Central Land Council

The Land is Always Alive

Seven Years On

The election of the Hawke Labor Government in March 1983 rescued the Aboriginal Land Rights Act from the Ten-Point Package, but the pressure from the anti-land rights lobby continued. In June 1983 the new Aboriginal Affairs Minister, Clyde Holding, appointed Justice John Toohey to conduct an inquiry into the Act. Justice Toohey already had five years experience of the Act – he had been appointed as the first Aboriginal Land Commissioner by the Fraser Government.

The terms of reference required Justice Toohey to report and recommend appropriate amendments: to address the needs of dispossessed Aboriginal people who can't claim living areas under the Aboriginal Land Rights Act; to resolve any administrative problems; to reduce any disadvantage that the Act might cause for Aboriginal people; to reduce any areas of conflict between the Aboriginal Land Rights Act and Northern Territory self government; and to consider the extent and type of land available for land claims.

In short he was asked to consider the issues that had been raised in the Northern Territory Government's amendments campaign. All of the major parties, including the Central and Northern Land Councils, the Northern Territory Government and the Commonwealth Government, the Australian Mining Industry Council, the Northern Territory Chamber of Mines and the Northern Territory Cattle Council, made submissions. Overall Justice Toohey recommended the strengthening and maintenance of the Act. He said there should be no cut off date for land claims, that traditional landowners should retain the right to claim Aboriginal-owned land and pastoral leases and bring repeat claims and that the Northern Territory Government should not be able to alienate land under claim. He recommended that traditional landowners be able to control exploration and mining access to land under claim and that the Act should allow traditional landowners and miners to negotiate agreements that control access at both the exploration and the mining stages. The Land Councils favoured Commonwealth legislation to protect sacred sites and provide community living areas but Justice Toohey disagreed.

He recommended that the Northern Territory Government pass legislation to allow Aboriginal people to claim living areas on pastoral leases, national parks and conservation reserves based on existing or past residence and said the Commonwealth should not override the Northern Territory sacred sites law unless it proved 'demonstrably inadequate'. Overall Justice Toohey's report strengthened the Aboriginal Land Rights Act and provided a solid defence against those who argued it was a 'social experiment' which had failed:

Given the legislative novelty of the subject matter of the Act and the need to marry complex notions of traditional Aboriginal law and culture with European institutions and administrative procedures, the Act has worked surprisingly well. But it is inevitable that after seven years cracks in the edifice have started to show. This report seeks to show how those cracks might be mended while leaving the overall structure intact. Justice Toohey, Seven Years On.