Land dealings amendments to aboriginal land rights act 1983
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Land Dealings amendments to Aboriginal Land Rights Act 1983. Lila D’souza NSWALC Principal Legal Officer Stephen Wright Ross Pearson Registrar Manager ALRA Compliance & Regulation DAA DAA March 2009

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Land dealings amendments to aboriginal land rights act 1983

Land Dealings amendments to Aboriginal Land Rights Act 1983

Lila D’souza

NSWALC Principal Legal Officer

Stephen Wright Ross Pearson

Registrar Manager

ALRA Compliance & Regulation

DAA 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.



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



  • 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 section for all NSWALC approvals (s42G)


  • NSWALC must approve land dealing if satisfied: section for all NSWALC approvals (s42G)

    • 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 section for all NSWALC approvals (s42G)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 section for all NSWALC approvals (s42G)


  • New system of registration section for all NSWALC approvals (s42G) 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 section for all NSWALC approvals (s42G)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 section for all NSWALC approvals (s42G)


  • A LALC may ask for section for all NSWALC approvals (s42G)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 section for all NSWALC approvals (s42G)


  • NSWALC dealings with land section for all NSWALC approvals (s42G)

  • 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 section for all NSWALC approvals (s42G)


  • A new community development levy section for all NSWALC approvals (s42G) 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: section for all NSWALC approvals (s42G)

    • 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 section for all NSWALC approvals (s42G)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 section for all NSWALC approvals (s42G)


  • NSWALC may constitute an section for all NSWALC approvals (s42G)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



Transitional Provisions appointed to act on Expert Panels


  • Unsure when new amendments will come into force appointed to act on Expert Panels

  • 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 appointed to act on Expert Panelsexisting 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 appointed to act on Expert Panelsmust 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? appointed to act on Expert Panels


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