Federal Government proposes significant reforms for the Aboriginal Land Rights

What you need to know

• Significant amendments to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALRA) are currently before Parliament.
• Co-designed with Land Councils, the Aboriginal Land Rights (Northern Territory) Amendment (Economic Empowerment) Bill 2021 (Cth) introduces a suite of changes, including the establishment of a new, Aboriginal-controlled body called the Northern Territory Aboriginal Investment Corporation to invest money from the Aboriginals Benefit Account to promote the self-management, economic self-sufficiency, and social and cultural well-being of Aboriginal people in the Northern Territory.  
• The Bill also streamlines exploration and mining processes on Aboriginal land and institutes a range of practical land administration reforms.  
• Traditional owners retain their right to grant or refuse consent to the grant of an exploration tenement.

What you need to do

• Stay informed about the ALRA amendments.  As the "highest water mark" in Australian Indigenous land right statutes, ALRA and these reforms may inform how native title and Indigenous heritage laws ultimately adjust in other State, and the Commonwealth, jurisdictions. 
• Businesses (Aboriginal businesses in particular) should monitor the development of the Northern Territory Aboriginal Investment Corporation closely to ensure opportunities for funding and investment can be maximised where alignment with strategic objectives exists.
• Where you are planning to negotiate exploration, mining or other interests on Aboriginal land, consider the impact of the proposed process changes in the Bill.
• Where you access or have interests in Aboriginal land ensure that you have regularised these arrangements through permits and Aboriginal land agreements.

The Aboriginal Land Rights (Northern Territory) Amendment (Economic Empowerment) Bill 2021 (Cth) (Bill) was introduced on 25 August 2021 and is currently being debated in the House of Representatives.

The Federal Government worked closely with the Northern Territory Land Councils to create a package of generational reforms to the Aboriginal Land Rights (Northern Territory) Act 1976 (ALRA).

According to the Minister for Indigenous Australians, these are the "the most far-reaching set of reforms to the land rights act since it was enacted in 1976—and almost 55 years to the day after the Wave Hill walk-off in 1966."

Establishment of the Northern Territory Aboriginal Investment Corporation

The centre-piece of the reforms is a new, Aboriginal-controlled body called the Northern Territory Aboriginal Investment Corporation (NTAI Corporation). 

Currently, the Minister for Indigenous Australians is responsible for approving beneficial payments from the Aboriginals Benefit Account (ABA) on the advice of the ABA Advisory Committee. 

The ABA was established by the ALRA to receive and distribute funds equivalent to the royalties generated from mining on Aboriginal land in the Northern Territory.

The ABA currently provides for operational funding for Land Councils, payments for traditional owners and other Aboriginal people affected by mining operations, funding for township leasing, administration of the ABA, and payments for the benefit of Aboriginal people living in the NT (beneficial payments). The funds in the ABA have grown significantly over the last couple of years as a result of increased mining activity on Aboriginal land and it currently holds $1.3 billion in royalty equivalents.  

The NTAI Corporation will replace the current beneficial payments process, putting funding decisions in the hands of Aboriginal people. The new corporation will be led by a board of eight Aboriginal representatives from the Northern Territory, two government appointed directors, and two independent directors, appointed by the board. 

The NTAI Corporation will receive an initial $500 million endowment from the ABA, $60 million per year during the first three years of its operation and subsequent funding each year.

With these assets the new corporation will be a significant new driver of economic investment in the Northern Territory. 

To hold the NTAI Corporation accountable at the local level, its investment priorities will be set out in a strategic investment plan based on consultations with Aboriginal people and organisations in the Northern Territory and tabled in the Parliament.

As a corporate Commonwealth entity, the NTAI Corporation's governance structures will also ensure accountability at the national level. A strong investment committee will provide business advice and support to the board.  Rules set by the Minister for Indigenous Australians and the Finance Minister will govern the new corporation's ability to loan, borrow and provide guarantees.  Investments over $100 million will require the written agreement of the Minister for Indigenous Australians (a higher amount may be determined by the Minister in the NTAI Corporation rules).

Reforms to the exploration and mining process

The Bill proposes reforms designed to streamline arrangements for exploration and mining on Aboriginal land, while protecting the interests of traditional owners.

The proposed amendments will:

• enable exploration licence applicants to amend their original applications in certain circumstances without being required to recommence the application process;
• give Land Councils greater flexibility to determine how traditional Aboriginal owners are consulted, with the agreement of the applicant in each case. This will support greater efficiency and cost savings, while retaining both the significant consultative and representative functions of Land Councils under the ALRA and traditional owners’ veto power;
• reduce the length of time for an application to be granted once traditional owner consent has been provided; and
• remove the requirement for Ministerial consent for standard exploration licences that have been approved by traditional owners, while maintaining Ministerial consent in relation to high value proposals or the cancellation of exploration licences and mining interests. 

Importantly, the Bill leaves untouched traditional owners’ right to consider granting or refusing exploration proposals on Aboriginal land. This powerful ‘veto’ right, and other rights under the ALRA, promote self-determination by ensuring traditional owners in the NT have a significant say in proposals and developments on Aboriginal land.  

Other reforms

The final component of this Bill is a package of sensible and practical land administration amendments.

The changes include:

• prescribing the nomination and approval processes and the funding arrangements for approved entities that may hold a township lease to promote good governance and transparency;
• providing that Land Councils may enter into agreements in respect of land that is the subject of a deed of grant held in escrow (this will facilitate agreement making on the Gove Peninsula in particular);
• increasing the amount at which Land Councils must seek Ministerial approval to enter into a contract from $1 million to $5 million (this will enable faster finalisation of low value land use agreements);
• improving the permit system for access to Aboriginal land by repealing the provision which provides that only the issuer of a permit under section 5 of the Aboriginal Land Act 1978 (NT) can revoke it;
• increasing the penalties for entering or remaining on Aboriginal land from 10 penalty units to 50 penalty units; 
• aligning the ABA with Northern Territory legislation for the payment of mineral royalties and clarifying the purposes of the ABA; and
• repealing unused powers for the delegation of Land Council functions to Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) corporations.  

Author: Rebecca Hughes, Senior Associate.