Compensation
- The unjustified and discriminatory attack of the property rights of Aboriginal people in the Northern Territory is further compounded by the NTER’s uncertain and conditional approach to compensation for the acquisition of interests in Aboriginal land.
- First, as noted above, s 50(1) has the effect of denying Aboriginal people affected by the compulsory acquisition of interests in their land the important procedural guarantees contained in the Lands Acquisition Act 1989.
- Second, s 60(2) provides that a “reasonable amount of compensation” will be paid for an acquisition of property to which section 51(xxxi) of the Constitution applies; that is, if the acquisition is one to which the constitutional entitlement to “just terms” compensation under s 51(xxxi) of the Constitution applies.
- Section 60(1) disapplies s 50(2) of the Northern Territory (Self Government) Act 1978 (Cth), which would otherwise have made for a statutory entitlement to just terms compensation in respect of any such acquisition.
- At present, it is uncertain whether section 51(xxxi) of the Constitution provides a constitutional entitlement to compensation for an acquisition of property in the Northern Territory. Under current High Court authority (Teori Tau v The Commonwealth (1969) 119 CLR 564, as limited by Newcrest Mining (WA) Limited v Commonwealth (1997) 190 CLR 513), there is no requirement to pay compensation for an acquisition of property where only the Territories power in s 122 of the Constitution is relied on. In the result, complex constitutional litigation may be necessary to establish whether there is any constitutional entitlement to “just terms” compensation under s 51(xxxi) of the Constitution in respect of any acquisition affected by virtue of the NTER Act.
- As the NNTC understands it, the Commonwealth's position, both prior to and after the change of the Federal Government, is to negotiate compensation under a process to be identified between the parties in due course. However, there has been no firm commitment to a timeframe. Moreover, the previous Minister for Indigenous Affairs suggested that compensation might be paid “in kind” from services and infrastructure.3 These are presumably the same basic services and infrastructure that Australians dwelling in less remote areas take for granted.
- In any event, the NNTC has seen no explanation as to why s 50(2) of the
Northern Territory (Self Government) Act 1978 (Cth) has been disapplied,
and the statutory procedures which apply to the acquisition of the property
rights of all other Australians displaced. Accordingly, despite claims by
the Government that there will be “just terms” compensation
for any compulsory acquisition of Aboriginal land or interest in land, the
NTER Act has been drafted to avoid, to the extent possible, the obligation
to compensate Aboriginal people in the Northern Territory and to ensure
that as little, if any, monetary compensation will be paid. The discrimination
in this approach is manifest. As Sean Brennan argued in the Gilbert and
Tobin Centre for Public Law’s submission to the Senate Legal and Constitutional
References Committee’s one day hearing into the proposed legislation:
“A non-Aboriginal property holder in the Northern Territory whose property rights are taken away by government has access to a statutory compensation regime. Why not accord the same respect to Aboriginal property rights in this instance? Why should traditional owners have to climb over numerous additional legal obstacles to obtain compensation, by proving that a constitutional ‘acquisition of property’ has occurred?
This relegates Aboriginal property rights to a lower level of legal protection. Whether intentional or not, it has the effect of capitalising upon numerous complexities and doubts surrounding the meaning of section 51(xxxi), to the advantage of the Commonwealth and to the disadvantage of Aboriginal people whose sole valuable asset is frequently their property rights.”
- The NNTC notes that on 1 July 2008, the Indigenous Affairs Legislation
Amendment Act 2008 (“IALA Act”) was assented
to, and hence commenced. The IALA Act, inter alia:
- amends s 19A of the ALRA to enable the grant of township leases for periods of between 40-99 years (presently, only leases for 99 years may be granted). The amendments also provide for rights of renewal of leases on expiry, up to a maximum of 99 years, and enable the Executive Director of Township Leasing, on request, to enter into and hold a lease or sub-lease on behalf of the Commonwealth;
- makes technical amendments to the 5-year leasing scheme established under the NTER Act, including amendments to facilitate negotiations over payments to traditional owners for compulsorily acquired interests; and
- enables the costs of administering township leases to be drawn from the Aboriginal Benefits Account.
- As to compensation, the IALA Act amends the NTER Act, inter alia, by
inserting the following new sub-sections before s 62(1) in relation to agreement
on amounts in respect of leases granted under s 31, and leases suspended
under s 40:
“(1A) The Commonwealth Minister and the relevant owner (the other party) (not being the Northern Territory) of land that is covered by a lease granted under section 31 may agree in writing on an amount to be paid by the Commonwealth to the other party.
(1B) The payment of the amount agreed under subsection (1A) may be made as a one off payment, or a periodic payment while the lease is in force, as agreed by the Commonwealth Minister and the other party.
(1C) Before the Commonwealth Minister and the other party agree on an amount under subsection (1A), the Commonwealth Minister may request the Valuer General (appointed under section 5 of the Valuation of Land Act of the Northern Territory) to determine an indicative amount for the purposes of subsection (1A). …
(1E) The Commonwealth Minister and the person (the other party) who holds a lease of land that is suspended under section 40 may agree in writing on an amount to be paid by the Commonwealth to the other party.
(1F) The payment of the amount agreed under subsection (1E) may be made as a one off payment, or a periodic payment while the lease is suspended, as agreed by the Commonwealth Minister and the other party.”
- Whilst the NNTC supports, in general terms, amendments to the NTER Act that facilitate just terms compensation for compulsorily acquired 5 year township leases, the NNTC considers it unsatisfactory that the enacted amendments specify no procedure or timeframe where the Commonwealth and other party are unable to agree on an amount, and that only the Commonwealth Minister (and not the other party) may request the Valuer General to determine an indicative amount for the purposes of subsection (1A).
- Moreover, the NNTC strongly objects to the use by the Federal Government of Aboriginal Benefits Account (“ABA”) funds to support the township leasing program. ABA funds are accumulated from royalties paid in respect of mining activities on Aboriginal freehold land. The ABA was established for the benefit of Aboriginal people in the Northern Territory, and provides an important source of funding for land councils and hence for self-determination of Aboriginal communities in the Northern Territory.
3. ‘Fast-track for intervention laws’, Sydney Morning Herald, 7 August 2007.