Allens Arthur Robinson

• Introduction
• All recent publications
• Native Title publications
• Native Title services

Focus: Native Title – January 2009

Optimising benefits from native title agreements, a new Victorian settlement framework and an update

In brief: As part of its commitment to 'close the gap' between Indigenous and non-Indigenous Australians, the Federal Government is seeking ways to improve the delivery of benefits to traditional owners from native title agreements, and input on its public discussion paper. Meanwhile, in Victoria, a joint government-traditional owner steering committee has proposed a major overhaul of the settlement of native title claims in that state, we also update on the new national representative body and on proposed changes to native title legislation. Senior Associates Robyn Glindemann and Emily Gerrard and Lawyer Jess D'Souza report.

• Optimising benefits from native title agreements
• Alternative settlement framework for Victoria
• National Indigenous representative body – update
• Proposed amendments to the Native Title Act 1993 (Cth)

Optimising benefits from native title agreements

Background

Under the Native Title Act 1993 (Cth) (the NTA), the 'right to negotiate' procedure applies when seeking the grant of certain mining tenements, and when native title rights and interests are acquired by the state. Under the NTA, corporations (predominantly in the resources sector) enter into agreements with traditional owners under which benefits, including compensation, are provided to the traditional owners in exchange for access to their country. It is common for such agreements to take the form of Indigenous land use agreements (ILUAs), which are then registered under the NTA.

In July 2008, the Federal Government created a small working group comprised of Indigenous leaders, lawyers, academics and mining industry representatives to consider ways to optimise the benefits of native title agreements to Indigenous communities. A report by the working group was released in early December 2008, together with a Federal Government discussion paper based on the working group's findings.

Intergenerational benefit

The working group's terms of reference required it 'to develop tangible suggestions for ensuring that the benefits accruing to Indigenous interests under native title agreements contribute to addressing the economic and social disadvantage facing the Indigenous community and are delivered to current and future generations.' ¹ Accordingly, one of the key themes of the working group's report is the need for native title agreements to have long-term, as well as short-term, benefits. The importance of intergenerational benefits is reflected in the discussion paper.

What makes a good agreement?

The working group generated a list of 'critical' provisions of good agreements. In summary, those provisions provide:

• financial benefits proportional to the impact of the mine, or other operation, for the long term, through trusts and regular on-going payments;
• Indigenous business, employment and training opportunities;
• community development payments and initiatives;
• Indigenous involvement in cultural, heritage and environmental projects;
• Indigenous control of funds, combined with mentoring and support by independent parties;
• appropriate trust structures aligned with the specific community needs and group composition and the purposes of the agreement; and
• regular review of the long-term objectives of the agreement and the extent to which these are being met.²

The discussion paper suggests that upfront cash payments are not the best way to maximise the benefit from native title agreements, noting that '[r]esponsible companies are moving away from this practice in favour of structuring benefits in a more sustainable way.' ³

Availability of example agreements and guidelines

The working group recommended in its report that confidentiality clauses in native title agreements should not be unnecessarily broad and that a public database of agreements should be made available. It suggests that providing a range of actual agreements would be of greater assistance than developing a 'one size fits all' template.

The idea of establishing a public database was picked up in the discussion paper, which suggests the possibility of a register of relevant provisions for use in agreements, or the inclusion of certain 'best practice' agreements in their entirety. The paper notes that there would be costs in creating and maintaining such a register and that legislation may be required. It also observes that the utility of a register would be limited by the necessity to tailor each native title agreement to suit the circumstances. Nevertheless, the discussion paper suggests that such a register may be a 'useful first step'.⁴

The report also recommends that state governments and the Commonwealth, the Minerals Council of Australia and the National Native Title Council collaboratively develop guidelines on, and advice about, the drafting of native title agreements. This suggestion is reflected in the discussion paper.

Tax reform

Much of the working group's report focused on potential legislative reforms, particularly in the area of taxation. The discussion paper observes that '[i]n general, commercial dealings on Indigenous owned or controlled land is subject to the usual taxation arrangements in place for other businesses'.⁵

The discussion paper raises a few potential reforms (drawing on the working group report), including:

• creation of a trust vehicle that is not hampered by the limitations that affect charitable trusts;
• new tax incentives to encourage and sustain economic development in Indigenous communities; and
• amendments to the Income Tax Assessment Act 1997 (Cth) to create '...a specific category of tax exempt entities for use by Indigenous communities for the growth and development of their community.' ⁶
  Governmental responsibility

A key point made by the working group in its report was that some of the issues sought to be addressed by native title agreements (such as improvements to education services) are actually the responsibility of government, not the private sector. The working group report emphasised that governments should not be absolved of responsibility to fulfil their functions in regional and remote areas, and that native title agreements should be applied for the economic development of Indigenous communities, not to fill a vacuum in essential services.

The discussion paper acknowledges this point. Separately, it observes that '[g]overnment has a role in assisting Indigenous people to access these opportunities through providing more work ready assistance for Indigenous people to gain mining related employment such as building skills and capacity to take up employment opportunities as they arise.' ⁷

Legislative framework

The discussion paper suggests two overall strategies for effecting change:

• a legislative scheme that prescribes a minimum level of statutory benefits to be provided under native title agreements and could also provide 'off the shelf' agreement templates for parties to use in negotiations; and
• at a regulatory level, a pre-existing or specially created agency could provide advice and support to manage agreements in a manner that results in sustained benefits.

It should be noted that there was general agreement among members of the working group that it was 'inappropriate' to mandate how benefits under agreements should be provided and applied through legislation.⁸

Next steps

The Federal Government is seeking submissions on the discussion paper. The closing date is 13 February 2009.

Alternative settlement framework for Victoria

Background

In March 2008, the Victorian Government and the Victorian Traditional Owner Land Justice Group (VTOLJG) announced their agreement to develop a new Victorian native title settlement framework (the framework). The framework is intended to streamline native title resolution and provide alternatives to formal recognition of native title by the Federal Court (the alternative settlement). A joint steering committee was established to guide the negotiation of the framework and recommendations. The steering committee comprised representatives from the VTOLJG, Native Title Services Victoria and senior Victorian Government officials, and was chaired by Professor Mick Dodson.

Proposed reforms

According to media releases and VTOLJG website publications, the steering committee draft 'alternative settlement' framework is expected to recommend policy and legal reform in the following areas:

• engagement protocols (including in relation to the use and management of public land);
• recognition (through alternative settlement agreements);
• access to land (including management of parks and reserves and transfer of land areas);
• access to, and use of, natural resources; and
• claim resolution – funding and the terms of settlement agreements.

The framework aims to create scope for alternative settlements drawing from a suite of benefits and interests, including possible ownership and joint management of areas of Crown land, but excluding legal recognition of native title. The process of engagement and outcomes of the steering committee process are also intended to contribute to reconciliation in Victoria.

The-steering committee negotiation process involved consultation with the Aboriginal Heritage Council (established under the Aboriginal Heritage Act 2006 (Vic)) about how cultural heritage processes may interact with a new framework.

On 6 January 2009, the media reported leaked details of the confidential draft of the native title settlement framework, including recommendations in relation to changing 'connection' evidence requirements, negotiation processes, consent requirements, compensation and amendments to existing laws.⁹ Subsequent media coverage indicates that the Commonwealth Government and other interest groups endorse the innovative approach of the Victorian Government. It is anticipated that State Cabinet will consider the report early this year.¹⁰

A new settlement framework has the potential to make native title outcomes in Victoria more certain, and to provide clearer and more streamlined processes for stakeholder engagement. However, the extent to which the current system will be improved will not be known until further details are released.

These developments follow the Victorian Government's announcement last week that newly created national parks in Victoria will have boards of management with a majority Indigenous membership, and proposals to increase support for Indigenous involvement in biodiversity and land management under the state's Land and biodiversity at a time of Climate Change Green Paper/White Paper process. The land and biodiversity White Paper, due for release in mid-2009, is expected to provide direction for Victorian Government policy and investment priorities in natural resource management, land health and biodiversity.

We will update clients on the key elements of the draft settlement framework, the government's response and how it may be implemented, as details become available.

National Indigenous representative body – update

As we reported in August 2008, the Federal Government intends to create a new national Indigenous representative body to replace the disbanded Aboriginal and Torres Strait Islander Commission (ATSIC).

In December last year, the Minister for Families, Housing, Community Services and Indigenous Affairs announced that the Aboriginal and Torres Strait Islander Social Justice Commissioner, Tom Calma, will head a steering committee to oversee the new body's establishment.

It is expected that the committee will choose about 100 people to help develop the body. Mr Calma will conduct round-table discussions in early 2009 with Indigenous leaders to decide the shape that the organisation that the organisation will take.¹¹ Meanwhile, the Indigenous consultation process on the new organisation that Mr Calma commenced in 2008 has been extended and it is expected that the outcomes of this consultation process, and the round table discussion, will be publicly released later this year.

Proposed amendments to the Native Title Act 1993 (Cth)

In October 2008, the Commonwealth Attorney General announced the Federal Government's intention to amend the NTA to provide a greater role for the Federal Court in managing native title litigation. Following this announcement, the Attorney General released a discussion paper on 23 December 2008 setting out proposals for minor amendments to the NTA, including changes which would:

• enable the court to make determinations that cover matters beyond native title to recognise the broader nature of agreements currently being made;
• streamline administrative processes relevant to Native Title Representative Bodies (NTRBs) and consolidate provisions for the extension, reduction or variation of the area for which a body is the NTRB; and
• introduce an inquisitorial process to native title litigation whereby the court may refer questions arising in proceedings to a referee for inquiry and report. This proposal was put forward in the Federal Justice System Amendment (Efficiency Measures) Bill (No. 1) 2008 as part of broader reform proposals for the Federal Court. The discussion paper asks whether this concept should extend to native title litigation.

The proposals and questions put forward in the discussion paper are relevant to both applicant and respondent parties to native title proceedings. In particular, the proposal to enable the court to make determinations that cover matters beyond native title requires careful consideration. As suggested in the discussion paper, consideration should be given to the scope of discretion afforded to the court by such a proposal, including whether any discretion should be limited by specifying the types of matters that could be covered by a broader determination.

Enabling parties to agree and submit a statement of facts for a consent determination, may lead to more efficient resolution of active claims. However key questions in this regard, again reflected in the discussion paper, relate to the parties that must agree to such a statement; and, what limits, if any, should be placed on the court's discretion to accept an agreed statement.

Submissions on the proposed amendments can be made to the Attorney General's Department until Monday 16 February 2009.

Footnotes

1. Terms of Reference, extracted in the report, p18, emphasis added.
2. Discussion paper, p6.
3. Discussion paper, p7.
4. Discussion paper, p10.
5. Discussion paper, p15.
6. Discussion paper, p16. &
7. Discussion paper, p13. The discussion paper also refers to a paper that the Federal Government released in October 2008 on Indigenous employment programs, titled Increasing Indigenous Employment Opportunity. On 19 December 2008, reforms to the Community Development Employment Projects (CDEP) Program and the Indigenous Employment Program (IEP) were announced by the Minister for Families, Housing, Community Services and Indigenous Affairs, Jenny Macklin. The reforms will begin on 1 July 2009.
8. Report, p1.
9. Jewel Topsfield, 'Native title reform bid', The Age, 6 January 2009.
10. Newsletter of the Victorian Traditional Owner Land Justice Group, December 2008.
11. Minister for Families, Housing, Community Services and Indigenous Affairs, 'Next Steps for Indigenous Body' (press release, 16 December 2008).

For further information, please contact:

• Ben ZillmannPartner, Brisbane
  Ph: +61 7 3334 3538
  Ben.Zillmann@aar.com.au
• Scott LangfordPartner, Melbourne
  Ph: +61 3 9613 8926
  Scott.Langford@aar.com.au
• Robyn GlindemannSpecial Counsel, Perth
  Ph: +61 8 9488 3712
  Robyn.Glindemann@aar.com.au
• Emily GerrardSenior Associate, Melbourne
  Ph: +61 3 9613 8611
  Emily.Gerrard@aar.com.au

Return to top

---

Tweet or bookmark with What are these?