Speech by The Hon Jenny Macklin MP

Address to the Native Title Representative Body/Service Provider forum

Location: Melbourne VIC

An address to the Native Title Representative Body / Service Provider forum in Melbourne on 7 October 2009 by Jenny Macklin, Minister for Families, Housing, Community Services and Indigenous Affairs

I acknowledge the traditional owners of the land, the Wurundjeri people of the Kulin nation.

I am glad to have opportunity to meet with you today.

You are the engine room of the native title system, driving outcomes that benefit native title holders now – and have the potential to secure the future for generations to come.

As senior managers of the native title representative bodies, you would be aware more than most that the native title system is constantly evolving.

And the demand for resolution of claims is strong.

But when an agreement or a positive determination is achieved – the elation, the relief and the confidence that it gives communities is very moving.

We know you have a hard job to do and that for many years you’ve been significantly under-resourced.

We committed an additional $62 million in this year’s Budget to your organisations to empower Indigenous people to leverage from their interests in land.

We know how important land is to the spirituality and well-being of Aboriginal and Torres Strait Islander people – and how bitter many of the struggles have been in securing their legal rights to this land.

That is why it is so important to have a good relationship when talking about native title and land tenure reform more generally.

Recognising your strengths as people who work with and represent native title claimants and holders, there is a lot to be gained from us having an honest dialogue with you about the more challenging policy issues.

There are several strategic challenges that I am looking for your engagement and support on – matters which the Government has canvassed through discussion papers and in ongoing discussions with stakeholders over the past 12 months.

The first strategic challenge relates to the overall architecture and design of the native title system. This is an issue which will require sustained attention over coming years from all of us, with implications for the structure and functions of all major players within the system.

The role of the Federal Court will diminish as claims are resolved.

The importance of Prescribed Bodies Corporate (PBCs) will inevitably increase.

The National Native Title Tribunal, Representative Bodies, and the new Indigenous structures and entities which seem to be emerging from the negotiation of Indigenous Land Use Agreements (ILUAs) will all confront new challenges and opportunities.

In this context, the continuing constructive engagement of Indigenous organisations such as those represented here today will be crucial – not least because governments at all levels will have some difficult issues to face themselves, and governments operate best when they are working with informed and engaged stakeholders.

The second strategic challenge is in relation to housing.

The Australian Government has made housing central to its closing the gap agenda.

We are progressing a comprehensive reform agenda which encompasses substantially increased funding allocations for remote and non-remote social housing, secure tenure, firm targets and milestones for state and territory governments including housing delivery, robust Indigenous employment targets, and tenancy reform.

One element of our reform agenda is ensuring that the future act regime works efficiently and expeditiously to facilitate housing construction in remote communities where underlying tenure is uncertain or involves native title.

The recent discussion paper and consultations canvas possible changes to the future act regime.

We see merit in moving forward with amendments to the Native Title Act along the lines of the proposal in the discussion paper.

Any such amendment to the future act regime would ensure that the non-extinguishment principle will apply and that there would be a statutory requirement for consultation with native title holders or claimants as well as relevant community residents.

The third strategic challenge relates to locking in and maximising the benefits of the native title regime for native title holders and Indigenous people generally.

Native title agreements are essentially based upon property rights which are held by native title groups as both communal and inalienable rights.

Inalienability is a reflection of the fact that the ownership of country involves rights in perpetuity held in trust for both the whole group of current native title holders and their descendants.

It follows that the benefits too should accrue to the whole of each land-holding group, and that they should be structured to provide ongoing benefits to future generations as well as current land owners.

In most cases the benefits will be limited in quantum, and limited also to the timeframes of the resource development operations.

The challenge for Indigenous interests will be to maximise the benefits accruing from these payments by making them sustainable; investing funds to ensure flow on benefits either through job creation, education, or social and health benefits which themselves lead to further flow on benefits.

This is a particular challenge for the Indigenous leadership across the country.

For its part, Governments cannot rely on native title payments to fund public sector responsibilities.

Remedying chronic under-investment is a major national priority for our Government.

We have started down this track. We won’t walk away from our responsibilities.

Equally, Indigenous interests receiving private revenue streams have a responsibility to invest in the private provision of housing, additional education, and other services where that opportunity is available.

The Government wants to make sure that formal agreements and engagement between native title holders and the resources industry lead to payment arrangements which are sustainable, provide intergenerational benefits, and are invested and spent wisely.

I realise this area is highly complex and inevitably involves competing values and principles.

Given that these are essentially private monies it is arguable that government has no business interfering with their use and allocation by native title holders and claimants.

But governments intervene in mainstream markets all the time to regulate and inhibit unscrupulous behaviour, to protect consumers, and to ensure appropriate standards of behaviour and transparency by the directors of companies and other commercial entities.

At the moment, the native title landscape is closer to the former end of the spectrum.

There is currently very little transparency, the normal mechanisms of mainstream corporate regulation are not designed to cope with the exigencies of remote settings and cross-cultural protocols, governance and corporate capacities are not well developed within PBCs.

Moreover, intra-communal conflict and politicking is ubiquitous, and the capacity of many native title bodies to manage and invest large sums of dollars is problematic.

Overlaying all this is the reality that for many PBCs and native title groups, they may only get one chance to make the most of the financial opportunities arising from resource development.

There is no capacity for a learning curve to operate.

Sadly we all know there have been examples in the past where substantial funds were involved, and were not strategically used.

I recognise there are also positive examples of more strategic use of these income streams.

The report of the Native Title Payments Working Group established last year and submissions received in response to the Government’s discussion paper released last year, suggest that that there is indeed scope for improvement here.

The challenge however is to decide which specific actions to take.

The Government has made no decisions as yet, and expects to announce specific changes in the New Year.

However I do think it worthwhile to canvass in a provisional sense my current thinking to facilitate the discussion and dialogue today.

I see merit in a number of policy changes.

These could include a statutory requirement that all entities in receipt of native title related funds be incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 Act (“the CATSI Act”) and that entities negotiating or dealing with significant amounts be required to appoint at least two independent directors with skills relevant to corporate governance, and financial or commercial management.

Part of the benefit of being incorporated under the CATSI Act, apart from the regulatory focus which would be brought to bear, would include the access to programs to help develop business skills and knowledge within PBCs and similar organisations.

I would also be interested in your views on the idea of providing to the Office of the Registrar of Aboriginal Corporations or the National Native Title Tribunal an additional “watchdog” function to oversight commercial agreements in the native title area and to report publicly on the appropriateness of native title agreements and their implementation.

It would not be intended that private or commercial in confidence information would be released publicly.

I am pleased that Treasury has acknowledged the need for further consideration of taxation issues in a native title context.

I understand that an update will be provided by Treasury officials attending later in this meeting.

The fourth strategic challenge relates to the issue of alternative approaches to resolving the outstanding backlog of claims across the nation in a cost effective and expeditious manner.

The Government is working with State and Territory Governments to encourage settlements, known as ‘broader land settlements’, which are focused on the parties’ broader aspirations and interests and not on technicalities.

I don’t propose to comment in detail here.

I understand that there will be further discussion over the course of the next few days about the scope to move down this path.

I do wish to say that I am supportive of innovative approaches like the one which has emerged in Victoria.

However, the issues around funding are still quite challenging and yet to be resolved.

My department is working with the Attorney General’s Department to consider how to better use existing resources in the Indigenous Land Corporation, Indigenous Business Australia and Department of Education, Employment and Workplace Relations employment programs to facilitate settlements and support emerging structures.

We understand that our work in government, including any future economic development strategy needs to link in with negotiated settlements reached under the native title regime.

I am proposing to take the next steps towards announcing an Indigenous Economic Development Strategy in the near future – and engaging with you through the National Native Title Council as we move forward.

As I said before, your strategic advice and support is integral to our national conversation about how land assets are working for Indigenous people.

Having a good working relationship with Indigenous people is absolutely critical to getting the implementation right.

We’ve taken many steps to demonstrate our commitment at a national level to this relationship, including our support for the Declaration on the Rights of Indigenous Peoples, for the proposed National Indigenous Representative Body and the Healing Foundation.

And on the ground, we are gradually changing the way business is done through our national partnership on remote service delivery.

In priority remote locations around the country – initially around 29 priority locations – communities will participate in leadership development and joint planning with governments to progressively bring their town up to the standards of services expected in any country town of the same size.

This work is setting the foundations of greater economic opportunity in our remote regions.

Moving forward on these strategic opportunities will be a test and a challenge for us all. But with a solid relationship and good communication, we are in the best position to make the progress we need to close the gap.