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Native Title Report 2006: Chapter 2: Economic Development Reforms on Indigenous land

Native Title Report 2006

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  • Chapter 2: Economic Development Reforms on Indigenous
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    Introduction

    In 2006 the Secretary of the Department of Prime Minister and Cabinet made a
    revealing statement about Indigenous affairs. He argued that his own
    government’s policy performance in the Indigenous portfolio had been a
    failure. He went further to say that while well intentioned, the policies and
    approaches of the past 30 years had contributed to poor outcomes for Indigenous
    people.

    I am aware that for some 15 years as a public administrator too much of what
    I have done on behalf of government for the very best of motives has had the
    very worst of outcomes. I and hundreds of my well-intentioned colleagues, both
    black and white, have contributed to the current unacceptable state of affairs,
    at first unwittingly and then, too often, silently and
    despairingly.[1]

    This statement was made in the context of the Australian Government’s
    ambitious reform agenda aimed at significantly recasting Indigenous policy in
    remote Indigenous Australia. During 2005 and 2006 the Government implemented
    legislative and policy reforms that will change the face of Indigenous
    communities located on communally titled land. The Government argued that
    communal tenures prevent Indigenous people from improving material wealth and
    economic circumstances. According to the Government, individual property rights
    will allow Indigenous Australians to accumulate assets and participate in market
    economies. The Government’s reforms are designed to emphasise the
    individual as an agent in economic self development through ‘building
    wealth, employment and an entrepreneurial
    culture.’[2] According to the
    Minister for Indigenous Affairs:

    It is individual property rights that drive economic development. The days of
    the failed collective system are
    over.[3]

    This Chapter will focus on the Government’s
    economic reform agenda with discussion about the following:

    • individualising title on Indigenous communal lands through 99 year
      headleases;
    • liberalising public access to Indigenous land through the modification of
      the permit system;
    • home ownership on Indigenous lands;
    • centralising government services in large Indigenous townships;
    • developing regional shire councils to replace Indigenous community
      councils
    • employment and CDEP; and
    • access to capital for Indigenous economic and enterprise development.

    The government policy framework

    The Australian Government’s policy agenda is
    contained in the 2006 Blueprint for Action in Indigenous Affairs(hereon referred to as the Blueprint). The
    Blueprint defines the Government’s intention to replace protectionist,
    welfare-based approaches to Indigenous affairs with market-based approaches to
    land, housing, enterprise development and employment. This means opening up
    Indigenous land to the wider Australian public and creating more interaction
    between remote communities and the Australian economy. The discourse that
    accompanies the Government’s policy reforms defines a need to
    ‘normalise’ Indigenous communities through mainstreaming service
    delivery and creating market economies.

    We will need to remove barriers to economic opportunity. But we are not
    proposing to use government programs to create artificial economies. It
    doesn’t work. We are talking about creating an environment for the sort of
    employment and business opportunities that exist in other Australian
    towns...

    Land tenure changes will be progressively introduced, subject to the
    agreement of traditional owners, to allow for home ownership and the normal
    economic activity you would expect in other Australian towns.

    In places like Wadeye, Cape York and Groote Eylandt this is just beginning to
    happen. We want to get to the point where people living in these remote
    communities are not solely dependant on community or public housing. They should
    be able to buy their own homes. Those who don’t should make a fairer
    contribution in rent.[4]

    In 2005 the Australian Government announcedlegislative amendments to the Aboriginal Land Rights (Northern
    Territory) Act 1976
    (Cth) (hereon referred to as ALRA). One significant
    addition to the ALRA was a provision that permitted Governments to negotiate 99
    year headleases over Northern Territory townships under Indigenous communal land
    rights tenure. The headleases would then be divided into sub leases for
    individual tenants, home purchasers, businesses and government service
    providers.

    Accompanying the tenure reforms in 2006 were proposed
    changes to the ALRA permit system. The ALRA permit system currently requires all
    visitors, non Indigenous residents and non residents to obtain a permit to enter
    and stay on Indigenous land. The Australian Government’s aim in reforming
    the permit system is to liberalise land access so that the providers of goods
    and services can enter Indigenous land without restriction.

    Integral to the government’s
    ‘normalisation’ strategy are proposed changes to the Indigenous
    housing system and housing markets. The intention is to increase home ownership
    and reduce reliance on government subsidised rental accommodation. According to
    the Government, these reforms are dependent on 99 year leases. The Minister for
    Families, Community Services and Indigenous Affairs has determined that
    funding for home ownership schemes will be contingent on the states and
    territories amending their land rights legislation to make provision for 99 year
    headleases.

    Finally, the Blueprint sets out the Australian
    Government’s intention to limit the supply of services and financial
    support to small ‘unsustainable’ Indigenous communities. If
    Indigenous people on homelands and outstations want to access health and
    education services they will have to move to the larger townships.

    The precursor to the Blueprint is the 2003 Council of Australian Governments
    report, Overcoming Indigenous Disadvantage, Key Indicators (The COAG
    Report). The Report is the framework on which the Indigenous reform agenda has
    been developed. The COAG Report has a dual focus. It maps the extent of
    Indigenous disadvantage using 2001 census data and it provides a framework for
    the focus of government action. ‘Economic participation’ is the apex
    of the tripartite COAG framework, along with creating healthy families and early
    childhood. The COAG Report recommends: ‘improved wealth creation and
    economic sustainability for individuals, families and
    communities.’[5]

    A key finding of the Overcoming Indigenous Disadvantage Key
    Indicators


    2003 Report is that economic development is central to improving the
    well-being of Indigenous Australians.

    A strategic goal of the Australian Government’s Indigenous policy is to
    increase Indigenous economic independence, through reducing dependency on
    passive welfare and stimulating employment and economic development
    opportunities for Indigenous individuals, families and communities.

    The COAG Report aims to implement ‘economic participation and
    development’ through seven specific areas for action. These are contained
    in the COAG strategic areas for action and include the following:

    • employment (full-time/part-time) by sector (public/private), industry
      and occupation;
    • CDEP participation
    • long term unemployment;
    • self employment;
    • Indigenous owned or controlled land;
    • accredited training in leadership, finance or management; and
    • case studies in governance
      arrangements.[6]

    The COAG Reports on Overcoming Indigenous Disadvantage will
    be issued on a two yearly basis and will be formulated from a range of data
    sources including the Australian Bureau of Statistics (ABS), the Australian
    Institute of Health and Welfare and the Productivity Commission as well as
    government departments. Successive Reports will be used to evaluate the reform
    agenda.

    Progress will be monitored through the Overcoming Indigenous
    Disadvantage
    reports, which measures key indicators in Indigenous social and
    economic well-being from a whole-of-government perspective. In particular, the
    increased participation of Indigenous Australians in employment and increased
    wealth of Indigenous Australians—collective and individual—will be
    monitored. In addition, improvements will be continually monitored through
    agencies measuring their contributions against each initiative in the
    strategy.[7]

    Indigenous land tenures

    The Australian Government’s reforms must be considered with full
    knowledge of the location, infrastructure, and legislative parameters of
    communally titled Indigenous land. As of June 2006, Indigenous Australians held
    communal rights and interests to land encompassing almost 23 percent of the
    Australian land mass.[8] While there
    is no doubt that the Indigenous ‘estate’ is now considerable, most
    of the land that has been returned to Indigenous people since the 1970s is
    remote, inhospitable and marginal. The process of colonisation over two
    centuries ensured that the best land was granted, taken or purchased by
    non-Indigenous Australians. The Crown land that was still unallocated by the
    1970s remained so for good reason. However, in recent times some of the remote,
    coastal land under Indigenous tenure has become attractive to developers,
    governments and non-Indigenous residents. This trend is likely to continue as
    residential markets spread along the Australian coastline. Land in the central
    desert belt of Australia is unlikely to attract residential markets, now or into
    the future.

    There are three ways that Indigenous land has been returned to Indigenous
    people. It has been allocated by governments through statutory land rights,
    claimed under the native title regime, or purchased on behalf of Indigenous
    people with funds established to provide land to the dispossessed. Indigenous
    Australians have also purchased land as individuals, in the same way as
    non-Indigenous Australians and through land councils in some states. Land that
    has been returned to Indigenous Australians is largely unallocated Crown land.
    The majority of the land is located in very remote desert regions with limited
    or no infrastructure, roads or utilities.

    Native Title

    Indigenous traditional owners have varying rights and interests to just over
    8.5 percent of the Australian land mass as a consequence of native title
    determinations.[9] By June 2006 there
    were 60 determinations that native title exists. However, in the majority of
    cases the traditional owners do not have exclusive possession of the land.
    Traditional owner rights to land are limited to the same customary activities as
    those that were practiced centuries ago and recorded by the ‘first
    contact’ non-Indigenous colonisers. The claimable land that exists under
    the native title regime includes unallocated Crown lands, some reserves and park
    lands, and some leases such as non-exclusive pastoral and agricultural leases,
    depending on the state or territory legislation under which they were issued.

    Across Australia, just over 96 percent of all native title land is classified
    as very remote by the Accessibility Remote Index of Australia (ARIA), the
    most widely used standard classification and index of
    remoteness.[10] In terms of the
    size, Western Australia has by far the largest areas of native title land of any
    Australian jurisdiction. Ninety two percent of the area of native title
    determinations is in Western Australia (WA). A large proportion of native title
    land in WA is in the Gibson, Tanami and Great Sandy Desert regions as well as in
    the Kimberley. In the other states and territories native title rights and
    interests have been recognised over smaller parcels of land. In Queensland land
    under native title is in the ‘very remote’ Cape York region and in
    the Torres Strait. In South Australia native title interests and rights have
    been recognised in the ‘very remote’ north central region of the
    state which is partially located within desert regions. In the Northern
    Territory native title interests and rights have been recognised over land and
    seas in ‘very remote’ regions and in Alice Springs, classified as an
    ‘outer regional’ by ARIA. In Victoria, native title land is located
    ‘remote’ and ‘outer regional’ areas and in Tasmania
    there are no successful native title claims to date. By June 2006, New South
    Wales was the only jurisdiction that successfully achieved a native title
    determination in an ‘inner regional’ area. The land parcel is very
    small comprising 0.1 square kilometres on the New South Wales Coast.

    Overall, the land over which native title interests and rights have been
    recognised is some of the most marginal and inhospitable land in Australia.
    Chart 12 shows the location of Indigenous land under native title by remoteness.

    CHART 12: NATIVE TITLE DETERMINATION AREAS MAPPED AGAINST REMOTENESS -
    2006


    NTR2006_ch200.jpg

    Source: National Native Title
    Tribunal 2006

    Indigenous land rights statutes

    Indigenous lands granted under state, territory and federal statute
    constitutes 14.4 percent of the Australian land
    mass.[11] Land under statute has
    been granted or purchased by governments for Indigenous people since the 1970s.
    Like land under native title tenure, while the land area is extensive, the vast
    majority of it is marginal, located in desert regions or in remote locations in
    the north of Australia.

    Chart 13 demonstrates that the land under statutory land rights is
    overwhelmingly represented in the central desert regions of Australia. Vast
    tracts of Indigenous land traverse Western Australia, the Northern Territory and
    South Australia. There are also large tracts of Indigenous land in the remote
    north eastern regions of the Northern Territory, in the coastal regions of
    Western Australia’s northern belt and the coastal Cape York areas of
    Northern Queensland.

    The high commercial value of the land in New South Wales (NSW) provides an
    exception to the trend for land to be remote and marginal. While the land
    granted to land councils in NSW is in many small parcels rather than large areas
    of country, some of it is very valuable in terms of its potential for
    development, both residential and
    commercial.[12]

    Chart 13 shows the location of Indigenous land under statutory land rights.

    CHART 13: STATUTORY LAND RIGHTS AREAS MAPPED AGAINST REMOTENESS - 2006

    NTR2006_ch201.jpg

    Source: National Native Title
    Tribunal 2006


    Note: This map does not include Indigenous land purchased
    by the Indigenous Land Corporation

    Other Indigenous communal land tenures

    In addition to native title and land rights tenures, Indigenous land has been
    purchased on behalf of Indigenous people by the Indigenous Land Corporation
    (ILC) since June 1995. Indigenous Australians can apply to the ILC for purchase
    of land under the categories of cultural, social, environmental and economic
    benefit. Applicants must identify the ways in which the land purchase addresses
    dispossession. They must also define a specific purpose for the land under one
    of four categories and set achievable milestones and outcomes.

    • Applicants are asked to enter into a lease while the ILC owns the land. The
      terms of the lease include a staged work plan, including capacity development
      activities, and applicants are required to report on and monitor how work is
      going.
    • Progress towards a land grant depends on successful completion of the work
      plan. It is the ILC's opinion that it is usually reasonable to grant land within
      three years of buying it.
    • The ILC's purchase and divestment policy is aimed at ensuring that the land
      purchased will remain Indigenous-held and can provide future generations with
      cultural, social, environmental or economic benefits.
    • The ILC must grant title to land to an Aboriginal and Torres Strait Islander
      Corporation as defined in the Aboriginal and Torres Strait Islander Act
      2005.[13]

    Land purchased by the ILC covers over 5.5 million hectares and cost
    almost $170 million by June 2006. Since 1995 the ILC has made a total of 201
    land acquisitions, 27 have been acquisitions in urban
    locations[14]

    The size and location of Indigenous communities

    The 2001 census data identifies a total of 458,520 Indigenous people in
    Australia. Of these 121,163 were residents in remote and very remote
    regions.[15] There are 1,139
    discrete communities in remote and very remote regions, of which more than half
    (577 in total) have populations of less than 20
    people.[16] In most cases, larger
    communities represent Indigenous living areas formerly constituted as government
    and mission settlements. The smaller populations are outstations or homeland
    communities.

    [O]utstation communities... had their origins in voluntary and spontaneous
    resettlement of Aboriginal country commencing the 1970’s. These
    settlements are found predominantly in central Australia, the Kimberly, the top
    end of the Northern Territory and the Cape York
    Peninsula.[17]

    Chart 14 provides information about the number, population size and location
    of Indigenous communities.

    CHART 14: NUMBER OF DISCRETE INDIGENOUS COMMUNITIES BY SETTLEMENT SIZE AND
    REMOTENESS REGION, 2001

    Settlement Population Size
    Major Cities
    Inner Regional
    Outer Regional
    Remote
    Very Remote
    Total
    1-19
    0
    0
    6
    33
    577
    616
    20-49
    0
    1
    8
    36
    228
    273
    50-99
    1
    7
    13
    17
    64
    102
    100-199
    3
    5
    12
    9
    51
    80
    200-499
    1
    6
    11
    11
    77
    106
    500-999
    0
    0
    0
    1
    17
    18
    1000+
    0
    0
    3
    2
    16
    21
    Total
    5
    19
    53
    109
    1,030
    1,216

    Source: Australia Bureau of Statistics, Housing and Infrastructure in
    Aboriginal and Torres Strait Islander Communities
    ,
    2001[18]

    Economic development limitations of Indigenous land

    The Indigenous land base is not comparable with land in urban environments
    and large regional townships. In remote Indigenous communities almost all
    services are provided by governments or by church organisations. The land is
    inhospitable, and usually cut off from markets and cities by distance and poor
    road infrastructure. The tropical north is inaccessible by road during the wet
    season which can extend to four months each year. The climate, soil and weather
    are not conducive to cultivation, and tourist markets are limited in the
    majority of the desert regions. It is therefore difficult to develop and
    maintain significant enterprise ventures on Indigenous land.

    Experience in remote Australia suggests that a goal of developing
    under-developed Indigenous-owned land will not of itself be the driver of
    private-sector finance availability. On its own terms, whether this land was
    freely alienable or not, much of this land is in the poorest land classes and is
    remote from markets.[19]

    Economic opportunities are further limited by the fact that land rights
    regimes in Australia provide only the most minimal rights to subsurface
    minerals. The New South Wales Aboriginal Land Rights Act 1983 (NSW)
    provides rights to minerals though significantly excludes rights to gold,
    silver, coal and petroleum. In Tasmania under the Aboriginal Lands Act
    1995
    (Tas), minerals other than oil, atomic substances, geothermal
    substances and helium are the property of Indigenous people to a depth of 50
    metres. No other land rights regime in Australia provides rights to subsurface
    minerals. Indigenous land holders have to apply for licences for mining activity
    in the same way as anyone else. While for the most part Indigenous Australians
    have no mineral entitlements, the existence of a mining tenement can provide
    royalty payments to traditional owners. Information outlining mineral rights
    under the land rights legislations of all Australian jurisdictions is provided
    at Appendix 1 of this Report.

    Although commercial rights are not specifically excluded from the Native
    Title Act 1993
    (Cth), sections 211(2) and (3) indicate that native title
    interests and rights are generally expected to encompass traditional activities.
    These include hunting, fishing, gathering, participating in spiritual or
    cultural activities and acting for the purpose of satisfying personal, domestic,
    non-commercial or communal needs.

    The case law that has defined and interpreted the Native Title Act 1993 (Cth) clarified that subterranean minerals and petroleum are the property of
    the states and held this property right is sufficient to extinguish native title
    rights. The High Court judgement in Ward[20] determined that
    native title entitlements should be characterised as a ‘bundle of
    rights’ rather than an ‘underlying title to land.’ The
    practical effect of Ward is that the potential economic entitlements of
    the claimants are severely restricted. The ‘bundle of rights’
    interpretation limits the legal recognition of economic and resource rights.
    Only exclusive possession under native title vests land ownership rights in
    traditional owners, including the right to exploit mineral resources within the
    existing restrictions and caveats of Australian law.

    Economic development has never been primary aim of land rights legislations.
    If it were, valuable mineral rights would have accompanied the return of the
    land as it has in countries with treaties such as Canada, the USA and New
    Zealand. In these countries the treaty relationship means that governments have
    an obligation to negotiate in good faith and recognise their fiduciary duties to
    compensate for dispossession. This has led to large scale financial compensation
    settlements that have provided indigenous peoples with a solid foundation for
    economic development.

    The real value of land returned to Indigenous
    ownership under Australian land rights legislation has always been strongly
    connected to its potential to compensate for dispossession, restore Indigenous
    peoples’ spiritual relationship with the land, and recognise the right to
    self-determination. These findings are strongly reinforced by the findings of
    HREOC’s survey of traditional owners in Chapter 1 of this Report.

    Strategies for economic development on Indigenous land must therefore be made
    in full cognisance of the limitations of both the land itself and the land
    rights legislative frameworks. The topographic and location limitations of
    Indigenous land are integral to any considerations or policy approaches to
    improve economic outcomes for Indigenous people. Strategies that work in cities
    or on resource rich land are not applicable to the remote, marginal country that
    characterises much of the Indigenous ‘estate.’ Governments must look
    to approaches that have worked in environments that broadly approximate those
    for Indigenous Australians.

    99 Year headleases over Indigenous townships

    During 2006, the Australian Government began implementing land reforms in the
    Northern Territory where the land rights legislation is the jurisdiction of the
    Commonwealth. Underpinning the land rights reforms was the 2005 National
    Indigenous Council’s (NIC) Land Tenure Principles which were
    discussed extensively in last year’s Native Title Report 2005. The
    NIC Principles supported the maintenance of inalienable, communal tenure rights
    for Indigenous land, but argued to amend land rights legislations ‘in such
    a form as to maximize the opportunity for individuals and families to acquire
    and exercise a personal interest in those lands, whether for the purposes of
    home ownership or business
    development.’[21]

    In 2006 the Australian Government added a new section 19A to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALRA) to
    provide that with ministerial consent a Land Trust may grant a 99 year headlease
    over an Aboriginal township to an approved entity of the Commonwealth or the
    Northern Territory Government.

    The 99 year leasing provision of s 19A of the ALRA has the practical effect
    of ‘alienating’ Indigenous communal land. While a lease is not
    alienation in fact, it will have the same effect in practice. Ninety nine years
    is at least four generations. With potential to create back-to-back leases,
    there is a high probability that the leases will continue in perpetuity.

    Amendments of the nature of the ALRA are likely to be replicated in other
    Australian jurisdictions. During 2006 the Australian Government announced that
    it intended to encourage other states and territories to make similar amendments
    to their land rights legislations through home ownership funding incentives and
    bilateral agreements.

    I hope these changes (amendments to ALRA) motivate other state governments to
    amend their Indigenous land legislation to facilitate similar opportunities for
    Indigenous Australians who reside on community land,’ Mr Brough said.

    The 2006-07 Budget sees the allocation of $107.5 million towards the
    expansion of the Indigenous Home Ownership on Indigenous Land Program.

    The new tenure arrangements contained in the Bill will enable Aboriginal
    people in the Northern Territory to access this new
    program.[22]

    Obtaining consent for 99 year headleases

    The 99 year lease agreements are voluntary. In order to establish a 99 year
    headlease, section 19A(2) of the ALRA provides that governments must consult
    with the wider Indigenous community of the township, and obtain consent for the
    headlease from traditional owners through their representative Land Councils.
    The provisions for 99 year headleases are as follows:

    A Land Council must not give a direction under subsection (1) for the grant
    of a lease unless it is satisfied that:

    (a) the traditional Aboriginal owners (if any) of the land understand the
    nature and purpose of the proposed lease and, as a group, consent to it; and

    (b) any Aboriginal community or group that may be affected by the proposed
    lease has been consulted and has had adequate opportunity to express its view to
    the Land Council; and

    (c) the terms and conditions of the proposed lease (except those relating to
    matters covered by this section) are
    reasonable.[23]

    Section 77A of the ALRA specifies the circumstances under which traditional
    owners can give consent as a group.

    Where, for the purposes of this Act, the traditional Aboriginal owners of an
    area of land are required to have consented, as a group, to a particular act or
    thing, the consent shall be taken to have been given if:

    (a) in a case where there is a particular process of decision making that,
    under the Aboriginal tradition of those traditional Aboriginal owners or of the
    group to which they belong, must be complied with in relation to decisions of
    that kind – the decision was made in accordance with that process; or

    (b) in a case where there is no such process of decision making – the
    decision was made in accordance with a process of decision making agreed to and
    adopted by those traditional Aboriginal owners in relation to the decision or in
    relation to decisions of that
    kind.[24]

    Under traditional or agreed decision-making processes, a minority group may
    be able to consent to a 99 year headlease on behalf of the majority. Given what
    is at stake, it is essential that agreement and consent processes are documented
    and authorised by the wider traditional owner group prior to any
    negotiations for a headlease. Agreement about what constitutes traditional
    decision-making, or agreed decision-making, should be decided in a separate and documented process. Unfortunately the ALRA does not contain a
    provision that specifies a discrete process to authorise decision-making.
    The step to authorise decision-making is a crucial check and balance. Given that
    99 year headleases provide pecuniary benefits to traditional owners, there is
    potential for money matters to override traditional considerations. Therefore,
    traditional owners must have certainty about who has authority to make
    decisions, and how those decisions should occur. This will also ensure
    that traditional owners control the pace of decision-making and cannot be rushed
    into giving consent by governments who operate on different timetables and
    imperatives.

    The Commonwealth Native Title Act 1993 (Cth) affords greater
    legislative protections to claimants and native title holders in negotiating
    consent for land use. The authorisation process for native title Indigenous Land
    Use Agreements (hereon referred to as ILUAs) provides a relevant threshold.
    Before an ILUA can be registered, the Registrar of the National Native Title
    Tribunal must be satisfied that all reasonable efforts have been made to ensure
    persons who hold, or may hold, native title in relation to land or waters in the
    area have been identified, and that all persons so identified have authorised
    the making of the agreement.[25] Authorisation can occur through a traditional decision making process, or
    through an agreed process by all persons who hold common or group native title
    rights.[26] The National Native
    Title Tribunal provided the following explanation of the authorisation process:

    • The Native Title Act 1993 requires that one form of Indigenous Land Use
      Agreement, the area agreement, be ‘authorised’ by all the persons who hold or may hold native title to the area covered by the
      agreement.
    • The first step is to make all reasonable efforts to identify all persons who hold, or may hold, native title to the area covered by the
      agreement. The second step is to obtain the authority of persons identified in
      the first step (the native title group) to make the agreement.

    The authorisation of the native title group may be given in one of
    two ways:

    • In accordance with a traditionally mandated process under the traditional
      laws and customs of the native title group to make decision of this kind, for
      example if decisions must be made by a council of elders (possibly a few people
      who can bind the rest of the group).
    • If there are no traditionally mandated decision-making processes, then the
      group must agree upon and adopt a decision-making process that will be used to
      authorise the decision.

    In looking at whether an agreement has been appropriately
    authorised the courts have considered:

    • Whether there is a body existing under customary law that is recognised by
      the members of the group and the nature and extent of that body’s
      authority to make decisions binding the members of the group and the fact that
      that body actually authorised the relevant action (Moran v Minister for Land
      and Water Conservation for
      NSW).
      [27]
    • Where the process is one agreed to and involves the holding of meetings, the
      purpose of, and agenda for, the meeting where authorisation was apparently
      given, and how and to whom notice of the meeting was given, as well as who
      attended the meeting and with what authority (Ward v Northern
      Territory).
      [28] [29]

    Provisions of this nature should be adopted under the ALRA to
    ensure that Indigenous communities and traditional owners are able to give free,
    prior and informed consent to 99 year headleases.

    The amended ALRA also provides that under section 21C a new Land Council can
    be established on a slim 55 percent majority vote of people in a Land Council
    region or ‘qualifying
    area.’[30] Previous to the
    2006 amendments, a substantial majority was required to establish a Land
    Council.[31] The 55 percent majority
    is of particular concern for traditional owners of large townships. Due to
    dispossession, the mission movements, and the centralisation of government
    resources in larger communities, many Aboriginal townships are regional hubs
    that accommodate large numbers of Indigenous people, many of whom are not the
    traditional owners of the town area. Therefore, there are many townships where
    traditional owners would not constitute a 55 percent majority.

    The following example demonstrates the potential problems of setting 55
    percent majority. The Wadeye region is home to over 2,300 people, though
    population numbers vary.[32] The
    Kardu Diminin people are the traditional owners of the Wadeye township area.
    They share their town with members of 19 other clan groups of the broader
    Thamarrurr region. Members of regional clans first began to move to the Wadeye
    township in the 1930s with the establishment of the mission. This has caused,
    and continues to cause, tension in the region. The traditional owners in the
    region do not constitute a majority of the people on the township.
    Hypothetically, if a vote to establish a new Land Council was to occur in the
    Wadeye Thamarrurr region, the traditional owners would not have the numbers to
    override a community decision to establish a new Land Council. Should such a
    Land Council agree to a headlease and fail to appropriately consult with
    traditional owners, under s 19A(3) of the ALRA, this would not nullify the
    headlease agreement.

    Alternative lease models

    The Australian Government will not consider alternative lease models to its
    99 year scheme and in 2006 rejected an alternative 40 year lease proposal from
    the Wadeye Thamurrur Council. The Wadeye proposal would vest the land title and
    governance with the Wadeye Thamurrur Council. The traditional owners argued that
    the 40 year model was preferable because it gave them ongoing decision-making
    authority over land. According to the CEO of Wadeye's Thamarrurr Council:

    The concept of a Town Corporation controlled by the traditional owners, the
    Diminin people, is a critical aspect of the lease... The community had a right
    to govern itself, and would continue to oppose federal government
    plans.[33]

    The Wadeye proposal was prepared with expert legal advice, though the
    Minister for Families, Community Services and Indigenous Affairs rejected it on
    the grounds that banks would not provide finance for mortgages and business
    proposals on 40 year lease
    tenures.[34]

    It's been rejected on economic grounds, it's simply unsustainable...You don't
    get, and will not get, banks to back the sort of financial investments that they
    may be asked to make in regards to substantial
    businesses.[35]

    Despite differing views on the views on the financial viability of lease
    terms, the Minister will have the last word on this matter as $9.5 million in
    housing funding for Wadeye is contingent on the Thamurrur Council agreeing to a
    99 year headlease.

    [T]he Minister is using as a bargaining chip, money that has already been
    allocated to Wadeye. He's held up $9.5 million in housing funding,... Initially
    he said he was holding it up until our people stop fighting and we're told the
    day before yesterday that the $9.5 million that's been frozen in a trust account
    in Darwin won't be freed up until this lease is
    signed.[36]

    The Australian Government’s intransigence over the Wadeye proposal is
    evidence that it will not take a research-based approach to land reform by
    trialling different land tenure schemes such as the one proposed at Wadeye.

    In fact, there are many alternative options to 99 year leases. In my Native Title Report 2005 I provided evidence that it is currently
    possible to set up leases under every piece of land rights legislation in
    Australia except one (the Victorian Aboriginal Lands Act 1991). Leases
    can be for both residential and commercial purposes. Under land rights statute,
    leases require traditional owner consent, and depending on the length of the
    lease, Ministerial consent may also be required. Under the native title regime,
    leases may be issued by governments if the native title representative body
    agrees through an Indigenous Land Use
    Agreement.[37] In many Indigenous
    townships these leases are currently operating on communal lands. The benefits
    of these leases are that traditional owners retain decision-making control over
    the land. Under the Government’s 99 year headlease plan, the
    ‘established entity’ will make the decisions affecting all future
    development on Indigenous land.

    International Experience

    Perhaps one of the most compelling arguments against the Australian
    Government’s individualised land lease scheme is that it is not based on
    successfully evaluated models elsewhere in the world. In fact, international
    evidence demonstrates poor outcomes for Indigenous people when communal tenures
    are individualised. While individual title may provide appropriate structures
    for asset management and accumulation in Western urbanised economies, it is not
    a model that is readily transferred to economies based on communal rights. There
    is ample evidence from New Zealand, the United States and the World Bank
    confirming these shortcomings.[38]

    I covered this issue extensively in last year’s Native Title Report
    2005
    providing detailed examples of the problems associated with this
    approach. It is difficult to comprehend the Australian Government’s
    determination to implement a strategy that has been trialled, tested and shown
    to be flawed in other OECD countries. In fact, due adverse outcomes, the United
    States, New Zealand and World Bank are reversing past policies that facilitated
    individual titling. During the 1970s, the World Bank evaluated individual tenure
    reforms and found that they led to:

    • significant loss of land by indigenous peoples;
    • complex succession problems – that is, who inherits freehold or
      leasehold land titles upon the death of the owner;
    • the creation of smaller and smaller blocks (partitioning) as the land is
      divided amongst each successive generation; and
    • the constant tension between communal cultural values with the rights
      granted under individual
      titles.[39]

    Recent research about similar reforms in Kenya in the 1950s
    corroborates the findings from New Zealand, the United States and the World
    Bank.[40] The findings from 40 years
    of individual titling in Kenya demonstrate no real economic benefit and limited
    economic leverage opportunity. In fact, formal, individual title made the land
    more vulnerable to bank foreclosure to recover debt. Some of the recorded
    disadvantages include:

    • there was no evidence supporting a link between formal title and access to
      credit;
    • that only a very small minority of Kenyans had used title to secure loans
      and they were generally the richer and more productive farmers;
    • there had been some loan defaults leading to foreclosure and loss of the
      asset;
    • families were hesitant in using the asset as collateral for enterprise
      development for fear of losing the family land;
    • in passing the asset on to family members there were negative distributional
      consequences, including the sale of the asset;
    • that the sale of the asset occurred in emergencies such as a need to pay
      medical expenses; and
    • that women were significant losers when titles were formalised due to
      customary practices that ensured absolute legal ownership with the male head of
      the family.[41]

    The idea of utilising the ‘dead capital’ of communal
    land is an argument put by many modern nations struggling to economically engage
    indigenous populations. Some of the arguments that promote individual title come
    from the difficulties encountered by Maori and Australian Indigenous
    corporations in attempting to use communal land as security for business
    development.[42] Hernando de
    Soto’s documented research into the formalising land title in Peru is
    perhaps at the forefront of arguments advocating individual land title.

    [B]ecause the rights to these possessions are not adequately documented,
    these assets cannot readily be turned into capital, cannot be traded outside of
    narrow circles where people know and trust each other [and] cannot be used as
    collateral for a loan.[43]

    At a Land and Development Symposium in August 2005, these theories for the
    use and registration of customary land were discussed in relation to the Asia
    Pacific. Academic representatives from the Asia Pacific School of Economics and
    Government, the University of the South Pacific and the Australian National
    University promoted the formalisation of customary title, arguing for secure
    individual title.[44]

    [C]ustomary land is dead capital, the declining productivity of land would
    cause higher poverty and insecure access to land had dissuaded long-term
    investment into fixed
    infrastructure.[45]

    Arguing against this position was the Papua New Guinean Land Titles
    Commissioner, Josepha Kanawi, who put forward an argument for the registration
    of land to protect customary title. Along with other PNG representatives, he
    argued that customary title provides security, that the registration of
    customary land should be voluntary, and that customary titles should be able to
    be used as security for bank
    loans.[46]

    Customary land ownership...[provides]...security for the people, but ... it
    is under pressure from social and economic change, and therefore must be
    protected by registration.[47]

    Banks in Papua New Guinea and Kenya have rejected the use of customary lands
    as security for loans. PNG banks ‘made it clear that they would not accept
    customary land as security for loans until it was converted to either freehold
    or state land.’[48] In New
    Zealand banks indicated that ‘business proposals involving Maori land
    might be of lower priority for institutions able to obtain easier business
    elsewhere.’[49] However, while
    communal title has been rejected by banks to leverage loans, formal title on
    small land holdings has not necessarily convinced banks of sufficient loan
    security. For example in Kenya, ‘banks tend to shun small scale
    (particularly rural or agriculture-dependent) land holders [and land title] does
    little to change these
    biases.’[50] The associated
    potential for loss of the land asset through loan default is further
    disincentive to using land title for collateral.

    It is essential that governments ensure that all stakeholders in lease
    negotiations are well informed of potential pitfalls as well as benefits and
    opportunities. Ultimately traditional land owners should be well armed with
    information and able to give informed consent to whichever economic model suits
    their purposes. There may be groups of traditional owners who decide to give
    consent to 99 year leases once they have considered all available evidence about
    its likely impacts. The concern under the current ALRA provisions is that the
    consent threshold is too low and it lacks the necessary checks and balances. In a non-Indigenous context, such standards for negotiation and consent
    over land title would never be tolerated
    . It is essential that
    the Australian Government provide the highest level of protections for
    traditional land owners.

    Use of the Aboriginal Benefits Account to pay for
    Government 99 year headleases

    A further concern about the administration of 99 year headleases is that they
    are to be funded, at least initially, from the Aboriginal Benefits Account
    (ABA). The ABA is an account that contains Aboriginal mining royalty monies. The
    only express direction on the use of ABA is that it is to be used ‘to or
    for the benefit of Aboriginals living in the Northern
    Territory.’[51] Under the
    amendments to ALRA, a new s 64(4A) states that payments must be debited from the
    ABA to be used for acquiring, administering and paying rents on 99 year
    leases.[52] To quote Minister
    Vanstone:

    The scheme is designed to be self financing in the longer term with sub-lease
    rental payments covering the costs. Until then all reasonable costs will be met
    from the NT Aboriginals Benefit Account (ABA), subject to consultation with the
    ABA Advisory Committee.[53]

    Northern Territory Land Council estimates expect head leasing to costs up to
    $15 million over 5 years. Other commentators suggest that this is a conservative
    estimate.[54] This is a significant
    portion of the ABA which provides approximately $30 million in royalties per
    year. Spending ABA money to pay for headlease rental will significantly reduce
    the overall amount available for Land Councils and the range of land management
    and other programs that are funded through ABA. Minister Brough’s Second
    Reading Speech for the ARLA Amendments Bill ominously observed that ‘in
    future, Land Councils will be funded on workloads and
    results.’[55]

    The use of
    ABA funds to pay for headleases is contrary to its purpose. The purpose of the
    ABA is to provide benefit to Indigenous people above and beyond basic
    government services. The administrative costs of land leasing are basic
    government services. Furthermore, the use of the ABA for headleases is targeted
    distribution of funds to communities that sign to the leases, while others will
    not benefit at all.

    By taking control of Indigenous land and the ABA funds, the Australian
    Government is limiting the capacity for Indigenous Australians to be self
    determining and self managing. On the one hand the Government has argued that it
    is promoting a culture of Indigenous economic independence through amending
    ALRA, and on the other it takes away the discretionary funds and control of land
    that provide the capacity to do so. In 1999, the House of Representatives
    Standing Committee on Aboriginal and Torres Strait Islander Affairs report Unlocking the Future recommended:

    As a reflection of its core principles, the Committee agrees that Aboriginal
    people should take as much responsibility as possible for controlling their own
    affairs. This applies too, for the administration of the...
    (ABA).[56]

    Modifications to the permit system

    Under the current permit system in the Northern Territory, traditional owners
    can regulate and restrict access to people entering Indigenous land. Visitors
    require a permit in writing from the relevant Land Council or traditional
    owners.[57] However, in 2006, the
    Minister for Families, Community Services and Indigenous Affairs responded to a
    question in Parliament by announcing that it was time to remove the permit
    system.[5] Within a month the
    Minister issued a media release calling for written submissions in response to
    an Australian Government discussion paper on the permit system in the Northern
    Territory.

    ...the permit system has created closed communities which are restricting the
    ability of individuals to interact with the wider community and furthermore to
    participate in the real economy.

    The permit system has not acted to protect vulnerable citizens, including
    women and children, and in fact makes scrutiny over dysfunctional communities
    more difficult.[58]

    The Governments Permit Discussion
    Paper
    [59] contains five options
    for action. In summary they are:

    1. authorise access for people with estates or interests granted under section
      19 of the ALRA ;
    2. provide open access to communal or public space and maintain the current
      permit-based system of restricted access to non-public spaces;
    3. widen the current permit-based system by expanding the categories of people
      eligible to enter Aboriginal land without being subject to permission.
    4. reverse the current restrictive permission-based access system to a liberal
      system with specific area exclusions. Access to Aboriginal Land would not
      require a permit unless a particular area was designated as restricted; and
    5. remove the permit system altogether and replace with the laws of trespass,
      with any necessary modification for Aboriginal land.

    Amendments to the permit system are part of the Government’s
    ‘normalisation’ of Indigenous townships. The Government intends to
    open up Indigenous land to people who are neither traditional owners nor current
    residents and thereby increase interaction between remote Indigenous people and
    with the wider Australian economy.

    At the heart of debate about the permit system is the right of traditional
    owners, through their representatives, to decide who to include or exclude from
    entry onto Indigenous land. Along with this is the right to information about
    who is entering or exiting Aboriginal land. As the Minister for Families,
    Community Services and Indigenous Affairs correctly observes that:

    given the vastness of the Aboriginal land estate and the consequent
    difficulties in applying normal laws of trespass, the permit system has operated
    to respect the privacy and culture of Aboriginal
    people.[60]

    The permit system operates as a kind of passport system allowing Aboriginal
    people to exercise property rights on an equal footing with other Australians.
    The Northern Land Council made this point in its submission to the Reeves
    inquiry:

    Traditional Aboriginal owners of Aboriginal land, like any other landowners,
    have as part of their title to the land the right to admit and exclude persons
    from their land. This is a fundamental aspect of land ownership under the
    general law and is also fundamental to the achievement of the aims of the Land
    Rights Act.[61]

    The question of
    whether a permit system is discriminatory was examined in the High Court case of Gerhardy v Brown.[62] While
    the High Court found that the permit system established by s19 of the Pitjanjatjara Land Rights Act was a racially discriminatory measure,
    contrary to s10 of the Racial Discrimination Act, it also found that s19
    was a ‘special measure’ pursuant to s8 of that Act and was therefore
    valid. Consequently, the permit system provides equality before the law and is a
    special measure to ensure non-discrimination.

    Section 8 of the Racial Discrimination Act 1975 (Cth) is modelled on
    Article 2(2) of the International Convention on the Elimination of All Forms
    of Racial Discrimination
    (ICERD) [63] which obliges parties to the
    Convention to undertake, when warranted, special measures to ensure the adequate
    development and protection of certain racial groups or individuals belonging to
    them, for the purpose of guaranteeing them the full and equal enjoyment of
    rights and fundamental freedoms. Special measures should not bring about the
    maintenance of separate rights for different racial groups after the objectives
    of the measures have been achieved.

    The Minister’s argument that the permit system has prevented economic
    development, and that its abolition will provide economic benefits requires
    close scrutiny. The FaCSIA Discussion paper, Access to Aboriginal Land under
    the Northern Territory Aboriginal Land Rights Act – Time for a change?
    Observes that,

    [m]any Aboriginal communities on Aboriginal land in the Northern Territory
    are already remote geographically. The permit system has operated to maintain or
    even increase that remoteness – both economically and socially. It has
    hindered effective engagement between Aboriginal people and the Australian
    economy.[64]

    Liberalisation would also bring economic benefits that would help to promote
    the self reliance and prosperity or Aboriginal people in remote
    communities.[65]

    The Minister argues that if Indigenous lands are opened to non-Indigenous
    interests, there is a high probability that outside operators will take the
    opportunity to develop businesses, especially because the commercial competition
    in these communities is very limited. However, I believe the economic benefits
    to the Indigenous community are likely to be minimal. They may include greater
    choice as consumers and, at most, the ability to secure waged employment with a
    business operator. Nevertheless, ABS data demonstrates that the private sector
    is not a good employer of Indigenous
    people.[66] There is therefore some
    risk and great cost in giving private operators free reign on communal lands and
    assuming that they will assist in improving employment outcomes for Indigenous
    people. By giving private operators access to Indigenous lands, an opportunity
    is lost for the Indigenous residents. In the case of enterprises involving
    tourism for example, rather than owning the business, Indigenous land owners
    become the employees of companies who in turn capitalise on Indigenous land and
    culture. The most likely consequence of the Government reforms will be the
    profit of non-Indigenous operators from undeveloped markets.

    To continue the tourism example, an alternative arrangement would be for
    governments to support the maintenance of the permit system while providing
    opportunity for Indigenous people to develop or become partners in joint venture
    tourism enterprises. Maintaining restricted access to the land adds rather than detracts from the unique nature of the tourism experience and
    ensures that Indigenous Australians don’t have to compete in an open
    market with highly resourced operators. A strategy such as this one actually
    achieves the Government’s objective of improving economic outcomes for
    Indigenous Australians.

    There are also environmental impacts to be considered. The land degradation
    caused by unchecked tourism and four wheel drive activity would be impossible to
    monitor in national parks and on Aboriginal lands without a permit system. Open
    access would require greater vigilance in protecting cultural heritage, sites of
    significance, and sacred sites. This too is a resource issue and one that is not
    addressed in the Australian Government’s Discussion Paper. Ultimately, the
    degradation of the land is the degradation of the most precious asset of
    Indigenous Australians, both in economic and cultural terms.

    As it stands, the Discussion Paper does not canvass enough options for
    economic development. It does not consider for example, charging fees for the
    issue of permits. Currently there are some instances where permit fees are
    charged to visit areas such fishing spots, (on a per car basis), and art
    centres.[67] If the Government is
    concerned about increasing economic opportunity for Aboriginal people, one
    option under the permit system could be to charge entry to popular sites.
    Ultimately the Government has responsibility to canvass the widest range of
    options and to engage Indigenous Northern Territorians in the development of an
    economic development plan.

    Discontinuation of funding and services to
    homelands

    As a consequence of the Homeland Movement of the 1970s, thousands of
    Indigenous Australians moved out of missions and settlements and back onto
    traditional lands. The decision to return to country was primarily to resume
    cultural, spiritual and ceremonial connections and responsibilities to land.

    It is estimated that approximately 20, 000 Indigenous Australians live in
    communities of less then 100 people. The size of homeland communities varies,
    some with less than 50 people, and others with 100 and
    more.[68] According to the ABS, 70
    percent of Indigenous Australians over 15 years of age recognise homelands or
    traditional country. Affiliation with traditional country increases with
    remoteness; 86 percent of people living in remote areas claim affiliation
    compared with 63 percent in non-remote
    areas.[69]

    In 2005 and 2006 the Australian Government signalled an intention to reduce
    or withhold services to homeland communities. The Minister for Families,
    Community Services and Indigenous Affairs asserted:

    The investment and effort will focus on remote Aboriginal communities or
    towns that have access to education and health services. This will include many
    small settlements. However, if people choose to move beyond the reach of
    education and health services noting that they are free to do so, the
    government’s investment package will not follow them. Let me be specific
    – if a person wants to move to a homeland that precludes regular school
    attendance, for example, I wouldn’t support it. If a person wants to move
    away from health services, so be it – but don’t ask the taxpayer to
    pay for a house to facilitate that
    choice.[70]

    National policy does not determine formulae for health and education service
    provision. These are determined by the states and territories. For example,
    education provision in the Northern Territory is based on a student to teacher
    ratio. A fully qualified teacher is provided when there are 22 attending
    students aged between six to twelve years of age. Homeland communities are
    usually serviced by larger ‘hub’ communities. The school at
    Maningrida in the Northern Territory provides services to 12
    ‘satellite’ homeland communities and attracts a teacher formula
    based on the total number of students attending in region. Teachers visit
    homelands for varying numbers of days per week depending on the teacher
    allocation that the homeland attracts under the formula.

    At this stage there is insufficient detail to assess whether homelands and
    other small communities will be disadvantaged as a result of the Australian
    Government’s funding agreements. It will be through bilateral agreements
    that the Australian Government will be able to link funds to preconditions as it
    is doing with housing.

    Shire councils to replace Indigenous community
    councils

    Alongside the land tenure reforms is the Australian Government’s plan
    to reform the Indigenous local government system by rationalising the large
    number of small local community councils and replacing them with larger regional
    shire councils. The Australian Government has supported the Northern Territory
    Government’s plan to reform its community councils and the Queensland
    Government is finalising the transition to shire council arrangements.

    Currently, across Australia remote communities are governed by local
    governments or community councils that are based within each community. In the
    Northern Territory for example, the Government developed a plan to replace its
    56 remote Indigenous councils with nine shire councils. The four municipal
    councils in Darwin, Palmerston, Alice Springs and Katherine will remain
    unchanged. The Northern Territory Minister for Local Government argued that the
    shire council model is designed to improve governance and service delivery to
    remote communities.

    Change will ensure people in the regions have access to the services and
    experts many of us take for granted in the urban centres...The new local
    government will create a framework of certainty and better and more reliable
    services.[71]

    Queensland has commenced a four year transition process to transform
    Aboriginal Councils into full Shire Councils. The stated intention of the
    transition is to improve governance. The Shire and Island Councils will be
    responsible to build, operate and maintain a range of infrastructure and to
    assist in the delivery of
    services.[72]

    The transition to shire councils is an effort to rationalise resources and
    concentrate high level administrative expertise at the regional level. While
    this may achieve efficiencies in terms of the cost of local government
    administration it will also impact on Indigenous employment options in remote
    communities. The removal of community councils, including community housing
    associations will remove one of the few sources of remote employment.

    As the lack of employment opportunity in remote communities is one of the
    main impediments to economic development, governments must take care to balance
    policy approaches. If rationalising housing services reduces employment, then
    one saving will mean another cost. In order to benefit from any home ownership
    incentives or policies, Indigenous Australians require employment.

    Housing and home ownership

    During 2005 and 2006 the Australian Government announced a number of
    incentives to increase the rates of Indigenous home ownership and reduce
    Indigenous dependence on subsidised housing in remote communities. During the
    publicity that surrounded the initiatives, private home ownership was described
    as a right for all Australians who can afford this goal. In 2005 the Prime
    Minister had the following to say:

    I’m a supporter of home ownership for everybody who can afford it, I
    really am. And I don’t think there should be any distinction between
    Indigenous people and the rest of the community. I think it’s patronising.
    I think it’s discriminatory to take the view that somehow or other home
    ownership is something for the white community but not for the Aboriginal
    community...Now I’m not trying to undermine the Native Title Act but what
    I’m saying is that where we can develop methods of private home ownership
    within Indigenous communities, we should do
    so.[73]

    Just over 7 percent of remote Indigenous Australians own, or have a mortgage
    over a home. Australia-wide the rates of Indigenous home ownership are higher at
    27 percent.[74] Nevertheless,
    Indigenous Australians fall well behind the 74 percent of non-Indigenous
    Australians who are either buying or own their home outright.

    The Australian Government’s remote housing strategy is part of a reform
    package to encourage Indigenous Australians to embrace a culture of asset
    accumulation and management with paid employment as its foundation. According to
    the Government, land tenure reforms on communally owned land have been required
    in order to make home ownership possible. The Attorney General's Department
    along with the Department of Families, Community Services and Indigenous Affairs
    (FaCSIA) and Indigenous Business Australia have collaborated in the home
    ownership strategy. In fact initiatives for home ownership were released almost
    simultaneously with the announcement of the proposed amendments to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) in 2005. The
    home ownership initiatives included:

    • funding for Indigenous Business Australia (IBA) for the Community
      Homes
      program which will provide low cost houses for purchase at reduced
      interest rates in remote communities;
    • an initial allocation from the Community Housing and Infrastructure
      Program
      to reward good renters with the opportunity to buy the community
      house they have been living in at a reduced price;
    • using the Community Development Employment Projects (CDEP) program to
      start building houses, support home maintenance, and to maximise employment and
      training opportunities.[75]

    While the initiatives are described as ‘Australia-wide
    measures’ they are exclusively available to states and territories if, or
    when, they amend their land rights legislations to allow for 99 year leases. To
    quote the Minister for Families, Community Services and Indigenous Affairs:

    These programs will be available to all States that follow the Australian and
    Northern Territory government’s lead to enable long term individual leases
    on Aboriginal land... The Australian Government will consult with the States to
    promote any necessary amendment of State Indigenous land rights regimes to
    ensure access to the new
    programs.[76]

    The Department of Families, Community Services and Indigenous Affairs has
    committed over $100 million to increase remote home ownership from 2006 to 2010.
    However the Northern Territory is the only jurisdiction in a position to access
    this funding to date. Other states are beginning the process of reviewing their
    land rights legislations and it is not certain whether they will include
    provision for 99 year leases.

    From 1 July 2006, the Australian Government is providing $52.9 million plus
    capital of $54.6 million over four years for initiatives to promote Indigenous
    home ownership on community title land.

    The measure will assist Indigenous families living in communities on
    Indigenous land to access affordable home loan finance, discounts on purchase
    prices of houses, and money management training and
    support.[77]

    The Australian Government has targeted its programs and incentives to a
    select group of communities in the Northern Territory; Galiwinku, Tennant Creek,
    Katherine and Nguiu.[78] Forty five
    new houses will be constructed for private purchase across Galiwinku and Nguiu.
    Discounts of up to 20 percent on house purchase prices will be available in
    other communities.[79] The discounts
    will be available to good renters and there is sufficient funding for up to 160
    low interest home loans specifically targeted to
    remote.[80]

    FaCSIA will also provide money management training and support to the four
    Northern Territory communities and two Western Australian communities through a MoneyBusiness program. This program is a partnership with the ANZ Bank
    and is designed ‘to develop skills in budgeting, bill paying and
    saving.’[81]

    The incentives and announcements of 2005 and 2006 are likely to be a
    precursor to broader reforms in Indigenous housing. In June 2006 the Minister
    for Families, Community Services and Indigenous Affairs announced a
    comprehensive audit of Australian Government and State and Territory Government
    funding on public housing.[82] Accompanying the announcement were numerous statements about the cost of
    Indigenous housing and concerns about whether the states and territories were
    adequately managing and contributing these programs. In 2006 the Government
    released a discussion paper to raise potential directions for Indigenous
    housing: Community Housing and Infrastructure Program (CHIP) Review Issues
    Paper. The Best Way Forward: Delivering housing and Infrastructure to Indigenous
    Australians
    (Hereon referred to as the Issues
    Paper
    ).[83]

    While the Review has not been released, the topics canvassed in the Issues
    Paper
    foreshadow the areas of reform. They include the rights and
    responsibilities of tenants, rent payments and collection, measures to increase
    home ownership, improved access to mainstream public housing, and strategies to
    avoid duplication of municipal services and
    infrastructure.[84]

    The remote Indigenous housing profile

    The dominant housing tenure for Indigenous people in very remote communities
    is community rental housing. In 2001, 84 percent of all remote Indigenous
    households were renters. Approximately seven percent of remote Indigenous
    householders are home owners.[85]

    Community rental housing is built and maintained by governments. Over the
    past 30 years, somewhere between 500 and 1,000 community rental houses have been
    built each year in Indigenous communities across Australia. Once built, the
    houses are vested in Indigenous community organisations for ongoing management
    and the collection of rental payments. The medium weekly rental payment in very
    remote regions is $42 per
    household.[86] Rents are either set
    at per person or per household rate and are generally lower than rents in larger
    townships and cities. Rental payments for community housing covers some of the
    asset maintenance and other recurrent costs.

    The provision of housing in remote communities is failing to meet the demands
    of the growing Indigenous population. The problems are both with the number and
    size of houses and the quality of the housing stock. In 2001, 41 percent of
    remote Indigenous households reported problems with overcrowding. Fifty two
    percent of the Indigenous remote population reported living in dwellings
    requiring at least one extra bedroom, compared to 16 percent in non-remote
    areas.[87] Just over 58 percent of
    remote Indigenous Australians reported major structural problems of their
    dwellings at almost double the incidence of non-remote at 32.5 percent. The
    Australian Bureau of Statistics summarised the problems in remote communities in
    the following terms: ‘overcrowding and lack of adequate facilities such as
    a clean water supply and sewerage disposal are particularly problematic in
    remote areas.’[88]

    Indigenous housing programs and funding

    The responsibility for Indigenous public and community housing is shared
    between the Commonwealth and the states and territories. However, the Australian
    Government is the main contributor of funding, providing 73 percent of total
    funds, while states and territories contribute the remaining 27
    percent.[89] The annual contribution
    of the Australian Government to Indigenous housing is more than $375 million. It
    is clearly a large commitment and one which accounts for 30 percent of all
    Australian Government spending on public and community
    housing.[90] The program through
    which the funding in administered is the Community Housing and Infrastructure
    Program (CHIP). In remote regions CHIP provides housing infrastructure and
    funding to maintain essential municipal infrastructure and sanitation
    infrastructure.[91] Six hundred and
    sixty Indigenous community-controlled housing organisations throughout Australia
    manage funding for local infrastructure and maintenance as well as collecting
    rental on Indigenous community houses. These entities provide employment for
    Indigenous people in remote and regional communities, though it is likely that
    these organisations will be rationalised into regional entities in the near
    future.

    The Indigenous Business Australia home loans program

    In the 2006-07 Budget the Australian Government announced a $107.4 million
    package over four years to develop home ownership opportunities on Indigenous
    land. This funding will be used to build houses and to provide loans to
    Indigenous people on communal lands where individual leases are possible. The
    Australian Government’s remote home ownership program is managed through
    Indigenous Business Australia’s (IBA) Community Homes program.

    IBA will expand its home lending program, Community Homes... and will
    manage and deliver incentives to assist in overcoming the barriers of the high
    cost of housing, low employment and income levels in remote
    areas.[92]

    According to Indigenous Business Australia the additional funds will expand
    its home lending program, by supporting 460 families or individuals to purchase
    their own home.[93] Community
    Homes
    will provide access to home loan finance in all states and territories
    where land title enables an individual long term interest on a block of land.
    IBA will work with the Department of Families, Community Services and Indigenous
    Affairs (FaCSIA) to provide discounts on the purchase price of houses and
    financial literacy training for eligible
    participants.[94] Incentives also
    include purchase price discounts on existing community rental homes of up to 20
    percent for Indigenous families with a good rental record. These incentives are
    part of the Good Renter Scheme initiative.

    The Community Homes scheme will offer loans to low income earners with
    incomes starting from $15,000. Maximum repayments will vary according to income
    level, starting at 15 percent of gross income for those on the minimum income
    level and up to 30 percent of gross income for those on higher incomes. For
    those on lower incomes, commencing interest rates on loans will start from zero
    percent per annum incrementing by 0.2 percent each year up to the maximum rate
    of 6 percent per annum. Grants for co-payments of up to $2,590 each year for the
    first ten years will assist eligible low income borrowers to repay the loan
    within a loan term of 30 years. IBA will pay up to $13,000 for loan
    establishment costs including legal costs, surveys, property valuations,
    independent legal and financial
    advice.[95]

    Home buyers in Australia

    Housing affordability is determined by many factors. In attempting to
    determine whether remote Indigenous Australian will be able to benefit from the Community Homes scheme, it is necessary to consider employment
    opportunities and earning capacity. A typical Australian home buyer for example,
    is one who lives in a city and depends on an urban economy to generate work
    opportunities and an income that will sustain a mortgage over a 30 year period.
    First home buyers are typically couples aged approximately 35 years. They have a
    life expectancy up to 78 years for males and 83 years for
    females.[96] They have above average
    incomes and in Australia, a growing proportion of first home buyers have two
    incomes. The majority of owner-occupier households reported gross weekly incomes
    in the top two income brackets.[97] This is an average weekly income of $612 to $869 or at the highest bracket $870
    or more. The first home buyer relies heavily on debt finance and during 2004 and
    2005 the average loan for first home buyers was $210,000. The average weekly
    housing costs for first home buyers were
    $330.[98]

    A domestic unit with an income of say $60,000 per annum may buy a dwelling
    and land package for $240,000, and spend $15,000 per annum over anywhere between
    the next 20 and 30 years in paying off this capital. In addition, such domestic
    units undertake to meet the recurrent costs of housing maintenance, so that
    their asset does not depreciate, as well as paying recurrent government taxes
    and charges, such as annual land rates and infrastructure service fees. Covering
    these capital and recurrent housing costs can consume as much as one-third or
    more of income in these household economies, particularly in the early years
    after entry to the market or when income falls through developments such as
    child rearing or
    unemployment.[99]

    The typical remote Indigenous household has an average gross weekly income of
    $267 per week.[100] The remote
    Indigenous adult has a 36 percent chance of having a disability or a long term
    illness which will affect income earning capacity and an average life expectancy
    17 years lower than non-Indigenous
    Australians.[101] The life
    expectancy for Indigenous males is 59 years and for Indigenous females, 65
    years.[102] These circumstances
    limit the ability of Indigenous householders to service home loans over a 30
    year period. According to the ABS, Indigenous adults are four times more likely
    to report financial stress than non-Indigenous households. ‘Financial
    stress’ was defined by whether the household could raise $2,000 within a
    week in a time of crisis. Almost three quarters of remote Indigenous residents
    reported experiencing financial stress as did half of those Indigenous
    households in regional areas.[103]

    On a $150,000 loan the weekly repayments over 30 years at an interest rate at
    3 percent is $145.37 per week. This is 54 percent of the average gross weekly
    income of a typical remote Indigenous household. Even at an interest rate of 0.2
    percent, the weekly repayments are $98.75. This is almost 37 percent of the
    weekly income of a remote household. By any measure this level of repayment is
    not sustainable. Given that Indigenous Business Australia will not lend amounts
    where the repayments exceed 30 percent of the household income, it is evident
    that the average remote Indigenous household is in no position to support a home
    loan, with incentives or otherwise.

    In its 1996 Evaluation of the Home Ownership Program, the Office of
    Evaluation and Audit the observed that the ‘profile of the Indigenous home
    owner is quite similar to non-Indigenous home owner in Australia.’ [104]

    Compared to the non Indigenous home owner, the Indigenous home owner is
    likely to be older and better educated, to have mainstream employment, higher
    income, and a non-Indigenous spouse, and to belong to a ‘typical’
    nuclear family in a neighbourhood with relatively lower rates of social
    dysfunction. [105]

    This profile of the Indigenous homeowner has not changed in the ten years
    since this report. According to more recent ABS data, those who are capable of
    home ownership exhibit many of the demographic characteristics of their
    non-Indigenous counterparts including geographic location, employment status and
    income level.[106]

    Remote Indigenous Australians are the most disadvantaged group of any
    Australian group against every social indicator. The Government strategy to
    address this situation is to increase the debt burden through a home ownership
    scheme that will exclude the majority of remote Indigenous householders. While
    the Government is offering financial incentives to encourage participation, it
    is likely that owning a home in remote areas will be a financial liability
    rather than an asset. The ongoing financial burden for all but a very small
    minority of remote Indigenous Australians may exacerbate poverty in remote
    communities and highlight disparities between the ‘haves’ and the
    ‘have nots.’ Notwithstanding, some Indigenous people in remote
    communities might be able to afford to purchase a home and governments should
    extend all support and encouragement to facilitate the home purchase.

    Cost, quality and maintenance of Indigenous housing

    In 2006, Indigenous Business Australia put out an Expressions of Interest paper calling for tenders for an ‘Innovative, Affordable Housing
    Project.’ The winning tenders will ultimately provide the materials and
    design for houses available under the Government’s home ownership scheme.
    The functional brief for the ‘Innovative, Affordable Housing
    Project’ includes three, four and five bedroom house types designed with
    regard to culturally appropriate living arrangements, security from intrusion
    and robustness of materials. The Expression of Interest paper specified
    building code compliance with climatic zone categories including tropical,
    subtropical, humid-arid, dry-arid, warm-temperate, cool-temperate, alpine and
    cyclone ratings. Notwithstanding these aims, the Expression of Interest specified the following:

    The single most important design parameter is cost effectiveness. If
    solutions are not significantly more affordable than prior models, they will not
    achieve the objective of the Project.

    Skilled onsite labour is hoped to be kept to a minimum so ‘this may be
    achieved by using...pre-fabricated modular building elements and avoiding the
    use of materials and finishes which require on-site labour such as in-situ
    concrete, plumbing, electrical work etc. The potential to use local labour to
    assist with the erection of buildings is anticipated to reduce the end cost of
    housing and provide much needed Indigenous employment in remote
    communities.[107]

    The quality of the houses will be critical to the longevity of the asset and
    the cost of maintaining it over time. The Australian Bureau of Statistics
    outlined the following about Indigenous housing.

    Although there are many factors which contribute to the sustainability of
    housing, the adequacy of design, construction and maintenance of Indigenous
    housing plays a crucial role. When houses are not culturally appropriate in
    their design, are poorly built, or where there is no systematic approach to
    their repair or maintenance, minor problems can escalate over time and shorten
    the life expectancy of houses. Given the serious backlog of housing need in
    rural and remote communities, it is important that resources are well targeted
    and provide the maximum benefit to Indigenous
    Australians.[108]

    There are indications that the houses proposed for the Government’s
    home ownership scheme will not be of the quality that governments currently
    provide. The new homes will be ‘self built’ kit homes that are to be
    built at less than half of the cost of current Government housing cost in
    remote. According to the Tiwi Local Government Housing for example, the cost of
    a government built house on the Tiwi Islands is
    $320,000.[109] The kit homes
    earmarked for the home ownership scheme have been costed ex-factory at
    approximately $150,000 per
    home.[110] According to the
    Government they are built to cyclone
    code.[111]

    [Forty-five] new houses [are] earmarked for home ownership, which [are] to be
    built on community land... as well as $6 million for innovative housing
    solutions in remote indigenous communities... it is to look at using self-built
    type housing construction as a means of more cost-effective housing design and
    construction in remote communities... it is a reflection of concerns of the high
    cost of building in very remote
    communities.[112]

    Up to 12 of the proposed 45 houses will be available to residents in Nguiu on
    the Tiwi Islands through a land reform program package and the remaining homes
    are earmarked for Galiwinku on Elcho
    Island.[113] In an exchange in
    Senate Estimates regarding the quality of the homes, the Associate Secretary of
    the Department of Families, Community Services and Indigenous Affairs said the
    following:

    We know of kit homes that are being used... in other parts of Australia - the
    Torres Strait for example - that are meeting all of the building requirements in
    that area and are cyclone rated.

    The Rawlinson’s Australian Construction Handbook 2006 is widely
    used by industry and governments to cost infrastructure. It sets out the cost of
    building residential housing per square metre in urban and remote regions of
    Australia. In addition it provides comparative cost analyses of residential
    housing in major cities compared with regional areas. For example, the cost of
    building a house in a city such as Adelaide is the benchmark at 100 percent.
    However according to Rawlinson, the cost of building the same house in Groote
    Eylandt is 170 percent due to the freight of materials and the need to bring in
    tradesmen. In Milikarpiti on the Tiwi Islands the cost is 154 percent. In dollar
    terms the cost of building a150 sqm house in Adelaide is between $152,200 and
    $161,200; in Milikarpiti between $226,196 and $239,336; and on Groote Eylandt
    between $254,750 and
    $270,050.[114] Given the inflated
    costs of remote infrastructure, it is difficult to see how governments will
    manage to build houses of quality for $150,000. If the houses are of poor
    quality, the maintenance and structural liability will be transferred to the
    homeowner, most of whom have not had the opportunity of independent advice or
    choice of design or construction materials.

    The Australian Government has committed to building quality, healthy houses.
    In 2005, the Minister for Immigration and Multicultural and Indigenous Affairs
    introduced the Healthy Indigenous Housing policy aimed at improving the
    viability and sustainability of Indigenous community housing organisations and
    the quality of Indigenous housing in rural and remote
    communities.[115] The aim of the
    initiative is to:

    • improve the viability and sustainability of Indigenous community housing
      organisations and the quality of Indigenous housing;
    • reform governance, asset and tenancy management practices; and
    • continue a programme of assessing and repairing up to 500 houses in around
      15 communities and continue to deliver the Army Aboriginal Community Assistance
      Program (AACAP) to at least four
      communities.[116]

    Healthhabitat is a non-government organisation with
    responsibility to improve the health standards of Indigenous housing in
    Australia.[117] Since 1999 it has
    inspected over 4,500 houses situated in tropical, rural, remote and urban
    settings. One of the three Directors of Healthhabitat, Mr Paul Pholeros
    argues that 'reduced capital cost' housing has a great capacity to pass on
    infrastructure and maintenance costs to the household through poor construction,
    inappropriate design and poor materials. For example, a house without roof
    insulation will be cheaper to build but the costs of cooling the house in a
    45°c desert summer, or heating it at night in minus 5°c winter is
    passed on to the household. These costs increase with remoteness as the cost of
    electricity increases dramatically. The failure of households to pay the
    electricity bills can then lead to the power being cut off which in turn makes
    cooking and food storage exceptionally difficult. Thus, 'reduced capital cost'
    housing has health implications as well as poor outcomes in terms of the house
    life-cycle and maintenance
    costs.[118]

    Mr Pholeros is in favour of strategies which seek to alleviate the Indigenous
    housing crisis. He stresses this problem can not be solved by providing more
    poor quality housing, merely because it is initially cheaper for governments.
    New housing must reflect critical minimum standards in key areas such as
    electrical safety, water supply and good quality taps to avoid leaks and
    failures, hot water provision, waste removal with well installed drainage and
    treatment of sewage. He cites examples of poor choice of materials in
    communities reliant upon bore water and other areas with high levels of mineral
    salts which quickly degrade taps and plumbing which may cost up to $2,000 a
    visit in remote areas to repair a single
    fault.[119]

    Maintenance of infrastructure in remote areas

    Housing maintenance in remote Indigenous communities is expensive and access
    to maintenance services is intermittent. Small communities often lack relevant
    tradespeople, meaning that plumbers, electricians and others need to be flown in
    to carry out routine maintenance. Given the structural problems with housing
    stock, and extreme climatic conditions that characterise remote living in desert
    communities and the tropical north, home maintenance requirements are high. For
    example, between 2001 and 2002, over 80 percent of Indigenous communities with a
    population in excess of 50 experienced interruptions to electricity provision.
    Twenty percent experienced more than 20 interruptions over this period. Sixty
    three percent of power outages were caused by storms, 59 percent occurred
    because of equipment breakdown, 42 percent were planned outages for maintenance,
    and 5 percent were due to system overload. Significantly, vandalism accounted
    for one percent of all power outages.

    Between 2001 and 2002, 48 percent of Indigenous communities experienced
    sewerage system overflows or leakage. Rather than poor management or vandalism,
    the predominant causes were blocked drains at 51 percent, equipment failure at
    33 percent and design or installation problems at 28
    percent.[120]

    These statistics affirm the claims of Indigenous people and their advocates
    who observe that the poor quality and unsustainable design of remote
    infrastructure is the cause of many of the maintenance problems. These figures
    refute Australian Government claims that infrastructure is not respected and
    poorly maintained because the asset is not
    owned.[121] This view was
    expressed by the Prime Minister in a speech in October 2005 where he observed:

    [O]ne of the reasons... [that the houses are in] appalling [condition] is
    that people don’t own them. Simple as that... once you own something you
    value it and you look after it, it’s human nature. That’s been the
    experience of all societies... home ownership, private land ownership is a key
    to family and social stability and Aboriginal people are no different from the
    rest of us.[122]

    CDEP home building and maintenance scheme

    In a policy announcement in October 2005, the then minister for Indigenous
    Affairs announced the use of the Community Development Employment Projects
    (CDEP) program to build houses, support home maintenance, and maximise
    employment and training opportunities in support of the home ownership
    scheme.[123] To date there has
    been no national data to outline the size or impact of this
    initiative.[124] As the Australian
    Government has not yet collected or collated CDEP housing maintenance and
    building data, it is only possible to assess progress by individual project.
    Programs such as Alpurrurulam in the Northern
    Territory,[125] and the Torres
    Strait Infrastructure
    program,[126] are involving small
    numbers of CDEP recruits in manual labour and apprenticeship placements. The
    planned housing construction program in Wadeye has also been designed to involve
    CDEP participants in the assembly of kit
    houses.[127] The projects include
    constructing roads and sewage systems as well as apprenticeship programs geared
    toward community infrastructure support and maintenance.

    Ultimately the quality of the housing construction will impact on the life of
    the asset and the cost of its maintenance. It will be essential that the highest
    standards are applied to the development of any asset targeted for the
    Indigenous home ownership scheme. At this stage the Australian Government is not
    monitoring the development of the CDEP house building and maintenance scheme and
    therefore there are some serious concerns about coordination and quality
    control.[128]

    Australian
    housing markets

    While not an immediate issue for the remote housing market, wider trends in
    property prices in Australia will be relevant in the future. The escalating
    housing market in Australia provides increasing financial impediments for
    potential home buyers in many Australian cities and coastal areas. In 2006,
    Australia’s home affordability fell to a level comparable to that reached
    in 1989 when interest rates were at 17
    percent.[129] While interest rates
    are now at 7.55 percent, it is the increase in the cost of houses as well as
    taxes that have moved property out of the reach of many. In fact, by
    international standards, Australia has a dismal rating in housing affordability.
    According to the 2007 Annual Demographia Survey, every Australian city is
    rated as ‘seriously’ or ‘severely’ unaffordable in a
    global study of 159 cities.[130]

    The Demographia survey rates housing ‘unaffordable’ when the
    median house price passes three times median household incomes. Housing is
    ‘seriously unaffordable’ when it passes four times median household
    incomes and ‘severely unaffordable’ when it passes five times median
    household incomes.[131]

    After Western Australia, the Northern Territory property market had the most
    rapid growth during 2006. Property prices in Darwin increased by 17.6
    percent.[132] The median house
    price in Darwin is now $344,
    000.[133] Interstate investors
    have been the main contributors to the rising house prices in Darwin. In recent
    years, investors have moved their attention from the flattened markets of the
    eastern states of Melbourne, Sydney and Brisbane to more remote markets like
    Darwin.

    The real concern for prospective Indigenous home buyers is that investors
    will buy in their remote communities in search of new markets with capital
    growth. While desert communities are never likely to tempt the investor, remote
    coastal townships may be attractive given that Australian coastal real estate
    prices have escalated over past decades. A township like Nguiu in the Tiwi
    Islands for example, has potential appeal because it is located in an idyllic
    setting and it offers recreational activities such as fishing in pristine
    waters.

    The property market trends are ominous for low income earners in remote
    regions. There is a real risk that the Government’s home ownership
    strategy will create property markets that will exclude the very people they
    have been designed to benefit. Even with incentives and low price houses, the
    cost of housing and the increases in the market will make home ownership very
    difficult for the majority of remote Indigenous Australians. We may see a
    situation where non-Indigenous investors and sea-changers buy the absolute
    waterfront blocks of the many coastal townships where 99 year leases are
    available. Over successive generations, low income Indigenous families may be
    relegated to the cheaper back blocks. Should some remote property markets move
    in the same ways as they have across Australia, the Government scheme will be
    encouraging the most disadvantaged Australians into a property market that is
    one of the most impenetrable markets in the world.

    There is great potential for non-Indigenous Australians to benefit from the
    Government’s long-lease tenures on communal land. Non-Indigenous investors
    and home buyers will be able to move into emerging remote markets with relative
    financial ease. This will add additional pressure to the cost of housing for the
    Indigenous residents as markets are established and prices become competitive.
    The most probable consequence of the Government’s strategy is that remote
    Indigenous Australians will be further marginalised in their own communities.

    Summary of concerns and challenges regarding remote Indigenous
    housing

    The Australian Government’s home ownership policy is poor policy for
    the following reasons. First, it is not based on an evaluated approach. Rather,
    the policy is contrary to evaluations of international models which show that
    similar individual land tenure approaches were seriously flawed and led to a
    loss of communal lands. Second, the home ownership incentives are poorly
    targeted and will not be accessible to the vast majority of remote Indigenous
    Australians for whom the policy is intended. Over time, in some regions housing
    markets will become increasingly inaccessible and Indigenous people with incomes
    on the margins will miss out. Third, it is more likely that non-Indigenous
    people will be the main beneficiaries emerging markets in remote communities.

    If these are the consequences of the home ownership policy, then the
    Government strategy will further entrench Indigenous disadvantage and become
    another policy failure in the litany of failures that the Secretary of the
    Department of the Prime Minister and Cabinet so eloquently
    describes.[134]

    The Australian Government and others will continue to argue that remote
    Indigenous Australians should not be prevented from purchasing their own homes
    in the same way as the majority of other Australians can purchase a home. In
    principle, this is correct. However it is not useful to consider home ownership
    as a right. It is not a right when the vast majority of Indigenous people in
    remote communities are not in a financial position to achieve this goal. By
    international human rights standards, adequate housing is a
    right.[135] It is essential
    therefore that governments support this right and ensure that adequate funding
    is maintained in community and public housing programs.

    As I argued in last year’s Native Title Report 2005, if
    Indigenous Australians and others want to purchase homes on communal lands they
    can already do so without changes to land
    tenures.[136] There are existing
    leasing options to accommodate home ownership that do not require Indigenous
    land owners to sign their lands over to governments. In addition, some
    Indigenous councils are aiming to mange their own lease tenures and home
    ownership programs while maintaining decision-making control over developments
    on communal lands. The Yarrabah Housing Project case study at Chapter 7 of this
    Report describes this model.

    Governments can best assist Indigenous people to be home owners by investing
    in their personal and skills development, by developing an ethos of responsible
    personal finance management, by discussing the virtues of home ownership over an
    extended period of time and by focusing incentives on responsible renting.
    Through such initiatives and over time, more Indigenous Australians will be
    financially able and better placed to make an informed decision to purchase a
    home.

    Indigenous employment

    The current labour force participation rates, occupations and locations of
    Indigenous Australians demonstrate the potential challenges of the remote
    economic reform agenda. Access to sustainable employment will be essential for
    remote Indigenous Australians who are keen to participate in the home ownership
    scheme.

    As a proportion of the population, Indigenous Australians are represented at
    a much higher rate in very remote regions of Australia than in any other region.
    The remoteness means that Indigenous Australians are dependant on smaller
    economies for employment, government services and life opportunities. Economies
    of scale dictate that opportunities in remote areas are not as abundant as those
    routinely available to urban citizens. Almost 70 percent of Indigenous
    Australians live outside the major urban centres and almost 18 percent live in
    very remote regions of Australia. Chart 15 shows the proportions of the
    population by region. In very remote areas, Indigenous people are 45.4 percent
    of the population, while they are only 1.1 percent of the urban
    population.[137]

    CHART 15: INDIGENOUS AND NON-INDIGENOUS POPULATION DISTRIBUTION BY
    REMOTENESS CATEGORY, 2001


    Non-Indigenous
    Indigenous
    Indigenous % of total
    Major city
    12,732,492
    138,494
    1.1
    Inner regional
    3,932,907
    92,988
    2.3
    Outer regional
    1,907,688
    105,875
    5.3
    Remote
    284,160
    40,161
    12.4
    Very remote
    97,473
    81,002
    45.4
    Total
    18,954,720
    458,520
    2.4

    Source: Australian Bureau of Statistics (ABS) 2003a

    Across Australia the employment rates for Indigenous people aged 15 years and
    over are 42.7 percent, and much lower than for non-Indigenous people who are
    employed at almost 64
    percent.[138] The ABS includes in
    its ‘employed’ data category, Indigenous people who are
    participating in the work for the dole scheme; the Community Development
    Employment Program (CDEP). This means that the real employment rates for
    Indigenous people are lower than the figures suggest. CDEP employs approximately
    28 percent of remote Indigenous people compared with 3.6 percent in non-remote
    areas, so it is remote regions where Indigenous employment rates are most likely
    to be inflated. Nevertheless, Chart 16 demonstrates that Indigenous people in
    remote regions are less likely to be employed in full-time work than Indigenous
    people in non-remote areas. It should also be noted that most government funded
    projects that generate employment opportunities are funded on an annual basis
    and are submission based projects.

    CHART 16: INDIGENOUS AND NON-INDIGENOUS LABOUR MARKET PARTICIPATION AS A
    PERCENTAGE OF THE POPULATION, 2002


    Indigenous

    Non-Indigenous

    Remote
    Non-Remote
    Total

    Total
    Full-time Employed
    18.9*
    25.3*
    23.6*
    Full-time Employed
    45.2
    Part-time employed
    28.8*
    15.4*
    19*
    Part-time employed
    18.3
    Total Employed
    47.9*
    40.8*
    42.7*
    Total Employed
    63.5
    Unemployed
    4.4
    11.3
    9.4
    Unemployed
    3.7
    Not in labour force
    47.8
    47.9
    47.9
    Not in labour force
    32.8

    Source: Australian Bureau of Statistics, National Aboriginal and Torres
    Strait Islander Social Survey, 2002


    *This data includes people
    employed through CDEP


    An important factor contributing to low employment rates is the lack of
    employment opportunity in regional and remote regions where 70 percent of
    Indigenous Australians are
    located.[139] The
    Government’s 2006 policy to put a 12 month limit on CDEP participation in
    regional and urban areas is likely to inflate unemployment rates in the
    future.[140] Chart 17 identifies
    the sources of income for Indigenous people by their location. Indigenous people
    in remote and non-remote locations are most likely to source their income from a
    government pension or allowance. Indigenous people in remote areas were less
    likely to be in waged employment than people in regional and urban areas.
    Participation rates in CDEP were highest in remote locations.

    CHART 17: SOURCE OF INCOME FOR INDIGENOUS PEOPLE AGED OVER 15 YEARS BY
    REMOTENESS AS A PERCENTAGE OF THE INDIGENOUS POPULATION 2002


    NTR2006_ch202.jpg

    Source: Australian Bureau of Statistics, 4714.0, National
    Aboriginal and Torres Strait Islander Social Survey, 2002

    Occupation

    In 2001 the most common occupation for Indigenous people Australia-wide was
    labouring work. Rates of Indigenous labourers increased with remoteness.

    The main occupation group for employed Indigenous persons was Labourers and
    Related Workers (24%) while the main occupation group for non-Indigenous persons
    was Professionals (18%). A relatively high proportion of both Indigenous and
    non-Indigenous persons were employed as Intermediate Clerical, Sales and Service
    Workers (18% and 16%, respectively).

    The proportion of employed Indigenous persons working as Labourers and
    Related Workers rose markedly with increasing geographic remoteness from about
    one in ten (11%) in major cities to about one in two (47%) in very remote
    areas.[141]

    In 2001 the private sector was the employer of 55 percent of all employed
    Indigenous Australians. In comparison, the private sector was the employer of 82
    percent of non-Indigenous
    people.[142] This finding is
    significant in the light of the Government’s argument that a private
    sector market economy will provide real employment to Indigenous people. To
    date, the private sector has not been a strong employer of Indigenous people. If
    these employment trends are replicated on Indigenous land, it is unlikely that
    Indigenous Australians will be major beneficiaries of a remote market economy.

    Collectively, the labour market data demonstrates poorer outcomes for
    Indigenous Australians against all indicators. If remote Indigenous Australians
    are put in a position where they have to compete with non-Indigenous people for
    employment, it is almost inevitable that there will be an increase in levels of
    Indigenous employment disadvantage. In recognition of this disadvantage, the
    Minerals Council of Australia (hereon referred to as the MCA) is working with
    the mining industry sector to ensure employment quotas for Indigenous
    Australians through Indigenous Land Use Agreements under the native title
    regime. The case studies of the MCA Memorandum of Understanding and the Argyle
    Agreement at Chapters 3 and 5 of this Report outline industry-based Indigenous
    employment initiatives in more detail. Similar interventions are required in
    remote communities without mines. Without these interventions, Indigenous people
    will fall further behind non-Indigenous Australians. Unfortunately, under the
    Government’s intended reforms, such interventions are unlikely.
    Interventions such as these would be contrary to the Government’s
    intention to create market economies to replace the interventions of welfare
    economies and CDEP.

    Programs supporting Indigenous enterprise and economic
    development

    In order to support and stimulate economic development on Indigenous land,
    the Australian Government has developed a range of programs that provide funding
    and resources to Indigenous organisations and individuals. The programs are
    based on a self-access model requiring applicants to undertake tasks such as
    developing business plans and applying for start up funds. Program funding is
    available through Australian government departments and statutory authorities
    including the Indigenous Land Corporation and Indigenous Business Australia. The
    programs cover a wide range of areas including home ownership schemes, business
    development schemes, employment programs, governance training, finance programs,
    financial management programs, loan schemes, and joint venture projects.

    In order to assess the take-up rates and expenditure on national Indigenous
    economic development programs, I surveyed government agencies and statutory
    authorities with responsibility to administer national programs during the 2005
    – 2006 financial year. Nine entities provided data on 33 national
    programs. Funding entities provided information about the
    following:[143]

    • the aims of the program;
    • the number and type of indigenous entities applying for funding;
    • the number of successful applicants;
    • the reasons for unsuccessful applications;
    • the category of applicant by organisation type;
    • total budget allocation for program; and
    • total expenditure for the program.

    Survey Findings

    The survey responses from Australian Government Departments and statutory
    authorities demonstrate that there are a good range of economic development
    programs available to Indigenous Australians. The programs fall under the
    following categories:

    • industry and business development;
    • land management, heritage protection and the environment;
    • employment;
    • land acquisition;
    • community infrastructure; and
    • capacity building.

    The aims and targets of the programs demonstrate good strategic
    alignment with the objectives of the Australian Government’s Indigenous
    Economic Development Strategy.
    According to the survey data, during 2005
    – 2006 the total annual expenditure across all programs was in excess of
    $246,503,887. Detailed survey responses for each program are provided at
    Appendix 2 of this Report.

    Industry and Business Development

    Four government departments and one statutory authority provided funding
    towards ten programs for Industry and Business Development during 2005
    – 2006. Providers of program funding include:

    • the Department of Employment and Workplace Relations (DEWR);
    • the Department of Agriculture, Fisheries and Forestry (DAFF);
    • the Department of Industry, Tourism and Resources (DITR);
    • the Department of Communication, Information Technology and the Arts
      (DCITA); and
    • Indigenous Business Australia (IBA).

    The ten programs provided funding and support for Indigenous
    business development, Indigenous business support, development projects on
    Indigenous land, advice and training on ways to improve returns from trusts and
    investments, and programs to support home
    ownership.[144] It is not possible
    to provide an accurate total expenditure under the category of Industry and
    Business Development
    because DEWR could not disaggregate funding data across
    their various programs.[145] DAFF
    were unable to provide any funding data for programs relevant to this category.
    Aggregated expenditure under Industry and Business Development which
    includes DCITA, DITR and Indigenous Business Australia in the 2005-2006
    financial year was $78,999,570.

    Land Management, Heritage Protection and the Environment

    Three government departments provide funding towards five programs
    specifically related to Land Management, Heritage Protection and the
    Environment
    . They include the Department of the Environment and Heritage;
    the Department of Agriculture, Fisheries and Forestry; and the Indigenous Land
    Corporation. The programs are all directed to improved heritage and conservation
    outcomes and improved land management. In the 2005-2006 financial year a total
    expenditure in excess of $17,894,248 was allocated to Indigenous program
    applicants.[146]



    Employment

    The Department of Employment and Workplace Relations administers all six
    programs related to Indigenous employment. All programs aim to address the
    particular disadvantage of Indigenous Australians in the labour market, and
    stimulate Indigenous economic activity through employment
    opportunities.[147] Individual
    program expenditure was not provided by DEWR for employment programs.

    Land Acquisition

    The Indigenous Land Corporation administers the funding related to land
    acquisition. The programs include the Environment Acquisition Program, the
    Cultural Acquisition Program, the Social Acquisition Program, and Economic
    Acquisition Program. In the 2005-2006 financial year a total of $7,934,024 was
    expended on land acquisitions.

    Community Infrastructure

    The Department of Families, Community Services and Indigenous Affairs, and
    the Department of Communications, Information Technology and the Arts provide
    funding for five programs specifically related to access to, and improvement of
    community infrastructure. In the 2005-2006 financial year in excess of
    $31,483,097 was allocated to Indigenous program
    applicants.[148]

    Capacity Building

    The Department of Transport and Regional Services, and the Department of the
    Environment and Heritage provide funding towards six programs specifically
    related to capacity building.[149] These programs contribute to the development of self-reliant communities through
    partnerships with other governments, communities and the private sector. In the
    2005-2006 financial year a total of $32,482,948 was allocated to Indigenous
    program applicants.

    Applications for program funds

    In excess of 1,544 funding applications were submitted for the 33 economic
    development programs and 1,109 were successful. While this is a 72 percent
    success rate, 414 of these applications were not successful.

    Five of the nine entities were able to provide data specifying which
    categories of Indigenous organisation were successful in their funding
    applications.[150] The following
    is collated data by Indigenous group type:

    • Aboriginal Shire/Community Councils were successful in 529 of their 752
      applications across seven programs;
    • Community Corporations were successful in 227 of their 334 applications
      across nine programs;
    • Native Title Representative Bodies were successful in 20 applications across
      six programs. Data regarding success rates was
      inconclusive;[151]
    • Land Councils were successful in 78 of their 98 applications across eight
      programs;
    • Prescribed Bodies Corporate were successful in 77 applications across four
      programs. Data regarding success rates was inconclusive;
      and[152]
    • individual traditional owner groups submitted 38 applications across five
      programs. Data regarding success rates is
      inconclusive.[153]

    Given that only five entities could identify their funding
    recipients by organisation type, I was unable to make any overarching assessment
    of the relative capacity of Indigenous organisational types. It would be
    beneficial for the Australian Government to conduct an audit of all 33 national
    programs and collate the data to determine which Indigenous organisational types
    are accessing programs. This information will determine whether there is
    equitable distribution of economic development funding and support across the
    Australian Government economic development strategy. Given that the programs
    provide targeted funding to redress disadvantage, it is important to be able to
    assess the overall efficiency and effectiveness of the strategy to see whether
    it is achieving its intended objectives.

    Without data provided across all departments it is difficult to:

    • assess the priority areas for funding;
    • determine which organisations are applying for categories of funding;
    • determine which organisations require more intensive assistance with the
      preparation of funding applications; and
    • determine whether there are regional variations in funding applications.

    The nine entities were asked to specify the most common reasons for
    unsuccessful funding applications. Almost without exception across the 33
    programs, the reason for unsuccessful applications included:

    • failure to adequately address selection criteria; and
    • incomplete applications.

    To ensure that all Indigenous organisations can be competitive in
    the application process, targeted assistance in the form of workshops, plain
    English guides, application templates and training in the preparation of
    applications is required. While ultimately the availability of program funding
    provides equality of opportunity, it may not lead to equality of outcomes.
    Governments need to be sure that communities with the greatest need for
    resources have the appropriate support to access available program funding.
    Reliable data will permit governments to assess the barriers that exclude some
    Indigenous groups from obtaining program funding.

    Agreements and economic development

    The Indigenous Land Use Agreements of the native title regime and the
    Australian Government’s Shared Responsibility Agreements both provide
    opportunity for Indigenous Australians to leverage or enhance economic activity
    on Indigenous land.

    Indigenous Land Use Agreements

    Indigenous Land Use Agreements (hereon referred to as ILUAs) provide one of
    the only ways in which the native title regime provides opportunity for economic
    development outcomes for traditional owners. An ILUA is an agreement through
    which native title holders negotiate and agree to terms and conditions that may
    include economic and employment opportunities. ILUAs can be negotiated under the
    following subject categories:

    • access;
    • co-management;
    • community living area;
    • consultation protocol;
    • development;
    • extinguishment;
    • government;
    • infrastructure;
    • mining;
    • petroleum/gas; and
    • pipeline.

    When registered, Indigenous Land Use Agreements bind all parties
    including the native title claimants or holders to the terms of the agreement.
    Some of the economic development provisions contained in ILUAs include provision
    for education and training, scholarship positions, compensation payments to
    Indigenous trusts, employment opportunities and quotas, and freehold land in
    exchange for extinguishment of native title rights. Each ILUA contains different
    provisions depending on the nature of the agreements and the resources,
    interests and capacity of the signatory parties. During the 2005 – 2006
    financial year, a total of 68 ILUAs were registered in Australia. This
    represents a significant escalation in the overall number of ILUAs. By June 2006
    there were a grand total of 250 registered ILUAs since they were first
    introduced in 1998.[154]

    ILUAs are usually initiated when governments, industry or other interests
    require access to the land or use of the land to progress economic and
    development plans. This means that the land either holds precious subsurface
    resources or it is located in an area where governments or industry plan to
    develop infrastructure such as gas pipelines. In many areas of Australia,
    particularly the desert regions, there are limited opportunities for traditional
    owners to leverage economic outcomes through ILUAs. Where there are no mineral
    riches and no plans for future development there are very limited opportunities
    for ILUA agreements.

    In addition, not all ILUAs are lucrative or beneficial for traditional
    owners. Recent research by Griffith University has found that although about a
    quarter of Indigenous Land Use Agreements are delivering substantial outcomes to
    Aboriginal people in Australia's major resource regions, half have little by way
    of substantial benefit, and a quarter should never have been signed. Professor
    O'faircheallaigh from Griffith University recommended that better negotiated
    outcomes could be obtained for Indigenous groups through organised approaches
    that identify traditional owner
    aspirations.[155]

    Detailed discussion regarding economic development possibilities and
    challenges of ILUAs is contained in the case studies of this Report,
    specifically the Argyle Participation Agreement and the South Australian
    State-wide ILUA framework.

    Shared Responsibility Agreements

    Shared Responsibility Agreements (hereon referred to as SRAs), are agreements
    between governments and Indigenous communities for services and resources in
    regional and remote Australia. They are based on the principle of mutual
    obligation. The Australian Government provides a service or a resource in
    exchange for input or mutual obligation from the community. This might include
    the commitment of community funds, or the achievement of certain targets in
    improved education, employment or health outcomes. SRAs are increasingly being
    used to address service and infrastructure requirements in communities.
    According to the Office of Indigenous Policy Coordination, SRAs mean that:

    Communities... take responsibility for determining their own priorities for
    change and to work out what they can contribute to making things better. This
    contribution could involve using community assets, such as a community centre,
    upgraded sports facility or tourism business; or it could be a commitment to
    invest time and energy towards
    outcomes.[156]

    SRAs can be coordinated in a way that enhances or creates the preconditions
    for enterprise and economic development on Indigenous land. For example, SRAs
    can be used to specify capital improvements or targeted training that supports
    economic activity. An SRA can be a small or a large agreement and it can be
    initiated by traditional owners or community members. SRAs can also be linked to
    other agreements such as ILUAs. It is the view of the President of the National
    Native Title Tribunal, that although there are legislative rules about the
    criteria for registration and the purpose of an ILUA, there is scope for SRAs
    and Regional Partnership Agreements to support mutual
    outcomes.[157]

    Land is a significant issue for Indigenous communities, and the Tribunal
    strongly supports Indigenous communities making best use of available
    agreement-making options, and better integrating agreements about native title
    and other forms of Indigenous agreements. The Tribunal can see no reason why
    negotiations relating to native title can not be run in parallel with
    negotiations of other forms of Indigenous agreements, and would encourage a
    situation where all relevant stakeholders are brought to one table to address
    issues relevant to the community in a coordinated
    approach.[158]

    Currently there is only one SRA that directly complements an Indigenous Land
    Use Agreement.[159] Traditional
    owners of the East Kimberley area have entered a Shared Responsibility Agreement
    with the Australian Government to develop an education and training fund. The
    traditional owners dedicate funds obtained from the ILUA and the government has
    matched the funds through an SRA agreement. This is a good example of the use of
    one agreement to leverage another for strategic community development.

    For more detailed analysis of the Shared Responsibility Agreements please see
    Chapter 3 of my Social Justice Report
    2006
    .[160]

    Assessment of the self-access model for Indigenous economic
    development

    While the self-access model provides for equality of opportunity, it will not
    necessarily lead to equality of outcomes where there are glaring disparities
    between the capacity and contexts of Indigenous communities. The current
    Australian Government strategy of 99 year leases and home ownership will not
    assist remote, desert communities where there has been limited history of
    development. Businesses and residents are unlikely to move into these areas. In
    places where the land is marginal and there is no mining activity and no history
    of enterprise development, targeted government assistance will be necessary to
    support models of Indigenous governance and the development of entities with
    business expertise.

    The remote regions we represent essentially have no economic development
    whatsoever. Most people accept that economic development and security is
    essential for a sustainable
    future.[161]

    Governance structures and business experience are essential components of any
    business venture. Creating a successful business in the Australian marketplace
    is difficult by any measure. The Australian Productivity Commission identified
    that between 7 and 8 percent of all small businesses in Australia fail within
    their first year of
    operation.[162]

    In resource rich regions like Eastern Arnhem Land, the Pilbara and parts of
    the Queensland Cape York region, mining activity has involved Indigenous leaders
    in business planning, negotiation and enterprise opportunities. The resultant
    agreements with mining companies have created governance models and in some
    instances, increased financial and business literacy amongst the Indigenous
    community. As a result, entities have been developed with a specific mandate to
    increase economic development activity on behalf of the Indigenous people of the
    region.

    The Gurang Land Council (Aboriginal Corporation) GLC(AC) region is a resource
    rich area and is seen as a prime area that will be targeted for opportunities by
    mining and exploration companies for years to come... Currently, within the
    GLC(AC) region, there are approximately 8 more ILUAs in the negotiation or
    registration stage. These agreements concern mining, state government tenure
    resolution, infrastructure, access and a
    pipeline.[163]

    Across remote Australia, there are few established entities with any capacity
    or mandate to engage with the Australian Government’s self access model of
    economic development. The Australian Government Indigenous Coordination
    Centres
    (hereon referred to as ICCs) have a role to coordinate government
    services and negotiate Shared Responsibility Agreements in the 30 Australian
    regions where they are located. ICCs accommodate ‘Solution Brokers’
    who are personnel with responsibility to implement ‘employment,
    participation, training and enterprise opportunities for Indigenous Australians
    in their ICC region.’[164] With such a broad ambit of responsibility over large regions, economic
    development outcomes are likely to be some way off, if they are to be possible
    at all. Governance and representative structures will be a precondition for ICCs
    to support economic development on behalf of the Indigenous people within each
    region. To this end, the Australian Government has announced that it is
    currently consulting with Indigenous people to decide on local representative
    networks.

    The networks will be different in each area. They may be set up at a number
    of levels—regions, communities, groups of organisations, clans or
    families. It depends on what is suitable in any one area, and what local people
    want.[165]

    Native title entities are unable to proactively support or initiate economic
    development. A lack of funding and prescriptive guidelines limit the capacity of
    Prescribed Bodies Corporate and Native Title Representative Bodies respectively.
    Neither group is in a position to initiate nor support economic development
    because both entities are limited by funding linked to functions of the Native Title Act 1993 (Cth). The Office of Indigenous Policy Coordination
    (hereon the OIPC) outlined the following parameters for funding.

    Funding to Native Title Representative Bodies (NTRBs) under the Native Title
    Program (NTP) is not formula driven. Within the constraints of the funding
    available within the NTP ($55.1M in 2006-07 financial year), funding to
    individual NTRBs is determined on the basis of Operational Plans developed by
    NTRBs that identify and cost prioritised native title activities to be
    progressed in the funding year. Funding is also provided to meet the operational
    overheads associated with implementing and delivering the funded Operational
    Plans. It is open to NTRBs to seek additional funding to meet unforseen native
    title matters during the course of the funding year and to seek variations to
    Operation Plans to meet emerging and changed
    priorities.[166]

    The Operational Plans of NTRBs are based on activity prescribed under
    Division 3 s203B of the Native Title Act 1993 (Cth). These activities
    include facilitation and assistance, certification, notification, agreement
    making and internal review
    functions.[167] NTRBs have reported in numerous forums and submissions that they are under
    funded to perform their statutory obligations. This precludes these bodies from
    providing support for economic development that is not strictly within
    agreements and processes associated with native
    title.[168]

    It is difficult to assess the capacity of land councils to engage in economic
    development activity. The land council respondents to the 2006 national survey
    of traditional owners provided mixed responses about their relative
    capacities.[169] In the Northern
    Territory it is likely that land councils will have limited capacity since the
    amendments to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) in 2006. The new provisions under s64 of the Aboriginal Land Rights
    (Northern Territory) Act 1976
    (Cth) provide a revised funding formula that
    will dramatically limit discretionary funds for activity such as enterprise and
    economic development.

    Ultimately, the capacity for Indigenous Australians to engage in economic
    development should not be left to chance. Remote Indigenous communities require
    good governance and business expertise to access program funding and to develop
    economic development agreements. For communities without independent sources of
    capital, the development of representative entities will not be possible without
    bilateral assistance from governments. Significant efforts and interventions
    will be required to establish governance and economic development capacity in
    remote communities.

    Conclusion

    Good policy is based on trialled and evaluated approaches that provide
    assessments of the relative advantages and disadvantages of policy impacts and
    outcomes. Good policy benefits the greatest number of the target group for whom
    it is intended. The Australian Government reform agenda is not based on an
    evaluated approach or from trials within Australia or overseas. In fact the
    international experience of individualising land title the United States, New
    Zealand and Africa in past decades has led to poor outcomes for Indigenous
    people including the loss of land and few economic benefits if any. These
    countries are reversing land reform approaches that individualise title.

    The Government’s reforms radically recast the meaning and intention of
    land rights and the implementation of the reforms during 2005 and 2006 have
    individually and collectively reduced the capacity of Indigenous Australians to
    have decision-making control over land and administrative affairs. Some of the
    reforms will have far reaching implications that will last beyond any political
    term and any lifetime of the politicians and the people on whom it will impact.
    It is therefore imperative that the Australian Government ensure the highest
    threshold of Indigenous participation and consent for any initiative that will
    remove the authority of traditional owners to make decisions over traditional
    lands and seas.

    In accordance with Article 1 of the Declaration on the Right to
    Development
    , Indigenous peoples (like every other person, and all peoples)
    are entitled to participate in, contribute to, and enjoy economic, social,
    cultural and political development. It is imperative that those most affected by
    policy are included as active participants in the process of negotiating and
    deciding upon the economic and social policies that will impact on their
    communities. Indigenous stakeholders require control of the development goals
    and agendas for economic development especially because the ultimate success of
    these goals is dependent on our active participation. Crucial to the successful
    implementation of the right to development for Indigenous people is the
    Government’s obligation to ensure that its policies, legislations and
    practices make provision for the following:

    • the right to self-determination;
    • the right to protection of culture;
    • economic, social and cultural rights;
    • free, prior and informed consent; and
    • equality.

    Findings

    2.1 The Australian Government has begun a process of implementing reforms to
    Indigenous communal lands that have the potential to radically change the nature
    of Indigenous communities on these lands.

    2.2 The Australian Government’s economic reform agenda on Indigenous
    land will be evaluated by successive COAG reports.

    2.3 The marginal nature of the majority of Indigenous land and the
    legislative restrictions on the resources and the rights of Indigenous tenures,
    severely limit capacity for economic development.

    2.4 The majority of Indigenous communities are located in desert areas where
    there is limited or no development potential. A minority of Indigenous
    communities are located in resource-rich areas with well-developed governance
    structures, experience in negotiating agreements, and capacity to leverage
    economic opportunities. This means that Indigenous communities have vastly
    different contexts and capacities and therefore require different forms of
    support.

    2.5 The Australian Government has rejected proposals by Indigenous
    communities who have put up alternative models to the Government’s 99 year
    headlease model.

    2.6 International evidence demonstrates that individualising lease tenures on
    communal lands such as those proposed under section 19 of the Aboriginal Land
    Rights (Northern Territory) Act 1976
    (Cth) [99 year headleases] leads to a
    loss of communal lands, and few, if any, economic benefits.

    2.7 The Australian Government has signaled an intention to reduce services
    to homeland communities.

    2.8 The home ownership scheme administered by Indigenous Business Australia
    and central to the Australian Government’s economic development strategy
    is outside the financial reach of the majority of remote Indigenous households.

    2.9 The Australian Government has emphasised ‘cost effectiveness’
    as the most important criteria for the provision of homes for purchase under the
    home ownership scheme.

    2.10 Indigenous houses in remote locations have high maintenance requirements
    due to construction problems, poor choice of building materials and extreme
    weather conditions.

    2.11 Australian housing markets are escalating and investors are increasingly
    looking to remote markets for capital growth.

    2.12 The private sector is not a reliable, proven employer of Indigenous
    Australians.

    2.13 There are a wide range of economic development programs that are
    targeted to Indigenous people, but there is differential capacity for Indigenous
    Australians to obtain any benefit from a self access model.

    2.14 The capacity of Indigenous people to leverage opportunities from ILUA
    and SRA agreements is largely dependent on the existence of strong local
    governance and entities with capacity to progress economic outcomes.

    Recommendations

    The following recommendations outline approaches to economic development on
    Indigenous land that:

    • emphasise Indigenous participation in the development of policy;
    • provide high thresholds for obtaining Indigenous consent to economic
      development strategies, initiatives and agreements; and
    • emphasise policy approaches that are supported by reliable research, trial
      processes and on-going evaluation.

    Recommendation 2.1:

    That the Australian Government support a range of land leasing options on
    communal land including options where leases are held by traditional owners
    through their elected entities for varying periods of time. That the Community Homes program be extended to communities with alternative lease
    schemes where the lease period is commensurate with the maximum loan repayment
    period.

    Recommendation 2.2:

    That all land leasing options on communal land be rigorously and
    progressively monitored and evaluated and that evaluative research be utilised
    to inform existing and future lease options.

    Recommendation 2.3:

    That the Australian Government provide evidence of models where individual
    tenure rights have led to improved economic outcomes for indigenous peoples
    living on communal lands.

    Recommendation 2.4:

    Governments legislate to ensure that consent and authorisation processes for
    99 year leases are consistent with those required by sections 203BE(5) and
    251(A) of the Native Title Act 1993 for authorising Indigenous Land Use
    Agreements.

    Recommendation 2.5:

    That the Australian Government remove section 64(4A) from the Aboriginal
    Land Rights (Northern Territory) Act 1976
    (Cth).

    Recommendation 2.6:

    That governments ensure employment contingencies or re-deployment training
    for Indigenous employees who become unemployed as a result of the transition
    from community administration to a shire council model.

    Recommendation 2.7:

    In recognition of the continuing disadvantage of remote Indigenous
    Australians, that governments commit to providing subsidised, quality community
    housing and public housing according to need, and that no funds from existing
    rental housing schemes be redistributed to home ownership schemes.

    Recommendation 2.8:

    That houses constructed under the home ownership scheme be of the highest
    quality and that regulations be developed to government guarantee liability and
    indemnify home owners for agreed periods against structural flaws in the house
    and the associated infrastructure.

    Recommendation 2.9:

    That the Australian Government develop a planned, supervised and strategic
    approach to train CDEP employees working on the house building and maintenance
    program to ensure adherence to the highest industry construction standards. That
    the Government maintain national data on the program and that CDEP employees be
    provided with award wage employment once they have completed the training.

    Recommendation 2.10:

    That the Australian Government direct ICCs to work with Indigenous land
    entities (including representative bodies) to strategically link Shared
    Responsibility Agreements to land agreements in ways that will increase economic
    development projects and opportunities.

    Recommendation 2.11:

    That governments provide bilateral support to fund and develop regional
    Indigenous governance structures that are attached to entities capable of the
    following:

    • developing and sustaining an economic development strategy for the region;
    • applying for funds from governments and other sources; and
    • coordinating appropriate training and development to support regional
      economic development.

    Introduction to the case studies

    Some interesting economic development activities are occurring in Indigenous communities across Australia. There are numerous examples of communities working intensely to develop employment, enterprise and housing options for local people. There are also instances where Indigenous and non-Indigenous people are working collaboratively to improve land agreements so that they provide sustainable outcomes for Indigenous Australians.

    The following case studies are an extension of the recommendations in this Report and the recommendations of my Native Title Report 2005. They provide examples of economic and social development that emphasise Indigenous involvement and management of all aspects of agreement-making and enterprise development. They demonstrate that when provided with the opportunity and support from government and non government stakeholders, Indigenous Australians can exercise responsible self determination and self management for the benefit of our people.

    The case studies provide only a small sample of good practice in agreement
    making an enterprise development in Australia. Two of the case studies describe
    system-wide approaches to land agreements and enterprise development, based on
    government and industry collaboration. Three case studies describe regional
    approaches to land and enterprise development.

    The case study at Chapter 3 describes a collaborative approach between the
    Australian Government and the minerals industry to support Indigenous economic
    development in eight trial sites across Australia. Chapter 4 provides another
    system-wide approach, outlining South Australia’s State-wide approach to
    Indigenous Land Use Agreements. Chapter 5 describes a regional agreement; the
    Argyle Indigenous Land Use Agreement in the Kimberley, Western Australia.
    Chapter 6 describes the development of an Indigenous owned and managed
    enterprise in the Pilbara. Chapter 7 provides an example of a township lease
    agreement and a home ownership scheme that has some similarities and some marked
    differences with the leasing and home ownership approaches of the Australian
    Government.

    Case Studies

    Chapter 3: The Memorandum of Understanding between the Minerals Council of
    Australia and the Australian Government

    Chapter 4: South Australia’s State-wide Indigenous Land Use Agreement
    Framework

    Chapter 5: The Argyle Participation Agreement

    Chapter 6: Ngarda Civil and Mining

    Chapter 7: The Yarrabah Housing Project


    Endnotes

    • [1] Shergold P., (Secretary of the Department of the Prime Minister and Cabinet), Indigenous Economic Opportunity: the Role of the Community and the
      Individual
      , Speech delivered at the First Nations Economic Opportunities
      Conference, Sydney, 19 July, 2006
    • [2] Brough M., (Minister for Families, Community Services and Indigenous Affairs
      and


      Minister Assisting the Prime Minister for
      Indigenous Affairs), Blueprint for Action in Indigenous Affairs, Address
      to the National Institute of Governance: Indigenous Affairs Governance Series,
      Canberra, delivered 5 December 2006, available online at
      http://www.facs.gov.au/internet/minister3.nsf/content/051206.htm,
      accessed at 18 December
      2006
    • [3] Brough, M., (Minister for Families, Community Services and Indigenous Affairs),
      as quoted in ABC Online, The World Today, ‘Government to reform
      Aboriginal land rights’, available online at
      http://www.abc.net.au/worldtoday/content/2006/s1652229.htm,
      31 May 2006, accessed 8 December
      2006
    • [4] Brough M., (Minister for Families, Community Services and Indigenous
      Affairs), Blueprint for Action in Indigenous Affairs, Address to the
      National Institute of Governance: Indigenous Affairs Governance Series,
      Canberra, 5 December 2006, available online at
      http://www.facs.gov.au/internet/minister3.nsf/content/051206.htm,
      accessed at 18 December
      2006
    • [5] SCRGSP (Steering Committee for the Review of Government Service Provision) 2003, Overcoming Indigenous Disadvantage: Key Indicators 2003, Productivity
      Commission, Canberra,
      s2.4
    • [6] SCRGSP (Steering Committee for the Review of Government Service Provision) 2003, Overcoming Indigenous Disadvantage :Key Indicators 2003, Productivity
      Commission, Canberra, s2.5
    • [7] The Australian Government, Achieving Indigenous Economic Independence,
      Indigenous Economic Development Strategy, Targeting jobs, business and
      assets
      , 2005, available online at:
      http://www.workplace.gov.au/NR/rdonlyres/B7206570-9BFD-4403-B4A3-6649065FAE5A/0/IEDStrategyBooklet_revised_FINAL.pdf accessed 5 March
      2007
    • [8] National Native Title Tribunal, Correspondence with Aboriginal and Torres
      Strait Islander Social Justice Commissioner
      , Email, 7 December 2006, p1


      Note: These percentages are approximate as the
      information is based on broad land tenure and some small areas, usually less
      than 50 sq kms, are not necessarily captured
    • [9] National Native Title Tribunal Correspondence with Aboriginal and Torres
      Strait Islander Social Justice Commissioner,
      Email, 7 December
      2006
    • [10] National Native Title Tribunal Correspondence with Aboriginal and Torres
      Strait Islander Social Justice Commissioner,
      Email, 22 January 2007
    • [11] National Native Title Tribunal, Correspondence with Aboriginal and Torres
      Strait Islander Social Justice Commissioner,
      Email, 7 December 2006,
      p1


      Note: These percentages are approximate as the
      information is based on broad land tenure and some small areas, usually less
      than 50 sqkm, are not necessarily
      captured.
    • [12] Office of the Registrar, NSW Aboriginal Land Rights Act, Correspondence with
      Aboriginal and Torres Strait Islander Social Justice Commissioner,
      Email, 31
      January 2007, p1


      Note: Lands granted to Local
      Aboriginal Land Councils in New South Wales are of high commercial value due to
      their development potential for either residential or commercial use. The land
      claimed under the NSW Aboriginal Land Rights Act 1983 is currently valued
      at approximately $800million. This is despite the fact that land parcels claimed
      in NSW are relatively small when compared to jurisdictions like the Northern
      Territory.
    • [13] Indigenous Land Corporation, The ILC and Land Acquisition, Website, available
      online at:
      http://www.ilc.gov.au/site/page.cfm?u=2 accessed 12 March
      2007
    • [14]Indigenous
      Land Corporation, Annual Report 2005-06, 2006,
      p34
    • [15] Australian Bureau of Statistics, Population Characteristics of Aboriginal and
      Torres Strait Islander Australians
      , 2001, ABS 4713.0, Canberra, p22
    • [16] Australia Bureau of Statistics, Housing and Infrastructure in Aboriginal and
      Torres Strait Islander Communities
      , 2001, ABS cat no. 4710.0, Canberra
    • [17] Taylor, J., Population and Diversity: Policy Implications of Emerging
      Indigenous Demographic Trends
      , Centre for Aboriginal Economic Policy
      Research, Discussion Paper no. 283/2006, Australian National University,
      Canberra, 2006,
      p48
    • [18] Australia Bureau of Statistics, Housing and Infrastructure in Aboriginal and
      Torres Strait Islander Communities,
      2001, ABS cat no. 4710.0,
      Canberra
    • [19]Linkhorn
      C., Maori Land and Development Finance, Discussion Paper 284/2006, Centre
      for Aboriginal Economic Policy Research, Australian National University,
      Canberra, 2006,
      p25
    • [20] Western Australia v Ward & Ors (2002) 191 ALR
      1
    • [21] Gordon, S., (Chairperson, National Indigenous Council, Office of Indigenous
      Policy Coordination), Indigenous Land Tenure Principles, Media release, 3
      June 2005, available online at:
      http://www.atsia.gov.au/NIC/communique/default.aspx,
      accessed on 14 January
      2007
    • [22] Brough M., (Minister for Families, Community Services and Indigenous Affairs),
      Media Release, Historic reforms to NT land rights, 31 May 2006, available
      online at
      http://www.atsia.gov.au/Media/media06/3506.aspx,
      accessed 28 November
      2006
    • [23]Aboriginal
      Land Rights (Northern Territory) Act 1976
      (Cth),
      s19A(2)(a)(b)(c)
    • [24] Aboriginal Land Rights (Northern Territory) Act 1976 (Cth),
      s77A(a)(b)
    • [25] Native Title Act 1993 (Cth)
      s203BE(5)
    • [26] Native Title Act 1993 (Cth)
      s251A
    • [27] [1999] FCA
      1637
    • [28] [2002] FCA
      171
    • [29] National Native Title Tribunal, Correspondence with Aboriginal and Torres
      Strait Islander Social Justice Commissioner
      , Email, 28 February 2006
    • [30]Aboriginal
      Land Rights (Northern Territory) Act 1976
      (Cth), s3, "qualifying area" means
      an area that: (a) is wholly included in the area of a Land Council; or (b) is
      partly included in the area of one Land Council and partly included in the area
      of one or more other Land Councils.
    • [31] Aboriginal Land Rights (Northern Territory) Act 1976, Act Compilation
      (superseded), 24 March 2005 - 4 September 2006,
      ID:C2005C00223
    • [32]Taylor
      J., Social Indicators for Aboriginal Governance: Insights from the Thamarrurr
      Region, Northern Territory,
      Research Monograph No. 24, Centre for Aboriginal
      Economic Policy Research, ANU E Press, Canberra, 2004, Chapter 2, available
      online at:
      http://epress.anu.edu.au/caepr_series/no_24/mobile_devices/ch02.html,
      accessed 17 January
      2007
    • [33] National Indigenous Times, Wadeye says it will fight against government lease
      plan,
      4 December 2006, available online at:
      http://www.nit.com.au/breakingNews/story.aspx?id=8969,
      accessed 12 February
      2007
    • [34] National Indigenous Times, Wadeye says it will fight against government lease
      plan,
      4 December 2006, available online at:
      http://www.nit.com.au/breakingNews/story.aspx?id=8969,
      accessed 12 February
      2007
    • [35] ABC News Online, Govt rejects 20-yr lease proposal, 1 December 2006
      available online at
      http://www.abc.net.au/news/newsitems/200612/s1802425.htm accessed 14 February
      2007
    • [36] ABC Northern Territory Online, Brough 'bullying' Wadeye into signing 99-year
      lease,


      Thamurrur Council's acting chief executive
      Dale Seaniger, 17 November 2006, available online at


      http://origin.abc.net.au/news/items/200611/1791655.htm?nt,
      accessed 14 February
      2007
    • [37] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native
      Title Report 2005
      , Human Rights and Equal Opportunity Commission, pp66-80,
      available online at
      http://www.hreoc.gov.au/social_justice/ntreport05/ch2.html#indigenous0,
      accessed 6 March
      2007
    • [38] See generally, Aboriginal and Torres Strait Islander Social Justice
      Commissioner, Native Title Report 2005, Human Rights and Equal
      Opportunity Commission, Sydney, 2005, available online at
      http://www.hreoc.gov.au/social_justice/ntreport05/
    • [39] Aboriginal and Torres Strait Islander Social Justice Commissioner, Native
      Title Report 2005
      , Sydney, 2005, pp103-104, available online at
      http://www.hreoc.gov.au/social_justice/ntreport05/
    • [40] Nyami-Musembi, C., Breathing Life into Dead Theories of Property Rights: De
      Soto and Land Development in Rural Africa,
      Discussion Paper No. 272,
      Institute of Development Studies, University of Sussex, Brighton, 2006,
      available online at:
      http://www.gsdrc.org/go/display&type=Document&id=2580 accessed 25 February
      2007
    • [41] Nyami-Musembi, C., Breathing Life into Dead Theories of Property Rights: De
      Soto and Land Development in Rural Africa,
      Discussion Paper no. 272,
      Institute of Development Studies, University of Sussex, Brighton, UK, 2006,
      available online at:
      http://www.gsdrc.org/go/display&type=Document&id=2580 accessed 25 February 2007
    • [42] Linkhorn, C., Maori Land and Development Finance, Discussion Paper no.
      284/2006, Centre for Aboriginal Economic Policy Research, the Australian
      National University, Canberra,
      2006
    • [43] de Soto, H., The Mystery of Capital: Why Capitalism Triumphs in the West and
      fails everywhere else
      , Basic Books, New York, 2000, pg 6 as reprinted in
      Manders, J., ‘Sequencing Property Rights in the Context of Development: a
      Critique of the Writings of Hernando De Soto’, Cornell International
      Law Journal,
      vol 177, 2004,
      p178
    • [44] ‘Unused Capital is Dead Capital-Doctor’, Post Courier, 25/08/05, pg
      4 as cited in Rusanen, L., Customary Landowners rights Under Threat in Papua
      New Guinea: An update on the land debate and amendments to forestry and mining
      legislation,
      Background Paper No. 10, Aid Watch, p1, December 2005,
      available online at:
      http://www.aidwatch.org.au/assets/aw00839/png%20land%20dec%2005.PDF accessed 5 March
      2007
    • [45] Rusanen, L., Customary Landowners rights Under Threat in Papua New Guinea: An
      update on the land debate and amendments to forestry and mining legislation,
      Background Paper No. 10, Aid Watch, p1, December 2005, available online at:
      http://www.aidwatch.org.au/assets/aw00839/png%20land%20dec%2005.PDF
    • [46] Rusanen, L., Customary Landowners rights Under Threat in Papua New Guinea: An
      update on the land debate and amendments to forestry and mining legislation,
      Background Paper No. 10, Aid Watch, p1, December 2005, available online at:
      http://www.aidwatch.org.au/assets/aw00839/png%20land%20dec%2005.PDF
    • [47] Rusanen, L., Customary Landowners rights Under Threat in Papua New Guinea: An
      update on the land debate and amendments to forestry and mining legislation,
      Background Paper No. 10, Aid Watch, p1, December 2005, available online at:
      http://www.aidwatch.org.au/assets/aw00839/png%20land%20dec%2005.PDF
    • [48] Post Courier, Banks refuse to accept land as security, 26 August 2005,
      p2, cited in Rusanen, L., Customary Landowners rights Under Threat in Papua
      New Guinea: An update on the land debate and amendments to forestry and mining
      legislation,
      Background Paper No. 10, Aid Watch, p1, December 2005,
      available online at:
      http://www.aidwatch.org.au/assets/aw00839/png%20land%20dec%2005.PDF accessed 27 February
      2007
    • [49] Linkhorn, C., Maori Land and Development Finance, Discussion Paper no.
      284/2006, Centre for Aboriginal Economic Policy Research, the Australian
      National University, Canberra, 2005,
      p11
    • [50] Nyami-Musembi, C., Breathing Life into Dead Theories of Property Rights: De
      Soto and Land Development in Rural Africa,
      Discussion Paper no. 272,
      Institute of Development Studies, University of Sussex, UK, 2006, p16 available
      online at
      http://www.ids.ac.uk/ids/bookshop/wp/wp272.pdfhttp://www.ids.ac.uk/ids/bookshop/wp/wp272.pdf
    • [51] Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), s64(4)
    • [52] Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), s
      64(4A)(a)(b)
    • [53] Vanstone, A., (Former Minister for Indigenous Affairs), Media Release, Long
      term leases the way forward for NT Aboriginal townships
      , 5 October 2005,
      available online at
      http://www.atsia.gov.au/Media/former_minister/media05/v0535.aspx,
      accessed 28 February
      2007
    • [54] Snowdon W., Hansard, Second Reading Speech, Aboriginal Land Rights
      (Northern Territory) Amendment Bill 2006
      , Commonwealth House of
      Representatives, 19 June 2006,
      p56
    • [55] Brough M., (Minister for Families, Community Services and Indigenous Affairs), Hansard, Second Reading Speech, Aboriginal Land Rights (Northern
      Territory) Amendment Bill 2006
      , Commonwealth House of Representatives, 31
      May 2006, p5
    • [56] Standing Committee on Aboriginal and Torres Strait Islander Affairs, Unlocking the Future – The Report of the Inquiry into the Reeves Review
      of the Aboriginal Land Rights (Northern Territory) Act 1976
      , Hansard-
      House of Representatives
      , August
      1999
    • [57] Northern Territory of Australia Aboriginal Land Act 1978 (NT),
      s15
    • [5]3 Brough M., (Minister for Families, Community
      Services and Indigenous Affairs), Hansard, House of Representatives, 12
      September 2006,
      p17
    • [58] Brough M., (Minister for Families, Community Services and Indigenous Affairs), Discussion Paper on Indigenous permit system released, Media Release, 4
      October 2006,
      http://www.atsia.gov.au/Media/media06/6507.aspx accessed 5 October
      2006
    • [59] Office of Indigenous Policy Coordination, Access to Aboriginal Land under the
      Northern Territory Aboriginal Land Rights Act – Time for a change?
      Discussion paper, Canberra, October
      2006
    • [60] Department of Families, Community Services and Indigenous Affairs, Access to
      Aboriginal Land under the Northern Territory Aboriginal Land Rights Act –
      Time for a change?
      Discussion paper, Canberra, October 2006,
      p4
    • [61] Reeves J., Building on land rights for the next generation, the Review of the
      Aboriginal Land Rights Act (Northern Territory) Act 1976
      , (2nd edn.),
      Aboriginal and Torres Strait Islander Commission, Canberra, 1988,
      p302
    • [62] Gerhardy v Brown (1985) 159 CLR 70
    • [63] Rees N, Gerhardy v Brown, Aboriginal Land Rights legislation - Pitjantjatjara
      Land Rights Act (SA) - operation of ss8, 9 and 10 Racial Discrimination Act
      (Cth)
      , Case note, 28 February 1985, available online at
      http://www.austlii.org/au/journals/AboriginalLB/1985/20.html,
      accessed 20 October
      2006
    • [64] Department of Families, Community Services and Indigenous Affairs, Access to
      Aboriginal Land under the Northern Territory Aboriginal Land Rights Act –
      Time for a change?
      Discussion paper, Canberra, October 2006,
      p4
    • [65] Department of Families, Community Services and Indigenous Affairs, Access to
      Aboriginal Land under the Northern Territory Aboriginal Land Rights Act –
      Time for a change?
      Discussion paper, Canberra, October 2006, p2
    • [66] Australian Bureau of Statistics, 4713.0 - Population Characteristics,
      Aboriginal and Torres Strait Islander Australians, 2001,
      available online at
      http://www.abs.gov.au/AUSSTATS/abs@.nsf/ProductsbyCatalogue/2B3D3A062FF56BC1CA256DCE007FBFFA?OpenDocument, accessed 8 December 2006
    • [67] Reeves J., Building on land rights for the next generation, the Review of the
      Aboriginal Land Rights Act (Northern Territory) Act
      1976, (2nd edn.),
      Aboriginal and Torres Strait Islander Commission, Canberra, 1988,
      p300
    • [68] Taylor J., Population and Diversity: Policy Implications of Emerging
      Indigenous Demographic Trends, Discussion Paper 283/2006
      , Centre for
      Aboriginal Economic Policy
      Research
    • [69] Australian Bureau of Statistics, The Health and Welfare of Australia’s
      Aboriginal and Torres Strait Islander Peoples,
      ABS series cat. No. 4704.0
      Commonwealth of Australia, 2005,
      p1
    • [70] Brough M., (Minister for Families, Community Services and Indigenous
      Affairs), Blueprint for Action in Indigenous Affairs, Address to the
      National Institute of Governance – Indigenous Affairs Governance Series,
      Canberra, available online at
      http://www.facs.gov.au/internet/minister3.nsf/content/051206.htm,
      accessed 18 December
      2006
    • [71] McAdam, E., (Minister for Local Government (NT)), ABC News Online, Commonwealth approves changes to NT local govt system, 30 January 2007,
      available online at
      http://www.abc.net.au/news/newsitems/200701/s1836647.htm,
      accessed 15 February 2007
    • [72] Queensland Government Department of Local Government, Planning, Sport and
      Recreation, Website available online at:
      http://www.lgp.qld.gov.au/,
      accessed 25 January
      2007
    • [73] Howard, J., (Prime Minister), Interview with Pat Morrish, ABC Radio, Cairns, 25
      October 2005, available online at
      www.pm.gov.au/news/interviews/Interview1651.html accessed 11 January
      2007
    • [74] Australian Bureau of Statistics, National Aboriginal and Torres Strait
      Islander Social Survey 2002,
      ABS series cat. no. 4714.0, Commonwealth of
      Australia, Canberra, 2004, as quoted by Brough, M., (Minister for Families,
      Community Services and Indigenous Affairs), 2006 Budget Indigenous
      Affairs: Strengthening Indigenous Communities
      , Media release, 9 May 2006,
      p13, 2006, available online at
      http://www.atsia.gov.au/Budget/budget06/Fact_sheets/factsheet09.aspx,
      accessed 10 December
      2006
    • [75] Vanstone, A., (Minister for Immigration, Multiculturalism and Indigenous
      Affairs), Initiatives support home ownership on Indigenous land, Media
      Release, 5 October 2005 available online at,
      http://www.atsia.gov.au/Media/former_minister/media05/v0534.aspx accessed 20 February
      2007
    • [76] Brough, M., (Minister for Families, Community Services and Indigenous Affairs), 2006 Budget Summary of Indigenous Measures (Fact Sheet), available online
      at,
      http://www.atsia.gov.au/Budget/budget06/Fact_sheets/factsheet08.aspx accessed 20 February
      2007
    • [77] Brough, M., (Minister for Families, Community Services and Indigenous Affairs), Strengthening Indigenous Communities - expansion of Home Ownership on
      Indigenous Land Programme,
      available online at:


      http://www.facsia.gov.au/internet/facsinternet.nsf/aboutfacs/budget/budget2006-wnwd-03.htm,
      accessed 20 February
      2007
    • [78]Brough,
      M., (Minister for Families, Community Services and Indigenous Affairs), Galiwinku community gets down to MoneyBusiness, available online at:
      http://www.atsia.gov.au/media/media06/3906.aspx,
      accessed 19 February 2007
    • [79] Knapp, R., (Group Manager, Housing and Disability Group), Hansard, Senate
      Community Affairs Legislation Committee, Estimates, Canberra, 30 May 2006,
      p40
    • [80] Indigenous Business Australia: IBA Partnerships Announcement, available
      online at:
      www.iba.gov.au/ibapartnerships/newpolicy/communityhomesbudgetannouncements/ accessed 5 February
      2007
    • [81]Brough,
      M., (Minister for Families, Community Services and Indigenous Affairs), Galiwinku community gets down to MoneyBusiness, available online at:
      http://www.atsia.gov.au/media/media06/3906.aspx,
      accessed 19 February 2007


      Note: The $4.4 million
      MoneyBusiness program includes Galiwinku, Tennant Creek, Katherine and Nguiu
      (Tiwi Islands) in the Northern Territory, and Geraldton and Kununurra in Western
      Australia.
    • [82] Brough, M., (Minister for Families, Community Services and Indigenous Affairs), Australian Government to Audit Housing Assistance Press Release,
      available online:
      http://www.atsia.gov.au/media/media06/4006.aspx accessed 19 February
      2007
    • [83] Brough, M., (Minister for Families, Community Services and Indigenous Affairs), Community Housing and Infrastructure Program (CHIP) Review Issues Paper: The
      Best Way Forward
      , Canberra, May 2006, p 3 available online at
      http://www.facsia.gov.au/internet/facsinternet.nsf/via/indighousing/$file/chip_review_may06.pdf
    • [84] Brough, M., (Minister for Families, Community Services and Indigenous Affairs), Community Housing and Infrastructure Program (CHIP) Review Issues Paper: The
      Best Way Forward
      , Minister’s Forward, Canberra, May 2006, p
      13
    • [85] Australian Bureau of Statistics, National Aboriginal and
      Torres Strait Islander Social Survey 2002,
      ABS series cat. no. 4714.0,
      Commonwealth of Australia, Canberra, 2004, as quoted by Brough, M., (Minister
      for Families, Community Services and Indigenous Affairs), 2006 Budget
      Indigenous Affairs: Strengthening Indigenous Communities
      , Media release, 9
      May 2006, p13, 2006, available online at
      http://www.atsia.gov.au/Budget/budget06/Fact_sheets/factsheet09.aspx,
      accessed 10 December
      2006
    • [86] Australian Bureau of Statistics, 4713.0 - Population Characteristics,
      Aboriginal and Torres Strait Islander Australians, 2001
      , available online
      at:
      http://www.abs.gov.au/ausstats/abs@.nsf/b0462a212839e1e5ca256820000fe0de/2b3d3a062ff56bc1ca256dce007fbffa!OpenDocument accessed 25 February
      2007
    • [87] Australian Bureau of Statistics, National Aboriginal and Torres Strait
      Islander Social Survey
      2002, ABS series cat. 4714.0., Commonwealth of
      Australia, Canberra, 2002,
      p39
    • [88] Australian Bureau of Statistics, National Aboriginal and Torres Strait
      Islander Social Survey
      2002, ABS series cat. 4714.0., Commonwealth of
      Australia, Canberra, 2002,
      p12
    • [89] Brough, M., (Minister for Families, Community Services and Indigenous Affairs), Australian Governments helping Indigenous communities build their future,
      available online:
      http://www.atsia.gov.au/media/media06/4106.aspx accessed 19 February 2007
    • [90] Australian Government Department of Foreign Affairs and Trade, Indigenous
      programs: Education, health and housing
      , Website material available online
      at:
      http://www.dfat.gov.au/facts/indg_education.html,
      accessed 20 February
      2007
    • [91]Australian
      Government Department of Foreign Affairs and Trade, Indigenous programs:
      Education, health and housing
      , Website material available online at:
      http://www.dfat.gov.au/facts/indg_education.html,
      accessed at 20 February 2007
    • [92] Indigenous Business Australia, More Choice for Indigenous Home Ownership, Media Release, 10 May 2006, available online at http://www.iba.gov.au/files/MediaRelease_Budget01.pdf,
      accessed 22 February
      2007
    • [93] Indigenous Business Australia, More Choice for Indigenous Home Ownership, Media Release, 10 May 2006, available online at http://www.iba.gov.au/files/MediaRelease_Budget01.pdf,
      accessed 22 February
      2007
    • [94] Indigenous Business Australia, Website information, Partnerships,
      available online at:
      http://www.iba.gov.au/ibapartnerships/,
      accessed 22 February 2007
    • [95] Indigenous Business Australia, Expansion of Home Ownership on Indigenous Land
      Program
      , Website available online at:
      http://www.iba.gov.au/ibapartnerships/newpolicy/communityhomesbudgetannouncements/,
      accessed 24 February
      2007
    • [96] Australian Bureau of Statistics, 3302.0 - Deaths, Australia, 2005, 30
      November 2006, available online at:
      http://www.abs.gov.au/AUSSTATS/abs@.nsf/ProductsbyCatalogue/C67A858BA00CB846CA2568A9001393C6?OpenDocument,
      accessed 24 February
      2007
    • [97] Productivity Commission, First Home Ownership, No. 28, Melbourne, 2004,
      p31
    • [98] The Australian Bureau of Statistics, 1301.0 - Year Book Australia, 2007,
      available online at:
      http://www.abs.gov.au/AUSSTATS/abs@.nsf/7d12b0f6763c78caca257061001cc588/591FBA596E76E796CA2572360002721A?opendocument,
      accessed 22 February
      2007
    • [99] Sanders, W., Housing Tenure and Indigenous Australians in Remote and Settled
      Areas
      , Discussion Paper No. 275/2005, Australian National University,
      Canberra, 2005, p7
    • [100] Australian Bureau of Statistics, 4102.0 - Australian Social Trends,
      2004
      Year Book of Australia, Commonwealth of Australia, 2004,
      available online at:
      http://www.abs.gov.au/ausstats/abs@.nsf/2f762f95845417aeca25706c00834efa/f62e5342be099752ca256e9e0028db17!OpenDocument accessed 24 February 2007

      Note: Equivalised gross
      household income is a standardised income measure which has been adjusted for
      the different income needs of households of different size and composition. It
      takes into account the greater needs of larger households and the economies of
      scale achieved by people living
      together.
    • [101] Australian Bureau of Statistics, The Health and Welfare of Australia’s
      Aboriginal and Torres Strait Islander Peoples,
      ABS series cat. No. 4704.0,
      Commonwealth of Australia, 2005, available online at:
      http://www.abs.gov.au/AUSSTATS/abs@.nsf/Latestproducts/B41B1BF36BF3C8EFCA25709900015D71?opendocument accessed 23 February
      2007
    • [102]Australian
      Bureau of Statistics, 3302.0 - Deaths, Australia, 2005, 30 November 2006,
      available online at:
      http://www.abs.gov.au/AUSSTATS/abs@.nsf/ProductsbyCatalogue/C67A858BA00CB846CA2568A9001393C6?OpenDocument,
      accessed 24 February
      2007
    • [103] Australian Bureau of Statistics, The Health and Welfare of Australia’s
      Aboriginal and Torres Strait Islander Peoples,
      ABS series cat. No. 4704.0,
      Commonwealth of Australia, 2005,
      p8
    • [104] Office of Evaluation and Audit, Evaluation of Home Ownership Program, Final
      Report,
      July 1996, p(i), at
      http://www.finance.gov.au/docs/homeownershipprogram-july1996.pdf accessed 15 January
      2007
    • [105] Office of Evaluation and Audit, Evaluation of Home Ownership Program, Final
      Report,
      July 1996, p(i), at
      http://www.finance.gov.au/docs/homeownershipprogram-july1996.pdf accessed 15 January
      2007
    • [106]Australian
      institute of Health and Welfare, Indigenous housing needs 2005--a
      multi-measure needs model
      available online at:
      http://www.aihw.gov.au/publications/hou/ihn05/ihn05-c01.pdf accessed 23 February
      2007
    • [107] Indigenous Business Australia, Expressions of Interest: Innovative and
      Affordable Housing Project
      , Department of Families, Community Services and
      Indigenous Affairs, Australian Government, Canberra, 3.2, p6-7, available
      online at
      http://www.iba.gov.au/files/Expression_Of_Interest.pdf,
      accessed 27 February
      2007
    • [108] Australian Bureau of Statistics, 1301.0 - Year Book Australia, 2004,
      available online at:
      http://www.abs.gov.au/AUSSTATS/ABS@.NSF/Previousproducts/1301.0Feature%20Article222004?opendocument&tabname=Summary&prodno=1301.0&issue=2004&num=&view=
      accessed 25 February
      2007
    • [109] Housing worker, Tiwi Island Local Government Housing, Communication with
      Aboriginal and Torres Strait Islander Social Justice Commissioner
      , 27
      January 2007
    • [110] Bartlett A, Hansard, Senate Select Committee on the Administration of
      Indigenous Affairs, 30 May 2006, Canberra,
      p37
    • [111] Gibbons, W., (Associate Secretary, Department of Families, Community Services
      and Indigenous Affairs), Hansard, Senate Community Affairs Legislation
      Committee, Estimates, Canberra, 30 May 2006,
      p38
    • [112] Knapp, R., (Group Manager, Housing and Disability Group, Department of Families,
      Community Services and Indigenous Affairs), Hansard, Senate Community
      Affairs Legislation Committee, Estimates, Canberra, 30 May 2006,
      p37
    • [113] Gibbons, W., (Associate Secretary of the Department of Families, Community
      Services and Indigenous Affairs), Hansard, Senate Community Affairs
      Legislation Committee, Estimates, Canberra, 30 May 2006,
      p38
    • [114] Rawlinson’s Construction Cost Consultants and Quality Surveyors (eds.), Rawlinson’s Australian Construction Handbook, 2006, ed. 24,
      Rawlhouse Publications, Perth, p26
    • [115] Alfredson, R., (Director of Evaluation and Audit), ,Office of Evaluation and
      Audit, Indigenous Programs, Evaluation and Audit Work Program January- June
      2005,
      Australian Government, p14, available online at


      http://www.finance.gov.au/docs/OEA__IP__Evaluation_and_Audit_Program_2005-_2007.rtf,
      accessed 15 January
      2007
    • [116] Australian Government, Indigenous Affairs, Indigenous Budget Measure 7:
      Healthy Indigenous Housing – continuation,
      Family and Community
      Services Portfolio, available online at:
      http://www.atsia.gov.au/Budget/budget05/c_fact_sheet_7.pdf accessed 26 February 2007
    • [117] Pholeros P., (Adjunct Professor in the Faculty of Architecture, Design and
      Planning, University of Sydney, Director Healthabitat), Correspondence with
      Aboriginal and Torres Strait Islander Social Justice Commissioner
      , Email, 26
      February
      2007
    • [118] Pholeros P., (Adjunct Professor in the Faculty of Architecture, Design and
      Planning, University of Sydney, Director Healthabitat), Correspondence with
      Aboriginal and Torres Strait Islander Social Justice Commissioner
      , Email, 26
      February
      2007
    • [119] Pholeros P., (Adjunct Professor in the Faculty of Architecture, Design and
      Planning, University of Sydney, Director Healthabitat), Correspondence with
      Aboriginal and Torres Strait Islander Social Justice Commissioner
      , Email, 26
      February
      2007
    • [120] Australian Bureau of Statistics, Housing and Infrastructure in Aboriginal and
      Torres Strait Islander Communities 2001,
      ABS cat 4710.0., Commonwealth of
      Australia, Canberra, p22, Graph
      3.16b
    • [121] Australian Bureau of Statistics, Housing and Infrastructure in Aboriginal and
      Torres Strait Islander Communities 2001,
      ABS cat 4710.0., Commonwealth of
      Australia, Canberra, unpublished additional information request, Department of
      Families, Community Services and Indigenous Affairs, Correspondence with
      Aboriginal and Torres Strait Islander Social Justice Commissioner,
      Email, 7
      February 2007,
      p1
    • [122] Howard, J., (Prime Minister) with Morrish P., Interview ABC Radio,
      Cairns, available online at:
      www.pm.gov.au/news/interviews/Interview1651.html
      on 11/01/07
      12 February
      2007
    • [123] Vanstone, A., (Minister for Immigration, Multiculturalism and Indigenous
      Affairs), Initiatives to support home ownership on Indigenous land, Media
      Release, 5 October 2005 available online at
      http://www.atsia.gov.au/Media/former_minister/media05/v0534.aspx accessed 20 February
      2007
    • [124]Siewert
      R., Knapp R., (Group Manager, Housing and Disability Group, Department of
      Families, Community Services and Indigenous Affairs), Hansard, Community
      Affairs Legislation Committee, Budget Estimates, 30 May 2006,Canberra
      p45-46,


      Senator Siewert:‘[H]ow can people
      comment...on the involvement of Aboriginal communities in construction and
      maintenance if there is no hard and fast data about which communities have been
      involved, where it has happened, how many houses have been involved et cetera?
      Have you done such an evaluation?’


      Robert Knapp:
      ‘Not that I'm aware
      of.’
    • [125] Australian Government, Shared Responsibility Agreement, Alpurrurulam,
      Northern Territory, ‘
      Community Centre and Internet Café’,
      signed 4 May 2005 available online at
      http://www.indigenous.gov.au/sra/kitold/nt01.pdf accessed 26 February 2007. For details of the Agreement see http://www.indigenous.gov.au/sra/search/srasearch.aspx,
      accessed 26 February
      2007
    • [126] Australian Government, Indigenous Affairs (Budget) 2003, Fact Sheet,
      Canberra, 2003, available online at
      http://www.atsia.gov.au/facts/old/fs_cameo.pdf,
      accessed 26 February
      2007
    • [127] Wayne Gibbons, (Associate Secretary, the Department of Families, Community
      Services and Indigenous Affairs), Hansard, Senate Standing Committee on
      Community Affairs, 12 February 2007,
      p102
    • [128] Siewert R. and Knapp, R. (Group Manager, Housing and Disability Group,
      Department of Families, Community Services and Indigenous Affairs), Hansard, Community Affairs Legislation Committee, Budget Estimates, 30 May
      2006,Canberra p45-46,
    • [129] Kryger T., Home loan affordability—measurement and trends, Research
      Note no. 8 2006–07, Statistics and Mapping Section, Parliamentary Library
      of Australia, 9 November 2006, available online at
      http://www.aph.gov.au/Library/pubs/RN/2006-07/07rn08.htm accessed at 21 February
      2007
    • [130]Wendell
      Cox Consultancy, The 2007 Demographia Survey, sourced from The Property
      Council of Australia website, available online at:
      http://propertycouncil.gravitymax.com.au/residential/page.asp?622=283194&E_Page=17720,
      accessed 21 February
      2007
    • [131] Wendell Cox Consultancy, The 2007 Demographia Survey, sourced from The
      Property Council of Australia website, available online at:
      http://propertycouncil.gravitymax.com.au/residential/page.asp?622=283194&E_Page=17720 accessed 21 February 2007
    • [132] Australian Bureau of Statistics, 6416.0 - House Price Indexes: Eight Capital
      Cities, Dec 2006


      15 February 2007, available online
      at:
      http://www.abs.gov.au/AUSSTATS/abs@.nsf/mf/6416.0?OpenDocument accessed 21 February 2007
    • [133] Australian Broadcasting Corporation, Stateline, Territory Property boom -
      house prices continue to soar
      , Broadcast 17 February 2006, available online
      at:
      http://www.abc.net.au/stateline/nt/content/2006/s1572885.htm,
      accessed 21 February
      2007
    • [134] Shergold P., (Secretary of the Department of the Prime Minister and Cabinet), Indigenous Economic Opportunity: the Role of the Community and the
      Individual
      , Speech delivered at the First Nations Economic Opportunities
      Conference, 19 July, 2006: ‘I am aware that for some 15 years as a public
      administrator too much of what I have done on behalf of government for the very
      best of motives has had the very worst of outcomes. I and hundreds of my
      well-intentioned colleagues, both black and white have contributed to the
      current unacceptable state of affairs, at first unwittingly and then, too often,
      silently and despairingly.’
    • [135] International Covenant on Economic, Social and Cultural Rights, Article
      11(1): The States Parties to the present Covenant recognize the right of
      everyone to an adequate standard of living for himself and his family, including
      adequate food, clothing and housing, and to the continuous improvement of living
      conditions. The States Parties will take appropriate steps to ensure the
      international co-operation based on free
      consent.
    • [136]Aboriginal
      and Torres Strait Islander Social Justice Commissioner, Native Title Report
      2005
      , pp66– 80, available online at:
      http://www.hreoc.gov.au/Social_Justice/ntreport05/ch2.html#part-ii accessed 27 February
      2007
    • [137] Taylor J, Population and diversity: Policy Implications of Emerging
      Indigenous Demographic Trends, Discussion Paper 283/2006
      , Centre for
      Aboriginal Economic Policy Research, 2006,
      p5
    • [138] Australian Bureau of Statistics, Summary of Findings, 4714.0 -
      National Aboriginal and Torres Strait Islander Social Survey, 2002
      ,
      Commonwealth of Australia 2004, available online at:
      http://www.abs.gov.au/Ausstats/abs@.nsf/0/AD174BBF36BA93A2CA256EBB007981BA?Open,
      accessed at 15 January 2007
    • [139] According to the ABS, lower rates of education attainment may also contribute to
      lower Indigenous employment rates. Australian Bureau of Statistics, Summary
      of Findings,
      4714.0 - National Aboriginal and Torres Strait Islander
      Social Survey, 2002
      , Commonwealth of Australia 2004, available online at:
      http://www.abs.gov.au/Ausstats/abs@.nsf/0/AD174BBF36BA93A2CA256EBB007981BA?Open,
      accessed at 15 January
      2007
    • [140] Andrews K., (Minister for Employment and Workplace Relations), CDEP
      Guidelines For 2006
      , Speech, 26 March 2006, available online at
      http://mediacentre.dewr.gov.au/mediacentre/AllReleases/2006/March/CDEPGuidelinesFor2006.htm accessed 24 February
      2007
    • [141]Australian
      Bureau of Statistics, 4713.0 - Population Characteristics, Aboriginal and
      Torres Strait Islander Australians, 2001,
      available online at
      http://www.abs.gov.au/AUSSTATS/abs@.nsf/ProductsbyCatalogue/2B3D3A062FF56BC1CA256DCE007FBFFA?OpenDocument, accessed 8 December 2006
    • [142] Australian Bureau of Statistics, 4713.0 - Population Characteristics,
      Aboriginal and Torres Strait Islander Australians, 2001,
      available online
      at
      http://www.abs.gov.au/AUSSTATS/abs@.nsf/ProductsbyCatalogue/2B3D3A062FF56BC1CA256DCE007FBFFA?OpenDocument, accessed 8 December
      2006
    • [143] Department of Employment and Workplace Relations; Department of Families,
      Community Services and Indigenous Affairs; Department of the Environment and
      Heritage; Department of Agriculture, Fisheries and Forestry; Department of
      Transport and Regional Services; Department of Industry, Tourism and Resources;
      Department of Communication, Information Technology and the Arts; Indigenous
      Business Australia; and the Indigenous Land
      Corporation
    • [144] Australian Government, Achieving Indigenous Economic Development: Indigenous
      Economic Development Strategy, targeting jobs, business and assets,
      pp14-18.
    • [145] Department of Employment and Workplace Relations, Correspondence with the
      Aboriginal and Torres Strait Islander Social Justice Commissioner –
      Request for Information in preparation of Native Title Report 200,
      26
      February 2007


      Note: DEWR reported a total expenditure
      of 77, 710 000 across 9 programs across two categories, Industry and Business
      Development and Employment
    • [146] Note: Funding data was not provided for all of the programs related to the Land Management, Heritage Protection and the Environment category.
    • [147] Department of Employment and Workplace Relations, Annual Report 2005-2006, p65, available online at www.dewr.gov.au, accessed 23
      February
      2007.
    • [148] Note: Funding data was not provided for all of the programs related to the Community Infrastructure category.
    • [149] Note: This includes the two home ownership programs provided by Indigenous
      Business
      Australia.
    • [150] Note: Departments were asked to disaggregate applicant data by group type under
      the following categories: Native Title Representative Bodies, Land Councils,
      Prescribed Bodies Corporate, Aboriginal Shire/Community Councils, Individual
      Traditional Owner Groups and Community Development Organisations. Five entities
      provided funding breakdowns by applicant
      type.
    • [151] Note: Data on number of unsuccessful applicants was not
      provided
    • [152] Note: Data on number of unsuccessful applicants was not
      provided
    • [153] Note: Data on number of unsuccessful applicants was not
      provided
    • [154] National Native Title Tribunal, Annual Report 2005-2006, Commonwealth of
      Australia 2006, p72, available online at:
      http://www.nntt.gov.au/publications/data/files/AnnualReport20052006.pdf accessed 27 February
      2007
    • [155]Corbett
      T., O’faircheallaigh C., Unmasking the Politics of Native Title: The
      National Native Title Tribunal’s Application of the NTA’s
      , Arbitration Provisions, Department of Politics and Public Policy,
      Griffith University, Brisbane,
      2006
    • [156] Office of Indigenous Policy Coordination, Correspondence with Aboriginal and
      Torres Strait Islander Social Justice Commissioner - Request for information in
      preparation of Social Justice Report 2005
      , p2
    • [157] National Native Title Tribunal, Correspondence with Aboriginal and Torres
      Strait Islander Social Justice Commissioner – Request for Information in
      preparation of Native Title Report 2006,
      22 February 2007, p2
    • [158] National Native Title Tribunal, Correspondence with Aboriginal and Torres
      Strait Islander Social Justice Commissioner – Request for Information in
      preparation of Native Title Report 2006,
      22 February 2007,
      p4
    • [159] Agreements, Treaties and Negotiated Settlements Project, Gelganyem Education
      and Training Shared Responsibility Agreement, 2005,
      available online at:
      http://www.atns.net.au/biogs/A002885b.htm accessed 5 March
      2007
    • [160] See generally, Aboriginal and Torres Strait Islander Social Justice
      Commissioner, Social Justice Report 2006, Human Rights and Equal
      Opportunity Commission, Sydney,
      2007
    • [161] Ngaanyatjarra Council Aboriginal Corporation, Survey Comment, HREOC National
      Survey on Land, Sea and Economic Development
      2
      006
    • [162] Bickerdyke I, Lattimore R and Madge A, Business Failures and Change: An
      Australian Perspective
      , Productivity Commission Staff Research Paper,
      AusInfo, Canberra, 2000, p184
    • [163] The Gurang Land Council (Aboriginal Corporation), Survey Comment, HREOC
      National Survey on Land, Sea and Economic Development
      2
      006
    • [164] Australian Government, Office of Indigenous Policy Coordination, Secretaries'
      Group Annual Report 2005
      , Website, available online at:
      http://oipc.gov.au/performance_reporting/sec_group/ar2005/section1_1.asp accessed 28 February
      2007
    • [165]Australian
      Government, Office of Indigenous Policy Coordination, Indigenous
      Coordination Centres, Website, available online at:
      http://www.indigenous.gov.au/icc/sra.html#anchor2,
      accessed at 28 February
      2007
    • [166] Office of Indigenous Policy Coordination, Correspondence with Aboriginal and
      Torres Strait Islander Social Justice Commissioner – Request for
      information in preparation of Native Title Report 2006
      , Email, 3 July 2006
    • [167] Native Title Act 1993 (Cth), Division 3,
      s203B
    • [168] Note: Chapter 1 of this Report provides further evidence of the relative
      capacity of NTRBs to engage in economic and develop activity beyond the
      requirements of the Native Title Act 1993 (Cth)
    • [169] Human Rights and Equal Opportunity Commission, National Survey of Traditional
      Land Owners Australia
      , 2006, See Chapter 1 of this Report