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Aboriginal Land Rights (Northern Territory) Amendment Bill 2015

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2013-2014-2015

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) AMENDMENT BILL 2015

 

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by the authority of the

Minister for Indigenous Affairs, the Hon Senator Nigel Scullion)

 



 



ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) AMENDMENT BILL 2015

 

 

OUTLINE 

 

The Bill amends the Aboriginal Land Rights (Northern Territory) Act 1976 (the Land Rights Act) to allow the Executive Director of Township Leasing, on behalf of the Commonwealth, to hold a sublease of Aboriginal land.

 

The Bill provides that the Executive Director of Township Leasing may transfer a sublease of Aboriginal land to an Aboriginal and Torres Strait Islander corporation, and for that corporation to transfer that sublease back to the Executive Director of Township Leasing. Such transfers are to be in accordance with the terms and conditions of the sublease.

 

The Bill allows for the Minister to direct that funds from the Aboriginals Benefit Account be paid in relation to the acquisition and administration of the sublease by an Aboriginal and Torres Strait Islander corporation. The Bill allows for the Minister to direct that funds from the Aboriginals Benefit Account be paid in relation to the transfer back of the sublease to the Executive Director of Township Leasing.

 

The Bill also adds parcels of land in the Wickham River area and in the Simpson Desert to Schedule 1 of the Aboriginal Land Rights (Northern Territory) Act 1976 .  This will enable the parcels of land to be granted as Aboriginal land to the relevant Aboriginal Land Trusts.

 

 

FINANCIAL IMPACT STATEMENT

 

The measures in the Bill have nil or negligible financial impact.

 

 

REGULATORY IMPACT STATEMENT

 

The office of Best Practice Regulation has advised that a regulatory impact statement is not required.

 

 

STATEMENT OF COMPATABILITY WITH HUMAN RIGHTS

 

The statement of compatibility with human rights appears at the end of this explanatory memorandum.



 

 

 



ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) AMENDMENT BILL 2015

 

 

NOTES ON CLAUSES

 

Clause 1 - Short title

 

Clause 1 sets out how the new Act is to be cited, that is, as the Aboriginal Land Rights (Northern Territory) Amendment Act 2015

 

Clause 2 - Commencement

 

Clause 2 provides that sections 1 to 3 of the new Act will commence on the day the new Act receives the Royal Assent. Schedule 1 of the new Act will commence the day after the new Act receives the Royal Assent.

 

Clause 3 - Schedule(s)

 

Clause 3 provides that legislation that is specified in a Schedule is amended or repealed as set out in that Schedule.



Schedule 1 - Amendments

 

Summary

 

The Bill provides that the Executive Director of Township Leasing (Executive Director) may, on behalf of the Commonwealth, hold a sublease of some or all of a parcel of Aboriginal land in the Northern Territory. The Executive Director may transfer this sublease of Aboriginal land to an Aboriginal and Torres Strait Islander corporation to hold, and that corporation may transfer the sublease back to the Executive Director.

 

The Bill also allows for the Minister to direct that funds from the Aboriginals Benefit Account be paid in relation to the acquisition and administration of the sublease by an Aboriginal and Torres Strait Islander corporation.

 

Likewise, the Bill will allow the Minister to direct that funds from the Aboriginals Benefit Account be paid in relation to the transfer back of the sublease to the Executive Director.

 

This Bill also adds two further parcels of land to Schedule 1 of the Land Rights Act.

 

Background

 

The community of Mutitjulu is located on Aboriginal land in the Northern Territory and in 1985 was leased by the Uluru-Kata Tjuta Aboriginal Land Trust to the Director of National Parks. The current lease expires in 2084.  

 

Because of the nature of the lease to the Director of National Parks, tenure arrangements in Mutitjulu are irregular, uncertain, and inconsistent with other communities on Aboriginal land in the Northern Territory. In order to facilitate a resolution to this issue, the Bill will make provision for a sublease of Aboriginal land to be held by the Executive Director of Township Leasing.

 

This will make it possible for the Executive Director to enter and administer a sublease over Mutitjulu, if agreed. The Bill will also allow the Executive Director to transfer that sublease to an Aboriginal and Torres Strait Islander corporation.

 

The Bill will make provision for funds to be paid from the Aboriginals Benefit Account for the purpose of an Aboriginal and Torres Strait Islander corporation acquiring and administering a sublease (the sublease having been acquired from the Executive Director). The Bill makes provision for this in section 64(4A) in the same way as it does for the Executive Director.   

 

By adding further parcels of Northern Territory land to Schedule 1 to the Land Rights Act, the parcels of land in question will be able to be granted to the relevant Aboriginal Land Trusts under sections 10 and 12 of the Land Rights Act.

 

Northern Territory Portion 4208 is approximately 110,000 hectares and forms part of the Simpson Desert and is contiguous with existing Aboriginal land in Central Australia already held by two Aboriginal Land Trusts.

 

The inclusion of Northern Territory Portion 4208 in Schedule 1, accords with the comments contained in the Addendum to the April 2009 Report and Recommendations of the Aboriginal Land Commissioner in relation to the Simpson Desert Land Claim.

 

Northern Territory Portion 7236 is approximately 50,310 hectares and includes the community of Yarralin on the banks of the Wickham River.

The inclusion of Northern Territory Portion 7236 in Schedule 1 accords with settlement arrangements for the Wickham River Land Claim No. 76 agreed between the Northern Territory Government and the Northern Land Council.  



 

Explanation of the changes

 

Schedule 1 - Amendments

 

Aboriginal Land Rights (Northern Territory) Act 1976

 

Item 1 - Division 2 of Part IIA (heading)

Item 1 repeals the heading and replaces it with the heading ‘Division 2-Functions of the Executive Director etc’ to reflect the fact that this Division covers more than just the functions of the Executive Director.

Item 2 - After paragraph 20C(ad)

Item 2 inserts a new paragraph 20C(ae) to expand the functions of the Executive Director and allow the Executive Director to administer subleases acquired by the Commonwealth under the new subsection 20CB(2), inserted at Item 5 below.

Item 3 - Section 20CA (heading)

Item 3 repeals the heading and replaces it with the heading ‘20CA Executive Director to hold leases and subleases on behalf of the Commonwealth’. The specific references to community living areas and town camps have been removed, reflecting the fact that section 20CA will now extend to Aboriginal land - see Item 4 below.

Item 4 - At the end of subsection 20CA(1)

Item 4 inserts a new paragraph 20CA(1)(e) which allows the Minister to agree to the Executive Director, on behalf of the Commonwealth, entering into and administering a sublease of Aboriginal land.

Item 5 - After subsection 20CA(4)

Item 5 inserts two new subsections which seek firstly, to put beyond doubt  the ability of the proprietor of Aboriginal land (referred to in the new paragraph inserted in Item 3) to be the Director of National Parks; and secondly, to put beyond doubt that the lease referred to in the new paragraph inserted in Item 4 can be a township lease granted under section 19A.

Item 6 - At the end of Division 2 of Part IIA

Item 6 inserts a new section 20CB entitled ‘Transfer of subleases’. Subsection 20CB(1) allows the Executive Director to transfer a sublease of Aboriginal land which it holds on behalf of the Commonwealth to an Aboriginal and Torres Strait Islander corporation. The transfer is to be in accordance with the terms and conditions of the sublease.

 

Subsection 20CB(2) allows the Executive Director to acquire a sublease (by way of transfer) from an Aboriginal and Torres Strait Islander corporation, if the sublease was transferred to the corporation under subsection 20CB(1), provided the transfer is in accordance with the terms and conditions of the sublease.

Item 7 - Division 6 of Part IIA (heading)

Item 7 repeals the heading and replaces it with the heading ‘Division 6-Effect on other laws in relation to certain leases or subleases held by Executive Director’. The words ‘held by’ are generic in nature and will encompass direct grants and transfers.

Item 8 - After subsection 20S(2)

Item 8 inserts a new subsection 20S(2A) which, together with section 3C, ensures the Lands Acquisition Act 1989 does not apply to the acquisition of a sublease by the Executive Director (on behalf of the Commonwealth) in accordance with new subsection 20CB(2).   

NB: For the purposes of Item 5 above, the authorisation for:

·          the Director of National Parks to grant a sublease is found in section 358 of the Environment Protection and Biodiversity Conservation Act 1999 ;

·          a Commonwealth authority, that holds a section 19A township lease, is found in subsection 19A(16).

Item 9 - After subsection 20S(3)

Item 9 inserts a new subsection 20S(3A) which, together with section 3C, ensures the Lands Acquisition Act 1989 does not apply to the disposal of a sublease by the Executive Director (on behalf of the Commonwealth) in accordance with new subsection 20CB(1).   .

Item 10 - At the end of section 20S

Item 10 inserts a new subsection 20S(6) which, together with section 3C,ensures the Lands Acquisition Act 1989 does not apply where the Executive Director (on behalf of the Commonwealth) grants a right or interest deriving from a sublease acquired under subsection 20CB(2).  .

Item 11 - Section 20SA (heading)

Item 11 repeals the heading and replaces it with the heading ‘20SA Modification of certain NT laws in relation to leases or subleases held by Executive Director ’. The words ‘held by’ are generic in nature and will encompass direct grants and transfers .

 

 

Item 12 - At the end of subsection 20SA(1)

Item 12 inserts a new paragraph 20SA(1)(c) so that section 20SA applies to the transfer of a sublease to the Commonwealth under subsection 20CB(2) as inserted above at Item 6.  Section 20SA includes provisions on the application of Northern Territory laws to the transfer of sublease. The relevant laws are laws in relation to taxes (stamp duty and or similar taxes), registration of the instrument of transfer and subdivision of land.

Item 13 - At the end of subsection 20SA(2)

Item 13 adds the words “or transfer, as the case may be” as a consequence of the amendment in Item 12.

Item 14 - Subsection 20SA(3)

Item 14 inserts the words “or the instrument of transfer, as the case may be” as a consequence of the amendment in Item 12.

Item 15 - At the end of subsection 20SA(4)

Item 15 adds the words “ of the lease or sublease, or the transfer of the sublease, as the case may be ” as a consequence of the amendment in Item 12.

Item 16 - Section 20SB (heading)

Item 16 repeals the heading and replaces it with the heading ‘20SB Modification of certain NT laws in relation to land the subject of leases or subleases held by Executive Director ’. The words ‘held by’ are generic in nature and will encompass direct grants and transfers .

Item 17 - At the end of subsection 20SB(1)

Item 17 inserts a new paragraph 20SB(1)(c) so that section 20SB applies to a sublease acquired by the Commonwealth by way of transfer under subsection 20CB(2) as inserted above at Item 6.

Item 18 - After paragraph 64(4A)(ad)

Item 18 inserts new paragraphs 64(4A)(ae) and (af) which provide for the Aboriginals Benefit Account to be used for payments in relation to the acquiring and administering of a sublease by an Aboriginal and Torres Strait Islander corporation where sublease is acquired pursuant to subsection 20CB(1).  



Likewise, new paragraphs 64(4A)(ag) and (ah) provide for the Aboriginals Benefit Account to be used for payments in relation to the acquiring and administering of a sublease by the Executive Director (on behalf of the Commonwealth) where sublease is acquired pursuant to subsection 20CB(2) .

Item 19 - Part 4 of Schedule 1 (after the item relating to Rockhampton Downs)

Item 19 amends Part 4 of Schedule 1 to the Land Rights Act by inserting a reference to an additional portion of land (Northern Territory Portion 4208 delineated on Survey Plan S.2010/156) in the Simpson Desert in the Northern Territory as land to be granted as Aboriginal land.

 

Item 20 - At the end of Part 4 of Schedule 1

Item 20 amends Part 4 of Schedule 1 to the Land Rights Act by adding a reference to an additional portion of land (Northern Territory Portion 7236 delineated on Survey Plans S.2013/177A to F) in the Wickham River area of the Northern Territory as land to be granted as Aboriginal land.

 



 

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Aboriginal Land Rights (Northern Territory) Amendment Bill 2015

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

 

The Bill amends the Aboriginal Land Rights (Northern Territory) Act 1976 (the Land Rights Act) to expand the functions of the Executive Director of Township Leasing by allowing it, on behalf of the Commonwealth, to hold a sublease of Aboriginal land.

 

The Bill will facilitate a resolution of the irregular and uncertain tenure arrangements in the community of Mutitjulu, due to its location on Aboriginal land leased to the Director of National Parks. By allowing for the Executive Director of Township Leasing to hold a sublease of Aboriginal land the Bill will support growth and investment in Mutitjulu, and provide the community with the same opportunities as other remote communities in the Northern Territory. By enabling the sublease to be transferred to an Aboriginal and Torres Strait Islander corporation the Bill empowers communities to make decisions about their land.

 

The Bill provides that the Executive Director of Township Leasing may transfer a sublease of Aboriginal land to an Aboriginal and Torres Strait Islander corporation, and for that corporation to transfer that sublease back to the Executive Director of Township Leasing. Such transfers are to be in accordance with the terms and conditions of the sublease.

 

The Bill allows for the Minister for Indigenous Affairs to direct that funds from the Aboriginals Benefit Account be paid in relation to the acquisition and administration of the sublease by an Aboriginal and Torres Strait Islander corporation. The Bill allows for the Minister to direct that funds from the Aboriginals Benefit Account be paid in relation to the transfer back of the sublease to the Executive Director of Township Leasing.

 

The Bill also adds parcels of land in the Wickham River area and in the Simpson Desert to Schedule 1 of the Aboriginal Land Rights (Northern Territory) Act 1976 .  This will enable the parcels of land to be granted as Aboriginal land to the relevant Aboriginal Land Trusts.

 

A limited exposure draft of the Bill was provided to all four Northern Territory Land Councils for consultation, and to the Northern Territory Government.

 

 

 

Human rights implications

 

This Bill engages and advances the right to self-determination (recognised in article 1 of the International Covenant on Civil and Political Rights (ICCPR).

This Bill will promote effective self-determination and decision-making by relevant Aboriginal people over matters that materially affect them, such as land development, land use and leasing.

 

The long title of the Aboriginal Land Rights (Northern Territory) Act 1976 is ‘An Act providing for the granting of Traditional Aboriginal Land in the Northern Territory for the benefit of Aboriginals, and for other purposes’.

 

The Aboriginal Land Rights (Northern Territory) Act 1976 is a special law that confers rights and privileges upon Aboriginal Australians.  The law is intended for, the purposes of paragraph 4 of Article 1 of the International Convention on the Elimination of All forms of Racial Discrimination and the Racial Discrimination Act 1975 , to be a special measure for the advancement and protection of Aboriginal peoples.

 

Conclusion

 

This Bill is compatible with human rights.

 

 

 

 

 

 

 

Minister for Indigenous Affairs, the Hon Senator Nigel Scullion