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Aboriginal and Torres Strait Islander Social Justice Commissioner June Oscar AO

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Aboriginal and Torres Strait Islander Social Justice Commissioner June Oscar AO Aboriginal and Torres Strait Islander Social Justice Commissioner June Oscar AO 15 November 2019 Committee Secretary Joint Standing Committee on Northern Australia PO Box 6021 Parliament House Canberra ACT 2600 By email: [email protected] Dear Secretary Inquiry into the Opportunities and Challenges of the Engagement of Traditional Owners in the Economic Development of Northern Australia The Commission welcomes the opportunity to make comments to the Joint Standing Committee on Northern Australia’s inquiry into and report on the opportunities and challenges associated with land rights, native title and other land-related agreements (together with payments, benefits and access arrangements under these agreements) for the purpose of engaging Traditional Owners in the economic development of Northern Australia, including, but not limited to: 1. The current engagement, structure and funding of representative bodies, including land councils and native title bodies such as prescribed body corporates; 2. The role, structure, performance and resourcing of Government entities (such as Supply Nation and Indigenous Business Australia); 3. Legislative, administrative and funding constraints, and capacity for improving economic development engagement; and 4. Strategies for the enhancement of economic development opportunities and capacity building for Traditional Owners of land and sea owner entities. Australian Level 3 GPO Box 5218 General enquiries 1300 369 711 Human Rights 175 Pitt Street Sydney NSW 2001 Complaints infoline 1300 656 419 Commission Sydney NSW 2000 TTY 1800 620 241 ABN 47 996 232 602 www.humanrights.gov.au 5. The principle of free, prior, and informed consent. 6. Opportunities that are being accessed and that can be derived from Native Title and statutory titles such as the Aboriginal Land Rights (Northern Territory) Act 1976. 7. The overall impact these are having on encouraging investment and existing investment. For the purposes of this submission, the Commission will make specific comment on the following items: • Land rights, native title and other land-related agreements; • The current engagement, structure and funding of representative bodies, including land councils and native title bodies such as prescribed body corporates; • Strategies for the enhancement of economic development opportunities and capacity building for Traditional Owners of land and sea owner entities; • The principle of free, prior, and informed consent. Land rights, native title and other land-related agreements The Commission notes the concerns raised by the United Nations Committee on the Elimination of Racial Discrimination and the United Nations Human Rights Committee in relation to the Native Title Act 1993 and the broader native title system.1 As stated in previous submissions and reports,2 the Commission is of the view that the Native Title Act 1993 in its current form does not provide for a just and equitable native title system.3 The Commission considers that key reforms to the native title system are required to ensure that economic development in Northern Australia progresses in a manner consistent with Australia’s international human rights obligations, including the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Reforms to the system should include measures to: • Ease the process of establishing connection; • Enable prior extinguishment of native title to be disregarded; • Remove impediments to leveraging native title for development opportunities; and 2 • Provide adequate resourcing to organisations responsible for administering native title. For Aboriginal and Torres Strait Islander people to have better access to economic opportunities, the challenges of presumption of continuity in the Native Title Act 1993 needs to be changed. Many stakeholders, including the Commission, support the introduction of a presumption to ease the evidentiary burden placed on Aboriginal and Torres Strait Islander applicants in proving native title.4 The time that has elapsed between the assertion of sovereignty in 1788, and the recognition of native title in 1992, means that establishing the survival of native title rights and interest over a period of more than 200 years presents significant challenges of evidence. This process is particularly unjust when one considers the history of government policies that removed many Aboriginal and Torres Strait Islander peoples from their lands, thereby undermining their ability to prove continuous connection with their lands and waters, in accordance with their traditional laws and customs.5 The current requirements for connection make it much more difficult for Aboriginal and Torres Strait Islander people to establish connection to country, be granted a native title determination, and to use native title to negotiate economic opportunities for their communities. The Commission recommends that the Australian Government implement in their entirety the recommendations from the Commission’s 2016 Social Justice and Native Title Report and the report of the Australian Law Reform Commission, Connection to Country: Review of the Native Title Act 1993 (Cth) and that it take into consideration the recommendations from previous native title working groups, reviews and inquiries to ensure an efficient and consistent approach is applied to reform processes to the native title system.6 The current engagement, structure and funding of representative bodies, including land councils and native title bodies such as prescribed body corporates It is clear from current submissions to the Inquiry that the role of prescribed body corporates (PBCs) 7 is key to ensuring the effective management of native title claims. The National Native Title Council in their submission have said ‘PBCs have statutory obligations to consult with many thousands of native title holders in relation to a broad range of major and less significant land use proposals’.8 3 They also said that PBCs have ‘the potential to be the organisational foundation for sustained community benefit, economic development activities cultural maintenance and social outcomes for native title holders, particularly in remote locations’.9 PBCs and their relationship with Traditional Owners is essential for economic development in Northern Australia. The Cape York Land Council Aboriginal Corporation said that: This is a very important stage in the restoration of Traditional Owner rights and the creation of structures that potentially enable Traditional Owners to engage with mainstream economic activities. They play a key role in the process including facilitation of consultation with the Traditional Owners.10 A key theme from many of the submissions is having adequate Government funding and support for PBCs including legal, financial, operational, corporate governance and distribution of benefits advice and assistance.11 The Torres Strait Regional Authority have said ‘to an extent the capacity for improving economic development and engagement with Traditional Owners (TOs) in the Torres Strait is reliant on the functionality of PBCs managing native title rights and interests’.12 The Cape York Land Council Aboriginal Corporation also said that ‘if this support is not provided most RNTBCs will be unable to effectively perform these functions and the benefits of native title rights will not be achieved’.13 PBCs currently receive $50,000 per annum in funding from the Commonwealth government and there have been calls to increase that amount. The National Native Title Council have recommended that the annual amount provided to each PBC be increased from $50,000 to $300,000.14 The Yamatji Marla Aboriginal Corporation have said ‘funding could assist with performing a viability study of each PBC with regard to economic opportunities and a skills audits of the common law holders’.15 The added supports would enable ‘the PBCs to focus on managing native title as per their statutory obligations’, as stated in the Kimberley Land Council’s submission.16 The Commission supports the role of PBCs and recommends the Government support native title holders to effectively govern their lands, territories and resources through their PBCs, including by providing PBCs with adequate 4 technical and financial resources to meet their administrative, legal and financial functions. Strategies for the enhancement of economic development opportunities and capacity building for Traditional Owners of land and sea owner entities. The Indigenous Property Rights Project The Indigenous Property Rights Project (Project) was an Indigenous led national dialogue between Aboriginal and Torres Strait Islander peoples and government/s about opportunities and challenges for economic development and wellbeing on the Indigenous Estate. The Project was facilitated by the Commission regarding ways to leverage the economic potential of the Indigenous Estate with the consent and guidance of Traditional Owners and aims to deliver sustainable outcomes for Aboriginal and Torres Strait Islander peoples. The Commission draws attention to relevant priorities that came out of the Indigenous Property Rights Project in relations to economic development: • Long term lease arrangements over the Indigenous Estate • Increasing incorporation options for PBCs, including under the Corporations Act, and regulation by the Australian Securities & Investments Commission (ASIC) rather than the Office of the Registrar of Indigenous Corporations (ORIC) • Progressing the recommendation of the Expert Indigenous Working Group
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