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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

 

 

 

 

 

SENATE

 

 

 

 

 

aboriginal land rights (northern territory) amendment (economic empowerment) Bill 2021

 

 

 

 

 

ADDENDUM TO THE EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Indigenous Australians,

the Honourable Ken Wyatt AM MP)



aboriginal land rights (northern territory) amendment (economic empowerment) Bill 2021

 

This addendum responds to concerns raised by the Senate Standing Committee for the Scrutiny of Bills in Scrutiny Digest 16 of 2021 , dated 21 October 2021.

 

Corrections to the Notes on Clauses

 

Insert a new paragraph after paragraph 42

 

42.1. The no-invalidity clause in subsection 65BH(3) is necessary and appropriate as it protects the rights of, and provides business certainty for, entities transacting with the NTAI Corporation. This is consistent with existing no invalidity provisions in the Land Rights Act, which protect the rights of persons who have estates or interests granted to them under the Land Rights Act.

 

Insert new paragraphs after paragraph 73

 

73.1. The strategic investment plan is an administrative document setting out the NTAI Corporation’s priorities and principal objectives in relation to performing its functions, developed in consultation with Aboriginal people and organisations in the NT. The NTAI Corporation must have regard to the strategic investment plan in performing its functions (see paragraph 65BC(b)) and an acquisition of a derivative must be consistent with the strategic investment plan (see subsection 65BL(2)). In this respect, it is not determining the law or altering its content, does not affect rights or interests and is clearly administrative in nature, acting to guide how the NTAI Corporation exercises its functions and powers in particular circumstances and provide engagement with and transparency to Aboriginal people and organisations in the NT in developing its priorities.

 

Insert new paragraphs after paragraph 198

 

198.1. The progress reports under this item are an additional transitional measure that can be invoked at the discretion of the Minister for Indigenous Australians to provide supplementary information to Government during the first 3 years of the NTAI Corporation’s operation. The transitional reports are likely to be operational in nature and will be followed by published and tabled strategic investment plans.

 

198.2. These progress reports may contain commercially sensitive material or other sensitive information. This creates a need for discretion to publish in order to protect sensitive commercial information, particularly where third parties may be involved. 

 



 

Insert new paragraphs after paragraph 290

 

290.1. As outlined above, the key details of what is required to constitute a nomination are prescriptively set out in subsection 3AA(5). Further, the Minister may only approve a CATSI corporation as an approved entity if they are satisfied of the matters set out in subsection 3AA(2). However, it is not possible to predict all of the conditions, information and matters that should be considered by the Minister in the future.

 

290.2. It is necessary and appropriate to provide the Minister with sufficient flexibility to determine, by legislative instrument, additional conditions, information, and matters that must or may be taken into account in the nomination and approval process for CATSI corporations as approved entities. This flexibility is a prudent mechanism that will ensure that the processes mature over time as more community entity township leases are granted.

 

290.3. In accordance with the requirements for making legislative instruments under the LA Act, the Minister must be satisfied that appropriate consultation has been undertaken in relation to the proposed legislative instrument. In addition, the instrument is subject to Parliamentary scrutiny, disallowance and sunsetting requirements.

 

Insert new paragraphs after paragraph 323

 

323.1. The no-invalidity clause in subsection 12D(7) will further facilitate such arrangements by giving certainty to proponents entering into such agreements with the Land Council. Security and certainty of land tenure is a crucial element that has been built into proposed section 12D. Certainty of tenure provides incentives for investment in land and therefore an impetus for sustainable economic development. If a section 12D agreement is not certain, it is unlikely that proponents would have an interest in continuing to live and work in mining towns transitioning to Aboriginal land under the Land Rights Act. The end result being poor economic outcomes for those communities derived from a reduction in residents and businesses due to uncertainty of tenure.

 

323.2. Section 12D is modelled off existing section 11A of the Land Rights Act, which permits the Land Councils to enter into agreements concerning land under claim. This section also has a no-invalidity clause to protect the rights and interests of persons who have entered into an agreement with the Land Council.

 

323.3. The no-invalidity clause is necessary and appropriate to ensure that a failure by the Land Council to comply with subsection 12D(4) does not affect the validity of the agreement. As discussed above, this is considered important to ensure the integrity and certainty of the agreement where compliance with subsection 12D(4) may be called into question at a later time.