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Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Bill 2007

Schedule 3 Infrastructure

   

Aboriginal Land Rights (Northern Territory) Act 1976

1  After Part IIA

Insert:

Part IIB Statutory rights over buildings or infrastructure

Division 1 Preliminary

20T   Definitions

                   In this Part:

building includes a structure or facility.

Commonwealth authority has the same meaning as in the Lands Acquisition Act 1989 .

construction area :

                     (a)  in Division 2—means the initial area, as varied in accordance with any agreement under section 20ZA; and

                     (b)  in Division 3—means the initial area, as varied in accordance with any agreement under section 20ZL.

estimated cost , in relation to works, means an estimate of cost made when all particulars of the works substantially affecting the cost have been determined.

funding body :

                     (a)  in Division 2—has the meaning given by section 20V; and

                     (b)  in Division 3—has the meaning given by section 20ZG.

infrastructure includes services.

initial area :

                     (a)  in Division 2—means an area identified in a determination under subparagraph 20U(1)(a)(ii); and

                     (b)  in Division 3—means an area identified in a determination under subparagraph 20ZF(1)(a)(ii).

Northern Territory authority means an authority established by or under a law of the Northern Territory and that is a body corporate.

services includes water, electricity, gas, sewerage, drainage and telecommunications services.

statutory rights :

                     (a)  in Division 2—has the meaning given by subsection 20W(2); and

                     (b)  in Division 3—has the meaning given by subsection 20ZH(2).

threshold amount means:

                     (a)  $50,000; or

                     (b)  if a higher amount is specified in the regulations for the purposes of this definition—that other amount.

works means:

                     (a)  the construction of one or more buildings or infrastructure; or

                     (b)  the major alteration, extension, restoration, refurbishment or fitting out of one or more buildings or infrastructure, the total estimated cost of which exceeds the threshold amount.

Division 2 Commonwealth rights

Subdivision A Application of Division

20U   Application of Division

             (1)  This Division applies if:

                     (a)  works are proposed to be carried out on an area of Aboriginal land:

                              (i)  within the meaning of paragraph (a) of the definition of Aboriginal land in subsection 3(1); and

                             (ii)  identified in a written determination of the Minister that is expressed to be made for the purposes of this subparagraph; and

                     (b)  the Land Council for the area in which the land is situated consents, in writing, to the works and gives the Minister a copy of the consent; and

Note:       See also subsection 23(3) (which deals with Land Council consultation with traditional Aboriginal owners and Aboriginal communities or groups).

                     (c)  immediately before the Land Council so consents, the initial area is not covered by a lease under section 19 or 19A; and

                     (d)  either of the following applies:

                              (i)  the works are to be wholly funded by the Commonwealth or a Commonwealth authority;

                             (ii)  the works are to be partly funded by the Commonwealth or a Commonwealth authority or both (whether or not there is to be funding from other sources) and the Minister determines, in writing, that this Division applies.

             (2)  A determination made under subparagraph (1)(a)(ii) or (d)(ii) is not a legislative instrument.

20V   Funding body

             (1)  If the works are to be wholly funded by the Commonwealth, the funding body is the Commonwealth.

             (2)  If the works are to be wholly funded by a Commonwealth authority, the funding body is the authority.

             (3)  If the works are to be partly funded by the Commonwealth or a Commonwealth authority or both (whether or not there is to be funding from other sources), the Minister must determine, in writing, whether the funding body is the Commonwealth or the authority.

             (4)  An instrument made under subsection (3) is not a legislative instrument.

Subdivision B Statutory rights

20W   Funding body has the statutory rights

             (1)  Subject to this Division, the funding body has the statutory rights in relation to the construction area.

             (2)  The statutory rights are the following rights:

                     (a)  the right to carry out the works on a part of the construction area in the same, or substantially the same, form that was proposed;

                     (b)  the right to occupy, use, maintain, repair or replace the buildings or infrastructure covered by the works;

                     (c)  the right to occupy or use any other part of the construction area;

                     (d)  the right to construct, maintain, repair or replace minor improvements on any part of the construction area;

                     (e)  the right to provide services to any part of the construction area.

             (3)  To avoid doubt, the statutory rights are exclusive rights.

20X   Transfer of statutory rights

Transfer by Commonwealth

             (1)  If the funding body is the Commonwealth, the Minister may, on behalf of the Commonwealth, transfer all of the statutory rights to the Northern Territory, a Commonwealth authority or a Northern Territory authority by written agreement.

Transfer by Commonwealth authority

             (2)  If the funding body is a Commonwealth authority, the authority may transfer all of the statutory rights to the Commonwealth, the Northern Territory, another Commonwealth authority or a Northern Territory authority by written agreement.

20Y   Rights holder may permit others to exercise the statutory rights

             (1)  If a person has the statutory rights under section 20W or 20X, the person may permit, in writing, a person or persons to exercise some or all of the statutory rights in relation to the whole or a part of the construction area.

             (2)  To avoid doubt, a person who is permitted to exercise some or all of the statutory rights does not have the statutory rights under section 20W or 20X.

             (3)  An instrument made under subsection (1) is not a legislative instrument.

20Z   Ownership of buildings or infrastructure

                   During any period when a person has the statutory rights under section 20W or 20X, the buildings or infrastructure is taken to be the property of the person.

20ZA   Variation of initial area

                   If a person has the statutory rights under section 20W or 20X, the person and the Land Council concerned may agree in writing to vary the initial area in a specified way.

20ZB   Operation of Lands Acquisition Act

                   The Commonwealth or a Commonwealth authority is authorised to acquire a permit under section 20Y.

Subdivision C Leases

20ZC   Section 19 leases

Negotiation of lease—statutory rights apply

             (1)  If a person has the statutory rights under section 20W or 20X (other than because of Subdivision B applying after its operation has been suspended under section 20ZD), the person and the Land Council concerned must negotiate in good faith for the grant of a lease under section 19 to the person of the construction area.

             (2)  Subsection (1) does not apply if a lease is granted under section 19A covering the construction area.

Negotiation of lease—statutory rights do not apply

             (3)  If the operation of Subdivision B is suspended in relation to a construction area under subsection 20ZD(2), the funding body and the Land Council concerned must negotiate in good faith for the grant of a lease under section 19 to the funding body of the construction area.

Operation of Lands Acquisition Act

             (4)  The Commonwealth or a Commonwealth authority is authorised to dispose of an interest in land covered by a lease of the kind referred to in subsection (1) or (3) in accordance with the terms and conditions of the lease.

             (5)  In subsection (4):

dispose and interest have the same meanings as in the Lands Acquisition Act 1989 .

No other section 19 leases to be granted

             (6)  During the period:

                     (a)  beginning at the time the Land Council concerned gives its consent as mentioned in paragraph 20U(1)(b); and

                     (b)  ending at the time a determination under subsection 20ZE(1) is made;

the Land Trust concerned must not grant a lease under section 19 of the construction area unless the lease is of the kind referred to in subsection (1) or (3) of this section.

20ZD   Effect of leases on statutory rights

Section 19 leases

             (1)  While there is a lease in force under section 19 of the kind referred to in subsection 20ZC(1) or (3), the operation of Subdivision B is suspended in relation to the construction area concerned.

5 year leases

             (2)  If:

                     (a)  a lease is in force under section 31 of the Northern Territory National Emergency Response Act 2007 covering a particular area of land; and

                     (b)  section 20U of this Act did not apply in relation to the whole or a part of the area immediately before the lease took effect; and

                     (c)  section 20U of this Act applies in relation to the whole or a part of the area at a time while the lease is in force;

then, from that time until the lease ends, the operation of Subdivision B of this Division is suspended in relation to the construction area concerned.

Note:          If a person has the statutory rights before a lease under section 31 of the Northern Territory National Emergency Response Act 2007 takes effect, section 34 of that Act deals with preserving those rights.

Section 19A leases

             (3)  If:

                     (a)  a lease is in force under section 19A covering the construction area; and

                     (b)  a person had the statutory rights under section 20W or 20X in relation to the construction area immediately before the lease took effect; and

                     (c)  a sublease of the construction area is granted to the person who has the statutory rights under section 20W or 20X in relation to the construction area immediately before the sublease is granted;

this Division ceases to apply in relation to the construction area concerned.

Note:          Subsection 19A(10) deals with preserving rights, titles or other interests existing before a lease under section 19A takes effect.

Subdivision D When this Division ceases to apply

20ZE   When this Division ceases to apply

             (1)  If a person has the statutory rights under section 20W or 20X, the person may, by writing, determine that the buildings or infrastructure is no longer required by the person.

             (2)  Subject to subsections (5) and (6), at the time the determination is made, this Division ceases to apply in relation to the construction area concerned.

             (3)  The determination cannot be varied or revoked.

             (4)  The person must give the Land Council concerned a copy of the determination.

             (5)  Within 30 days after receiving a copy of the determination, the Land Council may request, in writing, the person to remove some or all of the buildings.

             (6)  The person must comply with the request as soon as practicable after receiving it.

             (7)  A determination made under subsection (1) is not a legislative instrument.

Division 3 Northern Territory rights

Subdivision A Application of Division

20ZF   Application of Division

             (1)  This Division applies if:

                     (a)  works are proposed to be carried out on an area of Aboriginal land:

                              (i)  within the meaning of paragraph (a) of the definition of Aboriginal land in subsection 3(1); and

                             (ii)  identified in a written determination of the Chief Minister of the Northern Territory, or a delegate of the Chief Minister of the Northern Territory, that is expressed to be made for the purposes of this subparagraph; and

                     (b)  the Land Council for the area in which the land is situated consents, in writing, to the works and gives the Chief Minister of the Northern Territory a copy of the consent; and

Note:       See also subsection 23(3) (which deals with Land Council consultation with traditional Aboriginal owners and Aboriginal communities or groups).

                     (c)  immediately before the Land Council so consents, the initial area is not covered by a lease under section 19 or 19A; and

                     (d)  either of the following applies:

                              (i)  the works are to be wholly funded by the Northern Territory or a Northern Territory authority;

                             (ii)  the works are to be partly funded by the Northern Territory or a Northern Territory authority or both (whether or not there is to be funding from other sources) and the Minister administering this Act determines, in writing, that this Division applies.

             (2)  A determination made under subparagraph (1)(a)(ii) or (d)(ii) is not a legislative instrument.

20ZG   Funding body

             (1)  If the works are to be wholly funded by the Northern Territory, the funding body is the Northern Territory.

             (2)  If the works are to be wholly funded by a Northern Territory authority, the funding body is the authority.

             (3)  If the works are to be partly funded by the Northern Territory or a Northern Territory authority or both (whether or not there is to be funding from other sources), the Chief Minister of the Northern Territory must determine, in writing, whether the funding body is the Northern Territory or the authority.

             (4)  An instrument made under subsection (3) is not a legislative instrument.

Subdivision B Statutory rights

20ZH   Funding body has the statutory rights

             (1)  Subject to this Division, the funding body has the statutory rights in relation to the construction area.

             (2)  The statutory rights are the following rights:

                     (a)  the right to carry out the works on a part of the construction area in the same, or substantially the same, form that was proposed;

                     (b)  the right to occupy, use, maintain, repair or replace the buildings or infrastructure covered by the works;

                     (c)  the right to occupy or use any other part of the construction area;

                     (d)  the right to construct, maintain, repair or replace minor improvements on any part of the construction area;

                     (e)  the right to provide services to any part of the construction area.

             (3)  To avoid doubt, the statutory rights are exclusive rights.

20ZI   Transfer of statutory rights

Transfer by Northern Territory

             (1)  If the funding body is the Northern Territory, the Chief Minister of the Northern Territory may, on behalf of the Northern Territory, transfer all of the statutory rights to the Commonwealth, a Commonwealth authority or a Northern Territory authority by written agreement.

Transfer by Northern Territory authority

             (2)  If the funding body is a Northern Territory authority, the authority may transfer in writing all of the statutory rights to the Commonwealth, the Northern Territory, a Commonwealth authority or another Northern Territory authority by written agreement.

20ZJ   Rights holder may permit others to exercise the statutory rights

             (1)  If a person has the statutory rights under section 20ZH or 20ZI, the person may permit, in writing, a person or persons to exercise some or all of the statutory rights in relation to the whole or a part of the construction area.

             (2)  To avoid doubt, a person who is permitted to exercise some or all of the statutory rights does not have the statutory rights under section 20ZH or 20ZI.

             (3)  An instrument made under subsection (1) is not a legislative instrument.

20ZK   Ownership of buildings or infrastructure

                   During any period when a person has the statutory rights under section 20ZH or 20ZI, the buildings or infrastructure is taken to be the property of the person.

20ZL   Variation of initial area

                   If a person has the statutory rights under section 20ZH or 20ZI, the person and the Land Council concerned may agree in writing to vary the initial area in a specified way.

20ZM   Operation of Lands Acquisition Act

                   The Commonwealth or a Commonwealth authority is authorised to acquire a permit under section 20ZJ.

Subdivision C Leases

20ZN   Section 19 leases

Negotiation of lease—statutory rights apply

             (1)  If a person has the statutory rights under section 20ZH or 20ZI (other than because of Subdivision B applying after its operation has been suspended under section 20ZO), the person and the Land Council concerned must negotiate in good faith for the grant of a lease under section 19 to the person of the construction area.

             (2)  Subsection (1) does not apply if a lease is granted under section 19A covering the construction area.

Negotiation of lease—statutory rights do not apply

             (3)  If the operation of Subdivision B is suspended in relation to a construction area under subsection 20ZO(2), the funding body and the Land Council concerned must negotiate in good faith for the grant of a lease under section 19 to the funding body of the construction area.

Operation of Lands Acquisition Act

             (4)  The Commonwealth or a Commonwealth authority is authorised to dispose of an interest in land covered by a lease of the kind referred to in subsection (1) in accordance with the terms and conditions of the lease.

             (5)  In subsection (4):

dispose and interest have the same meanings as in the Lands Acquisition Act 1989 .

No other section 19 leases to be granted

             (6)  During the period:

                     (a)  beginning at the time the Land Council concerned gives its consent as mentioned in paragraph 20ZF(1)(b); and

                     (b)  ending at the time a determination under subsection 20ZP(1) is made;

the Land Trust concerned must not grant a lease under section 19 of the construction area unless the lease is of the kind referred to in subsection (1) or (3) of this section.

20ZO   Effect of leases on statutory rights

Section 19 leases

             (1)  While there is a lease in force under section 19 of the kind referred to in subsection 20ZN(1) or (3), the operation of Subdivision B is suspended in relation to the construction area concerned.

5 year leases

             (2)  If:

                     (a)  a lease is in force under section 31 of the Northern Territory National Emergency Response Act 2007 covering a particular area of land; and

                     (b)  section 20ZF of this Act did not apply in relation to the whole or a part of the area immediately before the lease took effect; and

                     (c)  section 20ZF of this Act applies in relation to the whole or a part of the area at a time while the lease is in force;

then, from that time until the lease ends, the operation of Subdivision B of this Division is suspended in relation to the construction area concerned.

Note:          If a person has the statutory rights before a lease under section 31 of the Northern Territory National Emergency Response Act 2007 takes effect, section 34 of that Act deals with preserving those rights.

Section 19A leases

             (3)  If:

                     (a)  a lease is in force under section 19A covering the construction area; and

                     (b)  a person had the statutory rights under section 20ZH or 20ZI in relation to the construction area immediately before the lease took effect; and

                     (c)  a sublease of the construction area is granted to the person who has the statutory rights under section 20ZH or 20ZI in relation to the construction area immediately before the sublease is granted;

this Division ceases to apply in relation to the construction area concerned.

Note:          Subsection 19A(10) deals with preserving rights, titles or other interests existing before a lease under section 19A takes effect.

Subdivision D When this Division ceases to apply

20ZP   When this Division ceases to apply

             (1)  If a person has the statutory rights under section 20ZH or 20ZI, the person may, by writing, determine that the buildings or infrastructure is no longer required by the person.

             (2)  Subject to subsections (5) and (6), at the time the determination is made, this Division ceases to apply in relation to the construction area concerned.

             (3)  The determination cannot be varied or revoked.

             (4)  The person must give the Land Council concerned a copy of the determination.

             (5)  Within 30 days after receiving a copy of the determination, the Land Council may request, in writing, the person to remove some or all of the buildings.

             (6)  The person must comply with the request as soon as practicable after receiving it.

             (7)  A determination made under subsection (1) is not a legislative instrument.

2  At the end of section 70

Add:

             (8)  A reference in this section to an estate or interest in Aboriginal land includes a reference to the statutory rights a person has under section 20W, 20X, 20ZH or 20ZI or a person may exercise under section 20Y or 20ZJ.

             (9)  Subsection (8) does not limit section 66.

3  At the end of section 71

Add:

             (3)  A reference in this section to an estate or interest in Aboriginal land includes a reference to the statutory rights a person has under section 20W, 20X, 20ZH or 20ZI or a person may exercise under section 20Y or 20ZJ.

             (4)  Subsection (3) does not limit section 66.