Policy development

3.121   In the course of this Inquiry, stakeholders have raised issues that are broader than the Terms of Reference and concern policy development more generally. They have called for the development of native title law to be consistent with other policy settings, and for a systematic approach to law reform.

Consistency with other policy settings

3.122   The National Indigenous Reform Agreement (Closing the Gap) was made in 2008 between the Commonwealth of Australia and all states and territories, and has bipartisan support. It committed those governments to effort in seven areas, one of which is economic participation. The Agreement notes that ‘access to land and native title assets, rights and interests can be leveraged to secure real and practical benefits for Indigenous people’.[195]

3.123   AIATSIS has argued that native title is significant for achieving the Closing the Gap targets:

Establishing a regime of native title rights that are clear, strong and economically valuable can, in turn, provide a resource base for Indigenous social and economic development.[196]

3.124   On the other hand, obtaining a determination of native title does not guarantee economic opportunity.[197] Much depends on whether the area is rich in minerals,[198] whether the group has an effective body corporate and good governance,[199] and the content of the rights themselves.[200]

3.125   Aboriginal leaders have emphasised the importance of using native title for economic development. Warren Mundine, Chair of the Prime Minister’s Indigenous Advisory Council, said that native title rights, as well as compensation for loss of land, ‘can and should be used to generate commercial and economic development for Indigenous people through a real economy, real jobs and real for-profit businesses owned and operated by Indigenous people’.[201] Similarly, Wayne Bergman, CEO of Kred Enterprises, said:

Aboriginal culture cannot survive without an economy to support it. And to build a viable indigenous economy, we must be allowed to control our land and sea country and to use the leverage it gives us to build an economic foundation for our future.[202]

3.126   The ALRC has adopted as a guiding principle that ‘reform should promote sustainable, long-term social, economic and cultural development for Aboriginal peoples and Torres Strait Islanders’.[203]

A systematic approach to reform

3.127   A number of stakeholders pointed out that the ALRC’s Inquiry is just one of a number of inquiries into different aspects of the native title system, and suggested that this is both wearying for participants in the system, and not conducive to systematic reform.

3.128   The ALRC has had regard to previous reports, reviews and inquiries, particularly the reports by the Taxation of Native Title and Traditional Owner Benefits and Governance Working Group and the Review of Native Title Organisations, which are discussed in Chapter 10, and the Productivity Commission’s Mineral and Energy Resource Exploration report, mentioned earlier.

3.129   Nick Duff identified 11 native title law reform activities since 2007.[204] This places a significant burden on stakeholders, particularly native title representative bodies and service providers. Central Desert Native Title Services said:

Participation by native title parties in multiple and sometimes overlapping reviews or consultations is time consuming and costly and often without any positive outcome. It creates a feeling of cynicism and pessimism within the native title sphere and a reluctance to participate in ‘another review’. [205]

3.130   Professor Richard Bartlett has suggested that amendments to the Act have been largely directed to ‘efficiency, efficacy, timeliness, streamlining, and improving the operation of the native title system’, rather than to addressing inequality.[206]

3.131   The Association of Mining and Exploration Companies raised a broader concern about the lack of clear strategic direction by governments, and said there is a ‘need for Government to develop and articulate an overarching native title strategy including a coherent long term plan for legislative and regulatory reform in this area’.[207]

3.132   The National Congress of Australia’s First Peoples noted that the ALRC Inquiry addresses ‘limited issues’. It supports ‘a comprehensive review of the Act by the Attorney-General’s Department, designed to achieve implementation of the rights set out in the UN Declaration of the Rights of Indigenous People’.[208]

3.133   In 2010 and 2011 the Aboriginal and Torres Strait Social Justice Commissioner called for a comprehensive and independent review of the native title system, considering the burden of proof, extinguishment, the future act regime and other matters.[209]

3.134   Goldfields Land and Sea Council said that there are ‘a range of issues demanding attention that have not been included in the terms of reference for the current review, including extinguishment and the right to negotiate’.[210]

3.135   There are also significant post-determination challenges to be addressed, including the effectiveness and funding of prescribed bodies corporate (PBCs). The Deloitte Review of Native Title Organisations[211] and the Taxation Working Group[212] were significant in raising these issues and indicating some ways forward.

3.136   The ALRC appreciates and acknowledges the calls for a systematic approach to reform, but is bound by the Terms of Reference for this Inquiry, the scope of which is outlined in Chapter 1.