Review of the Aboriginal Lands Trust Act Discussion Paper

Transcription

1 Review of the Aboriginal Lands Trust Act 1966 Discussion Paper November 2008

2 Minister s Foreword In 1966 the Aboriginal Lands Trust Act (the ALT Act) established the Aboriginal Lands Trust (ALT) for the purpose of holding land in trust for the benefit of the Aboriginal people of South Australia. That guiding principle remains as relevant today as forty years ago. This Government is committed to retaining Aboriginal land rights. We recognise there have been significant changes to both the scope and diversity of Aboriginal land ownership and the rights and responsibilities of all land owners since the ALT Act was introduced. In addition, Aboriginal community organisations are now facing much higher expectations from their own members and from government for accountability, stability and good administrative practice. Community organisations that hold leases from the ALT are no exception. The South Australian Strategic Plan recognises that land and cultural heritage are assets that can be used to achieve improved Aboriginal wellbeing. As a first step in responding to this priority it is important to ensure that the legislative framework for management of the ALT estate is one that enables rather than impedes Aboriginal prosperity. Given the close connection between the well-being of people living in communities on ALT land, or connected to ALT land, and the proper management of that land, the Review will involve consideration of a legislative framework that supports appropriate governance processes for those communities. Further, in many cases, there are multiple providers of services to these relatively small communities. This has led to duplication of basic administrative structures, has made coordination and planning unnecessarily complex, and has at times also caused, or exacerbated, community divisions. Therefore the Review will also focus upon governance processes that support greater accountability, wider regional involvement, better co-ordinated and more efficient management structures, and stronger communities. In addition, the Review will ensure that certainty of aboriginal ownership of the ALT estate, and of decision-making in respect of the land in that estate, are maintained. The review is underpinned by the following Guiding Principles: Effective and accountable governance of Aboriginal communities that reside on ALT land, or are connected to that land. Protection of Aboriginal ownership of the ALT estate; Certainty of control for groups which use and occupy the ALT estate; Decision-making based on known and understood policies for land allocation and leasing/ licensing; Clear, simple and accountable administration and management of the ALT estate. 2

3 This Discussion paper is divided into three parts: 1. Key Issues 1.1. Governance and regionalisation 1.2.Objects of the Act 1.3.The membership and role of the Board; 1.4.The role of the Minister 1.5. Business development processes and structures; 1.6. Community benefits 1.7.Sale or transfer of land 2. Statutory action required to regularise past dealings 2.2. Rectification of past dealings; 2.3. Reinstatement of leases. 3. Technical amendments to improve the effectiveness of the administration of the ALT estate 3.2. Declaration and Regulation of Dry Zones 3.3. Use of Standard Documents 3.4. Reporting and Financial Arrangements A Reference Group will be established to report to me about the consultations and proposals for reform. I am committed to consulting widely and at the important stages of the review process. Initially, a series of local and regional meetings are planned for the next few months to discuss the ideas contained in this Discussion Paper. I welcome your comments. Hon Jay Weatherill Minister for Aboriginal Affairs and Reconciliation November

4 1. Key Issues 1.1. Governance and regionalisation The ALT was established to provide certainty to those Aboriginal groups residing on former reserves and missions that they could continue to occupy the land without the threat of eviction. The models of governance that evolved for these communities tended to be based, amongst other things, on the residential status of those living on the ALT land and the needs of government funding bodies. Over time, many individuals and families who continue to have association with these communities have moved off ALT land. This mobility has generally restricted formal participation in the management of the former residential lands. At the same time the creation of Aboriginal organisations to deliver social and essential services to Aboriginal communities added another layer of governance. These community based organisations have tended to structure themselves in ways required by funding bodies - usually by incorporating under the Associations Incorporation Act 1985 (SA) or the (now repealed) Aboriginal Councils and Associations Act 1976 (Cth). In many cases there has been a proliferation of community based services to communities with limited means to co-ordinate planning or service delivery. Key community members often sit on multiple boards, creating a burden no other community is expected to shoulder, and contributing to the burn out of Aboriginal leaders. The creation of multiple community boards servicing the same small communities often duplicates basic administrative structures and has at times also caused, or exacerbated, community divisions. Additionally, The Native Title Act 1993 (the NTA) operates to potentially recognise rights and interests in ALT land being held by people other than those that reside on the land. There is no forum for these groups to come together and have their separate interests accommodated in the governing bodies of residential communities. For all of these reasons, the governance of ALT land poses unique challenges for residential communities and for Aboriginal South Australians generally. The ALT Act says very little about how residential ALT communities are governed. The Associations Incorporation Act 1985 (SA) and the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Commonwealth) (CATSI Act) provide the regulatory framework for the structure, processes, and accountability requirements of Aboriginal organisations, such as residential community Councils and service provider organisations. Residential communities are progressively moving to adopt new constitutions under the CATSI Act. The State Government and the Office of the Registrar of Aboriginal and Torres Strait Islander Corporations (ORATSIC) are providing essential support to assist 4

5 communities in the transition to these new rules of governance, with a view to improving capacity, authority and accountability. It is now timely to build on this work to establish a legislative framework for Aboriginal governance, not only for ALT residential communities but more broadly, that will lead to greater accountability, wider regional involvement, stronger communities and provide better co-ordinated and more efficient management structures. Standards for governance could cover such matters as: guidance on minimum rules, membership and clear definitions of the powers of governing bodies and its membership rules regarding gender balance, family group representation, and staggered terms of appointment minimum standards for financial accountability and corporate and other regulatory compliance mechanisms for dealing with the resolution of disputes, including participating in or sponsoring mediation. Communities will be asked to consider the benefits of regional authorities providing an administrative centre to which community councils, land holding bodies, service providers, heritage associations and other community based groups might affiliate. As part of this discussion, attention could focus on whether employees of such regional authorities should be public servants who would be operationally responsible to the Aboriginal controlled authority. The benefits of separate legislation can also be canvassed as part of this discussion Objects of the Act The current Act does not have objects. There is no section that states the purpose of the Act or the outcomes expected from it. Nor is there a section that defines the functions and obligations of the ALT Board, the Minister, ALT residential communities, people and organisations that lease ALT land. The ALT Act does not specify for whose benefit the ALT holds land. In considering whether he should consent to dealings in ALT land the Minister is obliged to assess whether the dealing will preserve the benefits and value of the land to the Aboriginal people of South Australia. On the other hand, the ALT is not specifically obliged to consider those dealings in the same way. In order to clarify the role of the ALT, objects might be considered in the new Act to: confirm the principle of inalienable title (with provision for Aboriginal freeholding in certain circumstances and subject to protections); state that title is held in trust for the benefit of all Aboriginal South Australians; acknowledge native title rights and interests; establish that the primary purpose of the ALT is the efficient management and administration of its freehold estate including the setting of relevant policy; and 5

6 ensure that the forms of governance within organisations holding, managing and using ALT land are appropriate to ensure proper management of the land The membership and role of the Board The mimimum requirement for proper constitution of the membership of the ALT Board is the appointment by the Governor of a Chair and two other members. Provision is made in the ALT Act for the appointment of additional members who were originally, and have continued to be, appointed by the Governor from nominations from the major ALT residential communities. Since 1966, new laws and regulations have been progressively introduced that have made managing land a very complex task that requires a wide range of skills. Such skills include legal, financial, safety, property management, environmental and agricultural. A representative approach does not necessarily provide the Board with the skills and experience now required to manage a diverse property portfolio, nor does it currently provide representation for all ALT tenants. In addition, the current approach does not necessarily provide a voice for Aboriginal people who have an interest in the land but do not live in an ALT community. Matters that need to be considered in relation to role and function of the Board are: What mix of skills, experience and qualifications should members of the Board have, and what balance is required? Should membership of the Board be limited to representatives from ALT residential communities? How can Aboriginal people be assisted to develop the range of skills and experiences required for membership of a Board with complex duties? 1.4. The role of the Minister The ALT Act does not clearly define the relationship between the Minister and the ALT. The primary statutory responsibility of the Minister is to consent (or withhold consent) to some dealings entered into by the ALT and its tenants; the purpose of ministerial consent to dealings is to ensure that the proposed dealing preserves the value and benefit of the land to Aboriginal South Australians. The Minister currently has no authority to delegate or exempt transactions from statutory approval requirements. Nor is there any authority to enable the Minister to direct the Board. The scope of development on ALT land has increased since There is now a greater range of transactions, such as residential tenancies, leases and licences to service provider organisations, and short-term licences for commercial operators that need to be protected by formal agreements. Ministerial consent to all dealings is a 6

7 cumbersome process that hinders efficient property administration and possibly imposes an unnecessary level of control. The objective of ministerial consent to dealings should be to safeguard the ALT estate and to ensure that dealings are fair and transparent. The processes required for high volume low risk dealings such as residential tenancies and short term agreements with service provider organisations, for example, should be different to those for significant transactions such as long-term agreements with commercial operators or financial ventures which use the ALT land as an asset for development (i.e., require ALT land to be mortgaged). The consent provisions will be reviewed to ascertain whether the Minister should be able to delegate or exempt certain transactions from Ministerial consent. The review will consider whether the Minister should have a reserve power to provide directions to the Board in circumstances where the Board has refused or failed to exercise its responsibilities. Conditions, such as public reporting, would be required on the exercise of that reserve power Business development processes and structures The ALT Act was amended in 1991 to establish a Business Advisory Panel (section 20A). The functions of the Panel are to advise and assist Aboriginal communities and residents of ALT land in the establishment of business or community enterprises and the development of relevant skills. The Panel consists of seven (7) members: the Chair of the Trust; the CEO of the Department of Technical and Further Education (now DFEEST); and five (5) members with relevant knowledge and experience appointed by the Governor on the nomination of the Minister. The Minister is required to consult with the Aboriginal Lands Parliamentary Standing Committee before putting forward his nominations. There have been significant changes to policy and legislation since this amendment was inserted. The Indigenous Land Corporation (ILC) was established in 1994 to assist Aboriginal people to acquire and to manage land. Since that time, the ILC has provided funding to Aboriginal land holders (including the ALT) to assist in the management of land. Indigenous Business Australia (IBA) was established to provide economic and business development assistance to Aboriginal organisations. Regional Economic Development Boards have also been established by the South Australian Government to facilitate business development in the regions through mentoring, technical support and advocacy. 7

8 In addition, the right to negotiate and Indigenous Land Use Agreement provisions of the Native Title Act1993 have provided the opportunity and income to native title groups to establish business ventures. For example, the Congress of Native Title Management Committees of South Australia Inc (Congress) has recently incorporated an organisation called the Aboriginal Foundation of South Australia Incorporated (the Foundation). The objective of the Foundation is to provide mentoring, technical and financial support to Aboriginal groups wishing to undertake economic and enterprise development. The review will examine whether the current processes and structures relating to business development are appropriate and sufficient to facilitate both a return to the ALT as property owner and more broadly, economic development that will benefit Aboriginal South Australians Community benefits The ALT estate was intended to be for the benefit of all Aboriginal South Australians. In practice, this has meant that the communities that have an historic association with land have the opportunity to benefit from the use of that land, including any income that may be derived from commercial ventures. This does not necessarily provide any benefit for the wider Aboriginal community that is not directly associated with the residential lands. There is need for an accountable mechanism for collecting and holding income derived from use of the lands held in trust for all Aboriginal South Australians. This income may be derived from market rents for commercial ventures, income from sale of lands (where that has been appropriately agreed), equivalents of mining royalties for operations on ALT lands and other forms of grant or revenue. Income and costs associated with the administration of the ALT property estate (including operational grants) would remain separate. The review will examine whether a Fund should be established. The scope and purpose of the Fund would be described in legislation as a guide for allocation of money from that Fund. For example, monies from the fund could be applied to the establishment of regional authorities, enterprise development, land management projects, training and education, cultural heritage management plans and leadership training. Where land has been sold, or an easement granted, or a commercial dealing executed with a third party, the net income derived from that dealing would be paid into the Fund. In the case of third party commercial arrangements the payment would be in the nature of a market rent contribution for the use of the land. Provision could also be made for Parliamentary appropriation to this Fund. These provisions would operate in the place of the existing provision for the Board to grant technical or financial assistance, subject to Ministerial consent Sale or transfer of land Inalienable freehold title for Aboriginal landholdings was a key principle of the 1966 Act and remains a fundamental principle today. It is important to ensure protection of title 8

9 for those Aboriginal community lands where there are historic as well as traditional ties to the land. The ALT estate has now become much more diverse and it includes titles where the costs of maintenance and rehabilitation of buildings outweigh any income received through rent or funding. At the same time, the needs of Aboriginal communities have changed, particularly in their desire for more autonomy of management for the lands that provide both residential and economic opportunities. The review will examine a range of process and structures to provide greater flexibility in the interests in land that can be granted by the ALT to Aboriginal people. Processes and structures could include: processes for the transfer of an ALT freehold title (residential lands) to an Aboriginal regional or community organisation; processes to transfer land to Aboriginal organisations for various business purposes; and criteria such as financial security; organisational stability and forms of governance and structure which meet modern standards for accountability as pre-requisites for the transfer of freehold title or a long-term lease; In the case of non-residential land, the review will consider whether it is in the interests of Aboriginal people as a whole to enable the ALT to sell land outside of the Aboriginal estate. Conditions that would need to be met before such a decision could be made might include: statutory processes which are consistent with requirements for disposal of Crown land, including the requirements regarding native title; fair and transparent processes for consultation prior to any decision being made; requirement for Ministerial or Parliamentary approval where land is to be permanently alienated from the ALT estate; requirements that properties be sold only for market value; and income from land sales being used to secure benefits for the wider Aboriginal community and to resolve any native title matters. The review consider whether the easements or rights of way (which amount to a permanent alienation) could be created without a need for Parliamentary approval as a practical measure to safeguard investment in public infrastructure and utilities. 9

10 2. Statutory action required to regularise past dealings 2.1. Rectification of past dealings The principle of inalienable freehold title was given effect through a provision that requires the Aboriginal Lands Trust to gain the approval of both Houses of Parliament before the sale or transfer of land. This mechanism was seen as a means of ensuring that land was not sold. It has proven to be a benefit in protecting the underlying Aboriginal property interest where Community assets have been subject to claim through liquidation of their governing bodies. However the provision has inadvertently precluded effective property administration and protection of assets through easements or boundary realignments. Technical breaches of the Act have occurred through administrative oversight. The review process will consider what form of Parliamentary approval is required to regularise these past actions Reinstatement of leases It is essential that Aboriginal communities resident on ALT titles have certainty about their rights of use and occupation. Statutory intervention is necessary to ensure that communities are not disadvantaged by past decisions that may have inadvertently led to their leases being void. Agreements for any property dealing should be properly documented and should appropriately record the obligations and responsibilities of the parties. It is also important to ensure that all dealings in the land whether between landlord and lessee or between lessee and a third party are established in a way which ensures ongoing benefit to the wider Aboriginal community. This benefit needs to be quantifiable and capable of assessment. It is proposed to legislate to reinstate the existing head leases through a process of statutory annulment and reissue. The new leases will incorporate the standard terms and conditions that are appropriate to the type of land use and occupation; previous sections of this Discussion Paper have outlined proposals for standardising terms and documentation A consequence of this action would be the nullification of previous third party agreements. It is proposed that the legislation provide a period of time for a review and agreement process to enable third party interests to be reinstated under terms that protect the interests of the land owner, the head lessee and the wider Aboriginal community. 10

11 3. Technical amendments to improve the effectiveness of the administration of the ALT estate 3.1. Declaration and Regulation of Dry Zones Aboriginal communities across Australia have been discussing the effect of alcohol on their communities and have decided as a community to be dry. ALT residential communities are no exception. There is currently provision for the whole or part of an ALT title to be declared as a public place for the purposes of establishing a Dry Zone. Dry Zones have been established following requests from Yalata and Umoona communities and are under consideration by other Communities. The formal declaration of a Dry Zone is important for ensuring effective implementation and enforcement. It is proposed to provide statutory certainty that the Dry Zone regulations apply to all ALT titles, irrespective of how those titles were brought into the ALT property estate. There would also be provision for the Dry Zone to be applied to roads and other land lying within an ALT title but not under the ownership and control of the ALT, provided there is written agreement from the relevant land-owners. Amendments will be made to the evidentiary provisions to further facilitate effective policing. In line with the principle of increasing autonomy of management it is proposed that Aboriginal Communities would no longer require Board approval for the declaration of a Dry Zone Use of Standard Documents The current Act does not specify conditions of property agreements. Existing agreements vary widely in relation to matters such as occupier responsibility, liability and permitted use. Although leases and other dealings (such as easements) can be registered under the Real Property Act, there is no process to alert interested parties to the possible restrictions arising from the requirements of the ALT Act. Documentation and registration of the terms and conditions of agreements provides protection to both the property owner and the tenant. However many Aboriginal organisations do not have the resources to seek appropriate legal advice. It is important that the Aboriginal organisations entering into agreements do so with knowledge and understanding of what the agreements mean in terms of what can be done, what must be done and what may not ever be done. It is also important that the terms of an agreement are appropriate to the use, whether this is residential, farming, commercial or any other activity. 11

12 The review will consider whether essential terms and conditions could be outlined in legislation, for example, term, fee or rent, permitted use, lessee obligations, risk and liability and insurance and waiver and damage, and to address issues related to: protection of property and associated fixed assets in circumstances where a tenant, such as an Aboriginal Community Council (or its business subsidiary) is liquidated or subject to administration - similar provisions would apply to subsidiary tenancies; authority to regulate the form of agreements and subsidiary agreements for tenancy, use and occupation such as grazing, service delivery and administration; and authority for the Registrar-General to make a note on ALT titles to alert all parties to potential restrictions arising from the operation of the ALT Act, and whether the Registrar-General should be authorised to note lesser interests on the title (such as tenancies and licences) even if these would not otherwise be capable of registration Reporting and Financial Arrangements As an instrumentality of the Crown the ALT is not required to pay certain rates and charges such as local government rates on land held for non-residential purposes. The ALT is, however, required to pay land tax and emergency services levies as a single landholder. The question of rating and taxing will be considered during the review in the context of assessing whether the ALT should generally remain exempt from rating and taxing. The review will also provide an opportunity to assess the extent to which any such charges should be able to be passed on to lessees and/ or sublessees, particularly where a commercial lessee is receiving a financial benefit that is not otherwise available to its competitors. 12

13 Have your say about the future of the Aboriginal Lands Trust Act 1966 Contact the Review Team at: Aboriginal Affairs and Reconciliation Division Department of the Premier and Cabinet Level 13 State Administration Centre 200 Tarndanyangga (Victoria Square) ADELAIDE SA 5000 Telephone: Fax: Log on to the website at Read the latest news Make a submission Find information about the current ALT Act and how things might change Find out when the review team will be holding consultation meetings in your area 13