Edited version of your written advice

Authorisation Number: 1012767519262

Ruling

Subject: Fuel tax credits - public roads and Aboriginal Land

Question 1

Are roads located on the specified Aboriginal Land considered to be 'public roads' for the purposes of section 41-20 of the Fuel Tax Act 2006 (FTA)?

Answer

No.

The roads on the specified Aboriginal Land are not 'public roads' for the purposes of section 41-20 of the FTA.

This ruling applies for the following periods:

1 April 2010 to 30 June 2018

The scheme commences on:

1 April 2010

Relevant facts and circumstances

Aboriginal Land

Section 4 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Land Rights Act) provides for both the establishment of a land trust entity and for the transfer of title in certain land to such an entity:

'the Minister may, by notice in the Gazette, establish Aboriginal Land Trusts to hold title to the land in the Northern Territory for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of the land concerned…".

In this regard, the relevant Aboriginal Land Trust, which was established under the Land Rights Act, holds deeds of grant over the specified land.

The specified land is included in Schedule 1 of the Land Rights Act (hereinafter referred to as 'Specified Schedule 1 Land'). Section 12(3A) of the Lands Rights Act provides that:

"A deed of grant under this section in respect of Schedule 1 land shall be expressed to exclude from the grant:

a) any land on which there was, at the time of the commencement of section 3, a road over which public had, at that time, a right of way; and

b) any land on which there is, at the time of the execution of the deed of grant, a road over which the public has a right of way."

Under section 11B of the Land Rights Act, where a public right of way has ceased to exist, such land may be granted in fee simple to the Land Trust.

Access to the Specified Schedule 1 Land

Section 70 of the Land Rights Act provides that no person (other than a person who has an estate or interest in the Schedule 1 Land or is a government officer) has a right to enter and remain on Aboriginal Land (that is, the land over which the Land Trust has a fee simple interest). Paragraph 70(2A)(h) of the Land Rights Act provides that a person may be permitted to enter or remain on the land in accordance with the Land Rights Act or a law of the Northern Territory. Under section 5 of the Land Rights Act a person may be given permission to enter and remain on Aboriginal Land or use a road that is bordered by Aboriginal Land by issue of a permit.

In practice, a permit is required for access to any part of the Specified Schedule 1 Land.

Land Trust

The Land Trust for the Specified Schedule 1 Land (hereinafter referred to as 'the Land Trust') is established under the Land Rights Act.

The functions of the Land Trust as set out in section 5 of the Land Rights Acts are:

• to hold title to the Specified Schedule 1 Land; and

• to exercise powers as owners of the land for the benefit of people of the Specified Schedule 1 Land in accordance with directions given by the Land Council.

The Land Council

The Land Council was established as a statutory authority under the Land Rights Act with a key responsibility of managing the Aboriginal Land regions in the Northern Territory, which includes the Specified Schedule 1 Land.

In accordance with section 23 of the Land Rights Act, the functions of the Land Council include, but are not limited to:

• protecting the interest of the Specified Schedule 1 Land owners;

• assisting the owners in carrying out commercial activities;

• assisting in areas of appropriate use of the land; and

• supervising and providing administrative or other assistance to land trusts to hold Aboriginal land.

The Regional Council

The Regional Council is a local government body established under the Local Government Act 2008 (NT) provides a range of local government services to communities of the Specified Schedule 1 Land.

Roads on the Specified Schedule 1 Land

Under section 68 of the Land Rights Act a Land Council must consent, in writing, to the construction of a roads on land included in Schedule 1 to the Act. As such the Land Council must give such consent to the construction of road on the Specified Schedule 1 Land.

Under subsection 70B(12) of the Land Rights Act the Land Council may temporarily restrict access to a road under specified circumstances.

The Regional Council manages, maintains and constructs the roads on the Specified Schedule 1 Land however they that do not have ownership or authority over any of the roads.

Access to the Specified Schedule 1 Land is limited and as such the use of the roads is limited to use by the community of the Specified Schedule 1 Land and or people with a permit to travel on the land.

There is no evidence that the roads on the Specified Schedule 1 Land have been declared a public road.

The roads on the Specified Schedule 1 Land are not shown on any maps with any degree of precision.

Relevant legislative provisions

Fuel Tax act 2006 section 42-10

Reasons for decision

Section 41-20 of the FTA provides that you are not entitled to a fuel tax credit for taxable fuel to the extent that you acquire, manufacture or import the fuel for use in a vehicle with a gross vehicle mass of 4.5 tonnes or less travelling on a public road.

While the areas within the Specified Schedule 1 Land are not generally open to the public, the various paths, tracks and roads used by vehicles travelling from one place to another within the Land may fall within this definition and are considered to be 'roads' for the purposes of the FTA.

'Public road' is not a defined term in the FTA. However, Fuel Tax Ruling FTR 2008/1 Fuel tax: vehicle's travel on a public road that is incidental to the vehicle's main use and the road user charge, provides guidance in respect of the meaning of roads and public roads for the purposes of subsections 43-10(3) and 43-10(4) of the FTA. Whilst these provisions deal with the application of the road user charge to a fuel tax credit for fuel used in a heavy vehicle, for travelling, on a public road, the principles for determining if a road is a public road are applied where the phrase 'public road' is used throughout the FTA.

Paragraph 44 of FTR 2008/1, explains that a road is a public road if:

• it is opened, declared or dedicated as a public road under a statute;

• it is vested in a government authority having statutory responsibility for the control and management of public road infrastructure; or

• it is dedicated as a public road at common law.

Consideration is given to the criteria in respect of the roads that are the subject of this ruling.

Opened, declared or dedicated as a public road under statute

There is no evidence to indicate that the roads on the Specified Schedule 1 Land have been declared or dedicated as public roads under any Commonwealth or State/Territory statute. Further, there has been no intention to dedicate these roads as public roads.

Vested in a government authority having statutory authority for public roads for the control and management of public road infrastructure

Paragraphs 123 and 124 of FTR 2008/1 explain that roads which are constructed, managed or maintained by a statutory authority of a state or territory that has responsibility over roads for public use, are public roads. There Regional Council is a local government body responsible for the management, maintenance and construction of the roads on the Specified Schedule 1 Land. However, the roads are not vested in the council nor are they maintained and provided for general public usage. The roads are provided solely to meet the local needs of the local community, with any other use being incidental to this purpose.

Although the Regional Council is responsible for maintaining and constructing the roads on the Specified Schedule 1 Land, it does not have any ownership or authority over the roads it constructs and maintains. Any road construction and maintenance can only be carried out with the consent and at the direction of the Land Council in accordance with section 68 of the Land Rights Act.

Dedicated as a public road at common law

At paragraph 125 of FTR 2008/1 the Commissioner explains that there must be established an 'unequivocal indication of the intention of the owner of the land to dedicate it to the public as a road' for a road to be dedicated as a public road at common law.

Paragraph 125A of FTR 2008/1 lists the factors to be considered in determining whether an owner of land has dedicated it as a public road under the common law, and include:

• whether there has been a declaration of an intention to dedicate;

• delineation on maps or plans of roads set apart for public use;

• use by the public (indicating acceptance of the dedication);

• whether vehicles must be registered to use the road and state or territory traffic laws are applicable while the vehicles use the road; and

• the expenditure of money by public bodies in forming or maintaining the land as a road.

We will address these factors as follows:

Declaration of an intention to dedicate

All of the information provided indicates that there has not been any declaration or an intention to dedicate any roads as public roads.

Delineation on maps or plans of roads set apart for public use

The roads in question are not shown on maps with any degree of precision.

Use by the public

The general public do not have a public right of way over any of the roads on the Specified Schedule 1 Land. Access to the Land is limited and as such the use of the roads on the Land is also limited to a specific class of authorised people (that is, the local community, government officers and people with a permit).

Whether vehicles must be registered to use the road and state or territory traffic laws are applicable while the vehicles use the road

The Land Rights Act does not specify that vehicles on Aboriginal Land are subject to any State or Territory road laws. This suggests that the vehicles on the Specified Schedule 1 Land are not subject to the relevant State or Territory road or motor vehicle laws.

The expenditure of money by public bodies in forming or maintaining the land as a road.

Whilst the Regional Council is a local government authority responsible for the provision of the road infrastructure on the Specified Schedule 1 Land, the infrastructure is not maintained or provided for general public use. The roads are provided to meet the need of the local community and permitted visitors to the Land.

On the basis the roads on the Specified Schedule 1 Land, including non-vested land (if any) have not been:

• opened, declared or dedicated as public roads under a statute;

• vested in a government authority that has responsibility for the control and management of public road infrastructure

• dedicated as a public road under common law,

As such the roads on the Specified Schedule 1 Land are not 'public roads' for the purposes of section 41-20 of the FT Act.

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