Native Title Report 2006
Information Sheet 2 –
99-year leases on Indigenous land
The Australian Government’s land reform process has the potential to radically change Indigenous communities.
If implemented, the land reforms will enable non-Indigenous people to move onto Indigenous communal land and establish businesses and residences.
In 2006, the Australian Government added a new section 19A to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALRA) to provide that (with Ministerial consent) a Land Trust may grant a 99-year headlease over an Aboriginal township to an approved entity of the Commonwealth or the Northern Territory Government.
If traditional owners sign 99-year leases they will be relinquishing control over their townships. A government ‘administrator’ will be responsible for issuing leases and approving business proposals and infrastructure development. This will remove Indigenous autonomy over local community development.
Potential to alienate land for generations
The 99-year leasing provision of section 19A of the ALRA has the practical effect of ‘alienating’ Indigenous communal land. While a lease is not alienation in fact, it will have the same effect in practice. Ninety-nine years is at least four generations. The potential to create back-to-back leases means there is a high probability that the leases will continue in perpetuity.
Amendments of the nature of the ALRA are likely to be replicated in other Australian jurisdictions. The Australian Government announced during 2006 that it intended to encourage other states and territories to make similar amendments to their land rights legislations by tying home ownership funding through bilateral agreements. Funding for home ownership schemes will only be available to Indigenous people in states and territories that have amended their land rights legislations.
Consultation with Indigenous communities
The Australian Government has rejected proposals by Indigenous communities who have put up alternative models to the government’s 99-year headlease model. The alternative models emphasis Indigenous control of the land and the lease arrangements.
International evidence demonstrates that individualising lease tenures on communal lands, such as those under section 19A of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), leads to a loss of communal lands, and few, if any, economic benefits.
Concerns with administration
The administration of 99-year headleases is to be funded from the Aboriginal Benefits Account (ABA). The ABA is an account that contains Aboriginal mining royalty monies. The only express direction on the use of ABA is that it is to be used ‘to or for the benefit of Aboriginals living in the Northern Territory.’
The use of ABA funds to pay for headleases is contrary to its purpose. The purpose of the ABA is to provide benefit to Indigenous people above and beyond basic government services. The administrative costs of land-leasing are basic government services. Furthermore, the use of the ABA for headleases is targeted distribution of funds to communities that sign to the leases, while others will not benefit at all.