Land Dealings amendments to Aboriginal Land Rights Act 1983

Lila D’souzaNSWALC Principal Legal Officer

Stephen Wright Ross PearsonRegistrar ManagerALRA Compliance & RegulationDAA DAA

March 2009

Note this presentation provides information on some proposed amendments to the Aboriginal Land Rights Act 1983 arising from consultation by the ALRA Review Taskforce. This presentation is only intended to

provide a broad overview of the issues.

Land dealings

Focus of amendments is on Division 4 of the Act – Land Dealings – ie sale, lease, mortgage, change of use, etc

• Applies to all LALC land, whether or not LALC is registered owner, ie including land subject to a claim where title has not yet transferred, land bought or inherited by LALC

• More transparent and reliable process for LALCs, NSWALC and third parties

Applications for NSWALC approval

• New application process for LALCs seeking consent from NSWALC for a land dealing

• Aim is to ensure level playing field where LALCs and third parties know what they need to do and what information they need to provide in order for NSWALC to make a decision on whether or not the dealing should be approved

• $250 application fee• Other fees may be charged for processing

application depending on complexity but LALC may also apply for fees to be waived by NSWALC

• No more separate s40B and s40D applications – one new section for all NSWALC approvals (s42G)

• New amendments refer to approval being required for “land dealings” which are defined broadly including sale, lease, mortgage of land, easements and covenants over land, biobanking agreements, subdivision plans, and making a development application

• LALC application must comply with s42F(2) and regulation 104 to make a valid application

Approvals

• NSWALC must approve land dealing if satisfied:– 80% of voting members of the LALC present at the

meeting have passed a resolution approving the dealing

– The dealing is in accordance with resolution– In passing the resolution the members have had

proper regard to the cultural and heritage significance of the land

– The LALC has had proper regard to its Community Land and Business Plan

• NSWALC may refuse to approve a land dealing if the dealing is contrary to the interests of members of the LALC

• NSWALC may impose conditions on any approval of a land dealing including:– a “land dealing approval agreement”

which may be registered on the title of the land and “runs with the land” binding future owners

– A “registration prohibition notice” on the title to the land which stops any dealings with the land without NSWALC consent, even if the land is no longer owned by the LALC

NSWALC Approval Certificates

• New system of registration for land dealings• LALCs will obtain a dealing approval

certificate within 14 days of NSWALC approval to enable them to enter into the dealing, ie a contract for sale that is subject to specific conditions

• LALCs will then need to obtain a registration approval certificate before any instrument is registered on the title of the land, ie before a transfer is registered or a lease is registered on the title

• The aim of the registration approval certificate is to ensure that no unauthorised dealings are registered at the Department of Lands

• Before NSWALC provides the registration approval certificate it must be satisfied that all the conditions of the dealing have been satisfied and the new community development levy has been paid (if applicable)

Review of NSWALC decisions

• A LALC may ask for written reasons for NSWALC’s refusal to approve a land dealing, or for NSWALC’s decision to impose conditions on a land dealing approval, and NSWALC must provide those reasons within 28 days of the request

• LALC may commence proceedings for judicial review of NSWALC’s decision in the Land and Environment Court

• Before any proceedings are commenced, a LALC must refer the dispute with NSWALC to the Registrar for mandatory conciliation/mediation

• The aim of this provision is to try and reduce unnecessary and expensive litigation

NSWALC land dealings

• NSWALC dealings with land• NSWALC will have to give notice to any LALC

in the area of the land of the type of proposed dealing and provide 28 days for the LALC to comment

• NSWALC can only deal with the land in accordance with a Council resolution and after having considered any such comments, its community land and business plan and policies, and the cultural and heritage significance of the land

Community Development Levy

• A new community development levy is proposed to be introduced

• Levy (and user pays fees) arise from recommendations of the ALRA Review Task Force accepted by the NSW Government

• Aim of levy is the regarding re-distribution of wealth to LALCs with less assets

• Levy will be charged on transfers of land and premium leases and is based on rates of stamp duty

• There is no levy on transfers and premium leases between LALCs

• Levy rates on transfers and premium leases:– under $80,000 = NIL– between $80,000 and $1 million = 100% of the

equivalent amount of stamp duty payable for transfers and premium leases

– over $1 million = 150% of the equivalent amount of stamp duty payable for transfers and premium leases

• Examples:– transfer of $500,000 – levy = $18,000 (inc transfer instrument)– transfer of $1million, levy = $40,500 (incl transfer instrument)

• NSWALC will create a new Community Fund into which it will pay all the levy it receives, plus it will match the value of the levy it receives dollar for dollar and place this extra money into the new Fund

• The purpose of the new Community Fund is to make loans and grants to LALCs for the management and acquisition of land, and for community benefit schemes for LALCs

• LALCs eligible to apply to the new Community Fund must have total land assets of under $4 million

Expert Panels

• NSWALC may constitute an Expert Panel to assess a land dealing application, or a LALC may request that an Expert Panel be constituted

• The role of the Expert Panel will be to assess the land dealing application, but not to determine it

• NSWALC must establish a Register of persons who may be appointed to act on Expert Panels

• The Register will be publicly available to LALCs and others and contain contact details for the experts

• The costs of the Expert Panel will be passed directly to LALCs

Transitional Provisions

• Unsure when new amendments will come into force

• If a land dealing instrument is already lodged for registration before the commencement of the amended Act, the dealing is registered and no community development levy will be payable

• If a LALC has an existing NSWALC approval and/or an existing instrument that must be registered at the Department of Lands that has not been lodged for registration before the commencement of the amended Act:– the LALC must obtain a registration approval

certificate from NSWALC before the instrument can be registered, and

– the community development levy will be payable if the dealing is a transfer or premium lease and must be paid before NSWALC issues the registration approval certificate to the LALC

• NSWALC must give a registration approval certificate for existing NSWALC approvals and instruments, if it is satisfied that any conditions of the approval of the dealing have been satisfied and any community development levy if applicable has been paid.

• If there is no existing NSWALC approval, a LALC must make a new application under the amended Act for NSWALC approval of the land dealing, and the dealing may be subject to the community development levy if the dealing is a transfer or premium lease

Any questions?