Aboriginal and Torres Strait Islander Commission --- "The Land Fund and the Social Justice Package" [1994] AboriginalLawB 39; (1994) 3(69) Aboriginal Law Bulletin 6

• The Land Fund And The Social Justice Package

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The Land Fund and the Social Justice Package

Stage 1 of the Commonwealth Government's national response to the High Court's decision in Mabo v Queensland (No.2) [1992] HCA 23; 175 CLR 1, was the Native Title Act 1993 (Cth), currently under challenge (by Western Australia) in the High Court (see September Showdown, p8). Stage 2 of the Government's response was launched on 30 June. On that date after "wide ranging consultations" the Government introduced into the House of Representatives the ATSIC Amendment (Indigenous Land Corporation and Land Fund)Bill1994. The Bill is to be debated in the spring session of Parliament commencing in August with a view to enactment later in the year, and commencement of the Corporation on 1 January 1995.

The Land Fund was anticipated in the Native Title Act 1993 (Cth), s.201, which provided that a National Aboriginal and Torres Strait Islander Land Fund be established for the purpose of assisting Aboriginal peoples and Torres Islanders to acquire land and to manage it "in a way that provides economic, environmental, social or cultural benefits" to the people. Details were left to regulations, and s201 (Part 10) of the Act was the only part that did not commence operation on January 1, 1994. The Govenor-General's proclamation of 24 December, 1993 fixed 1 July, 1994 as the day on which Part 10 would commence. The new Bill removes Part 10 from the Native Title Act 1993.

An overview of the Bill is provided in the following excerpt from Explanatory Memorandum Part B.

outline

The purpose of the Bill is to establish a Land Fund and an Indigenous Land Corporation to enable the Aboriginal and Torres Strait Islander people to acquire and manage land in a way that will provide them with social, cultural and economic benefits. The Fund is being established in recognition of the fact that most Indigenous people will not benefit from the High Court’s Mabo (No. 2) decision.and the Native Titlle Act 1993 because they were dispossessed of their land and cannot therefore demonstrate the continuous association necessary to prove native title.

The Bill inserts into the Aboriginal and Torres Strait Islander Commission Act 1989 (the Principal Act) a new Part 4A which establishes the Land Fund and an Indigenous Land Corporation (ILC) which will receive moneys from the Fund. Division 2 of Part 4A makes provisions for the functions and powers of the ILC. The primary functions of the ILV are to acquire land for the indigenous people and to undertake or make arrangements for the management of land held by indigenous people. The ILC will be able to establish subsidiaries to carry outfunctions corresponding to those of the ILC.

Division 3 of Part 4A requires the ILC to prepare national and regional strategies related to the acquisition of land and management and envitonmental issues relating to indigenous land. Division 4 places restrictions on dealings in land granted by the ILC. It also prevents the claiming of land purchased by the ILC, or with a grant provided by the ILC, under the Aboriginal Land Rights (Northern Territory) Act 1976.

Division 5 of Part 4A of the Act establishes a Board of Directors of the ILC to be appointed by the Minister. Directors are required to have experiencein land or environmental management, business or financial mangement, or experience in Aboriginal or Torres Strait Islander community life. Divisions 6 and 7 cover administrative and operational provisions related to the Board of ILC; Divisions 8 and 9 provide for the appointment of a General Manger and the staff of ILC

Division 10 of Part 4A establishes the Aboriginal and Torres Strait Islander Land Fund as a Trust Account with the Public Account. The Bill provides that for the first 10 years of the existence of the Fund it will be credited specific amounts drawn from the consolidated revenue and that the ILC will be paid specific amounts drawn from the Fund. During a transitional period, ATSIC will also be paid amounts drawn down from the Fund. At the end of 10 years the ILC will receive from the Fund each year the realised real returns on investments made by the Fund. The Bill provides for a consultative forum, including members of the Board of the ILC, to discuss the investment policy of the Fund.

Division 11 of Part 4A includes provisions related to the finances of the ILC. A limit is placed on the borrowings and guarantees which may be incurred by the ILC. The ILC is exempted for general taxation laws, including income tax. Division 12 exempts the ILC from payment of stamp duty in certain circumstances. Divisions 13 and 14 respectively make provision for secrecy and the delegation of the ILC’s powers.

Financial Impact

From 1995-1996, the Bill provides for the setting aside, within the Public Account of $121 million annually, indexed in terms of 1994-1995 dollars for the purpose of establishing the Land Fund. This amount will include $21 million currently included in the global allocation to the Aboriginal and Torres Strait Islander Commission. The Commission will continue to receive that $21 million from the Land Fund in the 1995-1996 and 1996-1997 financial years, indexed in terms of 1994-1995 dollars.

In 1994-1995 the ILC will be paid $25 million drawn from an interim fund established under the Native Title Act 1993. In the following two years, the ILC will be paid $24 million annually from the Fund inexed in 1994-1995 dollars. Therafter, the ILC will be paid moneys earned from the investments made by the Fund. The draw downs to the ILC will be Commonwealth outlays.

Stage 3 of the Government's response to Mabo (No.2) is to be the development of further social justice measures to remedy institutional and structural impediments to the full participation of indigenous Australians in Australian economic, social and cultural life. The Hon. Robert Tickner M.P., Minister for Aboriginal and Torres Strait Islander Affairs, told the 12th Session in Geneva of the United Nations Working Group on Indigenous Populations:

The social justice package presents Australia with what is likely to be the last chance this decade to put a policy framework in place to effectively address the human rights of Aboriginal and Torres Strait Islander people as a necessary commitment to the reconciliation process leading to the centenary of Federation in 2001.

The consultation process to develop the social justice package was launched in July with the publication of an Issues Paper "Towards Social Justice?" under the auspices of ATSIC, the Council for Aboriginal Reconciliation and the Aboriginal and Torres Strait Islander Social Justice Commissioner.

Comments are invited, and a summary of results of consultations will be published early in September. Submissions should be made by 31 August 1994 and addressed to Mr Peter Schnierer, Assistant General Manager, Strategic Development Unit, ATSIC, PO Box 17, WODEN ACT 2606. In the meantime, one day consultations are being held in all 17 ATSIC zones involving ATSIC and its regional councils, the Council for Aboriginal Reconciliation, the Office of the Social Justice Commissioner, and community organisations.

To assist discussion, the Issues Paper lists possible issues for consideration in the package as longer-term goals for social justice, grouped under five broad headings. The list is not intended to be exhaustive.

The second part of the Issues Paper expands on this list which is summarised below.

Summary of the Topics in the Paper

Getting a fair share

1 Seeking stronger commitments to improving Aboriginal and Torres Strait Islander access to, and equitable treatment in, all levels of Government program andservice delivery.

2. Making greater effort to seek formal agreements with the States and Territories, under the National Commitment to Improved Outcomes in Program and Service Delivery for Aboriginal Peoples and Torres Strait Islanders, in areas such as health, infrastructure, employment, business funding and land management.

3. Requesting the commonwealth to impose specifc requirements on the States and Territories that funds provided by the commonwealth are used in a way that adequately addresses the needs of indigenous peoples.

4. New measures to improve educational outcomes for indigenous peoples.

5. Implementing major recommendations arising from the recent review of the Aboriginal Employment Development Policy, including expansion and enhancement of the CDEP, Conmunity Economic Initiatives, and Business Funding Schemes.

6. Ensuring that public health resources are equitably distributed to meet the health needs of indigenous peoples.

7. Measures to ensure that funds under the Commonwealth State Housing Agreement are distributed equitably to meet housing needs of indigenous peoples.

Recognition and empowerment

1. Recognition, in the Australian Constitution, of the special place of indigenous peoples in Australian society.

2. Greater measures of self government for Aboriginal and Torres Strait Islander communities.

3. Regional agreements between indigenous peoples and governments which seek to set out rights and benefits.

4. Clarification of sea rights

Cultural integrity and heritage protection

1. Protection for “intellectual property” such as creative designs for artworks, designs, traditional songs and stories of traditional medicine.

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2. Reviewing and strengthening existing laws for the protection of sacred and significant sites and objects.

3. Making a new effort to see what elements of customary laws could be recognised within the general laws of Australia.

4. Programs for increasing awareness, in the education system and in the community generally, of indigenous cultures and spirituality.

5. Examining the possibility of recognising, in Australian law, a form of communal title that better reflects Aboriginal and Torres Strait Islander traditional attitudes to property.

Economic development

1. Promoting, and enhancing market access for Aboriginal and Torres Strait Islander businesses and products overseas.

2. Requiring tenderers for government contracts to demonstrate their performance in employing indigenous persons.

Other issues

1. Formal recognition of the Aboriginal and Torres Strait Islander flags in legislation.

2. Formal recognition of NAIDOC Day.

3. Trying to get appropriate standard usage, by governments and others, of terms to describe indigenous peoples.

4. Increased cultural awareness training in the Australian Public Service and elsewhere.

(“Towards Social Justice” is available from A151C, contact Mr Chris Fondum tel. [phone]; fax [phone].)