Aboriginal Land Rights (Northern Territory) (Townships) Instrument 2022

EXPLANATORY STATEMENT

Issued by the authority of the Minister for Indigenous Australians

Aboriginal Land Rights (Northern Territory) Act 1976

Aboriginal Land Rights (Northern Territory) (Townships) Instrument 2022

Overview

Township land, for the purposes of the Aboriginal Land Rights (Northern Territory) Act 1976 (the Act), was formerly prescribed by the Aboriginal Land Rights (Northern Territory) Regulations 2007 (the Regulations). Item 41 of Part 4 in Schedule 3 to the Aboriginal Land Rights (Northern Territory) Amendment (Economic Empowerment) Act 2021 will, as of 13 December 2022, insert a new subsection 3AB(3A) into the Act to permit the Minister to prescribe areas of land as townships by legislative instrument.

The Aboriginal Land Rights (Northern Territory) Amendment (2022 Measures No. 1) Regulations 2022 will, as of 13 December 2022, repeal sections 5, 5AA, 5A, 6 and 6AA of the Regulations. These are the sections that prescribe township land. This land will be prescribed as township land by the Aboriginal Land Rights (Northern Territory) (Townships) Instrument 2022 (Townships Instrument) in identical terms to the land formerly prescribed as township land by the Regulations. Future township land will thereafter be prescribed by legislative instrument.

Commencement

The Townships Instrument commences on 13 December 2022.

Consultation

The Townships Instrument has been drafted in consultation with the Executive Director of Township Leasing; Northern Territory Land Councils; the Anindilyakwa Royalties Aboriginal Corporation; the Gundjeihmi Aboriginal Corporation Jabiru Town; the Ngarrariyal Aboriginal Corporation; and the Northern Territory Government.

Financial impact

Nil

ATTACHMENT A

Explanation of Regulations

Section 1- Name of Instrument

This instrument is the Aboriginal Land Rights (Northern Territory) (Townships) Instrument 2022 (Townships Instrument).

Section 2- Commencement

This section clarifies that the whole of the Townships Instrument will commence on 13 December 2022.

Section 3 - Authority

The instrument is made under subsection 3AB(3A) of the Aboriginal Land Rights (Northern Territory) Act 1976 (the Act).

Section 4 – Definitions

This section defines Act to mean the Aboriginal Land Rights (Northern Territory) Act 1976, for the purposes of the Townships Instrument. The section also provides that a reference in the instrument to a survey plan is a reference to the survey plan that has been approved by the Surveyor-General of the Northern Territory.

Section 5 - Township areas in relation to the Tiwi Aboriginal Land Trust

Section 5 prescribes the following areas of land in relation to the Tiwi Aboriginal Land Trust for the purposes of subsection 3AB(3) of the Act:

1. Wurrumiyanga, being the parcel of land on Bathurst Island with an area of approximately 454 hectares, being Northern Territory Portion 6798(A) delineated on Survey Plan S2007/183.

ii.                  Pirlangimpi, being the parcel of land on Melville Island with an area of approximately 1,075 hectares, being Northern Territory Portion 7363(A) delineated on Survey Plan S2014/211.

iii.                Wurankuwu, being the parcel of land on Bathurst Island with an area of approximately 840 hectares, being Northern Territory Portion 7086(A) delineated on Survey Plan S2010/229 and Milikapiti, being the parcel of land on Melville Island with an area of approximately 544.4 hectares, being Northern Territory Portion 7087(A) delineated on Survey Plan S2010/230, prescribed as a single area.

Section 6 - Township area in relation to the Anindilyakwa Land Trust

Section 6 prescribes the following parcels of land as a single area of land in relation to the Anindilyakwa Land Trust, for the purposes of subsection 3AB(3) of the Act:

1. Angurugu, the parcel of land on Groote Eylandt with an area of approximately 150 hectares, being Northern Territory Portion 7006(A) delineated on Survey Plan S2007/180

ii.                  Umbakumba, the parcel of land on Groote Eylandt with an area of approximately 314 hectares, being Northern Territory Portion 7008(A) delineated on Survey Plan S2007/181

iii.                Milyakburra, the parcel of land on Bickerton Island with an area of approximately 510 hectares, being Northern Territory Portion 7007(A) delineated on Survey Plan S2007/207

iv.                Four Mile, the parcel of land on Groote Eylandt with an area of approximately 19.14 hectares, being Northern Territory Portion 7996(A) delineated on Survey Plan S2022/017

v.                   Little Paradise, the parcel of land on Groote Eylandt with an area of approximately 5.85 hectares, being Northern Territory Portion 7997(A) delineated on Survey Plan S2022/018

vi.                Malkala, the parcel of land on Groote Eylandt with an area of approximately 14.26 hectares, being Northern Territory Portion 7998(A) delineated on Survey Plan S2022/019

vii.              Bartalumba Bay, the parcel of land on Groote Eylandt with an area of approximately 7.86 hectares, being Northern Territory Portion 7999(A) delineated on Survey Plan S2022/020

Section 7 - Township area in relation to the Arnhem Land Aboriginal Land Trust

Section 7 prescribes the parcel of land known as Gunyangara, being the parcel of land in the Northern Territory with an area of approximately 376.2 hectares, being Northern Territory Portion 7560(A) delineated on Survey Plan S2016/039, as an area in relation to the Arnhem Land Aboriginal Land Trust, for the purposes of subsection 3AB(3) of the Act. 

ATTACHMENT B

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) (Townships) Instrument 2022

The Aboriginal Land Rights (Northern Territory) Townships Instrument 2022 (Townships 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 of the Disallowable Legislative Instrument

The Townships Instrument will, as of 13 December 2022 prescribe township land previously prescribed in sections 5, 5AA, 5A, 6 and 6AA the Aboriginal Land Rights (Northern Territory) Amendment Regulations 2022. Future township land will thereafter be prescribed by legislative instrument.

Human rights implications

This statement of compatibility includes an assessment of whether the Amendment Regulations are compatible with human rights. ‘Human rights’ include the following rights and freedoms, recognised or declared by the following international instruments: 

The Right to Self-Determination

1. The right to self-determination is set out in Article 1 of the International Covenant on Civil and Political Rights (ICCPR) and Article 1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).
2. The right to self-determination entails 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’.
3. The right is also contained in Articles 3 and 4 of the UNDRIP. Article 4 specifically notes that in exercising the right to self-determination, Indigenous peoples have ‘the right to autonomy … as well as ways and means for financing their autonomous functions’. UNDRIP does not create legally binding obligations, but informs the way governments engage with and protect the rights of Indigenous peoples. Article 18 provides that ‘Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions’.
4. The Townships Instrument facilitates the self-determination of Indigenous Australians through the promotion of township leasing. There is cultural and economic value in promoting township leasing as it provides traditional owners with greater decision-making and control over land.
5. Future township land will be prescribed by the Minister by legislative instrument. This is a more expedient and accessible way for the Minister to prescribe additional township land, or varying existing township leases, promoting self-determination.

The right to enjoy and benefit from culture

1. The right to enjoy and benefit from culture is contained in Article 27 of the ICCPR and Article 15 of the ICESCR.
2. Article 27 of the ICCPR protects the rights of individuals belonging to ethnic, religious and linguistic minorities in a country to enjoy their own culture, practice their own religion and use their own language. The UN Human Rights Committee has stated that ‘the enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them’.
3. Prescribing township land through the Townships Instrument will further assist in the promotion of cultural heritage. Township Land provides a mechanism to ensure that Traditional Owners can receive an economic return from their land through economic development opportunities and the collection of rent. This will assist in continuing to develop a strong cultural economy.
4. The right to enjoy and benefit from culture is furthered in parallel with the promotion of self-determination.

Conclusion

The Townships Instrument is compatible with human rights as the provisions that engage human rights would promote the right to self-determination and would indirectly promote the right to enjoy and benefit from culture.