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Aboriginal Land Rights (Northern Territory) Amendment (Economic Empowerment) Bill 2021

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2019-2020-2021

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) AMENDMENT (ECONOMIC EMPOWERMENT) BILL 2021

 

 

EXPLANATORY MEMORANDUM

 

 

(Circulated by authority of the Minister for Indigenous Australians,

the Honourable Ken Wyatt AM MP)

 

 

 

 

 

 

 

 

 







LIST OF ABBREVIATIONS

 

In this explanatory memorandum:

ABA means the Aboriginals Benefit Account;

ABAAC means the Aboriginals Benefit Account Advisory Committee;

AE Act means the Atomic Energy Act 1953 (Cth);

AI Act means the Acts Interpretation Act 1901 (Cth);

AMEC means the Association of Mining and Exploration Companies;

AL Act means the Aboriginal Land Act 1978 (NT);

ALC means the Anindilyakwa Land Council;

APPEA means the Australian Petroleum Production and Exploration Association;

Bill means the Aboriginal Land Rights (Northern Territory) Amendment (Economic Empowerment) Bill 2021;

CATSI Act means the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth);

CATSI corporation means an Aboriginal and Torres Strait Islander corporation registered under the CATSI Act;

CEO means Chief Executive Officer;

CLC means the Central Land Council;

CRF means the Consolidated Revenue Fund;

DISER means the Department of Industry, Science, Energy and Resources;

EDTL means the Executive Director of Township Leasing established by s 20B of the Land Rights Act;

GE Act means the Geothermal Energy Act 2009 (NT);

Land Rights Act means the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth);

LA Act means the Legislation Act 2003 (Cth);

MCA NT means the Minerals Council of Australia (NT Division);

Mineral Royalty Act means the Mineral Royalty Act 1982 (NT);

MT Act means the Mineral Titles Act 2010 (NT);

NIAA means the National Indigenous Australians Agency;

NLC means the Northern Land Council;

NT means the Northern Territory;

NTAI Corporation means the Northern Territory Aboriginal Investment Corporation;

NTMM means the Northern Territory Mining Minister;

Petroleum Act means the Petroleum Act 1984 (NT);

PGPA Act means the Public Governance, Performance and Accountability Act 2013 (Cth);

RT Act means the Remuneration Tribunal Act 1973 (Cth);

TLC means the Tiwi Land Council; and

Traditional owners means the traditional Aboriginal owners as defined by subsection 3(1) of the Land Rights Act.



ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) AMENDMENT (ECONOMIC EMPOWERMENT) BILL 2021

 

GENERAL OUTLINE

Purpose

1.       The Bill will empower Aboriginal peoples in the NT to activate the economic potential of their land for generations to come. The Bill will amend the Land Rights Act in four key areas:

 

a)       Establishing the NTAI Corporation

The Bill will establish the NTAI Corporation as a new Aboriginal-controlled corporate Commonwealth entity in the Land Rights Act to strategically invest in Aboriginal businesses and commercial projects and make other payments for the benefit of Aboriginal peoples in the NT. 

 

b)      Streamlining the exploration and mining provisions of the Land Rights Act

The Bill will reduce inefficiencies associated with exploration and mining processes on Aboriginal land in the NT by:

 

i.         improving the application and consent process for exploration licences on Aboriginal land so that:

-           applications can be amended without the need to recommence the application process;

-           Land Councils can take a more flexible approach to meetings with traditional Aboriginal owners; and

-           the Minister’s consent is not required following the Land Council providing notice of consent for the grant of an exploration licence.

 

ii.       enabling more efficient and consistent administration of exploration and mining on Aboriginal land;

 

iii.     updating terms and definitions relating to exploration and mining to align with related NT legislation.

 

c)       Improving and clarifying land administration provisions of the Land Rights Act

The Bill will improve land administration and enhance local decision-making by:

 

i.         prescribing the nomination and approval processes and the funding arrangements for approved entities that may hold a township lease under section 19A of the Land Rights Act;

 

ii.       providing that Land Councils may enter into agreements in respect of land that is the subject of a deed of grant held in escrow;

 

iii.     increasing the amount at which Land Councils must seek Ministerial approval to enter into a contract from $1 million to $5 million;

 

iv.     removing the requirement that a permit issued under section 5 of the AL Act may only be revoked by the issuer of the permit;

 

v.       increasing the penalties for unauthorised access to Aboriginal land; and

 

vi.     repealing unused powers for the delegation of Land Council functions to CATSI corporations.

 

d)      Aligning the ABA with the Commonwealth’s financial framework

The Bill will align the Land Rights Act with the Commonwealth financial framework by:

 

i.         aligning the ABA with NT legislation for the payment of mineral royalties; and

 

ii.       clarifying the purposes of the ABA.

Background

2.       The Land Rights Act provides a legislative framework for claims to, and the grant, regulation and management of, Aboriginal land in the NT, which is a form of freehold land. Aboriginal land is the strongest form of traditional land title in Australia. Approximately 50 per cent of the NT is Aboriginal land under the Land Rights Act.

 

3.       Amendments to the Land Rights Act are not common. Aboriginal stakeholders in the NT have strong voices through their Land Councils (the NLC, CLC, ALC and TLC) and the Commonwealth has committed to only amend the Land Rights Act with their support.

 

4.       Traditional owners of Aboriginal land hold decision-making powers over land access and use. The Land Councils assist traditional owners to acquire and manage their land. Land Councils must consult with traditional owners and affected Aboriginal people to ensure land use proposals are understood and consented to by the traditional owners.

 

5.       This Bill is informed by an extensive co-design process with Aboriginal Territorians through their Land Councils. In particular:

 

a)       the ABA Reform Working Group, including representatives from the Commonwealth, Land Councils and the ABAAC has been meeting since 2018 to design ways to increase Aboriginal decision-making over the ABA for the benefit of Aboriginal peoples in the NT, and to clarify the administration of Aboriginal land. These reforms have been requested by Aboriginal Territorians, through their Land Councils;

 

b)       negotiations regarding options for beneficial amendments to the exploration and mining provisions of the Act have been long-standing. A Working Group comprising representatives from the Land Councils, the NT Government and the Commonwealth (as represented by the NIAA and DISER) was established in 2015 to consider the 2013 Report on Review of Part IV of the Aboriginal Land Rights (Northern Territory) Act 1976 . In addition to the Working Group, there has been significant consultation with relevant industry peak bodies; the MCA NT, APPEA and the AMEC;

 

c)       the NIAA has consulted the EDTL in relation to the amendments contained in Schedule 3; and

 

d)      during 2019-2020, the Gove Peninsula Futures Land Tenure Working Group, comprised of representatives from the Rirratjingu Aboriginal Corporation, Gumatj Corporation, NLC, NT Government, Rio Tinto and NIAA, requested enhanced certainty for parties negotiating agreements in respect of land that is the subject of a deed of grant held in escrow.

Establishing the NTAI Corporation (Schedule 1)

6.       The Land Rights Act establishes the ABA, to receive and distribute monies equivalent to the royalties generated from mining on Aboriginal land in the NT. It is a special account for the purposes of the PGPA Act and is continued in existence under Part VI of the Land Rights Act.

 

7.       The ABA currently funds operational funding for Land Councils, payments for traditional owners and other Aboriginal people affected by mining operations, funding for township leasing, administration of the ABA, and payments for the benefit of Aboriginal people living in the NT (beneficial payments).

 

8.       The balance of the ABA has grown significantly in recent years as a result of the mining boom - almost doubling from around $634 million in 2016-17 to around $1.3 billion today. This growth is forecast to continue for the next decade.

 

9.       As the land claim era in the NT draws closer to an end, there is increasing opportunity to empower Aboriginal people to activate the economic potential of their land. This includes considering the strategic direction of the ABA and how its growing balance is best used to support Aboriginal Territorians’ economic, cultural and social prosperity for generations to come.

 

10.   Schedule 1 includes amendments to the Land Rights Act to establish a new Aboriginal-controlled corporate Commonwealth entity, the NTAI Corporation, to strategically invest in Aboriginal businesses and commercial projects and make other payments for the benefit of Aboriginal Territorians. The NTAI Corporation’s Aboriginal-led Board will use local knowledge and cultural expertise to support the economic aspirations and cultural and social well-being of their communities for generations to come.

 

11.   The NTAI Corporation delivers on the Government’s commitment to Shared Decision-Making under the National Agreement on Closing the Gap and will contribute to Targets 8 and 15 by empowering strong economic participation and supporting Aboriginal Territorians’ relationship with their land and waters. 

 

12.   The NTAI Corporation will hold substantial funding from the ABA, with an initial $500 million endowment and committed funding of $60 million per year for the first three years of its operation. The Bill also sets out a process for obtaining ongoing funding from the ABA consistent with the process Land Councils follow to seek their yearly funding. 

 

13.   The Bill provides for strong governance mechanisms that support culturally informed, best practice governance. The NTAI Corporation’s Board balances Aboriginal representation and cultural expertise, government involvement and independent financial expertise, with eight members elected by the Land Councils, two members appointed by the Commonwealth and two independent members appointed by the Board. An Investment Committee will also advise the Board on strategic investments and the strategic investment plan.

 

14.   The Bill also provides for mechanisms to manage financial risk. The NTAI Corporation will be required to seek the Minister’s approval of any single investment with a value of over $100 million and Ministerial rules will guide loans, borrowing and guarantees made by the NTAI Corporation. These measures provide appropriate safeguards for ABA funding.

 

15.   The NTAI Corporation will consult with Aboriginal people and organisations in the NT on a strategic investment plan setting out its funding and investment priorities for the forward 3-5 years. The strategic investment plan will also be tabled in Parliament.

 

16.   The NTAI Corporation provides an historic opportunity for Aboriginal Territorians to make decisions regarding beneficial payments, currently approved by the Minister for Indigenous Australians under subsection 64(4) of the Land Rights Act. The NTAI Corporation will replace the ABAAC, which currently advises the Minister for Indigenous Australians on beneficial payments and take on responsibility for administering the payments.

 

17.   The ABAAC has provided valuable advice to Government about payments to or for the benefit of Aboriginal people living in the NT for decades. Government acknowledges the service and expertise of all Aboriginal Territorians that have been part of the ABAAC since its inception.

Streamlining the exploration and mining provisions of the Land Rights Act (Schedule 2)

18.   Part IV of the Land Rights Act provides processes for the administration of exploration and mining on Aboriginal land, which operate in conjunction with relevant NT legislation including the MT Act, Petroleum Act and the GE Act. Significantly, Part IV provides for traditional owners to ‘veto’ or refuse consent to the grant of an exploration licence or mining on their land.

 

19.   The Bill will clarify and improve the efficiency of processes for exploration and mining under Part IV of the Act while retaining appropriate controls for traditional owners over exploration and mining on their land.

 

20.   Current processes for exploration and mining under the ALRA can be difficult to navigate, unnecessarily time consuming and costly for all stakeholders. The Bill will improve the application and consent process by enabling applicants to provide further information in support of their application or amend an application without having to recommence the application process. This will save the applicant significant savings in time and cost, particularly where an application is amended late in the negotiating period.

 

21.   Further time and cost savings will result from amendments to allow Land Councils to take a more flexible approach to holding meetings with traditional owners in relation to exploration licence applications.

 

22.   The Bill will repeal the requirement for the Minister to consent to the grant of an exploration licence once the Land Council has provided its consent, saving time without detracting from the quality of the consent process. Importantly, the Minister will retain a role in approving high value proposals and cancelling any exploration licences or mining interests, having given consideration to any related matters of national interest.

 

23.   The Bill will further clarify and streamline the Minister’s functions in relation to the cancellation of exploration licence or mining interest, by repealing the provision for delegation of related functions to the NTMM. Other amendments will update definitions under the ALRA to align with current NT legislation, providing greater clarity for all stakeholders.

Improving and clarifying the land administration provisions of the Land Rights Act (Schedule 3)

24.   The Land Rights Act has always provided for leasing on Aboriginal land under section 19 but leasing over whole townships was first introduced in 2006 under section 19A. A township lease is a long term lease (40 to 99 years) over a township on Aboriginal land in the NT. Township leases are designed to streamline land administration and to create secure tenure over Aboriginal land. To date, the majority of township leases have been granted to the EDTL.

 

25.   In 2015 Commonwealth policy changed to facilitate local Aboriginal people to hold township leases, which has enhanced Aboriginal decision-making in respect of Aboriginal land. Recently, two CATSI corporations were granted township leases - the Ngarrariyal Aboriginal Corporation for the Gunyangara Township Lease in 2017 and the Gundjeihmi Aboriginal Corporation Jabiru Town for the Jabiru Township Lease in 2021. However, the Land Rights Act does not currently clearly prescribe the approval processes and funding arrangements for approved entities holding township leases under section 19A of the Land Rights Act.

 

26.   The Bill will enhance Aboriginal control over land management and simplify the land administration system under the Land Rights Act. The Bill prescribes the process through which a body may be nominated and approved to hold a township lease as well as the funding arrangements for all approved entities. This will establish an appropriate governance framework and the transparency needed to ensure that all approved entities are accountable to the communities over which they hold a township lease.

 

27.   The Bill will enhance certainty for parties negotiating agreements in respect of land that is the subject of a deed of grant held in escrow. To this end, the Bill will clarify that Land Councils can enter into agreements in respect of such land. This aligns with section 11A (which relates to land under claim), and is particularly relevant to land administration in communities that are transitioning from being mining towns.

 

28.   The Bill will raise the amount at which Land Councils are required to seek the Minister’s approval to enter into a contract from $1 million to $5 million. This will give Land Councils greater autonomy, and will reduce administrative burdens on Land Councils and the Commonwealth.

 

29.   Section 74AA will be repealed to improve the functionality of the permit system that regulates access to Aboriginal land. Section 74AA provides that only the issuer of a permit may revoke that permit. This means that minority groups within traditional owner communities may issue permits and refuse to revoke them. Repealing this provision will improve consistency with the AL Act in relation to the issuing and revoking of permits for access to Aboriginal land.

 

30.   The Bill will also increase the penalty for unauthorised access to Aboriginal land from ten penalty units to 50 penalty units. This will deter people from unlawfully entering or remaining on Aboriginal land. The delay in commencement of this increase is intended to allow the NT Government to amend the AL Act to enable consistency.

 

31.   Unused provisions that allow for the delegation of Land Council functions to CATSI corporations will be repealed by the Bill. Land Councils remain best placed - in terms of resourcing capacity and institutional knowledge, including through regional networks - to exercise the functions that can presently be delegated under section 28A. Repeal of sections 28A to 28F is consistent with the objectives of this Bill to enhance Aboriginal control over land management and simplify the land administration system under the Act. Granting or transferring township leases to CATSI corporations has become the preferred option of traditional owners and their Land Councils for supporting local decision-making and control over Aboriginal land in the NT.

Aligning the ABA with the Commonwealth’s financial framework (Schedule 4)

32.   The ABA is credited and debited in accordance with the provisions of Part VI. In particular:

 

a)       amounts equal to amounts received by the Commonwealth or the NT in respect of a mining interest on Aboriginal land (subsection 63(1)) and amounts relating to mining operations on Aboriginal land carried on under an Act by or on behalf of the Commonwealth, the NT or an authority (subsection 63(4)) are to be credited to the ABA; and

 

b)       payment of 30 per cent of such amounts to the Land Council in the area of the particular mining interest or mining operation (subsection 64(3)), for distribution under subsection 35(2) of the Land Rights Act to CATSI corporations whose members are affected by the mining operations, must be debited from the ABA.

 

Crediting the ABA under subsection 63(1) of the Land Rights Act

33.   In practice, credits to the ABA under subsection 63(1) of the Land Rights Act are based on payments ‘on account of royalty’, before the actual amount of royalties is assessed by the NT. This is a consequence of the Mineral Royalty Act, which, with limited exceptions, imposes a royalty on minerals recovered in the NT.

 

34.   The Mineral Royalty Act requires a ‘royalty payer’ to make payments ‘on account of royalty’ of the amount of ‘royalty’ that the royalty payer estimates is payable for the preceding six-monthly period in the ‘royalty year’ in respect of which the royalty is payable (paragraph 40(1)(a)). At the end of each royalty year, the royalty payer must lodge a statement of royalty return (section 12) and pay ‘on account of royalty’ the balance of the royalty payable as estimated in the statement (paragraph 40(1)(b)). The approved NT government delegate assesses the royalty return (section 18) and a notice of assessment is issued (section 22). Royalties are payable on the date specified in the notice (section 39). ‘Royalty’, ‘royalty year’ and ‘royalty payer’ are defined in section 4 of the Mineral Royalty Act.



35.   The NT notifies the Commonwealth of the total payments made by royalty payers in accordance with subsection 40(1) of the Mineral Royalty Act for each six monthly period. When the Commonwealth receives notice from the NT, it credits the ABA an amount equal to the amount notified by the NT.



36.   However, the amounts notified by the NT represent the unaudited interim or provisional payments of royalty received by the NT, and do not necessarily reflect royalty due and payable under the Mineral Royalty Act for the royalty year. Royalties due and payable by a royalty payer for the royalty year is determined only after a final audited assessment has taken place after the end of the royalty year. This assessment process occurs in accordance with sections 18 to 21 of the Mineral Royalty Act, with final written notice of assessment issued to a royalty payer under section 22, and royalties payable under section 39. Amounts overpaid are refunded to the royalty payer under paragraph 45(1)(b) of the Mineral Royalty Act unless retained under paragraph 45(1)(a).



37.   Refunds may be provided under paragraph 45(1)(b) of the Mineral Royalty Act, a significant time after amounts have been credited to the ABA under subsection 63(1) of the Land Rights Act and subsequently debited under subsection 64(3) of the Land Rights Act.

Crediting the ABA under subsection 63(4) of the Land Rights Act

38.   Subsection 63(4) of the Land Rights Act provides that if mining operations are carried on under the AE Act or any other Act on Aboriginal land by, or on behalf of, the Commonwealth, the NT or an Authority, amounts determined in accordance with subsection 63(5) must be credited to the ABA. Subsection 63(5) provides that the amounts payable under subsection 63(4) are the amounts that would be payable to the Crown as royalties if the mining operations were carried on in accordance with NT law, at the rate fixed by the NT in January 1977, or at a higher rate jointly determined by the relevant Commonwealth Ministers.



39.   Credits are made to the ABA in respect of mining operations in accordance with a determination under paragraph 63(5)(b) of the Land Rights Act. In practice, amounts may be paid that are subsequently reduced. Where this occurs, the overpayment is offset against the next payment made in accordance with the determination under paragraph 63(5)(b) of the Land Rights Act.

Debiting the ABA under subsection 64(3) of the Land Rights Act

40.   Subsection 64(3) of the Land Rights Act provides that there must be debited from the ABA and paid by the Commonwealth, from time to time, to each Land Council in the area of which a mining interest referred to in subsection 63(1) of the Land Rights Act is situated, or mining operations referred to in subsection 63(4) of the Land Rights Act are being carried on, an amount equal to 30 per cent of any amounts:

 

a)       credited to the ABA in accordance with subsection 63(1) in respect of that mining interest (s 64(3)(a)); or

 

b)       credited to the ABA in accordance with subsection 63(4) in respect of those mining operations (s 64(3)(b));

as the case may be.

 

41.   Under subsection 35(2) of the Land Rights Act, a Land Council that receives money under subsection 64(3) of the Land Rights Act must pay the money within six months of receipt to any CATSI corporations whose members live in, or are the traditional owners of, the area affected by the mining operations referred to in subsection 64(3), in such proportions as the Land Council determines.

 

42.   If the ABA is not credited under subsections 63(1) or 63(4) of the Land Rights Act until actual royalties or final amounts are determined, there would be a significant delay in making payments to Land Councils under subsection 64(3) of the Land Rights Act for distribution to relevant CATSI corporations under subsection 35(2) of the Land Rights Act. This delay would have a detrimental and undesirable impact on communities, which have come to rely on the regularity of distributions. These amendments provide a clear mechanism for the ABA to be credited when amounts are paid on account of royalties, and for the making of consequent payments to Land Councils under subsection 64(3).

FINANCIAL IMPACT

43.   The NTAI Corporation amendments have the following impact on underlying cash. The other measures in the Bill have no financial impact.

 

 

Impact on underlying cash ($ millions)

 

2020-21

2021-22

2022-23

2023-24

2024-25

Total

Expenditure

0.0

+0.1

-0.4

-0.3

+1.0

+0.4

Revenue

0.0

-0.1

0.0

+3.2

+11.7

+14.7

Total

0.0

0.0

-0.4

+2.9

+12.6

+15.1

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

44.   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 .

 

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



 

NOTES ON CLAUSES

 

Clause 1 - Short title

1.       Clause 1 provides for the Act to be cited as the Aboriginal Land Rights (Northern Territory) Amendment (Economic Empowerment) Act 2021 .

 

Clause 2 - Commencement

2.       Clause 2 provides for the commencement of each provision in the Bill, as set out in the table. While most parts of the Bill commence the day after the Bill receives the Royal Assent, some measures commence on a day to be fixed by Proclamation, or 12 months from the day after the Bill receives the Royal Assent.

 

3.       The reasons for the staggered commencement dates are set out below in relation to the specific measures:

 

a)       Item 1 of the table provides that sections 1 to 3 and anything in the Act not covered elsewhere by the table commence the day the Act receives the Royal Assent.

 

b)       Item 2 of the table provides that Part 1 of Schedule 1 commences on a single day to be fixed by Proclamation. However, if the provisions have not commenced within 12 months beginning from the day of the Royal Assent, they commence on the day after the end of the 12 month period. Part 1 of Schedule 1 contains the provisions that establish the new NTAI Corporation. The commencement date to establish the NTAI Corporation is to be fixed by Proclamation to enable governance measures to be arranged prior to the NTAI Corporation coming into existence.

 

c)       Item 3 of the table provides that Part 2 of Schedule 1 commences the day after the Act receives the Royal Assent. Part 2 of Schedule 1 deals with the transitional arrangements that are necessary to stand up the NTAI Corporation. These arrangements need to commence immediately after the Royal Assent to ensure that the governance measures are arranged promptly.

 

d)      Item 4 of the table provides that Schedule 2 commences the day after the Act receives the Royal Assent.

 

e)       Item 5 of the table provides that Parts, 1, 2 and 3 of Schedule 3 commence the day after the Act receives the Royal Assent.

 

f)        Item 6 of the table provides that Part 4 of Schedule 3 commences 12 months after the Act receives the Royal Assent. These measures require a delayed commencement so as to provide sufficient time for a legislative instrument to be made that prescribes the township land and for the NT Government to amend the AL Act.

 

g)       Item 7 of the table provides that Schedule 4 commences the day after the Act receives the Royal Assent.

 

Clause 3 - Schedules

4.       Clause 3 provides that legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

 



 

Schedule 1 - NTAI Corporation

 

Part 1 - Establishment of the NTAI C orporation

 

Aboriginal Land Rights (Northern Territory) Act 1976

 

Item 1 - Subsection 3(1)

5.       This item amends subsection 3(1) of the Land Rights Act (the existing Interpretation section in the Land Rights Act) to insert a definition of ‘Finance Minister’ meaning the Minister who administers the PGPA Act. This term is used in new Part VIA (inserted into the Land Rights Act by item 6 of Part 1 of Schedule 1).

 

Item 2 - Subsection 33(3)

6.       This item amends subsection 33(3) of the Land Rights Act to repeal the existing definition of ‘Finance Minister’ that was previously only used in section 33 of the Land Rights Act. This amendment is consequential to the amendment made by item 1 so that the term ‘Finance Minister’ has a consistent meaning throughout the Act.

 

Item 3 - Subsection 63A

7.       Item 3 amends section 63A (inserted into the Land Rights Act by item 5 of Schedule 4) to clarify that the paying of amounts required or permitted to be paid under new section 64AA (see item 4 of Part 1 of Schedule 1) is also a purpose of the ABA. This aligns the provisions relating to the ABA with the Commonwealth’s financial framework (see subsection 80(1) of the PGPA Act).

 

Item 4 - After section 64A

8.       This Item inserts new section 64AA into the Land Rights Act. This new section provides for the ABA to be debited to provide funding to the NTAI Corporation.

 

9.       Subsections 64AA(1) and (2) provide that there must be debited from the ABA and paid by the Commonwealth to the NTAI Corporation a single amount of $500 million within 30 days after the first strategic investment plan for the NTAI Corporation, developed under new section 65C, is laid before a House of Parliament.

 

10.   This payment is made after the strategic investment plan is laid before the Parliament to support transparent and accountable use of the funding.

 

11.   New subsection 64AA(3) provides for $60 million to be debited from the ABA to be paid to the NTAI Corporation: (i) within 6 months after the commencement of section 64AA; (ii) on the first 1 July that occurs after the commencement of section 64AA, and (iii) on the second 1 July that occurs after that commencement. This provides funding certainty for the NTAI Corporation for a certain period of time whilst the NTAI Corporation establishes its core operations.

 

12.   New subsection 64AA(4) allows the Minister to direct amounts, from time to time, to be debited from the ABA and paid to the NTAI Corporation. The Minister must have regard to the most recent estimates of the NTAI Corporation’s expenditure to meet its administrative and capital costs, approved by the Minister under subsection 65D(1). The Minister must also have regard to the most recent approved estimates (if any have been provided) of the NTAI Corporation’s expenditure to meet the costs of making payments to or for the benefit of Aboriginal people living in the NT and investments of the kind set out in new paragraph 65BB(b). The Minister must also have regard to the sustainability of debits and payments from the ABA, which is intended to ensure the Minister considers other debits that may be needed to be drawn from the ABA pursuant to sections 64 and 64A of the Land Rights Act.

 

13.   Section 64AA(4) is intended to provide a mechanism for ongoing funding to the NTAI Corporation, whilst balancing its funding needs with the availability of funding from the ABA. Whilst the Minister must have regard to certain estimates when making directions under section 64AA(4), this does not preclude the Minister making a direction for an amount that differs from those set out in the estimates.

 

Item 5 - Section 65

14.   This item repeals section 65 of the Land Rights Act, which establishes the ABAAC. 

 

15.   With the NTAI Corporation established to make payments to or for the benefit of Aboriginal people in the NT, it will replace the ABAAC and empower Aboriginal Territorians to make the payments.

 

Item 6 - After Part VI

16.   This Item inserts new Part VI into the Land Rights Act, which will provide for the establishment of the NTAI Corporation and set out its structure, including its purpose, functions, powers and governance arrangements.

 

Part VIA - NTAI Corporation

 

Division 1 - Definitions

 

Section 65A Definitions

17.   Section 65A inserts a number of definitions for terms used in Part VIA.

 

Division 2 - NTAI Corporation

 

Subdivision A—Establishment and functions

 

Section 65B Establishment

18.   New section 65B provides for the establishment and the constitution of the NTAI Corporation.



19.   Subsection 65B(1) establishes the NTAI Corporation. Subsection 65B(2) permits the NTAI Corporation rules to specify other names by which the NTAI Corporation may be known. Aboriginal Territorians may desire to create a new name for the NTAI Corporation and this provision is intended to enable the Minister to provide another name where appropriate.  

 

20.   Subsection 65B(3) establishes the NTAI Corporation as a body corporate with a seal and provides that it can acquire, hold and dispose of real and personal property and sue and be sued.

 

21.   The note to subsection (3) directs the reader to the PGPA Act and notes that the PGPA Act applies to NTAI Corporation.

 

Section 65BA Purposes of the NTAI Corporation

22.   New section 65BA provides that the NTAI Corporation’s purposes are:

 

a)       to promote the self-management and economic self-sufficiency of Aboriginal people living in the NT; and

 

b)       to promote social and cultural wellbeing of Aboriginal people living in the NT.

 

23.   The NTAI Corporation must have regard to these purposes when making investments under paragraph 65BB(b).

 

Section 65BB NTAI Corporation’s functions

24.   New section 65BB sets out the functions of the NTAI Corporation. It provides that the NTAI Corporation’s functions will be to make payments to or for the benefit of Aboriginal people living in the NT, to make investments in accordance with its purposes (refer section 65BA), and to provide financial assistance other than payments or investments, whether on commercial terms or otherwise, to or for the benefit of Aboriginal people living in the NT. The intent of this section is to provide the NTAI Corporation with broad functions so that it can perform its functions on a commercial basis or a non-commercial basis as appropriate to the nature of the activity it is undertaking at the time to fulfil its purposes.

 

25.   Paragraph 65BB(d) provides for other functions to be prescribed by the NTAI Corporation rules. This will enable the Minister to prescribe other functions for NTAI Corporation by disallowable legislative instrument.

 

26.   Paragraph 65BB(e) provides NTAI Corporation will perform any other functions conferred on the it by the Land Rights Act or any other Commonwealth law. Paragraph 65BB(f) provides for the function to do anything incidental to, or conducive to, the performance of NTAI Corporation’s other functions.

 

27.   The note refers the reader to new sections 65A(4) and 65BH in relation to the definition of and limitations on investments, which apply to the investment function set out under paragraph 65BB(b).

 

Section 65BC General rules about performance of functions

28.   Section 65BC sets out rules about how NTAI Corporation is to perform its functions. It provides that in performing its functions, NTAI Corporation must have regard to its purposes (new section 65BA refers) and the strategic investment plan in force at the relevant time (new section 65C refers). 

 

29.   Paragraph 65BC(c) requires NTAI Corporation to act in accordance with sound business principles whenever it performs its functions on a commercial basis. This is intended to require sound business practices that may focus on financial return when performing its functions on a commercial basis, but also to enable NTAI Corporation to consider non-financial social or cultural benefits when acting non-commercially.

 

30.   Paragraphs 65BC(d) and (e) provide that NTAI Corporation must maximise the employment of Aboriginal people living in the NT and maximise the use of goods and services provided by businesses owned or controlled by Aboriginal people living in the NT when performing its functions.

 

Subdivision B—Powers

 

Section 65BD Powers

31.   Section 65BD sets out the NTAI Corporation’s powers.  The intent of this section is to ensure that the NTAI Corporation has a broad set of powers that enable it to perform its functions.

 

32.   Subsection 65BD(1) provides that the NTAI Corporation has power to do all things necessary or convenient to be done for or in connection with the performance of its functions. 

 

33.   Subsection 65BD(2) sets out specific powers that NTAI Corporation’s powers include, but are not limited to.  

 

34.   Paragraphs 65BD(2)(c) and (e) provide the NTAI Corporation can borrow money and give guarantees subject to sections 65BJ and 65BK respectively, which permit the Minister to make rules in relation to these matters with the agreement of the Finance Minister.

 

35.   New subsections 65BD(3), (4) and (5) provide definitions and clarifications on the scope and use of NTAI Corporation’s powers, including providing that NTAI Corporation’s powers may be exercised within or outside of Australia.

 

Section 65BE Payments etc. may be made subject to terms and conditions

36.   Without limiting NTAI Corporation’s power to enter into arrangements under paragraph 65BD(2)(g), section 65BE provides that the NTAI Corporation may make payments or loans, or give guarantees subject to terms and conditions determined by NTAI Corporation.

 

Section 65BF Payments repayable if conditions breached etc.

37.   Section 65BF provides a process for NTAI Corporation to recover payments or loans where it is satisfied that the recipient has failed to fulfil a term or condition (see subsection 65BE) of the payment or loan.

 

Section 65BG Investment of surplus money

38.   Subsection 65BG(1) enables the NTAI Corporation to invest its surplus funding subject to the limitations of section 65BH and subsection 65BG(4).

 

39.   Together with subsection 65BG(2), the intent of subsection 65BG(1) is to permit the NTAI Corporation to invest its surplus funds outside of the limitations of section 59 of the PGPA Act.  It is intended that the NTAI Corporation could, for example, invest its surplus funds in a diversified financial market portfolio to make better returns whilst those funds are not immediately required to perform its functions. The NTAI Corporation may choose to use the returns on its financial investments over time to perform its functions or meet its administrative or capital costs.

 

40.   Subsection 65BG(1) and paragraph 65BB(b), which provides that making investments for its Purposes is a function of the NTAI Corporation, do not limit each other. 

 

Section 65BH Investment limit

41.   Subsections 65BH(1) and (2) provide that the NTAI Corporation must not make an investment that has a value of more than $100 million (or a higher amount determined by the Minister in the NTAI Corporation rules) without the written agreement of the Minister.

 

42.   Subsection 65BH(3) confirms that, where the NTAI Corporation fails to comply with this subsection, this failure will not affect the validity of the transaction. Subsections 65BH(4) and (5) provide that the Minister may, with the written agreement of the Finance Minister, prescribe in the NTAI Corporation rules a method for calculating the value of an investment for the purposes of the investment limit.

 

43.   This investment limit is intended to provide an appropriate avenue for Government oversight of very large investments. The Minister’s ability to increase the investment limit but not decrease it recognises and safeguards the importance of empowering Aboriginal Territorians to make payments and investments through the NTAI Corporation’s Aboriginal-led Board.

 

Section 65BI Loans

44.   Subsection 65BI(1) provides that the NTAI Corporation rules may prescribe limits or conditions on the making of loans by the NTAI Corporation. Subsection 65BI(2) provides that any rules made under new subsection (1) require the written agreement of the Finance Minister.

 

45.   The ability for the Minister (with agreement of the Finance Minister) to make rules about loans provides a mechanism to manage the exposure of NTAI Corporation to credit risk.

 

Section 65BJ Borrowing

46.   Section 65BJ sets out the conditions and circumstances under which the NTAI Corporation can borrow money. 

 

47.   Subsection 65BJ(1) provides that the NTAI Corporation’s borrowing must be authorised by section 57 of the PGPA Act or subsection 65BJ(2).

 

48.   Subsection 65BJ(2) provides a rule-making power, under which the Minister can make rules (with the written agreement of the Finance Minister as required by subsection 65BJ(3)) setting out the circumstances in which the NTAI Corporation may borrow and imposing limits or conditions on borrowing.

 

49.   Subsection 65BJ(4) provides that the NTAI Corporation rules made for the purposes of new subsection (2) prevail over written authorisations or rules made under paragraphs 57(1)(b) or (c) of the PGPA Act, to the extent of any inconsistency. The note below this subsection explains for the reader the purpose of section 57 of the PGPA Act.

 

50.   Subsection 65BJ(5) provides that a wholly-owned subsidiary of the NTAI Corporation may borrow money from the NTAI Corporation, and that the borrowing need not comply with rules provided for under subsection 65BJ(2).

 

51.   Subsection 65BJ(6) provides that section 86 of the PGPA Act does not apply to borrowings authorised by new subsection (5).

 

52.   Subsection 65BJ(7) defines the term ‘borrow’ for the purposes of this part. 

 

53.   The intent of section 65BJ is to provide a mechanism for the NTAI Corporation’s borrowing powers to be tailored, whilst maintaining appropriate controls to limit financial risks.  

 

Section 65BK Guarantees

54.   Subsection 65BK(1) provides that the NTAI Corporation may guarantee repayment of a loan only if the loan is one that could have been made by the NTAI Corporation in performing its functions.

 

55.   Subsection 65BK(2) provides that a subsidiary of the NTAI Corporation must not give a guarantee. This is intended to limit financial risk.

 

56.   Subsection 65BK(3) permits the NTAI Corporation rules to set out requirements for the granting of guarantees by the NTAI Corporation.

 

57.   Subsection 65BK(5) provides that the NTAI Corporation rules made for the purposes of subsection 65BK(3) prevail over any rules made under section 61 of the PGPA Act to the extent of any inconsistency. The note explains for the reader the purpose of section 61 of the PGPA Act.

 

58.   The intention of section 65BK is to provide a mechanism for the NTAI Corporation’s ability to issue guarantees to be tailored, whilst maintaining appropriate controls to limit financial risks.  

 

 Section 65BL Derivatives

59.   Section 65BL provides for a range of limits on the NTAI Corporation’s ability to acquire derivative financial assets to limit financial risks.

 

60.   Subsection 65BL(1) provides that the NTAI Corporation may only acquire derivatives for specific purposes, and prohibits the NTAI Corporation from acquiring derivatives for the purpose of speculation or leverage. 

 

61.   Subsection 65BL(2) provides that acquisition of derivatives must be consistent with the NTAI Corporation’s strategic investment plan that is in force at the relevant time.

 

62.   Subsection 65BL(3) provides that a subsidiary of the NTAI Corporation must only acquire derivatives for a purpose for which the NTAI Corporation may do so under new subsection (1).

 

63.   The intent of section 65BL is enable the NTAI Corporation to acquire derivatives to protect the value of its investments or achieve indirect exposure to financial assets in connection with its investment function, whilst reducing financial risk by limiting the circumstances in which this can occur.

 

Subdivision C—Miscellaneous

 

Section 65BM The NTAI Corporation does not have privileges and immunities of the Crown

64.   This provision provides that the NTAI Corporation does not have the privileges and immunities of the Crown in the right of the Commonwealth.

 

Section 65BN Exemption from taxation

65.   Subsection 65BN(1) provides that for the purposes of section 50-25 of the Income Tax Assessment Act 1997 , the NTAI Corporation is taken to be a public authority constituted under an Australian law. The note explains for the reader that this means the NTAI Corporation is exempt from income tax. 

 

66.   Subsection 65BN(2) provides that the NTAI Corporation is not subject to taxation under a law of a State or Territory if the Commonwealth is not subject to the taxation.

 

Division 3 - Strategic investment plan

 

Section 65C Strategic Investment Plan

67.   Subsection 65C(1) provides that the Board of the NTAI Corporation must develop a strategic investment plan and ensure one is in force at all times from 18 months after the commencement of the section.

 

68.   The strategic investment plan is intended to ensure there is transparency about the Board of the NTAI Corporation’s investment and funding priorities and to ensure accountability to Government and the broader Aboriginal community.

 

69.   Subsection 65C(2) provides that the strategic investment plan must set out the NTAI Corporation’s priorities and principal objectives relating to payments and financial assistance to or for Aboriginal people living in the NT and investments (including investment of its surplus funds) for a 3-5 financial year period.

 

70.   Subsection 65C(5) permits the NTAI Corporation rules to set out additional matters to be included in the strategic investment plan. This is intended to provide a mechanism for further information to be provided to support transparent decision-making.

 

71.   Subsection 65C(6) provides that the Board must consult with Aboriginal people living in the NT and Aboriginal organisations in the NT and have regard to any advice provided by the NTAI Corporation’s investment committee (see subsection 65FA) when developing the plan.

 

72.   Subsection 65C(7) to (9) set out a process for the strategic investment plan to be tabled in Parliament and published.

 

73.   Subsection 65C(10) and (11) set out the process for the Board reviewing and approving a revised strategic investment plan. Any revision must comply with the same requirements for consultation, provision of a copy to the Minister within 30 days, tabling in Parliament and publishing on the internet, as apply to a strategic investment plan. A revised strategic investment plan must also comply with any rules prescribing matters that must be addressed in a strategic investment plan.

 

Division 4 - Financial Arrangements

 

Section 65D Administrative and capital expenditure to be in accordance with approved estimates

74.   Section 65D provides for the preparation of estimates that inform the Minister’s directions to debit the ABA for amounts to be paid to the NTAI Corporation for its administrative and capital costs under subsection 64AA(4) and govern the expenditure of the NTAI Corporation.

 

75.   Subsection 65D(1) provides that the NTAI Corporation must prepare estimates, in the form and for the period of time that the Minister directs, of its expenditure to meet its administrative and capital costs and submit the estimates to the Minister for approval. The note explains for the reader that the Minister must have regard to approved estimates in directing that an amount is to be debited from the ABA under subsection 64AA(4).

 

76.   The intention of subsection 65D(1) is to provide a process for the NTAI Corporation to inform the Minister of funding needed to meet its administrative and capital costs. For example, in practice this may include informing the Minister of funding needed to meet its administrative or capital costs for a period of time and, where necessary, separately inform the Minister of additional funding needed to supplement existing funding directed under subsection 64AA(4) to meet unforeseen expenditure requirements

 

77.   Subsection 65D(3) provides that, subject to subsection (4), the NTAI Corporation’s expenditure on administrative and capital costs must be in accordance with the estimates approved by the Minister. Subsection 65D(4) provides that expenditure of the NTAI Corporation in relation to an item in the approval estimates may exceed the approved estimates by up to 20 per cent. Subsection 65D(5) provides that the NTAI Corporation’s expenditure on matters related to approved estimates must not exceed the total amount of expenditure provided for by those estimates.

 

78.   New subsection (6) clarifies that the NTAI Corporation must still prepare budget estimates as required under section 36 of the PGPA Act.

 

Section 65DA The NTAI Corporation may submit estimates of beneficial payments and investments

79.   Section 65DA provides for the preparation of estimates by the NTAI Corporation to meet its costs of making payments to or for the benefit of Aboriginal people living in the NT and investments of the kind mentioned in paragraph 65BB(b) that inform the Minister’s directions to debit the ABA under subsection 64AA(4).

 

80.   Subsection 65DA(1) provides that the NTAI Corporation may prepare estimates of its expenditure to meet its costs of making payments to or for the benefit of Aboriginal people living in the NT (see section 65BB(a)) or investments (see section 65BB(b)) and submit the estimates to the Minister for approval. The note explains for the reader that the Minister must have regard to approved estimates in directing that an amount is to be debited from the ABA under subsection 64AA(4).

 

81.   Subsection 65DA(4) clarifies that the NTAI Corporation must still prepare budget estimates as required under section 36 of the PGPA Act.

 

82.   The purpose of this new section is to provide the NTAI Corporation with a mechanism through which to request funding under new section 64AA to meet its costs of making payments to or for the benefit of Aboriginal people living in the NT or for making investments under new section 65B(b).

 

Division 5 - Board of the NTAI Corporation

 

Subdivision A Establishment and functions

 

Section 65E Establishment and functions of the Board

83.   Section 65E provides for a Board of the NTAI Corporation, which must ensure the proper, efficient and effective performance of the NTAI Corporation’s functions (see section 65BB). The Board must also develop and revise strategic investment plans (see section 65C). The Board may delegate its functions and powers to the CEO or committees, with some limitations (see section 65JA).

 

Section 65EA Membership

84.   Section 65EA provides for the composition of the Board: two Board members appointed by each of the Land Councils (see subsection 65EB(1)); one Board member appointed by the Minister (see subsection 65EC(1)) and one appointed by the Minister for Finance (see subsection 65EC(2)); and two independent members appointed by the Board (see subsection 65ED(1)).

 

85.   The purpose of this section is to ensure that Board membership strikes a balance between Aboriginal representation, expertise and independence, reflecting best practice governance practice. It ensures Aboriginal control of the Board, while also providing for appropriate oversight by the Commonwealth and financial and business, land and water management expertise. Eligibility requirements for these three categories of Board membership are set out at sections 65EB, 65EC and 65ED.

 

Subdivision B Appointment of Board members by Land Councils

 

Section 65EB Appointment of Board members by Land Councils

86.   Section 65EB sets out the process of election and appointment of the Land Council Board members. The Land Councils are those established under the Land Rights Act, namely: the NLC, CLC, ALC and TLC.

 

87.   Subsection 65EB(1) requires the Land Councils to each appoint two members to the Board.

 

88.   Subsection 65EB(2) provides that Land Council Board members must be members of the Land Council (section 29 refers). This may include the Chair and Deputy Chair of the Land Council (see subsection 65EB(5).

 

89.   Subsection 65EB(3) provides that a Land Council member is not eligible for appointment to the Board if they have previously been suspended from the Board, without that suspension being revoked (see section 65EO).

 

90.   Subsection 65EB(4) provides for Land Councils to determine an election process to appoint their members.

 

91.   Drawing the Land Council Board members from the membership of the Land Councils ensures consistency with the architecture of the Land Rights Act, whereby ABAAC representatives were drawn from the Land Council membership. It ensures there is a specific forum (Council meetings) in which Land Council Board members can be held to account for their performance, and provides a sufficiently large pool of candidates from which to elect a qualified person.

 

Section 65EC Appointment of Board members by Commonwealth Ministers

92.   Section 65EC provides that the Minister and the Finance Minister must each appoint a member of the Board. These appointees must have expertise in either or both land, water or environmental management, or business or financial management. The expertise requirements for Government appointed directors and intended to support a wide range of expertise on the Board.

 

Section 65ED Appointment of independent Board members by the Board

93.   Subsection 65ED(1) requires the Board to appoint two independent members to the Board.

 

94.   Subsection 65ED(2) provides that in making these appointments the Board must have regard to: the desirability of reflecting diversity among the Board; the independence of the appointees from the Land Councils and Commonwealth and NT Government; and whether the appointees have a real or perceived material personal interest that would conflict with their independent status.

 

95.   Subsection 65ED(3) provides that the independent directors must have expertise in either or both land, water or environmental management, or business or financial management.

 

96.   Subsection 65ED(4) provides that a person is not eligible for appointment as an independent Board member if they are a current member or staff member of a Land Council, or have been in the past twelve months.

 

97.   Section 65ED enshrines the role of an independent Board member on the Board to support Board decision-making by providing an independent point of view. According to best practice for Board compositions, independent members should be free of interests and influences that would impact on their ability to bring an independent judgement to bear on issues before the Board.

 

Section 65EE Basis on which Board members hold office

98.   Section 65EE provides that all Board members (this includes the Chair) hold office on a part-time basis.

 

Section 65EF Chair

99.   Section 65EF requires that at its first Board meeting, the Board must elect a Chair from amongst its members. If there is a vacancy in the position, the Board must elect a new Chair at any meeting (see subsection 65EF(2)).

 

Section 65EG Term of appointment

100.           Subsection 65EG(1) requires that a Board member’s term be set out in the instrument of appointment and cannot exceed three years.

 

101.           Subsection 65EG(2) provides that a Board member cannot hold office for a total period of more than nine years, including all periods of previous appointments whether consecutive or not. This time limit ensures members can gain sufficient experience to enhance the performance of the Board, but also ensures a turn-over of members.

 

Section 65EH Acting appointments

102.           Subsection 65EH(1) allows the responsible entity for a Board member (which is the entity that appoints the Board member) to appoint an acting Board members should a Board member be absent or unable to perform their duties, or when there is a vacancy in the office of the Board member.

 

103.           The note confirms that rules that apply to acting appointments are set out at sections 33AB and 33A of the AI Act, including that an acting appointment must not exceed 12 months.

 

104.           Subsection 65EH(2) provides that the Land Councils cannot appoint a person to act as a Land Council Board member unless that person meets the eligibility requirements for a Land Council Board member under subsection 65EB(1).

 

Subdivision C—Terms and conditions of appointment

 

Section 65EI Disclosure of interests - Board members other than independent members

105.           The PGPA Act and the Public Governance, Performance and Accountability Rule 2014 require that Board members disclose all material personal interests that relate to the affairs of the entity to other members of the Board.  New subsection 65EI(1) imposes an additional requirement that Land Council Board members and the two government-appointed members must also disclose their interests to their responsible entity. New subsection 65EI(3) clarifies that the obligations under section 29 of the PGPA Act are not taken to be complied with if the obligations under subsection 65EI(1) are not fulfilled.

 

106.           The purpose of new section 65EI is to increase transparency regarding disclosures of interests, by requiring that Land Council Board members disclose their interests to the relevant Land Council, and government-appointed members disclose their interests to the relevant Minister. This section does not need to apply to independent Board members as disclosure to the Board is also disclosure to their responsible entity.

 

Section 65EJ Remuneration and allowances

107.           Subsection 65EJ(1) provides that a Board member is to be paid the remuneration that is determined by the Remuneration Tribunal. In the absence of a determination, the remuneration will be determined in the NTAI Corporation rules.

 

108.           Subsection 65EJ(2) provides that allowances to be paid to a Board member will be prescribed in the NTAI Corporation rules.

 

109.           Subsection 65EJ(3) provides that subsections 65EJ(1) and (2) have effect subject to the RT Act (see subsection 7(11) of the RT Act).

 

110.           Subsection 65EJ(4) confirms that if a Land Council Chair is appointed as a Land Council Board member, that person must not be remunerated as a Board member (see subsection 7(11) of the RT Act).

 

Section 65EK Leave of absence

111.           Section 65EK provides that the responsible entity for a Board member may grant their appointed member a leave of absence, with terms and conditions at their discretion.

 

Section 65EL Resignation of Board members

112.           Subsection 65EL(1) provides that a Board member may resign by providing their resignation in writing to their responsible appointing entity.

 

113.           Subsection 65EL(2) provides that the Board member must also give a copy of the resignation to the Board (except for the two independent members referred to at subsection 65EA(d) for whom the Board is the responsible entity).

 

114.           The resignation takes effect from the day it is received by the responsible appointing entity, or the later date specified.

 

115.           Section 65EK confirms that the primary obligation of the Board member in relation to matters concerning their appointment is to the responsible entity and also ensure the Board is kept informed of any resignations.

 

Section 65EM Board code of conduct

116.           Section 65EM requires that the Board determine, and publish on the internet, a code of conduct for the Board.

 

117.           The purpose of this section is to provide for the Board code of conduct as a key governance tool that allows the Board to set out the governance processes and standards by which they will hold each other to account. Publication of the code of conduct will also increase accountability by ensuring others understand the expected standards and behaviour for the Board.



118.           It is intended that the code of conduct may set out the role, standards and responsibilities of Board members, including the Chair, consistent with the Land Rights Act and the PGPA Act.



Section 65EN Termination of appointments

119.           Subsections 65EN(1) and (2) provide that the responsible entity for a Board member may terminate the member’s appointment for misbehaviour, incapacity or illness, bankruptcy, absence from three meetings without leave or a serious breach of the code of conduct.

 

120.           The Board can terminate the two independent members, on the grounds set out in subsections 65EN(1) and (2).

 

121.           Paragraph 65EN(2)(d) provides that the Board can terminate the two independent members, if the Board is no longer confident of their independence, as set out at paragraphs 65ED(2)(b) or (c).

 

a)       As a matter of best practice governance, the independence of the two independent members should be regularly reviewed by the Board. The intent of this provision is to empower the Board to terminate an independent member if the Board becomes aware of circumstances that may impact on the independence of an independent member (paragraph 65ED(2)(b) and (c) refers).

 

122.           Subsection 65EN(4) provides that an independent member must not be present while the matter of their termination is being considered, or voted upon.

 

123.           Subsection 65EN(5) provides that members appointed by a Land Council are terminated by force of this subsection if the Land Council Board member ceases to be a Land Council member as result of a disqualifying event (for example certain criminal convictions, subsection 29(4) refers).

 

124.           Subsection 65EN(6) provides that a Land Council must terminate their respective Board member if the Land Council is satisfied the Board member is no longer a member of the Land Council (section 29 refers), other than because of a disqualifying event.

 

125.           Each responsible entity has the power to terminate their members, meaning the Board is only able to directly terminate the two independent members.

 

Subdivision D Meetings of the Board

Section 65EO Suspension of Land Council Board members

126.           Section 65EO enables the Board to suspend the appointment of a Land Council member in certain circumstances (subsections 65EO(1) and (2) refer), similar to those for termination (section 65EN refers).

 

127.           Subsection 65EO(3) provides that a Land Council Board member may only be suspended if a majority of the Board agrees, including agreement by at least one government-appointed member (subsection 65EC(1) refers), and one independent member (subsection 65ED(1) refers).

 

128.           Subsection 65EO(4) provides that the Land Council Board member whom the Board is considering suspending must not be present for deliberations or the vote on their suspension.

 

129.           A suspension may be revoked under subsection 65EO(6) and the procedural requirements at subsections 65EO(3) and (4) apply in relation to a revocation of a suspension in the same way as they apply in relation to a suspension.

 

130.           This provision also sets out the process for informing the relevant Land Council of the suspension, and revocation of a suspension (subsections 65EO(5) and (8) refer). The effect of paragraph 65EO(5)(b) is that, if a Land Council Board member’s appointment is suspended, the office of the Board member is taken to be vacant until the earlier of the period of appointment expires or the Board revokes the suspension. During this vacancy, the relevant Land Council may appoint an acting Board member under subsection 65EH(1).

 

131.           This provision is necessary because it allows the Board to act quickly to preserve the integrity of the Board, where a Land Council member engages in the conduct described in subsections 65EO(1) and (2). Once notified, the relevant Land Council can either terminate that Board member and appoint a new member, appoint an acting member, or leave the position vacant until the term expires.

 

132.           This provision only applies to Land Council appointed members of the Board to enable their termination to be considered by the Land Council. It does not apply to independent members because the Board has the power to terminate those members directly (new section 65EN refers). It does not apply to government-appointed Board members. It is anticipated that the Board would notify the relevant Minister of any grounds for termination and seek Ministerial action in order to maintain the Commonwealth’s role in appointing and terminating its directors.  

 

Section 65EP Other terms and conditions of Board members

133.           Section 65EP provides that the Minister can determine terms and conditions for Board members in respect of matters not provided for by the Land Rights Act.

 

Section 65EQ Convening meetings

134.           Subsections 65EQ(1) and (2) provides that the Board must hold such meetings as are necessary for the efficient performance of its function, but no less than three per year. The Chair is responsible for convening meetings, but in the event that there is a vacancy in the office of the Chair, the Chair is on a leave of absence, or the Chair is unable to convene a meeting, the Minister may convene a meeting if they consider the circumstances require it (subsection 65EQ(2) and (3)).

 

Section 65ER Presiding at meetings

135.           Section 65ER provides that the Chair must preside at meetings or if the Chair is not present the Board may appoint one of themselves to preside at that meeting. The voting rights of the Chair or person presiding are the same as other Board members (subsection 65ET(2) refers).

 

Section 65ES Quorum

136.           Section 65ES sets out the quorum requirements for meetings of the Board. Quorum comprises: half of the Land Council Board members holding office, one of the two government-appointed members, one of the two independent members (if there is such a member), and at least one other member. These quorum requirements ensure participation from all three categories of Board members, bringing representation, independence and expertise to all decisions of the Board. It also provides some necessary flexibility in the rare event that both independent Board member positions are temporarily vacant, and quorum is required to appoint new members.

 

137.           Subsection 65ES(2) allows for the quorum requirements to be satisfied if a Board member is required to be absent for a particular deliberation and vote (such as a material personal interest has been declared, reappointment of an independent member, or for consideration of suspension or termination), and their absence affects quorum requirements. For the purposes of that particular matter, the quorum requirements is considered to be met by the remaining directors present. This ensures that the Board can make critical decisions when a quorum may not be present.

 

Section 65ET Voting at meetings

138.           Section 65ET provides that decisions of the Board are to be determined by majority vote of the Board members present and voting. The Chair, or person presiding, has a deliberative vote, but does not have a casting vote. Best practice governance arrangements dictate that the Chair should not have the casting vote which delivers the power to unilaterally determine the outcome in the event of a tied vote. Instead, where there is a deadlock of the Board, then further information should be put to the Board until the matter can be resolved.

 

Section 65EU Observers

139.           To ensure that the Board has access to high level advice and a clear line of communication with the administrative arm of the Land Councils, new section 65EU provides that the four Land Council CEOs can attend Board meetings but may not vote.

 

Section 65EV Conduct of Meetings

140.           Section 65EV provides for the Board to regulate proceedings at its meetings, as appropriate, subject to any requirements of Part VIA of the Land Rights Act.

 

Section 65EW Minutes

141.           Section 65EW provides that the Board must keep minutes of its meetings.

 

Section 65EX Decisions without meetings

142.           Section 65EX provides that the Board may determine the method for making decisions without meeting. This allows the Board to adopt agreed processes to make decisions without convening face-to-face meetings.

 

Division 6 - Committees

 

Section 65F Establishment of committees

143.           Section 65F allows the Board to establish committees to provide advice or assist in the performance of the NTAI Corporation’s functions or the Board’s functions.

 

Section 65FA Investment committee

144.           Section 65FA requires the Board to establish an Investment committee. This is a critical mechanism for ensuring the Board and the NTAI Corporation have access to additional expert advice regarding investments and funds management to maximise returns and ensure sound financial management, and to provide advice on the strategic investment plan. The Board must have regard to the advice of the Investment committee regarding a strategic investment plan (paragraph 65C(6)(b) refers).

 

145.           Subsection 65FA(3) provides that the Investment committee must comprise no less than four members, at least two of whom must have expertise in business or financial management and must be external to the Board. Subsection 65FA(5) provides that the member appointed by the Finance Minister, and one independent member are required to be members of the Investment committee.

 

Section 65FB Audit committee must include independent Board member

146.           In addition to the requirements of section 45 of the PGPA Act, this provision requires that one independent Board member must be included on the NTAI Corporation’s Audit committee. An independent Board member will contribute an additional independent perspective to the Audit committee while also acting as a critical link between the Audit committee and the Board.

 

Section 65FC Remuneration and allowances

147.           Consistent with the remuneration process for Board members, section 65FC provides that the Remuneration Tribunal will determine the remuneration of members of a committee established by the Board to advise or assist in the performance of the NTAI Corporation’s or the Board’s functions (pursuant to section 65F). This includes the Investment committee and the Audit committee. In the absence of a determination the remuneration will be determined by the Minister in the NTAI Corporation rules (section 65JE refers). Committee allowances will be prescribed in the NTAI Corporation rules.

 

Section 65FD Committee members are officials of the NTAI Corporation

148.           Section 65FD confirms that all committee members are deemed to be officials of the NTAI Corporation for the purposes of the PGPA Act, and are therefore subject to the duties and requirements of that Act.

 

Division 7 - CEO of the NTAI Corporation

 

Section 65G CEO of the NTAI Corporation

149.           Section 65G provides for the position of the CEO of the NTAI Corporation.

 

Section 65GA Functions of the CEO

150.           The functions of the CEO are set out in new section 65GA. The CEO is responsible for the day-to-day administration of the NTAI Corporation, and must act in accordance with policies and directions of the Board (subsections 65GA(2) and (3)).

 

151.           Subsection 65GA(6) clarifies that a policy or direction given in writing by the Board is not a legislative instrument. This subsection is included to assist readers, as the relevant instrument is not a legislative instrument within the meaning of section 8 of the LA Act.

 

Section 65GB Appointment

152.           Section 65GB provides that the Board can appoint the position of CEO of the NTAI Corporation, with the written agreement of the Minister. The same process applies for appointing an acting CEO (new section 65GC refers) and termination of the CEO (new section 65GI refers). The CEO position is full-time, and the period of appointment must not exceed five years, although reappointment is allowed (see section 33AA of the AI Act).

 

153.           The CEO is the highest executive officer in the NTAI Corporation and may exercise the functions of the Board, where delegated. The CEO will report directly to the Board. This appointment process ensures there is a clear employment relationship and line of accountability between the CEO and the Board. It also ensures Commonwealth oversight of the appointment, as the appointment cannot be confirmed without the agreement of the Minister, and, further, the Minister must agree the CEO code of conduct which must be developed by the Board (section 65GH refers). To ensure independence and a clear separation of powers, a person is not eligible to be the CEO if they are a staff member of a Land Council, a member of a Land Council or a current member of the Board of the NTAI Corporation (subsection 65GB(4) refers).

 

Section 65GC Acting appointments

154.           Section 65GC provides for an acting CEO to be appointed in specified circumstances. The eligibility requirements of an acting CEO are set out at subsection 65GC(2) and match those of a CEO (subsection 65GB(4) refers). Consistent with the appointment of the CEO, the appointment of an acting CEO is made by the Board with the written agreement of the Minister.

 

Section 65GD Other paid work

155.           Section 65GD provides that the CEO must not engage in other paid work outside of the duties of the CEO’s office without the approval of the Board.

 

Section 65GE Remuneration and allowances

156.           Section 65GE provides that the Board will determine the remuneration and other allowances to be paid to the CEO, and confirms that the office of the CEO is not a public office for the purposes of the RT Act. See also new section 65GF regarding leave.

 

Section 65GF Leave of absence

157.           Section 65GF provides that the Board sets the recreational leave entitlements for the CEO, and may grant a leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Board determines.

 

Section 65GG Resignation

158.           Section 65GG provides that the CEO may resign by giving a written notice to the Board, and a copy to the Minister. The resignation takes effect on the day received by the Board or a later date so specified.

 

Section 65GH CEO Code of Conduct

159.           Section 65GH provides that the Board must determine code of conduct for the CEO, which must be approved by the Minister, and published on the internet. Both the Board and the Minister contribute to this important tool for managing the performance and conduct of the CEO, a serious breach of which can be grounds for termination of the CEO appointment (paragraph 65GI(2)(e) refers).

 

Section 65GI Termination of appointment

160.           Consistent with the appointment process, section 65GI provides that the Board may only terminate a CEO’s appointment with the written agreement of the Minister. Grounds for termination are set out at subsections 65GI(1) and (2) and include a serious breach of the code of conduct.

 

Section 65GJ Disclosure of interests

161.           Section 65GJ requires that the CEO provide disclosures of interest, as required under section 29 of the PGPA Act, in writing to the Board. A copy must be given to the Minister (subsection 65GJ(2) refers). This process continues the policy intent that while the CEO is clearly accountable to the Board, there is appropriate government oversight of the position.

 

Section 65GK Other terms and conditions

162.           Section 65GK gives the Board the authority to determine any other required terms and conditions relating to the CEO holding office.

 

Division 8 - Staff and consultants

 

Section 65H Staff

163.           Section 65H provides that the CEO can, on behalf of the NTAI Corporation, employ staff as necessary, and determine their terms and conditions. The CEO may also negotiate for officers or employees of the Commonwealth or state or territory public servants, to be made available to the NTAI Corporation.

 

Section 65HA Consultants

164.           Section 65HA provides that the CEO can, on behalf of the NTAI Corporation, engage consultants as necessary, and determine the terms and conditions.

 

Division 9 - Miscellaneous

 

Section 65J Delegation by the NTAI Corporation

165.           Section 65J deals with the ability of the NTAI Corporation to delegate its powers and functions. Subsection 65J(1) permits the NTAI Corporation to delegate any of its powers or functions, either under the Land Rights Act or under other legislation. Subsection 65J(1) requires that, where the NTAI Corporation seeks to exercise this power, it must do so in writing under its seal. The NTAI Corporation may only delegate its powers and functions to a Committee mentioned in Division 6 of Part VIA or the CEO of the NTAI Corporation.

 

166.           As a body corporate, the NTAI Corporation’s powers and functions will largely be exercised by the Board. However, it is necessary for the NTAI Corporation to be able to delegate its powers and functions so that other senior persons in the NTAI Corporation are able to perform these functions and powers where they cannot be performed by the Board. This will assist in the efficient operation of the NTAI Corporation. The NTAI Corporation may only delegate to the specified delegates. They are best placed to exercise the powers and functions of the NTAI Corporation as they are suitably qualified and have oversight of the operation of the NTAI Corporation (or significant parts of the operation of the NTAI Corporation).

 

167.           Subsection 65J(2) provides that, in exercising delegated functions or powers, the delegate must comply with any directions imposed by the NTAI Corporation.

 

Section 65JA Delegation by Board

168.           Section 65JA deals with the Board’s ability to delegate its powers and functions. Subsection 65JA(1) permits the Board to delegate all or any of its powers or functions under the Land Rights Act, except those under Division 7. Under this Division, the Board has several powers and functions in relation to the CEO. As the CEO is responsible and accountable to the Board, the Board is responsible for exercising these powers. It would also be inappropriate for a delegate, who may be subordinate to the CEO, to exercise these particular powers and functions.

 

169.           Where the Board seeks to delegate its delegable powers and functions, it must do so in writing. The Board may only delegate its delegable powers and functions to a Committee mentioned in Division 6 of Part VIA or the CEO of the NTAI Corporation. This ability to delegate ensures that senior persons in the NTAI Corporation may perform the functions of the Board, where the Board is unable to do so or where it would be administratively beneficial for senior members to perform these functions. This allows the NTAI Corporation to continue to operate efficiently and effectively.

 

170.           Subsection 65JA(2) provides that, in exercising delegated functions or powers, the delegate must comply with any directions imposed by the Board.

 

65JB Delegation by CEO

171.           Section 65JB deals with the CEO’s ability to delegate their functions and powers. Subsection 65JB(1) permits the CEO to delegate, in writing, any of their functions under the Land Rights Act to a member of staff of the NTAI Corporation referred to in section 65H. Subsection 65JB(3) requires that before delegating a power or function, the CEO must have regard to:

 

a)       if the power or function is to be delegated to a person holding, occupying or performing the duties of, a specified office or position - whether the office of position is sufficiently senior for the person to exercise the power or perform the function; or

 

b)       otherwise - whether the person has appropriate qualifications or expertise to exercise the power or perform the function.

 

172.           This ensures that the CEO’s powers and functions are delegated to members of staff who have appropriate qualifications, expertise and oversight of the operation of the NTAI Corporation (or substantial parts of the operation) to effectively and competently perform the functions and powers of the CEO. The CEO is empowered to delegate her or his powers and functions to senior members of staff to ensure the efficient and effective operation of NTAI Corporation, particularly where it would be administratively beneficial for a delegate to exercise a power or function for the CEO, or where the CEO is unable to perform the power or function.

 

173.           Subsection 65JB(2) provides that, in exercising delegated functions or powers, the delegate must comply with any directions imposed by the CEO.

 

Section 65JC Annual report

174.           As a Commonwealth entity for the purposes of the PGPA Act, the NTAI Corporation will be required to prepare an annual report for the purposes of section 46 of the PGPA Act.  New section 65JC provides that the NTAI Corporation rules may prescribe matters that must be included in the report. This will enable the annual report to cover matters relating to the NTAI Corporation’s activities that may be of particular interest to the Commonwealth, the Parliament, and the public.

 

Section 65JD Review of operation of this Part

175.           New section 65JD provides for the operation of Part VIA to be reviewed. Subsection 65JD(1) requires the Minister to cause a review of the operation of Part VIA to be undertaken as soon as possible after the end of 7 years after the Part commences (see table item 2 in subsection 2(1) for the commencement date of this Part). It is intended that, in causing a review to be undertaken, the Minister may identify particular matters relating to the operation of Part VIA that should be considered in the review. Reviewing the operation of the Part will provide an opportunity to review whether it enables the NTAI Corporation to operate effectively.

 

176.           Subsection 65JD(2) requires the person undertaking the review to give a written report to the Minister that must not include commercially sensitive information. This is because, under subsection 65JD(3), the Minister is required to cause a copy of the report to be tabled in each House of Parliament within 15 sittings days of the relevant House after the report is given to the Minister.

 

Section 65JE The NTAI Corporation rules

177.           New section 65JE enables the Minister to make rules, in the form of a legislative instrument, prescribing matters required or permitted by Part VIA to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to Part VIA. These rules are called the NTAI Corporation rules and may include the ability to:

 

a)       change the name or acronyms by which the NTAI Corporation is known (see subsection 65B(2));

 

b)       confer additional functions on the NTAI Corporation (see paragraph 65BB(d));

 

c)       specify a higher amount for the value of a particular investment and prescribe a method for working out the value of an investment (see section 65BH);

 

d)      prescribe matters in relation to a number of the NTAI Corporation’s powers (see sections 65BI, 65BJ and 65BK);

 

e)       prescribe matters that must be included in a strategic investment plan (see subsection 65C(5));

 

f)        specify matters that must be included in the NTAI Corporation’s annual report (see section 65JC); and

 

g)       prescribe remuneration and allowances for Board members in particular circumstances (see section 65EJ).

 

178.           Providing the ability to prescribe these matters in rules allows the Minister to adapt particular requirements relating to the NTAI Corporation to changing circumstances. They are also limited in scope to prescribing matters in addition, or supplementary, to matters set out in the Bill.

 

179.           Dealing with these matters in rules rather than regulations accords with the Office of Parliamentary Counsel’s Drafting Direction No. 3.8—Subordinate legislation. That Drafting Direction states that ‘OPC’s starting point is that subordinate instruments should be made in the form of legislative instruments (as distinct from regulations) unless there is good reason not to do so’.

 

180.           The Drafting Direction states that matters such as compliance and enforcement, the imposition of taxes, setting amounts to be appropriated, and amendments to the text of an Act, should be included in regulations unless there is a strong justification otherwise. The Bill does not enable rules to provide for any of these matters. This is clarified by subsection 65JE(2) that specifically prevents rules from including these types of matters.

 

181.           Subsection 65JE(1) also clarifies that the rules made under section 65JE are a legislative instrument for the purposes of the LA Act. Under that Act, legislative instruments and their explanatory statements must be tabled in both Houses of the Parliament within 6 sitting days of the date of registration of the instrument on the Federal Register of Legislation. Once tabled, the rules will be subject to the same level of parliamentary scrutiny as regulations (including consideration by the Senate Standing Committee for the Scrutiny of Delegated Legislation), and a motion to disallow the rules may be moved in either House of the Parliament within 15 sitting days of the date the rules are tabled.

 

182.           Subsection 65JE(3) clarifies that rules that are inconsistent with the regulations have no effect to the extent of the inconsistency, but the rules are taken to be consistent with the regulations to the extent that the rules are capable of operating concurrently with the regulations.

 

Item 7 - Subsection 76(1)

183.           Item 7 amends subsection 76(1) of the Land Rights Act to extend Part VIA to this subsection. The effect of this amendment is that it will allow the Minister to delegate all functions and powers conferred by Part VIA except those set out in paragraphs 76(1)(a) to (i) to the CEO of the NIAA or an SES, or acting SES, officer in the NIAA (see the Acts Interpretation Substituted Reference Order 2017 ).

 

Item 8 - Subsection 76(1)

184.           Item 8 amends subsection 76(1) to include a new list of provisions that specify non-delegable functions or powers of the Minister. This list includes the existing non-delegable functions and powers in section 19A of the Land Rights Act.

 

185.           Certain Ministerial functions and powers in relation to the NTAI Corporation are non-delegable as they provide mechanisms for appropriate Government oversight of the NTAI Corporation and are most appropriately exercised by the Minister. They include:

 

a)       appointment of a Board member (section 65EC(1) refers);

 

b)       agreeing to the appointment or termination of the CEO (subsections 65GB(1) and 65GI(1) or (2) refer); and

 

c)       the making of rules relating to loans, borrowing and guarantees (sections 65BI, 65BJ, 65BK refer).

 

186.           It is appropriate that all the Minister’s other functions and powers in relation to the NTAI Corporation are delegable as they relate to administrative functions and powers that can be efficiently performed by a delegate. For example, delegable functions and powers include:

 

a)       determining other terms and conditions on which Board members hold office (section 65EP refers);

 

b)       convening a Board meeting if circumstances require it (section 65EQ refers);

 

c)       specifying matters that must be included in the annual report (section 65JC refers); and

 

d)      causing a review of the operation of this part of the Bill (section 65 JD refers).

 

Items 9 and 10 - Paragraphs 77(1)(b) and 77(1)(c)

187.           Items 9 and 10 are consequential amendments to section 77 as a result of the repeal of section 65 of the Land Rights Act (see item 5 of Part 1 of Schedule 1).

 

Part 2 - Transitional arrangements for the NTAI Corporation

 

Item 11 - Definitions

188.           This item inserts definitions required for the transitional period, namely interim Board, Interim Board commencement day, the NTAI Corporation commencement day, principal Act, and transition period.

 

Item 12 - Making Land Council and Ministerial Board appointments before Interim Board commencement day

189.           Item 12 requires that the four NT Land Councils (under new subsection 65EB(1) and the two Commonwealth Ministers (under new subsections 65EC(1) and (2)) must appoint their Board members before the Minister declares the interim Board commencement day. Sub-item 12(4) requires the Minister to determine, by notifiable instrument, a day during the transition period to be the commencement day for the Interim Board. This instrument is a notifiable instrument as it merely applies the law at a specific time.

 

190.           These transitional provisions allow the interim Board to progress certain critical governance and management features of the NTAI Corporation before it comes into existence. This will ensure the NTAI Corporation is able to function effectively from commencement day.

 

Item 13 - Interim Board - First meeting and election of interim Chair

191.           Item 13 provides that the Minister can convene the first meeting of the Interim Board, and that the Interim Board must, at its first meeting, elect an interim Chair to convene meetings as necessary. The interim Chair holds office from that election until a Chair is elected under new section 65EF of the Land Rights Act which requires that the Board must elect a Chair at its first meeting. The interim Chair can preside at that meeting until the Chair is appointed.

 

192.           At the first meeting of the Interim Board the members comprise the Land Council Board members and the government-appointed members (given the appointment of the independent members is a required function of the Interim Board, item 14 refers). Sub-item 13(8) provides for an amended quorum for the Board during the transition period. The transitional quorum does not require the presence of independent members given the Board will need to meet to appoint those members.

 

Item 14 - Interim Board to appoint independent Board members before the NTAI Corporation commencement day

193.           Item 14 requires that the Interim Board appoint two independent members to the Board (new subsection 65ED(1) in the principal Act refers) before the NTAI Corporation commencement day. Once appointed they become members of the Interim Board. These appointments are taken to be appointments to the Board under the principal Act on NTAI Corporation commencement day.

 

Item 15 - Interim Board to establish investment committee

194.           Item 15 requires that the Interim Board, after the appointment of at least one independent member, establish an investment Committee and appoint members to the Committee. This must be done before the NTAI Corporation commencement day. The Investment Committee takes effect on the NTAI Corporation commencement day.

 

Item 16 - Appointment of acting CEO

195.           Item 16 provides that the Interim Board may, after the appointment of at least one independent member, appoint an acting CEO, whose appointment commences on the NTAI Corporation commencement day. The appointment process is the same as that for a CEO (new section 65GB in the principal Act refers) with the Board making the appointment with the written agreement of the Minister. Given recruitment processes can take time, this transitional arrangement will ensure that an acting CEO is appointed and can commence when the NTAI Corporation is established.

 

Item 17 - Remuneration and allowances for interim Board members

196.           Item 17 provides that payments may be debited from the ABA to cover the remuneration and allowances of the Interim Board, which will be determined by the Minister by legislative instrument. Once the NTAI Corporation has commenced, the Board remuneration will be provided for be new section 65EJ in the Land Rights Act.

 

Item 18 - Development of first strategic investment plan

197.           Item 18 requires the Board to approve the first strategic investment plan within 18 months from the NTAI Corporation commencement day, and clarifies that the first plan comes into force on the day the Board approves the plan and remains in effect until the date referred to in the plan. This provision is required for the first plan because new section 65C in the Land Rights Act requires the Board to approve a new plan at least 6 months before it commences, and that the plan is in force for the period to which it relates. It is appropriate that the Board be allowed up to 18 months to approve the first plan, given the requirement for consultation with Aboriginal people and organisations in the NT, and with the Investment Committee (new paragraphs 65C(6)(a) and (b) refers).

 

Item 19 - Minister may request progress reports on strategic investment plans

198.           While under the PGPA Act the Minister may require information relating to the activities of the NTAI Corporation, this item makes explicit that the Minister may request regular progress reports on the strategic investment plan that is in force for the first three years, and permits these to be published on the internet.

 

Item 20 - Abolition of the ABAAC

199.           Item 20 confirms that the Minister may have regard to the advice of the ABAAC on potential payments when deciding whether to direct amounts to be paid or applied from the ABA under subsection 64(4) of the Land Rights Act after the repeal of section 65 (that establishes the ABAAC). This means the ABAAC can meet during the period of the interim Board and its advice can be considered by the Minister for a payment after the NTAI Corporation has commenced and the ABAAC has been abolished. This is required in the transition period so that payments can continue while the NTAI Corporation establishes its own payments processes. Section 65 will be repealed on a day set by Proclamation, which is also the commencement day for the NTAI Corporation.

 



 

Schedule 2 - Mining

 

Part 1 - Amendments  

 

Aboriginal Land Rights (Northern Territory) Act 1976

 

Item 1 - Subsection 3(1) (paragraph (a) of the definition of exploration licence )

200.           This item would repeal paragraph (a) ‘prospecting authority’ from the definition of an exploration licence at subsection 3(1) of the Land Rights Act. ‘Prospecting authority’ is being removed from the Land Rights Act as this mineral title can no longer be issued under NT legislation, and there are no extant ‘prospecting authorities’ in the NT.

 

Item 2 - Subsection 3(1) (after paragraph (c) of the definition of exploration licence )

201.           This item would add to the definition of an exploration licence in the Land Rights Act at subsection 3(1), both a mineral exploration licence and a geothermal exploration permit granted under the MT Act and GE Act respectively. The proposed changes to subsection 3(1) are intended to bring the terms and definitions in the Land Rights Act into alignment with current NT legislation, particularly the GE Act and the MT Act. The explicit reference to titles granted under NT legislation will remove doubt in respect of their inclusion in the definition of exploration licence.

 

Item 3 - Subsection 3(1) (subparagraph (d)(ii) of the definition of exploration licence )

202.           This item is a consequential amendment to allow for further items to be added to the definition of exploration licence at subsection 3(1) of the Land Rights Act.

 

Item 4 - Subsection 3(1) (at the end of the definition of exploration licence )

203.           This item would remove an extractive mineral exploration licence granted under the MT Act from the definition of an exploration licence at subsection 3(1) of the Land Rights Act. Processes for the administration of extractive mineral exploration licences are provided for under section 19 of the Land Rights Act. The explicit exclusion of extractive mineral exploration licences from the definition of an exploration licence will remove doubt as to the appropriate process for administering this type of title under the Land Rights Act.

 

Item 5 - Subsection 3(1) (definition of exploration retention licence )

204.           This item would repeal the definition of an exploration retention licence and substitute it with the new definition which includes a retention licence granted under the Petroleum Act, a geothermal retention licence granted under the GE Act and a mineral exploration licence in retention issued under the MT Act. This amendment will bring the Land Rights Act into alignment with the related NT legislation.

 

Item 6 - Subsection 3(1)

205.           This item would add to the definitions at subsection 3(1) of the Land Rights Act definitions of ‘geothermal energy resources’ and ‘mine’.

 

206.           The definition of geothermal energy resources incorporates the meaning given to that term in the GE Act. This amendment will bring the Land Rights Act into alignment with the related NT legislation.

 

207.           The definition of ‘mine’ is added and will be defined as ‘includes extract’. This amendment will clarify that all geothermal energy resources and water are ‘mined’ and ensure that references in the Act to ‘mining for minerals’ include references to extracting water and geothermal energy resources.

 

Item 7 - Subsection 3(1) (definition of minerals )

208.           This item would amend the definition of ‘minerals’ to cover minerals whether suspended in water or not, and includes water and geothermal energy resources but excludes extractive minerals. The definition of minerals is amended to clarify the inclusion of geothermal energy resources such as water in its gaseous state and rocks or material containing heat energy. This amendment will bring the Land Rights Act into alignment with the related NT legislation.

 

Item 8 - Subsection 3(1) (definition of miner’s right )

209.           This item would repeal the definition of ‘miner’s rights’ from subsection 3(1) of the Land Rights Act. The definition of miner’s rights is being removed from the Land Rights Act and replaced with NT mining authority which is inserted at item 10. Miner’s rights are no longer a valid title and can no longer be granted under the MT Act.

 

210.           The repealed definition of ‘miner’s includes the same references to an authority issued under a law of the NT relating to minerals such that the newly inserted definition of ‘NT mining authority’ does not create any issue of interfering with state power.

 

Item 9 - Subsection 3(1) (paragraph (a) of the definition of mining interest )

211.           This item would amend the definition of ‘mining interest’ in subsection 3(1) to exclude exploration for, as well as mining or development of, extractive mineral deposits. This will provide clarity that extractive mineral exploration licences are excluded from the definition of ‘mining interest’ as a result of the reference to leases or interests ‘(other than a lease or other interest in land, or a right, relating to the mining or development of extractive mineral deposits)’. Processes for the administration of extractive mineral exploration licences are provided for under section 19 of the Land Rights Act.

 

Item 10 - Subsection 3(1)

212.           This item will insert the definition of the ‘NT mining authority’ into subsection 3(1) of the Land Rights Act. This amendment complements the removal of the definition of ‘miner’s right’ at item 8. Inclusion of the definition ‘NT mining authority’ will ensure any ‘other authority’, as previously included in the definition of ‘miner’s right’, is provided for under the Land Rights Act. As there are no known authorities that can be granted under relevant NT legislation, this is a precautionary provision in case of any historic or future authorities.

 

Item 11 - Paragraph 3(2)(ba)

213.           This item will amend paragraph 3(2)(ba) to add ‘exploration’ to ‘mining and development’ consistent with item 9.

 

Item 12 - Paragraph 3(2)(c)

214.           This item will amend paragraph 3(2)(c) replacing the term ‘a miner’s right’ with ‘an NT mining authority’ consistent with the amendments at item 8 and 10.

 

Item 13 - Paragraph 19(11)(a)

215.           This item will amend paragraph 19(11)(a) to add ‘exploration’ to ‘mining and development’ consistent with item 9 and 11.

 

Item 14 - Section 40

216.           This item will omit the word ‘shall’ from section 40 and substitute it with ‘must’.

 

Item 15 - Paragraph 40(a)

217.           This item will repeal the current paragraph 40(a) and substitute it for a new provision which will remove the requirement for the Minister to consent to the exploration licences following the Land Council advising its consent. This will reduce red tape and improve efficiency in the overall exploration licence reducing the application process by up to 30 days. The Minister will retain a role in approving high value proposals under subsection 27(3) and in relation to cancelling an exploration or mining interest where a proponent is not operating in accordance with the proposed work program under section 47 of the Land Rights Act.

 

Item 16 - Subsection 41(1)

218.           This item amends subsection 41(1) replacing the word ‘shall’ with ‘may’.

 

Item 17 - Subsection 41(3)

219.           This item makes an amendment to subsection 41(1) so that the consent of the NTMM is taken to be withdrawn in certain circumstances. This modernises the language of the clause, replacing the phrase ‘shall be deemed’.

 

Item 18 - After subsection 41(3)

220.           This item inserts a new requirement at subsection 41(4) for the Land Council to notify the NTMM of the day on which the Land Council received the application. This amendment will improve efficiency and communication in the exploration licence application process. It will assist the NTMM in monitoring negotiating timeframes which commence on the date of the Land Council’s receipt of the application from the applicant.

 

Item 19 - Subsection 41(5)

221.           This item will omit the word ‘shall’ from subsection 41(5) and substitute it with ‘must’. It also adds a requirement that a copy of the application must be sent to the NTMM.

 

Item 20 - Subsection 41(6)

222.           This item will omit the word ‘shall’ from subsection 41(6) and substitute it with ‘must’. This amends subsection 41(6) to set out the requirements of the comprehensive proposal that the application is required to set out and will assist applicants and the Land Councils with the application process including substantial compliance.

 

Item 21 - Subsection 41(6A)

223.           The new subsection 41(7) requires the Land Council to determine whether an application substantially complies with the requirements at subsection 41(6). Notice of the Land Council’s determination must be provided to the applicant, Minister and NTMM. This determination is a preliminary decision that should not be subject to merits review. A substantially compliant application is necessary in order for the Land Council to facilitate consultation and enable an informed decision to be made by the traditional owners on the application. When considering the interests of the applicants the impact of the ‘substantial compliance’ requirement should be considered in conjunction with the application amendment options which are also being included in the bill at item 21. The consequences for an applicant should their application not be found to be substantially compliant will be negligible, and of a procedural nature, as the applicant would be able to reapply.

 

224.           A determination of whether an application substantially complies with subsection 41(6) does not involve an exercise of judicial power by the Land Council.

 

225.           The new subsection 41(8) provides that the effect of an application, which does not comply with the subsection 41(6) requirements, is taken to not be a valid application.

 

226.           The new subsection 41(9) provides for the Land Council to make a written request to an applicant for specified information, for the purpose of making a determination regarding substantial compliance of the application under the new subsection 41(7). Any notice to provide additional information is to be provided to the applicant with at least 14 days for the applicant to provide the information.

 

227.           The new subsection 41(10) provides for the variation of an application if the Land Council is concerned about whether the application complies substantially with the requirements at subsection 41(6). The Land Council may give written notice specifying their concerns and inviting the applicant to respond, addressing those concerns, providing a period of response no less than 14 days after the date of the notice.

 

228.           The new subsection 41(11) provides that an application may be varied by an applicant in response to the notice at subsection 41(10) and within the time period provided for in paragraph 41(10)(c). The new subsections 41(10) and 41(11) will enable applications to be amended without the applicant re-commencing the application process.

 

229.           The new subsection 41(12) provides that following a determination by the Land Council that an application is substantially compliant, an applicant can make a written request to the Land Council to vary the application with respect to components of the application that are required by subsection 41(6) comprising the comprehensive proposal. The request from the applicant must provide a copy of the application as proposed to be varied.

 

230.           The new subsection 41(13) provides that an application is varied if the Land Council agrees to the written request from the applicant (at subsection 41(12)). The Land Council cannot accept a variation unless the varied application substantially complies with subsection 41(6) requirements. The new subsections 41(12) and 41(13) provide for an application to be amended without the applicant re-commencing the application process.

 

231.           The new subsection 41(14) requires an applicant to give the Minister and the NTMM a copy of the application varied under subsection 41(11) or 41(13) and any notices from the Land Council concerning the applications received under subsection 41 (10) or (13). The application is also required to provide to the Minister and the NTMM written notice of the date that the varied application was given to the Land Council. This is consistent with the new requirement at item 18 so that the NTMM is aware of the progress of the applications following their consent.

 

Item 22 - Subsections 42(1), (2) and (3)

232.           This item will omit the word ‘shall’ from subsections 42(1), (2) and (3) and substitute it with ‘must’.

 

Item 23 - Subsections 42(4) to (5A)

233.           This item will repeal subsections 42(4) to (5A) and substitute them for new subsections (4), (4A), (4B), (4C), (4D) and (5).

 

234.           The new subsection 42(4) provides that the Land Council is required to convene meetings with traditional owners as it considers appropriate rather than necessary. This provides the Land Council with greater flexibility in convening meetings for the purpose of considering applications. This might involve the convening of more meetings as considered appropriate by the Land Council. It may also provide for standing instructions to be provided by traditional owners in relation to applications over certain areas resulting in fewer meetings.

 

235.           The new subsection 42(4A) sets out the matters which must be discussed at a meeting convened for consultation between the Land Council and the traditional Aboriginal owners for considering the exploration proposals and the terms and conditions of any agreement, unless the applicant does not wish its representatives to attend such a meeting.

 

236.           The new subsection 42(4B) clarifies that a meeting is not required to be held for a varied application (under the new subsection 41(13)) if the matters as detailed in the varied application have already been discussed at a meeting held under subsection 42(4)(a) prior to the variation being agreed. The Land Councils are not required to convene another meeting under subsection 42(4) and (4A) if the matters at 42(4A)(a) and (b) are not varied by an application under 41(13) or to the extent that they are varied by an application under 41(13) the matters at 42(4A)(a) and (b) as varied have already been discussed.

 

237.           The new subsection 42(4C) sets out that representatives of the applicant may attend certain meetings including so much of the first meeting at which the substantive content of exploration program or the terms and conditions are discussed for the purposes of presenting and explaining the exploration proposals or outlining the applicant’s views on the terms and conditions. The representatives of the applicant may also attend so much of any subsequent meeting as is appropriate for the discussion of the substantive content of exploration program or the terms and conditions unless the traditional Aboriginal owners decide the representative may not attend, and this decision is communicated to the applicant through the Land Council.

 

238.           The new subsection 42(4D) sets out that the Minister may provide written authorisation for a specified person or any person in a specified class of persons to attend a meeting.

 

239.           The new subsection 42(5) provides that a person authorised to attend meetings under the new subsection 42(4D) may attend certain meetings referred to in the new paragraphs 42(4C)(a), (b) or (c).

 

Item 24 - Subsection 42(6)

240.           This item will omit the word ‘shall’ from subsection 42(6) and substitute it with ‘must’.

 

Item 25 - Subsections 42(8), (8A), (9) and (10)

241.           This item repeals subsections 42(8), (8A), (9) and (10) removing the Minister’s consent requirement from the process. This will streamline the exploration licence application process where the Land Council has provided consent, reducing the process by up to 30 days.

 

Item 26 - Subsection 42(12)

242.           This item will omit the word ‘shall’ from section 42(6) and substitute it with ‘must’.

 

Item 27 - Subsection 42(13)

243.           This item will amend subsection 42(13) so that any references to application is received will be application is first received. This is consistent with other changes that have been proposed for the Part IV of the Land Rights Act to clarify that the standard negotiating period commences on the day the application is first received.  

 

Item 28 - Paragraph 42(17)(c)

244.           This item amends paragraph 42(17)(c) to be consistent with the amendments to the application and application amendment process.

 

Item 29 - Subsection 42(18)

245.           This item amends subsection 42(18) to reflect the changes to resubmitting applications so that timing commences from when the application is first received, providing clarity where amendments may be made to any later applications.

 

Item 30 - Paragraph 42(18A)(b)

246.           This item would amend paragraph 42(18A)(b) in order to cover circumstances in which the matters mentioned in paragraphs 42(4A)(a) and (b) had been discussed at one or more meetings.

 

Item 31 - Paragraph 44(1)(a)

247.           This item would amend paragraph 44(1)(a) by repealing the current paragraph, consistent with item 29, to remove reference to the Minister’s consent under subsection 42(8) in relation to the provision for arbitration of the terms and conditions of an exploration licence.

 

Item 32 - Subsection 44(2)

248.           This item would amend subsection 44(2) so that the phrase ‘Where subsection 42(7)’ is replaced with ‘If paragraph (1)(a)’.

 

Item 33 - Subsections 44(3) to (10)

249.           This item will omit the word ‘shall’ from subsections 44(3) to (10) and substitute it with ’must’.

 

Item 34 - Subsection 44(11)

250.           This item will omit the words ‘shall be’ (first occurring) and substitute it with ‘is’.

 

Item 35 - Subsection 44(11)

251.           This item will omit ‘shall be deemed’ and replace with the phrase ‘is taken’.

 

Item 36 - Subsection 44A(1)

252.           This item would repeal the current subsection 44A(1) and substitute it with new subsections 44A(1), 44A(1A) and 44A(1B):

 

a)       the new subsection 44A(1) provides agreements under sections 42, 43 or 44 must include terms and conditions requiring the applicant to pay compensation for damage or disturbance caused to the relevant Aboriginal land and to the traditional Aboriginal owners of the land;

 

b)       the new subsection 44A(1A) provides that the terms and conditions may require compensation to be paid for a number of aspects of the mining activity including the value of the materials, deprivation of the use of land and improvements and severance of the land; and

 

c)       the new subsection 44A(1B) clarifies that the terms and conditions must not require the applicant to pay any amount as consideration for the giving of consent to the granting of an exploration licence.

 

Item 37 - Subsection 44A(2)

253.           This item omits the word ‘shall’ from subsection 44A(2) of the Land Rights Act so that it is clear that the terms and conditions of an agreement entered into under that Section remain in force as long as the exploration licence, retention licence or renewed retention licence is held by the applicant, their heirs, successors or assigns of that person immediately following that period, as specified in the agreement.

 

Item 38 - Subsection 44A(3)

254.           This item repeals subsection 44A(3) of the Land Rights Act as these matters are now addressed by subsection 44A(1A) at item 40.

 

Item 39 - Subparagraph 47(1)(b)(i)

255.           This item amends subparagraph 47(1)(b)(i) to reflect the amendments to the process proposed by the amendments to subsections 41(11) and (13).

 

Item 40 - Paragraph 47(2)(a)

256.           This item adds the NTMM to the list of recipients that the Minister must inform if satisfied of the matters in paragraph 47(1)(d) to (e)  and the exploration licence is cancelled.

 

Item 41 - Before paragraph 47(3)(a)

257.           This item inserts the requirement that the Minister consult with the NTMM as part of the process for considering the cancellation or refusal to grant a mining interest.

 

Item 42 - Subparagraph 47(3)(a)(i)

258.           This item amends subparagraph 47(3)(a)(i) as a result of the amendments to subsections 41(11) or (13).

 

Item 43 - Paragraph 47(4)(a)

259.           This item adds the NTMM to the list of individuals the Minister must inform if determined that they are satisfied of the matters in paragraphs 47(3)(a) and (b).

 

Item 44 - Subsection 48(1A)

260.           This item repeals the current subsection 48(1A) and substitutes it with the new subsection ensuring alignment with relevant NT legislation by expanding the application of subsections 48(1) to (4A) to cover petroleum, geothermal energy resources and minerals other than petroleum and geothermal energy resources. This item provides that separate moratorium provisions run in relation to applications for petroleum, geothermal energy resources and minerals other than petroleum and geothermal energy resources. The definition of geothermal energy, consistent with the meaning given in section 4 of the GE Act is inserted into the Land Rights Act by item 6.

 

261.           Applications prescribed in paragraph 48(1A)(a) are exploration licence applications in relation to petroleum under the Petroleum Act.

 

262.           Applications prescribed in paragraph 48(1A)(b) are exploration licence applications in relation to geothermal energy under the GE Act.

 

263.           Applications prescribed in paragraph 48(1A)(c) are exploration licence applications in  relation to minerals other than petroleum or geothermal energy resources under the MT Act.

 

Items 45 to 46 - Paragraph 66(ba) and Paragraph 66(c)

264.           These items amend section 66 to include ‘exploration, mining or development of extractive mineral deposits’ and the ‘NT mining authority’ consistent with amendments to subsection 3(1) at items 9 and 10. 

 

Items 47 to 49 - Section 75

265.           These items amend section 75 to omit ‘miner’s right’s’ and substitute with ‘NT mining authority’ consistent with item 8. This is a consequential amendment as there is no such title currently provided for under the MT Act.

 

Item 50 - Paragraph 76(2)(a)

266.           This item repeals paragraph 76(2)(a) of the Land Rights Act which prevents the Minister from delegating the power to consent to the grant of an exploration licence, consistent with the amendment at item 25 which repeals the Minister’s consent power. 

 

Item 51 - Paragraphs 76(2)(d) and (e)

267.           This item repeals paragraphs 76(2)(d) and (e) and replaces them with new paragraphs 76(2)(d) and (e). These new paragraphs prevent the Minister from delegating to the NTMM any of the powers and functions under subsections 47(1) and 47(3). This is consistent with item 41 which imposes a new obligation to consult the NTMM with respect to determinations made under subsection 47(3), and existing subsection 47(1) which imposes a similar obligation. Expanding the scope of the non-delegable parts of subsections 47(1) and 47(3) will reduce unnecessary delay and red tape in the Minister’s consideration of the cancellation of an exploration licence or mining interest, and ensure that the Minister retains functions relevant to his or her powers to act in the national interest.

 

Part 2 - Application of amendments

 

Item 52 - Prospecting authorities

268.           This item provides that a number of sections of the Act continue to apply in certain ways on and after commencement as if:

 

a)       a reference to an exploration licence in subsection 44A(2), section 46 and subsection 47(3) includes a reference to a prospecting authority granted before the commencement of the item;

 

b)       a refusal to consent to the grant of an exploration licence in subsections 48(1) to (4B) includes a refusal to consent to the grant of a prospecting authority prior to the commencement of the item; and

 

c)       any reference in subsections 48(5) to (8) to the cancellation of an exploration licence includes a reference to the cancellation, before commencement of a prospecting authority.



Item 53 - Land Council consent to exploration licences

269.           This item provides that the amendments to sections 41 and 42 of the Land Rights Act made by the Schedule apply in relation to an application under section 41 of the Act that is submitted on or after the commencement of the item.

 

Item 54 - Removal of Ministerial consent to exploration licences

270.           This item provides that the amendments to paragraph 40(a) and repeals of subsections 42(8), (8A), (9) and (10) of the Land Rights Act apply in relation to an exploration licence if the Land Council’s consent is given on or after the commencement of the item, regardless of when the application is submitted.

 

Item 55 - Determination of conditions of exploration licences

271.           This item provides that the amendments to subsections 44(1) and (2) of the Land Rights Act apply in relation to an exploration licence if the Land Council’s consent to the grant of a licence is given (including by the operation of subsection 42(7)) on or after the commencement of the item.

 

Item 56 - Compensation for value of minerals

272.           This item provides that the amendments to section 44 of the Act apply in relation to terms and conditions agreed under section 42 or 43, or determined under section 44, on or after the commencement of the item.

 

Item 57 - Cancellation of exploration licence

273.           This item provides that the amendment of paragraph 47(2)(a) applies to notices under subsection 47(1)(b) that are received by the Minister on or after commencement of the item.

 

Item 58 - Refusal or cancellation of mining interests

274.           This item provides that the amendments to subsections 47(3) and (4) apply in relation to copies of statements of mining proposals that are received by the Minister on or after the commencement of the item.

 

Item 59 - Delegation relating to mining

275.           This item provides that the amendments to subsection 76(2), which relate to the delegation of functions to the NTMM, will apply to notice under 47(1)(b) and copies of the statements of mining proposals that are received by the Minister on or after the commencement of the item.



 

Schedule 3 - Land administration

 

Part 1 - Approved entities

 

Aboriginal Land Rights (Northern Territory) Act 1976

 

276.           Township leases were originally designed to be held by an ‘approved entity’, being a ‘Commonwealth entity’ or an ‘NT entity’. The Commonwealth is an approved entity under section 3AAA and the EDTL is established under the Land Rights Act to, among other things, enter into leases under section 19A, on behalf of the Commonwealth. The EDTL currently holds five township leases in eight communities. The EDTL model remains unchanged and is available to traditional owners.

 

277.           Two CATSI corporations have been approved by the Minister as ‘approved entities’ - the Ngarrariyal Aboriginal Corporation for the Gunyangara Township Lease in 2017 and the Gundjeihmi Aboriginal Corporation Jabiru Town for the Jabiru Township Lease in 2020. Township leases granted to CATSI corporations provides for more community-control. Given the growing interest in community-controlled township leasing, also known as community entity township leasing, there is a need to standardise and clarify the processes around, and the operation of, these entities in the Land Rights Act.

 

Items 1 to 3 - Subsection 3(1)

278.           These items repeal the definitions of ‘approved entity’, ‘Commonwealth entity’ and ‘NT entity’. The definition of ‘approved entity’ is replaced with a new definition.

 

279.           Item 1 repeals the previous definition of ‘approved entity’ under subsection 3(1) and substitutes a new definition. The new definition outlines that an approved entity is one that meets the criteria set out in either subsection 3AA(1) as an approved entity or subsection 3AA(2) as an approved entity for an area of land.

 

280.           Item 2 repeals the definition of ‘Commonwealth entity’ under subsection 3(1). Removing this definition will improve clarity in the Land Rights Act. For example, the PGPA Act utilises the term ‘Commonwealth entity’, which is referenced in sections 33, 53B and 64B of the Land Rights Act.

 

281.           Item 3 repeals the definition of ‘NT entity’ under subsection 3(1). An NT entity has never been approved and this model is no longer required due to the emergence of community-controlled township leasing.

 

Item 4 - Sections 3AAA and 3AA

282.           Item 4 repeals sections 3AAA and 3AA, replacing both sections with new section 3AA. New section 3AA sets out the approval process for bodies to become approved entities. It is possible for an entity to be an approved entity for more than one township lease.

 

283.           Subsection 3AA(1) establishes that the Minister may, by writing, approve the Commonwealth or a Commonwealth authority as an approved entity for the purposes of paragraph (a) of the definition of ‘approved entity’ in subsection 3(1), as amended by item 1.

 

284.           Subsection (2) sets out the approval process for CATSI corporations to become approved entities for the purposes of paragraph (b) of the definition of ‘approved entity’ in subsection 3(1). Under subsection 3AA(2) the Minister may, by writing, approve a CATSI corporation as an approved entity for an area of land known by a particular name if the Minister is satisfied of a number of conditions:

 

a)       the Minister must be satisfied that the Land Council for the area in which the area of land is situated has nominated the corporation to be an approved entity for the area of land known by that name;

 

b)       a majority of members of the corporation must either be the traditional owners of land that constitutes, or forms part of, the area of land known by that name or they must be Aboriginal people who live in the area of the land known by that name; and

 

c)       any conditions determined under subsection 3AA(9) must also be satisfied.

 

285.           Subsection 3AA(3) provides that any approval under subsection 3AA(2) must specify the name by which the area of land is known, but need not otherwise delineate the area of land. The relevant township may not already be prescribed under new section 3AB when a nomination is received by the Minister. The intent is that the area of land be described by the nomination with a sufficient level of specificity so that it is broadly understood what the township includes (e.g. the land may include land nearby on which there is a barge landing). Later, when the township is prescribed by legislative instrument, the area of land will be described in detail.

 

286.           Subsection 3AA(4) empowers a Land Council to nominate a CATSI corporation that satisfies the conditions in paragraph 3AA(2)(b) to be an approved entity for an area of land situated in the Council’s area. The Minister need not consider a nomination that is submitted by a Land Council.

 

287.           Subsection 3AA(5) sets out how the nominations under subsection 3AA(4) must be formulated. Paragraphs 3AA(5)(a)-(g) prescribe that the nomination must meet the following requirements:

 

a)       be given to the Minister in writing;

 

b)       specify the name by which the area of land is known;

 

c)       describe the area of land (but need not delineate the area);

 

d)      set out the names of the CATSI corporation’s members;

 

e)       contain a declaration to the effect that the Land Council is satisfied the corporation satisfies the condition in paragraph (2)(b) (i.e. a majority of the members of the corporation are either: (i) the traditional owners of land that constitutes, or forms part of, the area of land known by that name; or (ii) Aboriginal people who live in the area of land known by that name);

 

f)        set out a description of any consultation by the Land Council with the following persons:

 

i.         traditional owners of land that constitutes, or forms part of, the area of land;

 

ii.       Aboriginal people who live in the area of land; and

 

iii.     any other Aboriginal community or group that may be affected by the nomination; and

 

g)       contain any other information determined under subsection 3AA(9).

 

288.           Subsection 3AA(6) outlines matters to which the Minister must or may have regard in deciding whether to approve a body as an approved entity:

 

a)       the Minister must have regard to relevant matters determined under subsection 3AA(9 ); and

 

b)       the Minister may have regard to any matters determined under subsection 3AA(9) and any other matters the Minister considers relevant.

 

289.           Subsection 3AA(7) enables the Minister to revoke an approval under subsection (1) or (2) by writing if the Minister considers it appropriate to do so. However, subsection (8) requires that before the Minister revokes an approval of a CATSI corporation, the Minister must consult the Land Council that nominated the corporation. The consultation process with the Land Councils will facilitate how the parties propose to deal with the township lease if a revocation is proposed. Existing leases have mechanisms that provide for the surrender of the lease or the transfer of the lease to another approved entity, prior to a lease being terminated.

 

290.           Subsection 3AA(9) enables the Minister to determine, by legislative instrument, the following matters:

 

a)       conditions that the Minister must be satisfied of for the approval of a CATSI corporation;

 

b)       information that must be included in a nomination for a CATSI corporation to be an approved entity; and

 

c)       matters to which the Minister must or may have regard in deciding whether to approve a body as an approved entity.

 

Items 5 and 6 - Section 19A

291.           Items 5 and 6 amend section 19A to clarify the requirements for when a Land Trust may grant a lease of a township to an approved entity that is a CATSI corporation.

 

292.           Item 5 inserts new paragraph 19A(1)(c) to require that a Land Trust may grant a lease of a township to a CATSI corporation if some or all of an area of land for which the corporation is approved under subsection 3AA(2) falls within the area of the township.

 

293.           Item 6 inserts new paragraph 19A(8)(c) to require that a lease granted under section 19A may be transferred to an approved entity that is a CATSI corporation only if some or all of an area of land for which the corporation is approved under subsection 3AA(2) falls within the area of the township.

 

Item 7 - After section 19A

294.           Item 7 inserts new section 19B, which provides for the expenditure of approved entities to be in accordance with approved estimates.

 

295.           Paragraph 19B(1)(a) requires an approved entity to prepare estimates as directed by the Minister and submit those estimates as directed by the Minister of its expenditure to meet its costs of:

 

a)       acquiring leases, or administering leases granted or transferred to the approved entity, under section 19A; or

 

b)       the payment of amounts under leases granted or transferred to the approved entity under section 19A.

 

296.           The Note clarifies that this new section works in conjunction with existing paragraphs 64(4A)(a) and (b), in that the Minister must have regard to approved estimates when directing that an amount be paid from the ABA under paragraph 64(4A)(a) or (b). Pursuant to subsection 64(4A), the Minister may direct amounts to be paid in relation to:

 

a)       the acquiring of leases by, or the administering of leases granted or transferred to, approved entities under section 19A; or

 

b)       the payment of amounts under leases granted or transferred to approved entities under section 19A.

 

297.           Subsection 19B(2) provides that the Minister may direct an approved entity to prepare estimates for a period that is wholly or partly concurrent with another period.

 

298.           Subsection 19B(3) provides that if the Minister has directed an approved entity to prepare estimates for a period, money of the approved entity must not be spent to meet its costs in respect of the period otherwise than in accordance with estimates of expenditure approved by the Minister. However, this is subject to subsection (4), which confirms that where the estimates have been approved by the Minister, the amount of expenditure in relation to a matter or matters covered by an item may not exceed the amount by 20 per cent.

 

299.           Subsection 19B(5) prevents approved entities from being able to spend money in excess of the total amount of expenditure provided for by their estimates. The intention of subsections 19B(3), (4) and (5) is to provide flexibility between the various items listed in the approved estimates but to prohibit expenditure over and above the total amount approved by the Minister. 

 

300.           Subsection 19B(6) outlines that where the approved entity is the Commonwealth, then an obligation imposed by section 19B must be fulfilled by the EDTL.

 

301.           Subsection 19B(7) notes that nothing in section 19B affects a requirement under section 36 of the PGPA Act to prepare budget estimates in relation to an approved entity that is the Commonwealth or a Commonwealth authority (within the meaning of the Lands Acquisition Act 1989 ).

 

Items 8 to 16 - Sections 19C to 19E

302.           Due to the repeal of the definitions of ‘Commonwealth entity’ and ‘NT entity’ by item 1, sections 19C, 19D and 19E have been updated to refer to ‘an approved entity’ instead. Items 8 to 15 make these amendments.

 

303.           Item 16 repeals subsection 19E(4), which previously required that the regulations, which could make modifications of any law of the NT, will cease to have effect if a township lease is transferred to an NT entity in accordance with section 19A. Due to the repeal of the definition of ‘NT entity’ this subsection has ceased to have effect.

 

Item 17 - After subsection 34(1)

304.           Subsection 34(1) requires a Land Council to prepare estimates, in such form as the Minister directs, of its expenditure to meet its administrative or capital costs for each financial year and, if the Minister so directs, for any other period and the Land Council shall submit those estimates to the Minister for their approval not later than such date as the Minister directs. Item 17 inserts new subsection 34(1), which clarifies that a period directed under subsection (1) may be wholly or partly concurrent with a financial year or other period for which the Land Council is required to prepare estimates.

 

Item 18 - After subsection 37(5)

305.           Section 37 provides, among other things, that the annual report prepared for a Land Council and given to the Minister under section 46 of the PGPA Act must also include the matters set out in section 37.

 

306.           Item 18 inserts subsection 37(5A), which requires the Land Councils to include in their annual reports: the name of the township, the name of the approved entity and the name of any other party to the lease. This requirement applies if a lease (granted or transferred to an approved entity under section 19A) of a township, in the area of the Land Council, is in effect at any time during that period of the annual report.

 

Item 19 - After subsection 64(4A)

307.           Item 19 inserts subsection 64(4B) into section 64 of the Act, which confirms that in giving a direction to debit the ABA to which paragraph (4A)(a) or (b) applies, the Minister must have regard to the most recent estimates approved by the Minister under subsection 19B(1) in relation to each approved entity. Item 7 also refers.

 

Item 20 - Subsection 70E(15)

308.           Subsection 70E(1) provides for a person to enter or remain on a road that is within community land if the entry or remaining is not for a purpose that is unlawful. Subsection 70E(15) says that if a road to which subsection (1) applies is covered by a section 19A lease to a Commonwealth entity or an NT entity, the EDTL or the NT entity (as the case may be) may, by written determination, impose temporary restrictions on the entry or remaining on the road for the purpose of protecting public health or safety.

 

309.           Item 20 repeals and substitutes subsection 70E(15), leaving the substance of the provision unchanged but updating the text to reflect the amendments at item 1 to the terminology of ‘Commonwealth entity’ and ‘NT entity’ to ‘approved entity’.

 

Item 21 - Subsection 70F(12)

310.           Subsection 70F(1) provides that a person may enter or remain on a common area that is within community land if the entry or remaining is not for a purpose that is unlawful. Subsection 70F(12) says that if a common area to which subsection (1) applies is covered by a section 19A lease to a Commonwealth entity or an NT entity, the EDTL or the NT entity (as the case may be) may, by written determination, impose temporary restrictions on the entry or remaining on the common area for the purpose of protecting public health or safety.

 

311.           Item 21 repeals and substitutes subsection 70F(12), leaving the substance of the provision unchanged but updating the text to reflect the amendments at item 1 to the terminology of ‘Commonwealth entity’ and ‘NT entity’ to ‘approved entity’.

 

Item 22 - Saving provision - pre-commencement approvals

312.           Item 22 is a saving provision for approvals in force immediately before its commencement. Sub-item (1) outlines that the Commonwealth entity approval of either the Commonwealth or a Commonwealth authority continues in force (and may be dealt with) on and after that commencement as if it were a subsection 3AA(1) approved entity approval of the relevant body.

 

313.           Sub-item (2) confirms that a Commonwealth entity approval of a CATSI corporation continues in force (and may be dealt with) on and after the commencement of item 22 as if it were a separate subsection 3AA(2) approval and the Land Council for the area in which the relevant township is situated had nominated the corporation to be an approved entity for the area of land of the township.

 

314.           Sub-item (3) provides for the definitions of key terms used in item 22.

 

Item 23 - Application of amendment - additional Land Council reporting requirement

315.           Item 23 is an application provision that clarifies the application of new subsection 37(5A) inserted by item 18 regarding the additional Land Council reporting requirement. Item 23 provides that subsection 37(5A) applies in relation to an annual report for a period in which this item commences and annual reports for later periods.

 

Part 2 - Agreements in relation to deeds held in escrow

 

Aboriginal Land Rights (Northern Territory) Act 1976

 

Item 24 - After subsection 11A(6)

316.           Section 11A provides that a person who desires to obtain an estate or interest in land under claim may, before the land is granted to a Land Trust, make representations to the relevant Land Council concerning the person’s plans in respect of the relevant land. A Land Council may agree with the person that it will, if the relevant land is granted to a Land Trust, direct the Land Trust to grant an estate or interest in that land to that person and that agreement shall specify the terms and conditions on which the proposed grant is to be made.

 

317.           Item 24 adds new subsection 11(6A) into section 11A, which clarifies that an agreement under subsection 11A(2) does not create an estate or interest in the relevant land that would prevent the relevant land from being granted to the Land Trust.

 

Item 25 - After section 12C

318.           Item 25 inserts new section 12D into the Land Rights Act. New section 12D concerns land that is the subject of a deed in escrow, and allows the Land Councils to enter into agreements regarding this land. The purpose of these amendments is to provide certainty for all stakeholders where there is a transition from one form of land tenure to another. For example, where a deed of grant of Aboriginal land is held in escrow over land that will transition to a township lease, the current occupants of the township will have the option of making representations to the Land Council for an agreement.

 

319.           Subsection 12D(1) confirms that if: land is the subject of a deed of grant held in escrow by a Land Council; and a person (the proponent) desires to obtain an estate or interest in the land; the proponent may make representations to the Land Council concerning the proponent’s plans for the land.

 

320.           Subsection 12D(2) provides that at any time before the deed is delivered to the Land Trust, the Land Council may agree with the proponent that the Land Council will, if the deed is delivered to the Land Trust, direct the Land Trust to grant the proponent an estate or interest in the land.

 

321.           Subsection 12D(3) requires that the agreement specify the terms and conditions on which the proposed grant is to be made.

 

322.           Subsection 12D(4) sets out three matters that the Land Council must first satisfy itself prior to entering into a section 12D agreement:

 

a)       the traditional Aboriginal owners (if any) of the land understand the nature and purpose of the proposed grant and, as a group, consent to it;

 

b)       any Aboriginal community or group that may be affected by the proposed grant has been consulted and has had adequate opportunity to express its view to the Land Council; and

 

c)       the terms and conditions on which the proposed grant is to be made are reasonable.

 

323.           Subsections 12D(5) to (7) outline the binding nature of the agreement. Subsection (5) notes that the agreement is binding on any successors to the Land Council. Subsection (6) requires a Land Council to, immediately after the deed is delivered to the Land Trust, in writing direct the Land Trust to grant an estate or interest in the land on the terms and conditions set out in the agreement. However, subsection (7) provides that a failure to comply with subsection (4) does not invalidate the agreement.

 

324.           Subsections 12D(8) and (9) clarify the nature of the agreement. Subsection (8) specifies that the agreement does not create an estate or interest in the land that would prevent the deed from being delivered to the Land Trust. Lastly, subsection (9) states that, an estate or interest in land includes a mining interest or licence in respect of the land.

 

Item 26 - Section 13 (heading)

325.           Item 26 repeals the heading of section 13 ‘Grants of interests in land the subject of a deed in escrow’ and substitutes a new heading ‘Land subject of deed in escrow - grants of interests by the Crown’. The change made by this item aligns the section 13 heading with the format of the section 12D heading ‘Land subject of deed in escrow - Land Councils may enter into agreements’.

 

Item 27 - Subparagraph 23(1)(e)(i)

326.           Item 27 amends subparagraph 23(1)(e)(i), which confirms that where land is held by a Land Trust one of the functions of a Land Council is to negotiate with persons desiring to obtain an estate or interest in land in the area of the Land Council on behalf of the traditional owners (if any) of that land and of any other Aboriginals interested in the land. The subparagraph will be updated to clarify that the Land Council also has this function where the land is the subject of a deed of grant made to a Land Trust under section 12 that the Land Council holds in escrow.

 

Part 3 - Miscellaneous amendments

 

Aboriginal Land Rights (Northern Territory) Act 1976

 

Item 28 - Subsection 3(1)

327.           Item 28 amends subsection 3(1) to insert a definition of ‘Aboriginal people or Aboriginal person: see Aboriginal’ to reflect language and terminology used in the amendments to the Land Rights Act. This definition does not substantively change the meaning of any sections of the Land Rights Act as the newly defined terms refer to the term ‘Aboriginal’, which is already defined under subsection 3(1).

 

Item 29 - Subsection 27(3)

328.           Item 29 amends subsection 27(3), which says that a Land Council shall not, without the approval of the Minister, enter into, or permit a Land Trust holding land in its area to enter into, a contract involving the payment or receipt of an amount exceeding $1,000,000 or, if a higher amount is prescribed, that higher amount. The amount has been raised from $1,000,000 to $5,000,000.

 

329.           This subsection was amended in 2006 when the threshold amount was raised from $100,000 to $1,000,000. Increasing the amount to $5,000,000 is to prevent unnecessary delay and provide additional flexibility to the Land Councils.

 

Items 30 to 32 - Sections 28 to 28F

330.           Item 30 repeals subsection 28(3), which permitted the Land Councils to delegate various functions or powers to a CATSI corporation. As a result, sections 28A to 28F are repealed by item 32. Section 28A dealt with delegation of a Land Council’s functions or powers to CATSI corporations. Section 28B dealt with variation or revocation of a delegation to a CATSI corporation. Section 28E required a Land Council to provide assistance to CATSI corporations in certain circumstances. Section 28F required a CATSI corporation to give notice of a decision under a delegation from a Land Council.

 

331.           Any pre-commencement delegations or applications will cease on commencement.

 

332.           Item 31 inserts a heading before subsection 28(4) which reads ‘Functions and powers that depend on satisfaction of certain matters’.

 

Item 33 - Subsection 37(6)

333.           Item 33 repeals subsection 37(6), which sets out that if a delegation to a CATSI corporation is in force during an annual report period, the report must include particulars of the activities of the corporation during that period to the extent they relate to the delegation. The repeal of subsection 37(6) is due to the amendments made by items 30 to 32, which repeal the ability to make such delegations.

 

Items 34 and 35 - Sections 74

334.           Items 34 and 35 amend section 74, which addresses the application of NT laws to Aboriginal land. The purpose of the amendments is to add clarity about the interaction of NT and Commonwealth legislation.

 

335.           Item 34 inserts subsection (1). New subsection 74(1) comprises the existing text of section 74, which states that the Land Rights Act does not affect the application to Aboriginal land of a law of the NT to the extent that that law is capable of operating concurrently with the Land Rights Act.

 

336.           Item 35 inserts new subsections (2) and (3) under section 74. Proposed subsection (2) provides that, without limiting subsection (1), the Land Rights Act is not intended to exclude or limit the concurrent operation of a law of the NT that also creates offences relating to the same or similar act or omission. Subsection (3) provides that subsection (2) applies even if the law of the NT provides for different penalties, fault elements or defences.

 

Item 36 - Section 74AA

337.           Item 36 repeals section 74AA (and the associated Note), which says that a permit issued under section 5 of the AL Act may only be revoked by the issuer of the permit. As a result, the Land Councils and traditional owners can only revoke permits issued by them under subsections 5(1) and 5(2) of the AL Act, respectively. Section 74AA prevents the Land Councils from revoking permits for access to Aboriginal land issued by small, minority groups of traditional owners that have failed to consult with the broader group of traditional owners, or do not have the support of that broader group.

 

338.           Section 74AA was inserted into the Land Rights Act by the Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Bill 2007. Repeal of section 74AA is supported on the basis that Land Councils are best placed to resolve disputes within traditional owner groups through their role in administering the Land Rights Act.

 

Item 37 - Application provision - repeal of limitation on revocation of permits

339.           Item 37 is an application provision, which confirms that the repeal of section 74AA of the Land Rights Act applies in relation to any permit, whether issued before, on or after the commencement of item 37.

 

Item 38 - Transitional - removal of delegation power to CATSI corporations

340.           Item 38 is a transitional provision, which confirms how section 28F and subsection 37(6) continue to apply despite their repeal.

 

341.           Sub-item 38(1) states that despite the repeal of section 28F, that section continues to apply, in relation to a decision made before item 38 commences by a CATSI corporation under a delegation, as if that repeal had not happened.

 

342.           Sub-item 38(2) states that despite the repeal of subsection 37(6), that subsection continues to apply, in relation to a report for a period that starts before item 38 commences, as if the repeal had not happened.

 

Part 4 - Amendments with delayed commencement

 

Division 1 - Prescribing township land

 

Aboriginal Land Rights (Northern Territory) Act 1976

 

Items 39 to 42 - Section 3AB

343.           Items 39 to 42 amend section 3AB, which defines a township, in relation to a Land Trust, as being either of two types of areas of Aboriginal land vested in that Land Trust.

 

344.           Subsections 3AB(2) and (3) state that the area of land is prescribed ‘by the regulations’. Items 39 and 40 update the wording in subsections 3AB(2) and (3) from prescribed ‘by the regulations’ to ‘by the Minister under subsection (3A)’.

 

345.           Item 41 inserts new subsection 3AB(3A) after subsection 3AB(3). Subsection 3AB(3A) is titled ‘Minister may prescribe areas in relation to all or particular Land Trusts’ and provides that the Minister may, by legislative instrument, prescribe areas of land in relation to all land Trusts for the purposes of subsection (2) or a particular Land Trust for the purposes of subsection (3).

 

346.           Item 42 amends subsection 3AB(5) to refer to subsection (3A) rather than subsection (3).

 

Item 43 - Transitional - references in leases to redundant provisions of the regulations

347.           Item 43 is a transitional provision that applies in relation to a lease of a township, granted or transferred under section 19A before the commencement of item 43. If the lease refers to the regulations as prescribing the township then, on and after the commencement of the provision of the instrument mentioned in paragraph (1)(b), the lease has effect as if the reference in the lease to the provision of the regulations were a reference to the provision of the instrument.

 

Division 2 - Penalty for entering or remaining on Aboriginal land

 

Aboriginal Land Rights (Northern Territory) Act 1976

 

Item 44 - Subsection 70(1) (penalty)

348.           Item 44 amends subsection 70(1), which provides that it is an offence for a person to enter or remain on Aboriginal land and applies ten penalty units for this offence. Item 44 increases the penalty to 50 penalty units.

 

349.           The proposed amendment will enhance the consistency of the Land Rights Act with other Commonwealth legislation, for example the Environment Protection and Biodiversity Act 1999 . Section 12.23 of the Environment Protection and Biodiversity Conservation Regulations 2000 includes a 50 penalty unit fine for entering or remaining in a Commonwealth reserve in contravention of a prohibition or restriction.

 

350.           There is a 12 month delay after Royal Assent for the commencement of item 44 to allow the NT to make amendments to the AL Act to provide for consistency. The AL Act makes it an offence to enter onto or remain on Aboriginal land or use a road unless a person has been issued with a permit to do so. Currently, the maximum penalty is 8 penalty units. See Items 34 and 35 above.  



 

Schedule 4 - Technical amendments to the ABA

 

Aboriginal Land Rights (Northern Territory) Act 1976

 

351.           Schedule 4 to the Bill amends the Land Rights Act to:

 

a)       align the ABA with the Commonwealth financial framework (items 1-3 and 5);

 

b)       authorise credits to the ABA on the basis of interim mining-derived payments, to align the provisions of the Land Rights Act with the way royalties are paid in practice (item 4); and

 

c)       facilitate balancing of the ABA, where excess amounts are credited to the ABA on the basis of interim mining-derived payments (items 6 and 7).

 

Items 1 to 3 and 5 - Subsection 63(5) and new section 63A

352.           Items 1, 2, 3 and 5 amend the Land Rights Act to align the language of Part VI with the Commonwealth financial framework (particularly the PGPA Act) and the constitutional framework that underpins it).



353.           Items 1 and 3 replace references in subsection 63(5) of the Land Rights Act to amounts being payable under subsection 63(4) of the Land Rights Act. Subsection 63(4) provides for credits to the ABA of amounts derived from mining operations conducted by or on behalf of the Commonwealth, the NT or an authority. Subsection 63(5) sets out the method of determining the amounts to be credited.

 

354.           These amendments align the language of subsection 63(5) with the rest of section 63 of the Land Rights Act and section 80 of the PGPA Act.



355.           As special accounts form part of the CRF, payments are not paid into special accounts from the CRF. Rather, amounts, which may correspond to amounts that have been paid, are credited to a special account. Item 2 inserts ‘amounts equal to’ before ‘such amounts’ in paragraph 63(5)(a) to reflect this arrangement.



356.           Item 5 inserts new section 63A into the Land Rights Act. New section 63A specifies the purposes of the ABA as paying amounts that are required or permitted to be paid under section 64 or 64A of the Land Rights Act.



357.           New section 63A of the Land Rights Act makes clear that the appropriation in section 80 of the PGPA Act covers expenditure where amounts are required or permitted to be paid under sections 64 and 64A of the Land Rights Act (a consequential change to new section 63A will occur under item 3 of Part 1 of Schedule 1). Subsection 80(1) of the PGPA Act provides that where an Act establishes a special account and identifies purposes of the special account, then the CRF is appropriated for expenditure for those purposes, up to the balance for the time being of the special account. The note directs the reader to section 80 of the PGPA Act.

 

Item 4 - New subsection 63(8)

358.           Item 4 adds new subsection 63(8) into the Land Rights Act. This provision aligns the ABA credit provisions with the manner in which mining royalties are paid in practice, and ensures that amounts purportedly credited into the ABA may be debited under section 64 of the Land Rights Act. This removes the possibility that an amount greater than the amount standing to the credit of the ABA might be debited from the ABA. In particular, the provision ensures that 30 per cent of the amount actually credited to the ABA can be paid to Land Councils as required by subsection 64(3) of the Land Rights Act. In doing so, the provision ensures that the administration of the ABA is in accordance with section 64 of the Land Rights Act.



359.           Specifically, new paragraph 63(8)(a) of the Land Rights Act clarifies that for the purposes of section 63 of the Land Rights Act, a royalty is taken to include an amount paid on account of royalty. This provision aligns the authority for crediting the ABA based on royalty amounts with administrative practice for these credits. Administrative practice in relation to credits based on royalty payments is a consequence of the process for assessing and auditing royalty payments under the Mineral Royalty Act. This process is explained at paragraphs 33 to 39 of the General Outline of this explanatory memorandum.



360.           New paragraph 63(8)(b) of the Land Rights Act provides that an amount may be credited to the ABA in purported compliance with a requirement to credit an amount to the ABA under subsection 63(4) of the Land Rights Act. This provision aligns authority for crediting the ABA as required by subsection 63(5) of the Land Rights Act with administrative practice for these credits.



361.           New subsection 63(8) of the Land Rights Act ensures that the balance of the ABA reflects the administrative practice for crediting the ABA with amounts equal to amounts paid on account of royalty, or amounts paid in purported compliance with subsection 63(4) of the Land Rights Act. In this way, new subsection 63(8) ensures that debits calculated on the basis of these amounts, particularly debits under subsection 64(3) of the Land Rights Act, are supported by the Land Rights Act and, consequently the appropriation in section 80 of the PGPA Act.

 

Items 6 and 7 - Section 64

362.           Item 7 amends Part VI of the Land Rights Act to provide mechanisms to balance the ABA where credits have been made:

 

a)       on account of royalties (rather than based on royalties assessed as payable); or

 

b)       in purported compliance with subsection 63(4) of the Land Rights Act.



363.           Item 6 confirms that the requirement to debit the ABA under subsection 64(3) of the Land Rights Act is subject to the mechanisms in new subsections 64(3A) and 64(3B) of the Land Rights Act.



364.           These mechanisms relate to the amendment in Item 4, which has the effect of authorising credits to the ABA based on interim mining-derived payments. The mechanisms provide capacity to ensure that:

 

a)       where excess amounts are credited to the ABA on the basis of interim mining-derived payments, debits calculated on the basis of these excess amounts can be adjusted before they are withdrawn from the CRF, or if they are withdrawn from the CRF, they can be offset against future debits from the ABA; and

 

b)       where debits are reduced, or offset against future debits, the balance of the ABA can be reduced to reflect royalties payable, or final determined amounts, rather than interim mining-derived payments. In doing so, these mechanisms support the continuation of the current policy of balancing the ABA.



365.           This item inserts new subsections 64(3A), (3B) and (3C) into the Land Rights Act. New subsection 64(3A) enables the Minister to reduce the amount of a debit from the ABA to a Land Council under subsection 64(3) of the Land Rights Act in respect of a mining interest or mining operations, having regard to:

 

a)       an amount paid on account of royalties being higher than the royalties later assessed as being payable in respect of that mining interest; or

 

b)       an amount credited to the ABA in purported compliance with subsection 63(4) of the Land Rights Act in respect of the mining operations being higher than the amount later determined as being required to be credited under subsection 63(4).



366.           The Minister’s power to reduce a debit is discretionary, and is limited to reducing the debit amount by the amount of the excess.



367.           The power in new subsection 64(3A) of the Land Rights Act ensures the Minister can adjust debits under subsection 64(3) of the Land Rights Act to reflect actual royalties payable, or the final determined amount that was required to be credited under subsection 63(4). The power could be utilised where final amounts are assessed or determined before debits are made under subsection 64(3) of the Land Rights Act.



368.           New subsection 64(3B) of the Land Rights Act enables the Minister to offset an excess amount of a debit to a Land Council under subsection 64(3) of the Land Rights Act in respect of a mining interest or mining operations against a future debit under subsection 64(3) in respect of the same mining interest or mining operations, where the amount of the first debit was higher than it should have been having regard to either:

 

a)       an amount paid on account of royalties being higher than the royalties later assessed as being payable in respect of the mining interest; or

 

b)       an amount credited to the ABA in purported compliance with subsection 63(4) of the Land Rights Act in respect of the mining operations being higher than the amount later determined as being required to be credited under subsection 63(4).



369.           The Minister’s power to offset a debit is discretionary. The debit that is offset and the future debit must be in respect of the same mining interest or mining operation.



370.           The power in new subsection 64(3B) of the Land Rights Act ensures the Minister can adjust future debits under subsection 64(3) of the Land Rights Act to reflect actual royalties payable, or the final determined amount that was required to be credited under subsection 63(4). The power could be utilised where final amounts are assessed or determined after debits are made under subsection 64(3) of the Land Rights Act.



371.           New subsection 64(3C) enables the Minister to balance the ABA if an amount is reduced under new subsection 64(3A) of the Land Rights Act, or offset under new subsection 64(3B) of the Land Rights Act. Depending on the applicable circumstances, the Minister may reduce the amount standing to the credit of the ABA (whether by way of a single reduction or a series of reductions) by an amount not greater than:

 

a)       the difference between the amount paid on account of royalties in respect of a mining interest and the amount of royalties later assessed as being payable in respect of the mining interest; or

 

b)       the difference between the amount that was credited to the ABA in purported compliance with subsection 63(4) of the Land Rights Act in respect of mining operations, and the amount later determined as being required to be credited in respect of the mining operations.



372.           The power in new subsection 64(3C) of the Land Rights Act ensures the Minister can balance the ABA to reflect actual royalties payable, or the final determined amount that was required to be credited under subsection 63(4) of the Land Rights Act.

 



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 (Economic Empowerment) Bill 2021

 

1.       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

2.       The Bill will empower Aboriginal peoples in the NT to activate the economic potential of their land for generations to come. The Bill will amend the Land Rights Act in four key areas:

 

a)       Establishing the NTAI Corporation

The Bill will establish the NTAI Corporation as a new Aboriginal-controlled corporate Commonwealth entity in the Land Rights Act to strategically invest in Aboriginal businesses and commercial projects and make other payments for the benefit of Aboriginal peoples in the NT. 

 

b)       Streamlining the exploration and mining provisions of the Land Rights Act

The Bill will reduce inefficiencies associated with exploration and mining processes on Aboriginal land in the NT by:

 

                             i.             improving the application and consent process for exploration licences on Aboriginal land so that:

-           applications can be amended without the need to recommence the application process;

-           Land Councils can take a more flexible approach to meetings with traditional owners; and

-           the Minister’s consent is not required following the Land Council providing notice of consent for the grant of an exploration licence;

 

                           ii.             enabling more efficient and consistent administration of exploration and mining on Aboriginal land;

 

                         iii.             updating terms and definitions relating to exploration and mining to align with related NT legislation.

 

c)       Improving and clarifying land administration provisions of the Land Rights Act

The Bill will improve land administration and enhance local decision-making by:

 

i.         prescribing nomination and approval processes and the funding arrangements for approved entities that may hold a township lease under section 19A of the Land Rights Act;

 

ii.       providing that Land Councils may enter into agreements in respect of land that is the subject of a deed of grant held in escrow;

 

iii.     increasing the amount at which Land Councils must seek Ministerial approval to enter into a contract from $1 million to $5 million;

 

iv.     removing the requirement that a permit issued under section 5 of the AL Act may only be revoked by the issuer of the permit;

 

v.       increasing the penalties for unauthorised access to Aboriginal land; and

 

vi.     repealing unused powers for the delegation of Land Council functions to Aboriginal corporations.

 

d)      Aligning the ABA with the Commonwealth’s financial framework

The Bill will align the Land Rights Act with the Commonwealth financial framework by:

 

i.         aligning the ABA with NT legislation for the payment of mineral royalties; and

 

ii.       clarifying the purposes of the ABA.

 

3.       The Land Rights Act provides a legislative framework for claims to, and the grant, regulation and management of, Aboriginal land in the NT, which is a form of freehol d land. Aboriginal land is the strongest form of traditional land title in Australia. Approximately 50 per cent of the NT is Aboriginal land under the Land Rights Act.

 

4.       Amendments to the Land Rights Act are not common. Aboriginal stakeholders in the NT have strong voices through their Land Councils (the NLC, CLC, ALC and TLC) and the Commonwealth has committed to only amend the Land Rights Act with their support.

 

5.       Traditional owners of Aboriginal land hold decision-making powers over land access and use. The Land Councils assist traditional owners to acquire and manage their land. Land Councils must consult with traditional owners and affected Aboriginal people to ensure land use proposals are understood and consented to by the traditional owners.

 

6.       This Bill is informed by an extensive co-design process with Aboriginal Territorians through their Land Councils. In particular:

 

a)       the ABA Reform Working Group, including representatives from the Commonwealth, Land Councils and the ABAAC has been meeting since 2018 to design ways to increase Aboriginal decision-making over the ABA for the benefit of Aboriginal peoples in the NT, and to co-design the NTAI Corporation and administration of Aboriginal land. These reforms have been requested by Aboriginal Territorians, through their Land Councils;

 

b)       negotiations regarding options for beneficial amendments to the exploration and mining provisions of the Act have been long-standing. A Working Group comprising representatives from the Land Councils, the NT Government and the Commonwealth (as represented by the NIAA and DISER) was established in 2015 to consider the 2013 Report on Review of Part IV of the Aboriginal Land Rights (Northern Territory) Act 1976 . In addition to the Working Group, there has been significant consultation with relevant industry peak bodies; the MCA NT, APPEA and the AMEC;

 

c)       the NIAA has consulted the EDTL in relation to the amendments contained in Schedule 3; and

 

d)      during 2019-2020, the Gove Peninsula Futures Land Tenure Working Group, comprised of representatives from the Rirratjingu Aboriginal Corporation, Gumatj Corporation, NLC, NT Government, Rio Tinto and NIAA, requested enhanced certainty for parties negotiating agreements in respect of land that is the subject of a deed of grant held in escrow.

Human rights implications



7.       This Bill engages the following human rights:



a)       the right of self-determination in Article 1 of the International Covenant on Civil and Political Rights (ICCPR) and Article 1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR);



b)       the right to enjoy, practice and benefit from culture in Article 27 of the ICCPR and Article 15 of the ICESCR; and



c)       the rights of equality and non-discrimination in Articles 2, 16 and 26 of the ICCPR, Article 2 of the ICESCR and Article 5 of the International Convention on the Elimination of all forms of Racial Discrimination (CERD).

 

The right to self-determination



8.       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 col lective right applying to groups of ‘peoples’. This is in contrast to the right to enjoy, practice and benefit from culture, which protect the rights of individuals within a group. The right is widely understood to be exercisable in a manner that preserves territorial integrity, political unity and sovereignty of a country.



9.       The right is also contained in Articles 3 and 4 of the United Nations Declarations on the Rights of Indigenous Peoples (UNDRIP). While UNDRIP is not included in the definition of ‘human rights’ under the Human Rights (Parliamentary Scrutiny) Act 2011 , it informs the way governments engage with and protect the rights of Indigenous peoples. Article 18 of UNDRIP also provides that ‘Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions’.



10.   The ABA is a special account continued in existence by Part VI of the Land Rights Act. It is credited and debited in accordance with the provisions of Part VI, which includes the crediting of moneys equivalent to moneys received in respect of mining on Aboriginal land in the NT.

 

11.   The Bill facilitates the economic development of Indigenous peoples by establishing an Aboriginal-controlled entity that will decide how part of the moneys derived from mining on Aboriginal land may be used. A key function of the NTAI Corporation is to make payments to or for the benefit of Aboriginal peoples living in the NT and strategically invest in Aboriginal businesses and commercial projects. At least eight of the 12 Board members of the NTAI Corporation will be Aboriginal persons living in the NT.

 

12.   In making payments and investments, the NTAI Corporation must have regard to its Strategic Investment Plan. In developing, or revising, a strategic investment plan, the Board of the NTAI Corporation must consult with Aboriginal peoples living in the NT and Aboriginal organisations based in the NT. Consequently, Aboriginal peoples and communities in the NT will be involved in shaping how payments and investments are made. This advances the right to self-determination by allowing traditional owners to make decisions and provide their informed consent, and upholds the collective nature of decision-making.

 

13.   The Bill will streamline township leasing provisions to accommodate community entities, in the form of CATSI corporations, holding township leases. In particular, it will prescribe the obligations of, and nomination and approval process for, community entities holding township leases under section 19A of the Land Rights Act. This will help empower traditional owners themselves to hold township leases through an approved entity such as a local CATSI corporation. Consistent with the right of Aboriginal peoples to self-determination, this will facilitate increased uptake of community entity township leasing, and therefore increased local control over decision-making on Aboriginal land.



14.   The Bill enables Land Councils to enter into agreements in respect of land the subject of a deed of grant held in escrow. These measures protect the right to self-determination, as Land Councils currently do not have the ability to enter into such agreements. Land Councils must be satisfied of the following before entering into such agreements:

 

a)       that the traditional owners of the relevant land understand the nature and purpose of the proposed agreement and, as a group, consent to it;

 

b)       that any Aboriginal community or group that may be affected by the agreement has been consulted and has adequate opportunity to express its views to the Land Council; and

 

c)       that the terms and conditions on which the agreement is to be made are reasonable.



15.   The Bill updates the permit system through which access to Aboriginal land is regulated. The Bill repeals section 74AA, which relates to the issuing and revoking of permits for access to Aboriginal land. This change will ensure that permits issued by minority groups within traditional owner communities can be revoked by Land Councils, enabling land access to be managed in accordance with the wishes of each traditional owner community as a whole.

 

16.   The Bill supports the right to self-determination by clarifying the process for traditional Aboriginal owner s’ to consider granting or refusing exploration and mining proposals on Aboriginal land. This ‘veto’ right is a powerful one, representing the high benchmark in Aboriginal control over proposals and developments on Aboriginal land. It may be applied to an exploration application in whole or part.

 

 

17.   Generally, the proposed measures will facilitate the ability of Aboriginal Territorians to realise their own economic development and to continue to pursue their own financial autonomy. As such, the Bill advances the right of Aboriginal peoples to self-determination.

 

The right to enjoy, practice and benefit from culture



18.   The right to enjoy, practice 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.



19.   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.



20.   The United Nations Committee on Economic, Social and Cultural Rights (UNCESCR) ha s stated that Indigenous peoples’ cultural values and rights associated with their ancestral lands and their relationship with nature should be protected and regarded with respect. 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. UNCESCR has noted, in particular, that Indigenous peoples have the right to act collectively to protect their cultural heritage, traditional knowledge and cultural expressions.

 

21.   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.



22.   The Bill advances the right of Aboriginal Territorians to enjoy and benefit from culture by establishing the NTAIC, which has as one of its primary purposes the promotion of the social and cultural wellbeing of Aboriginal peoples living in the NT. The NTAIC can achieve this purpose by making payments to or for the benefit of Aboriginal peoples living in the NT and investments to promote social and cultural wellbeing of Aboriginal peoples living in the NT. The Bill promotes this right by providing an opportunity to make money available to Aboriginal peoples and businesses in the NT, many of which directly link to and promote cultural practices and the use of resources on Aboriginal land (such as aquaculture projects, tour operations or bush tucker harvesting). As the money available to the NTAI Corporation to make payments and investments is derived from mining on Aboriginal land, the Bill also supports Aboriginal peoples to derive benefit from the use of resources on their land.

 

23.   The Bill will embed community entity township leasing in the Act. Land Councils, traditional owners, and communities will therefore be empowered to regulate the flow of payments through terms of their choosing within each township lease. This allows Aboriginal peoples to enjoy, practice and benefit from culture as community entities are the best-placed organisations to ensure funds are used to benefit economic and community development outcomes.

 

24.   The Bill will preserve traditional owners’ right to enjoy, practice and benefit from culture by simplifying the application process which provides the veto right over the whole or part of the proposed area of exploration or mining. Traditional owners may refuse consent to the grant of an exploration licence, and therefore also any mining on their country, by so doing protect their country, sacred sites and culture.

 

25.   The Bill makes amendments to the process for traditional owners’ right to enter into and benefit from agreements over the whole or part of the area proposed for exploration or mining. Such agreements, as negotiated between applicants and Land Councils (on behalf of traditional Aboriginal owners), include terms and conditions for the protection of sacred sites and other culturally significant areas, as well as monetary benefits to compensate for the impacts of exploration and/or mining. The proposed reforms clarify that such agreements may provide for compensation to traditional Aboriginal owners for the value of minerals removed or proposed to be taken from the land. By consenting to exploration and mining on their land, Aboriginal owners can realise economic benefits of land ownership while also practicing and protecting their cultural interests.



The rights of equality and non-discrimination



26.   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 again st. Of particular relevance in the context of this Bill, the CERD establishes a general prohibition on racial discrimination. The Racial Discrimination Act 1975 implements the prohibition in Australia’s domestic law.



27.   Subsection 8(1) of the Racial Discrimi nation Act 1975 , in accordance with Article 1(4) of CERD, allows ‘special measures’ which are designed to ensure advancement of certain groups. ‘Special measures’ are an exception to this general prohibition and are designed to ‘secure to disadvantaged groups the full and equal enjoyment of human rights and fundamental freedoms’. Where a ‘special measure’ is taken, it is deemed not to be racial discrimination. For a measure to be characterised as a ‘special measure’ it must:

 

a)       be for a particular group or individuals;

 

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

 

c)       be ‘necessary’; and

 

d)      not continue after its objective has been achieved.

 

28.   As Justice Lockhart noted in Pareroultja v Tickner (1993) 42 FCR 32 (Pareroultja), the Land Rights Act is essentially discriminatory in its nature, as it ‘confers rights and privileges upon Aboriginal Australians which are discriminatory as against non-Aboriginal Australians.’ Justice Lockhart also commented in Pareroultja (at [57]) that this discrimination ‘is the essence of the [Land Rights Act]; it is the foundation on which it is structured’.

 

29.   However, the Courts have recognised the Land Rights Act as a ‘special measure’ (see Lockhart J’s comments in Pareroultja, at [63]). Accordingly, the Land Rights Act remains necessary to address continuing disadvantage faced by Aboriginal peoples in the NT as a result of historical dispossession.

 

30.   The Bill introduces measures to the Land Rights Act that will bolster the support needed to meet the unique needs and cultural contexts of Aboriginal peoples. The creation of the NTAI Corporation, for example, NTAI Corporation provides an opportunity for Aboriginal peoples in the NT to have a say on how money ultimately derived from mining on Aboriginal land is to be used. This measure supports Aboriginal peoples to derive benefit from the use of resources on their land.

 

31.   In addition, the Bill will improve township leasing provisions to more easily accommodate community entities holding township leases. This further promotes self-management and autonomy among Aboriginal peoples by facilitating traditional owners themselves to hold township leases through a CATSI corporation.

 

32.   The measures in this Bill complement and enhance the existing measures in the Land Rights Act and, consequently, may be characterised as components of a broader ‘special m easure’.

Conclusion

33.   The Bill is compatible with human rights because it promotes the right to self-determination and the right to enjoy, practice and benefit from culture. The Bill also advances the rights of equality and non-discrimination by enhancing an existing special measure.