3.75 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.
3.76 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’.
3.77 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 Fund
3.78 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 Fund, administered by the Indigenous Land Corporation (ILC). The purpose of the ILC is 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.
3.79 The Land Fund received appropriations from consolidated revenue for the first 10 years of its operation, and at the end of 2004, the value of the fund was $1.42 billion. The ILC has acquired 5.86 million hectares of land since establishment.
3.80 There are some concerns as to whether the ILC has fulfilled its purpose. Dr Calma said in 2008 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.
3.81 Similarly, in 2009, Patrick Sullivan reported that, while the Prime Minister’s second reading speech indicated that the purpose of establishing the ILC was ‘building and sustaining an adequate stock of land in the hands of indigenous owners currently dispossessed’, the Annual Reports of the ILC indicate a focus on ‘running its own commercial activities and emphasising employment and training’.
3.82 In 2014, Ernst & Young inquired into ‘the effectiveness of Indigenous Business Australia and the ILC … in driving economic development’. The report noted that the purpose of the ILC was compensatory, rather than to pursue commercial activity, and that some of its activities indicated ‘a lack of clarity around purpose’ that should be addressed. It also noted that ‘there is no interest on the part of the Government to change the purpose of the Land Account or the ILC’s functions towards commercial activity’.
3.83 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.
3.84 The policy also indicates that the ILC will
give preference to working with those States or Territories and NTRBs that have an effective, fair and realistic State or Territory or regional wide framework in place for the settlement of native title claims.
3.85 The ILC reported a number of native title-related activities in 2012–13, although only one of them involved acquiring and divesting property.
The social justice package
3.86 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 National Land Fund, and such compensation should include ‘access to revenue derived from the use of land by non indigenous Australians’.
3.87 Without a social justice response, 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.
3.88 The ALRC’s proposals for reforms 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. A fourth element is alternative settlements (discussed below).
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 102, 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 Act 2005 (Cth) s 191B.
Patrick Sullivan, ‘Policy Change and the Indigenous Land Corporation’ (Research Discussion Paper 25, AIATSIS) 19.
Indigenous Land Corporation, ‘Annual Report 2012–13’ (2013) 3.
Sullivan, above n 119; Catlin, above n 37, 428; ‘Native Title Report 2007’, above n 45, 47–49.
‘Native Title Report 2007’, above n 45, 47.
Sullivan, above n 119.
Ernst & Young, ‘Review of the Indigenous Land Corporation and Indigenous Business Australia’ (2014) 24.
Indigenous Land Corporation, above n 120, 27.
Indigenous Land Corporation, ‘Indigenous Land Corporation Board Endorsed Policy on Support for the Resolution of Native Title Claims’.
Indigenous Land Corporation, above n 120, 24.
Native Title Social Justice Advisory Committee, ‘Rights Reform and Recognition’ (Aboriginal and Torres Strait Islander Commission, 1995) 1.
Ibid 4.36, 4.40.
A Frith and M Tehan, Submission 12.
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.