Aboriginal Lands Trust Bill 2013

Aboriginal Lands Trust Bill 2013 (No. 174)

Legislative Council in committee

Clause 1.

The Hon. I.K. HUNTER: I should report to the committee that a select committee of the Legislative Council was formed on this bill, as it was deemed to be a hybrid bill. The committee has met on four occasions, placed an advertisement inviting evidence from interested persons, and also heard evidence from a number of organisations. While there were no objections to the bill received by the committee, the committee was made aware of certain drafting omissions and has subsequently accepted to support my proposal to insert two amendments to deal with those issues, which I will explain when we come to them. The committee, therefore, is of the opinion that the bill is an appropriate measure and recommends that it be passed with those amendments.

 

The Hon. T.J. STEPHENS: On behalf of the Liberal Party, I would like to thank those people who made submissions to the hybrid select committee. Whilst a number of concerns were raised, the majority of people who did appear want us to pass this bill. The minister has indicated that he has some amendments, which we have been through and they seem sensible amendments. I believe that the Hon. Mr Parnell will move an amendment on behalf of the Hon. Tammy Franks and it looks as if it is our intention to possibly support that amendment.

 

Again, I want to acknowledge that this has been a long process. Again, we acknowledge that the bill is perhaps not perfect, but it is certainly an improvement, and we will continue to honour our commitment to support the government with its bill.

 

The Hon. M. PARNELL: I understand that South Australian Native Title Services has objected to the passage of this bill. Can the minister confirm whether a submission in those terms was received by the committee?

 

The Hon. I.K. HUNTER: The committee received a late submission from South Australian Native Title Services. I am not sure, from memory, whether they objected to the passage of the bill but they certainly did raise issues, and I think that is what the Hon. Mr Wade wants to speak about, so we will come to it shortly. They certainly raised issues about section 16AAA in the current act, so whether the Hon. Mr Parnell wants to deal with it now or when we get to clause 44—

 

The Hon. M. PARNELL: If it comes up, that is fine.

The Hon. I.K. HUNTER: Clause 44 then.

Clause passed.

Clauses 2 to 43 passed.

 

Clause 44.

The Hon. S.G. WADE: I specifically want to address the concerns raised by SANTS and other stakeholders. I should make it clear from the outset that this is an area of legal uncertainty, and the opposition will not be proposing an amendment to address the concerns but it wants to flag them and indicate that we need to be alert to the operation of this bill and that it may be necessary to revisit it.

 

As I said, the opposition wants to bring to the committee's attention the grave concerns of Aboriginal people, Aboriginal organisations and legal stakeholders in relation to the impact of the removal of section 16AAA in the Aboriginal Lands Trust Act. The reason I am speaking to clause 44 is that it specifically relates to the rights of native title holders, and section 16AAA of the act (which is being removed) relates to the same issue.

 

The concern in relation to section 16AAA was raised by the South Australian Native Title Services, the Aboriginal Legal Rights Movement, the Adnyamathanha Traditional Lands Association and the Law Society. If I could take the opportunity to address the Hon. Mark Parnell's query in relation to the position of SANTS, their submission to the select committee, dated 16 October states in part:

SANTS does not support the Bill because of the uncertainty it creates with respect to native title determinations pursuant to the NTA and native title processes generally.

 

I will go on to highlight the issue and do the best I can to put the concern on the record and to provide to the house some clarification that the government has kindly provided to me.

 

Section 16AAA of the Aboriginal Lands Trust Act was introduced by the Liberal government in 1998 to safeguard the coexistence of rights between native title holders and the trust. The then attorney-general, Trevor Griffin, resolved the ambiguity in favour of native title holders. He moved to insert section 16AAA to ensure that where a grant was made under the lands trust act there would be no effect on native title rights. The Law Society, in its submission to the consultation on this bill, address this issue in the following terms:

 

7. Section 16AAA was inserted into the current act to 'clarify that future vesting of land in the Aboriginal Lands Trust, or dealings with the land by the Trust, will not affect native title in the land. Some native title claimants have expressed the fear that their native title rights may be affected by transfers to the Trust. This Bill makes it clear that future transfers to the Aboriginal Lands Trust, and dealings with land by the Trust, will not affect or extinguish native title unless specifically agreed to by the native title holders. The new section expressly recognises the potential for the Trust to enter agreements with the holders of native title (and the Minister) under which native title may be affected or extinguished.'

 

It then quotes section 16AAA and goes on to say:

 

9. The purpose of inserting s 16AAA was to clarify that native title continues to exist when land is vested in the Trust except if there is an agreement with the Minister and the native title owners. This prevents the possibility of unintentionally extinguishing native title on Trust lands. In 1998, the insertion of s 16AAA was supported by the major parties and in the absence of further clarity we do not understand why it is being deleted. The Society is concerned that deleting s 16AAA from the Act will create an undesirable level of uncertainty and in the absence of s 16AAA, there is a possibility that native title may be extinguished in certain circumstances.

 

10. In particular, the Society draws attention to clause 38 of the Bill, which provides for the transfer of certain land to the Trust.

 

South Australian Native Title Services (SANTS) has also, as I said, provided a submission to the committee and on this particular issue made the following comments:

 

Clause 44 empowers the Trust to dispose of the freehold of Trust Land, where both Houses of Parliament agree and 'any other relevant requirements' under the NTA have been satisfied. It is not explicitly stated as to whether this is intended to mean there must be an ILUA when native title exists or may exist. Given that once land is within the Trust estate, any dealing with the land is not a 'future act'. The 'future act' regime provides a high degree of certainty as to when a 'future act' is valid (to the extent of affecting native title) and the consequences on native [title] of such an act in various different specified circumstances.

 

This inadequacy, as indicated is in a very small way bettered by the consultation process. Again, the consequences for native title are not explicit.

 

However the certainty (such as it was) offered by section 16AAA is not replicated in this Bill and this is a primary reason for SANTS to be concerned with the Bill. Section 16AAA of the Aboriginal Lands Trust Act 1966 (SA) (which was inserted into the Act and which commenced on 26/3/1998) provided that any freehold grant to the Trust after that date and any lease granted or other dealing by the ALT after that date (including a lease in relation to Trust land granted under freehold prior to that date) did not affect native title in any way.

 

Section 11 of the Native Title Act 1993 (Cth) states that 'native title is not able to be extinguished contrary to this Act.' The presence of this section does not necessarily provide a clear answer as to whether a new grant of freehold to the Trust as proposed under section 41 of the Bill or any subsequent dealing under section 44 (given they are not 'future acts') 'affects native title' (as defined in section 227 of the NTA), and if so, how e.g. by extinguishment, 'suppression' or otherwise.

 

They were indicative statements of a number we received in relation to a concern about the removal of section 16AAA. The government kindly provided members of the select committee a briefing note in relation to the government's view in relation to the effect of clause 44 and, if you like, the absence of an express provision in the bill protecting native title, such as section 16AAA in the Aboriginal Lands Trust Act. With the indulgence of the committee, I thought it would be helpful for that note to be put on the record:

 

  • · The legal interest in land vested in the trust by the Crown pursuant to the ALT Act 1966 is held by the trust for the benefit of Aboriginal people (including those living on those lands), some of whom are now identified as native title holders, but many of whom are not.
  • · The bill seeks to preserve all the concurrent multiple interests of Aboriginal people in the relevant trust land, namely, residents, traditional owners and native title holders.
  • · The provisions in the bill about dealing with land do not discriminate against any group on the basis of race. They seek to balance the various different interests of those Aboriginal persons in trust land, including native title interests.
  • · The existence of any native title interests in trust land and the ability under the Aboriginal Lands Trust Act 1966 to exercise those rights in relation to trust are not altered by the bill.
  • · The trust is the holder of the fee simple interests under the ALT Act 1966 and this will continue unaffected under the bill. However, the bill expressly requires the trust to consult with any persons with native title interest in the land. It is the state's view that this is not a diminishing of any native title interests in land for those under the 1966 act.
  • · The bill does not contain any provision extinguishing or purporting to extinguish any native title in relation to trust land.
  • · The bill is enabling, and it enables trust land to be transferred out of trust ownership on certain conditions; however, it is left to the Native Title Act 1993 to determine whether any particular transfer does or does not affect native title and, if it does, any relevant consequences.
  • · No provision or arrangements are in place for the purported extinguishment of native title rights and interests by virtue of the ALT bill.
  • · Section 16AAA was inserted in the ALT Act by an amendment that became operative on 26 March 1998. In the absence of clear law about the interaction of the 1966 ALT act with the relatively new Native Title Act 1993, the state was concerned to ensure that any transfers of land by the Crown to the ALT would not affect native title (refer subsection 16AAA(1)), nor would any dealing with land by the ALT while held by the ALT (16AAA(2)) irrespective of the nature of the transitions under the Real Property Act or any other law (refer 16AAA(4)) except by the agreement between the ALT, the minister and the NT parties (16AAA(3)).
  • · The position at law was subsequently overtaken by the commonwealth enactment of the Native Title Amendment Act 1998, which was assented to on 27 July 1998.
  • · This included what is now section 47, which clarified the status of native title in relation to trust land and provided that:
    • · If an application for a determination of native title is made, any extinguishment of native title caused by the transfer of freehold to the trust must be disregarded; and
    • · If native title is determined to exist in relation to the land, the non-extinguishment principle applies (section 238, Native Title Act).
    • · The non-extinguishment principle provides that while the land is held for the benefit of Aboriginal people under the relevant specific legislation (in this case the ALT Act), any native title rights and interests are not extinguished, but to the extent of any act affecting those rights and interests, those rights and interests are ineffective.

 

The briefing note continues:

 

  • · It is the view of parliamentary counsel that the commonwealth law now deals with relevant matters (it covers the field) and section 16AAA no longer has any work to do and ought to be removed.
  • · There is no intention on the part of the government to act in ways that might extinguish native title, including by the use of this legislation. Certainly if the Crown did propose to transfer any land to the trust in the future, each of the trust, the Crown and the parliament would need to consider very carefully any possible implications and the consequences (e.g. if there was existing native title over the land).

 

  • · In any event, it would be the state's actions in any particular case and the operation of commonwealth native title law that would determine the legal effect of a transfer of land to the trust.
  • · Subclause 44(3): in relation to possible transfers by the trust of an estate in fee simple in trust land, the state has taken the position that, other than land with the special statutory status given it by the commonwealth Native Title Act 1993 as 'Aboriginal/Torres Strait Islander land or waters' where the 'non-extinguishment principle' applies by virtue of commonwealth law (i.e. the APY lands, the MT lands and the trust lands under the respective acts) no other land in the state should, under state law, be held as freehold subject to native title.

I thank the minister and the government for that briefing note. As I indicated in the select committee—and I understand that my colleague the Hon. Terry Stephens concurs—in the context of a lack of legal clarity, we accept that somebody has to make a decision. The government has made a decision on the best advice available to it that section 16AAA is not required. We will, as I am sure the government will, maintain a watching brief to see whether further clarification is required in the future.

 

The Hon. I.K. HUNTER: Thank you to the Hon. Mr Wade for reminding me of the terms of the SANTS submission and also for his learned explanation of the law in terms of section 16AAA. He did a far superior job than I could have done.

 

The Hon. S.G. Wade: I read your brief.

 

The Hon. I.K. HUNTER: Yes, but you did it so very well. I am not schooled in the law, as most members know, so I will just place on the record a few other remarks that I have been given advice on from my advisers in relation to clause 44.

 

The legal interest in land vested in the trust by the Crown pursuant to the ALT Act 1966 is held by the trust for the benefit of Aboriginal people living on those lands, some of whom are now identified as native title holders but many of whom are not. The bill seeks to preserve all the concurrent multiple interests of Aboriginal people in relevant trust land, namely residents, traditional owners and native title holders.

 

The provisions in the bill about dealing with land do not discriminate against any groups on the basis of race; they seek to balance the various different interests of those Aboriginal persons in trust land, including native title interests. The existence of any native title interest in trust land and the ability under the ALT Act 1966 to exercise those rights in relation to trust are not altered by the bill. The trust is the holder of the fee simple interest under the ALT Act 1966, and this will continue unaffected under the bill. However, the bill expressly requires the trust to consult with any persons with native title interests in trust land.

 

It is the state's view that this is not a diminishing of any native title interest in trust land for those under the 1966 Act. The bill does not contain any provisions extinguishing, or purporting to extinguish, any native title in relation to trust land. This bill is enabling. It enables trust land to be transferred out of trust ownership under certain conditions, but even then I understand that that transfer has to receive the concurrence of both houses of parliament. As the Hon. Mr Wade outlined, it is of course left to the Native Title Act 1993 commonwealth legislation to determine whether any particular transfer does or does not affect native title and, if it does, any relevant consequences.

Clause passed.

Clauses 45 to 48 passed.

Clause 49.

The Hon. I.K. HUNTER: I move:

Amendment No 1 [AborAffairRec–1]—

Page 23, after line 27—Insert:

(f) prescribe expiation fees (not exceeding $315) for alleged offences against the regulations.

Amendment No 2 [AborAffairRec–1]—

Page 23, after line 29—Insert:

(2a) A person who contravenes a regulation regulating, restricting or prohibiting the sale or supply of regulated substances on Trust Land is guilty of an offence.

 

Maximum penalty: $2,000 or imprisonment for 6 months.

The bill is drafted to not allow for imprisonment for offences against the regulations, and properly so, as an offence with imprisonment as a penalty should be in the act. However, this was an oversight.

 

The amendments effectively move the offences of selling and supplying alcohol and other regulated substances and the relevant penalties into the act entirely, i.e. at clause 49. This is far more appropriate because offences against regulations should not carry terms of imprisonment. This leaves the regulations to deal with possession and consumption offences and the amendment provides that the regulations may prescribe expiation fees for these.

 

The Hon. T.J. STEPHENS: I indicate the opposition's support for the amendments.

Amendments carried; clause as amended passed.

Clauses 50 to 54 passed.

Clause 55.

The ACTING CHAIR (Hon. R.P. Wortley): This clause being a money clause is in erased type. Standing order No. 298 provides that no questions shall be put in committee upon any such clause. The message transmitting the bill to the House of Assembly is required to indicate that this clause is deemed necessary to the bill.

Clauses 56 to 60 passed.

Clause 61.

The ACTING CHAIR (Hon. R.P. Wortley): This clause being a money clause is in erased type. Standing order No. 298 provides that no questions shall be put in committee upon any such clause. The message transmitting the bill to the House of Assembly is required to indicate that this clause is deemed necessary to the bill.

Clauses 62 to 67 passed.

New clause 67A.

The Hon. M. PARNELL: I move:

Amendment No 1 [Franks–2]—

Page 33, after line 35—Insert:

67A—Review of Act by Aboriginal Lands Parliamentary Standing Committee

(1) Without limiting the Aboriginal Lands Parliamentary Standing Committee Act 2003, the Aboriginal Lands Parliamentary Standing Committee must, as soon as is reasonably practicable after the third anniversary of the commencement of this section, review the operation of this Act.

(2) The Aboriginal Lands Parliamentary Standing Committee must, within 6 months after the review is completed, report on the matter to both Houses of Parliament.

 

I move the amendment standing in the name of the Hon. Tammy Franks. For the benefit of members, I point out that there are two versions of this amendment. Version 1 can be discarded; version 2 is the one I am moving.

 

This is a very straightforward review clause. The reviewing body is the Aboriginal Lands Parliamentary Standing Committee. The period within which the review should take place is as soon as reasonably practicable after the third anniversary of the commencement of this section. The entire act is to be reviewed and, following the review, the committee within six months should report on the matter to both houses of parliament. I urge all members to support this sensible addition, especially in light of the submissions that were received from South Australian Native Title Services and the Law Society. There may well be consequential amendments that are needed in the future, so this review clause is a sensible safeguard.

 

The Hon. I.K. HUNTER: I thank the honourable member for moving the amendment on behalf of the honourable member. The government's view is that this amendment is not necessary. The committee could do this of its own volition. Having said that, we will not be opposing it.

 

The Hon. T.J. STEPHENS: The opposition will be supporting the amendment but, like the government, we also think that the constant monitoring of the new act will be ongoing. However, the Hon. Tammy Franks representing the Greens has taken some comfort in this amendment and, given that this bill has been supported in a multipartisan way, we also support the amendment.

New clause inserted.

Remaining clause (68), schedule and title passed.

Bill reported with amendment.

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Aboriginal Affairs and Reconciliation) (12:49): I move:

That this bill be now read a third time.

Bill read a third time and passed.

 

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