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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