Indigenous Law Bulletin
by Tammy Solonec, LLB
Indigenous Community Housing
The Indigenous community housing sector of Western Australia (‘WA’), which mainly services remote communities, is urgently in need of reform. Overcrowding is greater than in any other form of tenure, and many of the houses are in disrepair. Tenants have little protection and it is arguable whether the Residential Tenancies Act 1987 (WA) applies. Worse still, this is often the only housing option for people in remote communities.
Community housing refers to dwellings that are rented from housing cooperatives, community or church groups. Indigenous community housing is a specific and somewhat unique sector of community housing provided by Indigenous housing organisations (‘IHOs’). In WA, IHOs are incorporated bodies, registered with either the Office of the Registrar of Aboriginal and Torres Strait Islander Corporations (‘ORATSIC’) or the Department of Consumer and Employment Protection (‘DOCEP’).
In 2006, 11.24 per cent of Indigenous households in WA were community housing rentals. In stark contrast, only 0.5 per cent of non‐Indigenous households in WA were rented through community housing organisations. IHOs operate mainly in remote areas of WA where they are often the only housing choice.
Indigenous community housing tenants have little security of tenure, with many not having leases at all. These tenants are also arguably excluded from the Residential Tenancies Act 1987 (WA) (the ‘RTA’) by virtue of s 5(2)(c)(i) and (ii), which provides that
This Act does not apply to any residential tenancy agreement …
(c) where the agreement arises under a scheme under which –
(i) a group of adjacent premises is owned by a company; and
(ii) the premises comprising the group are let by the company to persons who jointly have a controlling interest in the company…
It can be argued that the use of the word ‘company’ captures incorporated Aboriginal associations, however the issue is complex and uncertain. Questions about the ownership of the land, the ownership of the premises, who has a controlling interest in the premises, and whether all the residents have a controlling interest in the ‘company’ must be considered.
The Stamfords Report recommended that the RTA be amended to define ‘company’ to mean a company established under the Corporations Act 2001 (Cth), and not an organisation incorporated with DOCEP or ORATSIC. This would mean that IHOs would then fall within the ambit of the Act.
These amendments could occur by modifying the RTA or by creating a new Act based on the RTA. This was done recently for residents of long term living in park homes and caravan parks, with the enactment of the Residential Parks (Long‐stay Tenants) Act 2006 (WA).
If an amendment to the RTA occurs, it would mean that IHOs would need to bring their housing management and houses up to the same standard as required for private and public housing. However, if this occurred, it is conceivable that the onerous obligations of the RTA would be administratively difficult for already underfunded IHOs to administer. Because of this, it was recommended that DOCEP consult with relevant Indigenous stakeholder groups prior to any amendment. In order to do this, there would need to be careful consideration of the funding and management of IHOs.
There are many concerns about the Indigenous community housing sector in WA. The houses are generally in bad condition and there is greater overcrowding than in any other form of tenure. It was reported in 2006 that almost 41 per cent of remote Indigenous households in WA were classified as overcrowded. The rent is less expensive than in the private and public rental markets of WA, but because of that, most who rent through community housing are not eligible for Commonwealth Rent Assistance. This contributes to the lack of funding available to IHOs to provide housing for their community members. There are also concerns about the governance and administration of some of the IHOs, which is often related to their lack of funding.
Currently, IHOs are primarily funded through Commonwealth/state pooled funding which is largely funded by the Commonwealth Community Housing and Infrastructure Programme (‘CHIP’). CHIP funds are primarily for housing construction, essential services and housing management. CHIP has been running since the 1960s and was designed to meet the housing needs of Indigenous people unable to access mainstream public housing programs, the private rental market or purchase their own homes.
The CHIP program was reviewed by the Australian Bureau of Statistics in their Community Housing and Infrastructure Needs Surveys (‘CHINS’) of 1999, 2001 and most recently in 2006. The report from the survey – Living in the Sunburnt Country – stated in its overall conclusion that
[t]he housing needs of Indigenous Australians in remote areas have not been well served and the interests and expectations of taxpayers have not been met. CHIP in its current form contributes to the policy confusion, complex administration and poor outcomes and accountability of government funded housing, infrastructure and municipal services. The Community Housing and Infrastructure Program should be abolished.
Subsequent to the release of Living in the Sunburnt Country, the Howard Federal Government suggested big changes. CHIP was to be replaced by a new Australian Remote Indigenous Accommodation (‘ARIA’) programme, which promised much needed funding to IHOs for the maintenance of existing housing and the building of new housing. However in return for that – like a carrot dangled before a hungry horse – the Howard Government asked for changes to land tenure, the creation of home ownership options in remote areas and that management of the tenancies be transferred to the WA Department of Housing and Works (‘DHW’).
Prior to the election of the Rudd Government, one of these reforms – the transfer of the management of the tenancies to DHW in partnership with select IHOs – had begun. This was starting to see improved housing management practices and the creation of tenancy agreements for some IHO tenants, though its long term viability was yet to be tested. It is presently unclear as to whether the Rudd Government plans to continue with this movement and how or when they propose to replace CHIP. Because no firm decision has yet been made, it is anticipated that CHIP will remain until at least December 2008.
The other two reforms the Howard government had required in return for their promise to upgrade existing houses and build new houses (ie changes to land tenure and the creation of home ownership options in remote regions), had not progressed far at all. Even in the early stages of analysis, the explanation for this starts to become clear.
First, there are a variety of often competing stakeholders to be considered. These include the current community members and tenants, the native title holders and their representative Land Councils (eg the Kimberley Land Council), the IHOs themselves, government bodies such as the Aboriginal Lands Trust (‘ALT’) and DHW (which, through a memorandum of understanding with the WA Department of Indigenous Affairs, often provided maintenance for these houses) and other interested parties including pastoralists, mining companies and churches (some remote housing is built on former religious missions).
The ALT is a significant stakeholder in Indigenous community housing in WA. It is the largest land owner in WA and most Indigenous community housing is built upon ALT land. The trust has a mandate to put control of these lands into Indigenous hands. However, the implementation of that mandate has, like the Howard Government’s demand for changes to land tenure, proved difficult.
One option is to convert ALT land to freehold, which would then give IHO tenants the option of purchasing their houses with freehold title. However, Mabo made it clear that this type of freehold will extinguish native title. Because of this, there is a real fear that if ALT land were converted to ordinary freehold with no limits, it would eventually be sold to wealthier non-Indigenous people and taken out of Indigenous hands forever.
A possible solution to this could be to make the freehold purchasing of housing in remote areas only available to descendants of the traditional owners of that land. However, even if the legal obstacles with this suggestion could be overcome, the option may not be an economically viable investment for Indigenous people, because it may create an uncompetitive market. It would also be difficult to administer, especially with the intermarrying of Indigenous people with Indigenous people of other regions and with non-Indigenous people.
An option, which may be more straight-forward where native title has been determined, is to expand the options open to native title holders. They could perhaps offer long term leases, such as is done in Canberra, but where the title stays with the traditional owners rather than the Crown. Through the title held, traditional owners could be given communal rights about how the land is developed and for what purposes it is used, such as that of local government authorities. The IHOs could then lease the land off the traditional owners and manage the houses in partnership with the traditional owners and others they may designate. This is perhaps a radical idea, but something needs to be done. If not, Indigenous community housing and the regions in which their communities lay will remain unviable.
A final option, which is arguably the best option open at present, is to grant a new kind of tenure, perhaps similar to freehold, which does not extinguish native title through an Indigenous Land Use Agreement (‘ILUA’). An ILUA is a voluntary agreement, which is registered with the National Native Title Tribunal between a native title group and others about the use and management of the land and waters. They can be made separately from the formal native title process or as part of a native title determination. ILUAs can be formed on topics including: native title holders agreeing to a future development; how native title rights coexist with the rights of other people; access to an area; extinguishment of native title and compensation. Whether or not there is the ability to offer home ownership options through ILUAs is a complex question, which is beyond the scope of this paper.
This paper has provided an analysis of Indigenous community housing in WA, which primarily provides and governs housing for remote Indigenous Western Australians. It has demonstrated that the sector is urgently in need of reform due to findings of the Living in the Sunburnt Country report and lack of regulation in the sector including that, arguably, the RTA does not apply.
As outlined there is a need for more housing options (including home ownership) in remote WA. This involves changes to land tenure, which is difficult and complicated. Due to the complexity of issues and competing interests, it is recommended that the government seriously consider the issues and repercussions of policy decisions before any implementation.
This need for careful consideration of land tenure needs to be balanced with the urgent need to upgrade current stock and build new houses in remote WA to curb the already severe overcrowding, increasing population and associated social and health issues. Ideally, the design of those houses will be culturally, geographically and climatically appropriate to the particular region. The housing also needs to be economically viable, in areas where there is potential for population growth. Housing support mechanisms including ongoing maintenance, advocacy, dispute resolution and training for tenants also need to be provided.
Due to the specific local issues with regard to remote housing, these decisions can only be made in partnership, not just consultation, with remote Indigenous communities, native title holders and their representative bodies and existing IHOs.
Tammy Solonec, a descendant of the Nyikina people from Derby, Western Australia, is an Articled Clerk in the Civil and Human Rights Units of the Aboriginal Legal Service of WA. Tammy is currently a member of the Aboriginal Housing and Infrastructure Council of WA. Tammy wishes to thank Carolyn Tan for her advice and assistance on this paper.
Part One of this paper was published in the March-April edition of the Indigenous Law Bulletin (7(4)).
 Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth).
 Associations Incorporation Act 1987 (WA).
 Australian Bureau of Statistics, ‘Tenure type and landlord type by dwelling, structure by Indigenous status of household’, 2006 Census of Population and Housing, Western Australia (State) (2006)
 Stamfords Advisors Consultants, Statutory Review of the Residential Tenancies Act 1987 (WA): Final
Report, (2002), recommendation 10.
 See also, Residential Parks (Long-stay Tenants) Regulations 2007 (WA).
 Stamfords Advisors Consultants, above n 4, Recommendation 11.
 Steering Committee for the Review of Government Service Provision, Overcoming Indigenous Disadvantage: Key Indicators 2005, (2005) Attachment 10A, Table 10A.2.2, <http://www.pc.gov.au/gsp/reports/indigenous/keyindicators2005> at 11 June 2008.
 Australian Institute of Health and Welfare, Indigenous Housing Indicators 2005-06 (2007) 57.
 Department of Families, Community Services and Indigenous Affairs, Living in the Sunburnt Country: Indigenous Housing: Findings of the Review of the Community Housing and Infrastructure Programme (2007) Table 16A.1.; and Michael Dillon, ‘Remote Indigenous Housing in 2020: Visions or Oversight?’ (2006) Public Administration Today 14; and see Department of Community Development, Sport and Cultural Affairs, National Issues in Indigenous Housing 2004/05 and Beyond (2004).
 Department of Families, Community Services and Indigenous Affairs, above n 9.
 Ibid 16.
 Department of Housing, Families, Community Services and Indigenous Affairs, Secretaries’ Group on Indigenous Affairs Annual Report 2006–2007, (2007) 8, <http://www.facsia.gov.au/indigenous/annual_report/> at 6 May 2008.
 The Aboriginal Lands Trust is given power to acquire and hold real and personal property for the benefit of Aboriginal people under the Aboriginal Affairs Planning Authority Act 1972 (WA) (see particularly ss 20 and 23). It is currently administered by the WA Department of Indigenous Affairs.
 Mabo v Queensland (1988) 166 CLR 186; Mabo v Queensland  HCA 23; (1992) 175 CLR 1.
 Steering Committee for the Review of Government Service Provision, above n 7.
 Dillon above n 9, 14.