action is 'consistent with the Hawke Government 'd stated policy of addressing the question of land rights and heritage protection on a State by State basis to ensure that the legitimate aspirations of the Aboriginal citizens of each State are fulfilled'. He continued:

In proceeding with the request of the Victorian Government to enact this legislation, the Commonwealth Government is satisfied that the principles and policies agreed between the Victorian Government and the relevant Aboriginal communities have been faithfully embodied in the Bills now before the House. It should be said, however, that the Commonwealth was not privy to the consultations which led to the agreements between the Aboriginal communities and •the Victorian Government. Therefore, this legislation should not be construed to imply that the Commonwealth necessarily endorses in every particular, the agreements arrived at and should not be regarded as a precedent for Commonwealth legislative action elsewhere in Australia. it is sufficient for the Commonwealth, having been satisfied that the principles endorsed by the Victorian Government and the Aboriginal communities are embodied in the proposed legislation, and having regard to the political situation in the Victorian Parliament, to use the due process of the Commonwealth Parliament to give legislative effect to those agreements.

Obviously, certain provisions contained in the Victorian Bills and certain administrative processes proposed by them could not be enacted by any Commonwealth Parliament. For example, the Commonwealth would not seek to compel State Ministers or officials to carry out tasks, or to bind State review tribunals to review decisions. However, with the agreement of the Victorian Government, the administration of the legislation will, as far as is possible, be delegated to a Minister of the Victorian Government. Together with such obvious changes any other alterations have been agreed with the Victorian Government.

After outlining the contents of the two bills, Mr Holding concluded by saying:

These Bills represent a unique and important step on the part of this Parliament to recognise the legitimate and traditional interests of the Aboriginal people of Victoria. Such a request, in the face of an intransigent irrational and unjustifiable stand taken by the Opposition parties in the Victorian Parliament necessitate the Commonwealth Parliament taking a stand in support of the Aboriginal people who are the subject of these Bills. There is no question that the Hawke Labor Government is prepared to take that stand.

It will be recalled that Mr Holding's proposal for national land rights legislation was abandoned in April 1986.

The Commonwealth Parliament has, on previous occasions, passed laws on Aboriginal issues applying within one State: two examples of Acts passed against Queensland Government opposition are the Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities Self-management Act, 1978 (Cth). As noted, the two new bills have been introduced at the request of the Victorian Government.

It is understood that debate will be resumed in the House of Representatives on 27 April 1987.

The other matter to note about the new bills are the preambles. The heritage bill recites:

WHEREAS it is expedient to make provision for the preservation of the Aboriginal cultural heritage in Victoria:

AND WHEREAS the Government of Victoria acknowledges:

(a) the occupation of Victoria by the Aboriginal people before the arrival of Europeans;
(b) the importance to the Aboriginal people and to the wider community of the Aboriginal culture and heritage;
(c) that the Aboriginal people of Victoria are the rightful owners of their heritage and should be given responsibility for its future control and management;
(d) the need to make provision for the preservation of objects and places of religious, historical and cultural significance to the Aboriginal people;
(e) the need to accord appropriate status to Aboriginal elders and communities in their role of protecting the continuity of the culture and heritage of the Aboriginal people;

AND WHEREAS the Government of Victoria has requested the Parliament of the Commonwealth to enact an Act in the terms of this Act:

AND WHEREAS the Commonwealth does not acknowledge the matters acknowledged by the Government of Victoria, but has agreed to the enactment of such an Act:

The preamble to the land bill is even more noteworthy. Starting with the second part of the preambular paragraph which deals with Framlingham Forest (the Lake Condah paragraph is similar), it recites:

(b) that:

(i) Framlingham Forest was originally Aboriginal land and was later part of land reserved temporarily from sale and for the use of Aboriginals under the exercise of the power vested in the Government of the State of Victoria with the advice of the Executive Council by Act No. 24 Victoria 117 and pursuant to the order of the Executive Council made on 19 September 1861;
(ii) Framlingham Forest was traditionally owned, occupied, used and enjoyed by Aboriginals in accordance with Aboriginals in accordance with Aboriginal laws, customs, traditions and practices;
(iii) The traditional Aboriginal rights of ownership, occupation, use and enjoyment concerning Framlingham Forest are deemed never to have been extinguished;
(iv) Framlingham Forest has been taken by force from the Kirrae Whurrong (Pertobe) Clan without consideration as to compensation under common law or without regard to Kirrae Whurrong Law;
(v) Aboriginals residing at Framlingham Forest and other Aboriginals are considered to be the inheritors in title from Aboriginals who owned, occupied. used and enjoyed Framlingham Forest since time immemorial;
(vi) Framlingham Forest is of spiritual. social, historical. cultural and economic importance to the Kirrae Whurrong community and to local and other Aboriginals;
(vii) it is expedient to acknowledge, recognise and assert the traditional rights of Aboriginals to Framlingham Forest;

AND WHEREAS the Government of Victoria has requested the Parliament of the Commonwealth to enact an Act in the terms of this Act:

AND WHEREAS the Commonwealth does not acknowledge the matters acknowledged by the Government of Victoria, but has agreed to the enactment of such an Act:

The Victorian Government is recited as acknowledging Aboriginal rights in terms that appear to be stronger than any other language currently on the Australian statute books. The Commonwealth's dissociation from such acknowledgment may represent not a rejection of those propositions but a concern for its position in pending litigation.