CHAPTER 2
2.1
Submissions from the ILC and AIATSIS opposed the introduction of ministerial
guidelines to govern the ILC's involvement in native-title settlements.
However, three other submissions—from the South Australian Government, National
Native Title Council (NNTC) and Cape York Land Council—expressed support for the
proposed guidelines.
2.2
Other issues raised during the inquiry include:
-
lack of definition of 'native title settlement';
- interaction with existing ILC guidelines;
- need for a trigger to bring the ILC into native-title
negotiations;
- need for further consultation before any guidelines are made;
- whether ILC involvement should affect compensation for loss of
native-title rights;
- need for improved regional planning by the ILC;
-
timeframes for ILC involvement in native-title negotiations, and for
divestment of land by the ILC; and
- appropriate functions of the ILC.
2.3
Although Schedule 4 of the Bill aims to clarify the ILC's role 'in
supporting native title settlements' by providing guidance in the exercise of
its functions, there is no definition of 'native title settlements' in Schedule
4 or in the ATSI Act, nor is there any significant reference to the Native
Title Act 1993 (Cth).
2.4
In its submission, the NNTC—the peak body of Native Title Representative
Bodies (NTRBs) and Native Title Service Providers (NTSPs)—provided some
commentary on the concept:
It should be acknowledged that the concept of 'native title
settlements'—sometimes referred to as 'broader land settlements' or 'comprehensive
agreements'—is relatively new. The concept gained traction when the Labor
Government came to power in 2007 and shifted the policy emphasis towards
building stronger links between native title and Indigenous economic development.
The NNTC's understanding of the term 'native title
settlements' derives from earlier Commonwealth Government consultation papers
and forums where the term has been used to refer to a settlement resulting in
the resolution of one or more native title claims (which may or may not include
the recognition of native title rights and interests), along with other
non-native title benefits. Examples of non-native title benefits include
support for the establishment of a Prescribed Body Corporate, the transfer of
freehold land for cultural or enterprise development, training and employment
opportunities, co-management of conservation reserves and fishing licences.[1]
2.5
The ILC submitted that it did not see the necessity for ministerial
guidelines in relation to its involvement in native-title settlements, stating
that it already had the 'statutory capacity and policy flexibility to work
constructively with governments, Indigenous people and other stakeholders in
this area'. However, if there are to be guidelines, the ILC stated that they
should not be mandatory. The ILC therefore agreed with the present wording of Schedule
4, which requires the ILC to 'have regard to' the content of any guidelines,
thus preserving its statutory independence.[2]
2.6
AIATSIS opposed the introduction of ministerial guidelines as 'inappropriate',
noting that interference in the independence of a statutory authority is
problematic. This could potentially lead to appropriation of the Land Account 'for
other purposes, including subsidising compensation settlements for new acts of
extinguishment'. AIATSIS argued that '[e]nsuring that the ILC meets the
purposes for which it was established should be achieved by other means'.[3]
2.7
However, should the amendments go ahead, AIATSIS submitted that the
proposed guidelines should be carefully drafted and circumscribed to ensure
that they:
-
relate only to native title or Indigenous land settlements to
traditional owners;
- are consistent with the functions of the ILC and the Land Account
under the ATSI Act; and
- are not used to compensate for future extinguishment of native
title or other Indigenous interests in land.[4]
2.8
Several other submissions expressed general support for the introduction
of guidelines.
2.9
For example, the South Australian Government welcomed the formalisation
of the ILC's role in native-title settlements:
The South Australian Government has found that it is through
the Native Title claim settlement process [that] claim groups begin capacity
building (to develop economically and culturally). Without the provision of
freehold land and land management support from the I.L.C., the South Australian
Government considers that a vital link to capacity building through Native
Title settlement is missing. The provision of land as part of a Native Title
settlement package is sought by claim groups to better provide for future
generations. This goal may not easily fit with the immediate land use benefits
that the I.L.C. requires, meaning the I.L.C. may not enter into negotiations
early and with maximum effect.[5]
2.10
For the South Australian Government, the proposed guidelines represent:
...a timely acknowledgment that current I.L.C. practice and
policy, informed by legislative guidelines, does not always mesh with the
reality of Native Title claim settlement. New guidelines should underpin a more
flexible approach and policy than has been evident to date.[6]
2.11
The NNTC also welcomed the proposed amendments. However, the NNTC noted
that the extent to which the amendments will facilitate increased ILC
assistance for traditional owners will depend on the substance of the
guidelines, as well as the willingness of the ILC to review and adapt its
program guidelines and approach to regional planning so that any guidelines can
have full effect.[7]
2.12
While supportive of the concept of guidelines, the Cape York Land
Council noted that it is difficult to determine the potential effectiveness of
any guidelines without a better idea of their content and the attitude of the ILC.[8]
Departmental view
2.13
In its submission, the Department of Families, Housing, Community
Services and Indigenous Affairs (Department) described the policy context for
the proposed guidelines:
The Government considers that native title settlements can
assist in closing the gap on Indigenous disadvantage. The Government has
initiated a range of reforms to address blockages in the native title system.
Native title [settlement] enhances the ability of Indigenous communities to
leverage economic development opportunities. Practical benefits can include
training, employment and business opportunities for enterprises on land,
freehold or other title to land, a revenue stream to build up capital and
employment in national parks and other conservation areas.
2.14
In proposing the new ministerial power, the Department echoed some of
the original reasons for the creation of the ILC:
The Government considers that there is scope for the ILC to
increase its involvement in native title and broader land settlements, particularly
where proof of connection is difficult due to historical dispossession such
that native title is unlikely to be established or is expected to be limited in
geographical area or extent. ILC assistance can provide for claimants to have
access to land including land which is of importance to them culturally even
though native title cannot be easily demonstrated. Land outcomes in these
circumstances can provide an incentive for claimants to settle claims
particularly where claims have remained in the system for years because of
problems with establishing the requisite levels of connection.[9]
2.15
Further to its submission, the Department also highlighted the criteria
governing existing ILC programs:
The criteria governing existing application-based programs
administered by the ILC are currently not suited to meeting the needs of
claimants and governments in developing settlement proposals. For example, the
ILC only provides program funding and resources for land management projects on
Indigenous-held land. However, in most cases claimant groups will only be
granted land at the conclusion of settlement negotiations. Claimant groups can
experience difficulty demonstrating sufficient capacity, or would not be
appropriately incorporated as a commercial entity until after their native
title claim has been resolved and a Prescribed Body Corporate established, to
manage any benefits and interests arising from the claim. Appropriate
engagement by the ILC in supporting native title settlements would assist in
developing settlement options and assist the claimant group with implementing
and managing practical benefits in the settlement.[10]
2.16
In the Department's view, ministerial guidelines would help to:
...clarify and confirm that supporting native title settlements
is an appropriate and routine function of the ILC and that its support can be
sought at the outset, or at any stage during the settlement process.[11]
2.17
The Department stated that the content of the guidelines themselves
would:
...deal with the manner in which the ILC could support native
title groups with the resolution or settlement of native title claims. They are
expected to include the circumstances under which the ILC could assist, the
processes for providing that assistance and what types of assistance could be
made available.[12]
2.18
The Department also stated that the ILC had 'indicated its acceptance of
the proposed Ministerial power'.[13]
Interaction with existing ILC guidelines
2.19
The ILC expressed the view that the inconsistency provision in proposed
new subsection 191I(1A)—giving precedence to the proposed ministerial
guidelines over any guidelines made by the ILC Board—is unnecessary, because
such a provision 'is only relevant where such rules or guidelines are binding
in nature'.[14]
2.20
None of the other non-government submissions made reference to existing
ILC guidelines or the possibility of inconsistency between the two types of
guidelines.
Departmental view
2.21
The Department advised that proposed new subsection 191I(1A) clarifies
that, in the unlikely event of an inconsistency between the ILC guidelines
under subsection 191I(1) and ministerial guidelines under proposed section 191HA,
the ILC guidelines will have no effect to the extent of the inconsistency.[15]
Guidelines to include trigger for ILC involvement
2.22
Both the NNTC and the Cape York Land Council emphasised the need for a
trigger to bring the ILC into native-title negotiations. Since the ILC currently
operates on the basis of applications made to it, this requires native-title claimants
to have already developed a certain capacity. However, as the South Australian
Government pointed out, such capacity is generally developed as the
native-title process unfolds.[16]
2.23
In this context, the NNTC submitted:
A current impediment to the ILC contributing to native title
settlements is that there is no legislative or procedural 'trigger' for it to
become involved in negotiations toward a settlement. Unless the native title
party already has a project in train that could be bolstered by the acquisition
of freehold land or assistance with land management, it is unlikely that the
ILC will have cause to know whether and in what way it might contribute to a
settlement.[17]
2.24
Similarly, the Cape York Land Council suggested:
The guidelines should include a trigger for ILC to become
involved in negotiations toward a settlement, so that any potential
contribution from ILC can be identified by the government parties and native
title claimants at an early stage.[18]
2.25
More specifically, the South Australian Government—in the context of its
suggestion that involvement in native-title settlement be made a core ILC
function—proposed that a request from all parties to a native-title claim
should be adopted as a trigger for ILC involvement in native-title negotiations.[19]
2.26
Several submissions emphasised the need for further consultation on the
content of any proposed guidelines, and for the draft guidelines to be made
public.
2.27
For example, the ILC suggested that Schedule 4 be amended to require the
Minister to consult with the ILC before making any guidelines, and noted that
the drafting of the guidelines before the introduction of the Bill 'would have
given confidence to stakeholders about the package of innovations and their
workability'.[20]
The South Australian Government stated that it would like to see the ATSI Act
mandate consultation between the Commonwealth and the states before any
guidelines are made.[21]
2.28
The NNTC noted the need for consultation as well as effective adaptation
by the ILC:
The NNTC notes that any guidelines will not be binding on the
ILC and therefore the extent to which these amendments will have any positive
effects for Traditional Owners will depend on the willingness of the ILC to
review and adapt where necessary its strategic planning, stakeholder engagement
and land acquisition and management policies and procedures.
The NNTC would welcome an opportunity to work with the ILC
and relevant Commonwealth departments in the future to ensure the proposed
amendments can deliver positive outcomes in this regard.[22]
2.29
The Cape York Land Council also called for further consultation with
Indigenous interests about the form of the proposed guidelines.[23]
Departmental view
2.30
In its submission, the Department advised that there would be more
detailed consultation with the ILC and other stakeholders as the legislative
process proceeds.[24]
2.31
The NNTC submitted that there should continue to be compensation for the
surrender or extinguishment of native-title rights, or for withdrawal of
native-title claims, and that citizen rights should not be substituted for
compensation:
This challenge does not rest solely with the ILC, but rather
with all government parties seeking to resolve native title claims via
negotiated settlement. Government parties must adequately compensate
Traditional Owners for the loss or impairment of native title rights and
interests, including procedural rights. Referring native title parties to
existing programs and services available to other Australians, without special
regard to the unique circumstances of native title claimants and the often time
critical nature of settlement negotiations will not result in faster or better
quality native title outcomes.[25]
2.32
Similarly, the Cape York Land Council urged that:
Any contribution by ILC to a native title settlement should
not replace the obligation of government parties to compensate the native title
holders for loss or impairment of their native title rights and interests.[26]
2.33
AIATSIS also submitted that any guidelines should not be used to compensate
for future extinguishment of native title or other Indigenous interests in land.[27]
2.34
The NNTC underlined the importance of renewing the ILC's
regional-planning processes to enable the ILC to respond quickly and effectively
to the needs of native-title groups:
The NNTC submits that in recent years, the regional
indigenous land strategies produced by the ILC have deteriorated in quality and
it is not clear from publicly available documents what efforts have been made
in terms of proactively and systematically engaging relevant stakeholders in
their preparation.[28]
2.35
According to the NNTC, the engagement of the ILC at regional levels has
declined since the abolition of ATSIC in 2005, and will need to be
re-established if guidelines for native-title settlements are introduced:
In order for the ILC to support native title settlements,
mechanisms for regional engagement will need to be re-established and
adequately funded. Such mechanisms have the potential to contribute to a more
collaborative approach whereby NTRBs/NTSPs can work with the ILC and government
parties to identify aspirations for land acquisition and management early in
negotiations and work together towards culturally and economically sustainable
outcomes for native title groups.[29]
2.36
The Cape York Land Council also expressed concerns in this area:
Consideration must be given to effective regional planning,
carried out between ILC, government parties and Indigenous representatives, to
enable native title groups to identify potential benefits at an early stage.[30]
2.37
The Cape York Land Council reported some recent negative experiences
with the ILC, namely, the ILC's reluctance to fund further acquisitions on Cape
York until existing ILC-purchased properties there are making a financial return.
In the Cape York Land Council's view, consideration of each application to the ILC
should be on its own merits.[31]
2.38
Although the requirement for the ILC to divest land within 'a reasonable
time'[32]
has not inhibited the ILC from a strategic move towards longer divestment
timeframes, submissions by both the South Australian Government and the Cape
York Land Council expressed concern that this provision might constitute an
obstacle to the longer timeframes involved in native-title negotiations.
2.39
The South Australian Government accordingly recommended an amendment to Schedule
4 to ensure that the timeframes associated with legislative requirements, as
well as those associated with ILC land-acquisition programs, are appropriate
and flexible. This would permit native-title settlement negotiations to incorporate
strategic land purchases by the ILC.[33]
2.40
Further:
It would also be useful if an amendment [is] made to [paragraph
191D(3)(b) of] the ATSI Act...to enable the particular circumstances of Native
Title claims settlement negotiations to be taken into account in assessing what
is a reasonable time to dispose of land acquired by the I.L.C. for the purpose
of making a land grant.[34]
2.41
The Cape York Land Council expressed its concerns more broadly:
The guidelines need to provide realistic timeframes for
finalisation of any contribution, so that there can be certainty of benefits in
any proposed comprehensive settlement.[35]
2.42
The South Australian Government, although supportive of the proposed
amendments, submitted that involvement in native-title settlements should be
made a core legislative function of the ILC, rather than a matter for the ILC
Board to 'have regard to' through ministerial guidelines:
[T]here remains a fundamental concern that whilst the
proposed amendments seek to provide a clear direction to the I.L.C. about what
it is to consider when it chooses to support Native Title settlements,
assistance with Native Title settlement is not mandated as a core function of
the I.L.C. So, even if the proposed amendments are accepted, the I.L.C. can
continue to perform its core functions without being obliged to consider
whether it will participate in Native Title settlement by reference to the proposed
new statutory guidelines.
...it has become increasingly apparent that the I.L.C's role in
providing equity into the Native Title system can better be achieved by
remoulding it as a key player in settlement negotiations, particularly in
claims over land where mining will not take place, or where a Native Title
determination is limited in its coverage by underlying extinguishment.[36]
2.43
The South Australian Government also made the point that, if this
fundamental amendment were made, the ILC would then be required to include
assistance for native-title settlements as part of the National Indigenous Land
Strategy. The amendments in Schedule 4 currently provide encouragement to the
ILC to participate in native-title settlements, but would not by themselves
ensure that the ILC does so. The South Australian Government's suggested
amendment to Schedule 4 would place native-title settlement at the core of the ILC's
role, supported by guidelines.[37]
2.44
The Cape York Land Council, in addition to its other comments, submitted
that:
- any contribution by the ILC to a native-title settlement should
not replace the ILC's existing acquisition program, but should be complementary
to it; and
- consideration must be given to ongoing resources and support for
the native-title group as part of any native-title settlement, to ensure that
appropriate capacity and therefore maximum benefits from the settlement can be
achieved over time.[38]
Committee view
2.45
The committee acknowledges the importance of ensuring that the
significant amount of taxpayer funding invested in the ILC achieves its goals
of providing economic, environmental, social or cultural benefits to Indigenous
persons through land holding. Schedule 4 of the Bill aims to increase the
effectiveness of the ILC by making it subject to ministerial guidelines
inasmuch as it supports native-title settlements, and the committee supports
the intention to involve the ILC more effectively in the resolution of
native-title claims.
2.46
However, in the committee's view, there are two ways in which the
drafting of Schedule 4—principally in relation to item 1—could be improved to
help it achieve its intended purpose.
2.47
Firstly, there is some ambiguity in proposed new subsection 191F(2A),
which may not help it to achieve its aim. The wording, 'to the extent that the
Indigenous Land Corporation performs its functions in supporting native title
settlements', could be read as if the ILC already has a specific function to
support native-title settlements, which is not the case. If the wording were
inverted to read 'to the extent that the Indigenous Land Corporation supports
native-title settlements when it performs its functions', this ambiguity might
be avoided and Schedule 4 might be more effective.
2.48
Further ambiguity arises from the lack of any definition of 'native title
settlements' in Schedule 4 or in the ATSI Act (which has, besides, only a
fleeting reference to the Native Title Act). The committee considers that the
inclusion of a definition of the term 'native title settlements', or at least a
reference to the Native Title Act, would potentially increase the effectiveness
of the legislation.
2.49
In relation to the inconsistency provision in item 3 of Schedule 4
(proposed new subsection 191I(1A)), although the ILC opposed it as unnecessary,
the committee takes the view that the provision will assist in giving
precedence to ministerial guidelines over any guidelines that the ILC has made
or may make.
2.50
It is also the committee's view that several issues raised in submissions
could be addressed in the content of the proposed guidelines. For example, the
committee supports the calls for the creation of a trigger to involve the ILC
in native-title settlements, and especially the suggestion of the South
Australian Government that a request for ILC involvement by all parties to a
native-title claim would be a suitable trigger. The guidelines could also state
that the longer timeframes involved in native-title settlements should be taken
into account when determining what is a 'reasonable time' for the ILC to divest
land to Indigenous corporations.
2.51
Since the ILC acknowledges that it already has some involvement in
native-title settlements, the committee believes that ministerial guidelines
that include a trigger for ILC involvement will ensure that Schedule 4 achieves
its aim. A change of function for the ILC, as preferred by the South Australian
Government, would then be unnecessary.
2.52
The committee also echoes the calls by several submissions for wider
consultation on the content of the proposed guidelines. The committee notes
that, in addition to any consultation that occurs during the drafting process,
the guidelines will be a disallowable instrument, so that there will be an
opportunity for further parliamentary scrutiny before they come into effect.
2.53
Ultimately, the effectiveness of the measure proposed in Schedule 4 will
depend on the clarity of the legislation and—in the words of the NNTC—the 'willingness
of the ILC to review and adapt where necessary its strategic planning, stakeholder
engagement and land acquisition and management policies and procedures'.[39]
The committee calls on the ILC to take the opportunity afforded by this
legislation to increase its involvement in native-title settlements, and
considers that attention to more focussed regional planning should be an early
priority in this process.
2.54
In view of the above comments, the committee makes the following
recommendations.
Recommendation 1
2.55
The committee recommends that the measure contained in Schedule 4 of the
Bill be clarified by:
- re-wording proposed new subsection 191F(2A) to read 'to the
extent that the Indigenous Land Corporation supports native title settlements
when it performs its functions'; and
- adding a definition of the term 'native title settlements', or
a reference to the Native Title Act 1993, to the Aboriginal and
Torres Strait Islander Act 2005.
Recommendation 2
2.56
The committee recommends that the Australian Government consult more widely
with stakeholders, and release any draft ministerial guidelines, before
proceeding with the measure contained in Schedule 4 of the Bill.
Recommendation 3
2.57
Subject to the preceding recommendations, the committee recommends that the
Senate pass the measure contained in Schedule 4 of the Bill.
Senator
Trish Crossin
Chair
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