«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 ...»
The Registrar of Indigenous Corporations has taken action to place the council in administration.73
Source: various documents from the Office of the Registrar of Indigenous Corporations for 93 PBCs registered from 1997 to 2012.
Ngarluma Aboriginal Corporation has the largest income by far at $7.8m in 2011, which was the result of an ILUA with Robe River Mining Co Pty Ltd in 2011. The ILUA Area covers about 7 000 square kilometres in the vicinity of Karratha. Native Title was granted to the Ngarluma and Yindjibarndi people in May 2005 and the NAC was set up in June 2005 and is the PBC for Ngarluma. There is also a housing estate development commenced in 2010, the Yaburriji Estate in Roebourne. There is also hope for the Mt Welcome Pastoral Station. The Station hopes to employ all local people and to run a successful beef business. The NASH plan is to develop a new housing community on approximately 50 hectares of land next to Roebourne, for up to 400 housing lots and to provide land for educational, community and commercial facilities to enhance the opportunities for all Indigenous people in Roebourne. There has been $11m in State government funding.74 Trusts may be used where native title is not established or no body corporate is available as a vehicle to receive monies. In 2006 there were two regional ILUAs written between the Dja Dja Wurrung People and the Minerals Council of Australia as well as the Wamba Wamba Barapa Barapa and Wadi Wadi People and the MCA to satisfy the future act provisions of the Native Title Act. A trust was established for each. Both agreements covered disturbance from low level exploration and specified work and pay rates associated with the exploration.75 Larger agreements, Comalco and Gove for example, establish a trust for monies.
The 2001 Comalco ILUA established a Charitable Trust controlled by a majority of traditional owners to manage funds and annual contributions made by Comalco and the Queensland Government.76 The Browse LNG Precinct Project Agreement of June 2011 between the State of Western Australia, the Goolarabooloo Jabirr Jabirr Peoples, Woodside Energy Limited established an administrative body, Administrative Body and Corporate Trustee, at a cost of $5m.77 Trusts are well recognised under the ALRA system. Monies, for example, received on behalf of the Associations of Aboriginal people are held in the Land Use Trust Account and disbursed in accordance with the terms of the trust.78 The trusts administered by a land council, however, suggest not only an intimate relationship between land council and traditional owners, but one where land councils are in control.
A land trust can only deal with the land in ways that the Land Council directs it to, but land councils can only direct land trusts to deal in land in ways that the traditional owners have determined.79 The native title system encourages direct dealing between traditional owners and other users. In practice, there are often competing claimants, which look to others to sort their differences. In addition, large developments with a long life usually require an enduring instrument for disbursements and other arrangements such as promises of employment, where a trust is most effective.
Where trust and ILUAs have not been used, the prospects for cooperation between competing claims is diminished. Body corporate politics can be most unpleasant. Joint ownership and control of properties and monies can lead to considerable disharmony.
In circumstances where an individual owns property and is, as a result, part of the body corporate for the purposes of managing joint matters of maintenance and such, at least the option of selling exists. Aboriginal collective ownership does not allow for disposal of property, so body corporate politics is enduring and inescapable, at least not without giving up rights to land and proceeds.
These matters are intensified where native title is claimed over other Aboriginal lands and claimants are not the same as the owners of those properties. In 1997, for example native title was granted over an area almost the same size as the Hopevale Deed Of Grant In Trust. The determination recognised the existence of native title held by 13 separate clans in their respective clan estate areas.80 The Hopevale ILUA is a body corporate ILUA. The parties to it are Hopevale Congress RNTBC, Dhubbiwarra Aboriginal Corporation RNTBC and three individual blockholders who have been offered residential leases.81 The Hopevale DOGIT was transferred to Congress in 2011.
Both before and since that date, there has been litigation before the courts on four occasions concerning the transfer. The native title-holders, the subject of this determination, do not all hold native title to the entire determination area. Each clan holds native title only within its own clan estate area. Other litigation concerns breaches of trust, mainly contractual arrangements proposed for the disbursement of money in the form of an ex gratia payment to be obtained by Congress from the State and future royalties in relation to mining on Aboriginal land.
The system is bust – patch-ups do not work Native title and land rights have two deep problems. First, the collective nature of the title disallows the capture of improved value.82 Australian governments have invested extensively in the belief that the best prospect for Aborigines lies in collective access to tribal lands. This, notwithstanding that at the time of earlier land rights legislation, the Aboriginal Land Rights (Northern Territory) Act 1976, traditional owners took exception to their collectivisation and having their lands managed by land councils.
Every group of traditional Aboriginal landowners in Central Australia to whom the Aboriginal Land Rights Bill (Northern Territory) 1976 was verbally translated was surprised and angered to find that it did not meet their expectations.83 Second, peer group pressure placed on individuals in those communities is so great as to stifle effort and reward, which encourages owners to receive passive rents.84 Indeed, the latter, which creates such a strong culture of compliance in poor behaviour, may be the most powerful barrier to success.85 Peer pressure, so often excused as “culture” in these communities, creates such low expectations and entrenches such bad behavior that few can escape its clutches. Programs that seek to normalize abnormal environments found in these communities almost always fail. The Community Development Employment Projects program (CDEP) has historically carried the burden of training Aborigines, but apart from some successes among Aboriginal groups that deliver CDEP and other employment programs,86 after 40 years it has failed to produce a job-ready workforce.87 The Indigenous Land Corporation has long reported “ILC-operated businesses have experienced people refusing seasonal, casual and full-time employment and/or withdrawing from traineeships and employment and returning to CDEP or income support with immunity.”88 The new generation job creation programs – Indigenous Pastoral Program, Land/Sea Management Program, Fire Management and Abatement, Parks and Reserves, National Water Commission and so on – hire employees because of their race rather than their value. As a consequence, results are often poor.
Uluru rent money project 2005 – Northern Territory The ILC concern is illustrated well by Uluru rent money. The earnest desire to have Aborigines work on country creates perverse incentives. Traditional owners of UluruKata Tjuta National Park allocate rent from the national park to community development projects. This is called the Uluru Rent Money project.89 The Central Land Council, however, manages the whole operation. Activities include meetings of the Mutitjulu Working Group, and projects such as dialysis services, the construction and operation of a swimming pool and the renovation of the recreation hall and basketball court at Mutitjulu. “Independent” research undertaken in the community suggests that, “overall, community members... are positive about the things that had been achieved with the rent money.” Unfortunately, “service providers, who are generally supportive of this service, point out that the hall has already experienced problems in terms of maintenance and appropriate equipment.”90 There are also outstation upgrades at New Well outstation (SA) and Kulpitjara Outstation.91 These communities are in disarray; the rent keeps them there.92 At the same time the ILC purchased Ayers Rock Resort in May 2011 “in collaboration with”93 Wana Ungkunytja Pty Ltd representing the communities of Kaltukatjara (Docker River), Mutitjulu and Imanpa for $300m. The ILC has established the National Indigenous Training Academy at Yulara to take on 50 Indigenous trainees in 2011-12 and 100 in 2012-13. “Recruitment partners” have been engaged throughout Australia to recruit Aboriginal job seekers.94 Meanwhile, the local inhabitants at Mutitjulu sit idle.
The purchase covers failure. Conditions appear to have remained the same despite title, rent and land purchases and the explicit desire to train and employ Aborigines.
Ooratippra Aboriginal Corporation – Northern Territory Other examples indicate not only conflict but also the sheer pointlessness of some ventures. Ooratippra pastoral lease is situated 300 kms northwest of Alice Springs and covers 4 292 square kms. In 1999, the Indigenous Land Corporation purchased Ooratippra Perpetual Pastoral Lease for $2.55m and transferred title to the Ooratippra Aboriginal Corporation. During 2000-02 the ILC spent $327, 592 on Ooratippra and there was an “inspection” of Ooratippra in 2010.95 The Ooratippra Aboriginal Corporation has reported an income of $65 000 in 2006 for lease of the station to Mt Riddock Pastoral Company, a neighbouring landowner.96 The only other reported income was $72 300 in 2009 and $19 000 in 2011.97 In 2001, the Central Land Council lodged the Ooratippra native title application on behalf of various estate groups of the Alyawarr language group. A native title consent determination for exclusive possession of Ooratippra pastoral lease was handed down in 2011. The application covered the whole of the station, which includes the Irretety Community Living Area held by the Irretety Aboriginal Corporation. As Ooratippra Perpetual Pastoral Lease and Irretety Communal Living Area are owned by native title holders, they were able to claim exclusive possession which includes the right to negotiate over any future acts like mining.
In 2003, the Irretety ILUA allowed a section of land on the Ooratippra pastoral lease to be purchased by the Northern Territory Government for the purpose of creating an Aboriginal community living area. Without the ILUA, the transaction in the land may have been subject to the future act and right to negotiate provisions of the Native Title Act 1993 (Cth). The parties also agree that any action taken under the agreement in order for the land transaction to occur will not extinguish any native title rights and interests that may exist in the area. The entire area is now exclusively native title.
A Prescribed Body Corporate has to be established to look after the interests of the native title holders. There are 37 members of the Ooratippra Aboriginal Corporation, three of whom are members of the Ampilatwatja Community (population 360) and the remainder of the Alpurrurulam Community (Lake Nash, population 740). These communities are 340 kms apart. The relationship between the Ooratippra Aboriginal Corporation, which owns the pastoral lease, and is a native title holder, and the Irretety Aboriginal Corporation (which is located 400 kms north of the other communities), which is also a native title holder, may be a difficult negotiation. The Central Land Council recently reported that it has “provided mediation assistance in an ongoing dispute between two groups of traditional owners affecting the development.”98 The owner of Mt Riddock indicated that the leasing arrangement had ceased in 2009, and that the station “is in a hell of a mess now”.99 Fences are broken, bores broken down, few cattle on the property, no-one is working it. Houses, including a new house, are wrecked and abandoned. The interviewee rated the property as one of the top ten in the Alice Springs area. The payments for lease were from $60 000 up to $100 000 in the last year, although these amounts do not appear in the PBC record.
The Land Council had wanted $250 000 a year rent, but was unable to achieve this.
The Alcoota property adjacent to Ooratippra is, by contrast, well managed, by a non-Aboriginal manager with the Aboriginal owners (ALRA title) working well. This suggests it is not the title but the attitude: native title encourages rent, not work.
Conclusion Paul Keating’s hopes for native title may have proved somewhat of a burden to the original occupants. As the Northern Land Council indicates, native title can gum up existing title and administration. The Indigenous Land Council concludes that land can be a liability. It has also disappointed those who have missed out on title, or on the spoils of title. The Rio Tinto experience suggests that a surer road to happiness has been to leave the burdens of collective title and gain employment in the wider market.
Many claimants want “social justice” so claims go on long after native title has been granted.
Just as surely as welfare has been poison, land rights have been no guarantee of success for Aboriginal people. Although land rights created great expectations among Aboriginal leaders, claimants and policy-makers, the evidence suggests that land rights, and native title, have failed to deliver on these expectations. No matter the particular device to administer native title and other land rights, whether ILUA, trust, PBC or through a land council, the “success” or otherwise depends on the wealth generated by the land user, not the native title landlord. Even where there are prospects, the scope for poor outcomes and passive non-state welfare remains great.
The benefits are a lottery. They mostly accumulate to those who administer programs designed to make land rights work. Alas, they almost always fail. The reason they fail is that collectivisation is no basis for commerce, and it reinforces poor habits and bad behaviour. The land rights era was based on an assumption that Aboriginal people were so different from others that economic institutions and peer group behaviour would somehow not apply. Collective living and reinforcement of bad habits is a major problem.
1. Commonwealth Parliamentary Debates (CPD), House of Representatives, vol 190, 16 November 1993, 2883.
2. Indigenous Land Corporation, “Indigenous Economic Development Strategy Draft for Consultation and Action Plan 2010-2012,” 2010, 25.
3. Northern Land Council, Annual Report 2010-2011, 2011, 143.
4. Natasha Robinson, “Indigenous rise from boom,” The Australian, 1 August 2012.
5. Liz Jackson, “Judgement day,” ABC Four Corners, 10 May 2012.
6. Redfern Speech (Year for the World’s Indigenous People) – Delivered in Redfern Park by Prime Minister Paul Keating, 10 December 1992.
7. See Amy Wax, Race, Wrongs and Remedies: group justice in the 21st century, Rowman and Littlefield, 2009.
8. Lisa Strelein, “Land, Rights, Laws: issues of native title,” Australian Institute of Aboriginal and Torres Strait Islander Studies, Issue Paper No. 23, 1998, 6.
9. Indigenous Land Corporation, Annual Reports 2001, 2002, 2010.
10. The mining boom, particularly in Western Australia and Queensland is providing significant economic opportunities … and many are taking advantage of the deals on offer. Brian Wyatt, “Strategic Issues in Native Title 2012-13,” Native Title Conference 2012: Echoes of Mabo: honour and determination, Australian Institute of Aboriginal and Torres Strait Islander Studies, 2012, 6.
11. The Attorney-General and the Minister for Families, Housing, Community Services and Indigenous Affairs, Leading Practice Agreements: Maximising Outcomes from Native Title Benefit, July 2010. The paper called for a possible package of reforms to promote “better practice” in native title agreements and the governance of native title payments. No new policy has been announced.