Australian Indigenous Law Reporter
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The ILC is a Commonwealth statutory authority. Its primary responsibilities are to address the dispossession of indigenous peoples in Australia through land acquisition and to assist in the management of indigenous-held land.
The ILC is accountable to the Commonwealth Parliament through the Minister for Aboriginal and Torres Strait Islander Affairs. Its seven-member board, appointed by the Minister, makes all policy and land purchase decisions. The Chairperson and at least four other members of the board must be indigenous persons. ATSIC is represented on the ILC Board through its Chairperson and another nominee.
The ILC reports annually to the Commonwealth Parliament. The Annual Report provides detailed information about the Corporation's functions and powers, board members, operations, administration and expenditure. A report on the Aboriginal and Torres Strait Islander Land Fund Reserve is prepared by ATSIC, which administers the Fund under delegation from the Minister for Finance and Administration, in consultation with the ILC. This report is reproduced in both the ATSIC and ILC Annual Reports.
The following edited excerpts from the ILC Annual Report 1997-98 focus on the ILC's activities in land acquisition on behalf of indigenous peoples and the policy challenges confronting the ILC in fulfilling its responsibilities in both land acquisition and land management. [1] The excerpts commence with the report of the ILC Executive Chairman, David Ross.
The High Court's decision of 1992, which first recognised native title, provided a genuine opportunity for the righting of an immense, previously unrecognised wrong. The recognition of prior indigenous ownership of land paved the way for an entirely new direction in indigenous affairs, including the establishment of the Land Fund and the Indigenous Land Corporation in 1995 to address the widespread dispossession of indigenous people.
As the first Executive Chairman of the ILC, it has been a challenge and privilege to chair the Board during the development of a new organisation established specifically to assist indigenous people to acquire land and, over time, to re-establish an indigenous land base.
After three years, the ILC has completed its transition from the fledgling organisation of June 1995 to a fully functional Commonwealth authority. Nevertheless, a huge task still lies ahead. The ILC made further solid progress in 1997-98. We are returning land to indigenous peoples and achieving a level of justice. The ILC has received more than 350 specific proposals to purchase land. The ILC Board has considered and approved the purchase of 77 properties, while the remainder are at various stages in the assessment process. Land has been purchased strategically in each State and in the Northern Territory. In just over two years, the ILC has acquired 45 parcels of land.
There has been steady, substantial progress, but in practice, few purchases are straightforward. The ILC is still experiencing a major difficulty in the unrealistic expectation of some vendors that the ILC will pay above market prices for their properties, which has delayed and even stalled some purchases. The ILC Board has, however, continued to follow a strict policy of purchasing at no more than independent market valuation.
On 1 July 1997 the ILC took over primary responsibility for management of indigenous-held land. Overall our policy approach means that indigenous people will be taking more control, but also much greater responsibility for management of their land.
This responsibility involves considerable challenges. Much has been made of the large areas of land held by indigenous people in remote areas of Australia, but the land degradation, environmental problems, and difficulties faced by Aboriginal landowners trying to sustain enterprises on marginal land are often conveniently overlooked by those who oppose efforts to redress indigenous dispossession or who seek to score cheap political points.
Indigenous landowners must have equitable access to the resources available to address these problems, whether provided by the ILC or by 'mainstream' agencies. The ILC has therefore placed a high priority on coordination with government departments and agencies, conservation organisations and indigenous organisations to make sure that funds and expertise are used to maximum effect.
A particular challenge for the ILC is the management of indigenous-held pastoral land and other land-based rural enterprises. Many of these pastoral operations are now, at best, marginal and the ILC cannot continue the past practice of providing funding to keep non-viable properties running. A thorough assessment of these properties is now being conducted. Those that can become commercially viable will be given the assistance they need to become self-sufficient and where this is not possible, the ILC will help landowners to research and develop alternative land uses. The ILC is also looking ahead to address commercial needs by establishing a new subsidiary which will focus specifically on the skills and expertise needed to support indigenous land-based enterprises.
In previous reports, I have commented on trends in the wider indigenous affairs portfolio. While the ILC is generally forging ahead, many other areas in indigenous affairs seem to be going backwards. The ILC cannot operate in isolation. Funding cuts to ATSIC as the peak body in indigenous affairs, together with a generally negative and hostile environment, inevitably impact on us all. As a small organisation with national responsibilities, the ILC is not immune from the ill effects of cut backs, as it relies heavily on the existing network of community based organisations, including ATSIC Regional Councils, Land Councils and native title representative bodies.
A major difficulty for the ILC has been the inability of under-resourced regional organisations to initiate community based or regional land needs planning. This is essential to the development of equitable and effective land acquisition strategies by the ILC. The ILC has therefore had to commit considerable additional resources of its own this year to ensure completion of comprehensive regional planning.
On a wider level, the drawn out national debate on native title has been profoundly dispiriting for many indigenous people and organisations. In spite of the rhetoric about 'certainty', 'balance' and 'fairness', the actual tenor of the debate has been overwhelmingly negative and has given comfort to politically motivated attacks on the rights of indigenous people. Despite the unambiguous decision of the High Court in Wik, native title has been portrayed as a threat to freehold title and the means whereby indigenous people could 'claim' nearly 80 per cent of the continent. The Land Fund was at times misrepresented as a vast slush fund which would be used to buy up large areas of Australia. The painful lack of certainty experienced by Aboriginal people regarding their native title rights was virtually ignored.
The Native Title Amendment Bill has now been passed by the Senate twice, but rejected twice by the Government, paving the way for a double dissolution of Parliament and a national election based primarily on race issues. As this year concludes further negotiations are underway which could lead to passage of the Bill. The parties in negotiation with the Commonwealth are the mining industry, pastoralists' representatives and most State Governments. Indigenous representatives have quite blatantly been excluded.
The views of the ILC, and of the National Indigenous Working Group, of which the ILC is a member, are on record. In our view, the legislation already passed by the Senate delivers most of the Government's 'Ten Point Plan' and seriously undermines the rights of indigenous people. Each additional 'compromise' is a further compromise of our recognised legal rights, and yet as key stakeholders we have been excluded from a meaningful role in determining the outcome.
For the ILC, which was established as a complementary measure, any loss of native title rights through the passage of this legislation will create considerably greater pressure on the ILC to meet an even broader range of land needs from its limited resources.
There were important changes to the ILC Board and senior staff during 1997-98. A founding director, Mr Lawrie Willett, was retired from the Board this year and new Board members, Mr Kevin Driscoll and Ms Lois Peeler were appointed in February 1998. The ILC's first General Manager, Mr John Wilson, has completed his term but will now move on to a new challenge in establishing the ILC's new commercial subsidiary. The ILC Board has appointed Mr Murray Chapman, formerly Deputy General Manager, to the position of General Manager of the ILC, commencing 1 July 1998.
My appointment as Executive Chairman of the ILC and that of Deputy Chairman, Mr Peter Yu, will expire at the end of May 1999. Our prospects for re-appointment are not certain. I would therefore like to take this opportunity to extend my thanks to the founding directors of the ILC Board and to General Manager, John Wilson, for their commitment to establishing a new organisation which would make a genuine difference to the lives of indigenous people throughout Australia.
I also wish to record my thanks and appreciation to my Deputy, Peter Yu, the Directors and all the staff for their continued efforts this year in a task which, while often difficult, has established a benchmark of achievement and set the ILC on a solid course for the future.
Finally, I wish to express my thanks and appreciation to the many Aboriginal people I have met throughout Australia in my capacity as ILC Chairman: for the many warm welcomes you have given me, for your sincerity and patience in helping me to understand your land needs and, most of all, for the satisfaction and sheer delight shown by those of you who so far have been lucky enough to have the title deeds to your land restored to your communities.
David Ross,
Executive Chairman.
The ILC's two primary statutory functions are land acquisition and management of indigenous held land.
In the functional area of land acquisition, the reporting period was effectively the second year of operation, following the tabling of the National Indigenous Land Strategy 1996-2001 in May 1996. [2]
The ILC took over responsibility for its other major function, management of indigenous-held land, with the commencement of the ILC First Land Management Policy on 1 July 1997. This reporting period is therefore the first year in which ILC has conducted land management activities.
Responsibility for day-to-day operations in these key functional areas has now effectively been devolved to the ILC Divisional offices located in Brisbane, Adelaide and Perth, which commenced operation in the latter months of 1996. Each divisional office serves one or more of the ILC regional areas. [3]
The main tenets of the ILC policy in land acquisition and land management are founded on the recognition of prior indigenous ownership of land. The ILC purchases land on the basis of its cultural importance to indigenous peoples, and recognises cultural and social priorities as well as environmental and economic issues in its approach to land management.
The ILC is aware that its policy and operational approach in both primary functional areas differs substantially from that of its predecessors and continues to make every effort to inform indigenous people and their representative organisations about the content of the National Strategy and the policies which underpin it.
The main ILC strategy in land acquisition is to achieve, over time, a representative land base for the maximum number of self-defined family, clan or language groups in each regional area. [4] The ILC land acquisition policy is set out in the National Strategy and the ILC Guidelines, which detail the ILC's decision-making principles, including the criteria against which the ILC Board assesses specific land acquisition proposals.
In 1997-98, a significantly greater number of proposals to purchase land were researched and evaluated by staff, and assessed and approved by the ILC Board (see table 2). A significantly greater number of purchases were also progressed to settlement during the year, including several purchases approved by the Board in the previous year.
A number of factors contributed to the substantial progress made in land acquisition in 1997-98. They included: the consolidation of the ILC's decentralised divisional structure and recruitment of divisional operations staff; increasing awareness amongst the ILC's constituency of the role and function of the ILC; greater awareness of the ILC approach to land acquisition; development of relationships between the ILC and other indigenous and non-indigenous organisations, and between staff and client groups; development of corporate expertise; and streamlining of ILC processes.
During the reporting period the ILC Board considered 90 proposals to purchase properties [5] in accordance with the principles set out in the National Strategy. In the year to 30 June 1998, the ILC Board had given approval to proceed to purchase a further 77 properties, bringing the total approved by the ILC Board to 125 since the commencement of land acquisition by the ILC in May 1996.
The ILC purchased 29 properties during the reporting period and an additional property was gifted to the ILC for transfer to indigenous interests. At 30 June 1998, the total number of properties acquired by the ILC was 46.
Figure 1 Land Acquired / Divested by the ILC at 30 June 1998
Figure 2 Total Cost of Properties Settled 1997-98 ($m)
The ILC takes a substantially different approach to that of its predecessors in divesting title to land to indigenous interests. The primary tenets of the ILC's divestment policy are recognition of prior indigenous land ownership and ensuring that the land granted to indigenous interests will remain in the indigenous estate.
It is ILC policy to divest title to land to a corporation which, to the greatest extent practicable, represents the traditional owners of the land. Title is divested within one year, wherever possible, as the ILC is exempt from paying stamp duty on property transactions, provided it does not hold title to the property for more than one year. The time frame for divestment of each property may vary considerably, however, due to a variety of factors which are discussed in more detail in later sections of this report.
There exists no comprehensive information source which identifies current indigenous landholdings, nor has there been comprehensive national research on the land needs of indigenous peoples. In support of its long-term goal of rebuilding a representative indigenous land base, in 1996-97 the ILC developed a planning methodology to facilitate planning by local indigenous groups and regional organisations. The national land needs planning process (LNPP) is both a community based planning model and a research tool. At community level, it enables local indigenous groups to identify and articulate their land needs to the ILC through the development of local land acquisition and access strategies (LAAS). At the regional level, the process draws upon the knowledge and expertise of regional organisations in the development of a sub-regional overview of land needs [6] (SROLN).
The LNPP will enable the ILC to revise its regional indigenous land strategies (RILS) on the basis of comprehensive and current information provided by local and regional indigenous groups. The information will assist the ILC Board to target for purchase land which has been identified as a high priority by indigenous peoples, in accordance with the policy criteria set out in the National Strategy and ILC Guidelines. The planning process will also enable local indigenous groups and regional organisations to have a direct input into the development of ILC policy.
The LNPP is predicated upon regional organisations taking a leading role in the process by initiating the sub-regional planning process, identifying self-defined groups with an association with land in their region, and ensuring that the sub-regional strategy is responsive to and reflects the regional context. The LNPP encourages indigenous groups to identify all their land needs, including those which fall outside the ILC's area of responsibility or policy criteria. The LNPP commenced in a number of sub-regions in late 1996-97 and during 1997-98. Consultations were initiated in all ILC regions.
The ILC regards the LNPP as an essential mechanism to assist the ILC to purchase land strategically once it has been identified by indigenous peoples as a priority. The LNPP should also contribute to fairness and equity in land acquisition across regions. In August 1997 the ILC Board decided that future land purchase proposals must be considered in the context of a sub-regional strategy. ATSIC Regional Councils, Native Title Representative Bodies and other regional organisations were subsequently advised of this decision. In April 1998 the Board made a further decision to commit considerable financial and other resources to assist regional and community organisations to facilitate the planning process.
The LNPP represents an important practical step in the achievement of ILC policy. In practice, however, achieving successful, consistent planning results has presented considerable operational challenges to the ILC which are discussed further in the section of this report headed 'Operational problems and challenges'.
Although the ILC was empowered to provide land management assistance to indigenous landholders prior to 1 July 1997, the ILC and ATSIC agreed that ATSIC should continue to take funding responsibility for land management through its Land Acquisition and Management Program (LAMP) during the two year period (1995-97) when both organisations received an allocation from the Land Fund. [7]
1997-98 was therefore the first reporting period in which the ILC had sole program funding responsibility at the federal level for management of indigenous-held land. This responsibility includes providing land management assistance for land historically held by or on behalf of indigenous peoples, as well as land purchased and granted by the ILC.
The ILC First Land Management Policy 1997-99 (FLMP) was based on consultative workshops held in late 1996. The ILC finalised the policy in February 1997 and commenced the process of advising and informing ATSIC Regional Councils, native title representative bodies and other relevant indigenous organisations prior to the policy taking effect on 1 July 1997. In early 1997 the ILC designed a Land Use/Land Management Survey in order to ascertain the specific land management needs of indigenous landholders. The survey is the primary means for indigenous landholders to approach the ILC for land management assistance.
The FLMP reflects the aspirations of indigenous landholders to gain a full range of benefits from management of their land and the determination of the ILC to comprehensively address the legacy of past land management policy and practice.
Most indigenous-held land could be characterised as land that non-indigenous people never wanted, or land that, because of inappropriate use, became non-productive and ceased to have value for its non-indigenous owners. The majority of indigenous-held land lies in areas which are ecologically fragile and historically have been of no or, at best, marginal economic value. Much of the land is remote, sparsely populated and has little or no infrastructure of any kind.
Past land management policy was dictated in large part by the limited resources available. As a result, it has been characterised by a piecemeal and short-term approach to immediate problems, rather than clear long term objectives aimed at addressing the significant ecological problems which affect indigenous-held land and the aspirations and cultural concerns of indigenous landowners.
A large proportion of indigenous-held land lies within that vast geographic area (nearly 75 per cent of the Australian continent) referred to as 'the Rangelands', which is essentially 'unimproved' land under pastoral leasehold tenure, used for grazing livestock. Past management practices have led to environmental degradation of significant areas of the rangelands, calling into question the long term sustainability of current land uses. [8] It is now recognised that some areas of the pastoral zone are no longer commercially viable. Initiatives such as the Gascoyne Murchison Strategy, currently being implemented in Western Australia, include provision for removal of land from the pastoral estate where continued use is neither economically viable nor ecologically sustainable.
Most indigenous-held land in the Rangelands lies in marginal areas. There is little indigenous-held land in the areas that are the most productive and environmentally stable, such as the Channel country in Queensland and the Victoria River and Barkly Tableland districts of the Northern Territory.
The precarious ecological state and geographic remoteness of indigenous-held land requires careful and sensitive planning. Comprehensive research about the land, its nature and the people who own it is needed in order to develop a comprehensive and cohesive land management policy that will provide genuine long-term benefits for indigenous peoples.
Management of pastoral land and former pastoral land in the indigenous estate presents particular environmental, ecological and economic problems. Indigenous-held pastoral land lies predominantly in areas where commercially viable pastoral operations are most difficult to sustain. Long term viability of these enterprises is therefore dependent on significant capital expenditure on repair and development of infrastructure and environmental rehabilitation.
The long history of indigenous involvement in the pastoral industry also presents sensitive cultural and social issues. For many indigenous people, pastoralism represents a familiar and, historically, an economically productive land use as well as a proud, if often unrecognised, history of achievement and contribution to the Australian economy.
The ILC is committed to addressing these long term environmental, economic and cultural issues and to assisting indigenous landholders to manage their land so as to produce cultural and social, as well as economic benefits. However, the interaction of historical and environmental factors pose complex policy and financial issues for the ILC in land management.
In performing its functions, the ILC must give priority to ensuring that indigenous peoples derive social or cultural benefits and, when performing its land management functions, must give priority to pursuing sound land and environmental management practices (s 191E(3)(a)). When acting commercially, the ILC must also apply sound business principles (s 191F(1)). Whilst past policy has effectively underwritten pastoral enterprises which are commercially and, in some cases, environmentally unsustainable, current policy and legislative requirements mean that the ILC cannot continue to support unsustainable pastoral operations. Abrupt cessation of funding to indigenous landowners who have previously received funding would, however, cause serious disadvantage and could put the assets of their operations at risk.
The policy approach the ILC has adopted in the FLMP confronts these complex issues in a way that ensures long term sustainability but provides the means for indigenous people to plan for and implement alternatives to unsustainable pastoral enterprises. The FLMP provides for a transition period in which potentially sustainable, commercial land uses will be assisted to achieve viability, but appropriate non-commercial land uses will also be encouraged and supported. This approach requires long-term commitment by the ILC to support indigenous people to manage change successfully. It will also require a substantial financial commitment, either to develop those pastoral operations with the potential to become commercially viable, or to assist indigenous peoples to develop alternative land uses and enterprises (see 'Operational problems and challenges' below).
The FLMP moves away from grant funding as the major means of providing assistance toward more direct forms of support, such as: technical and financial assistance for property management and business planning; management and technical training; infrastructure development; and research. Instead of an annual 'application and grant' approach, it focuses on developing 'solutions packages' to address land management or land use problems in cooperation with other agencies. This approach emphasises the participation of the landholders.
The Land Use/Land Management survey is the main vehicle for indigenous landholders to provide information to the ILC about their land management needs. Land management assistance may be provided where:
Activity during the reporting period was focused on communication of policy, distribution and follow up of surveys, analysis of the survey results and assessment of requests for assistance against the criteria set out in the FLMP. Further details are provided in the ILC Annual Report 1997-98. The ILC also continued to develop close working relationships with key agencies.
In many parts of Australia, particularly in remote regions where there are significant indigenous land holdings, many indigenous organisations have undertaken land management responsibilities to meet the needs of their constituents. In some areas indigenous landholders have established their own producer organisations to pool expertise and find joint solutions to shared problems.
During 1997-98 the ILC entered into service agreements with the major Northern Territory statutory land councils, the Northern Land Council and Central Land Council, and with Kimberly Aboriginal Pastoralists' Association in Western Australia. Discussions along similar lines are continuing with Central Agricultural and Pastoral Aboriginal Corporation. As a result the ILC now has available to it a breadth of knowledge and expertise developed by these organisations, particularly the Northern Territory land councils, over more than 20 years.
The agreements are specifically aimed at assisting indigenous landholders in the transition from previous assistance regimes to the policy approach of the ILC FLMP. They represent a significant degree of cooperation between the agencies and the ILC and have proved to be a highly effective means for the ILC to plan the provision of land management assistance.
It is important to note that the ILC's functions are in addition to, and not instead of, any other functions conferred on another body or person by any law of the Commonwealth, or of a State or Territory (s 191F(3)). Consistent with this legislative direction, and with the ILC's coordination role, the ILC seeks to ensure better delivery of services and information by government and private sector agencies with responsibilities to indigenous peoples in both land acquisition and land management.
The sheer magnitude of land management needs on indigenous-held land and the diverse circumstances of indigenous people present perhaps the most difficult policy challenges confronting the ILC. These difficulties are compounded by the differing policy approaches of various State or Territory regimes.
The emphasis of the FLMP (1 July 1997-30 June 1999) is on: flexibility; cooperation with landholders and other agencies; and on the provision of direct assistance, rather than grant funding. This represents a significant change from previous 'application and grant' programs to a system focused on problem-solving and direct assistance.
The major policy challenge for the ILC has been to initiate a substantial change in the direction of land management, whilst providing assistance to indigenous land managers during the necessary transition. For some this transition will involve achieving genuine commercial viability for their existing operations, whilst for others it will be to establish alternative land uses. This shift in approach has had its detractors, including some of those indigenous landholders the ILC is seeking to assist. Managing this change has been and will continue to be a major challenge for the ILC and is discussed further in the section headed 'Operational problems and challenges'.
The ILC's longer term land management policy and priorities are still evolving, but it is extremely unlikely that they will include 'deficit funding' of unsustainable pastoral operations. There is therefore a considerable task ahead to equip those pastoral enterprises which have the potential of achieving profitability to reach that level. As part of its effort to assist indigenous landholders to make existing enterprises commercially viable, the ILC Board has decided to form a subsidiary company, Land Enterprise Australia (LEA). Initially, LEA's specific purpose will be to address the development needs of the indigenous pastoral sector.
The ILC has made a number of submissions to parliamentary committees in relation to proposed legislative or policy changes in areas which relate to, or may impact upon, the ILC's performance of its statutory responsibilities. These included native title legislation, heritage protection and development of indigenous businesses. Copies of these submissions are available on request to the ILC.
The ILC made two written submissions to the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund Inquiry into the Native Title Amendment Bill 1997. The Chairman of the ILC also gave evidence to the Committee in September 1997.
The origins of the Land Fund and the ILC lie directly in the Commonwealth's response to the High Court native title decision. Indeed, the Land Fund was initially established under the Native Title Act 1993 (Cth), in recognition that many indigenous peoples would be unable to assert native title rights or would be unable to regain ownership and control of their land through native title processes. The role of the ILC is to complement native title (and other mechanisms, such as statutory land rights regimes) to address the dispossession of indigenous peoples from their land. The ILC does not have the resources to address all indigenous land needs and cannot be regarded as a substitute or an alternative to native title. Further, the rights and interests in land the ILC is able to grant through purchase are not the same as native title rights, which in some respects more accurately reflect traditional ownership rights in land.
The ILC has consistently advocated that the Native Title Act should continue to give full and proper recognition to native title, should secure and confirm the rights of native title holders to negotiate in respect of their rights and interests, and that the administrative structure should be maintained in order for that to be achieved. The ILC opposes the broad-based legislative extinguishment of native title proposed in the Native Title Amendment Bill 1997 (the Bill). If passed, many more indigenous peoples will be completely reliant upon the ILC to gain access to land, with resulting pressure on the ILC's already limited resources. Further, the ILC takes the view that many positive opportunities for economic, cultural and social development will be lost through the unnecessary extinguishment of native title and removal of the right to negotiate over vast areas of the country. The potential benefits to local and regional economies arising from the exercise of the right to negotiate will also be lost.
The continuing uncertainty about the extent to which native title has been extinguished (or will be determined to have been extinguished as a result of proposed amendments to the Native Title Act 1993) has given rise to considerable policy and operational difficulties for the ILC during the reporting period.
There has been little recognition that indigenous peoples have had to live with considerable uncertainty as to the existence and recognition of their native title rights, or of the anxiety and confusion this has caused indigenous communities. Specifically, it has placed them in a situation of great uncertainty as to the extent to which they can reasonably negotiate agreements regarding their rights, and the willingness of governments to recognise and protect their rights in the long term. In contrast, whilst the terms of some pastoral leases have remained virtually unchanged for more than a century, the assertions of leaseholders that their futures are uncertain because of native title have received considerable attention and sympathy from Governments, despite the confirmation by the High Court that their rights as leaseholders are quite secure.
Native title representative bodies (NTRBs) also face uncertainty and are unable to plan for the future. In relation to the role and functions of the ILC, the representative bodies play an important role in advising on native title interests, assisting in the development of strategic agreements regarding access to land, and are crucial to the success of land needs planning and achievement of long term strategic outcomes. In the present circumstances, however, the NTRBs cannot properly advise nor represent native title applicants in negotiations.
NTRBs also face serious resource problems which may be exacerbated by proposed legislative changes. Under the proposed amendments to the Act, NTRBs will be compelled to seek re-registration as Native Title Representative Bodies and will be required to direct their limited resources to the review of native title applications previously accepted by the National Native Title Tribunal against a new, more difficult registration test. Given the close working relationship between the ILC and NTRBs and the high degree of cooperation needed to achieve success in the national LNPP, the uncertain future of NTRBs has made joint planning extremely difficult, and in some cases has had an adverse effect on the ILC's capacity to perform its statutory functions.
Indigenous heritage protection issues were the focus of debate and analysis by the Commonwealth Parliament during the reporting period. The ILC has a major interest in these issues. It is the ILC's role to complement other legislative mechanisms established to meet indigenous land needs or protect indigenous interests in land. Effective heritage protection measures enable indigenous peoples to access and protect sites of significance, whether or not they hold title to the land where those areas are located. A watering down of heritage protection legislation will inevitably place more pressure on the ILC to secure the protection of important sites and areas through land purchase.
The House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs conducted an inquiry into indigenous business during the reporting period. The ILC made a submission to this inquiry based on its concerns about and involvement in, indigenous business.
The ILC considers that while there are economic dimensions to the acquisition and management of land, strictly commercial models of enterprise cannot always apply in the indigenous context à account also needs to be taken of social and cultural aspirations and environmental issues.
The legislative scope of the ILC's activities and the financial resources available to the ILC mean that the Corporation cannot be a major player in the economic development arena, nor should it have such a role. The ILC's primary function is to address dispossession through the restoration of an indigenous land base. The ILC does, however, see itself as a partner in the move toward greater economic well-being for indigenous peoples. It views the major vehicles to achieve this as the retention of the right to negotiate provisions of the Native Title Act 1993 and cooperation with indigenous peoples and other agencies at State and Federal level.
The resources required to progress the national LNPP and the differing capacities of regional indigenous organisations to participate in the process have combined to present the ILC with a considerable operational challenge.
The ILC is committed to sound planning principles and to adopting a strategic approach to land acquisition so as to make the best possible use of its resources. The national LNPP is an essential part of the ILC's long-term strategic planning in land acquisition and land management. It will assist the ILC to purchase land which has been identified by indigenous peoples as a high priority to address their dispossession and is vital if equitable outcomes for indigenous peoples are to be achieved in the long term. In August 1997, the ILC Board determined that, except in special cases, it would only consider proposals for land acquisition where a sub-regional overview of land needs had been prepared to provide a strategic regional context for the purchase. ATSIC Regional Councils and NTRBs were informed of this decision.
Although significant progress was made in sub-regional land needs planning in some regions, the varying circumstances in each State and Territory have meant that planning has not been uniform throughout the country. The effectiveness of local and regional organisations in facilitating planning and the availability of resources to support the process are also major factors in determining the success and consistency of the LNPP as a national planning process.
While the LNPP has progressed well in some parts of Australia (notably in Victoria and Tasmania), ILC staff in other regions experienced difficulties in gaining the level of commitment and co-operation required to undertake the process successfully. A major reason for this would appear to be that, as a result of significant funding cuts to ATSIC in 1996-97, the capacity of ATSIC Regional Councils and NTRBs to provide the necessary financial support was severely restricted. Representative bodies have also had to focus considerable resources on proposals for amendments to the Native Title Act.
The LNPP has also proven to be a resource-intensive process for the ILC and places considerable demands on ILC staff. As previously noted, there was a significant increase in the number of proposals for purchase assessed and approved in 1997-98. As ILC policy is more widely and effectively communicated, however, the demand for ILC assistance continues to increase. As a small organisation, with only 36 staff nationally, the ILC experienced difficulty in allocating staff resources to initiate land needs planning in addition to assessing and completing individual purchase proposals already in progress.
The ILC has also been hampered by a lack of information about indigenous land-holdings and has had difficulty obtaining accurate land tenure data at reasonable cost.
In April 1998 the ILC Board decided to commit further considerable resources to support the LNPP, beyond the limited technical and associated support previously envisaged. Funding has been allocated for the acquisition of technical information (either by hiring additional temporary staff or contracting consultants) and the provision of financial support to regional organisations toward the cost of community consultations. The ILC can also provide land tenure maps (produced by the ILC Geographic Information System). Regional organisations seeking ILC assistance for land needs planning are also expected to commit resources to the process.
In a very few cases, the ILC has been unable to finalise the divestment of title to the land because of unresolved conflicts regarding traditional ownership or difficulties accommodating different interests in the land in the structure of the title-holding body.
The ILC Board has determined that to divest land to persons who are not recognised under indigenous law as the traditional owners, or who cannot sufficiently demonstrate a connection with the land, could place the ILC in the position of actually furthering dispossession of indigenous peoples.
Where disputes have arisen, the ILC has adopted a number of strategies to resolve them and has generally been successful. In almost all cases successful outcomes have been achieved through processes of mediation and negotiation and the development of title-holding structures that reflect different interests in the land in ways that are acceptable to the parties. In cases where these disputes are based on conflicting assertions of native title or other traditional rights and where the ILC has not been able to secure agreement, the ILC has decided to await the outcome of the mediation and determination processes of the National Native Title Tribunal.
The process of negotiating and resolving disputes regarding divestment of title is costly in staff resources and time. In a very few cases it has also meant the ILC could not divest title within one year of purchase, with the result that the ILC became liable for stamp duty on the purchase transaction. The majority of difficulties have arisen in relation to properties purchased early in the ILC's operations, prior to the development of the LNPP, and have arisen largely because of unfamiliarity with the ILC's policy approach. The ILC has therefore sought to address this by ensuring that the divestment policy of the ILC is communicated clearly to indigenous people and their representative organisations early in the process. Indigenous groups which register their land needs with the ILC, or participate in development of local access and acquisition strategies, are advised at the outset that their corporation will most likely not be the corporation to which the ILC will ultimately divest title. Experience has demonstrated that where the divestment policy is explained early in the consultation process, indigenous groups have the time and information needed to establish an appropriate title holding corporation, and to resolve any disagreement in time for the ILC to divest title within one year.
The ILC expects that this issue will ultimately be resolved through effective land needs planning. Provided that the ILC (in cooperation with regional and community organisations) is successful in gaining broad-based participation in the planning process, these strategies will mitigate against disputes over future ownership of land purchased by the ILC.
The fundamental shift in approach adopted by the ILC, as the body with primary responsibility for management of indigenous-held land, presents a significant challenge, both for indigenous landholders and for the ILC. The operational challenges this fundamental shift presents are to communicate the policy and then to manage the change that it necessitates.
Approximately 85 per cent of the land management funding formerly provided under ATSIC's LAMP was directed to management of indigenous pastoral properties. A primary aim of the transition period provided for in the FLMP was to provide an opportunity for these indigenous landholders to undertake planning and restructuring.
The sheer magnitude of the land management needs of indigenous landholders, particularly the need to repair and regenerate land that has been degraded, will require substantial investment of money, technical resources, time and expertise. Assisting indigenous landowners to gain economic benefits from their land, either through restoration of the land or through development of alternative land uses, represents an immense challenge.
While a number of land holders have been assisted by the ILC to restructure their operations, the specific requirements of indigenous pastoral operators could generally be better met outside the broader scope of the FLMP. In recognising the enormity of the problems facing the indigenous pastoral industry and that direct management of them would create an unsustainable demand on ILC resources in the future, the ILC Board agreed in June 1998 to incorporate a subsidiary company to focus on the commercial aspects of land management. While the final structure, funding and functions of the subsidiary have not yet been finalised, the subsidiary will essentially perform land management specific to land-based indigenous enterprises. These will include providing technical and financial assistance to enterprises with a proven capacity to become commercially viable or to research and develop alternative land uses whilst winding back existing operations in an orderly way.
Annual Reports:
ILC Annual Report 1994-95
ILC Annual Report 1995-96
ILC Annual Report 1996-97
ILC Annual Report 1997-98
Policy Publications:
National Indigenous Land Strategy 1996-2001
ILC Guidelines
New South Wales Regional Indigenous Land Strategy, June 1996
Northern Territory Regional Indigenous Land Strategy, June 1996
Queensland Regional Indigenous Land Strategy, June 1996
South Australia Regional Indigenous Land Strategy, June 1996
Tasmania Regional Indigenous Land Strategy, June 1996
Victoria Regional Indigenous Land Strategy, June 1996
Western Australia Regional Indigenous Land Strategy, June 1996
Land Management:
Guide to the ILC First Land Management Policy 1997-1999
ILC Land Use/Land Management Survey
How to Complete the ILC Land Use/Land Management Survey (Booklet)
Land Needs Planning:
Sub-Regional Overview of Land Needs û Planning advice for Regional Councils, Native Title Representative Bodies and other regional organisations
Land Acquisition and Access Strategy û Planning advice for Self-Defined Local Groups
Information / Communications Materials
Land Matters #1, March 1996
Land Matters #2, August, 1996
Land Matters #3 March 1997
Land Matters #4 August 1997
Land Matters #5 December 1998
Land Management leaflet
What is the Land Fund? leaflet
What is the ILC? leaflet
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[1] Copies of this report may be obtained from the ILC (Freecall 1800 818490) or may be downloaded from the ILC web site at <www.ilc.gov.au>.
[2] The ATSIC Act requires a National Indigenous Land Strategy to be prepared and the ILC to have regard to it in performing its land acquisition and land management functions. Land acquisition by the ILC could therefore not commence prior to the completion and tabling of the National Strategy in the Commonwealth Parliament. The National Strategy and Regional Indigenous Land Strategies were developed following national consultations with ATSIC regional councils, native title representative bodies and other indigenous community organisations with interests in land between October 1995 and April 1996, during the ILC's first full year of operation 1995-96.
[3] ILC regional areas are defined by the borders of the six States and the Northern Territory. The ACT is included in the NSW Regional Area.
[4] National Indigenous Land Strategy 1996-2001, pp 14-15.
[5] Note: the term 'property' may include one or more parcels of land.
[6] Note that for ILC planning purposes, the term 'sub-regions' refers to appropriate, sizeable areas within the ILC regions (broadly, the six States and the Northern Territory). ILC 'sub-regions' are broadly defined by ATSIC regional boundaries, but the LNPP is flexible in providing for regional organisations to propose other appropriate boundaries which better reflect cultural groups in their areas.
[7] In 1995-96 and 1996-7 ATSIC received $21 million and the ILC received $24 million of the total allocation of $45 million from the Aboriginal and Torres Strait Islander Land Fund.
[8] National Strategy for Rangeland Management, Australian and New Zealand Environment and Conservation Council (ANZECC) and Agricultural and Resource Management Council of Australia and New Zealand (ARMCANZ), May 1997.
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/1999/13.html