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2019-2020-2021
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY)
AMENDMENT (ECONOMIC EMPOWERMENT) BILL 2021
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Indigenous Australians,
the Honourable Ken Wyatt AM MP)
CONTENTS PAGE
Table of Contents
CONTENTS ................................................................................................................................ i
LIST OF ABBREVIATIONS ..................................................................................................... i
ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) AMENDMENT
(ECONOMIC EMPOWERMENT) BILL 2021 ........................................................................ 1
GENERAL OUTLINE ........................................................................................................... 1
Purpose ............................................................................................................................... 1
Background ......................................................................................................................... 2
FINANCIAL IMPACT .......................................................................................................... 9
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS ....................................... 9
NOTES ON CLAUSES ....................................................................................................... 10
Schedule 1 - NTAI Corporation ....................................................................................... 12
Schedule 2 - Mining ......................................................................................................... 38
Schedule 3 - Land administration .................................................................................... 48
Schedule 4 - Technical amendments to the ABA ............................................................ 60
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS......................................... 64
Overview of the Bill ............................................................................................................. 64
Human rights implications ................................................................................................... 66
Conclusion............................................................................................................................ 71
LIST OF ABBREVIATIONS
In this explanatory memorandum:
ABA means the Aboriginals Benefit Account;
ABAAC means the Aboriginals Benefit Account Advisory Committee;
AE Act means the Atomic Energy Act 1953 (Cth);
AI Act means the Acts Interpretation Act 1901 (Cth);
AMEC means the Association of Mining and Exploration Companies;
AL Act means the Aboriginal Land Act 1978 (NT);
ALC means the Anindilyakwa Land Council;
APPEA means the Australian Petroleum Production and Exploration
Association;
Bill means the Aboriginal Land Rights (Northern Territory) Amendment
(Economic Empowerment) Bill 2021;
CATSI Act means the Corporations (Aboriginal and Torres Strait Islander) Act
2006 (Cth);
CATSI corporation means an Aboriginal and Torres Strait Islander corporation
registered under the CATSI Act;
CEO means Chief Executive Officer;
CLC means the Central Land Council;
CRF means the Consolidated Revenue Fund;
DISER means the Department of Industry, Science, Energy and Resources;
EDTL means the Executive Director of Township Leasing established by s 20B
of the Land Rights Act;
GE Act means the Geothermal Energy Act 2009 (NT);
Land Rights Act means the Aboriginal Land Rights (Northern Territory) Act
1976 (Cth);
LA Act means the Legislation Act 2003 (Cth);
MCA NT means the Minerals Council of Australia (NT Division);
Mineral Royalty Act means the Mineral Royalty Act 1982 (NT);
MT Act means the Mineral Titles Act 2010 (NT);
NIAA means the National Indigenous Australians Agency;
NLC means the Northern Land Council;
NT means the Northern Territory;
NTAI Corporation means the Northern Territory Aboriginal Investment
Corporation;
NTMM means the Northern Territory Mining Minister;
Petroleum Act means the Petroleum Act 1984 (NT);
PGPA Act means the Public Governance, Performance and Accountability Act
2013 (Cth);
RT Act means the Remuneration Tribunal Act 1973 (Cth);
TLC means the Tiwi Land Council; and
Traditional owners means the traditional Aboriginal owners as defined by
subsection 3(1) of the Land Rights Act.
i
ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) AMENDMENT
(ECONOMIC EMPOWERMENT) BILL 2021
GENERAL OUTLINE
Purpose
1. The Bill will empower Aboriginal peoples in the NT to activate the economic potential of
their land for generations to come. The Bill will amend the Land Rights Act in four key
areas:
a) Establishing the NTAI Corporation
The Bill will establish the NTAI Corporation as a new Aboriginal-controlled
corporate Commonwealth entity in the Land Rights Act to strategically invest in
Aboriginal businesses and commercial projects and make other payments for the
benefit of Aboriginal peoples in the NT.
b) Streamlining the exploration and mining provisions of the Land Rights Act
The Bill will reduce inefficiencies associated with exploration and mining processes
on Aboriginal land in the NT by:
i. improving the application and consent process for exploration licences on
Aboriginal land so that:
- applications can be amended without the need to recommence the
application process;
- Land Councils can take a more flexible approach to meetings with
traditional Aboriginal owners; and
- the Minister's consent is not required following the Land Council
providing notice of consent for the grant of an exploration licence.
ii. enabling more efficient and consistent administration of exploration and mining
on Aboriginal land;
iii. updating terms and definitions relating to exploration and mining to align with
related NT legislation.
c) Improving and clarifying land administration provisions of the Land Rights Act
The Bill will improve land administration and enhance local decision-making by:
i. prescribing the nomination and approval processes and the funding
arrangements for approved entities that may hold a township lease under
section 19A of the Land Rights Act;
ii. providing that Land Councils may enter into agreements in respect of land that
is the subject of a deed of grant held in escrow;
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iii. increasing the amount at which Land Councils must seek Ministerial approval
to enter into a contract from $1 million to $5 million;
iv. removing the requirement that a permit issued under section 5 of the AL Act
may only be revoked by the issuer of the permit;
v. increasing the penalties for unauthorised access to Aboriginal land; and
vi. repealing unused powers for the delegation of Land Council functions to
CATSI corporations.
d) Aligning the ABA with the Commonwealth's financial framework
The Bill will align the Land Rights Act with the Commonwealth financial framework
by:
i. aligning the ABA with NT legislation for the payment of mineral royalties; and
ii. clarifying the purposes of the ABA.
Background
2. The Land Rights Act provides a legislative framework for claims to, and the grant,
regulation and management of, Aboriginal land in the NT, which is a form of freehold
land. Aboriginal land is the strongest form of traditional land title in Australia.
Approximately 50 per cent of the NT is Aboriginal land under the Land Rights Act.
3. Amendments to the Land Rights Act are not common. Aboriginal stakeholders in the NT
have strong voices through their Land Councils (the NLC, CLC, ALC and TLC) and the
Commonwealth has committed to only amend the Land Rights Act with their support.
4. Traditional owners of Aboriginal land hold decision-making powers over land access and
use. The Land Councils assist traditional owners to acquire and manage their land. Land
Councils must consult with traditional owners and affected Aboriginal people to ensure
land use proposals are understood and consented to by the traditional owners.
5. This Bill is informed by an extensive co-design process with Aboriginal Territorians
through their Land Councils. In particular:
a) the ABA Reform Working Group, including representatives from the Commonwealth,
Land Councils and the ABAAC has been meeting since 2018 to design ways to
increase Aboriginal decision-making over the ABA for the benefit of Aboriginal
peoples in the NT, and to clarify the administration of Aboriginal land. These reforms
have been requested by Aboriginal Territorians, through their Land Councils;
b) negotiations regarding options for beneficial amendments to the exploration and
mining provisions of the Act have been long-standing. A Working Group comprising
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representatives from the Land Councils, the NT Government and the Commonwealth
(as represented by the NIAA and DISER) was established in 2015 to consider the
2013 Report on Review of Part IV of the Aboriginal Land Rights (Northern Territory)
Act 1976. In addition to the Working Group, there has been significant consultation
with relevant industry peak bodies; the MCA NT, APPEA and the AMEC;
c) the NIAA has consulted the EDTL in relation to the amendments contained in
Schedule 3; and
d) during 2019-2020, the Gove Peninsula Futures Land Tenure Working Group,
comprised of representatives from the Rirratjingu Aboriginal Corporation, Gumatj
Corporation, NLC, NT Government, Rio Tinto and NIAA, requested enhanced
certainty for parties negotiating agreements in respect of land that is the subject of a
deed of grant held in escrow.
Establishing the NTAI Corporation (Schedule 1)
6. The Land Rights Act establishes the ABA, to receive and distribute monies equivalent to
the royalties generated from mining on Aboriginal land in the NT. It is a special account
for the purposes of the PGPA Act and is continued in existence under Part VI of the Land
Rights Act.
7. The ABA currently funds operational funding for Land Councils, payments for traditional
owners and other Aboriginal people affected by mining operations, funding for township
leasing, administration of the ABA, and payments for the benefit of Aboriginal people
living in the NT (beneficial payments).
8. The balance of the ABA has grown significantly in recent years as a result of the mining
boom - almost doubling from around $634 million in 2016-17 to around $1.3 billion
today. This growth is forecast to continue for the next decade.
9. As the land claim era in the NT draws closer to an end, there is increasing opportunity to
empower Aboriginal people to activate the economic potential of their land. This includes
considering the strategic direction of the ABA and how its growing balance is best used
to support Aboriginal Territorians' economic, cultural and social prosperity for
generations to come.
10. Schedule 1 includes amendments to the Land Rights Act to establish a new Aboriginal-
controlled corporate Commonwealth entity, the NTAI Corporation, to strategically invest
in Aboriginal businesses and commercial projects and make other payments for the
benefit of Aboriginal Territorians. The NTAI Corporation's Aboriginal-led Board will
use local knowledge and cultural expertise to support the economic aspirations and
cultural and social well-being of their communities for generations to come.
11. The NTAI Corporation delivers on the Government's commitment to Shared Decision-
Making under the National Agreement on Closing the Gap and will contribute to Targets
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8 and 15 by empowering strong economic participation and supporting Aboriginal
Territorians' relationship with their land and waters.
12. The NTAI Corporation will hold substantial funding from the ABA, with an initial $500
million endowment and committed funding of $60 million per year for the first three
years of its operation. The Bill also sets out a process for obtaining ongoing funding from
the ABA consistent with the process Land Councils follow to seek their yearly funding.
13. The Bill provides for strong governance mechanisms that support culturally informed,
best practice governance. The NTAI Corporation's Board balances Aboriginal
representation and cultural expertise, government involvement and independent financial
expertise, with eight members elected by the Land Councils, two members appointed by
the Commonwealth and two independent members appointed by the Board. An
Investment Committee will also advise the Board on strategic investments and the
strategic investment plan.
14. The Bill also provides for mechanisms to manage financial risk. The NTAI Corporation
will be required to seek the Minister's approval of any single investment with a value of
over $100 million and Ministerial rules will guide loans, borrowing and guarantees made
by the NTAI Corporation. These measures provide appropriate safeguards for ABA
funding.
15. The NTAI Corporation will consult with Aboriginal people and organisations in the NT
on a strategic investment plan setting out its funding and investment priorities for the
forward 3-5 years. The strategic investment plan will also be tabled in Parliament.
16. The NTAI Corporation provides an historic opportunity for Aboriginal Territorians to
make decisions regarding beneficial payments, currently approved by the Minister for
Indigenous Australians under subsection 64(4) of the Land Rights Act. The NTAI
Corporation will replace the ABAAC, which currently advises the Minister for
Indigenous Australians on beneficial payments and take on responsibility for
administering the payments.
17. The ABAAC has provided valuable advice to Government about payments to or for the
benefit of Aboriginal people living in the NT for decades. Government acknowledges the
service and expertise of all Aboriginal Territorians that have been part of the ABAAC
since its inception.
Streamlining the exploration and mining provisions of the Land Rights Act (Schedule 2)
18. Part IV of the Land Rights Act provides processes for the administration of exploration
and mining on Aboriginal land, which operate in conjunction with relevant NT legislation
including the MT Act, Petroleum Act and the GE Act. Significantly, Part IV provides for
traditional owners to 'veto' or refuse consent to the grant of an exploration licence or
mining on their land.
4
19. The Bill will clarify and improve the efficiency of processes for exploration and mining
under Part IV of the Act while retaining appropriate controls for traditional owners over
exploration and mining on their land.
20. Current processes for exploration and mining under the ALRA can be difficult to
navigate, unnecessarily time consuming and costly for all stakeholders. The Bill will
improve the application and consent process by enabling applicants to provide further
information in support of their application or amend an application without having to
recommence the application process. This will save the applicant significant savings in
time and cost, particularly where an application is amended late in the negotiating period.
21. Further time and cost savings will result from amendments to allow Land Councils to take
a more flexible approach to holding meetings with traditional owners in relation to
exploration licence applications.
22. The Bill will repeal the requirement for the Minister to consent to the grant of an
exploration licence once the Land Council has provided its consent, saving time without
detracting from the quality of the consent process. Importantly, the Minister will retain a
role in approving high value proposals and cancelling any exploration licences or mining
interests, having given consideration to any related matters of national interest.
23. The Bill will further clarify and streamline the Minister's functions in relation to the
cancellation of exploration licence or mining interest, by repealing the provision for
delegation of related functions to the NTMM. Other amendments will update definitions
under the ALRA to align with current NT legislation, providing greater clarity for all
stakeholders.
Improving and clarifying the land administration provisions of the Land Rights Act
(Schedule 3)
24. The Land Rights Act has always provided for leasing on Aboriginal land under section 19
but leasing over whole townships was first introduced in 2006 under section 19A. A
township lease is a long term lease (40 to 99 years) over a township on Aboriginal land in
the NT. Township leases are designed to streamline land administration and to create
secure tenure over Aboriginal land. To date, the majority of township leases have been
granted to the EDTL.
25. In 2015 Commonwealth policy changed to facilitate local Aboriginal people to hold
township leases, which has enhanced Aboriginal decision-making in respect of
Aboriginal land. Recently, two CATSI corporations were granted township leases - the
Ngarrariyal Aboriginal Corporation for the Gunyangara Township Lease in 2017 and the
Gundjeihmi Aboriginal Corporation Jabiru Town for the Jabiru Township Lease in 2021.
However, the Land Rights Act does not currently clearly prescribe the approval processes
and funding arrangements for approved entities holding township leases under section
19A of the Land Rights Act.
5
26. The Bill will enhance Aboriginal control over land management and simplify the land
administration system under the Land Rights Act. The Bill prescribes the process through
which a body may be nominated and approved to hold a township lease as well as the
funding arrangements for all approved entities. This will establish an appropriate
governance framework and the transparency needed to ensure that all approved entities
are accountable to the communities over which they hold a township lease.
27. The Bill will enhance certainty for parties negotiating agreements in respect of land that is
the subject of a deed of grant held in escrow. To this end, the Bill will clarify that Land
Councils can enter into agreements in respect of such land. This aligns with section 11A
(which relates to land under claim), and is particularly relevant to land administration in
communities that are transitioning from being mining towns.
28. The Bill will raise the amount at which Land Councils are required to seek the Minister's
approval to enter into a contract from $1 million to $5 million. This will give Land
Councils greater autonomy, and will reduce administrative burdens on Land Councils and
the Commonwealth.
29. Section 74AA will be repealed to improve the functionality of the permit system that
regulates access to Aboriginal land. Section 74AA provides that only the issuer of a
permit may revoke that permit. This means that minority groups within traditional owner
communities may issue permits and refuse to revoke them. Repealing this provision will
improve consistency with the AL Act in relation to the issuing and revoking of permits
for access to Aboriginal land.
30. The Bill will also increase the penalty for unauthorised access to Aboriginal land from ten
penalty units to 50 penalty units. This will deter people from unlawfully entering or
remaining on Aboriginal land. The delay in commencement of this increase is intended to
allow the NT Government to amend the AL Act to enable consistency.
31. Unused provisions that allow for the delegation of Land Council functions to CATSI
corporations will be repealed by the Bill. Land Councils remain best placed - in terms of
resourcing capacity and institutional knowledge, including through regional networks - to
exercise the functions that can presently be delegated under section 28A. Repeal of
sections 28A to 28F is consistent with the objectives of this Bill to enhance Aboriginal
control over land management and simplify the land administration system under the Act.
Granting or transferring township leases to CATSI corporations has become the preferred
option of traditional owners and their Land Councils for supporting local decision-making
and control over Aboriginal land in the NT.
Aligning the ABA with the Commonwealth's financial framework (Schedule 4)
32. The ABA is credited and debited in accordance with the provisions of Part VI. In
particular:
a) amounts equal to amounts received by the Commonwealth or the NT in respect of a
mining interest on Aboriginal land (subsection 63(1)) and amounts relating to mining
6
operations on Aboriginal land carried on under an Act by or on behalf of the
Commonwealth, the NT or an authority (subsection 63(4)) are to be credited to the
ABA; and
b) payment of 30 per cent of such amounts to the Land Council in the area of the
particular mining interest or mining operation (subsection 64(3)), for distribution
under subsection 35(2) of the Land Rights Act to CATSI corporations whose
members are affected by the mining operations, must be debited from the ABA.
Crediting the ABA under subsection 63(1) of the Land Rights Act
33. In practice, credits to the ABA under subsection 63(1) of the Land Rights Act are based
on payments 'on account of royalty', before the actual amount of royalties is assessed by
the NT. This is a consequence of the Mineral Royalty Act, which, with limited
exceptions, imposes a royalty on minerals recovered in the NT.
34. The Mineral Royalty Act requires a 'royalty payer' to make payments 'on account of
royalty' of the amount of 'royalty' that the royalty payer estimates is payable for the
preceding six-monthly period in the 'royalty year' in respect of which the royalty is
payable (paragraph 40(1)(a)). At the end of each royalty year, the royalty payer must
lodge a statement of royalty return (section 12) and pay 'on account of royalty' the
balance of the royalty payable as estimated in the statement (paragraph 40(1)(b)). The
approved NT government delegate assesses the royalty return (section 18) and a notice of
assessment is issued (section 22). Royalties are payable on the date specified in the notice
(section 39). 'Royalty', 'royalty year' and 'royalty payer' are defined in section 4 of the
Mineral Royalty Act.
35. The NT notifies the Commonwealth of the total payments made by royalty payers in
accordance with subsection 40(1) of the Mineral Royalty Act for each six monthly period.
When the Commonwealth receives notice from the NT, it credits the ABA an amount
equal to the amount notified by the NT.
36. However, the amounts notified by the NT represent the unaudited interim or provisional
payments of royalty received by the NT, and do not necessarily reflect royalty due and
payable under the Mineral Royalty Act for the royalty year. Royalties due and payable by
a royalty payer for the royalty year is determined only after a final audited assessment has
taken place after the end of the royalty year. This assessment process occurs in
accordance with sections 18 to 21 of the Mineral Royalty Act, with final written notice of
assessment issued to a royalty payer under section 22, and royalties payable under section
39. Amounts overpaid are refunded to the royalty payer under paragraph 45(1)(b) of the
Mineral Royalty Act unless retained under paragraph 45(1)(a).
37. Refunds may be provided under paragraph 45(1)(b) of the Mineral Royalty Act, a
significant time after amounts have been credited to the ABA under subsection 63(1) of
the Land Rights Act and subsequently debited under subsection 64(3) of the Land Rights
Act.
7
Crediting the ABA under subsection 63(4) of the Land Rights Act
38. Subsection 63(4) of the Land Rights Act provides that if mining operations are carried on
under the AE Act or any other Act on Aboriginal land by, or on behalf of, the
Commonwealth, the NT or an Authority, amounts determined in accordance with
subsection 63(5) must be credited to the ABA. Subsection 63(5) provides that the
amounts payable under subsection 63(4) are the amounts that would be payable to the
Crown as royalties if the mining operations were carried on in accordance with NT law, at
the rate fixed by the NT in January 1977, or at a higher rate jointly determined by the
relevant Commonwealth Ministers.
39. Credits are made to the ABA in respect of mining operations in accordance with a
determination under paragraph 63(5)(b) of the Land Rights Act. In practice, amounts may
be paid that are subsequently reduced. Where this occurs, the overpayment is offset
against the next payment made in accordance with the determination under paragraph
63(5)(b) of the Land Rights Act.
Debiting the ABA under subsection 64(3) of the Land Rights Act
40. Subsection 64(3) of the Land Rights Act provides that there must be debited from the
ABA and paid by the Commonwealth, from time to time, to each Land Council in the
area of which a mining interest referred to in subsection 63(1) of the Land Rights Act is
situated, or mining operations referred to in subsection 63(4) of the Land Rights Act are
being carried on, an amount equal to 30 per cent of any amounts:
a) credited to the ABA in accordance with subsection 63(1) in respect of that mining
interest (s 64(3)(a)); or
b) credited to the ABA in accordance with subsection 63(4) in respect of those mining
operations (s 64(3)(b));
as the case may be.
41. Under subsection 35(2) of the Land Rights Act, a Land Council that receives money
under subsection 64(3) of the Land Rights Act must pay the money within six months of
receipt to any CATSI corporations whose members live in, or are the traditional owners
of, the area affected by the mining operations referred to in subsection 64(3), in such
proportions as the Land Council determines.
42. If the ABA is not credited under subsections 63(1) or 63(4) of the Land Rights Act until
actual royalties or final amounts are determined, there would be a significant delay in
making payments to Land Councils under subsection 64(3) of the Land Rights Act for
distribution to relevant CATSI corporations under subsection 35(2) of the Land Rights
Act. This delay would have a detrimental and undesirable impact on communities, which
have come to rely on the regularity of distributions. These amendments provide a clear
mechanism for the ABA to be credited when amounts are paid on account of royalties,
and for the making of consequent payments to Land Councils under subsection 64(3).
8
FINANCIAL IMPACT
43. The NTAI Corporation amendments have the following impact on underlying cash. The
other measures in the Bill have no financial impact.
Impact on underlying cash ($ millions)
2020-21 2021-22 2022-23 2023-24 2024-25 Total
Expenditure 0.0 +0.1 -0.4 -0.3 +1.0 +0.4
Revenue 0.0 -0.1 0.0 +3.2 +11.7 +14.7
Total 0.0 0.0 -0.4 +2.9 +12.6 +15.1
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
44. 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.
45. The Statement of Compatibility with Human Rights is provided at the end of this
Explanatory Memorandum.
9
NOTES ON CLAUSES
Clause 1 - Short title
1. Clause 1 provides for the Act to be cited as the Aboriginal Land Rights (Northern
Territory) Amendment (Economic Empowerment) Act 2021.
Clause 2 - Commencement
2. Clause 2 provides for the commencement of each provision in the Bill, as set out in the
table. While most parts of the Bill commence the day after the Bill receives the Royal
Assent, some measures commence on a day to be fixed by Proclamation, or 12 months
from the day after the Bill receives the Royal Assent.
3. The reasons for the staggered commencement dates are set out below in relation to the
specific measures:
a) Item 1 of the table provides that sections 1 to 3 and anything in the Act not covered
elsewhere by the table commence the day the Act receives the Royal Assent.
b) Item 2 of the table provides that Part 1 of Schedule 1 commences on a single day to be
fixed by Proclamation. However, if the provisions have not commenced within 12
months beginning from the day of the Royal Assent, they commence on the day after
the end of the 12 month period. Part 1 of Schedule 1 contains the provisions that
establish the new NTAI Corporation. The commencement date to establish the NTAI
Corporation is to be fixed by Proclamation to enable governance measures to be
arranged prior to the NTAI Corporation coming into existence.
c) Item 3 of the table provides that Part 2 of Schedule 1 commences the day after the Act
receives the Royal Assent. Part 2 of Schedule 1 deals with the transitional
arrangements that are necessary to stand up the NTAI Corporation. These
arrangements need to commence immediately after the Royal Assent to ensure that
the governance measures are arranged promptly.
d) Item 4 of the table provides that Schedule 2 commences the day after the Act receives
the Royal Assent.
e) Item 5 of the table provides that Parts, 1, 2 and 3 of Schedule 3 commence the day
after the Act receives the Royal Assent.
f) Item 6 of the table provides that Part 4 of Schedule 3 commences 12 months after the
Act receives the Royal Assent. These measures require a delayed commencement so
as to provide sufficient time for a legislative instrument to be made that prescribes the
township land and for the NT Government to amend the AL Act.
10
g) Item 7 of the table provides that Schedule 4 commences the day after the Act receives
the Royal Assent.
Clause 3 - Schedules
4. Clause 3 provides that legislation that is specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned, and any other item
in a Schedule to this Act has effect according to its terms.
11
Schedule 1 - NTAI Corporation
Part 1 - Establishment of the NTAI Corporation
Aboriginal Land Rights (Northern Territory) Act 1976
Item 1 - Subsection 3(1)
5. This item amends subsection 3(1) of the Land Rights Act (the existing Interpretation
section in the Land Rights Act) to insert a definition of 'Finance Minister' meaning the
Minister who administers the PGPA Act. This term is used in new Part VIA (inserted into
the Land Rights Act by item 6 of Part 1 of Schedule 1).
Item 2 - Subsection 33(3)
6. This item amends subsection 33(3) of the Land Rights Act to repeal the existing
definition of 'Finance Minister' that was previously only used in section 33 of the Land
Rights Act. This amendment is consequential to the amendment made by item 1 so that
the term 'Finance Minister' has a consistent meaning throughout the Act.
Item 3 - Subsection 63A
7. Item 3 amends section 63A (inserted into the Land Rights Act by item 5 of Schedule 4) to
clarify that the paying of amounts required or permitted to be paid under new section
64AA (see item 4 of Part 1 of Schedule 1) is also a purpose of the ABA. This aligns the
provisions relating to the ABA with the Commonwealth's financial framework (see
subsection 80(1) of the PGPA Act).
Item 4 - After section 64A
8. This Item inserts new section 64AA into the Land Rights Act. This new section provides
for the ABA to be debited to provide funding to the NTAI Corporation.
9. Subsections 64AA(1) and (2) provide that there must be debited from the ABA and paid
by the Commonwealth to the NTAI Corporation a single amount of $500 million within
30 days after the first strategic investment plan for the NTAI Corporation, developed
under new section 65C, is laid before a House of Parliament.
10. This payment is made after the strategic investment plan is laid before the Parliament to
support transparent and accountable use of the funding.
11. New subsection 64AA(3) provides for $60 million to be debited from the ABA to be paid
to the NTAI Corporation: (i) within 6 months after the commencement of section 64AA;
(ii) on the first 1 July that occurs after the commencement of section 64AA, and (iii) on
the second 1 July that occurs after that commencement. This provides funding certainty
for the NTAI Corporation for a certain period of time whilst the NTAI Corporation
establishes its core operations.
12
12. New subsection 64AA(4) allows the Minister to direct amounts, from time to time, to be
debited from the ABA and paid to the NTAI Corporation. The Minister must have regard
to the most recent estimates of the NTAI Corporation's expenditure to meet its
administrative and capital costs, approved by the Minister under subsection 65D(1). The
Minister must also have regard to the most recent approved estimates (if any have been
provided) of the NTAI Corporation's expenditure to meet the costs of making payments
to or for the benefit of Aboriginal people living in the NT and investments of the kind set
out in new paragraph 65BB(b). The Minister must also have regard to the sustainability of
debits and payments from the ABA, which is intended to ensure the Minister considers
other debits that may be needed to be drawn from the ABA pursuant to sections 64 and
64A of the Land Rights Act.
13. Section 64AA(4) is intended to provide a mechanism for ongoing funding to the NTAI
Corporation, whilst balancing its funding needs with the availability of funding from the
ABA. Whilst the Minister must have regard to certain estimates when making directions
under section 64AA(4), this does not preclude the Minister making a direction for an
amount that differs from those set out in the estimates.
Item 5 - Section 65
14. This item repeals section 65 of the Land Rights Act, which establishes the ABAAC.
15. With the NTAI Corporation established to make payments to or for the benefit of
Aboriginal people in the NT, it will replace the ABAAC and empower Aboriginal
Territorians to make the payments.
Item 6 - After Part VI
16. This Item inserts new Part VI into the Land Rights Act, which will provide for the
establishment of the NTAI Corporation and set out its structure, including its purpose,
functions, powers and governance arrangements.
Part VIA - NTAI Corporation
Division 1 - Definitions
Section 65A Definitions
17. Section 65A inserts a number of definitions for terms used in Part VIA.
Division 2 - NTAI Corporation
Subdivision A--Establishment and functions
Section 65B Establishment
18. New section 65B provides for the establishment and the constitution of the NTAI
Corporation.
13
19. Subsection 65B(1) establishes the NTAI Corporation. Subsection 65B(2) permits the
NTAI Corporation rules to specify other names by which the NTAI Corporation may be
known. Aboriginal Territorians may desire to create a new name for the NTAI
Corporation and this provision is intended to enable the Minister to provide another name
where appropriate.
20. Subsection 65B(3) establishes the NTAI Corporation as a body corporate with a seal and
provides that it can acquire, hold and dispose of real and personal property and sue and be
sued.
21. The note to subsection (3) directs the reader to the PGPA Act and notes that the PGPA
Act applies to NTAI Corporation.
Section 65BA Purposes of the NTAI Corporation
22. New section 65BA provides that the NTAI Corporation's purposes are:
a) to promote the self-management and economic self-sufficiency of Aboriginal people
living in the NT; and
b) to promote social and cultural wellbeing of Aboriginal people living in the NT.
23. The NTAI Corporation must have regard to these purposes when making investments
under paragraph 65BB(b).
Section 65BB NTAI Corporation's functions
24. New section 65BB sets out the functions of the NTAI Corporation. It provides that the
NTAI Corporation's functions will be to make payments to or for the benefit of
Aboriginal people living in the NT, to make investments in accordance with its purposes
(refer section 65BA), and to provide financial assistance other than payments or
investments, whether on commercial terms or otherwise, to or for the benefit of
Aboriginal people living in the NT. The intent of this section is to provide the NTAI
Corporation with broad functions so that it can perform its functions on a commercial
basis or a non-commercial basis as appropriate to the nature of the activity it is
undertaking at the time to fulfil its purposes.
25. Paragraph 65BB(d) provides for other functions to be prescribed by the NTAI
Corporation rules. This will enable the Minister to prescribe other functions for NTAI
Corporation by disallowable legislative instrument.
26. Paragraph 65BB(e) provides NTAI Corporation will perform any other functions
conferred on the it by the Land Rights Act or any other Commonwealth law. Paragraph
65BB(f) provides for the function to do anything incidental to, or conducive to, the
performance of NTAI Corporation's other functions.
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27. The note refers the reader to new sections 65A(4) and 65BH in relation to the definition
of and limitations on investments, which apply to the investment function set out under
paragraph 65BB(b).
Section 65BC General rules about performance of functions
28. Section 65BC sets out rules about how NTAI Corporation is to perform its functions. It
provides that in performing its functions, NTAI Corporation must have regard to its
purposes (new section 65BA refers) and the strategic investment plan in force at the
relevant time (new section 65C refers).
29. Paragraph 65BC(c) requires NTAI Corporation to act in accordance with sound business
principles whenever it performs its functions on a commercial basis. This is intended to
require sound business practices that may focus on financial return when performing its
functions on a commercial basis, but also to enable NTAI Corporation to consider non-
financial social or cultural benefits when acting non-commercially.
30. Paragraphs 65BC(d) and (e) provide that NTAI Corporation must maximise the
employment of Aboriginal people living in the NT and maximise the use of goods and
services provided by businesses owned or controlled by Aboriginal people living in the
NT when performing its functions.
Subdivision B--Powers
Section 65BD Powers
31. Section 65BD sets out the NTAI Corporation's powers. The intent of this section is to
ensure that the NTAI Corporation has a broad set of powers that enable it to perform its
functions.
32. Subsection 65BD(1) provides that the NTAI Corporation has power to do all things
necessary or convenient to be done for or in connection with the performance of its
functions.
33. Subsection 65BD(2) sets out specific powers that NTAI Corporation's powers include,
but are not limited to.
34. Paragraphs 65BD(2)(c) and (e) provide the NTAI Corporation can borrow money and
give guarantees subject to sections 65BJ and 65BK respectively, which permit the
Minister to make rules in relation to these matters with the agreement of the Finance
Minister.
35. New subsections 65BD(3), (4) and (5) provide definitions and clarifications on the scope
and use of NTAI Corporation's powers, including providing that NTAI Corporation's
powers may be exercised within or outside of Australia.
Section 65BE Payments etc. may be made subject to terms and conditions
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36. Without limiting NTAI Corporation's power to enter into arrangements under paragraph
65BD(2)(g), section 65BE provides that the NTAI Corporation may make payments or
loans, or give guarantees subject to terms and conditions determined by NTAI
Corporation.
Section 65BF Payments repayable if conditions breached etc.
37. Section 65BF provides a process for NTAI Corporation to recover payments or loans
where it is satisfied that the recipient has failed to fulfil a term or condition (see
subsection 65BE) of the payment or loan.
Section 65BG Investment of surplus money
38. Subsection 65BG(1) enables the NTAI Corporation to invest its surplus funding subject to
the limitations of section 65BH and subsection 65BG(4).
39. Together with subsection 65BG(2), the intent of subsection 65BG(1) is to permit the
NTAI Corporation to invest its surplus funds outside of the limitations of section 59 of
the PGPA Act. It is intended that the NTAI Corporation could, for example, invest its
surplus funds in a diversified financial market portfolio to make better returns whilst
those funds are not immediately required to perform its functions. The NTAI Corporation
may choose to use the returns on its financial investments over time to perform its
functions or meet its administrative or capital costs.
40. Subsection 65BG(1) and paragraph 65BB(b), which provides that making investments for
its Purposes is a function of the NTAI Corporation, do not limit each other.
Section 65BH Investment limit
41. Subsections 65BH(1) and (2) provide that the NTAI Corporation must not make an
investment that has a value of more than $100 million (or a higher amount determined by
the Minister in the NTAI Corporation rules) without the written agreement of the
Minister.
42. Subsection 65BH(3) confirms that, where the NTAI Corporation fails to comply with this
subsection, this failure will not affect the validity of the transaction. Subsections 65BH(4)
and (5) provide that the Minister may, with the written agreement of the Finance Minister,
prescribe in the NTAI Corporation rules a method for calculating the value of an
investment for the purposes of the investment limit.
43. This investment limit is intended to provide an appropriate avenue for Government
oversight of very large investments. The Minister's ability to increase the investment
limit but not decrease it recognises and safeguards the importance of empowering
Aboriginal Territorians to make payments and investments through the NTAI
Corporation's Aboriginal-led Board.
Section 65BI Loans
44. Subsection 65BI(1) provides that the NTAI Corporation rules may prescribe limits or
conditions on the making of loans by the NTAI Corporation. Subsection 65BI(2) provides
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that any rules made under new subsection (1) require the written agreement of the
Finance Minister.
45. The ability for the Minister (with agreement of the Finance Minister) to make rules about
loans provides a mechanism to manage the exposure of NTAI Corporation to credit risk.
Section 65BJ Borrowing
46. Section 65BJ sets out the conditions and circumstances under which the NTAI
Corporation can borrow money.
47. Subsection 65BJ(1) provides that the NTAI Corporation's borrowing must be authorised
by section 57 of the PGPA Act or subsection 65BJ(2).
48. Subsection 65BJ(2) provides a rule-making power, under which the Minister can make
rules (with the written agreement of the Finance Minister as required by subsection
65BJ(3)) setting out the circumstances in which the NTAI Corporation may borrow and
imposing limits or conditions on borrowing.
49. Subsection 65BJ(4) provides that the NTAI Corporation rules made for the purposes of
new subsection (2) prevail over written authorisations or rules made under paragraphs
57(1)(b) or (c) of the PGPA Act, to the extent of any inconsistency. The note below this
subsection explains for the reader the purpose of section 57 of the PGPA Act.
50. Subsection 65BJ(5) provides that a wholly-owned subsidiary of the NTAI Corporation
may borrow money from the NTAI Corporation, and that the borrowing need not comply
with rules provided for under subsection 65BJ(2).
51. Subsection 65BJ(6) provides that section 86 of the PGPA Act does not apply to
borrowings authorised by new subsection (5).
52. Subsection 65BJ(7) defines the term 'borrow' for the purposes of this part.
53. The intent of section 65BJ is to provide a mechanism for the NTAI Corporation's
borrowing powers to be tailored, whilst maintaining appropriate controls to limit financial
risks.
Section 65BK Guarantees
54. Subsection 65BK(1) provides that the NTAI Corporation may guarantee repayment of a
loan only if the loan is one that could have been made by the NTAI Corporation in
performing its functions.
55. Subsection 65BK(2) provides that a subsidiary of the NTAI Corporation must not give a
guarantee. This is intended to limit financial risk.
56. Subsection 65BK(3) permits the NTAI Corporation rules to set out requirements for the
granting of guarantees by the NTAI Corporation.
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57. Subsection 65BK(5) provides that the NTAI Corporation rules made for the purposes of
subsection 65BK(3) prevail over any rules made under section 61 of the PGPA Act to the
extent of any inconsistency. The note explains for the reader the purpose of section 61 of
the PGPA Act.
58. The intention of section 65BK is to provide a mechanism for the NTAI Corporation's
ability to issue guarantees to be tailored, whilst maintaining appropriate controls to limit
financial risks.
Section 65BL Derivatives
59. Section 65BL provides for a range of limits on the NTAI Corporation's ability to acquire
derivative financial assets to limit financial risks.
60. Subsection 65BL(1) provides that the NTAI Corporation may only acquire derivatives for
specific purposes, and prohibits the NTAI Corporation from acquiring derivatives for the
purpose of speculation or leverage.
61. Subsection 65BL(2) provides that acquisition of derivatives must be consistent with the
NTAI Corporation's strategic investment plan that is in force at the relevant time.
62. Subsection 65BL(3) provides that a subsidiary of the NTAI Corporation must only
acquire derivatives for a purpose for which the NTAI Corporation may do so under new
subsection (1).
63. The intent of section 65BL is enable the NTAI Corporation to acquire derivatives to
protect the value of its investments or achieve indirect exposure to financial assets in
connection with its investment function, whilst reducing financial risk by limiting the
circumstances in which this can occur.
Subdivision C--Miscellaneous
Section 65BM The NTAI Corporation does not have privileges and immunities of the
Crown
64. This provision provides that the NTAI Corporation does not have the privileges and
immunities of the Crown in the right of the Commonwealth.
Section 65BN Exemption from taxation
65. Subsection 65BN(1) provides that for the purposes of section 50-25 of the Income Tax
Assessment Act 1997, the NTAI Corporation is taken to be a public authority constituted
under an Australian law. The note explains for the reader that this means the NTAI
Corporation is exempt from income tax.
66. Subsection 65BN(2) provides that the NTAI Corporation is not subject to taxation under a
law of a State or Territory if the Commonwealth is not subject to the taxation.
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Division 3 - Strategic investment plan
Section 65C Strategic Investment Plan
67. Subsection 65C(1) provides that the Board of the NTAI Corporation must develop a
strategic investment plan and ensure one is in force at all times from 18 months after the
commencement of the section.
68. The strategic investment plan is intended to ensure there is transparency about the Board
of the NTAI Corporation's investment and funding priorities and to ensure accountability
to Government and the broader Aboriginal community.
69. Subsection 65C(2) provides that the strategic investment plan must set out the NTAI
Corporation's priorities and principal objectives relating to payments and financial
assistance to or for Aboriginal people living in the NT and investments (including
investment of its surplus funds) for a 3-5 financial year period.
70. Subsection 65C(5) permits the NTAI Corporation rules to set out additional matters to be
included in the strategic investment plan. This is intended to provide a mechanism for
further information to be provided to support transparent decision-making.
71. Subsection 65C(6) provides that the Board must consult with Aboriginal people living in
the NT and Aboriginal organisations in the NT and have regard to any advice provided by
the NTAI Corporation's investment committee (see subsection 65FA) when developing
the plan.
72. Subsection 65C(7) to (9) set out a process for the strategic investment plan to be tabled in
Parliament and published.
73. Subsection 65C(10) and (11) set out the process for the Board reviewing and approving a
revised strategic investment plan. Any revision must comply with the same requirements
for consultation, provision of a copy to the Minister within 30 days, tabling in Parliament
and publishing on the internet, as apply to a strategic investment plan. A revised strategic
investment plan must also comply with any rules prescribing matters that must be
addressed in a strategic investment plan.
Division 4 - Financial Arrangements
Section 65D Administrative and capital expenditure to be in accordance with approved
estimates
74. Section 65D provides for the preparation of estimates that inform the Minister's
directions to debit the ABA for amounts to be paid to the NTAI Corporation for its
administrative and capital costs under subsection 64AA(4) and govern the expenditure of
the NTAI Corporation.
75. Subsection 65D(1) provides that the NTAI Corporation must prepare estimates, in the
form and for the period of time that the Minister directs, of its expenditure to meet its
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administrative and capital costs and submit the estimates to the Minister for approval. The
note explains for the reader that the Minister must have regard to approved estimates in
directing that an amount is to be debited from the ABA under subsection 64AA(4).
76. The intention of subsection 65D(1) is to provide a process for the NTAI Corporation to
inform the Minister of funding needed to meet its administrative and capital costs. For
example, in practice this may include informing the Minister of funding needed to meet
its administrative or capital costs for a period of time and, where necessary, separately
inform the Minister of additional funding needed to supplement existing funding directed
under subsection 64AA(4) to meet unforeseen expenditure requirements
77. Subsection 65D(3) provides that, subject to subsection (4), the NTAI Corporation's
expenditure on administrative and capital costs must be in accordance with the estimates
approved by the Minister. Subsection 65D(4) provides that expenditure of the NTAI
Corporation in relation to an item in the approval estimates may exceed the approved
estimates by up to 20 per cent. Subsection 65D(5) provides that the NTAI Corporation's
expenditure on matters related to approved estimates must not exceed the total amount of
expenditure provided for by those estimates.
78. New subsection (6) clarifies that the NTAI Corporation must still prepare budget
estimates as required under section 36 of the PGPA Act.
Section 65DA The NTAI Corporation may submit estimates of beneficial payments and
investments
79. Section 65DA provides for the preparation of estimates by the NTAI Corporation to meet
its costs of making payments to or for the benefit of Aboriginal people living in the NT
and investments of the kind mentioned in paragraph 65BB(b) that inform the Minister's
directions to debit the ABA under subsection 64AA(4).
80. Subsection 65DA(1) provides that the NTAI Corporation may prepare estimates of its
expenditure to meet its costs of making payments to or for the benefit of Aboriginal
people living in the NT (see section 65BB(a)) or investments (see section 65BB(b)) and
submit the estimates to the Minister for approval. The note explains for the reader that the
Minister must have regard to approved estimates in directing that an amount is to be
debited from the ABA under subsection 64AA(4).
81. Subsection 65DA(4) clarifies that the NTAI Corporation must still prepare budget
estimates as required under section 36 of the PGPA Act.
82. The purpose of this new section is to provide the NTAI Corporation with a mechanism
through which to request funding under new section 64AA to meet its costs of making
payments to or for the benefit of Aboriginal people living in the NT or for making
investments under new section 65B(b).
Division 5 - Board of the NTAI Corporation
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Subdivision A--Establishment and functions
Section 65E Establishment and functions of the Board
83. Section 65E provides for a Board of the NTAI Corporation, which must ensure the
proper, efficient and effective performance of the NTAI Corporation's functions (see
section 65BB). The Board must also develop and revise strategic investment plans (see
section 65C). The Board may delegate its functions and powers to the CEO or
committees, with some limitations (see section 65JA).
Section 65EA Membership
84. Section 65EA provides for the composition of the Board: two Board members appointed
by each of the Land Councils (see subsection 65EB(1)); one Board member appointed by
the Minister (see subsection 65EC(1)) and one appointed by the Minister for Finance (see
subsection 65EC(2)); and two independent members appointed by the Board (see
subsection 65ED(1)).
85. The purpose of this section is to ensure that Board membership strikes a balance between
Aboriginal representation, expertise and independence, reflecting best practice
governance practice. It ensures Aboriginal control of the Board, while also providing for
appropriate oversight by the Commonwealth and financial and business, land and water
management expertise. Eligibility requirements for these three categories of Board
membership are set out at sections 65EB, 65EC and 65ED.
Subdivision B--Appointment of Board members by Land Councils
Section 65EB Appointment of Board members by Land Councils
86. Section 65EB sets out the process of election and appointment of the Land Council Board
members. The Land Councils are those established under the Land Rights Act, namely:
the NLC, CLC, ALC and TLC.
87. Subsection 65EB(1) requires the Land Councils to each appoint two members to the
Board.
88. Subsection 65EB(2) provides that Land Council Board members must be members of the
Land Council (section 29 refers). This may include the Chair and Deputy Chair of the
Land Council (see subsection 65EB(5).
89. Subsection 65EB(3) provides that a Land Council member is not eligible for appointment
to the Board if they have previously been suspended from the Board, without that
suspension being revoked (see section 65EO).
90. Subsection 65EB(4) provides for Land Councils to determine an election process to
appoint their members.
91. Drawing the Land Council Board members from the membership of the Land Councils
ensures consistency with the architecture of the Land Rights Act, whereby ABAAC
21
representatives were drawn from the Land Council membership. It ensures there is a
specific forum (Council meetings) in which Land Council Board members can be held to
account for their performance, and provides a sufficiently large pool of candidates from
which to elect a qualified person.
Section 65EC Appointment of Board members by Commonwealth Ministers
92. Section 65EC provides that the Minister and the Finance Minister must each appoint a
member of the Board. These appointees must have expertise in either or both land, water
or environmental management, or business or financial management. The expertise
requirements for Government appointed directors and intended to support a wide range of
expertise on the Board.
Section 65ED Appointment of independent Board members by the Board
93. Subsection 65ED(1) requires the Board to appoint two independent members to the
Board.
94. Subsection 65ED(2) provides that in making these appointments the Board must have
regard to: the desirability of reflecting diversity among the Board; the independence of
the appointees from the Land Councils and Commonwealth and NT Government; and
whether the appointees have a real or perceived material personal interest that would
conflict with their independent status.
95. Subsection 65ED(3) provides that the independent directors must have expertise in either
or both land, water or environmental management, or business or financial management.
96. Subsection 65ED(4) provides that a person is not eligible for appointment as an
independent Board member if they are a current member or staff member of a Land
Council, or have been in the past twelve months.
97. Section 65ED enshrines the role of an independent Board member on the Board to
support Board decision-making by providing an independent point of view. According to
best practice for Board compositions, independent members should be free of interests
and influences that would impact on their ability to bring an independent judgement to
bear on issues before the Board.
Section 65EE Basis on which Board members hold office
98. Section 65EE provides that all Board members (this includes the Chair) hold office on a
part-time basis.
Section 65EF Chair
99. Section 65EF requires that at its first Board meeting, the Board must elect a Chair from
amongst its members. If there is a vacancy in the position, the Board must elect a new
Chair at any meeting (see subsection 65EF(2)).
Section 65EG Term of appointment
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100. Subsection 65EG(1) requires that a Board member's term be set out in the instrument
of appointment and cannot exceed three years.
101. Subsection 65EG(2) provides that a Board member cannot hold office for a total
period of more than nine years, including all periods of previous appointments whether
consecutive or not. This time limit ensures members can gain sufficient experience to
enhance the performance of the Board, but also ensures a turn-over of members.
Section 65EH Acting appointments
102. Subsection 65EH(1) allows the responsible entity for a Board member (which is the
entity that appoints the Board member) to appoint an acting Board members should a
Board member be absent or unable to perform their duties, or when there is a vacancy in
the office of the Board member.
103. The note confirms that rules that apply to acting appointments are set out at sections
33AB and 33A of the AI Act, including that an acting appointment must not exceed 12
months.
104. Subsection 65EH(2) provides that the Land Councils cannot appoint a person to act as
a Land Council Board member unless that person meets the eligibility requirements for a
Land Council Board member under subsection 65EB(1).
Subdivision C--Terms and conditions of appointment
Section 65EI Disclosure of interests - Board members other than independent members
105. The PGPA Act and the Public Governance, Performance and Accountability Rule
2014 require that Board members disclose all material personal interests that relate to the
affairs of the entity to other members of the Board. New subsection 65EI(1) imposes an
additional requirement that Land Council Board members and the two government-
appointed members must also disclose their interests to their responsible entity. New
subsection 65EI(3) clarifies that the obligations under section 29 of the PGPA Act are not
taken to be complied with if the obligations under subsection 65EI(1) are not fulfilled.
106. The purpose of new section 65EI is to increase transparency regarding disclosures of
interests, by requiring that Land Council Board members disclose their interests to the
relevant Land Council, and government-appointed members disclose their interests to the
relevant Minister. This section does not need to apply to independent Board members as
disclosure to the Board is also disclosure to their responsible entity.
Section 65EJ Remuneration and allowances
107. Subsection 65EJ(1) provides that a Board member is to be paid the remuneration that
is determined by the Remuneration Tribunal. In the absence of a determination, the
remuneration will be determined in the NTAI Corporation rules.
23
108. Subsection 65EJ(2) provides that allowances to be paid to a Board member will be
prescribed in the NTAI Corporation rules.
109. Subsection 65EJ(3) provides that subsections 65EJ(1) and (2) have effect subject to
the RT Act (see subsection 7(11) of the RT Act).
110. Subsection 65EJ(4) confirms that if a Land Council Chair is appointed as a Land
Council Board member, that person must not be remunerated as a Board member (see
subsection 7(11) of the RT Act).
Section 65EK Leave of absence
111. Section 65EK provides that the responsible entity for a Board member may grant their
appointed member a leave of absence, with terms and conditions at their discretion.
Section 65EL Resignation of Board members
112. Subsection 65EL(1) provides that a Board member may resign by providing their
resignation in writing to their responsible appointing entity.
113. Subsection 65EL(2) provides that the Board member must also give a copy of the
resignation to the Board (except for the two independent members referred to at
subsection 65EA(d) for whom the Board is the responsible entity).
114. The resignation takes effect from the day it is received by the responsible appointing
entity, or the later date specified.
115. Section 65EK confirms that the primary obligation of the Board member in relation to
matters concerning their appointment is to the responsible entity and also ensure the
Board is kept informed of any resignations.
Section 65EM Board code of conduct
116. Section 65EM requires that the Board determine, and publish on the internet, a code
of conduct for the Board.
117. The purpose of this section is to provide for the Board code of conduct as a key
governance tool that allows the Board to set out the governance processes and standards
by which they will hold each other to account. Publication of the code of conduct will
also increase accountability by ensuring others understand the expected standards and
behaviour for the Board.
118. It is intended that the code of conduct may set out the role, standards and
responsibilities of Board members, including the Chair, consistent with the Land Rights
Act and the PGPA Act.
Section 65EN Termination of appointments
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119. Subsections 65EN(1) and (2) provide that the responsible entity for a Board member
may terminate the member's appointment for misbehaviour, incapacity or illness,
bankruptcy, absence from three meetings without leave or a serious breach of the code of
conduct.
120. The Board can terminate the two independent members, on the grounds set out in
subsections 65EN(1) and (2).
121. Paragraph 65EN(2)(d) provides that the Board can terminate the two independent
members, if the Board is no longer confident of their independence, as set out at
paragraphs 65ED(2)(b) or (c).
a) As a matter of best practice governance, the independence of the two independent
members should be regularly reviewed by the Board. The intent of this provision is to
empower the Board to terminate an independent member if the Board becomes aware
of circumstances that may impact on the independence of an independent member
(paragraph 65ED(2)(b) and (c) refers).
122. Subsection 65EN(4) provides that an independent member must not be present while
the matter of their termination is being considered, or voted upon.
123. Subsection 65EN(5) provides that members appointed by a Land Council are
terminated by force of this subsection if the Land Council Board member ceases to be a
Land Council member as result of a disqualifying event (for example certain criminal
convictions, subsection 29(4) refers).
124. Subsection 65EN(6) provides that a Land Council must terminate their respective
Board member if the Land Council is satisfied the Board member is no longer a member
of the Land Council (section 29 refers), other than because of a disqualifying event.
125. Each responsible entity has the power to terminate their members, meaning the Board
is only able to directly terminate the two independent members.
Subdivision D--Meetings of the Board
Section 65EO Suspension of Land Council Board members
126. Section 65EO enables the Board to suspend the appointment of a Land Council
member in certain circumstances (subsections 65EO(1) and (2) refer), similar to those for
termination (section 65EN refers).
127. Subsection 65EO(3) provides that a Land Council Board member may only be
suspended if a majority of the Board agrees, including agreement by at least one
government-appointed member (subsection 65EC(1) refers), and one independent
member (subsection 65ED(1) refers).
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128. Subsection 65EO(4) provides that the Land Council Board member whom the Board
is considering suspending must not be present for deliberations or the vote on their
suspension.
129. A suspension may be revoked under subsection 65EO(6) and the procedural
requirements at subsections 65EO(3) and (4) apply in relation to a revocation of a
suspension in the same way as they apply in relation to a suspension.
130. This provision also sets out the process for informing the relevant Land Council of the
suspension, and revocation of a suspension (subsections 65EO(5) and (8) refer). The
effect of paragraph 65EO(5)(b) is that, if a Land Council Board member's appointment is
suspended, the office of the Board member is taken to be vacant until the earlier of the
period of appointment expires or the Board revokes the suspension. During this vacancy,
the relevant Land Council may appoint an acting Board member under subsection
65EH(1).
131. This provision is necessary because it allows the Board to act quickly to preserve the
integrity of the Board, where a Land Council member engages in the conduct described in
subsections 65EO(1) and (2). Once notified, the relevant Land Council can either
terminate that Board member and appoint a new member, appoint an acting member, or
leave the position vacant until the term expires.
132. This provision only applies to Land Council appointed members of the Board to
enable their termination to be considered by the Land Council. It does not apply to
independent members because the Board has the power to terminate those members
directly (new section 65EN refers). It does not apply to government-appointed Board
members. It is anticipated that the Board would notify the relevant Minister of any
grounds for termination and seek Ministerial action in order to maintain the
Commonwealth's role in appointing and terminating its directors.
Section 65EP Other terms and conditions of Board members
133. Section 65EP provides that the Minister can determine terms and conditions for Board
members in respect of matters not provided for by the Land Rights Act.
Section 65EQ Convening meetings
134. Subsections 65EQ(1) and (2) provides that the Board must hold such meetings as are
necessary for the efficient performance of its function, but no less than three per year. The
Chair is responsible for convening meetings, but in the event that there is a vacancy in the
office of the Chair, the Chair is on a leave of absence, or the Chair is unable to convene a
meeting, the Minister may convene a meeting if they consider the circumstances require it
(subsection 65EQ(2) and (3)).
Section 65ER Presiding at meetings
135. Section 65ER provides that the Chair must preside at meetings or if the Chair is not
present the Board may appoint one of themselves to preside at that meeting. The voting
26
rights of the Chair or person presiding are the same as other Board members (subsection
65ET(2) refers).
Section 65ES Quorum
136. Section 65ES sets out the quorum requirements for meetings of the Board. Quorum
comprises: half of the Land Council Board members holding office, one of the two
government-appointed members, one of the two independent members (if there is such a
member), and at least one other member. These quorum requirements ensure participation
from all three categories of Board members, bringing representation, independence and
expertise to all decisions of the Board. It also provides some necessary flexibility in the
rare event that both independent Board member positions are temporarily vacant, and
quorum is required to appoint new members.
137. Subsection 65ES(2) allows for the quorum requirements to be satisfied if a Board
member is required to be absent for a particular deliberation and vote (such as a material
personal interest has been declared, reappointment of an independent member, or for
consideration of suspension or termination), and their absence affects quorum
requirements. For the purposes of that particular matter, the quorum requirements is
considered to be met by the remaining directors present. This ensures that the Board can
make critical decisions when a quorum may not be present.
Section 65ET Voting at meetings
138. Section 65ET provides that decisions of the Board are to be determined by majority
vote of the Board members present and voting. The Chair, or person presiding, has a
deliberative vote, but does not have a casting vote. Best practice governance
arrangements dictate that the Chair should not have the casting vote which delivers the
power to unilaterally determine the outcome in the event of a tied vote. Instead, where
there is a deadlock of the Board, then further information should be put to the Board until
the matter can be resolved.
Section 65EU Observers
139. To ensure that the Board has access to high level advice and a clear line of
communication with the administrative arm of the Land Councils, new section 65EU
provides that the four Land Council CEOs can attend Board meetings but may not vote.
Section 65EV Conduct of Meetings
140. Section 65EV provides for the Board to regulate proceedings at its meetings, as
appropriate, subject to any requirements of Part VIA of the Land Rights Act.
Section 65EW Minutes
141. Section 65EW provides that the Board must keep minutes of its meetings.
Section 65EX Decisions without meetings
142. Section 65EX provides that the Board may determine the method for making
decisions without meeting. This allows the Board to adopt agreed processes to make
decisions without convening face-to-face meetings.
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Division 6 - Committees
Section 65F Establishment of committees
143. Section 65F allows the Board to establish committees to provide advice or assist in
the performance of the NTAI Corporation's functions or the Board's functions.
Section 65FA Investment committee
144. Section 65FA requires the Board to establish an Investment committee. This is a
critical mechanism for ensuring the Board and the NTAI Corporation have access to
additional expert advice regarding investments and funds management to maximise
returns and ensure sound financial management, and to provide advice on the strategic
investment plan. The Board must have regard to the advice of the Investment committee
regarding a strategic investment plan (paragraph 65C(6)(b) refers).
145. Subsection 65FA(3) provides that the Investment committee must comprise no less
than four members, at least two of whom must have expertise in business or financial
management and must be external to the Board. Subsection 65FA(5) provides that the
member appointed by the Finance Minister, and one independent member are required to
be members of the Investment committee.
Section 65FB Audit committee must include independent Board member
146. In addition to the requirements of section 45 of the PGPA Act, this provision requires
that one independent Board member must be included on the NTAI Corporation's Audit
committee. An independent Board member will contribute an additional independent
perspective to the Audit committee while also acting as a critical link between the Audit
committee and the Board.
Section 65FC Remuneration and allowances
147. Consistent with the remuneration process for Board members, section 65FC provides
that the Remuneration Tribunal will determine the remuneration of members of a
committee established by the Board to advise or assist in the performance of the NTAI
Corporation's or the Board's functions (pursuant to section 65F). This includes the
Investment committee and the Audit committee. In the absence of a determination the
remuneration will be determined by the Minister in the NTAI Corporation rules (section
65JE refers). Committee allowances will be prescribed in the NTAI Corporation rules.
Section 65FD Committee members are officials of the NTAI Corporation
148. Section 65FD confirms that all committee members are deemed to be officials of the
NTAI Corporation for the purposes of the PGPA Act, and are therefore subject to the
duties and requirements of that Act.
Division 7 - CEO of the NTAI Corporation
Section 65G CEO of the NTAI Corporation
149. Section 65G provides for the position of the CEO of the NTAI Corporation.
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Section 65GA Functions of the CEO
150. The functions of the CEO are set out in new section 65GA. The CEO is responsible
for the day-to-day administration of the NTAI Corporation, and must act in accordance
with policies and directions of the Board (subsections 65GA(2) and (3)).
151. Subsection 65GA(6) clarifies that a policy or direction given in writing by the Board
is not a legislative instrument. This subsection is included to assist readers, as the relevant
instrument is not a legislative instrument within the meaning of section 8 of the LA Act.
Section 65GB Appointment
152. Section 65GB provides that the Board can appoint the position of CEO of the NTAI
Corporation, with the written agreement of the Minister. The same process applies for
appointing an acting CEO (new section 65GC refers) and termination of the CEO (new
section 65GI refers). The CEO position is full-time, and the period of appointment must
not exceed five years, although reappointment is allowed (see section 33AA of the AI
Act).
153. The CEO is the highest executive officer in the NTAI Corporation and may exercise
the functions of the Board, where delegated. The CEO will report directly to the Board.
This appointment process ensures there is a clear employment relationship and line of
accountability between the CEO and the Board. It also ensures Commonwealth oversight
of the appointment, as the appointment cannot be confirmed without the agreement of the
Minister, and, further, the Minister must agree the CEO code of conduct which must be
developed by the Board (section 65GH refers). To ensure independence and a clear
separation of powers, a person is not eligible to be the CEO if they are a staff member of
a Land Council, a member of a Land Council or a current member of the Board of the
NTAI Corporation (subsection 65GB(4) refers).
Section 65GC Acting appointments
154. Section 65GC provides for an acting CEO to be appointed in specified circumstances.
The eligibility requirements of an acting CEO are set out at subsection 65GC(2) and
match those of a CEO (subsection 65GB(4) refers). Consistent with the appointment of
the CEO, the appointment of an acting CEO is made by the Board with the written
agreement of the Minister.
Section 65GD Other paid work
155. Section 65GD provides that the CEO must not engage in other paid work outside of
the duties of the CEO's office without the approval of the Board.
Section 65GE Remuneration and allowances
156. Section 65GE provides that the Board will determine the remuneration and other
allowances to be paid to the CEO, and confirms that the office of the CEO is not a public
office for the purposes of the RT Act. See also new section 65GF regarding leave.
Section 65GF Leave of absence
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157. Section 65GF provides that the Board sets the recreational leave entitlements for the
CEO, and may grant a leave of absence, other than recreation leave, on the terms and
conditions as to remuneration or otherwise that the Board determines.
Section 65GG Resignation
158. Section 65GG provides that the CEO may resign by giving a written notice to the
Board, and a copy to the Minister. The resignation takes effect on the day received by the
Board or a later date so specified.
Section 65GH CEO Code of Conduct
159. Section 65GH provides that the Board must determine code of conduct for the CEO,
which must be approved by the Minister, and published on the internet. Both the Board
and the Minister contribute to this important tool for managing the performance and
conduct of the CEO, a serious breach of which can be grounds for termination of the CEO
appointment (paragraph 65GI(2)(e) refers).
Section 65GI Termination of appointment
160. Consistent with the appointment process, section 65GI provides that the Board may
only terminate a CEO's appointment with the written agreement of the Minister. Grounds
for termination are set out at subsections 65GI(1) and (2) and include a serious breach of
the code of conduct.
Section 65GJ Disclosure of interests
161. Section 65GJ requires that the CEO provide disclosures of interest, as required under
section 29 of the PGPA Act, in writing to the Board. A copy must be given to the
Minister (subsection 65GJ(2) refers). This process continues the policy intent that while
the CEO is clearly accountable to the Board, there is appropriate government oversight of
the position.
Section 65GK Other terms and conditions
162. Section 65GK gives the Board the authority to determine any other required terms and
conditions relating to the CEO holding office.
Division 8 - Staff and consultants
Section 65H Staff
163. Section 65H provides that the CEO can, on behalf of the NTAI Corporation, employ
staff as necessary, and determine their terms and conditions. The CEO may also negotiate
for officers or employees of the Commonwealth or state or territory public servants, to be
made available to the NTAI Corporation.
Section 65HA Consultants
164. Section 65HA provides that the CEO can, on behalf of the NTAI Corporation, engage
consultants as necessary, and determine the terms and conditions.
Division 9 - Miscellaneous
30
Section 65J Delegation by the NTAI Corporation
165. Section 65J deals with the ability of the NTAI Corporation to delegate its powers and
functions. Subsection 65J(1) permits the NTAI Corporation to delegate any of its powers
or functions, either under the Land Rights Act or under other legislation. Subsection
65J(1) requires that, where the NTAI Corporation seeks to exercise this power, it must do
so in writing under its seal. The NTAI Corporation may only delegate its powers and
functions to a Committee mentioned in Division 6 of Part VIA or the CEO of the NTAI
Corporation.
166. As a body corporate, the NTAI Corporation's powers and functions will largely be
exercised by the Board. However, it is necessary for the NTAI Corporation to be able to
delegate its powers and functions so that other senior persons in the NTAI Corporation
are able to perform these functions and powers where they cannot be performed by the
Board. This will assist in the efficient operation of the NTAI Corporation. The NTAI
Corporation may only delegate to the specified delegates. They are best placed to exercise
the powers and functions of the NTAI Corporation as they are suitably qualified and have
oversight of the operation of the NTAI Corporation (or significant parts of the operation
of the NTAI Corporation).
167. Subsection 65J(2) provides that, in exercising delegated functions or powers, the
delegate must comply with any directions imposed by the NTAI Corporation.
Section 65JA Delegation by Board
168. Section 65JA deals with the Board's ability to delegate its powers and functions.
Subsection 65JA(1) permits the Board to delegate all or any of its powers or functions
under the Land Rights Act, except those under Division 7. Under this Division, the Board
has several powers and functions in relation to the CEO. As the CEO is responsible and
accountable to the Board, the Board is responsible for exercising these powers. It would
also be inappropriate for a delegate, who may be subordinate to the CEO, to exercise
these particular powers and functions.
169. Where the Board seeks to delegate its delegable powers and functions, it must do so in
writing. The Board may only delegate its delegable powers and functions to a Committee
mentioned in Division 6 of Part VIA or the CEO of the NTAI Corporation. This ability to
delegate ensures that senior persons in the NTAI Corporation may perform the functions
of the Board, where the Board is unable to do so or where it would be administratively
beneficial for senior members to perform these functions. This allows the NTAI
Corporation to continue to operate efficiently and effectively.
170. Subsection 65JA(2) provides that, in exercising delegated functions or powers, the
delegate must comply with any directions imposed by the Board.
65JB Delegation by CEO
171. Section 65JB deals with the CEO's ability to delegate their functions and powers.
Subsection 65JB(1) permits the CEO to delegate, in writing, any of their functions under
31
the Land Rights Act to a member of staff of the NTAI Corporation referred to in section
65H. Subsection 65JB(3) requires that before delegating a power or function, the CEO
must have regard to:
a) if the power or function is to be delegated to a person holding, occupying or
performing the duties of, a specified office or position - whether the office of position
is sufficiently senior for the person to exercise the power or perform the function; or
b) otherwise - whether the person has appropriate qualifications or expertise to exercise
the power or perform the function.
172. This ensures that the CEO's powers and functions are delegated to members of staff
who have appropriate qualifications, expertise and oversight of the operation of the NTAI
Corporation (or substantial parts of the operation) to effectively and competently perform
the functions and powers of the CEO. The CEO is empowered to delegate her or his
powers and functions to senior members of staff to ensure the efficient and effective
operation of NTAI Corporation, particularly where it would be administratively beneficial
for a delegate to exercise a power or function for the CEO, or where the CEO is unable to
perform the power or function.
173. Subsection 65JB(2) provides that, in exercising delegated functions or powers, the
delegate must comply with any directions imposed by the CEO.
Section 65JC Annual report
174. As a Commonwealth entity for the purposes of the PGPA Act, the NTAI Corporation
will be required to prepare an annual report for the purposes of section 46 of the PGPA
Act. New section 65JC provides that the NTAI Corporation rules may prescribe matters
that must be included in the report. This will enable the annual report to cover matters
relating to the NTAI Corporation's activities that may be of particular interest to the
Commonwealth, the Parliament, and the public.
Section 65JD Review of operation of this Part
175. New section 65JD provides for the operation of Part VIA to be reviewed. Subsection
65JD(1) requires the Minister to cause a review of the operation of Part VIA to be
undertaken as soon as possible after the end of 7 years after the Part commences (see
table item 2 in subsection 2(1) for the commencement date of this Part). It is intended
that, in causing a review to be undertaken, the Minister may identify particular matters
relating to the operation of Part VIA that should be considered in the review. Reviewing
the operation of the Part will provide an opportunity to review whether it enables the
NTAI Corporation to operate effectively.
176. Subsection 65JD(2) requires the person undertaking the review to give a written
report to the Minister that must not include commercially sensitive information. This is
because, under subsection 65JD(3), the Minister is required to cause a copy of the report
to be tabled in each House of Parliament within 15 sittings days of the relevant House
after the report is given to the Minister.
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Section 65JE The NTAI Corporation rules
177. New section 65JE enables the Minister to make rules, in the form of a legislative
instrument, prescribing matters required or permitted by Part VIA to be prescribed or
necessary or convenient to be prescribed for carrying out or giving effect to Part VIA.
These rules are called the NTAI Corporation rules and may include the ability to:
a) change the name or acronyms by which the NTAI Corporation is known (see
subsection 65B(2));
b) confer additional functions on the NTAI Corporation (see paragraph 65BB(d));
c) specify a higher amount for the value of a particular investment and prescribe a
method for working out the value of an investment (see section 65BH);
d) prescribe matters in relation to a number of the NTAI Corporation's powers (see
sections 65BI, 65BJ and 65BK);
e) prescribe matters that must be included in a strategic investment plan (see subsection
65C(5));
f) specify matters that must be included in the NTAI Corporation's annual report (see
section 65JC); and
g) prescribe remuneration and allowances for Board members in particular
circumstances (see section 65EJ).
178. Providing the ability to prescribe these matters in rules allows the Minister to adapt
particular requirements relating to the NTAI Corporation to changing circumstances.
They are also limited in scope to prescribing matters in addition, or supplementary, to
matters set out in the Bill.
179. Dealing with these matters in rules rather than regulations accords with the Office of
Parliamentary Counsel's Drafting Direction No. 3.8--Subordinate legislation. That
Drafting Direction states that 'OPC's starting point is that subordinate instruments should
be made in the form of legislative instruments (as distinct from regulations) unless there
is good reason not to do so'.
180. The Drafting Direction states that matters such as compliance and enforcement, the
imposition of taxes, setting amounts to be appropriated, and amendments to the text of an
Act, should be included in regulations unless there is a strong justification otherwise. The
Bill does not enable rules to provide for any of these matters. This is clarified by
subsection 65JE(2) that specifically prevents rules from including these types of matters.
33
181. Subsection 65JE(1) also clarifies that the rules made under section 65JE are a
legislative instrument for the purposes of the LA Act. Under that Act, legislative
instruments and their explanatory statements must be tabled in both Houses of the
Parliament within 6 sitting days of the date of registration of the instrument on the
Federal Register of Legislation. Once tabled, the rules will be subject to the same level of
parliamentary scrutiny as regulations (including consideration by the Senate Standing
Committee for the Scrutiny of Delegated Legislation), and a motion to disallow the rules
may be moved in either House of the Parliament within 15 sitting days of the date the
rules are tabled.
182. Subsection 65JE(3) clarifies that rules that are inconsistent with the regulations have
no effect to the extent of the inconsistency, but the rules are taken to be consistent with
the regulations to the extent that the rules are capable of operating concurrently with the
regulations.
Item 7 - Subsection 76(1)
183. Item 7 amends subsection 76(1) of the Land Rights Act to extend Part VIA to this
subsection. The effect of this amendment is that it will allow the Minister to delegate all
functions and powers conferred by Part VIA except those set out in paragraphs 76(1)(a) to
(i) to the CEO of the NIAA or an SES, or acting SES, officer in the NIAA (see the Acts
Interpretation Substituted Reference Order 2017).
Item 8 - Subsection 76(1)
184. Item 8 amends subsection 76(1) to include a new list of provisions that specify non-
delegable functions or powers of the Minister. This list includes the existing
non-delegable functions and powers in section 19A of the Land Rights Act.
185. Certain Ministerial functions and powers in relation to the NTAI Corporation are non-
delegable as they provide mechanisms for appropriate Government oversight of the NTAI
Corporation and are most appropriately exercised by the Minister. They include:
a) appointment of a Board member (section 65EC(1) refers);
b) agreeing to the appointment or termination of the CEO (subsections 65GB(1) and
65GI(1) or (2) refer); and
c) the making of rules relating to loans, borrowing and guarantees (sections 65BI, 65BJ,
65BK refer).
186. It is appropriate that all the Minister's other functions and powers in relation to the
NTAI Corporation are delegable as they relate to administrative functions and powers that
can be efficiently performed by a delegate. For example, delegable functions and powers
include:
34
a) determining other terms and conditions on which Board members hold office (section
65EP refers);
b) convening a Board meeting if circumstances require it (section 65EQ refers);
c) specifying matters that must be included in the annual report (section 65JC refers);
and
d) causing a review of the operation of this part of the Bill (section 65 JD refers).
Items 9 and 10 - Paragraphs 77(1)(b) and 77(1)(c)
187. Items 9 and 10 are consequential amendments to section 77 as a result of the repeal of
section 65 of the Land Rights Act (see item 5 of Part 1 of Schedule 1).
Part 2 - Transitional arrangements for the NTAI Corporation
Item 11 - Definitions
188. This item inserts definitions required for the transitional period, namely interim
Board, Interim Board commencement day, the NTAI Corporation commencement day,
principal Act, and transition period.
Item 12 - Making Land Council and Ministerial Board appointments before Interim Board
commencement day
189. Item 12 requires that the four NT Land Councils (under new subsection 65EB(1) and
the two Commonwealth Ministers (under new subsections 65EC(1) and (2)) must appoint
their Board members before the Minister declares the interim Board commencement day.
Sub-item 12(4) requires the Minister to determine, by notifiable instrument, a day during
the transition period to be the commencement day for the Interim Board. This instrument
is a notifiable instrument as it merely applies the law at a specific time.
190. These transitional provisions allow the interim Board to progress certain critical
governance and management features of the NTAI Corporation before it comes into
existence. This will ensure the NTAI Corporation is able to function effectively from
commencement day.
Item 13 - Interim Board - First meeting and election of interim Chair
191. Item 13 provides that the Minister can convene the first meeting of the Interim Board,
and that the Interim Board must, at its first meeting, elect an interim Chair to convene
meetings as necessary. The interim Chair holds office from that election until a Chair is
elected under new section 65EF of the Land Rights Act which requires that the Board
must elect a Chair at its first meeting. The interim Chair can preside at that meeting until
the Chair is appointed.
192. At the first meeting of the Interim Board the members comprise the Land Council
Board members and the government-appointed members (given the appointment of the
35
independent members is a required function of the Interim Board, item 14 refers). Sub-
item 13(8) provides for an amended quorum for the Board during the transition period.
The transitional quorum does not require the presence of independent members given the
Board will need to meet to appoint those members.
Item 14 - Interim Board to appoint independent Board members before the NTAI
Corporation commencement day
193. Item 14 requires that the Interim Board appoint two independent members to the
Board (new subsection 65ED(1) in the principal Act refers) before the NTAI Corporation
commencement day. Once appointed they become members of the Interim Board. These
appointments are taken to be appointments to the Board under the principal Act on NTAI
Corporation commencement day.
Item 15 - Interim Board to establish investment committee
194. Item 15 requires that the Interim Board, after the appointment of at least one
independent member, establish an investment Committee and appoint members to the
Committee. This must be done before the NTAI Corporation commencement day. The
Investment Committee takes effect on the NTAI Corporation commencement day.
Item 16 - Appointment of acting CEO
195. Item 16 provides that the Interim Board may, after the appointment of at least one
independent member, appoint an acting CEO, whose appointment commences on the
NTAI Corporation commencement day. The appointment process is the same as that for a
CEO (new section 65GB in the principal Act refers) with the Board making the
appointment with the written agreement of the Minister. Given recruitment processes can
take time, this transitional arrangement will ensure that an acting CEO is appointed and
can commence when the NTAI Corporation is established.
Item 17 - Remuneration and allowances for interim Board members
196. Item 17 provides that payments may be debited from the ABA to cover the
remuneration and allowances of the Interim Board, which will be determined by the
Minister by legislative instrument. Once the NTAI Corporation has commenced, the
Board remuneration will be provided for be new section 65EJ in the Land Rights Act.
Item 18 - Development of first strategic investment plan
197. Item 18 requires the Board to approve the first strategic investment plan within 18
months from the NTAI Corporation commencement day, and clarifies that the first plan
comes into force on the day the Board approves the plan and remains in effect until the
date referred to in the plan. This provision is required for the first plan because new
section 65C in the Land Rights Act requires the Board to approve a new plan at least 6
months before it commences, and that the plan is in force for the period to which it
relates. It is appropriate that the Board be allowed up to 18 months to approve the first
plan, given the requirement for consultation with Aboriginal people and organisations in
the NT, and with the Investment Committee (new paragraphs 65C(6)(a) and (b) refers).
Item 19 - Minister may request progress reports on strategic investment plans
36
198. While under the PGPA Act the Minister may require information relating to the
activities of the NTAI Corporation, this item makes explicit that the Minister may request
regular progress reports on the strategic investment plan that is in force for the first three
years, and permits these to be published on the internet.
Item 20 - Abolition of the ABAAC
199. Item 20 confirms that the Minister may have regard to the advice of the ABAAC on
potential payments when deciding whether to direct amounts to be paid or applied from
the ABA under subsection 64(4) of the Land Rights Act after the repeal of section 65
(that establishes the ABAAC). This means the ABAAC can meet during the period of the
interim Board and its advice can be considered by the Minister for a payment after the
NTAI Corporation has commenced and the ABAAC has been abolished. This is required
in the transition period so that payments can continue while the NTAI Corporation
establishes its own payments processes. Section 65 will be repealed on a day set by
Proclamation, which is also the commencement day for the NTAI Corporation.
37
Schedule 2 - Mining
Part 1 - Amendments
Aboriginal Land Rights (Northern Territory) Act 1976
Item 1 - Subsection 3(1) (paragraph (a) of the definition of exploration licence)
200. This item would repeal paragraph (a) 'prospecting authority' from the definition of an
exploration licence at subsection 3(1) of the Land Rights Act. 'Prospecting authority' is
being removed from the Land Rights Act as this mineral title can no longer be issued
under NT legislation, and there are no extant 'prospecting authorities' in the NT.
Item 2 - Subsection 3(1) (after paragraph (c) of the definition of exploration licence)
201. This item would add to the definition of an exploration licence in the Land Rights Act
at subsection 3(1), both a mineral exploration licence and a geothermal exploration permit
granted under the MT Act and GE Act respectively. The proposed changes to subsection
3(1) are intended to bring the terms and definitions in the Land Rights Act into alignment
with current NT legislation, particularly the GE Act and the MT Act. The explicit
reference to titles granted under NT legislation will remove doubt in respect of their
inclusion in the definition of exploration licence.
Item 3 - Subsection 3(1) (subparagraph (d)(ii) of the definition of exploration licence)
202. This item is a consequential amendment to allow for further items to be added to the
definition of exploration licence at subsection 3(1) of the Land Rights Act.
Item 4 - Subsection 3(1) (at the end of the definition of exploration licence)
203. This item would remove an extractive mineral exploration licence granted under the
MT Act from the definition of an exploration licence at subsection 3(1) of the Land
Rights Act. Processes for the administration of extractive mineral exploration licences are
provided for under section 19 of the Land Rights Act. The explicit exclusion of extractive
mineral exploration licences from the definition of an exploration licence will remove
doubt as to the appropriate process for administering this type of title under the Land
Rights Act.
Item 5 - Subsection 3(1) (definition of exploration retention licence)
204. This item would repeal the definition of an exploration retention licence and substitute
it with the new definition which includes a retention licence granted under the Petroleum
Act, a geothermal retention licence granted under the GE Act and a mineral exploration
licence in retention issued under the MT Act. This amendment will bring the Land Rights
Act into alignment with the related NT legislation.
Item 6 - Subsection 3(1)
205. This item would add to the definitions at subsection 3(1) of the Land Rights Act
definitions of 'geothermal energy resources' and 'mine'.
38
206. The definition of geothermal energy resources incorporates the meaning given to that
term in the GE Act. This amendment will bring the Land Rights Act into alignment with
the related NT legislation.
207. The definition of 'mine' is added and will be defined as 'includes extract'. This
amendment will clarify that all geothermal energy resources and water are 'mined' and
ensure that references in the Act to 'mining for minerals' include references to extracting
water and geothermal energy resources.
Item 7 - Subsection 3(1) (definition of minerals)
208. This item would amend the definition of 'minerals' to cover minerals whether
suspended in water or not, and includes water and geothermal energy resources but
excludes extractive minerals. The definition of minerals is amended to clarify the
inclusion of geothermal energy resources such as water in its gaseous state and rocks or
material containing heat energy. This amendment will bring the Land Rights Act into
alignment with the related NT legislation.
Item 8 - Subsection 3(1) (definition of miner's right)
209. This item would repeal the definition of 'miner's rights' from subsection 3(1) of the
Land Rights Act. The definition of miner's rights is being removed from the Land Rights
Act and replaced with NT mining authority which is inserted at item 10. Miner's rights
are no longer a valid title and can no longer be granted under the MT Act.
210. The repealed definition of 'miner's includes the same references to an authority issued
under a law of the NT relating to minerals such that the newly inserted definition of 'NT
mining authority' does not create any issue of interfering with state power.
Item 9 - Subsection 3(1) (paragraph (a) of the definition of mining interest)
211. This item would amend the definition of 'mining interest' in subsection 3(1) to
exclude exploration for, as well as mining or development of, extractive mineral deposits.
This will provide clarity that extractive mineral exploration licences are excluded from
the definition of 'mining interest' as a result of the reference to leases or interests '(other
than a lease or other interest in land, or a right, relating to the mining or development of
extractive mineral deposits)'. Processes for the administration of extractive mineral
exploration licences are provided for under section 19 of the Land Rights Act.
Item 10 - Subsection 3(1)
212. This item will insert the definition of the 'NT mining authority' into subsection 3(1)
of the Land Rights Act. This amendment complements the removal of the definition of
'miner's right' at item 8. Inclusion of the definition 'NT mining authority' will ensure any
'other authority', as previously included in the definition of 'miner's right', is provided
for under the Land Rights Act. As there are no known authorities that can be granted
under relevant NT legislation, this is a precautionary provision in case of any historic or
future authorities.
39
Item 11 - Paragraph 3(2)(ba)
213. This item will amend paragraph 3(2)(ba) to add 'exploration' to 'mining and
development' consistent with item 9.
Item 12 - Paragraph 3(2)(c)
214. This item will amend paragraph 3(2)(c) replacing the term 'a miner's right' with 'an
NT mining authority' consistent with the amendments at item 8 and 10.
Item 13 - Paragraph 19(11)(a)
215. This item will amend paragraph 19(11)(a) to add 'exploration' to 'mining and
development' consistent with item 9 and 11.
Item 14 - Section 40
216. This item will omit the word 'shall' from section 40 and substitute it with 'must'.
Item 15 - Paragraph 40(a)
217. This item will repeal the current paragraph 40(a) and substitute it for a new provision
which will remove the requirement for the Minister to consent to the exploration licences
following the Land Council advising its consent. This will reduce red tape and improve
efficiency in the overall exploration licence reducing the application process by up to 30
days. The Minister will retain a role in approving high value proposals under subsection
27(3) and in relation to cancelling an exploration or mining interest where a proponent is
not operating in accordance with the proposed work program under section 47 of the
Land Rights Act.
Item 16 - Subsection 41(1)
218. This item amends subsection 41(1) replacing the word 'shall' with 'may'.
Item 17 - Subsection 41(3)
219. This item makes an amendment to subsection 41(1) so that the consent of the NTMM
is taken to be withdrawn in certain circumstances. This modernises the language of the
clause, replacing the phrase 'shall be deemed'.
Item 18 - After subsection 41(3)
220. This item inserts a new requirement at subsection 41(4) for the Land Council to notify
the NTMM of the day on which the Land Council received the application. This
amendment will improve efficiency and communication in the exploration licence
application process. It will assist the NTMM in monitoring negotiating timeframes which
commence on the date of the Land Council's receipt of the application from the applicant.
Item 19 - Subsection 41(5)
221. This item will omit the word 'shall' from subsection 41(5) and substitute it with
'must'. It also adds a requirement that a copy of the application must be sent to the
NTMM.
Item 20 - Subsection 41(6)
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222. This item will omit the word 'shall' from subsection 41(6) and substitute it with
'must'. This amends subsection 41(6) to set out the requirements of the comprehensive
proposal that the application is required to set out and will assist applicants and the Land
Councils with the application process including substantial compliance.
Item 21 - Subsection 41(6A)
223. The new subsection 41(7) requires the Land Council to determine whether an
application substantially complies with the requirements at subsection 41(6). Notice of
the Land Council's determination must be provided to the applicant, Minister and
NTMM. This determination is a preliminary decision that should not be subject to merits
review. A substantially compliant application is necessary in order for the Land Council
to facilitate consultation and enable an informed decision to be made by the traditional
owners on the application. When considering the interests of the applicants the impact of
the 'substantial compliance' requirement should be considered in conjunction with the
application amendment options which are also being included in the bill at item 21. The
consequences for an applicant should their application not be found to be substantially
compliant will be negligible, and of a procedural nature, as the applicant would be able to
reapply.
224. A determination of whether an application substantially complies with subsection
41(6) does not involve an exercise of judicial power by the Land Council.
225. The new subsection 41(8) provides that the effect of an application, which does not
comply with the subsection 41(6) requirements, is taken to not be a valid application.
226. The new subsection 41(9) provides for the Land Council to make a written request to
an applicant for specified information, for the purpose of making a determination
regarding substantial compliance of the application under the new subsection 41(7). Any
notice to provide additional information is to be provided to the applicant with at least 14
days for the applicant to provide the information.
227. The new subsection 41(10) provides for the variation of an application if the Land
Council is concerned about whether the application complies substantially with the
requirements at subsection 41(6). The Land Council may give written notice specifying
their concerns and inviting the applicant to respond, addressing those concerns, providing
a period of response no less than 14 days after the date of the notice.
228. The new subsection 41(11) provides that an application may be varied by an applicant
in response to the notice at subsection 41(10) and within the time period provided for in
paragraph 41(10)(c). The new subsections 41(10) and 41(11) will enable applications to
be amended without the applicant re-commencing the application process.
229. The new subsection 41(12) provides that following a determination by the Land
Council that an application is substantially compliant, an applicant can make a written
request to the Land Council to vary the application with respect to components of the
application that are required by subsection 41(6) comprising the comprehensive proposal.
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The request from the applicant must provide a copy of the application as proposed to be
varied.
230. The new subsection 41(13) provides that an application is varied if the Land Council
agrees to the written request from the applicant (at subsection 41(12)). The Land Council
cannot accept a variation unless the varied application substantially complies with
subsection 41(6) requirements. The new subsections 41(12) and 41(13) provide for an
application to be amended without the applicant re-commencing the application process.
231. The new subsection 41(14) requires an applicant to give the Minister and the NTMM
a copy of the application varied under subsection 41(11) or 41(13) and any notices from
the Land Council concerning the applications received under subsection 41 (10) or (13).
The application is also required to provide to the Minister and the NTMM written notice
of the date that the varied application was given to the Land Council. This is consistent
with the new requirement at item 18 so that the NTMM is aware of the progress of the
applications following their consent.
Item 22 - Subsections 42(1), (2) and (3)
232. This item will omit the word 'shall' from subsections 42(1), (2) and (3) and substitute
it with 'must'.
Item 23 - Subsections 42(4) to (5A)
233. This item will repeal subsections 42(4) to (5A) and substitute them for new
subsections (4), (4A), (4B), (4C), (4D) and (5).
234. The new subsection 42(4) provides that the Land Council is required to convene
meetings with traditional owners as it considers appropriate rather than necessary. This
provides the Land Council with greater flexibility in convening meetings for the purpose
of considering applications. This might involve the convening of more meetings as
considered appropriate by the Land Council. It may also provide for standing instructions
to be provided by traditional owners in relation to applications over certain areas resulting
in fewer meetings.
235. The new subsection 42(4A) sets out the matters which must be discussed at a meeting
convened for consultation between the Land Council and the traditional Aboriginal
owners for considering the exploration proposals and the terms and conditions of any
agreement, unless the applicant does not wish its representatives to attend such a meeting.
236. The new subsection 42(4B) clarifies that a meeting is not required to be held for a
varied application (under the new subsection 41(13)) if the matters as detailed in the
varied application have already been discussed at a meeting held under subsection
42(4)(a) prior to the variation being agreed. The Land Councils are not required to
convene another meeting under subsection 42(4) and (4A) if the matters at 42(4A)(a) and
(b) are not varied by an application under 41(13) or to the extent that they are varied by
an application under 41(13) the matters at 42(4A)(a) and (b) as varied have already been
discussed.
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237. The new subsection 42(4C) sets out that representatives of the applicant may attend
certain meetings including so much of the first meeting at which the substantive content
of exploration program or the terms and conditions are discussed for the purposes of
presenting and explaining the exploration proposals or outlining the applicant's views on
the terms and conditions. The representatives of the applicant may also attend so much of
any subsequent meeting as is appropriate for the discussion of the substantive content of
exploration program or the terms and conditions unless the traditional Aboriginal owners
decide the representative may not attend, and this decision is communicated to the
applicant through the Land Council.
238. The new subsection 42(4D) sets out that the Minister may provide written
authorisation for a specified person or any person in a specified class of persons to attend
a meeting.
239. The new subsection 42(5) provides that a person authorised to attend meetings under
the new subsection 42(4D) may attend certain meetings referred to in the new paragraphs
42(4C)(a), (b) or (c).
Item 24 - Subsection 42(6)
240. This item will omit the word 'shall' from subsection 42(6) and substitute it with
'must'.
Item 25 - Subsections 42(8), (8A), (9) and (10)
241. This item repeals subsections 42(8), (8A), (9) and (10) removing the Minister's
consent requirement from the process. This will streamline the exploration licence
application process where the Land Council has provided consent, reducing the process
by up to 30 days.
Item 26 - Subsection 42(12)
242. This item will omit the word 'shall' from section 42(6) and substitute it with 'must'.
Item 27 - Subsection 42(13)
243. This item will amend subsection 42(13) so that any references to application is
received will be application is first received. This is consistent with other changes that
have been proposed for the Part IV of the Land Rights Act to clarify that the standard
negotiating period commences on the day the application is first received.
Item 28 - Paragraph 42(17)(c)
244. This item amends paragraph 42(17)(c) to be consistent with the amendments to the
application and application amendment process.
Item 29 - Subsection 42(18)
245. This item amends subsection 42(18) to reflect the changes to resubmitting
applications so that timing commences from when the application is first received,
providing clarity where amendments may be made to any later applications.
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Item 30 - Paragraph 42(18A)(b)
246. This item would amend paragraph 42(18A)(b) in order to cover circumstances in
which the matters mentioned in paragraphs 42(4A)(a) and (b) had been discussed at one
or more meetings.
Item 31 - Paragraph 44(1)(a)
247. This item would amend paragraph 44(1)(a) by repealing the current paragraph,
consistent with item 29, to remove reference to the Minister's consent under subsection
42(8) in relation to the provision for arbitration of the terms and conditions of an
exploration licence.
Item 32 - Subsection 44(2)
248. This item would amend subsection 44(2) so that the phrase 'Where subsection 42(7)'
is replaced with 'If paragraph (1)(a)'.
Item 33 - Subsections 44(3) to (10)
249. This item will omit the word 'shall' from subsections 44(3) to (10) and substitute it
with 'must'.
Item 34 - Subsection 44(11)
250. This item will omit the words 'shall be' (first occurring) and substitute it with 'is'.
Item 35 - Subsection 44(11)
251. This item will omit 'shall be deemed' and replace with the phrase 'is taken'.
Item 36 - Subsection 44A(1)
252. This item would repeal the current subsection 44A(1) and substitute it with new
subsections 44A(1), 44A(1A) and 44A(1B):
a) the new subsection 44A(1) provides agreements under sections 42, 43 or 44 must
include terms and conditions requiring the applicant to pay compensation for damage
or disturbance caused to the relevant Aboriginal land and to the traditional Aboriginal
owners of the land;
b) the new subsection 44A(1A) provides that the terms and conditions may require
compensation to be paid for a number of aspects of the mining activity including the
value of the materials, deprivation of the use of land and improvements and severance
of the land; and
c) the new subsection 44A(1B) clarifies that the terms and conditions must not require
the applicant to pay any amount as consideration for the giving of consent to the
granting of an exploration licence.
Item 37 - Subsection 44A(2)
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253. This item omits the word 'shall' from subsection 44A(2) of the Land Rights Act so
that it is clear that the terms and conditions of an agreement entered into under that
Section remain in force as long as the exploration licence, retention licence or renewed
retention licence is held by the applicant, their heirs, successors or assigns of that person
immediately following that period, as specified in the agreement.
Item 38 - Subsection 44A(3)
254. This item repeals subsection 44A(3) of the Land Rights Act as these matters are now
addressed by subsection 44A(1A) at item 40.
Item 39 - Subparagraph 47(1)(b)(i)
255. This item amends subparagraph 47(1)(b)(i) to reflect the amendments to the process
proposed by the amendments to subsections 41(11) and (13).
Item 40 - Paragraph 47(2)(a)
256. This item adds the NTMM to the list of recipients that the Minister must inform if
satisfied of the matters in paragraph 47(1)(d) to (e) and the exploration licence is
cancelled.
Item 41 - Before paragraph 47(3)(a)
257. This item inserts the requirement that the Minister consult with the NTMM as part of
the process for considering the cancellation or refusal to grant a mining interest.
Item 42 - Subparagraph 47(3)(a)(i)
258. This item amends subparagraph 47(3)(a)(i) as a result of the amendments to
subsections 41(11) or (13).
Item 43 - Paragraph 47(4)(a)
259. This item adds the NTMM to the list of individuals the Minister must inform if
determined that they are satisfied of the matters in paragraphs 47(3)(a) and (b).
Item 44 - Subsection 48(1A)
260. This item repeals the current subsection 48(1A) and substitutes it with the new
subsection ensuring alignment with relevant NT legislation by expanding the application
of subsections 48(1) to (4A) to cover petroleum, geothermal energy resources and
minerals other than petroleum and geothermal energy resources. This item provides that
separate moratorium provisions run in relation to applications for petroleum, geothermal
energy resources and minerals other than petroleum and geothermal energy resources.
The definition of geothermal energy, consistent with the meaning given in section 4 of the
GE Act is inserted into the Land Rights Act by item 6.
261. Applications prescribed in paragraph 48(1A)(a) are exploration licence applications in
relation to petroleum under the Petroleum Act.
262. Applications prescribed in paragraph 48(1A)(b) are exploration licence applications in
relation to geothermal energy under the GE Act.
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263. Applications prescribed in paragraph 48(1A)(c) are exploration licence applications in
relation to minerals other than petroleum or geothermal energy resources under the MT
Act.
Items 45 to 46 - Paragraph 66(ba) and Paragraph 66(c)
264. These items amend section 66 to include 'exploration, mining or development of
extractive mineral deposits' and the 'NT mining authority' consistent with amendments to
subsection 3(1) at items 9 and 10.
Items 47 to 49 - Section 75
265. These items amend section 75 to omit 'miner's right's' and substitute with 'NT
mining authority' consistent with item 8. This is a consequential amendment as there is
no such title currently provided for under the MT Act.
Item 50 - Paragraph 76(2)(a)
266. This item repeals paragraph 76(2)(a) of the Land Rights Act which prevents the
Minister from delegating the power to consent to the grant of an exploration licence,
consistent with the amendment at item 25 which repeals the Minister's consent power.
Item 51 - Paragraphs 76(2)(d) and (e)
267. This item repeals paragraphs 76(2)(d) and (e) and replaces them with new paragraphs
76(2)(d) and (e). These new paragraphs prevent the Minister from delegating to the
NTMM any of the powers and functions under subsections 47(1) and 47(3). This is
consistent with item 41 which imposes a new obligation to consult the NTMM with
respect to determinations made under subsection 47(3), and existing subsection 47(1)
which imposes a similar obligation. Expanding the scope of the non-delegable parts of
subsections 47(1) and 47(3) will reduce unnecessary delay and red tape in the Minister's
consideration of the cancellation of an exploration licence or mining interest, and ensure
that the Minister retains functions relevant to his or her powers to act in the national
interest.
Part 2 - Application of amendments
Item 52 - Prospecting authorities
268. This item provides that a number of sections of the Act continue to apply in certain
ways on and after commencement as if:
a) a reference to an exploration licence in subsection 44A(2), section 46 and subsection
47(3) includes a reference to a prospecting authority granted before the
commencement of the item;
b) a refusal to consent to the grant of an exploration licence in subsections 48(1) to (4B)
includes a refusal to consent to the grant of a prospecting authority prior to the
commencement of the item; and
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c) any reference in subsections 48(5) to (8) to the cancellation of an exploration licence
includes a reference to the cancellation, before commencement of a prospecting
authority.
Item 53 - Land Council consent to exploration licences
269. This item provides that the amendments to sections 41 and 42 of the Land Rights Act
made by the Schedule apply in relation to an application under section 41 of the Act that
is submitted on or after the commencement of the item.
Item 54 - Removal of Ministerial consent to exploration licences
270. This item provides that the amendments to paragraph 40(a) and repeals of subsections
42(8), (8A), (9) and (10) of the Land Rights Act apply in relation to an exploration
licence if the Land Council's consent is given on or after the commencement of the item,
regardless of when the application is submitted.
Item 55 - Determination of conditions of exploration licences
271. This item provides that the amendments to subsections 44(1) and (2) of the Land
Rights Act apply in relation to an exploration licence if the Land Council's consent to the
grant of a licence is given (including by the operation of subsection 42(7)) on or after the
commencement of the item.
Item 56 - Compensation for value of minerals
272. This item provides that the amendments to section 44 of the Act apply in relation to
terms and conditions agreed under section 42 or 43, or determined under section 44, on or
after the commencement of the item.
Item 57 - Cancellation of exploration licence
273. This item provides that the amendment of paragraph 47(2)(a) applies to notices under
subsection 47(1)(b) that are received by the Minister on or after commencement of the
item.
Item 58 - Refusal or cancellation of mining interests
274. This item provides that the amendments to subsections 47(3) and (4) apply in relation
to copies of statements of mining proposals that are received by the Minister on or after
the commencement of the item.
Item 59 - Delegation relating to mining
275. This item provides that the amendments to subsection 76(2), which relate to the
delegation of functions to the NTMM, will apply to notice under 47(1)(b) and copies of
the statements of mining proposals that are received by the Minister on or after the
commencement of the item.
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Schedule 3 - Land administration
Part 1 - Approved entities
Aboriginal Land Rights (Northern Territory) Act 1976
276. Township leases were originally designed to be held by an 'approved entity', being a
'Commonwealth entity' or an 'NT entity'. The Commonwealth is an approved entity
under section 3AAA and the EDTL is established under the Land Rights Act to, among
other things, enter into leases under section 19A, on behalf of the Commonwealth. The
EDTL currently holds five township leases in eight communities. The EDTL model
remains unchanged and is available to traditional owners.
277. Two CATSI corporations have been approved by the Minister as 'approved entities' -
the Ngarrariyal Aboriginal Corporation for the Gunyangara Township Lease in 2017 and
the Gundjeihmi Aboriginal Corporation Jabiru Town for the Jabiru Township Lease in
2020. Township leases granted to CATSI corporations provides for more community-
control. Given the growing interest in community-controlled township leasing, also
known as community entity township leasing, there is a need to standardise and clarify
the processes around, and the operation of, these entities in the Land Rights Act.
Items 1 to 3 - Subsection 3(1)
278. These items repeal the definitions of 'approved entity', 'Commonwealth entity' and
'NT entity'. The definition of 'approved entity' is replaced with a new definition.
279. Item 1 repeals the previous definition of 'approved entity' under subsection 3(1) and
substitutes a new definition. The new definition outlines that an approved entity is one
that meets the criteria set out in either subsection 3AA(1) as an approved entity or
subsection 3AA(2) as an approved entity for an area of land.
280. Item 2 repeals the definition of 'Commonwealth entity' under subsection 3(1).
Removing this definition will improve clarity in the Land Rights Act. For example, the
PGPA Act utilises the term 'Commonwealth entity', which is referenced in sections 33,
53B and 64B of the Land Rights Act.
281. Item 3 repeals the definition of 'NT entity' under subsection 3(1). An NT entity has
never been approved and this model is no longer required due to the emergence of
community-controlled township leasing.
Item 4 - Sections 3AAA and 3AA
282. Item 4 repeals sections 3AAA and 3AA, replacing both sections with new section
3AA. New section 3AA sets out the approval process for bodies to become approved
entities. It is possible for an entity to be an approved entity for more than one township
lease.
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283. Subsection 3AA(1) establishes that the Minister may, by writing, approve the
Commonwealth or a Commonwealth authority as an approved entity for the purposes of
paragraph (a) of the definition of 'approved entity' in subsection 3(1), as amended by
item 1.
284. Subsection (2) sets out the approval process for CATSI corporations to become
approved entities for the purposes of paragraph (b) of the definition of 'approved entity'
in subsection 3(1). Under subsection 3AA(2) the Minister may, by writing, approve a
CATSI corporation as an approved entity for an area of land known by a particular name
if the Minister is satisfied of a number of conditions:
a) the Minister must be satisfied that the Land Council for the area in which the area of
land is situated has nominated the corporation to be an approved entity for the area of
land known by that name;
b) a majority of members of the corporation must either be the traditional owners of land
that constitutes, or forms part of, the area of land known by that name or they must be
Aboriginal people who live in the area of the land known by that name; and
c) any conditions determined under subsection 3AA(9) must also be satisfied.
285. Subsection 3AA(3) provides that any approval under subsection 3AA(2) must specify
the name by which the area of land is known, but need not otherwise delineate the area of
land. The relevant township may not already be prescribed under new section 3AB when
a nomination is received by the Minister. The intent is that the area of land be described
by the nomination with a sufficient level of specificity so that it is broadly understood
what the township includes (e.g. the land may include land nearby on which there is a
barge landing). Later, when the township is prescribed by legislative instrument, the area
of land will be described in detail.
286. Subsection 3AA(4) empowers a Land Council to nominate a CATSI corporation that
satisfies the conditions in paragraph 3AA(2)(b) to be an approved entity for an area of
land situated in the Council's area. The Minister need not consider a nomination that is
submitted by a Land Council.
287. Subsection 3AA(5) sets out how the nominations under subsection 3AA(4) must be
formulated. Paragraphs 3AA(5)(a)-(g) prescribe that the nomination must meet the
following requirements:
a) be given to the Minister in writing;
b) specify the name by which the area of land is known;
c) describe the area of land (but need not delineate the area);
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d) set out the names of the CATSI corporation's members;
e) contain a declaration to the effect that the Land Council is satisfied the corporation
satisfies the condition in paragraph (2)(b) (i.e. a majority of the members of the
corporation are either: (i) the traditional owners of land that constitutes, or forms part
of, the area of land known by that name; or (ii) Aboriginal people who live in the area
of land known by that name);
f) set out a description of any consultation by the Land Council with the following
persons:
i. traditional owners of land that constitutes, or forms part of, the area of land;
ii. Aboriginal people who live in the area of land; and
iii. any other Aboriginal community or group that may be affected by the
nomination; and
g) contain any other information determined under subsection 3AA(9).
288. Subsection 3AA(6) outlines matters to which the Minister must or may have regard in
deciding whether to approve a body as an approved entity:
a) the Minister must have regard to relevant matters determined under subsection
3AA(9); and
b) the Minister may have regard to any matters determined under subsection 3AA(9) and
any other matters the Minister considers relevant.
289. Subsection 3AA(7) enables the Minister to revoke an approval under subsection (1) or
(2) by writing if the Minister considers it appropriate to do so. However, subsection (8)
requires that before the Minister revokes an approval of a CATSI corporation, the
Minister must consult the Land Council that nominated the corporation. The consultation
process with the Land Councils will facilitate how the parties propose to deal with the
township lease if a revocation is proposed. Existing leases have mechanisms that provide
for the surrender of the lease or the transfer of the lease to another approved entity, prior
to a lease being terminated.
290. Subsection 3AA(9) enables the Minister to determine, by legislative instrument, the
following matters:
a) conditions that the Minister must be satisfied of for the approval of a CATSI
corporation;
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b) information that must be included in a nomination for a CATSI corporation to be an
approved entity; and
c) matters to which the Minister must or may have regard in deciding whether to
approve a body as an approved entity.
Items 5 and 6 - Section 19A
291. Items 5 and 6 amend section 19A to clarify the requirements for when a Land Trust
may grant a lease of a township to an approved entity that is a CATSI corporation.
292. Item 5 inserts new paragraph 19A(1)(c) to require that a Land Trust may grant a lease
of a township to a CATSI corporation if some or all of an area of land for which the
corporation is approved under subsection 3AA(2) falls within the area of the township.
293. Item 6 inserts new paragraph 19A(8)(c) to require that a lease granted under section
19A may be transferred to an approved entity that is a CATSI corporation only if some or
all of an area of land for which the corporation is approved under subsection 3AA(2) falls
within the area of the township.
Item 7 - After section 19A
294. Item 7 inserts new section 19B, which provides for the expenditure of approved
entities to be in accordance with approved estimates.
295. Paragraph 19B(1)(a) requires an approved entity to prepare estimates as directed by
the Minister and submit those estimates as directed by the Minister of its expenditure to
meet its costs of:
a) acquiring leases, or administering leases granted or transferred to the approved entity,
under section 19A; or
b) the payment of amounts under leases granted or transferred to the approved entity
under section 19A.
296. The Note clarifies that this new section works in conjunction with existing paragraphs
64(4A)(a) and (b), in that the Minister must have regard to approved estimates when
directing that an amount be paid from the ABA under paragraph 64(4A)(a) or (b).
Pursuant to subsection 64(4A), the Minister may direct amounts to be paid in relation to:
a) the acquiring of leases by, or the administering of leases granted or transferred to,
approved entities under section 19A; or
b) the payment of amounts under leases granted or transferred to approved entities under
section 19A.
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297. Subsection 19B(2) provides that the Minister may direct an approved entity to prepare
estimates for a period that is wholly or partly concurrent with another period.
298. Subsection 19B(3) provides that if the Minister has directed an approved entity to
prepare estimates for a period, money of the approved entity must not be spent to meet its
costs in respect of the period otherwise than in accordance with estimates of expenditure
approved by the Minister. However, this is subject to subsection (4), which confirms that
where the estimates have been approved by the Minister, the amount of expenditure in
relation to a matter or matters covered by an item may not exceed the amount by 20 per
cent.
299. Subsection 19B(5) prevents approved entities from being able to spend money in
excess of the total amount of expenditure provided for by their estimates. The intention of
subsections 19B(3), (4) and (5) is to provide flexibility between the various items listed in
the approved estimates but to prohibit expenditure over and above the total amount
approved by the Minister.
300. Subsection 19B(6) outlines that where the approved entity is the Commonwealth, then
an obligation imposed by section 19B must be fulfilled by the EDTL.
301. Subsection 19B(7) notes that nothing in section 19B affects a requirement under
section 36 of the PGPA Act to prepare budget estimates in relation to an approved entity
that is the Commonwealth or a Commonwealth authority (within the meaning of the
Lands Acquisition Act 1989).
Items 8 to 16 - Sections 19C to 19E
302. Due to the repeal of the definitions of 'Commonwealth entity' and 'NT entity' by item
1, sections 19C, 19D and 19E have been updated to refer to 'an approved entity' instead.
Items 8 to 15 make these amendments.
303. Item 16 repeals subsection 19E(4), which previously required that the regulations,
which could make modifications of any law of the NT, will cease to have effect if a
township lease is transferred to an NT entity in accordance with section 19A. Due to the
repeal of the definition of 'NT entity' this subsection has ceased to have effect.
Item 17 - After subsection 34(1)
304. Subsection 34(1) requires a Land Council to prepare estimates, in such form as the
Minister directs, of its expenditure to meet its administrative or capital costs for each
financial year and, if the Minister so directs, for any other period and the Land Council
shall submit those estimates to the Minister for their approval not later than such date as
the Minister directs. Item 17 inserts new subsection 34(1), which clarifies that a period
directed under subsection (1) may be wholly or partly concurrent with a financial year or
other period for which the Land Council is required to prepare estimates.
Item 18 - After subsection 37(5)
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305. Section 37 provides, among other things, that the annual report prepared for a Land
Council and given to the Minister under section 46 of the PGPA Act must also include the
matters set out in section 37.
306. Item 18 inserts subsection 37(5A), which requires the Land Councils to include in
their annual reports: the name of the township, the name of the approved entity and the
name of any other party to the lease. This requirement applies if a lease (granted or
transferred to an approved entity under section 19A) of a township, in the area of the
Land Council, is in effect at any time during that period of the annual report.
Item 19 - After subsection 64(4A)
307. Item 19 inserts subsection 64(4B) into section 64 of the Act, which confirms that in
giving a direction to debit the ABA to which paragraph (4A)(a) or (b) applies, the
Minister must have regard to the most recent estimates approved by the Minister under
subsection 19B(1) in relation to each approved entity. Item 7 also refers.
Item 20 - Subsection 70E(15)
308. Subsection 70E(1) provides for a person to enter or remain on a road that is within
community land if the entry or remaining is not for a purpose that is unlawful. Subsection
70E(15) says that if a road to which subsection (1) applies is covered by a section 19A
lease to a Commonwealth entity or an NT entity, the EDTL or the NT entity (as the case
may be) may, by written determination, impose temporary restrictions on the entry or
remaining on the road for the purpose of protecting public health or safety.
309. Item 20 repeals and substitutes subsection 70E(15), leaving the substance of the
provision unchanged but updating the text to reflect the amendments at item 1 to the
terminology of 'Commonwealth entity' and 'NT entity' to 'approved entity'.
Item 21 - Subsection 70F(12)
310. Subsection 70F(1) provides that a person may enter or remain on a common area that
is within community land if the entry or remaining is not for a purpose that is unlawful.
Subsection 70F(12) says that if a common area to which subsection (1) applies is covered
by a section 19A lease to a Commonwealth entity or an NT entity, the EDTL or the NT
entity (as the case may be) may, by written determination, impose temporary restrictions
on the entry or remaining on the common area for the purpose of protecting public health
or safety.
311. Item 21 repeals and substitutes subsection 70F(12), leaving the substance of the
provision unchanged but updating the text to reflect the amendments at item 1 to the
terminology of 'Commonwealth entity' and 'NT entity' to 'approved entity'.
Item 22 - Saving provision - pre-commencement approvals
312. Item 22 is a saving provision for approvals in force immediately before its
commencement. Sub-item (1) outlines that the Commonwealth entity approval of either
the Commonwealth or a Commonwealth authority continues in force (and may be dealt
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with) on and after that commencement as if it were a subsection 3AA(1) approved entity
approval of the relevant body.
313. Sub-item (2) confirms that a Commonwealth entity approval of a CATSI corporation
continues in force (and may be dealt with) on and after the commencement of item 22 as
if it were a separate subsection 3AA(2) approval and the Land Council for the area in
which the relevant township is situated had nominated the corporation to be an approved
entity for the area of land of the township.
314. Sub-item (3) provides for the definitions of key terms used in item 22.
Item 23 - Application of amendment - additional Land Council reporting requirement
315. Item 23 is an application provision that clarifies the application of new subsection
37(5A) inserted by item 18 regarding the additional Land Council reporting requirement.
Item 23 provides that subsection 37(5A) applies in relation to an annual report for a
period in which this item commences and annual reports for later periods.
Part 2 - Agreements in relation to deeds held in escrow
Aboriginal Land Rights (Northern Territory) Act 1976
Item 24 - After subsection 11A(6)
316. Section 11A provides that a person who desires to obtain an estate or interest in land
under claim may, before the land is granted to a Land Trust, make representations to the
relevant Land Council concerning the person's plans in respect of the relevant land. A
Land Council may agree with the person that it will, if the relevant land is granted to a
Land Trust, direct the Land Trust to grant an estate or interest in that land to that person
and that agreement shall specify the terms and conditions on which the proposed grant is
to be made.
317. Item 24 adds new subsection 11(6A) into section 11A, which clarifies that an
agreement under subsection 11A(2) does not create an estate or interest in the relevant
land that would prevent the relevant land from being granted to the Land Trust.
Item 25 - After section 12C
318. Item 25 inserts new section 12D into the Land Rights Act. New section 12D concerns
land that is the subject of a deed in escrow, and allows the Land Councils to enter into
agreements regarding this land. The purpose of these amendments is to provide certainty
for all stakeholders where there is a transition from one form of land tenure to another.
For example, where a deed of grant of Aboriginal land is held in escrow over land that
will transition to a township lease, the current occupants of the township will have the
option of making representations to the Land Council for an agreement.
319. Subsection 12D(1) confirms that if: land is the subject of a deed of grant held in
escrow by a Land Council; and a person (the proponent) desires to obtain an estate or
54
interest in the land; the proponent may make representations to the Land Council
concerning the proponent's plans for the land.
320. Subsection 12D(2) provides that at any time before the deed is delivered to the Land
Trust, the Land Council may agree with the proponent that the Land Council will, if the
deed is delivered to the Land Trust, direct the Land Trust to grant the proponent an estate
or interest in the land.
321. Subsection 12D(3) requires that the agreement specify the terms and conditions on
which the proposed grant is to be made.
322. Subsection 12D(4) sets out three matters that the Land Council must first satisfy itself
prior to entering into a section 12D agreement:
a) the traditional Aboriginal owners (if any) of the land understand the nature and
purpose of the proposed grant and, as a group, consent to it;
b) any Aboriginal community or group that may be affected by the proposed grant has
been consulted and has had adequate opportunity to express its view to the Land
Council; and
c) the terms and conditions on which the proposed grant is to be made are reasonable.
323. Subsections 12D(5) to (7) outline the binding nature of the agreement. Subsection (5)
notes that the agreement is binding on any successors to the Land Council. Subsection (6)
requires a Land Council to, immediately after the deed is delivered to the Land Trust, in
writing direct the Land Trust to grant an estate or interest in the land on the terms and
conditions set out in the agreement. However, subsection (7) provides that a failure to
comply with subsection (4) does not invalidate the agreement.
324. Subsections 12D(8) and (9) clarify the nature of the agreement. Subsection (8)
specifies that the agreement does not create an estate or interest in the land that would
prevent the deed from being delivered to the Land Trust. Lastly, subsection (9) states that,
an estate or interest in land includes a mining interest or licence in respect of the land.
Item 26 - Section 13 (heading)
325. Item 26 repeals the heading of section 13 'Grants of interests in land the subject of a
deed in escrow' and substitutes a new heading 'Land subject of deed in escrow - grants of
interests by the Crown'. The change made by this item aligns the section 13 heading with
the format of the section 12D heading 'Land subject of deed in escrow - Land Councils
may enter into agreements'.
Item 27 - Subparagraph 23(1)(e)(i)
326. Item 27 amends subparagraph 23(1)(e)(i), which confirms that where land is held by a
Land Trust one of the functions of a Land Council is to negotiate with persons desiring to
obtain an estate or interest in land in the area of the Land Council on behalf of the
55
traditional owners (if any) of that land and of any other Aboriginals interested in the land.
The subparagraph will be updated to clarify that the Land Council also has this function
where the land is the subject of a deed of grant made to a Land Trust under section 12 that
the Land Council holds in escrow.
Part 3 - Miscellaneous amendments
Aboriginal Land Rights (Northern Territory) Act 1976
Item 28 - Subsection 3(1)
327. Item 28 amends subsection 3(1) to insert a definition of 'Aboriginal people or
Aboriginal person: see Aboriginal' to reflect language and terminology used in the
amendments to the Land Rights Act. This definition does not substantively change the
meaning of any sections of the Land Rights Act as the newly defined terms refer to the
term 'Aboriginal', which is already defined under subsection 3(1).
Item 29 - Subsection 27(3)
328. Item 29 amends subsection 27(3), which says that a Land Council shall not, without
the approval of the Minister, enter into, or permit a Land Trust holding land in its area to
enter into, a contract involving the payment or receipt of an amount exceeding $1,000,000
or, if a higher amount is prescribed, that higher amount. The amount has been raised from
$1,000,000 to $5,000,000.
329. This subsection was amended in 2006 when the threshold amount was raised from
$100,000 to $1,000,000. Increasing the amount to $5,000,000 is to prevent unnecessary
delay and provide additional flexibility to the Land Councils.
Items 30 to 32 - Sections 28 to 28F
330. Item 30 repeals subsection 28(3), which permitted the Land Councils to delegate
various functions or powers to a CATSI corporation. As a result, sections 28A to 28F are
repealed by item 32. Section 28A dealt with delegation of a Land Council's functions or
powers to CATSI corporations. Section 28B dealt with variation or revocation of a
delegation to a CATSI corporation. Section 28E required a Land Council to provide
assistance to CATSI corporations in certain circumstances. Section 28F required a CATSI
corporation to give notice of a decision under a delegation from a Land Council.
331. Any pre-commencement delegations or applications will cease on commencement.
332. Item 31 inserts a heading before subsection 28(4) which reads 'Functions and powers
that depend on satisfaction of certain matters'.
Item 33 - Subsection 37(6)
333. Item 33 repeals subsection 37(6), which sets out that if a delegation to a CATSI
corporation is in force during an annual report period, the report must include particulars
of the activities of the corporation during that period to the extent they relate to the
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delegation. The repeal of subsection 37(6) is due to the amendments made by items 30 to
32, which repeal the ability to make such delegations.
Items 34 and 35 - Sections 74
334. Items 34 and 35 amend section 74, which addresses the application of NT laws to
Aboriginal land. The purpose of the amendments is to add clarity about the interaction of
NT and Commonwealth legislation.
335. Item 34 inserts subsection (1). New subsection 74(1) comprises the existing text of
section 74, which states that the Land Rights Act does not affect the application to
Aboriginal land of a law of the NT to the extent that that law is capable of operating
concurrently with the Land Rights Act.
336. Item 35 inserts new subsections (2) and (3) under section 74. Proposed subsection (2)
provides that, without limiting subsection (1), the Land Rights Act is not intended to
exclude or limit the concurrent operation of a law of the NT that also creates offences
relating to the same or similar act or omission. Subsection (3) provides that subsection (2)
applies even if the law of the NT provides for different penalties, fault elements or
defences.
Item 36 - Section 74AA
337. Item 36 repeals section 74AA (and the associated Note), which says that a permit
issued under section 5 of the AL Act may only be revoked by the issuer of the permit. As
a result, the Land Councils and traditional owners can only revoke permits issued by them
under subsections 5(1) and 5(2) of the AL Act, respectively. Section 74AA prevents the
Land Councils from revoking permits for access to Aboriginal land issued by small,
minority groups of traditional owners that have failed to consult with the broader group of
traditional owners, or do not have the support of that broader group.
338. Section 74AA was inserted into the Land Rights Act by the Families, Community
Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory
National Emergency Response and Other Measures) Bill 2007. Repeal of section 74AA is
supported on the basis that Land Councils are best placed to resolve disputes within
traditional owner groups through their role in administering the Land Rights Act.
Item 37 - Application provision - repeal of limitation on revocation of permits
339. Item 37 is an application provision, which confirms that the repeal of section 74AA of
the Land Rights Act applies in relation to any permit, whether issued before, on or after
the commencement of item 37.
Item 38 - Transitional - removal of delegation power to CATSI corporations
340. Item 38 is a transitional provision, which confirms how section 28F and subsection
37(6) continue to apply despite their repeal.
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341. Sub-item 38(1) states that despite the repeal of section 28F, that section continues to
apply, in relation to a decision made before item 38 commences by a CATSI corporation
under a delegation, as if that repeal had not happened.
342. Sub-item 38(2) states that despite the repeal of subsection 37(6), that subsection
continues to apply, in relation to a report for a period that starts before item 38
commences, as if the repeal had not happened.
Part 4 - Amendments with delayed commencement
Division 1 - Prescribing township land
Aboriginal Land Rights (Northern Territory) Act 1976
Items 39 to 42 - Section 3AB
343. Items 39 to 42 amend section 3AB, which defines a township, in relation to a Land
Trust, as being either of two types of areas of Aboriginal land vested in that Land Trust.
344. Subsections 3AB(2) and (3) state that the area of land is prescribed 'by the
regulations'. Items 39 and 40 update the wording in subsections 3AB(2) and (3) from
prescribed 'by the regulations' to 'by the Minister under subsection (3A)'.
345. Item 41 inserts new subsection 3AB(3A) after subsection 3AB(3). Subsection
3AB(3A) is titled 'Minister may prescribe areas in relation to all or particular Land
Trusts' and provides that the Minister may, by legislative instrument, prescribe areas of
land in relation to all land Trusts for the purposes of subsection (2) or a particular Land
Trust for the purposes of subsection (3).
346. Item 42 amends subsection 3AB(5) to refer to subsection (3A) rather than
subsection (3).
Item 43 - Transitional - references in leases to redundant provisions of the regulations
347. Item 43 is a transitional provision that applies in relation to a lease of a township,
granted or transferred under section 19A before the commencement of item 43. If the
lease refers to the regulations as prescribing the township then, on and after the
commencement of the provision of the instrument mentioned in paragraph (1)(b), the
lease has effect as if the reference in the lease to the provision of the regulations were a
reference to the provision of the instrument.
Division 2 - Penalty for entering or remaining on Aboriginal land
Aboriginal Land Rights (Northern Territory) Act 1976
Item 44 - Subsection 70(1) (penalty)
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348. Item 44 amends subsection 70(1), which provides that it is an offence for a person to
enter or remain on Aboriginal land and applies ten penalty units for this offence. Item 44
increases the penalty to 50 penalty units.
349. The proposed amendment will enhance the consistency of the Land Rights Act with
other Commonwealth legislation, for example the Environment Protection and
Biodiversity Act 1999. Section 12.23 of the Environment Protection and Biodiversity
Conservation Regulations 2000 includes a 50 penalty unit fine for entering or remaining
in a Commonwealth reserve in contravention of a prohibition or restriction.
350. There is a 12 month delay after Royal Assent for the commencement of item 44 to
allow the NT to make amendments to the AL Act to provide for consistency. The AL Act
makes it an offence to enter onto or remain on Aboriginal land or use a road unless a
person has been issued with a permit to do so. Currently, the maximum penalty is 8
penalty units. See Items 34 and 35 above.
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Schedule 4 - Technical amendments to the ABA
Aboriginal Land Rights (Northern Territory) Act 1976
351. Schedule 4 to the Bill amends the Land Rights Act to:
a) align the ABA with the Commonwealth financial framework (items 1-3 and 5);
b) authorise credits to the ABA on the basis of interim mining-derived payments, to
align the provisions of the Land Rights Act with the way royalties are paid in practice
(item 4); and
c) facilitate balancing of the ABA, where excess amounts are credited to the ABA on the
basis of interim mining-derived payments (items 6 and 7).
Items 1 to 3 and 5 - Subsection 63(5) and new section 63A
352. Items 1, 2, 3 and 5 amend the Land Rights Act to align the language of Part VI with
the Commonwealth financial framework (particularly the PGPA Act) and the
constitutional framework that underpins it).
353. Items 1 and 3 replace references in subsection 63(5) of the Land Rights Act to
amounts being payable under subsection 63(4) of the Land Rights Act. Subsection 63(4)
provides for credits to the ABA of amounts derived from mining operations conducted by
or on behalf of the Commonwealth, the NT or an authority. Subsection 63(5) sets out the
method of determining the amounts to be credited.
354. These amendments align the language of subsection 63(5) with the rest of section 63
of the Land Rights Act and section 80 of the PGPA Act.
355. As special accounts form part of the CRF, payments are not paid into special accounts
from the CRF. Rather, amounts, which may correspond to amounts that have been paid,
are credited to a special account. Item 2 inserts 'amounts equal to' before 'such amounts'
in paragraph 63(5)(a) to reflect this arrangement.
356. Item 5 inserts new section 63A into the Land Rights Act. New section 63A specifies
the purposes of the ABA as paying amounts that are required or permitted to be paid
under section 64 or 64A of the Land Rights Act.
357. New section 63A of the Land Rights Act makes clear that the appropriation in section
80 of the PGPA Act covers expenditure where amounts are required or permitted to be
paid under sections 64 and 64A of the Land Rights Act (a consequential change to new
section 63A will occur under item 3 of Part 1 of Schedule 1). Subsection 80(1) of the
PGPA Act provides that where an Act establishes a special account and identifies
purposes of the special account, then the CRF is appropriated for expenditure for those
60
purposes, up to the balance for the time being of the special account. The note directs the
reader to section 80 of the PGPA Act.
Item 4 - New subsection 63(8)
358. Item 4 adds new subsection 63(8) into the Land Rights Act. This provision aligns the
ABA credit provisions with the manner in which mining royalties are paid in practice,
and ensures that amounts purportedly credited into the ABA may be debited under section
64 of the Land Rights Act. This removes the possibility that an amount greater than the
amount standing to the credit of the ABA might be debited from the ABA. In particular,
the provision ensures that 30 per cent of the amount actually credited to the ABA can be
paid to Land Councils as required by subsection 64(3) of the Land Rights Act. In doing
so, the provision ensures that the administration of the ABA is in accordance with section
64 of the Land Rights Act.
359. Specifically, new paragraph 63(8)(a) of the Land Rights Act clarifies that for the
purposes of section 63 of the Land Rights Act, a royalty is taken to include an amount
paid on account of royalty. This provision aligns the authority for crediting the ABA
based on royalty amounts with administrative practice for these credits. Administrative
practice in relation to credits based on royalty payments is a consequence of the process
for assessing and auditing royalty payments under the Mineral Royalty Act. This process
is explained at paragraphs 33 to 39 of the General Outline of this explanatory
memorandum.
360. New paragraph 63(8)(b) of the Land Rights Act provides that an amount may be
credited to the ABA in purported compliance with a requirement to credit an amount to
the ABA under subsection 63(4) of the Land Rights Act. This provision aligns authority
for crediting the ABA as required by subsection 63(5) of the Land Rights Act with
administrative practice for these credits.
361. New subsection 63(8) of the Land Rights Act ensures that the balance of the ABA
reflects the administrative practice for crediting the ABA with amounts equal to amounts
paid on account of royalty, or amounts paid in purported compliance with subsection
63(4) of the Land Rights Act. In this way, new subsection 63(8) ensures that debits
calculated on the basis of these amounts, particularly debits under subsection 64(3) of the
Land Rights Act, are supported by the Land Rights Act and, consequently the
appropriation in section 80 of the PGPA Act.
Items 6 and 7 - Section 64
362. Item 7 amends Part VI of the Land Rights Act to provide mechanisms to balance the
ABA where credits have been made:
a) on account of royalties (rather than based on royalties assessed as payable); or
b) in purported compliance with subsection 63(4) of the Land Rights Act.
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363. Item 6 confirms that the requirement to debit the ABA under subsection 64(3) of the
Land Rights Act is subject to the mechanisms in new subsections 64(3A) and 64(3B) of
the Land Rights Act.
364. These mechanisms relate to the amendment in Item 4, which has the effect of
authorising credits to the ABA based on interim mining-derived payments. The
mechanisms provide capacity to ensure that:
a) where excess amounts are credited to the ABA on the basis of interim mining-derived
payments, debits calculated on the basis of these excess amounts can be adjusted
before they are withdrawn from the CRF, or if they are withdrawn from the CRF, they
can be offset against future debits from the ABA; and
b) where debits are reduced, or offset against future debits, the balance of the ABA can
be reduced to reflect royalties payable, or final determined amounts, rather than
interim mining-derived payments. In doing so, these mechanisms support the
continuation of the current policy of balancing the ABA.
365. This item inserts new subsections 64(3A), (3B) and (3C) into the Land Rights Act.
New subsection 64(3A) enables the Minister to reduce the amount of a debit from the
ABA to a Land Council under subsection 64(3) of the Land Rights Act in respect of a
mining interest or mining operations, having regard to:
a) an amount paid on account of royalties being higher than the royalties later assessed
as being payable in respect of that mining interest; or
b) an amount credited to the ABA in purported compliance with subsection 63(4) of the
Land Rights Act in respect of the mining operations being higher than the amount
later determined as being required to be credited under subsection 63(4).
366. The Minister's power to reduce a debit is discretionary, and is limited to reducing the
debit amount by the amount of the excess.
367. The power in new subsection 64(3A) of the Land Rights Act ensures the Minister can
adjust debits under subsection 64(3) of the Land Rights Act to reflect actual royalties
payable, or the final determined amount that was required to be credited under subsection
63(4). The power could be utilised where final amounts are assessed or determined before
debits are made under subsection 64(3) of the Land Rights Act.
368. New subsection 64(3B) of the Land Rights Act enables the Minister to offset an
excess amount of a debit to a Land Council under subsection 64(3) of the Land Rights
Act in respect of a mining interest or mining operations against a future debit under
subsection 64(3) in respect of the same mining interest or mining operations, where the
amount of the first debit was higher than it should have been having regard to either:
62
a) an amount paid on account of royalties being higher than the royalties later assessed
as being payable in respect of the mining interest; or
b) an amount credited to the ABA in purported compliance with subsection 63(4) of the
Land Rights Act in respect of the mining operations being higher than the amount
later determined as being required to be credited under subsection 63(4).
369. The Minister's power to offset a debit is discretionary. The debit that is offset and the
future debit must be in respect of the same mining interest or mining operation.
370. The power in new subsection 64(3B) of the Land Rights Act ensures the Minister can
adjust future debits under subsection 64(3) of the Land Rights Act to reflect actual
royalties payable, or the final determined amount that was required to be credited under
subsection 63(4). The power could be utilised where final amounts are assessed or
determined after debits are made under subsection 64(3) of the Land Rights Act.
371. New subsection 64(3C) enables the Minister to balance the ABA if an amount is
reduced under new subsection 64(3A) of the Land Rights Act, or offset under new
subsection 64(3B) of the Land Rights Act. Depending on the applicable circumstances,
the Minister may reduce the amount standing to the credit of the ABA (whether by way of
a single reduction or a series of reductions) by an amount not greater than:
a) the difference between the amount paid on account of royalties in respect of a mining
interest and the amount of royalties later assessed as being payable in respect of the
mining interest; or
b) the difference between the amount that was credited to the ABA in purported
compliance with subsection 63(4) of the Land Rights Act in respect of mining
operations, and the amount later determined as being required to be credited in respect
of the mining operations.
372. The power in new subsection 64(3C) of the Land Rights Act ensures the Minister can
balance the ABA to reflect actual royalties payable, or the final determined amount that
was required to be credited under subsection 63(4) of the Land Rights Act.
63
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Aboriginal Land Rights (Northern Territory) Amendment (Economic
Empowerment) Bill 2021
1. 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
2. The Bill will empower Aboriginal peoples in the NT to activate the economic potential of
their land for generations to come. The Bill will amend the Land Rights Act in four key
areas:
a) Establishing the NTAI Corporation
The Bill will establish the NTAI Corporation as a new Aboriginal-controlled
corporate Commonwealth entity in the Land Rights Act to strategically invest in
Aboriginal businesses and commercial projects and make other payments for the
benefit of Aboriginal peoples in the NT.
b) Streamlining the exploration and mining provisions of the Land Rights Act
The Bill will reduce inefficiencies associated with exploration and mining processes
on Aboriginal land in the NT by:
i. improving the application and consent process for exploration licences on
Aboriginal land so that:
- applications can be amended without the need to recommence the
application process;
- Land Councils can take a more flexible approach to meetings with
traditional owners; and
- the Minister's consent is not required following the Land Council
providing notice of consent for the grant of an exploration licence;
ii. enabling more efficient and consistent administration of exploration and mining
on Aboriginal land;
iii. updating terms and definitions relating to exploration and mining to align with
related NT legislation.
c) Improving and clarifying land administration provisions of the Land Rights Act
The Bill will improve land administration and enhance local decision-making by:
64
i. prescribing nomination and approval processes and the funding arrangements
for approved entities that may hold a township lease under section 19A of the
Land Rights Act;
ii. providing that Land Councils may enter into agreements in respect of land that
is the subject of a deed of grant held in escrow;
iii. increasing the amount at which Land Councils must seek Ministerial approval
to enter into a contract from $1 million to $5 million;
iv. removing the requirement that a permit issued under section 5 of the AL Act
may only be revoked by the issuer of the permit;
v. increasing the penalties for unauthorised access to Aboriginal land; and
vi. repealing unused powers for the delegation of Land Council functions to
Aboriginal corporations.
d) Aligning the ABA with the Commonwealth's financial framework
The Bill will align the Land Rights Act with the Commonwealth financial framework
by:
i. aligning the ABA with NT legislation for the payment of mineral royalties; and
ii. clarifying the purposes of the ABA.
3. The Land Rights Act provides a legislative framework for claims to, and the grant,
regulation and management of, Aboriginal land in the NT, which is a form of freehold
land. Aboriginal land is the strongest form of traditional land title in Australia.
Approximately 50 per cent of the NT is Aboriginal land under the Land Rights Act.
4. Amendments to the Land Rights Act are not common. Aboriginal stakeholders in the NT
have strong voices through their Land Councils (the NLC, CLC, ALC and TLC) and the
Commonwealth has committed to only amend the Land Rights Act with their support.
5. Traditional owners of Aboriginal land hold decision-making powers over land access and
use. The Land Councils assist traditional owners to acquire and manage their land. Land
Councils must consult with traditional owners and affected Aboriginal people to ensure
land use proposals are understood and consented to by the traditional owners.
6. This Bill is informed by an extensive co-design process with Aboriginal Territorians
through their Land Councils. In particular:
a) the ABA Reform Working Group, including representatives from the Commonwealth,
Land Councils and the ABAAC has been meeting since 2018 to design ways to
increase Aboriginal decision-making over the ABA for the benefit of Aboriginal
65
peoples in the NT, and to co-design the NTAI Corporation and administration of
Aboriginal land. These reforms have been requested by Aboriginal Territorians,
through their Land Councils;
b) negotiations regarding options for beneficial amendments to the exploration and
mining provisions of the Act have been long-standing. A Working Group comprising
representatives from the Land Councils, the NT Government and the Commonwealth
(as represented by the NIAA and DISER) was established in 2015 to consider the
2013 Report on Review of Part IV of the Aboriginal Land Rights (Northern Territory)
Act 1976. In addition to the Working Group, there has been significant consultation
with relevant industry peak bodies; the MCA NT, APPEA and the AMEC;
c) the NIAA has consulted the EDTL in relation to the amendments contained in
Schedule 3; and
d) during 2019-2020, the Gove Peninsula Futures Land Tenure Working Group,
comprised of representatives from the Rirratjingu Aboriginal Corporation, Gumatj
Corporation, NLC, NT Government, Rio Tinto and NIAA, requested enhanced
certainty for parties negotiating agreements in respect of land that is the subject of a
deed of grant held in escrow.
Human rights implications
7. This Bill engages the following human rights:
a) the right of self-determination in Article 1 of the International Covenant on Civil and
Political Rights (ICCPR) and Article 1 of the International Covenant on Economic,
Social and Cultural Rights (ICESCR);
b) the right to enjoy, practice and benefit from culture in Article 27 of the ICCPR and
Article 15 of the ICESCR; and
c) the rights of equality and non-discrimination in Articles 2, 16 and 26 of the ICCPR,
Article 2 of the ICESCR and Article 5 of the International Convention on the
Elimination of all forms of Racial Discrimination (CERD).
The right to self-determination
8. The right to self-determination, as set out in Article 1 of the ICCPR and Article 1 of the
ICESCR, entails the entitlement of peoples to have control over their destiny and to be
treated respectfully. This includes peoples being free to collectively pursue their
economic, social and cultural development without outside interference. The right to self-
determination is a collective right applying to groups of 'peoples'. This is in contrast to
the right to enjoy, practice and benefit from culture, which protect the rights of
66
individuals within a group. The right is widely understood to be exercisable in a manner
that preserves territorial integrity, political unity and sovereignty of a country.
9. The right is also contained in Articles 3 and 4 of the United Nations Declarations on the
Rights of Indigenous Peoples (UNDRIP). While UNDRIP is not included in the definition
of 'human rights' under the Human Rights (Parliamentary Scrutiny) Act 2011, it informs
the way governments engage with and protect the rights of Indigenous peoples. Article 18
of UNDRIP also provides that 'Indigenous peoples have the right to participate in
decision-making in matters which would affect their rights, through representatives
chosen by themselves in accordance with their own procedures, as well as to maintain and
develop their own indigenous decision-making institutions'.
10. The ABA is a special account continued in existence by Part VI of the Land Rights Act. It
is credited and debited in accordance with the provisions of Part VI, which includes the
crediting of moneys equivalent to moneys received in respect of mining on Aboriginal
land in the NT.
11. The Bill facilitates the economic development of Indigenous peoples by establishing an
Aboriginal-controlled entity that will decide how part of the moneys derived from mining
on Aboriginal land may be used. A key function of the NTAI Corporation is to make
payments to or for the benefit of Aboriginal peoples living in the NT and strategically
invest in Aboriginal businesses and commercial projects. At least eight of the 12 Board
members of the NTAI Corporation will be Aboriginal persons living in the NT.
12. In making payments and investments, the NTAI Corporation must have regard to its
Strategic Investment Plan. In developing, or revising, a strategic investment plan, the
Board of the NTAI Corporation must consult with Aboriginal peoples living in the NT
and Aboriginal organisations based in the NT. Consequently, Aboriginal peoples and
communities in the NT will be involved in shaping how payments and investments are
made. This advances the right to self-determination by allowing traditional owners to
make decisions and provide their informed consent, and upholds the collective nature of
decision-making.
13. The Bill will streamline township leasing provisions to accommodate community entities,
in the form of CATSI corporations, holding township leases. In particular, it will
prescribe the obligations of, and nomination and approval process for, community entities
holding township leases under section 19A of the Land Rights Act. This will help
empower traditional owners themselves to hold township leases through an approved
entity such as a local CATSI corporation. Consistent with the right of Aboriginal peoples
to self-determination, this will facilitate increased uptake of community entity township
leasing, and therefore increased local control over decision-making on Aboriginal land.
14. The Bill enables Land Councils to enter into agreements in respect of land the subject of a
deed of grant held in escrow. These measures protect the right to self-determination, as
Land Councils currently do not have the ability to enter into such agreements. Land
Councils must be satisfied of the following before entering into such agreements:
67
a) that the traditional owners of the relevant land understand the nature and purpose of
the proposed agreement and, as a group, consent to it;
b) that any Aboriginal community or group that may be affected by the agreement has
been consulted and has adequate opportunity to express its views to the Land Council;
and
c) that the terms and conditions on which the agreement is to be made are reasonable.
15. The Bill updates the permit system through which access to Aboriginal land is regulated.
The Bill repeals section 74AA, which relates to the issuing and revoking of permits for
access to Aboriginal land. This change will ensure that permits issued by minority groups
within traditional owner communities can be revoked by Land Councils, enabling land
access to be managed in accordance with the wishes of each traditional owner community
as a whole.
16. The Bill supports the right to self-determination by clarifying the process for traditional
Aboriginal owners' to consider granting or refusing exploration and mining proposals on
Aboriginal land. This 'veto' right is a powerful one, representing the high benchmark in
Aboriginal control over proposals and developments on Aboriginal land. It may be
applied to an exploration application in whole or part.
17. Generally, the proposed measures will facilitate the ability of Aboriginal Territorians to
realise their own economic development and to continue to pursue their own financial
autonomy. As such, the Bill advances the right of Aboriginal peoples to
self-determination.
The right to enjoy, practice and benefit from culture
18. The right to enjoy, practice and benefit from culture is contained in Article 27 of the
ICCPR and Article 15 of the ICESCR. Article 27 of the ICCPR protects the rights of
individuals belonging to minority groups within a country to enjoy their own culture.
Article 15 of the ICESCR protects the right of all persons to take part in cultural life.
19. The United Nations Human Rights Committee has stated that culture can manifest itself
as a particular way of life associated with the use of land resources, especially in the case
of Indigenous peoples, which may include such traditional activities as fishing or hunting
and the right to live on lands protected by law.
20. The United Nations Committee on Economic, Social and Cultural Rights (UNCESCR)
has stated that Indigenous peoples' cultural values and rights associated with their
ancestral lands and their relationship with nature should be protected and regarded with
respect. UNCESCR has also provided guidance on the communal and individual aspects
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of the right to culture, in particular, that the reference to 'everyone' in Article 15 of the
ICESCR may denote either individual or collective rights to culture. UNCESCR has
noted, in particular, that Indigenous peoples have the right to act collectively to protect
their cultural heritage, traditional knowledge and cultural expressions.
21. Lastly, the UNCESCR has noted, in particular, that the right to take part in cultural life
for Indigenous peoples may be strongly communal. It notes that Indigenous peoples have
the right to act collectively to protect their cultural heritage, traditional knowledge and
cultural expressions.
22. The Bill advances the right of Aboriginal Territorians to enjoy and benefit from culture
by establishing the NTAIC, which has as one of its primary purposes the promotion of the
social and cultural wellbeing of Aboriginal peoples living in the NT. The NTAIC can
achieve this purpose by making payments to or for the benefit of Aboriginal peoples
living in the NT and investments to promote social and cultural wellbeing of Aboriginal
peoples living in the NT. The Bill promotes this right by providing an opportunity to
make money available to Aboriginal peoples and businesses in the NT, many of which
directly link to and promote cultural practices and the use of resources on Aboriginal land
(such as aquaculture projects, tour operations or bush tucker harvesting). As the money
available to the NTAI Corporation to make payments and investments is derived from
mining on Aboriginal land, the Bill also supports Aboriginal peoples to derive benefit
from the use of resources on their land.
23. The Bill will embed community entity township leasing in the Act. Land Councils,
traditional owners, and communities will therefore be empowered to regulate the flow of
payments through terms of their choosing within each township lease. This allows
Aboriginal peoples to enjoy, practice and benefit from culture as community entities are
the best-placed organisations to ensure funds are used to benefit economic and
community development outcomes.
24. The Bill will preserve traditional owners' right to enjoy, practice and benefit from culture
by simplifying the application process which provides the veto right over the whole or
part of the proposed area of exploration or mining. Traditional owners may refuse consent
to the grant of an exploration licence, and therefore also any mining on their country, by
so doing protect their country, sacred sites and culture.
25. The Bill makes amendments to the process for traditional owners' right to enter into and
benefit from agreements over the whole or part of the area proposed for exploration or
mining. Such agreements, as negotiated between applicants and Land Councils (on behalf
of traditional Aboriginal owners), include terms and conditions for the protection of
sacred sites and other culturally significant areas, as well as monetary benefits to
compensate for the impacts of exploration and/or mining. The proposed reforms clarify
that such agreements may provide for compensation to traditional Aboriginal owners for
the value of minerals removed or proposed to be taken from the land. By consenting to
exploration and mining on their land, Aboriginal owners can realise economic benefits of
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land ownership while also practicing and protecting their cultural interests.
The rights of equality and non-discrimination
26. The rights of equality and non-discrimination are contained in Articles 2, 3, 16 and 26 of
the ICCPR, Article 2 of the ICESCR and Article 5 of the CERD. These rights recognise
that all human beings have the right to be treated equally and not to be discriminated
against. Of particular relevance in the context of this Bill, the CERD establishes a general
prohibition on racial discrimination. The Racial Discrimination Act 1975 implements the
prohibition in Australia's domestic law.
27. Subsection 8(1) of the Racial Discrimination Act 1975, in accordance with Article 1(4) of
CERD, allows 'special measures' which are designed to ensure advancement of certain
groups. 'Special measures' are an exception to this general prohibition and are designed
to 'secure to disadvantaged groups the full and equal enjoyment of human rights and
fundamental freedoms'. Where a 'special measure' is taken, it is deemed not to be racial
discrimination. For a measure to be characterised as a 'special measure' it must:
a) be for a particular group or individuals;
b) be taken for the sole purpose of securing the adequate advancement of that group or
those individuals;
c) be 'necessary'; and
d) not continue after its objective has been achieved.
28. As Justice Lockhart noted in Pareroultja v Tickner (1993) 42 FCR 32 (Pareroultja), the
Land Rights Act is essentially discriminatory in its nature, as it 'confers rights and
privileges upon Aboriginal Australians which are discriminatory as against
non-Aboriginal Australians.' Justice Lockhart also commented in Pareroultja (at [57])
that this discrimination 'is the essence of the [Land Rights Act]; it is the foundation on
which it is structured'.
29. However, the Courts have recognised the Land Rights Act as a 'special measure' (see
Lockhart J's comments in Pareroultja, at [63]). Accordingly, the Land Rights Act remains
necessary to address continuing disadvantage faced by Aboriginal peoples in the NT as a
result of historical dispossession.
30. The Bill introduces measures to the Land Rights Act that will bolster the support needed
to meet the unique needs and cultural contexts of Aboriginal peoples. The creation of the
NTAI Corporation, for example, NTAI Corporation provides an opportunity for
Aboriginal peoples in the NT to have a say on how money ultimately derived from
mining on Aboriginal land is to be used. This measure supports Aboriginal peoples to
derive benefit from the use of resources on their land.
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31. In addition, the Bill will improve township leasing provisions to more easily
accommodate community entities holding township leases. This further promotes self-
management and autonomy among Aboriginal peoples by facilitating traditional owners
themselves to hold township leases through a CATSI corporation.
32. The measures in this Bill complement and enhance the existing measures in the Land
Rights Act and, consequently, may be characterised as components of a broader 'special
measure'.
Conclusion
33. The Bill is compatible with human rights because it promotes the right to self-
determination and the right to enjoy, practice and benefit from culture. The Bill also
advances the rights of equality and non-discrimination by enhancing an existing special
measure.
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