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02 May 2019

NT Government sets out ten actions prioritising Aboriginal land and sea ownership in the NT

By Margaret Michaels, Mark Geritz and Nicole Besgrove

A partnership approach will be taken to implement ten actions to deliver on the economic and social aspirations of Aboriginal Territorians for their land and sea rights and interests.

On 11 April 2019, the Northern Territory Government released the Northern Territory Aboriginal Land and Sea Action Plan with its vision "to ensure land and sea ownership delivers on the economic and social aspirations of Aboriginal Territorians".

In order to achieve this vision and maximise the economic and social benefits of Aboriginal land and sea rights and interests recognised under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALRA) and the Native Title Act (Cth) 1993, the plan contains ten actions which the NT Government will implement in partnership with Aboriginal land councils, the Commonwealth Government and other key stakeholders in the Territory.

The ten actions

Action 1: The  NT Government will work with the land councils, the Commonwealth and the Aboriginal Land Commissioner to resolve the traditional land claims under the ALRA which remained undetermined when legislative amendments preventing the Aboriginal Land Commissioner from conducting inquiries into any new land claims took effect. The Action Plan states that there are 41 unresolved land claims, 23 of which relate to the beds and banks of rivers and intertidal coastal areas, which will be resolved.

Action 2: The NT Government will work with the Northern Land Council and key industry groups to resolve issues arising from the High Court decision in Northern Territory v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24 (the Blue Mud Bay case) to provide long-term access arrangements for Traditional Owners, key stakeholders, industry and business operators, and the general public to waters overlaying Aboriginal land. In the Blue Mud Bay case, the majority of the High Court of Australia found that:

  • pursuant to the ALRA, a person may not enter or remain on Aboriginal land except (among other things) in accordance with the ALRA or with a law of the Northern Territory;
  • the statutory rights created for Aboriginal land granted under the ALRA is the equivalent of full ownership of the land in fee simple;
  • the boundaries of a deed of grant of an estate in land include the intertidal zone (ie the area between high and low water marks) including river mouths and estuaries; and
  • the Fisheries Act (NT) allows for the grant of a licence to authorise or permit the holder to take fish or aquatic life, but does not confer a power to grant a licence to enter or remain on coastal Aboriginal land.

Action 3: The NT Government will continue to participate in the Part IV Working Group established in 2016 to develop an agreed position with the land councils and the Commonwealth on which of the recommendations in the Aboriginal Land Commissioner's 2013 Report on Review of Part IV of the Aboriginal Land Rights (Northern Territory) Act 1976 will be implemented (Part IV of the ALRA deals with an administrative regime to control exploration and mining on Aboriginal land in the Northern Territory).

Action 4: An NT Government Native Title Policy Framework to be developed in order to provide a more consistent approach to native title in the NT rather than policies being developed on a case-by-case basis as currently occurring within responsible departments and agencies. It is proposed that the Framework will cover:

  • recognising and recording native title determinations in the Northern Territory Land Information System;
  • future acts, future act processes, and future acts compensation liability;
  • the approach to compensation the NT Government will use in light of the Timber Creek decision;
  • the identification of issues and the development of policy positions that might assist in the resolution of outstanding claimant applications;
  • assisting Registered Native Title Bodies Corporate to build the capacity, governance and capability to deal with government, including working with the Commonwealth to build the long-term capacity and capability to be self-sufficient land managers; and
  • native title rights and interests over sea country.

Action 5: Development of a strategic approach to complex tenure and other issues in mining towns, including Jabiru, Nhulunbuy and Alyangula, for their transition into Aboriginal Land post-mining. It is proposed that the NT Government will establish a Senior Officers Working Group to develop an approach which will:

  • ensure a co-ordinated whole-of-government approach is taken to engagement and negotiations with Traditional Owners, the relevant land councils, and all relevant stakeholders;
  • inform the development of strategic whole-of-government positions in relation to the future tenure arrangements and delivery of services for Jabiru, Alyangula, and Nhulunbuy, including prioritising the needs of the towns;
  • support the future of Jabiru and the development of attractions and infrastructure to increase the number of visitors to Kakadu;
  • enhance partnerships between land councils, Traditional Owners, industry, and governments to better align aspirations and investment opportunities; and
  • provide regionally-based support for the affected towns and nearby communities.

Action 6: Enhance the opportunities for long-term leasing on Aboriginal Land, which will include developing community held township leasing arrangements. Under the ALRA, Aboriginal land cannot be disposed of by, or on behalf of Traditional Owners, and therefore cannot provide security for loan by way of mortgage as the land cannot be sold by the bank in the event of default. However, leasing Aboriginal land is not similarly prohibited under the ALRA and therefore, a long-term lease can be used as security for a loan.

Under this, the NT Government will:

  • work with land councils to develop long-term leasing models that are recognised and supported by industry and financiers;
  • work with the land councils and the Commonwealth to explore township leasing options, including community entity held township leases;
  • work with land councils to resolve land tenure issues associated with operating and maintaining essential public services, such as roads, barge landings and aerodromes, on Aboriginal land;
  • consider possible exceptions to the requirement for development consent under the Planning Act 1999 (NT) for all leases over 12 years under the ALRA; and
  • work with the Commonwealth to streamline processes relating to long-term leases on Aboriginal land.

Action 7: The NT Government will support the management of Aboriginal Land by:

  • continuing to implement the Land Management and Conservation Fund, which delivers $8 million in grant funding over four years from 2017/18 to 2020/21 for Aboriginal land and sea management projects;
  • working with the Northern and Central Land Councils to reinvigorate jointly managed parks administered by the NT Government;
  • support initiatives to improve opportunities for carbon abatement activities on Aboriginal land;
  • implement the Coastal and Marine Management Strategy; and
  • support ranger training and development pathways and explore options for enhanced ranger enforcement powers.

Action 8: Support economic development and employment on Aboriginal Land to activate the economic value of land, water, sea and cultural resources rights by:

  • ensuring that implementation of this Action Plan aligns with and complements policy initiatives developed by the Commonwealth’s Indigenous Reference Group and endorsed by the Ministerial Forum on Northern Development;
  • address identified barriers to development on Aboriginal land, and support partnerships between Aboriginal and non-Aboriginal enterprises;
  • develop an Aboriginal Contracting Framework;
  • support Aboriginal training and employment opportunities;
  • support Aboriginal organisations to build governance capacity and leadership capability;
  • continue to deliver the Mapping the Future Program;
  • support the Northern and Central Land Councils to secure Australian Government and corporate assistance to implement Aboriginal land and sea economic development agencies or corporations including pilot projects;
  • support the land councils' capacity through staff secondment for economic development activities; and
  • establish Strategic Aboriginal Water Reserves.

Action 9: Make improvements to NT legislative and administrative processes by:

  • continuing to work with land councils to collect, collate and publish (on the Northern Territory Land Information System) non-confidential information about rights and interests granted in Aboriginal land in order to protect those interests and to provide certainty and transparency for all stakeholders;
  • engaging with the land councils, through the Aboriginal Areas Protection Authority, to explore ways to improve the efficiency and effectiveness of administrative processes under the Northern Territory Aboriginal Sacred Sites Act 1989 (NT);
  • exploring possible amendments to the Planning Act 1999 (NT) to remove the need for development consent for leases over 12 years on Aboriginal land;
  • amending the Northern Territory Aboriginal Sacred Sites Act 1989 (NT) in line with supported recommendations from the Sacred Sites Processes and Outcomes Review and the Final Report of the Scientific Inquiry into Hydraulic Fracturing in consultation with the four NT land councils; and
  • undertaking legislative reform to recognise the role of Aboriginal ranger groups and provide them with enforcement powers.

Action 10: Support improvements to Commonwealth legislative processes aimed at enhancing the effectiveness of the ALRA and the Native Title Act by:

  • exploring options with the Northern Land Council, the Central Land Council and the Commonwealth to improve the operation of the Native Title Act;
  • exploring ways to ensure the ALRA works seamlessly with the Control of Roads Act 1953 (NT) and other NT roads legislation;
  • exploring options with the land councils and the Commonwealth to ensure that the costs that Land Trusts incur as a Territory landholder are able to be met; and
  • exploring options to enable Land Trusts to provide the NT Government with an appropriate interest in Aboriginal land (short of an estate in fee simple) to meet demands for serviced residential land and to deliver essential public services to residents in Aboriginal communities.

Implementing the actions

The NT Government has acknowledged that some of the actions will need to be progressed in an order which will depend upon priorities and available resources.

Irrespective of the order of implementation, the NT Government will need to remain the driving force for each of the actions and it will be vital that a cooperative partnership approach is maintained with effective consultation and communication between all levels of government, key stakeholders and the public to achieve the Action Plan's vision.

With respect to the proposed legislative amendments flagged in the Action Plan, public consultation of those amendments will need to be undertaken which will allow key stakeholders and the public the opportunity to have their say.

If you would like to understand any of the details contained in the Action Plan or more generally about land and sea rights and interests under the ALRA and the Native Title Act in the NT please contact us.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.