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LEGAL BRANCH

Summary

Lawyers and legal support staff work for the Legal Branch. The primary functions of NLC lawyers include:

  1. Advice in relation to the functions and powers of a Land Council and Aboriginal Land Trusts under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (Land Rights Act).
  2. Advice about its obligations under the Public Governance, Performance and Accountability Act 2013 (Cth), Privacy Act 1988 (Cth), Public Interest Disclosure Act 2013 (Cth) and other laws of the Commonwealth or Northern Territory.
  3. Advising and representing the NLC in current or threatened litigation, including proceedings before the NT Supreme Court, the Federal Court of Australia and the High Court.
  4. Working with the Policy and Stakeholder Engagement staff in providing advice on proposed law reform and other policy matters affecting NLC constituents.
  5. Assisting to negotiate agreements with individuals, corporations and governments who wish to enter and use Aboriginal land pursuant to sections 11A or 19 of the Land Rights Act.
  6. Working with the Minerals and Energy Branch in assisting the NLC to negotiate agreements under Part IV of the Land Rights Act.
  7. Assisting the NLC to monitor and enforce compliance with agreements made under the Land Rights Act.
  8. Coordinating the NLC’s response to trespass and other illegal activity on Aboriginal land.
  9. Providing legal advice and representation to Aboriginal people and groups in relation to land claims before the Aboriginal Land Commissioner under the Land Rights Act.
  10. Providing legal advice and representation to Aboriginal people and groups in relation to applications in the Federal Court for determinations of Native Title or compensation under the Native Title Act 1993 (Cth).
  11. Notifying, advising and negotiating agreements on behalf of Native Title Holders in relation to future acts under the Native Title Act.
  12. Providing advice and assistance to the Top End (Default PBC/CLA) Aboriginal Corporation RNTBC (Top End Default PBC) pursuant to a comprehensive services agreement.
  13. Assisting the NLC to perform its other functions as a representative body under part 11 of the Native Title Act, including certification, dispute resolution and agreement making.
  14. Where requested, providing the other branches and units of the NLC with legal advice and assistance in relation to aspects of their various different functions and programs.

As with many other areas, the work of the NLC’s Legal Branch has been affected by the COVID-19 pandemic. The NLC took measures together with the Northern Territory and Commonwealth governments to protect the Territory’s vulnerable Aboriginal population. Many meetings in the first six months of 2020 were cancelled and non-essential contact with clients ceased. Court proceedings have continued but have been conducted by either telephone or videoconference.

Branch Structure

The Legal Branch is made up the following personnel:

  • Principal Legal Officer (General Manager Land and Law)
  • Branch Manager
  • Two legal practice managers, one each for the Land Rights Practice and Native Title Practice
  • 18 lawyers
  • Senior contracts administrator
  • Five legal support staff.

The Legal Branch is structured to correspond to the seven regions that make up the Top End, the area for which the NLC is responsible under the Land Rights Act. The structure of the Legal Branch also reflects the different areas of law in which NLC lawyers are required to practise.

Each of the lawyers are, therefore, assigned to one or more of the following:

  • land use agreements and other regional development matters arising under the Land Rights Act
  • unresolved land claims under the Land Rights Act
  • Native Title claims under the Native Title Act
  • minerals and energy advice and negotiations
  • community planning and development
  • Top End PBC and the Native Title Holders for whom the PBC is agent
  • national parks
  • other matters.

While each lawyer is assigned to a particular practice or region, all NLC lawyers are capable of working flexibly across the different areas in which the NLC operates, including on litigation, major projects, policy and governance.

Regional Land Rights Practice

A significant part of a regional lawyer’s work involves working with the NLC’s Regional Development team to negotiate leases and licences of Aboriginal land to individuals, companies or government agencies. These agreements are colloquially referred to as “section 19 agreements”.

Under section 19 of the Land Rights Act, the NLC may direct an Aboriginal Land Trust to grant an interest in land to a third party. This interest in land may be in the form of either a “lease” for a term of years or a “licence” giving the proponent permission to use Aboriginal land for a particular purpose, or a combination of both. Section 19 agreements are presented to the Executive Council for approval, but all the applicable statutory criteria must first be met.

The criteria include that:

  • the Traditional Owners of the land concerned understand the nature and purpose of the grant and as a group consent to it
  • any Aboriginal community or group affected has been consulted and has had an adequate opportunity to express its view
  • the NLC is satisfied that the terms and conditions of any grant of an estate or interest are reasonable.

Land Claims

Land claims lawyers work with claimants to prove their traditional rights and interests over the land under claim. If the Aboriginal Land Commissioner recommends to the Minister that the land be granted as Aboriginal land, land claims lawyers work with claimants and non-Aboriginal persons who have an existing interest in the claim area to persuade the Minister to grant the land.

There are 38 unresolved land claims in the NLC region. Of these, 16 are claims that have been recommended by the Commissioner for grant and 22 claims that are still being pursued by NLC staff on behalf of claimants.

In 2019-20, the land claims lawyers focused their efforts on:

  • Preparing final submissions for each of the Woolner/Mary River and Fitzmaurice land claim hearings
  • Preparing for hearings about traditional ownership over the areas subject to the Peron Islands (Anson Bay) and Cobourg land claims
  • Negotiating the resolution of the remaining claims by agreement with claimants and the Northern Territory.

Native Title

Native Title lawyers prepare Native Title claims and progress Native Title determination or compensation applications under the Native Title Act. There have been 72 positive determinations of Native Title in the NLC region recognising Native Title and two determinations that Native Title does not exist.

There are 33 active Native Title claims in the NLC’s region that are before the Federal Court:

  • 29 of these claims are facilitated by the NLC’s Legal Branch providing legal advice and representation to the claimants
  • three of these claims are brought by private lawyers
  • one claim is a non-claimant application by the Northern Territory Government for clearance to develop an area of about 300 square metres near Darwin.

The Native Title program in the 2019-20 financial year included the following:

  • Responding to future Act notices and developing the Top End PBC’s workflows, including by upgrading its capacity to perform PBC functions on behalf of Native Title Holders
  • Appealing the Federal Court’s decision in the case of Quall v NLC to the High Court to challenge the finding that the NLC cannot delegate performance of its certification functions to its CEO
  • Seeking Federal Court relief in regard to the NT Government’s proposal to grant a further minerals lease to the McArthur River Mine without first giving Native Title Holders the relevant procedural rights under the Native Title Act
  • Progressing 16 pastoral lease Native Title claims that are before the Federal Court
  • Advancing research and authorisation of new Native Title and compensation claims
  • Representing the Katherine Families claimants in their Native Title claim over the Township of Katherine, including by pursuing mediation with the overlapping Jawoyn claimants
  • Preparing and filing new Native Title claims in response to future Act notices about proposed minerals leases, so that Native Title Holders are in a position to negotiate mining agreements
  • Assisting Yolngu leaders from the Blue Mud Bay region to design and register the Djalkiripuyngu Aboriginal Corporation, a new body capable of being nominated by the Native Title Holders of Blue Mud Bay to be their prescribed body corporate.

Top End Prescribed Body Corporate (PBC)

The Top End PBC is the agent prescribed body corporate (PBC) for all of the positive determinations of Native Title in the NLC’s region, if Native Title Holders consent. Members of the NLC Executive Council from time to time are the members and directors of the Top End PBC. There is a services agreement between the Top End PBC and the NLC under which NLC staff assist the directors to exercise the PBC’s functions, including responding to future Act notices received over areas where Native Title has been determined.

Minerals and Energy

NLC lawyers provide the Land Council with advice about applications for minerals and petroleum tenements over Aboriginal land and also advise and represent Native Title Holders in negotiating the terms of agreements regarding future acts on lands and waters subject to Native Title claims or determinations (e.g. agreements under section 31 of the Native Title Act regarding the grant of mining or petroleum interests).

Lawyers work closely with members of the Minerals and Energy Branch on the implementation and monitoring of agreements and provide advice on mineral and petroleum, environmental and water regulation, including in respect of mine rehabilitation and mine closure matters.

Litigation

In 2019-20, NLC lawyers have been involved in court proceedings on behalf of either the NLC, Native Title Holders or Aboriginal Land Trusts. Litigation matters consume considerable human and financial resources. They include:

  • NLC v Quall (D21/2019) – High Court appeal

In 2019, the NLC sought leave from the High Court to appeal the Full Federal Court’s decision in the case of Quall v NLC. In that case, Mr Quall and Mr Fejo successfully argued that the NLC did not have the power to delegate its certification function to the CEO, and so the application to register the Kenbi (Cox Peninsula) ILUA had not been validly certified.

Leave to appeal to the High Court was granted. The NLC funded Mr Quall and Mr Fejo to access legal services and participate. The High Court heard the matter in August 2020. The NLC argued that the Full Council can lawfully delegate its functions under the Native Title Act to its officers and that the Federal Court was wrong to find otherwise. The High Court may hand down its judgment on this appeal before the end of the 2020 calendar year.

  • Friday v Minister for Primary Industry and Resources (NTD 40/2019 and NTCAT 2019-0278-CT)

On behalf of Native Title Holders and the Top End PBC, NLC lawyers are challenging the NTG’s proposal to grant Minerals Lease (ML) 29881 to Mt Isa Mines Pty Ltd (the McArthur River Mine operating company) for the purpose of dredge spoil from the Bing Bong Port.

Proceedings have been launched in the Federal Court and the NT Civil and Administrative Tribunal. NLC lawyers argue that the NTG did not provide Native Title Holders with applicable procedural rights under the Native Title Act before seeking to grant the interest. NLC lawyers will also say that the NTG did not provide Native Title Holders with procedural fairness in approaching its decision-making task.

NLC Projects

In 2019-20, the Legal Branch provided advice to various branches and units across the NLC in respect of a variety of internal projects, including permit reform and the Land Use Management and Royalties (LUMAR) system.

Lawyers have worked closely with the Permit Reform team to review and reform the NLC’s systems for processing permits and monitoring compliance. This reform includes the development of an online platform for processing permit applications and various policies for administering the permit system. Lawyers have provided the team with advice on the legal requirements for access to Aboriginal land and developing an agreement with traditional Aboriginal owners to facilitate the issuing of permits.

Lawyers have also worked closely with the NLC’s LUMAR team to assist with the design of a single contract management system within the NLC. In particular, lawyers have worked to ensure key statutory processes are captured and that adequate compliance checks are incorporated. Once implemented, the LUMAR system will significantly improve the efficiency and effectiveness of processing land use agreement applications, contract management and compliance.

Policy Framework and Law Reform

The branch has been responsible for, or involved in, the preparation of a range of submissions and meetings in relation to the following:

  • Amendment of the Land Rights Act, including the introduction of cost recovery regulations
  • Amendment of the Petroleum Legislation Miscellaneous Amendments Bill 2019 (NT)
  • Amendment of Environment Protection Regulations 2019 (NT)
  • The proposed Water Further Amendment Act 2019 (NT) and related regulations
  • Reform of the NT EPA’s Guidance Note on Stakeholder Engagement and Consultation
  • The Productivity Commission’s Report on Resources Sector Regulation
  • The Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (Cth).