Compulsory Five Year Leases
- The NNTC considers that one of the most discriminatory aspects of the
NTER measures are those provisions which advance a land reform agenda unrelated
to the protection of children from those who abuse them. These include,
in particular, provisions in Division 1 of Part 4 of the NTER Act which
provide for the compulsory acquisition by the federal government of five
year leases over Aboriginal land.
- On 18 August 2007, the day after the NTER Act received Royal Assent,
the Commonwealth compulsorily acquired, by force of s 31(1)(a), the land
referred to in Parts 1 to 3 of Schedule 1, namely 47 specified areas of
Aboriginal land, 16 specified community living area, Canteen Creek, and
Nauiyu (Daly River).
- Once prescribed by regulation, the Commonwealth will compulsorily acquire
a five-year lease over any other Aboriginal land in the
Northern Territory (within the meaning of s 3(1)(a) of the ALRA), land granted
to an association under s 46(1A) of the Lands Acquisition Act (NT)
(so-called community living areas), and land in which, as at 18 August 2007,
an estate in fee simple or a lease was held by the Aputula Social Club Incorporated,
the Aputula Housing Association, the Daguragu Community Government Council
or the Pine Creek Aboriginal Advancement Association Inc: see s 31(1)(b).
- Pursuant to s 35(1), under the compulsory five-year lease the Commonwealth
gains “exclusive possession and quiet enjoyment of the land’”
while the lease is in force. This is subject to:
- any pre-existing right, title or other interest that is preserved;
- the granting of a lease of a township for 99 years by an Aboriginal
Land Trust under s 19A of the ALRA; and
- the granting of a lease under s 19 of the ALRA.
- Pursuant to s 35(5), the Commonwealth may, at any time, sublease, license,
part with possession of, or otherwise deal with its interest in the five-year
lease.
- Pursuant to s 36, the Commonwealth Minister may determine additional
terms and conditions of the lease and may vary these. Whilst a determination
of other terms and conditions, and a variation, are legislative instruments,
the provisions in the Legislative Instruments Act 2003 allowing
Parliament to disallow the legislative instrument are excluded: s 36(2).
This precludes scrutiny by Parliament of the instrument giving effect to
the Minister’s decision.
- On 17 August 2007, the Commonwealth Minister made a determination of
additional terms and conditions for compulsory five-year leases granted
under Section 31 of the NTER Act. The determination came into effect on
18 August 2007. The additional terms and conditions are that the federal
government:
- is entitled to use, and permit the use of, the land under lease for
any use the federal government considers is consistent with the fulfillment
of the object of the NTER Act;
- is entitled to enter and access, and permit entry to and access to:
- all buildings, structures, fixtures, fittings, plant and equipment,
signs and other items which are on or under the land under lease;
and
- all utilities and services which are on or under the leased land,
including sewerage, drainage, water, electricity, gas and telecommunications
services.
- may carry out any activity on or in relation to the leased land consistent
with fulfillment of the object of the NTER Act.
- Section 37(1)(a) provides that the Minister may, at any time, terminate
a right, title or interest in which exists immediately before the time that
the lease takes effect. The Note to s 37(1) provides that compensation “might
be payable” under s 60 if the Commonwealth terminates a right,
title, interest or lease under s 37 (as to compensation, see below).
- Division 3 of Part 2 of the NTA (the future acts regime) does not apply
to the grant of a lease under s 31: s 51(a)(i).
- The NNTC considers that the provisions of the NTER Act in relation to
compulsory five-year leases have wide-ranging and unacceptable implications
for Aboriginal human rights. These include:
- the exposure of all Aboriginal land in the Northern Territory to
the non-consensual imposition of a five-year lease to the Commonwealth
government;
- the absence of any unqualified guarantee of compensation on just
terms (see further below);
- the disapplication to Aboriginal interests in land of the conventional
procedures for the acquisition of interests in land under the Lands
Acquisition Act 1989 (Cth), and the Lands Acquisition Act
(NT);
- the disapplication of the future acts regime in Division 3 of Part
2 of the NTA (see further below);
- the capacity of the Commonwealth Minister to make far-reaching decisions
in relation to Aboriginal land, including to determine additional terms
and conditions, for which he or she is not answerable to Parliament.
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