Effect on Other Laws
- Division 3 of Part 4 of the NTER Act deals with the effect of other laws in relation to land covered by Part 4 of the Act.
- Section 50(1) provides, inter alia, that Division 1 and 2 of Part 4 have effect despite any other law of the Commonwealth or Northern Territory; in particular, anything contained in the Lands Acquisition Act 1989 (Cth). The effect is to deny to Aboriginal people affected by the compulsory acquisition of a five year lease of their land or the resumption and forfeiture of town camps the important guarantees in relation to acquisition procedures and procedures for assessing compensation contained in the Lands Acquisition Act 1989. The NNTC considers such an approach to be discriminatory in the extreme. The NTER Act’s uncertain and conditional approach to compensation for the acquisition of interests in Aboriginal land is discussed further below.
- Section 51(1) provides that Part 2, Division 3 of the Native Title
Act 1993, which deals with future acts, does not apply to:
- either (i) the grant of a lease under s 31; or (ii) the vesting of rights, titles and interests in land subject to a lease under the SPLA or the CLA, including a lease for a town camp, under s 37;
- any act done by the Commonwealth, the Northern Territory or an Authority, within five-years from 18 August 2007, on land resumed or in respect of which a lease has been forfeited, in accordance with Division 2 of Part 4;
- any act done by the Commonwealth, the Northern Territory or an Authority on land in which a Commonwealth interest exists; and
- any act related to any of the above acts.
- The future acts regime in the NTA seeks to protect native title rights and interests by prescribing procedures which must be complied with by Commonwealth, State and Territory Governments before a future act can be validly done.
- In general terms, a future act is an act done after 1 January 1994 (the date of the commencement of the NTA) which affects native title: s 233 of the NTA. An act affects native title if it extinguishes or is otherwise wholly or partly inconsistent with the continued existence, enjoyment or exercise of native title rights and interests: s 227 of the NTA. The word “act” is defined widely in s 226(2) to include (a) the making, amendment or repeal of any legislation; (b) the grant, issue, variation, extension, renewal, revocation or suspension of a licence, permit, authority or instrument; (c) the creation, variation, extension, renewal or extinguishment of any interest in relation to land or waters; (d) the creation, variation, extension, renewal or extinguishment of any legal or equitable right, whether under legislation, a contract, a trust or otherwise; (e) the exercise of any executive power of the Crown in any of its capacities, whether or not under legislation; (f) an act having any effect at common law or in equity.
- Basically, Division 3 of Part 2 of the NTA provides that, to the extent that a future act affects native title, it will be valid if covered by certain provisions of Division 3, and invalid if not: s 24AA(2) NTA. In particular, a future act will be valid if the parties to indigenous land use agreements (“ILUAs”) consent to it being done: s 24AA(3). Different subdivisions in Division 3 relate to different types of activity, and provide other bases for the validity of future acts: namely, acts with non-claimant protection (Subdivision F); primary production (Subdivision G); managing aquatic resources, water and airspace (Subdivision H); renewals and extensions of permits etc (Subdivision I); acts involving parks (Subdivision J); public works (Subdivision K); low impact acts (Subdivision L); legislation, mining and compulsory acquisition (Subdivision M); and offshore acts (Subdivision N).
- Most subdivisions set out whether or not procedural rights are available,
to whom they must be afforded, and the content of those rights. Where procedural
rights are available, they vary according to the type of future act with
which the particular subdivision deals. However, the procedure provided
for by each of the subdivisions for the involvement in the validation process
of those with native title interests in the area in which the future act
is to be done is substantially the same. For example, in subdivision H,
s 24HA provides:
"Leases, licences, etc
(2) This section also applies to a future act consisting of the grant of a lease, licence, permit or authority under legislation that:
- is valid (including because of this Act); and
- relates to the management or regulation of:
- surface and subterranean water; or
- living aquatic resources; or
- airspace.
...
Notification
(7) Before an act covered by subsection (2) is done, the person proposing to do the act must:
- notify, in the way determined in writing by the Commonwealth Minister, any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the land or waters that will be affected by the act, or acts of that class, that the act, or acts of that class, are to be done; and
- give them an opportunity to comment on the act or class of acts.”
- The NNTC considers that the removal of the future acts regime, and the loss to those who hold, or who may hold, native title of the procedural rights afforded to them by the NTA’s future acts regime, constitutes an egregious and unjustified assault on the human rights, as well as hard won statutory rights of Aboriginal people in the Northern Territory.
- Of further concern is s 54 of the NTER Act, which provides for the Commonwealth Minister, by legislative instrument, to specify a law, or a provision of a law, of the Commonwealth, which law or provision has no effect to the extent that it would regulate, hinder or prevent the doing of an act in relation to the affected land. Section 54 is a so-called “Henry VIII clause” which permits the Minister to bypass Parliament by preventing a law or provision of a law from applying to Aboriginal land and land in which Aboriginal peoples have interests. The NNTC considers it essential that there be parliamentary scrutiny of and accountability in relation to any suspension of laws as they apply only to Aboriginal land.