A new era for the ALRA The Northern Territory Aboriginal Investment Corporation and other changes

What you need to know

• The Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALRA)was significantly amended in December 2021.
• Co-designed with Land Councils, the Aboriginal Land Rights (Northern Territory) Amendment (Economic Empowerment) Act 2021 (Cth) introduced a suite of changes to the existing legislation. These changes included the establishment of a new, Aboriginal-controlled body called the Northern Territory Aboriginal Investment Corporation to invest money from the Aboriginals Benefit Account.  This body aims to promote the self-management, economic self-sufficiency, and social and cultural well-being of Aboriginal people in the Northern Territory. 
• The changes also streamline exploration and mining processes on Aboriginal land and institute 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 implementation of the ALRA amendments.  As the "highest water mark" in Australian Indigenous land right statutes, the ALRA is often used as a measure for native title and Indigenous heritage laws in other jurisdictions.  The changes introduce creative new approaches to broader goals around indigenous self-determination. What happens in the Territory impacts the rest of the country.
• Aboriginal businesses 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.
• Proponents planning to negotiate exploration, mining or other interests on Aboriginal land should consider the impact of the proposed process changes in the amended Act.
• If you access or have interests in Aboriginal land in the Northern Territory, you should ensure that you have regularised these arrangements through permits and Aboriginal land agreements.

On 1 December 2021, the Aboriginal Land Rights (Northern Territory) Amendment (Economic Empowerment) Bill 2021 (Cth) (Bill) was passed, bringing about significant changes to the scope and operation of the Aboriginal Land Rights (Northern Territory) Act 1976 (ALRA).

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).  These changes leave untouched the core historic aspects of the statute such as the grant of Aboriginal freehold tenures to land trusts. However, they introduce innovative approaches directed at goals around self-determination.  

According to the Federal 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 most significant aspect of the reforms is the establishment of 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 the 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 squarely 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, who will be 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.

While the provisions formally establishing the NTAI Corporation will not commence until 13 December 2022, the provisions supporting transitional arrangements, including the appointment of an interim board (and most of the other changes to the Act), commenced on 14 December 2021.

Reforms to the exploration and mining process

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

The changes 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; and
• remove the requirement for Ministerial consent for standard exploration licences that have been approved by traditional owners, while continuing to require Ministerial consent for high value proposals or the cancellation of exploration licences and mining interests. 

Importantly, the Bill leaves untouched traditional owners’ right to refuse 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 these reforms is a package of sensible and practical land administration amendments.

Conclusion

The promise of significant financial investment and significant Aboriginal ownership suggests an exciting future for the NTAI Corporation and its progress should be closely watched.  However, the Northern Territory is a notoriously difficult space for project development and as a new player on the investment scene, we expect it will take some time to see this promise translate into measurable results for the NTAI Corporation.  In the meantime, though, the practical reforms to the Act will have an immediate, positive impact on stakeholders involved with the administration of Aboriginal land in the Northern Territory.