Indigenous local governments and entry to trust areas
The purpose of this bulletin is to inform indigenous local governments of their obligations to comply with State laws when imposing restrictions on entry to trust areas.
Application and definitions
This bulletin applies to the following local governments:
- Aurukun Shire Council
- Cherbourg Aboriginal Shire Council
- Doomadgee Aboriginal Shire Council
- Hope Vale Aboriginal Shire Council
- Kowanyama Aboriginal Shire Council
- Lockhart River Aboriginal Shire Council
- Mapoon Aboriginal Shire Council
- Mornington Shire Council
- Napranum Aboriginal Shire Council
- Northern Peninsula Area Regional Council
- Palm Island Aboriginal Shire Council
- Pormpuraaw Aboriginal Shire Council
- Torres Strait Island Regional Council
- Woorabinda Aboriginal Shire Council
- Wujal Wujal Aboriginal Shire Council
- Yarrabah Aboriginal Shire Council.
In this bulletin:
- indigenous local government means any of the above local governments.
- trust area means land within the local government area of an indigenous local government that is held in trust by the indigenous local government.
- local law includes a subordinate local law.
Entry to trust areas is regulated under the Aurukun and Mornington Shire Leases Act 1978 (AMSL Act) for Aurukun and Mornington Shire Councils, and under the Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act 1984 (JLOM Act) for all other indigenous local governments. A person must not enter a trust area except in accordance with these Acts.
The AMSL and JLOM Acts authorise certain categories of person to enter, be in or live in trust areas. These categories include persons performing a function or exercising a power under an Act: see section 19(g) of the AMSL Act and section 53(1)(b) of the JLOM Act.
The AMSL and JLOM Acts further provide that indigenous local governments may make local laws authorising certain other categories of person to enter, be in or live in trust areas. A local law may specify, for a particular category of person, the parts of the trust area they are authorised to enter, and the conditions of entry with which they must comply.
Model local laws have been prepared for this purpose and are available for adoption by indigenous local governments. The Model Local Law No. 7 (Indigenous Community Land Management) 2010 and related subordinate local law template are available on the department's website.
However, an indigenous local government cannot make a local law which is inconsistent with a State law. Under section 27 of the Local Government Act 2009 (LGA), if there is any inconsistency between a local law and a State law, the State law prevails to the extent of the inconsistency. Further, the Minister may, under section 38AB of the LGA, suspend or revoke a local law (either wholly or partially) if the Minister reasonably believes that the local law is contrary to any other law.
Entry to trust areas and inconsistency with State laws
A number of instances have arisen where indigenous local governments have made local laws purporting to restrict entry to trust areas by government employees, agents and contractors.
These local laws are inconsistent with State laws, as section 19(g) of the AMSL Act and section 53(1)(b) of the JLOM Act both provide that persons performing a function or exercising a power under an Act (ie. government employees) are authorised to enter trust areas without restrictions.
In one recent instance, the Minister exercised his power under section 38AB of the LGA to partially revoke a local law made by an indigenous local government which attempted to restrict access to certain trust areas by government employees, agents and contractors.
Summary and recommendations
In summary, an indigenous local government cannot, by local law, restrict access to trust areas by government employees, agents or contractors, as those persons are expressly authorised under State law to enter trust areas without restrictions.
However, government employees are not the only persons authorised to enter trust areas without restrictions. For example, section 20 of the AMSL Act and section 54 of the JLOM Act authorise other persons, including medical personnel, members of State and Commonwealth parliaments and candidates for election, to enter and remain on trust areas temporarily for specified purposes.
Indigenous local governments should therefore exercise care when drafting their local laws to ensure that they do not restrict access to trust areas by persons who are authorised under State law to enter those areas without restrictions.
If an indigenous local government is in doubt about whether a proposed local law regulating entry to trust areas is consistent with State laws, it is recommended that they seek independent legal advice before making the local law.