EXPLANATORY STATEMENT

 

Select Legislative Instrument 2008 No. 264

 

Issued by the Authority of the Minister for Families, Housing, Community Services and Indigenous Affairs

 

Aboriginal Land Rights (Northern Territory) Act 1976

 

Aboriginal Land Rights (Northern Territory) Amendment Regulations 2008 (No. 2)

 

Section 78 of the Aboriginal Land Rights (Northern Territory) Act 1976 (the Act) provides, in part, that the Governor‑General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

The purpose of the Regulations is to enable registration of land which is the subject of a lease granted under the Act without having to comply with certain planning laws of the Northern Territory. The Regulations provide for rent payments made by the Australian Government to Aboriginal Land Trusts or other bodies to be within the legislative provisions for accountability of funds.

 

Northern Territory planning laws

 

Section 19E of the Act provides that the regulations may make modifications to laws of the Northern Territory relating to planning, infrastructure, the subdivision or transfer of land or other prescribed matters to the extent that the law applies to land which is the subject of a lease granted or transferred to a Commonwealth entity under section 19A of the Act.

 

In addition, section 20SB of the Act provides that the regulations may make modifications to laws of the Northern Territory relating to planning, infrastructure, the subdivision or transfer of land or other prescribed matters to the extent that the law applies to land which is the subject of a certain other leases or subleases administered by the Executive Director of Township Leasing.

 

The Regulations make certain modifications to Northern Territory planning legislation applying to such leases so that certain subdivisions and subleases are exempt from the development permit requirements which would normally apply to those subdivisions and subleases.

 

In particular, where a subdivision and sublease is merely formalising an existing use of the land, and the plan of subdivision is lodged within 3 years of the commencement of the lease to the Commonwealth or Commonwealth entity, the development permit requirements of Part 5 of the Planning Act (NT) will not apply to the subdivision and sublease. The regulations are intended to ensure greater security of tenure, and clear leasehold arrangements, for those occupying and developing infrastructure on Aboriginal land. All infrastructure on land leased under section 19A is captured by the new regulation 6A.

 

Payments of rent

 

The Australian Government has requested the Northern Territory Valuer-General to determine a reasonable rent in relation to communities subject to five-year leases under the Northern Territory National Emergency Response Act 2007. Paragraph 35(4A)(c) of the Act allows the regulations to prescribe certain kinds of payment which, if the other criteria of that subsection are met, become an “accountable amount” for the purposes of the Act. This imposes additional accountability requirements on the recipient Land Council or on other bodies corporate that receive the money for the benefit of traditional Aboriginal owners of the land from the relevant Land Council (see sections 35(4A), 35B, 35C and 37(4) of the Act and paragraph 193X(1)(cb) of the Aboriginal and Torres Strait Islander Act 2005).

 

The Regulations provide that payments of rent and other amounts pursuant to subsections 62(1G) and (5) of the Northern Territory National Emergency Response Act 2007, in respect of Aboriginal land which is subject to a lease under section 31 of that Act, are prescribed for the purposes of paragraph 35(4A)(c) of the Act so as to become an ‘accountable amount’. This effectively means that rent (and other amounts pursuant to subsection 62(1G) of the Northern Territory National Emergency Response Act 2007) paid in respect of a ‘five year lease’ over Aboriginal land will become an ‘accountable amount’ for which additional reporting obligations will apply.

 

Details of the Regulations are outlined in the Attachment.

 

The Act specifies no conditions that need to be satisfied before the power to make the Regulations may be exercised.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The Regulations commenced on the day after they were registered on the Federal Register of Legislative Instruments.

 

Consultation

 

Comment on a draft of the regulations was sought from the Northern Territory Government and the Northern Territory Land Councils. Comments from the Northern Territory Government were taken into account in developing the regulations.

 

Comment from the Central Land Council proposing that the exemption be extended to Aboriginal Land Trusts is a separate matter and there is no specific regulation making power in the Act for such an exemption. No comments were received from Land Councils regarding the new regulation 9.

 

ATTACHMENT

 

Details of the Aboriginal Land Rights (Northern Territory) Amendment Regulations 2008 (No. 2)

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Aboriginal Land Rights (Northern Territory) Amendment Regulations 2008 (No. 2).

 

Regulation 2 – Commencement

 

This regulation provides for the Regulations to commence on the day after they are registered on the Federal Register of Legislative Instruments.

 

Regulation 3 – Amendment of Aboriginal Land Rights (Northern Territory) Regulations 2007

 

This regulation provides that Schedule 1 amends the Aboriginal Land Rights (Northern Territory) Regulations 2007 (the Principal Regulations).

 

Schedule 1 – Item 1

 

This item inserts a new regulation 6A in the Principal Regulations. The new regulation provides that Part 5 of the Planning Act (NT) and subsection 52(10) of the Land Title Act (NT) do not apply to a subdivision of land which is the subject of a lease of a kind specified in section 19E or section 20SB of the Act, if the subdivision only reflects buildings and physical infrastructure which exist on the land, and if the survey plan for the subdivision is lodged with the Surveyor-General for the Northern Territory within 3 years of the commencement of the lease.

 

Paragraph 6A(b) provides that Part 5 of the Planning Act does not apply to a sublease by the Commonwealth of a parcel of land contained in a survey plan of subdivision which has been lodged with the Surveyor-General of the Northern Territory in accordance with paragraph 6A(a).

 

Schedule 1 – Item 2

 

This item replaces regulation 9 of the Principal Regulations. It effectively prescribes an additional kind of payment for the purposes of paragraph 35(4A)(c) of the Act, as set out in paragraph 9(b).

 

Paragraph 9(a) prescribes, for the purposes of paragraph 35(4A)(c), the same kind of payment prescribed by regulation 9 of the Principal Regulations before this item takes effect.

 

Paragraph 9(b) provides that an amount paid under subsection 62(1G) or subsection 62(5) of the Northern Territory National Emergency Response Act 2007 in relation to Aboriginal land is prescribed for the purposes of paragraph 35(4A)(c) of the Act.