Bills Digest no. 148 2007–08
Indigenous Affairs Legislation Amendment Bill 2008
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Contact officer & copyright details
Passage history
Indigenous Affairs
Legislation Amendment Bill 2008
Date introduced: 29 May 2008
House: House
of Representatives
Portfolio: Families, Housing, Community Services and Indigenous Affairs
Commencement: The day after it receives the Royal Assent
Links: The relevant
links to the Bill, Explanatory Memorandum and second reading speech
can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/. When Bills
have been passed they can be found at ComLaw, which is at http://www.comlaw.gov.au/.
To amend the Northern Territory National
Emergency Response Act 2007 (‘the NT NER Act’) and also, the Aboriginal
Land Rights (Northern Territory) Act 1976 (‘the Land Rights Act’)
to provide with respect to Northern Territory land which is owned by Aboriginal
people:
-
township leases to be for a period of between 40 and 99 years
-
township leases to provide for rights of renewal
-
to empower the Executive Director of Township Leasing to be able to
enter into and administer certain leases granted under the Land Rights
Act and, with respect to certain other Indigenous land, that this can
be administered by an independent statutory office-holder, rather than
directly by the Commonwealth, and
-
to allow for the grant of thirteen further areas of Aboriginal land
which will be operated as National Parks.
The Aboriginal Land Rights (Northern Territory) Act 1976 (‘the Land Rights
Act’) was substantively and controversially amended in 2006 to, amongst
other things, move from earlier ownership arrangements to facilitate 99
year leases of Aboriginal townships in the Northern Territory. According
to some commentators, the essence of that key change represented a tacit
reconfiguration of customary ownership into individual title, and in retrospect
may end up yielding problematic outcomes for indigenous peoples.[1] For a detailed background
on these amendments, see the Bills Digest
by Jennifer Norberry and John Gardiner-Garden (June 2006).[2] The Senate’s Community Affairs Committee
also conducted an inquiry
into the Aboriginal Land Rights (Northern Territory) Amendment Bill 2006.[3]
Title to land granted under the Land Rights Act is held by a Land Trust
on behalf of the customary owners. Title is inalienable and equivalent
to freehold title, but is held communally, reflecting the traditional
nature of Aboriginal land ownership.[4]
Since its introduction in 1976 the Land Rights Act has been reviewed
a number of times, with the most significant review tabled in Parliament
in 1998. This was the Reeves Report, which recommended significant change
to the Land Rights Act, including changes to the Land Council system,
the (NT) Government power to compulsorily acquire Aboriginal land for
public purposes, and the development of leasing arrangements to enable
Aboriginal people to own their homes on communal land.[5]
The Reeves report prompted several further reviews, including one by
the House of Representatives Standing Committee on Aboriginal and Torres
Strait Islander Affairs (HORSCATSIA) and a joint response to the Reeves
Report by the NT Government and Land Councils.[6]
The NT Government was also developing its own model for township leasing,
and in July 2004 sent an options paper to the four NT Land Councils for
consideration. However, the Commonwealth’s amendments to the Land Rights
Act overtook this plan and in 2005 the NT Government wrote to the Australian
Government suggesting a voluntary leasing plan which would recognise the
right of traditional owners to make decisions over their land.[7]
In June 2005 the National Indigenous Council (the advisory body to the
government on indigenous matters) presented its Indigenous Land Tenure
Principles to Government.
A scheme to facilitate township leasing was included in the 2006 Land
Rights Act amendments. Under section 19A of the Land Rights Act,
a Land Trust may grant a 99 year ‘head lease’ of a township to an ‘approved
entity’, which means either a Commonwealth or NT government entity, on
the condition that both the Minister and the Land Council agreed to the
granting of the lease. Those government entities would then be permitted
to sub-lease those townships back to the customary owners, though for
a shorter period than the head lease. There is a notable absence of obligation
on the government to engage in consultation with communities that hold
native title in the area, so long as it is evident that the customary
owners or their representatives have agreed to the sub-lease.
After 69 years, the Land Trust may grant another lease to the same entity,
to ensure certainty for home owners and other lessees (subsection 19A(5)
of the Land Rights Act).
Prior to the 2006 amendments, the Land Rights Act already contained provisions
enabling the Land Council to grant interests in land for residential,
business and other purposes to Aboriginal people and others, however the
practice of granting such interests was limited. The primary imperative
driving what was basically an extension of this practice was an economic
one, anchored in a belief that customary ownership was unable to yield
the requisite level of economic development benefits needed by the community
that private ownership could offer.
The principle concern raised by some commentators however, was in relation
to the impact over time on the integrity of customary ownership and consequently,
the robustness of the culture of indigenous communities. Both Professor
Dodson and Noel Pearson have raised the possibility that the 2006 amendments
may eventually erode communal customary ownership.[8]
As outlined above, in the lead-up to the Land Rights Act amendments the
NT Government had expressed its in-principle support for a township leasing
scheme. In an October 2005 press release the then Chief Minister Clare
Martin stated that an NT Government entity established to issue sub-leases
would do so on terms agreed by traditional owners and land councils:
An independent statutory authority with a board including
an independent Chair and representation from Land Councils and both
the Northern Territory and Australian Governments is the favoured structure
at this stage.[9]
At the public hearing for the Senate inquiry into the Land Rights Act
Amendment Bill, the NT Government again stated its intention to establish
an entity to issue and manage leases:
The Northern Territory government has agreed to play
a role by establishing an entity to hold headleases and issue subleases
provided the Australian government covers all costs involved. Northern
Territory government involvement through the NT entity will ensure that
the scheme allows for streamlined development of Aboriginal townships
consistent with NT laws.[10]
However, to date the NT Government has not established such an entity
as required by the Land Rights Act. In his second reading speech for the
Land Rights Act Amendment Bill the then Minister stated:
It was the Government’s understanding that the Northern
Territory Government would establish an entity to hold township leases,
issue sub-leases, collect rent and administer township leases.[11]
According to a press report, the NT Government’s delay may be caused
by internal caucus deliberations within the NT ALP.[12]
To account for the possibility that the NT Government would not establish
a township leasing entity, a last-minute addition to the 2006 Land Rights
Act amendments included a provision for the Commonwealth to establish
such an entity. This Bill implements that provision.
Public comment on the township leasing
scheme
There was significant community comment regarding the 2006 amendments
to the Land Rights Act, particularly surrounding the townships leasing
scheme (see the Bills Digest and submissions to the Senate inquiry, referenced
above). Comments regarding the specific issue of the entity which is to
manage a lease scheme are outlined below.
A number of groups, including Land Councils, Aboriginal interest groups
and academia, expressed concern regarding the township leasing entity.
For example, Sean Brennan of the Gilbert + Tobin Centre of Public Law
at the UNSW Law School stated:
The headlessee under the [Land Rights Act] stands to
become a very important player in the Northern Territory. It will hold
a lease, or more likely, multiple leases over some of the potentially
most valuable Aboriginal land in the Northern Territory (remembering
that almost half of the NT landmass is Aboriginal land). It will enjoy
the dominant property rights in an Aboriginal township for the lifespan
of an Aboriginal person and, statistically, through the lifespan of
their grandchild as well.
The Government speaks of the headlessee as a driver of
economic development in a new era of prosperity for Indigenous people.
It will certainly have complex legal and financial responsibilities
because, to a significant extent, the Bill puts the economic fate of
many Aboriginal people in the Northern Territory in its hands.
Parliament is accustomed to passing laws that establish
public bodies with long-term objectives and weighty responsibilities.
Typically, it does so on the strength of detailed legislative provisions
spelling out basic features of the body, such as:
- its composition and structure
- its powers, duties and functions
- its method of doing business, and
- its lines of accountability.
The 2006 Amendment Act said almost nothing about head-lessees. A last-minute
amendment means that the head-lessee might be a Commonwealth rather than
a Territory entity. This suggests policy-making on the run about one of
the Act’s most critical features. Aboriginal people might find the head-lease
later transferred to another body whose identity is exclusively determined
by a Commonwealth government minister, with no parliamentary oversight
through tabling and disallowance and, it appears, no reference back to
traditional owners.[13]
In their submission to the Senate inquiry into the 2006 Land Rights Act
Amendment Bill, Associate Professors Maureen Tehan and Lee Godden from
University of Melbourne Law School said:
In the absence of any institutional arrangements for
the involvement of traditional owners in decision-making about the land,
at least in the short to medium term disruption and disharmony is likely
to continue to be feature of townships with non-traditional owners occupying
traditional lands without apparent consent (in customary law terms).
This is exacerbated by the removal of the operation of the permit provisions
of the Act from the townships.
If the new scheme is to proceed then at the very least
there should be incorporated into the head lease provisions that permit
or even mandate the involvement of traditional owners in land management,
planning and environmental and cultural heritage management (even though
the last of these will still presumably be covered by the Northern Territory
aboriginal heritage protection scheme).[14]
The Northern Land Council submitted:
The provisions of the s 19A scheme are in broad and unconstrained
terms, and do not identify or specify its purpose or provide guidance
as to the character or exercise of powers by the head lessee. The provisions
allow for a lease of a township area (as distinct from an area for township
purposes), and there is no requirement that the area be used for any
particular purpose and no regulation of the granting of subleases to
ensure that power is directed at that aim.[15]
A number of other submissions made similar arguments.[16]
The ALP, Australian Democrats and the Greens were all critical of the
new leasing scheme contained in the 2006 amendments to the Land Rights
Act (see the Digest for that Bill). See also the Debates in the House
of Representatives and the Senate.[17]
As previously noted, the Senate’s Community Affairs Committee conducted
an inquiry into the Aboriginal Land Rights (Northern Territory) Amendment
Bill 2006. Regarding 99 year leases on communal land, the majority Committee
found:
The fundamentals of the [Land Rights Act] such as inalienable
Aboriginal land title and the role of traditional owners will be preserved.
Ninety-nine year head leases over townships with individual subleases
under the head lease will make it significantly easier for individuals
to own their own homes and establish businesses. The bill enables the
Northern Territory government to establish its own legislation to administer
the scheme.[18]
However dissenting reports from the ALP, Australian Democrats and Greens
members of the Committee criticised the lack of consultation over the
township leasing scheme, and its possible ramifications for traditional
owners’ rights over their land.[19]
The first lease agreement - the Nguiu township
lease
On 30 August 2007, the first 99 year lease was signed of the township
of Nguiu on the Tiwi Islands. The history of this agreement was not without
controversy. Concern had been expressed about the nature and terms of
the proposal.
In the months leading up to the signing of the lease, the ALP’s Senator
Trish Crossin (a Senator for the Northern Territory) stated that the Nguiu
traditional owners were taking a ‘great leap of faith’ in signing the
agreement. Senator Crossin also criticised the linking of funding for
25 new houses and health initiatives to the lease agreement. She went
on to state:
There are still many unanswered questions about the lease
and how it will be administered by the Commonwealth and traditional
owners once rights are signed over. It is unclear how basic local government
services and rates will be levied under the scheme.[20]
In 2007, following the Commonwealth’s passage of the Aboriginal Land
Rights (Northern Territory) Amendment (Township Leasing) Bill, the office
of the Executive Director of Township Leasing was established and empowered
to enter into and administer leases on Aboriginal land in the Northern
Territory, under the Land Rights Act. The 2007 amendments also, in part,
addressed concerns about how township leasing entities were to be established
by clarifying the functions and administrative duties of the Executive
Director of Township Leasing. Significantly though, no legislative requirement
was imposed on the Executive Director to undertake ongoing consultation
or negotiation with traditional landowners or Land Councils regarding
the management of their land, once the head-lease is agreed. It was left
up to the Land Councils and traditional owners to negotiate such terms
before the lease is granted.
On 4 March 2008 during a visit to Groote Eylandt
in the Gulf of Carpentaria, the Indigenous Affairs Minister Jenny Macklin
announced that the government was considering reducing the controversial
tenure of 99 year leases on offer, and replacing them with a more flexible
scheme that offered tenure of anywhere between 40 and 99 years. The Land
Council on Groote had resisted the former federal government's efforts
to get it to sign a 99-year lease. On 8 June 2008, the Australian
newspaper reported that the Groote Eylandt townships of Angurugu and Umbakumba,
and the township of Milyakburra at nearby Bickerton Island agreed to sign
a 40-year lease with the Commonwealth government, with an option to renew
for an additional 40 years.[21]
In 2002 the High Court of Australia handed down a decision in Western
Australia v Ward.
The Ward decision highlighted the probability
that the declarations of 49 Territory parks between 1978 and 1998 were
invalid, leaving claims under the Aboriginal Land
Rights (Northern Territory) Act 1976 over 11 of those
parks open to proceed to hearing by the Aboriginal Land Commissioner.
With the aim of avoiding litigation, the government sought
to find a comprehensive solution, identifying core principles to become
central to a framework proposal to be accepted by the Land Councils.
The core principles include:
- development of a Parks Masterplan to expand and more effectively
manage the parks estate;
- current mining and exploration leases and applications and tourism
operator concessions guaranteed;
- all Territory Parks and Reserves will remain accessible to all
Territorians and visitors on a no entry fee, no entry permit basis;
- business as usual in parks until negotiations are completed;
and
- where title changes occur they will be conditional on the land
being leased back to the Northern Territory subject to joint management
under NT legislation.[22]
A case note for Ward can be found here.[23]
Following the High Court decision in Ward, the Northern Territory
Government sought to address uncertainties over the title of the Territories
parks and reserves. Lengthy negotiations were conducted between Aboriginal
Land Councils, the Northern Territory Government and the Commonwealth
Government.
The Northern Territory Government enacted the Parks
and Reserves (Framework for the Future) Act in 2003 (the ‘NT Parks
Act’). The NT Act was to provide a framework for negotiations between
the Territory and the traditional Aboriginal owners of certain parks and
reserves for their establishment, maintenance and management.
An agreement was reached in relation to thirteen Northern Territory parks
and reserves. It was agreed that title to the land would be transferred
back to traditional owners, held on trust by Government-establish Land
Trusts. This is to be followed with an immediate leaseback to the Northern
Territory Government on 99 year leases, to enable the Government to continue
managing the parks and reserves.
The financial impact is expected to be negligible.[24]
Item 3 proposes a new subsection 19A(4A) permitting the
term of a township lease to be between 40 and 99 years, with the term
varied only in accordance with either proposed subsections 19A(4A)[25] or 19A(5)
(see item 6). (This will not operate to preclude other types of variations
to leases (proposed 19A(4B)).
Proposed subsection 19A(4C) in conjunction with section 3C[26]
ensures that the Lands Acquisition Act 1989 does not apply to the
extension of the term of a lease.[27]
Item 5 proposes an amendment to existing subsection 19A(5)
providing that replacement leases must be entered into at least 20 years
before the end of a lease.
Item 6 proposes a new subsection 19A(5A) forbidding the
Minister from consenting to the grant of a replacement lease unless the
Minister is satisfied that the grant would not adversely affect a sublease
or other interest derived from the original lease.
Item 9 proposes amendments to subsections 19C(2)
and (3) so that stamp duty or like taxes are not payable as a result
of an extension of a lease, and that registration of an extension can
occur as if the instrument of extension were duly executed under Northern
Territory law.
Item 11 proposes an amendment to paragraph 20C(aa) and
(ab) which has the effect of adding to the list of the Executive
Director’s functions. The amendment would add an ability to enter into
and administer section 19 leases and other leases, such as leases of community
living areas, where the Minister had agreed to the Executive Director’s
involvement.
Proposed paragraphs 20C(ac) and (ad) provide that
the Executive Director is able to enter into and administer subleases,
such as subleases of town camps, where the Minister has agreed to the
Executive Director’s involvement (see item 13).
Item 12 proposes an amendment to paragraph 20C(c) providing
that the functions of the Executive Director can be prescribed to include
functions relating to the new matters described in item 11.
Item 13 proposes the insertion of clause 20CA which describes
the land relevant to the Executive Director’s new functions and a process
for the Minister to consent to the Executive Director’s involvement in
proposed leases or subleases.
There are three categories of relevant land:
- community living areas
- town camps
- other land that is prescribed and has been granted or leased for the
benefit of the Aboriginal people in the Northern Territory.
Proposed subsection 20CA(2) provides that if the Commonwealth
and the proprietor intend to enter into a lease or sublease, then the
proprietor may make a written request that the Executive Director enter
the lease or sublease on behalf of the Commonwealth and administer the
lease or sublease. The Minister must agree or refuse the request in writing
pursuant to proposed subsection 20CA(3).
Item 14 proposed a new section 20E allowing the Executive
Director to be appointed on a full or part-time basis. Currently, the
Executive Director is appointed only on a full-time basis.
Item 15 proposes a new section 20H which precludes a full-time
Executive Director from engaging in outside employment without the Minister’s
approval, and a part-time Executive Director must not engage in outside
employment that conflicts or may conflict, with the proper performance
of their duties.
Item 16 proposes a new section 20K which sets out the leave
entitlements of the Executive Director, with a full-time Executive Director’s
leave entitlements to be determined by the Remuneration Tribunal and other
leave to be granted by the Minister.
Item 17 proposes a new section 20M providing that the Governor-General
may terminate the appointment of the Executive Director for misbehaviour
or physical or mental incapacity. The section also provides that the Governor-General
must terminate the appointment of the Executive Director if he or she:
- becomes bankrupt, or
- applies to take the benefit of any law for the relief of bankrupt
or insolvent debtors, or
- compounds with his or her creditors, or
- makes an assignment of his or her remuneration for the benefit of
his or her creditors, or
- is absent, except on leave of absence, for 14 consecutive days or
for 28 days in any 12 months, or
- acts contrary to the provisions in proposed section 20H, item 15,
or
- fails without reasonable excuse to comply with section 20N.
Item 18 – given the expansion of the Executive Director’s functions,
the current Division 6 is no longer relevant. Current Division 6 provides
for the repeal of Part IIA (relating to the Executive Director) in certain
circumstances where the Executive Director is no longer required to hold
township leases.
The proposed Division 6 deals with matters relevant to the expanded
functions of the Executive Director, being for the operation of the Lands
Acquisition Act 1989 and the modification of certain Northern Territory
Laws. Specifically:
- Proposed subsection 20S(1) clarifies that section 20S is intended
to disapply the Lands Acquisition Act 1989, but not to otherwise
impinge on any requirements, for example, in relation to acquiring leases
of community living areas or subleases of town camps.
- Proposed section 20SB applies to leases or subleases to the
Executive Director as a result of the expanded functions. Proposed
section 20SB(2) provides that regulations may modify Northern Territory
laws relating to planning, infrastructure, subdivision, transfer of
land, or other prescribed matters to the extent that the law applies
to land that is the subject of a lease or sublease.
Items 19 and 22 repeal and substitute subsections 20Y(1)
and 20ZJ(1) thus proposing to allow the person who holds statutory
rights to permit others to exercise those rights. Where the person is
the Commonwealth, the Minister may, on behalf of the Commonwealth, to
permit others to exercise the statutory rights. The Minister may also
delegate this power pursuant to section 76.
Items 20 and 23 repeal and substitute subsections 20ZA
and 20ZL thus proposing to allow the area over which statutory
rights may apply, to be varied by agreement. Where the Commonwealth has
statutory rights, the Minister may, on behalf of the Commonwealth, agree
with a Land Council to vary the area over which the statutory rights apply.
The Minister may also delegate this power pursuant to section 76.
Items 21 and 24 repeal and substitute subsections 20ZE(1)
and 20ZP(1) thus providing that a person who holds statutory rights
may determine that they no longer require certain buildings or infrastructure.
Where the Commonwealth has statutory rights, the Minister may, on behalf
of the Commonwealth, determine that the buildings or infrastructure to
which statutory rights apply are no longer required by the Commonwealth.
The Minister may also delegate this power pursuant to section 76.
Proposed paragraph 23(1)(fb) provides Land Councils with the power
to represent the Land Trust in negotiating the amount to be paid to the
Land Trust under subsection 62(1G) of the NT NER Act in relation to the
grant of a lease under section 31 of that Act.
Proposed paragraph 23(1)(fc) provides Land Councils with the power
to represent the relevant owner of the land in negotiating
the amount to be paid to that relevant owner under subsection 62(1G) of
the NT NER Act in relation to the grant of a lease under section 31 of
that Act.
Proposed paragraph 23(1)(fd) provides Land Councils with the power
to represent the holder of the lease in negotiating the amount to be paid
under subsection 62(1G) of the NT NER Act in relation to the suspension
of a lease under section 40 of that Act.
Item 27 - proposed paragraph 23(1)(i) allows regulations
to prescribe additional functions for Land Councils.
Item 28 – proposed section 33B allows a Land Council to
charge Commonwealth certain fees. These fees are reasonable expenses incurred
in
- performing functions referred to in proposed paragraphs 23(1)(fb),
(fc) or (fd) relating to negotiation of agreed payments under subsection
62(1G) of the NT NER Act.
- providing services proscribed by the regulations.
However, the fee must not amount to taxation (proposed subsection
33B(3)).
Item 32 – proposed subsection 35(4) clarifies that a Land
Council does not have to disburse payments received under the current
33A (fees for prescribed services) or under proposed section 33B.
Rather, payments received under these sections are to be spent on meeting
the Land Council’s administrative costs (subsection 35(1)).
Item 33 – proposed paragraph 37(2)(c) provides that the
annual report of a Land Council must specify the total fees which the
Land Council received under section 33B for that financial year.
Item 34 proposes an amendment to subsection 64(4A) in order
to allow the Aboriginals Benefit Account to be used for payments in relation
to acquiring and administering leases/subleases in the exercise of the
Executive Director’s expanded functions; such as the negotiation of costs
for the leases/subleases and the ongoing costs involved in administering
the leases/subleases.
Item 35 – proposed subsection 76(1A) allows the Minister
to delegate any of his or her functions or powers under Part IIB (statutory
rights over infrastructure) to specified senior public servants, or the
General Manager of Indigenous Business
Australia.
Item 37 – proposed paragraph 63(1)(f) provides that an
amount payable by the Commonwealth under proposed section 33B of
the Land Rights Act (item 28) is payable from consolidated revenue.
According to the Explanatory Memorandum, this is done for practical reasons:
the amounts payable under proposed section 33B cannot be meaningfully
predicted in a way that would make annual appropriation suitable.
The Schedule contains amendments designed to provide a degree of enhancement
to the workings of sections 38 (Canteen Creek) and 52 (grants by Land
Trusts) of the NT NER Act. It also makes amendments to section 62[28]
so as to permit the Commonwealth and certain persons to make agreements
on amounts to be paid in relation to five-year leases and certain other
payments.
Item 2 – proposes a repeal and substitute of subsections 38(1)
and (2) to ensure that if, following the grant of a five-year
lease of Canteen Creek, the Commonwealth grants interests over that land,
then such interests will be valid notwithstanding section 67A[29] of the Land Rights Act. Significantly this
will not affect the traditional claim to Canteen Creek.
Item 6 – proposed subsection 52(4A) permits Land Trusts
to continue granting interests (not being leases) of a kind prescribed
in regulations, over land leases under section 31. This is designed to
provide flexibility in cases where it is appropriate to allow Land Trusts
to grant particular interests despite five-year leases.
Item 10 – Relevant amendments (see below) have been made to allow
the Commonwealth and certain person to agree on amounts to be paid in
respect of five-year leases and certain other payments.
Proposed subsection 62(1A) The Commonwealth Minister and the relevant
owner (not being the Northern Territory) of land that is covered by a
lease granted under section 31 may agree in writing on an amount
to be paid by the Commonwealth to the other party.
Proposed subsection 62(1B) - the payment of the amount agreed
under subsection (1A) may be made as a one‑off payment, or a periodic
payment while the lease is in force, as agreed by the Commonwealth Minister
and the other party.
Proposed subsection 62(1C) - the Commonwealth Minister
may request the Valuer‑General to determine an indicative amount
for the purposes of subsection (1A).
Proposed subsection 62(1D) - the Commonwealth Minister
and the person who held a lease of land that is terminated under paragraph
37(1)(b)[30] may agree
in writing on an amount to be paid as a one‑off payment by
the Commonwealth to the other party.
Proposed subsection 62(1E) - the Commonwealth Minister
and the person who holds a lease of land that is suspended under section
40[31] may agree in writing
on an amount to be paid by the Commonwealth to the other party.
Proposed subsection 62(1H) - If the other party is not
represented by a Land Council in relation to negotiations to agree on
an amount under subsection (1A), (1D) or (1E), the Commonwealth must pay
the reasonable expenses incurred in representing the other party in relation
to the negotiations.
The NT Parks Act divides the majority of Northern Territory parks and
reserves into three lists, the first intended for inclusion in Schedule
1 of the Land Rights Act. Thirteen parks and reserves are listed for inclusion:
- Arltunga Historical Reserve
- Chambers Pillar Historical Reserve
- Corroboree Rock Conservation Reserve
- Davenport Range National Park
- Devils Marbles Conservation Reserve
- Emily and Jessie Gaps Nature Park and Hevitree Range Extension
- Ewaninga Rock Carvings Conservation Reserve
- Finke Gorge National Park
- Gregory National Park
- Gregory’s Tree Historical Reserve
- N’Dhala Gorge Nature Park
- Trephina Gorge Nature Park
- West MacDonnell National Park
Land listed in Schedule 1 of Land Rights Act is land for which the Commonwealth
Government has established an Aboriginal Land Trust to hold title of the
land for the benefit of the indigenous owners. Therefore, inclusion in
this Schedule will bring these parks and reserves within the Commonwealth
scheme of land trusts.
Following transfer of title, it is the intention that the Northern Territory
Government leases the land back from the title owners for 99 year leases,
so that the government retains responsibility for the management and maintenance
of the parks and reserves.[32] This intention was part of the original negotiations with parties
in 2003. However, it should be noted that the NT Parks Act does not require
that this happen. Section 9(f) of the NT Parks Act allows that the land
may be leased back.
Neither Act sets out any specific clauses to be included in the lease
agreements with the NT Government. However, the NT Parks Act sets out
certain principles which the leases must follow, including an express
statement that the lease(s) must not extinguish native title rights or
interest, and that they must be for 99 years.
Schedule 3, proposed sections 1 and 2 of the Bill will insert
a new Part 5 into Schedule 1 of the Land Rights Act. The
new Part 5 lists the thirteen Northern Territory parks and reserves which
are to be included in the Commonwealth scheme of Land Trusts. This inclusion
will enable the Commonwealth Government-established Aboriginal Land Trust
(established under section 4 of the Act) to hold title of those parks
and reserves for the benefit of the indigenous owners of the land.
[9]. NT Chief Minister, press
release: Federal land rights changes – step in right direction,
5 October 2005, at: http://www.nt.gov.au/dcm/ocm/media/2005/10%20October/20051005_MartinLandRights%20.pdf,
accessed 29 May 2007.
Juli Tomaras and Pao Yi Tan
19 June 2008
Bills Digest Service
Parliamentary Library
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