«Owning land can at times in fact become a liability. some properties in the Indigenous estate may never be viable.2 — Indigenous Land Corporation, 2010 ...»
When governments observed that native title appeared to lack the hoped for boost to land rights, they tried to nurse it along with tax breaks. But favourable taxation of native title payments34 only reinforces the fact that “native title does not have inherent economic value or benefits.”35 A recent survey of those involved in ILUA negotiations suggested that native title parties were not “adequately compensated for land use”.36 And yet, the expectation is that native title and other land rights will act as a base for livelihood. This begs the question, “what value is communal native title and how is value assessed?”37 Perhaps the simplest means of assessing the value of native title is to assume that those who hold or claim native title derive satisfaction sufficient to make the claim. In addition, however, they hope to derive income. All owners and claimants (or those fortunate to be named in an agreement) share at least one of four means of deriving income. The first is where employment is established through ownership of business, or employment directly related to the native title right. Alas, there are few examples of direct employment arising from native title; the Rio Tinto example cited below is one.
Indeed, almost all income is derived either from employment programs used to boost employment on native title land, or through the proponent, not the native title holder, or from rent.
There are three forms of rent. First, one or many proponent users of the land want to “solve” the entanglement of multiple claims present and future, they may pay in cash and/or in kind to satisfy the claimants or owners through an all encompassing agreement such as at Comalco Cape York. Second, monies may be paid to owners for “Future Act Activity”, which is for disturbances to native title rights.38 As at April 2012, some 2663 Agreements had been lodged with the National Native Title Tribunal. The negotiating parties have made only 68 public.39 Some have suggested a register of agreements so that comparisons may be made or benchmarks of best practice or best outcomes established, but there is caution in publication at what are mostly private negotiations between interested parties.40 The overwhelming number of future act agreements available is for access for mining, exploration, gas pipelines, and infrastructures as varied as an airport, shooting range, shire infrastructure, and an attempt to gain perpetual pastoral lease over native title claims. For example, in 2010-11 the Carpentaria Land Council Aboriginal Corporation received a total of 92 future act notifications. Most commonly, these were for exploration permits, works programs and fishing permits.41 The Northern Land Council reports mining future acts are the largest driver of NLC’s native title work program.42 Examples of payment for compensation for such acts are difficult to find but one is traditional owners for the proposed Wunara phosphate mine who received $150 000 of exploration compensation money, which they used to renovate five houses at the Wunara outstation.43 Another is for exploration access fees paid to the Dja Dja Wurrung People of central Victoria at $1 500 per year per drill hole, and cultural heritage payments for inspections at $300 per day.44 The 2002 MaMu Canopy Walk Heads of Agreement,45 for example, provides $1 to the MaMu people for each entry fee paid by visitors to Wooroonooran National Park, Innisfail. The magnificent view of the north Johnstone River from the canopy walk, which displays some references to early MaMu habits and customs, earns the MaMu about $150 000 a year.46 The MaMu also have the right to participate in the management of the National Park.
The third means of making money is by way of extinguishment compensation claims. These are uncommon. In 1997 and 2010 the Dunghutti Elders Council in the Kempsey region was paid $738 000 and $6.1 million respectively by the New South Wales Government as compensation for extinguishment of Dunghutti native title at Crescent Head in New South Wales.47 Possibly the largest payment is the 2003 Burrup and Maitland Industrial Estates Agreement Implementation Deed,48 where the State of Western Australia acquired land for construction of heavy industrial estates on the Burrup Peninsula and adjacent Maitland area, along with any native title rights and interests that the native title parties may have had. The Agreement provided that in exchange for permanent extinguishment of native title on the Burrup and Maitland Estates industrial land and residential/commercial land in Karratha, the native title parties receive freehold title of Burrup land, a cultural centre on the land worth $5.5m and infrastructure funding on the land worth $2.5m. Five per cent of developed lots of Karratha commercial/residential land were to be transferred to an Approved Body Corporate, including $5.8m in compensation payments. The State also implemented the $3.5m Roebourne Enhancement Scheme to improve housing, transport, agency co-ordination and asbestos removal.
The question of how compensation for loss of native title rights and interests will be calculated has not been settled. For example, Central Desert Native Title Services has lodged a compensation claim over the Gibson Desert Nature Reserve, a remote and rarely visited conservation area via Kalgoorlie. The traditional owners, with the Western Australian Government, are attempting to legislate recognition of title and the existence of the nature reserve. In the event that agreement cannot be reached, the claim will likely be regarded as a “test case.”49 The most likely outcome, however, is that no money will change hands and claimants will “assist” in management of the reserve.
It is becoming clear that the value of native title is determined by those who create wealth and not by some innate value attributed by Aboriginal people. The reasons are that those who have successfully claimed native title have derived monetary benefit only when another potential occupant has presented them with a bankable proposition – usually a mining company,50 a neighbouring pastoralist,51 or a government keen to preserve land in a national park.52 While traditional owners may enjoy native title, it may not put bread on the table. It may also lock owners into longterm arrangements adverse to their best interests. For example, there is solid evidence that one reason many traditional owners in the Pilbara have “surged ahead”53 in establishing business is because, unlike their contemporaries in Cape York and elsewhere, they no longer live on their traditional land. The Rio Tinto experience has been that many owners live in regional centres and visit their traditional lands.
Traditional owners fly to Rio Tinto’s newer mine sites from places such a Geraldton, Carnarvon, Broome and Derby.54 Native title system Registered determinations, registered claims, and registered indigenous land use agreements,55 each of which allows the right to negotiate, cover perhaps 80 per cent of the Australian landmass.56 In addition, 36 per cent of the Northern Territory is inalienable freehold under the Aboriginal Land Rights Act 1976 (NT) or other Aboriginal land,57 and 21 percent of South Australia is inalienable freehold under the Aboriginal Lands Trust of South Australia Act 1966 (SA) and later legislation.58 Measured by coverage, native title and previous land rights legislation is an extraordinary success. In 2006, 93 000 of Australia’s estimated 517 000 Aboriginal and Torres Strait Islanders lived in a discrete indigenous community. The majority, 80 500, lived in remote or very remote area communities; the remaining 12 500 in non-remote discrete communities in communities such as Redfern in Sydney and Framlingham in western Victoria.
In 2006, 26 per cent of people in remote indigenous communities lived in one of the 14 communities with one thousand or more people such as Yuendumu in the Northern Territory and Hope Vale in Queensland. A further 41 per cent lived in communities with between 200 and one thousand residents and 20 per cent were in communities with between 50 and 199 residents. Nearly 13 per cent of people lived in the 838 communities with a population of less than 50 people.59 There have been 185 determinations of Native Title, 141 that it exists and 44 that it does not.60 The number of findings that it does not exist has been increasing since about 2000. Of 443 current claimant applications, 25 per cent were lodged after 2006, but 47 per cent have been in the system for between 10 and 17 years.61 The findings ratio and the large number unresolved after lengthy periods suggest that diminishing returns have set in. Perhaps these have spurred governments to undertake Indigenous Land Use Agreements, which have the advantage of applying to multiple interests and multiple aspects of land use and management, including future uses. Once registered, an ILUA is a contract legally binding on all native titleholders in the area covered by the agreement, whether or not they are signatories to the agreement. There are 649 registered ILUAs.
Once agreement is reached, the negotiating parties are required to lodge a copy of the agreement with the NNTT. In a majority of cases, however, parties will, for reasons of confidentiality, give very few details of the contents of that agreement or its subject matter. For example, payment details will rarely be included. There are also agreements, like the Gove agreement, outside of the native title regime.
Yarrabah, Cape York Unfortunately, few details of the ILUAs are available from the register. A random sample of 24 (of 649) ILUAs suggests that the vast majority were for mineral, oil and gas exploration access.62 Some required access for infrastructure for electricity utilities and others from shires for housing and other infrastructure. One was for the management of a national park.
An example is at Yarrabah, located 37 km south of Cairns, a 45-minute drive on good roads. It has up to 3 000 residents. The houses are in poor repair, there is one school, one church, one other public hall and some minor shops. There is very little employment in Yarrabah.63 Local officials have written that “issues of concern are similar to those of other Aboriginal & Torres Strait Island Communities with unemployment, health, housing and education and no historical opportunities for economic development.”64 Yarrabah was established by missionaries in 1892. There were three major clan groups – GuruBanna, GuruGulu and Yarraburra. The mission closed in the late 1960s and came under control of the Queensland Government. Yarrabah received its Deed of Grant in Trust in 1986 and the Yarrabah Aboriginal Shire Council became selfgoverning. Native title was granted in December 2011 and Gunggandji Prescribed Body Corporate has been established and an office opened. Local officials suggest that their “successful determination has created opportunities for our people for the future.”65 The PBC will manage ILUAs and is “looking for and resourcing economic opportunities – ecotourism … preserve Bush Fruit Trees, rehabilitate and clean up their land & sea areas, prevent wild or uncontrolled fires”, and “work with appropriate agencies to secure funding for Traditional Owner rangers so we can manage our country.”66 The prospects for development at Yarrabah seem bleak. And yet, Cairns beckons, just as it has at least since 1986.
Native title industry A pre-Mabo Department of Education and Employment report, Rural Development Skills on Aboriginal Land: can we meet the challenge?, found that the majority of pastoral operations on Aboriginal title were not being run in a commercially
sustainable manner and required continuing government grants. The report concluded:
Aboriginal know how has enabled the development of political and negotiating/manipulative skills as a significant modus operandi for survival within the non-aboriginal world (skill in gaining access to resources rather than skills in generating them through European-style productive activities).67 The conclusion was an acute and courageous observation. In the twenty years since, land councils continue to excel at sourcing grants and maintaining a strong presence. To these, however, have been added a host of other players – Native Title Representative Bodies, Prescribed Bodies Corporate and Trusts.68 These bodies, in addition to grants received, hold the moneys from native title or programs to buttress native title.
The native title method of extracting and distributing “rent” differs from the Aboriginal Land Rights (Northern Territory) Act 1976 where, for example, mining royalties are, in effect, tipped into the Aboriginal Benefit Account and distributed to supplicants on application via Land Councils. Under the ALRA in the Northern Territory and in other land systems in the States, land councils have been dominant.
Under native title, traditional owners negotiate a deal with proponents. Nevertheless, Native Title Representative Bodies (NTRBs), which are primarily responsible for servicing the needs of native title-holders in their area, have become central players.69 In some cases land councils have taken on the native title role; in other cases, new bodies have been formed.
Table 1. Funds for Native Title Representative Bodies and Service Providers Native Title Representative Bodies and Service Government funding: 2010-11 Providers Torres Strait Regional Authority $2.
1m ($70m total income, 108 employees) Cape York Land Council $4.8m ($5.6m total income, 28 employees) Carpentaria Land Council Aboriginal Corporation $1.6m ($5.1m total income, 37 employees) North Queensland Land Council Native Title $2.5m (last reported 2005-06) Representative Body Aboriginal Corporation Queensland South Native Title Services $11.2m (same total income, 49 employees) NTSCorp (New South Wales) $4.5m (same total income, not reported) Native Title Services Victoria $4.7m (same total income, 28 employees) South Australian Native Title Services $6.3m (same total income, 29 employees) Goldfields Land and Sea Council Aboriginal $5.4m (same total income, 27 employees) Corporation (Representative Body) Kimberley Land Council $7.7m* ($29.3m total income, 113 employees) Central Desert Native Title Services $5m (same total income, 57 employees) South West Aboriginal Land and Sea Council $3.3m ($5.6m total income, 37 employees) Yamatji Marlpa Aboriginal Corporation $11.2m ($28m total income, 103 employees) Central Land Council $3.3m ($21m total income, 200 employees) Northern Land Council $3.4m ($38m, 205 staff) Source: Annual Reports of NTRBs. * estimate The NTRBs are mostly land councils in a new role, with some new bodies established for native title. Table 1 indicates the distribution of funds among councils, which they use to assist claimants and owners in native title matters. The land councils have taken on the extra role of NTRBs, adding these funds to others grants.
Source: Northern Land Council, Annual Report 2010-11, pp 189 and 206.
Table 2 suggests that the Northern Land Council, like all other land councils, is still good at “gaining access to resources.” Native title is a lesser element in the Northern Territory because of the presence of the ALRA and the grants system associated with it.
Native title-holders must establish a Prescribed Body Corporate (PBC) to represent them as a group and manage their native title rights and interests. There are, so far, 93 prescribed bodies corporate. Funding for PBC administrative costs comes from the NTRB for the area in which the PBC is located.70 PBCs have sought a new pool of funds, separate from the NTRBs, with whom some PBCs are in conflict.71 The PBCs are able to undertake negotiations directly with others over their claim or future uses of native title. The new arrangements may signal a dispersal of council power. One estimate is the PBCs represent 50 000 traditional owners,72 although the count in Table 3 suggests far fewer.
In the latest corporate returns, 86 of 93 PBCs indicated their activities as land management or did not specify. This usually means being paid to watch miners drill a hole, or assist a national parks official. Only 27 PBCs reported an income. Of those, seven reported a loss in 2011, one being a major loss. The Dunghutti Elders Council in Kempsey, for example, was paid all up $6.8m by the NSW Government in 1997 and 2010 as compensation for extinguishment of native title at Crescent Head. The corporation reported $5m in its account in 2010 and a loss of more than $1m in 2011.