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Rights in Construction Areas and Infrastructure: Displacement of Traditional Rights of Use and Occupation

  1. Of further concern to the NNTC is Schedule 3 to the Families, Communities Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth) (“the FCSIA(NTNER) Act”) which amended the ALRA, by inserting Part IIB under the heading “Statutory rights over buildings or infrastructure”.
  2. Part IIB of the ALRA now provides for the acquisition by the Commonwealth, the Northern Territory, and Commonwealth and Territory authorities, of extensive statutory rights in relation to areas of Aboriginal land referred to as “construction areas”. The relevant provisions of Part IIB of the ALRA are Division 1 (Preliminary), Division 2 (Commonwealth rights) and Division 3 (Northern Territory rights). A “construction area” is an area of Aboriginal land held by an Aboriginal Land Trust for an estate in fee simple which:
    1. the Commonwealth Minister has identified in a determination under subparagraph 20U(1)(a)(ii); or
    2. the Chief Minister of the Northern Territory or a delegate of the Chief Minister has identified in a determination under subparagraph 20ZF(1)(a)(ii).
  3. The statutory rights are acquired by the relevant funding body (relevantly, the Commonwealth, the Northern Territory or a Commonwealth or Territory authority) where:
    1. works are proposed to be carried out on a construction area; and
    2. the Aboriginal Land Council for the area in which the land is situated consents in writing;
    3. immediately before the Land Council consents the area is not covered by a lease under s 19 or 19A of the ALRA; and
    4. the Commonwealth, the Northern Territory or one of their authorities wholly or partly funds the works.
  4. The works must be the construction of one or more buildings or infrastructure; or the major alteration, extension, restoration, refurbishment or fitting out of one or more buildings or infrastructure, the total estimated cost of which exceeds $50,000.
  5. The statutory rights acquired by the funding body in relation to the construction area are as follows (ss 20W(2) and 20ZH(2)):
    1. the right to carry out the works on a part of the construction area in the same, or substantially the same, form that was proposed;
    2. the right to occupy, use, maintain, repair or replace the buildings or infrastructure covered by the works;
    3. the right to occupy or use any other part of the construction area;
    4. the right to construct, maintain, repair or replace minor improvements on any part of the construction area;
    5. the right to provide services to any part of the construction area.
  6. Significantly, the statutory rights acquired by the funding body in relation to the construction area are exclusive: s 20W(3), s 20ZH(3). During the period a person has the statutory rights, the buildings or infrastructure is taken to be the property of the person. A person who has the statutory rights may permit, in writing, a person or persons to exercise some or all of the statutory rights in relation to the whole or a part of the construction area.
  7. Of particular concern to the NNTC are the amendments made by Schedule 3 to the FCSIA(NTNER) Act” to s 71 of the ALRA. Prior to its amendment, s 71 of the ALRA provided:

    “(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.”

  8. The FCSIA(NTNER) Act amended s 71 by inserting the following two additional sub-sections:

    “(3) A reference in this section to an estate or interest in Aboriginal land includes a reference to the statutory rights a person has under section 20W, 20X, 20ZH or 20ZI or a person may exercise under section 20Y or 20ZJ.

    (4) Subsection (3) does not limit section 66.”

  9. The NNTC has seen no explanation for the displacement of the protection otherwise provided in s 71 of the ALRA to the traditional rights of use and occupation of Aboriginal land in which a funding body has acquired statutory rights under Part 1IIB of the ALRA. Section 71, prior to its amendment, provided an important measure of recognition of Aboriginal laws and custom in relation to Aboriginal land. The construction of a building or infrastructure on that land can not justify the legislatively sanctioned flouting of such laws and customs.

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