3.80 Stakeholders have pointed out that the Native Title Act was never intended to be the sole response to Mabo v Queensland [No 2] and to Indigenous demands for land justice, or to the economic and social disadvantage that is a consequence of dispossession. It was to be accompanied by a land fund and social justice package, thus providing a comprehensive response.
3.81 In 2008, the then Social Justice Commissioner, Dr Tom Calma, commented that ‘the other two limbs did not eventuate in the form intended, and this abyss is one of the underlying reasons why the native title system is under the strain it is under today’.
3.82 The Jumbunna Indigenous House of Learning submission to the Senate Committee on Law and Justice said:
Jumbunna considers that native title should be conceived within a comprehensive land justice framework with restitution at its centre. Such a comprehensive settlement process would deal with traditional and historic land claims, reparation for dispossession, resource management, Indigenous jurisdiction over land and resources, economic development, would deal with the realities and consequences of dispossession and should promote and embody Indigenous peoples’ exercise of sovereignty.
The Land Account and the Indigenous Land Corporation
3.83 The Preamble to the Native Title Act notes that ‘many Aboriginal peoples and Torres Strait Islanders, because they have been dispossessed of their traditional lands, will be unable to assert native title rights and interests and that a special fund needs to be established to assist them to acquire land’. That special fund is the Land Account, administered by the Department of the Prime Minister and Cabinet. The fund received appropriations from consolidated revenue for the first 10 years of its operation, and on 30 June 2014, held nearly $2 billion.
3.84 Since 2010, a minimum of $45 million, indexed for inflation, must be paid to the Indigenous Land Corporation (the ILC), a corporation established to assist Aboriginal and Torres Strait Islander people to acquire and manage land, so as to provide economic, environmental, social or cultural benefits for those people.
3.85 The ILC reported that, in its early years, it focussed on acquiring properties and divesting them to Indigenous corporations. In recent years it has committed a greater proportion of funding to land management assistance rather than land acquisition. The ILC has acquired 5.86 million hectares of land since establishment. It has acquired 250 properties and granted 175 of them.
3.86 Some concerns have been expressed about the focus on land acquisition and management, rather than divestment. In 2008, Dr Calma that the ILC ‘does not always provide an effective and accessible alternative form of land justice when native title is not available’. In particular, he noted that Indigenous people are concerned about the ILC’s focus on economic gain rather than reparation for dispossession. He called for ‘consideration by government … of how the ILC’s functions could better complement the native title system’.
3.87 In June 2013, the ILC adopted a policy setting out its commitment to ‘contribute to the constructive and flexible settlement of native title claims’. This policy indicates that the ILC
will consider providing assistance where a proposed native title settlement will facilitate a full and final resolution of claims and improve the quality of native title outcomes for Indigenous parties.
3.88 The policy also indicates that the ILC will
give preference to working with those States or Territories and Native Title Representative Bodies that have an effective, fair and realistic State or Territory or regional wide framework in place for the settlement of native title claims.
3.89 Also in 2013, the ILC made its first contribution to a native title settlement under the Native Title Policy, when it acquired a property known as Mt Barker, on behalf of the Dja Dja Wurrung Clans Aboriginal Corporation. In 2013-14, it engaged in negotiations on the final settlement of the Single Noongar Native Title Claim, but it does not appear that these negotiations included land acquisition.
3.90 In 2014, Ernst & Young inquired into ‘the effectiveness of Indigenous Business Australia and the ILC … in driving economic development’. The authors of the report indicated that their recommendations respect ‘the land promise’, that is, that the purpose of the ILC is the compensation for the dispossession of land. Their preferred option for reform would require the ILC to refocus its activities on its original compensatory purpose of land acquisition, land management and land divestment.
3.91 The Board is now developing a strategy for divestment of ILC business land holdings.
3.92 Submissions to this Inquiry continued to express concern as to whether the ILC has met expectations. This Inquiry’s Terms of Reference do not encompass the Land Account or the ILC. The ALRC makes no recommendations in this regard, but notes that the native title system needs to be considered in a comprehensive fashion. As Dr Calma noted, if one element of the system is not working, there is increased pressure on other elements.
3.93 In March 2014, the Board released a draft Stronger Land Account Bill, ‘aimed at reinforcing the fiduciary principle that the Land Account is held, by the Commonwealth, for, and on behalf of, Aboriginal persons and Torres Strait Islanders’. The Greens introduced the Aboriginal and Torres Strait Islander Amendment (A Stronger Land Account) Bill 2014 to Parliament in June 2014. This Bill includes requirements for the government to consult with Aboriginal people and Torres Strait Islanders in relation to appointments to the ILC Board; any proposed legislative change affecting the Land Account; and the investment policy of the Land Account.
3.94 Again, this matter falls outside this Inquiry’s Terms of Reference. However, as was acknowledged in the Preamble to the Native Title Act, the dispossession of Aboriginal people and Torres Strait Islanders, and the inability of many of those most severely affected by a European settlement to establish native title, points to the need to maintain a robust Land Account.
The social justice package
3.95 In 1994, the then Prime Minister, the Hon Paul Keating MP, sought the views of the Aboriginal and Torres Strait Islander Commission (ATSIC) on ‘further measures that the Government should consider to address the dispossession of Aboriginal and Torres Strait Islander people as part of its response to the 1992 High Court decision on native title’. The Native Title Social Justice Advisory Committee of ATSIC reported that a social justice package should address, among other things, compensation for dispossession of land and dispersal of the Indigenous population. It suggested that the need for compensation and restitution goes beyond the scope of the Land Account, and such compensation should include ‘access to revenue derived from the use of land by non-Indigenous Australians’.
3.96 Most other comparable jurisdictions have a major compensation fund that addresses the effect of Indigenous dispossession and the continuing disadvantage of groups affected by colonisation.
3.97 Without a complete response to social justice issues, great pressure is placed on the native title system. There have been continuing calls for a social justice package to complement the native title system and to compensate traditional owners whose native title rights have been found to have been extinguished.
3.98 The ALRC’s recommendations for reform to the Native Title Act are intended to be consistent with the original understanding of its drafters—that native title could never be a sufficient response to the land justice question, and that land purchase and a social justice package are essential elements of a response. Another approach is alternative settlements (discussed below).
3.99 Agreement making with Indigenous peoples has occurred over many hundreds of years in all parts of the world. Within Australia, it can operate within the native title framework or under alternative regimes. Some stakeholders expressed strong support for the adoption of settlement approaches rather than the current native title claims process which depends on judicially recognised rights and interests.
3.100 The Hon Aden Ridgeway, Gumbayyngirr man and former Senator, has called for ‘a complete rethinking of the way native title issues are resolved and managed in this country. What we need is to establish comprehensive settlements’. The National Native Title Council has also endorsed such an approach.
3.101 In 2006, the Land Justice Group, a group representing Victorian Traditional Owners, said
if the land grievances of Indigenous people in this State can be substantially addressed through negotiated agreements (such as Wotjobaluk and Gunditjmara) that resolve native title whilst at the same time providing other benefits through ancillary agreements, then the need for other land justice measures may be relatively minimal.
3.102 Professor Mick Dodson has argued that settlements, or negotiated agreements, can reduce transaction costs, improve working relationships between the state or territory and traditional owners, and produce better outcomes for traditional owners with regard to economic development and self-sufficiency.
3.103 In jurisdictions outside Australia, ‘settlement’ implies not only the resolution of native title claims, but the resolution of broader issues. Agreements could include settlement of native title claims, provision for Aboriginal control of land use and development on land they own, resource royalties, participation in planning, development and environmental management in the area, joint management agreements, service delivery arrangements and measures to strengthen Aboriginal local government.
3.104 Agreement making has proceeded rapidly in Australia, some using the ILUA provisions of the Native Title Act and some under alternative legislative regimes.
3.105 At the Native Title Minister’s Meeting in 2008, Ministers acknowledged that the potential of the native title system had been ‘constrained by technical and inflexible legal practices’. The Ministers agreed to work towards negotiated settlements and established a Joint Working Group on Indigenous Land Settlements (Joint Working Group) ‘to develop innovative policy options for progressing broader and regional land settlements’.
3.106 The Joint Working Group produced Guidelines for Best Practice, Flexible and Sustainable Agreement Making. The Guidelines note that a ‘broader land settlement’ can include both native title and non-native title outcomes.
3.107 The Traditional Owner Settlement Act 2010 (Vic) (TOSA) provides for non-native title settlements between the Victorian Government and traditional owner groups in Victoria. Settlements are to be made on the basis that traditional owners must withdraw native title claims and agree not to make a claim in the future. Settlements may include recognition of the group and certain traditional owner rights over Crown land, grants of land either as freehold title or ‘Aboriginal title’, funding for traditional owner corporations, and the right to comment on or consent to certain activities and provide input into the management of land and natural resources. The Social Justice Commissioner described this agreement as setting ‘the benchmark for other states to meet when resolving native title claims’.
3.108 The first settlement under the TOSA was with the Gunaikurnai people, in 2010. In 2013, a comprehensive settlement was made with the Dja Dja Wurrung, which included the transfer of two freehold properties; hunting, fishing and gathering rights; a Land Use Activity Agreement (a simplified ILUA); transfer of parks and reserves as ‘Aboriginal title’ and joint management of those lands.
3.109 In Western Australia, the Western Australian Government and the South West Aboriginal Land and Sea Council, representing six native title claim groups—Yued, Gnaala Karla Boodja, South West Boojarah, Wagyl Kaip, Ballardong, and Whadjuk—have concluded a settlement which will not include native title, but will be implemented by way of an ILUA under the Native Title Act. The settlement includes recognition of the Noongar people as traditional owners, the transfer of land, funding, joint management of the conservation estate and processes for the protection of heritage. The settlement was authorised in six meetings held between 31 January 2015 and 28 March 2015.
3.110 The South Australian Government reports that six of 11 consent determinations in that State have included agreements that address ‘broader issues such as compensation, sustainability of the Prescribed Body Corporate, and future act issues’. However it also indicated that ‘the focus on achieving non-native title land settlement outcomes has faded … as most groups are focussed on a native title outcome’. This Government suggested that an ‘alternative land settlement process with a guaranteed, substantial injection of funding from ILC and Indigenous Business Australia’ would be a possible way forward.
3.111 Some efforts have been made to achieve regional agreements in Queensland, but they do not appear to have been successful. Queensland South Native Title Services has suggested that an alternative settlement framework, similar to the Victorian TOSA, should be discussed. The return of 3.2 million hectares of land, including national park and former pastoral land, to traditional owners under the Queensland Government’s Cape York Peninsula Tenure Resolution Program is an important step. Under the Program, land owned and acquired by the State is converted to Aboriginal freehold land, while nature refuges and jointly managed national parks are created over areas with high conservation significance. The Program is intended to create economic development opportunities for Aboriginal people, provide environmental benefits, and contribute to the resolution of native title claims. These transfers are in addition to the transfers made under the Aboriginal Land Act 1991 (Qld) and the Torres Strait Islander Land Act 1991 (Qld), discussed earlier.
3.112 The Law Council of Australia supports alternative settlements, and suggested that state and territory governments should be encouraged to establish frameworks. However the Council considered that settlements should not be used to induce Aboriginal people and Torres Strait Islanders to accept lesser rights than they would be entitled to in a native title determination.
Commonwealth-state financial arrangements
3.113 The ALRC has not been asked to inquire into compensation for the extinguishment of native title. However state governments have pointed out that compensation is relevant to the consideration of the connection requirements of the Native Title Act. Concerns arise on two related fronts.
3.114 First, two state governments raised concerns that changes to the Native Title Act could increase the liability of state and territory governments for compensation. The South Australian Government reported that ‘virtually all determinations of native title are followed by negotiations or claims for significant compensation for historical extinguishment’. The Western Australian Government advised that ‘the impact of the Native Title Act, including … compensation liabilities is greater in Western Australia than any other jurisdiction in Australia’. The Northern Territory Government also indicated that it is expecting compensation claims in the future.
3.115 The Native Title Act provides that where an act extinguishing native title is attributable to the Commonwealth, compensation is payable by the Commonwealth, while the states and territories are liable for compensation when their acts extinguish native title. The South Australian Government noted that ‘the financial assistance package promised by the Commonwealth at the time of the Native Title Act and since is still yet to come to fruition, leaving the bulk of the cost of native title recognition with the states and territories’. The Commonwealth has entered into discussion with the states and territories regarding a Commonwealth contribution to state and territory compensation liabilities, but no final agreement has been reached.
3.116 Secondly, one state government has expressed concerns about the absence of a commitment from the Commonwealth Government to contribute to funding for alternative settlements. In 2013, the Western Australian Attorney General said that, without such a contribution, there is ‘a disincentive for the states/territories to adopt more progressive native title policies’. 
3.117 At the 2008 Native Title Ministers’ Meeting, Ministers agreed to negotiate on ‘Commonwealth financial assistance that could better facilitate state and territory settlement of native title issues’. In 2010, the Commonwealth entered into a written agreement with Victoria under s 200 of the Native Title Act for the provision of financial assistance to that State ‘to enable benefits to be provided to native title claim groups under settlement agreements’. The Commonwealth’s financial contribution will not exceed the state’s financial contribution. The agreement notes that ‘the Commonwealth will determine any contribution it makes to Settlement Agreements with States and Territories on a case-by-case basis and extend this Agreement accordingly’.
3.118 The Commonwealth Government also made a substantial contribution to the acquisition of three pastoral properties purchased and transferred to the Olkola people under the Cape York Peninsula Tenure Resolution Program discussed above.
3.119 The Western Australian Government has sought a Commonwealth contribution to the proposed settlement with the Noongar community.
3.120 Alternative settlements, and the respective contributions of governments to their funding, are policy matters and the ALRC does not make recommendations in this regard. However, it is important to note that both Indigenous leaders and the government Ministers have indicated that alternative settlements are preferable to a continued reliance on litigation. Some progress is being made towards alternative settlements, and further progress will allow native title litigation to be just one of a range of means for achieving land justice for traditional owners and certainty for other parties.
See, eg, Law Council of Australia, Submission 35; Kimberley Land Council, Submission 30; Western Australian Government, Submission 20; National Native Title Council, Submission 16; Law Society of Western Australia, Submission 9; Just Us Lawyers, Submission 2.
Aboriginal and Torres Strait Islander Social Justice Commissioner, ‘Social Justice and Native Title Report 2013’ (Australian Human Rights Commission) 82–3.
Aboriginal and Torres Strait Islander Social Justice Commissioner, ‘Native Title Report 2008’, above n 66, 46.
Jumbunna Indigenous House of Learning Research Unit, UTS, Submission No 17 to Senate Committee on Legal and Constitutional Affairs, Parliament of Australia, Inquiry into Native Title Amendment (Reform) Bill 2011, July 2011, 2.
Aboriginal and Torres Strait Islander Land Account Financial Statement 2014 <www.dpmc.gov.au> accessed 17 April 2015.
Aboriginal and Torres Strait Islander Act 2005 (Cth) s 191B.
Indigenous Land Corporation, Submission 66.
Indigenous Land Corporation, ‘Annual Report 2012–13’ (2013) 3.
Indigenous Land Corporation, ‘Annual Report 2013-14’ (2014) 32.
‘Native Title Report 2007’, above n 94, 47.
Aboriginal and Torres Strait Islander Social Justice Commissioner, ‘Native Title Report 2008’, above n 66, 47.
Indigenous Land Corporation, ‘Annual Report 2012–13’, above n 135, 27.
Indigenous Land Corporation, ‘Indigenous Land Corporation Board Endorsed Policy on Support for the Resolution of Native Title Claims’.
Indigenous Land Corporation, ‘Annual Report 2013-14’, above n 136, 34.
Ernst & Young, ‘Review of the Indigenous Land Corporation and Indigenous Business Australia’ (2014) 24.
Indigenous Land Corporation, Submission 66.
South Australian Government, Submission 68; Central Desert Native Title Service, Submission 48; Law Society of Western Australia, Submission 9; See also Patrick Sullivan, ‘Policy Change and the Indigenous Land Corporation’ (Research Discussion Paper 25, AIATSIS); Catlin, above n 81, 428; ‘Native Title Report 2007’, above n 94, 47–49.
Indigenous Land Corporation, Submission 66.
Explanatory Memorandum, Aboriginal and Torres Strait Islander Amendment (A Stronger Land Account) Bill 2014.
Native Title Social Justice Advisory Committee, ‘Rights Reform and Recognition’ (Aboriginal and Torres Strait Islander Commission, 1995) 1.
Ibid 4.36, 4.40.
See further Ch 9.
A Frith and M Tehan, Submission 12.
Minerals Council of Australia, Submission 65; Law Council of Australia, Submission 64; Central Desert Native Title Service, Submission 48; Australian Human Rights Commission, Submission 1.
Law Council of Australia, Submission 35; National Congress of Australia’s First Peoples, Submission 32; Law Society of Western Australia, Submission 9.
See, eg, Queensland South Native Title Services, Submission 24; National Native Title Council, Submission 16; Minerals Council of Australia, Submission 8; Just Us Lawyers, Submission 2.
Aden Ridgeway, ‘Where We’ve Come From and Where We’re At With the Opportunity That Is Koiki Mabo’s Legacy to Australia’ (Paper Presented at Native Title Conference, Alice Springs, 3-5 June 2003); cited in Stuart Bradfield, ‘Agreeing to Terms: What Is a “Comprehensive” Agreement?’ (Land, Rights, Laws: Issues of Native Title 2/26, 2004) 13.
National Native Title Council, Submission 16.
Bob Nicholls, Graham Atkinson, Mark Brett, ‘Native Title and Land Justice’ (Paper Presented at Native Title Conference, Darwin, 26 May 2006).
‘Report of the Steering Committee for the Development of a Victorian Native Title Settlement Framework’ (Department of Justice, Victoria, 2008) 1.
Bradfield, above n 158, 2–3. See further Ch 9.
Mick Dodson, ‘Indigenous Social Justice Strategies and Recommendations’ (Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner, 1995); See also Neate, above n 57, 204–205.
Many agreements are listed on the Agreements, Treaties and Negotiated Settlements website: atns.net.au.
Native Title Ministers Meeting Communique 2009.
Joint Working Group on Indigenous Land Settlements, Guidelines for Best Practice: Flexible and Sustainable Agreement Making, August 2009, 5.
Department of Justice Justice, Traditional Owner Settlement Act <http://www.justice.vic.gov.au/home/your+rights/native+title/traditional+owner+settlement+act>.
Aboriginal and Torres Strait Islander Social Justice Commissioner, ‘Native Title Report 2011’ (Australian Human Rights Commission, 2011) 4; See also Law Council of Australia, Submission 64; AIATSIS, Submission 36.
Department of Justice, Victoria, Submission 15.
Dja Dja Wurrung Clans Aboriginal Corporation, Settlement of the Dja Dja Wurrung Native Title Applications under The Traditional Owner Settlement Act 2010.
Western Australian Government, The South West Native Title Settlement Land, Approvals and Native Title Unit <http://www.dpc.wa.gov.au>.
South Australian Government, Submission 34.
South Australian Government, Submission 68.
Graeme Neate ‘Negotiating Comprehensive Settlements of Native Title Claims’ (Paper Presented at LexisNexis Native Title Law Summit, 2009) 26.
Queensland South Native Title Services, Submission 24.
Correspondence, Georgianna Fien, Department of Aboriginal and Torres Strait Islander Partnerships, 14 April 2015. See also Oliver Milman, ‘Righting a Wrong: Huge Land Handover to Traditional Cape York Owners’ The Guardian, 23 September 2014 <http://www.theguardian.com>.
Law Council of Australia, Submission 64. The Minerals Council of Australia also suggested it would be appropriate to explore state based regimes: Submission 65.
South Australian Government, Submission 34; Western Australian Government, Submission 20.
South Australian Government, Submission 68; South Australian Government, Submission 34.
Western Australian Government, Submission 20.
Northern Territory Government, Submission 31.
Native Title Act 1993 (Cth) ss 17, 22A.
Ibid ss 20, 22G.
South Australian Government, Submission 34.
Western Australian Government, Submission No 18 to Senate Committee on Legal and Constitutional Affairs, Parliament of Australia, Inquiry into Native Title Amendment (Reform) Bill 2011, August 2011.
Michael Mischin, ‘Improving the Native Title System’ (paper Presented at National Native Title Conference, Perth, 14 June 2013) 12.
Joint Working Group on Indigenous Land Settlements, ‘Report to the Native Title Ministers’ Meeting 2008-09’. The ALRC is not aware that such an agreement has been finalised.
COAG, National Partnership Agreement on Native Title cl 27 <www.federalfinancialrelations.gov.au>.
Ibid cl 31.
Ibid cl 4.
Correspondence, Georgianna Fien, Department of Aboriginal and Torres Strait Islander Partnerships, 14 April 2015.
Department of the Premier and Cabinet, Western Austrlaia, The South West Settlement: Questions and Answers (February 2014) Department of Premier and Cabinet <www.dpc.wa.gov.au>.
Native Title Ministers Meeting Communique 2009; National Native Title Council, Submission 16.