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2013-2014-2015
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) AMENDMENT BILL
2015
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be moved on behalf of the Government
(Circulated by the authority of the
Minister for Indigenous Affairs, Senator the Hon Nigel Scullion)
ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) AMENDMENT BILL
2015
Amendments to be moved on behalf of the Government
OUTLINE
The amendments to the Aboriginal Land Rights (Northern Territory) Amendment Bill
2015 (the Bill) will make three further amendments to the Aboriginal Land Rights
(Northern Territory) Act 1976 (the Land Rights Act): to better facilitate delegation of
Land Council functions to Aboriginal corporations; to enable the Minister for
Indigenous Affairs to vary administrative areas of Land Councils where the relevant
Land Councils so request; and, to add to Schedule 1 of the Land Rights Act the land
subject to the Vernon Islands Land Claim No. 9, enabling a future grant of Aboriginal
land.
FINANCIAL IMPACT STATEMENT
These amendments will not alter the financial impact of the Aboriginal Land Rights
(Northern Territory) Amendment Bill 2015, which was nil or negligible impact.
REGULATORY IMPACT STATEMENT
The office of Best Practice Regulation has advised that a regulatory impact
statement is not required.
STATEMENT OF COMPATABILITY WITH HUMAN RIGHTS
The statement of compatibility with human rights appears at the end of this
supplementary explanatory memorandum.
ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) AMENDMENT BILL
2015
Amendments to be moved on behalf of the Government
Schedule 1 - Amendments
Summary
The amendments to the Bill will make three further amendments to the Land Rights
Act.
Delegation of Land Council functions and powers to Aboriginal and Torres Strait
Islander Corporations
The amendments alter the list of delegable functions and powers to include roads
over Aboriginal land and access agreement matters, and provide that other functions
and powers associated with the delegation can be delegated.
The amendments provide additional requirements for a corporation when making an
application for a delegation, or to vary the functions and powers delegated to it. A six
month timeframe for a Land Council to consider an application for delegation or
variation of delegation is included, which can be extended by written agreement of
the applicant corporation.
The amendments will require applications to a Land Council for a delegation or
variation of a delegation be provided to the Minister for Indigenous Affairs.
The amendments repeal section 28C to remove the Minister's ability to override a
Land Council's decision not to delegate functions of powers. Section 28D, which
restricts a Land Council from exercising functions or powers once they have been
delegated, is also repealed.
The amendments also provide that a delegate corporation can be required to provide
reasons for its decision if requested by any person or body affected by the decision.
Changes to Land Council administrative areas
The amendments insert a provision allowing the Minister for Indigenous Affairs to
vary Northern Territory Land Council areas at the written request of the relevant
Land Councils.
Addition of land to Schedule 1
The amendments also add parcels of land in the Vernon Islands to Schedule 1 of the
Land Rights Act. This will enable the parcel of land to be granted as Aboriginal land
to the relevant Aboriginal Land Trust.
1
Background
Land Councils have been able to delegate their functions and powers to Aboriginal
corporations since 2006, however, no such delegations have been made. The ability
for the Minister for Indigenous Affairs to override a decision by a Land Council not to
delegate functions or powers, and the inability of a Land Council to exercise
functions or powers once they have been delegated have been a deterrent for
applicants and Land Councils alike. These amendments repeal those sections, and
also provide clearer parameters for applications, clarity about which functions and
powers are delegable, transparency of the application process and timeframes for
processing applications.
The amendments would bring the delegation of Land Council functions and powers
in the Land Rights Act in line with standard practice in delegation arrangements and
improve the process for delegations to ensure they can be used in the future.
The Land Rights Act does not clearly allow for the variation of existing Land Council
administrative areas. These amendments will allow for this to occur if the relevant
Land Councils request the variation. This would enable the implementation of agreed
settlement arrangements for the Vernon Islands Land Claim, which require the
transfer of the land subject to claim from the jurisdiction of the Northern Land Council
to the jurisdiction of the Tiwi Land Council, and any similar agreements which arise
in the future.
As part of settlement of Vernon Islands Land Claim No. 9, the amendments will add
Northern Territory Portions 2007, 2008, 2009 and 2010 (Vernon Islands) to Schedule
1 of the Land Rights Act for subsequent grant as Aboriginal land.
2
Explanation of the changes
Schedule 1 - Amendments
Aboriginal Land Rights (Northern Territory) Act 1976
Part 1 - Amendments
Item 17A - After section 21D
Item 17A inserts a new provision which allows the Minister, at the request of the
relevant Land Councils, to vary the boundaries of the Land Councils. The two
affected Land Councils can give joint written notice to the Minister to request a
variation of boundaries to have an area of land cease to be in the area of one
Council and become part of the area of the other. A Land Council must not make a
request unless the traditional owners of the land in the area have understood the
variation and consent as a group, and any Aboriginal community that may be
affected has had an opportunity to express a view on the variation to the Land
Council.
The primary decision in relation to the variation of Land Council boundaries is made
by the Land Councils themselves in determining whether to request the variation.
The Minister's role in considering the request of the Land Councils is consistent with
other mechanisms within the Act relating to significant proposals whereby the Land
Council makes the primary decision, and the Minister's consent, approval or action is
required to carry out the proposed action.
An instrument varying the boundaries of the land councils under the new provision
will operate as an application of the law to the particular case rather than a decision
which alters the content of the law itself. As such, the new provision clarifying that
such an instrument is not a legislative instrument is a declaratory provision to assist
the reader rather than one which operates as a substantive exemption from the
Legislative Instruments Act 2003.
Item 17B - After paragraph 28(1)(c)
Item 17B inserts a new paragraph which will prevent a Land Council from delegating
to its Council Chair or a Council member of staff the power to make a request under
the new section 21E (variation of Land Council boundaries).
Item 17C - Before paragraph 28(2)(a)
Item 17C inserts a new paragraph which will prevent a Land Council from delegating
to a Council Committee the power to make a request under the new section 21E
(variation of Land Council boundaries).
3
Item 17D - At the end of paragraph 28(3)(b)
Item 17D amends paragraph 28(3)(b) to continue allow for functions and powers
under section 19 of the Land Rights Act to be delegated, but to except functions and
powers in subsection 19(4). Subsection 19(4) allows a Land Council to direct a Land
Trust to transfer to another Land Trust, or surrender to the Crown, the whole of the
Land Trust's estate or interest in the whole, or any part of, the land vested in it.
Item 17E - At the end of subsection 28(3)
Item 17E inserts two new paragraphs which allow the Land Council to delegate to an
Aboriginal and Torres Strait Islander corporation its powers and functions under
sections 68 (about roads over Aboriginal land) and 70(4) (about access agreements)
of the Land Rights Act.
Two paragraphs are also inserted which enable a Land Council to delegate to an
Aboriginal and Torres Strait Islander corporation any of its other functions and
powers to the extent that they are associated with the performance of a delegated
function or exercise of the delegated power.
So, for example, where a Land Council delegates to an Aboriginal and Torres Strait
Islander corporation a function or power under section 28(3)(b) (about dealings with
interests in land by Land Trusts) the Land Council is also able to delegate to the
corporation the function of negotiating with parties the terms and conditions of an
estate or interest in the land.
Item 17F - Paragraph 28A(2)(b)
Item 17F inserts wording in paragraph 28A(2)(b) to provide a definition of 'the
relevant part' of a Land Council's area over which a proposed delegation would
apply for reference in other sections of the Land Rights Act.
Item 17G - After paragraph 28A(2)(b)
Item 17G inserts paragraphs which provide further information which an Aboriginal
and Torres Strait Islander corporation making application for a delegation of Land
Council functions or powers must include in its application.
Item 17H - At the end of subsection 28A(2)
Item 17H inserts paragraphs which require an Aboriginal and Torres Strait Islander
corporation to provide copies of certain additional reports with an application by for a
delegation of Land Council functions or powers.
4
Item 17J - After subsection 28A(2)
Item 17J inserts a paragraph requiring a Land Council which receives an application
for a delegation under Section 28A to provide a copy of the application to the
Minister.
Item 17K - Subsection 28A(4) (note)
Item 17K repeals the note in subsection 28A(4) as it refers to a section which is to
be repealed below, in Item 17S.
Item 17L - Subsections 28A(5) and (6)
Item 17L repeals the current subsections 28A(5) and (6) (Deemed Refusal). The
Item inserts two new subsections, headed Time Limit, which require a Land Council
that has received an application for a delegation under section 28A to take all
reasonable steps to make a decision within six months of the application or within a
longer period if agreed with the applicant; and requires a Land Council to notify the
Minister in writing of any agreement for a longer period to consider the application.
Item 17M - Subsections 28B(1) to (3)
Item 17M repeals the current subsections 28B(1) through (3) which allow for
delegations to be revoked only at the request of the corporation that holds the
delegation. They are replaced with subsections (1) and (2) which allow a Land
Council to, in writing, vary or revoke a delegation in place under subsection 28(3)
either at its own initiative or by request of the corporation holding the delegation. The
Land Council is required to consult with the corporation holding the delegation before
varying or revoking a delegation on its own initiative.
Item 17N - Subsection 28B(4)
Item 17N inserts wording to specify that the ability for a corporation to apply for a
variation of a delegation under this section applies only to delegations in relation to
the corporation that are in force under subsection 28(3).
Item 17P - After subsection 28B(4)
Item 17P inserts paragraphs which prescribe information and documents which an
Aboriginal and Torres Strait Islander Corporation must include in its application for a
variation to a delegation of Land Council functions or powers. This replicates the
information and documents required for an application for a delegation to be inserted
at Items 17H and 17G above.
Paragraphs are also inserted that allow a Land Council to exempt a corporation from
complying with any of the requirements for an application, and to require the Land
Council to provide a copy of the application to the Minister.
5
Item 17Q - Subsection 28B(5) (note)
Item 17Q repeals the note in subsection 28B(5) as it refers to a section which is to
be repealed below, in Item 17S.
Item 17R - Subsections 28B(6) to (11)
Item 17R repeals the current subsections 28B(6) through (11) which state that the a
Land Council is taken to have refused an application to vary or revoke a delegation if
a certain time has elapsed, provides for Ministerial approval of variation and
revocation of section 28(3) delegations, and allows the Minister to vary or revoke
section 28(3) delegations by direction.
They are replaced with new subsections (6) and (7) which require a Land Council
that has received an application to vary or revoke a delegation to take all reasonable
steps to make a decision on the application within six months of the application or
within a longer period as agreed with the applicant; and requires the Land Council to
notify the Minister in writing of any agreement for a longer period to consider the
application.
Item 17S - Section 28C
Item 17S repeals section 28C that allows the Minister to agree to a section 28(3)
delegation or variation to a section 28(3) delegation if a Land Council refuses or has
been taken to refuse an application for a delegation or variation of a delegation.
Item 17T - Section 28D
Item 17T repeals section 28D that prevents a Land Council from performing
functions or exercising powers that have been delegated to an Aboriginal and Torres
Strait Islander corporation.
Item 17U - At the end of section 28F
Item 17U inserts paragraphs which require a corporation which makes a decision
under a section 28 delegation to provide a statement of reasons for the decision, if
requested by a person or body affected by the decision, and to provide a copy of the
statement of reasons to the relevant Land Council.
Item 19A - Part 4 of Schedule 1 (after the item relating to Urrpantyenye)
Item 19A amends Part 4 of Schedule 1 to the Land Rights Act by inserting a
reference to additional portions of land (Northern Territory Portions 2007, 2008, 2009
and 2010 delineated on Survey Plan S.2015/208) on and around the Vernon Islands
in the Northern Territory to enable the land to be granted as Aboriginal land.
6
Part 2--Application and transitional provisions
Item 21 - Application of amendments etc.--delegation by Land Council
Item 21 inserts paragraphs that specify that the amendments made in Items 17F to
17J to subsections 28A(2) (additional information and documents to be included in
an application for a delegation) and (2A) (Land Council must give copy of delegation
application to the Minister) of the Land Rights Act apply to applications made after
the commencement of these items. This Item also applies requirements equivalent to
subsection 28A(2) (additional information and documents to be included in an
application for a delegation) to undecided applications made within 12 months before
the commencement of the amendments, such that the delegation applicants will
need to provide the prescribed additional information or documents to the Land
Council after commencement of the amendments unless the applicant has already
provided the additional information and documents to the Land Council.
Item 22 - Application of amendments etc.--variation of delegation by Land
Council
Item 22 inserts paragraphs that specify that the amendments made in Items 17N
and 17P to subsections 28B(4) to (4C) of the Land Rights Act (re applications for
variation of a delegation) apply to applications made after the commencement of
these items. The Item also applies requirements equivalent to subsection 28B(4A) to
undecided applications made within the 12 months before the commencement of the
amendments, such that the amendment applicant will need to provide the prescribed
additional information or documents to the Land Council after commencement of the
amendments unless the applicant has already provided the additional information
and documents to the Land Council. The Item also provides that the Land Council
may exempt the corporation from the need to provide some or all of the additional
prescribed information.
Item 23 - Delegation by Land Council
Item 23 inserts paragraphs which ensure that the continuity of any delegations in
regards to section 19 (about dealings with interests in land by Land Trusts) that are
in force immediately before the commencement of these amendments is not
affected, but specifies that the Land Council's power under section 19(4) of the Land
Rights Act is no longer included in that delegation.
7
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
Aboriginal Land Rights (Northern Territory) Amendment Bill 2015
These amendments are compatible with the human rights and freedoms recognised
or declared in the international instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011.
Overview of the Bill
These amendments to the Aboriginal Land Rights (Northern Territory) Amendment
Bill 2015 (the Bill) will make three further amendments to the Aboriginal Land Rights
(Northern Territory) Act 1976 (the Land Rights Act).
Delegation of Land Council functions and powers to Aboriginal and Torres Strait
Islander Corporations
The amendments alter the list of delegable functions and powers to include roads
over Aboriginal land and access agreement matters, and provide that other functions
and powers associated with the delegation can be delegated.
The amendments provide additional requirements for a corporation when making an
application for a delegation, or to vary the functions and powers delegated to it. A six
month timeframe for a Land Council to consider an application for delegation or
variation of delegation is included, which can be extended by written agreement of
the applicant corporation.
The amendments will require applications to a Land Council for a delegation or
variation of a delegation be provided to the Minister for Indigenous Affairs.
The amendments repeal section 28C to remove the Minister's ability to override a
Land Council's decision not to delegate functions of powers. Section 28D, which
restricts a Land Council from exercising functions or powers once they have been
delegated, is also repealed.
The amendments also provide that a delegate corporation can be required to provide
reasons for its decision if requested by any person or body affected by the decision.
Changes to Land Council administrative areas
The amendments insert a provision allowing the Minister for Indigenous Affairs to
vary Northern Territory Land Council areas at the written request of the relevant
Land Councils.
8
Addition of land to Schedule 1
The amendments also add parcels of land in the Vernon Islands to Schedule 1 of the
Land Rights Act. This will enable the parcel of land to be granted as Aboriginal land
to the relevant Aboriginal Land Trust.
A limited exposure draft of the amendments was provided to all four Northern
Territory Land Councils for consultation, and to the Northern Territory Government.
Human rights implications
This Bill engages and advances the right to self-determination (recognised in article
1 of the International Covenant on Civil and Political Rights).
The Bill engages and advances the right of Indigenous peoples to determine and
develop priorities and strategies for the development or use of their lands
(recognised in paragraph 1 of article 32 of the United Nations Declaration of the
Rights of Indigenous Peoples).
This Bill promotes self-determination and decision-making by relevant Aboriginal
people over matters that materially affect them, including land ownership, land use
and development and leasing.
The Bill amends the Aboriginal Land Rights (Northern Territory) Act 1976 the long
title of which is 'An Act providing for the granting of Traditional Aboriginal Land in the
Northern Territory for the benefit of Aboriginals, and for other purposes'.
The Aboriginal Land Rights (Northern Territory) Act 1976 is a special law that
confers rights and privileges upon Aboriginal Australians. The law is intended, for the
purposes of the Racial Discrimination Act 1975, to be a special measure for the
advancement and protection of Aboriginal peoples.
Conclusion
This Bill is compatible with human rights.
Minister for Indigenous Affairs, the Hon Senator Nigel Scullion
9
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