EXPLANATORY STATEMENT
Issued by authority of the Minister for Indigenous Australians
Aboriginal Land Rights (Northern Territory) Act 1976
Aboriginal Land Rights (Northern Territory) (Jabiru Town Land) Instrument 2021
Overview
- The primary purpose of the Aboriginal Land Rights (Northern Territory) Act 1976 (the Act) is to provide for the granting of Aboriginal land in the Northern Territory (NT) for the benefit of Aboriginal people. The purpose of the Aboriginal Land Rights (Northern Territory) (Jabiru Town Land) Instrument 2021 (the Instrument) is to specify the land that will be granted to the Kakadu Aboriginal Land Trust (the Land Trust) under section 12 of the Act and that will be the subject of a township lease pursuant to section 19A of the Act.
2. The Instrument is made under subsection 3AC(2) of the Act. Subsection 3AC(1) of the Act says that for the purpose of the Act, Jabiru town land means the land specified in an instrument under subsection (2). Subsection 3AC(2) of the Act says that the Minister must, by legislative instrument, specify the land for the purposes of subsection (1).
3. The Instrument confirms that all that land in the NT of Australia comprising the whole for former NT Portion 2272 delineated on Survey Plan S79/31 (refer to attachment below) lodged with the Surveyor-General, Darwin, and containing an area of approximately 1297 hectares is specified as Jabiru town land.
4. In accordance with subsection 3AC(3) of the Act, before making the Instrument under subsection (2), the Minister had regard to the boundaries of the land comprising the whole of former NT 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). Subsection 12(3A) of the Act provides that a deed of grant shall be expressed to exclude from a grant under section 12, in respect of Schedule 1 land, any land on which there is a road over which the public has a right of way.
Background
5. The Jabiru township was established in 1981 to service the Ranger Uranium Mine. The township is part of the Kakadu National Park, on freehold land leased from the Director of National Parks (Director) to the Jabiru Town Development Authority (JTDA). The mine ceased operations on 8 January 2021 and current leasing arrangements are set to expire on 1 July 2021.
6. In 2013, the Aboriginal Land Rights and Other Legislation Amendment Act 2013 added the town of Jabiru and two adjacent portions of NT land to Schedule 1 of the Act to enable the land to be granted as Aboriginal land to the Land Trust. It provided that the land would not be granted as Aboriginal land until lease arrangements for the Jabiru town land were put in place. Section 3AC permitted the Jabiru town land to be specified without having to make regulations or amend Schedule 1 of the Act.
7. The delivery of the deed of grant will mean that the Director’s estate in fee simple in the Jabiru town land will cease (pursuant to subsection 12(2A) of the Act). In addition, pursuant to subsection 12(2AB) of the Act, if a deed of grant is delivered to the Land Trust under subsection 12(1AD), then, at the time the deed of grant takes effect, the lease of the Jabiru township by the Director to the JTDA ceases to exist.
8. Subsection 12(3A) requires that the deed of grant be expressed to exclude from the grant a road over which the public had, at the time of the commencement of section 3, and at the time of the execution of the deed of grant, a road over which the public has a right of way. As a result, the roads in Jabiru will remain vested in the Director.
9. There is a mechanism in the Act for the Northern Land Council (NLC) to enter into an agreement that identifies the roads excluded from the grant of Aboriginal land (section 12AA). Alternatively, the Supreme Court of the NT has jurisdiction, at the suit of the NT Government or the NLC, to make an order declaring that a part of the land is a road over which the public, at the time of the commencement of section 3 or at the time of the execution of the deed of grant, had a right of way (section 12AB).
10. The Instrument is a legislative instrument for the purposes of the Legislation Act 2003.
11. The Instrument is subject to subsection 33(3) of the Acts Interpretation Act 1901 (AI Act). Under subsection 33(3) of the AI Act, where an act confers a power to make, grant or issue any instrument of a legislative or administrative character (including, rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Commencement
12. The Instrument commences the day after it is registered on the Federal Register of Legislation.
Consultation
13. In accordance with subsection 3AC(4) of the Act, before making the Instrument under subsection (2), the Minister must consult the NT Government 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.
14. In November 2020, the National Indigenous Australians Agency commenced officer-level meetings with the NT Government, NLC and Gundjeihmi Aboriginal Corporation Jabiru Town (GACJT) in relation to the Instrument.
15. Before making the Instrument, the Minister consulted on a draft of the Instrument with the NT Government, NLC, GACJT and Director.
Explanation of the Instrument
Aboriginal Land Rights (Northern Territory) (Jabiru Town Land) Instrument 2021
Section 1 – Name
- The name of the Instrument is the Aboriginal Land Rights (Northern Territory) (Jabiru Town Land) Instrument 2021 (Instrument).
Section 2 – Commencement
2. The Instrument commences on the day after it is registered on the Federal Register of Legislation.
Section 3 – Authority
3. The Instrument is made under section 3AC of the Aboriginal Land Rights (Northern Territory) Act 1976 (the Act).
Section 4 – Definitions
4. Section 4 contains a definition of the word ‘Act,’ which is used throughout the instrument.
Section 5 – Jabiru town land
5. The Instrument specifies all that land in the Northern Territory of Australia comprising the whole of former Northern Territory Portion 2272 delineated on Survey Plan S79/31 lodged with the Surveyor-General, Darwin, and containing an area of approximately 1297 hectares is specified as Jabiru town land.
6. The Note below section 5 clarifies that subsection 12(3A) of the Act provides that a deed of grant shall be expressed to exclude from a grant under section 12, in respect of Schedule 1 land, any land on which there is a road over which the public has a right of way.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Aboriginal Land Rights (Northern Territory) (Jabiru Town Land) Instrument 2021
- The Aboriginal Land Rights (Northern Territory) (Jabiru Town Land) Instrument 2021 (Instrument) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview
2. The primary purpose of the Aboriginal Land Rights (Northern Territory) Act 1976 (the Act) is to provide for the granting of Aboriginal land in the Northern Territory (NT) for the benefit of Aboriginal people. The purpose of the Instrument is to specify the land that will be granted to the Kakadu Aboriginal Land Trust (the Land Trust) under section 12 of the Act and that will be the subject of a township lease pursuant to section 19A of the Act.
3. The Instrument is made under subsection 3AC(2) of the Act. Subsection 3AC(1) of the Act says that for the purpose of the Act, Jabiru town land means the land specified in an instrument under subsection (2). Subsection 3AC(2) of the Act says that the Minister must, by legislative instrument, specify the land for the purposes of subsection (1).
4. The Instrument confirms that all that land in the NT of Australia comprising the whole for former NT Portion 2272 delineated on Survey Plan S79/31 (refer to attachment below) lodged with the Surveyor-General, Darwin, and containing an area of approximately 1297 hectares is specified as Jabiru town land.
5. In accordance with subsection 3AC(3) of the Act, before making the Instrument under subsection (2), the Minister had regard to the boundaries of the land comprising the whole of former NT 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). Subsection 12(3A) of the Act provides that a deed of grant shall be expressed to exclude from a grant under section 12, in respect of Schedule 1 land, any land on which there is a road over which the public has a right of way.
Background
6. The Jabiru township was established in 1981 to service the Ranger Uranium Mine. The township is part of the Kakadu National Park, on freehold land leased from the Director of National Parks (Director) to the Jabiru Town Development Authority (JTDA). The mine ceased operations on 8 January 2021 and current leasing arrangements are set to expire on 1 July 2021.
7. In 2013, the Aboriginal Land Rights and Other Legislation Amendment Act 2013 added the town of Jabiru and two adjacent portions of NT land to Schedule 1 of the Act to enable the land to be granted as Aboriginal land to the Land Trust. It provided that the land would not be granted as Aboriginal land until lease arrangements for the Jabiru town land were put in place. Section 3AC permitted the Jabiru town land to be specified without having to make regulations or amend Schedule 1 of the Act.
8. The delivery of the deed of grant will mean that the Director’s estate in fee simple in the Jabiru town land will cease (pursuant to subsection 12(2A) of the Act). In addition, pursuant to subsection 12(2AB) of the Act, if a deed of grant is delivered to the Land Trust under subsection 12(1AD), then, at the time the deed of grant takes effect, the lease of the Jabiru township by the Director to the JTDA ceases to exist.
9. Subsection 12(3A) requires that the deed of grant be expressed to exclude from the grant a road over which the public had, at the time of the commencement of section 3, and at the time of the execution of the deed of grant, a road over which the public has a right of way. As a result, the roads in Jabiru will remain vested in the Director.
10. There is a mechanism in the Act for the Northern Land Council (NLC) to enter into an agreement that identifies the roads excluded from the grant of Aboriginal land (section 12AA). Alternatively, the Supreme Court of the NT has jurisdiction, at the suit of the NT Government or the NLC, to make an order declaring that a part of the land is a road over which the public, at the time of the commencement of section 3 or at the time of the execution of the deed of grant, had a right of way (section 12AB).
11. The Instrument is a legislative instrument for the purposes of the Legislation Act 2003.
12. The Instrument is subject to subsection 33(3) of the Acts Interpretation Act 1901 (AI Act). Under subsection 33(3) of the AI Act, where an act confers a power to make, grant or issue any instrument of a legislative or administrative character (including, rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Consultation
13. In accordance with subsection 3AC(4) of the Act, before making the Instrument under subsection (2), the Minister must consult the NT Government 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.
14. In November 2020, the National Indigenous Australians Agency commenced officer-level meetings with the NT Government, NLC and Gundjeihmi Aboriginal Corporation Jabiru Town (GACJT) in relation to the Instrument.
15. Before making the Instrument, the Minister consulted on a draft of the Instrument with the NT Government, NLC, GACJT and Director.
Human rights implications
16. The Instrument engages the following rights:
- the right to enjoy and benefit from culture in Article 27 of the International Covenant on Civil and Political Rights (ICCPR) and Article 15 of International Covenant on Economic, Social and Cultural Rights (ICESCR);
- the right to self-determination in Article 1 of ICCPR and Article 1 of the ICESCR; and
- the rights of equality and non-discrimination in Articles 2, 16 and 26 of the ICCPR and Article 2 of the International Convention on the Elimination of all forms of Racial Discrimination (CERD).
17. The effect of the Instrument is to specify ‘Jabiru town land’, which will be granted to the Land Trust under section 12 of the Act and that will be the subject of a township lease pursuant to section 19A of the Act.
18. Connection to land and careful maintenance of ‘country’ are foundational aspects of traditional owners’ belief and culture, intrinsically connected to many other cultural practices. Enabling recognition of enduring Indigenous practices on traditional lands, through legal recognition of entitlement to the land itself, promotes those key human rights listed above.
Right to enjoy and benefit from culture
19. The right to enjoy and benefit from culture is contained in Article 27 of the ICCPR and Article 15 of the ICESCR. Article 27 of the ICCPR protects the rights of individuals belonging to minorities within a country to enjoy their own culture. Article 15 of the ICESCR protects the right of all persons to take part in cultural life.
20. The United Nations Human Rights Committee (UNHRC) has stated that culture can manifest itself as a particular way of life associated with the use of land resources, especially in the case of Indigenous peoples, which may include such traditional activities as fishing or hunting and the right to live on lands protected by law.[1]
21. The United Nations Committee on Economic, Social and Cultural Rights (UNCESCR) has stated that Indigenous peoples’ cultural values and rights associated with their ancestral lands and their relationship with nature should be regarded with respect and protected.[2] UNCESCR has also provided guidance on the communal and individual aspects of the right to culture, in particular that the reference to ‘everyone’ in Article 15 of the ICESCR may denote either individual or collective rights to culture.[3] UNCESCR has noted, in particular, that Indigenous peoples have the right to act collectively to protect their cultural heritage, traditional knowledge and cultural expressions.[4]
22. The Act, as a whole, promotes the right to enjoy and benefit from culture by recognising the Aboriginal system of land ownership by traditional owners and providing ways for them to own, control and use the resources of their land. Aboriginal land is a form of ‘inalienable’ freehold, which means it cannot be bought or sold. By restoring Aboriginal land to the traditional owners, the Act has enabled them to maintain, and in some cases re-establish, their cultural identity. In addition, the Act has given some security to those who have set up outstations on their ancestors’ country.
23. The Act establishes strong consultation and consent protocols that provide for traditional decision-making in respect of Aboriginal land. Aboriginal land is held communally by a land trust, and traditional owners make decisions for and manage their land with the help of their Land Council. The Act defines ‘traditional Aboriginal owners’ as 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 responsibility for that site and for the land; and (b) are entitled by Aboriginal traditional to forage as of right over that land.’
24. A township lease is an innovative form of land tenure that allows traditional owners to maximise the economic potential of their land without compromising the land’s ownership, which remains Aboriginal owned. The Act was amended in 2006, 2007, 2013 and 2020 to provide for section 19A township leases, which cover entire community areas on Aboriginal land and often include vacant land for future development. Township leases may be held by the Commonwealth (through the Executive Director of Township Leasing) or by an Aboriginal corporation that represents traditional owners and the community. A township lease is a long term and voluntary agreement.
25. On 23 November 2020, GACJT was approved by the Minister for Indigenous Australians as the entity that would hold the Jabiru Township Lease. GACJT is an Aboriginal corporation established under the Corporations (Aboriginal and Torres Strait Islander) Act 2006.
26. The Instrument continues to promote the right to enjoy and benefit from culture by specifying the ‘Jabiru town land’, which will be granted to the Land Trust under section 12 of the Act and that will be the subject of a township lease pursuant to section 19A of the Act. The grant and lease of the Jabiru town land will facilitate increased traditional owner engagement and connection to the Jabiru town land.
Right to self-determination
27. The right to self-determination, as set out in Article 1 of the OCCPR and Article 1 of the ICESCR, provides for the entitlement of peoples to have control over their destiny and to be treated respectfully. This includes peoples being free to collectively pursue their economic, social and cultural development without outside interference. The right to self-determination is a collective right applying to groups of ‘peoples’. This is in contrast to the right to culture, which protects the rights of individuals within a group.
28. The principles contained in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) are also relevant to this Instrument. While UNDRIP is not included in the definition of ‘human rights’ under the Human Rights (Parliamentary Scrutiny) Act 2011, it provides some useful context on how human rights standards under international treaties apply to Indigenous peoples. UNDRIP provides for the process of ‘free, prior and informed consent’, by which Indigenous peoples are consulted about and participate in actions affecting them.
29. The Act promotes the right to self-determination by recognising the right of traditional owners to ownership of their land, thereby restoring their ability to speak for, manage and utilise Aboriginal land. The terms of township leases are negotiated by the relevant Land Council, as a representative of the traditional owners. The traditional owners are also required to provide their informed consent prior to agreeing to the final terms of a township lease. The Act also upholds the collective nature of decision-making in relation to Aboriginal land, consistent with the right to self-determination.
30. The Instrument continues to promote the right to self-determination by specifying the ‘Jabiru town land’, which will be granted to the Land Trust under section 12 of the Act and that will be the subject of a township lease pursuant to section 19A of the Act. Granting the Jabiru town land to the Land Trust will provide the traditional owners with the decision-making authority for a number of important interests and activities on the land. In addition, the Instrument will assist the traditional owners to derive increased and continued economic benefit from tourism opportunities arising from nearby Kakadu National Park.
Rights of equality and non-discrimination
31. The rights of equality and non-discrimination are contained in Articles 2, 16 and 26 of the ICCPR, Article 2 of the ICESCR and Article 5 of the CERD. These rights recognise that all human beings have the right to be treated equally and not to be discriminated against. Of particular relevant, the CERD establishes a general prohibition on racial discrimination. The Racial Discrimination Act 1975 (RD Act) implements the prohibition in Australian domestic law.
32. Subsection 8(1) of the RD Act, in accordance with Article 1(4) of the CERD, allows ‘special measures’, which are designed to ensure advancement of certain groups. Special measures are an exception to the general prohibition on racial discrimination and are designed to ‘secure to disadvantaged groups the full and equal enjoyment of human rights and fundamental freedoms.’[5] For a measure to be characterised as a ‘special measure’ it must:
- be for a particular group or individuals;
- be taken for the sole purpose of securing the adequate advancement of that group of those individuals;
- be ‘necessary’; and
- not continue after its objective has been achieved.
33. The Instrument complements existing measures in the Act. Accordingly, it is characterised as a component of a broader special measure, being the Act in its entirety. Special measures are designed to ‘secure to disadvantaged groups the full and equal enjoyment of human rights and fundamental freedoms’ and are deemed not to be discrimination.
34. The Instrument is appropriate, adapted and proportionate and promotes the development of self-management and autonomy among traditional owners by facilitating the deed of grant and Jabiru Township Lease, which will enable the traditional owners to make key decisions about the management of the Jabiru township, which lies on their land.
Conclusion
35. The Instrument promotes human rights, in particular the right to enjoy and benefit from culture and from land, the right to self-determination and the rights of equality and non-discrimination for traditional owners. To the extent that it may limit human rights those limitations are reasonable, necessary and proportionate.
[1] UNHRC, CCPR General Comment No. 23: Article 27 (Rights of Minorities), 50th sess UN Doc CCPR/C/21/Rev.1/Add.5 (8 April 1994) [7].
[2] UNCESCR, General Comment No 21: Right of everyone to take part in cultural life (art. 15, para. 1(a) of the Covenant on Economic, Social and Cultural Rights), UN Doc E/C.12/GC/21 (21 December 2009) [36].
[3] Ibid [9], [37].
[4] Ibid [37].
[5] CERD, General Recommendation no. 32, The meaning and scope of special measures in the International Convention on the Elimination of All Forms [of] Racial Discrimination, CERD/C/GC/32 (24 September 2009) [11].