70Entry etc. on Aboriginal land

#### 70 Entry etc. on Aboriginal land (1) A person shall not enter or remain on Aboriginal land. Penalty: 50 penalty units. (2) Where a person, other than a Land Trust, has an estate or interest in Aboriginal land: (a) a person is entitled to enter and remain on the land for any purpose that is necessary for the use or enjoyment of that estate or interest by the owner of the estate or interest; and (b) a law of the Northern Territory shall not authorize an entry or remaining on the land of a person if his or her presence on the land would interfere with the use or enjoyment of that estate or interest by the owner of the estate or interest. (2A) In proceedings against a person for an offence against subsection (1), it is a defence if the person enters or remains on the land: (a) in performing duties as the Governor‑General or as a person appointed to administer the Government of the Commonwealth under section 4 of the Constitution; or (b) in performing duties as the Administrator, an Acting Administrator, or a Deputy Administrator, of the Northern Territory; or (c) in performing duties as a member of either House of the Parliament or as a member of the Legislative Assembly of the Northern Territory; or (d) as a candidate for election as a member of the House of Representatives for a Northern Territory electorate, as a Senator for the Northern Territory or as a member of the Legislative Assembly of the Northern Territory; or (e) in performing functions, or exercising powers, under this Act or another law of the Commonwealth or under a law of the Northern Territory; or (f) in performing functions or exercising powers as a Commonwealth or Northern Territory officer; or (g) in performing functions or exercising powers as an officer, member or employee of, or on behalf of, a local government body in the Northern Territory; or (h) in accordance with this Act or a law of the Northern Territory. > Note: A defendant bears an evidential burden in relation to the matters in subsection (2A) (see subsection 13.3(3) of the Criminal Code). (2AA) In paragraph (2A)(f): > Commonwealth or Northern Territory officer means: (a) a person who is in the service or employment of the Commonwealth, the Northern Territory or an Authority; or (b) a person who holds, or performs the duties of, an appointment, office or position under a law of the Commonwealth or the Northern Territory. (2B) In proceedings for an offence against subsection (1), it is a defence if the person enters or remains on the land in accordance with an authorisation in force under subsection 19(13) (about Land Trust authorisations). > Note: A defendant bears an evidential burden in relation to the matter in subsection (2B) (see subsection 13.3(3) of the Criminal Code). (2C) In proceedings against a person for an offence against subsection (1), it is a defence if: (a) the land (the relevant land) the person entered or remained on is part of land (the leased land) that is leased under section 19A; and (b) the person entered or remained on the relevant land for any purpose that is related to the use or enjoyment, of an estate or interest in the whole or a part of the leased land, by the owner of the estate or interest. > Note: A defendant bears an evidential burden in relation to the matter in subsection (2C) (see subsection 13.3(3) of the Criminal Code). (2D) In proceedings against a person for an offence against subsection (1), it is a defence if the person enters or remains on premises (other than a sacred site) on community land with the permission of the occupier of the premises. > Note: A defendant bears an evidential burden in relation to the matter in subsection (2D) (see subsection 13.3(3) of the Criminal Code). (2E) In subsection (2D): > community land has the meaning given by section 70A. > occupier of premises includes a person present at the premises who is in apparent control of the premises. (3) In proceedings for an offence against subsection (1), it is a defence if the person charged proves that his or her entry or remaining on the land was due to necessity. (4) Where: (a) a person has an estate or interest in land, being land that the person is entitled, under subsection (2), to enter and remain upon or being land in the vicinity of Aboriginal land; and (b) there is no practicable way of gaining access to the land in which the person has that estate or interest otherwise than by crossing Aboriginal land (not being land that is, or forms part of, land described in Schedule 1); a person is entitled, for the purpose of gaining that access so as to enable the use or enjoyment of that estate or interest by the owner of that estate or interest, to enter that Aboriginal land and to cross it by a route: (c) that is agreed upon between the owner of that estate or interest and the Land Council in the area of which that Aboriginal land is situated; or (d) if that owner and that Land Council have failed to agree—that is determined by an Arbitrator appointed by the Minister. (5) The Minister shall not appoint a person to be an Arbitrator for the purposes of paragraph (4)(d) unless the Minister is satisfied that the person is in a position to deal impartially with the matter to be arbitrated. (6) In making a determination under paragraph (4)(d), the matters that the Arbitrator shall take into account include: (a) the location of any sacred site; and (b) the location of any residential area. (7) It is the intention of the Parliament that a route that is agreed upon under subsection (4), or determined under that subsection by an Arbitrator, is not to be taken to be, and, subject to section 68, shall not become, a road over which the public has a right of way. (8) A reference in this section to an estate or interest in Aboriginal land includes a reference to: (a) a licence granted under section 19; and (b) a licence granted by the lessee of a lease granted under section 19A; and (c) a licence granted by a sublessee of a sublease of a lease referred to in paragraph (b); and (d) a licence of a kind prescribed by the regulations for the purposes of this paragraph. (9) Subsection (8) does not limit section 66.