Section 19 Land Use Agreements
Land Rights Act
In 1976, the Parliament of Australia passed the Aboriginal Land Rights (Northern Territory) Act 1976 (Commonwealth) (Land Rights Act).
The Land Rights Act set up the first system in Australia where Aboriginal people could make land claims based on their traditional connections to land. Aboriginal land granted under this system was handed back by the creation of Land Trusts.
The Land Rights Act also created land councils to help administer the land claims process and to manage leasing and land use on Aboriginal land. The Land Rights Act provides the legal framework for progressing social, commercial and economic development activities on Aboriginal land on behalf of traditional Aboriginal owners. Most non-mining development activities on Aboriginal land require an agreement under section 19 of the Land Rights Act. These are commonly referred to as section 19 agreements.
Land Use Agreements
The number of micro-enterprise, private business, Government and community development activities occurring on Aboriginal land has steadily increased over the last few years. As of 1 July 2019, NLC’s land management responsibilities include overseeing more than 700 section 19 Land Use Agreements that are in place over 3,687 parcels of land.
The section 19 agreement process gives traditional Aboriginal owners an opportunity to consider, develop terms and conditions and the right to consent to or reject proposals on their land and seas.
NLC carries out consultations and negotiations on behalf of traditional Aboriginal owners with those interested in carrying out social, commercial and economic development activities on Aboriginal land and waters. NLC must ensure that any land use proposal is fair and equitable.
Land Use Agreements are also required for any commercial fishing operators wishing to access tidal waters over Aboriginal land except those areas where there is an existing agreement with the Northern Territory Government permitting commercial and recreational fishing.
Agreements are also required for the two closed seas around the Crocodile Islands area and the Castlereagh Bay area in east Arnhem Land.
Commercial operators include any person holding a licence issued by the Northern Territory Government under the Fisheries (Northern Territory) Act 1988 for any of the commercially harvested fisheries and for guided fishing tours.
Multi-disciplinary teams within the NLC, comprising of Land Use project coordinators, regional office staff, lawyers and anthropologists, undertake a rigorous assessment of all land use proposals prior to going to consultation. As required, the NLC will also engage external experts to assist with the assessment of land use proposals.
Using this process, traditional Aboriginal owners are 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 or water use proposals. Where informed consent is given, the NLC may direct the appropriate Aboriginal Land Trust to enter into a section 19 Land Use Agreement with the proponent.
- The time frame for an assessment of a section 19 Land Use Agreement expression of interest and the subsequent consultation with traditional Aboriginal owners can take a minimum of six months to progress if all information is provided in a timely manner. However, the time required to conduct consultations on section 19 Land Use Agreements will vary depending on the type of interest and the region. The NLC makes no guarantee as to the time taken to conduct those consultations pursuant to its statutory responsibilities under the Land Rights Act.
- Third parties that seek an interest or a right to operate on Aboriginal land or waters are expected to bear reasonable costs associated with the delivery of the NLC services associated with their expression of interest. The NLC will attempt to share costs between proponents where appropriate and convenient.
Land Use Administrative & Consultation Performance in 2018/19
- 103 consultations held with traditional owners and affected groups to discuss section 19 Land Use expressions of interest
- 3,314 traditional owners and affected groups at 53 different locations consulted
- 262 clan estate groups consulted (some of these clans were counted several times due to meetings held multiple times with certain estate groups)
- 120 section 19 Land Use Agreements granted, covering 158 parcels of land
- 281 parcels of land registered as new expressions of interest
Frequently asked questions
- 1. What is the role of the Northern Land Council?
The NLC is responsible for assisting Aboriginal people in the Top End of the Northern Territory to claim and manage their traditional land and seas.
- 2. What is the role of the Aboriginal Land Trusts?
Land Trusts hold Aboriginal land for the benefit of traditional Aboriginal owners. Members of a Land Trust are Aboriginal people living in the NLC’s region appointed by the Minister for Indigenous Affairs. Land Trusts only act on the direction of the NLC.
- 3. Who are traditional Aboriginal owners?
Traditional Aboriginal owners are defined in the Land Rights Act as: 'traditional Aboriginal owners, in relation to land, means a local descent group of Aboriginals who: (a) have common spiritual affiliations to a site on the land, being affiliations that place the group under a primary spiritual responsibility for that site and for the land; and (b) are entitled by Aboriginal tradition to forage as of right over that land.
The NLC employs anthropologists and work with Aboriginal people in its region to identify traditional Aboriginal owners and other Aboriginal people who will be affected by section 19 agreements.
- 4. What kind of interest in land can I get under a section 19 agreement?
A section 19 agreement may be in the form of a 'lease' or a 'licence'. A lease includes the right to use that land for a term of years and to exclude people from entering that land. A licence gives the proponent permission to use Aboriginal land for a particular purpose but not to exclude others from that land. A section 19 agreement details the specific rights and duties of each of the parties.
- 5. What types of activities can I undertake under a section 19 agreement?
A section 19 agreement will specify what activities a proponent or third party can undertake. Section 19 land use agreements have been approved in the NLC region for the following purposes:
• Residential Housing / Home Ownership / Indigenous Public Housing
• Pastoral, Grazing and Mustering
• Horticulture, Forestry and Irrigated Agriculture
• Tourism, Sports Fishing and Safari Hunting
• Fisheries and Aquaculture
• Pet Meat and Wildlife Harvesting
• Extractive Minerals and Renewable Energy
• Retail, Community and Commercial Services
• Environmental Services
• Barge Landings and Airstrips
• Telecommunication Infrastructure
• Transport and Construction
• Manufacturing and Processing
• Housing and Property Development
- 6. Who approves a section 19 agreement?
Under section 19 of the Land Rights Act, the NLC may direct a Land Trust to grant a section 19 agreement to an individual or company, known as a third party or a proponent (who may also be a traditional Aboriginal owner of the land).
The NLC may only direct an Aboriginal Land Trust to enter into a lease or licence agreement after it is satisfied that:
Traditional Aboriginal owners understand the nature and purpose of the proposed section 19 agreement and have consented to it;
Traditional Aboriginal owners have consented to the section 19 agreement by a traditional decision-making process, or if such a process does not exist, by an agreed process;
Affected Aboriginal groups or communities have been consulted and had an opportunity to put forward their views; and
The terms and conditions of section 19 agreement are reasonable.
If a section 19 agreement is for more than 40 years or worth more than $1 million, it must also be approved by the Commonwealth Minister responsible for the Land Rights Act.
- 7. Who does the NLC need to consult?
Before directing a Land Trust to grant a section 19 agreement, the NLC must consult with:
Traditional Aboriginal owners of the lease area or licence area; and
Aboriginal communities and groups who may be affected by the proposal.
The traditional Aboriginal owners will consider the proposal and might refuse it, consent to it or ask for changes (negotiate). Traditional Aboriginal owners must give their consent to the proposal for it to progress.
The NLC must also give other interested and affected Aboriginal groups and people (such as local residents) an opportunity to provide feedback or to give their opinion about the proposal.
- 8. When will the NLC undertake consultations?
Due to the volume of consultations each year, the NLC forward-schedules consultations across its region twice a year, at the beginning of the year and mid-way through the year.
The proposed key terms and conditions of a section 19 agreement must be settled before the NLC can consult. The first term that must be settled is the lease area or licence area that will be subject to the section 19 agreement. The lease area or licence area is required to identify traditional Aboriginal owners.
Other information that needs to be provided in order to get the fully informed consent of traditional Aboriginal owners at consultations include:
• The identity of the lessee or licensee (i.e. the holder of the interest)
• The purpose of the agreement/activities permitted under the agreement
• Compensation i.e. rent or licence payments
• The term/length of the agreement
• The construction of infrastructure
• Employment opportunities
• Protection of sacred sites and the environment
• Future transfers or assignments of the interest
- 9. What happens if traditional Aboriginal owners refuse consent to a proposal?
If traditional Aboriginal owners do not consent to a section 19 agreement then it cannot be progressed any further.
- 10. What happens if traditional Aboriginal owners cannot make a decision?
Sometimes multiple consultation meetings may be required for traditional Aboriginal owners to reach a consent decision. If traditional Aboriginal owners are unable to make a decision, the section 19 agreement cannot progress.
- 11. How does the NLC decide if the terms and conditions are reasonable?
In deciding if the terms and conditions are reasonable, the NLC might:
• Compare the proposal with similar agreements in the NLC region
• Look at whether the agreement will create social or economic benefits for the community
• Consider obtaining expert advice
• Consider the wishes and views of the traditional Aboriginal owners
- 12. How does the NLC approve a section 19 agreement?
The NLC (at a Full Council, Executive Council or Regional Council meeting) will decide whether to pass a resolution that the Land Trust grant the lease or licence. The Executive Council mostly makes these decisions.
- 13. How long does it take to get a section 19 agreement?
To progress an expression of interest up to the agreement stage takes resources and time. Consideration must be given to the large number of existing applications, competing priorities, and the steps that NLC follow from registering the expression of interest to having an agreement executed.
The time it will take to get a section 19 agreement will be impacted by a large range of factors, including:
• Availability of NLC resources to assess your proposal, negotiate an agreement and undertake consultations.
• Availability of traditional Aboriginal owners for consultations and whether they wish to be consulted on more than one occasion.
• How many Aboriginal groups or communities may be affected by the proposal.
• Whether the proposal is for an existing use or renewal of an agreement or if it is for a new development.
• The complexity of the proposal, including the amount of land subject to the lease or licence.
• Whether you have provided all relevant information NLC has requested in advance.
• Whether there are any disputes in relation to the land the subject of the lease or licence.
For simple proposals, it usually takes 5-6 months to finalise a section 19 agreement. For complex proposals, it can take 12 months or longer.
- 14. Once approved by the NLC, how long does it take to get a section 19 agreement signed?
If a section 19 agreement is approved then the NLC, the relevant Land Trust and the proponent must sign the agreement. Land Trust members often live in remote communities or outstations that may have limited road access at certain times of year. This can lead to delays in executing agreements and it may take longer than you expect from a typical commercial setting.
- 15. What if my agreement needs approval from the Commonwealth Minister responsible for the Land Rights Act?
Under the Land Rights Act, agreements for more than 40 years or worth more than $1 million must be approved by the Commonwealth Minister responsible for the Land Rights Act. The NLC is responsible for obtaining this consent after the NLC has approved the land use agreement.
- 16. Is there a way to get my section 19 agreement progressed in a shorter time frame?
The NLC receives around 200 expressions of interest over parcels of land each year - that's around an expression of interest every work day. With such high volumes of proposals for section 19 agreements being received there are a number of ways that proponents can assist the NLC to process their section 19 agreement.
Providing detailed and accurate information in the expression of interest form submitted to the NLC will reduce time spent by NLC staff on following up for further information and will facilitate efficient negotiations.
As a general rule, less is more when it comes to lease areas and licence areas. The larger and more remote the area of land, the longer it will take because more groups need to be consulted. If a proponent is unsure whether or not they will use a particular area of land then they should discuss with the NLC whether it would be beneficial to remove that area from their proposal.
Contributing to the costs of consultation meetings is often an effective way to have a proposal progressed in a timely manner.
- 17. How much does it cost to get a section 19 agreement?
There are generally two types of costs associated with a section 19 agreement:
Compensation payments, such as rent or licence fees, made under the section 19 agreement (see next FAQ)
Costs associated with consultations
The NLC operates on a cost recovery model in line with internal policies. The NLC regularly recovers costs for holding consultations meetings. For more complex proposals and agreements the NLC may also recover costs in relation to negotiating or implementing section 19 agreements. These costs are negotiated with proponents upfront.
- 18. Who receives rent or licence payments made under a section 19 agreement?
Compensation payments must be paid to the NLC and distributed in full (including interest) to or for the benefit of traditional Aboriginal owners. A Land Trust cannot receive compensation or rent money.
The NLC does not make any deductions from compensation or rent payments. The NLC may separately recover costs directly from third parties and proponents associated with negotiating or administering a section 19 agreement.
- 19. Who at the NLC is responsible for progressing my section 19 proposal?
The NLC’s Regional Development team plays the lead role in coordinating and managing section 19 agreements, which includes the expression of interest process, coordinating a multi-disciplinary team to undertaking a rigorous assessment of each proposal, organising the logistics for consultations, facilitating consultation meetings with traditional Aboriginal owners to make an informed decision about proposals and consulting affected Aboriginal communities and groups to seek their views.
The Regional Development Branch comprises the NLC’s Regional Office network and a regional operation supported by positions in 11 locations: Darwin, Katherine, Timber Creek, Ngukurr, Borroloola, Tennant Creek, Jabiru, Maningrida, Wadeye, Nhulunbuy and Galiwin’ku. About 65 per cent of NLC’s Regional Development team are Indigenous, most of them recruited locally with close ties to the regions that they work in.
- 20. Can I make a section 19 agreement directly with traditional Aboriginal owners?
No. Aboriginal land is not owned by individuals. Aboriginal land is held by Land Trusts on behalf of the traditional Aboriginal owners as a group. The only legal way to make an agreement to use and profit from Aboriginal land is through the NLC. The Land Rights Act ensures that traditional Aboriginal owners exercise their traditional control over their land as a group and receive any compensation.
- 21. Do I need a section 19 agreement to access Aboriginal land?
Individuals can access Aboriginal land with a permit. A permit is only appropriate for access. It is not appropriate for other activities. If you use or run activities on Aboriginal land without a current section 19 agreement you are at risk of committing an offence under the Aboriginal Land Act (NT), Land Rights Act or the Criminal Code Act 1983 (NT), and the NLC may have a right to claim compensation for the traditional Aboriginal owners from you.