An Act providing for the granting of Traditional Aboriginal Land in the Northern Territory for the benefit of Aboriginals, and for other purposes
Part I—Preliminary
1 Short title
This Act may be cited as the Aboriginal Land Rights (Northern Territory) Act 1976.
2 Commencement
(1) This Act, other than section 70, shall come into operation on a date to be fixed by Proclamation.
(2) Section 70 shall come into operation on a date to be fixed by Proclamation, being a date later than the date fixed for the purposes of subsection (1).
3 Interpretation
(1) In this Act, unless the contrary intention appears:
Aboriginal means a person who is a member of the Aboriginal race of Australia.
Aboriginal and Torres Strait Islander corporation means a corporation registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006.
Aboriginal land means:
(a) land held by a Land Trust for an estate in fee simple; or
(b) land the subject of a deed of grant held in escrow by a Land Council.
Aboriginal tradition means the body of traditions, observances, customs and beliefs of Aboriginals or of a community or group of Aboriginals, and includes those traditions, observances, customs and beliefs as applied in relation to particular persons, sites, areas of land, things or relationships.
Account means the Aboriginals Benefit Account continued in existence by section 62.
adult Aboriginal means an Aboriginal who has attained the age of 18 years.
alienated Crown land means Crown land in which a person (other than the Crown) has an estate or interest, but does not include land in a town.
Alligator Rivers Area (No. 3) means the land described in Schedule 4.
approved entity means a Commonwealth entity or an NT entity.
area, in relation to a Land Council, means an area for which the Council is established under this Act.
Authority means an authority established by or under a law of the Commonwealth or a law of the Northern Territory.
category A Jabiru land means land specified in an instrument under subsection 3AD(1).
category B Jabiru land means land specified in an instrument under subsection 3AD(2).
category C Jabiru land means land specified in an instrument under subsection 3AD(3).
Commissioner means an Aboriginal Land Commissioner holding office under Part V.
Commonwealth Electoral Roll means the Rolls kept under the Commonwealth Electoral Act 1918.
Commonwealth entity means a person approved by the Minister under section 3AAA.
community living area has the same meaning as in the Stronger Futures in the Northern Territory Act 2012.
community purpose means a purpose that is calculated to benefit primarily the members of a particular community or group.
conservation zone has the meaning given by the Environment Protection and Biodiversity Conservation Act 1999.
Crown Land means land in the Northern Territory that has not been alienated from the Crown by a grant of an estate in fee simple in the land, or land that has been so alienated but has been resumed by, or has reverted to or been acquired by, the Crown, but does not include:
(a) land set apart for, or dedicated to, a public purpose under an Act; or
(b) land the subject of a deed of grant held in escrow by a Land Council.
Director has the meaning given by the Environment Protection and Biodiversity Conservation Act 1999.
Electoral Commissioner has the same meaning as in the Commonwealth Electoral Act 1918.
excludable matter means any of the following:
(a) a matter relating to a member of the staff of a Land Council or to any other person assisting a Land Council in the performance of its functions or in the exercise of its powers;
(b) a matter involving personal hardship suffered by a person;
(c) a trade secret or other information having a commercial value the disclosure of which would, or could reasonably be expected to, affect a person adversely in respect of the person’s lawful business, professional, commercial or financial affairs;
(d) any matter the divulging or communicating of which is prohibited by section 23E;
(e) information the disclosure of which would found an action for breach of confidence;
(f) information of such a nature that it would be privileged from being disclosed in legal proceedings on the ground of legal professional privilege;
(g) information the disclosure of which would, or could reasonably be expected to, prejudice the enforcement or proper administration of the law;
(h) a matter affecting the security of a Land Council, its members, its staff or its property;
(i) information that is considered sacred or otherwise significant by a particular group of Aboriginals, the disclosure of which would be inconsistent with the views or sensitivities of those Aboriginals.
Executive Director means the Executive Director of Township Leasing referred to in section 20B.
exploration licence includes:
(a) a prospecting authority; and
(b) a permit in respect of land under the Petroleum (Prospecting and Mining) Act 1954 of the Northern Territory; and
(c) a permit granted under the Petroleum Act 1984 of the Northern Territory; and
(d) a right to explore for minerals under:
(i) if subsection 53(2A) of the Lands Acquisition Act 1955 applies by virtue of subsection 124(8) of the Lands Acquisition Act 1989—the first‑mentioned subsection; or
(ii) if subparagraph (i) does not apply—regulations made for the purposes of subsection 124(1) of the Lands Acquisition Act 1989.
exploration retention licence means an exploration retention licence granted under a law of the Northern Territory relating to mining for minerals and includes a retention licence granted under the Petroleum Act of the Northern Territory as amended from time to time.
extractive mineral means:
(a) soil; or
(b) sand, gravel, clay or stone, being sand, gravel, clay or stone that is suitable for use in construction or building works.
extractive mineral deposit means a deposit of extractive minerals.
Gimbat, or Goodparla, means, in each case, the area described by that name (being an area of land that is or was subject to a pastoral lease) on the map referred to in the definition of Alligator Rivers Region in section 3 of the Environment Protection (Alligator Rivers Region) Act 1978.
grant, in relation to an interest in land (including any interest referred to in a paragraph of subsection (2) of this section), includes the doing of any action by reason of which the interest arises.
intending miner, in respect of Aboriginal land, means:
(a) a person who makes application, under a law of the Northern Territory relating to mining for minerals, for the grant of a mining interest in respect of that land, while the person:
(i) holds an exploration licence under that law in respect of that land; or
(ii) being a person who has held an exploration licence in respect of that land, holds under that law an exploration retention licence, or has made an application for the grant of an exploration retention licence, in respect of that land or a part of that land; or
(b) a person who:
(i) if subsections 51(1A) and 53(2A) of the Lands Acquisition Act 1955 apply by virtue of subsection 124(8) of the Lands Acquisition Act 1989—makes an application, under subsection 51(1A) of the first‑mentioned Act for the grant of a lease or licence to mine for minerals on that land, while the person holds, under subsection 53(2A) of that Act, a right to explore for minerals on that land; or
(ii) if subparagraph (i) does not apply—makes an application for the grant, under regulations made for the purposes of subsection 124(1) of the Lands Acquisition Act 1989, of a right to mine for, or recover, minerals on that land, while the person holds, under the regulations, a right to explore for minerals on that land.
Jabiru Town Development Authority means the Jabiru Town Development Authority established by the Jabiru Town Development Act (NT).
Jabiru town land has the meaning given by section 3AC.
Kakadu Aboriginal Land Trust means the Land Trust of that name established by the Minister by notice published in the Gazette under subsection 4(1).
Land Council means an Aboriginal Land Council established by or under this Act.
Land Trust means an Aboriginal Land Trust established under this Act.
law of the Northern Territory means a law made under, or having effect in the Northern Territory by virtue of, the Northern Territory (Self‑Government) Act 1978.
mineral royalties means royalties payable to the Commonwealth or the Northern Territory in respect of the mining of minerals.
minerals includes:
(a) gold, silver, copper, tin and other metals;
(b) coal, shale, petroleum and valuable earths and substances;
(c) mineral substances;
(d) gems and precious stones; and
(e) ores and other substances containing minerals;
whether suspended in water or not, and includes water but does not include extractive minerals.
miner’s right means a miner’s right or other authority issued under a law of the Northern Territory relating to mining for minerals, being a right or authority that empowers the holder to take possession of, mine or occupy land, or take any other action in relation to land, for any purpose in connexion with mining.
mining interest means:
(a) any lease or other interest in, or right in respect of, land granted under a law of the Northern Territory relating to mining for minerals (other than a lease or other interest in land, or a right, relating to the mining or development of extractive mineral deposits); or
(b) if subsections 51(1A) and 53(2A) of the Lands Acquisition Act 1955 apply by virtue of subsection 124(8) of the Lands Acquisition Act 1989—any lease, licence or other right granted under any of those provisions; or
(c) if regulations have been made for the purposes of subsection 124(1) of the Lands Acquisition Act 1989—any right granted under those regulations to explore for, mine for, or recover, minerals;
but does not include, when the expression is used in Part IV, any such lease, licence, interest or right that is an exploration licence or exploration retention licence.
mission means a religious society or association the purposes of which are, or include, furthering the spiritual, cultural or economic welfare of Aboriginals, and includes a trustee or trustees empowered to hold land on behalf of such a society or association.
Northern Territory Mining Minister means the person holding ministerial office under section 36 of the Northern Territory (Self‑Government) Act 1978 who is responsible for the administration of the law of the Northern Territory relating to mining for minerals.
NT entity means a person approved by the Chief Minister of the Northern Territory under subsection 3AA(1).
petroleum has the meaning given by subsection 5(1) of the Petroleum Act of the Northern Territory.
qualifying area means an area that:
(a) is wholly included in the area of a Land Council; or
(b) is partly included in the area of one Land Council and partly included in the area of one or more other Land Councils.
sacred site means a site that is sacred to Aboriginals or is otherwise of significance according to Aboriginal tradition, and includes any land that, under a law of the Northern Territory, is declared to be sacred to Aboriginals or of significance according to Aboriginal tradition.
town has the same meaning as in the law of the Northern Territory relating to the planning and developing of towns and the use of land in or near towns, and includes any area that, by virtue of regulations in force under that law, is to be treated as a town.
township, in relation to a Land Trust, has the meaning given by section 3AB.
traditional Aboriginal owners, in relation to land, means a local descent group of Aboriginals who:
(a) have common spiritual affiliations to a site on the land, being affiliations that place the group under a primary spiritual responsibility for that site and for the land; and
(b) are entitled by Aboriginal tradition to forage as of right over that land.
traditional land claim, in relation to land, means a claim by or on behalf of the traditional Aboriginal owners of the land arising out of their traditional ownership.
unalienated Crown land means Crown land in which no person (other than the Crown) has an estate or interest, but does not include land in a town.
(2) Unless the contrary intention appears, a reference in this Act to an estate or interest in land includes a reference to an interest by way of a right against the Crown to a grant of an estate or interest in land, but does not include a reference to:
(a) a mining interest;
(b) an interest arising out of the operation of the Atomic Energy Act 1953 or any other Act authorizing mining for minerals;
(ba) a lease or other interest in land, or a right granted in respect of land, under a law of the Northern Territory relating, in whole or in part, to the mining or development of extractive mineral deposits;
(c) an interest arising out of the taking possession, mining or occupation of land by virtue of a miner’s right; or
(d) an interest by way of the occupation or use, with the licence or permission of the Crown, of land by an Authority or a mission.
(3) A reference in this Act to an Act authorizing mining for minerals shall be read as a reference to such an Act whether passed before or after the commencement of this section and as including a reference to section 124 of the Lands Acquisition Act 1989.
(4) A reference in this Act to the granting of a mining interest in respect of Aboriginal land shall be read as not including a reference to the renewal, in accordance with an option or other right conferred before the land became Aboriginal land, of a mining interest that was in existence when the land became Aboriginal land.
(5) A description of land in Schedule 1 shall be deemed not to include any land on which there is, at the commencement of this section, a road over which the public has a right of way.
(6) A reference in this Act to the Crown shall be read as a reference to the Crown in right of the Commonwealth or the Crown in right of the Northern Territory or both, as the case requires.
3AAA Approval of Commonwealth entities
The Minister may, by writing, approve a person for the purposes of the definition of Commonwealth entity in subsection 3(1).
Note: Subsection 2C(1) of the Acts Interpretation Act 1901 provides that person includes a body corporate or body politic.
3AA Approval of NT entities
(1) The Chief Minister of the Northern Territory may, by writing, approve a person for the purposes of the definition of NT entity in subsection 3(1).
Note: Subsection 2C(1) of the Acts Interpretation Act 1901 provides that person includes a body corporate or body politic.
Executive authority
(2) If an NT entity is the Northern Territory, a Minister of the Northern Territory, on behalf of that entity, may:
(a) enter into a lease under section 19A; and
(b) exercise all the powers of a lessee (including granting a sublease).
(3) The power of the Legislative Assembly of the Northern Territory under the Northern Territory (Self‑Government) Act 1978 in relation to the making of laws extends to the making of laws providing for the establishment and operation of an authority or body for the purpose of the authority or body being approved under subsection (1) of this section.
3AB Townships
(1) For the purposes of this Act, a township, in relation to a Land Trust (the applicable Land Trust), is either of the following 2 types of areas of Aboriginal land vested in that Land Trust.
Areas applicable to all Land Trusts
(2) The first type is an area of land that is of a kind prescribed by the regulations, for the purposes of this subsection, in relation to all Land Trusts.
Areas applicable to that Land Trust
(3) The second type is an area of land that is prescribed by the regulations, for the purposes of this subsection, in relation to the applicable Land Trust only.
Kakadu Aboriginal Land Trust
(4) For the purposes of this Act, a township, in relation to the Kakadu Aboriginal Land Trust, is the area of Jabiru town land.
(5) Subsection (4) does not limit the application of subsections (1) to (3) in relation to the Kakadu Aboriginal Land Trust.
3AC Jabiru town land
(1) For the purposes of this Act, Jabiru town land means the land specified in an instrument under subsection (2).
(2) The Minister must, by legislative instrument, specify land for the purposes of subsection (1).
(3) Before making a legislative instrument under subsection (2), the Minister must have regard to the boundaries of the land comprising the whole of former Northern Territory Portion 2272 delineated on Survey Plan S79/31 lodged with the Surveyor‑General, Darwin (other than land on which there is a road over which the public has a right of way).
(4) Before making a legislative instrument under subsection (2), the Minister must consult the Government of the Northern Territory and the Land Council for the area in which the land is situated. The Minister may also consult such other persons or bodies as the Minister thinks appropriate.
3AD Category A, B and C Jabiru land
Category A Jabiru land
(1) For the purposes of the definition of category A Jabiru land in subsection 3(1), the Minister must, by legislative instrument, specify an area of the Jabiru town land.
Category B Jabiru land
(2) For the purposes of the definition of category B Jabiru land in subsection 3(1), the Minister must, by legislative instrument, specify an area of the Jabiru town land.
Category C Jabiru land
(3) For the purposes of the definition of category C Jabiru land in subsection 3(1), the Minister must, by legislative instrument, specify an area of the Jabiru town land.
Entire land to be specified
(4) The whole of the Jabiru town land must be specified under this section.
3A Crown land vested in Northern Territory
(1) Notwithstanding any law of the Northern Territory, the application of this Act in relation to Crown land extends to Crown land that is vested in the Northern Territory.
(2) Notwithstanding any law of the Commonwealth or of the Northern Territory, the Commonwealth is not liable to pay to the Northern Territory any compensation by reason of the making of a grant to a Land Trust of Crown land that is vested in the Northern Territory.
3B Act binds the Crown
This Act binds the Crown in right of the Commonwealth and of the Northern Territory.
3C Act has effect despite Lands Acquisition Act
This Act has effect despite anything contained in the Lands Acquisition Act 1989.
3D Application of the Criminal Code
Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Part II—Grants of land to Aboriginal Land Trusts
4 Land Trusts
(1) The Minister may, by notice published in the Gazette, establish Aboriginal Land Trusts to hold title to land in the Northern Territory for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of the land concerned, whether or not the traditional entitlement is qualified as to place, time, circumstance, purpose or permission, and, subject to subsections 10(1) and (2), shall so establish Land Trusts to hold the land described in Schedule 1.
(1A) Nothing in this Act shall be taken to imply that the Minister cannot establish, under this section, Land Trusts to hold different areas of land each of which is included within a single area of land that is described in Schedule 1.
(1AA) A Land Trust to hold any Crown land described in Part 2 or 3 of Schedule 1 must be established not later than 2 years after the commencement of this subsection.
(1AB) To avoid doubt, the Minister may establish a Land Trust under subsection (1) for the purpose of it holding land that is to be transferred to it under subsection 19(4).
(1AC) If:
(a) the Minister establishes a Land Trust (the new Land Trust) under subsection (1) for the purpose of it holding land that is to be transferred to it under subsection 19(4) by another Land Trust; and
(b) the other Land Trust advises the Minister in writing that it is no longer going to transfer the land;
the Minister may, by written notice, abolish the new Land Trust.
(1B) Where:
(a) the traditional Aboriginal owners of an area of land constituting the whole or a part of the land that is held by a Land Trust are also the traditional Aboriginal owners of an area of land constituting the whole or a part of land that is held by another Land Trust or in which an estate in fee simple would be likely, but for the operation of this subsection, to be granted to another Land Trust; and
(b) those traditional Aboriginal owners are in favour of the amalgamation, within a single Land Trust, of the areas of which they are the traditional owners;
the Land Council or Land Councils in the area or areas of which the areas of land proposed for amalgamation are situated may request the Minister, in writing, to take action under subsection (1C) to effect that amalgamation.
(1C) Where the Minister, upon receiving a request to take action under this subsection to effect the amalgamation of the whole or parts of 2 or more areas of affected land, is of the opinion that, in all the circumstances of the case, it is appropriate to do so, the Minister may:
(a) by notice published in the Gazette vary the specifications of the boundaries of a Land Trust established to hold affected land, with effect from the day upon which a new deed of grant, or new deeds of grants, relating to the land that that Land Trust was established to hold is or are delivered by the Governor‑General in accordance with the recommendations of the Minister under subsection 10(2A) or 11(1B), so that the boundaries as so varied of the land to be held by that Land Trust relate:
(i) to all the land that is proposed to be amalgamated; or
(ii) to any affected land that was held by that Land Trust but that is not proposed to be amalgamated with other land; or
(b) by notice published in the Gazette pursuant to subsection (1), establish a new Land Trust:
(i) to hold all the land that is proposed to be amalgamated; or
(ii) to hold any affected land that is not proposed to be amalgamated with other land.
(1D) In subsection (1C), affected land means any area of land to which a deed of grant in fee simple under section 12, or an application referred to in paragraph 50(1)(a), relates, being land the whole or a part of which is proposed to be amalgamated with other land.
(2) A notice published under subsection (1) shall:
(a) specify the name of the Land Trust; and
(c) set out the boundaries of the land to be held by the Land Trust.
Anindilyakwa Land Trust
(2A) An Aboriginal Land Trust with the name “Anindilyakwa Land Trust” is established by this subsection. The boundaries of the land to be held by the Land Trust are set out in Schedule 6.
Note: Section 12AAB deals with the grant of land to the Land Trust.
Varying Land Trust boundaries
(2B) The Minister may, by notice published in the Gazette, vary the boundaries of the land to be held by a Land Trust:
(a) because of a determination under subsection 10(2AA) or subparagraph 11(1)(c)(ii), (1AD)(d)(ii) or (1AE)(c)(ii); or
(aa) because of a proposed grant of an estate in fee simple, in the land described under the heading “JABIRU” in Part 4 of Schedule 1, to the Kakadu Aboriginal Land Trust in accordance with this Act; or
(b) because of a proposed transfer under subsection 19(4).
The variation takes effect on the day, or on the occurrence of an event, specified in the notice.
Legal status of Land Trust
(3) A Land Trust:
(a) is a body corporate, with perpetual succession;
(b) shall have a common seal;
(c) subject to this Part, may acquire, hold and dispose of real and personal property; and
(d) may sue and be sued in its corporate name.
Common seal of Land Trust
(4) The common seal of a Land Trust shall be kept by a member of the staff of the Land Council in the area of which the Land Trust holds land who has been authorized by the Land Council for the purpose.
(5) The common seal of a Land Trust is to be affixed to a document only with a written authority signed by:
(a) if the Trust consists of 4 or more members—at least 3 of those members; or
(b) if the Trust consists of 3 members—at least 2 of those members.
Note: Section 7 deals with the membership of a Land Trust.
(6) All courts, judges and persons acting judicially shall take notice of the common seal of a Land Trust affixed to a document and shall presume that it was duly affixed.
Notices are not legislative instruments
(7) A notice under subsection (1), (1AC) or (2B) is not a legislative instrument.
5 Functions of Land Trusts
(1) The functions of a Land Trust are:
(a) to hold title to land vested in it in accordance with this Act;
(b) to exercise its powers as owner of land referred to in paragraph (a) for the benefit of the Aboriginals concerned; and
(c) where the Land Trust is named as the grantee of land in a deed of grant held in escrow by a Land Council—to acquire, as and when practicable, the estates and interests of other persons in the land with a view to the surrender to the Crown of those estates and interests and the delivery to the Land Trust of the deed of grant held by the Land Council.
(2) A Land Trust:
(a) shall not exercise its functions in relation to land held by it except in accordance with a direction given to it by the Land Council for the area in which land is situated; and
(b) where such a direction is given to it—shall take action in accordance with that direction.
(3) The Lands Acquisition Act 1989 does not apply to the acquisition by a Land Trust, under this Act, of an estate or interest in land.
5A Public Works Committee Act
The Public Works Committee Act 1969 does not apply to a Land Trust.
6 Land Trust not empowered to accept moneys
A Land Trust is not empowered to accept moneys due and owing to it or to give a valid discharge for such moneys, but such moneys may be paid to the Land Council for the area in which the Land Trust holds, or is established to hold, land.
7 Membership of Land Trust
(1) A Land Trust shall, unless the Minister, in accordance with subsection (1A), determines that the Land Trust shall be differently constituted, consist of a Chair and such other members not less than 3 in number as the Minister appoints.
(1A) Where, on the application, in writing, of the Land Council for the area in which the land to be held by a Land Trust established, or about to be established, under section 4, is situated, being an application made after the commencement of this subsection and before any person is appointed to be a member of that Land Trust, the Minister is satisfied that it is appropriate so to do, the Minister may, by signed writing, make, in respect of the Land Trust:
(a) a determination that the Land Trust shall not have a Chair but shall consist of such number of members, not being less than 3, as the Minister specifies in the determination; or
(b) a determination that the Land Trust shall consist of a Chair and 2 other members;
and, where a determination is so made in relation to a Land Trust, the Land Trust shall be constituted in accordance with the determination.
(2) The members of a Land Trust shall be appointed by the Minister on a nomination received by the Minister under subsection (3).
(3) For the purposes of subsection (2), the Minister may request a nomination of a person from the Land Council for the area in which the Land Trust is to hold land.
(4) A member of a Land Trust shall be appointed as a part‑time member.
(5) The exercise or performance of a power or function by a Land Trust is not affected by reason only of there being a vacancy in the office of a member of the Land Trust.
(6) All members of a Land Trust shall be Aboriginals living in the area of the Land Council in the area of which the land of the Land Trust is situated or whose names are set out in the register maintained by that Land Council in accordance with section 24.
(7) Subject to this Act, a member of a Land Trust holds office for such period, not exceeding 5 years, as is specified in the instrument of his or her appointment and on such terms and conditions as the Minister determines, but is eligible for re‑appointment.
(8) Where a member of a Land Trust is, or is about to be, unable, whether on account of illness or otherwise, to perform the duties of his or her office, the Minister may appoint an Aboriginal to act in the place of that member during the period during which that member is unable to perform the duties of his or her office.
(9) A person appointed to act in the place of a member of a Land Trust has all the functions, powers and duties of that member.
8 Termination of appointment of members of Land Trusts
Where the Land Council for the area in which a Land Trust holds, or is established to hold, land requests the Minister, in writing, to remove a member of the Land Trust on the ground that the member has, in the opinion of the Land Council, failed properly to perform the duties of his or her office, the Minister shall, if the Minister is satisfied that the request is reasonable, terminate the appointment of the member.
9 Resignation of member of Land Trust
A member of a Land Trust may resign his or her office by signed writing delivered to the Minister, but the resignation does not have effect until it is accepted by the Minister.
10 Recommendations for grants of land described in Schedule 1
(1) Where:
(a) either:
(i) a Land Trust has been established in respect of land constituting, or included within, an area of land described in Schedule 1 (other than an area of land described under the heading ‘JABIRU’ in Part 4 of Schedule 1); or
(ii) the Minister has, under subsection (2AA), determined that a specified existing Land Trust should hold a specified area of land described in Schedule 1; and
(b) subsection (2) does not apply in relation to that land or applies in relation to a part only of that land;
the Minister shall recommend to the Governor‑General that a grant of an estate of fee simple in that land, or in the part of that land to which subsection (2) does not apply, be made to that Land Trust.
(2) Where:
(a) either:
(i) a Land Trust has been established in respect of land constituting, or included within, an area of land described in Schedule 1 (other than an area of land described under the heading ‘JABIRU’ in Part 4 of Schedule 1); or
(ii) the Minister has, under subsection (2AA), determined that a specified existing Land Trust should hold a specified area of land described in Schedule 1; and
(b) a person (other than the Crown) has an estate or interest in the whole or a part of that land;
the Minister shall recommend to the Governor‑General that the Governor‑General execute a deed of grant of an estate in fee simple in that land, or that part of that land, to that Land Trust and deliver it to the Land Council for the area in which that land, or that part of that land, is situated to be held in escrow until all of the estates and interests in that land, or that part of that land, held by a person (other than the Crown) have come to an end, whether by surrender to the Crown or otherwise, and then to be delivered by the Land Council to that Land Trust.
(2AA) The Minister may, by a determination in writing, specify an existing Land Trust, and an area of land described in Schedule 1, for the purposes of subparagraph (1)(a)(ii) or (2)(a)(ii). The determination is not a legislative instrument.
(2AB) The Minister must recommend to the Governor‑General that a grant of an estate in fee simple in the land described in paragraphs (a) and (c) under the heading “JABIRU” in Part 4 of Schedule 1 be made to the Kakadu Aboriginal Land Trust.
(2AC) The Minister must recommend to the Governor‑General that a grant of an estate in fee simple in the Jabiru town land be made to the Kakadu Aboriginal Land Trust.
(2A) Where an amalgamation in respect of which the Minister has taken action under subsection 4(1C) involves an area of land that was the subject of a deed of grant (in this subsection referred to as the former deed) to an existing Land Trust, not being a deed of grant that is held in escrow by a Land Council, the Minister shall recommend to the Governor‑General that the Governor‑General execute, in lieu of the former deed:
(a) if that area of land is wholly to be held by another Land Trust—a new deed of grant of an estate in fee simple in that area to that other Land Trust; or
(b) if that area of land is to be held, as to part of that area, by that existing Land Trust and as to part of that area, by another Land Trust—new deeds of grant of estates in fee simple in the respective parts of that area to the respective Land Trusts that are to hold those respective parts of that area.
(2B) Where an amalgamation in respect of which the Minister has taken action under subsection 4(1C) involves an area of land that was the subject of a deed of grant (in this subsection referred to as the former deed) to an existing Land Trust, being a deed of grant that is held in escrow by a Land Council, the Minister shall recommend to the Governor‑General:
(a) that the Governor‑General execute, in lieu of the former deed:
(i) if that area of land is wholly to be held by another Land Trust—a new deed of grant of an estate in fee simple in that area to that other Land Trust; or
(ii) if that area of land is to be held, as to part of that area, by that existing Land Trust and as to part of that area, by another Land Trust—new deeds of grant of estates in fee simple in the respective parts of that area to the respective Land Trusts that are to hold those respective parts of that area; and
(b) that the Governor‑General deliver the new deed or the new deeds to that Land Council upon the same terms as the former deed was delivered.
(3) For the purposes of this section, a lease of land granted under a law of the Northern Territory relating to mining for minerals shall be deemed to be an estate or interest in that land if the lease was granted before the date of commencement of this section or in pursuance of an agreement entered into by the Commonwealth before that date.
11 Recommendations for grants of Crown land other than Schedule 1 land and former public roads
(1) Where:
(a) a Commissioner has, before the commencement of the Aboriginal Land Rights Legislation Amendment Act 1982, recommended, or, after the commencement of that Act, recommends, to the Minister in a report made to the Minister under paragraph 50(1)(a) that an area of Crown land should be granted to a Land Trust for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of that area of land, whether or not the traditional entitlement is qualified as to place, time, circumstance, purpose or permission; and
(b) the Minister is satisfied that the land (the divisible land), or a part (also the divisible land) of the land, should be granted to one or more new or existing Land Trusts so that each Land Trust holds the land granted to it for the benefit of Aboriginals who are the relevant Aboriginals in relation to the land granted to it;
the Minister shall:
(c) do either or both of the following:
(i) establish the one or more Land Trusts under section 4;
(ii) make a determination in writing specifying the one or more existing Land Trusts;
that are to hold the divisible land or parts of the divisible land for the benefit of Aboriginals who are the relevant Aboriginals in relation to the divisible land or the parts of the divisible land; and
(d) if the divisible land or a part of the divisible land proposed to be held by a Land Trust referred to in paragraph (c) is not, and does not include, alienated Crown land—recommend to the Governor‑General that a grant of an estate in fee simple in that land or part be made to that Land Trust; and
(e) if the divisible land or a part of the divisible land proposed to be held by a Land Trust referred to in paragraph (c) is, or includes, alienated Crown land:
(i) ensure that the estates and interests in that land or part of persons (other than the Crown) are acquired by the Crown by surrender or otherwise; and
(ii) after any acquisition referred to in subparagraph (i) has been effected, recommend to the Governor‑General that a grant of an estate in fee simple in that land or part be made to that Land Trust.
(1AA) Where the Minister has, before the commencement of this subsection, taken action, or, after that commencement, takes action, in pursuance of subsection (1) in relation to a part or parts of the area of land to which a recommendation that is contained in a report made to the Minister by a Commissioner under paragraph 50(1)(a) relates, the taking of that action does not preclude the Minister from taking further action in pursuance of subsection (1) in relation to any other part or parts of the land to which the recommendation relates.
(1AB) Where the Minister:
(a) after taking action in pursuance of subsection (1), whether before or after the commencement of this subsection, to establish a Land Trust to hold part only of an area of land to which a recommendation that is contained in a report made by a Commissioner to the Minister under paragraph 50(1)(a) relates; or
(b) after taking action in relation to a Land Trust in accordance with paragraph (c) of this subsection by virtue of a previous application of this subsection;
is satisfied that the Land Trust (in this subsection referred to as the previously established Land Trust) should hold another part of the area of land to which the recommendation relates for the benefit of Aboriginals who are the relevant Aboriginals in relation to that other part of that area of land, the Minister shall:
(c) by notice published in the Gazette, declare that that previously established Land Trust is to be treated, for all purposes of this Act or any other law of the Commonwealth, of a State or of a Territory, as if it had also been established under section 4 to hold title to that other part of the area of land to which the recommendation relates for the benefit of Aboriginals who are relevant Aboriginals in relation to that other part of that area of land;
(d) where the land to be held by the previously established Land Trust is, or includes, alienated Crown land, ensure that the estates and interests in that alienated Crown land of persons (other than the Crown) are acquired by the Crown by surrender or otherwise; and
(e) after any acquisition referred to in paragraph (d) has been effected in relation to the land to be held by the previously established Land Trust, recommend to the Governor‑General that a grant of an estate in fee simple in that land be made to that previously established Land Trust.
(1AC) Upon the publication in the Gazette of a notice under paragraph (1AB)(c) the declaration contained in that notice has effect according to its tenor.
(1AD) Where:
(a) a Commissioner has, whether before or after the commencement of this subsection, in a report made to the Minister under paragraph 50(1)(a), made 2 or more recommendations to the Minister that areas of Crown land should be granted to Land Trusts for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of those respective areas of land, whether or not that traditional entitlement is qualified as to place, time, circumstance, purpose or permission;
(b) in respect of each of at least 2 of those recommendations the Minister has not taken action under subsection (1) or (1AB) in respect of the land, or any part of the land, to which the recommendation relates; and
(c) the Land Council for the area in which all the land (the recommended land) to which the recommendations in respect of which the Minister has taken no action relate is situated applies in writing to the Minister for the Minister to take action under this subsection in relation to that land;
the Minister shall, if he or she is satisfied that it is appropriate to do so:
(d) do either or both of the following:
(i) establish one or more Land Trusts under section 4;
(ii) make a determination in writing specifying one or more existing Land Trusts;
that are to hold the recommended land or a part or parts of the recommended land for the benefit of Aboriginals who are the relevant Aboriginals in relation to the recommended land or the part or parts of the recommended land; and
(e) if the recommended land or a part of the recommended land proposed to be held by a Land Trust referred to in paragraph (d) is not, and does not include, alienated Crown land—recommend to the Governor‑General that a grant of an estate in fee simple in that land or part be made to that Land Trust; and
(f) if the recommended land or a part of the recommended land proposed to be held by a Land Trust referred to in paragraph (d) is, or includes, alienated Crown land:
(i) ensure that the estates and interests in that land or part of persons (other than the Crown) are acquired by the Crown by surrender or otherwise; and
(ii) after any acquisition referred to in subparagraph (i) has been effected, recommend to the Governor‑General that a grant of an estate in fee simple in that land or part be made to that Land Trust.
(1AE) Where:
(a) a Commissioner recommends to the Minister in two or more reports made under paragraph 50(1)(a) that areas of Crown land should be granted to two or more Land Trusts for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of those respective areas of land, whether or not the traditional entitlement is qualified as to place, time, circumstance, purpose or permission; and
(b) the Minister is satisfied that the areas of land or parts of the areas of land to which each of at least two of those reports respectively relate should be granted to a single Land Trust to be held for the benefit of Aboriginals who are the relevant Aboriginals in relation to each of those areas or each of those parts;
the Minister shall:
(c) do either of the following:
(i) establish a single Land Trust under section 4;
(ii) make a determination in writing specifying a single existing Land Trust;
that is to hold those areas or those parts of those areas for the benefit of Aboriginals who are the relevant Aboriginals in relation to those areas or parts; and
(d) if those areas or those parts of those areas are not, and do not include, alienated Crown land—recommend to the Governor‑General that a grant of an estate in fee simple in those areas or parts be made to the Land Trust; and
(e) if those areas or those parts of those areas are, or include, alienated Crown land:
(i) ensure that the estates and interests in those areas or parts of persons (other than the Crown) are acquired by the Crown by surrender or otherwise; and
(ii) after any acquisition referred to in subparagraph (i) has been effected, recommend to the Governor‑General that a grant of an estate in fee simple in those areas or parts be made to that Land Trust.
(1AF) Where land that is contiguous to Aboriginal land would have been the subject of a recommendation by the Minister under subsection (1), (1AB), (1AD) or (1AE) but for the existence on that land of a stock route (other than a stock route to which subsection 50(2E) applies), then, if the land ceases to be a stock route, the Minister may, on the application of the Land Council for the area in which the land is situated, recommend to the Governor‑General that a grant of an estate in fee simple in that land or part of that land be made to the Land Trust that holds, or to one of the Land Trusts that hold, contiguous Aboriginal land.
(1A) Notwithstanding anything to the contrary in this section, where land the subject of a recommendation contained in a report made to the Minister under paragraph 50(1)(a) is land in a Commonwealth reserve under the Environment Protection and Biodiversity Conservation Act 1999, being land in which all the estates and interests not held by the Crown are held by the Director, the Minister is not required to ensure that the estates and interests of the Director in the land are acquired by the Crown.
(1B) Where an amalgamation in respect of which the Minister has taken action under subsection 4(1C) involves an area of land that was the subject of a deed of grant (in this subsection referred to as the former deed) to an existing Land Trust, the Minister shall recommend to the Governor‑General that the Governor‑General execute, in lieu of the former deed:
(a) if that area of land is wholly to be held by another Land Trust—a new deed of grant of an estate in fee simple in that area to that other Land Trust; or
(b) if that area of land is to be held, as to part of that area, by that existing Land Trust and as to part of that area, by another Land Trust—new deeds of grant of estates in fee simple in the respective parts of that area to the respective Land Trusts that are to hold those respective parts of that area.
(3) A reference in subsection (1), (1AB), (1AD) or (1AE) to land shall be read as not including a reference to any land on which there is a road over which the public has a right of way.
(4) In this section, relevant Aboriginals, in relation to an area of land, means Aboriginals entitled by Aboriginal tradition to the use or occupation of that area of land, whether or not the traditional entitlement is qualified as to place, time, circumstance, purpose or permission.
(5) A recommendation under paragraph (1)(d) or (e), (1AB)(e), (1AD)(e) or (f) or (1AE)(d) or (e) that a grant of an estate in fee simple in land be made to a Land Trust may include a recommendation that the deed of grant not be delivered to the grantee until a condition specified in the recommendation has been complied with.
(6) A determination under subparagraph (1)(c)(ii), (1AD)(d)(ii) or (1AE)(c)(ii) is not a legislative instrument.
11A Land Councils may enter into agreements concerning land under claim
(1) A person who desires to obtain an estate or interest in land the subject of an application of the kind referred to in paragraph 50(1)(a) may, before the land (in this section referred to as the relevant land) is granted to a Land Trust, make representations to the Land Council in the area of which the relevant land is situated concerning the person’s plans in respect of the relevant land.
(2) Subject to subsection (3), a Land Council to which representations are made pursuant to subsection (1) may, at any time before the relevant land is granted to a Land Trust, agree with the person who made the representations 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.
(3) A Land Council shall not enter into an agreement under subsection (2) unless it is satisfied that:
(a) the traditional Aboriginal owners of the relevant 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.
(4) An agreement referred to in subsection (2) is binding on any successors to the Land Council that entered into the agreement.
(5) Where a Land Council has entered into an agreement under subsection (2), it shall, immediately after the relevant land is granted to a Land Trust, give a direction in writing to the Land Trust to grant an estate or interest in the land on the terms and conditions set out in that agreement.
(6) Where a Land Council, in entering into an agreement under subsection (2), fails to comply with subsection (3), that failure does not invalidate the entry by the Land Council into that agreement.
(7) In this section, a reference to an estate or interest in land includes a reference to:
(a) a mining interest; and
(b) a licence granted in respect of that land.
11B Recommendations for grants of former public roads
(1) This section applies if:
(a) a road over which the public had a right of way existed on land that is contiguous to Aboriginal land; and
(b) the Minister would have made a recommendation about the land under section 10 or subsection 11(1), (1AB), (1AD) or (1AE) but for that public right of way; and
(c) that public right of way ceases to exist.
(2) On application by the Land Council for the area in which the land is situated, the Minister may recommend that the Governor‑General grant an estate in fee simple for the whole or a part of that land to a Land Trust that holds contiguous Aboriginal land.
12 Grants of land to Land Trusts
(1) Subject to this section, on the receipt of a recommendation under section 10, 11 or 11B with respect to land, the Governor‑General may:
(a) in the case of a recommendation under subsection 10(1) or (2A), section 11 or 11B, not being a recommendation that includes a recommendation under subsection 11(5)—execute a deed of grant of an estate in the land in accordance with the recommendation and deliver it to the grantee;
(aa) in the case of a recommendation under section 11 that includes a recommendation under subsection 11(5)—execute a deed of grant of an estate in the land in accordance with the recommendation and, if the Governor‑General is satisfied that the condition specified in the recommendation has been complied with, deliver it to the grantee; or
(b) in the case of a recommendation under subsection 10(2) or (2B)—execute a deed of grant of an estate in the land in accordance with the recommendation and deliver it to the Land Council referred to in the recommendation on the condition that it be held by the Land Council in escrow, and subsequently delivered to the grantee, in accordance with the recommendation.
(1AA) Subject to this section, on the receipt of a recommendation under subsection 10(2AB) with respect to land, the Governor‑General may execute a deed of grant of an estate in fee simple in that land to the Kakadu Aboriginal Land Trust.
(1AB) If:
(a) a deed of grant of an estate in fee simple in land is executed under subsection (1AA); and
(b) the Minister is satisfied that:
(i) a lease under section 19 granted by the Kakadu Aboriginal Land Trust to the Director has been varied to cover the whole of that land; and
(ii) the variation is expressed to take effect on the date that a deed of grant of an estate in fee simple in that land to that Land Trust is delivered to that Land Trust;
then the Governor‑General may deliver that deed of grant to the Kakadu Aboriginal Land Trust.
(1AC) Subject to this section, on the receipt of a recommendation under subsection 10(2AC) with respect to land, the Governor‑General may execute a deed of grant of an estate in fee simple in that land to the Kakadu Aboriginal Land Trust.
(1AD) If:
(a) a deed of grant of an estate in fee simple in land is executed under subsection (1AC); and
(b) the Minister is satisfied that:
(i) subsections (1AE), (1AF) and (1AG) apply; or
(ii) subsection (1AH) applies;
then the Governor‑General may deliver that deed of grant to the Kakadu Aboriginal Land Trust.
(1AE) This subsection applies if:
(a) a lease under section 19 granted by the Kakadu Aboriginal Land Trust to the Director has been varied to cover the whole of the category A Jabiru land; and
(b) the variation is expressed to take effect on the date that a deed of grant of an estate in fee simple in the Jabiru town land to that Land Trust is delivered to that Land Trust.
(1AF) This subsection applies if:
(a) the Kakadu Aboriginal Land Trust has entered into a lease, under section 19, with the Aboriginal and Torres Strait Islander corporation referred to in subsection 19(3F), covering the whole of the category B Jabiru land; and
(b) the lease is expressed to take effect on the date that a deed of grant of an estate in fee simple in the Jabiru town land to that Land Trust is delivered to that Land Trust.
(1AG) This subsection applies if:
(a) the Kakadu Aboriginal Land Trust has entered into a lease, under section 19, with the Northern Territory covering the whole of the category C Jabiru land; and
(b) the lease is expressed to take effect on the date that a deed of grant of an estate in fee simple in the Jabiru town land to that Land Trust is delivered to that Land Trust.
(1AH) This subsection applies if:
(a) the Kakadu Aboriginal Land Trust has entered into a lease, under section 19A, with the Commonwealth covering the whole of the Jabiru town land; and
(b) the lease is expressed to take effect on the date that a deed of grant of an estate in fee simple in that land to that Land Trust is delivered to that Land Trust.
(1AI) If a deed of grant is delivered to the Kakadu Aboriginal Land Trust under subsection (1AB) or (1AD), subsection (2A) applies to the estate in fee simple in the land held by the Director, but does not apply to any other estate or interest in the land held by the Director.
Note: Subsection (2A) has the effect that the estate in fee simple in the land held by the Director ceases to exist at the time the deed of grant takes effect.
(1A) Where the Governor‑General, pursuant to a recommendation made under subsection 10(2A) or (2B) or 11(1B), executes a new deed of grant or new deeds of grant under this section in lieu of an existing deed of grant and delivers that new deed of grant or each of those new deeds of grant to a Land Trust or to a Land Council in accordance with this section then, with effect from the date of delivery of that new deed or of each of those new deeds to that Land Trust or to that Land Council:
(a) that existing deed of grant shall be taken, by force of this subsection, to have been revoked;
(b) any Land Trust that had been established to hold land to which that existing deed of grant related, being a Land Trust established to hold only areas of land to which the new deed of grant relates or the new deeds of grant relate and not being a Land Trust the boundaries of which have been varied, shall be taken to be dissolved;
(c) any right, title or other interest in an area of land to which the existing deed of grant related is preserved as a right, title or interest in that area in the new deed of grant or in such of the deeds of grant as relate to that area; and
(d) any reference in any document to the existing deed shall be read as a reference to the new deed or to the new deeds, as the case requires.
(1B) Any agreement in respect to an area of land that is entered into by a Land Trust that has been dissolved shall have the same force and effect, with effect from the date of dissolution of the Land Trust, as the agreement would have had if it had been entered into by the Land Trust that, after the dissolution of the first‑mentioned Land Trust held the land or by each of the Land Trusts that, after the dissolution of the first‑mentioned Land Trust, held part of the land, to which the agreement related.
(2) A deed of grant under this section shall be expressed to be subject to the reservation that:
(a) the right to any minerals existing in their natural condition, or in a deposit of waste material obtained from any underground or surface working, on or below the surface of the land, being minerals all interests in which are vested in the Commonwealth, remains with the Commonwealth;
(b) the right to any minerals existing in their natural condition, or in a deposit of waste material obtained from any underground or surface working, on or below the surface of the land, being minerals all interests in which are vested in the Northern Territory, remains with the Northern Territory; and
(c) rights to explore for minerals, and leases or licences to mine for minerals, on or below the surface of the land may be granted under section 124 of the Lands Acquisition Act 1989.
(2AAA) Where a deed of grant executed before the commencement of the Lands Acquisition Act 1989 is expressed to be subject to a reservation that rights to explore for minerals, and leases or licences to mine for minerals, on or below the surface of the land may be granted under subsections 51(1A) and 53(2A) of the Lands Acquisition Act 1955, that reservation has effect on and after the commencement of the Lands Acquisition Act 1989 as if it were a reservation to the effect that such rights, leases or licences may be granted in accordance with section 124 of the Lands Acquisition Act 1989.
(2AA) For the purposes of the operation of subsection (2), any interest in minerals vested in a person, other than the Commonwealth or the Northern Territory, shall be disregarded, and any reservation inserted in a deed of grant in accordance with that subsection is subject to such an interest.
(2A) Where a deed of grant under this section relating to land in a Commonwealth reserve under the Environment Protection and Biodiversity Conservation Act 1999 takes effect at a particular time, any estate or interest that, immediately before that time, was held by the Director in that land ceases to exist.
(2AB) If a deed of grant is delivered to the Kakadu Aboriginal Land Trust under subsection (1AD), then, at the time the deed of grant takes effect, the lease of the Jabiru town land by the Director to the Jabiru Town Development Authority ceases to exist.
(2B) The delivery of a deed of grant under this section in respect of:
(a) any land described in Schedule 1 under the heading of “Alligator Rivers (No. 1)” or “Alligator Rivers (No. 2)”; or
(b) any land in the Alligator Rivers Area (No. 3);
not being land constituting, or forming part of, the land described in Schedule 2 known as the Ranger Project Area, is subject to the condition that the Land Council in the area of which the land is situated shall enter into an agreement with the Director under which the Land Council agrees to direct the Land Trust concerned to grant a lease of the land, or such part of the land as the Director specifies, to the Director, being a lease the terms and conditions of which are set out in the agreement, so as to enable the Director to hold the land for the purposes of Division 4 of Part 15 of the Environment Protection and Biodiversity Conservation Act 1999.
(2C) The delivery of a deed of grant under this section in respect of land referred to in subsection (2D) is subject to the condition that the Land Council in the area of which the land is situated shall enter into an agreement with the Director under which the Land Council agrees to direct the Land Trust concerned to grant a lease of the land to the Director, being a lease the terms and conditions of which are set out in the agreement, so as to enable the Director to hold the land for the purposes of Division 4 of Part 15 of the Environment Protection and Biodiversity Conservation Act 1999.
(2D) Subsection (2C) applies in relation to:
(a) any land in the area of land described in Schedule 1 under the heading “Uluru”; and
(b) any land within the area delineated by the outer boundaries of the aggregate area comprising Gimbat and Goodparla.
(2E) Subsection (2C) applies in relation to a deed of grant in respect of land referred to in paragraph (2D)(b) whether or not the deed took effect before the commencement of this subsection.
(3) A deed of grant under this section in respect of land that is not Schedule 1 land:
(a) shall identify any land on which there is, at the time of the execution of the deed of grant, a road over which the public has a right of way; and
(b) shall be expressed to exclude such land from the grant.
(3A) A deed of grant under this section in respect of Schedule 1 land shall be expressed to exclude from the grant:
(a) any land on which there was, at the time of the commencement of section 3, a road over which public had, at that time, a right of way; and
(b) any land on which there is, at the time of the execution of the deed of grant, a road over which the public has a right of way.
(3B) However, subsections (3) and (3A) do not apply to a deed of grant arising from a recommendation under section 11B.
(4) A deed of grant under this section takes effect:
(a) where a deed is delivered by the Governor‑General to the grantee—on the date on which it is so delivered; or
(b) in any other case—on the date on which it is delivered by a Land Council to the grantee in accordance with the condition subject to which it was delivered to the Land Council by the Governor‑General.
(5) On the application of a Land Trust to which has been delivered a deed of grant of an estate in land executed by the Governor‑General under this section, whether the delivery was by the Governor‑General or by a Land Council, the Registrar‑General or other appropriate officer under the law of the Northern Territory relating to the transfer of land shall register and otherwise deal with that deed of grant under that law according to its tenor.
(6) In this section, a reference to a delivery of a deed by a person shall be read as including a reference to a delivery of the deed by the duly authorized agent of the person.
(7) In this section, Schedule 1 land means land that is, or forms part of, an area of land described in Schedule 1.
12AAA Additional grant to Tiwi Land Trust
(1) The Governor‑General may execute a deed of grant to the Tiwi Land Trust of an estate in fee simple in so much of the land as was included in the description of Bathurst Island appearing in Schedule 1 as was not included in the description of Bathurst Island that appeared in Schedule 1 as in force immediately before the commencement of this section and may deliver that deed of grant to the Tiwi Land Trust.
(2) The provisions of this Act apply to a grant made in pursuance of subsection (1) as if it were a grant made under subsection 12(1).
(3) The Tiwi Land Trust shall be taken for all purposes of this Act or of any other law of the Commonwealth, of a State or of a Territory to hold title both to land granted to it under subsection (1) and to land previously granted to it under this Act, for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of the area of land comprising all the lands so granted whether or not the traditional entitlement is qualified as to place, time, circumstance, purpose or permission.
(4) On the application of the Tiwi Land Trust, the Registrar‑General of the Northern Territory shall take such measures as are necessary under the law of the Northern Territory relating to the transfer of land to issue to the Tiwi Land Trust one certificate for the whole of the land granted under this Act to the Tiwi Land Trust and held under separate certificates and, upon the issue of the certificate, to cancel those separate certificates.
(5) Except to the extent that subsection (4) expressly provides, nothing in that subsection shall be taken to affect the application to land granted under this Act to a Land Trust of any provision of the law of the Northern Territory relating to the transfer of land.
(6) In this section, a reference to the Tiwi Land Trust is a reference to the Land Trust of that name established by the Minister by notice published in the Gazette in pursuance of subsection 4(1).
(7) In this section, a reference to the law of the Northern Territory relating to the transfer of land shall read as a reference to that law as applied in accordance with the requirements of this Act.
12AAB Grant of land to Anindilyakwa Land Trust etc.
Immediate grant of land to Anindilyakwa Land Trust
(1) The Governor‑General may:
(a) execute a deed of grant to the Anindilyakwa Land Trust of an estate in fee simple in so much of the land in the area of the Anindilyakwa Land Council as was included in any Arnhem Land type 1 deed (regardless of whether the deed also included other land); and
(b) deliver it to the Anindilyakwa Land Trust.
The deed of grant is not a legislative instrument.
Note: See subsection (9) for the definition of Arnhem Land type 1 deed.
Delayed grant of land to Anindilyakwa Land Trust
(2) The Governor‑General may:
(a) execute a deed of grant to the Anindilyakwa Land Trust of an estate in fee simple in so much of the land in the area of the Anindilyakwa Land Council as was included in any Arnhem Land type 2 deed; and
(b) deliver it to the Anindilyakwa Land Council on the condition that the Council hold it in escrow and deliver it to the Anindilyakwa Land Trust when all of the estates and interests in that land held by a person (other than the Crown) have come to an end, whether by surrender to the Crown or otherwise.
The deed of grant is not a legislative instrument.
Note: See subsection (9) for the definition of Arnhem Land type 2 deed.
Application of other provisions of this Act
(3) The provisions of this Act apply to a grant under subsection (1) or (2) as if it were a grant under subsection 12(1).
Note: One of the consequences of this subsection is that subsection 12(4) will apply to determine when a deed of grant executed under subsection (1) or (2) of this section takes effect. Another consequence is that the Anindilyakwa Land Trust will be able to apply under subsection 12(5) to have such a deed registered.
Land no longer held by Arnhem Land Aboriginal Land Trust
(4) The following table sets out the effect on:
(a) an Arnhem Land type 1 deed or an Arnhem Land type 2 deed that included land in the area of the Anindilyakwa Land Council (regardless of whether the deed also included other land); and
(b) the boundaries of the land that is held by the Arnhem Land Aboriginal Land Trust.
| Deeds of grant |
| | For this deed: | the result is: |
| 1 | An Arnhem Land type 1 deed that included part of the land in the area of the Anindilyakwa Land Council and no other land | The deed is taken to be revoked. At the time the deed of grant executed under subsection (1) takes effect: (a) the revocation takes effect; and (b) the boundaries are taken to have been varied to no longer relate to that part of the land in the area of the Anindilyakwa Land Council. |
| 2 | An Arnhem Land type 1 deed that included part of the land in the area of the Anindilyakwa Land Council and some other land | The deed ceases to include the part of the land in the area of the Anindilyakwa Land Council. At the time the deed of grant executed under subsection (1) takes effect: (a) the cessation takes effect; and (b) the boundaries are taken to have been varied to no longer relate to that part of the land in the area of the Anindilyakwa Land Council. |
| 3 | An Arnhem Land type 2 deed that included part of the land in the area of the Anindilyakwa Land Council and no other land | The deed is taken to be revoked. At the time the deed of grant executed under subsection (2) is delivered to the Anindilyakwa Land Council: (a) the revocation takes effect; and (b) the boundaries are taken to have been varied to no longer relate to that part of the land in the area of the Anindilyakwa Land Council. |
(5) If the Registrar‑General or other appropriate officer under the law of the Northern Territory relating to the transfer of land is required to register the deed of grant executed under subsection (1), he or she must also take such measures as are necessary to take account of the effect on the deeds of grant mentioned in item 1 or 2 of the table in subsection (4).
Note: Subsection 12(5) deals with registration of deeds of grant.
Existing rights, titles or other interests
(6) The following table sets out the effect on a right, title or other interest in land in the area of the Anindilyakwa Land Council to which an Arnhem Land type 1 deed or an Arnhem Land type 2 deed related.
| Existing rights, titles or other interests |
| | For this deed: | the result is: |
| 1 | An Arnhem Land type 1 deed | The right, title or other interest is, from the day the deed of grant executed under subsection (1) takes effect, preserved as a right, title or interest in that land in that deed. |
| 2 | An Arnhem Land type 2 deed | (a) if the right, title or other interest was acquired by the Arnhem Land Aboriginal Land Trust as mentioned in paragraph 5(1)(c)—the right, title or other interest is, from the day the deed of grant executed under subsection (2) of this section is delivered to the Anindilyakwa Land Council, taken to have been acquired and to be held by the Anindilyakwa Land Trust; or (b) otherwise—the right, title or other interest is, from the day the deed of grant executed under subsection (2) of this section is delivered to the Anindilyakwa Land Council, preserved as a right, title or interest in that land in that deed. |
Documents
(7) The following table sets out the effect on a reference in a document to an Arnhem Land type 1 deed or an Arnhem Land type 2 deed, in so far as the reference relates to land in the area of the Anindilyakwa Land Council.
| Documents |
| | For this deed: | the result is: |
| 1 | An Arnhem Land type 1 deed | The reference is taken, from the day the deed of grant executed under subsection (1) takes effect, to be a reference to that deed. |
| 2 | An Arnhem Land type 2 deed | The reference is taken, from the day the deed of grant executed under subsection (2) is delivered to the Anindilyakwa Land Council, to be a reference to that deed. |
Agreements
(8) The following table sets out the effect on an agreement entered into by the Arnhem Land Aboriginal Land Trust in respect of land:
(a) in the area of the Anindilyakwa Land Council; and
(b) included in an Arnhem Land type 1 deed or an Arnhem Land type 2 deed.
| Agreements |
| | For this deed: | the result is: |
| 1 | An Arnhem Land type 1 deed | The agreement is taken to have the same force and effect, with effect from the day the deed of grant executed under subsection (1) takes effect, as the agreement would have had if it had been entered into by the Anindilyakwa Land Trust. |
| 2 | An Arnhem Land type 2 deed | The agreement is taken to have the same force and effect, with effect from the day the deed of grant executed under subsection (2) is delivered to the Anindilyakwa Land Council, as the agreement would have had if it had been entered into by the Anindilyakwa Land Trust. |
Definitions
(9) In this section:
Arnhem Land Aboriginal Land Trust means the Land Trust of that name established by the Minister by notice published in the Gazette under subsection 4(1).
Arnhem Land type 1 deed means:
(a) a deed of grant executed under paragraph 12(1)(a) to the Arnhem Land Aboriginal Land Trust; or
(b) a deed of grant executed under paragraph 12(1)(b) to the Arnhem Land Aboriginal Land Trust that took effect before the commencement of this section.
Note: See subsection 12(4) for when a deed of grant under section 12 takes effect.
Arnhem Land type 2 deed means a deed of grant executed under paragraph 12(1)(b) to the Arnhem Land Aboriginal Land Trust that has not taken effect before the commencement of this section.
12AA Agreements with respect to roads on land described in Schedule 1
(1) Where a deed of grant of land sets out an exclusion in accordance with subsection 12(3A), the Land Council in the area of which the land is situated and the Northern Territory may, at any time, agree with each other that a part of that land, being a part identified in the agreement, is:
(a) land on which there was, at the time of the commencement of section 3, a road over which the public had, at that time, a right of way; or
(b) land on which there was, at the time of the execution of the deed of grant, a road over which the public had, at that time, a right of way.
(2) An agreement under subsection (1) shall be reduced to writing and a copy of it certified by both parties shall be forwarded to the Minister.
(3) On the receipt of a copy of an agreement under subsection (2), the Minister shall publish in the Gazette a notification of the agreement, including a copy of the terms of the agreement.
12AB Declaratory orders with respect to roads on land described in Schedule 1
(1) Where a deed of grant of land sets out an exclusion in accordance with subsection 12(3A), the Supreme Court of the Northern Territory has jurisdiction, at the suit of the Northern Territory or of the Land Council in the area of which the land is situated, to make an order declaring that a part of the land, being a part identified in the order, is:
(a) land on which there was, at the time of the commencement of section 3, a road over which the public had, at that time, a right of way; or
(b) land on which there was, at the time of the execution of the deed of grant, a road over which the public had, at that time, a right of way.
(2) The jurisdiction conferred by subsection (1) shall be exercised in accordance with the Supreme Court Act 1979 of the Northern Territory.
12AC Effect of agreement or order
(1) On the publication in the Gazette of an agreement in accordance with section 12AA or the coming into effect of an order under section 12AB, not being an agreement or order relating to a deed of grant that has been registered in accordance with subsection 12(5), the land the subject of the agreement or order shall, for all purposes, be deemed to be, and always to have been, land coming within the terms of the exclusion set out, in accordance with subsection 12(3A), in the deed of grant to which the agreement or order relates.
(2) Where an agreement under section 12AA that has been published in the Gazette or an order under section 12AB that has come into effect relates to a deed of grant that has been registered in accordance with subsection 12(5), a party to the agreement or the person who obtained the order may lodge the agreement or order, as the case may be, with the Registrar‑General or other appropriate officer under the law of the Northern Territory relating to the transfer of land, and, on that lodgement, the Registrar‑General or other appropriate officer shall:
(a) call in the deed of grant; and
(b) enter on the deed of grant and in the register book a memorandum setting out the terms of the agreement or order, as the case may be.
(3) On the entering of a memorandum under subsection (2), the land the subject of the agreement or order to which the memorandum relates shall, for all purposes, be deemed to be, and always to have been, land coming within the terms of the exclusion set out, in accordance with subsection 12(3A), in the deed of grant to which the agreement or order, as the case may be, relates.
12AD Compensation for loss of licences etc.
(1) Where a person has, by virtue of a grazing licence, an occupation licence or a miscellaneous licence under the Crown Lands Ordinance 1931 of the Northern Territory, as amended and in force from time to time, a right to use land to which a recommendation under subsection 11(1) or (1AD) relates, then, upon the execution under this Act of a deed of grant in respect of the land, that right is converted into a right to compensation from the Commonwealth.
(2) Where a person has a right to compensation under subsection (1) in relation to the loss of a licence, the right extends to compensation for decrease in value of an estate or interest or other licence of the person in land that is adjacent to the land granted, to the extent that the decrease arose out of the loss of that licence.
(3) Compensation under this section is not payable in respect of improvements that are not authorised under the Crown Lands Ordinance 1931 of the Northern Territory, as amended and in force from time to time.
(4) The amount of compensation payable to a person under this section shall be such reasonable amount of compensation as is, subject to the operation of subsections (2) and (3), agreed between the Commonwealth and that person or, failing agreement, as is determined by the Federal Court of Australia.
12A Occupation of land by Director
(1) Where the estate or interest of the Director in any land ceases to exist by virtue of subsection 12(2A), the Director is entitled, by virtue of this section, to continue his or her occupation of the land for the purposes of Division 4 of Part 15 of the Environment Protection and Biodiversity Conservation Act 1999 and, during that period of occupation, any buildings or improvements on the land shall be deemed to be the property of the Director.
(1A) Subsection (1) does not apply to an estate or interest of the Director in land described under the heading “JABIRU” in Part 4 of Schedule 1.
(2) Nothing in subsection (1) prevents the granting by a Land Trust of a lease to the Director of land to which this section applies and, if such a lease is granted, the land ceases to be land to which this section applies.
12B Arbitration on agreement between Land Council and Director
(1) Where the Minister is satisfied that a Land Council and the Director are unable to agree on the terms of an agreement to be entered into by them in compliance with the condition referred to in subsection 12(2B), the Minister may, after consulting with the Land Council and with the Director, appoint an Arbitrator, being a person whom the Minister considers to be in a position to deal with the matter impartially, to determine the terms of an agreement that, in the opinion of the Arbitrator, complies with that condition and should be acceptable to the Land Council and to the Director.
(2) An agreement determined by the Arbitrator under subsection (1) shall not include a term or condition (whether in the agreement or in a lease the terms and conditions of which are set out in the agreement) that:
(a) requires the Land Council or Land Trust concerned to take any action that it is not authorized to take by, or under, this Act or any other Act or by, or under, a law of the Northern Territory; or
(b) requires the Director to take any action that the Director is not authorized to take by, or under, the Environment Protection and Biodiversity Conservation Act 1999 or any other Act or by, or under, a law of the Northern Territory.
(3) Where the Arbitrator has determined the terms of an agreement under subsection (1), the Land Council concerned and the Director shall enter into that agreement.
(4) Where the Minister is satisfied that a Land Council has refused, or is unwilling, to enter into an agreement with the Director as required by subsection (3), the Minister may, on behalf of the Land Council, enter into the agreement with the Director.
12C Minister may grant lease in certain circumstances
Where the Minister is satisfied that:
(a) a Land Council has refused, or is unwilling, to direct a Land Trust to grant to the Director a lease in accordance with an agreement entered into between the Land Council and the Director (including such an agreement entered into by the Minister on behalf of the Land Council) in compliance with the condition referred to in subsection 12(2B); or
(b) a Land Trust has refused, or is unwilling, to take action in accordance with a direction given to it by a Land Council, being a direction to grant to the Director a lease in accordance with an agreement entered into between the Land Council and the Director (including such an agreement entered into by the Minister on behalf of the Land Council) in compliance with the condition referred to in subsection 12(2B);
the Minister may, on behalf of the Land Trust, grant to the Director the lease provided for by the agreement.
13 Grants of interests in land the subject of a deed in escrow
(1) Subject to subsection (2), no grant of an estate or interest in land the subject of a deed of grant held in escrow by a Land Council shall be made by the Crown to any person.
(2) Subsection (1) does not prevent the grant by the Crown of an estate or interest in land referred to in that subsection in any of the following circumstances:
(a) where the grant is made in consequence of the exercise by a person of a right, under a law of the Northern Territory, to require the grant to be made;
(b) where:
(i) the grant is made in consequence of an application by a person having a right, under a law of the Northern Territory, to make that application for a renewal of the person’s estate or interest in the land for a further period or a conversion of the person’s estate or interest in the land into another estate or interest;
(ii) a copy of the application is served on the Land Council for the area in which the land is situated; and
(iii) an arbitrator appointed by the Minister is satisfied, after hearing both the views of the applicant and the views of the Land Council on the matter, that the hardship that would be occasioned to the applicant by a refusal of his or her application would be greater than the hardship that would be occasioned to the Aboriginal communities or groups interested in the land by an approval of the application;
(c) where the Land Council for the area in which the land is situated consents to the grant.
(3) A reference in paragraph (2)(a) or in subparagraph (2)(b)(i) to a right of a person shall be read as a reference to a right that was vested in the person immediately before the land became Aboriginal land.
14 Occupation etc. by the Crown etc. of Aboriginal land vested in Land Trust
(1) Where, on the vesting in a Land Trust of an estate in fee simple in land, the land is being occupied or used by the Crown or, with the licence or permission of the Crown, by an Authority, the Crown or the Authority is entitled to continue that occupation or use for such period as the land is required by the Crown or the Authority.
(2) During the period for which, by virtue of subsection (1), the Crown or an Authority is entitled to the occupation or use of land, any buildings and improvements on that land shall be deemed to be the property of the Crown or the Authority.
(3) Nothing in this section prevents the granting by a Land Trust of a lease of land referred to in subsection (1) to the Commonwealth, the Northern Territory or an Authority, as the case may be, and, if such a lease is granted, the land ceases to be land to which this section applies.
(3A) Nothing in this section prevents a Land Trust granting a lease of land to an approved entity under section 19A that includes land referred to in subsection (1) of this section.
(3B) If land (the applicable land):
(a) is of a kind referred to in subsection (1); and
(b) is part of land that is leased to an approved entity under section 19A;
nothing in this section prevents the approved entity granting a sublease of the applicable land to the Commonwealth, the Northern Territory or an Authority, as the case may be.
(3C) If such a sublease is granted, the applicable land ceases to be land to which this section applies.
(4) This section does not apply in relation to an occupation or use of land that is authorized by the Atomic Energy Act 1953 or any other Act authorizing mining for minerals and this section does not prejudice the operation of the Atomic Energy Act 1953 or that other Act, as the case may be.
15 Payments in respect of occupation of land by the Crown etc.
(1) Subject to subsection (1A), if an occupation or use of Aboriginal land to which section 14 applies is for a purpose that is not a community purpose, the Crown shall pay to the Land Council for the area in which the land is situated amounts in the nature of rent for that occupation or use at such rate as is fixed by the Minister having regard to the economic value of the land.
(1A) If the land referred to in subsection (1) is part of land that is leased to an approved entity under section 19A, the Crown must pay to the approved entity the amounts referred to in subsection (1) of this section (instead of paying the amounts to the Land Council concerned).
(2) For the purposes of subsection (1):
(a) an occupation or use of land by the Crown for forestry purposes shall be deemed to be an occupation or use for a purpose that is not a community purpose; and
(b) the economic value of land shall not include the value of any royalties that are, or may be, payable in connexion with forestry operations on the land.
16 Payments to Land Council by the Crown in respect of interests in Aboriginal land
The Crown shall pay to a Land Council amounts equal to the amounts of rents and other prescribed payments paid to the Crown in respect of an interest (including a mining interest) granted by the Crown (whether before or after the commencement of this Act) in Aboriginal land in the area of the Land Council, not being payments in the nature of royalties in respect of a mining interest or payments made to the Northern Territory by way of fees for services provided under provisions of a law of the Northern Territory relating to mining for minerals.
17 Appropriation etc. of payments to Land Council or approved entity
The amount of any payment to a Land Council or an approved entity under section 15 or 16 shall be paid:
(a) in the case of a payment by the Commonwealth—out of the Consolidated Revenue Fund, which is appropriated accordingly; or
(b) in the case of a payment by the Northern Territory—out of moneys lawfully available for the purpose.
18 Occupation or use of Aboriginal land by mission
(1) Where, on the vesting of an estate in fee simple in land in a Land Trust, the land is being occupied or used by a mission with the licence or permission of the Crown, the mission is entitled to continue that occupation or use in accordance with this section.
(2) The Land Council for the area in which land referred to in subsection (1) is situated may serve notice on the mission that it wishes to terminate the occupation or use of the land by the mission on a date specified in the notice, being a date not earlier than 12 months after the date on which the notice is served.
(3) Where a notice is served on a mission in accordance with subsection (2), the mission ceases, on the date of termination specified in the notice, to be entitled to occupy or use the land.
(4) Where:
(a) a mission ceases, by virtue of a notice served on it under subsection (2), to be entitled to occupy or use land; and
(b) there are on the land buildings or other improvements that were erected, wholly or partially, by or at the expense of the mission before the service of that notice;
the Land Council shall pay to the mission an amount equal to:
(c) where the buildings or other improvements referred to in paragraph (b) were erected wholly by or at the expense of the mission—the value, as agreed by the Land Council and the mission, or, in the absence of such agreement, as determined by the Minister, of those buildings or other improvements when the mission ceased to be entitled to occupy or use the land; or
(d) in any other case—such part of the value referred to in paragraph (c) as is attributable to the action of the mission.
(5) Nothing in this section prevents the granting by the Land Trust of a lease of land referred to in subsection (1) to a mission and, if such a lease is granted, the land ceases to be land to which this section applies.
18A Occupation or use of land in Ranger Project Area
(1) Subject to section 18C, where, on the vesting in a Land Trust of an estate in fee simple in land (hereinafter in this subsection referred to as the vested land) that constitutes, or forms part of, the land described in Schedule 2 known as the Ranger Project Area, the vested land is being occupied or used by a person as provided for by a law of the Northern Territory relating to mining for minerals or with the licence or permission of the Crown:
(a) the person is entitled to continue that occupation or use during the period commencing on that vesting and ending on:
(i) the entering into an agreement with respect to the vested land under subsection 44(2); or
(ii) the granting of an authority under the Atomic Energy Act 1953 with respect to the vested land;
whichever last occurs; and
(b) any fixtures or other improvements constructed or erected on the vested land by the person before 17 May 1978 shall, during the period commencing at the commencement of the period referred to in paragraph (a) and ending when the authority under the Atomic Energy Act 1953, referred to in subparagraph (a)(ii), or any extension or renewal of that authority, is revoked or otherwise ceases to operate, be deemed to be the property of that person.
(2) A person who, by force of subsection (1):
(a) has a right to occupy or use land during a period; or
(b) has, during a period, a title to fixtures or other improvements constructed or erected on land;
may, with the consent of the Minister, transfer that right or title to another person and may, subject to any conditions or restrictions applicable by or under a law of the Commonwealth or of the Northern Territory, demolish or remove any such fixtures or other improvements during, or within 3 months after the expiration of, that period.
18B Occupation or use of land in Alligator Rivers Region, other than the Ranger Project Area
(1) Subject to section 18C, where, on the vesting in a Land Trust of an estate in fee simple in land (hereinafter in this subsection referred to as the vested land) that forms part of the Alligator Rivers Region, the vested land is being occupied or used by a person as provided for by a law of the Northern Territory relating to mining for minerals or with the licence or permission of the Crown:
(a) the person is entitled to continue that occupation or use during the period commencing on that vesting and ending:
(i) when the person or another person, having obtained a grant in respect of the land under the Atomic Energy Act 1953 or any other Act authorizing mining for minerals or any law of the Northern Territory, becomes, as such grantee, entitled, whether at the time of the grant or subsequently, to occupy or use the land; or
(ii) when the Minister, by notice in the Gazette, declares that he or she is satisfied that no grant of a kind referred to in subparagraph (i) will be made to any person; and
(b) any fixtures or other improvements constructed or erected on the vested land by the person before 17 May 1978, shall, during the period commencing at the commencement of the period referred to in paragraph (a) and ending:
(i) where a grant referred to in subparagraph (a)(i) is made—when that grant, or any extension or renewal of that grant, is revoked or otherwise ceases to operate; or
(ii) where the Minister makes a declaration under subparagraph (a)(ii)—when that declaration is published in the Gazette;
be deemed to be the property of that person.
(2) A person who, by force of subsection (1):
(a) has a right to occupy or use land during a period; or
(b) has, during a period, a title to fixtures or other improvements constructed or erected on land;
may, with the consent of the Minister, transfer that right or title to another person and may, subject to any conditions or restrictions applicable by or under a law of the Commonwealth or of the Northern Territory, demolish or remove any such fixtures or other improvements during, or within 3 months after the expiration of, that period.
(3) In this section, Alligator Rivers Region means the Alligator Rivers Region as defined for the purposes of the Environment Protection (Alligator Rivers Region) Act 1978, but does not include the land described in Schedule 2, being the land known as the Ranger Project Area.
18C Section 18A or 18B not to authorise mining etc.
Nothing in section 18A or 18B shall be taken to authorize the carrying out of mining operations, or exploration for minerals, on land.
19 Dealings etc. with interests in land by Land Trusts
(1) Except as provided by this section or section 19A or 20, a Land Trust must not deal with or dispose of, or agree to deal with or dispose of:
(a) any estate or interest in land vested in it; or
(b) the land described under the heading “JABIRU” in Part 4 of Schedule 1.
(1A) Subsection (1) does not prevent a dealing with, or disposal of, an estate or interest in land, being land to which the condition referred to in subsection 12(2B) or (2C) relates, in accordance with an agreement entered into in compliance with that condition.
(2) With the consent, in writing, of the Minister, and at the direction, in writing, of the relevant Land Council, a Land Trust may, subject to subsection (7), grant an estate or interest in land vested in it to an Aboriginal or an Aboriginal and Torres Strait Islander corporation:
(a) for use for residential purposes by:
(i) the Aboriginal and his or her family; or
(ii) an employee of the Aboriginal or the corporation, as the case may be;
(b) for use in the conduct of a business by the Aboriginal or the corporation, not being a business in which a person who is not an Aboriginal has an interest that entitles him or her to a share in, or to a payment that varies in accordance with, the profits of the business; or
(c) for any community purpose of the Aboriginal community or group for whose benefit the Land Trust holds the land.
(3) With the consent, in writing, of the Minister, and at the direction, in writing, of the relevant Land Council, a Land Trust may, subject to subsection (7), grant an estate or interest in land vested in it to the Commonwealth, the Northern Territory or an Authority for any public purpose or to a mission for any mission purpose.
(3A) If a Land Trust is considering granting a lease under subsection (3), the relevant Land Council may, by notice in writing given to the Minister, request that, if the Land Trust and the Commonwealth intend to enter into the lease, the Executive Director:
(a) enter into the lease on behalf of the Commonwealth; and
(b) administer the lease.
(3B) If the Minister receives a request under subsection (3A), the Minister must, by notice in writing given to the relevant Land Council, agree or refuse to agree to the request.
(3C) A notice given under subsection (3A) or (3B) is not a legislative instrument.
(3D) A lease under this section granted by the Kakadu Aboriginal Land Trust to the Director may be varied to cover the land described in paragraphs (a) and (c) under the heading “JABIRU” in Part 4 of Schedule 1, despite a deed of grant of an estate in fee simple in that land to that Land Trust not having been delivered to that Land Trust. The variation must be expressed to take effect on the date that such a deed of grant is delivered to that Land Trust.
(3E) A lease under this section granted by the Kakadu Aboriginal Land Trust to the Director may be varied to cover the category A Jabiru land, despite a deed of grant of an estate in fee simple in the Jabiru town land to that Land Trust not having been delivered to that Land Trust. The variation must be expressed to take effect on the date that such a deed of grant is delivered to that Land Trust.
(3F) With the consent, in writing, of the Minister, and at the direction, in writing, of the relevant Land Council, the Kakadu Aboriginal Land Trust may grant to the Aboriginal and Torres Strait Islander corporation, nominated in writing by the relevant Land Council, a lease of the category B Jabiru land.
(3G) The Kakadu Aboriginal Land Trust may grant a lease mentioned in subsection (3F) despite a deed of grant of an estate in fee simple in the Jabiru town land to that Land Trust not having been delivered to that Land Trust. The lease must be expressed to take effect on the date that such a deed of grant is delivered to that Land Trust.
(3H) With the consent, in writing, of the Minister, and at the direction, in writing, of the relevant Land Council, the Kakadu Aboriginal Land Trust may grant to the Northern Territory a lease of the category C Jabiru land.
(3J) The Kakadu Aboriginal Land Trust may grant a lease mentioned in subsection (3H) despite a deed of grant of an estate in fee simple in the Jabiru town land to that Land Trust not having been delivered to that Land Trust. The lease must be expressed to take effect on the date that such a deed of grant is delivered to that Land Trust.
(3K) The Minister must not give a consent under subsection (3F) or (3H) in relation to the grant of a lease mentioned in that subsection unless:
(a) the term of the lease is 99 years; and
(b) the Minister administering the Environment Protection and Biodiversity Conservation Act 1999 is satisfied that the terms and conditions of the lease are consistent with the protection of the world heritage values, and other natural and cultural values, of Kakadu National Park (within the meaning of that Act).
(3L) If a lease under this section is varied as mentioned in subsection (3E) or a lease (the new lease) mentioned in subsection (3F) or (3H) is granted under this section:
(a) any right, title or interest, or any thing, that was registered under the Land Title Act (NT) in relation to the applicable land immediately before the time the variation or new lease, as the case may be, takes effect, other than:
(i) the estate in fee simple in the applicable land held by the Director; and
(ii) any right, title or interest, or any thing, held by the Jabiru Town Development Authority in relation to the applicable land;
has full force and effect in accordance with its terms at and after that time; and
(b) any right, title or interest in relation to the applicable land that was granted:
(i) under any right, title or interest, or any thing, covered by paragraph (a); or
(ii) under any right, title or interest, or any thing, held by the Jabiru Town Development Authority in relation to the applicable land;
and that existed immediately before the time the variation or new lease, as the case may be, takes effect, has full force and effect in accordance with its terms at and after that time; and
(c) any right, title or interest:
(i) in relation to a facility (within the meaning of the Telecommunications Act 1997) that is on, over or under the applicable land and is owned or operated by a carrier (within the meaning of that Act); and
(ii) that existed immediately before the time the variation or new lease, as the case may be, takes effect;
has full force and effect in accordance with its terms at and after that time; and
(d) any right, title or interest in relation to the trust assets (see subsection (3N)) that existed immediately before the time the variation or new lease, as the case may be, takes effect, has full force and effect in accordance with its terms at and after that time; and
(e) any right, title or interest, or any thing, in relation to the applicable land, specified in a legislative instrument made by the Minister under this paragraph, has full force and effect in accordance with its terms at and after the time the variation or new lease, as the case may be, takes effect.
(3M) For the purposes of subsection (3L), the applicable land is:
(a) for a lease under this section varied as mentioned in subsection (3E)—the category A Jabiru land; and
(b) for a lease mentioned in subsection (3F)—the category B Jabiru land; and
(c) for a lease mentioned in subsection (3H)—the category C Jabiru land.
(3N) For the purposes of paragraph (3L)(d), trust assets means Trust Assets within the meaning of subclause 1(1) of the Agreement between the Jabiru Town Development Authority and Energy Resources of Australia Ltd made on 23 August 1985.
(3P) Paragraphs (3L)(a) to (d) do not limit paragraph (3L)(e).
(3Q) Any right, title or interest, or any thing, to which subsection (3L) applies has full force and effect in accordance with its terms, at and after the time the variation or new lease, as the case may be, takes effect, even if the right, title, interest or thing did not have full force and effect according to its terms immediately before that time.
(3R) If subsection (3L) applies in relation to a right, title, interest or thing granted by the Jabiru Town Development Authority, then, at and after the time the variation or new lease, as the case may be, takes effect, the right, title, interest or thing has full force and effect in accordance with its terms as if it were granted by:
(a) for a lease under this section varied as mentioned in subsection (3E)—the Director; or
(b) for a lease mentioned in subsection (3F)—the Aboriginal and Torres Strait Islander corporation referred to in that subsection; or
(c) for a lease mentioned in subsection (3H)—the Northern Territory.
(3S) If:
(a) subsection (3L) applies in relation to a right, title, interest or thing; and
(b) immediately before the time the variation or new lease, as the case may be, takes effect, that right, title, interest or thing is, in accordance with its terms, contingent on the existence of the lease of the Jabiru town land by the Director to the Jabiru Town Development Authority;
then, for the purposes of subsections (3L) to (3R), at the time the variation or new lease, as the case may be, takes effect, those terms are taken to have been modified so that the right, title, interest or thing is contingent on the existence of the varied lease, or of the new lease, as the case may be.
(3T) Before making a legislative instrument under paragraph (3L)(e), the Minister must consult the relevant Land Council. The Minister may also consult such other persons or bodies as the Minister thinks appropriate.
(3U) If the Minister makes a legislative instrument under paragraph (3L)(e), the Minister must give a copy of the instrument to the relevant Land Council.
(4) With the consent, in writing, of the Minister and at the direction, in writing, of the relevant Land Council, a Land Trust may:
(b) transfer to another Land Trust, or surrender to the Crown, the whole of its estate or interest in the whole, or any part of, the land vested in it.
Note: See also section 20A (which deals with the application of the law of the Northern Territory relating to the transfer of land).
(4AA) Any right, title or other interest in land transferred under subsection (4) that existed immediately before the transfer is preserved as a right, title or interest in that land after the transfer.
(4AB) Any agreement in respect of land transferred under subsection (4) that was entered into by the transferor Land Trust and that is in force immediately before the transfer is taken to have the same force and effect, after the transfer, as the agreement would have had if it had been entered into by the transferee Land Trust.
(4A) With the consent, in writing, of the Minister, and at the direction, in writing, of the relevant Land Council, a Land Trust may, subject to subsection (7), grant an estate or interest in the whole, or any part, of the land vested in it to any person for any purpose.
(5) A Land Council shall not give a direction under this section for the grant, transfer or surrender of an estate or interest in land unless the Land Council is satisfied that:
(a) the traditional Aboriginal owners (if any) of that land understand the nature and purpose of the proposed grant, transfer or surrender and, as a group, consent to it;
(b) any Aboriginal community or group that may be affected by the proposed grant, transfer or surrender has been consulted and has had adequate opportunity to express its view to the Land Council; and
(c) in the case of a grant of an estate or interest—the terms and conditions on which the grant is to be made are reasonable.
(6) Where a Land Council, in giving a direction for a proposed grant, transfer or surrender of an estate or interest in land, fails to comply with subsection (5), that failure does not invalidate that grant, transfer or surrender unless the person to whom the grant, transfer or surrender was made procured the direction of the Land Council by fraud.
(7) The consent of the Minister is not required for the grant under subsection (2), (3) or (4A) of an estate or interest the term of which does not exceed 40 years.
(8) The grantee of an estate or interest under this section is not empowered to transfer his or her interest as such grantee to another person, or to grant to another person an interest dependent upon his or her interest as such grantee, except with the consent, in writing, of the relevant Land Council and, if the consent of the Minister was required to the grant of that estate or interest to the grantee, the consent, in writing, of the Minister.
(8A) A Land Council may give a consent under subsection (8) at the time it gives a direction under subsection (2), (3), (3F), (3H) or (4A) or at any later time.
(8B) The Minister may give a consent under subsection (8) at the time he or she gives a consent under subsection (2), (3), (3F), (3H) or (4A) or at any later time.
(8C) A consent of the Minister or a Land Council under subsection (8) relating to a transfer or grant may:
(a) be general; or
(b) be expressed to be limited to a specified person or a person included in a specified class.
(9) Where a grant of an estate or interest is invalidated, by virtue of subsection (6), on account of fraud, that invalidity does not affect the rights of a person who has, for value and without notice of the fraud, accepted the transfer of that estate or interest or been granted an interest dependent upon that estate or interest.
(9A) When the Minister is satisfied that a Land Council has refused, or is unwilling, to give a direction under subsection 11A(5) to a Land Trust to grant an estate or interest in land in accordance with an agreement entered into by the Land Council under subsection 11A(2), the Minister shall, in the name of, and on behalf of, that Land Council, give the Land Trust that direction.
(9B) Where the Minister is satisfied that a Land Trust has refused, or is unwilling, to comply with a direction given under subsection 11A(5), or subsection (9A) of this section, to grant an estate or interest in particular land on particular terms and conditions, the Minister shall, in the name of, and on behalf of, that Land Trust, grant that estate or interest in relation to that land on those terms and conditions.
(10) In this section, relevant Land Council, in relation to land, means the Land Council for the area in which the land is situated.
(11) A reference in this section to an estate or interest in land includes:
(a) a reference to a licence granted in respect of that land including, but without limiting the generality of the foregoing, a licence granted under a law of the Northern Territory relating to the mining or development of extractive mineral deposits; or
(b) a reference to a lease or other interest in that land, or a right granted in respect of that land, under such a law.
(12) The preceding provisions of this section do not authorise the grant by a Land Trust of the fee simple in land vested in it except in the circumstances referred to in paragraph (4)(b).
(13) If a Land Trust grants an estate or interest in Aboriginal land under this section, then, at the direction, in writing, of the relevant Land Council, the Land Trust may, in writing, authorise a specified person, or any person included in a specified class of persons, to enter or remain on the land for a specified purpose that is related to that estate or interest.
Note: Section 70 will not apply to a person who enters or remains on the land in accordance with such an authorisation: see subsection 70(2B).
(14) A direction or an authorisation under subsection (13) is not a legislative instrument.
19A Land Trust may grant headlease over township
Grant of lease
(1) A Land Trust may grant a lease of a township to an approved entity if:
(a) the Minister consents, in writing, to the grant of the lease; and
(b) the Land Council for the area in which the land is situated directs, in writing, the Land Trust to grant the lease.
A consent or direction under this subsection is not a legislative instrument.
(1A) If an approved entity is the Commonwealth or a Commonwealth authority (within the meaning of the Lands Acquisition Act 1989), the Commonwealth or authority is authorised to acquire a lease under this section.
Lease of Jabiru town land
(1B) The Kakadu Aboriginal Land Trust may grant a lease of the Jabiru town land to the Commonwealth under this section despite a deed of grant of an estate in fee simple in that land to that Land Trust not having been delivered to that Land Trust. The lease must be expressed to take effect on the date that such a deed of grant is delivered to that Land Trust.
(1C) The Minister must not give a consent under subsection (1) in relation to the grant of a lease mentioned in subsection (1B) unless:
(a) the term of the lease is 99 years; and
(b) the Minister administering the Environment Protection and Biodiversity Conservation Act 1999 is satisfied that the terms and conditions of the lease are consistent with the protection of the world heritage values, and other natural and cultural values, of Kakadu National Park (within the meaning of that Act).
Land Council direction
(2) A Land Council must not give a direction under subsection (1) for the grant of a lease unless it is satisfied that:
(a) the traditional Aboriginal owners (if any) of the land understand the nature and purpose of the proposed lease and, as a group, consent to it; and
(b) any Aboriginal community or group that may be affected by the proposed lease has been consulted and has had adequate opportunity to express its view to the Land Council; and
(c) the terms and conditions of the proposed lease (except those relating to matters covered by this section) are reasonable.
(3) If a Land Council, in giving a direction for a grant of a lease, fails to comply with subsection (2), that failure does not invalidate that grant unless the approved entity to whom the grant was made procured the direction of the Land Council by fraud.
Term of lease
(4) The term of a lease granted under this section is the term specified in the lease (which must be at least 40 years and no more than 99 years). The term specified in the lease must not be varied. This subsection is subject to subsections (4A) and (5).
(4A) A lease granted under this section may provide for the variation of the lease by way of one or more extensions of the term of the lease. The extensions must not result in the term of the lease being more than 99 years.
Interpretation
(4B) Subsection (4A) does not limit variations of the lease in relation to other matters.
Operation of Lands Acquisition Act
(4C) If an approved entity is the Commonwealth or a Commonwealth authority (within the meaning of the Lands Acquisition Act 1989), the Commonwealth or authority is authorised to acquire the interest (within the meaning of that Act) in land that arises under an extension of the term of a lease granted under this section (as mentioned in subsection (4A)).
Grant of replacement lease
(5) If, at least 20 years before the end of the term of a lease (the original lease) granted under this section (including that term as extended as mentioned in subsection (4A)), a Land Trust grants another lease under this section to the same approved entity covering the area of land concerned (whether or not the other lease also covers other land), the original lease ends at the time the other lease takes effect.
Limitation on grant of replacement lease
(5A) The Minister must not, under subsection (1), consent to the grant of another lease as mentioned in subsection (5) unless the Minister is satisfied that the grant of the other lease would not adversely affect a sublease or other right or interest derived from the original lease mentioned in subsection (5).
Payments
(6) A lease granted under this section must not make provision for the lessee to make a payment to a person other than the lessor.
Transfer of lease
(8) A lease granted under this section may be transferred to another approved entity:
(a) with the written approval of the Minister; and
(b) in accordance with the terms and conditions of the lease.
An approval under paragraph (a) is not a legislative instrument.
(8A) The Commonwealth or a Commonwealth authority (within the meaning of the Lands Acquisition Act 1989) is authorised to:
(a) transfer a lease granted under this section in accordance with subsection (8); or
(b) acquire a lease that is transferred in accordance with subsection (8).
Lease not to be used as security
(9) A lease granted under this section must not be used as security for a borrowing.
Preserving any existing right, title or other interest
(10) Any right, title or other interest in land the subject of a lease granted under this section that existed immediately before the time the lease takes effect is preserved as a right, title or interest in that land after that time.
(11) If that right, title or other interest was granted by the Land Trust, then, at the time the lease granted under this section takes effect, that right, title or other interest has effect as if it were granted by the approved entity on the same terms and conditions as existed immediately before that time.
(11A) Subsections (10) and (11) do not apply in relation to the grant of a lease mentioned in subsection (1B).
(11B) If a lease mentioned in subsection (1B) is granted under this section:
(a) any right, title or interest, or any thing, that was registered under the Land Title Act (NT) in relation to the land (the relevant land) the subject of the lease immediately before the time the lease takes effect, other than:
(i) the estate in fee simple in the relevant land held by the Director; and
(ii) any right, title or interest, or any thing, held by the Jabiru Town Development Authority in relation to the relevant land;
has full force and effect in accordance with its terms at and after that time; and
(b) any right, title or interest in relation to the relevant land that was granted:
(i) under any right, title or interest, or any thing, covered by paragraph (a); or
(ii) under any right, title or interest, or any thing, held by the Jabiru Town Development Authority in relation to the relevant land;
and that existed immediately before the time the lease takes effect, has full force and effect in accordance with its terms at and after that time; and
(c) any right, title or interest:
(i) in relation to a facility (within the meaning of the Telecommunications Act 1997) that is on, over or under the relevant land and is owned or operated by a carrier (within the meaning of that Act); and
(ii) that existed immediately before the time the lease takes effect;
has full force and effect in accordance with its terms at and after that time; and
(d) any right, title or interest in relation to the trust assets (see subsection (11C)) that existed immediately before the time the lease takes effect, has full force and effect in accordance with its terms at and after that time; and
(e) any right, title or interest, or any thing, in relation to the relevant land, specified in a legislative instrument made by the Minister under this paragraph, has full force and effect in accordance with its terms at and after the time the lease takes effect.
(11C) For the purposes of paragraph (11B)(d), trust assets means Trust Assets within the meaning of subclause 1(1) of the Agreement between the Jabiru Town Development Authority and Energy Resources of Australia Ltd made on 23 August 1985.
(11D) Paragraphs (11B)(a) to (d) do not limit paragraph (11B)(e).
(11E) Any right, title, interest or thing to which subsection (11B) applies has full force and effect in accordance with its terms, at and after the time the lease takes effect, even if the right, title, interest or thing did not have full force and effect according to its terms immediately before that time.
(11F) If subsection (11B) applies in relation to a right, title, interest or thing granted by the Jabiru Town Development Authority, then, at and after the time the lease takes effect, the right, title, interest or thing has full force and effect in accordance with its terms as if it were granted by the Commonwealth.
(11G) If:
(a) subsection (11B) applies in relation to a right, title, interest or thing; and
(b) immediately before the time the lease (the new lease) mentioned in subsection (1B) takes effect, that right, title, interest or thing is, in accordance with its terms, contingent on the existence of the lease of the Jabiru town land by the Director to the Jabiru Town Development Authority;
then, for the purposes of subsections (11B) to (11F), at the time the new lease takes effect, those terms are taken to have been modified so that the right, title, interest or thing is contingent on the existence of the new lease.
(11H) Before making a legislative instrument under paragraph (11B)(e), the Minister must consult the Land Council for the area in which the relevant land is situated. The Minister may also consult such other persons or bodies as the Minister thinks appropriate.
(11J) If the Minister makes a legislative instrument under paragraph (11B)(e), the Minister must give a copy of the instrument to the Land Council for the area in which the relevant land is situated.
(12) If:
(a) subsection (11) or (11F) applies in relation to a right, title, interest or thing; and
(b) the lease is transferred in accordance with this section; and
(c) the right, title, interest or thing existed immediately before the time the transfer takes effect;
then, at that time, the right, title, interest or thing has effect as if it were granted by the transferee on the same terms and conditions as existed immediately before that time.
Subleases
(13) This section does not prevent a sublease of a lease granted under this section.
(14) A lease granted under this section must not contain any provision requiring the consent of any person to the grant of a sublease of the lease.
(15) A lease granted under this section must not contain any provision relating to the payment of rent, or the non‑payment of rent, in relation to a sublease of the lease.
(16) The Commonwealth or a Commonwealth authority (within the meaning of the Lands Acquisition Act 1989) is authorised to acquire, or grant, a sublease of a lease granted under this section in accordance with the terms and conditions of the lease.
Licences
(17) This section does not prevent the lessee of a lease granted under this section from granting a licence in relation to land covered by the lease.
(18) The Commonwealth or a Commonwealth authority (within the meaning of the Lands Acquisition Act 1989) is authorised to acquire, or grant, a licence in relation to land covered by a lease granted under this section in accordance with the terms and conditions of the lease.
19C Modification of certain NT laws for a township lease held by a Commonwealth entity or transferred from a Commonwealth entity to an NT entity
(1) This section applies to:
(a) the grant of a lease to a Commonwealth entity under section 19A; or
(aa) the extension of the term of a lease granted under that section (as mentioned in subsection 19A(4A)) if the lease is held by a Commonwealth entity at the time of the variation mentioned in that subsection; or
(b) the transfer of a lease to a Commonwealth entity in accordance with that section; or
(c) the transfer of a lease from a Commonwealth entity to an NT entity in accordance with that section.
Taxes
(2) No stamp duty or similar tax is payable under a law of the Northern Territory in respect of the grant, extension or transfer.
Registration
(3) On the application of the Commonwealth entity or the NT entity, the Registrar‑General or other appropriate officer under the law of the Northern Territory relating to the transfer of land must register the instrument of grant, extension or transfer as if it were duly executed under that law.
19D Modification of NT subdivision law for grant of a township lease to a Commonwealth entity
The procedures for the subdivision of land under the law of the Northern Territory relating to the transfer of land do not apply in respect of the grant of a lease to a Commonwealth entity under section 19A.
19E Modification of certain NT laws for a township lease held by a Commonwealth entity
(1) This section applies in relation to a lease:
(a) granted to a Commonwealth entity under section 19A; or
(b) transferred to a Commonwealth entity in accordance with that section.
(2) The regulations may make modifications of any law of the Northern Territory relating to:
(a) planning; or
(b) infrastructure; or
(c) the subdivision or transfer of land; or
(d) other prescribed matters;
to the extent that the law applies to land the subject of the lease.
(3) In subsection (2):
modifications includes additions, omissions and substitutions.
(4) The regulations cease to have effect if the lease is transferred to an NT entity in accordance with section 19A.
20 Leases in compliance with obligations of the Commonwealth
(1) Where an agreement entered into by the Commonwealth before the commencement of this section gives a person an entitlement, in certain circumstances, to the grant of a lease under the Special Purposes Leases Ordinance 1953 of the Northern Territory, as amended from time to time, of land in Schedule 1, that agreement shall be taken to provide that, after the vesting in a Land Trust of an estate in fee simple in the land, the lease to which the person is to become so entitled in those circumstances shall be a lease granted by that Land Trust in accordance with this section, being a lease under which that person and the Land Trust have rights and obligations that are as near as practicable the same as the rights and obligations that would have been applicable to that person and the Crown, respectively, under a lease from the Crown granted in accordance with the agreement.
(2) Where a person who, by virtue of subsection (1), has become entitled to the grant of a lease of land by a Land Trust has informed the Land Council for the area in which the land is situated that the person requires the lease, the Land Council shall:
(a) negotiate with the person with respect to the terms and conditions of the lease; and
(b) if agreement is reached on terms and conditions, direct the Land Trust to grant the lease on those terms and conditions;
and the Land Trust shall comply with that direction.
(3) Where the Minister is satisfied that:
(a) a Land Council has refused, or is unwilling, to negotiate with respect to the terms and conditions of a lease to which a person has become entitled by virtue of subsection (1); or
(b) the Land Council and that person cannot agree on the terms and conditions of the lease;
the Minister may, after consultation with the Land Council and with the person, appoint an Arbitrator, being a person whom the Minister considers to be in a position to deal with the matter impartially, to determine terms and conditions of the lease that, in the opinion of the Arbitrator, should be acceptable to the Land Council and to the person.
(4) Where the Arbitrator has determined terms and conditions of a lease under subsection (3) and the person entitled to the lease is willing to enter into that lease on those terms and conditions, the Land Council shall direct the Land Trust in which the land is vested to grant the lease on those terms and conditions.
(5) Where the Minister is satisfied that a Land Council has refused, or is unwilling, to give a direction in compliance with subsection (2) or (4) or a Land Trust has refused, or is unwilling, to comply with such a direction, the Minister may, in the name of, and on behalf of, the Land Trust, grant a lease in accordance with the direction that should have been, or has been, given.
20A Northern Territory transfer of land law to apply
(1) Subject to sections 19C to 19E, this section and sections 20SA and 20SB, the law of the Northern Territory relating to the transfer of land applies, according to its tenor, to, and in relation to, any dealing with, or disposition of, an estate or interest in land by, or on behalf of, a Land Trust.
(2) No stamp duty or similar tax is payable under a law of the Northern Territory in respect of a transfer under subsection 19(4).
(3) The procedures for the subdivision of land under the law of the Northern Territory relating to the transfer of land do not apply in respect of a transfer of an estate or interest in any part of land under subsection 19(4).
(4) On the application of a Land Trust that has had an estate or interest in any part of land transferred to it under subsection 19(4), the Registrar‑General or other appropriate officer under the law of the Northern Territory relating to the transfer of land must register the instrument of transfer as if it were duly executed under that law.
Part IIA—Executive Director of Township Leasing
Division 1—Establishment of the Executive Director of Township Leasing
20B Executive Director of Township Leasing
There is to be an Executive Director of Township Leasing.
Note: Division 3 deals with the appointment and terms and conditions of the Executive Director.
Division 2—Functions of the Executive Director etc.
20C Functions of the Executive Director
The functions of the Executive Director are:
(aa) if the Minister has agreed to a request under subsection 19(3A) or 20CA(2) in relation to a lease, and the Commonwealth intends to enter into the lease—to enter into, on behalf of the Commonwealth, the lease; and
(ab) to administer leases covered by paragraph (aa), including administering subleases and other rights and interests derived from such leases, in accordance with their terms and conditions; and
(ac) if the Minister has agreed to a request under subsection 20CA(2) in relation to a sublease, and the Commonwealth intends to enter into the sublease—to enter into, on behalf of the Commonwealth, the sublease; and
(ad) to administer subleases covered by paragraph (ac), including administering other rights and interests derived from such subleases, in accordance with their terms and conditions; and
(ae) to administer subleases acquired by the Commonwealth under subsection 20CB(2), including administering other rights and interests derived from such subleases, in accordance with their terms and conditions; and
(a) to enter into, on behalf of the Commonwealth, leases under section 19A; and
(b) to administer leases granted to the Commonwealth under section 19A, including administering subleases and other rights and interests derived from such leases, in accordance with their terms and conditions; and
(c) any other functions that are prescribed by the regulations, being functions relating to the matters referred to in this section.
20CA Executive Director to hold leases and subleases on behalf of the Commonwealth
(1) This section applies if:
(a) a proprietor of a community living area is considering granting a lease of some or all of the community living area; or
(b) a proprietor of a lease of a town camp is considering granting a sublease of some or all of the town camp; or
(c) a proprietor of land:
(i) that is prescribed by the regulations for the purposes of this section; and
(ii) that has been granted to the proprietor primarily for the benefit of Aboriginal people in the Northern Territory;
is considering granting a lease of some or all of the land; or
(d) a proprietor of a lease of land:
(i) that is prescribed by the regulations for the purposes of this section; and
(ii) that has been leased to the proprietor primarily for the benefit of Aboriginal people in the Northern Territory;
is considering granting a sublease of some or all of the land; or
(e) the proprietor of a lease of Aboriginal land is considering granting a sublease of some or all of the land.
(2) The proprietor may, by notice in writing given to the Minister, request that, if the proprietor and the Commonwealth intend to enter into the lease or sublease, the Executive Director:
(a) enter into the lease or sublease on behalf of the Commonwealth; and
(b) administer the lease or sublease.
(3) If the Minister receives a request under subsection (2), the Minister must, by notice in writing given to the proprietor, agree or refuse to agree to the request.
(4) A notice given under subsection (2) or (3) is not a legislative instrument.
(4A) To avoid doubt, for the purposes of paragraph (1)(e), the proprietor may be the Director of National Parks (within the meaning of the Environment Protection and Biodiversity Conservation Act 1999).
(4B) To avoid doubt, for the purposes of paragraph (1)(e), the lease may be a lease granted under section 19A.
(5) In this section:
town camp means land leased primarily for residential, community or cultural purposes for Aboriginal people under:
(a) the Special Purposes Leases Act of the Northern Territory; or
(b) the Crown Lands Act of the Northern Territory.
Note: The reference to the Special Purposes Leases Act and the Crown Lands Act of the Northern Territory is to be construed as a reference to that Act as originally enacted and as amended from time to time: see section 10A of the Acts Interpretation Act 1901 of the Commonwealth.
20CB Transfer of subleases
(1) If the Executive Director holds a sublease of some or all of a parcel of Aboriginal land on behalf of the Commonwealth, the Executive Director may, on behalf of the Commonwealth, transfer the sublease to an Aboriginal and Torres Strait Islander corporation, so long as the transfer is in accordance with the terms and conditions of the sublease.
(2) If:
(a) an Aboriginal and Torres Strait Islander corporation holds a sublease of some or all of a parcel of Aboriginal land; and
(b) the sublease was transferred to the Aboriginal and Torres Strait Islander corporation under subsection (1);
the Executive Director may, on behalf of the Commonwealth, acquire the sublease by way of transfer from the Aboriginal and Torres Strait Islander corporation, so long as the transfer is in accordance with the terms and conditions of the sublease.
Division 3—Administrative provisions about the Executive Director
20D Appointment of Executive Director
(1) The Executive Director is to be appointed by the Governor‑General by written instrument.
(2) The Executive Director holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.
20E Appointment to be full‑time or part‑time
The Executive Director may be appointed on a full‑time basis or on a part‑time basis.
20F Terms and conditions—general
The Executive Director holds office on the terms and conditions (if any) in relation to matters not covered by this Division that are determined by the Governor‑General.
20G Remuneration and allowances
(1) The Executive Director is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the Executive Director is to be paid the remuneration that is prescribed by the regulations.
(2) The Executive Director is to be paid the allowances that are prescribed by the regulations.
(3) This section has effect subject to the Remuneration Tribunal Act 1973.
20H Restrictions on outside employment
Full‑time Executive Director
(1) If the Executive Director is appointed on a full‑time basis, he or she must not engage in paid employment outside the duties of his or her office without the Minister’s approval.
Part‑time Executive Director
(2) If the Executive Director is appointed on a part‑time basis, he or she must not engage in any paid employment that conflicts or may conflict with the proper performance of his or her duties.
20J Acting Executive Director
The Minister may appoint a person to act as the Executive Director:
(a) during a vacancy in the office of the Executive Director (whether or not an appointment has previously been made to the office); or
(b) during any period, or during all periods, when the Executive Director is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.
Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
20K Leave of absence
Full‑time Executive Director
(1) If the Executive Director is appointed on a full‑time basis:
(a) he or she has the recreation leave entitlements that are determined by the Remuneration Tribunal; and
(b) the Minister may grant the Executive Director leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.
Part‑time Executive Director
(2) If the Executive Director is appointed on a part‑time basis, the Minister may grant leave of absence to the Executive Director on the terms and conditions that the Minister determines.
20L Resignation
The Executive Director may resign his or her appointment by giving the Governor‑General a written resignation.
20M Termination of appointment
(1) The Governor‑General may terminate the appointment of the Executive Director for misbehaviour or physical or mental incapacity.
(2) The Governor‑General must terminate the appointment of the Executive Director if:
(a) the Executive Director:
(i) becomes bankrupt; or
(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii) compounds with his or her creditors; or
(iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or
(b) the Executive Director is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or
(c) the Executive Director is appointed on a full‑time basis and engages, except with the Minister’s approval, in paid employment outside the duties of his or her office; or
(d) the Executive Director is appointed on a part‑time basis and engages in paid employment that conflicts or may conflict with the proper performance of his or her duties; or
(e) the Executive Director fails, without reasonable excuse, to comply with section 20N.
20N Disclosure of interests
The Executive Director must give written notice to the Minister of all interests, pecuniary or otherwise, that the Executive Director has or acquires that could conflict with the proper performance of the Executive Director’s functions.
Division 4—Staff and consultants
20P Staff
The staff required to assist the Executive Director are to be persons engaged under the Public Service Act 1999 and made available for the purpose by the Secretary of the Department.
20Q Consultants
(1) The Executive Director may, on behalf of the Commonwealth, engage consultants to perform services for the Executive Director.
(2) The consultants are to be engaged on the terms and conditions that the Executive Director determines in writing.
Division 5—Annual report
20R Annual report
Annual report to be given to Minister
(1) The Executive Director must, as soon as practicable after the end of each financial year, prepare and give to the Minister, for presentation to the Parliament, a report on the operations of the Executive Director during that year.
Note: See also section 34C of the Acts Interpretation Act 1901, which contains extra rules about annual reports.
Other reports
(2) The Executive Director must give to the Minister such additional reports as the Minister requests and may give to the Minister such other reports as the Executive Director thinks fit.
Division 6—Effect on other laws in relation to certain leases or subleases held by Executive Director
20S Operation of Lands Acquisition Act
(1) This section applies for the purposes of the Lands Acquisition Act 1989.
(2) The Commonwealth is authorised to acquire a lease or sublease if the Minister has agreed to a request under subsection 20CA(2) in relation to the lease or sublease.
(2A) The Commonwealth is authorised to acquire a sublease in accordance with subsection 20CB(2).
(3) The Commonwealth is authorised to dispose (within the meaning of the Lands Acquisition Act 1989) of a lease or sublease covered by paragraph 20C(aa) or (ac).
(3A) The Commonwealth is authorised to transfer a sublease in accordance with subsection 20CB(1).
(4) The Commonwealth is authorised to grant a sublease, or other right or interest, in relation to a lease covered by paragraph 20C(aa) in accordance with the terms and conditions of the lease.
(5) The Commonwealth is authorised to grant a right or interest in relation to a sublease covered by paragraph 20C(ac) in accordance with the terms and conditions of the sublease.
(6) If a sublease was acquired by the Commonwealth under subsection 20CB(2), the Commonwealth is authorised to grant a right or interest in relation to the sublease in accordance with the terms and conditions of the sublease.
20SA Modification of certain NT laws in relation to leases or subleases held by Executive Director
(1) This section applies to:
(a) the grant of a lease to the Commonwealth if the Minister has agreed to a request under subsection 19(3A) or 20CA(2) in relation to the lease; or
(b) the grant of a sublease to the Commonwealth if the Minister has agreed to a request under subsection 20CA(2) in relation to the sublease; or
(c) the transfer of a sublease to the Commonwealth under subsection 20CB(2).
Taxes
(2) No stamp duty or similar tax is payable under a law of the Northern Territory in respect of the grant or transfer, as the case may be.
Registration
(3) On the application of the Commonwealth, the Registrar‑General or other appropriate officer under the law of the Northern Territory relating to the transfer of land must register the instrument of grant, or the instrument of transfer, as the case may be, as if it were duly executed under that law.
Subdivision of land
(4) The procedures for the subdivision of land under the law of the Northern Territory relating to the transfer of land do not apply in respect of the grant of the lease or sublease, or the transfer of the sublease, as the case may be.
20SB Modification of certain NT laws in relation to land the subject of leases or subleases held by Executive Director
(1) This section applies in relation to:
(a) a lease granted to the Commonwealth if the Minister agreed to a request under subsection 19(3A) or 20CA(2) in relation to the lease; or
(b) a sublease granted to the Commonwealth if the Minister agreed to a request under subsection 20CA(2) in relation to the sublease; or
(c) a sublease acquired by the Commonwealth under subsection 20CB(2).
(2) The regulations may make modifications of any law of the Northern Territory relating to:
(a) planning; or
(b) infrastructure; or
(c) the subdivision or transfer of land; or
(d) other prescribed matters;
to the extent that the law applies to land the subject of the lease or sublease.
(3) In subsection (2):
modifications includes additions, omissions and substitutions.
(4) The regulations cease to have effect if the lease or sublease ceases to be held by the Commonwealth.
Part III—Aboriginal Land Councils
21 Establishment of Land Councils
(1) The Minister shall, on the commencement of this section, by notice published in the Gazette, divide the Northern Territory into at least 2 areas and establish an Aboriginal Land Council for each area.
Note: New Land Councils may also be established: see sections 21A to 21D.
(2) A notice published under subsection (1) shall, in respect of each Aboriginal Land Council, set out:
(a) the name of the Council; and
(b) the boundaries of the area for which the Council is established.
21A Aboriginal group or body may seek establishment of new Land Council
(1) The following may apply to the Minister, in writing, for the establishment of a new Land Council for a qualifying area:
(a) one or more adult Aboriginals living in the qualifying area;
(b) an Aboriginal and Torres Strait Islander corporation, the majority of whose members live in the qualifying area;
(d) an association of Aboriginals, or a company whose shareholders are all Aboriginals, incorporated under a law of the Northern Territory and the majority of whose members or shareholders live in the qualifying area;
(e) any other body prescribed by the regulations, the majority of whose members live in the qualifying area.
(2) An application must:
(a) set out the boundaries of the qualifying area; and
(b) specify a name for the proposed new Land Council; and
(c) include an estimate of the number of Aboriginals living in the qualifying area and an explanation of how the estimate was arrived at; and
(d) specify the proposed management structure for the proposed new Land Council; and
(e) specify the proposed arrangements for consulting and representing Aboriginals living in the qualifying area on issues affecting that area; and
(f) include details of any consultation that has occurred with Aboriginals living in the qualifying area on the proposed establishment of the new Land Council; and
(g) include any other information prescribed by the regulations.
21B Minister’s assessment of application for establishment of new Land Council
(1) If the Minister receives an application under section 21A, the Minister must, by notice in writing:
(a) state that he or she supports the establishment of the new Land Council and that he or she will request the Australian Electoral Commission to hold a vote on the matter; or
(b) refuse the application.
(2) The Minister must not give a notice stating that he or she supports the establishment of the new Land Council unless he or she is satisfied that:
(a) the qualifying area is an appropriate area for the establishment of a new Land Council; and
(b) the proposed new Land Council will be able to satisfactorily perform the functions of a Land Council.
(3) The Minister must give the applicant written notice of the Minister’s decision. If the Minister refuses the application, the notice must also include reasons for the refusal.
(4) A notice under subsection (1) is not a legislative instrument.
21C Establishment of new Land Council if a 55% positive vote
(1) If the Minister gives a notice under section 21B stating that he or she supports the establishment of the new Land Council, he or she must request the Australian Electoral Commission to hold a vote on the proposed establishment of the new Land Council.
(2) The Australian Electoral Commission must hold the vote as soon as practicable after being requested to do so.
Voting
(3) A person is entitled to vote if:
(a) the person is an adult Aboriginal; and
(b) either:
(i) the person’s name is on the Commonwealth Electoral Roll and the person’s place of living as shown on the Roll is in the qualifying area; or
(ii) the person is entitled to vote under rules made under subsection (4).
Note: See also section 21D (which contains further provisions about the Commonwealth Electoral Roll).
(4) The Minister may, by legislative instrument, make rules for and in relation to the holding of the vote. In particular, the rules may:
(a) deal with the timing of the vote; and
(b) for the purposes of subparagraph (3)(b)(ii)—deal with those persons entitled to vote; and
(c) confer powers on the Electoral Commissioner or a member of the staff of the Australian Electoral Commission.
Minister may establish new Land Council if a 55% positive vote
(5) The Minister may, by notice in writing, establish the new Land Council for the qualifying area if at least 55% of the formal votes cast by persons entitled to vote on the proposal are in favour of it.
(6) For the purposes of subsection (5), a vote is formal if and only if:
(a) a person authorised under subsection (7) is satisfied that it is on an authentic ballot paper; and
(b) it indicates the voter’s preference for either being in favour or against the proposal; and
(c) it does not have upon it any writing or another mark by which, in the opinion of a person authorised under subsection (7), the voter can be identified (not including writing or another mark placed on the ballot paper, whether or not in contravention of any law, by a person involved in conducting the vote).
(7) The Electoral Commissioner may, by writing, authorise a member of the staff of the Australian Electoral Commission for the purpose of subsection (6).
Name and boundaries of new Land Council
(8) The notice under subsection (5) must:
(a) specify the name of the new Land Council (which must be the name specified in the application under section 21A); and
(b) set out the boundaries of the area for which the new Land Council is established.
Redrawing of boundaries of other Land Council areas
(9) On the establishment of the new Land Council, the area specified in the notice under subsection (5) ceases to be part of the area of the Land Council, or of the areas of the Land Councils, in which it was included immediately before that establishment.
Informing Aboriginals about existence of new Land Council
(10) On the establishment of the new Land Council, the Minister must take whatever steps he or she considers necessary and practicable to inform the adult Aboriginals living in the area of the Council of the existence of the Council.
Publication
(11) The Minister must publish the notice under subsection (5) in the Gazette.
Notice not a legislative instrument
(12) A notice under subsection (5) is not a legislative instrument.
21D Rules about Commonwealth Electoral Roll
(1) For the purposes of section 21C, a person’s name is taken to be on the Commonwealth Electoral Roll if the name appearing on the Roll is, in the opinion of a person authorised under subsection (2) of this section, sufficient to identify the person.
(2) The Electoral Commissioner may, by writing, authorise a member of the staff of the Australian Electoral Commission for the purpose of subsection (1).
21E Variation of boundaries
Request
(1) Two Land Councils may, by joint written notice given to the Minister, request the Minister to vary the boundaries of the areas of the Councils, so that a specified area:
(a) ceases to be part of the area of one of those Councils; and
(b) becomes part of the area of the other Council.
(2) A Land Council must not make a request under subsection (1) unless the Council is satisfied that:
(a) the traditional Aboriginal owners (if any) of the land in the specified area understand the nature and purpose of the proposed variation and, as a group, consent to it; and
(b) any Aboriginal community or group that may be affected by the proposed variation has been consulted and has had adequate opportunity to express its view to the Council.
Variation
(3) If the Minister receives a request under subsection (1), the Minister may, by writing, vary the boundaries of the areas of the Land Councils in accordance with the request.
Publication
(4) The Minister must publish an instrument under subsection (3) in the Gazette.
Notice not a legislative instrument
(5) An instrument under subsection (3) is not a legislative instrument.
22 Land Council to be body corporate etc.
(1) A Land Council:
(a) is a body corporate, with perpetual succession;
(b) shall have a common seal;
(c) may acquire, hold and dispose of real and personal property; and
(d) may sue and be sued in its corporate name.
Note: The Public Governance, Performance and Accountability Act 2013 applies to a Land Council. That Act deals with matters relating to corporate Commonwealth entities, including reporting and the use and management of public resources.
(2) All courts, judges and persons acting judicially shall take notice of the common seal of a Land Council affixed to a document and shall presume that it was duly affixed.
23 Functions of Land Council
(1) The functions of a Land Council are:
(a) to ascertain and express the wishes and the opinion of Aboriginals living in the area of the Land Council as to the management of Aboriginal land in that area and as to appropriate legislation concerning that land; and
(b) to protect the interests of traditional Aboriginal owners of, and other Aboriginals interested in, Aboriginal land in the area of the Land Council; and
(ba) to assist Aboriginals in the taking of measures likely to assist in the protection of sacred sites on land (whether or not Aboriginal land) in the area of the Land Council; and
(c) to consult with traditional Aboriginal owners of, and other Aboriginals interested in, Aboriginal land in the area of the Land Council with respect to any proposal relating to the use of that land; and
(d) where the Land Council holds in escrow a deed of grant of land made to a Land Trust under section 12:
(i) to negotiate with persons having estates or interests in that land with a view to the acquisition of those estates or interests by the Land Trust; and
(ii) until those estates or interests have been so acquired, to negotiate with those persons with a view to the use by Aboriginals of the land in such manner as may be agreed between the Land Council and those persons; and
(e) to negotiate with persons desiring to obtain an estate or interest in land in the area of the Land Council:
(i) where the land is held by a Land Trust—on behalf of traditional Aboriginal owners (if any) of that land and of any other Aboriginals interested in the land; and
(ii) where the land is the subject of an application referred to in paragraph 50(1)(a)—on behalf of the traditional Aboriginal owners of that land or on behalf of any other Aboriginals interested in the land; and
(ea) to assist Aboriginals in the area of the Land Council to carry out commercial activities (including resource development, the provision of tourist facilities and agricultural activities), in any manner that will not cause the Land Council to incur financial liability or enable it to receive financial benefit; and
(eb) for land that is a community living area and in the area of the Land Council—to assist the owner of the land, if requested to do so, in relation to any dealings in the land (including assistance in negotiating leases of, or other grants of interests in, the land); and
(f) to assist Aboriginals claiming to have a traditional land claim to an area of land within the area of the Land Council in pursuing the claim, in particular, by arranging for legal assistance for them at the expense of the Land Council; and
(fa) to negotiate, and enter into agreements, as necessary, for the purposes of subsection 70(4); and
(g) to compile and keep:
(i) a register recording the names of the members of the Land Council; and
(ii) a register recording the names of the members of the Land Trusts holding, or established to hold, Aboriginal land in its area and descriptions of each area of such Aboriginal land; and
(h) to supervise, and provide administrative or other assistance for, Land Trusts holding, or established to hold, Aboriginal land in its area; and
(i) such other functions as are prescribed by the regulations.
(2) A Land Council may, with the approval of the Minister, perform any functions that may be conferred on it by a law of the Northern Territory, including, without limiting the foregoing, functions in relation to:
(a) the protection of sacred sites;
(b) access to Aboriginal land; and
(c) schemes for the management of wildlife on Aboriginal land.
(3) In carrying out its functions with respect to any Aboriginal land in its area, a Land Council shall have regard to the interests of, and shall consult with, the traditional Aboriginal owners (if any) of the land and any other Aboriginals interested in the land and, in particular, shall not take any action, including, but not limited to, the giving of consent or the withholding of consent, in any matter in connexion with land held by a Land Trust, unless the Land Council is satisfied that:
(a) the traditional Aboriginal owners (if any) of that land understand the nature and purpose of the proposed action and, as a group, consent to it; and
(b) any Aboriginal community or group that may be affected by the proposed action has been consulted and has had adequate opportunity to express its view to the Land Council.
(4) The reference in paragraph (1)(e) to an estate or interest in land includes a reference to a licence in respect of that land.
23AA How functions of a Land Council are to be performed
Priorities
(1) A Land Council must from time to time determine the priorities it will give to performing its functions under this Part.
(2) A Land Council may allocate resources in the way it thinks fit so as to be able to perform its functions efficiently.
(3) A Land Council must give priority to the protection of the interests of traditional Aboriginal owners of, and other Aboriginals interested in, Aboriginal land in the area of the Council.
Functions to be performed in a timely manner
(4) A Land Council must use its best efforts to perform its functions in a timely manner, particularly in respect of matters affected by:
(a) time limits under this Act; or
(b) time limits under another law of the Commonwealth or a law of the Northern Territory that are relevant to the performance of its functions.
Maintenance of organisational structures and processes
(5) A Land Council must perform its functions in a manner that:
(a) maintains organisational structures and administrative processes that promote the satisfactory representation by the Council of, and promote effective consultation with, the traditional Aboriginal owners of, and other Aboriginals interested in, Aboriginal land in the area of the Council; and
(b) ensures that the structures and processes operate in a fair manner.
23A Power of Land Council to obtain information and documents
(1) In this section, authorized person means a person authorized by a Land Council for the purposes of this section, and any word or phrase that is defined by section 3 of the Environment Protection (Northern Territory Supreme Court) Act 1978 and is used in this section has the same meaning as in that Act.
(2) An authorized person may, by notice in writing served either personally or by post on a person, require the person (in this subsection referred to as the person liable):
(a) to furnish to the authorized person, by writing signed by the person liable, or, if the person liable is a body corporate, by a competent officer of the body corporate, within the time and in the manner specified in the notice, such information in the possession of the person liable as is specified in the notice; or
(b) to furnish to the authorized person, within the time and in the manner specified in the notice, such documents in the possession of the person liable as are specified in the notice;
being information or documents that:
(c) relates, or relate, to:
(i) uranium mining operations in the Alligator Rivers Region; or
(ii) any action taken to comply with any requirement of or having effect under a prescribed instrument so far as the requirement relates to the effect of those operations on the environment; and
(d) is, or are, relevant to the question whether or not the Land Council should exercise the power conferred on it by section 4 of the Environment Protection (Northern Territory Supreme Court) Act 1978 to make application to the Supreme Court of the Northern Territory of Australia for the making of an order under that section.
23B Application to Supreme Court for order with respect to information or documents
(1) Where a person who has been served with a notice under section 23A has refused or failed to comply, or to comply fully, with the notice, the Land Council concerned may apply to the Supreme Court of the Northern Territory of Australia for an order under this section against that person.
(2) The person against whom an order under this section is sought is entitled to notice of, and to appear in, the proceedings.
(3) Where, in proceedings under this section, the Court is satisfied that all or any of the information or documents that was or were required by the notice to be furnished and has or have not been furnished:
(a) is or are in the possession of, or available to, the person against whom the order is sought; and
(b) is or are information or documents of a kind referred to in paragraphs 23A(2)(c) and (d);
the Court may make an order requiring the person against whom the order is sought to furnish to the Land Council concerned, within the time and in the manner specified in the order, the information or documents as to which the Court is so satisfied.
(4) The Court shall not, under this section, require a person to furnish information or a document if the Court is satisfied that compliance with a requirement to furnish that information or document might tend to incriminate that person.
23C A person authorised by Land Council to have access to buildings and places in Region
(1) In this section, authorized person means a person authorized by a Land Council for the purposes of this section, and any word or phrase that is defined by section 3 of the Environment Protection (Northern Territory Supreme Court) Act 1978 and is used in this section has the same meaning as in that Act.
(2) An authorized person is entitled, with the consent of the occupier, to full and free access to all buildings and places in the Alligator Rivers Region for the purpose of obtaining, and reporting to the Land Council, any information that:
(a) relates to:
(i) uranium mining operations in the Alligator Rivers Region; or
(ii) any action taken to comply with any requirement of or having effect under a prescribed instrument so far as the requirement relates to the effect of those operations on the environment; and
(b) is relevant to the question whether or not the Land Council should exercise the power conferred on it by section 4 of the Environment Protection (Northern Territory Supreme Court) Act 1978 to make application to the Supreme Court of the Northern Territory of Australia for the making of an order under that section.
23D Application to Supreme Court for order with respect to access
(1) Where the occupier of a building or place has refused, or is unwilling, to consent to the entry of an authorized person into that building or place under section 23C, the Land Council concerned may apply to the Supreme Court of the Northern Territory of Australia for an order under this section against the occupier.
(2) A person against whom an order under this section is sought is entitled to notice of, and to appear in, the proceedings.
(3) Where, in proceedings under this section, the Court is satisfied that access by an authorized person to the building or place to which the proceedings relate is necessary for the purpose of obtaining information of a kind referred to in paragraphs 23C(2)(a) and (b), the Court may make an order requiring the person against whom the order is sought to give his or her consent, within a time specified in the order, to the entry of an authorized person into that building or place for the purpose referred to in section 23C.
(4) In this section, authorized person, means a person who is an authorized person for the purposes of section 23C.
23E Secrecy
(1) Subsection (2) applies to every person who is, or has been:
(a) an authorized person;
(b) a member of a Land Council; or
(c) a member of the staff of a Land Council.
(2) Subject to subsection (3), a person to whom this section applies who, either directly or indirectly, otherwise than in the performance of the person’s functions or duties as an authorized person, a member of a Land Council or a member of the staff of the Land Council, makes a record of, or divulges or communicates to any person any information concerning the affairs of any other person that has been acquired by the person in the course of performing functions or duties under section 23A, 23B, 23C or 23D is guilty of an offence punishable, on summary conviction, by a fine of not more than 60 penalty units or imprisonment for not more than 12 months, or both.
(3) Subsection (2) does not prevent the communication of information or the production of a document by a person authorized by a Land Council for the purpose:
(a) to the Supreme Court of the Northern Territory of Australia in support of an application made by the Land Council under section 4 of the Environment Protection (Northern Territory Supreme Court) Act 1978; or
(b) to the Minister, to the Secretary of the Department that deals with matters arising under this Act or to an officer of that Department approved by the Secretary of that Department; or
(c) to a person to whom, in the opinion of the Minister, it is in the public interest that the information be communicated or the document produced.
(4) A person commits an offence if:
(a) information is communicated to the person (the first person) in accordance with paragraph (3)(b) or (ba); and
(b) the information is communicated by a person (the second person) to whom this section applies; and
(c) the second person acquired the information because of his or her membership of, or employment by, a Land Council or his or her activities as an authorised person; and
(d) the information concerns the affairs of a third person; and
(e) the first person, either directly or indirectly, makes a record of, or divulges or communicates the information to any other person.
Penalty: 30 penalty units or imprisonment for 6 months.
(4A) Strict liability applies to paragraphs (4)(a), (b) and (c).
Note: For strict liability, see section 6.1 of the Criminal Code.
(4B) Subsection (4) does not apply if the first person makes the record, or divulges or communicates the information, for the purpose of advising the Minister in connection with this Act.
Note: A defendant bears an evidential burden in relation to the matter in subsection (4B) (see subsection 13.3(3) of the Criminal Code).
(5) Nothing in this section shall be taken to affect the operation of section 9 of the Ombudsman Act 1976.
(6) In this section, authorized person means an authorized person for the purposes of section 23A or 23C.
24 Register of traditional Aboriginal owners
A Land Council may compile, and maintain, a register setting out:
(a) the names of the persons who, in the opinion of the Council, are the traditional Aboriginal owners of Aboriginal land in the area of the Land Council; and
(b) in relation to each group of traditional Aboriginal owners, a map or other references showing the sites belonging to them in so far as such can be done without breach of Aboriginal usage.
25 Duty of Land Council to attempt conciliation of disputes
(1) This section applies to:
(a) Aboriginals;
(b) Land Trusts; and
(c) Aboriginal and Torres Strait Islander corporations and any other incorporated Aboriginal groups.
(2) Where a Land Council is informed that there is, or there may arise, a dispute with respect to land in the area of the Council between persons to whom this section applies, the Land Council shall use its best endeavours by way of conciliation for the settlement or prevention, as the case may be, of that dispute.
(3) Where proceedings are commenced before a court with respect to a dispute of a kind referred to in subsection (2), the judge or magistrate constituting the court may, if he or she thinks it appropriate, adjourn the proceedings at any time for the purpose of affording a Land Council the opportunity of undertaking conciliation with a view to the settlement of that dispute.
26 Land Council to meet expenses etc. of Land Trust
A Land Council shall pay or discharge any administrative expenses, charges or obligations incurred or undertaken by a Land Trust that holds, or is established to hold, land in its area.
27 Powers of Land Council
(1) Subject to this Act, a Land Council may do all things necessary or convenient to be done for or in connexion with the performance of its functions and, without limiting the generality of the foregoing, may:
(a) employ staff;
(b) obtain the advice and assistance of persons who are expert in any matter with which the Council is concerned (including assistance in connection with the administration of the affairs of the Council);
(c) give lawful directions to Land Trusts holding land in its area concerning the performance of their functions; and
(d) receive moneys due and owing to Land Trusts holding, or established to hold, land in its area and give a valid discharge for those moneys.
(1A) A Land Council may, on the request of an Aboriginal and Torres Strait Islander corporation that has received an amount of money from the Council under this Act, provide administrative or other assistance to the corporation.
(2) Where a Land Council employs a person as a staff member, the terms and conditions of the person’s employment are such as are from time to time determined by the Land Council.
(2A) Where a Land Council obtains the advice and assistance of a person under paragraph (1)(b), the terms and conditions of the engagement of that person are such as are approved by the Land Council.
(3) 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.
(4) The Minister shall not give an approval under subsection (3) with respect to entering into a contract relating to Aboriginal land unless the Minister is satisfied that the Land Council concerned has, in taking the action that has resulted in the proposed contract, complied with any duty imposed on it by subsection 23(3).
28 Delegation
Delegation to Council Chair or Council member or staff member
(1) A Land Council may, in writing under its common seal, delegate to the following:
(a) the Chair or another member of the Council;
(b) a member of the staff of the Council;
any of the Council’s functions or powers under this Act other than the following:
(c) the giving or withholding of consent in relation to the acquisition or grant of an estate or interest in Aboriginal land under an agreement or agreements:
(i) that will have effect for a period that exceeds, or for periods that together exceed, 2 years; or
(ii) in respect of which the approval of the Minister is required by subsection 27(3);
(ca) the making of a request under section 21E;
(d) the making of determinations under section 35;
(e) the giving or refusing of a consent under subsection 42(1);
(f) the giving of a consent under section 48C;
(g) any function or power prescribed by the regulations.
Delegation to Council committee
(2) A Land Council may, in writing under its common seal, delegate to a committee appointed under section 29A any of the Council’s functions or powers under this Act other than the following:
(aa) the making of a request under section 21E;
(a) the making of determinations under section 35;
(b) any function or power prescribed by the regulations.
Delegation to Aboriginal and Torres Strait Islander corporation
(3) A Land Council may, in writing under its common seal, delegate to an Aboriginal and Torres Strait Islander corporation that has made an application in accordance with section 28A, the Council’s functions or powers under the following provisions:
(a) section 11A (about agreements concerning land under claim);
(b) section 19 (about dealings with interests in land by Land Trusts), except subsection (4) of that section;
(ba) section 19A (about grant of township leases);
(c) Part IV (about mining);
(d) section 67B (about granting estates or interests while land is subject to a traditional land claim);
(e) section 68 (about roads over Aboriginal land);
(f) subsection 70(4) (about access agreements);
and the Council may also delegate to the corporation the Council’s other functions and powers, so far as they are associated with the performance of a function, or the exercise of a power, that is:
(g) conferred by a provision mentioned in any of the above paragraphs; and
(h) covered by the delegation.
(4) Where the provisions of this Act require that a Land Council, before performing a function or exercising a power conferred upon it to do, or to consent to the doing of, an act or thing, satisfy itself that:
(a) the traditional Aboriginal owners (if any) of the land affected by the performance of the function or the exercise of the power understand the nature and purpose of the act or thing and consent to it; and
(b) any Aboriginal community or group that may be affected by the doing of the act or thing has been consulted and has had adequate opportunity to express its views to the Land Council;
then, if that function or power is delegated, the delegate may perform the function or exercise the power if the delegate is satisfied:
(c) of the matter referred to in paragraph (a); and
(d) that any Aboriginal community or group that may be affected by the doing of the act or thing has been consulted and has had adequate opportunity to express its views to the delegate.
28A Delegation of a Land Council’s functions or powers to Aboriginal and Torres Strait Islander corporation
Application
(1) An Aboriginal and Torres Strait Islander corporation may, in writing, apply to a Land Council to have the Council delegate to the corporation some or all of the Council’s functions or powers that are delegable to the corporation if a majority of the members of the corporation are either:
(a) the traditional Aboriginal owners of land in the part of the area of the Council mentioned in paragraph (2)(b); or
(b) Aboriginals who live in that part.
Note: Section 28 sets out which of the Council’s functions or powers are delegable to the corporation.
(2) An application must:
(a) set out whether the corporation wants the Council to delegate to the corporation:
(i) all of the delegable functions or powers; or
(ii) specified delegable functions or powers; or
(iii) specified delegable functions or powers in relation to specified matters; and
(b) set out the part of the area of the Council (the relevant part) in respect of which the corporation is seeking to perform those functions or exercise those powers; and
(ba) set out the names of the corporation’s members; and
(bb) set out evidence that a majority of the members of the corporation are either:
(i) the traditional Aboriginal owners of land in the relevant part; or
(ii) Aboriginals who live in the relevant part; and
(bc) set out the reason the corporation seeks the delegation; and
(bd) set out the reason the corporation selected the relevant part; and
(be) set out a description of any consultation by the corporation with the following persons in relation to the delegation:
(i) traditional Aboriginal owners of land in the relevant part;
(ii) any other Aboriginal community or group that may be affected by the delegation; and
(bf) set out a description of any conflict of interest arrangements the corporation has in place; and
(bg) set out the qualifications and experience of:
(i) the corporation’s officers (within the meaning of the Corporations (Aboriginal and Torres Strait Islander) Act 2006); and
(ii) the corporation’s employees (within the meaning of that Act);
that are relevant to the delegation; and
(bh) set out how the corporation proposes to make decisions in relation to the delegated functions or powers, including any proposed ongoing consultation with the persons mentioned in paragraph (be); and
(bi) set out an estimate of the resources required to perform or exercise the delegated functions or powers; and
(bj) set out the following breakdown of the resources mentioned in paragraph (bi):
(i) resources the corporation has at its disposal;
(ii) resources the corporation proposes to obtain from the Council;
(iii) resources the corporation proposes to obtain from another source, and the name of that source; and
(c) contain any other information prescribed by the regulations; and
(d) be accompanied by:
(i) a copy of the general report that the corporation has most recently lodged with the Registrar of Aboriginal and Torres Strait Islander Corporations under the Corporations (Aboriginal and Torres Strait Islander) Act 2006; and
(ii) a copy of the financial report that the corporation has most recently lodged with the Registrar of Aboriginal and Torres Strait Islander Corporations under the Corporations (Aboriginal and Torres Strait Islander) Act 2006; and
(iii) a copy of the directors’ report that the corporation has most recently lodged with the Registrar of Aboriginal and Torres Strait Islander Corporations under the Corporations (Aboriginal and Torres Strait Islander) Act 2006; and
(iv) if the financial report mentioned in subparagraph (ii) has been audited as required under the Corporations (Aboriginal and Torres Strait Islander) Act 2006—a copy of the auditor’s report.
Note: Examples of resources for paragraphs (bi) and (bj) are money, employees, premises and equipment.
(2A) The Council must give the Minister a copy of the application.
Decision
(3) The Council must make the delegation under section 28 or refuse to make the delegation.
Refusal
(4) If the Council refuses to make the delegation:
(a) it must give the corporation written notice of the refusal including reasons for the refusal; and
(b) it must give the Minister a copy of the notice.
Time limit
(5) The Council must take all reasonable steps to ensure that a decision is made on the application within:
(a) 6 months after the day the application was made; or
(b) if a longer period is agreed in writing by the corporation—that period.
(6) If a longer period is agreed under paragraph (5)(b), the Council must notify the Minister, in writing, of the agreement.
28B Variation or revocation of a delegation to Aboriginal and Torres Strait Islander corporation
(1) If a delegation by a Land Council is in force under subsection 28(3) in relation to an Aboriginal and Torres Strait Islander corporation, the Council may, in writing, vary or revoke the delegation:
(a) on its own initiative; or
(b) in accordance with a request or application made by the corporation.
(2) Before varying or revoking a delegation on its own initiative, the Council must consult the corporation concerned.
Variation to add functions or powers—application by corporation
(4) If a delegation by a Land Council is in force under subsection 28(3) in relation to an Aboriginal and Torres Strait Islander corporation, the corporation may, in writing, apply to the Council for a variation of the delegation to:
(a) apply to all of the Council’s functions or powers that are delegable to the corporation; or
(b) add specified delegable functions or powers; or
(c) add specified delegable functions or powers in relation to specified matters.
The Council must, in writing, vary or refuse to vary the delegation.
Note: For example, the corporation may seek to increase the part of the area of the Council in respect of which the corporation wants to perform functions or exercise powers.
(4A) The application must:
(a) set out the names of the corporation’s members; and
(b) set out evidence that a majority of the members of the corporation are either:
(i) the traditional Aboriginal owners of land in the part of the area of the Council in respect of which the corporation will, if the variation is made, be able to perform the delegated functions or exercise the delegated powers; or
(ii) Aboriginals who live in that part; and
(c) set out the reason the corporation seeks the variation; and
(d) if the variation is to increase the part of the area of the Council in respect of which the corporation wants to perform functions or exercise powers—set out:
(i) the areal extent of the increase; and
(ii) the reason the corporation selected that areal extent; and
(e) set out a description of any consultation by the corporation with the following persons in relation to the variation:
(i) traditional Aboriginal owners of land in the part of the area of the Council affected by the variation;
(ii) any other Aboriginal community or group that may be affected by the variation; and
(f) set out a description of any conflict of interest arrangements the corporation has in place; and
(g) set out the qualifications and experience of:
(i) the corporation’s officers (within the meaning of the Corporations (Aboriginal and Torres Strait Islander) Act 2006); and
(ii) the corporation’s employees (within the meaning of that Act);
that are relevant to the variation; and
(h) set out how the corporation proposes to make decisions in relation to the functions or powers covered by the variation, including any proposed ongoing consultation with the persons mentioned in paragraph (e); and
(i) set out an estimate of the resources required to perform or exercise the functions or powers covered by the variation; and
(j) set out the following breakdown of the resources mentioned in paragraph (i):
(i) resources the corporation has at its disposal;
(ii) resources the corporation proposes to obtain from the Council;
(iii) resources the corporation proposes to obtain from another source, and the name of that source; and
(k) contain any other information prescribed by the regulations; and
(l) be accompanied by:
(i) a copy of the general report that the corporation has most recently lodged with the Registrar of Aboriginal and Torres Strait Islander Corporations under the Corporations (Aboriginal and Torres Strait Islander) Act 2006; and
(ii) a copy of the financial report that the corporation has most recently lodged with the Registrar of Aboriginal and Torres Strait Islander Corporations under the Corporations (Aboriginal and Torres Strait Islander) Act 2006; and
(iii) a copy of the directors’ report that the corporation has most recently lodged with the Registrar of Aboriginal and Torres Strait Islander Corporations under the Corporations (Aboriginal and Torres Strait Islander) Act 2006; and
(iv) if the financial report mentioned in subparagraph (ii) has been audited as required under the Corporations (Aboriginal and Torres Strait Islander) Act 2006—a copy of the auditor’s report.
Note: Examples of resources for paragraphs (i) and (j) are money, employees, premises and equipment.
(4B) The Council may, by writing, exempt the corporation from compliance with any or all of the requirements set out in subsection (4A) in relation to the application.
(4C) The Council must give the Minister a copy of the application.
(5) If the Council refuses to vary the delegation:
(a) it must give the corporation written notice of the refusal including reasons for the refusal; and
(b) it must give the Minister a copy of the notice.
(6) The Council must take all reasonable steps to ensure that a decision is made on the application within:
(a) 6 months after the day the application was made; or
(b) if a longer period is agreed in writing by the corporation—that period.
(7) If a longer period is agreed under paragraph (6)(b), the Council must notify the Minister, in writing, of the agreement.
28E Land Council to provide assistance to Aboriginal and Torres Strait Islander corporation
(1) If:
(a) a delegation from a Land Council to an Aboriginal and Torres Strait Islander corporation is in force under section 28; and
(b) a person requests the Land Council to perform a function or exercise a power covered by the delegation;
the Land Council must, as soon as practicable, advise the corporation in writing of that request.
(2) While a delegation from a Land Council to an Aboriginal and Torres Strait Islander corporation is in force under section 28, the Council must provide the corporation with all reasonable facilities and assistance requested by the corporation in relation to the corporation’s performance of the functions or the exercise of the powers covered by the delegation.
28F Aboriginal and Torres Strait Islander corporation to give notice of its decisions
If an Aboriginal and Torres Strait Islander corporation makes a decision under a delegation from a Land Council under section 28, the corporation must:
(a) record its decision in writing; and
(b) give the Council a written notice setting out the decision; and
(c) give a copy of the decision, upon request, to any person or body affected by the decision; and
(d) give a written statement of the corporation’s reasons for the decision, upon request, to any person or body affected by the decision; and
(e) if the corporation gives a statement to a person or body under paragraph (d)—give a copy of the statement to the Council.
29 Membership of Land Council
(1) The members of a Land Council shall be Aboriginals living in the area of the Land Council, or whose names are set out in the register maintained by the Land Council in accordance with section 24, chosen by Aboriginals living in the area of the Land Council in accordance with such method or methods of choice, and holding office on such terms and conditions, as is, or are, approved by the Minister from time to time.
(2) A Land Council may, with the approval of the Minister, co‑opt Aboriginals living in the area of the Land Council as additional members, but not more than 5 such members may hold office at any one time.
Eligibility requirements
(3) A person is not eligible to be a member of a Land Council for the period set out in subsection (6) if a disqualifying event happens in relation to the person.
(4) A person ceases to be a member of a Land Council if a disqualifying event happens in relation to the person.
(5) For the purposes of subsections (3) and (4), a disqualifying event happens in relation to a person if the person:
(a) is convicted of an offence against a law of the Commonwealth, a State or a Territory (not involving dishonesty) and sentenced to a period of imprisonment of 12 months or more; or
(b) is convicted of an offence against a law of the Commonwealth, a State or a Territory involving dishonesty and sentenced to a period of imprisonment of 3 months or more; or
(c) is convicted of 2 or more offences against a law of the Commonwealth, a State or a Territory, is sentenced to a period or periods of imprisonment in respect of the offences and is required (or would have been required if the sentence or sentences had not been suspended) to serve a term of imprisonment of 12 months or more; or
(d) is convicted of 2 or more offences against a law of the Commonwealth, a State or a Territory involving dishonesty, is sentenced to a period or periods of imprisonment in respect of the offences and is required (or would have been required if the sentence or sentences had not been suspended) to serve a term of imprisonment of 3 months or more.
This subsection applies whether or not the person is also fined in respect of the offence or offences.
(6) For the purposes of subsection (3), the period of ineligibility is for:
(a) if the person serves a term of imprisonment—2 years beginning on the day the person is released from prison; or
(b) if the person does not serve a term of imprisonment—2 years beginning on the day the person is convicted.
29AA Register of interests of members of Land Council
Disclosure
(1) Each member of a Land Council must make to the Council written disclosures of the member’s direct or indirect pecuniary interests in accordance with a determination of the Minister under this section.
Keeping of register
(2) The Council must keep a register of the interests disclosed in accordance with the determination.
Determination
(3) The Minister may, by legislative instrument, make a determination specifying:
(a) the kinds of interests to be disclosed; and
(b) the manner in which, and the times at which, disclosures are to be made; and
(c) the form in which the register is to be kept.
29A Committees
(1) A Land Council may, by notice in writing, appoint a committee or committees of its members to assist the Council in relation to the performance of any of its functions or the exercise of any of its powers.
Content of notice
(2) The notice must specify:
(a) the name of each committee member; and
(b) if the committee is appointed in relation to a particular area of the Land Council—that area.
Number of committee members
(3) A committee must consist of at least 7 members or such other number as is prescribed by the regulations.
Rules for conduct of meetings
(4) The Land Council must make written rules providing for and in relation to the convening of meetings, and the procedure for the conduct of meetings, of a committee appointed under this section. The rules are not a legislative instrument.
(5) The Land Council must give a copy of the rules made under subsection (4) to the Minister.
Minutes
(6) A committee must keep minutes of its meetings.
Inspection
(7) The Land Council must allow:
(a) the traditional Aboriginal owners of Aboriginal land in the area of the Council; or
(b) any Aboriginal living in the area of the Council;
to inspect, at any reasonable time without charge:
(c) rules made under subsection (4); or
(d) the minutes of committee meetings (other than any part of the minutes that relates to an excludable matter).
30 Chair and Deputy Chair of Land Council
(1) The Minister shall, as soon as practicable after the establishment of a Land Council, or at any time when the office of Chair of a Land Council is vacant, convene a meeting of that Council for the purpose of electing a member of that Council as the Chair of that Council.
(2) The Minister shall appoint one of the members of the Council to preside at a meeting referred to in subsection (1).
(3) When a Chair is elected at a meeting referred to in subsection (1), the Chair shall preside at that meeting in place of the person appointed by the Minister under subsection (2).
(4) A Land Council shall, as soon as practicable after its establishment, elect a member of that Council as the Deputy Chair of that Council and shall, thereafter, whenever the position of Deputy Chair is vacant, elect a new Deputy Chair.
(5) Subject to subsection (6), a person elected as the Chair or the Deputy Chair of a Land Council under this section holds office for a period of 3 years, and is eligible for re‑election.
(6) A Land Council may, at any time, by resolution, elect a new Chair or Deputy Chair and, on the passing of such a resolution, the person who held that office immediately before that resolution was passed ceases to hold that office.
(7) A co‑opted member of a Land Council is not eligible to be elected as the Chair or the Deputy Chair of the Land Council.
31 Meetings of Land Council
(1) The Chair shall convene such meetings of a Land Council as are, in his or her opinion, necessary for the efficient conduct of its affairs and, at such a meeting, the Chair shall preside if he or she is present and, if the Chair is not present, the Deputy Chair shall preside.
(2) At the request of at least 6 members of a Land Council, the Deputy Chair may convene a meeting of the Land Council and, if the Deputy Chair does so, shall preside at that meeting.
(3) The Minister may, where he or she considers that the circumstances require it, convene a meeting of the Land Council and appoint a member of the Land Council to preside at the meeting.
(4) The quorum for a meeting of a Land Council is such number of members as is equal to:
(a) where the number of members of the Land Council at the time of the meeting is an even number—one‑half of that last‑mentioned number; or
(b) any other case—one‑half of the number that is less by 1 than the number of members of the Land Council at the time of the meeting;
and, except where the meeting has been convened under subsection (3), includes the Chair or the Deputy Chair.
(5) A question arising at a meeting of a Land Council shall be decided by a majority of the votes of members present and voting.
(6) At a meeting of a Land Council the member presiding has a deliberative vote and, in the event of votes being equal, has a casting vote.
(7) A Land Council must make written rules, not inconsistent with this Act, providing for and in relation to the convening of meetings, and the procedure for the conduct of meetings, of the Council. The rules are not a legislative instrument.
(7A) A Land Council must give a copy of the rules made under subsection (7) to the Minister for his or her approval.
(7B) The Minister must, by notice in writing, approve or refuse to approve the rules. The notice is not a legislative instrument.
(7C) The rules come into force once the Minister has approved them.
(7D) A Land Council must allow the following persons to inspect, at any reasonable time without charge, rules made under subsection (7) and approved by the Minister:
(a) the traditional Aboriginal owners of Aboriginal land in the area of the Council;
(b) any Aboriginal living in the area of the Council.
(9) Subject to any direction of the member presiding, a member of a Land Council may be accompanied to a meeting of the Land Council by such other residents of the area of the Land Council as may wish so to accompany him or her.
Minutes
(10) A Land Council must keep minutes of its meetings.
(11) A Land Council must allow the following persons to inspect, at any reasonable time without charge, the minutes of its meetings (other than any part of the minutes that relates to an excludable matter):
(a) the traditional Aboriginal owners of Aboriginal land in the area of the Council;
(b) any Aboriginal living in the area of the Council.
33 Borrowing by Land Council
(1) With the approval of the Finance Minister, a Land Council may, in any one financial year, borrow from a bank approved by the Finance Minister for the purpose an amount not exceeding, or amounts not exceeding in the aggregate, an amount equal to 10% of the total of the estimates of expenditure approved by the Minister under section 34 in respect of that year.
(2) The Finance Minister may, by written instrument, delegate any of the Finance Minister’s powers or functions under this section to an official (within the meaning of the Public Governance, Performance and Accountability Act 2013) of a non‑corporate Commonwealth entity (within the meaning of that Act). In exercising powers or functions under a delegation, the official must comply with any directions of the Finance Minister.
(3) In this section:
Finance Minister means the Minister who administers the Public Governance, Performance and Accountability Act 2013.
33A Land Council may charge fees for services
(1) A Land Council may charge a fee for services prescribed by the regulations that it provides in performing any of its functions, or exercising any of its powers, under this Act.
(2) The fee must not be such as to amount to taxation.
33B Land Council may charge other fees
(2) A Land Council may charge the Commonwealth a fee for the reasonable expenses incurred by the Council in providing services prescribed by the regulations for the purposes of this subsection.
(3) A fee under subsection (2) must not be such as to amount to taxation.
(4) Nothing in this section prevents a Land Council charging the Commonwealth a fee under section 33A.
34 Expenditure to be in accordance with approved estimates
(1) A Land Council shall prepare estimates, in such form as the Minister directs, of its expenditure to meet its administrative costs 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 his or her approval not later than such date as the Minister directs.
Note: The Minister must have regard to approved estimates in determining what amounts are to be debited from the Account under subsection 64(1).
(1A) A Land Council must, at the time it submits estimates to the Minister under subsection (1), notify the Minister, in such form as the Minister directs, of:
(a) the total amount of fees it expects to receive under section 33A or 33B during the period to which those estimates relate; and
(b) the total amount of other income it expects to receive during the period to which those estimates relate in relation to performing functions or exercising powers under this Act.
Note: The Minister must have regard to these amounts in determining what amounts are to be debited from the Account under subsection 64(1).
(1B) Paragraph (1A)(b) does not apply to:
(a) a payment made to a Land Council as mentioned in subsection 35(2), (3), (4) or (4B); or
(b) interest received by a Land Council as mentioned in subsection 35(11) in relation to such a payment.
(2) Subject to subsection (3), moneys of the Land Council shall not be expended to meet its administrative costs or capital costs otherwise than in accordance with estimates of expenditure approved by the Minister.
(3) The amount of the expenditure by a Land Council in relation to the matter or matters covered by an item in the estimates approved by the Minister may exceed the amount specified in the item by an amount not exceeding 20% of the amount so specified.
(3AA) Nothing in subsection (3) empowers a Land Council to spend amounts, in relation to matters covered by the estimates approved by the Minister, that exceed the total amount of expenditure provided for by those estimates.
(3A) A Land Council is also required to prepare budget estimates under section 36 of the Public Governance, Performance and Accountability Act 2013.
(4) In this section:
administrative costs of a Land Council includes:
(a) the cost of providing services for which the Council may charge a fee under section 33A; and
(aa) expenses for which the Council may charge a fee under section 33B; and
(b) the cost of paying remuneration and allowances that are payable under this Act to:
(i) a member of the Council; or
(ii) a member of a Land Trust holding land, or established to hold land, in the area of the Council.
35 Application of money of Land Council
(1) A Land Council must spend the following amounts in meeting its administrative costs or capital costs, in accordance with section 34, in the financial year in which the amounts are received or in the next financial year:
(a) money paid to the Council under subsection 64(1);
(b) fees the Council receives under section 33A or 33B;
(c) other income the Council receives in relation to performing functions or exercising powers under this Act.
(1A) Paragraph (1)(c) does not apply to:
(a) a payment made to a Land Council as mentioned in subsection (2), (3), (4) or (4B); or
(b) interest received by a Land Council as mentioned in subsection (11) in relation to such a payment.
(2) Subject to this section, money paid to a Land Council under subsection 64(3) must be paid, within 6 months of its receipt by the Land Council, to any Aboriginal and Torres Strait Islander corporations whose members live in, or are the traditional Aboriginal owners of, the area affected by those mining operations, in such proportions as the Land Council determines.
(3) Subject to this section, within 6 months after money is paid to a Land Council under an agreement made under section 42, 43, 44, 46, 48A, 48B or 48D, it must:
(a) be applied by the Land Council in accordance with the agreement; or
(b) if the agreement makes no provision in relation to the application of the money—be paid to any Aboriginal and Torres Strait Islander corporations whose members are affected by the agreement, in such proportions as the Land Council determines.
(4) Where a Land Council receives a payment in respect of Aboriginal land (including a payment under section 15 or 16 or a payment under a lease or licence under section 19 or 20, but not including a payment under section 33A, 33B or 64 of this Act), the Land Council shall, within 6 months after that payment is received, pay an amount equal to that payment to or for the benefit of the traditional Aboriginal owners of the land.
(4A) If:
(a) a Land Council receives a payment as mentioned in subsection (4); and
(b) the payment is made by the Commonwealth, the Northern Territory or an Authority; and
(c) the payment is of a kind prescribed by the regulations for the purposes of this subsection; and
(d) under subsection (4), the Land Council pays an amount equal to that payment to a person;
the Land Council must, at the time it pays that amount, advise the person in writing that the amount is an accountable amount.
Note: Sections 35B and 35C impose requirements on a body corporate in relation to accountable amounts.
(4B) If a Land Council receives a payment in respect of Aboriginal land under a lease under section 19A, the Land Council must, within 6 months of receiving the payment, pay an amount equal to that payment to an Aboriginal and Torres Strait Islander corporation for the benefit of the traditional Aboriginal owners of the land.
(5) Where a Land Council has not, before the expiration of the period specified in subsection (2) or (3), disbursed any amount that it is, under that subsection, required to disburse because it has not been able to make a determination under that subsection, the Land Council shall, as soon as practicable after the expiration of that period, but not later than one month after the expiration of that period, give to the Minister a report, in writing, setting out its reasons for not having made that determination.
(6) Where the Minister receives a report from a Land Council under subsection (5), the Minister may, after having regard to the matters set out in that report and to any other matters that the Minister considers relevant, make a determination in relation to the amount to which the report relates, being a determination that could have been made by the Land Council, and, upon the Minister’s so doing:
(a) the determination shall have effect, for all purposes of this Act, as if it were a determination that had been duly made by the Land Council; and
(b) subject to this section, the Land Council shall cause the amount to which the determination relates to be disbursed forthwith in accordance with the determination.
Note: Sections 35B and 35C impose requirements on a body corporate that receives an amount under a determination.
(6A) If:
(a) a body corporate spends an amount it received under a determination under subsection (2), (3) or (6); and
(b) the Land Council concerned is satisfied that the body corporate has not complied with section 35C in respect of the financial year in which the body corporate spent the amount;
the Land Council may, by notice in writing given to the body corporate, suspend payments under a determination under subsection (2), (3) or (6) of this section, as the case may be, to the body corporate until the body corporate does so comply.
(6B) If a Land Council gives a notice under subsection (6A), the Council must:
(a) hold an amount that would have been paid to the body corporate, apart from the giving of that notice, in trust for the body corporate; and
(b) hold the amount in trust until it is paid to the body corporate.
(6C) During the period of a suspension under subsection (6A), the Land Council may, under subsection 35A(3) or (4):
(a) vary a determination under subsection (2), (3) or (6) of this section, as the case may be, so that the determination no longer applies in respect of the body corporate and instead applies in respect of another body corporate; or
(b) revoke a determination under subsection (2), (3) or (6) of this section, as the case may be, in respect of the body corporate and make a new determination under subsection (2) or (3) of this section, as the case may be, in respect of another body corporate.
(6D) If subsection (6C) applies, the Land Council must pay to the other body corporate any amount held in trust in accordance with subsection (6B). This subsection applies despite subsection (6B).
Note: Interest may also be payable to the other body corporate under subsection (11).
(6E) A notice under subsection (6A) is not a legislative instrument.
(8) Each amount of money that is paid to a Land Council as mentioned in subsection (2), (3), (4) or (4B) shall be held in trust for the bodies to which or persons to whom that amount is eventually to be paid in accordance with this section until that amount is so paid.
(9) Where an Aboriginal and Torres Strait Islander corporation or the traditional Aboriginal owners of an area of Aboriginal land to which or to whom an amount of money would, but for this subsection, be required to be paid by a Land Council in accordance with subsection (2), (3), (4), (4B) or (6) requests or request the Land Council, in writing, before that amount is so paid, to hold, or to continue to hold, that amount in trust for it or for them, the Land Council shall, notwithstanding that subsection, hold, or continue to hold, that amount in trust accordingly until that request is revoked.
(10) While an amount of money referred to in subsection (6B), (8) or (9) is held in trust in accordance with that subsection, the Land Council shall cause that amount to be invested in investments of the kind authorised by section 58 of the Public Governance, Performance and Accountability Act 2013.
(11) Where a Land Council pays out an amount of money that it has held in trust and invested in accordance with this section, the Land Council shall, so far as is practicable, pay to the body or person to whom that amount is paid the interest received by the Land Council in respect of the investment of that amount.
Note: Sections 35B and 35C impose requirements on a body corporate that receives an amount under this subsection.
35A Making of determinations under subsection 35(2), (3) or (6)
(1) A Land Council must have regard to the following matters before making a determination under subsection 35(2) or (3) in relation to a body corporate:
(a) any report:
(i) of an evaluation or audit conducted under paragraph 193X(1)(cb) of the Aboriginal and Torres Strait Islander Act 2005 in relation to the body; and
(ii) that was given to the Minister administering Part 4B of that Act in the period of 5 years before the time when the Council began to consider making the determination;
(b) if the body was required to comply with section 35C for one or more of the previous 5 financial years—whether the body has so complied.
(2) A determination under subsection 35(2), (3) or (6) must be in writing and must specify the period, not exceeding 5 years, for which it is in force.
(3) A Land Council may vary or revoke a determination under subsection 35(2) or (3). The variation or revocation must be in writing.
(4) A Land Council may, with the Minister’s approval, vary or revoke a determination under subsection 35(6). The variation or revocation must be in writing.
(5) A determination under subsection 35(2), (3) or (6) is not a legislative instrument.
35B Notification requirements for body corporate receiving money from Land Council
A body corporate that spends an amount that it received:
(a) under a determination under subsection 35(2), (3) or (6); or
(b) under subsection 35(3) in accordance with an agreement mentioned in that subsection; or
(c) under subsection 35(4) that the Land Council concerned has advised, under subsection 35(4A), is an accountable amount; or
(d) under subsection 35(4B); or
(e) under subsection 35(11) in relation to an amount covered by paragraph (a), (b), (c) or (d) of this section; or
(f) under subsection 67B(6) that the Land Council concerned has advised, under subsection 67B(7), is an accountable amount;
must inform the recipient of the amount of the purpose of the payment.
35C Reporting obligations for body corporate receiving money from Land Council
(1) This section applies to a body corporate that spends an amount in a financial year (the reporting year) that it received in that year or an earlier financial year:
(a) under a determination under subsection 35(2), (3) or (6); or
(b) under subsection 35(3) in accordance with an agreement mentioned in that subsection; or
(c) under subsection 35(4), but only if the Land Council concerned has advised, under subsection 35(4A), that the amount the body corporate received is an accountable amount; or
(d) under subsection 35(4B); or
(e) under subsection 35(11) in relation to an amount covered by paragraph (a), (b), (c) or (d) of this subsection; or
(f) under subsection 67B(6), but only if the Land Council concerned has advised, under subsection 67B(7), that the amount the body corporate received is an accountable amount.
(2) The body corporate must give the Land Council concerned:
(a) a copy of the financial statements that the body is required, under the law under which it is incorporated, to give in respect of the reporting year; and
(b) a written report setting out:
(i) the purpose for which that amount was spent (including details of any relevant project); and
(ii) each recipient of that amount; and
(iii) the amount paid to each recipient and the day or days the amount was paid.
(3) The body corporate must comply with subsection (2) within 30 days after the day by which it is required to give those financial statements.
Note: A body corporate’s failure to do so may affect future payments to the body: see subsections 35(6A) to (6D) and section 35A.
36 Other payments to be approved by Minister
No payment, other than a payment in accordance with section 34 or 35, shall be made by a Land Council unless the payment has been approved by the Minister.
37 Additional Land Council reporting requirements
(1) The annual report prepared for a Land Council and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 for a period must also include the matters set out in this section in relation to the period.
Fees
(2) The report must specify:
(a) the total fees the Council received under section 33A of this Act during that period for services the Council provided under Part IV (whether in that period or the previous period); and
(b) the total fees the Council received under section 33A of this Act during that period for any other services the Council provided (whether in that period or the previous period); and
(c) the total fees the Council received under section 33B of this Act during that period.
Section 35 determinations
(3) The report must include:
(a) particulars of any determinations made by the Council under subsection 35(2) or (3) during that period; and
(b) particulars of any determinations made by the Minister under subsection 35(6) during that period.
Details of amounts paid
(4) The report must include for each amount paid by the Council during that period:
(a) under a determination made under subsection 35(2); or
(b) under a determination made under subsection 35(6) (in so far as that determination was made because the Council did not make a determination under subsection 35(2)); or
(c) under subsection 35(4) that the Council has advised, under subsection 35(4A), is an accountable amount; or
(d) under subsection 35(4B); or
(e) under subsection 35(11) in relation to an amount covered by paragraph (a), (b), (c) or (d) of this subsection; or
(f) under subsection 67B(6) that the Council has advised, under subsection 67B(7), is an accountable amount;
the following details:
(g) the recipient of the amount;
(h) the subsection under which the amount was paid;
(i) the total of the amount paid.
Details of amounts held in trust
(5) If, at the end of that period, the Council holds an amount:
(a) paid to the Council, in any financial year, as mentioned in subsection 35(2) or (3); and
(b) in trust as mentioned in subsection 35(6B), (8) or (9);
the report must include the following details:
(c) the amount paid to the Council and the financial year in which the amount was paid;
(d) the amount held in trust;
(e) the mining operations concerned.
Details of section 28 delegations
(6) If a delegation under section 28 to an Aboriginal and Torres Strait Islander corporation is in force at any time during that period, the report must include particulars of the activities of the corporation during that period to the extent they relate to the delegation.
Details of section 29A committees
(7) If the appointment of a committee under 29A is in force at any time during that period, the report must include particulars of the activities of the committee during that period.
Details of consultants
(8) The report must specify:
(a) each consultant engaged by the Council during that period to do work in relation to the Council’s performance of functions or exercise of powers under this Act; and
(b) the amount paid to the consultant by the Council during that period for that work.
39 Minister may give directions about Land Council finances
(1) The Minister may give a written direction to a Land Council about the administration of the Council’s finances.
(2) A direction under subsection (1) must not be inconsistent with:
(a) this Act or the regulations under this Act; or
(b) the Public Governance, Performance and Accountability Act 2013, or any legislative instruments made under that Act.
(3) A Land Council must comply with a direction that is in force under subsection (1).
(4) A direction under subsection (1) is not a legislative instrument.
Part IV—Mining
40 Grants of exploration licences
An exploration licence shall not be granted to a person in respect of Aboriginal land (including Aboriginal land in a conservation zone) unless:
(a) both of the following occur:
(i) the Land Council for the area in which the land is situated gives consent under subsection 42(1) to the grant of the licence;
(ii) the Minister gives consent under subsection 42(8) to the grant of the licence; or
(b) the Governor‑General has, by Proclamation, declared that the national interest requires that the licence be granted;
and the Land Council and the person have entered into an agreement under this Part as to the terms and conditions to which the grant of the licence will be subject.
41 Application for consent to exploration licences
(1) Where the Northern Territory Mining Minister has given consent, whether before or after the commencement of this section, to a person’s entering into negotiations with a Land Council for the consent of the Land Council to the grant to the person of an exploration licence in respect of Aboriginal land (in this section referred to as the affected land), the person shall submit to that Land Council an application, in writing, for consent to the grant of that licence.
Note: If the consent of the Northern Territory Mining Minister is withdrawn, then the application is also taken to have been withdrawn: see section 41A.
(2) The person must make the application:
(a) within the period (the standard period) of 3 months after the consent of the Northern Territory Mining Minister was given; or
(b) if before the end of the standard period the person requests, in writing, the Minister to extend the standard period:
(i) if the Minister grants the request—within the extension period; or
(ii) if the Minister refuses the request—before the end of the period of 7 days beginning on the day the person receives notice of the refusal.
(2A) The Minister must decide any extension request within 6 weeks of receiving it. The Minister must, by notice in writing given to the person:
(a) extend the standard period for a period not exceeding 3 months; or
(b) refuse to extend the standard period.
(3) If the application is not made as required by subsection (2), the consent of the Northern Territory Mining Minister under subsection (1) shall be deemed to be withdrawn.
(5) The applicant shall cause a copy of the application to be sent to the Minister.
(6) The application shall set out a comprehensive proposal which includes, but is not limited to, the following particulars:
(a) a description of the applicant and of the business activities of the applicant;
(b) a description of the affected land by reference to a map showing roads, topographical features, residential areas and other relevant features;
(c) a copy of the instrument by which the consent of the Northern Territory Mining Minister was given and of any conditions relevant to the potential impact of the exploration works on the affected land and on Aboriginals, being conditions that are, under a law of the Northern Territory relating to mining for minerals, likely to be conditions to which the grant of the exploration licence will be subject;
(d) an outline of the proposed exploration program stating, as far as practicable, the location, and likely effect, of proposed exploration works, and including details of:
(i) the anticipated period of activity upon such works;
(ii) proposed and possible exploration techniques;
(iii) the extent to which exploration activities will, or are likely to, affect the environment inside and outside the affected land;
(iv) the proposed method and amount of vehicular access to and within the affected land with reference to any proposals to construct roads, landing strips or other access facilities;
(v) the maximum number of people likely to be on the affected land from time to time;
(vi) the proposed water, timber or other requirements to be obtained from the affected land; and
(vii) proposals for minimising the effect of the proposed exploration works on the affected land;
(viii) the estimated cost of exploration;
(ix) the estimated geological potential of the area;
(x) a proposal in relation to payments for exploration activities;
(xi) the term of the exploration period;
(xii) proposals for rehabilitation; and
(xiii) proposals for minimising social impact;
(e) a description, expressed as fully as practicable, of the various methods for the recovery of any minerals found as a result of the exploration;
(f) the name, position and qualifications of the person or persons, not exceeding 3 in number, who will represent the applicant at meetings convened under subsection 42(4) or, if any such person is unable so to represent the applicant, of any substitute authorised to represent the applicant.
(6A) Strict compliance with subsection (6) is not necessary and substantial compliance is sufficient.
41A Withdrawal of application for consent to exploration licence
If the consent of the Northern Territory Mining Minister referred to in subsection 41(1) is withdrawn before the Land Council consents, or refuses to consent, to the grant of an exploration licence in respect of the Aboriginal land concerned, the application under that subsection is taken to have been withdrawn on the day the consent is withdrawn.
42 Response of Land Council and Minister to application
(1) Where a Land Council receives an application under section 41 for consent to the grant of an exploration licence in respect of particular land, it shall, before the end of the negotiating period in respect of that application:
(a) by notice in writing, either consent, or refuse to consent, to the grant of an exploration licence authorising the proposed exploration program in respect of that land or of a part of that land; and
(b) notify the applicant, the Minister and the Northern Territory Mining Minister, in writing, of its decision and of the day on which the decision is made.
(1AA) The Land Council must notify the applicant, the Minister and the Northern Territory Mining Minister of its decision within 7 days of making the decision.
(1A) A notice under paragraph (1)(a) is not a legislative instrument.
(1B) If the Land Council does not make a decision under paragraph (1)(a) before the end of the negotiating period, the consent of the Northern Territory Mining Minister referred to in subsection 41(1) is taken to be withdrawn at the end of that period.
(2) The Land Council shall not consent to the grant of the licence unless it has, before the end of the negotiating period, to the extent practicable:
(a) consulted the traditional Aboriginal owners (if any) of the land to which the application relates concerning:
(i) the exploration proposals; and
(ii) the terms and conditions to which the grant of the licence may be subject; and
(b) consulted any Aboriginal community or group that may be affected by the grant of the licence to ensure that the community or group has had an adequate opportunity to express to the Land Council its views concerning the terms and conditions.
(3) The Land Council shall not refuse to consent to the grant of the licence unless it has, before the end of the negotiating period, to the extent practicable, consulted the traditional Aboriginal owners (if any) of the land to which the application relates concerning the matters referred to in paragraph (2)(a).
(4) In order to facilitate consultation between the Land Council and the traditional Aboriginal owners:
(a) the Land Council shall convene such meetings with them as are necessary for the purpose of considering the exploration proposals and the terms and conditions;
(b) the Land Council shall give reasonable notice to the applicant and the Minister before each meeting which the applicant and the Minister are entitled to attend;
(c) the representatives of the applicant may attend so much of:
(i) the first meeting at which the substantive content of the exploration program is discussed; and
(ii) the first meeting at which the terms and conditions are discussed;
as is appropriate for the purposes of presenting and explaining the exploration proposals (including any information required to be given to the Northern Territory Mining Minister) and outlining the applicant’s views concerning the terms and conditions; and
(d) the representatives of the applicant may attend so much of any subsequent meeting as is appropriate for any of the purposes referred to in paragraph (c) unless the traditional Aboriginal owners, as a group, decide and, through the Land Council, notify the applicant, that the representatives may not attend.
(5) The Minister may, in writing, authorise a specified person, or any person included in a specified class of persons, to:
(a) attend the meeting, or each meeting, referred to in paragraph (4)(c); and
(b) attend any subsequent meeting.
(5A) However, a person covered by subsection (5) must not attend any subsequent meeting if the traditional Aboriginal owners as a group:
(a) decide that the person must not attend; and
(b) notify the Minister, through the Land Council, of that decision.
(6) Subject to subsection (7), the Land Council shall not consent to the grant of the licence unless:
(a) it is satisfied that the traditional Aboriginal owners (if any) of the land understand the nature and purpose of the terms and conditions and, as a group, consent to them;
(b) it is satisfied that the terms and conditions are reasonable; and
(c) it has agreed with the applicant upon the terms and conditions.
(7) If, at any time within the negotiating period, the Land Council notifies the Minister in writing that the Council and the applicant agree that the terms and conditions should be dealt with by arbitration, the Council is, for the purposes of this Part, taken to have consented to the grant of the licence on the day of the notification.
(8) Where the Land Council consents to the grant of the licence, the Minister shall determine, in writing, whether he or she also consents to the grant, and shall notify the applicant and the Land Council, in writing, accordingly, within 30 days, or such other period as is prescribed, after:
(a) the receipt by the Minister of the notice under subsection (1); or
(b) the day on which the Land Council was, under subsection (7), deemed to consent to the grant of the licence.
(8A) A determination under subsection (8) is not a legislative instrument.
(9) If the Minister fails to comply with subsection (8), the Minister shall be deemed to consent to the grant of the licence.
(10) Where the Minister consents to the grant of the licence, he or she shall notify the applicant, the Northern Territory Mining Minister and the Land Council, in writing, accordingly.
(11) If subsection (7) does not apply, the applicant and the Land Council may at any time during the negotiating period:
(a) appoint a person agreed upon by the parties; or
(b) request the Minister in writing to appoint a person as a Mining Commissioner;
to try to determine the terms and conditions by conciliation.
(12) Where a request is made to the Minister under paragraph (11)(b), the Minister shall, as soon as practicable, appoint a person under section 48F as a Mining Commissioner and that person shall try to determine the terms and conditions by conciliation.
Standard negotiating period
(13) Subject to subsections (15) and (17), the negotiating period for an application is the period beginning on the day the application is received by the Land Council and ending at the end of:
(a) the period of 22 months beginning on 1 January in the calendar year after the calendar year in which the application is received by the Council; or
(b) if, before the end of that 22 month period, the applicant and the Council agree in writing to extend that period by 2 years—that 2 year period; or
(c) if, before the end of the following period (the agreed period):
(i) that 2 year period;
(ii) any 12 month period applicable under any application or applications of this paragraph;
the applicant and the Council agree in writing to extend the agreed period by 12 months—that 12 month period.
Notification of extension agreed between the applicant and the Land Council
(14) The Land Council must notify the Minister and the Northern Territory Mining Minister of any extension agreed under paragraph (13)(b) or (c).
Ministerial deadline
(15) At any time during a period applicable under paragraph (13)(b) or (c), the Minister may, in writing, determine that a specified day is to be the end of the negotiating period (which must be a day at least 12 months after the day of the determination).
Consultation
(16) The Minister must, before making a determination under subsection (15), consult the applicant, the Land Council and the Northern Territory Mining Minister. The Minister may conduct the consultation during the period applicable under paragraph (13)(a).
Special negotiating period for some applications
(17) If:
(a) a person makes an application (the original application) under section 41; and
(b) subsection (1B) of this section applies in relation to the original application; and
(c) the person makes a later application under section 41 and the comprehensive proposal set out in the later application is substantially the same as the comprehensive proposal set out in the original application;
the negotiating period for the later application is the period determined by the Minister under subsection (18).
(18) The Minister must, in writing, determine a period for the purposes of subsection (17). The period must not be more than 12 months beginning on the day the later application is received by the Land Council.
(18A) If:
(a) subsection (17) applies; and
(b) any necessary meetings of the kind referred to in subsection (4) were held in relation to the original application;
then the Land Council is not required to hold any further meeting of the kind referred to in subsection (4) in relation to the later application.
Notice of determination
(19) The Minister must give written notice of a determination under subsection (15) or (18) to:
(a) the applicant; and
(b) the Land Council; and
(c) the Northern Territory Mining Minister.
Determination not a legislative instrument
(20) A determination made under subsection (15) or (18) is not a legislative instrument.
43 National interest cases
(1) Where the Governor‑General has, under paragraph 40(b), issued a Proclamation relating to the grant of an exploration licence to a person in respect of Aboriginal land, the person (in this section called the applicant) and the relevant Land Council must, within the negotiating period, try to agree upon the terms and conditions to which the grant will be subject.
(2) The Land Council shall not agree upon the terms and conditions unless:
(a) it has, as far as practicable, consulted the traditional Aboriginal owners (if any) of the land concerning the terms and conditions and it is satisfied that they understand the nature and purpose of the terms and conditions and, as a group, consent to them;
(b) it has, as far as practicable, consulted any other Aboriginal community or group that may be affected by the grant of the licence concerning the terms and conditions and it is satisfied that the community or group has had an adequate opportunity to express its views to the Land Council; and
(c) it is satisfied that the terms and conditions are reasonable.
Consultation obligations
(3) In order to facilitate consultation between the Land Council and the traditional Aboriginal owners:
(a) the Council must convene such meetings with them as are necessary for the purpose of considering the terms and conditions; and
(b) the Council must give reasonable notice to the applicant and the Minister before each meeting which the applicant and the Minister are entitled to attend; and
(c) the representatives of the applicant may attend so much of the first meeting at which the terms and conditions are discussed as is appropriate for the purpose of outlining the applicant’s views concerning the terms and conditions; and
(d) the representatives of the applicant may attend so much of any subsequent meeting as is appropriate for the purpose referred to in paragraph (c) unless the traditional Aboriginal owners as a group:
(i) decide that the representatives must not attend; and
(ii) notify the applicant, through the Council, of that decision.
Minister’s representative may attend meetings
(4) A representative of the Minister:
(a) may attend the meeting referred to in paragraph (3)(c); and
(b) may attend any subsequent meeting unless the traditional Aboriginal owners as a group:
(i) decide that the representative must not attend; and
(ii) notify the Minister, through the Council, of that decision.
Negotiating period
(5) Subject to subsection (6), the negotiating period is:
(a) the period of 180 days after the Proclamation referred to in subsection (1) takes effect; or
(b) such longer period as is agreed upon in writing between the applicant and the Land Council.
(6) If:
(a) the Land Council, within the period applicable under paragraph (5)(a) or (b), requests the Minister to extend that period; and
(b) the Minister, after consulting the Northern Territory Mining Minister, is satisfied that:
(i) it is not reasonably practicable for the Council to perform its functions under this section within that period; and
(ii) it is appropriate to extend that period in all the circumstances;
the Minister may, by notice in writing given to the applicant, the Land Council and the Northern Territory Mining Minister, determine the negotiating period to be a specified longer period.
44 Determination of conditions of exploration licences
(1) This section applies to a person (in this section called the applicant), in relation to an area of Aboriginal land, if:
(a) the Minister has consented under subsection 42(8) to the grant of an exploration licence to the applicant in respect of the land and subsection 42(7) applies; or
(b) section 43 applies to the applicant, but the applicant and the Land Council have failed to agree upon the terms and conditions of the grant of the licence within the period referred to in subsection 43(1).
(2) Where subsection 42(7) applies, the applicant and the relevant Land Council may refer the terms and conditions of the grant of the licence to be determined by arbitration in accordance with the Commercial Arbitration Act of the Northern Territory.
(3) A reference to an arbitrator shall be made within 30 days, or such other period as is prescribed, after this section applies to the applicant.
(4) If paragraph (1)(b) applies, the applicant or the Land Council, or both, may, in writing, request the Minister to refer the terms and conditions to a person appointed by the Minister as a Mining Commissioner for determination by conciliation or, failing that, by arbitration.
(5) Where a request is made to the Minister under subsection (4), the Minister shall, as soon as practicable, appoint a person under section 48F as a Mining Commissioner and that person shall thereupon try to determine the terms and conditions by conciliation.
(6) If the Mining Commissioner becomes of the opinion that there is no reasonable prospect of determining the terms and conditions by conciliation, he or she shall notify both parties, in writing, of that opinion and, unless either party objects, shall proceed to determine by arbitration the terms and conditions that should, in his or her opinion, be acceptable to both parties.
(7) If either party objects under subsection (6), the Minister shall, as soon as practicable, appoint another person under section 48F as a Mining Commissioner and that person shall thereupon determine by arbitration the terms and conditions that should, in his or her opinion, be acceptable to both parties.
(8) In determining the terms and conditions, the Mining Commissioner shall take into account:
(a) the effect that the entry on to the relevant land and the carrying out of exploration operations on the land would have on:
(i) the preservation and protection of the lifestyle, culture and traditions of the traditional owners of the land;
(ii) the proposals and wishes of those owners about its management, use and control;
(iii) the development of the social, cultural and economic structures of those owners; and
(iv) the freedom of access of those owners and their freedom to carry out, in accordance with tradition, rites, ceremonies and other activities on the land;
(b) the applicant’s capacity, in carrying out the proposed exploration operations, to minimise any disturbance to those owners and the land;
(c) the best practicable industry practices for minimising the impact of proposed exploration works upon the land and upon Aboriginals living on that land;
(d) the nature and location of the exploration works proposed to be carried out; and
(e) usual industry technology for carrying out exploration works of the kind proposed.
(9) Where the applicant is willing to enter into an agreement with the Land Council setting out the terms and conditions determined in accordance with this section, the Land Council shall enter into that agreement.
(10) Where the Minister is satisfied that the Land Council has refused, or is unwilling, to enter into an agreement in the circumstances referred to in subsection (9), the Minister shall, in the name of, and on behalf of, the Land Council, enter into such an agreement.
(11) Nothing in this Part shall be taken to imply that the applicant must enter into an agreement with the Land Council to give effect to any terms and conditions determined by the Mining Commissioner under this section, but if the applicant does not enter into the agreement within 90 days after the determination or such longer period as the Minister may determine on application, within that period of 90 days, by either party, the consent of the Northern Territory Mining Minister under subsection 41(1) shall be deemed to be withdrawn.
44A Terms and conditions of exploration licences
(1) The terms and conditions agreed upon under section 42 or 43, or determined under section 44, shall include terms and conditions requiring the payment by the applicant of compensation for damage or disturbance caused to the relevant Aboriginal land, and to the traditional Aboriginal owners of the land, by exploration activities undertaken on the land, but shall not include compensation for the value of minerals removed or proposed to be removed from the land or for any other purpose or consideration for giving consent to the grant of the exploration licence.
(2) Where an agreement is entered into under this Part concerning the terms and conditions, the terms and conditions shall remain in force during the period that:
(a) the exploration licence;
(b) if an exploration retention licence is applied for or granted in respect of the whole or a part of the land to which the exploration licence relates—that application or exploration retention licence; or
(c) if an exploration retention licence granted in respect of the whole or a part of the land to which the exploration licence relates is renewed—that exploration retention licence as so renewed;
is held by the applicant or by the heirs, successors or assigns of that person and such period (if any) immediately following that period as is specified in the agreement.
(3) Without limiting the generality of references in subsection (1) to compensation for damage or disturbance caused to land, those references include references to compensation for:
(a) deprivation of the use of the land or a part of the land;
(b) deprivation of the use of improvements on the land as permitted by the agreement; or
(c) severance of the land from other land having the same traditional Aboriginal owners as the land concerned.
45 Mining interest not to be granted in certain circumstances
A mining interest shall not be granted to an intending miner in respect of Aboriginal land unless:
(a) the relevant Land Council and the intending miner have entered into an agreement under section 46 as to the terms and conditions to which the grant of the mining interest will be subject; and
(b) the Minister has consented, in writing, to the grant of that mining interest.
46 Terms and conditions to which grant of mining interest subject
(1) An intending miner who seeks the grant of a mining interest in respect of Aboriginal land in respect of which that intending miner holds or held an exploration licence or an exploration retention licence (whether that exploration licence or exploration retention licence was granted before or after the land became Aboriginal land) shall submit to the relevant Land Council a statement, in writing, setting out:
(a) a comprehensive proposal in relation to the mining works that the intending miner proposes to conduct on the land which includes, but is not limited to, the following particulars:
(i) the anticipated period of activity of the mining works;
(ii) the proposed mining techniques;
(iii) the extent to which the mining and related activities will, or are likely to affect the environment inside and outside the affected land;
(iv) the proposed method and amount of vehicular access to and within the affected land with reference to any proposals to construct roads, landing strips or other access facilities;
(v) the maximum number of people likely to be on the affected land from time to time;
(vi) the water, timber and other requirements to be obtained from the affected land;
(vii) proposals for minimising the effect of the proposed mining works on the affected land;
(viii) any other information of the kind that would, under the law of the Northern Territory relating to the protection of the environment, be required to be included in an environmental impact statement in relation to the proposed mining works;
(ix) proposals for rehabilitation;
(x) proposals for minimising social impact;
(xi) projected production capacity and scale of operations;
(xii) infrastructure requirements; and
(xiii) terms and conditions relating to payment;
(b) the name, position and qualifications of the person or persons, not exceeding 3 in number, who will represent the intending miner at meetings convened pursuant to subsection (5) or, in the event that that person or any of those persons is unable so to represent the intending miner, of any other person authorised to represent the intending miner in lieu of the person who is unable so to represent the intending miner.
(2) The intending miner shall cause a copy of the statement to be sent to the Minister.
(3) Where the intending miner submits the statement to the Land Council, the intending miner and the Land Council shall try, within 12 months after receipt by the Land Council of the statement or, if a longer period is agreed upon, in writing, between the intending miner and the Land Council, that longer period, to agree upon the terms and conditions to which the grant of the mining interest will be subject.
(4) Subject to subsections (7) to (11), inclusive, the Land Council shall not agree upon the terms and conditions unless:
(a) it has, as far as practicable, consulted the traditional Aboriginal owners (if any) of the land concerning the terms and conditions and it is satisfied that they understand the nature and purpose of the terms and conditions and, as a group, consent to them;
(b) it has, as far as practicable, consulted any other Aboriginal community or group that may be affected by the grant of the mining interest concerning the terms and conditions and it is satisfied that the community or group has had an adequate opportunity to express its view to the Land Council; and
(c) it is satisfied that the terms and conditions are reasonable.
(5) In order to facilitate consultation between the Land Council and the traditional Aboriginal owners:
(a) the Land Council shall convene such meetings with them as it considers necessary to consider the intending miner’s mining proposals and discuss the terms and conditions;
(b) the Land Council shall give reasonable notice to the applicant and the Minister before each meeting which the applicant and the Minister are entitled to attend;
(c) the representatives of the intending miner may attend so much of the first meeting as is appropriate in order to present and explain the intending miner’s mining proposals and to outline the intending miner’s views concerning the terms and conditions; and
(d) except where the traditional Aboriginal owners as a group decide, and, through the Land Council, notify the intending miner that the representatives of the intending miner may not attend a subsequent meeting that is so convened—the representatives may attend so much of that subsequent meeting as is appropriate in order further to explain those mining proposals or further to discuss the terms and conditions.
(6) The Minister may, in writing, authorise a specified person, or any person included in a specified class of persons, to:
(a) attend the first meeting; and
(b) attend any subsequent meeting.
(6A) However, a person covered by subsection (6) must not attend any subsequent meeting if the traditional Aboriginal owners as a group:
(a) decide that the person must not attend; and
(b) notify the Minister, through the Land Council, of that decision.
(7) If the intending miner and the Land Council fail, within the period referred to in subsection (3), to agree upon the terms and conditions, either or both of them may, by writing, request the Minister to refer the matters in dispute to a person appointed as a Mining Commissioner for resolution of those matters by conciliation, or, failing that, by arbitration.
(8) Where a request is made to the Minister under subsection (7), the Minister shall, as soon as practicable, arrange for a person to be appointed as a Mining Commissioner under section 48F and that person shall thereupon try, by conciliation, to assist the intending miner and the Land Council to resolve the matters in dispute.
(9) If the Mining Commissioner becomes of the opinion that there is no reasonable prospect, by conciliation, of assisting the intending miner and the Land Council to resolve any matters in dispute between them, he or she shall notify both parties, in writing, that he or she is so satisfied and, unless either party objects, proceed, by arbitration of the matters in dispute, to determine the terms and conditions that should, in his or her opinion, be acceptable to both parties.
(10) If either party objects under subsection (9), the Minister shall, as soon as practicable, arrange for another person to be appointed as a Mining Commissioner under section 48F and that person shall, by arbitration of the matters in dispute, determine the terms and conditions that should, in his or her opinion, be acceptable to both parties.
(11) The Mining Commissioner shall determine terms and conditions that are fair and reasonable and that, in his or her opinion, should have been negotiated by the parties in commercial arms’ length negotiations conducted in good faith.
(12) Where the intending miner is willing to enter into an agreement with the Land Council setting out the terms and conditions determined under this section, the Land Council shall enter into that agreement.
(13) Where the Minister is satisfied that the Land Council has refused, or is unwilling, to enter into an agreement in the circumstances referred to in subsection (12), the Minister shall, in the name of, and on behalf of, the Land Council, enter into such an agreement.
(14) Where an agreement is entered into under this section concerning the terms and conditions, the terms and conditions are binding upon the parties and their heirs, successors or assigns.
(15) Nothing in this Part shall be taken to imply that the intending miner must enter into an agreement with the Land Council to give effect to any terms and conditions determined by the Mining Commissioner under this section, but, if the intending miner does not enter into the agreement, within 90 days after the determination or such longer period as the Minister may determine on application, within that period of 90 days, by either party, the licence or lease referred to in subsection (1) is cancelled.
(16) Where:
(a) the Mining Commissioner has, under this section, determined the terms and conditions; and
(b) the intending miner has withdrawn the application for the grant of the mining interest because the intending miner is unwilling to accept the terms and conditions so determined;
the Minister shall not consent to the grant to another intending miner of a mining interest that will enable the mining of a mineral deposit on the same land, being a deposit that was delineated by a previous intending miner (whether the first‑mentioned intending miner or not), unless the Minister is satisfied that the other intending miner has entered into an agreement described in subsection (17).
(17) For the purposes of subsection (16), the agreement shall be an agreement with the previous intending miner or with the heirs, successors or assigns of the previous intending miner to reimburse the previous intending miner, or the heirs, successors or assigns of the previous intending miner, an amount equal to the sum of the exploration expenditure reported by the previous intending miner in accordance with the conditions of the exploration licence or exploration retention licence held by the previous intending miner in respect of the land under a law of the Northern Territory relating to mining for minerals.
(18) Without limiting the generality of the preceding subsections, the terms and conditions of an agreement under this section shall include terms and conditions relating to the payment to the Land Council of an amount or amounts specified in, or determined under, the agreement.
47 Cancellation of exploration licence or mining interest
Exploration works
(1) If:
(a) a Land Council has consented to the grant of an exploration licence (including because of the operation of subsection 42(7)); and
(b) the Council, by notice in writing to the Minister, states that:
(i) the licence‑holder is conducting, or is likely to conduct, exploration works otherwise than in accordance with the proposed exploration program referred to in the application for that consent; and
(ii) the exploration works are causing, or are likely to cause, a significant impact on the affected land and on Aboriginals, to the extent that the Council would not have consented to the grant of the licence;
the Minister must, within 90 days after receiving the notice:
(c) consult the Northern Territory Mining Minister; and
(d) determine, in writing, whether the Minister is satisfied that the Council was entitled to make the statement; and
(e) determine, in writing, whether the Minister is satisfied that the national interest does not require that the exploration works should proceed.
(2) If the Minister determines that he or she is satisfied of the matters in paragraphs (1)(d) and (e):
(a) the Minister must inform the Land Council and the licence‑holder; and
(b) the exploration licence is cancelled under this subsection.
Mining works or activities
(3) If an intending miner causes a copy of a statement of mining proposals to be sent to the Minister under subsection 46(2), the Minister must, within 90 days after receiving the statement:
(a) determine, in writing, whether the Minister is satisfied that:
(i) the proposed mining works or related activities are not in accordance with the description set out under paragraph 41(6)(e) in respect of the application relating to the relevant exploration licence; and
(ii) the Land Council consented to the grant of the licence (including because of the operation of subsection 42(7)); and
(iii) the works or activities are causing, or are likely to cause, a significant impact on the affected land and on Aboriginals, to the extent that the Council would not have consented to the grant of the licence; and
(b) determine, in writing, whether the Minister is satisfied that the national interest does not require that the works or activities should proceed.
(4) If the Minister determines that he or she is satisfied of the matters in paragraphs (3)(a) and (b):
(a) the Minister must inform the Land Council and the intending miner; and
(b) if the mining interest applied for has not yet been granted—the application must not be granted; and
(c) if the mining interest has been granted—the interest is cancelled under this subsection.
Determination not a legislative instrument
(5) A determination under paragraph (1)(d) or (e) or (3)(a) or (b) is not a legislative instrument.
48 No further applications within certain periods
(1A) Subsections (1) to (4A) have 2 separate applications as follows:
(a) the first application is in relation to petroleum and for this purpose those subsections apply as if:
(i) a reference to a refusal to consent to the grant of an exploration licence were a reference to a refusal to consent to the grant of an exploration licence in relation to petroleum; and
(ii) a reference to an application under section 41 in respect of particular land or an area within that land were a reference to an application under section 41 in relation to petroleum in respect of that land or an area within that land;
(b) the second application is other than in relation to petroleum and for this purpose those subsections apply as if:
(i) a reference to a refusal to consent to the grant of an exploration licence were a reference to a refusal to consent to the grant of an exploration licence other than in relation to petroleum; and
(ii) a reference to an application under section 41 in respect of particular land or an area within that land were a reference to an application under section 41 other than in relation to petroleum in respect of that land or an area within that land.
(1) Where a Land Council refuses to consent to the grant of an exploration licence in respect of particular land, a further application under section 41 shall not be made in respect of that land, or an area within that land, by any person except as provided in subsection (2), (3), (4) or (4A).
(2) Where a Land Council has refused to consent to the grant of an exploration licence, the applicant may, during the re‑application period, make a further application under section 41 to the Land Council in respect of the same land or an area within that land.
Note: See also the requirement in subsection (4B) (about having a consent to negotiate).
(3) Where:
(a) a Land Council has refused to consent to the grant of an exploration licence;
(b) at any time after the refusal, the Land Council applies to the Minister under this subsection; and
(c) the Minister, after consultation with the Commonwealth Minister responsible for mineral resources matters and the Northern Territory Mining Minister, is satisfied on reasonable grounds that:
(i) the refusal was for a reason or reasons other than a desire to maximise the amount of financial compensation to be received, whether at the exploration or the mining stage;
(ii) the circumstances or concern that resulted in the refusal are no longer applicable; and
(iii) the public interest requires that a further application under section 41 be made in respect of the same land or an area within that land;
the Minister shall, subject to subsection (3A), authorise such an application to be made:
(d) within 90 days—by the original applicant; or
(e) if the original applicant fails to apply within that period or notifies the Minister that he or she does not intend to apply—by any other person.
Note: See also the requirement in subsection (4B) (about having a consent to negotiate).
(3A) However, if:
(a) the refusal under paragraph (3)(a) is in relation to a body corporate; and
(b) at the time the Minister is satisfied of the matters referred to in paragraph (3)(c), the body corporate has been wound up and has not assigned its rights in relation to this section;
then the Minister may, under subsection (3), authorise an application in respect of the land concerned or an area within that land to be made by any person under section 41 within the period applicable under subsection 41(2).
(4) Subject to subsection (4A), if:
(a) a Land Council has refused to consent to the grant of an exploration licence in respect of particular land; and
(b) the applicant:
(i) has failed during the re‑application period to make an application under subsection (2); or
(ii) has notified the Minister in writing within that period of the intention not to make such an application;
a person other than the applicant may apply to the Land Council for consent under section 41 in respect of the first‑mentioned land or an area within that land.
Note: See also the requirement in subsection (4B) (about having a consent to negotiate).
(4A) However, if:
(a) the refusal under paragraph (4)(a) is in relation to a body corporate; and
(b) at the start of the re‑application period, the body corporate has been wound up and has not assigned its rights in relation to this section;
then an application in respect of the land concerned or an area within that land may be made by any person under section 41 within the period applicable under subsection 41(2).
Note: See also the requirement in subsection (4B) (about having a consent to negotiate).
(4B) A person cannot make an application under section 41 as provided for in subsection (2), (3), (4) or (4A) of this section unless the person has in force a consent of the Northern Territory Mining Minister referred to in subsection 41(1).
(5) Where an exploration licence or mining interest in respect of particular land is cancelled under subsection 47(2) or (4), an application under section 41 or 46, as the case may be, in respect of that land, or an area within that land, shall not be made by any person within 5 years of the cancellation except with the consent of the Minister given after consultation with the Northern Territory Mining Minister.
(6) The Minister shall not give consent under subsection (5) to a person other than the previous holder of the licence or interest unless the other person has entered into an agreement under subsection (7).
(7) For the purposes of subsection (6), the agreement shall be an agreement with the previous holder or with his or her heirs, successors or assigns to reimburse the previous holder or his or her heirs, successors or assigns, an amount equal to the sum of the exploration expenditure reported by the previous holder in accordance with the conditions of the exploration licence or exploration retention licence held by the previous holder in respect of the land under a law of the Northern Territory relating to mining for minerals.
(8) Without limiting the generality of the preceding subsections, the terms and conditions of an agreement under this section may include terms and conditions relating to the payment to the Land Council of an amount or amounts specified in, or determined under, the agreement.
(9) In this section:
(a) a reference to a person, in the case of a person who has died or been wound up or has assigned his or her rights under this Part, includes a reference to the heirs, successors or assigns of the person; and
(b) a reference to the re‑application period, in relation to a refusal by a Land Council to consent to the grant of an exploration licence, means the period of 30 days commencing 5 years after the day on which the refusal decision was made.
Note: Paragraph 42(1)(b) requires the Land Council to notify the applicant, the Minister and the Northern Territory Mining Minister of its refusal decision and of the day on which the refusal decision is made.
48A Land Council may enter agreement concerning exploration or mining of land subject to claim
(1) A Land Council may enter into an agreement with a person who has, under the law of the Northern Territory relating to mining, made application for an exploration licence in respect of land that is the subject of an application referred to in paragraph 50(1)(a) and is in the area of that Land Council setting out the terms and conditions to which, if the land becomes Aboriginal land before the grant of that licence, the grant of that licence will be subject.
(2) A Land Council may enter into an agreement with a person who holds an exploration licence in respect of land that is the subject of an application referred to in paragraph 50(1)(a) and is in the area of that Land Council setting out the terms and conditions subject to which, if the land becomes Aboriginal land, the person may carry out the exploration works authorised by the licence.
(3) A Land Council may enter into an agreement with a person who:
(a) under the law of the Northern Territory relating to mining, holds an exploration licence in relation to land that is the subject of an application referred to in paragraph 50(1)(a) and is in the area of that Land Council; and
(b) has lodged an application, under that law, for the grant of a mining interest in respect of that land;
setting out the terms and conditions to which, if the land becomes Aboriginal land before the grant of that mining interest, the grant of that mining interest will be subject.
(4) A Land Council shall not enter into an agreement under subsection (1), (2) or (3) in respect of an area of land unless it is satisfied that:
(a) the traditional Aboriginal owners of the land understand the nature and purpose of the agreement and, as a group, consent to it; and
(b) any Aboriginal community or group that may be affected by the agreement has been consulted and has had an adequate opportunity to express its views to the Land Council.
(5) An agreement referred to in subsection (1) or (2) is binding on the successors to the Land Council.
(6) Where, before an area of land became Aboriginal land, a Land Council had entered into an agreement under subsection (1) with a person who has made application for an exploration licence in respect of that land, then, for the purposes of this Part, when the land becomes Aboriginal land:
(a) the consent of the Land Council to the grant of the exploration licence is not required; and
(b) the agreement shall be taken, for all purposes, to be an agreement under section 44 as to terms and conditions to which the grant of that exploration licence will be subject.
(7) Where, before an area of land becomes Aboriginal land, a Land Council had entered into an agreement under subsection (3) with a person who has made application for the grant of a mining interest in that land, then, for the purposes of this Part, when the land becomes Aboriginal land:
(a) the person shall be treated as an intending miner; and
(b) the agreement shall be taken, for all purposes, to be an agreement under section 46 as to the terms and conditions to which the grant of that mining interest will be subject.
48AA Special provisions relating to specified areas
(1) This section applies to:
(a) the Aboriginal land described in Schedule 3, being the land known as the Eastern Areas on Groote Eylandt; and
(b) if:
(i) the boundaries of the area known as the Coronation Hill Project Area are prescribed for the purposes of this section; and
(ii) any land within the boundaries so prescribed becomes Aboriginal land;
that Aboriginal land.
(2) Except as otherwise provided in this section, the preceding provisions of this Part do not apply to Aboriginal land to which this section applies.
(3) An exploration licence in respect of Aboriginal land to which this section applies must not be granted unless the applicant for the licence has entered into an agreement in writing with the relevant Land Council on the terms and conditions of the grant of the licence.
(4) The applicant shall:
(a) submit to the Land Council, in writing, a comprehensive proposal including, but not limited to, the particulars set out in paragraphs 41(6)(a) to (f), inclusive; and
(b) cause a copy of the proposal to be sent to the Minister.
(5) Where the applicant and the Land Council fail to agree upon the terms and conditions within 12 months after receipt of the proposal by the Land Council, the applicant or the Land Council, or both, may, in writing, request the Minister to refer the terms and conditions to a person appointed by the Minister as a Mining Commissioner for determination by conciliation, or, failing that, by arbitration.
(6) Where such a request is made, subsections 44(5) to (11) (inclusive) apply.
(7) Section 44A applies, with the necessary changes, to terms and conditions agreed upon or determined under this section.
(8) A mining interest in respect of Aboriginal land to which this section applies must not be granted to an applicant unless the relevant Land Council and the applicant have entered into an agreement in writing as to the terms and conditions of the grant of the interest.
(9) Section 46 applies, with the necessary changes, to the grant of a mining interest in respect of the land.
48B Variation of terms and conditions
(1) Where:
(a) an agreement setting out the terms and conditions subject to which an exploration licence or mining interest will be granted to a person (in this section called the person) has been entered into by or on behalf of a Land Council with the person;
(b) the licence or interest has been granted to the person;
(c) for reasons (other than financial reasons) outside the control of the person it is not practicable for the person to carry out the exploration or mining works to which the licence or interest relates in accordance with those terms and conditions; and
(d) the person and the Land Council are unable to agree whether, or in what respect, the terms and conditions should be varied and the agreement does not contain any provision for variation of the agreement;
either or both of them may, by writing, request the Minister to arrange for a person to be appointed as a Mining Commissioner to determine whether, and in what respect, those terms and conditions should be varied.
(2) The Minister shall, as soon as practicable, arrange for a person to be appointed under section 48F as a Mining Commissioner, who shall determine the matters referred to in subsection (1).
(3) Where the Mining Commissioner determines that the terms and conditions should be varied and determines the respects in which they should be so varied, then, if the person is willing to enter into an agreement with the Land Council to vary the terms and conditions in accordance with the determination, the Land Council shall enter into an agreement to that effect.
(4) Where the Minister is satisfied that the Land Council has refused, or is unwilling, to enter into an agreement in the circumstances referred to in subsection (3), the Minister shall, in the name of, and on behalf of, the Land Council, enter into such an agreement.
(5) Subsection 46(12) applies to an agreement under section 46 as varied under this section as it applied to the agreement before it was so varied.
48C Application of Acts authorising mining on Aboriginal land
(1) The Atomic Energy Act 1953 or any other Act authorising mining for minerals does not apply in relation to Aboriginal land so as to authorise a person to enter or remain, or do any act, on the land unless:
(a) the Governor‑General has, by Proclamation, declared that both the Minister and the Land Council for the area in which the land is situated have consented to the application of that Act in relation to entry on that land; or
(b) the Governor‑General has, by Proclamation, declared that the national interest requires the application of that Act in relation to entry on that land.
48D Payments in respect of mining under Acts
(1) Where, by virtue of a Proclamation under section 48C, the Atomic Energy Act 1953 or any other Act authorising mining for minerals applies, in the manner referred to in that section, in respect of any Aboriginal land, that Act shall not be taken to authorise a person to enter or remain, or do any act, on that land unless the Commonwealth has entered into an agreement under seal with the relevant Land Council for the acceptance by the Commonwealth of such terms and conditions as are provided for in the agreement, including terms and conditions relating to the payment to the Land Council by the Commonwealth of an amount or amounts specified in, or ascertained in accordance with, the agreement.
(2) An agreement under subsection (1) may make provision for the distribution of any money paid to the Land Council under the agreement to or for the benefit of such groups of Aboriginals as are specified in the agreement.
(3) Where a Land Council, in entering into an agreement under subsection (1), fails to comply with subsection 23(3) in respect of Aboriginal land to which the agreement relates, that failure does not invalidate the entry by the Land Council into the agreement.
(4) A payment by the Commonwealth under an agreement under this section shall be made out of money appropriated by the Parliament for the purpose.
48E Arbitration on required agreement
(1) Where the Minister is satisfied that:
(a) a Land Council has refused, or is unwilling, to negotiate with respect of the terms and conditions of an agreement required by subsection 48D(1); or
(b) the Land Council and the Commonwealth cannot agree on the terms and conditions of the agreement;
the Minister may, after consultation with the Land Council, arrange for a person to be appointed as a Mining Commissioner, in accordance with section 48F, to determine the terms and conditions that, in the opinion of the Mining Commissioner, should be acceptable to both parties for the purposes of this subsection.
(2) Where the Mining Commissioner has determined the terms and conditions of the agreement and the Commonwealth is willing to enter into the agreement with the Land Council, the Land Council shall enter into the agreement.
(3) Where the Minister is satisfied that the Land Council has refused, or is unwilling, to enter into the agreement under subsection (2), the Minister may, in the name of, and on behalf of, the Land Council, enter into the agreement.
48F Appointment as Mining Commissioner
(1) If a Mining Commissioner is to be appointed for purposes relating to an exploration licence, the Minister shall appoint:
(a) a person who holds, or has held, office as a Judge of the Federal Court of Australia; or
(b) a legal practitioner of at least 5 years standing; or
(c) a Fellow of the Institute of Arbitrators and Mediators Australia; or
(d) a person prescribed by the regulations.
(2) If a Mining Commissioner is to be appointed for purposes relating to a mining interest, the Minister shall notify the Attorney‑General who shall, after consultation with the Commonwealth Ministers respectively responsible for Aboriginal affairs matters and mineral resources matters, appoint a person who holds, or has held office, as a Judge of the Federal Court of Australia.
(3) The Minister shall not appoint a Mining Commissioner for a purpose relating to an exploration licence unless the Minister has submitted the names of not less than 3 persons having the qualifications set out in subsection (1) to the Land Council and the applicant referred in section 42 or 44, or to the Land Council and the person referred to in section 48B, as the case may be.
(4) Where the Minister has submitted the names of persons to a Land Council, or to a Land Council and another person, under subsection (3), the Minister shall appoint as a Mining Commissioner:
(a) if the Minister is satisfied that the Land Council, or that the Land Council and that other person, as the case requires, agree to the appointment of one of the persons whose names have been so submitted—the person so agreed upon; or
(b) if the Minister is satisfied that there is no reasonable prospect that the Land Council or the Land Council and that other person, as the case requires, will so agree—a person having the qualifications set out in subsection (1) whom the Minister considers suitable to be so appointed.
(5) In the performance by a Mining Commissioner of an arbitration function relating to an exploration licence, the Mining Commissioner shall be assisted by 2 persons appointed for that purpose by the Minister.
(6) Of the persons appointed under subsection (5), one shall be nominated, in writing, by the Land Council concerned and the other shall be nominated, in writing, by the Northern Territory Minerals Council (Incorporated).
48G Proclamations to be laid before Parliament
(1) The Minister shall, as soon as practicable after the making of a Proclamation referred to in paragraph 40(b) or subsection 48C(1), cause a copy of the Proclamation to be laid before each House of the Parliament.
(2) Either House of the Parliament, within 15 sitting days of that House after a copy of a Proclamation has been laid before that House under subsection (1), may, in pursuance of a motion upon notice, pass a resolution disapproving of the declaration in the Proclamation.
(3) Where:
(a) a notice referred to in subsection (2) is given with respect to a Proclamation; and
(b) at the expiration of the period during which a resolution disapproving of the declaration in the Proclamation could have been passed:
(i) the notice has not been withdrawn and the relevant motion has not been called on; or
(ii) the relevant motion has been called on, moved and seconded and has not been withdrawn or otherwise disposed of;
the declaration in the Proclamation shall be deemed to have been disapproved of.
(4) If:
(a) neither House of the Parliament passes a resolution in accordance with subsection (2) disapproving of the declaration in a Proclamation; and
(b) the declaration in the Proclamation has not been deemed to have been disapproved of under subsection (3);
the Proclamation takes effect on the day immediately following the last day upon which a resolution disapproving of the declaration in the Proclamation could have been passed.
(5) If, before the expiration of 15 sitting days of a House of the Parliament after a copy of a Proclamation referred to in subsection (1) has been laid before that House:
(a) the House of Representatives is dissolved or expires, or the Parliament is prorogued; and
(b) a resolution for the disapproval of the declaration in the Proclamation has not been passed by the first‑mentioned House;
the copy of the Proclamation shall, for the purposes of this section, be deemed to have been laid before that first‑mentioned House on the first sitting day of that first‑mentioned House after the dissolution, expiry or prorogation, as the case may be.
48H Agreements for entry on Aboriginal land
(1) An agreement made, or deemed to have been made, under section 44 or 46 may include provisions regulating or authorising the entry of persons on Aboriginal land for purposes relating to the subject‑matter of the agreement.
(2) Without affecting the generality of subsection (1), an agreement referred to in that subsection may provide for the issue of permits by the Land Council concerned to persons wishing to enter on Aboriginal land for purposes relating to the subject‑matter of the agreement.
(3) The issuing and revocation of permits referred to in subsection (2) shall be in accordance with the terms of the relevant agreement and not otherwise.
(4) This section shall not be taken, by implication, to limit the kinds of estates or interests that can be the subject of an agreement or a determination under subsection 70(4).
48J Offence in connection with mining interest
(1) Except as provided by section 33A, 42, 43, 44, 46, 48A, 48B or 48D or as expressly provided by any other law, a person shall not make or agree to make a payment, or offer or agree to offer a gift, to another person in connection with the granting of an exploration licence or a mining interest in Aboriginal land.
(2) An offence against subsection (1) is an indictable offence and, subject to this section, is punishable on conviction by:
(a) in the case of a natural person—a fine of not more than 120 penalty units or imprisonment for not more than 2 years, or both; or
(b) in the case of a body corporate—a fine of not more than 600 penalty units.
(3) Notwithstanding that an offence against subsection (1) is an indictable offence, a court of summary jurisdiction may hear and determine proceedings in respect of an offence if the court is satisfied that it is proper to do so and the defendant and the prosecutor consent.
(4) Where a court of summary jurisdiction convicts a person of an offence against subsection (1), the maximum penalty that the court may impose is:
(a) in the case of a natural person—a fine of 60 penalty units or imprisonment for 12 months, or both; or
(b) in the case of a body corporate—a fine of 300 penalty units.
Part V—Aboriginal Land Commissioners
49 Aboriginal Land Commissioners
There shall be such number of Aboriginal Land Commissioners as the Minister determines.
50 Functions of Commissioner
(1) The functions of a Commissioner are:
(a) on an application being made to the Commissioner by or on behalf of Aboriginals claiming to have a traditional land claim to an area of land, being unalienated Crown land or alienated Crown land in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals:
(i) to ascertain whether those Aboriginals or any other Aboriginals are the traditional Aboriginal owners of the land; and
(ii) to report his or her findings to the Minister and to the Administrator of the Northern Territory, and, where the Commissioner finds that there are Aboriginals who are the traditional Aboriginal owners of the land, to make recommendations to the Minister for the granting of the land or any part of the land in accordance with sections 11 and 12;
(b) to inquire into the likely extent of traditional land claims by Aboriginals to alienated Crown land and to report to the Minister and to the Administrator of the Northern Territory, from time to time, the results of his or her inquiries;
(c) to establish and maintain a register of the traditional land claims referred to in paragraph (b);
(d) to advise the Minister in connexion with any other matter relevant to the operation of this Act that is referred to the Commissioner by the Minister; and
(e) to advise the Minister and the Administrator of the Northern Territory in connexion with any other matter relating to land in the Northern Territory that is referred to the Commissioner by the Minister with the concurrence of the Administrator of the Northern Territory.
(1A) For the purposes of subsection (1), land in the Alligator Rivers Area (No. 3) that is alienated Crown Land in which all estates and interests not held by the Crown are held by the Director shall be deemed to be unalienated Crown land.
(1B) If any land within the area delineated by the outer boundaries of the aggregate area comprising Gimbat and Goodparla is included in a Commonwealth reserve under the Environment Protection and Biodiversity Conservation Act 1999 or conservation zone, it shall be deemed, for the purposes of subsection (1), to be unalienated Crown land.
(2) A Commissioner may, with the approval of the Minister, perform any function that may be conferred on the Commissioner by a law of the Northern Territory.
(2A) A Commissioner shall not perform a function under paragraph (1)(a) in respect of an application made after the expiration of 10 years after the commencement of this subsection.
(2B) Where:
(a) an application referred to in paragraph (1)(a) has been made to a Commissioner;
(b) it appears to the Commissioner that the land to which the application relates is, in whole or part, the same as the whole or part of land to which an earlier application related; and
(c) the report made under subparagraph (1)(a)(ii) in relation to the earlier application made no recommendation as mentioned in that subparagraph in relation to that land;
the Commissioner shall not perform, or continue to perform, a function under paragraph (1)(a) in relation to the land (in this subsection referred to as the common land) to which both the first‑mentioned application and the earlier application relate unless the Commissioner finds:
(d) that the basis on which the applicants contend that the applicants, or specified Aboriginals, are the traditional Aboriginal owners of the common land is substantially different from the basis on which the like contention was made in relation to the previous claim;
(e) that information, documents or records that are likely to be relevant to the performance by the Commissioner of that function, being information, records or documents that were not available to the Commissioner to whom the previous application was made, will be available to the Commissioner in connection with the performance of that function; or
(f) any other ground upon which it appears to the Commissioner appropriate to perform, or continue to perform, that function;
and that it is likely that the Commissioner will find that the applicants or specified Aboriginals are the traditional Aboriginal owners of the common land.
(2C) Where:
(a) an application referred to in paragraph (1)(a) has been made to a Commissioner; and
(b) it appears to the Commissioner that an estate or interest in the land is held by or on behalf of Aboriginals;
the Commissioner shall not perform, or continue to perform, a function under that paragraph in relation to the application as it relates to that land unless the Aboriginals who hold that estate or interest have, or the body which holds that estate or interest on their behalf has, consented, in writing, to the making of the application.
(2D) Where:
(a) an application referred to in paragraph (1)(a) has been made to a Commissioner (whether before or after the commencement of this subsection);
(b) the whole or part of the land to which the application relates was reserved, dedicated or otherwise set aside under a law of the Northern Territory, with effect from a time before the commencement of this subsection, as a stock route or stock reserve; and
(c) if the application was made before the commencement of this subsection—the Commissioner had not, before that commencement, commenced an inquiry under paragraph (1)(a) in relation to the application in respect of that land or that part;
the Commissioner shall not perform, or continue to perform, a function under paragraph (1)(a) in relation to the application in respect of that land or that part.
(2E) Paragraph (2D)(b) does not apply in relation to:
(a) a stock route or stock reserve that is, along each of its two longer boundaries, contiguous to land to which the application relates.
(3) In making a report in connexion with a traditional land claim a Commissioner shall have regard to the strength or otherwise of the traditional attachment by the claimants to the land claimed, and shall comment on each of the following matters:
(a) the number of Aboriginals with traditional attachments to the land claimed who would be advantaged, and the nature and extent of the advantage that would accrue to those Aboriginals, if the claim were acceded to either in whole or in part;
(b) the detriment to persons or communities including other Aboriginal groups that might result if the claim were acceded to either in whole or in part;
(c) the effect which acceding to the claim either in whole or in part would have on the existing or proposed patterns of land usage in the region; and
(d) where the claim relates to alienated Crown land—the cost of acquiring the interests of persons (other than the Crown) in the land concerned.
(4) In carrying out his or her functions a Commissioner shall have regard to the following principles:
(a) Aboriginals who by choice are living at a place on the traditional country of the tribe or linguistic group to which they belong but do not have a right or entitlement to live at that place ought, where practicable, to be able to acquire secure occupancy of that place;
(b) Aboriginals who are not living at a place on the traditional country of the tribe or linguistic group to which they belong but desire to live at such a place ought, where practicable, to be able to acquire secure occupancy of such a place.
51 Powers of Commissioner
A Commissioner may do all things necessary or convenient to be done for or in connexion with the performance of his or her functions.
52 Appointment of Commissioner
(1) A Commissioner shall be appointed by the Governor‑General.
(2) Subject to this Act, a Commissioner holds office for such period, not exceeding 3 years, as is specified in his or her instrument of appointment and on such terms and conditions as the Governor‑General determines, but is eligible for re‑appointment.
(4) Where the period of office of a Commissioner has expired, the Commissioner shall, unless the Governor‑General otherwise directs, be deemed to continue to hold the office of Commissioner for the purpose only of completing the performance of a function under this Act commenced but not completed before the period of office expired.
53 Judge or former Judge to be appointed as Commissioner
(1) A person shall not be appointed as a Commissioner unless he or she is or has been a Judge.
(3) The appointment of a Judge as a Commissioner and the Judge’s service as a Commissioner does not affect:
(a) his or her tenure of judicial office; or
(b) the Judge’s rank, title, status, precedence, salary or annual allowances or other judicial privileges as the holder of that judicial office.
(3A) For all purposes, the Judge’s service as a Commissioner is taken to be service as the holder of his or her judicial office.
(4) In this section, Judge means:
(a) a Judge of the Federal Court of Australia; or
(b) a Judge, additional Judge, or acting Judge of the Supreme Court of the Northern Territory.
53A Protection for Commissioner etc.
(1) A Commissioner shall, in the exercise of his or her functions as a Commissioner, have the same protection and immunity as a Justice of the High Court.
(2) A barrister or solicitor appearing before a Commissioner who is conducting an inquiry in pursuance of his or her functions under this Act has the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court.
53B Application of the Public Governance, Performance and Accountability Act 2013
A Commissioner is not an official of a Commonwealth entity for the purposes of the Public Governance, Performance and Accountability Act 2013.
54 Power to require person to answer questions and produce documents
(1) A Commissioner may, by notice in writing, require a person whom the Commissioner believes to be capable of giving information relating to a matter being inquired into by the Commissioner in carrying out his or her functions under this Act, being a matter specified in the notice, to attend before him or her at the time and place specified in the notice and there to answer questions in relation to that matter and to produce to the Commissioner such documents and other records in relation to that matter as are specified in the notice.
(2) A Commissioner may make and retain copies of, or extracts from, any documents or other records produced in pursuance of this section.
(3) A person is not excused from:
(a) answering a question; or
(b) producing any documents or other records;
when required to do so under this section on the ground that the answer to the question, or the production of the records or other documents:
(c) might tend to incriminate the person; or
(d) might make the person liable to a penalty.
(3A) However, the person’s answer to any such question is not admissible in evidence against him or her in proceedings, other than proceedings for an offence against paragraph (6)(b) or section 54B.
(4) A person attending before a Commissioner in pursuance of this section has the same protection, and is, in addition to the penalties provided by this section, subject to the same liabilities, as a witness in proceedings in the High Court.
(5) A Commissioner may administer an oath or affirmation to a person required to attend before him or her in pursuance of this section and may examine the person on oath or affirmation.
(6) A person shall not fail:
(a) to attend before a Commissioner;
(b) to be sworn or make an affirmation; or
(c) to answer a question or produce a document or record;
when so required in pursuance of this section.
Penalty: 30 penalty units.
(7) Subsection (6) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
54A Person wishing to give information etc. to Commissioner
(1) Where a person present at a place where a Commissioner is conducting an inquiry in pursuance of the Commissioner’s functions under this Act indicates to the Commissioner that the person wishes to give information, or to produce documents or other records, relating to the matter the subject of the inquiry, the Commissioner may:
(a) if the person wishes to give information—administer an oath or affirmation to that person and examine that person on oath or affirmation; or
(b) if the person wishes to produce documents or other records—inspect, and make and retain copies of, or extracts from, those documents or other records.
(2) A person shall not fail to answer a question put to him or her by a Commissioner in the course of an examination under subsection (1).
Penalty: 30 penalty units.
(2A) Subsection (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) A person is not excused from answering a question referred to in subsection (2) on the ground that the answer to the question:
(a) might tend to incriminate the person; or
(b) might make the person liable to a penalty.
(3A) However, the person’s answer to any such question is not admissible in evidence against him or her in proceedings other than proceedings for an offence against that subsection or section 54B.
(4) A person being examined under subsection (1) has the same protection, and is, in addition to the penalty provided by subsection (2), subject to the same liabilities, as a witness in proceedings in the High Court.
54AA Commissioner may restrict publication etc.
(1) A Commissioner may give directions prohibiting or limiting the publication of, or access to, information given, or a book, document or other record produced, to the Commissioner under this Act.
(2) Where information is to be publicly given, or a book, document or other record is to be publicly produced, to a Commissioner under this Act, the Commissioner may give directions requiring that persons specified in the direction, or persons included in a class of persons specified in the direction, are not to be in the vicinity of the place where the information is to be given, or the book, document or other record produced, as the case may be.
(3) A person who intentionally contravenes or fails to comply with a direction given under this section is guilty of an offence punishable, on summary conviction, by:
(a) in the case of a natural person—a fine of not more than 60 penalty units or imprisonment for not more than 12 months, or both; or
(b) in the case of a body corporate—a fine of not more than 300 penalty units.
54C Financial assistance in respect of legal representation
(1) Where:
(a) an application has been made, in accordance with paragraph 50(1)(a), to a Commissioner by or on behalf of Aboriginals claiming to have a traditional land claim to an area of land; and
(b) a person (not being a person by whom, or on whose behalf, the application referred to in paragraph (a) has been made) or an unincorporated association of persons wishes to be, or is, legally represented at the inquiry by the Commissioner into the claim;
that person or association may apply to the Attorney‑General for the provision of assistance under this section in respect of the cost of such representation at that inquiry.
(2) Where:
(a) an application is made to the Attorney‑General under subsection (1); and
(b) the Attorney‑General, or a person appointed or engaged under the Public Service Act 1999 (the public servant) authorized in writing by the Attorney‑General, is satisfied that, in all the circumstances of the case, it is reasonable that the Commonwealth should provide assistance in respect of the whole or a part of the cost of the representation to which the application relates;
the Attorney‑General or the public servant may authorize, either unconditionally or subject to such conditions as the Attorney‑General or the public servant determines, the provision by the Commonwealth of assistance under this section in respect of the whole or that part of the cost of that representation.
(3) The reference in subsection (2) to all the circumstances of the case shall be read as including a reference to any hardship that the refusal of the application in question would cause to the applicant or, if the applicant is an unincorporated association of persons, to any of those persons.
54D Reference of question of law to Federal Court
(1) A Commissioner may refer a question of law arising in connection with an application referred to in paragraph 50(1)(a) made to the Commissioner to the Federal Court of Australia for determination.
(2) The Federal Court of Australia has jurisdiction to hear and determine a question of law referred to it under subsection (1) and that jurisdiction shall be exercised by that Court constituted as a Full Court.
(3) Where a question of law arising in connection with such an application has been referred to the Federal Court of Australia under this section, a Commissioner shall not:
(a) make a finding to which the question is relevant while the reference is pending; or
(b) exercise the functions of a Commissioner under paragraph (1)(a) in a manner that is inconsistent with the determination of the Federal Court on the question.
55 Interests of Commissioner in any business
A Commissioner shall, as soon as practicable, give written notice to the Minister of all direct and indirect pecuniary interests that he or she has or acquires in any business carried on in Australia or in any body corporate carrying on any such business or in any land in the Northern Territory.
56 Leave of absence
The Minister may grant leave of absence to a Commissioner upon such terms and conditions as the Minister determines.
57 Acting appointments
(1) Where there is a vacancy in an office of Commissioner, the Minister may appoint a person to act as a Commissioner until the filling of the vacancy, but a person so appointed shall not continue so to act after the expiration of the period of 12 months after the occurrence of the vacancy.
(2) Where a Commissioner is, or is expected to be, absent from Australia or is unable, whether on account of illness or otherwise, to perform the duties of his or her office, the Minister may appoint a person to act as a Commissioner during the period during which the Commissioner is so absent or so unable to perform the duties of his or her office.
(3) Subject to subsection (4), a person appointed to act as a Commissioner in accordance with this section has all the functions, powers and duties of the Commissioner in whose place the person is appointed to act.
(4) A person referred to in subsection (3) does not have the powers conferred on a Commissioner by section 54 or 54A unless the person is or has been a Judge.
(5) The Minister may:
(a) subject to this Act and having regard to the terms and conditions of appointment applicable to a Commissioner, determine the terms and conditions of appointment, including remuneration and allowances, of a person appointed under this section; and
(b) at any time, terminate such an appointment.
(6) A person appointed under this section may resign his or her appointment by signed writing delivered to the Minister, but the resignation does not have effect until it is accepted by the Minister.
(7) A reference in subsection (4) to a Judge is a reference to:
(a) a Judge of the Supreme Court of the Northern Territory or a person appointed as an additional Judge, or a person acting as a Judge, of that Court; or
(b) a Judge, or a person acting as a Judge, of a court created by Parliament.
58 Resignation
A Commissioner may resign his or her office by signed writing delivered to the Governor‑General, but the resignation does not have effect until it is accepted by the Governor‑General.
59 Staff to assist Commissioner
Any staff required to assist a Commissioner shall be persons engaged under the Public Service Act 1999.
60 Consultants to Commissioner
(1) A Commissioner may, on behalf of the Commonwealth, engage persons having suitable qualifications and experience as consultants to the Commissioner.
(2) The terms and conditions on which persons are engaged under subsection (1) shall be such terms and conditions as are determined by the Minister.
61 Annual report etc. by Commissioner
(1) Each Commissioner shall, as soon as practicable after 30 June in each year, prepare and furnish to the Minister a report of his or her operations during the year that ended on that date and, for that purpose, the period commencing on the day on which this Act receives the Royal Assent and ending on 30 June 1977 shall be regarded as a year.
(2) A Commissioner shall furnish to the Minister such additional reports as the Minister requires and may furnish such other reports as the Commissioner thinks fit.
(3) The Minister shall cause a report furnished under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after the receipt of the report by the Minister.
Part VI—Aboriginals Benefit Account
62 Aboriginals Benefit Account
(1) There is continued in existence the Aboriginals Benefit Account.
Note: The Account was established by subsection 5(3) of the Financial Management Legislation Amendment Act 1999.
(2) The Account is a special account for the purposes of the Public Governance, Performance and Accountability Act 2013.
(3) If interest is received by the Commonwealth from the investment of an amount standing to the credit of the Account, an amount equal to the interest must be credited to the Account.
62A Minimum investment amount
(1) The Minister may, by writing, determine an amount (the investment amount) for the purposes of this section.
(2) If, at any time while the determination is in effect, the total of the amounts that:
(a) have been debited from the Account; and
(b) are invested in accordance with section 58 of the Public Governance, Performance and Accountability Act 2013;
is less than the investment amount, the balance is to be available to be debited from the Account for the purpose of being so invested (and not for any other purpose).
(3) A determination takes effect on the day specified in the determination.
(4) A determination is not a legislative instrument.
63 Credit of amounts to Account
(1) Subject to subsection (2), there must be credited to the Account, from time to time, amounts equal to the amounts of any royalties received by the Commonwealth or the Northern Territory in respect of a mining interest in Aboriginal land.
(2) If, because of an increase in the rate of royalty since 26 January 1977, an amount of royalties received by the Commonwealth in respect of a mining interest in the area of Aboriginal land described in Schedule 5 is higher than the amount that, but for that increase, the Commonwealth would have received in respect of that mining interest, such part only of the increase in the amount of those royalties as is determined by the Minister is to be taken into account in calculating the amount to be credited to the Account under subsection (1) in respect of those royalties.
(3) If:
(a) after 17 January 1990, a mining interest in respect of Aboriginal land in the Northern Territory has been granted under:
(i) subsection 51(1A) of the Lands Acquisition Act 1955 in so far as it applies by virtue of subsection 124(8) of the Lands Acquisition Act 1989; or
(ii) regulations made for the purposes of subsection 124(1) of the Lands Acquisition Act 1989; and
(b) because of an increase in the rate of royalty since the grant of the mining interest, an amount of royalties received by the Commonwealth in respect of the mining interest is higher than the amount that, but for that increase, the Commonwealth would have received in respect of that mining interest;
such part only of the increase in the amount of those royalties as is determined by the Minister is to be taken into account in calculating the amount to be credited to the Account under subsection (1) in respect of those royalties.
(4) If mining operations for minerals are carried on under the Atomic Energy Act 1953 or any other Act on Aboriginal land by, or on behalf of, the Commonwealth, the Northern Territory or an Authority, there must be credited to the Account, from time to time, payments in respect of those mining operations of such amounts as are determined in accordance with subsection (5).
(5) Amounts payable under subsection (4) are:
(a) such amounts as would be payable to the Crown as royalties if the mining operations were carried on in accordance with the law of the Northern Territory relating to mining for minerals and the royalties were payable at the rate fixed by that law immediately before 26 January 1977; or
(b) if the Minister administering the Act under which the mining operations are carried on and the Minister administering this Act jointly determine that amounts higher than the amounts referred to in paragraph (a) are to be payable under subsection (4) in respect of particular mining operations—the amounts so determined.
(6) There must be credited to the Account amounts equal to any money paid by any person to the Commonwealth for the purposes of the Account.
(7) There must be credited to the Account amounts equal to any amounts from time to time received by the Commonwealth as interest on, or as repayment of, any loan made under subsection 64(4).
64 Debits from the Account
(1) There must be debited from the Account from time to time, and paid by the Commonwealth for distribution between or among the Land Councils such amounts as the Minister determines having regard to the following in relation to each Land Council:
(a) the most recent estimates approved by the Minister under section 34;
(b) the most recent amounts notified to the Minister under subsection 34(1A);
(c) any surplus specified in the most recent financial statements given under paragraph 42(1)(b) of the Public Governance, Performance and Accountability Act 2013.
(3) There must be debited from the Account 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) is situated, or mining operations referred to in subsection 63(4) are being carried on, an amount equal to 30% of any amounts:
(a) credited to the Account in accordance with subsection 63(1) in respect of that mining interest; or
(b) credited to the Account in accordance with subsection 63(4) in respect of those mining operations;
as the case may be.
(4) There must be debited from the Account and paid by the Commonwealth such other amounts as the Minister directs to be paid or applied to or for the benefit of Aboriginals living in the Northern Territory.
(4A) There must be debited from the Account and paid by the Commonwealth such other amounts as the Minister directs to be paid in relation to:
(aa) the acquiring of a lease by the Commonwealth if the Minister has agreed to a request under subsection 19(3A) or 20CA(2) in relation to the lease; or
(ab) the administering of a lease covered by paragraph (aa) if the Executive Director entered into the lease on behalf of the Commonwealth; or
(ac) the acquiring of a sublease by the Commonwealth if the Minister has agreed to a request under subsection 20CA(2) in relation to the sublease; or
(ad) the administering of a sublease covered by paragraph (ac) if the Executive Director entered into the sublease on behalf of the Commonwealth; or
(ae) the acquiring of a sublease by an Aboriginal and Torres Strait Islander corporation by way of transfer under subsection 20CB(1); or
(af) the administering of a sublease covered by paragraph (ae) if an Aboriginal and Torres Strait Islander corporation holds the sublease; or
(ag) the acquiring of a sublease by the Commonwealth by way of transfer under subsection 20CB(2); or
(ah) the administering of a sublease covered by paragraph (ag) if the Executive Director holds the sublease on behalf of the Commonwealth; or
(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.
(5) A payment of an amount debited from the Account under subsection (4) may be by way of a loan (whether secured or unsecured) by the Commonwealth.
(5A) The Minister may, by notice in writing, specify conditions on which a payment of an amount to a person under subsection (4) (including by way of a loan) is made. The notice is not a legislative instrument.
(5B) If a condition on which a payment of an amount to a person under subsection (4) is made is breached, the Minister, on behalf of the Commonwealth, may:
(a) if the payment is by way of a loan—recover so much of the loan as has not been repaid, and any accrued interest that has not been paid, as a debt in a court of competent jurisdiction; or
(b) in any other case—recover the whole or a part of the amount as a debt in a court of competent jurisdiction.
(6) There must be debited from the Account and paid by the Commonwealth such amounts to meet the expenses of administering the Account as the Minister directs.
(7) Amounts that the Minister directs to be debited from the Account under subsection (4), (4A) or (6) must be paid or applied in accordance with the direction.
64A Debit of additional amounts from Account
(1) The Minister may, in his or her discretion, from time to time, by written instrument, direct the debit from the Account of such amounts as he or she specifies in the direction.
(2) If the Minister directs, under subsection (1), the debit of a specified amount from the Account, section 12‑320 in Schedule 1 to the Taxation Administration Act 1953 does not apply in relation to the debit of that amount. But there must also be debited from the Account such additional amount as would be necessary to discharge any liability for mining withholding tax in accordance with Division 11C of Part III of the Income Tax Assessment Act 1936 in respect of the first‑mentioned amount. The debit of that additional amount discharges that liability.
(3) The Minister must, in a direction under subsection (1), specify, in relation to each amount that he or she directs be debited from the Account:
(a) that the amount is to be taken, for the purposes of this section, to have been debited from the Account in relation to a specified Land Council; or
(b) that specified amounts that are, in the aggregate, equal to that amount are to be respectively taken, for the purposes of this section, to have been debited from the Account in relation to specified Land Councils.
(4) If, in consequence of a direction by the Minister under subsection (1) that an amount be debited from the Account, an additional amount is also debited from the Account in accordance with subsection (2), the Minister must, by written instrument, direct, in relation to that additional amount:
(a) that the additional amount is to be taken, for the purposes of this section, to have been debited from the Account in relation to a specified Land Council; or
(b) that specified amounts that are, in the aggregate, equal to the additional amount are to be respectively taken for the purposes of this section, to have been debited from the Account in relation to specified Land Councils.
(5) The Minister must, in specifying under subsection (3) that an amount is to be taken, for the purposes of this section, to have been debited from the Account in relation to a specified Land Council, ensure that the aggregate of that amount and the amount or amounts (if any) specified in a previous direction or previous directions under subsection (1) in relation to that Land Council does not exceed the total of the amounts paid by the Commonwealth, after 30 June 1978, to that Land Council for the purpose of meeting the administrative costs or capital costs of that Land Council.
(6) An amount that is to be taken for the purposes of this section to have been debited from the Account in respect of a particular Land Council must nonetheless be taken into account for the purposes of subsection 64(1) as if it had been debited from the Account and paid by the Commonwealth in accordance with that subsection to the Land Council.
(7) The reference in subsection (5) to amounts paid by the Commonwealth to a Land Council for the purpose of meeting the administrative costs or capital costs of that Land Council does not include a reference to:
(a) any amount that is paid to that Land Council under an agreement under subsection 44(1) or (2); or
(b) any amount that is paid to that Land Council out of the appropriation made by item 07 of subdivision 3 of Division 640 of the Appropriation Act (No. 1) 1978‑79; or
(c) any amount that is paid to that Land Council out of the appropriation made by subdivision 1 of Division 815 of the Appropriation Act (No. 4) 1980‑81; or
(d) any amount that is paid to that Land Council out of the appropriation made by item 09 of subdivision 3 of Division 120 of the Appropriation Act (No. 1) 1981‑82; or
(e) any other amount that is paid to that Land Council for that purpose by the Commonwealth and that the Minister determines, by written instrument, should not be taken into account for the purposes of this section.
64B Accounts, financial statements and annual report
(1) As soon as practicable after 30 June in each year, the Secretary of the Department must prepare and give to the Minister a report relating to the operation of the Account for the year.
(2) The report must include:
(a) the financial statements required by section 42 of the Public Governance, Performance and Accountability Act 2013 (as that section applies because of subsection (4) of this section); and
(b) an audit report on those statements under section 43 of that Act (as that section applies because of subsection (4) of this section).
(3) The Minister must cause a copy of the report to be tabled in each House of the Parliament as soon as practicable.
(4) Sections 42 and 43 (other than subsection 43(4)) of the Public Governance, Performance and Accountability Act 2013 (which deal with annual financial statements for Commonwealth entities and audits of those statements), and rules made for the purposes of those sections, apply in relation to the Account as if:
(a) the Account were a Commonwealth entity; and
(b) the Secretary of the Department were the accountable authority of that Commonwealth entity.
65 Account Advisory Committee
(1) There shall be an Account Advisory Committee to advise the Minister in connexion with debiting the Account for the purposes of making payments under subsection 64(4).
(2) The Account Advisory Committee shall consist of:
(a) a Chair appointed by the Minister; and
(b) members elected by each Land Council; and
(c) any member appointed by the Minister under subsection (4).
(2A) For the purposes of paragraph 2(b), the Minister may, from time to time, fix the number of members to be elected by a Land Council having regard to the number of Aboriginals living in the area of that Land Council.
(3) The Chair and the members of the Committee elected by each Land Council shall be Aboriginals living in the Northern Territory or whose names are set out in a register maintained in accordance with section 24.
(4) The Minister may, by writing, appoint 1 or 2 persons to be members of the Committee.
(5) The Minister must not appoint a person as a member under subsection (4) unless the Minister is satisfied that the person has professional expertise in:
(a) land management; or
(b) business or financial management.
(6) A member of the Committee may be re‑appointed or re‑elected.
(7) The period of any appointment or election (or any re‑appointment or re‑election) must not exceed 3 years.
Part VII—Miscellaneous
66 Interpretation
A reference in this Part to an estate or interest in Aboriginal land includes a reference to:
(a) a mining interest;
(b) an interest arising out of the operation of the Atomic Energy Act 1953 or any other Act authorizing mining for minerals;
(ba) a lease or other interest in land or a right granted under a law of the Northern Territory relating to the mining or development of extractive mineral deposits;
(c) an interest arising out of the taking possession, mining or occupation of land by virtue of a miner’s right; and
(d) an interest by way of the occupation or use of land in accordance with section 12A, 14, 18, 18A or 18B.
67 Aboriginal land not to be resumed etc.
Aboriginal land shall not be resumed, compulsorily acquired or forfeited under any law of the Northern Territory.
67A Estates or interests not to be granted while land subject to traditional land claim
(1) Where an application referred to in paragraph 50(1)(a) in respect of an area of land was made before the day of commencement of this section:
(a) any grant of an estate or interest in that area of land, or in a part of that area of land, that was purportedly effected on a day before that traditional land claim, in so far as it related to the area of land to which the grant relates, was finally disposed of, being a day after 28 May 1986 and before the day of commencement of this section, shall be taken to be, and at all times to have been, of no effect; and
(b) any grant of an estate or interest in that area of land, or in a part of that area of land, that was purportedly effected on a day before that traditional land claim, in so far as it relates to the area of land to which the grant relates, is finally disposed of, being the day of commencement of this section or a later day, shall be of no effect.
Note: Subsection (1) does not apply to certain grants: see section 67B.
(2) Where an application referred to in paragraph 50(1)(a) in respect of an area of land is made on or after the day of commencement of this section, any grant of an estate or interest in that area of land, or in a part of that area of land, that is purportedly effected on a day before that traditional land claim, in so far as it relates to the area of land to which the grant relates, is finally disposed of, being the day on which the application is made or a later day, shall be of no effect.
Note: Subsection (2) does not apply to certain grants: see section 67B.
(3) Where an application referred to in paragraph 50(1)(a) in respect of an area of land was made before the day of commencement of this section any reservation, dedication or setting aside of that area of land, or a part of that area of land, that was purportedly effected on a day before that traditional land claim, in so far as it relates to the area of land so reserved, dedicated or set aside, is finally disposed of, being the day of commencement of this section or a later day, shall be of no effect.
(4) Where an application referred to in paragraph 50(1)(a) in respect of an area of land is made on or after the day of commencement of this section, any reservation, dedication or setting aside of that area of land, or a part of that area of land, that is purportedly effected on a day before that traditional land claim, in so far as it relates to the area of land so reserved, dedicated or set aside, is finally disposed of, being the day on which the application is made or a later day, shall be of no effect.
(5) Subject to subsections (6), (7), (8), (9), (12) and (17), a traditional land claim shall be taken not to have been finally disposed of in so far as it relates to a particular area of land until:
(a) the claim, or the claim, in so far as it relates to the area of land, is withdrawn; or
(b) the Governor‑General executes a deed of grant of an estate in fee simple in the area of land, or in an area of land that includes the area of land, under section 12; or
(c) the Commissioner informs the Minister, in the Commissioner’s report to the Minister in respect of the claim:
(i) that the Commissioner finds that there are no Aboriginals who are the traditional Aboriginal owners of the area of land; or
(ii) that the Commissioner is unable to make a finding that there are Aboriginals who are the traditional Aboriginal owners of the area of land; or
(d) where the Commissioner finds that there are Aboriginals who are the traditional Aboriginal owners of the area of land, or of an area of land that includes the area of land—the Minister determines, in writing, that the Minister does not propose to recommend to the Governor‑General that a grant of estate in fee simple in the area of land, or in an area of land that includes the area of land, be made to a Land Trust.
(6) If:
(a) an application has been made under section 50 by or on behalf of Aboriginals claiming to have a traditional land claim to an area of land; and
(b) either:
(i) the application was made on or after 5 June 1997; or
(ii) subsection 50(2D) applies to the whole or a part of that land;
then:
(c) if subparagraph (b)(i) applies—the traditional land claim is taken to have been finally disposed of; and
(d) if subparagraph (b)(ii) applies—the traditional land claim, to the extent to which subsection 50(2D) applies, is taken to have been finally disposed of.
Note: Subparagraph (b)(i) relates to subsection 50(2A), which prevents Commissioners considering applications relating to traditional land claims made after the expiration of 10 years after the commencement of that subsection. That subsection commenced on 5 June 1987.
(7) If:
(a) an application has been made under section 50 by or on behalf of Aboriginals claiming to have a traditional land claim to an area of land; and
(b) after the commencement of this subsection, the Commissioner requests the applicants, in writing, to provide further information in relation to the application within a period specified in the request (which must be at least 6 months from the making of the request) and the Commissioner determines in writing that the further information is not provided within that period;
the traditional land claim is taken to have been finally disposed of.
(8) If:
(a) an application has been made under section 50 by or on behalf of Aboriginals claiming to have a traditional land claim to an area of land; and
(b) paragraphs 50(2B)(b) and (c) are satisfied but the Commissioner has not made a finding under paragraph 50(2B)(d), (e) or (f) in relation to common land (within the meaning of subsection 50(2B)); and
(c) after the commencement of this subsection, either:
(i) the Commissioner determines in writing that the Commissioner is satisfied that there are not sufficient grounds for the making of such a finding; or
(ii) the Commissioner requests the applicants, in writing, to provide further information in relation to the application within 6 months of the making of the request and the Commissioner determines in writing that the further information is not provided within that period;
the traditional land claim, in so far as it relates to the common land, is taken to have been finally disposed of.
(9) If:
(a) an application has been made under section 50 by or on behalf of Aboriginals claiming to have a traditional land claim to an area of land; and
(b) the Commissioner is prevented, because of the operation of subsection 50(2C), from performing, or continuing to perform, a function under paragraph 50(1)(a) in relation to the application as it relates to land (the held land) in respect of which an estate or interest is held by or on behalf of Aboriginals; and
(c) after the commencement of this subsection, either:
(i) the Commissioner determines in writing that the Commissioner is satisfied that the consent referred to in subsection 50(2C) has been refused; or
(ii) the Commissioner requests the applicants, in writing, to provide the consent referred to in subsection 50(2C) within 6 months of the making of the request and the Commissioner determines in writing that the consent is not provided within that period;
the traditional land claim, in so far as it relates to the held land, is taken to have been finally disposed of.
(10) The Commissioner must provide a copy of a determination referred to in subsection (7), (8) or (9) to the applicants concerned and to the Chief Minister of the Northern Territory.
(11) A determination under subsection (7), (8) or (9) is not a legislative instrument.
(12) This subsection applies in relation to an application:
(a) that was made under section 50 before the commencement of this subsection by or on behalf of Aboriginals claiming to have a traditional land claim to qualifying land (whether or not recommendations of the kind referred to in subparagraph 50(1)(a)(ii) have been made and whether or not the application covers other land); and
(b) that was given the land claim number prescribed by the regulations.
The traditional land claim is taken to have been finally disposed of:
(c) to the extent that it relates to qualifying land that is described in the regulations; and
(d) on the day on which the regulations take effect.
(13) To avoid doubt, if regulations are made for the purposes of subsection (12) in relation to a particular application, then later regulations may also be made for the purposes of that subsection in relation to that application.
(14) In subsection (12):
qualifying land means one or more of the following:
(a) land between the high and low water marks;
(b) the whole or a part of either or both banks of one or more rivers or creeks;
(c) the whole or a part of the bed of one or more rivers or creeks;
(d) one or more islands in one or more rivers or creeks.
(17) This subsection applies in relation to the application:
(a) that was made under section 50 before the commencement of this subsection by the Northern Land Council on behalf of Aboriginals claiming to have a traditional land claim to unalienated Crown land in the Coomalie Shire/Deepwater Area; and
(b) that was given the land claim number 238.
The traditional land claim is taken to have been finally disposed of to the extent that it relates to the following land:
(c) Section 200 of the Hundred of Playford;
(d) Section 201 of the Hundred of Playford;
(e) Section 202 of the Hundred of Playford;
(f) Section 210 of the Hundred of Howard.
Note: Subsection (12) or (13) may apply to other parts of the traditional land claim.
67B Certain estates or interests may be granted while land subject to traditional land claim
Conditions for grants of estates or interests
(1) Subsections 67A(1) and (2) do not apply to a grant of an estate or interest (other than a grant of an estate in fee simple or a lease in perpetuity) in the area of land concerned, or in a part of the area of land concerned, if:
(a) the Land Council for the area in which that land, or that part of that land, is situated enters into an agreement under subsection (2) of this section in relation to that grant; and
(b) for a grant the term of which exceeds 40 years—the Minister, by written notice, gives his or her consent to the grant.
Note: Grants of estates or interests in land in respect of which a traditional land claim has been made may be subject to the provisions of the Native Title Act 1993.
Written agreements
(2) A Land Council may enter into a written agreement with a person in relation to a grant of an estate or interest in an area of land, or in a part of an area of land, specifying the terms and conditions on which the proposed grant is to be made.
(3) A Land Council must not enter into an agreement under subsection (2) unless it is satisfied that:
(a) the traditional Aboriginal owners of the relevant land understand the nature and purpose of the proposed grant and, as a group, consent to it; and
(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 Council; and
(c) the terms and conditions on which the proposed grant is to be made are reasonable.
(4) An agreement entered into by a Land Council under subsection (2) is binding on any successors to the Council.
(5) If a Land Council fails to comply with subsection (3) in entering into an agreement under subsection (2), that failure does not invalidate the Council’s entry into that agreement.
Payments
(6) If a Land Council receives a payment under an agreement entered into under subsection (2), the Council must, within 6 months after receiving the payment:
(a) apply the payment in accordance with the agreement; or
(b) if the agreement makes no provision in relation to the application of the payment—apply the payment to or for the benefit of the traditional Aboriginal owners of the area of land, or the part of the area of land, referred to in subsection (2).
(7) If:
(a) a Land Council receives a payment as mentioned in subsection (6); and
(b) the payment is made by the Commonwealth, the Northern Territory or an Authority; and
(c) the payment is of a kind prescribed by the regulations for the purposes of this subsection; and
(d) under subsection (6), the Land Council pays an amount equal to that payment to a person;
the Land Council must, at the time it pays that amount, advise the person in writing that the amount is an accountable amount.
Note: Sections 35B and 35C impose requirements on a body corporate in relation to accountable amounts.
Commissioner to continue to assess land claim application
(8) To avoid doubt, if a grant of an estate or interest in land is made after the relevant requirements of subsection (1) have been satisfied, the Commissioner must continue to perform the function mentioned in paragraph 50(1)(a) in relation to that land.
Estates or interests preserved
(9) If the Governor‑General executes a deed of grant of an estate in fee simple in the area (the claim area) of land concerned, or in an area of land that includes the claim area, under section 12, any estate or interest granted in the claim area after the relevant requirements of subsection (1) of this section have been satisfied is preserved as an estate or interest in the claim area after the deed is executed.
Consent of Minister not a legislative instrument
(10) A notice under paragraph (1)(b) is not a legislative instrument.
68 Roads over Aboriginal land
(1) A road shall not be constructed over Aboriginal land unless the Land Council for the area in which the land is situated consents, in writing, to the construction.
(1A) A major upgrade of a road over Aboriginal land must not be carried out unless the Land Council for the area in which the land is situated consents, in writing, to the upgrade.
(2) A Land Council shall not give a consent referred to in subsection (1) or (1A) unless the Land Council is satisfied that:
(a) the traditional Aboriginal owners (if any) of the land concerned understand the nature and purpose of the proposal to construct or upgrade the road and, as a group, consent to it; and
(b) any Aboriginal community or group that may be affected by the construction or upgrade of the road has been consulted and has had adequate opportunity to express its view to the Land Council.
(3) A person, other than an Aboriginal, is not entitled, unless the Minister otherwise directs, to use a road constructed or upgraded in accordance with a consent given by a Land Council under subsection (1) or (1A) except as provided by this Part or by or under a law of the Northern Territory.
(4) This section does not apply in relation to the construction, upgrade or use of a road over Aboriginal land in which a person other than a Land Trust has an estate or interest if the construction, upgrade or use:
(a) where the estate or interest is a mining interest—is authorized by a law of the Northern Territory;
(b) where the estate or interest is an interest arising out of the operation of the Atomic Energy Act 1953 or any other Act authorizing mining for minerals—is authorized by or under that Act; or
(c) in any other case—is necessary for the use or enjoyment of the estate or interest by the owner of the estate or interest.
69 Sacred sites
(1) A person shall not enter or remain on land in the Northern Territory that is a sacred site.
Penalty:
(a) for an individual—200 penalty units or imprisonment for 12 months; or
(b) for a body corporate—1,000 penalty units.
(2) Subsection (1) does not prevent an Aboriginal from entering or remaining on a sacred site in accordance with Aboriginal tradition.
(2A) In proceedings for an offence against subsection (1), it is a defence if the person enters or remains on the land in performing functions under this Act or otherwise in accordance with this Act or a law of the Northern Territory.
Note: A defendant bears an evidential burden in relation to the matters in subsection (2A) (see subsection 13.3(3) of the Criminal Code).
(3) Subject to subsection (4), in proceedings for an offence against subsection (1), it is a defence if the person charged proves that he or she had no reasonable grounds for suspecting that the land concerned was a sacred site.
(4) Where the charge relates to a sacred site on Aboriginal land, the defence provided by subsection (3) shall not be taken to have been established by a person unless he or she proves that:
(a) his or her presence on the land would not have been unlawful if the land had not been a sacred site; and
(b) he or she had taken all reasonable steps to ascertain the location and extent of the sacred sites on any part of that Aboriginal land likely to be visited by him or her.
70 Entry etc. on Aboriginal land
(1) A person shall not enter or remain on Aboriginal land.
Penalty: 10 penalty units.
(2) Where a person, other than a Land Trust, has an estate or interest in Aboriginal land:
(a) a person is entitled to enter and remain on the land for any purpose that is necessary for the use or enjoyment of that estate or interest by the owner of the estate or interest; and
(b) a law of the Northern Territory shall not authorize an entry or remaining on the land of a person if his or her presence on the land would interfere with the use or enjoyment of that estate or interest by the owner of the estate or interest.
(2A) In proceedings against a person for an offence against subsection (1), it is a defence if the person enters or remains on the land:
(a) in performing duties as the Governor‑General or as a person appointed to administer the Government of the Commonwealth under section 4 of the Constitution; or
(b) in performing duties as the Administrator, an Acting Administrator, or a Deputy Administrator, of the Northern Territory; or
(c) in performing duties as a member of either House of the Parliament or as a member of the Legislative Assembly of the Northern Territory; or
(d) as a candidate for election as a member of the House of Representatives for a Northern Territory electorate, as a Senator for the Northern Territory or as a member of the Legislative Assembly of the Northern Territory; or
(e) in performing functions, or exercising powers, under this Act or another law of the Commonwealth or under a law of the Northern Territory; or
(f) in performing functions or exercising powers as a Commonwealth or Northern Territory officer; or
(g) in performing functions or exercising powers as an officer, member or employee of, or on behalf of, a local government body in the Northern Territory; or
(h) in accordance with this Act or a law of the Northern Territory.
Note: A defendant bears an evidential burden in relation to the matters in subsection (2A) (see subsection 13.3(3) of the Criminal Code).
(2AA) In paragraph (2A)(f):
Commonwealth or Northern Territory officer means:
(a) a person who is in the service or employment of the Commonwealth, the Northern Territory or an Authority; or
(b) a person who holds, or performs the duties of, an appointment, office or position under a law of the Commonwealth or the Northern Territory.
(2B) In proceedings for an offence against subsection (1), it is a defence if the person enters or remains on the land in accordance with an authorisation in force under subsection 19(13) (about Land Trust authorisations).
Note: A defendant bears an evidential burden in relation to the matter in subsection (2B) (see subsection 13.3(3) of the Criminal Code).
(2C) In proceedings against a person for an offence against subsection (1), it is a defence if:
(a) the land (the relevant land) the person entered or remained on is part of land (the leased land) that is leased under section 19A; and
(b) the person entered or remained on the relevant land for any purpose that is related to the use or enjoyment, of an estate or interest in the whole or a part of the leased land, by the owner of the estate or interest.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2C) (see subsection 13.3(3) of the Criminal Code).
(2D) In proceedings against a person for an offence against subsection (1), it is a defence if the person enters or remains on premises (other than a sacred site) on community land with the permission of the occupier of the premises.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2D) (see subsection 13.3(3) of the Criminal Code).
(2E) In subsection (2D):
community land has the meaning given by section 70A.
occupier of premises includes a person present at the premises who is in apparent control of the premises.
(3) In proceedings for an offence against subsection (1), it is a defence if the person charged proves that his or her entry or remaining on the land was due to necessity.
(4) Where:
(a) a person has an estate or interest in land, being land that the person is entitled, under subsection (2), to enter and remain upon or being land in the vicinity of Aboriginal land; and
(b) there is no practicable way of gaining access to the land in which the person has that estate or interest otherwise than by crossing Aboriginal land (not being land that is, or forms part of, land described in Schedule 1);
a person is entitled, for the purpose of gaining that access so as to enable the use or enjoyment of that estate or interest by the owner of that estate or interest, to enter that Aboriginal land and to cross it by a route:
(c) that is agreed upon between the owner of that estate or interest and the Land Council in the area of which that Aboriginal land is situated; or
(d) if that owner and that Land Council have failed to agree—that is determined by an Arbitrator appointed by the Minister.
(5) The Minister shall not appoint a person to be an Arbitrator for the purposes of paragraph (4)(d) unless the Minister is satisfied that the person is in a position to deal impartially with the matter to be arbitrated.
(6) In making a determination under paragraph (4)(d), the matters that the Arbitrator shall take into account include:
(a) the location of any sacred site; and
(b) the location of any residential area.
(7) It is the intention of the Parliament that a route that is agreed upon under subsection (4), or determined under that subsection by an Arbitrator, is not to be taken to be, and, subject to section 68, shall not become, a road over which the public has a right of way.
(8) A reference in this section to an estate or interest in Aboriginal land includes a reference to:
(a) a licence granted under section 19; and
(b) a licence granted by the lessee of a lease granted under section 19A; and
(c) a licence granted by a sublessee of a sublease of a lease referred to in paragraph (b); and
(d) a licence of a kind prescribed by the regulations for the purposes of this paragraph.
(9) Subsection (8) does not limit section 66.
70A Vested Aboriginal land and community land
Vested Aboriginal land
(1) For the purposes of sections 70B to 70G, vested Aboriginal land means land covered by paragraph (a) of the definition of Aboriginal land in subsection 3(1).
Community land
(2) For the purposes of sections 70B to 70F, community land means:
(a) subject to subsection (3), land described in Schedule 7; or
(b) land described in regulations made for the purposes of this paragraph.
(3) The regulations may reduce an area of land described in Schedule 7. The regulations have effect accordingly.
70B Entering or remaining on Aboriginal land—access roads to communities
(1) Subject to this section, a person may enter or remain on:
(a) a road:
(i) that is on vested Aboriginal land; and
(ii) that is outside community land; and
(iii) that provides access to community land; and
(iv) that is specified in a determination under subsection (2) or that provides access to an aerodrome, or a landing place for vessels, that services the members of the community concerned; or
(b) an area that is within 50 metres either side of the centreline of such a road (to the extent that area is on vested Aboriginal land and is not a sacred site);
if the entry or remaining is for the purpose of travelling to or from any community land and is not for a purpose that is unlawful.
Note: See section 70A for the definitions of vested Aboriginal land and community land.
Specification of roads
(2) The Minister may, by written determination, specify roads for the purposes of subparagraph (1)(a)(iv). A road may be specified by reference to a start point and end point. A road specified under this subsection includes that road as it lies from time to time.
(3) A determination made under subsection (2) is not a legislative instrument.
(4) The Minister must ensure that notice of a determination under subsection (2) is given in the manner the Minister thinks appropriate.
(5) A failure to comply with subsection (4) does not invalidate the determination.
Limitation
(6) Subsection (1) applies subject to any limitation prescribed by the regulations for the purposes of this subsection.
(7) For the purposes of subsection (6), the regulations may provide that specified provisions of a law of the Northern Territory apply in relation to a road or an area to which subsection (1) applies as if the road or area were open to or used by the public.
(8) Subsection (7) does not limit subsection (6).
No obligation to maintain roads or areas
(9) The Land Trust concerned is under no obligation to maintain a road or an area to which subsection (1) applies to a level that is suitable for use by the public.
Protection from liability
(10) No action, suit or proceeding lies against the Land Trust concerned in relation to any act or omission of the Land Trust that results in loss, damage or injury to any person or property as a result of a person doing an act in reliance on subsection (1).
No limit on section 19 or 19A
(11) This section does not limit the application of section 19 or 19A in relation to a road or an area to which subsection (1) applies.
Temporary restrictions
(12) This section is subject to any provision of a law of the Northern Territory that provides for temporary restrictions on the entry or remaining on a road or an area to which subsection (1) applies for the purpose of:
(a) protecting the privacy of an event (including a ceremony) that takes place in accordance with Aboriginal tradition; or
(b) protecting public health or safety.
(13) Subsection (12) does not apply in relation to a road or an area that is covered by a lease to the Director. Instead, the Director may, by written determination for the purposes of this section, impose temporary restrictions on the entry or remaining on the road or area for the purpose of:
(a) protecting the privacy of an event (including a ceremony) that takes place in accordance with Aboriginal tradition; or
(b) protecting public health or safety.
(14) Subsections (12) and (13) apply subject to any limitation prescribed by the regulations for the purposes of this subsection.
(15) A determination made under subsection (13) has effect accordingly.
(16) A determination made under subsection (13) is not a legislative instrument.
(17) The Director must ensure that notice of a determination under subsection (13) is given in the manner the Director thinks appropriate.
(18) A failure to comply with subsection (17) does not invalidate the determination.
70C Entering or remaining on Aboriginal land—aerodromes
Aerodromes outside community land
(1) Subject to this section, a person may board an aircraft, or disembark from an aircraft, that is on an aerodrome that is on vested Aboriginal land and that is outside community land if:
(a) there is a road from community land that provides access to the aerodrome and the aerodrome services the members of the community concerned; and
(b) the person does so in accordance with the directions of the operator of the aircraft; and
(c) the boarding or disembarking is for the purpose of travelling to or from any community land and is not for a purpose that is unlawful.
Note: See section 70A for the definitions of vested Aboriginal land and community land.
(2) If subsection (1) applies, the person may also:
(a) enter or remain on any area of the aerodrome allocated for use by passengers for any purpose related to the boarding or disembarking; and
(b) cross any vested Aboriginal land to get from the aerodrome to the road or from the road to the aerodrome.
Aerodromes within community land
(3) Subject to this section, a person may:
(a) board an aircraft, or disembark from an aircraft, that is on an aerodrome that is within community land if:
(i) the person does so in accordance with the directions of the operator of the aircraft; and
(ii) the boarding or disembarking is for the purpose of travelling to or from any community land that is outside the aerodrome and is not for a purpose that is unlawful; and
(b) enter or remain on any area of the aerodrome allocated for use by passengers for any purpose related to the boarding or disembarking.
Limitations
(4) Subsection (1) or (3) does not apply to the landing of an aircraft at an aerodrome.
(5) Subsection (1) or (3) does not apply in relation to an aerodrome that, at the time of commencement of this section, is covered by a lease granted under section 19. This subsection ceases to apply in relation to the aerodrome once the lease ends.
(6) Subsection (1) or (3) does not apply in relation to an aerodrome that, at the time of commencement of this section, is covered by a lease that was granted under section 19 and is preserved as an interest under subsection 19A(10). This subsection ceases to apply in relation to the aerodrome once the interest ends.
(7) Subsection (1), (2) or (3) applies subject to any limitation prescribed by the regulations for the purposes of this subsection.
No obligation to maintain aerodromes
(8) The Land Trust concerned is under no obligation to maintain an aerodrome to which subsection (1) or (3) applies to a level that is suitable for use by the public.
Protection from liability
(9) No action, suit or proceeding lies against the Land Trust concerned in relation to any act or omission of the Land Trust that results in loss, damage or injury to any person or property as a result of a person doing an act in reliance on subsection (1), (2) or (3).
No limit on section 19 or 19A
(10) This section does not limit the application of section 19 or 19A in relation to an aerodrome to which subsection (1) or (3) applies.
70D Entering or remaining on Aboriginal land—landing places for vessels
Landing places outside community land
(1) Subject to this section, a person may board a vessel, or disembark from a vessel, that is at a landing place that is on vested Aboriginal land and that is outside community land if:
(a) there is a road from community land that provides access to the landing place and the landing place services the members of the community concerned; and
(b) the boarding or disembarking is for the purpose of travelling to or from any community land and is not for a purpose that is unlawful.
Note: See section 70A for the definitions of vested Aboriginal land and community land.
(2) If subsection (1) applies, the person may also:
(a) enter or remain on any area of the landing place allocated for use by passengers for any purpose related to the boarding or disembarking; and
(b) cross any vested Aboriginal land to get from the landing place to the road or from the road to the landing place.
Landing places within community land
(3) Subject to this section, a person may:
(a) board a vessel, or disembark from a vessel, that is at a landing place that is within community land if the boarding or disembarking is for the purpose of travelling to or from any community land that is outside the landing place and is not for a purpose that is unlawful; and
(b) enter or remain on any area of the landing place allocated for use by passengers for any purpose related to the boarding or disembarking.
Limitations
(4) Subsection (1) or (3) does not apply to the landing or berthing of a vessel at a landing place.
(5) Subsection (1) or (3) does not apply in relation to a landing place that, at the time of commencement of this section, is covered by a lease granted under section 19. This subsection ceases to apply in relation to the landing place once the lease ends.
(6) Subsection (1) or (3) does not apply in relation to a landing place that, at the time of commencement of this section, is covered by a lease that was granted under section 19 and is preserved as an interest under subsection 19A(10). This subsection ceases to apply in relation to the landing place once the interest ends.
(7) Subsection (1), (2) or (3) applies subject to any limitation prescribed by the regulations for the purposes of this subsection.
No obligation to maintain landing places
(8) The Land Trust concerned is under no obligation to maintain a landing place to which subsection (1) or (3) applies to a level that is suitable for use by the public.
Protection from liability
(9) No action, suit or proceeding lies against the Land Trust concerned in relation to any act or omission of the Land Trust that results in loss, damage or injury to any person or property as a result of a person doing an act in reliance on subsection (1), (2) or (3).
No limit on section 19 or 19A
(10) This section does not limit the application of section 19 or 19A in relation to a landing place to which subsection (1) or (3) applies.
70E Entering or remaining on Aboriginal land—roads within communities
(1) Subject to this section, a person may enter or remain on a road that is within community land if the entry or remaining is not for a purpose that is unlawful.
Note: See section 70A for the definition of community land.
(2) However, subsection (1) does not apply to a road that is specified in a determination under subsection (3).
(3) The Minister may, by written determination, specify roads for the purposes of subsection (2). A road may be specified by reference to a start point and end point. A road specified under this subsection includes that road as it lies from time to time.
(4) A determination made under subsection (3) is not a legislative instrument.
(5) The Minister must ensure that notice of a determination under subsection (3) is given in the manner the Minister thinks appropriate.
(6) A failure to comply with subsection (5) does not invalidate the determination.
Limitation
(7) Subsection (1) applies subject to any limitation prescribed by the regulations for the purposes of this subsection.
(8) For the purposes of subsection (7), the regulations may provide that specified provisions of a law of the Northern Territory apply in relation to a road to which subsection (1) applies as if the road were open to or used by the public.
(9) Subsection (8) does not limit subsection (7).
No obligation to maintain roads
(10) The Land Trust concerned is under no obligation to maintain a road to which subsection (1) applies to a level that is suitable for use by the public.
Protection from liability
(11) No action, suit or proceeding lies against the Land Trust concerned in relation to any act or omission of the Land Trust that results in loss, damage or injury to any person or property as a result of a person doing an act in reliance on subsection (1).
No limit on section 19 or 19A
(12) This section does not limit the application of section 19 or 19A in relation to a road to which subsection (1) applies.
Temporary restrictions
(13) This section is subject to any provision of a law of the Northern Territory that provides for temporary restrictions on the entry or remaining on a road to which subsection (1) applies for the purpose of:
(a) protecting the privacy of an event (including a ceremony) that takes place in accordance with Aboriginal tradition; or
(b) protecting public health or safety.
(14) Subsection (13) does not apply in relation to a road that is within community land that is leased to the Director. Instead, the Director may, by written determination for the purposes of this section, impose temporary restrictions on the entry or remaining on the road for the purpose of:
(a) protecting the privacy of an event (including a ceremony) that takes place in accordance with Aboriginal tradition; or
(b) protecting public health or safety.
(15) If a road to which subsection (1) applies is covered by a lease to a Commonwealth entity or an NT entity under section 19A:
(a) in the case of a Commonwealth entity—the Executive Director of Township Leasing referred to in section 20B; or
(b) in the case of an NT entity—the NT entity;
may, by written determination for the purposes of this section, impose temporary restrictions on the entry or remaining on the road for the purpose of protecting public health or safety.
(16) The Executive Director of Township Leasing referred to in section 20B may, by writing, delegate his or her power under subsection (15) of this section to an APS employee in the Department.
(18) Subsections (13), (14) and (15) apply subject to any limitation prescribed by the regulations for the purposes of this subsection.
(19) A determination made under subsection (14) or (15) has effect accordingly.
(20) A determination made under subsection (14) or (15) is not a legislative instrument.
(21) The person making a determination under subsection (14) or (15) must ensure that notice of the determination is given in the manner the person thinks appropriate.
(22) A failure to comply with subsection (21) does not invalidate the determination.
70F Entering or remaining on Aboriginal land—common areas
(1) Subject to this section, 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.
Note 1: See subsection (20) for the definition of common area.
Note 2: See section 70A for the definition of community land.
Limitations
(2) Subsection (1) does not apply in relation to a common area that, at the time of commencement of this section, is covered by a lease granted under section 19. This subsection ceases to apply in relation to the common area once the lease ends.
(3) Subsection (1) does not apply in relation to a common area that, at the time of commencement of this section, is covered by a lease that was granted under section 19 and is preserved as an interest under subsection 19A(10). This subsection ceases to apply in relation to the common area once the interest ends.
(4) Subsection (1) applies subject to any limitation prescribed by the regulations for the purposes of this subsection.
(5) For the purposes of subsection (4), the regulations may provide that specified common areas are taken to be public parks for the purposes of specified provisions of a law of the Northern Territory relating to public parks.
(6) Subsection (5) does not limit subsection (4).
No obligation to maintain common areas
(7) The Land Trust concerned is under no obligation to maintain a common area to which subsection (1) applies to a level that is suitable for use by the public.
Protection from liability
(8) No action, suit or proceeding lies against the Land Trust concerned in relation to any act or omission of the Land Trust that results in loss, damage or injury to any person or property as a result of a person doing an act in reliance on subsection (1).
No limit on section 19 or 19A
(9) This section does not limit the application of section 19 or 19A in relation to a common area to which subsection (1) applies.
Temporary restrictions
(10) This section is subject to any provision of a law of the Northern Territory that provides for temporary restrictions on the entry or remaining on a common area to which subsection (1) applies for the purpose of:
(a) protecting the privacy of an event (including a ceremony) that takes place in accordance with Aboriginal tradition; or
(b) protecting public health or safety.
(11) Subsection (10) does not apply in relation to a common area that is within community land that is leased to the Director. Instead, the Director may, by written determination for the purposes of this section, impose temporary restrictions on the entry or remaining on the common area for the purpose of:
(a) protecting the privacy of an event (including a ceremony) that takes place in accordance with Aboriginal tradition; or
(b) protecting public health or safety.
(12) If a common area to which subsection (1) applies is covered by a lease to a Commonwealth entity or an NT entity under section 19A:
(a) in the case of a Commonwealth entity—the Executive Director of Township Leasing referred to in section 20B; or
(b) in the case of an NT entity—the NT entity;
may, by written determination for the purposes of this section, impose temporary restrictions on the entry or remaining on the common area for the purpose of protecting public health or safety.
(13) The Executive Director of Township Leasing referred to in section 20B may, by writing, delegate his or her power under subsection (12) of this section to an APS employee in the Department.
(15) Subsections (10), (11) and (12) apply subject to any limitation prescribed by the regulations for the purposes of this subsection.
(16) A determination made under subsection (11) or (12) has effect accordingly.
(17) A determination made under subsection (11) or (12) is not a legislative instrument.
(18) The person making a determination under subsection (11) or (12) must ensure that notice of the determination is given in the manner the person thinks appropriate.
(19) A failure to comply with subsection (18) does not invalidate the determination.
Common area
(20) In this section:
common area means an area that is generally used by members of the community concerned, but does not include:
(a) a building; or
(b) a sacred site; or
(c) an area prescribed by the regulations for the purposes of this paragraph.
(21) Regulations made for the purposes of paragraph (c) of the definition of common area in subsection (20) may prescribe an area by reference to the purpose for which the area is used.
(22) Subsection (21) does not limit paragraph (c) of the definition of common area in subsection (20).
70G Entering or remaining on Aboriginal land—court hearings
(1) A person may enter or remain on vested Aboriginal land for the purpose of attending or leaving a court hearing held on the land.
Note: See section 70A for the definition of vested Aboriginal land.
(2) Subsection (1) does not apply to attending any part of a court hearing that is not open to the public.
(3) Subsection (1) applies subject to any limitation prescribed by the regulations for the purposes of this subsection.
70H No limit on section 71
Nothing in sections 70B to 70G limits the application of section 71.
71 Traditional rights to use or occupation of Aboriginal land
(1) Subject to this section, an Aboriginal or a group of Aboriginals is entitled to enter upon Aboriginal land and use or occupy that land to the extent that that entry, occupation or use is in accordance with Aboriginal tradition governing the rights of that Aboriginal or group of Aboriginals with respect to that land, whether or not those rights are qualified as to place, time, circumstances, purpose, permission or any other factor.
(2) Subsection (1) does not authorize an entry, use or occupation that would interfere with the use or enjoyment of an estate or interest in the land held by a person not being a Land Trust or an incorporated association of Aboriginals.
(3) A reference in this section to an estate or interest in Aboriginal land includes a reference to:
(a) a licence granted under section 19; and
(b) a licence granted by the lessee of a lease granted under section 19A; and
(c) a licence granted by a sublessee of a sublease of a lease referred to in paragraph (b); and
(d) a licence of a kind prescribed by the regulations for the purposes of this paragraph.
(4) Subsection (3) does not limit section 66.
72 Aboriginal land to continue to be reserve under Northern Territory law
(1) Where land constituting, or forming part of, an Aboriginal reserve is vested in a Land Trust under this Act, that vesting does not, except as otherwise provided by the regulations, affect the status of that land as such Aboriginal reserve.
(2) In this section, Aboriginal reserve means:
(a) land that is a reserve within the meaning of the Social Welfare Ordinance 1964 of the Northern Territory, as amended from time to time; or
(b) any other land that is a reserve for the purposes of a prescribed law of the Northern Territory.
73 Reciprocal legislation of the Northern Territory
(1) The power of the Legislative Assembly of the Northern Territory under the Northern Territory (Self‑Government) Act 1978 in relation to the making of laws extends to the making of:
(a) laws providing for the protection of, and the prevention of the desecration of, sacred sites in the Northern Territory, including sacred sites on Aboriginal land, and, in particular, laws regulating or authorizing the entry of persons on those sites, but so that any such laws shall provide for the right of Aboriginals to have access to those sites in accordance with Aboriginal tradition and shall take into account the wishes of Aboriginals relating to the extent to which those sites should be protected;
(b) laws regulating or authorizing the entry of persons on Aboriginal land, but so that any such laws shall provide for the right of Aboriginals to enter such land in accordance with Aboriginal tradition;
(ba) laws providing for temporary restrictions of the kind referred to in subsection 70B(12), 70E(13) or 70F(10), but so that any such laws do not apply to Aboriginals who enter, and use or occupy, the road or area concerned in accordance with Aboriginal tradition; and
(c) laws providing for the protection or conservation of, or making other provision with respect to, wildlife in the Northern Territory, including wildlife on Aboriginal land, and, in particular, laws providing for schemes of management of wildlife on Aboriginal land, being schemes that are to be formulated in consultation with the Aboriginals using the land to which the scheme applies, but so that any such laws shall provide for the right of Aboriginals to utilise wildlife resources; and
(d) laws regulating or prohibiting the entry of persons into, or controlling fishing or other activities in, waters of the sea, including waters of the territorial sea of Australia, adjoining, and within 2 kilometres of, Aboriginal land, but so that any such laws shall provide for the right of Aboriginals to enter, and use the resources of, those waters in accordance with Aboriginal tradition;
but any such law has effect to the extent only that it is capable of operating concurrently with the laws of the Commonwealth, and, in particular, with this Act, Division 4 of Part 15 of the Environment Protection and Biodiversity Conservation Act 1999 and any regulations made, schemes or programs formulated or things done, under this Act, or under or for the purposes of that Division.
(2) Subsection (1) does not affect the continued operation of any Ordinance of the Northern Territory relating to a matter referred to in that subsection made before the commencement of this section if that Ordinance could have been made in accordance with that subsection, but an Ordinance of the Northern Territory made before the commencement of this section and relating to a matter referred to in subsection (1) has effect after the commencement of this section to the extent only that it would have had effect if made after the commencement of this section.
74 Application of laws of Northern Territory to Aboriginal land
This Act does not affect the application to Aboriginal land of a law of the Northern Territory to the extent that that law is capable of operating concurrently with this Act.
74AA Revoking of permits issued under the Aboriginal Land Act of the Northern Territory
A permit issued under section 5 of the Aboriginal Land Act of the Northern Territory may only be revoked by the issuer of the permit.
Note: The reference to the Aboriginal Land Act of the Northern Territory is to be construed as a reference to that Act as originally enacted and as amended from time to time: see section 10A of the Acts Interpretation Act 1901 of the Commonwealth.
74A Financial assistance in respect of legal representation in closure of seas applications
(1) Where, in accordance with a law of the Northern Territory of a kind referred to in paragraph 73(1)(d):
(a) an application is made to the Administrator of the Northern Territory with respect to the regulation or prohibition of the entry of persons into, or the control of fishing or other activities in, waters of the sea, including waters of the territorial sea of Australia, adjoining, and within 2 kilometres of, Aboriginal land;
(b) a matter to which that application relates is referred by the Administrator of the Northern Territory to a Commissioner for inquiry and report; and
(c) a person (not being a person by whom, or on whose behalf, the application referred to in paragraph (a) has been made) or an unincorporated association of persons wishes to be, or is, legally represented at the inquiry held by the Commissioner into the matter so referred to him or her;
that person or association may apply to the Attorney‑General for the provision of assistance under this section in respect of the costs of such representation at that inquiry.
(2) Where a person or association makes application to the Attorney‑General in accordance with subsection (1), the provisions of subsections 54C(2) and (3) apply to and in relation to the application so made as if it were an application made by that person or association under and in accordance with the provisions of subsection 54C(1).
75 Application of miner’s right in relation to Aboriginal land
A miner’s right does not apply in relation to Aboriginal land, unless immediately before the land became Aboriginal land, the land was being occupied or used by virtue of the miner’s right.
76 Delegation by Minister
Delegation—except mining
(1) The Minister may, in writing, delegate to the Secretary of the Department, or an SES employee or acting SES employee in the Department, any of the Minister’s functions or powers under Part II, III, V, VI or VII, except those under section 19A.
Delegation—mining
(2) The Minister may, in writing, delegate to the Northern Territory Mining Minister any of the Minister’s functions or powers under Part IV, except those under these provisions:
(a) subsection 42(8) (about the consent to the grant of an exploration licence);
(b) subsection 43(6) (about determining an extension for negotiation in national interest cases);
(c) paragraph 45(b) (about the consent to the grant of a mining interest to an intending miner);
(d) paragraph 47(1)(e) (about determining whether the national interest does not require that exploration works should proceed);
(e) paragraph 47(3)(b) (about determining whether the national interest does not require that mining works or activities should proceed);
(f) paragraph 48C(1)(a) (about consenting to the application of the Atomic Energy Act 1953 or any other Act in relation to entry to land);
(g) subsection 48E(3) (about entry into an agreement on behalf of a Land Council);
(h) subsection 48F(1), to the extent that it applies in relation to a request made under subsection 44(4) (about the appointment of a Mining Commissioner in national interest cases);
(i) subsection 48G(1) (about tabling Proclamations).
(3) If a delegation under subsection (2) is made, the Northern Territory Mining Minister is taken to have executive authority to perform the delegated functions or exercise the delegated powers.
(4) If the Minister delegates the Minister’s function under subsection 41(2A) (about deciding extension requests for applications for consent to the grant of an exploration licence) to the Northern Territory Mining Minister, the Northern Territory Mining Minister may, in writing, delegate that function to another person.
(5) A function that is performed by a person under a delegation under subsection (4) is taken, for the purposes of this Act, to have been performed by the Minister.
77 Remuneration and allowances
(1) This section applies to:
(a) a member of a Land Council; and
(b) a member of a Land Trust; and
(c) a member of the Account Advisory Committee referred to in section 65.
(2) A person to whom this section applies shall be paid such remuneration as is determined by the Remuneration Tribunal, but, if no determination of that remuneration by the Tribunal is in operation, the person shall be paid such remuneration as is prescribed.
(3) A person to whom this section applies shall be paid such allowances as are prescribed.
(4) This section has effect subject to the Remuneration Tribunal Act 1973.
77A Consents of traditional Aboriginal owners
Where, for the purposes of this Act, the traditional Aboriginal owners of an area of land are required to have consented, as a group, to a particular act or thing, the consent shall be taken to have been given if:
(a) in a case where there is a particular process of decision making that, under the Aboriginal tradition of those traditional Aboriginal owners or of the group to which they belong, must be complied with in relation to decisions of that kind—the decision was made in accordance with that process; or
(b) in a case where there is no such process of decision making—the decision was made in accordance with a process of decision making agreed to and adopted by those traditional Aboriginal owners in relation to the decision or in relation to decisions of that kind.
77B Conduct by director, employees or agents
(1) Where, in a proceeding under this Act in respect of conduct engaged in by a body corporate, it is necessary to establish the state of mind of the body corporate, it is sufficient to show that a director, employee or agent of the body corporate, being a director, employee or agent by whom the conduct was engaged in within the scope of the person’s actual or apparent authority, had that state of mind.
(2) Any conduct engaged in on behalf of a body corporate:
(a) by a director, employee or agent of the body corporate within the scope of the person’s actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of a director, employee or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, employee or agent;
shall be deemed, for the purposes of this Act, to have been engaged in also by the body corporate.
(3) A reference in this section to the state of mind of a person includes a reference to the knowledge, intention, opinion, belief or purpose of the person and the person’s reasons for the person’s intention, opinion, belief or purpose.
77C Amendment of Schedule 1
(1) Subject to subsection (2), the regulations may amend Schedule 1 by modifying any description of an area of land in Part 2, 3, 4 or 5 of that Schedule and, on the commencement of an amendment, that Schedule has effect as so amended.
(2) Regulations for the purposes of subsection (1) may not modify the description of an area of land after title in the land has been vested in a Land Trust under this Act.
(3) In this section:
modifying includes the substitution of a description or diagram for another description or diagram.
78 Regulations
The Governor‑General may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to this Act and, in particular, prescribing penalties, not exceeding a fine of 6 penalty units, for offences against the regulations.