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Dissenting Report - Opposition Senators and Members of Parliament
1. Summary of Dissenting Report
The Opposition
acknowledges that the Committee
Chair went to some effort to achieve consensus, and strongly endorses a
majority of the recommendations. However the Opposition seeks to address some
fundamental weaknesses in the Report, which significantly compromise its impact
and constructive value.
First, it is
concluded in the Chair's Report that the agreement-making functions of Native
Title Representative Bodies (NTRBs) strictly relate to land and water
management, and do not encompass the pursuit of broader social and economic
outcomes. This interpretation is clearly incongruent with the established scope
of Indigenous Land Use Agreements, which have been used to achieve social and
economic objectives.
The Opposition
submits that a broader interpretation of the agreement-making function should
form the basis of any review of NTRB funding levels.
In addition, despite
the prolific evidence of the impact of underfunding on the efficacy of NTRBs
and more broadly on the native title system, the Chair's Report stops short of
recognising the full action that is needed.
The Opposition
submits that the recommendations in relation to the adequacy of operational
funding and corporate governance training should be strengthened to reflect the
full force of the evidence.
2. Discussion and Recommendations
2.1 Agreement Making Functions
Agreement making
through the mechanism of Indigenous Land Use Agreements (ILUAs) is a core
statutory function of NTRBs under the Native
Title Act 1993 (Cth).
The National Native
Title Tribunal explains that ILUAs "allow people to negotiate flexible,
pragmatic agreements to suit their particular circumstances."
For example, the
"Argyle Diamond Mine" ILUA signed in September 2004 provided support
for current and future mining corporations, and directed significant company
resources towards economic and community development.
In October 2005, the
200th ILUA was signed in the Northern Territory, between mining and
exploration company Newmont Ltd and the Central Land Council on
behalf of the
Gurindji people. This agreement secured employment and training opportunities
for Gurindji people, protection of sacred sites and rehabilitation programs for
mining sites and exploration.
In the Native Title Report 2005¸ the Aboriginal
and Torres Strait Islander Social Justice Commissioner, Tom Calma noted a
number of ILUAs that had achieved social and economic outcomes for Indigenous
communities. However, it was also noted that the use of ILUAs as an economic
development tool was significantly constrained by under- resourcing to NTRBs.
The decision of this
Government to deny NTRBs the resources needed for the effective and full
discharge of their agreement-making duties defies common-sense. It obstructs
both Indigenous community development and industrial development. It also contradicts the more recent
rhetorical shift embodied in the objectives of the Native Title Review
announced by the Attorney-General in September 2005. The Opposition welcomes
the Attorney-General's apparent emphasis shift from the litigious culture
cultivated by the Government over the past ten years to agreement making.
However the gap between rhetoric and action is startling, and merits a
distinct, specific and strong recommendation from this Committee.
The Opposition
recommends that the Commonwealth immediately review the level of funding for
NTRBs to effectively and fully execute its statutory agreement-making functions.
In particular, resources should be increased to enable:
- The development of skills to negotiate
regional economic and social outcomes through Indigenous Land Use
Agreements;
- More effective consultation with
communities and negotiations with corporate parties;
- Research of social and economic
opportunities in the region; and
- The monitoring of progress and where
necessary, enforcing Indigenous land use agreements entered into with
corporate third parties.
2.2 Adequacy of funding levels for day-to-day operations
The Opposition
acknowledges the recommendation by the Chair that the Commonwealth immediately
review the level of operational funding to NTRBs, but submits it is not enough.
The evidence
submitted to the Committee on the impact of chronic NTRB underfunding
was prolific, forceful and emanated from a variety of stakeholders – including
the minerals sector. The Minerals
Council of Australia noted that while reporting requirements had increased
significantly in the past few years, there had been no real increase in
operational funds since 1995. This meant that NTRBs had less
money to carry out
its functions on the ground. The Council also commented that the workload of
NTRBs had risen steadily as the number of native title claims and mining
applications proliferated.
The Chair's Report
canvasses a wide range of these concerns, noting the impact of under-
resourcing on the minerals sector, the native title system and community
development in Indigenous communities. But this acknowledgement did not
translate into a recommendation for an immediate increase in funding.
The weight of the
evidence presented to the inquiry warrants a recommendation that the level of
funding be increased immediately, and then reviewed.
2.3 Adequacy of funding levels for corporate governance training
Current funding
available to the Office of the Registrar of Aboriginal Corporations (ORAC) for
corporate governance training will not be enough to meet the demand generated
by the commencement of the Corporations
(Aboriginal and Torres Strait Islander) legislation. Submissions received
by the Inquiry into the CATSI Bill reflected widespread concern amongst NTRBs
about the size and complexity of the new legislation, including the compliance
requirements.
Training and support
on a much wider, systematic scale is required to assist with meeting the new
requirements, and to minimise the impact of this new regulatory regime on the
native title system. It was submitted in the CATSI Bill Inquiry that the
introduction of the registration renewal scheme for NTRBs brought the system
almost to a stand still for two years while NTRBs struggled to adjust. The
Opposition cautions the Government from repeating the same mistake with the
CATSI Bill.
It is not enough to
recommend that the Commonwealth ensure funding levels are adequate. The
Opposition recommends an immediate increase in ORAC training funds to prepare
NTRBs for the upcoming changes in corporate governance regulation.
3. Conclusion
There is
considerable evidence to support the claim that the inability of NTRBs to
fulfil their responsibilities represents the primary bottleneck in the native
title system. The Office of Indigenous Policy Co-ordination (OIPC) has
attributed this inability to the inefficient use of resources, at times
compounded by mismanagement and corruption. These claims are disputed by NTRBs,
which claim the OIPC is more interested in eliminating their advocacy role and
micro-managing their work than promoting efficiency.
The Opposition
accepts that there is an enormous need for capacity building, skills
development, and management/corporate governance training. But fulfilling this
need
should not be done
at the expense of the day-to-day functions of NTRBs, of Indigenous economic and
community development, of an efficient native title system, and industrial
progress. Until the chronic under-resourcing of NTRBs is addressed,
particularly for statutory functions like agreement making, improvements to the
native title system will be only peripheral and minimal. The Opposition urges
the Government to give this issue its urgent attention for the sake of all
stakeholders.
Mr Bob McMullan MP,
Deputy Chair
Senator
Patricia Crossin
Senator Chris Evans
Mr
Daryl Melham MP
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