The Secretary, Home and Territories Department, has forwarded me the following minute for advice:

A request has been made to this Department by Messrs Fleming Boucaut Ashton & Hunter, Solicitors of Adelaide, acting on behalf of a local syndicate, for permission to dispatch a prospecting party, the members of which are holders of miners' rights, into an area set apart as an aboriginal reserve under the provisions of section 10 of the Aboriginals Ordinance No. 9 of 1918.

Under the above Ordinance, section 10, sub-section (1) (a), the Administrator may by notice in the Gazette declare any Crown Lands to be a reserve for aboriginals.

Section 19 provides that: Any person (not being-

1. an aboriginal; or
2. the Administrator; or
3. the Chief Protector; or
4. a Protector; or
5. a Police officer; or
6. an authorized officer)

who enters or remains on a reserve for aboriginals shall be guilty of an offence against this Ordinance, unless this action was authorized by a Protector or Police Officer, or was reasonably necessary for the protection of life or property. Section 21 (1) provides that:

Notwithstanding the provisions of any Act of the State of South Australia applying to the Northern Territory, or any Ordinance, the holder of a miner's right shall not without the written permit of a Protector, be entitled to enter, or remain, or be within the limits of any reserve.

The Aboriginals Ordinance is based on the Northern Territory Aboriginals Act No. 1024 of 1910, South Australia. Section 13 of that Act provides that: 'The Governor may, by Proclamation-(a) Declare any Crown lands to be a reserve for aboriginals'. Section 21 (1) of the Act is similar to section 21 (1) of the Ordinance quoted above and provides that:

Notwithstanding the provisions of 'The Northern Territory Mining Act, 1903' and 'The Mining on Private Property Act, 1909', or either of those Acts, or any Act amending or substituted for either of those Acts, no holders of a miner's right shall be entitled to enter, or remain, or be within the limits of any reserve for aboriginals except under the written permit of a Protector.

This seems to suggest that the holder of a miner's right was entitled to enter and remain upon any reserve but that in the case of reserves created under the Aboriginals Act it was considered necessary to limit that right to such persons who were specially authorised by a Protector.

On referring to the Northern Territory Mining Act 839 of 1903, South Australia, however, it will be seen that section 19 provides that:

Any person or company who shall be the holder of any miner's right shall,
subject to the provisions of this Act and the regulations, be entitled (except as
against His Majesty)-(1) To take possession of, mine, and occupy Crown lands
for mining purposes.

whilst section 20 (1) provides that:

Any person or company taking up and occupying Crown Lands by virtue of a
miner's right shall, subject to the provisions of this Act and the regulations, be
deemed in law to be possessed (except as against His Majesty) of such land so
taken up and occupied.

Under section 4 'Crown lands' is defined as follows: 'All lands vested in His Majesty in the Northern Territory except-

(1) Lands reserved for or dedicated to any public purpose'.

From a consideration of the above provisions of the Mining Act it would appear that the holder of a miner's right has no right whatever to enter and occupy for mining purposes any lands reserved for or dedicated to any public purpose.

In the circumstances, I shall be glad of an interpretation of section 21 of the Aboriginals Ordinance, having regard to the provisions of the Mining Act 1903, and I shall be glad to be advised whether the holder of a miner's right who has obtained the written permission of a Protector to enter or remain on any aboriginal reserve, is entitled to enter and occupy for mining purposes land within the boundaries of such reserve.

Section 21 of the Aboriginals Ordinance 1918 restricts the privileges enjoyed by the holders of miners' rights to the extent of preventing their entering upon remaining or being within the limits of a reserve declared under the Ordinance except with the written permission of a Protector.

Section 5 of the Northern Territory (Administration) Act 1910 provides that where any law of the State of South Australia continues in force in the Territory by virtue of section 7 of the Northern Territory Acceptance Act 1910, it shall subject to any Ordinance made by the Governor-General have effect in the Territory as if it were a law of the Territory. It follows, therefore, that section 19 of the Northern Territory Mining Act 1903 (South Australia) remains in force in the Territory subject to any Ordinance limiting its effect and its effect is limited by section 21 of the Ordinance above referred to.

I think where the holder of a miner's right has obtained a permit as provided by the Ordinance to enter and remain upon a reserve, he is then entitled to engage in such mining as is contemplated by the miner's right.

I invite attention to section 51 of the Ordinance. Under this section an additional permit is required where a miner desired to enter upon or remain within five chains of any place where aboriginals or female half-castes are camped.

[Vol. 19, p. 235]