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Aboriginal Land Rights (Northern Territory) Amendment (Jabiru) Bill 2020

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2019-2020

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) AMENDMENT (JABIRU) BILL 2020

 

 

EXPLANATORY MEMORANDUM

 

 

(Circulated by authority of the Minister for Indigenous Australians,

the Honourable Ken Wyatt AM MP)



ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) AMENDMENT (JABIRU) BILL 2020

 

Objective

1.       The Aboriginal Land Rights (Northern Territory) Amendment (Jabiru) Bill 2020 (Bill) will facilitate the grant of a section 19A township lease and the transfer of ownership of the Jabiru Township land to the traditional owners, the Mirarr people.

 

2.       The Bill will amend the Aboriginal Land Rights (Northern Territory) Act 1976 (Land Rights Act) to:

 

a.        Make the Jabiru township lease consistent with other section 19A township leases by:

 

                                                              i.       removing the requirement that the term of the township lease be 99 years to allow for a shorter term between 40 and 99 years, for example, to permit a lease that aligns with the term of the Kakadu National Park lease; and

 

                                                            ii.       removing the requirement that the initial grant of the township lease can only be to the Commonwealth. This will enable the lease to be held by either the Executive Director of Township Leasing (EDTL) on behalf of the Commonwealth and in partnership with the traditional owners or a community entity representing the Mirarr traditional owners.

 

b.       Clarify the preservation provisions to ensure a Jabiru township lease would not automatically extend the term of existing rights, titles or interests in Jabiru, such as subleases, beyond the term of the head lease from the Director of National Parks (DNP) to the Jabiru Town Development Authority (JTDA).

 

c.        Simplify the leasing provisions under the Land Rights Act by removing the section 19 Jabiru-specific leasing provisions that were included by the Aboriginal Land Rights and Other Legislation Amendment Act 2013 (Amendment Act), which are now redundant.

 

3.       The Bill will make a minor consequential amendment to paragraph 388(2)(e) of the Environment Protection and Biodiversity Conservation Act 1999 to remove the reference to an ‘Aboriginal and Torres Strait Islander corporation referred to in subsection 19(3F)’ and replace it with ‘an approved entity (within the meaning of the Aboriginal Land Rights (Northern Territory) Act 1976 ).’ This will ensure people will be able to use and develop any land in Jabiru subleased to them by the approved entity that holds the new Jabiru township lease.

 

Background

4.       Jabiru Township was established in 1981 to service the Ranger Uranium Mine. The Township is part of Kakadu National Park, on freehold land leased from the DNP to the JTDA. The mine will cease operations by January 2021 and current leasing arrangements are set to expire on 1 July 2021. Negotiations for the return of the town land to the Mirarr traditional owners and the execution of a new township lease are underway.   

 

5.       In 2013, the Amendment Act was passed to add the town of Jabiru and two adjacent portions of Northern Territory land to Schedule 1 to the Land Rights Act to enable the land to be granted as Aboriginal land to the Kakadu Aboriginal Land Trust. It provided that the land would not be granted as Aboriginal land until leaseback arrangements for the Jabiru town land and for the two adjacent non-township portions were put in place.

 

6.       The Amendment Act permitted the leaseback arrangements for Jabiru town land to be made by either a section 19 leasing model or a section 19A township lease. The section 19 model allowed the Jabiru land to be granted to the DNP, an Aboriginal and Torres Strait Islander corporation and the Northern Territory Government. In contrast, the section 19A Jabiru township lease could only be granted to the Commonwealth, through the EDTL, for a period of 99 years.

 

7.       The Bill removes relevant section 19 provisions, which are now redundant. It will make the section 19A Jabiru township leasing arrangements more consistent with the other township leases.

 

8.       In January 2019, the Australian Government announced a $216 million investment over 10 years to upgrade Kakadu National Park and support the transition of Jabiru Township to a tourism and services hub. The Bill will help fulfil this commitment. The Northern Territory Government has also invested $135.5 million in this project.

 

9.       In August 2019, the Future of Jabiru Memorandum of Understanding (MOU) was signed between the Australian Government, Northern Territory Government, Energy Resources of Australia Ltd and Gundjeihmi Aboriginal Corporation (GAC). The MOU supports the implementation of the Jabiru Masterplan released by GAC in July 2018, setting out the vision of the traditional owners for the Jabiru Township as a post-mining tourism and services hub.

 

10.   The Northern Land Council, on behalf of the Mirarr traditional owners, were consulted on the proposed amendments prior to finalisation of the Bill.

 

Financial Impact Statement

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

 

Statement of Compatibility with Human Rights

12.   The 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 .

 

13.   The Statement of Compatibility with Human Rights is provided at the end of this Explanatory Memorandum.

 

NOTES ON CLAUSES

 

Part 1 - Preliminary

Clause 1 - Short title

1.       Clause 1 says the act is to be cited as the Aboriginal Land Rights (Northern Territory) Amendment (Jabiru) Act 2020 (Act).

 

Clause 2 - Commencement

2.       Clause 2 provides that the Act will commence on the day after it receives the Royal Assent.

 

Clause 3 - Schedules

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

 

Schedule 1 - Amendments

Aboriginal Land Rights (Northern Territory) Act 1976

Item 1 - Subsection 3(1)

4.       Item 1 repeals the definitions of ‘category A Jabiru land’, ‘category B Jabiru land’ and ‘category C Jabiru land’ within subsection 3(1).

 

Item 2 - Section 3AD

5.       Item 2 repeals section 3AD, which provides for the Minister to specify, by legislative instrument, areas of the Jabiru town land as either category A, B and C Jabiru land.

 

Item 3 - Paragraph 12(1AD)(b)

6.       Item 3 repeals paragraph 12(1AD)(b) and substitutes a new paragraph that refers to subsection 12(1AH) only. This has the effect of removing references to subsections 12(1AE), (1AF) and (1AG), which are repealed by item 4 below.

 

Item 4 - Subsections 12(1AE), (1AF) and (1AG)

7.       Item 4 repeals subsections 12(1AE), (1AF) and (1AG), which respectively refer to category A, B and C Jabiru land.

 

Item 5 - Paragraph 12(1AH)(a)

8.       Item 5 omits the words ‘with the Commonwealth’. Refer item 8 below.

 

Item 6 - Subsections 19(3E) to (3U)

9.       Item 6 repeals subsections 19(3E) to (3U) in order to remove Jabiru-specific leasing provisions in relation to category A, B and C Jabiru land. Refer items 1, 2, 3 4, 7 and 13.

 

Item 7 - Subsections 19(8A) and (8B)

10.   Item 7 omits references to (3F) and (3H) in subsections 19(8A) and (8B). Refer item 6.

 

Item 8 - Subsection 19A(1B)

11.   Item 8 omits the words ‘to the Commonwealth’ and thereby removes the requirement that a section 19A township lease of the Jabiru town land can only be granted to the Commonwealth. Refer items 5, 11 and 13.

 

Item 9 - Subsection 19A(1C)

12.   Item 9 repeals subsection 19A(1C) and substitutes a new provision the effect of which is to remove the requirement that the permitted term of the township lease for the Jabiru town land is 99 years. Subsection 19A(4) provides for township leases to be at least 40 years and no more 99 years.

 

Item 10 - Paragraph 19A(11B)(b)

13.   Item 10 amends paragraph 19A(11B)(b), which deals with preservation of existing rights, titles and interests by making it subject to subsection 19A(11GA). Refer item 12.

 

Item 11 - Subsection 19A(11F)

14.   Item 11 omits ‘Commonwealth’ and substitutes ‘approved entity to which the lease was granted’. Refer item 8 above.

 

Item 12 - After subsection 19A(11G)

15.   The section 19A township lease of the Jabiru town land is not, and was never intended to be, a ‘substitute’ for the existing Director-JTDA lease. The section 19A township lease is a new lease arrangement with a new landowner and is not an extension or substitute for the existing head lease. The Bill amends the ALRA to ensure that upon the grant and leaseback of the Jabiru town land, the preservation provisions do not operate to automatically extend the term of any rights, titles and interests to match the term of the new section 19A township lease less one day. This amendment will provide certainty in relation to the preservation provisions.

 

16.   Item 12 inserts, after subsection 19A(11G), a new subsection 19A(11GA) in order to confirm that any right, title or interest granted under the Director-JTDA lease (for example, subleases) expires at the earlier of:

 

a.        the time Director-JTDA lease would have ceased to exist but for subsection 12(2AB); or

 

b.       the time the subleases would have expired had the Director-JTDA lease not ceased to exist under subsection 12(2AB).

 

17.   Subsection 19A(11GB) confirms that subsection (11GA) does not prevent a right, title or interest from ceasing to have effect according to its terms before the time worked out under subsection (11GA). For example, a sublease may be surrendered or terminated in accordance with its terms.

 

Environment Protection and Biodiversity Conservation Act 1999

Item 13 - Paragraph 388(2)(e)

18.   Item 13 repeals paragraph 388(2)(e) and substitutes ‘an approved entity (within the meaning of the Aboriginal Land Rights (Northern Territory) Act 1976 ).’ Refer items 6 and 8 above.



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 (Jabiru) Bill 2020

 

1.       This Aboriginal Land Rights (Northern Territory) Amendment (Jabiru) Bill 2020 (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

2.       The Bill will facilitate the grant of a section 19A township lease and the transfer ownership of the Jabiru Township land to the traditional owners, the Mirarr people.

 

3.       The Bill will amend the Aboriginal Land Rights (Northern Territory) Act 1976 (Land Rights Act) to:

 

a.        Make the Jabiru township lease consistent with other section 19A township leases by:

 

                                                              i.       removing the requirement that the term of the township lease be 99 years to allow for a shorter term between 40 and 99 years, for example, to permit a lease that aligns with the term of the Kakadu National Park lease; and

 

                                                            ii.       removing the requirement that the initial grant of the township lease can only be to the Commonwealth. This will enable the lease to be held by either the Executive Director of Township Leasing (EDTL) on behalf of the Commonwealth and in partnership with the traditional owners or a community entity representing the Mirarr traditional owners.

 

b.       Clarify the preservation provisions to ensure a Jabiru township lease would not automatically extend the term of existing rights, titles or interests in Jabiru, such as subleases, beyond the term of the head lease from the Director of National Parks (DNP) to the Jabiru Town Development Authority (JTDA).

 

c.        Simplify the leasing provisions under the Land Rights Act by removing the section 19 Jabiru-specific leasing provisions that were included in Aboriginal Land Rights and Other Legislation Amendment Act 2013 (Amendment Act), which are now redundant.

 

4.       The Bill will make a minor consequential amendment to paragraph 388(2)(e) of the Environment Protection and Biodiversity Conservation Act 1999 to remove the reference to an ‘Aboriginal and Torres Strait Islander corporation referred to in subsection 19(3F)’ and replace it with ‘an approved entity (within the meaning of the Aboriginal Land Rights (Northern Territory) Act 1976 ).’ This will ensure people will be able to use and develop any land in Jabiru subleased to them by the approved entity that holds the new Jabiru township lease.

 

Consultation

5.       The Northern Land Council, on behalf of the traditional owners, the Mirarr people, were consulted on the proposed amendments prior to finalisation of the Bill.

 

Human rights implications

6.       The Bill engages the following human rights:

·          the right to enjoy and benefit from culture in Article 27 of the International Covenant on Civil and Political Rights (ICCPR) and Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR);

·          the right to self-determination in Article 1 of ICCPR and Article 1 of the ICESCR; and

·          the rights of equality and non-discrimination in Articles 2, 16 and 26 of the ICCPR and Article 2 of the International Convention on the Elimination of all forms of Racial Discrimination (CERD).

 

The right to enjoy and benefit from culture

7.       The right to enjoy and benefit from culture is contained in Article 27 of the ICCPR and Article 15 of the ICESCR. Article 27 of the ICCPR protects the rights of individuals belonging to minority groups within a country to enjoy their own culture. Article 15 of the ICESCR protects the right of all persons to take part in cultural life.

 

8.       The United Nations Human Rights Committee has stated that culture can manifest itself as a particular way of life associated with the use of land resources, especially in the case of Indigenous peoples, which may include such traditional activities as fishing or hunting and the right to live on lands protected by law. [1]

 

9.       The United Nations Committee on Economic, Social and Cultural Rights (UNCESCR) has stated that Indigenous peoples’ cultural values and rights associated with their ancestral lands and their relationship with nature should be regarded with respect and protected. [2] UNCESCR has also provided guidance on the communal and individual aspects of the right to culture, in particular that the reference to ‘everyone’ in Article 15 of the ICESCR may denote either individual or collective rights to culture. [3] UNCESCR has noted, in particular, that Indigenous peoples have the right to act collectively to protect their cultural heritage, traditional knowledge and cultural expressions. [4]

 

10.   Lastly, the UNCESCR has noted, in particular, that the right to take part in cultural life for Indigenous peoples may be strongly communal. It notes that Indigenous peoples have the right to act collectively to protect their cultural heritage, traditional knowledge and cultural expressions.

 

11.   The Land Rights Act, as a whole, promotes the right to enjoy and benefit from culture by recognising the Aboriginal system of land ownership by traditional owners and providing ways for them to own, control and use the resources of their land. Aboriginal land is a form of ‘inalienable’ freehold, which means it cannot be bought or sold. By restoring Aboriginal land to the traditional owners, the Land Rights Act has enabled them to maintain, and in some cases re-establish, their cultural identity. In addition, the Land Rights Act has given some security to those who have set up outstations on their ancestors’ country.

 

12.   The Land Rights Act establishes strong consultation and consent protocols that provide for traditional decision-making in respect of Aboriginal land. Aboriginal land is held communally by a land trust, and traditional owners make decisions for and manage their land with the help of their land council. The Land Rights Act defines ‘traditional Aboriginal owners’ as a ‘local descent group of Aboriginals who: (a) have common spiritual affiliations to a site on the land, being affiliations that place the group under a primary spiritual responsibility for that site and for the land; and (b) are entitled by Aboriginal tradition to forage as of right over that land.’

 

13.   A township lease is an innovative form of land tenure that allows traditional owners to maximise the economic potential of their land without compromising the land’s ownership, which remains Aboriginal owned. The Land Rights Act was amended in 2006, 2007 and 2013 to provide for section 19A township leases, which cover entire community areas on Aboriginal land and often include vacant land for future development. Township leases may be held by the EDTL on behalf of the Commonwealth and in partnership with the traditional owners or by an Aboriginal corporation that represents traditional owners and the community. A township lease is a long term and voluntary agreement.

 

14.   The model of township leasing operates to assist traditional owners to receive an economic return from their land through the economic development opportunities that arise with long-term tradeable tenure and the collection of rent. Governments, local organisations and corporations can confidently operate in the township knowing they have secure land tenure under their sublease. The secure tenure system is also an incentive for governments to invest in the community, manage government assets (such as schools, clinics and housing) and improve service delivery.

 

15.   The amendments in this Bill continue to promote the right to enjoy and benefit from culture by giving traditional owners an option to establish a township lease through the EDTL or a community entity township lease for the Jabiru Township. An EDTL lease is held in partnership with traditional owners and has a provision to transition to a community entity in the future. A community entity township lease would further provide for local decision-making by allowing the management of the township lease to be put directly in the hands of the traditional owners who are able to make decisions that uphold their cultural connection to the land.

 

The right to self-determination

16.   The right to self-determination, as set out in Article 1 of the ICCPR and Article 1 of the ICESCR, entails the entitlement of peoples to have control over their destiny and to be treated respectfully. This includes peoples being free to collectively pursue their economic, social and cultural development without outside interference. The right to self-determination is a collective right applying to groups of ‘peoples’. This is in contrast to the rights to culture which protect the rights of individuals within a group.

 

17.   The principles contained in the United Nations Declarations on the Rights of Indigenous Peoples (UNDRIP) are also relevant to the amendments in this Bill. While UNDRIP is not included in the definition of ‘human rights’ under the Human Rights (Parliamentary Scrutiny) Act 2011 , it provides some useful context on how human rights standards under international treaties apply to Indigenous peoples. UNDRIP provides for the process of ‘free, prior and informed consent’, by which Indigenous peoples are consulted about and participate in actions affecting them.

 

18.   The Land Rights Act promotes the right to self-determination by recognising the right of traditional owners to ownership of their land, thereby restoring their ability to speak for, manage and utilise Aboriginal land. The terms of township leases are negotiated by the relevant Land Council, as a representative of the traditional owners. The traditional owners are also required to provide their informed consent prior to agreeing to the final terms of a township lease. The Land Rights Act also upholds the collective nature of decision-making in relation to Aboriginal land, consistent with the right to self-determination. Once operational, EDTL held township leases have provision for a Consultative Forum comprised of traditional owners who give advice to the EDTL in relation to the township.

 

19.   At the request of traditional owners in North East Arnhem Land, the Government worked in partnership with the Gumatj people to develop a model of township leasing that would strengthen local decision-making and ensure that traditional owners are in the driver’s seat when it comes to decisions about their land. A new community entity township leasing model was established whereby a township lease could be held and administered by a community entity. In 2016, the first community entity township lease was established in the town of Gunyangara, North East Arnhem Land.

 

20.   This Bill continues to promote the right to self-determination by providing options within the township leasing model for either the EDTL or a community entity to hold the lease. The township lease would provide the traditional owners with further opportunities to decide how they would like to pursue economic benefits and community development of the Jabiru Township.

 

The rights of equality and non-discrimination

21.   The rights of equality and non-discrimination are contained in Articles 2, 3, 16 and 26 of the ICCPR, Article 2 of the ICESCR and Article 5 of the CERD. These rights recognise that all human beings have the right to be treated equally and not to be discriminated against. Of particular relevance, the CERD establishes a general prohibition on racial discrimination. The Racial Discrimination Act 1975 implements the prohibition in Australian domestic law.

 

22.   Subsection 8(1) of the Racial Discrimination Act 1975 , in accordance with Article 1(4) of the CERD, allows ‘special measures’ which are designed to ensure advancement of certain groups. Special measures are an exception to the general prohibition on racial discrimination and are designed to ‘secure to disadvantaged groups the full and equal enjoyment of human rights and fundamental freedoms.’ [5] For a measure to be characterised as a ‘special measure’ it must:

·          be for a particular group or individuals;

·          be taken for the sole purpose of securing the adequate advancement of that group or those individuals;

·          be ‘necessary’; and

·          not continue after its objective has been achieved.

 

23.   The measures in the Bill complement existing measures in the Land Rights Act. Accordingly, they have been characterised as components of a broader special measure, being the Land Rights Act in its entirety. Special measures are designed to ‘secure to disadvantaged groups the full and equal enjoyment of human rights and fundamental freedoms’ and are deemed not to be discrimination.

 

24.   The proposed measures are appropriate, adapted and proportionate and promote the development of self-management and autonomy among Aboriginal people by facilitating the execution of the Jabiru township lease, which will enable the traditional owners to make key decisions about the management of the Jabiru Township, which lies on their land.

 

Conclusion

25.   The Bill promotes human rights, particularly the right to enjoy and benefit from culture and from land, the right to self-determination and the rights of equality and non-discrimination for Indigenous peoples of Australia. To the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.




[1] United Nations Human Rights Committee, CCPR General Comment No 23: Article 27 (Rights of Minorities) , 50 th sess, UN Doc CCPR/C/21/Rev.1/Add.5 (8 April 1994) [7].

[2] UNCESCR, General Comment No 21: Right of everyone to take part in cultural life (art. 15, para. 1(a) of the Covenant on Economic, Social and Cultural Rights) , UN Doc E/C.12/GC/21 (21 December 2009) [36].

[3] Ibid [9], [37].

[4] Ibid [37].

[5] UN Committee on the Elimination of Racial Discrimination (CERD), General Recommendation no. 32, The meaning and scope of special measures in the International Convention on the Elimination of All Forms [of] Racial Discrimination , CERD/C/GC/32 (24 September 2009) [11].