McClelland Rural Services Pty Ltd

module threeland information

MANAGING INDIGENOUS PASTORAL LANDS

Pub no. 14/019

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MODULE 3  land informationContents

Introduction 3

Indigenous Land Rights and Pastoral Land Holdings 5

Land Rights 5Indigenous Pastoral Land Holdings 5

Land Tenure 10Indigenous Lands - Definitions and Complexities 10

Indigenous Land Holding Arrangements in the Northern Territory 11

Legal Framework 11Permitted Land Uses 11

Indigenous Land Holding Arrangements in Queensland 12

Legal Framework 12Forms of Land Acquisition 12Renewals of Pastoral Leases 13

Indigenous Land Holding Arrangements in Western Australia 14

Legal Framework 14Forms of Land Acquisition 14Pastoral Lease Reform 15Renewals of Pastoral Leases 15

Role of Land Councils 18Overview 18Northern Territory 18Queensland 18Western Australia 19

Land Use Agreements 20

Mining Tenures and Income from Mining on Indigenous Land 22

Mining Tenures 22Mining Income 24

List of TablesFigure 3.1 Map of Northern Territory

Aboriginal Land 7Figure 3.2 Map of Queensland

Aboriginal Land 8Figure 3.3 Map of Western Australian

Aboriginal Land (Kimberley & Pilbara) 9

List of PhotosCover Photo – Ghost gums

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IntroductionModule 3 describes the rights and obligations of Indigenous land holders in the northern Australia pastoral industry. Indigenous land tenure is administered differently in the Northern Territory (NT), Queensland (Qld) and Western Australia (WA) which has resulted in a high degree of complexity. In addition, this whole area is undergoing a great deal of change.

• In November 2012, the Northern Australia Ministerial Forum (NAMF) initiated a review of land tenure management across northern Australia. A high level summary of key issues and opportunities will be discussed at the next NAMF meeting in Cairns in 2013.

• The Qld Government also established a land tenure review in August 2012, with a report due by 31 May 2013.

• WA has embarked on a range of legislative changes to the Land Administration Act 1997 (WA) through the Rangelands Reform Program.

• All WA pastoral leases expire on 30 June 2015, with renewal conditional upon lessees meeting a range of obligations in relation to the quality and condition of the land.

Indigenous pastoral businesses need to ensure they contribute to the various reviews with a view to achieving long lasting, useful outcomes for the industry, as well as remaining informed of their rights and obligations.

The module provides an overview of land-related information in the areas of land rights and land tenure, Land Councils, land use agreements and mining activity on Indigenous land.

Indigenous Land Rights and Pastoral Land HoldingsLand rights struggles and legislation have resulted in substantial Indigenous pastoral land holdings in northern Australia, with a concentration in the NT and the Kimberley region of WA.

Land TenureNative Title and Land Rights both recognise the traditional rights of Aboriginal and Torres Strait Islander peoples to land. Indigenous pastoral land through land trusts is held under various types of tenure in each State. These are currently under review.

Land CouncilsThe role of Land Councils is described in relation to ensuring that Aboriginal culture, traditions and law are respected and followed on Aboriginal land, and that the relevant Aboriginal people make informed decisions.

Land Use AgreementsUnder land use agreements ratified by Land Councils, Aboriginal land can be utilised by third parties, including for grazing, which can assist Indigenous pastoralists to develop their land and earn income.

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Mining Tenures and Income from Mining on Indigenous LandThe module describes how mining tenements are granted over pastoral land with the owners of the land having little control of these tenements or exploration licences. It also shows how mining companies can meet their corporate responsibility objectives by providing income and employment opportunities, to assist in the development of Indigenous pastoral properties. It highlights the importance for communities to decide on how these funds should be directed, in the best interests of pastoral development.

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Indigenous Land Rights and Pastoral Land HoldingsLand RightsSince the early 1960s there has been a concerted effort by Indigenous people and successive governments to address the issue of Aboriginal land rights in Australia. The change began in the NT in 1963. In that year, the Yolngu people at Yirrkala in the north east Arnhem Land sent a representa-tive to Canberra to protest their land rights in a decision by the Commonwealth Government of the day to excise part of their land for mining.

The protest was unsuccessful; however, the protest is still current today. This was followed by a strike of the Gurindji people of Wave Hill cattle station in 1966. The strike’s purpose was to demand wages and a return of some of their traditional lands. The demand was rejected but the Gurindji continued to camp on their traditional country at Daguragu.

There were demonstrations and arrests in southern Australia in support of the Gurindji walk-off, and many groups, including trade unions, churches and students, gave practical and fundraising support to the Gurindji. After nearly 10 years of protest, the Gurindji won title to part of their land in 1975.

In the meantime, a Federal referendum had been held on 27 May 1967 to determine whether two references in the Australian Constitution, which discriminated against Aboriginal people, should be removed. The amendments were overwhelmingly endorsed by all the states, winning 91% of votes cast.

These Constitutional amendments were considered by many to be representative of the prevailing movement for political change within Indigenous affairs. The referendum, together with the achieve-ments of the Gurindji people, had put Aboriginal land rights on the national political agenda.

Indigenous Pastoral Land HoldingsToday, Indigenous landholdings occupy:

• 15% of the land area in WA

• 50% of the land area in the NT (a large percentage is not used for pastoral activities)

• 3.4% of the land area in Qld.

The location of these holdings for each jurisdiction is shown in Figures 3.1, 3.2 and 3.3 on the following pages.

Understanding the rules and regulations that govern the use of land is important to being able to manage a pastoral property to the best advantage. This means that it is necessary for Indigenous pas-toralists to know their rights and obligations under the various systems of land tenure that operate around Australia. This has become even more important, as Indigenous pastoral corporations struggle to meet their lease obligations following the market disruption caused by the live export suspension of 2011. The situation for Indigenous pastoral businesses in WA is further aggravated because all pastoral leases are due to expire in 2015. A lease will only be renewed if the lessee has met a range of conditions.

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Aboriginal people also need to know:

• their business diversification options under the various tenure arrangements

• their rights when dealing with mining interests.

Governments, working together with Aboriginal and industry bodies, can offer assistance in land matters under various Indigenous pastoral programs in each jurisdiction.

Further Information on Regional Maps

QueenslandILC Regional Map Queensland

Northern TerritoryNT Indigenous Property Map

ILC Regional Map NT

Western AustraliaILC Regional Map WA

WA Indigenous Land Maps

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Figure 3.1 Map of Northern Territory Aboriginal Land

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Figure 3.2 Map of Queensland Aboriginal Land

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Figure 3.3 Map of Western Australian Aboriginal Land (Kimberley & Pilbara)

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Land TenureIndigenous Lands - Definitions and ComplexitiesLand tenure is defined as the act or right of holding and using land rights. A land tenure system is the system of rules and conditions under which land rights may be held and used.

Following European settlement, the law of Australia originally considered that all the land of Australia belonged to the Crown (the government). In other words, all land was Crown land. The Crown could then grant or create interests in this land. Those interests could be freehold (what is commonly thought of as ‘ownership’ of land) or leasehold. Both of these interests carry with them a legal right to hold, occupy and use the land. That legal right is known as a land title. Land title can be held by a person or an organisation or another legal entity. The granting of freehold land title means that the land is no longer considered Crown land but is ‘owned’ by the person or organisation that holds the land title.

Native title and land rights both recognise the traditional rights of Aboriginal and Torres Strait Islander peoples to land. However, they are legally very different terms. Native title is based on traditional Indigenous ownership of land and waters. Land rights are a legislative response by parliaments to those traditional rights.

Aboriginal land is private property owned under special title. Aboriginal land is not owned by individuals. It is granted as a communal title. Land is formally held by land trusts - groups of Aboriginal people who hold the title for the benefit of all the Traditional Owners and people with a traditional interest in the land.

A review of land tenure management across northern Australia was announced in December 2012, following an agreement by Federal, Qld, WA and NT Regional Development Ministers at the Northern Australia Ministerial Forum (NAMF). The review is the first stage of understanding the complexities of land tenure throughout Australia, with a view to the various jurisdictions moving to a consistent approach to land tenure management. The NAMF Expert Advisory Panel will conduct the review and will report back to the next NAMF meeting in 2013.

In late July 2012, the Qld Government also announced a review of land tenure. Submissions closed in late August 2012 and the review team is due to report by 31 May 2013.

Changes to land tenure may open the door to increased native title claims on previously classed pastoral leases which are, at present, exempt from native claim. The following provides information on how Indigenous holdings fit into the various land tenure systems in the three northern jurisdictions.

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Indigenous Land Holding Arrangements in the Northern TerritoryLegal FrameworkIn the NT, most Indigenous land is held under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cwth) (ALRA) and is classed as Aboriginal freehold. The Northern Land Council (NLC) and Central Land Council (CLC) are two of four Land Councils in the NT that were established under the Act to manage the Aboriginal Land Trust areas. These two Land Councils are the most likely of the four councils to be involved with pastoral areas.

Aboriginal Land Trusts in the NT are statutory bodies under the ALRA. They hold the title to land handed back to the Traditional Owners under the ALRA. An Aboriginal Land Trust has certain re-sponsibilities in relation to the land that it holds, as is set out in the ALRA. The Land Trust cannot carry out those duties unless a direction is given to it by the Land Council which is responsible for that particular area. Although freehold is the most secure form of tenure in Australia, Aboriginal freehold land is inalienable. This means it cannot be bought or sold or mortgaged, and thus remains unencumbered by debt.

The consultation team identified 36 Indigenous pastoral properties in NT held under the ALRA, of which a significant number had entered into Pastoral Land Use Agreements (PLUA). These Agreements must be registered under Section 19 (S19) of the ALRA. In addition, four pastoral leases are owned by private interests that have Indigenous heritage, and have been handed down through their families.

There have been some changes affecting Aboriginal pastoralists directly under the Aboriginal Land Rights (Northern Territory) Amendment Bill 2006. These mainly relate to expediting the granting and negotiations of mining and petroleum exploration licences on Aboriginal land.

Permitted Land UsesThere are no direct restrictions on what business activities can be conducted on Aboriginal freehold land; that is grazing licences can be issued, tourism ventures and carbon farming established. However, the land uses have to be ratified by the Land Councils under Section 19 of ALRA. The S19 Land Use Agreements process gives Traditional Owners an opportunity to consider development terms and conditions and the right to consent to, or reject, proposals on their land.

The NT Land Councils carry out consultations and negotiations on behalf of Traditional Owners with those interested in conducting commercial activities on Aboriginal land. The Land Councils must ensure that any land use proposal is fair and equitable. Multi-disciplinary teams within the NT Land Councils comprising regional staff, lawyers, anthropologists and external experts, undertake a rigorous assessment of all land use proposals. The NLC also has established a working rela-tionship with the National Australia Bank, which assesses all business plans submitted with land use proposals.

Traditional Owners are then given the opportunity to make an informed decision in accordance with their traditional decision making processes. Affected Aboriginal people and communities are also given an opportunity to express their views in relation to land use proposals. If informed consent is given, the Land Council may direct the appropriate Aboriginal Land Trust to enter into a S19 Land Use Agreement with the proponent.

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Indigenous Land Holding Arrangements in QueenslandLegal FrameworkIn Qld, Aboriginal groups have acquired land under a variety of titles. These include:

• pastoral leases

• statutory Aboriginal freehold

• trustee arrangements.

However, the majority of Indigenous held land in Qld is in the form of pastoral leases, indicating there are some limitations to diversification of business activity on such land. Sub-leasing and agistment agreements must be approved by the Minister for Natural Resources and Mines.

The Qld government has recently made significant changes to the framework for Indigenous land ownership.

Under recent amendments to the Aboriginal Land Act 1991 (Qld) and Torres Strait Islander Land Act 1991 (Qld), land will now be granted to corporations registered under the Commonwealth Gov-ernment’s Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act). Previously new land trusts were established to hold the land. The CATSI Act guides how Indigenous corpora-tions are run and the Office of the Registrar of Indigenous Corporations (ORIC) is the independent statutory body that administers the CATSI Act. ORIC also supports and regulates the corporations that are incorporated under the Act. It does this in a variety of ways – by:

• advising them on how to incorporate

• training directors, members and key staff in good corporate governance

• making sure they comply with the law

• intervening when needed.

The Aboriginal and Torres Strait Islander Land Holding Bill 2012 provides a statutory framework for Indigenous land access on State rural leasehold land that is leased for agriculture or grazing. It sets out the requirements for Indigenous Access and Use Agreements (IAUA) and Indigenous Land Use Agreements (ILUAs) in the Land Act 1994 (Qld).

Forms of Land Acquisition In the past, major pastoral lease holdings were acquired by the Aboriginal Development Commission and transferred to their Traditional Owners. The transfer of Delta Downs Station to the Kurtjar people in 1982 is an example of this (Refer to Case Study 2).

At present, the Indigenous Land Corporation (ILC) is active in Qld in acquiring and divesting leasehold properties.

Lawn Hill and Riversleigh Pastoral Stations provide another example of Indigenous land acquisition. The mine site of Century Mine (owned by MMG Limited) in north west Qld is surrounded by Lawn Hill and Riversleigh Pastoral Stations which were acquired by the mining company in 1996. In 1998, the Gulf Communities Agreement (GCA) was executed which provided Native Title approval for the development of the mine.

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A key part of the GCA was the transfer of ownership of the stations owned by the mining company to the Waanyi people. Lawn Hill and Riversleigh Pastoral Holding Company (LHRPHC) was in-corporated in December 1998 and the pastoral leases of Lawn Hill and Riversleigh Stations were transferred to LHRPHC. Shares in LHRPHC were issued to the Waanyi people representing 49% of the company. Further transfers of share capital have occurred over ensuing years such that 51% of shares are held by the Waanyi people and 49% by MMG Century.

Renewals of Pastoral LeasesThe State Rural Leasehold Land Strategy or the ‘Delbessie Agreement’ is a collaborative agreement between the Qld Government, Agforce (which is the peak body for the beef, sheep and grain industries in Qld) and the Australian Rainforest Conservation Society. The agreement aims to assist land managers to balance using the land profitably with maintaining healthy land condition and adapting farming practices to address challenges such as climate change.

The agreement applies to all rural leasehold land. Using a mixture of incentives and legal remedies, the framework introduced benefits to stakeholders by:

• providing security of tenure through longer lease terms

• clarifying duty of care where this has previously not been defined

• enabling lease land condition to be assessed using scientifically-based guidelines

• introducing land management agreements to guide ongoing land management

• promoting voluntary conservation agreements and Indigenous access to State rural leasehold land for traditional purposes

• clarifying what will happen if land is identified as having significant environmental values that should be conserved within the protected area estate; for example future national parks.

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Indigenous Land Holding Arrangements in Western AustraliaLegal FrameworkIn WA, the issue of land tenure is covered under the Land Administration Act 1997 (WA) (LAA). The Pastoral Lands Board is a statutory authority established under Section 94 of the LAA charged with administering WA pastoral leases in accordance with Part 7 of the Act. Pastoral lessee’s duties in regard to leased land are set out in Section 108 of the Act. These duties are:

1. A pastoral lessee must, to the satisfaction of the Board, at all times manage and work the land under the lease to its best advantage as a pastoral property.

2. The lessee must use methods of best pastoral and environmental management practice, appropriate to the area where the land is situated, for the management of stock and for the management, conservation and regeneration of pasture for grazing.

3. Except with the written permission of the Board, the land under a pastoral lease must be worked as a single pastoral unit.

4. The lessee must maintain the Indigenous pasture and other vegetation on the land under the lease to the satisfaction of the Board.

5. In satisfying itself for the purposes of subsection (4), the Board must seek and have regard to the advice and recommendations of the Commissioner on the matter.

6. In subsection (2) — stock means —

a. authorised stock; and

b. stock for which a permit has been issued under section 122A.

If the Pastoral Lands Board is not satisfied that a pastoral lessee is meeting any of its obligations, it can issue directives to the lessee to correct the situation. If the directives are not complied with, then default notices can be issued which can potentially lead to prosecution and forfeiture. 

Forms of Land Acquisition The WA Government established the Aboriginal Land Trust (ALT) under the Aboriginal Affairs Planning Authority Act 1972 (WA) (WAAAPA Act) to acquire, manage and use land for the benefit of Aboriginal people. Most of the pastoral leases acquired have been handed back to communities through their Aboriginal corporations. Since the ILC began acquiring land in 1998, it has purchased additional alienated land, mostly in situations where Native Title has been determined. In accordance with its Charter, ILC aims to provide sound management, training and employment op-portunities and divest these properties once they become self- sufficient.

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Pastoral Lease ReformCurrently there are 32 Indigenous pastoral leases in the Kimberley and nine in the Pilbara. The ALT still holds six leases - four in the Kimberley and two in the Pilbara. The consultation team was informed that there are 10 to 12 sub-lease agreements with third parties.

Pastoral leases are for the grazing of animals and ancillary activities. Agricultural development is approved for pastoral leases by the issue of a Diversification Permit. The WA Government, through the Department of Regional Development and Lands, has commenced the Rangelands Reform Program. This program aims to address the vision for the economic and social future of the rangelands and to tackle ongoing issues faced by the pastoral industry in the rangelands. The Rangelands Reform Program is a three year program that commenced in December 2010. In March 2012, the WA Government approved the drafting of amendments to the LAA, and consequen-tial amendments to other Acts, to implement the new land tenure options. The major changes being progressed are as follows:

• Rangelands Lease is a new form of tenure which is intended to allow for multiple and varied uses of the rangelands, provided that the use is broad scale and consistent with the preservation and ongoing management of the rangelands as a resource.

• Perpetual Pastoral Lease allows for a pastoral lease with a perpetual term, with all other requirements and administrative responsibilities under the LAA to apply as for a term pastoral lease.

• The renewal of pastoral lease provisions provide that the Minister has to renew a pastoral lease for the same term, if there is no outstanding breach of the lease under the terms of the LAA or rangeland condition-monitoring requirements.

• A new permit provision for appropriate ‘primary production activities’ as defined in the Native Title Act 1993 (Cwth) (NTA) allows for a broader range of activities than is currently permissible under the LAA, including aquaculture activities and farm tourism as referred to under the NTA.

• Changes are proposed to facilitate the conversion and increase of variable term pastoral leases to up to 50 years.

• A mechanism is proposed for a streamlined process that enables the Transfer of Diversifica-tion Permits to a new lessee if it wishes to continue with a diversification activity that existed prior to the transfer.

Due to the complexities of drafting the amendments and the implications for consistency with the Native Title Act and National Competition Policy, a Bill has not yet been tabled in the WA Parliament.

Renewals of Pastoral LeasesAll WA Pastoral leases are due to expire in 2015. The legislation that governs pastoral leases provided that, 10 years prior to the expiration of the term, pastoralists could write to the relevant Minister requesting renewal of the pastoral lease. If the lessee has complied with the terms of the lease, the Minister would then recommend renewal.

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The offer of lease renewal in 2015 is subject to the following conditions:

• compliance with lease conditions, including stocking requirements and maintenance of infra-structure, at the time of expiry on 30 June 2015

• there being no Soil Conservation Notices or other orders by the Commissioner of Soil and Land Conservation in force (refer to the Department of Agriculture and Food website for more information)

• there being no unfulfilled requirements of the Commissioner of Soil and Land Conservation and/or the Pastoral Lands Board in relation to the observance of lease conditions under the Soil and Land Conservation Act 1945 (WA) and the LAA

• exclusion of areas from the existing lease that may be required for public works, conservation, national park, nature reserve or other State purposes.

The annual lease rental applicable up to 30 June 2015 will also apply to the renewed lease. The rental review period for the renewed lease will continue to apply every five years in accordance with the LAA. The first rent review for the renewed lease will be on 1 July 2019.

With all pastoral leases up for renewal in 2015, the immediate prospect is that a lessee needs to ensure that there are no outstanding compliance issues as, technically, the lease cannot be renewed if there are outstanding compliance issues.

The following link provides information on the lease renewal process and answers the most common questions regarding lease renewal.

Land Tenure – Key Points

• Land tenure is the system of rules and conditions under which land rights may be held and used.

• If considering Land Use Agreements or Grazing Licences, contact the Land Council for your particular area for advice.

• In the NT, most Indigenous land is held under Aboriginal Land Rights (NT) Act 1976 and is classed as Aboriginal freehold.

• In Qld, Aboriginal groups have acquired land under a variety of titles including pastoral leases, statutory Aboriginal freehold and trustee ar-rangements. The ‘Delbessie Agreement’ also sets out a framework for the renewal of rural leases.

• In WA, the Aboriginal Land Trust (ALT) acquired pastoral leases for the benefit of Aboriginal people and most of these have been handed back to communities through their Aboriginal corporations. All pastoral leases expire in June 2015.

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Further Information on Land Tenure

Indigenous Land Tenure Reform

Fundamentals of Land Ownership

RIRDC Land Tenure and Land Management Alternatives

Northern TerritoryAmendments to the Aboriginal Land Rights Act 2006

Leasing Land from the Central Land Council

S19 Land Use Agreements

Leasing Land from the Central Land Council

QueenslandAboriginal and Torres Strait Islander Land Holdings Bill 2012

State Leasehold Land Strategy

Western AustraliaWA Lease Renewals

Department of Regional Development and Lands – Rangelands Reform agenda.

Paper on Land Ownership in Western Australia (includes section on Aboriginal Land Trusts Pg7)

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Role of Land CouncilsOverviewLand Councils are Commonwealth Statutory Authorities representing Aboriginal affairs at State or Territory level. They help Aboriginal people reclaim and manage their land. Their role is to ensure, as far as possible, that:

• Aboriginal culture, traditions and law are respected and followed on Aboriginal land

• the relevant Aboriginal people make informed decisions

• commercial and resource exploitation agreements are fair.

Land Councils must be satisfied that the relevant traditional Aboriginal landowners understand the nature and content of any land use agreement, including mining, which is entered into on their behalf and that they agree to it. They have a particular role to play in lease renewals in WA, and in the NT they are the driving force within the Indigenous Pastoral Program in negotiating PLUAs.

Northern TerritoryLand Councils in the NT that are relevant to the northern Australia pastoral industry are the Northern Land Council and the Central Land Council. The role of the NT Land Councils, as set out in the ALRA, is to:

• discover and express the wishes and the opinion of Aboriginal people living in the area of the Land Council as to the management of Aboriginal land in that area and appropriate legislation concerning that land

• protect the interests of traditional Aboriginal owners of, and other Aboriginal people interested in, Aboriginal land in the area of the Land Council

• assist Aboriginal people in the taking of measures likely to assist in the protection of sacred sites on land (whether or not Aboriginal land) in the area of the Land Council

• consult with traditional Aboriginal owners of, and other Aboriginals interested in, Aboriginal land in the area of the Land Council with respect to any proposal relating to the use of that land.

QueenslandLand Councils in the parts of Qld relevant to the northern pastoral industry are:

• Carpentaria Land Council Aboriginal Corporation

• Cape York Land Council Aboriginal Corporation

• North Qld Land Council Native Title Representative Body Aboriginal Corporation.

Both the Qld and the WA Aboriginal Land Councils operate under the NTA. In the NTA, they are defined as Native Title Representative Bodies (NTRB). (It should be noted that the definition of NTRB captures a wide range of Indigenous organisations and therefore, there are NTRBs that are not Land Councils). The roles and functions for NTRBs which are described in this Act in Section 203b, are too detailed to repeat in this module. Reference can be made to the Act for further information.

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Western AustraliaNative representative bodies in the parts of WA relevant to the northern pastoral industry are:

• Yamatji Bana Baaba Marlpa Land and Sea Council which represents the Murchison, Gascoyne (Yamatji) and Pilbara (Marlpa) regions

• Kimberley Land Council Aboriginal Corporation (KLC).

Role of Land Councils

• The role of Land Councils is to ensure that Aboriginal culture, traditions and law are respected and followed on Aboriginal land and that the relevant Aboriginal people make informed decisions.

• In the NT, the Land Councils are governed by the Aboriginal Land Rights (NT) Act 1976 (Cwth).

• In Qld, the Land Councils are governed by the Native Title Act 1993 (Cwth).

• In WA, the Land Councils are also governed by the Native Title Act 1993 (Cwth).

Further Information on Land Tenure

About Aboriginal Land Councils

Functions of Land Councils under the Native Title Act 1993 (Cth)

Northern TerritoryNorthern Land Council Central Land Council

QueenslandNorth Queensland Aboriginal Land Council Cape York Land Council Carpentaria Land Council Aboriginal Corporation

Western AustraliaKimberley Land Council Yamatji Bana Baaba Marlpa Land and Sea Council

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Land Use AgreementsThere are two types of land use agreement.

An Indigenous Land Use Agreement (ILUA) is a formal agreement between a Native Title group and others about the use and management of land and waters. ILUAs were introduced as a result of amendments to the NTA in 1998 and must be registered with the Native Title Tribunal.

The other is an agreement for a third party to use Aboriginal pastoral land and generally relates to subleasing pastoral land or providing agistment services. These agreements are known as a Pastoral Land Use Agreements (PLUA). In WA and Qld they are known as sub-leases and, in the NT they are known as Grazing Licences.

PLUAs and Grazing Licences provide Indigenous land owners with the means to generate income from their properties or land which could be used to invest in infrastructure and skills training for employees. In WA and Qld, pastoral lessees require ministerial consent to enter into a PLUA, whereas in the NT, Grazing Licences are organised through the Land Councils. For more information on these opportunities see Module 9 – Diversification and Income Earning Opportunities.

Land Use Agreements

• Indigenous Land Use Agreements are governed by the Native Title Act 1993 (Cwth).

• Pastoral Land Use Agreements are known as sub-leases in WA and Qld and Grazing Licences in the NT.

The links that follow provide information from each jurisdiction about Indigenous Land Use Agreements. (continues on next page)

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Further Information on Land Tenure

Indigenous Land Use Agreement Register, Search Page.

National Native Title Tribunal Land Use Agreements

Steps to an Indigenous Land Use Agreement

Northern TerritoryNorthern Land Council Pastoral Land Use Agreements

Northern Territory Indigenous Land Use Agreement Template

QueenslandQueensland Guidelines for Negotiating an ILUA

Queensland Land Use Agreements

Western AustraliaWestern Australian Land Use Agreements

Western Australian Native Title and Land Use Agreements

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Mining Tenures and Income from Mining on Indigenous LandMining TenuresMost mining operations (including development, exploitation and exploration) work in accordance with relevant State and Territory statutes which allow the various Governments to grant mining title. These mining titles are commonly called tenements, in accordance with the procedures set out in the various statutes.

Mining tenements are regularly granted over pastoral land, whether it is freehold land or another form of tenure. In most cases, the owners of the land have no control over the granting of a tenement or exploration licence. The landholder cannot interfere with the mining operations once the tenement has been granted, provided the holder of the tenement meets the requirements of the relevant statute, and any other conditions in the grant.

Northern TerritoryThe laws governing the granting of exploration licences and petroleum permits on Aboriginal land in the NT are the Mineral Titles Act 2010 (NT), the Petroleum Act (NT) and the Aboriginal Land Rights (Northern Territory) Act 1976 (Cwth). The NT Minister for Mines and Energy cannot issue an exploration licence or permit unless the applicant and the Land Council have entered into an agreement.

QueenslandThe Native Title Act 1993 (Cwth) applies to the grant of a tenement by the State over land subject to native title. The act also allows for a State to develop and use its own alternative provisions, once approved by the federal Minister. Section 5 of the Mineral Resources Act 1989 (Qld) also has some ju-risdiction over the granting of mining and exploration licences.

The State must comply with the NTA when granting authorities to prospect (ATPs), petroleum leases (PLs) and pipeline licences over land subject to native title. As such, the right to negotiate procedures apply to ATPs and PLs granted under the Petroleum & Gas (Production & Safety) Act 2004 (Qld) over land subject to native title.

Western AustraliaIn WA, ownership of all minerals is vested in the State. Exploration and mining companies and individuals may access rights to minerals, subject to payment of rents and royalties, by obtaining exclusive tenements.

If there are no Native Title Claimant objections to a tenement application, then grant of the tenement may occur some months after the application. However, delays of more than 12 months can occur if objections to such grant are lodged by Native Title Claimants, under either the Mining Act 1978 (WA) or NTA.

Native title objections are usually avoided if an applicant and an affected native title claimant/holder sign the State Government’s standard heritage agreement (Regional Standard Heritage Agreement), which sets out the manner in which Heritage Surveys are to be conducted by the Claimants, paid for by the Company, to allow drilling and exploration activities such as trenching and bulk sampling to proceed and at the same time avoid any Aboriginal heritage sites.

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Mining Tenures Indigenous Land

• The NT Minister for Mines and Energy cannot issue a licence or permit unless the applicant and the Land Council have entered into an agreement.

• Qld must comply with the Native Title Act 1993 (Cwth) when granting authorities to prospect.

• In WA, the ownership of all minerals is vested with the State.

Further Information on Land Tenure

Northern TerritoryAboriginal Land and Resource Development in the NT

Mining on CLC Land

QueenslandNative Title and Mining in Queensland

Mining and Queensland ILUAs

Useful Guide to issues to be addressed when dealing with Mining Companies

Landholder Information for dealing with Mining Companies

Western AustraliaWestern Australian Mining Land Access

Mining on Aboriginal Reserves

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Mining IncomeIncome from mining can assist the development of Indigenous pastoral properties. In addition to royalties, mining companies can offer assistance under their Corporate Social Responsibility policies. In both cases, if associated with an Aboriginal lease, it is important for communities to decide on how these funds should be directed in the best interests of pastoral development.

Northern Territory

Royalties paid to the NT and Federal Governments for mining on Aboriginal land is paid to the Aboriginals Benefits Account (ABA). The ABA distributes:

• 30% of the royalties to Aboriginal people affected by the mining on their land

• 40% to Northern Territory Land Councils to administer their statutory responsibilities

• the balance for the administration of the ABA and for distribution to Aboriginal people throughout the NT.

Queensland

The Aboriginal Land Act 1991 (Qld) – S203 covers the royalties in relation to mining on Indigenous land.

S203 applies if the State receives an amount by way of royalty under the Mineral Resources Act 1989 (Qld), the Petroleum and Gas (Production and Safety) Act 2004 (Qld) or the Geothermal Energy Act 2010 (Qld), in relation to land that is Aboriginal land.

The trustee of the land is entitled to receive, out of money appropriated by the Parliament, the percentage prescribed for the purposes of this subsection of the total royalty amount received in a financial year and must apply the amount received for the benefit of the Aboriginal people for whose benefit the trustee holds the land, particularly those that are affected by the activities to which the royalty amount relates.

Western Australia

Indigenous mineral rights in WA are not as well structured as in the NT or Qld. Mining can take place on lands reserved under the Aboriginal Affairs Planning Authority Act 1972 (WA) with the consent of the Minister for Mines. Before granting consent, the Minister must consult with the Minister for Aboriginal Affairs. There is no obligation to consult the Aboriginal Affairs Planning Authority, Aboriginal Lands Trust or Aboriginal communities. Royalties must be paid to the Crown; however, the Authority can receive royalties for the use of its land or natural resources which has been delegated to the Aboriginal Lands Trust.

The Bonner Review of the Aboriginal Lands Trust recommended that the WA government review the scheme for the payment of royalties to the Land Trust, and that the Trust pay all mining revenue to the communities affected by mining.

A large proportion of Indigenous-owned or controlled land in WA is potentially well placed to develop economic opportunities. Where lands overlay mineralised zones, there are opportunities for communities to receive economic benefit from rent, royalties and dividends as well as significant social benefits from meaningful training, employment or contracting opportunities.

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Ensuring the governance capacity of Indigenous communities and organisations to take up such opportunities is a priority.

Income from Mining on Indigenous Land

• Northern Territory: Royalties paid to the NT and Federal Governments for mining on Aboriginal land is paid to the Aboriginals Benefits Account (ABA). The ABA distributes 70% of the income to affected Aboriginal people and the NT Land Councils.

• Queensland: S203 of the Aboriginal Land Act 1991 (Qld) deals with royalties payable in relation to mining on Indigenous land.

• Western Australia: Indigenous mineral rights in WA are not as well structured as in the NT or Qld. The Bonner Review of the Aboriginal Land Trust recommended the WA Government review the scheme for payment of royalties to the Trust, and that the Trust pay all mining revenue to affected communities. A large proportion of Indigenous-owned or controlled land in WA is potentially well placed to develop economic opportunities.

Further Information on Mining Income on Indigenous Land

Northern TerritoryThe NLC describes the “Royalties” distribution in the Northern Territory in the article below.

The CLC response to Royalty income

QueenslandSee Section 203 of the Aboriginal Land Act

Western AustraliaMining Royalties and other Specific Mining Taxes