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Finance and Public Administration Legislation Committee—Aboriginal Land Rights (Northern Territory) Amendment (Economic Empowerment) Bill 2021—Report, dated November 2021


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November 2021

The Senate

Finance and Public Administration Legislation Committee

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

© Commonwealth of Australia 2021

ISBN 978-1-76093-320-3

This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 4.0 International License.

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ttps://creativecommons.org/licenses/by-nc-nd/4.0/.

iii

Members

Chair Senator Claire Chandler LP, TAS

Deputy Chair Senator Tim Ayres ALP, NSW

Members Senator Matt O'Sullivan LP, WA

Senator James Paterson LP, VIC

Senator Malcolm Roberts PHON, QLD

Senator Marielle Smith (from 21 October 2021) ALP, SA

Substitute Members Senator Patrick Dodson ALP, WA

(for Senator Smith on 18 November 2021)

Participating Members Senator Lidia Thorpe AG, VIC

Former Members Senator Kimberley Kitching (until 21 October 2021) ALP, VIC

Secretariat Sarah Redden, Committee Secretary Kate Campbell, Principal Research Officer Trish Carling, Senior Research Officer Brooke Gay, Research Officer Michaela Keating, Administrative Officer

Ph: 02 6277 3846 Fax: 02 6277 5809 PO Box 6100

Parliament House

Canberra ACT 2600 Website: www.aph.gov.au/senate fpa E-mail: fpa.sen@aph.gov.au

v

Abbreviations

ABA Aboriginals Benefit Account

ABAAC Aboriginals Benefit Account Advisory Committee AHRC Australian Human Rights Commission

AL Act Aboriginal Land Act 1978 (NT)

ALC Anindilyakwa Land Council

APONT Aboriginal Peak Organisations Northern Territory bill Aboriginal Land Rights (Northern Territory)

Amendment (Economic Empowerment) Bill 2021

CATSI Act Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) CEO Chief Executive Officer

CLC Central Land Council

committee Senate Finance and Public Administration Legislation Committee EDTL Executive Director of Township Leasing

EM explanatory memorandum

government Commonwealth Government ILSC Indigenous Land and Sea Corporation

Land Rights Act Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) LCA Law Council of Australia

MCA Minerals Council of Australia

NIAA National Indigenous Australians Agency

NLC Northern Land Council

NT Northern Territory

NT Government Northern Territory Government NTAIC Northern Territory Aboriginal Investment Corporation Scrutiny committee Senate Standing Committee for the Scrutiny of Bills TLC Tiwi Land Council

UNDRIP United Nations Declaration on the Rights of Indigenous Peoples

vii

List of Recommendations

Recommendation 1

3.134 The committee recommends that the Senate pass the bill.

ix

Contents

Members ............................................................................................................................................. iii

Abbreviations ...................................................................................................................................... v

List of Recommendations ............................................................................................................... vii

Chapter 1—Introduction .................................................................................................................... 1

Conduct of the inquiry ........................................................................................................................ 1

Compatibility with human rights ...................................................................................................... 1

Consideration by the Senate Standing Committee for the Scrutiny of Bills ................................ 1

Financial impact statement ................................................................................................................. 2

Acknowledgments ............................................................................................................................... 2

Structure of the report ......................................................................................................................... 2

Chapter 2—Overview of the bill ...................................................................................................... 3

Background ........................................................................................................................................... 3

Co-design process and role of Land Councils ...................................................................... 4

Schedules of the bill ............................................................................................................................. 5

Schedule 1: Northern Territory Aboriginal Investment Corporation .............................. 5

Purpose ........................................................................................................................... 6

Funding ........................................................................................................................... 6

Governance ..................................................................................................................... 7

Strategic investment plan ............................................................................................. 8

Beneficial payments ...................................................................................................... 8

Schedule 2: Mining ................................................................................................................... 9

Schedule 3: Land administration ........................................................................................... 9

Schedule 4: Technical amendments relating to the Aboriginals Benefit Account ......... 10

Legislative scrutiny ............................................................................................................................ 10

No-invalidity clauses .............................................................................................................. 11

Concerns ....................................................................................................................... 11

Minister's response ...................................................................................................... 12

Scrutiny committee finding ........................................................................................ 12

Significant matters in delegated legislation (Schedule 1) ................................................. 12

Concerns ....................................................................................................................... 13

x

Minister's response ..................................................................................................... 14

Scrutiny committee finding ........................................................................................ 14

Instruments not subject to parliamentary disallowance ................................................... 14

Concerns ....................................................................................................................... 15

Minister's response ...................................................................................................... 15

Scrutiny committee finding ........................................................................................ 15

Tabling of documents in Parliament .................................................................................... 16

Concerns ....................................................................................................................... 16

Minister's response ...................................................................................................... 17

Scrutiny committee finding ........................................................................................ 17

Significant matters in delegated legislation (Schedule 3) ................................................. 18

Concerns ....................................................................................................................... 18

Minister's response ...................................................................................................... 19

Scrutiny committee finding ........................................................................................ 19

Chapter 3—Key issues...................................................................................................................... 21

Support for the bill ............................................................................................................................. 21

Other views ........................................................................................................................................ 22

Consultation process ......................................................................................................................... 22

Support for the consultation process ................................................................................... 22

Responding to calls for change ............................................................................................. 25

Concerns with the consultation process .............................................................................. 26

Issues relating to NTAIC ................................................................................................................... 32

Design and purpose ................................................................................................................ 32

A shift in priorities ...................................................................................................... 35

Composition of the NTAIC Board ........................................................................................ 36

Review mechanism ................................................................................................................. 39

Streamlining exploration and mining ............................................................................................. 41

Committee view ................................................................................................................................. 46

Dissenting report by the Australians Greens .............................................................................. 49

Appendix 1—12 principles to guide reform ................................................................................. 63

Appendix 2—Submissions and additional information ........................................................... 65

Appendix 3—Public Hearings ........................................................................................................ 67

1

Chapter 1 Introduction

1.1 On 21 October 2021, and pursuant to the 12th report of the Senate Standing Committee for the Selection of Bills, the Senate referred the Aboriginal Land Rights (Northern Territory) Amendment (Economic Empowerment) Bill 2021 (the bill) to the Senate Finance and Public Administration Legislation Committee (the committee) for inquiry and report by 25 November 2021.1

Conduct of the inquiry 1.2 Details of the inquiry were made available on the committee's website. The committee also contacted a number of organisations and individuals inviting submissions by 5 November 2021. 67 submissions were received, as detailed at

Appendix 2.

1.3 The committee held a public hearing via teleconference on 18 November 2021. The witness list for the hearing can be found at Appendix 3.

Compatibility with human rights 1.4 The statement of compatibility with human rights for the bill states that the bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights

(Parliamentary Scrutiny) Act 2011.

1.5 The Parliamentary Joint Committee on Human Rights had no comment on the bill.2

Consideration by the Senate Standing Committee for the Scrutiny of Bills 1.6 The Senate Standing Committee for the Scrutiny of Bills (Scrutiny committee) examined the bill in its Scrutiny Digest 15 of 2021, where it raised a number of

concerns and requested further information from the Minister for Indigenous Australians. It further considered the bill in its Scrutiny Digest 16 of 2021, taking into account responses provided by the minister.

1.7 Further detail on the Scrutiny committee's consideration of the bill is contained in Chapter 2 of this report.

1 Journals of the Senate, No. 125, 21 October 2021, p. 4206; Senate Standing Committee for the

Selection of Bills, Report 12 of 2021, 21 October 2021, [p. 3].

2 Parliamentary Joint Committee on Human Rights, Report 11 of 2021, 16 September 2021, p. 60.

2

Financial impact statement 1.8 The explanatory memorandum (EM) to the bill states that amendments relating to the establishment of the Northern Territory Aboriginal Investment Corporation will have the following impact on underlying cash.

Figure 1.1 Impact on underlying cash

Source: Aboriginal Land Rights (Northern Territory) Amendment (Economic Empowerment) Bill 2021, Explanatory Memorandum, p. 9.

1.9 The EM states that the other measures contained in the bill have no financial impact.3

Acknowledgments 1.10 The committee thanks those organisations and individuals who contributed to the inquiry by preparing written submissions and giving evidence at the public hearing.

Structure of the report 1.11 Chapter 2 contains an overview of the bill and detail on the Scrutiny committee's examination.

1.12 Chapter 3 sets out the key issues raised in evidence and concludes with the committee's views and recommendation.

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

Explanatory Memorandum, p. 9.

3

Chapter 2

Overview of the bill

Background 2.1 The Aboriginal Land Rights (Northern Territory) Amendment (Economic Empowerment) Bill 2021 (the bill) was introduced to the House of Representatives on 25 August 2021. The third reading was agreed to on

18 October 20211, and the bill was introduced to the Senate on the same day.2

2.2 The purpose of the bill is to empower Aboriginal peoples in the Northern Territory (NT) to activate the economic potential of their land 'for generations to come'.3

2.3 The bill seeks to amend the Aboriginal Land Rights (Northern Territory) Act 1976 (Land Rights Act) in four key areas by:

(1) Establishing the Northern Territory Aboriginal Investment Corporation (NTAIC). (2) Streamlining the exploration and mining provisions of the Land Rights Act. (3) Improving and clarifying the land administration provisions of the

Land Rights Act. (4) Aligning the Aboriginals Benefit Account (ABA) with the Commonwealth's financial framework.4

2.4 The Minister for Indigenous Australians, the Hon Ken Wyatt MP characterised the reforms as a 'new era of land rights' that would empower Aboriginal people to unlock the potential of their land and grow their communities, businesses and culture.5 He stated:

Taken together, the reforms provided in this bill realise the longstanding aspiration of Aboriginal people in the Northern Territory for greater control over decision-making and realise the potential of their land.6

1 That is, the bill passed the House.

2 House of Representative Votes and Proceedings, No. 139, 25 August 2021, p. 2151; House of

Representatives Votes and Proceedings, No. 145, 18 October 2021, p. 2209; Journals of the Senate, No. 122, 18 October 2021, pp. 4125-26.

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

Explanatory Memorandum, p. 1.

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

Explanatory Memorandum, pp. 1-2.

5 The Hon Ken Wyatt, Minister for Indigenous Australians, House of Representatives Hansard,

25 August 2021, p. 10.

6 The Hon Ken Wyatt, Minister for Indigenous Australians, House of Representatives Hansard,

25 August 2021, p. 9.

4

Co-design process and role of Land Councils 2.5 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.7 Aboriginal land is the strongest form of traditional land

title in Australia, and approximately 50 per cent of the NT is Aboriginal land under the Land Rights Act.8

2.6 Traditional Owners of Aboriginal land hold decision-making powers over land access and use. 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.9

2.7 The explanatory memorandum (EM) to the bill stated that amendments to the Land Rights Act were 'not common'. It explained that Aboriginal stakeholders in the NT have strong voices through their four Land Councils:

 the Anindilyakwa Land Council (ALC)  the Central Land Council (CLC);  the Northern Land Council (NLC); and  the Tiwi Land Council (TLC).

2.8 The EM emphasised that the Commonwealth Government had committed to only amend the Land Rights Act with the support of the Land Councils.10

2.9 This commitment was also highlighted by the minister upon the introduction of the bill:

Aboriginal stakeholders in the Northern Territory have strong voices through their land councils and this government has committed to only amend the land rights act with their support.11

2.10 The EM stated that the bill was informed by an 'extensive co-design process' with Aboriginal Territorians, facilitated through the Land Councils.12

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

Explanatory Memorandum, p. 2.

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

Explanatory Memorandum, p. 2.

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

Explanatory Memorandum, p. 2.

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

Explanatory Memorandum, p. 2.

11 The Hon. Ken Wyatt, Minister for Indigenous Australians, House of Representatives Hansard,

25 August 2021, p. 10.

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

Explanatory Memorandum, p. 2.

5

2.11 For example, it highlighted that:

(a) The ABA Reform Working Group, made up of representatives from the Commonwealth, Land Councils and the Aboriginals Benefit Account Advisory Committee (ABAAC), had 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.13 (b) Negotiations regarding options for beneficial amendments to the

exploration and mining provisions of the Land Rights Act had been 'long-standing'. A Working Group comprised of representatives from the Land Councils, the NT Government and the Commonwealth Government was established in 2015 to consider the findings of the 2013 report of the Review of Part IV of the Aboriginal Land Rights (Northern Territory) Act 1976. Additionally, significant consultation had been undertaken with relevant industry peak bodies. (c) The National Indigenous Australians Agency (NIAA) had consulted the

Executive Director of Township Leasing (EDTL) in relation to the amendments contained in Schedule 3 of the bill. (d) During 2019-20, the Gove Peninsula Futures Land Tenure Working Group, comprised of representatives from the Rirratjingu Aboriginal Corporation,

Gumatj Corporation, NLC, NT Government, Rio Tinto and the NIAA, requested enhanced certainty for parties negotiating agreements in respect of land that is the subject of a deed of grant held in escrow.14

2.12 Further discussion on the consultation undertaken during the development of the bill is contained in Chapter 3 of this report.

Schedules of the bill 2.13 The bill is comprised of four schedules, as summarised below.

Schedule 1: Northern Territory Aboriginal Investment Corporation 2.14 Schedule 1 to the bill establishes the NTAIC 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.15

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

Explanatory Memorandum, p. 2.

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

Explanatory Memorandum, pp. 3-4.

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

Explanatory Memorandum, p. 1.

6

2.15 As the Minister for Indigenous Affairs summarised, the NTAIC:

…will be funded from the ABA to invest in projects that will grow wealth, create jobs and support sustainable Aboriginal economies in the Northern Territory for the long term — for generations ahead. It will have the ability to invest in a wide range of projects from agriculture and aquaculture, tourism opportunities and community art centres. It will also make decisions about and administer beneficial payments shifting decision-making from Canberra to the Northern Territory.16

Purpose 2.16 The bill provides that the NTAIC's purposes are:

(a) to promote the self-management and economic self-sufficiency of Aboriginal people living in the NT; and (b) to promote the social and cultural wellbeing of Aboriginal people living in the NT.17

Funding 2.17 The NTAIC will hold substantial funding from the ABA. The ABA is established under the Land Rights Act to receive and distribute monies equivalent to royalties generated from mining on Aboriginal land in the NT.

2.18 The ABA currently provides:

 operational funding for Land Councils;  payments for Traditional Owners and other Aboriginal people affected by mining operations;  funding for township leasing;  funding for the administration of the ABA; and  payments for the benefit of Aboriginal people living in the NT (known as

'beneficial payments'). 18

2.19 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 in 2021.19

2.20 The bill provides for an initial $500 million endowment from the ABA to the NTAIC, as well as committed funding of $60 million per year for the first three years of its operation. The bill also sets out a process for the NTAIC to obtain

16 The Hon. Ken Wyatt, Minister for Indigenous Australians, House of Representatives Hansard,

25 August 2021, p. 8.

17 New section 65BA; Aboriginal Land Rights (Northern Territory) Amendment (Economic

Empowerment) Bill 2021, Explanatory Memorandum, p. 14.

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

Explanatory Memorandum, p. 3.

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

Explanatory Memorandum, p. 3.

7

ongoing funding from the ABA, consistent with the process Land Councils follow to seek their yearly funding. 20

Governance 2.21 The bill provides for strong governance mechanisms that support 'culturally-informed, best practice governance'.21

2.22 For example, the NTAIC's Board must ensure the proper, efficient and effective performance of the NTAIC's functions.22 It will be comprised of 12 members to balance Aboriginal representation and cultural expertise, government involvement, and independent financial expertise.23

2.23 The bill provides for a Board composition of:

 two members appointed by each Land Council (i.e. eight members in total across the four Land Councils);  two members appointed by the Commonwealth; and  two independent members appointed by the Board.24

2.24 Additionally, the bill provides for an investment committee of at least four members, at least two of whom must have expertise in business or financial management and be external to the Board. The investment committee is to:

 provide advice to the Board on the entering into, management and disposal of investments;  provide advice to the Board on the development and revision of strategic investment plans; and  any other functions relating to the investment of the NTAIC's money.25

2.25 The bill also provides for mechanisms to manage financial risk and provide appropriate safeguards for ABA funding. For example, the NTAIC will be required to seek the minister's approval of any single investment with a value

20 New section 64AA; Aboriginal Land Rights (Northern Territory) Amendment (Economic

Empowerment) Bill 2021, Explanatory Memorandum, p. 12.

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

Explanatory Memorandum, p. 3.

22 Section 65E; Aboriginal Land Rights (Northern Territory) Amendment (Economic Empowerment)

Bill 2021, Explanatory Memorandum, p. 21.

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

Explanatory Memorandum, p. 3, pp. 21-22.

24 Section 65EA; Aboriginal Land Rights (Northern Territory) Amendment (Economic

Empowerment) Bill 2021, Explanatory Memorandum, pp. 21-22.

25 Section 65FA; Aboriginal Land Rights (Northern Territory) Amendment (Economic

Empowerment) Bill 2021, Explanatory Memorandum, pp. 3, 28.

8

of over $100 million.26 Additionally, ministerial rules will guide loans, borrowing and guarantees made by the NTAIC.27

Strategic investment plan 2.26 The bill provides that the Board of the NTAIC must develop a strategic investment plan and ensure one is in force at all times from 18 months after the commencement of the relevant section of the bill.28

2.27 According to the EM, 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.29

2.28 The bill provides that the strategic investment plan must set out the NTAIC'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 three to five year period.30

2.29 The NTAIC must consult with Aboriginal people living in the NT and Aboriginal corporations in the NT and have regard to any advice provided by the investment committee when developing the plan.31

2.30 The bill also sets out a process for the strategic investment plan to be tabled in Parliament and published on the internet.32

Beneficial payments 2.31 Through the establishment of the NTAIC, the bill provides an 'historic opportunity' for Aboriginal Territorians to make decisions regarding beneficial payments. Currently, all decisions about ABA funding are made by the

Commonwealth Government. Beneficial payments are currently approved by

26 Subsections 65BH(1) and (2); Aboriginal Land Rights (Northern Territory) Amendment (Economic

Empowerment) Bill 2021, Explanatory Memorandum, pp. 3, 16.

27 Subsections 65BI, 65BJ and 65BK; Aboriginal Land Rights (Northern Territory) Amendment

(Economic Empowerment) Bill 2021, Explanatory Memorandum, p. 3, 16-18.

28 Subsection 65C(1); Aboriginal Land Rights (Northern Territory) Amendment (Economic

Empowerment) Bill 2021, Explanatory Memorandum, pp. 3, 18.

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

Explanatory Memorandum, p. 19.

30 Subsection 65C(2); Aboriginal Land Rights (Northern Territory) Amendment (Economic

Empowerment) Bill 2021, Explanatory Memorandum, p. 19.

31 Subsection 65C(6); Aboriginal Land Rights (Northern Territory) Amendment (Economic

Empowerment) Bill 2021, Explanatory Memorandum, p. 19.

32 Subsections 65C(7) to (9); Aboriginal Land Rights (Northern Territory) Amendment (Economic

Empowerment) Bill 2021, Explanatory Memorandum, p. 19.

9

the Minister for Indigenous Australians under subsection 64(4) of the Land Rights Act, on advice from the ABAAC.33

2.32 To enact this change, the bill repeals section 65 of the Land Rights Act which establishes the ABAAC. The NTAIC will replace the ABAAC and take on responsibility for administering the beneficial payments.34

Schedule 2: Mining 2.33 Schedule 2 to the bill seeks to reduce inefficiencies associated with exploration and mining processes on Aboriginal land in the NT by:35

(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;36 − Land Councils can take a more flexible approach to meetings with traditional Aboriginal owners;37 and − the minister's consent is not required following the Land Council

providing notice of consent for the grant of an exploration licence.38

(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.

Schedule 3: Land administration 2.34 Schedule 3 to the bill seeks to improve land administration and enhance local decision-making by:

 prescribing the nomination and approval processes and funding arrangements for approved entities that may hold a township lease under section 19A of the Land Rights Act;  providing that Land Councils may enter into agreements in respect of land

that is the subject of a deed of grant held in escrow;  increasing the amount at which Land Councils must seek ministerial approval to enter into a contract from $1 million to $5 million;

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

Explanatory Memorandum, p. 4.

34 Item 5; Aboriginal Land Rights (Northern Territory) Amendment (Economic Empowerment) Bill

2021, Explanatory Memorandum, pp. 4, 13.

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

Explanatory Memorandum, p. 1.

36 Schedule 2, Item 21.

37 Schedule 2, Item 23.

38 Schedule 2, Item 25.

10

 removing the requirement that a permit issued under section 5 of the Aboriginal Land Act 1978 (NT) may only be revoked by the issuer of the permit; and  repealing unused powers for the delegation of Land Council functions to

corporations registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth).39

Schedule 4: Technical amendments relating to the Aboriginals Benefit Account 2.35 Schedule 4 to the bill seeks to align the Land Rights Act with the Commonwealth financial framework by:

 aligning the ABA with NT legislation for the payment of mineral royalties; and  clarifying the purposes of the ABA.40

Legislative scrutiny 2.36 Pursuant to Senate Standing Order 25(2)(A), this section of the report will take into account comments published by the Senate Standing Committee for the Scrutiny of Bills (Scrutiny committee).

2.37 As noted in Chapter 1 of this report, the Scrutiny committee examined the bill in its Scrutiny Digest 15 of 2021, where it raised a number of concerns and requested further information from the Minister for Indigenous Australians. It further considered the bill in its Scrutiny Digest 16 of 2021, taking into account responses provided by the minister.

2.38 The concerns of the Scrutiny committee can be broadly categorised as:

 the inclusion of a 'no-invalidity clause';41  the placing of significant matters in delegated legislation;42  the use of instruments not subject to parliamentary disallowance;43  the tabling of documents in Parliament;44 and  the placing of further significant matters in delegated legislation.45

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

Explanatory Memorandum, pp. 1-2.

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

Explanatory Memorandum, p. 2.

41 Schedule 1, item 6, proposed subsection 65BH(3) and Schedule 3, item 25, proposed subsection

12D(7).

42 Schedule 1, item 6, proposed subsections 65BH(2), 65BI(1), 65BJ(2) and 65BK(3);

43 Schedule 1, item 6, proposed section 65C.

44 Schedule 1, item 19.

45 Schedule 3, item 4, proposed paragraphs 3AA(9)(a)(c).

11

2.39 This section will provide an overview of each of the concerns raised, as well as the responses from the minister to those concerns and the Scrutiny committee's final views.

No-invalidity clauses 2.40 Schedule 1 to the bill seeks to amend the Land Rights Act to establish the NTAIC. Proposed section 65BH provides that the NTAIC must not make a particular investment that has a value of more than $100 million, or a higher

amount specified in the rules, without the written agreement of the Minister. Proposed subsection 65BH(3) provides that a failure to comply with this requirement does not affect the validity of the transaction.46

2.41 Additionally, item 25 of Schedule 3 of the bill seeks to insert proposed section 12D into the Land Rights Act to provide that Land Councils may enter into agreements with proponents in relation to land that is the subject of a deed held in escrow. Proposed subsection 12D(4) provides that a Land Council must not enter into the agreement unless it is satisfied that the Traditional Owners consent to the proposed grant, adequate consultation has occurred, and the terms and conditions on which the proposed grant is to be made a reasonable. Proposed subsection 12D(7) provides that a failure to comply with subsection 12D(4) does not invalidate the agreement.47

Concerns 2.42 A legislative provision that indicates that an act done or decision made in breach of a particular statutory requirement or other administrative law norm does not result in the invalidity of that act or decision may be described as a

'no-invalidity' clause.48

2.43 The Scrutiny committee stated that it held 'significant scrutiny concerns' with no-invalidity clauses as they may limit the practical efficacy of judicial review to provide a remedy for legal errors. In light of this, the committee noted that it expects a 'sound justification' for the use of a no-invalidity clause to be provided in the explanatory materials to a bill.49

2.44 Given the EM to the bill contained no justification for the no-invalidity clauses in either proposed subsection 65BH(3) or proposed subsection 12D(7), the

46 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 15 of 2021, 16 September 2021,

p. 1.

47 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 15 of 2021, 16 September 2021,

pp. 1-2.

48 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 15 of 2021, 16 September 2021,

p. 2.

49 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 15 of 2021, 16 September 2021,

p. 2.

12

Scrutiny committee requested the minister's advice as to why it was necessary and appropriate to include the no-invalidity clauses.50

Minister's response 2.45 In response, the minister advised that:

 In regard to proposed subsection 65BH(3): the no-invalidity clause is necessary and appropriate as it protects the rights of, and provides business certainty for, entities transacting with the NTAIC.

 In regard to proposed subsection 12D(7): the no-invalidity clause will facilitate arrangements by giving certainty to proponents entering into arrangements with a Land Council. The minister advised that this was considered important to ensure the integrity and certainty of the agreement where compliance with proposed subsection 12D(4) may be called into question at a later time.51

Scrutiny committee finding 2.46 The Scrutiny committee acknowledged this advice but reiterated its scrutiny concerns. It advised that it generally did not accept 'a desire for certainty' as a sufficient justification for the inclusion of no-invalidity clauses.

2.47 As a result, the Scrutiny committee:

 requested an addendum to the EM containing the key information provided by the minister be tabled in the Parliament as soon as practicable52; and  drew its concerns to the attention of senators, noting that it left it to the Senate as a whole to determine the appropriateness of including the

no-invalidity clauses.53

Significant matters in delegated legislation (Schedule 1) 2.48 Item 6 of Schedule 1 to the bill seeks to insert Part VIA in relation to the NTAIC into the Land Rights Act.

2.49 A number of these provisions leave significant elements of the operation of the NTAIC and its decision-making processes to the NTAIC rules (the rules):

 proposed subsection 65BH(2) provides that the rules may increase the limit on the value of investments that the NTAIC may make without the written agreement of the minister;

50 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 15 of 2021, 16 September 2021,

p. 2.

51 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 16 of 2021, 21 October 2021,

p. 37.

52 In making this request, the committee noted the importance of explanatory materials as a point of

access to understanding the law and, if needed, as extrinsic material to assist with interpretation.

53 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 16 of 2021, 21 October 2021,

p. 37.

13

 proposed subsection 65BI(1) provides that the rules may prescribe limits or conditions on the making of loans by the NTAIC;  proposed subsection 65BJ(2) provides that the rules may prescribe the circumstances in which the NTAIC may borrow money and limits or

conditions on the borrowing of such money; and  proposed subsection 65BK(3) provides that the rules may prescribe requirements relating to the granting of guarantees by the NTAIC. 54

Concerns 2.50 The Scrutiny committee noted that it consistently drew attention to framework provisions which contained only the broad principles of a legislative scheme and relied heavily on delegated legislation to determine the scope and

operation of a scheme. It explained that this was because such an approach 'considerably limits' the ability of Parliament to have appropriate oversight over new legislative schemes.55

2.51 It put forward a view that significant matters (such as key details regarding the operation of the NTAIC) should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. It noted that the EM did not contain a justification for the approach.56

2.52 Additionally, it observed that a legislative instrument made by the executive is not subject to the full range of parliamentary scrutiny inherent in bringing proposed changes in the form of an amending bill.57

2.53 In light of this, the Scrutiny committee requested the minister's detailed advice as to:

 why it was considered necessary and appropriate to leave key details regarding the operation of the NTAIC to delegated legislation; and  whether the bill could be amended to include at least high-level guidance regarding these matters on the face of the primary legislation.58

54 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 15 of 2021, 16 September 2021,

pp 2-3.

55 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 15 of 2021, 16 September 2021,

p. 3.

56 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 15 of 2021, 16 September 2021,

p. 3.

57 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 15 of 2021, 16 September 2021,

p. 3.

58 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 15 of 2021, 16 September 2021,

p. 3.

14

Minister's response 2.54 In response, the minister advised:

It is necessary and appropriate that these matters be prescribed by rules so that they can be adapted when necessary, for example, in addressing changes to the NTAI Corporation's risk profile, asset base, capital structure and organisational capability of the NTAI Corporation as it evolves. This flexibility will enable any risks associated with the NTAI Corporation's performance of its investment related functions to be addressed, adapted and limited when appropriate. Doing so by legislative instrument also allows changes to be quickly adopted to respond to urgent circumstances. As such, rules made by legislative instrument is an appropriate mechanism to respond to evolving commercial requirements without further amendments to the Bill. 59

Scrutiny committee finding 2.55 The Scrutiny committee was not satisfied that the minister's response provided a sufficient justification for leaving a number of significant matters to delegated legislation. It noted that it generally did not accept a 'desire of

administrative flexibility' to be sufficient in such circumstances.60

2.56 As result, it:

 drew the matter to the attention of senators, noting that it left it to the Senate as a whole to determine the appropriateness of leaving key details regarding the operation of the NTAIC to delegated legislation; and

 drew the matter to the attention of the Senate Standing Committee for the Scrutiny of Delegated Legislation.61

Instruments not subject to parliamentary disallowance 2.57 Proposed section 65C seeks to provide that the NTAIC Board must develop a strategic investment plan to set out the NTAIC's priorities and principal objectives relating to payments and financial assistance to or for Aboriginal

people in the NT. Any strategic investment plan must be tabled in both Houses of the Parliament and published online, and consultation with relevant stakeholders must occur. However, the strategic investment plan is not specified to be a legislative instrument.62

59 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 16 of 2021, 21 October 2021,

pp. 38-39.

60 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 16 of 2021, 21 October 2021,

p. 39.

61 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 16 of 2021, 21 October 2021,

p. 39.

62 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 15 of 2021, 16 September 2021,

p. 3.

15

Concerns 2.58 The Scrutiny committee noted that any strategic investment plan would not be subject to the tabling, disallowance or sunsetting requirements that apply to legislative instruments. Given the lack of parliamentary scrutiny of

non-legislative instruments, it noted that it expected the EM to include a justification for why a strategic investment plan was not considered to be legislative in character.63

2.59 It requested the minister's 'more detailed' advice as to:

 why a strategic investment plan made under proposed section 65C was not a legislative instrument; and  whether the bill could be amended to provide that a strategic investment plan is a legislative instrument to ensure that it is subject to appropriate

parliamentary oversight.64

Minister's response 2.60 In response, the minister advised that a strategic investment plan is an 'administrative document' setting out the NTAIC's priorities and principal objectives in relation to performing its functions, developed in consultation

with Aboriginal people and organisations in the NT.65

2.61 He also advised that a strategic investment plan:

…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.66

Scrutiny committee finding 2.62 The Scrutiny committee acknowledged the minister's advice, but concluded that it remained unclear why the matters that may be included in the strategic investment plan are purely administrative in nature. It explained:

The committee notes, for example, that proposed subsection 65C(5) provides that the rules may prescribe matters that must be included in a strategic investment plan. It appears that these additional matters may determine or alter the content of the law.67

63 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 15 of 2021, 16 September 2021,

p. 4.

64 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 15 of 2021, 16 September 2021,

p. 4.

65 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 16 of 2021, 21 October 2021,

p. 40.

66 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 16 of 2021, 21 October 2021,

pp. 40-41.

67 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 16 of 2021, 21 October 2021,

p. 41.

16

2.63 It concluded:

In any event, from a scrutiny perspective, the committee considers that, given the significant nature of the investment plan, it would be appropriate to allow for additional parliamentary scrutiny and oversight of the plan.68

2.64 As a result, the Scrutiny committee:

 requested that an addendum to the EM containing the key information provided by the minister be tabled in the Parliament as soon as practicable;69 and

 drew the matter to the attention of senators, noting that it left it to the Senate as a whole to determine the appropriateness of providing that a strategic investment plan made under proposed section 65C is not a legislative instrument and therefore not subject to parliamentary scrutiny beyond tabling in the Parliament.70

Tabling of documents in Parliament 2.65 Item 19 of Schedule 1 to the bill provides that the minister may, during the three-year period starting on the NTAIC commencement day, request the NTAIC Board prepare a progress report in relation to a strategic investment

plan. Subitem 19(4) provides that the minister 'may cause' any progress report to be published on the internet. There is no requirement that any progress report be tabled in both Houses of Parliament.71

Concerns 2.66 The Scrutiny committee raised concern that the bill did not require a progress report to be tabled or published online. It considered that it was unclear why these requirements were not mandatory, and noted that the EM did not

contain any appropriate justifications for the omission.

2.67 Additionally, it noted that proposed subsection 65C(8) provides that the strategic investment plan itself is required to be tabled in both Houses of the Parliament and published online.72

68 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 16 of 2021, 21 October 2021,

p. 41.

69 In making this request, the committee noted the importance of explanatory materials as a point of

access to understanding the law and, if needed, as extrinsic material to assist with interpretation.

70 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 16 of 2021, 21 October 2021,

pp. 41-42.

71 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 15 of 2021, 16 September 2021,

p. 4.

72 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 15 of 2021, 16 September 2021,

p. 5.

17

2.68 The Scrutiny committee commented:

The committee's consistent scrutiny view is that tabling documents in Parliament is important to parliamentary scrutiny, as it alerts parliamentarians to the existence of documents and provides opportunities for debate that are not available where documents are not made public or are only published online.73

2.69 Accordingly, it requested the minister's advice as to whether the bill could be amended to provide that:

 the minister must arrange for a copy of any progress report on the strategic investment plan to be tabled in both Houses of the Parliament; and  the minister must publish any progress report on the strategic investment plan on the internet.74

Minister's response 2.70 In response, the minister advised that the progress reports under item 19 of Schedule 1 to the bill are an 'additional transitional measure' that can be invoked at the discretion of the minister to provide supplementary

information to government during the first three years of the NTAIC's operation. He advised that the 'transitional reports' were likely to be 'operational in nature' and followed by published and tabled strategic investment plant.75

2.71 Additionally, the minister stated:

A requirement to publish and table progress reports may not be appropriate if the reports 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.76

Scrutiny committee finding 2.72 The Scrutiny committee was not satisfied with the response and reiterated its view that tabling documents is important to parliamentary scrutiny. It emphasised that it remained unclear why progress reports on the strategic

investment plan cannot be tabled. It further observed that if it was mandatory

73 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 15 of 2021, 16 September 2021,

p. 5.

74 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 15 of 2021, 16 September 2021,

p. 5.

75 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 16 of 2021, 21 October 2021,

pp. 42-43.

76 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 16 of 2021, 21 October 2021,

p. 43.

18

to publish any progress report, amendments could be included to allow for the removal of any 'genuinely sensitive' material.77

2.73 As a result, the Scrutiny committee:

 requested that an addendum to the EM containing the key information provided by the minister be tabled in the Parliament as soon as practicable;78 and

 drew the matter to the attention of senators, noting that it left it to the Senate as a whole to determine the appropriateness of not providing that a copy of any progress report on the strategic investment plan must be tabled in both Houses of the Parliament and not requiring the minister to publish a copy of any progress report online.79

Significant matters in delegated legislation (Schedule 3) 2.74 Item 4 of Schedule 3 to the bill seeks to insert proposed section 3AA into the Land Rights Act to set out the approval process for bodies to become approved entities to hold a township lease. Proposed paragraph 3AA(9)(a) provides that

the minister may, by legislative instrument, determine the conditions that the minister must be satisfied of for the approval of an Aboriginal and Torres Strait Islander corporation as an approved entity under proposed subsection 3AA(2). Proposed paragraph 3AA(9)(c) provides that the minister may, by legislative instrument, determine the matters to which the minister must or may have regard to in deciding whether to approve a body as an approved entity under proposed subsection 3AA(6).80

Concerns 2.75 The Scrutiny committee put forward its view that significant matters, such as key details regarding the process for when a body will be an approved entity to hold a township lease, should be included in primary legislation unless a

sound justification for the use of delegated legislation is provided. It observed that the EM did not contain such a justification.81

2.76 In raising its concerns, the Scrutiny committee highlighted that a legislative instrument, made by the executive, is not subject to the full range of

77 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 16 of 2021, 21 October 2021,

p. 43.

78 In making this request, the committee noted the importance of explanatory materials as a point of

access to understanding the law and, if needed, as extrinsic material to assist with interpretation.

79 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 16 of 2021, 21 October 2021,

pp. 43-44.

80 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 15 of 2021, 16 September 2021,

p. 5.

81 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 15 of 2021, 16 September 2021,

p. 5.

19

parliamentary scrutiny inherent in bringing proposed changes in the form of an amending bill. 82

2.77 As a result, it requested the minister's 'detailed advice' as to:

 why it was considered necessary and appropriate to leave key details regarding the process for when a body will be an approved entity to hold a township lease to delegated legislation; and

 whether the bill could be amended to include at least high-level guidance regarding the matters on the face of the primary legislation.83

Minister's response 2.78 In response to the committee's requests, the minister drew attention to the growing interest in 'community-controlled' township leasing and explained that there was a need to standardise and clarify the processes around, and

operation of, community township entities in the Land Rights Act.84

2.79 He advised:

It is necessary and appropriate to provide 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 processes for Aboriginal and Torres Strait Islander corporations as approved entities. It is not possible to predict all of the conditions, information and matters that will need to be the subject of ministerial determination in the future. This flexibility is a prudent mechanism that will ensure that the processes mature over time as more community entity township leases are granted.85

Scrutiny committee finding 2.80 The Scrutiny committee acknowledged the minister's advice but stated that it did not generally accept a 'desire for administrative flexibility' as sufficient justification for leaving significant matters to delegated legislation. It observed

that despite the minister's response it remained unclear why 'at least high-level guidance' could not be included in primary legislation in relation to the matters.86

82 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 15 of 2021, 16 September 2021,

p. 6.

83 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 15 of 2021, 16 September 2021,

p. 5.

84 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 16 of 2021, 21 October 2021,

p. 45.

85 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 16 of 2021, 21 October 2021,

p. 45.

86 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 16 of 2021, 21 October 2021,

p. 46.

20

2.81 As a result it:

 requested that an addendum to the EM containing the key information provided by the minister be tabled in the Parliament as soon as practicable;87  drew the matter to the attention of senators , noting that it left it to the Senate as a whole to determine the appropriateness of leaving key details

regarding the process of when a body will be an approved entity to hold a township lease to delegated legislation; and  drew the matter to the attention of the Senate Standing Committee for the Scrutiny of Delegated Legislation.88

87 In making this request, the committee noted the importance of explanatory materials as a point of

access to understanding the law and, if needed, as extrinsic material to assist with interpretation.

88 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 16 of 2021, 21 October 2021,

p. 46.

21

Chapter 3 Key issues

3.1 This chapter will canvass the range of views the Senate Finance and Public Administration Legislation Committee (the committee) received from submitters regarding the Aboriginal Land Rights (Northern Territory) Amendment (Economic Empowerment) Bill 2021 (the bill).

3.2 It will examine a number of key issues in greater detail, including:

 concerns around the consultation process for the development of the bill;  matters relating to the establishment and operation of the Northern Territory Aboriginal Investment Corporation (NTAIC); and  matters relating to the streamlining of exploration and mining processes.

3.3 The chapter will conclude with the committee's views and recommendation.

Support for the bill 3.4 A number of submitters to the inquiry expressed support for the bill.

3.5 For example, the joint submission from the four Northern Territory (NT) Land Councils1 — the Anindilyakwa Land Council (ALC), the Central Land Council (CLC), the Northern Land Council (NLC) and the Tiwi Land Council (TLC) — expressed strong support for the bill and commended its passage into legislation without amendment.2

3.6 Aboriginal Peak Organisations Northern Territory (APONT)3 and the Aboriginals Benefit Account Advisory Committee (ABAAC)4 also recommended the committee support the bill.5

3.7 Additionally, the Minerals Council of Australia (MCA) informed the committee it supported the passage of the bill through the Senate, noting that

1 Hereafter in this report referred to collectively as the NT Land Councils or Land Councils.

2 Anindilyakwa, Central, Northern and Tiwi Land Councils, Submission 48, p. 1.

3 The APO NT is an alliance comprising the Aboriginal Medical Service Alliance NT, the Northern

Australian Aboriginal Legal Aid Service, the CLC, the NLC, the ALC, the TLC, Aboriginal Housing NT AHNT and the NT Indigenous Business Network NT IBN.

4 The ABAAC is comprised of 14 senior Aboriginal women and men nominated by the NT Land

Councils, with a chairperson appointed by the Minister for Indigenous Australians for a two year term.

5 Aboriginal Peak Organisations Northern Territory, Submission 49, p. 2; Aboriginals Benefit

Account Advisory Committee, Submission 53, p. 2.

22

the reforms in the bill would 'help bring forward minerals investment in a way that supports Traditional Owner aspirations and priorities'.6

Other views 3.8 Other submitters to the inquiry expressed concern with various elements of the bill, in particular the adequacy and inclusivity of the consultation process surrounding the development of the proposed reforms to the Land Rights Act,

and the speed with which the bill was proceeding through Parliament. Many of these submitters called for the passage of the bill to be delayed in order for greater consultation with Aboriginal Territorians to occur. This matter is discussed further below.

3.9 Additionally, a number of submitters drew the committee's attention to the matters (canvassed earlier in this report) raised by the Senate Standing Committee for the Scrutiny of Bills.7

Consultation process 3.10 The consultation process undertaken in the development of the bill was a key issue raised during the inquiry. Some submitters expressed satisfaction with the consultation process, while others raised concerns and argued the process

had been insufficient, particularly given the significance of the Aboriginal Land Rights (Northern Territory) Act 1976 (Land Rights Act).

Support for the consultation process 3.11 The NT Land Councils submitted that the design and development of the bill was 'open and transparent'. They emphasised that:

…unlike most other changes to ALRA [Aboriginal Land Rights Act (Northern Territory) Act 1976] over many years, the voice of Aboriginal people and their representatives were determinative of the substance of the reforms contained in the Bill. 8

3.12 Additionally, the NT Land Councils argued:

While others outside the Northern Territory may feel they have some claim to be consulted on the reforms, it is those directly affected by the changes - Aboriginal people across the Northern Territory - who have been consulted through their Land Council membership.

6 Minerals Council of Australia, Submission 27, pp. 1-2.

7 See for example: Mr Michael Dillon, Submission 4, pp. 1, 9; Emeritus Professor Jon Altman,

Submission 9, pp. 10-11; Law Council of Australia, Submission 55, pp. 9, 15-16; Mr Gregory Marks, Submission 8, p. 7; Australian Human Rights Commission, Submission 38, pp. 5-8.

8 Anindilyakwa, Central, Northern and Tiwi Land Councils, Submission 48, p. 14.

23

It is for this reason the Aboriginal Land Councils of the Northern Territory, on behalf of our constituents, support the reforms and recommend the Committee support the passage of the bill without amendment.9

3.13 APONT informed the committee that the process followed in developing the reforms contained in the bill 'set the standard' for what partnership and shared decision making should look like.10

3.14 It advised that the fundamental principle of Aboriginal people being directly involved as partners in the reform process was followed throughout, commenting:

There are few examples of reform that have so comprehensively involved the Aboriginal people directly affected, as the reforms contained in the bill currently before the Parliament.11

3.15 The National Indigenous Australians Agency (NIAA) described the reforms as being developed 'in partnership' with Aboriginal peoples in the NT. It informed the committee that it had worked together with the NT Land Councils for the past three and a half years to develop the package of reforms that led to the bill. It also noted that it had ‘consulted closely’ with the ABAAC, which currently provides advice to government on Aboriginals Benefit Account (ABA) beneficial payments. 12

3.16 The NIAA explained the process as follows:

The NIAA, Aboriginal industry and Territory Government stakeholders have come together in partnership to design the Economic Empowerment Bill over 26 meetings since 2018 and we are continuing to consult with Aboriginal stakeholders as the Bill progresses through Parliament. This is in addition to the consultation undertaken by the Northern Territory Land Councils across their membership, with four meetings of the joint Land Councils, and ongoing meetings within each of the Land Council regions.13

9 Anindilyakwa, Central, Northern and Tiwi Land Councils, Submission 48, p. 14.

10 Aboriginal Peak Organisations Northern Territory, Submission 49, p. 2.

11 Aboriginal Peak Organisations Northern Territory, Submission 49, p. 16.

12 National Indigenous Australians Agency, Submission 13, p. 1. For further detail on the partnership

between the NIAA and the Land Councils, see also: Mr Ryan Bulman, Group Manager, Economic Policy and Programs, National Indigenous Australians Agency, Proof Committee Hansard, 18 November 2021, pp. 14-15.

13 National Indigenous Australians Agency, Submission 13, p. 1.

24

3.17 The NIAA also provided the following infographic to illustrate the consultation process that led to the bill:

Figure 3.1 Summary of consultation

[Source: National Indigenous Australians Agency, Submission 13, p. 2.]

3.18 The NIAA highlighted the central role of the Land Councils under the Land Rights Act in representing Traditional Owners in the NT. It noted that one of the core statutory roles of the Land Councils is to seek the consent of Traditional Owners and consult other Aboriginal peoples living within their region on a range of matters relevant to Aboriginal land.14

3.19 APONT also emphasised the grass-roots role of the NT Land Councils, reporting that they provided a voice for Aboriginal Territorians across towns, regions, remote communities, homelands and outstations 'across the length and breadth' of the NT. 15

3.20 The NT Land Councils informed the committee that through their elected representatives they represented the 'aspirations and interests' of Traditional Owners and other people resident in the NT on issues affecting lands, seas and communities.16

3.21 Their joint submission set out details of the meetings of the CLC, NLC and TLC where the development and content of the bill had been the subject of discussion and consultation.17

3.22 At the public hearing, the committee queried the CLC about what Land Council engagement with local communities looked like. Mr James Nugent, Executive Manager of Professional Services for the CLC, explained:

Because the council members who've sought the reform are elected—and, in the CLC's case elected from amongst 75 communities, outstations and/or organisations—those delegates bring the views of their constituencies with

14 National Indigenous Australians Agency, Submission 13, p. 2.

15 Aboriginal Peak Organisations Northern Territory, Submission 49, p. 16.

16 Anindilyakwa, Central, Northern and Tiwi Land Councils, Submission 48, p. 1.

17 Anindilyakwa, Central, Northern and Tiwi Land Councils, Submission 48, pp. 2-6.

25

them to the council meetings. Over the last six years, this council and the four land councils have certainly engaged, I think our records show, in 12 discussions where the councils have met in communities, in meetings of the council that are open to communities to discuss these matters, as well as the executives—smaller committees of each land council—who have then met to progress discussions either amongst themselves, based on their own constituents' views or with government agencies.18

3.23 The NIAA stated that throughout the co-design process, the Land Councils had continued to take on board the views of their constituents, including the Traditional Owners and other Aboriginal people living in the NT. The NIAA detailed:

The four Land Councils have held four joint meetings about the reforms since 2016. The reforms have been discussed at 19 Central Land Council meetings since 2015 and the Northern Land Council has discussed the reforms regularly at the roughly 20 full, executive and regional council meetings they hold each year.19

Responding to calls for change 3.24 The committee heard that the co-design and consultation process for the proposed reforms to the Land Rights Act had been ongoing for a number of years, based on long-standing calls for change from Aboriginal Territorians.

3.25 For example, the ABAAC and APONT emphasised that NT Land Councils had been calling for Aboriginal control over the ABA over almost 40 years.20

3.26 The Land Councils advised that they had sought to guide the reform process in keeping with the views of their Aboriginal constituents whilst working in partnership with the Commonwealth Government. 21

3.27 They explained that they had taken the initiative to develop principles to guide the reform process of the ABA, noting that the proposal to develop these principles was agreed at the joint meeting in Kalkarindji in June 2016. Development of the principles with their constituents subsequently occurred during 2017, and the 12 final principles22 were articulated at a joint meeting at Barunga in 2018. 23

18 Mr James Nugent, Executive Manager, Professional Services, Central Land Council, Proof

Committee Hansard, 18 November 2021, p. 2.

19 National Indigenous Australians Agency, Submission 13, p. 2.

20 Aboriginals Benefit Account Advisory Committee, Submission 53, p. 1; Aboriginal Peak

Organisations Northern Territory, Submission 49, p. 5.

21 Anindilyakwa, Central, Northern and Tiwi Land Councils, Submission 48, p. 8.

22 A copy of the 12 principles can be found at Appendix 1 of this report.

23 Anindilyakwa, Central, Northern and Tiwi Land Councils, Submission 48, p. 7.

26

3.28 The NIAA echoed that it was the members of the NT Land Councils who had developed a model for greater Aboriginal control of the ABA, noting that after endorsement in 2018 the 12 principles were submitted for government consideration.24

3.29 The NIAA advised that the proposal for the NTAIC was built on those 12 principles through 'extensive, ongoing collaboration' with the NT Land Councils and their full membership.25

3.30 Specifically, the NIAA explained that it had collaborated with the Land Councils and the ABAAC on the design of the NTAIC through 10 formal co-design meetings since 2018 and numerous working group meetings. It noted that the land administration changes in Schedule 3 of the bill were also requested by the Land Councils through this co-design process, with some of the changes seeking to remove unused or ineffective provisions inserted into the Land Rights Act in 2006 and 2007.26

3.31 Further, the NIAA detailed that it had continued its partnership with the Land Councils and the ABAAC since the bill was introduced to Parliament by:

 holding an additional two meetings with the Land Councils and the ABAAC; and  establishing a steering committee to prepare for implementation and establishment of the NTAIC's interim board, should the bill be passed.27

3.32 APONT reiterated to the committee that the reform package in the bill was the product of a co-design process that took place over at least five years. It noted that the reforms, based on the abovementioned 12 guiding principles, had been 'openly discussed' in dozens of meetings among hundreds of grass-roots members of the Land Councils.28

Concerns with the consultation process 3.33 A number of submitters raised significant concerns around the adequacy of the consultation process for the development of the bill, as well as with the short timeframe for the committee’s inquiry. 29

24 National Indigenous Australians Agency, Submission 13, p. 2.

25 National Indigenous Australians Agency, Submission 13, p. 2.

26 National Indigenous Australians Agency, Submission 13, p. 2.

27 National Indigenous Australians Agency, Submission 13, p. 2.

28 Aboriginal Peak Organisations Northern Territory, Submission 49, p. 1.

29 See for example: concerned Australians, Submission 54, pp. 5-7; Australians for Native Title and

Reconciliation (ANTaR), Submission 40, pp. 1-2; Mr Gregory Marks, Submission 8, pp. 2-3, 7; Mr Michael Dillon, Submission 4, p. 2; Mr Bill Gray AM, Submission 12, p. 1; Emeritus Professor Jon Altman, Submission 9, pp. 12-14; Uniting Aboriginal & Islander Christian Congress and the Northern Regional Council of Congress, Submission 14, p. 2; Law Council of Australia, Submission

27

3.34 In raising their concerns, many of these submitters referred to the principle of 'free, prior and informed consent' and argued that it was unclear whether Aboriginal Territorians, in particular Traditional Owners and those in remote communities, had been meaningfully consulted in line with this principle. They argued that the co-design process was inherently flawed and placed too much weight on the views of the NT Land Councils.

3.35 Many of these submitters recommended the passage of the bill through the Senate be delayed to allow for further consultation on, and scrutiny of, the proposed reforms, particularly amongst the broader First Nations NT community beyond the Land Councils.

3.36 For example, the Australian Human Rights Commission (AHRC) recommended that the committee request a 'significantly longer' time frame for the inquiry in order to properly consider the bill and ensure that the amendments proposed had the genuine free, prior and informed consent of the Aboriginal Territorians who would be impacted, including but not limited to Traditional Owners.30

3.37 In making this recommendation, the AHRC emphasised that its key concern was that there be 'no disadvantages' to Traditional Owners and other Aboriginal Territorians from the amendments proposed in the bill. It explained:

The Commissioner is particularly concerned that there be no increased difficulty for Traditional Owners being heard and respected in decision-making about their country and the royalties from the use of their country.31

3.38 The AHRC informed the committee that the right to free, prior and informed consent is enshrined in the United Nations Universal Declaration on the Rights of Indigenous Peoples (UNDRIP), which applies to First Nations peoples the right to self-determination found in the Universal Declaration on Human Rights.32

3.39 The AHRC noted that free, prior and informed consent required genuine consultation. It further observed that, in the case of remote Aboriginal

55, p. 5; Oxfam Australia, Submission 51, [pp. 2-3]; GetUp, Submission 50, pp. 1-2; Mr Paul Henwood, Submission 58, p. 1; Spirit of Eureka, Submission 43, pp. 1-3; Ngurratjuta/Pmara Ntjarra Aboriginal Corporation, Submission 16, pp. 6-7; National Tertiary Education Union, Submission 37, pp. 2-4; Amnesty's Redfern Action Group, Submission 22, pp. 1-2; Intervention Rollback Action Group, Mparntwe-Alice Springs, Submission 36, pp. 1-2; Mr Don Stokes, Submission 45, pp. 1-2; Ms Isobel Gawler, Submission 18, p. 1.

30 Australian Human Rights Commission, Submission 38, p. 1.

31 Australian Human Rights Commission, Submission 38, p. 1.

32 Australian Human Rights Commission, Submission 38, p. 1.

28

Territorians, achieving this genuine consultation would take time and resources.33

3.40 In regard to the timeframe of the committee's inquiry, the AHRC flagged that the stakeholders most impacted by the amendments in the bill — remote Aboriginal Territorians, including Traditional Owners - were 'highly likely' to face barriers preventing them from being able to contribute to a Senate inquiry within the space of ten days34

3.41 Additionally, the AHRC commented that it appeared as though the Commonwealth Government had delegated its responsibility to consult with Aboriginal Territorians to the NT Land Councils. While recognising the 'significant and unparalleled' capacity of the Land Councils to access and represent Traditional Owners and other Aboriginal Territorians, the AHRC reminded the committee that although consultation could be outsourced, the 'duty to consult' ultimately remained with the Commonwealth Government. It explained:

In relying on third parties — including land councils — to fulfil these obligations, Government should be able to demonstrate in a fulsome and transparent manner how these obligations have been met.35

3.42 The AHRC concluded:

In the case of these proposed amendments, the combination of many unique factors makes it critical that the Government conduct an independent, culturally competent consultation process using the appropriate time and resources for a task of such gravity. The Human Rights Commission would like to be assured that this has happened and suggests that the Committee might also consider this appropriate.

Without clarity and transparency as to how representative the support for this legislation is, there is no certainty that the changes proposed in this Bill have the free, prior and informed consent of the Aboriginal Territorians affected.36

3.43 Emeritus Professor Jon Altman, an economist and anthropologist who has undertaken research in the NT since 1979, submitted in a private capacity.37 He argued that questions remained around the extent to which Traditional Owners, custodians and other interested parties were aware of and consulted on the scope and legal effects of the proposed changes.38

33 Australian Human Rights Commission, Submission 38, p. 2.

34 Australian Human Rights Commission, Submission 38, p. 3.

35 Australian Human Rights Commission, Submission 38, p. 4.

36 Australian Human Rights Commission, Submission 38, pp. 4-5.

37 Professor Altman chaired the review of the Aboriginals Benefit Trust Account (now the ABA) in

1984, and was involved in a further review in 1989.

38 Emeritus Professor Jon Altman, Submission 9, pp. 12-13.

29

3.44 He voiced concern that the views of the Land Councils had been elevated at the expense of views held by other stakeholders:

…it appears that the views of the land councils who represent traditional owners on certain matters are being conflated with the free, prior and informed consent of all traditional landowners. However, a co-design process dealing with institutional mechanisms that potentially affect the balance of powers/responsibilities between land councils and traditional owners that is only undertaken with one side of the equation is arguably a flawed co-design process.39

3.45 Mr Michael Dillon, a former senior public servant with the NT and Commonwealth Governments with experience in Indigenous policy and legislation, and former Chief Executive Officer of the Indigenous Land Corporation, submitted in a private capacity. Like Professor Altman, he also raised concern about the dominance of the Land Councils in the consultation process. He highlighted the complexities inherent in negotiating reforms that would impact the balance of power between Land Councils and other Indigenous stakeholders like Traditional Owners, and argued that as a result, a co-design process which engaged only with Land Councils was problematic.40

3.46 Mr Dillon explained the dynamics at play:

At its core, this Bill impacts on the one hand the balance of power between land councils and a wide array of amorphous and dynamically evolving groups of traditional owners, and on the other hand, between the land councils and their constituent TOs [Traditional Owners] who own and manage land under Aboriginal tenure and a wider group of potential financial beneficiaries resident in the NT but who may have lost their land rights over the course of white colonisation and settlement, and thus have less engagement with land councils. The result has been to shift the balance of power in the legislation away from TOs to the land councils, and away from the wider group of potential beneficiaries to the land councils and their constituent TOs. Even just stating these facts demonstrates the complexities involved.41

3.47 Mr Dillon continued:

The result has been a Bill that favours land councils over TOs, and that favours land councils and TOs over the wider group of potential beneficiaries. Yet the codesign process was undertaken only with the land councils. Yes, land councils have a proud history of representing TOs, and Aboriginal people generally across the NT; but in the context of designing a complex piece of legislation impacting different elements of the diverse Aboriginal population differently, it is patently inadequate to negotiate and codesign (effectively in secret) with just one of those elements.42

39 Emeritus Professor Jon Altman, Submission 9, p. 13.

40 Mr Michael Dillon, Submission 4, p. 2.

41 Mr Michael Dillon, Submission 4, p. 2.

42 Mr Michael Dillon, Submission 4, p. 2.

30

3.48 Mr Yingiya Mark Guyula MLA made a submission in his capacity as Member for Mulka in the NT Legislative Assembly, Yolŋu elder and land owner from North East Arnhem Land, and senior leader of the Ḻiya Dhalinymirr people of the Djambarrpuyŋu clan. He informed the committee that greater consultation was required with Aboriginal Territorians due to the complex and significant nature of the reforms proposed in the bill. He advised that he was aware of many First Nations people in the NT who were unable to make a submission to the committee's inquiry but wanted more information about the bill and wished to engage in consultation on the proposed reforms.43

3.49 He outlined:

I have now spoken widely to elders and leaders in my electorate and they do not know about any changes to the ALRA [Aboriginal Land Rights Act]. I have also spoken to members of the Land Councils from my own electorate and more broadly across the regions, and they have advised that they do not know the detail of the Bill. One councillor said, “we hear rumours about changes to the Land Rights Act but no one ever comes to talk to us about what it is.” Other councillors believed they would be consulted at their next meeting.44

3.50 Mr Guyula also made comment on the potential limitations of a consultation process that relied too heavily on the NT Land Councils to gather views, given that he was aware of Aboriginal Territorians who were dissatisfied with their interactions with the Land Councils in consultations on other matters:

In my role as a parliamentarian I have been approached by many people from across the Northern Territory who feel that they may have been unfairly treated by a Land Council or unfairly impacted by a Land Council decision. Generally these issues include, where a person is not recognised by the Land council as a land owner, or where they are considered part of the land owning group but do not feel they have been thoroughly consulted on an issue.45

3.51 Mr Guyula recommended that the bill be 'withdrawn or placed on hold' until there could be a greater level of consultation undertaken across the NT.46

3.52 The Urapuntja Aboriginal Corporation informed the committee that it had not been consulted 'in any meaningful sense' in regard to the potential changes to proposed in the bill. As Chief Executive Officer, Mr Michael Gravener, outlined:

I am very aware most Traditional owners have not been informed or nor provided with any meaningful consultations. Delegates for the Utopia Homelands are limited in passing on information to our population of 700

43 Mr Yingiya Mark Guyula MLA, Member for Mulka, Submission 24, p. 1.

44 Mr Yingiya Mark Guyula MLA, Member for Mulka, Submission 24, pp. 1-2.

45 Mr Yingiya Mark Guyula MLA, Member for Mulka, Submission 24, p. 7.

46 Mr Yingiya Mark Guyula MLA, Member for Mulka, Submission 24, p. 9.

31

people due to language, disempowerment, and distances that create an environment that experiences an intensity of poverty.

[Changes to] The 1976 ALRA [Aboriginal Land Rights Act] should not be passed until Aboriginal owners understand and consent to the nature and Purpose of amendments. In addition any Aboriginal communities or groups that may be affected need to be consulted and be given adequate opportunity to express their views. We feel that we have not been consulted adequately and that the vast majority of our people are unaware of the impending changes to this important Act.47

3.53 A submission received from the Ngurratjuta/Pmara Ntjarra Aboriginal Corporation expressed similar sentiments:

We were never aware of it [the co-design process] and we think that is the case for most if not all community organisations across the Northern Territory. There were no public announcements by the Coalition Government that such a process was underway. Unlike with the co-design process that was led by the Coalition Government to develop the National Agreement on Closing the Gap, there was no agreement negotiated or published beforehand as to how the co-design process was to be conducted and more importantly there wasn’t any formal engagement process with communities and their organisations. We and many other communities and their organisations had no input which is unfair and unjust and meanwhile the Government which is proposing that Parliament agree to this Bill has not involved us.48

3.54 The Ngurratjuta/Pmara Ntjarra Aboriginal Corporation also argued it was problematic to base the consultation process solely around Land Councils:

Communities are each able to choose one or two traditional owners to be Land Council members but that does not constitute a fully representative body. Moreover, many traditional owners do not engage with the Land Councils and have chosen to establish their own organisations to advance their interests which is their human right. This is no different to non-Indigenous people choosing if they want to engage with government bodies and deciding to make a choice about who should represent them. We should not be forced to be represented by Land Councils only.49

3.55 Mr Ian Mongunu Gumbula, a senior cultural elder from the Ngukurr and Galiwinku Community in the NT, called for more time for people in his community to be involved in consultation:

Our people out on country do not know that this Bill is in parliament. They have not heard about the changes.

There were no consultations or engagement with our people out on our country. That means that the great majority have been excluded from the process.

47 Urapuntja Aboriginal Corporation, Submission 59, p. 1.

48 Ngurratjuta/Pmara Ntjarra Aboriginal Corporation, Submission 16, p. 2.

49 Ngurratjuta/Pmara Ntjarra Aboriginal Corporation, Submission 16, pp. 2-3.

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The Bill has over 80 pages of changes to the Aboriginal Land Rights Act and it is complex law. We don’t know what all of these changes mean and while these amendments may be helpful, we have not had time to understand or give our consent or consideration to the changes. We hold concerns about some of these changes and whether they are going to grow our self-determination or disempower us.

The creation of a new corporation for investment and economic development may be good. But we need to see the detail and we need to say if this model supports self determination.50

Issues relating to NTAIC 3.56 Submitters to the inquiry raised a number of matters relating to the establishment and operation of the NTAIC. These included:

 the design and purpose of the NTAIC;  the composition and representativeness of the NTAIC Board; and  the adequacy of the governance and review arrangements of the NTAIC.

3.57 These three issues will be examined briefly below.

Design and purpose 3.58 As outlined earlier in this report, the NTAIC will be an Aboriginal-controlled corporate Commonwealth entity that will:

 strategically invest in Aboriginal businesses and commercial projects; and  make other payments for the benefit of Aboriginal peoples in the NT.51

3.59 Specifically, the bill provides that the NTAIC's statutory purposes are:

(a) to promote the self-management and economic self-sufficiency of Aboriginal people living in the NT; and (b) to promote the social and cultural wellbeing of Aboriginal people living in the NT.52

3.60 The NTAIC will replace the ABAAC and its establishment will allow Aboriginal Territorians to directly make decisions about ABA funding.53

3.61 The ABA collects and distributes royalty equivalents from mining on Aboriginal land. The Commonwealth Government pays amounts equivalent to royalties generated for the NT Government from mining on Aboriginal land

50 Mr Ian Mongunu Gumbula, Submission 42, p. 1.

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

Explanatory Memorandum, p. 1.

52 New section 65BA; Aboriginal Land Rights (Northern Territory) Amendment (Economic

Empowerment) Bill 2021, Explanatory Memorandum, p. 14.

53 National Indigenous Australians Agency, Submission 13, p. 3.

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into the ABA. It has a current balance of around $1.3 billion and is expected to grow steadily.54

3.62 Currently, all decisions about ABA funding, including those on beneficial payments, are made by the Commonwealth Government. For example, while the ABAAC provides advice to the Minister for Indigenous Australians about beneficial payment funding priorities, decisions are ultimately made by government and the ABA beneficial payments are then administered by the NIAA through a grants program.55

3.63 The NIAA informed the committee that the NTAIC fundamentally aims to create opportunities for Aboriginal Territorians to build long term prosperity by:

 increasing Aboriginal control of funding debited from the ABA; and  empowering Aboriginal Territorians to determine their own funding priorities based on local knowledge, cultural and financial expertise.56

3.64 In specific terms, the NIAA advised that the NTAIC will have a broad economic remit and will be able to:

 make beneficial payments;  invest in Aboriginal businesses;  invest its surplus funding in financial markets to generate returns to feed back into community;

 provide financial assistance (like sponsorships and loan guarantees);  make loans to Aboriginal businesses;  borrow additional funding;  enter into joint-ventures and other partnerships; and  form companies and subsidiaries.57

3.65 As noted earlier in this chapter, NT Land Councils have been calling for Aboriginal control over the ABA for over 40 years. The joint submission from the Land Councils conveyed their support for the NTAIC and reiterated that they had sought to guide the ABA reform process in keeping with the views of their constituents.58

3.66 APONT expressed support for the establishment of the NTAIC. In doing so it commented that while the ABAAC had done a good job under the limitations placed on it, the current system was 'desperately in need of improvement' due

54 National Indigenous Australians Agency, Submission 13, p. 3.

55 The Hon Ken Wyatt, Minister for Indigenous Australians, House of Representatives Hansard,

25 August 2021, p. 8; National Indigenous Australians Agency, Submission 13, p. 4.

56 National Indigenous Australians Agency, Submission 13, p. 3.

57 National Indigenous Australians Agency, Submission 13, p. 4.

58 Anindilyakwa, Central, Northern and Tiwi Land Councils, Submission 48, p. 1.

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to slow processes, excessive red tape and a reactive (as opposed to strategic) focus.59

3.67 The ABAAC also voiced support for the establishment and purpose of the NTAIC, stating:

The proposed establishment of the NTAIC demonstrates that Government no longer focuses on the weakness[es] and deficits of Aboriginal decision making processes and, is prepared to acknowledge the strengths, success and dedication that we as Aboriginal people have in relation to ensuring the economic future of our people through large and long term investments and self-determination.60

3.68 The Indigenous Land and Sea Corporation (ILSC) indicated it was supportive in principle of providing the NTAIC with the legislative scope to effect change for Aboriginal Territorians. However, drawing lessons from its own experience, it suggested that the purposes of the NTAIC may be more effectively served through the inclusion of two additional key provisions within the bill:

(i) Consideration should be given to the introduction of a requirement for the granting of NTAI acquired (land and water-based interests) assets into the control of Aboriginal Corporations to achieve the purposes of the reform more directly. (ii) Consideration of additional provisions in relation to consultation on

the development of the NTAIC's strategic investment plan.61

3.69 In regard to the first point, the ILSC explained its reasoning as follows:

The ATSI Act [Aboriginal and Torres Strait Islander Act 2005] requires that the ILSC acquire interests in land and water-related rights for the purpose of granting those interests to Aboriginal or Torres Strait Islander corporations.

In the experience of the ILSC, this requirement supports the realisation of benefit by and for Indigenous Australians; maximises economic self-sufficiency and self-management and builds on the capability of Aboriginal and Torres Strait Islander corporations. This experience has directed the ILSC’s recent strategy focus strongly on granting assets more quickly, reflecting the ILSC’s observations that: (i) the value of assets are better realised on the balance sheet of Indigenous organisations than ‘on the books’ of a Statutory entity; and (ii) Indigenous people derive more direct benefits when they own, control and manage the property themselves.62

59 Aboriginal Peak Organisations Northern Territory, Submission 49, p. 5;

60 Aboriginals Benefit Account Advisory Committee, Submission 53, p. 2.

61 Indigenous Land and Sea Corporation, Submission 41, p. 5.

62 Indigenous Land and Sea Corporation, Submission 41, p. 5.

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3.70 In regard to the second point, the ISLC outlined:

The ILSC notes the requirement for consultation with Aboriginal people and Aboriginal organisations across the Territory under cl.65C(2)(a) however it is suggested that, specifically setting out the detail on how consultation will extend beyond the existing network of the four Land Councils framework would be prudent. This would increase confidence in the Strategic Investment Plan’s ability to achieve the purpose of the NTAIC.63

A shift in priorities 3.71 Some submitters expressed concern that the design of the NTAIC would lead to a shift in the priorities of the ABA, which could disadvantage some Aboriginal Territorians.

3.72 For example, Professor Altman argued that the mix of purposes and functions of the NTAIC (including economic self-sufficiency and socio-cultural goals) would likely be 'extraordinarily challenging' to manage. He noted this was likely given that the 'grant function' of existing section 64(4) of the Land Rights Act would be 'intermingled with an investment instrument'. He expressed concern that the NTAIC may look to prioritise investment over grant-making, noting that government statements on the bill appeared to give little reference to the social and cultural aspirations of the Aboriginal Territorians.64

3.73 At the public hearing, Professor Altman elaborated on this concern:

[The NTAIC] has three functions, and these are far from clear. One of the functions is to pick up that role under the land rights act under section 64(4) to make grants 'to or for the benefit of Aboriginals living in the Northern Territory'. The second role that this entity will have is to manage an endowment of $500 million that will be transferred from the ABA. A third role will be to be an active investor in businesses. The way that the explanatory memorandum and the releases from the government have been framed is very much in relation to activating the potential of Indigenous land in the Northern Territory.65

3.74 He continued:

It strikes me that this new entity has got a diversity of objectives, but the emphasis in its name and on how its development has been framed is very much as operating as an investment corporation focused on business. I think that there is a risk that its functions to provide grants to or for the benefit of Aboriginal people in the Northern Territory, which often encompasses social, cultural and community objectives, will somehow be

63 Indigenous Land and Sea Corporation, Submission 41, pp. 5-6.

64 Emeritus Professor Jon Altman, Submission 9, p. 5.

65 Emeritus Professor Jon Altman, private capacity, Proof Committee Hansard, 18 November 2021,

p. 13.

36

diluted with its focus on mainstream economic development and its operations as an investment instrument.66

3.75 Mr Dillon argued that the design of the NTAIC could lead to a change in the ABA's focus, namely from a scheme designed to benefit all Aboriginal Territorians (whether or not they benefit directly from land rights) to one that potentially privileges those who do benefit from land rights. He explained:

…the original conceptual scheme of the ABA was to split the available funds in three main ways: (i) amounts for land council funding; (ii) amounts to communities affected by mining; and (iii) amounts to Aboriginal Territorians generally including those Aboriginal Territorians who do not benefit from land rights. These amendments leave categories (i) and (ii) untouched, but potentially strengthen the trend to allocate the majority of category (iii) funding towards land council priorities and away from beneficial payments.67

3.76 Mr Dillon also asserted that the 'three conceptually distinct' functions of the NTAIC would inevitably come into conflict with each other. For instance, he contended that as beneficial payments would not return a revenue stream, they could potentially be minimised once the NTAIC builta portfolio of investments.68

Composition of the NTAIC Board 3.77 As set out in Chapter 2, the bill provides that the NTAIC Board will be 12 members, comprised of:

 two members appointed by each Land Council (i.e. eight members in total across the four Land Councils);  two members appointed by the Commonwealth; and  two independent members appointed by the Board.69

3.78 Professor Altman asserted that the proposed NTAIC Board composition was not proportionally representative in a population sense when compared to the the current representation on the ABAAC. He argued that as the Board would have two members appointed by each Land Council, the TLC and the ALC would be overrepresented based on the size of the populations they represented.70

66 Emeritus Professor Jon Altman, private capacity, Proof Committee Hansard, 18 November 2021,

p. 13.

67 Mr Michael Dillon, Submission 4, pp. 3-4.

68 Mr Michael Dillon, Submission 4, pp. 4-5..

69 Section 65EA; Aboriginal Land Rights (Northern Territory) Amendment (Economic

Empowerment) Bill 2021, Explanatory Memorandum, pp. 21-22.

70 Emeritus Professor Jon Altman, Submission 9, p. 6. See also: Emeritus Professor Jon Altman, private

capacity, Proof Committee Hansard, 18 November 2021, p. 12; Mr Michael Dillon, Submission 4, p. 3.

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3.79 Professor Altman also noted that those Aboriginal people in the NT who are unrepresented by the Land Councils (due to not being Traditional Owners of land under the Land Rights Act) were not allocated any mandated representation on the NTAIC Board.71 He called for the 'apparent bias' in favour of the Land Councils to be addressed as it could negatively impact on the interests of other Aboriginal Territorians.72

3.80 Mr Guyula stated that he was concerned about the lack of representation on the NTAIC Board for some First Nations groups. He asserted that the composition arrangement proposed in the bill was not adequate for fair representation and good decision-making.73

3.81 Mr Dillon also asserted that the design of the NTAIC Board would mean it would be dominated by Land Councils, with the potential for significant conflicts of interest to arise.74

3.82 The Ngurratjuta/Pmara Ntjarra Aboriginal Corporation raised concern that the NTAI would become 'dominated' by Land Councils and end up as 'another bureaucracy controlled by the Commonwealth' which was neither responsive or accountable to Aboriginal people. It explained:

Our biggest concern with this Bill is that it gives Land Councils even more control than what they already have over our land by allowing their representatives to also control access by communities to the ABA. We accept that Aboriginal people in communities and their own organisations should have more say in ABA grants and forming partnerships with Governments and industry to do this. The model of representation for the NTAIC that has been chosen by the Coalition Government, however, is likely to alienate our people and meanwhile Land Councils which are also funded by the ABA and control distributions of its mining royalty equivalents to affected communities, will now control payments to communities. There is a significant conflict of interest in these arrangements and it was never intended to occur.75

3.83 To addresses these concerns, the Ngurratjuta/Pmara Ntjarra Aboriginal Corporation argued for a more diverse Board composition:

Not surprisingly, as they were the only ones consulted, Land Councils dominate the membership of the new statutory body. No provision has been made for any other Aboriginal bodies to automatically be able to nominate Board members. We see no reason why nominations are not called for in a public manner that allows any Aboriginal Territorian to be

71 Emeritus Professor Jon Altman, Submission 9, p. 6.

72 Emeritus Professor Jon Altman, Submission 9, p. 14

73 Mr Yingiya Mark Guyula MLA, Member for Mulka, Submission 24, p. 2.

74 Mr Michael Dillon, Submission 4, pp. 4-6.

75 Ngurratjuta/Pmara Ntjarra Aboriginal Corporation, Submission 16, pp. 3-4.

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considered who has demonstrable experience and outcomes related to achieving the objectives of the new body.76

3.84 The ILSC questioned whether the composition of the Board as contemplated by the bill would enable a 'sufficient balance' of cultural, social economic, business and land/water management expertise to be brought to the decision-making of the NTAIC.77

3.85 It noted that it was specifically interested in ensuring comprehensive engagement and representation of all Aboriginal Territorians beyond Land Council membership, in line with the purpose of the NTAIC. It suggested that a NTAIC Board that equally balanced Traditional Owner elected representation and skills-based representation should be considered, and put forward recommendations of how this could be achieved.78

3.86 The NIAA informed the committee that the NTAIC would have a 'diverse and representative' Board with a range of cultural, financial and environmental management expertise.79

3.87 In particular, it clarified that in regard to the two Commonwealth-appointed directors, one would be appointed by the Minister for Indigenous Australians, and the other by the Minister for Finance. It noted that the directors would be required to have expertise in financial, business or land, water or environment management.80

3.88 The NIAA also advised that the two directors appointed by the Board must be independent from the Land Councils and the Commonwealth Government, noting:

These directors must have land, water or environmental management expertise and/or financial or business expertise and could also represent community interests.81

3.89 The joint submission from the NT Land Councils pointed out that under the current arrangements for the ABAAC, the NLC has seven members, more than any other Land Council. It noted that under the NTAIC Board arrangements, the NLC would only have two members on the Board, equal to the other Land Councils.82

76 Ngurratjuta/Pmara Ntjarra Aboriginal Corporation, Submission 16, pp. 3-4.

77 Indigenous Land and Sea Corporation, Submission 41, p. 6.

78 Indigenous Land and Sea Corporation, Submission 41, p. 6.

79 National Indigenous Australians Agency, Submission 13, p. 4.

80 National Indigenous Australians Agency, Submission 13, p. 4.

81 National Indigenous Australians Agency, Submission 13, p. 4.

82 Anindilyakwa, Central, Northern and Tiwi Land Councils, Submission 48, p. 9.

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3.90 The Land Councils observed that although this arrangement could be seen as unfair, it considered it 'critical' that Aboriginal people had majority control of the NTAIC. It explained that it would not be right for one Land Council to have more board members than another because the NTAIC's purpose is to serve all Aboriginal Territorians, regardless of the Land Council region they live in.83

3.91 The Land Councils also indicated support for the appointment of independent directors by the Board, noting that this feature in the governance design was informed by a comparative analysis of comparable organisations that was commissioned by the minister with their support.84

3.92 Additionally, the Land Councils submitted that they did not consider that the NTAIC Board required other Aboriginal people on it to represent the views of Aboriginal communities. It argued that the Land Council representation was sufficient:

Land Council members are elected to represented the views of Traditional Owners and other Aboriginal residents in their Land Council region. If they fail at this, they get voted out.85

Review mechanism 3.93 The bill provides for the operation of the NTAIC to be reviewed after seven years.86 Some submitters argued that this timeframe was inadequate and that a review should occur sooner. For example, Professor Altman proposed that a

review should occur 'far sooner', potentially after two or three years.87

3.94 Mr Dillon also argued that the review process proposed in the bill was inadequate in a number of respects. He explained:

…it [the review] would be limited to the NTAIC whereas the NTAIC proposals have the potential to affect the operations of land councils, land trusts, royalty corporations, and other elements of the legislation (and indeed the operation of entities such as PBCs established under the Native Title Act 1993). Any review should be of the operation of the whole Act [Land Rights Act]. It should also be unequivocally independent.88

83 Anindilyakwa, Central, Northern and Tiwi Land Councils, Submission 48, p. 9.

84 Anindilyakwa, Central, Northern and Tiwi Land Councils, Submission 48, p. 10. A copy of this

comparative analysis was provided to the committee by the National Indigenous Australians Agency in an answer to a question on notice. It is published on the committee's webpage.

85 Anindilyakwa, Central, Northern and Tiwi Land Councils, Submission 48, p. 10.

86 New section 65JD. Aboriginal Land Rights (Northern Territory) Amendment (Economic

Empowerment) Bill 2021, Explanatory Memorandum, p. 32.

87 Professor Jon Altman, Submission 9, p. 7.

88 Mr Michael Dillon, Submission 4, p. 1.

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3.95 The AHRC recommended a 'transparent, accessible and independent review mechanism' be built into the legislation at the three year mark, rather than the seven years proposed in the bill.89

3.96 The NIAA advised the committee that a review after seven years was appropriate as it would provide an opportunity to:

 reflect on the NTAIC's achievements;  ensure its functions are fit for purpose; and  further consider the strategic direction of the remaining ABA funding.90

3.97 The NT Land Councils indicated they were comfortable with the review after seven years as proposed by the bill, given that:

It will take several years following the establishment of the corporation for the first strategic investment to be made, following the transfer of the $500 million endowment which itself is contingent on the development and tabling in Parliament of a Strategic Investment Plan. It will be several years after that before it will be possible to evaluate the success or otherwise of those investments, including any financial returns on that investment.91

3.98 The Land Councils also commented that while calls for an earlier review of the NTAIC were understandable, they did not consider an earlier review would be a good use of public money or ABA funds. They explained:

Unless there is sufficient time for the new corporation to demonstrate success, it is likely there will be insufficient evidence on which to make findings about the success or otherwise of the new corporation in generating returns on strategic investments.92

3.99 Mr Nugent of the CLC further outlined:

I'm aware of submissions that have proposed that a review period of three years might be put forward. My own view is that that would be far too short a period in which to establish the mechanism of a new statutory entity for the board to engage the CEO and staff and to commence consultation on the ground regarding investment plans and how it will engage in the process of the business of the entity.93

89 Australian Human Rights Commission, Submission 38, p. 8.

90 National Indigenous Australians Agency, Submission 13, p. 5. See also: Mr Blair Exell, Acting Chief

Executive Officer, National Indigenous Australians Agency, Proof Committee Hansard, 18 November 2021, p. 16.

91 Anindilyakwa, Central, Northern and Tiwi Land Councils, Submission 48, p. 10.

92 Anindilyakwa, Central, Northern and Tiwi Land Councils, Submission 48, p. 10.

93 Mr James Nugent, Executive Manager, Professional Services, Central Land Council, Proof

Committee Hansard, 18 November 2021, p. 3.

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Streamlining exploration and mining 3.100 As set out in Chapter 2, the bill seeks to reduce inefficiencies associated with exploration and mining processes on Aboriginal land in the NT through a number of reforms to the Land Rights Act.

3.101 In particular, the bill will make amendments to improve 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;94  Land Councils can take a more flexible approach to meetings with traditional Aboriginal owners;95 and  the minister's consent is not required following the Land Council providing

notice of consent for the grant of an exploration licence.96

3.102 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 Mineral Titles Act 2010 (NT), the Petroleum Act 1984 (NT), and the Geothermal Energy Act 2009 (NT). Significantly, Part IV provides for Traditional Owners to 'veto' or refuse consent to the grant of an exploration licence or mining on their land.97

3.103 According to the EM, the current processes for exploration and mining under the Land Rights Act can be 'difficult to navigate, unnecessarily time consuming and costly for all stakeholders'.98

3.104 To remedy this, the bill seeks to:

…clarify and improve and 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.99

3.105 The NIAA advised that a reduction in the time and cost of processing licence applications over Aboriginal land would increase clarity and confidence for all stakeholders.100

94 Schedule 2, Item 21 - new subsection 41(6A)

95 Schedule 2, Item 23 - new subsections 42(4) to (5A)

96 Schedule 2, Item 25 - new subsections 42(8), (8A), (9) and (10)

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

Explanatory Memorandum, p. 4.

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

Explanatory Memorandum, p. 5.

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

Explanatory Memorandum, p. 5.

100 National Indigenous Australians Agency, Submission 13, p. 5.

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3.106 However, it also emphasised that Land Councils have statutory responsibilities to consult with and ensure informed, group consent of Traditional Owners about land use on Aboriginal land. It reiterated that the bill preserves the existing rights and entitlements of Traditional Owners to exercise their 'veto' power and refuse consent to land use proposals.101 Additionally, the NIAA noted that the existing timeframes for Traditional Owners to negotiate exploration and mining proposals will be retained, meaning there would be no added time pressures on Traditional Owner decision-making.102

3.107 The NIAA informed the committee that the reforms to Part IV (Mining) of the Land Rights Act had a long history. For example, the Aboriginal Land Rights (Northern Territory) Amendment Act 2006 included a number of reforms to Part IV (Mining), along with the requirement for an independent review of the operation of Part IV five years from the amendments coming into operation. Subsequently, the report on the Review of Part IV of the Aboriginal Land Rights (Northern Territory) Act 1976103 was released in March 2013.104

3.108 The NIAA outlined the various consultation processes that had been undertaken between key stakeholders (including the Land Councils, the NT and Commonwealth Governments, and mining industry peak bodies) from 2016 onwards, firstly to consider the recommendations of the 2013 review, and later to consider the exposure draft of the bill.105

3.109 The MCA also highlighted the long and collaborative nature of the development of the Part IV reforms, advising that during consultation the MCA NT and the NT Land Councils recognised the potential for minerals development to support Aboriginal community aspirations and priorities.106

3.110 The NT Land Councils advised the committee that they were supportive of the mining reforms proposed in the bill, which they considered to be 'largely administrative or technical in nature'. The joint submission explained:

The reforms have the potential to reduce the amount of time associated with the application process for exploration licenses and permits. Creating more efficient and consistent processes will benefit Traditional Owners and mining parties equally.107

101 National Indigenous Australians Agency, Submission 13, p. 5.

102 National Indigenous Australians Agency, Submission 21, p. 6.

103 The review was led by the then Aboriginal Land Commissioner, Justice John Mansfield AM.

104 National Indigenous Australians Agency, Submission 21, p. 3.

105 National Indigenous Australians Agency, Submission 21, p. 3.

106 Minerals Council of Australia, Submission 27, p. 2.

107 Anindilyakwa, Central, Northern and Tiwi Land Councils, Submission 48, p. 11.

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3.111 The CLC highlighted that that amendments in the bill do not weaken the existing rights and entitlements of Traditional Owners. As Mr Nugent commented:

Contrary to what some of the submissions to this inquiry have indicated, they [the amendments] in no way derogate from the central requirements of traditional owners. The so-called 'veto right' that traditional owners maintain is sacrosanct under the land rights act. That is absolutely protected. The provisions are largely administrative and go to the ordinary practicalities of administering what is a reasonably compact set of provisions…108

3.112 Additionally, Mr Wayne Beswick, Senior Manager of Government Relations and Engagement for the NLC, reiterated that the Land Councils and their memberships had considered the amendments in the bill and were comfortable with the streamlining reforms.109

3.113 Some submitters raised concerns that the amendments would weaken the rights of Traditional Owners. For example, Oxfam Australia noted that it was not aware of any evidence of Traditional Owners calling for the 'streamlining of the approvals process' or flexibility around holding consent meetings. It argued that it appeared as though the interests of Land Councils and industry were being addressed, but not those of the wider population of Traditional Owners.110

3.114 The Ngurratjuta/Pmara Ntjarra Aboriginal Corporation was of the view that the veto power was being weakened and sought clarification around why the amendments were needed. It explained:

We are concerned that they by reducing some of the checks and balances in the approval process, in fact the veto is being weakened. There must have been good reason for why the steps to be repealed through the amendments were originally included in the Land Rights Act. If they are to be taken out now, we need to know why the original reason for their inclusion is no longer valid. Citing benefits for other stakeholders is not sufficient on its own to make these changes which could hurt us.111

3.115 Mr Guyula pointed out that mining and mining negotiations were an area of 'great concern' for First Nations land owners in the NT. He outlined:

Right now, we see mining on country and fracking on country that has caused great anguish for the land owners. For this reason, any amendments to this section of the law must result in robust processes that

108 Mr James Nugent, Executive Manager, Professional Services, Central Land Council, Proof

Committee Hansard, 18 November 2021, p. 4.

109 Mr Wayne Beswick, Senior Manager, Government Relations and Engagement, Northern Land

Council, Proof Committee Hansard, 18 November 2021, p. 8.

110 Oxfam Australia, Submission 51, p. 2.

111 Ngurratjuta/Pmara Ntjarra Aboriginal Corporation, Submission 16, p. 5.

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protect the land owners’ rights and interests and reinforce the principle of free, prior and informed consent. There should never be a decision made for us. The Land Councils are the intermediary not the decision-maker.112

3.116 Mr Guyula expressed concern that any amendments to streamline approval processes and create greater flexibility may come at the cost of the land owners' autonomy. He stated that any amendments required a high level of scrutiny to ensure that this did not happen.113

3.117 The AHRC stated that while in principle it supported reforms to make decision-making and approval processes more efficient, such efficiencies must not come at the expense of the procedural rights of Traditional Owners.114

3.118 It submitted that it was critical that the rights of Traditional Owners to consent (or not consent) to use of their land not be diminished in any way by the amendments proposed in the bill. It urged the committee to give serious consideration to how any 'streamlined' processes would operate in practice and examine closely what a more flexible approach would entail from the perspective of Traditional Owners who may wish to not provide consent. The AHRC emphasised that the reforms must not make it harder for Traditional Owners to say 'no' to the use of their land.115

3.119 Professor Altman contended that, in the absence of property rights in minerals, the 'streamlining' of processes could commercially weaken the de facto collective property rights that Traditional Owners could exercise with right of consent provisions. He explained:

This is because the potential of protracted negotiations is the most effective commercial lever that traditional owners can exercise in their dealings with applicants/developers. In the name of streamlining, traditional owners and communities affected by exploration and mining might be less, rather than more, economically empowered.116

3.120 He submitted that there were three amendments in the bill —new subsections 42(4), 42(4C) and 42(4D) — that needed urgent clarification as they could potentially dilute the decision making powers of Traditional Owners.117

3.121 For example, new subsection 42(4) in the bill provides that a Land Council is required to convene meetings with Traditional Owners as it considers appropriate, rather than necessary, for the purpose of considering exploration licence applications. As the EM explained:

112 Mr Yingiya Mark Guyula MLA, Member for Mulka, Submission 24, p. 2.

113 Mr Yingiya Mark Guyula MLA, Member for Mulka, Submission 24, p. 2.

114 Australian Human Rights Commission, Submission 38, p. 5.

115 Australian Human Rights Commission, Submission 38, p. 5.

116 Emeritus Professor Jon Altman, Submission 9, p. 9.

117 Emeritus Professor Jon Altman, Submission 9, p. 9.

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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.118

3.122 Professor Altman asserted that the while this discretion to provide Land Councils with greater flexibility might result in more or fewer meetings, the power to convene such meetings seemed to lie entirely with Land Councils, not Traditional Owners.119

3.123 The Land Councils stated that the amendments proposed in section 42(4) of the bill would resolve a 'major source of frustration' for Traditional Owners - namely unnecessary meetings on matters where Traditional Owners had already made their views clear to a Land Council.120

3.124 Their joint submission explained:

This change does not diminish or alter the primacy of Traditional Owners in determining whether mining can proceed on their land and the related terms and conditions. The reform is likely to save time and cost associated with unnecessary meetings. It will reduce the frustration of Traditional Owners who feel their decisions are not respected when meetings are held on matters where they have already made up their mind.121

3.125 In regard to new subsection 42(4C), Professor Altman asserted that while Traditional Owners maintain a right to exclude the applicant's representative from meetings, the onus would be on them to seek exclusion via the Land Council. He argued it would be more appropriate for Traditional Owners to be afforded the right to invite a representative of the application to a meeting.122 In regard to new subsection 42(4D), he argued it was far from clear why the minister should have such a right of oversight or regulation in a meeting and contended that it was counter to notions of self-determination.123

3.126 The Law Council of Australia (LCA) advised that it viewed the changes proposed in new subsections 42(4), 42(4A), 42(4B), 42(4C), 42(4D) and 42(5) as 'generally being negligible'.124 However, it suggested that new subsections

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

Explanatory Memorandum, p. 42.

119 Emeritus Professor Jon Altman, Submission 9, p. 9.

120 Anindilyakwa, Central, Northern and Tiwi Land Councils, Submission 48, p. 11.

121 Anindilyakwa, Central, Northern and Tiwi Land Councils, Submission 48, p. 11.

122 Emeritus Professor Jon Altman, Submission 9, p. 9.

123 Emeritus Professor Jon Altman, Submission 9, p. 9.

124 Law Council of Australia, Submission 55, p. 11.

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42(4A) and 42(4B) were poorly worded, meaning the intent of the amendments was unclear. It recommended these new subsections be redrafted for clarity.125

Committee view 3.127 On balance, the committee is persuaded that the reforms provided in the bill realise the longstanding aspirations of Aboriginal people in the NT for greater control over decision-making to realise the potential of their land. The

committee is of the view that the reforms appropriately respond to calls for change from Aboriginal Territorians.

3.128 The committee is mindful of the significance of the Land Rights Act to Aboriginal Territorians and is pleased that the Australian Government has committed to only reform it with the support of the NT Land Councils.

3.129 The committee considers that the measures in the bill will empower Aboriginal peoples in the NT to activate the economic potential of their land and grow the prosperity of their communities.

3.130 In coming to this position, the committee is cognisant of the strong support for the reforms in the bill expressed by the NT Land Councils, APONT and the ABAAC.

3.131 The committee also recognises the extensive co-design process undertaken in the development of the bill, and considers this to be an excellent example of shared decision-making in practice. Additionally, the committee is pleased to see that shared decision-making is a foundational principle of the NTAIC.

3.132 The committee acknowledges the views of submitters around the importance of consultation. However, the committee is satisfied that the operation of the NTAIC will be subject to ongoing consultation with Aboriginal stakeholders in the NT. The committee is of the view that Aboriginal Territorians will be able to have an ongoing voice in the activities of the NTAIC through the governance, consultation and review mechanisms outlined in the bill.

3.133 The committee recognises the vital role played by the four NT Land Councils in representing the views of Aboriginal Territorians, including but not limited to Traditional Owners. The committee encourages the NT Land Councils to continue to listen to and advocate for their constituents.

125 Law Council of Australia, Submission 55, pp. 11-12. Further detail on the suggestions for redrafting

can be found on p. 12 of the submission.

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Recommendation 1

3.134 The committee recommends that the Senate pass the bill.

Senator Claire Chandler Chair

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Dissenting report by the Australians Greens

1.1 The Australian Greens wish to thank all submitters to this important inquiry, in particular the many First Nations communities, and community organisations as well as concerned individuals that came forward in what was a very short timeframe for submissions. Their considerations are much valued and should be guiding the government’s decision on how to proceed with the Aboriginal Land Rights (NT) Amendment (Economic Empowerment) Bill (the Bill).

1.2 The Australian Greens are therefore very concerned that, despite 92% of submitters being against the passing of the Bill at this stage, the committee’s majority report recommends passing the Bill without further amendments, and does not properly consider the many concerns expressed with the Bill, both around the consultation during its development as well as its substance.

Background of the Bill 1.3 The Aboriginal Land Rights (NT) Amendment (Economic Empowerment) Bill 2021 proposes the most substantial changes to the Aboriginal Land Rights (NT) Act (ALRA) since it was first established in 1976.

1.4 Stated purposes of the Bill include the enhancement of ‘Aboriginal control over land management’1 and the empowerment of ‘Aboriginal peoples in the NT to activate the economic potential of their land for generations to come’.2

1.5 Amongst other changes, the Bill proposes:

 the establishment of the Northern Territory Aboriginal Investment Corporation (NTAIC) as a statutory authority with the broad purposes of promoting the self-management and economic self-sufficiency, and the social and cultural wellbeing of First Nations people living in the Northern Territory (NT). The NTAIC will receive, out of the Aboriginal Benefits Account (ABA), $500 million of initial funds and an additional $60 million per year for the first three years of its operation for investment and beneficial payment purposes  the abolishment of the ABA Advisory Committee  changes to application processes for exploration and mining on Country in

the NT  changes to township leasing processes and funding arrangements

1 Aboriginal Land Rights (NT) Amendment (Economic Empowerment) Bill, Explanatory

Memorandum, p.14.

2 Aboriginal Land Rights (NT) Amendment (Economic Empowerment) Bill, Explanatory

Memorandum, p. 1.

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 changes to the Land Councils’ ability to enter into land agreements and the amount at which they must seek ministerial approval to enter into a contract  increasing the Land Councils’ discretion to determine appropriate consultation with Traditional owners  removing the Land Councils’ ability to delegate powers to certain

corporations  removing the requirement that certain permits may only be cancelled by the issuer of the permit  increasing penalties for trespassing on Country  alignment with other Commonwealth legislation.

Concerns with the Bill

Consultation with First Nations communities 1.6 The Australian Greens’ first and foremost concern with this Bill relates to the lack of consultation with First Nations communities affected by the proposed changes.

1.7 This inquiry received overwhelming evidence from stakeholders and First Nations communities concerned by the lack of community consultation underlying the proposed changes.

1.8 While the government argues that this Bill has been co-designed in an extensive process over many years, the co-design process did not actually include First Nations communities in the NT but was carried out closely with the four NT Land Councils.

1.9 As Mr Gregory Marks notes:

The Land Councils it appears are the gate keepers when it comes to consultation. This gatekeeper role is also evident in the Minister’s statement that the land councils had consulted with 220 elected landowners. The 220 elected landowners are the elected members of the Land Councils. This is not the way that consultation works for Aboriginal Traditional Owners. Consultation cannot be mediated through third parties, even elected representative parties. As is well known, a fundamental of Aboriginal law and custom is that Aboriginal people cannot speak for or make decisions about land for which they are not directly responsible according to that Aboriginal law and custom. The Government cannot delegate its responsibilities for consultation to Land Councils, who in turn are consulting indirectly through elected land council members.

[…] a bona fide attempt has to be made by Government to consult widely and to obtain a cross-section at least of the views of Traditional Owners, and other affected Aboriginal communities or groups, before proceeding with legislation of such moment.3

3 Mr Gregory Marks, Submission 8, p. 3.

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1.10 Similarly, Mr Michael Dillon notes:

The result has been a Bill that favours land councils over TOs, and that favours land councils and TOs over the wider group of potential beneficiaries. Yet the codesign process was undertaken only with the land councils.

[…] in the context of designing a complex piece of legislation impacting different elements of the diverse Aboriginal population differently, it is patently inadequate to negotiate and codesign (effectively in secret) with just one of those elements.4

1.11 The Land Councils, as representatives of Traditional Owners in the NT, are obliged to act on their behalf and based on consultation with and consent of Traditional Owner communities. They have also set themselves Free, Prior and Informed Consent (FPIC) as an underlying principle of their negotiations with the government on schedule 1 of this Bill, as pointed out in their submission to the inquiry:

Consistent with Australia’s international and national human rights obligations, traditional owners must provide their informed consent regarding any changes to the ABA.5

1.12 However, the government does not seem to have undertaken its duty of care to verify that FPIC has actually occurred.

1.13 As the Australian Human Rights Commission points out:

The Government appears to have delegated its responsibility to consult with Aboriginal Territorians to the four land councils with whom the Minister states the Bill has been co-designed. […]

However, the Commission reminds the Committee that while consultation can be outsourced, the duty to consult ultimately sits with the Government. In relying on third parties—including land councils—to fulfil these obligations, Government should be able to demonstrate in a fulsome and transparent manner how these obligations have been met.6

1.14 Mr Gregory Marks remarks:

[…] to conflate co-design with consultation in respect of informed consent is incorrect. The established international norms in respect of free prior and informed consent for Indigenous peoples set a high bar. The provisions and jurisprudence of international conventions to which Australia is a party, such as the International Convention on the Elimination of All Forms or Racism (ICERD), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the International Covenant on Civil and Political Rights (ICCPR), plus the provisions of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), which Australia supports,

4 Mr Michael Dillon, Submission 4, p. 2.

5 Joint Submission by the Northern Territory Land Councils, Submission 48, p. 8.

6 Australian Human Rights Commission, Submission 38, p. 4.

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make it clear that some form of indirect consultation will not be adequate to meet Australia’s international obligations in this regard.7

1.15 FPIC has not occurred in relation to this Bill. This is besides the Land Councils proclaiming the following as one of the principles underlying the co-design process in relation to the first schedule of the Bill:

Consistent with Australia’s international and national human rights obligations, traditional owners must provide their informed consent regarding any changes to the ABA.8

1.16 The Human Rights Commission also expresses its concerns around FPIC

Without clarity and transparency as to how representative the support for this legislation is, there is no certainty that the changes proposed in this Bill have the free, prior and informed consent of the Aboriginal Territorians affected. […]

In principle, the Commission supports reforms to make decision-making and approval processes more efficient, however, this should not come at the expense of the procedural rights and the control over decision-making of Traditional Owners.9

1.17 Traditional Owners were not consulted about the proposed changes to the ALRA, did not give explicit consent, and did in most cases not even know about the changes.

1.18 As the Ngurratjuta/Pmara Ntjarra Aboriginal Corporation states:

This so called co-design process needs to be investigated by the Senate Committee. We were never aware of it and we think that is the case for most if not all community organisations across the Northern Territory. There were no public announcements by the Coalition Government that such a process was underway. […]

Our member communities and their residents have not been asked about the amendments and they do not have any knowledge of what is being proposed let alone support them. We think that is the case throughout the Northern Territory. Communities are each able to choose one or two traditional owners to be Land Council members but that does not constitute a fully representative body. Moreover, many traditional owners do not engage with the Land Councils and have chosen to establish their own organisations to advance their interests which is their human right.10

7 Mr Gregory Marks, Submission 8, p. 4.

8 Joint Submission by the Northern Territory Land Councils, Submission 48, p. 8.

9 Australian Human Rights commission, Submission 38, p. 5.

10 Ngurratjuta/Pmara Ntjarra Aboriginal Corporation, Submission 16, p. 2.

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1.19 Senior cultural elder from Ngukurr and Galiwinku Communities, Mr Ian Mongunu Gumbula notes:

This is the most significant Balanda Law for protecting First Nations rights in the NT. We need to be very careful about changing it, and make sure there has been consultation out on country and in our communities.

Our people out on country do not know that this Bill is in parliament. They have not heard about the changes.

There were no consultations or engagement with our people out on our country. That means that the great majority have been excluded from the process.11

1.20 Mr Michael Gravener, CEO of the Urupunta Aboriginal Corporation also points to the lack of consultation with their community:

Our local Aboriginal Corporation has not been consulted in any meaningful sense in regards potential changes to the Aboriginal Lands Rights Act! I am very aware most Traditional owners have not been informed or nor provided with any meaningful consultations. […]

The 1976 ALRA should not be passed until Aboriginal owners understand and consent to the nature and Purpose of amendments. In addition any Aboriginal communities or groups that may be affected need to be consulted and be given adequate opportunity to express their views. We feel that we have not been consulted adequately and that the vast majority of our people are unaware of the impending changes to this important Act.12

1.21 Yingiya Mark Guyula, independent First Nations MP in the NT points out further concerns about the assumption that Land Councils adequately represent their communities’ interests:

In my role as a parliamentarian I have been approached by many people from across the Northern Territory who feel that they have been unfairly treated by a Land Council or unfairly impacted by a Land Council decision. Generally these issues include, where a person is not recognised by the Land Council as a land owner, or where they are considered part of the land owning group but do not feel they have been thoroughly consulted on an issue.13

1.22 Indeed, during the public hearing held for this inquiry, Mr Bulman from the NIAA, conceded that the agency regards the consultation with Land Councils as representative for Traditional Owner communities:

We worked with land councils and their members as representatives of the broader communities across the Northern Territory.14

11 Mr Ian Mongunu Gumbula, Submission 42, p. 1.

12 Urapuntja Aboriginal Corporation, Submission 59, p. 1.

13 Mr Yiŋiya Guyula MLA, Member for Mulka, Submission 24, p. 7.

14 Mr Ryan Bulman, Group Manager, Economic Policy and Programs, National Indigenous

Australians Agency, Proof Committee Hansard, 18 November 2021, p. 14.

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1.23 The Central Land Council, through Mr Nugent, further confirms this approach

On a broad policy issue, such as amendments to the land rights act, the constituency of the land councils are the elected representatives of traditional owners and Aboriginal people in the Northern Territory who are affected who give precedence to this.15

1.24 The Bill was also perceived to be rushed through parliament. In fact, it was only through the Australian Greens' persistence that this inquiry was undertaken, and that community received at least an opportunity, if a very limited one, to express widespread concern about the Bill. Unfortunately, the timeframe for this inquiry was very rushed, thereby excluding the participation of many more.

1.25 Due to the major concerns with consultation, as well as with various aspects of the proposed changes, at the time of preparation of this report only 5 submitters advocated for the passing of the Bill: the Land Councils, the National Indigenous Australians Agency (NIAA), the chair of the ABA Advisory Committee, the Aboriginal Peak Organisations NT (which include the Land Councils), and the Minerals Council of Australia. All besides the latter were directly involved in the co-design of the Bill and the Minerals Council has an obvious interest in its passing due to its members benefitting from the proposed changes.

1.26 An overwhelming majority of the submissions received do not want this Bill to pass into law. They instead call on the government to ensure a thorough consultation process with First Nations in the NT and any proposed changes to the ALRA to be based on FPIC.

Accountability of Land Councils 1.27 Connected to these concerns around consultation about the proposed changes to the ALRA are the wider concerns around accountability of the Land Councils to the communities they are supposed to represent and ensuring

Free, Prior and Informed Consent is obtained for any decisions.

1.28 June Oscar, Aboriginal and Torres Strait Islander Justice Commissioner, in the submission of the Human Rights Commission stated that:

Given the primacy of the right to free prior and informed consent in the context of land rights in particular, the Commission suggests the Committee give the substantive content of FPIC in-depth consideration.16

1.29 For FPIC to be best facilitated in all circumstances, the Australian Greens would like to underline the importance of ensuring full accessibility for communities to participate in meetings with Land Councils as well as potential

15 Mr James Nugent, Executive Manager, Professional Land Services, Proof Committee Hansard,

18 November 2021, p. 7.

16 Australian Human Rights commission, Submission 38, p. 2.

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project proponents. Ample notice of the meetings should be given, community members supported to attend (remotely or in person), First Nations Elders encouraged to attend and provisions made to assist their attendance as much as possible, and translators be present wherever required. Community members should also be informed about any decisions made during the meetings to ensure transparency, particularly around any consent granted or not granted, and for community to be provided the opportunity to challenge such decisions where needed.

1.30 Given FPIC, in practice, is currently not always guaranteed to be obtained from Traditional Owner communities by the Land Councils, the Australian Greens are deeply concerned about the Bill’s provision for Land Councils to take more flexible approaches to consulting with Traditional Owners about proposals for mining and exploration. While this provision theoretically could enable more consultation, it also carries the risk of less consultation being undertaken and consent to be assumed where none has been explicitly granted.

1.31 Of further concern is the inclusion of no-invalidity clauses in proposed sections 65BH(3) and 12D(7), as pointed out in the Scrutiny of Bills Committee report:

The committee reiterates that there are significant scrutiny concerns with no-invalidity clauses, as these clauses may limit the practical efficacy of judicial review to provide a remedy for legal errors. For example, as the conclusion that a decision is not invalid means that the decision-maker had the power (i.e. jurisdiction) to make it, review of the decision on the grounds of jurisdictional error is unlikely to be available. The result is that some of judicial review's standard remedies will not be available. The committee has generally not accepted a desire for certainty to be a sufficient justification for the inclusion of no-invalidity clauses.17

1.32 This view is also shared by the Law Council of Australia:

[…] the Law Council is concerned by the inclusion in proposed new section 12D

of subsection (7), which provides that a failure to comply with subsection (4) does not invalidate the agreement. The Law Council would characterise this as effectively undoing the obligation imposed by subsection (4), by removing the logical consequence for an omission to comply with it. It means that the consent of the Traditional Owners is not subject to legislative safeguards, because it can be ignored without there being a legal consequence in relation to the carrying out of the agreement.18

17 Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 16 of 2021, 21 October 2021,

p. 37.

18 Law Council of Australia, Submission 55, pp. 15-16.

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1.33 The Australian Greens are concerned that these provisions will further undermine inadequate FPIC provisions and practice, a concern which is shared by the Australian Human Rights Commission:

The Minister’s response to the Senate Scrutiny of Bills Committee […] makes clear that the Bill will further entrench the provision of guarantees for external investors and business owners over the need to guarantee that Traditional Owners are being properly consulted and have given their genuine free, prior and informed consent to any use of their land through agreements made by their Land Council on their behalf.19

1.34 The Australian Greens wish to emphasise the importance of ensuring Free, prior and informed consent as the foremost principle for all provisions of the Bill, to achieve its objective of economically empowering First Nations Territorian.

Northern Territory Aboriginal Investment Corporation and the Aboriginals Benefit Account 1.35 While the Australian Greens welcome the intent of empowering First Nations people in the Northern Territory to make decisions around the use of ABA

funds, a number of concerns arise from the current proposal.

1.36 Besides the establishment of the NTAIC to undertake beneficial investments and payments with funds received from the ABA, the majority of funds will still remain in the ABA.

1.37 Emeritus Professor Jon Altman notes:

While the Bill commits to pay $680 million to NTAIC it is unspecified what will happen to the residual equity (currently more than 50%) in the ABA or if there are any projections on how this equity might grow or decline into the future.20

1.38 These ABA funds will remain subject to ministerial powers under section 64(4) of the Act. Current practice is that such payments are made through a departmental grant program with grants usually, though not always, being assessed and recommended by the ABA Advisory Committee (ABAAC) before the Minister makes the final decision on them.

1.39 While the establishment of the NTAIC is supposedly intended to not require the Minister to make decisions over ABA investments and beneficial payments anymore, there is no provision in the Bill to prevent the Minister from doing so. Given the proposed abolishment of the ABAAC, such decisions would then not even be subject to First Nations advice through the ABAAC.

19 Australian Human Rights Commission, Submission 38, p. 6.

20 Emeritus Professor Jon Altman, Submission 9, p. 5.

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1.40 Similar observations were also raised during the inquiry:

The Chairman of the NLC has expressed a view that ABAAC members should continue to provide their important advice to the Board of the ABA Corporation. This will be a matter for the Board to decide at the appropriate time.21

1.41 The Australian Greens are deeply concerned about the absence of any First Nations guidance on the use of ABA funds, and accountability towards First Nations people. This leaves the ABA open to being used as a slush fund for the government, given the history of other funds being used this way such as in the case of the sports rorts and carpark funding. This risk is further exemplified by a number of controversial funding decisions with Indigenous Advancement Strategy and ABA funds by former Minister Scullion.

1.42 Accountability is an important part of democracy, and the Australian Greens would therefore like to propose for the NTAIC to take on the role of providing advice to the Minister in case ministerial discretion is used to make payments out of the ABA.

1.43 The Australian Greens are further concerned that under the current Bill, the NTAIC is not given any guaranteed income certainty beyond the $60 million annual payments for three years. The NTAIC will need to annually petition the Minister for additional beneficial payment funding. This contrasts with funding for similar corporations, such as the Indigenous Land and Sea Corporation, which receives statutory annual payments of amounts stipulated by the Aboriginal and Torres Strait Islander Land and Sea Future Fund Act 2018.

1.44 The NIAA in its submission notes that:

The Minister will set ongoing administrative funding having regard to on estimates provided by the NTAIC. This mechanism is also consistent with the Land Councils statutory funding mechanism. These NTAIC funding arrangements provide great potential for the NTAIC to grow and support community aspirations. They also balance certainty for the NTAIC with the need to ensure there remains sufficient funding in the ABA to meet the needs of other parties that are dependent upon it. Whilst the ABA is growing rapidly now, mining royalties fluctuate as mines open and close. Without a flexible mechanism for determining ongoing NTAIC funding, these fluctuations could affect the funding of other parties reliant on the ABA. The NTAIC’s estimates process mitigates this risk by providing enabling the Minister to determine future funding taking into account advice of the Board and the balance of the ABA over time.22

1.45 While the Australian Greens accept the need to safeguard ABA funds particularly during the uncertain initial phase of a newly established corporation, provisions should be included in the Bill to ensure that the

21 Joint Submission by the Northern Territory Land Councils, Submission 48, p. 9.

22 National Indigenous Australians Agency, Submission 13, p. 5.

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NTAIC will receive annual funding, even if the amount is unspecified at this point in time, to provide at least some funding certainty for the corporation.

1.46 The proposed setup of the NTAIC to have responsibility for both investing funds to generate a return while also granting beneficial payments has been pointed out as a challenge and risk for the corporation by submitters to the inquiry.

1.47 For example, Emeritus Professor Jon Altman notes:

The purposes of NTAIC include economic self-sufficiency and socio-cultural goals to be underwritten by grants, loans, and investments. This mix of purposes and functions is likely to be extraordinarily challenging to manage as the Australian government has found since 1978. This is especially the case as the S64(4) granting function of the Land Rights Act will now intermingled with an investment instrument that is being accorded priority in the naming of the Corporation as well as in all the media and fact sheet releases about its formation. The NIAA notes ‘… these reforms establish a new, Aboriginal controlled body called the Northern Territory Aboriginal Investment Corporation (NTAIC) to invest money from the Aboriginals Benefit Account (ABA) to maximise the economic future of Aboriginal families and communities in the Northern Territory for generations to come’ (my underlining). This government statement looks to prioritise investment over grant-making.23

Review mechanisms 1.48 The current Bill proposes a statutory review of schedule 1 of the Bill after 7 years to assess whether the changes to the ABA and the newly created NTAIC operate as intended.

1.49 The Australian Greens are concerned that 7 years are a long time if things are not going as intended, and would regard an earlier review, ideally after three years when the currently proposed three annual payments have been granted, as more suitable to identify any early challenges and change direction if needed, as well as determine future funding to the corporation.

1.50 Some submitters to the inquiry have also suggested a review after three years. Emeritus Professor Jon Altman writes:

Given that the NTAIC is a new institution with significant resources and power, there is statutory requirement for it to be reviewed after seven year (S65JD). In my view this should occur far sooner (after two to three years) and the review should be stipulated as independent and by an eminent person.24

1.51 Currently, the Bill only provides for a review of schedule 1, although schedules 2 and 3 also contain major changes to the Act.

23 Emeritus Professor Jon Altman, Submission 9, p. 5.

24 Emeritus Professor Jon Altman, Submission 9, p. 7.

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1.52 Mr Dillon submitted to the committee:

The Bill proposes a review of the NTAIC provisions of the Act after seven years (clause 65JD). This provision is in my view inadequate in a number of respects: it is limited to the NTAIC whereas the NTAIC proposals have the potential to affect the operations of land councils, land trusts, royalty corporations, and other elements of the legislation (and indeed the operation of entities such as PBCs established under the Native Title Act 1993). Any review should be of the operation of the whole Act. It should also be unequivocally independent.25

1.53 The Australian Greens would like to see schedules 2 and 3 reviewed to assess if the enacted changes achieve their objectives, and to address any unintended consequences or shortfalls in a timely manner.

Composition of the NTAIC Board 1.54 The composition of the new NTAIC board has been subject to many concerns from submitters, partly due to the dominance of Land Council positions on the board.

1.55 The Ngurratjutapmara Ntjarra Aboriginal Corporation submitted that:

Not surprisingly, as they were the only ones consulted, Land Councils dominate the membership of the new statutory body. No provision has been made for any other Aboriginal bodies to automatically be able to nominate Board members. We see no reason why nominations are not called for in a public manner that allows any Aboriginal Territorian to be considered who has demonstrable experience and outcomes related to achieving the objectives of the new body. […]

Our biggest concern with this Bill is that it gives Land Councils even more control than what they already have over our land by allowing their representatives to also control access by communities to the ABA. We accept that Aboriginal people in communities and their own organisations should have more say in ABA grants and forming partnerships with Governments and industry to do this. The model of representation for the NTAIC that has been chosen by the Coalition Government, however, is likely to alienate our people and meanwhile Land Councils which are also funded by the ABA and control distributions of its mining royalty equivalents to affected communities, will now control payments to communities. There is a significant conflict of interest in these arrangements and it was never intended to occur.

The Senate Committee needs to propose changes to the Bill to rectify these serious problems with the Bill including allowing other representatives of Aboriginal organisations in the Northern Territory to be elected for Board roles without having to be appointed by a Board dominated by the Land Councils.26

25 Mr Michael Dillon, Submission 4, p. 1.

26 Ngurratjuta/Pmara Ntjarra Aboriginal Corporation, Submission 16, p. 4.

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1.56 In addition to these concerns, the currently proposed board composition includes no representation of non-land holding First Nations Territorians. Originally, the ALRA was established not just for land holders but also to ensure First Nations people in the NT who are not land holders can benefit from mining royalties as well.

1.57 The Human Rights Commission notes:

It is also noteworthy that the ABA was designed to benefit all Aboriginal Territorians (including those who do not have land rights). There are provisions which acknowledge this in the Bill: clause 65BB (a) stipulating a (discretionary) function for NTAIC ‘to make payments to or for the benefit of Aboriginal people living in the Northern Territory;’ and clause 65C (6) for NTAIC to consult with Aboriginal people living in the Northern Territory in developing its strategic investment plan. However, there is no recourse if the NTAIC (which will be dominated by land council representatives under the current proposal) decides that that function is not to be prioritised.27

1.58 Mr Dillon is concerned about:

…the potential change in focus of the ABA from a scheme designed to benefit all Aboriginal Territorians (whether or not they benefit directly from land rights) to one that potentially privileges those who do benefit from land rights.28

[…] ‘the original conceptual scheme of the ABA was to split the available funds in three main ways: (i) amounts for land council funding; (ii) amounts to communities affected by mining; and (iii) amounts to Aboriginal Territorians generally including those Aboriginal Territorians who do not benefit from land rights. These amendments leave categories (i) and (ii) untouched, but potentially strengthen the trend to allocate the majority of category (iii) funding towards land council priorities and away from beneficial payments.29

1.59 On this Basis, the Australian Greens would like to see provisions made for non-land holding First Nations Territorians to be represented on the NTAIC board.

27 Australian Human Rights commission, Submission 38, p. 4.

28 Mr Michael Dillon, Submission 4, p. 3.

29 Mr Michael Dillon, Submission 4, p. 4.

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Recommendations 1.60 Based on the evidence provided during the inquiry, the Australian Greens recommend that:

Recommendation 1

1.61 The government engages in extensive, open and transparent, direct and independently facilitated consultation with all affected First Nations communities across the Northern Territory on proposed changes to the Bill.

Recommendation 2

1.62 The government only re-introduces a Bill to parliament once Free, Prior and Informed Consent by all affected First Nations communities has occurred and proposed changes have been given a comprehensive public consideration through the release of draft legislation followed by a detailed Parliamentary committee process.

Recommendation 3

1.63 The Australian government begin the process of negotiating a Treaty or treaties with First Nations people, including a truth telling process and healing. A Treaty will provide a new framework on how we can move forward as a nation, creating a unified national identity that celebrates what unites us, protects the rights of First Nations people and their cultures while also acknowledging the ongoing and historical injustices of colonisation.

1.64 If the Bill nevertheless proceeds at this stage, the Australian Greens recommend that:

Recommendation 4

1.65 Free, prior and informed consent is ensured for any decisions regarding Aboriginal land and First Nations communities.

Recommendation 5

1.66 Transactions are invalid if Land Councils do not comply with the requirement of not entering into an agreement unless it is satisfied that the Traditional Owners consent to the proposed grant, adequate consultation has occurred and the terms and conditions on which the proposed grant is to be made are reasonable.

Recommendation 6

1.67 Full accessibility for Traditional Owners be ensured at consultation meetings and any required support granted.

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Recommendation 7

1.68 A review of the NTAIC be caused after 3 years after the commencement of schedule 1, instead of the currently proposed 7 years.

Recommendation 8

1.69 Schedules 2 and 3 are subject to a review.

Recommendation 9

1.70 Non-land holding First Nations Territorians interests have representation on the NTAIC board.

Recommendation 10

1.71 The NTAIC serves as an advisory committee to the Minister in the case of payments being made from the ABA.

Recommendation 11

1.72 Mining applications can only proceed without new consultations if any proposed variations are in accordance with consent already obtained.

Senator Lidia Thorpe Greens Senator for Victoria

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Appendix 1

12 principles to guide reform

1. ABA funds come from mining on Aboriginal land, they are Aboriginal moneys and Aboriginal people in the NT should make decisions about the management and allocation of ABA grant funds.

2. Consistent with Australia’s international and national human rights obligations, traditional owners must provide their informed consent regarding any changes to the ABA.

3. All members of ABAAC, or a replacement new structure, should be Aboriginal members living in the Northern Territory who have been elected by Land Councils.

4. Decisions about all grant (or loan) payments should be made by the elected representatives of the Land Councils who are able to seek the advice of their own Land Councils.

5. A comprehensive framework for making ABA grants (and loans) should be enacted in the Land Rights Act after negotiations with the Land Councils, rather than continuing to rely on external legislation.

6. The ABA is not an Indigenous funding programme like other government programs. It should remain under the Land Rights Act and its funding arrangements should not be included in any Commonwealth funding strategy such as the Indigenous Advancement Strategy.

7. A reformed ABA should include a senior position of Director of the ABA that must be responsible for all ABA functions, based in the Northern Territory.

8. The staff of a reformed ABA should be accountable to the new Board or structure to facilitate greater Aboriginal involvement. This may mean that the staff costs should come from the ABA rather than the Department of Prime Minister and Cabinet.

9. ABA grant processes must be accessible and accountable to Aboriginal people living out bush.

10. Land Council ABA representatives should have the option to be appropriately supported/guided by their senior management attendance at ABAAC meetings.

11. The ABA should not be treated as an ‘accumulation’ fund (only spending interest). Instead, the utilisation of the fund under s64(4) should be justified on the basis of the benefits that the expenditure would provide to Northern Territory Aboriginal people and should not be subject to arbitrary limits.

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12. The ABA should remain as a separate ‘special account’ and any investments of the fund should be transparent to all stakeholders.

Source: Anindilyakwa, Central, Northern and Tiwi Land Councils, Submission 48, p. 8.

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Appendix 2

Submissions and additional information

Submissions 1 Mr Michael Niemira-Dowjat 2 Ms Madeleina Hanrahan-Tan 3 Mr Frank Baarda 4 Mr Michael Dillon 5 Dr Bentley James 6 Ms Camille Hanrahan-Tan 7 Mr Jim Morris

8 Mr Gregory Marks 9 Emeritus Professor Jon Altman 10 Ms Rikki Dank (Lhudi Noralima, Gudanji and Wakaya Nations) 11 Mr Ian Thompson 12 Mr Bill Gray AM 13 National Indigenous Australians Agency 14 Uniting Aboriginal & Islander Christian Congress and the Northern Regional

Council of Congress 15 Mrs Pia Pagotto 16 Ngurratjuta/Pmara Ntjarra Aboriginal Corporation 17 Mr Stuart McMillan 18 Ms Isobel Gawler 19 Ms Emily Bullock 20 Ms Nicola Coles 21 Josephite SA Reconciliation Circle 22 Amnesty’s Redfern Action Group 23 Mr Hans-Josef Mauve 24 Mr Yiŋiya Guyula MLA, Member for Mulka 25 Mrs Mary Rudd 26 Uniting Church in Australia Assembly 27 Minerals Council of Australia 28 Mr Roger Fargher 29 Mr Mark Schubert 30 Ms Julie Bailey 31 Dr Ed Wensing 32 Society for Threatened Peoples 33 Ms Pauline Trenerry 34 Ms Michele Speck 35 Mx Carmen Robinson 36 Intervention Rollback Action Group, Mparntwe-Alice Springs

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37 National Tertiary Education Union 38 Australian Human Rights Commission 39 Ms Jane Touzeau 40 Australians for Native Title and Reconciliation (ANTaR) 41 Indigenous Land and Sea Corporation 42 Mr Ian Mongunu Gumbula 43 Spirit of Eureka 44 Stop the Intervention Collective Sydney (STICS) 45 Mr Don Stokes 46 Northern Synod Uniting Church in Australia 47 Ms Marian Kearney 48 Anindilyakwa, Central, Northern and Tiwi Land Councils 49 Aboriginal Peak Organisations NT (APO NT) 50 GetUp

51 Oxfam Australia 52 Ms Bernadette McPhee 53 Aboriginals Benefit Account Advisory Committee (ABAAC) 54 concerned Australians 55 Law Council of Australia 56 Mr David Pollack 57 Indigenous Peoples’ Organisation - Australia 58 Mr Paul Henwood 59 Urapuntja Aboriginal Corporation 60 Mr Richard Maguire 61 Ms Maria Maguire 62 Aboriginal Support Group - Manly Warringah Pittwater 63 Name Withheld 64 Confidential 65 Name Withheld 66 Reconciliation for Western Sydney 67 The Hon. Selena Uibo MLA, Northern Territory Minister for Aboriginal Affairs

Answers to Questions on Notice 1 Answer to a question taken on notice by the Northern Land Council at a public hearing on 18 November 2021; received 22 November 2021. 2 Answer to a question taken on notice by the National Indigenous Australians

Agency at a public hearing on 18 November 2021; received 24 November 2021.

Tabled Documents 1 Emeritus Professor Jon Altman - Additional comments on submissions to the inquiry - tabled at a public hearing on 18 November 2021.

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Appendix 3 Public Hearings

Thursday, 18 November 2021 Committee Room 1S6 Parliament House

All witnesses appeared via teleconference

Northern Land Council  Mr Joe Martin-Jard, Acting Chief Executive Officer  Mr Samuel Bush-Blanasi, Chair  Mr Wayne Beswick, Senior Manager, Government Relations and

Engagement

Central Land Council  Mr James Nugent, Executive Manager, Professional Services

Emeritus Professor Jon Altman, Private capacity

National Indigenous Australians Agency  Mr Blair Exell, Acting Chief Executive Officer  Ms Rachel Kerrigan, Branch Manager, Land  Mr Ryan Bulman, Group Manager, Economic Policy and Programs