5.1
This report has highlighted ways that traditional owners are trying to build a better economic future on lands where they hold native title and land rights. But it must be appreciated that their efforts are most likely to succeed where they are allowed to proceed along a pathway defined by the cultural norms and practices of each community. The vision of prosperity in Aboriginal and Torres Strait Islander communities will not always exactly resemble that of non-Indigenous Australians. In particular, it should be acknowledged that Aboriginal and Torres Strait Islander empowerment will most likely be community-based and cannot be separated from the goals of preserving and invigorating culture and protecting country.
5.2
The bodies representing traditional owners in the native title and land rights regimes in northern Australia are entering an era with major challenges but also new potential. Native title arrangements have progressed into what many submitters and witnesses called the ‘post-determination’ era, where the majority of claims have been determined, and representative bodies are assuming a range of statutory and other responsibilities. Together with the opportunities and challenges presented by various forms of land rights, most notably in the Northern Territory, but also in Western Australia and Queensland, traditional owners are dealing with the daunting task of leveraging statutory rights into economic and social advancement for their communities.
5.3
Australia has endorsed the United Nations Declaration of the Rights of Indigenous People (UNDRIP) principle of Free, Prior and Informed Consent (FPIC). But the effective exercise of FPIC depends on communities being well-resourced and equipped, so they can be free from coercion and can make decisions on the basis of good quality information provided with sufficient time for it to be considered. All this requires institutions with sufficient resources and expertise to enable them to operate successfully within the native title and land rights systems. The power imbalance between traditional owners and development proponents can only be redressed with resources and institutional capacity.
5.4
The financial and capacity building support provided by governments to Aboriginal and Torres Strait Islanders bodies at all levels is insufficient. This especially applies to PBCs and NTRB/SPs, some of which struggle to fulfill their functions with minimal or no income. The financial needs of representative bodies were not properly anticipated at inception and the issue has been neglected by successive Commonwealth and state/territory governments.
5.5
It is time that governments acknowledge that native title and land rights bodies are permanent institutions with structural roles in the legal and land administration systems. They are bodies that will speak for traditional owners long into the future. As such, they need a firmer basis for their funding. They should be freed from the uncertainties of the budget cycle, changes in policy and the time-consuming and complex processes of applying for and managing grants. The proposal for the establishment of a Future Fund for the funding of representative bodies should be considered as an option.
5.6
Support should be tailored to the needs of relevant bodies at the appropriate stages of their formation and development. For example, during the pre-determination period for native title, traditional owner groups should be offered assessments of economic opportunities in their lands and provided with business planning and development support so that they are equipped to make quick use of economic opportunities once native title status has been determined.
5.7
With four overlapping jurisdictions in northern Australia, each with its own legislation and administrative arrangements related to native title and land rights, traditional owner groups can at times be confronted with legal complexity and must navigate multiple systems to obtain support and funding. The establishment of a Northern Australia Indigenous Economic Development Body would enable the provision of tailored business development, legal and research support to Aboriginal and Torres Strait Islander businesses.
5.8
Good governance on the part of representative bodies is critically important, but can be difficult to achieve in an environment of legislative and administrative complexity. For example, the same body may simultaneously perform different functions under Commonwealth and state/territory legislation. Added to this is the complexity of relationships amongst different groups of traditional owners in a single area of land.
5.9
There is, nevertheless, considerable scope for increasing the transparency of decision-making in representative bodies to ensure that no traditional owners feel excluded and that financial and other management functions are performed in an accountable manner. One particular issue in need of attention is the rapid turnover of PBC Directors–annually in some cases–which constrains the development of ongoing and experienced leadership and creates the need for continually repeated training of new Directors.
5.10
A major barrier to the productive use of title to land under native title or land rights is land tenure. Australia’s systems of land tenure are derived from many pieces of Commonwealth and state/territory legislation and there are often multiple and overlapping tenure types for the same area of land. Most state land administration systems were enacted before the Mabo judgement and do not take account of subsequent developments in Aboriginal and Torres Strait Islander land tenure.
5.11
One of the key problems is the limited fungibility of land, especially that held under native title legislation, and the consequent problems of using land for investment. As a result, many traditional owners have come to think of themselves as ‘land rich, dirt poor’.
5.12
Generally speaking, land rights under ALRA are a more powerful form of tenure than under NTA or state legislation. The practice of community entity township leasing, particularly after recent amendments to ALRA, provides an outstanding model for what can be achieved in facilitating investment and home ownership in particular localities.
5.13
A range of initiatives is under way across northern Australia to reform land tenure arrangements and to establish pilot programs that can address the issues constraining the use of land as an economic asset. Nevertheless, the overall effort would benefit from a more coordinated approach and higher prioritisation. Enhanced inter-jurisdictional communication and information sharing would encourage the learning of lessons from others’ experience. There may be scope to adapt and apply the various land tenure initiatives and pilot programs across Commonwealth, state and territory systems. The financial challenges that prevent more effective leveraging of Aboriginal and Torres Strait Islander land assets should be seriously considered, including by financial institutions and banks. Resolving these challenges will be central to increasing flexibility while protecting the unique characteristics of land tenure.
5.14
Government entities such as Indigenous Business Australia (IBA) and Indigenous Land and Sea Corporation (ILSC), and the complementary non-government body, Supply Nation, provide important services for the facilitation of Aboriginal and Torres Strait Islander business across Australia. But their efforts to expand their activities outside the more developed regions of southeast and southwest Australia and into northern Australia have been limited by the economic realities that have constrained northern development for decades.
5.15
The economic conditions that make northern Australia more challenging for IBA and ILSC are amplified when it comes to communities in lands subject to native title and land rights. The remit of both entities means they struggle to be relevant to the challenges faced by traditional owners in communities where economic opportunities are few, especially small communities in remote and very remote locations. Communities such as these require specialised and tailored assistance that is currently beyond the scope of IBA and ILSC.
5.16
IBA, ILSC and Supply Nation appear to have performed well within their current limited resourcing. They would benefit, however, from increased capital injections and other financial strengthening. With increased allocations, they may be able to broaden their activities to investigate and trial modes of specialised tailored assistance to traditional owner communities in areas of northern Australia that have more difficulty in participating in the mainstream economy.
5.17
There can be little doubt that traditional owner communities across northern Australia want to participate in the development of the region, both for the sake of their own communities and for all Aboriginal and Torres Strait Islanders peoples. As mentioned earlier in this chapter, their pathways to prosperity will not always be identical to those mapped out by
non-Indigenous Australian. They are more likely to be community based and community focused, rather than purely individualistic.
5.18
The most viable solutions to the current problems faced by traditional owners in lands subject to native title and land rights will be those that uphold communities’ traditional laws and decision-making processes and which support custodianship and stewardship of country. Collective decision making and community based consultation need to be understood and respected by both governments and business as a key part of
self-determination.
5.19
Pastoralism and mining have traditionally been major areas for Aboriginal and Torres Strait Islander peoples’ participation in the northern economy and they will continue to be important. But the terms of traditional owners’ participation in these industries is changing, in some cases through direct ownership and management by traditional owners and, in other cases, through the provision of services by Aboriginal and Torres Strait Islander businesses.
5.20
Finally, there are emerging areas of economic activity that offer the most exciting potential for traditional owners seeking to leverage native title and land rights. In particular, the economic growth areas of environmental services and renewable energy intermesh with aspirations to develop income-producing activities that make use of traditional knowledge, traditional land and fire management practices and facilitate protection of, and physical connection with country. In addition, there is a bright
long-term future for the development of income-producing cultural activities such as artworks and dance, often in conjunction with cultural tourism, as domestic and international interest in Aboriginal and Torres Strait Islander culture increases.
Hon Warren Entsch MP
Chair
31 January 2022