2016-2017

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

 

ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) AMENDMENT BILL 2017

 

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by the authority of the

Minister for Indigenous Affairs, Senator the Hon Nigel Scullion)

ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) AMENDMENT BILL 2017

 

 

OUTLINE

 

The Bill adds areas subject to traditional land claims in the Kakadu region in the Northern Territory (Kakadu Land) to Schedule 1 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Land Rights Act) so that the Kakadu Land can be granted as Aboriginal land. The Bill also provides for the leaseback of the Kakadu Land to the Director of National Parks (Director).

 

The Bill also adds areas in the town of Urapunga that are subject to the Township of Urapunga Indigenous Land Use Agreement (Urapunga Land) to Schedule 1 of the Land Rights Act so that the Urapunga Land can be granted as Aboriginal land.

 

 

FINANCIAL IMPACT STATEMENT

 

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

 

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

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

 

ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) AMENDMENT BILL 2017

 

 

NOTES ON CLAUSES

 

Clause 1 - Short title

 

Clause 1 sets out how the new Act is to be cited, that is, as the Aboriginal Land Rights (Northern Territory) Amendment Act 2017.

 

Clause 2 - Commencement

 

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

 

Clause 3 - Schedules

 

Clause 3 provides that each Act that is specified in a Schedule is amended or repealed as set out in that Schedule.

Schedule 1 - Kakadu

 

Summary

 

The Kakadu Land will be inserted into Schedule 1 to the Aboriginal Land Rights (Northern Territory) Act 1976 (Land Rights Act) to enable the land to be granted as Aboriginal land.

 

This Bill also provides for the leaseback of the Kakadu Land to the Director of National Parks (Director).

 

Background

 

The Kakadu Land comprises approximately 50 per cent of the total area of the Kakadu National Park (Park). The balance of the Park (other than the Jabiru township) is already Aboriginal land under the Land Rights Act, subject to leaseback arrangements with the Director.

 

The Kakadu Land is comprised in the following, currently unresolved, land claims:

 

·          Ngombur (Repeat) Land Claim No. 93 (claim lodged with the Aboriginal Land Commissioner on 23 November 1984);

 

·          Alligator Rivers Area III (Gimbat and Goodparla) Land Claim No. 111 (claim lodged with the Aboriginal land Commissioner on 26 June 1987);

 

·          Kakadu (Jim Jim) Area Land Claim No. 122 (claim lodged with the Aboriginal Land commissioner on 18 April 1989); and

 

·          Kakadu Region (Repeat) Land Claim No. 179 (claim lodged with the Aboriginal Land Commissioner on 29 May 1997).

 

The parties to the land claims have agreed to settle the claims on the basis of the Kakadu Land being scheduled for grant as Aboriginal land under the Land Rights Act, on the condition of an immediate leaseback of the Kakadu Land to the Director.

 

The Bill therefore provides for the inclusion of the Kakadu Land in Schedule 1 Part 4 of the Land Rights Act.

 

 

 

 

 

 

 

 

 

 

Explanation of the changes

 

Part 1 - Amendments

 

Aboriginal Land Rights (Northern Territory) Act 1976

 

Item 1 - Subsection 3(1)

 

Item 1 repeals the definitions of ‘Alligator Rivers Area (No. 3)’ and ‘Gimbat, or Goodparla’ in subsection 3(1) of the Land Rights Act.

 

Northern Territory Portion 7456 delineated on Survey Plans S2015/186 (A to H), which is included in the Kakadu Land, comprises most of the area currently described as the ‘Alligator Rivers Area (No. 3)’ in subsection 3(1) and Schedule 4 of the Land Rights Act.

 

Northern Territory Portion 7457 delineated on Survey Plans S2015/187 (A to H) and S2015/187 (J to L), which is included in the Kakadu Land, comprises the area currently described as ‘Gimbat or Goodparla’ in subsection 3(1) of the Land Rights Act.

 

Because these areas of land are included in the Kakadu Land, these definitions are being repealed.

 

Item 2 - Subsection 10(4)

 

Item 2 inserts a new subsection 10(4) into the Land Rights Act. 

 

New subsection 10(4) provides that, for the purposes of section 10, any estate or interest in the Kakadu Land that is held by the Director is to be taken to be an estate or interest held by the Crown in right of the Commonwealth.

 

The Director is the titleholder of four of the Kakadu Land parcels.

 

The Director is a corporation sole with perpetual succession created by section 15 of the National Parks and Wildlife Conservation Act 1975 (Cth) (repealed) , and continued in existence by section 514A of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Accordingly, the Director is a separate legal person to the Commonwealth.

 

‘Crown Land’ is defined in subsection 3(1) of the Land Rights Act as land in the Northern Territory that has not been alienated from the Crown by a grant of an estate in fee simple in the land, or land that has been so alienated but has been resumed by, or has reverted to or been acquired by, the Crown.

 

Because the Director is not the Crown for the purposes of the Land Rights Act, the four parcels of the Kakadu Land that the Director currently owns would be land in respect of which a person (other than the Crown) has an estate or interest for the purposes of section 10 of the Land Rights Act. As such, without amendment to the Land Rights Act, those parcels would only be able to be granted in escrow, pending the Director’s interests coming to an end.

 

New subsection 10(4) allows a deed of grant for the Kakadu Land to be delivered and to take effect despite the interests of the Director.

 

The interests of the Director in the Kakadu Land will be extinguished under subsection 12(2A) of the Land Rights Act when the deed of grant takes effect, with the Kakadu Land being immediately leased back to the Director pursuant to subsection 12(2B) of the Land Rights Act.

 

Item 3 - Subsection 11(1A)

 

Item 3 repeals subsection 11(1A).

 

Subsection 11(1A) of the Land Rights Act provides, in respect of land in a Commonwealth reserve that is the subject of a recommendation by the Aboriginal Land Commissioner (Commissioner) under paragraph 50(1)(a), being land in which all the estates and interests in the land that are not held by the Crown are held by the Director, the Minister is not required to ensure that the estates and interests held by the Director are acquired by the Crown.

 

This modifies the obligation that the Minister is otherwise subject to under paragraph 11(1)(e)(i) of the Land Rights Act to ensure that estates and interests of persons other than the Crown in relation to alienated Crown land are acquired by the Crown.

 

Because the Director is not the Crown for the purposes of the Land Rights Act, any ‘Crown Land’ that is subject to interests held by the Director is ‘alienated Crown land’ for the purposes of the Land Rights Act.

 

Consequently, the only land subject to interests of the Director that could potentially be the subject of a recommendation by the Commissioner under s 50(1)(a) is Crown land within the Alligator Rivers Area (No. 3) (under subsection 50(1A)), and land in the Gimbat and Goodparla areas (under subsection 50(1B)).

 

Because the ‘Alligator Rivers Area (No. 3)’ and the ‘Gimbat and Goodparla’ areas are included in the Kakadu Land, which will be inserted in Schedule 1 of the Land Rights Act, these areas will be taken outside the purview of paragraph 50(1)(a). As a result, section 11 will not apply to them, and subsection 11(1A) will not be capable of any operation.

 

Accordingly, subsection 11(1A) has been repealed.

 

Item 4 - Paragraph 12(2B)(b)

 

Item 4 repeals and substitutes paragraph 12(2B)(b).

 

The effect of the amendment is to bring the Kakadu Land within the coverage of subsection 12(2B) of the Land Rights Act. This will mean that the delivery of a deed of grant of the Kakadu Land will be subject to the condition that the Land Council enter into an agreement with the Director, by which the Land Council agrees to direct the Land Trust to grant a lease of the land to the Director for the purposes of Division 4 of Part 15 of the EPBC Act.

 

Paragraph 12(2B)(b) currently applies in relation to part of the Kakadu Land, namely the ‘Alligator Rivers Area (No. 3)’. In addition, subsection 12(2C) at present has essentially the same effect as subsection 12(2B) in relation to certain other parts of the Kakadu Land, namely the ‘Gimbat or Goodparla’ areas. The amendments will extend the operation of those provisions to the remainder of the Kakadu Land.

 

The amendment to paragraph 12(2B)(b) will ensure that a grant of the Kakadu Land cannot take effect until an agreement is made between the Land Council and the Director for the grant of a lease by the Land Trust to the Director.

 

Item 5 - Subsection 12(2C)

 

Item 5 omits “land referred to in subsection (2D)” in subsection 12(2C) and substitutes “any land described in Schedule 1 under the heading “Uluru””.

 

Subsection 12(2C) of the Land Rights Act currently makes special provision for any deed of grant in respect of the ‘Gimbat and Goodparla’ areas and any area of land described in Schedule 1 under the heading “Uluru” (Uluru Land).

 

The delivery of a deed of grant in respect of those areas is subject to a condition that the relevant Land Council agrees with the Director to direct the relevant Land Trust to grant a lease of the land to the Director to enable the Director to hold the land for the purposes of the EPBC Act.

 

Because the ‘Gimbat and Goodparla’ areas will now be dealt with as part of the Kakadu Land under paragraph 12(2B)(b), the ‘Gimbat and Goodparla’ areas are being removed from subsection 12(2C) and subsection 12(2C) will now only apply to the Uluru Land.

 

Item 6 - Subsections 12(2D) and (2E)

 

Item 6 repeals subsections 12(2D) and (2E).

 

Subsection 12(2D) sets out the land to which subsection 12(2C) applies, namely the ‘Gimbat and Goodparla’ areas and the Uluru Land.

 

Because subsection 12(2C) will be amended to apply only to the Uluru Land, subsection 12(2D) is no longer required.

 

Subsection 12(2E) provides that subsection 12(2C) applies in relation to a deed of grant in respect of land referred to in paragraph 12(2D)(b), which is the ‘Gimbat and Goodparla’ areas, whether or not the deed took effect before the commencement of section 12.

 

Again, because the ‘Gimbat and Goodparla’ areas will now be dealt with as part of the Kakadu Land under paragraph 12(2B)(b), subsection 12(2E) is no longer required.

 

Item 7 - Subsections 50(1A) and (1B)

 

Item 7 repeals subsections 50(1A) and (1B).

 

Subsection 50(1A) provides that the ‘Alligator Rivers Area (No. 3)’ is deemed to be unalienated Crown land for the purposes of subsection 50(1) of the Land Rights Act.

 

Subsection 50(1B) provides that the ‘Gimbat and Goodparla’ areas are deemed to be unalienated Crown land for the purposes of subsection 50(1) of the Land Rights Act.

 

Both the ‘Alligator Rivers Area (No. 3)’ and the ‘Gimbat and Goodparla’ areas are included in the Kakadu Land.

 

Because the Bill provides for the inclusion of the Kakadu Land in Schedule 1 to the Land Rights Act, if a Land Trust is established or determined to hold the Kakadu Land, the Minister will be required under either subsection 10(1) or (2) to recommend the grant of the Kakadu Land by the Governor-General under subsection 12(1).

 

Because any recommendation by the Minister for the grant of the Kakadu Land will be made under section 10 of the Land Rights Act, rather than section 11, an investigation and recommendation by the Commissioner under paragraph 50(1)(a) of the Land Rights Act will no longer be required.

 

Accordingly, subsections 50(1A) and (1B) are being repealed.

 

Item 8 - Part 4 of Schedule 1 (after the item relating to Jabiru)

 

Item 8 inserts the Kakadu land into Part 4 of Schedule 1 to the Land Rights Act (after the item relating to Jabiru).

 

Item 9 - Schedule 4

 

Item 9 repeals Schedule 4 to the Land Rights Act.

 

Schedule 4 described the ‘Alligator Rivers Area (No. 3)’, which will now be included in the Kakadu Land.

 

 

 

 

Schedule 2 - Urapunga

 

 

Summary

 

This Schedule adds a further parcel of land to Schedule 1 to the Aboriginal Land Rights (Northern Territory) Act 1976 (Land Rights Act).

 

Background

 

This Schedule adds a further parcel of Northern Territory land to Schedule 1 to the Land Rights Act.  This will allow the land in question to be granted to the relevant Aboriginal Land Trust under sections 10 and 12 of the Land Rights Act.

 

 

Explanation of the changes

 

Item 1 - Part 4 of Schedule 1 (after the item relating to Upper Daly)

 

Item 1 amends Part 4 of Schedule 1 to the Land Rights Act by inserting a reference to an additional portion of land (Lot 281 delineated on Survey Plan S2016/094) known as Urapunga as land to be granted as Aboriginal land.

 

 

Statement of Compatibility with Human Rights

 

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

 

Aboriginal Land Rights and Other Legislation Amendment Bill 2013

 

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

 

Overview of the Bill

 

The Bill adds areas subject to traditional land claims in the Kakadu region in the Northern Territory (Kakadu Land) to Schedule 1 of the Aboriginal Land Rights (Northern Territory) Act 1976 so that the Kakadu Land can be granted as Aboriginal land, and provides for the leaseback of the Kakadu Land to the Director of National Parks.

 

The Bill also adds areas in the town of Urapunga that are subject to the Township of Urapunga Indigenous Land Use Agreement (Urapunga Land) to Schedule 1 of the Aboriginal Land Rights (Northern Territory) Act 1976 so that the Urapunga Land can be granted as Aboriginal land.

 

Human rights implications

 

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

 

The Aboriginal Land Rights (Northern Territory) Act 1976 is discriminatory in nature as it confers rights and privileges upon Aboriginal Australians, which are discriminatory as against non-Aboriginal Australians.  That discrimination is the essence of the Act; it is the foundation on which it is structured.  However, the beneficial nature of this discrimination enables the Aboriginal Land Rights (Northern Territory) Act 1976 and this Bill to be each classified as a ‘special measure’ within the meaning of paragraph 4 of article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination (the CERD) (and subsection 8(1) of the Racial Discrimination Act 1975 ).

 

The CERD provides that special measures are deemed not to be discrimination.  Special measures are designed to ‘secure to disadvantaged groups the full and equal enjoyment of human rights and fundamental freedoms’. [1]

 

This Bill advances and engages the following rights:

·          the right to self-determination (recognised in article 1 of the International Covenant on Civil and Political Rights (ICCPR));

·          rights to equality and non-discrimination (recognised in article 2 of the CERD, and article 26 of the ICCPR) ; and

·          the rig h t to enjoy a n d benefit from culture (recognised in article 27 of the ICCPR) .

This Bill is necessary to recognise and ensure that relevant Aboriginal people have the right to own and control their traditional Aboriginal lands.  The limitation on the rights of non-Aboriginal Australians is reasonable, necessary and proportionate to the policy desire to promote the equal enjoyment of the engaged rights by Aboriginal Australians.

 

Conclusion

 

This Bill is compatible with human rights.

 

 

 

 

 

Minister for Indigenous Affairs, Senator the Hon Nigel Scullion