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2010-2011-2012-2013
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
ABORIGINAL LAND RIGHTS AND OTHER LEGISLATION AMENDMENT BILL 2013
REVISED EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Minister for Families, Community Services and Indigenous Affairs, Minister
for Disability Reform, the Hon Jenny Macklin MP)
THIS EXPLANATORY MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY THE HOUSE
OF REPRESENTATIVES TO THE BILL AS INTRODUCED
ABORIGINAL LAND RIGHTS AND OTHER LEGISLATION AMENDMENT BILL 2013
OUTLINE
This Bill adds the town of Jabiru and two adjacent portions of
Northern Territory land to Schedule 1 to the Aboriginal Land Rights
(Northern Territory) Act 1976. This will enable the land to be granted as
Aboriginal land to the Kakadu Aboriginal Land Trust.
The Bill provides that the land will not be granted as Aboriginal land
until leaseback arrangements for the Jabiru town land and for the two
adjacent non-township portions are put in place.
Certain amendments are made to the Environment Protection and Biodiversity
Conservation Act 1999. These ensure that the world heritage, natural and
cultural values of Kakadu National Park continue to be protected in
relation to Jabiru, and amend existing management plan and town plan
requirements for development of towns in Commonwealth reserves.
Lastly, the Bill adds a further parcel of land for Patta to Schedule 1 to
the Aboriginal Land Rights (Northern Territory) Act 1976. This will enable
the land to be granted as Aboriginal land to the relevant Aboriginal Land
Trust.
FINANCIAL IMPACT STATEMENT
The measures in the Bill have nil or negligible financial impact.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The statement of compatibility with human rights appears at the end of this
explanatory memorandum.
ABORIGINAL LAND RIGHTS AND OTHER LEGISLATION AMENDMENT BILL 2013
NOTES ON CLAUSES
Clause 1 - Short title
Clause 1 sets out how the new Act is to be cited, that is, as the
Aboriginal Land Rights and Other Legislation Amendment Act 2013.
Clause 2 - Commencement
Clause 2 provides that the new Act will commence on the day after
Royal Assent.
Clause 3 - Schedule(s)
Clause 3 provides that each Act that is specified in a Schedule is amended
or repealed as set out in that Schedule.
Schedule 1 - Amendments relating to Jabiru
Summary
The Jabiru town land and two adjacent portions of Northern Territory land
will be inserted within Schedule 1 to the Aboriginal Land Rights (Northern
Territory) Act 1976 (the Land Rights Act) to enable the portions to be
granted as Aboriginal land to the Kakadu Aboriginal Land Trust.
This Bill provides that the land will not be granted as Aboriginal land
until leaseback arrangements for the Jabiru town land and for the two
adjacent non-township portions are put in place.
Further, the Bill makes provision for the protection of the world heritage,
natural and cultural values of Kakadu National Park.
Background
The land being added to Schedule 1 by these amendments is located in and
around the town of Jabiru in the Northern Territory. The three portions of
Jabiru land are:
. Northern Territory Portion 7126 as delineated on Survey Plan S2011/202
lodged with the Surveyor-General, Darwin;
. the Jabiru town land; and
. Northern Territory Portion 7127 as delineated on Survey Plans
S2011/203A and S2011/203B lodged with the Surveyor-General, Darwin.
Kakadu National Park is a world heritage listed reserve, recognised for its
natural, cultural and universal value. The amendments to the
Environment Protection and Biodiversity Conservation Act 1999
(the EPBC Act) are intended to ensure Kakadu National Park's cultural,
natural and world heritage value is protected. The Bill also amends
certain development and town planning requirements, which will then apply
to Jabiru.
The status of the Jabiru land as part of a Commonwealth reserve under the
EPBC Act will not be affected by the grant of the land to the
Kakadu Aboriginal Land Trust.
Explanation of the changes
Part 1 - Amendments
Aboriginal Land Rights (Northern Territory) Act 1976
Items 1 to 3 - Subsection 3(1)
Items 1 to 3 insert definitions of category A Jabiru land, category B
Jabiru land and category C Jabiru land within subsection 3(1).
The category A Jabiru land means land specified in an instrument under new
subsection 3AD(1) discussed below in the explanation of item 10.
The category B Jabiru land means land specified in an instrument under new
subsection 3AD(2) discussed below in the explanation of item 10.
The category C Jabiru land means land specified in an instrument under new
subsection 3AD(3) discussed below in the explanation of item 10.
Item 4 - Subsection 3(1)
Item 4 inserts a definition of Jabiru Town Development Authority within
subsection 3(1). The definition refers to the Jabiru Town Development
Authority established by the Jabiru Town Development Act (NT).
Item 5 - Subsection 3(1)
Item 5 inserts a definition of Jabiru town land within subsection 3(1).
This definition is inserted for ease of reference, and has the meaning
given by new section 3AC, as discussed below in the explanation of item 10.
Item 6 - Subsection 3(1)
Item 6 inserts a definition of Kakadu Aboriginal Land Trust within
subsection 3(1). The definition refers to the Land Trust of that name
established by the Minister by notice published in the Gazette under
subsection 4(1).
The Governor-General may (subject to the relevant leaseback arrangements
and other preconditions) deliver a deed of grant of an estate in fee simple
for the land described under the heading 'JABIRU' in Part 4 of Schedule 1
to the Kakadu Aboriginal Land Trust, as provided below in the explanation
of item 17. The amendments inserting the land described under the heading
'JABIRU' in Part 4 of Schedule 1 are discussed below in the explanation of
item 27.
Items 7 and 8 - Subsection 3AB(1)
Items 7 and 8 make minor amendments to subsection 3AB(1) to clarify that a
township, in relation to a Land Trust, is either of the two types of areas
of Aboriginal land specified in subsections 3AB(2) and (3) and vested in
the Land Trust.
Item 9 - At the end of section 3AB
Item 9 adds two new subsections to section 3AB of the Land Rights Act.
New subsection 3AB(4) provides that a 'township', in relation to the
Kakadu Aboriginal Land Trust, is the area of Jabiru town land. This will
facilitate any lease of that township pursuant to section 19A, and obviate
the need for a regulation being made under subsection 3AB(3) in respect of
the Jabiru town land and the Kakadu Aboriginal Land Trust.
New subsection 3AB(5) provides that new subsection 3AB(4) does not limit
the application of current subsections 3AB(1) to (3) in relation to the
Kakadu Aboriginal Land Trust. This is to ensure that new subsection 3AB(4)
does not prevent other townships being prescribed by regulation under
subsections 3AB(2) or (3) for the purposes of the Kakadu Aboriginal Land
Trust.
Item 10 - After section 3AB
Item 10 inserts new sections 3AC and 3AD into the Land Rights Act.
New section 3AC provides the definition of Jabiru town land, as discussed
above in the explanation of item 5.
New subsection 3AC(1) provides that, for the purposes of the Land Rights
Act, Jabiru town land means the land specified in a legislative instrument
under new subsection 3AC(2).
New subsection 3AC(2) provides that the Minister must specify the land for
the purposes of new subsection 3AC(1) by legislative instrument.
New subsection 3AC(3) provides a consideration the Minister must take into
account before making a legislative instrument under new subsection 3AC(2).
The Minister must have regard to the boundaries of the land comprising the
whole of former Northern Territory Portion 2272 (a former parcel reference
for the town of Jabiru) - other than land on which there is a road over
which the public has a right of way. It is anticipated that the
specification of land under new subsection 3AC(2) will comprise an area of
land with boundaries similar to former Northern Territory Portion 2272.
It should be noted that the Minister is not required to have regard to land
on which there is a road over which the public has a right of way in
considering the boundaries of the land comprising former Northern Territory
Portion 2272 before making a legislative instrument under new subsection
3AC(2).
This is consistent with paragraph 12(3A)(b) of the Land Rights Act.
Paragraph 12(3A)(b) provides that a deed of grant under section 12 in
respect of Schedule 1 (to the Land Rights Act) land shall be expressed to
exclude from the grant any land on which there is, at the time of the
execution of the deed of grant, a road over which the public has a right of
way.
New subsection 3AC(4) provides that the Minister must consult the
Northern Territory Government and the relevant Land Council before making a
legislative instrument under new subsection 3AC(2). The Minister may also
consult such other persons or bodies as the Minister thinks appropriate
(for example, Energy Resources of Australia Limited and the Director of
National Parks). This new subsection also does not limit the operation of
the Legislative Instruments Act 2003 in relation to consultation
obligations.
New section 3AD will facilitate any leaseback arrangements for the Jabiru
town land made under section 19 (and explained at items 17 and 21 below) by
requiring the Minister to specify the areas of land within the Jabiru town
land that are to be leased - namely, the category A Jabiru land, the
category B Jabiru land and the category C Jabiru land. The Minister will
do this when negotiations and survey work are complete.
New subsection 3AD(1) provides that the Minister must, by legislative
instrument, specify an area within the Jabiru town land for the purposes of
the definition of category A Jabiru land discussed in the explanation of
item 1 above. This is the area of land within the Jabiru town land which
is proposed to be subject to a lease variation under section 19 granted by
the Kakadu Aboriginal Land Trust to the Director of National Parks, as
discussed in the explanation of item 21 below.
New subsection 3AD(2) provides that the Minister must, by legislative
instrument, specify an area within the Jabiru town land for the purposes of
the definition of category B Jabiru land discussed in the explanation of
item 2 above. This is the area of land within the Jabiru town land which
is proposed to be subject to a lease under section 19 granted by the Kakadu
Aboriginal Land Trust to the Aboriginal and Torres Strait Islander
corporation nominated in writing by the relevant Land Council, as discussed
in the explanation of item 21 below.
New subsection 3AD(3) provides that the Minister must, by legislative
instrument, specify an area within the Jabiru town land for the purposes of
the definition of category C Jabiru land discussed in the explanation of
item 3 above. This is the area of land within the Jabiru town land which
is proposed to be subject to a lease under section 19 granted by the Kakadu
Aboriginal Land Trust to the Northern Territory, as discussed in the
explanation of item 21 below.
New subsection 3AD(4) requires that the various instruments made under new
section 3AD must collectively specify the whole of the Jabiru town land.
That is, the category A Jabiru land, the category B Jabiru land and the
category C Jabiru land must cover the whole of the Jabiru town land that is
to be subject to any leaseback arrangements under section 19. Those
section 19 leaseback arrangements are discussed in the explanation of
items 17 and 21 below. The alternative leaseback arrangement for the whole
of the Jabiru town land under section 19A is also explained at items 17
and 23 below.
Item 11 - Subsection 4(1)
Item 11 amends subsection 4(1) of the Land Rights Act to omit the word
'Crown' from that subsection. This will enable the Minister to establish
Aboriginal Land Trusts to hold land other than Crown land (subject to the
requirements in subsections 10(1) and (2) of the Land Rights Act).
In the case of Jabiru, the Director of National Parks, rather than the
Commonwealth or Northern Territory, will continue to hold an estate in fee
simple in the land described under the heading 'JABIRU' in Part 4 of
Schedule 1 (see the explanation of item 27 below) until immediately before
the respective deeds of grant take effect. The delivery of respective
deeds of grant to the Kakadu Aboriginal Land Trust already established
under subsection 4(1) of the Land Rights Act is discussed in the
explanation of item 17 below.
Item 12 - Subsection 4(1A)
Item 12 amends subsection 4(1A) to omit the words 'Crown Land' and
substitute the word 'land' in that subsection. This will ensure that the
Minister may establish Land Trusts to hold different areas of land, each of
which is included within a single area of land (rather than just within a
single area of 'Crown land') that is described in Schedule 1 to the Land
Rights Act.
In the case of Jabiru, the Director of National Parks, rather than the
Commonwealth or Northern Territory, will continue to hold an estate in fee
simple in the land described under the heading 'JABIRU' in Part 4 of
Schedule 1 (see the explanation of item 27 below) until immediately before
the respective deeds of grant take effect. The delivery of respective
deeds of grant to the Kakadu Aboriginal Land Trust already established
under subsection 4(1) of the Land Rights Act is discussed in the
explanation of item 17 below.
Item 13 - After paragraph 4(2B)(a)
Item 13 inserts a new paragraph 4(2B)(aa) into the Land Rights Act. This
paragraph provides a new circumstance in which the Minister may vary the
boundaries of the land to be held by a Land Trust. The Minister may vary
the boundaries because of a proposed grant of an estate in fee simple in
the land described under the heading 'JABIRU' in Part 4 of Schedule 1 (see
the explanation of item 27 below) to the Kakadu Aboriginal Land Trust.
This amendment will enable the Minister to vary the boundaries of the
Kakadu Aboriginal Land Trust in advance of the proposed deeds of grant in
relation to Jabiru.
Item 14 - Section 10 (heading)
Item 14 repeals and substitutes the heading to section 10 of the Land
Rights Act. The effect of this amendment is to remove the word 'Crown'
from the heading with the new heading being 'Recommendations for grants of
land described in Schedule 1'.
This amendment is necessary because, in the case of Jabiru, the Director of
National Parks, rather than the Commonwealth or Northern Territory, will
continue to hold an estate in fee simple in the land described under the
heading 'JABIRU' in Part 4 of Schedule 1 (see the explanation of item 27
below) until immediately before the respective deeds of grant take effect.
Further details that are relevant to this amendment are provided in the
explanation of amendments to subparagraphs 10(1)(a)(i) and (2)(a)(i) at
item 15 below.
Item 15 - Subparagraphs 10(1)(a)(i) and (2)(a)(i)
Item 15 amends subparagraphs 10(1)(a)(i) and 10(2)(a)(i) to insert the
words '(other than an area of land described under the heading 'JABIRU' in
Part 4 of Schedule 1)' after the words 'Schedule 1' in those subparagraphs.
The amendments inserting the land described under the heading 'JABIRU' in
Part 4 of Schedule 1 are discussed below in the explanation of item 27.
The effect of this amendment is that the land described under the heading
'JABIRU' in Part 4 of Schedule 1 is excluded from land for which the
Minister shall recommend a deed of grant of an estate in fee simple under
these provisions. Instead, the Minister must make a recommendation to the
Governor-General in accordance with new subsections 10(2AB) and (2AC), as
discussed below in the explanation of item 16.
Item 16 - After subsection 10(2AA)
Item 16 inserts two new subsections into section 10 of the Land Rights Act.
The two new subsections provide that the Minister must make
recommendations to the Governor-General for the two proposed deeds of grant
discussed below in the explanation of item 17 upon commencement.
New subsection 10(2AB) provides that the Minister must recommend to the
Governor-General that a deed of grant of an estate in fee simple in the
land described in paragraphs (a) and (c) under the heading 'JABIRU' in Part
4 of Schedule 1 (see the explanation of item 27 below) be made to the
Kakadu Aboriginal Land Trust.
New subsection 10(2AC) provides that the Minister must recommend to the
Governor-General that a deed of grant of an estate in fee simple in the
Jabiru town land (see the explanation of items 5 and 10 above) be made to
the Kakadu Aboriginal Land Trust.
Item 17 - After subsection 12(1)
Item 17 inserts a number of new subsections within section 12 of the
Land Rights Act to provide for the execution and delivery of the two
proposed deeds of grant by the Governor-General in relation to Jabiru.
New subsection 12(1AA) provides that the Governor-General, on receipt of a
recommendation under new subsection 10(2AB), as discussed above in the
explanation of item 16, may execute a deed of grant to the Kakadu
Aboriginal Land Trust.
New subsection 12(1AB) provides that the Governor-General may then deliver
that deed of grant to the Kakadu Aboriginal Land Trust if the Minister is
satisfied about certain matters. The Minister must be satisfied that a
lease variation under section 19 has been granted by the Kakadu Aboriginal
Land Trust to the Director of National Parks, as discussed in the
explanation of item 21 below. The Minister must also be satisfied that the
variation is expressed to take effect on the date that the deed of grant is
delivered.
New subsection 12(1AC) provides that the Governor-General, on receipt of a
recommendation under new subsection 10(2AC), as discussed above in the
explanation of item 16, may execute a deed of grant to the Kakadu
Aboriginal Land Trust.
New subsection 12(1AD) provides that the Governor-General may then deliver
that deed of grant to the Kakadu Aboriginal Land Trust if the Minister is
satisfied about certain matters. The Minister must be satisfied that
either the section 19 lease requirements provided under new subsections
12(1AE), (1AF) and (1AG) (the section 19 leaseback arrangements set out in
item 21) apply, or the section 19A lease requirement provided under new
subsection 12(1AH) (the section 19A leaseback arrangement set out in
item 23) applies.
New subsection 12(1AE) applies if two preconditions are satisfied.
Firstly, a lease variation under section 19 must be granted by the Kakadu
Aboriginal Land Trust to the Director of National Parks to cover the whole
of the category A Jabiru land (see the explanation of items 1 and 10
above). Secondly, the variation must be expressed to take effect on the
date that the relevant deed of grant is delivered.
New subsection 12(1AF) applies if two preconditions are satisfied.
Firstly, the Kakadu Aboriginal Land Trust must enter into a lease under
section 19 with the Aboriginal and Torres Strait Islander corporation
nominated in writing by the relevant Land Council, as discussed in the
explanation of item 21 below. This lease must cover the whole of the
category B Jabiru land (see the explanation of items 2 and 10 above).
Secondly, this lease must be expressed to take effect on the date that the
relevant deed of grant is delivered.
New subsection 12(1AG) applies if two preconditions are satisfied.
Firstly, the Kakadu Aboriginal Land Trust must enter into a lease under
section 19 with the Northern Territory covering the whole of the category C
Jabiru land (see the explanation of items 3 and 10 above). Secondly, this
lease must be expressed to take effect on the date that the relevant deed
of grant is delivered.
New subsection 12(1AH) applies if two preconditions are satisfied.
Firstly, the Kakadu Aboriginal Land Trust must enter into a lease under
section 19A with the Commonwealth covering the whole of the Jabiru town
land (see the explanation of items 5 and 10 above). Secondly, this lease
must be expressed to take effect on the date that the relevant deed of
grant is delivered.
New subsection 12(1AI) provides that, if a deed of grant is delivered to
the Kakadu Aboriginal Land Trust under new subsections 12(1AB) or (1AD),
subsection 12(2A) applies to the estate in fee simple in the land held by
the Director of National Parks, but does not otherwise apply. The effect
of this provision is that the estate in fee simple, held by the Director of
National Parks in the land subject to a deed of grant delivered under new
subsections 12(1AB) or (1AD), will cease to exist at the time the relevant
deed of grant takes effect. Any other estates or interests held by the
Director of National Parks in the land (for example, subleases granted by
the Jabiru Town Development Authority in relation to the Jabiru town land)
are excluded from the operation of subsection 12(2A).
Item 18 - After subsection 12(2A)
Item 18 inserts a further new subsection within section 12.
New subsection 12(2AB) provides that, if a deed of grant is delivered to
the Kakadu Aboriginal Land Trust under subsection 12(1AD) in relation to
the Jabiru town land, then, at the time the deed of grant takes effect, the
lease of that land by the Director of National Parks to the Jabiru Town
Development Authority ceases to exist.
Item 19 - After subsection 12A(1)
Item 19 inserts a new subsection within section 12A of the Land Rights Act.
New subsection 12A(1A) provides that subsection 12A(1) does not apply to
an estate or interest of the Director of National Parks in land described
under the heading 'JABIRU' in Part 4 of Schedule 1 (see the explanation of
item 27 below). The effect of new subsection 12A(1A) is that section 12A
will not entitle the Director of National Parks to continue his or her
occupation of the land for the purposes of the EPBC Act in relation to the
current estate in fee simple once it ceases (see the explanation of new
subsection 12(1AI) in relation to item 17 above).
However, section 12A(1) will otherwise apply (where relevant) to provide
that the Director of National Parks is entitled to continue his or her
occupation of the land for the purposes of the EPBC Act in relation to any
other estates or interests held in relation to the land (for example, in
relation to subleases granted by the Jabiru Town Development Authority in
relation to the Jabiru town land).
Item 20 - Subsection 19(1)
Item 20 repeals subsection 19(1) of the Land Rights Act and substitutes a
new subsection 19(1). New subsection 19(1) provides that a Land Trust must
not deal with or dispose of, or agree to deal with or dispose of, certain
estates, interests or land except as provided by section 19, 19A or 20.
New paragraph 19(1)(a) provides that a Land Trust must not deal with or
dispose of, or agree to deal with or dispose of, any estate or interest in
land vested in it except as provided by section 19, 19A or 20.
To avoid any doubt, new paragraph 19(1)(b) clarifies that a Land Trust must
not deal with or dispose of, or agree to deal with or dispose of, the land
described under the heading 'JABIRU' in Part 4 of Schedule 1 (see the
explanation of item 27 below) except as provided by section 19, 19A or 20.
The effect of new paragraph 19(1)(b) is that it will be possible for a Land
Trust to deal with that land before it is vested in that Land Trust. This
will enable the Kakadu Aboriginal Land Trust to grant the lease variations
and enter into the leases, as discussed in the explanation of item 21
below, if the section 19 leasing model is adopted in relation to Jabiru.
In the alternative, this new paragraph will also enable the Kakadu
Aboriginal Land Trust to grant the lease, as discussed in the explanation
of item 23 below, if the section 19A leasing model is adopted in relation
to Jabiru.
Item 21 - After subsection 19(3C)
Item 21 inserts a number of new subsections within section 19 of the
Land Rights Act to provide for the leaseback arrangements to be granted and
entered into by the Kakadu Aboriginal Land Trust if the section 19 leasing
model is adopted in relation to Jabiru.
New subsection 19(3D) provides for a lease variation under section 19 to be
granted by the Kakadu Aboriginal Land Trust to the Director of National
Parks to cover the land described in paragraphs (a) and (c) under the
heading 'JABIRU' in Part 4 of Schedule 1 (see the explanation of item 27
below). The variation may be granted despite the relevant deed of grant
not having been delivered (see the explanation of items 16 and 17 above).
The variation must be expressed to take effect on the date that such a deed
of grant is delivered.
New subsection 19(3E) provides for a lease variation under section 19 to be
granted by the Kakadu Aboriginal Land Trust to the Director of National
Parks to cover the category A Jabiru land (see the explanation of items 1
and 10 above). The variation may be granted despite the relevant deed of
grant not having been delivered (see the explanation of items 16 and 17
above). The variation must be expressed to take effect on the date that
such a deed of grant is delivered.
New subsection 19(3F) provides that, with the consent of the Minister and
at the direction of the relevant Land Council, the Kakadu Aboriginal Land
Trust may grant a lease to the Aboriginal and Torres Strait Islander
corporation, nominated in writing by the relevant Land Council, of the
category B Jabiru land (see the explanation of items 2 and 10 above).
New subsection 19(3G) provides that the Kakadu Aboriginal Land Trust may
grant a lease mentioned in new subsection 19(3F) despite the relevant deed
of grant not having been delivered (see the explanation of items 16 and 17
above). The lease must be expressed to take effect on the date that such a
deed of grant is delivered.
New subsection 19(3H) provides that, with the consent of the Minister and
at the direction of the relevant Land Council, the Kakadu Aboriginal Land
Trust may grant a lease to the Northern Territory of the category C Jabiru
land (see the explanation of items 3 and 10 above).
New subsection 19(3J) provides that the Kakadu Aboriginal Land Trust may
grant a lease mentioned in new subsection 19(3H) despite the relevant deed
of grant not having been delivered (see the explanation of items 16 and 17
above). The lease must be expressed to take effect on the date that such a
deed of grant is delivered.
New subsection 19(3K) provides that the Minister must not give consent to a
lease under new subsections 19(3F) or (3H) unless two preconditions are
satisfied. Firstly, the term of the lease must be 99 years. Secondly,
the Minister administering the EPBC Act must be satisfied that the terms
and conditions of the lease are consistent with the protection of the world
heritage values, and other natural and cultural values, of Kakadu National
Park.
New subsection 19(3L) provides for the treatment of certain categories of
rights, titles or interests, or any thing, if a lease is varied under new
subsection 19(3E) or granted under new subsections 19(3F) or (3H).
The expression 'applicable land' is defined for the purposes of new
subsection 19(3L) in new subsection 19(3M).
The purpose of new subsection 19(3L) is not just to preserve certain
existing rights, titles or interests in relation to the applicable Jabiru
town land. The new subsection is also drafted to give effect to such
rights, titles or interests with full force and effect, even if they are
currently limited or invalid (and are therefore just purported rights,
titles or interests) (see the explanation in relation to new subsection
19(3Q) below).
New paragraph 19(3L)(a) provides, subject to two exceptions, that any
right, title or interest, or any thing, that was registered under the Land
Title Act (NT) in relation to the applicable land immediately before the
time the variation or new lease takes effect has full force and effect in
accordance with its terms at and after that time. The two exceptions to
the general rule in new paragraph 19(3L)(a) are the estate in fee simple in
the applicable land held by the Director of National Parks and any right,
title or interest, or any thing, held by the Jabiru Town Development
Authority in relation to the applicable land.
Under new paragraph 19(3L)(a), for example, all registered subleases
granted by the Jabiru Town Development Authority in relation to the Jabiru
town land will have full force and effect at and after the time the
variation or new lease takes effect. In addition, the term 'any right,
title or interest, or any thing, that was registered' includes any
purported right, title or interest, or any thing, which was registered (see
the explanation in relation to new subsection 19(3Q) below).
New paragraph 19(3L)(b) provides that certain further categories of rights,
titles or interests in relation to the applicable land that existed
immediately before the time the variation or new lease takes effect has
full force and effect in accordance with its terms at and after that time.
The first additional category to which new paragraph 19(3L)(b) applies
(subparagraph 19(3L)(b)(i)) is to any right, title or interest in relation
to the applicable land that was granted under any right, title or interest,
or any thing, covered by new paragraph 19(3L)(a). For example, any
interest granted under a registered sublease in relation to the Jabiru town
land will have full force and effect at and after the time the variation or
new lease takes effect under this new subparagraph.
The second additional category to which new paragraph 19(3L)(b) applies
(subparagraph 19(3L)(b)(ii)) is to any right, title or interest in relation
to the applicable land that was granted under any right, title or interest,
or any thing, held by the Jabiru Town Development Authority in relation to
the applicable land. For example, any unregistered interests granted by
the Jabiru Town Development Authority in relation to the Jabiru town land
will have full force and effect at and after the time the variation or new
lease takes effect.
New paragraph 19(3L)(c) applies to any right, title or interest in relation
to a facility (within the meaning of the Telecommunications Act 1997) that
is on, over or under the applicable land and is owned or operated by a
carrier (within the meaning of that Act). In this circumstance, if the
right, title or interest existed immediately before the variation or new
lease takes effect, it has full force and effect in accordance with its
terms at and after that time. This paragraph is intended to ensure that
certain interests identified by Telstra Corporation Limited, and any other
relevant interests owned or operated by any other carrier in Jabiru, have
full force and effect at and after the time the variation or new lease
takes effect.
New paragraph 19(3L)(d) applies to any right, title or interest in relation
to the trust assets (as defined under new subsection 19(3N)) that existed
immediately before the time the variation or new lease takes effect. In
this circumstance, the right, title or interest has full force and effect
in accordance with its terms at and after that time. This paragraph is
intended to ensure that the legal and beneficial interests held by the
Jabiru Town Development Authority, the Commonwealth, the Northern Territory
and Energy Resources of Australia Limited under the Jabiru Cost Sharing
Agreement have full force and effect at and after the time the variation or
new lease takes effect.
New paragraph 19(3L)(e) provides that any right, title or interest, or any
thing, in relation to the applicable land, specified in a legislative
instrument made by the Minister under this paragraph, has full force and
effect in accordance with its terms at and after the time the variation or
new lease takes effect.
The Commonwealth is not aware of any further rights, titles, interests or
things that should be specifically given effect at and after the time the
variation or new lease takes effect and would not be captured by new
paragraphs 19(3L)(a) to (d). However, if any such right, title, interest
or thing is identified, this power would enable it to have full force and
effect in accordance with its terms.
New subsection 19(3M) provides a definition of the phrase 'applicable land'
for the purposes of new subsection 19(3L). For a lease variation under new
subsection 19(3E), the applicable land is the category A Jabiru land. For
a lease under new subsection 19(3F), the applicable land is the category B
Jabiru land. For a lease under new subsection 19(3H), the applicable land
is the category C Jabiru land.
New subsection 19(3N) provides a definition of the phrase 'trust assets'
for the purposes of new paragraph 19(3L)(d). 'Trust assets' means Trust
Assets within the meaning of subclause 1(1) of the Jabiru Cost Sharing
Agreement between the Jabiru Town Development Authority and Energy
Resources of Australia Limited made on 23 August 1985.
New subsection 19(3P) provides that new paragraphs 19(3L)(a) to (d) do not
limit the scope of the instrument-making power provided under new
paragraph 19(3L)(e).
New subsection 19(3Q) provides that any right, title or interest, or any
thing, to which new subsection 19(3L) applies has full force and effect at
and after the time the variation or new lease takes effect. To avoid
doubt, this provision explicitly confirms that this will be the case even
if the right, title, interest or thing did not have full force and effect
immediately before that time.
New subsection 19(3R) provides further requirements that apply if new
subsection 19(3L) applies in relation to a right, title, interest or thing
granted by the Jabiru Town Development Authority. If this is the case,
then, at and after the variation or new lease takes effect, the right,
title, interest or thing has full force and effect as if it were granted by
the Director of National Parks (for a lease varied under new subsection
19(3E)), the nominated Aboriginal and Torres Strait Islander corporation
(for a lease under new subsection 19(3F)) or by the Northern Territory (for
a lease under new subsection 19(3H)). This provision does not mean, for
instance, that any sublease granted by the Jabiru Town Development
Authority in relation to the Jabiru town land operates as if it is granted
afresh by the relevant new lessor at the time the deed of grant takes
effect. Rather, it is just the balance of the term that operates with the
new lessor.
New subsection 19(3S) applies if new subsection 19(3L) applies and,
immediately before the variation or lease takes effect, the right, title,
interest or thing is contingent on the existence of the lease of the Jabiru
town land by the Director of National Parks to the Jabiru Town Development
Authority. This new subsection provides that, at the time the variation or
lease takes effect, the terms of the right, title, interest or thing are
taken to have been modified so that it is contingent on the existence of
the varied lease or new lease.
New subsection 19(3T) provides that, before making a legislative instrument
under paragraph 19(3L)(e), the Minister must consult the relevant
Land Council. The Minister may also consult other persons or bodies
(for example, the Northern Territory Government and the Director of
National Parks) and this new subsection also does not limit the operation
of the Legislative Instruments Act 2003 in relation to consultation
obligations.
New subsection 19(3U) provides that, if the Minister makes a legislative
instrument under new paragraph 19(3L)(e), he or she must give a copy to the
relevant Land Council.
Item 22 - Subsections 19(8A) and (8B)
Item 22 amends subsections 19(8A) and (8B) of the Land Rights Act.
References to new subsections 19(3F) and (3H) are inserted into
subsections 19(8A) and (8B). This will ensure that certain provisions in
section 19 of the Land Rights Act in relation to the transfer or grant of
certain interests by the relevant grantee will apply to the leases granted
by the Kakadu Aboriginal Land Trust to the nominated Aboriginal and
Torres Strait Islander corporation and the Northern Territory.
Item 23 - After subsection 19A(1A)
Item 23 inserts new subsections 19A(1B) and (1C) into the Land Rights Act.
New subsection 19A(1B) provides that the Kakadu Aboriginal Land Trust may
grant a lease of the Jabiru town land to the Commonwealth before the
delivery of the relevant deed of grant to that Land Trust (if the Minister
consents to the granting of the lease as provided by current
subsection 19A(1)).
New subsection 19A(1C) provides that the Minister must not give a consent
under current subsection 19A(1) in relation to the grant of a lease
mentioned in new subsection 19A(1B) unless the term of the lease is 99
years and the Minister administering the EPBC Act is satisfied with the
terms and conditions of the lease (in order to protect the world heritage,
natural and cultural values of Kakadu National Park).
Item 24 - After subsection 19A(11)
Item 24 amends section 19A of the Land Rights Act by inserting a number of
new subsections (subsections 19A(11A) to (11J)).
New subsection 19A(11A) provides that the general rule for preserving any
existing right, title or other interest in land the subject of a lease
granted under section 19A (in subsections 19A(10) and (11)) does not apply
to a lease mentioned in new subsection 19A(1B). This means that the
general preservation rule does not apply to a lease of the Jabiru town land
granted by the Kakadu Aboriginal Land Trust to the Commonwealth if the
section 19A leasing model is adopted in relation to Jabiru.
New subsection 19A(11B) provides for the treatment of certain categories of
rights, titles or interests, or any thing, if a lease is granted under new
subsection 19A(1B).
The purpose of new subsection 19A(11B) is not just to preserve certain
existing rights, titles or interests in relation to the applicable Jabiru
town land. The new subsection is also drafted to give effect to such
rights, titles or interests with full force and effect, even if they are
currently limited or invalid (and are therefore just purported rights,
titles or interests) (see the explanation in relation to new subsection
19A(11E) below).
New paragraph 19A(11B)(a) provides, subject to two exceptions, that any
right, title or interest, or any thing, that was registered under the Land
Title Act (NT) in relation to the relevant land immediately before the time
the lease takes effect has full force and effect in accordance with its
terms at and after that time. The two exceptions to the general rule in
new paragraph 19A(11B)(a) are the estate in fee simple in the relevant land
held by the Director of National Parks and any right, title or interest, or
any thing, held by the Jabiru Town Development Authority in relation to the
relevant land.
Under new paragraph 19A(11B)(a), for example, all registered subleases
granted by the Jabiru Town Development Authority in relation to the Jabiru
town land will have full force and effect at and after the time the lease
takes effect. In addition, the term 'any right, title or interest, or any
thing, that was registered' includes any purported right, title or
interest, or any thing which was registered (see the explanation in
relation to new subsection 19A(11E) below).
New paragraph 19A(11B)(b) provides that certain further categories of
rights, titles or interests in relation to the relevant land that existed
immediately before the time the lease takes effect have full force and
effect in accordance with its terms at and after that time.
The first additional category to which new paragraph 19A(11B)(b) applies
(subparagraph 19A(11B)(b)(i)) is to any right, title or interest in
relation to the relevant land that was granted under any right, title or
interest, or any thing, covered by new paragraph 19A(11B)(a). For example,
any interest granted under a registered sublease in relation to the Jabiru
town land will have full force and effect at and after the time the lease
takes effect under this new subparagraph.
The second additional category to which new paragraph 19A(11B)(b) applies
(subparagraph 19A(11B)(b)(ii)) is to any right, title or interest in
relation to the relevant land that was granted under any right, title or
interest, or any thing, held by the Jabiru Town Development Authority in
relation to the relevant land. For example, any unregistered interests
granted by the Jabiru Town Development Authority in relation to the Jabiru
town land will have full force and effect at and after the time the lease
takes effect.
New paragraph 19A(11B)(c) applies to any right, title or interest in
relation to a facility (within the meaning of the Telecommunications Act
1997) that is on, over or under the relevant land and is owned or operated
by a carrier (within the meaning of that Act). In this circumstance, if
the right, title or interest existed immediately before the lease takes
effect, it has full force and effect in accordance with its terms at and
after that time. This paragraph is intended to ensure that certain
interests identified by Telstra Corporation Limited, and any other relevant
interests owned or operated by any other carrier in Jabiru, have full force
and effect at and after the time the lease takes effect.
New paragraph 19A(11B)(d) applies to any right, title or interest in
relation to the trust assets (as defined under new subsection 19A(11C))
that existed immediately before the time the lease takes effect. In this
circumstance, the right, title or interest has full force and effect in
accordance with its terms at and after that time. This paragraph is
intended to ensure that the legal and beneficial interests held by the
Jabiru Town Development Authority, the Commonwealth, the Northern Territory
and Energy Resources of Australia Limited under the Jabiru Cost Sharing
Agreement have full force and effect at and after the time the lease takes
effect.
New paragraph 19A(11B)(e) provides that any right, title or interest, or
any thing, in relation to the relevant land, specified in a legislative
instrument made by the Minister under this paragraph, has full force and
effect in accordance with its terms at and after the time the lease takes
effect. The Commonwealth is not aware of any further rights, titles,
interests or things that should be given effect at and after the time the
lease takes effect and would not be captured by new paragraphs 19A(11B)(a)
to (d). However, if any such right, title, interest or thing is
identified, this power would enable it to have full force and effect in
accordance with its terms.
New subsection 19A(11C) provides a definition for the phrase 'trust assets'
for the purposes of new paragraph 19A(11B)(d). 'Trust assets' means
Trust Assets within the meaning of subclause 1(1) of the Jabiru Cost
Sharing Agreement between the Jabiru Town Development Authority and
Energy Resources of Australia Limited made on 23 August 1985.
New subsection 19A(11D) provides that new paragraphs 19A(11B)(a) to (d) do
not limit the scope of the instrument-making power provided under new
paragraph 19A(11B)(e).
New subsection 19A(11E) provides that any right, title or interest, or
thing, to which new subsection 19A(11B) applies has full force and effect
at and after the time the lease takes effect. To avoid doubt, this
provision explicitly confirms that this will be the case even if the right,
title, interest or thing did not have full force and effect immediately
before that time.
New subsection 19A(11F) provides that, if a lease mentioned in new
subsection 19A(1B) is granted and new subsection 19A(11B) applies in
relation to a right, title, interest or thing granted by the Jabiru Town
Development Authority, the right, title, interest or thing has full force
and effect in accordance with its terms as if it were granted by the
Commonwealth. This provision does not mean, for instance, that any
sublease granted by the Jabiru Town Development Authority in relation to
the Jabiru town land operates as if it is granted afresh by the
Commonwealth at the time the deed of grant takes effect. Rather, it is
just the balance of the term that operates with the Commonwealth as lessor.
New subsection 19A(11G) applies if new subsection 19(11B) applies and,
immediately before the lease takes effect, the right, title, interest or
thing is contingent on the existence of the lease of the Jabiru town land
by the Director of National Parks to the Jabiru Town Development Authority.
New subsection 19A(11G) provides that, from the time the
subsection 19A(1B) lease takes effect, the terms of the right, title,
interest or thing are taken to have been modified so that it is contingent
on the existence of the lease.
New subsection 19A(11H) provides that, before making a legislative
instrument under paragraph 19A(11B)(e), the Minister must consult the
relevant Land Council. The Minister may also consult other persons or
bodies (for example, the Northern Territory Government and the Director of
National Parks), and this new subsection also does not limit the operation
of the Legislative Instruments Act 2003 in relation to consultation
obligations.
New subsection 19A(11J) provides that, if the Minister makes a legislative
instrument under new paragraph 19A(11B)(e), he or she must give a copy to
the relevant Land Council.
Item 25 - Paragraph 19A(12)(a)
Item 25 amends paragraph 19A(12)(a) of the Land Rights Act by adding
'or (11F)' after 'subsection (11)'. The effect of this amendment, and the
amendments provided by item 26 below, is that, if new subsection 19A(11F)
applies in relation to a right, title, interest or thing and paragraphs
19A(12)(b) and (c) are also satisfied, then, at that time, the right,
title, interest or thing has effect as if it were granted by the transferee
on the same terms and conditions as existed immediately before that time.
Item 26 - Subsection 19A(12)
Item 26 amends subsection 19A(12) to omit the words 'or other interest'
(wherever occurring) and substitute the words ', interest or thing'. This
is a technical consequential amendment to align with new subsection
19A(11F).
Item 27 - Part 4 of Schedule 1 (after the item relating to INNESVALE)
Item 27 inserts the Jabiru town land and two adjacent non-township portions
(Northern Territory Portions 7126 and 7127) into Part 4 of Schedule 1 to
the Land Rights Act (after the item relating to INNESVALE).
Environment Protection and Biodiversity Conservation Act 1999
Item 28 - After subsection 345A(2)
Item 28 inserts subsection 345A(2A) to provide an exception to the
operation of subsection 345A(2), which provides that, if the Commonwealth
acquires a usage right relating to land or seabed in a Commonwealth
reserve, the usage right automatically vests in the Director of National
Parks.
The exception will apply to a usage right acquired by the Commonwealth that
is a lease of the Jabiru town land to the Commonwealth under section 19A of
the Land Rights Act, as discussed above in the explanation of item 23.
The amendments providing for the description of the Jabiru town land are
discussed above in the explanation of items 5, 10 and 27.
The exception will further apply to any usage rights prescribed by the
regulations to address other possible cases where the Commonwealth could
acquire a usage right in a Commonwealth reserve.
Item 29 - Subsection 388(1)
Item 29 inserts further words into subsection 388(1) to provide that a
person may use as well as develop a township in a part of a Commonwealth
reserve in certain circumstances.
Item 30 - Subparagraph 388(1)(b)(i)
Item 30 is a technical amendment to omit a subsection reference in
subparagraph 388(1)(b)(i) to subsection 388(3), which is required as a
consequence of item 31.
Item 31 - Subsections 388(2), (3) and (4)
Item 31 repeals subsections 388(2), (3) and (4) and replaces them with a
new subsection 388(2).
The new subsection provides that a person (other than the Director of
National Parks) may use or develop a township only on land the person holds
under lease or sublease from the Commonwealth, the Director of National
Parks, the Kakadu Aboriginal Land Trust, the Northern Territory or the
nominated Aboriginal and Torres Strait Islander corporation referred to in
new subsection 19(3F) of the Land Rights Act, as discussed above in the
explanation of item 21.
Item 32 - Subsections 389(1) and (2)
Item 32 repeals subsections 389(1) and (2) and substitutes two new
subsections because the present wording of section 389 is out of date and
does not reflect current circumstances.
New subsection 389(1) provides that the provisions of a management plan for
a Commonwealth reserve that relate to a township must include provisions
for and in relation to the use and development of the township, as provided
by the amendments to subsection 388(1), discussed above at item 29.
New subsection 389(2) provides that a town plan must make detailed
provision in relation to the use and development of the township, as
provided by the amendments to subsection 388(1), discussed above at item
29. In particular, the town plan must include detailed provision in
relation to any matters specified by the management plan for the relevant
Commonwealth reserve or the regulations.
Item 33 - Paragraph 389(3)(a)
Item 33 amends paragraph 389(3)(a) to omit the words 'that would not
otherwise apply in relation to the township'.
Item 34 - Subsection 389(4)
Item 34 repeals subsection 389(4), which relates to town plans not being
inconsistent with other instruments, because this subsection is
unnecessary.
Item 35 - Saving - management plans and town plans
Item 35 is a savings provision to ensure that the amendments discussed
above at item 32 do not affect the validity of a management plan, or a town
plan, in force immediately before the commencement of that item.
Part 2 - Compensation for acquisition of property
Item 36 - Compensation for acquisition of property
Item 36 provides that compensation is payable when there is an acquisition
of property, due to the operation of Schedule 1 to the Bill or an act done
under a provision of the Land Rights Act inserted by that Schedule, as
provided in paragraph 51(xxxi) of the Australian Constitution.
Subitem 36(1) provides that, if there is an acquisition of property to
which paragraph 51(xxxi) of the Constitution applies, and the acquisition
was otherwise than on just terms, the Commonwealth is liable to pay a
reasonable amount of compensation to the person whose property was
acquired.
Subitem 36(2) provides that, where an amount of compensation is not agreed
upon by the Commonwealth and the person whose property has been acquired,
that person may institute proceedings in a court of competent jurisdiction
for the recovery of a reasonable amount of compensation, as that court
determines.
Subitem 36(3) provides that acquisition of property and just terms have the
same meaning as provided for in paragraph 51(xxxi) of the Constitution.
Schedule 2 - Other amendments
Summary
This Schedule adds a further parcel of land to Schedule 1 to the
Aboriginal Land Rights (Northern Territory) Act 1976 (the Land Rights Act).
Background
This Schedule adds a further parcel of Northern Territory land to Schedule
1 to the Land Rights Act. This will allow the land in question to be
granted to the relevant Aboriginal Land Trust under sections 10 and 12 of
the Land Rights Act.
The Families, Housing, Community Services and Indigenous Affairs and Other
Legislation Amendment (2009 Measures) Act 2010 inserted five portions of
land, known as Patta in the Northern Territory, into Part 4 of Schedule 1
to the Land Rights Act. This Schedule adds an additional portion of land,
Northern Territory Portion 7021, to the description of Patta in Schedule 1
to the Land Rights Act.
Northern Territory Portion 7021 is currently subject to Perpetual Pastoral
Lease 1142. The holders of this lease have indicated their willingness to
surrender Northern Territory Portion 7021 to make it available to be
granted as Aboriginal land. The Northern Territory Government and the
Central Land Council are supportive of the additional scheduling.
Explanation of the changes
Item 1 - Part 4 of Schedule 1 (at the end of the item relating to PATTA)
Item 1 amends Part 4 of Schedule 1 to the Land Rights Act by inserting a
reference to an additional portion of land (Northern Territory Portion 7021
delineated on Survey Plan S2009/1A) near Tennant Creek in the
Northern Territory known as Patta as land to be granted as Aboriginal land.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011
Aboriginal Land Rights and Other Legislation Amendment Bill 2013
This Bill is compatible with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
This Bill adds the Jabiru town land and certain adjacent portions of
Northern Territory land to Schedule 1 to the Aboriginal Land Rights
(Northern Territory) Act 1976 to enable the land to be granted as
Aboriginal land to the Kakadu Aboriginal Land Trust.
This Bill also provides that the land will not be granted as Aboriginal
land until leaseback arrangements for the Jabiru town land and for the two
adjacent non-township portions are put in place.
This Bill makes related amendments to the Environment Protection and
Biodiversity Conservation Act 1999 to ensure that the world heritage,
natural and cultural values of Kakadu National Park are preserved, and
amends certain management plan and town planning requirements in relation
to Commonwealth reserves.
These amendments arise from an agreement to resolve the Jabiru native title
claim. The intention of this measure is to give effect to the settlement
agreement reached between the parties to the native title claim. This Bill
recognises the traditional ownership of Jabiru of the Mirarr people. It
ensures that the land will remain within Kakadu National Park, and that its
World Heritage listing status is not disrupted.
This Bill also adds a further parcel of land for Patta to Schedule 1 to the
Aboriginal Land Rights (Northern Territory) Act 1976 to enable the land to
be granted to the relevant Aboriginal Land Trust. The Families, Housing,
Community Services and Indigenous Affairs and Other Legislation Amendment
(2009 Measures) Act 2010 previously inserted five portions of land, known
as Patta in the Northern Territory, into Schedule 1 to the Aboriginal Land
Rights (Northern Territory) Act 1976.
Human rights implications
The long title of the Aboriginal Land Rights (Northern Territory) Act 1976
is 'An Act providing for the granting of Traditional Aboriginal Land in the
Northern Territory for the benefit of Aboriginals, and for other purposes'.
The Aboriginal Land Rights (Northern Territory) Act 1976 is discriminatory
in nature as it confers rights and privileges upon Aboriginal Australians,
which are discriminatory as against non-Aboriginal Australians. That
discrimination is the essence of the Act; it is the foundation on which it
is structured. However, the beneficial nature of this discrimination
enables the Aboriginal Land Rights (Northern Territory) Act 1976 and this
Bill to be each classified as a 'special measure' within the meaning of
paragraph 4 of article 1 of the International Convention on the Elimination
of All Forms of Racial Discrimination (the CERD) (and subsection 8(1) of
the Racial Discrimination Act 1975).
The CERD provides that special measures are deemed not to be
discrimination. Special measures are designed to 'secure to disadvantaged
groups the full and equal enjoyment of human rights and fundamental
freedoms'.[1]
This Bill advances and engages the following rights:
. the right to self-determination (recognised in article 1 of the
International Covenant on Civil and Political Rights (ICCPR));
. rights to equality and non-discrimination (recognised in article 2 of
the CERD, and article 26 of the ICCPR); and
. the right to enjoy and benefit from culture (recognised in article 27
of the ICCPR).
This Bill is necessary to recognise and ensure that relevant Aboriginal
people have the right to own and control their traditional Aboriginal
lands. The limitation on the rights of non-Aboriginal Australians is
reasonable, necessary and proportionate to the policy desire to promote the
equal enjoyment of the engaged rights by Aboriginal Australians.
Conclusion
This Bill is compatible with human rights.
Minister for Families, Community Services and Indigenous Affairs,
Minister for Disability Reform, the Hon Jenny Macklin MP
Minister for Sustainability, Environment, Water, Population and
Communities,
the Hon Tony Burke MP
-----------------------
[1] Committee on the Elimination of Racial Discrimination, General
Recommendation No. 32: The Meaning and Scope of Special Measures in the
International Convention on the Elimination of Racial Discrimination
(August 2009), at paragraph [11].
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