Thursday, January 1, 2009

Compulsory Acquisition what does it mean?

Gail McGowan the Assistant Director General of the Department for Industry and Resources and executive officer for the Northern Development Taskforce (NDT) stated at the Broome public meeting this week that the State Government would make a decision on one of the four sites by the end of the year. This is clearly outside the NDT process. Many questions have been raised with both the NDT and the Premier of Western Australia Colin Barnett about the possibility of compulsorily taking the land for a LNG gas hub. The Premier has said publicly he will take the land.
For Native Title claimants and holders there is a procedure under the Native Title Act. How this works is dependent on whether a claim has been determined – then an Indigenous Land Use Agreement (ILUA) would be negotiated; or where a claim is yet to be determined and a claimant group is properly registered – the Future Acts process would take place.
Otherwise, for other land holders/owners/tenants/residents on the Dampier Peninsula the State legislation would be followed.

The Minister for Land (currently Brendan Grylls) has responsibility for the Land Administration Act 1997 and under S.11 go to ( and then to index acts in force).
11. Minister may acquire land in public interest
(1) Subject to subsection (2), the Minister may, in the name and on behalf of the State, acquire an estate, interest or other right in or to land in the public interest from any person —
(a) by purchase;
(b) by exchange, and may make or receive any payment that is necessary because of any difference in value between the pieces of land exchanged;
(c) by accepting the surrender of land held in fee simple or a less estate or interest;
(d) by taking it in the manner provided by Part 9;
(e) by forfeiture to the State under section 35; or
(f) by acquiring it in any other manner provided for by this Act.

This also requires a procedure to be adhered to. The Minister will be required to lodge a Notice of Intention To Take (NOITT) S.170 with the Lands Registrar and this is to be open for 12 months, objections must be received within 60 days of that date of registration of a NOITT.

170. Notice of intention to take interest in land
(1) Subject to this section, if it is proposed to take interests in land without agreement under this Part, the Minister must issue a notice of intention to take the interests, in accordance with this section.

In relation to the meetings held on the Peninsula this week Redhand questions if the correct procedure has been followed? There was talk of a request to drill holes for the purposes of obtaining geological data for the hub and was explained by NDT representative Ms McGowan at the Broome public meeting. S.182 of the Land Administration Act 1997:

182. Land may be entered for a feasibility study
(1) If it appears to the Minister that it may be necessary to use any land for a proposed public work for which the Minister is authorised to take interests in land, the Minister may authorise a
person —
(a) to enter on that land; and
(b) to do anything necessary in order to study the feasibility of the proposed public work.
(2) The Minister or person authorised must, before entering on any land under this section, give to the principal proprietor, the occupier, and to the holders of any native title rights and interests, not less than 30 days notice in writing, giving a description of the area of the land to be entered upon, a description of what is proposed to be done for the feasibility study, and the time that it is expected to take.

If this was a precursor to a NOITT were the correct notices in writing provided?

The Land Administration Act 1997 also provides for procedures where there are Native Title rights and interests.

The Department of Planning and Infrastructure’s Crown Land and Administration and Regulation Practice Manual Chapter 09 Compulsory Acquisition of Interests in Land provides further information on how compulsory acquisition should be undertaken. Check out for further information on Compulsory Acquisition from the Department of Planning and Infrastructure.

Leaseholders on the Dampier Peninsula are those people who have leases via the Aboriginal Lands Trust.

The Minister for Indigenous Affairs (currently Deputy Premier Kim Hames) has responsibility for the Aboriginal Affairs Planning Authority Act 1972 ( and then to index acts in force). It is this Act in S.20 which provides for the establishment of the body corporate, the Aboriginal Lands Trust (ALT). There are 7 members of the Trust, all appointed by the Minister. (for details on members go to

S.23 describes the Functions of the ALT
23. Functions of the Aboriginal Lands Trust
Subject to this Act, the functions of the Aboriginal Lands Trust
are —
(a) to carry out such of the functions of the Authority as may be delegated to the Trust under section 24, or as the Minister may direct
(b) to acquire and hold land, whether in fee simple or otherwise, and to use and manage that land for the benefit of persons of Aboriginal descent;
(c) to ensure that the use and management of the land held by the Trust, or for which the Trust is in any manner responsible, shall accord with the wish of the Aboriginal inhabitants of the area so far as that can be ascertained and is practicable;
(d) to consult, negotiate, enter into financial arrangements, contract, and to undertake or administer projects, either directly or in association with other persons or bodies, as may be necessary or desirable for the development of the land for which the Trust is responsible;
(e) generally, on behalf of and as the corporate entity representing the interests of the Aboriginal inhabitants
of the area to which the matter relates, to take, instigate or support any action that may be required to ensure the most beneficial use of the land.

The reserve lands can be changed by proclamation by the Governor on recommendation to the Minister from the ALT and must be presented to Parliament S.25 New lands may be reserved.

Redhand queries whether the ALT is representing the interests of Aboriginal people, the leaseholders on the Dampier Peninsula?
And how will the Minister for Indigenous Affairs represent the interests of Aboriginal people on the issue of compulsory acquisition of home and lands? On this issue Redhand will raise further queries about the Aboriginal Heritage Act’s responsibilities on this subject, in a future post.
First posted 16 November, 2008

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