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Certain Land Fund Matters - Senate Select Committee - Report - Certain Land Fund Matters, November 1995


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The Parliament of the Commonwealth of Australia

CERTAIN LAND FUND MATTERS

REPORT OF THE SENATE SELECT COMMITTEE ON CERTAIN LAND FUND MATTERS

NOVEMBER 1995

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The Parliament of the Commonwealth of Australia

CERTAIN LAND FUND MATTERS

REPORT OF THE SENATE SELECT COMMITTEE ON CERTAIN LAND FUND MATTERS

NOVEMBER 1995

© Commonwealth of Australia 1995 ISBN 0 642 23508 2

Printed by the Department of the Senate

SENATE SELECT COMMITTEE ON CERTAIN LAND FUND MATTERS

Senator Ian Campbell (Liberal, Western Australia) Chairman

Senator Christabel Chamarette (Greens, Western Australia) Deputy Chair

Senator Bruce Childs (Labor, New South Wales)

Senator Chris Ellison (Liberal, Western Australia)

Senator Chris Evans (Labor, Western Australia)

Senator Cheryl Kemot (Democrat, Queensland)

Senator Judith Troeth (Liberal, Victoria)

Secretary: Sue Morton Principal Research Officer: Darlene Jonsson Administrative Assistants: Kylie Cardwell / Cath Drinkwater

The Senate Parliament House CANBERRA ACT 2600

Tel: (06)277 3530 Fax: (06)277 5809

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TABLE OF CONTENTS

Page

INTRODUCTION

1. Terms of reference 1

2. Background to the inquiry 1

3. Conduct of the inquiry 3

CONTEXT OF THE ATSIC BOARD DECISION

4. The ATSIC Land Acquisition and Maintenance Program 4

5. Establishment of the Land Fund and the Indigenous Land Corporation 6 6. Thz Aboriginal Land Rights (Northern Territory) Act 1976 7

ISSUES

7. Agreements and Undertakings 8

Agreement with the Chief Minister of the Northern Territory 8

Agreement with Aboriginal representatives 9

The Federal Court decision 12

Roles o f ATSIC and the ILC 13

8. Decision-making processes - transparency and accountability 17

CONCLUSIONS AND RECOMMENDATIONS

9. Conclusions 19

Findings 21

10. Recommendations 21

APPENDICES:

1 Commission-In-Confidence Paper No 1849 2 Submissions

3 Public Hearings and Witnesses 4. Meeting of 16 June 1994 between the Prime Minister and indigenous representatives: List of Attendees

MINORITY REPORT

ABBREVIATIONS

This report uses the following abbreviations:

Abbreviation Term

ALRA Aboriginal Land Rights (Northern Territory) Act 1976

ATSIC Aboriginal and Torres Strait Islander Commission

ATSIC Act Aboriginal and Torres Strait Islander Commission Act

1989

FAIRA Foundation for Aboriginal and Islander Research Action

Aboriginal Corporation

ILC Indigenous Land Corporation

LAMP Land Acquisition and Maintenance Program

Land Fund Act Land Fund and Indigenous Land Corporation (ATSIC

Amendment) Act 1995

Land Fund Bill No 1 ATSIC Amendment (Indigenous Land Corporation and Land Fund) Bill 1994

Land Fund Bill (ATSIC No 2 Land Fund and Indigenous Land Corporation

Amendment) Bill 1994

Mabo Mabo v Queensland (No.2) (1992) 175 CLR 1

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INTRODUCTION

1. Terms of Reference

1.1 On 31 August 1995 the Senate appointed the Select Committee on Certain Land Fund Matters to inquire into and report on the following matters:

(a) in the light of the Federal Court decision of 30 August 1995 which set aside the ATSIC Board decision of March 1995 'that in all the circumstances was so unreasonable that no reasonable decision-maker could come to it', to examine the process which led to that decision;

(b) whether there were any other agreements between the Government, ATSIC and/or Aboriginal people arising from negotiations on the Native Title Act or the Land Fund Bill.

2. Background to the Inquiry

2.1 The Aboriginal and Torres Strait Islander Commission (ATSIC) has administered a Land Acquisition and Maintenance Program (LAMP), to provide for the acquisition of land for indigenous people and for the maintenance of that land, since its establishment in 1990. In 1995, the Land Fund and Indigenous Land Corporation (ATSIC Amendment) Act 1995

(the Land Fund Act) was passed, establishing a separate land fund for the purchase of land by indigenous people, to be administered by a new Indigenous Land Corporation (ILC). However, the Government determined that for a two year transitional period (1995/96 and 1996/97), both the ILC and ATSIC would receive funding for land acquisition and maintenance functions.

2.2 The rationale for the extension of ATSIC's LAMP program for the two year period was raised on several occasions in the Senate, and in such fora as the public hearing on the ATSIC Amendment (Indigenous Land Corporation and Land Fund) Bill 1994 conducted by the Senate Standing Committee on Finance and Public Administration in September 1994,

the Senate Finance and Public Administration Legislation Committee's examination of the Budget Estimates 1995-96, and during the proceedings of the Senate Select Committee on the Land Fund Bill in December 1994 and January 1995. It was questioned whether the extension was granted to allow ATSIC to direct increased funding toward land acquisition in the Northern Territory for the two year period, in order to allow additional land to be claimed under the Aboriginal Land Rights (Northern Territory) Act (the ALRA) before the period for such claims expired in 1997. Land purchased by the ILC is not available for claim under the ALRA. In September 1994, Stephen Hatton, Northern Territory Minister for Lands, Housing and Local Government and Minister for Aboriginal Development (at that time), pointed out to the Senate Standing Committee on Finance and Public Administration that 'it is entirely possible that ATSIC could devote considerable funds to the acquisition of pastoral properties

in the Territory and land claims made by them before mid-1997'.* 1

1 Standing Committee on Finance and Public Administration Hansard 22 September 1994, pp 80- 83.

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2.3 The intention to provide increased funding through ATSIC for land acquisition in the Northern Territory was consistently denied on these occasions by Government and by ATSIC. For example, when questioned in the Senate as to whether the Northern Territory might receive special treatment, Senator Gareth Evans said:

It is not our expectation that ATSIC will do anything other than maintain the normal pattern of land acquisition using those funds available to it. ATSIC is an independent authority and makes its own decisions about this matter. But I do not believe there is any basis for thinking that the kind of strategy outlined by

Senator Ellison will be pursued. There are far too many other people around the country with competing interests who would be far too upset for that to happen. I think we can rely on good sense prevailing in that respect.

2.4 On 28-30 March 1995, the ATSIC Board met to consider, among other matters, policy options for the ATSIC LAMP program for the remaining two years of the program. To assist the Board, a briefing paper was prepared by officers in ATSIC's Commercial Division.3 The briefing paper is attached as Appendix 1.

2.5 The briefing paper outlined four options for the allocation o f land acquisition and maintenance monies, and suggested that the preferred option was to quarantine the entire amount allocated by ATSIC for land acquisition for the two transitional years for use for land acquisition in the Northern Territory. A variation of this, option 2, suggested that a small part of land acquisition funds be retained for emergency land acquisitions in other States. The quarantining of money for acquisitions in the Northern Territory was based on an underlying assumption that 'there be special treatment for the Northern Territory for land acquisition from ATSIC's LAMP, in line with discussions with Government and the restrictions of the

Bill'.4

2.6 By Decision No 1442, the ATSIC Board voted to quarantine the large majority of land acquisition funding for purchases in the Northern Territory. The Board allocated land acquisition and maintenance funding as follows for each of the remaining two years of the program:

• $10 million for land acquisition in the Northern Territory; • $2 million for other priority national purchases; and • $9 million for land management.

2.7 The vote was tied 9 for and 9 against the decision, and the Chairperson, Lois O'Donoghue, used her casting vote (in addition to her deliberative vote), which decided the issue. As well, by Decision No 1467, the ATSIC Board recommended to the ILC Board that the ILC not approve any land purchases for the Northern Territory over the two year period.

2.8 A challenge to the ATSIC Board decision was initiated in the Federal Court on 2 June 1995.5 The decision was challenged by the New South Wales Aboriginal Land Council and the Tasmanian Aboriginal Centre Inc. in one application and by the Foundation of Aboriginal

2 Senate Hansard Tuesday 21 March 1995, p. 1828. 3 Commission-In-Confidence Submission Paper No 1849. 4 ibid, p 2.

5 NSW Aboriginal Land Council Submission. 17 October 1995. p 11.

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and Islander Research Action Aboriginal Corporation (FAIRA) in another application. The court heard the two proceedings together. On 30 August 1995, Justice Hill held that the ATSIC Board decision was an improper exercise of power, and ordered that the decision of ATSIC be set aside, that ATSIC be restrained from making grants of money or the purchase

of interests in land in accordance with the order, and that ATSIC pay the costs of the applicants in each matter.6 The court found, inter alia, that the decision 'in all the circumstances was so unreasonable that no reasonable decision-maker could come to it'.7

2.9 The foregoing events raised questions in the Senate, in relation to the Government's role in the decision-making process and also in relation to the existence or otherwise of any agreement between indigenous representatives and the Government that the Northern Territory would receive 'special treatment' in terms of land acquisition funding over the

transitional period of parallel ATSIC and ILC programs.

3. Conduct of the Inquiry

3.1 The inquiry was advertised in the Weekend Australian on 23-24 September 1995 and in the Koori Mail on 4 October 1995. Interested persons and organisations were invited to lodge written submissions by 6 October 1995, although it was made clear that those wishing to make later submissions could do so by contacting the secretariat. The Committee also sent

letters to several organisations advising them of the inquiry and of the opportunity to make written submissions. Submissions and supplementary submissions continued to be received throughout the inquiry. The Committee received thirteen written submissions; a list of these is attached as Appendix 2.

3.2 The Committee held public hearings on the inquiry on 16 and 17 October 1995. The Committee invited representatives from ATSIC, the ILC and the Office of Indigenous Affairs within the Department of the Prime Minister and Cabinet to give evidence at the hearings. Following the receipt of written submissions, the Committee also heard evidence from representatives of the Northern Land Council and the Central Land Council and from the

Queensland Federation of Land Councils and FAIRA Aboriginal Corporation. The NSW Aboriginal Land Council was also invited to attend but were unable to appear. A list of witnesses is attached as Appendix 3.

3.3 In addition to the oral and written evidence received, the Committee had available to it documents pertinent to the ATSIC decision tabled by the Government in the Senate on 6 June 1995 pursuant to an Order of the Senate made 5 June 1995, as well as transcripts and answers to questions taken on notice relating to the Senate Finance and Public Administration Legislation Committee's examination of the Budget Estimates 1995-96, during which the issues under consideration were raised. Also relevant were transcripts of the Standing

Committee on Finance and Public Administration September 1994 public hearing on the ATSIC Amendment (Indigenous Land Corporation and Land Fund) Bill 1994 (Land Fund Bill No 1), and of the Select Committee on the Land Fund Bill public hearings of December 1994 and January 1995.

6 New South Wales Aboriginal Land Council & Anor v. Aboriginal and Torres Strait Islander Commission & Anor, unreported, Federal Court 30 August 1995. 7 ibid, p 47.

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3.4 Some members of the Committee were concerned that aspects of evidence given to the Committee on behalf of ATSIC and the Northern Land Council could be regarded as being inconsistent, and that these inconsistencies could possibly result in serious adverse inferences being drawn. The Committee wrote to both ATSIC and the Northern Land Council seeking clarification of these matters. The Committee also offered to conduct a further public hearing if this was the wish of the witnesses. The responses from ATSIC and the NLC were received as submissions and authorised for publication.

CONTEXT OF THE ATSIC BOARD DECISION

4. The ATSIC Land Acquisition and Maintenance Program

4.1 The Aboriginal and Torres Strait Islander Commission (ATSIC) was established on 5 March 1990, pursuant to the Aboriginal and Torres Strait Islander Commission Act 1989 (the ATSIC Act). The Act empowers ATSIC to acquire interests in land or personal property for the purpose of granting those interests to indigenous individuals and bodies, and to grant and

loan funds to indigenous people and bodies for the purpose of furthering the social, economic or cultural development o f indigenous people. ATSIC also allocates funds for property maintenance and operational costs and for the payment of statutory charges against land, in relation to properties owned by ATSIC and by others.

4.2 The Land Acquisition and Maintenance Program is a component of the Commercial sub-program within ATSIC's Economic Division. Since its establishment, ATSIC has spent approximately $100.9 million under the program. Land acquisition has comprised $70.3 million (69.7%) of the total, and land maintenance $30.6 million (30.3%).8 ATSIC advised the Finance and Public Administration Legislation Committee in May 1995 that 'States and Territories bear equal importance in relation to funding decisions. As far as is practicable, the equitable distribution of funding is sought in the decisions on national program allocation1 .9

4.3 The 1991 Census reported that there were 265,492 Aboriginal and Torres Strait Islander people in Australia. The numbers and proportions of the total population in each State and Territory w ere:10

Aboriginal population distribution

NSW 70,020 26.4%

Queensland 70,130 26.4%

SA 16,238 6.1%

Victoria 16,736 6.3%

WA 41,792 15.7%

Tasmania 8,886 3.4%

Northern Territory 39,918 15.0%

ACT 1,772 0.7%

8 Finance and Public Administration Legislation Committee, Examination of Budget Estimates 1995-96: Additional Information Received; vol 4, pp 1066-7. 9 ibid, p 1095. 10 1991 Census.

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4.4 The Committee has assembled the following information outlining expenditures on land acquisition and maintenance under ATSIC's LAMP program, based on data provided by ATSIC to the Finance and Public Administration Legislation Committee during its examination of the Budget Estimates for 1995-96.11

4.5 ATSIC made the following allocations to land acquisition and maintenance nationally since its establishment (ATSIC has said that it is not possible to identify the administrative costs of the LAMP program):

Land Acquisition and Management (millions)- National

3/90 - 6/90 0.2 — 0.2

1990 - 91 11.2 1.9 13.1

1991 - 92 9.5 2.1 11.6

1992 - 93 20.9 6.4 27.3

1993 - 94 17.1 10.5 27.6

1994 - 95 11.4 9.7 21.1

TOTAL 70.3 30.6 100.9

4.6 The following table outlines expenditures for land acquisition within each of the States and Territories since the establishment of ATSIC:

Land Acquisition - States and Territories

i PsmL

3-6/90 . . . . . . . . . 220,000 — — — 220,000

90-91 180,000 3,019,000 2,879,000 . . . 3,044,000 268,000 1,810,000 11,200,000

91-92 567,000 3,058,000 853,000 . . . 3,828,000 1,235,000 — 9,541,000

92-93 1,990,000 3,316,000 4,393,000 3,772,000 1,773,000 . . . 5,632,000 20,876,000

93-94 840,506 5,959,831 2,723,849 401,808 4,122,107 991,824 2,102,150 17,142,075

94-95 950,000 7,431,475 336,500 377,000 702,000 1,000,000 600,000 11,396,975

TO TA L 4,527,506 22,784,306 11,185,349 4,770,808 13,469,107 3,494,824 10,144,150 70,376,050 % 6.43% 32.38% 15.89% 6.78% 19.14% 4.97% 14.41% 100%

Proportion o f total allocated fo r land acquisition in the NT each year

3 - 6/90 —

1990-91 16.16% 1991-92 —

1992-93 26.98% 1993-94 12.26% 1994-95 5.26%

1990-95 14.41%

11 Finance and Public Administration Legislation Committee, Examination of Budget Estimates 1995-96: Additional Information Received; vol 4.

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4.7 The following table outlines expenditures for land management within each of the States and Territories from 1992-93 to 1994-95. ATSIC stated that details of expenditure for land management on a State and Territory basis are not available for 1990-91 and 1991-92. The national figures for those years are $1.9 million and $2.1 million respectively.

Land Management - States and Territories

■ m liPcIlWj % mMlimmSkm m n ΙΜ ΙΜ Î’

92-93 198,000 203,000 683.000 1,014.000 2.462.000 2,000 1,827,000 6,389,000

93-94 888,000 960,000 1,864,000 716,000 4,063,000 39,000 1,933,000 10,463,000

94-95 631,000 1,582,000 945,000 363,000 3,341,000 202,000 2,660,000 9,724,000

TOTAL 1,717,000 2,745,000 3,492,000 2,093,000 9,866,000 243,000 6,420,000 26,576,000

% 6.46% 10.33% 13.14% 7.88% 37.12% .91% 24.16% 100%

Proportion o f total allocatedfor land management in the NT each year

1992- 93 28.60% 1993- 94 18.47% 1994- 95 27.35%

1992-95 24.16%

4.8 As indicated above, since the establishment of ATSIC, approximately 14.41% of land acquisition funding and approximately 24.16% of land management funding has been allocated to the Northern Territory. Northern Territory land acquisition funding has represented approximately 10.05% of the total land acquisition and maintenance funds available.

4.9 The funding allocated to the Northern Territory for land acquisition by the ATSIC Board decision of March 1995 for the years 1995/96 and 1996/97 represented approximately 83.33% of ATSIC land acquisition funding for the period, and approximately 47.62% of the total land acquisition and management funds available.

5. Establishment of the Land Fund and the Indigenous Land Corporation

5.1 The ATSIC Board decision of March 1995 must be considered within the broader context of the Commonwealth's response to the High Court's 1992 Mabo decision and the Government's negotiations with indigenous representatives.

5.2 The first stage of the Commonwealth response, the enactment of the Native Title Act 1993, established a process for the determination of claims for native title. However, most Aboriginal people will not be able to assert native title rights under this legislation, having being dispossessed of their traditional land. The Land Fund and Indigenous Land

Corporation (ATSIC Amendment) Act 1995 (the Land Fund Act), which commenced 1 June 1995, amended the ATSIC Act to provide a specific fund to enable indigenous people to acquire, manage and maintain land, to help redress the dispossession of indigenous people.

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The fund will receive annual government grants and income from investments. The Land Fund Act also establishes the new Indigenous Land Corporation which will receive allocations from the land fund to administer the Act.

5.3 The first Land Fund bill, the ATSIC Amendment (Indigenous Land Corporation and Land Fund) Bill 1994, underwent a process of significant amendment in the Senate, and became the subject of extensive inquiry by the Senate Select Committee on the Land Fund Bill. The bill was subsequently withdrawn by the Government and replaced by the second

bill, the Land Fund and Indigenous Land Corporation (ATSIC Amendment) Bill 1994, which became the current Land Fund Act. It was passed in March 1995.

5.4 Commencing in 1995 the land fund provides money to the ILC for the acquisition and maintenance of land. In the future, ATSIC will no longer carry out a land acquisition function. However, for a transitional period, for the years 1995/96 and 1996/97, ATSIC will continue to receive land acquisition and maintenance funding at approximately its current

level. From 1997/98, ATSIC's land acquisition and maintenance allocation will be transferred to the ILC.

6. The Aboriginal Land Rights (Northern Territory) Act 1976

6.1 The Government decision to have a transitional two year period of'parallel programs', by which both ATSIC and the new ILC would administer land acquisition funding, appears to have had its roots in the unique form of title available to Aboriginal people in the Northern Territory under the Aboriginal Land Rights (Northern Territory) Act 1976 (the ALRA).

6.2 Under the ALRA, Aboriginal people may apply to an Aboriginal Land Commissioner to claim traditional ownership of land which is unalienated Crown land, or which is alienated Crown land in which all estates and interests not held by the Crown are held by or on behalf of Aboriginal people. Where the Commissioner finds that there are Aboriginal people who

are the traditional owners of the land, he or she may recommend to the Minister that the land, or parts of it, be granted to one or more Land Trusts to be held for the benefit of the traditional owners. Where a claim is successful, the land is converted to inalienable freehold title, with the right to withhold consent to mining exploration and development on the land, and is managed by the relevant Land Council in consultation with the traditional owners and other affected Aboriginal people. This form of title is considered by many to be the most beneficial form of title for indigenous people, and is available only to Aboriginal people in the Northern Territory.

6.3 The ALRA was amended by the Commonwealth Government to add a ten year 'sunset clause', commencing in 1987, so that the period during which land claims may be lodged by Aboriginal people expires in June 1997.12

Section 50 (2A).

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ISSUES

7. Agreements and undertakings

7.1 The second term of reference addressed by the Committee concerns whether or not there were any agreements between the Government, ATSIC and/or Aboriginal people arising from negotiations on the Native Title Act or the Land Fund Bill. As well as an undertaking to the Chief Minister of the Northern Territory, the Committee heard evidence that agreement was reached in June 1994 between the Prime Minister and indigenous representatives that ATSIC's Land Acquisition and Management Program would be extended for a two year period, during which ATSIC and the ILC would have parallel programs. However, the

existence of any other agreements was denied by several witnesses, and insufficient evidence was available to the Committee to substantiate or exclude their existence. Short of inviting all ATSIC Commissioners to a public hearing, the lack of evidence and documentation

surrounding the ATSIC decision-making process means that the Committee is not able to come to a clear finding.

Agreement with the C hief Minister o f the Northern Territory

7.2 Land which is purchased in the Northern Territory by ATSIC may be subject to claim under the ALRA, as land owned by or on behalf of Aboriginal people. As early as November 1993, the Northern Territory Government expressed concerns that the creation of the land fund would inappropriately increase the number of pastoral properties in the Northern Territory which are converted to inalienable title. As a result of these discussions, the Government agreed that properties purchased under the land fund would not be available for claim under the ALRA.

7.3 This undertaking was later communicated to Parliament during the Second Reading Speech on Land Fund Bill No 1 on 30 August 1994, when the Prime Minister said:

On another point, the Chief Minister of the Northern Territory has expressed reservations about the land fund. His concern is that land acquired under land fund provisions and subject to normal title holding rules will be claimed under the Aboriginal Land Rights (Northern Territory) Act 1976, and thus lead to an inappropriate increase in land held under inalienable title. This will not result from the legislation before the House today. We have included in the legislation a clause prohibiting claims under the Land Rights Act being made in relation to land acquired by the Indigenous Land Corporation.13

7.4 The clause referred to is now sl91U of the Land Fund Act, which prohibits land obtained by indigenous corporations through the ILC from being subject to claim under the ALRA.

13 A TSIC Amendment (Indigenous Land Corporation and Land Fund) Bill 1994, Second Reading Speech, House of Representatives Hansard 30 August 1994, p 592.

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Agreement with Aboriginal representatives

7.5 On 16 June 1994, a meeting was held between the Prime Minister, representatives of various indigenous organisations, and advisers to discuss the proposed provisions of the Land Fund Bill No l . 14 It was at this meeting that the proposal was put to the Prime Minister by

Aboriginal representatives, that ATSIC be allowed to retain its land acquisition and maintenance function, in addition to the ILC, for a two year transitional period. The events of this meeting have given rise to questions of whether at some point a 'deal' was made between the Prime Minister and Aboriginal representatives to circumvent the undertaking given by the Prime Minister to the Chief Minister of the Northern Territory.

7.6 The Committee heard that the Government had developed an approach to deal with the issue of the proportion of funding directed to the Northern Territory. Michael Dillon, First Assistant Secretary of the Office of Indigenous Affairs, Department of the Prime

Minister and Cabinet, said:

We had drafted the bill to get over that problem, and that was, to give the Minister a discretion to, in a sense, bring down the shutters but allow some proportion of land fund monies to be spent in the NT. I think the thinking behind that would have been that the very knowledge that the Minister was there would have brought a level of reasonableness to the land corporation’s operations and the cut-off would come into being in 1997, so the issue would have been manageable.15

7.7 However, an alternative proposal was made to the Prime Minister by Aboriginal representatives; namely that the ATSIC land acquisition and maintenance function be continued for a two year period, alongside the programs of the ILC. Ultimately, it was this proposal that was accepted by the Prime Minister.

7.8 In evidence to the Senate Standing Committee on Finance and Public Administration in September 1994, Stephen Hatton, Northern Territory Minister for Lands, Housing and Local Government and Minister for Aboriginal Development (at that time), commented on these arrangements:

The bill provides for transitional arrangements such that ATSIC will receive $21 million for each of the three fiscal years of 1994-95, 1995-96 and 1996-97. Those funds will not be subject to the limitations of the indigenous land fund and, effectively, funds allocated in the Northern Territory would be available to purchase properties and subsequent claims under the Aboriginal Land Rights Act, which is contrary to the undertakings given to our government by the Prime Minister. Thus we have argued that all the funds should be dealt with through the indigenous land fund rather than some being siphoned off into the other land

fund. If one were into conspiracy theories, one could suggest that that was a way of meeting an undertaking without meeting the undertaking. It certainly smacks o f that so far as we are concerned ... it is entirely possible that ATSIC

14 A list of the participants at this meeting is attached as Appendix 4. 15 Committee Hansard 16 October 1995, p 48. 9

could devote considerable funds to the acquisition of pastoral properties in the Territory and land claims made by them before mid-1997.16

7.9 It has been described to the Committee that the two year extension for ATSIC land acquisition and maintenance programs was needed purely to provide a smooth transition period, in particular to allow ATSIC to focus on land management. As well, the expressed rationale in the Senate, House of Representatives and Estimates hearings was that this was only a transitional arrangement, reflecting the assumption that ATSIC would continue its previous levels of acquisition and management funding.

7.10 It was put to David Ross, Chairperson of the ILC and former ATSIC Commissioner, for example, at the hearing of 16 October 1995, that the proposal for a transitional period was raised with the Prime Minister as a means of avoiding the 'sunset clause' taking effect two years earlier than originally intended. However, Mr Ross advised the Committee that:

I do not think that was the actual discussion. The position was very important that ATSIC retain the transitional period because of the problems with the Indigenous Land Corporation having to put in place national and regional strategies. They are causing us some quite considerable difficulties in undertaking this work. If funds are not available on a transitional basis, then the ILC legislation is quite clear that no funds can be spent on management as well as acquisitions and that people who rely on these management funds every year - especially where there are pastoral properties held in parts of the country where people have to comply with covenants - have to spend certain amounts of moneys. These things would have been very difficult. I think it has been proven that having the transitional period and the moneys flowing have highlighted this fact: that, if it did not happen, what would State governments have done where people had not been able to comply with the covenants on a lot o f these properties?17

7.11 The Committee recognises that the concerns noted by Mr Ross with respect to land management issues are valid. However, the Committee does not find it probable, given the extensive experience of the participants at the meeting of 16 June 1994, that the correlation between the extension granted to ATSIC for land acquisition and the expiry of the 'sunset clause' was coincidental. The Committee notes, as well, that it is not clear that the ILC legislation restricts the ILC from providing funds for land acquisition or management prior to the development of national and regional strategies, despite Mr Ross' understanding of the legislation.18

7.12 Les Malezer, General Manager, FAIRA, advised during the hearings of this Committee that there was a general knowledge during negotiations on the Land Fund Bill that the existence of the 'sunset clause' of the Aboriginal Land Rights (Northern Territory) Act 1976 was taken into account in relation to the drafting of the Land Fund Bill and the decision for parallel ATSIC and ILC land acquisition and maintenance programs.19 Similarly, during the public hearing of 25 January 1995 held by the Senate Select Committee on the Land Fund

16 Standing Committee on Finance and Public Administration Hansard 22 September 1994. pp 80- 83. 17 Committee Hansard 16 October 1995, p 38. 18 Committee Hansard 16 October 1995, p 39. 19 Committee Hansard 17 October 1995, p 54.

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Bill, Marcia Langton, at that time on leave from the Cape York Land Council, noted that she had heard the 'rumour' of an agreement, though from speaking to a range of people, she knew of no arrangement. She added that a funding preference by ATSIC to the Northern Territory was 'most unlikely given the land needs elsewhere in Australia'.20

7.13 The purpose of the extension of the ATSIC LAMP program had been raised on several occasions in the Senate, and during Senate Committee hearings on the Budget Estimates 1995-96 and on the Land Fund Bill No 1. Questions were raised as to whether the extension of the program was related to the ALRA 'sunset clause' or whether the extension might enable 'special treatment' for land acquisition funding to be given to the Northern Territory; however, the relevance of the existence of these factors has consistently been denied.

7.14 The Committee was interested in the evidence of Miss O'Donoghue, at the hearing of 16 October 1995. that consideration was in fact given to additional aspects such as the 'sunset clause' in the ALRA during the discussions on an extension of ATSIC’s land acquisition and maintenance program.21 The consideration of the 'sunset clause' during these discussions had not earlier been acknowledged by participants.

7.15 The submission by the Northern Land Council and the Central Land Council stated even more clearly that Darryl Pearce, Director of the Northern Land Council, suggested that the ATSIC land acquisition fund continue to operate for a two year period, inter alia, 'in order for NT Aboriginal people to make the most of the few remaining months in which land can be claimed under the ALRA'.22 In oral evidence before the Committee on 17 October 1995, Mr Pearce confirmed that:

I actually raised the issue with the Prime Minister and put it across the table. We had already raised it earlier in the day with the other Aboriginal groups. They were aware of what we were going to say and we are not silly or simple enough to deny that we did not recognise the benefit to us. We would presume that the other people in the room would have recognised the benefit to us and knew why we raised the issue. It was the opportunity - all that was open to us - to lobby the ATSIC commissioners. So as I say, we are not going to deny the fact that we recognised what opportunity was available to us and I am sure that most people around the table would have recognised that.23

7.16 This is consistent with the view put to the ATSIC Board in the briefing paper presented to it for the meeting of 28-30 March 1995. For example, the paper puts to the Board members the following entry among 'Underlying Assumptions and Principles':

That there be special treatment for the Northern Territory for land acquisitions from ATSIC's LAMP, in line with discussions with Government and the restrictions of the Bill.

20 Select Committee on Certain Land Fund Matters, 25 January 1995, Hansard p 379. 21 Committee Hansard 16 October 1995, p 4-5. 22 Northern Land Council and Central Land Council Submission, October 1995, p 5. 23 Committee Hansard 17 October, p 78.

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This is the underlying rationale for the ATSIC and ILC parallel programs. The continuance of LAMP for the next two financial years is predicated upon the Section 191U of the Land Fund Bill which does not allow land purchased by the ILC in the Northern Territory (NT) to be claimed under the provisions of the Aboriginal Land Rights (Northern Territory) Act 1976 (hereinafter referred to as the Land Rights Act). Land successfully claimed under the NT Land Rights Act is converted to inalienable freehold title. NT land purchased by ATSIC LAMP funds during the next two years will enable NT traditional owners to convert to inalienable freehold title if they wish to .24 2 5

7.17 The briefing paper further outlines, in support of the recommended option of a quarantining of land acquisition funding for the purchase of land in the Northern Territory, the following advantages to considering the Northern Territory as a special case:

• the Government's undertaking to indigenous negotiators not to effectively bring the Aboriginal Land Rights (Northern Territory) Act 1976 sunset clause 'forward' by preventing any section 50 claims on acquisitions under the ILC; • the legislative provision to run two parallel programs for two years

anticipates an ATSIC - funded Northern Territory land acquisition strategy.23

7.18 The Committee was advised by Ronald Morony, General Manager, ATSIC Economic Division, that the briefing paper was drafted by officers of ATSIC, and that:

... the notion of prioritising the NT was a matter that emerged as a result of discussions with portfolio commissioners. I am not sure whether you are aware that within ATSIC we have commissioners who are responsible for particular areas, and in this case former Commissioner Ross had a view that this issue should be included within the paper.26

The Federal Court decision

7.19 The applicants (the NSW Aboriginal Land Council, the Tasmanian Aboriginal Centre Inc and the Foundation of Aboriginal and Islander Research and Action Aboriginal Corporation) in the Federal Court challenge to the ATSIC decision did not seek to establish that an agreement had been made in relation to land acquisition funding allocations, and the Federal Court did not determine this issue. The applicants submitted that the question was whether one was believed to have existed by ATSIC Commissioners.27

7.20 In noting that ATSIC called no evidence of the suggested agreement to support the Board decision, Justice Hill added 'this is not surprising. For there to have been such discussions and agreement with the Prime Minister, what the Prime Minister said in Parliament would have to have been deliberately misleading. I would not lightly infer that the Prime Minister intended to mislead the House in this way'.28

24 Commission-In-Confidence Submission Paper No 1849, p 2. 25 Commission-In-Confidence Paper No 1849, p 5. 26 Committee Hansard 16 October 1995, p 6. 27 New South Wales Aboriginal Land Council & Anor v. Aboriginal and Torres Strait Islander Commission

& Anor, Federal Court Hearing transcript 21 and 22 August 1995. ~ New South Wales Aboriginal Land Council & Anor v. Aboriginal and Torres Strait Islander Commission & Anor, unreported, Federal Court 30 August 1995, pp 46- 47.

12

7.21 Justice Hill commented that:

ATSIC does not exist for the purpose of furthering the interests of Aboriginal persons in a particular place. ... Where public moneys are made available for distribution to a particular group in society, in the present case persons of Aboriginal or Torres Strait Islander descent, it is necessarily implied that all persons within that class of beneficiary will be open to consideration for that benefit, although the benefit is to be ultimately allocated having regard to the merits of competing applicants.29

7.22 The court found that ATSIC erred either by taking into account an irrelevant consideration ( the discussions with Government, which the court inferred did not reach the conclusion that there should be special treatment for the Northern Territory through grants by ATSIC in the two year period), or by failing to take into account a relevant consideration (the real Government policy that there should be no inappropriate increase in the purchase of land

in the Northern Territory). As well, ATSIC erred by 'coming to a decision that in all the circumstances was so unreasonable that no reasonable decision-maker could come to it'.30 A subsequent amendment to ATSIC's decision-making principles was 'mere window dressing embarked upon for the purposes of the present proceedings'.31

Roles o f ATSIC and the ILC

7.23 The ATSIC Board decision was supported as a reasonable and equitable one by witnesses who submitted that the total distribution of funds available to both ATSIC and the ILC over the transitional period should be taken into account. The total monies available to both organisations was a central point of the briefing paper and was relied upon by the ATSIC Board. Miss O'Donoghue informed the Committee:

It is also important to recognise that the Board was concerned to ensure that overall there would be equity for indigenous communities living in other jurisdictions. The Board therefore agreed to seek the cooperation of the Indigenous Land Corporation, asking that body to focus its activity on land

acquisition in jurisdictions other than the Northern Territory. 3‘

7.24 The Northern Land Council and the Central Land Council, in a joint submission, assert that the ATSIC decision has been misinterpreted, arguing that the $20 million allocated to the Northern Territory in fact represents 17% of the $115 million available to both

organisations for the period.33

29 New South Wales Aboriginal Land Council & Anor v. Aboriginal and Torres Strait Islander Commission & Anor, unreported, Federal Court 30 August 1995, p 42. 30 New South Wales Aboriginal Land Council & Anor v. Aboriginal and Torres Strait Islander Commission & Anor, unreported, Federal Court 30 August 1995, pp 46- 47. 31 New South Wales Aboriginal Land Council & Anor v. Aboriginal and Torres Strait Islander Commission

& Anor, unreported, Federal Court 30 August 1995, p 49. 32 Committee FI an sard 16 October 1995, p 4. 33 Northern Land Council and Central Land Council Submission, October 1995; the submission explains that the ILC will have available $73 million, being $25 million in 1994/95 and $24 million in each of 1995/96 and

1996/97.

13

7.25 The Committee does not agree that the allocation to the Northern Territory should be assessed in the context of the funds available to both bodies. The Prime Minister represented to Parliament that there would be no inappropriate increase in land held under inalienable freehold title in the Northern Territory, in the context of concerns that the additional or 'new' monies available for the purchase of land due to the creation of the land fund would lead to

such an increase. In fact, the new monies did enable ATSIC to increase the funding for purchases of land in the Northern Territory far in excess of what would otherwise have been available. The argument that the allocation to the Northern Territory can be considered equitable if one combines existing ATSIC funds with the 'new monies' and considers the total as one fund contradicts the Prime Minister's representation. It also implies that ATSIC was assuming the role of the ILC Board in determining the equitable distribution of the total.

7.26 The Committee also notes that the figures provided by the Northern and Central Land Councils are based on the total amount available to both organisations for land acquisition and management and administration costs, and incorporate the questionable assumption that the Northern Territory would receive no monies for land management during the period, notwithstanding that many recognise that an increased focus on land management is required. ATSIC has historically allocated approximately 70% of program funding to land acquisition and 30% to land management. If the ILC followed a similar pattern for the transitional period, approximately $47 million of the ILC funding (after accounting for administration costs) would be available for land acquisition; the Northern Territory allocation would in fact represent approximately 28% of the total ATSIC and ILC land acquisition funding base.

7.27 The Committee was also surprised to leam that, at its meeting of 1-3 May 1995, the ATSIC Board allocated to the Northern Territory an additional sum of $1.9 million for land management for each of 1995/96 and 1996/97, representing 21.25% of ATSIC's land management allocation.34

7.28 The Committee sought written clarification from Mr Pearce in relation to his oral evidence on this point. When Committee members had questioned Mr Pearce regarding the amount of land management funding he expected to receive, they were not informed of the land management sum allocated in May 1995. In a response to correspondence from the Committee on this matter, Mr Pearce indicated that he had not been aware of the Northern Territory land management allocation at the time of giving evidence to the Committee.

7.29 The Committee was concerned to find that the briefing paper relating to land management allocations which was before the Board at the May meeting makes no mention of implications of the Board's previous decision on land acquisition allocations.35

7.30 The Committee is particularly concerned about the representations made to the ILC by the ATSIC Chairperson on this issue. The ILC Board was established upon commencement of the Land Fund Act on 1 June 1995. By a letter dated 5 June 1995 (two months after the ATSIC Board decision and one month after the decision regarding land management allocations), Miss O'Donoghue wrote to the Chairperson of the ILC, Mr Ross, advising of the ATSIC land acquisition allocations and that ATSIC had recommended that the ILC not

34 ATSIC Board Decision No 1475, Meeting No 35. 35 Commission-In-Confidence Submission Paper, Annexure 12, NSW Aboriginal Land Council Submission 17 October 1995.

14

approve any land purchases in the Northern Territory over 1995/96 and 1996/97. Miss O'Donoghue also stated that:

... it is important that the ILC is fully informed of, and appreciate the context in which, these decisions were made. In considering how it should spend the funds it has for land acquisition and management, the ATSIC Board took into account the legislation which establishes the ILC and the Land Fund and the level (sic)

funds that would be available for land acquisition and management through the Land Fund over the next two years. ... Your Board members will no doubt appreciate that during the first three years of the ILC operations (ie to June 1997) funds will be available from both ATSIC and ILC for the acquisition and

management of land. Over these three years (1994/95 - 1996/97) a total of some $136 million (less ILC operational costs) will be provided for these purposes. The $600,000 ATSIC will spend in the Northern Territory in 1994/95 and the $20 million it proposes to set aside over the next two years for land purchases in the Northern Territory represents less than 15% of available funds for land.36

7.31 This correspondence did not inform the ILC of the additional $3.8 million already allocated to the Northern Territory for land management for 1995-97. As well, as the three year period was under consideration, the Committee considers that it was relevant that the Northern Territory had received $2.66 million in land management funding in 1994/95. If a true picture of the ATSIC decision were to have been communicated to the ILC Board, the correspondence should have stated that the total funds already allocated by ATSIC to the Northern Territory comprised 19.9% of the total funds available to the two organisations over

the three year period.

7.32 A more complete analysis would have pointed out that these figures incorporate the entirely unreasonable assumption that the ILC would allocate no land management funding to the Northern Territory during the three years. Using a conservative assumption based on the historical average of land management funding under ATSICs LAMP program, the Northern

Territory would receive approximately $2.9 million for land management over the three years (after subtracting ILC operational costs), with the result that Northern Territory land acquisition and management funding would comprise approximately 22% of all funds available to the two organisations.

7.33 The Committee also notes that this correspondence was sent three days after proceedings were initiated in the Federal Court in relation to the ATSIC Board decision. The letter was then relied upon in the Federal Court proceedings as, in effect, setting out the reasons for the ATSIC Board decision, in the absence of a formal statement of reasons.37

7.34 On 6 June 1995 the ILC Board resolved:

... that having regard to the ATSIC Chairperson's letter of 5 June 1995 concerning the decision of the ATSIC Board to set aside $10 million in each of the next two years for land acquisitions in the Northern Territory, the

Indigenous Land Corporation Board made a complementary decision that all

36 Correspondence 5 June 1995. 37 New South Wales Aboriginal Land Council & Anor v. Aboriginal and Torres Strait Islander Commission & Anor, Federal Court Hearing transcript 21 and 22 August 1995, p .23-24 15

ILC funds available in the first three Category A years for land acquisition be confined to locations other than the Northern Territory.38

7.35 Taken in the context of the ATSIC decision to take advantage of the ALRA 'window of opportunity', this raised serious questions as to the ability of Aboriginal people in the Northern Territory to access land acquisition funding in situations where a claim under the

ALRA would not be possible. At the hearing of 16 October 1995, Mr Ross advised the Committee that this decision was later amended, on 31 July 1995, so that the ILC Board would 'have regard to particular cases which may arise in the performance by the Indigenous Land Corporation of its functions under Part 4A of the ATSIC Act'.39 4 0 This decision allowed applications to be considered by people in the Northern Territory who cannot make claims under the ALRA, and according to Mr Ross, this amendment was based on ILC internal legal

, ■ 40

advice.

7.36 The Federal Court hearing was held 21 and 22 August 1995, nearly two months subsequent to the ILC decision. However, Justice Hill noted:

Far from taking into account the Government policy as enunciated by the Prime Minister that there not be an inappropriate increase in acquisitions of land in the Northern Territory, ATSIC did the opposite. It embarked upon a course which would ensure that this policy would, at least to the extent of some of the $10 million allocated, be frustrated. It hoped for the connivance in this end of the Indigenous Land Corporation. That Corporation has not yet made any grant nor, so far as the evidence before me emerges, has it reacted to the suggestion that it play its part in the connivance. It would be inappropriate for the Indigenous Land Corporation to assist in frustrating the evident policy behind s!91U .41

7.37 It appears that the ILC Board decisions of June and July 1995 may not have been brought to the attention of Justice Hill. In the Committee's view, the July amendment to the ILC decision would not remove the implication of 'connivance', but would simply provide some opportunity for the purchase of land in the Northern Territory in circumstances where claim under the ALRA is not available.

38 ILC Board Decision No 13, Meeting No 1. 39 ILC Board Decision, Meeting No 2. 40 Committee Hansard 16 October 1995, p 35. 41 New South Wales Aboriginal Land Council & Anor v. Aboriginal and Torres Strait Islander Commission

& Anor, unreported, Federal Court 30 August 1995, p 46.

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8. Decision-making processes - transparency and accountability

8.1 The Committee’s other term of reference requires it to consider the decision-making processes of ATSIC. Submissions and evidence received by the Committee raise serious concerns about ATSIC's decision-making processes, and about the transparency of ATSIC's

actions and ATSIC's accountability to all of its constituents. The chronology of events revealed by the evidence indicates that, at least at the point of the creation of the land fund and the ILC, ATSIC did not pay sufficient regard to the consideration of national priorities within a coherent framework. It appears that the ATSIC may have thought it appropriate to

assume to an extent the role of the ILC. In this context the Committee notes the possible relevance of the impending announcement of the new ILC Chairperson, Mr Ross and the automatic ILC Board membership of the ATSIC Chairperson.42

8.2 The Committee also received submissions, by the Queensland based Foundation for Aboriginal and Islander Research Action Aboriginal Corporation (FAIRA), and from the NSW Aboriginal Land Council, that reveal the substantial difficulties faced by those organisations in their attempts to obtain information from ATSIC about the decision of March

1995. The submission by FAIRA outlines that FAIRA's request for information was initially refused, and that when a formal Freedom of Information request was made for the Board's decision, there was a delay of 36 days before the decision was provided. Information regarding the voting pattern of Commissioners continued to be refused, a decision which was overturned on appeal, 54 days later.43

8.3 Requests to ATSIC by the NSW Aboriginal Land Council for the reasons for the Board decision were similarly refused. In its submission, the Council commented:

Whatever view ATSIC may have taken of the application of the Administrative Decisions Judicial Review Act, one would have thought that a body representing 27% of the country's indigenous population on land issues would be entitled to receive an explanation as to why its constituents were being virtually shut out of ATSIC funding for land.44

8.4 The Committee is also concerned about the quality of the evidence provided to parties legitimately (and adversely) affected by their decision-making, to the Federal Court and to this Committee. For instance, the Committee considered with interest a photocopy of notes taken by Patricia Turner, Chief Executive Officer of ATSIC, of the meeting of 16 June 1994 between the Prime Minister and indigenous representatives, which were tabled by an Order of the Senate on 6 June 1995. However, ATSIC had advised that the original of these notes could not be found.45 Similarly, the NSW Aboriginal Land Council advised that it sought access to the tapes and any transcript of the ATSIC Board meeting of March 1995. The Council submits that it was informed that the tapes were destroyed in the usual course of events following the adoption of the minutes, and that no transcript of the tapes was prepared.

The Council and this Committee were provided with the minutes of that meeting. However,

42 Section 191V of the ATSIC Act, as amended by the Land Fund Act. 43 Foundation for Aboriginal and Islander Research Action Aboriginal Corporation Submission, 16 October 1995, p 2-3. 44 NSW Aboriginal Land Council Submission, 17 October 1995, p 9. 45 Finance and Public Administration Legislation Committee Flansard 22 June 1995, p 250.

17

the Committee was informed by Ian Myers, Assistant General Manager, Commercial Branch, ATSIC, in relation to the Federal Court's use of the minutes of that meeting, as follows:

I think the Federal Court was looking at the minutes of the meeting. The minute taker at the Board meeting recorded that it had been option 2, as presented, which was decided on. I do not think that is the case.46

8.5 In response to a question by the Committee Chairman as to whether the minutes were therefore incorrect, Mr Myers replied:

My view is that the minutes did not necessarily record the detail and, therefore, in a distillation of all the discussions, the minute taker concluded that option 2 had been decided upon.47

8.6 This has further ramifications in terms of the Committee's ability to determine the facts of the issues before it. For example, following the public hearings, the Committee asked ATSIC to clarify the evidence relating to the Board's reliance on Paper No 1849 and the involvement of ATSIC officers in the Board decision-making process. Although the Committee was assured in oral evidence that the Board did not choose any of the options from the briefing paper, and that ATSIC officers did not suggest specific land acquisition allocation figures to the ATSIC Board,48 the Committee had before it the minutes of the meeting which recorded that the Board had chosen 'option 2' and that the figures were indicated to the Board by ATSIC staff.49 ATSIC advised that while the decision of the Board was closer to option 2, the allocation of funds for land acquisition and management,resulted from Board deliberations, and that the figures were provided by staff in response to a query regarding 1994/95 allocations.

8.7 However, it is the Committee's opinion that ATSIC did not demonstrate the full and frank disclosure which would have been appropriate in this matter. For example, the Committee raised with ATSIC its concern that the land management funding to the Northern Territory was not mentioned in the correspondence of 7 June 1995 from Miss O'Donoghue to Mr Ross which was submitted to the Federal Court; however, Miss O'Donoghue responded that ATSIC did not see the relevance of that point as the issue was land acquisition funding rather than land management funding. Similarly, ATSIC had informed the Finance and Public Administration Legislation Committee on 15 June 1995 that a question asking for the basis of the ATSIC Board decision could not be answered, although the correspondence of 7 June 1995 was accepted by both parties in the Federal Court as a statement of the reasons for the decision. The Committee accepts ATSIC's point that officers cannot know the reasons which motivate individual members of a collective body, but does not accept that this is a reasonable interpretation of the Finance and Public Administration Legislation Committee's request.

46 Committee Hansard 16 October 1995, p 24. 47 ibid. 48 ibid, pp 23 - 26. 49 Minutes, ATSIC Board Meeting No 34, 27-30 March 1995, Agenda No 8.2.1.

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CONCLUSIONS AND RECOMMENDATIONS

9. Conclusions

9.1 The evidence given before the Committee, and the supporting documents available to the Committee indicate that at the meeting of 16 June 1994, the proposition was put to the Prime Minister that ATSIC would continue to receive funding for land acquisition and maintenance programs for a two year period. This proposal was put to the Prime Minister first by Darryl Pearce of the Northern Territory Northern Land Council. The Committee notes that although Mr Pearce indicated that the Prime Minister did not agree to the proposal at that meeting, it was the clear view of representatives of ATSIC, the ILC and the Office of Indigenous Affairs that agreement for transitional funding was reached at that meeting.

9.2 The Committee did not receive any evidence from witnesses or in the form of written submissions that the Government and Aboriginal representatives directly expressed that the agreement meant that ATSIC would receive land fund monies which could be used to focus on the purchase of properties in the Northern Territory for claim under the ALRA prior to the expiry of claims under the 'sunset clause'. The Committee points out that while such a direct expression of purpose was not presented, the Government would have been well aware of the context in which the proposal was made and of the experience and skill of the negotiating parties. The Committee therefore finds it to be a difficult proposition that the prospect of the use of the monies and the opportunity to focus on the purchase of land in the Northern Territory would not have been apparent to Government at that time.

9.3 The Committee points out that the use of semantics (ie, when is a 'deal' a 'deal') has obscured some simple facts - that this agreement was made, and that it was clearly understood that the land acquisition and maintenance program was to continue to allow NT Aboriginal people to 'make the most of the time left under the ALRA. Though specific numbers may

not have been mentioned, the purpose of the extension was clear - to provide this opportunity. With the splitting of the land fund and the availability of other monies for the ILC, ATSIC had some room to manoeuvre, and in the result took the opportunity provided by the 'new

monies' to increase the funding of land acquisition in the Northern Territory from the amount which would otherwise have been available. This was a foreseeable event; in fact the whole structure of the Land Fund Act was set up to allow this gap. However, it is evident that some degree of misrepresentation of the Government policy and ATSIC’s capacity to determine ILC funding was given to ATSIC Board members in order to gain support, and that two appointed members, Miss O'Donoghue and Mr Ross, who could best be expected to know

Government policy, contributed to the vote that led to the decision.

9.4 It must be made clear that it is not the position of the Committee that there is anything wrong with indigenous people negotiating the best possible terms for those they represent, or that there is any objection to indigenous people in the Northern Territory taking the greatest advantage possible of the time left to claim land pursuant to the ALRA. The Committee also recognises that there are limited resources to meet these aspirations. It is, however, the view of the Committee that these facts do not lessen the obligation of ATSIC to fully consider the implications of its decisions in relation to its constituents in all parts of Australia. The decisions were made in haste; neither ATSIC nor the ILC chose to become apprised of all of the relevant facts. Even if one accepted that it was appropriate to consider the block of money available to both bodies, ATSIC could not be assured of the ILC position, given that it is an independent organisation. Protocols were yet to be developed. Similarly, the ILC had

19

allowed no time to develop a considered approach to the allocation of the funds available to it on a regional basis and in relation to land acquisition versus management, nor to analyse the request within the context of its wider responsibilities.

9.5 The Government’s position in relation to this is a source of puzzlement. During debate in Parliament, some Ministers indicated concern at the outcome of the decision. However, the Minister for Aboriginal and Torres Strait Islander Affairs, Mr Tickner, expressed support.50 Similarly, Michael Dillon, First Assistant Secretary of the Office of Indigenous Affairs, indicated that he was not at all surprised by ATSIC’s decision. Mr Dillon told the Committee:51

I suppose that I have got the option at any time of putting a note to the Minister for Aboriginal Affairs or the Prime Minister to indicate concern about one issue or another. In relation to that issue, to the best of my knowledge and recollection I did not put a note forward, nor did I have any discussions. So you can draw your own conclusion about the level of concern I felt.

9.6 The Committee is particularly concerned with the ATSIC's approach to decision making, and its accountability to all of its constituents. ATSIC's actions were patently not transparent. Efforts were not made to take into account the views, positions and needs of constituents, other than those of the Northern Territory, or to explain the rationale for a decision affecting them; on the contrary, significant efforts were made to deny access to information relating to that decision.

9.7 The Committee notes that following the Federal Court decision of August 1995, the ATSIC Board decided upon a course of action to reconsider the land acquisition funding allocations. Miss O'Donoghue and Mr Myers advised that the State Advisory Committees would be asked to reprioritise their land acquisition programs. The proposals will be considered by the Board at their meeting of November 1995.52

9.8 The Committee expresses strongly that there is no intention to abrogate ATSIC's right to make difficult decisions on matters within its area of responsibility. It is not expected that ATSIC's decisions be universally popular. However, ATSIC is not exempt from the administrative law principles of natural justice nor from the responsibility to provide accountability to its constituents, and ultimately to the people of Australia.

50 Correspondence dated 21 June 1995 from Minister for Aboriginal and Torres Strait Islander Affairs to NSW Aboriginal Land Council, Annexure 18, NSW Aboriginal Land Council Submission, 17 October 1995. 51 Committee Hansard 16 October 1995, p 43-44. 52 Committee Hansard 16 October 1995, p 8.

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Findings

9.9 In relation to the two terms of reference, the Committee finds that:

• Agreement was reached in June 1994 between the Prime Minister and indigenous representatives that ATSIC's Land Acquisition and Management Program would be extended for a two year period, during which ATSIC and the ILC would have parallel programs. The existence of any other agreements was denied by several witnesses, and

insufficient evidence was available to the Committee to substantiate or exclude their existence. Whether or not the parties directly admitted during negotiations that their agreement to extend ATSIC's land acquisition and maintenance program in the context of the establishment of the land fund would enable ATSIC to focus on the purchase of properties in the Northern Territory for claim under the ALRA, this prospect would have been apparent to Government. This understanding was believed to be common knowledge, although it was not revealed until this current inquiry.

• ATSIC did not fully consider the potential implications of its actions in relation to its constituents in all parts of Australia and failed to provide appropriate accountability and transparency in decision-making.

10. Recommendations

10.1 This report has highlighted a number of issues from which lessons could be leamt and improvements made, in particular the need to improve communication and improve accountability.

10.2 The discussions, negotiations and agreements that led to the 'Land Fund' (as referred to in the preamble to the Native Title Act) and the subsequent legislation to amend the ATSIC Act to create the Indigenous Land Corporation involved five Ministers, their offices and Departments. Specifically, the Prime Minister and the Office of Indigenous Affairs, the

Minister for Aboriginal Affairs, the Special Minister for State, the Attorney-General and the Minister for Finance were involved. Not only does this blur lines of accountability and responsibility, it has the potential to undermine consistency in Federal policy on Aboriginal land issues and on lines of communication between indigenous organisations and the Federal

Government.

10.3 The Committee recommends that:

• the Federal Government ensure that Ministerial responsibility for Aboriginal land issues be clearly identifiable, preferably with only one Minister having responsibility.

10.4 On 17 October 1995, the Minister for Aboriginal and Torres Strait Islander Affairs released proposals for reforms to the ATSIC Act, to increase ATSIC's accountability to its constituents and to the general community, primarily at the Regional Council level. Among other matters, the Minister proposes reforms to require Regional Council meetings to be open

21

to the public, except in certain circumstances similar to those in which local government meetings can be closed. The reforms would also entitle members of the public to inspect Regional Council documents such as codes of conduct, written procedures for meetings, management plans, written policy documents relating to the payment of expenses and provision of facilities to Regional Councillors and minutes of meetings.53

10.5 The Committee believes that measures for increased accountability and transparency should be extended beyond the ATSIC Regional Council level. In particular that ATSIC should have an open, transparent and formal process whereby its larger constituency is made aware of decisions that the Board meetings may be considering so that they can make their views known. This could be done either through State Advisory Committees, Regional

Councils, or letters to key constituent organisations, in order to ensure adequate notification to the wide cross-section of its constituents across Australia.

10.6 The Committee recommends that:

• the Aboriginal and Torres Strait Islander Commission Act 1989 be amended to provide measures to increase the transparency of ATSIC Board decisions and the accountability of the ATSIC Board to indigenous people and the general community.

10.7 In the period since ATSIC's establishment, approximately $100.9 million has been administered through the Land Acquisition and Maintenance Program. The Committee is concerned by evidence that it has received that indicates, at a minimum, a perception that ATSIC funding allocation decisions may be a result of the lobbying resources of various indigenous bodies. With ATSIC and the ILC entering a transitional phase, during which the ILC will be developing its national and regional land strategies, the Committee believes that an assessment of the performance of the program would be timely.

10.8 The Committee recommends that:

• the Auditor-General conduct a performance audit of the ATSIC Land Acquisition and Maintenance Program, to assess program effectiveness and to make recommendations on the operations of similar programs that will be operated by the ILC.

Senator Ian G Campbell Chairman

Minister for Aboriginal and Torres Strait Islander Affairs, Media Release, 17 October 1995.

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APPENDIX 1

COMMISSION-IN-CONFIDENCE SUBMISSION

PAPER NO: 1849

COMMISSION - IN - CONFIDENCE SUBMISSION

F IL E N O : AGENDA NO : 8- Z- l

PAPER NO ; MEETING NO :34 DATE : 28-30 March 1995

T IT L E POUCY OPTIONS FOR LAND ACQUISITION AND MAINTENANCE

PROGRAM (LAMP)

ORIGINATING OFFICE CENTRAL OFFICE

PURPOSE

COST FINYR:

TO PROVIDE POUCY OPTIONS IN RELATION TO LAMP FUNDS FOR 1995-96 AND 1996-97; AND TO AGREE UPON DECISION MAKING PROCESSES TO MANAGE THE PROGRAM AND ACHIEVE FULL EXPENDITURES DURING THIS PERIOD.

RELATED SECTIONS OF :

• THE ACT

• CORPORATE PLAN

PROGRAM / SUB-PROGRAM

ISSUES

MEDIA IMPLICATIONS (If YES please provide details in sob million).

A U T H O R IS A T IO N .

• LEGAL COMPLIANCE

• FUNDS AVAILABILITY

SECTIONS 14

OBJECTIVES 5-7 ' '

ECONOMIC COMMERCIAL THE INDIGENOUS LAND CORPORATION (ELQ IS TO BE ESTABLISHED BY 1 JULY 1995 TO ADMINISTER THE INDIGENOUS LAND FUND. ATSIC MAINTAINS ITS $21 MILLION LAND ACQUISITION AND MAINTENANCE PROGRAM (LAMP) FOR THE NEXT TWO FINANCIAL YEARS. ATSIC MUST DECIDE ITS PRIORITIES FOR ALLOCATION OF LAMP FUNDS TO BE ABLE TO NEGOTIATE WITH THE ILC IN AN OPTIMUM COMPLEMENTARY MANNER IN ACHIEVING BOTH ATSIC’S AND THE ILC’S OBJECTIVES DURING THAT PERIOD. YES

En d o r :

• ASSISTANT GENERAL MANAGER

• GENERAL M ANAGER

/ CHIEF EXECUTIVE OFFICER 'This document may contain personal information, information supplied by applicants in confidence, or other information centred by Section 90 o f the Aboriginal a n d Torres Strait Islander Commission Act 1989 or by privacy or Freedom o f Information laws. Questions concerning its disclosure should be referred to ATSIC ’s Corporate Law Section. ’

COM M ISSION-IN-CONFIDENCE

POLICY OPTIONS FOR MANAGEMENT OF THE LAND ACQUISITION AND MAINTENANCE PROGRAM fLAMPi DURING 1995-96 TO 1996-97

PURPOSE;

To seek the Board of Commissioners* approval to the adoption of a firm policy (from a range of policy options) for the management an d operations of the Tan/t Acquisition and Maintenance Program (LAMP) for the next two years (1995-96 to 1996-97) which will:- . ·

1. Recognise and respond to the establishment of the Indigenous Land Corporation (HO; -

2. Provide a consistent strategic national approach for decision-making relative to the Land Acquisition and Maintenance Program;

3. Maximise the effectiveness of LAMP funding during the two year period prior to cessation of ATSIC LAMP functions on 30 June 1997.

BACKGROUND;

General

There have been a number of issues raised about the operation of the Tanrf Acquisition and Maintenance Program (LAMP) over the years. Concerns have been expressed by Board members and in particular by Economic Portfolio Committee Commissioners regarding die effectiveness and efficiency of LAMP. There has been client dissatisfaction expressed about a lack of a strategic approach to program expenditures, particularly in relation to access, equity and transparency issues. · . ·· ' ‘ '

There has always been extensive external scrutiny and criticism of LAMP regarding past funding decisions, particularly in relation to post-acquisition management, along with misunderstanding and misinterpretation of the program’s objectives via high profile reports including: • the Media (for example, the recent article by the Australian Business Magazine) • Parliament (particularly Senate Estimates) • the Australian National Audit Office (ANAO) • the assessment of ATSIC’s Office of Evaluation

More recently, the acrimonious debate leading to the delay in passing the Tanrf Fund Bill has highlighted the importance of improving, streamlining and increasing the efficiency of the LAMP during the final two years of operation.

The Aboriginal and Torres Strait Islander Land Fond

The Aboriginal and Torres Strait Islander Land Fund established by the Commonwealth Government as the second phase of its response to the Mabo High Court Decision, to be administered by the ILC, was created by the Land Fund.and Indigenous L and C orporation (ATSIC Amendment) B ill 1994 (hereinafter referred to as the ‘Land Fund Bill* or ‘the Bill’). The Land Fund will go some way to address the long term land needs of those people without Native Title entitlements. ”

The Commission will be aware of the protracted debate throughout the Land Fund Bill deliberations both within the indigenous community and between the various parties of Parliament. These disagreements delayed the passage of die Bill but as a result of recent developments it is now anticipated that the ILC will be operational by June 1995. .

POLICY OPTIONS:

Underlying Assumptions and Principles -In developing options for the Board's consideration, the following assumptions and broad principles were considered:

1. · That the Indigenous Land Corporation (ILC) will be operational by 1 July 1995 and focussing on addressing national land acquisition needs.

The Opposition has announced that it will support the new Bill introduced by the ' Government.

2. That there be special treatment for the Northern Territory for land acquisitions from ATSIC’s LAMP, in line with discussions with Government and die restrictions of the BilL

This is die underlying rationale for die ATSIC and ILC parallel programs. The continuance of LAMP for the next two financial years is predicated upon the Section 191U of the Land Fund Bill which does not allow land purchased by the DLC in the Northern Territory (NT) to be claimed under the provisions of the A b o rig in a l L a n d Rights (Northern Territory) A c t 1 9 7 6 (hereinafter referred to as the

NT Land Rights Act). Land successfully claimed under the NT Land Rights Act is converted to inalienable freehold tide. NT land purchased by ATSIC LAMP funds during the next two years willenable NT traditional owners to convert to inalienable freehold title if they wish to.

3. That recent levels of ATSIC land management funding ($6m - $9m pa) should be increased as far as possible in order to meet increasing identified demands, and achieve the maximum level of sustainable properties by 30 June 1997.

There are urgent land management demands across Australia (which greatly outstrip available funds) and which need to be addressed during the transitional period to June 1997.

4. ATSIC only has two years in which to influence and support the long-term sustainability of the existing land base (and clearly does not have the funding to κη/WfaVc. the task in totality) and therefore a strong case exists for a far greater funding effort for land management.

5. ATSIC is concentrating on its divestment obligations as per Board policy.

ATSIC currently holds title to 53 properties of which 19 are to be retained and 34 ' are to be divested to local organisations according to a previous Commission decision.

6. That the two parallel programs of ATSIC and the ILC should be considered as far as possible as an overall allocation of $45m per annum (S21m - ATSIC and $24m - ILC), as the funds are drawn down from the Land Fund, and not as two completely independent and separate programs.

7. That any policy decisions reached by ATSIC now must be negotiated/reviewed with the ILC Board once it is operational.

ATSIC must decide on its priorities prior to die establishment of the ILC. ATSIC cannot presume to be able to influence the policy directions of die ILC Board to the extent that the new body loses its independence, however there must be a reasonable expectation that the parallel programs will run in a complementary way.

LAMP Policy Options ‘ " '

Option 1 T-aml Acquisitions in Northern Te ATSIC priority on Land Manaopr

The Northern Territory is most affected by die land fund legislation, since land acquired under the fund cannot be claimed for inalienable freehold under the NT Land Rights Act

* Quarantined ATSIC allocation lor land acquisition in the Northern Territory in 1995-96 and 1996-97.

If ATSIC funds are available for NT land purchases then ILC funds could concentrate on other land purchases throughout Australia. The issue to be considered is whether the NT will receive a special allocation (quarantined amount) . for land acquisition (unlike the other states) from ATSIC’s funds on die grounds that the ILC will not purchase land there.

Therefore the Commission must decide on the amount of funds to allocate to the NT. This could be determined based on the *historical average" in terms of purchases of traditional lands.

• Allocate the balance o f ATSIC funds fo r land management, * maintenance o f properties and resolution of the divestment program. ,

Option 2 Samp as Option 1 except *

Retain a small part of the balance for emergency land acquisitions othpr s ta tic

If the ATSIC land acquisition program allocates special funds to the NT for two years, a small portion of the balance could be retained by ATSIC for emergency acquisition purposes in die other states. This would allow special cases (outside the NT) to be considered by ATSIC independent of ILC policy for the two yean of the transition period. ' ·

It should be noted that the ILC was allocated $25 million for 1994-95 and will be allocated $24 million for 1995-96 which could be used exclusively for land acquisition upon the establishment of the ILC and completion of die national land strategy (based on regional strategies).

Outside of this retained portion, the balance of die ATSIC Program would be focussed on land management

Option 3 No quarantining of ATSIC funds for Northern Territory acquisitions ATSIC Priority on T-anri Management

Option 3 consists of no special treatment for the Northern Territory in respect of the ATSIC LAMP, and for the Commission to concentrate cm land management, and achieving maximum viability for properties by 30 June 1997. ·

This Option contains die greatest difficulties for the parallel programs, in that if ATSIC were to prioritise land management, then the NT would have very little access to historical levels of land acquisition funding. The rationale for having parallel programs is therefore lost, which is the basis of the Prime Minister's

agreement with indigenous Land Fund Bill negotiators.

Option 4 No Quarantining of ATSIC funds for Northern Territory acquisitions ATSIC Current Policy fLand Acquisition and Land Management mhrt

It is assumed in this policy option that the ILC would make few, if any, purchases in the NT because of the embargo in the Bill for claims to inalienable freehold title under the A boriginal L and R ights (Northern T erritory) A ct 1976.

This option provides that the status quo continues. This provides the maximum flexibility to ATSIC in that the Commission can respond to a range of proposals. This option however, fails to adequately consider the significant funds available to the ILC and fails to address the major concerns of improving the existing land, holdings.

Policy Option 1 as the Preferred Option

The advantages of considering the Northern Territory as a special case for two years outweigh the possible disadvantages for the following reasons:

• the Government's undertaking to indigenous negotiators not to effectively bring the A borigin al L an d Fights (Northern Territory) A c t 1 9 7 6 sunset clause ‘forward’ by preventing any section 50 claims on acquisitions under the ILC; • tiie legislative provision to run two parallel programs for two years anticipates an

ATSIC-funded Northern Territory land acquisition strategy; • other states will be able to access the land acquisition program under the proposed ILC, while the NT may not have similar access; " • ATSIC’s commitment to the traditional owner benefits available in the Northern

Territory, and the sunset clause limitation on those benefits; • the practical and political difficulties of having two different claim regimes in the NT up until 30 June 1997, if the ILC funded land acquisitions in the NT (because ATSIC had no special provision); • NT traditional owners would lose rights resulting from the rest of indigenous

people gaining access to land acquisition, which is against the purpose of the Government's response to addressing the needs of those not able to prove Native Title. .

Media Implications

1. ATSIC’s annual Land Acquisition and Maintenance Program (LAMP) has received much adverse media coverage. This has largely centred on ATSIC not providing sufficient funds for maintaining properties already acquired. 1

2. Under Option 1, ATSIC can respond positively and demonstrate its willingness to address these issues.

3. In respect of setting aside funds for land acquisition, ATSIC may well be criticised (primarily in the NT media) for its willingness to continue to purchase land claimable under the A borigin al L an d Rights (Northern Territory) A ct 1 976 runs counter to the NT Government *hgreement" with the Federal Government

4. Any criticism aimed at ATSIC for no longer purchasing land in other States can be defended by referring to the ILC’s allocation and the fact that ATSIC proposes to work closely with the ILC over the next two yean.

DECISION MAKING PROCESSES

In addition to setting a policy direction for LAMP funding over the next two yean, the Board needs to establish a consistent national approach to the processes used for program decision making. .· .

There are currently two separate and distinct processes for land acquisition and land management as outlined in the following:-Land Acquisition

Attachment A reflects an appropriate decision making process for this function of the sub program and is consistent with existing Decision making Principles which require all land acquisition proposals to be endorsed by the Board. Briefly the process is outlined in the fallowing:-.

1. Applications for land acquisition are received and assessed by the Regional Office. · ·

2. Regional Council checks that the proposal is in keeping with their Regional Plan . and endorses the application. Regional Council also prioritises all applications for land acquisitions.

3. Regional Office collates applications and forwards a prioritised list to State Office for referral to the State Advisory Committee (SAC).

4. The SAC establishes a state-wide priority list of acquisition proposals for consideration by the Board (through Central Office).

5. Central Office provides the Board with a nation wide list of applications by state with individual state priorities.

6. The Board of Commissioners prioritise applications on a national baas and makes decisions on allocations.

7. Regional Offices are advised of the Board's decisions to enable the proposal to proceed to formal approval and acquisition stage.

8. Central Office will transfer funds to the relevant cost centre.

9. The appropriate delegate approves the application.

10. Regional Office prepares Letter of Offer, Purposes Agreement and Special Conditions (if appropriate) in consultation with Commercial Law.

11. Commercial Law provides advise on the contract for purchase.

12. Central Office updates the land acquisition data base.

Land Management .

Hie Board of Commissioners decides upon state allocations for Land Management

Current policy has enabled Land Management expenditures to be managed, under delegation, at the State leveL

τ anH Management decision making processes are similar to Land Acquisition, however, the Board should note that there is an important difference in the process. Attachment B reflects an appropriate decision making process and is consistent with a policy of allowing each state to manage their own needs.

In land acquisition it is proposed that the SAC be used to prioritise land acquisition bids, whereas in the land management process it is proposed to use the State Manager and Commissioners to prioritise land management bids for each state.

The reason for the difference in the two processes, relates to (i) the timing of SAC meetings 00 the inherently different nature of land management giants (many of which are for relatively small amounts) (Hi) the recurrent nature of many land management proposals and (iv) the need to maintain a high degree of flexibility in program expenditures (without the need to refer every proposal to the Board and/or

the full SAC meeting. '

1. Applications for land management are received.

2. The application is assessed by the Regional Office

3. Regional Council checks that the proposal is in keeping with their Regional Plan and endorses the application. Regional Council also prioritises all applications for land management

4. Regional Office collates applications and forwards a prioritised list to State Office. ·

5. The State Manager, in consultation with State Commissioners, compiles a state wide prioritised list and under delegation .

6. Central Office provides the Board with decision support information on the level of demand from each state

7. The Board decides upon state allocations.

8. Central Office transfers funds to State Office Costs Centres.

9. Individual applications are approved by the appropriate Hi-Vganv

lO.Ccntral Office updates the land management database.

FUTURE COURSE OF ACTON:

It is proposed that at future Board meetings consideration be given to: • identifying appropriate land acquisition and land management program mix funding; . .

• developing a negotiating position in respect of the ILC; • agreeing upon LAMP Program Guidelines and Procedural Policy; • providing a draft document with respective roles and the elements to be contained within any protocol between ATSIC and the ILC.

RECOMMENDATION:

It is recommended that the Board;

SUPPORT policy option one for LAMP expenditure and priorities for the next two financial years;

NOTE the future course of action outlined in this paper;

ENDORSE the Land Acquisition decision making process as reflected in Attachment A; and

ENDORSE the Land Management decision making process as reflected in Attachment B.

A T T A C H M E N T A

LAND ACQUISITION - DECISION MAKING PROCESS

APPLICATION RECEIVED (On standard application form)

REGIONAL OFFICE A ssesses sppEcation end organisation eBgiBSty Not eligible

. 1

REGIONAL COUNCIL REGIONAL OFFICE

W rites to organisation If

-regional planning not eligible

-prieritiee

REGIONAL OFFICE C olatas applications and forw ards to SO

STATE OFFICE The 1st of SAC prioritised bids

Compiles s ta te priority Set ----------- m u st Include a brief project

through SAC description.

Properties P urchased for econom ic purp o ses m ust have e positive feas&illty stu d y .

If acquisition is for traditional or social/cultural purposes, consideration m ust be given to fu tu re funding needs and th e souree(s) of th o se funds.

CENTRAL OFFICE Policy A ssessm ent. Collate figtees for Board

▼

BOARD OF COMMISSIONERS Allocations No Allocation

REGIONAL OFFICE A dvises organisations of outcom e

. A llo c a tio n

REGIONAL OFFICE Valuation M anagem ent/Dev Plan PansihSSyy fitiiriy

Purchase price m ust be " w ithin 10% valuation

REGIONAL OFFICE LOA

| Purposes A greem ent etc.

DELEGATE

(Appropriate delegate for approval)

COMMERCIAL LAW Contract Purposes Agreem ent Special Conditions

CENTRAL OFFICE - D atabase updated

DELEGATIONS

DRM » BOK

RM * BOOK

ASM 1 BOOK

DSM SM

* 7 BOK

AGM S2000K

GM MOOOK

DCEO * No Emit

9 /0 3 /9 6 2 :1 6 PM LACLXLS

A T T A C H M EN T B

LAND MANAGEMENT - DECISION MAKING PROCESS

Not OK

(State Office determ ines ipnorities for allocetion Ilo regions/projects (within s te le .

DELEGATE

(Appropriate delegate for final approval) Not funded

τψ Approved

REGIONAL OFFICE Collates application* and forward* to SO

CENTRAL OFFICE Transfers funds to State Office

CENTRAL OFFICE Policy A ssessm ent. Co la ta figures for Board

prioritised l e t of bide with S u e s Commissioners.

STATE OFFICE

CENTRAL OFFICE - D atabase updated

REGIONAL COUNOL

-regions! planning

COMMISSIONERS BOARD OF

REGIONAL OFFICE W rites to organisation If not eligible

REGIONAL OFFICE A ssesses application end organisation eligibility

APPLICATION RECEIVED (On stsndord application form)

A dvises organisations of REGIONAL OFFICE outcom e

The Bet of bids from State O ffice m ust include a brief project description.

8 /0 3 /9 5 2 :1 4 PM LAM.XLS

-

APPENDIX 2

SUBMISSIONS

NO PERSON/ORGANISATION

CLF. 1 Rosemary O'Grady

CLF.2 Northern Land Council and Central Land Council

CLF. 3 New South Wales Aboriginal Land Council

CLF.4 Foundation for Aboriginal and Islander Research Action (FAIRA), Queensland

CLF . 5 Department of the Chief Minister, Northern Territory

CLF. 6 Mirimbiak Nations Aboriginal Corporation, Victoria

CLF. 7 New South Wales Aboriginal Land Council - Supplementary

CLF.8 New South Wales Aboriginal Land Council - Supplementary

CLF. 9 Rosemary O'Grady - Supplementary

CLF. 10 Northern Land Council

CLF. 11 Aboriginal and Torres Strait Islander Commission

CLF. 12 Kimberley Land Council

CLF. 13 Aboriginal and Torres Strait Islander Commission - Supplementary

APPENDIX 3

PUBLIC HEARINGS AND WITNESSES

1. MONDAY 16 OCTOBER 1995, CANBERRA

Aboriginal and Torres Strait Islander Commission Miss Lois O'Donoghue, Chairperson Ms Patricia Turner, Chief Executive Officer Mr Glenn Rees, Deputy Chief Executive Officer Mr Ronald Morony, General Manager Economic Division Mr Ian Myers, Assistant General Manager Commercial Branch Mr Robert Goodrick, Assistant General Manager Legal Branch Mr Russ Taylor, Section Head of the Land Acquisition and Mangement Section in

March 1995; currently Deputy State Manager Northern Territory Mr Vince Noviello, Senior Officer Land Acquisition and Management Section in March 1995; currently Acting Manager Land Acquisition and Management Section Mr Wayne Pash, Senior Officer Land Acquisition and Management Section in March

1995; currently on loan to the Indigenous Land Corporation

Indigenous Land Corporation Mr David Ross, Chairperson Mr John Wilson, Interim General Manager Ms Rosemary Crowley, Legal Adviser

Office of Indigenous Affairs Mr Michael Dillon, First Assistant Secretary Mr John van Beurden, Senior Advisor, Indigenous Policy Branch Ms Caroline Edwards, Advisor, Legal Section

2. TUESDAY 17 OCTOBER 1995, CANBERRA

FAIRA Aboriginal Corporation / Qld Federation of Land Councils Mr Les Malezer, General Manager, FAIRA

Northern Land Council and Central Land Council Mr Darryl Pearce, Director, Northern Land Council Mr Leigh (Tracker) Tilmouth, Director, Central Land Council Mr John Roberts, Senior Policy Officer, Northern Land Council

APPENDIX 4

ATTENDEES AT MEETING WITH THE PRIME MINISTER TO DISCUSS THE DRAFT LAND FUND BILL - 16 JUNE 1994

Lois O'Donoghue David Ross ATSIC

Darryl Pearce Northern Land Council

Tracker Tilmouth Central Land Council

Peter Yu Kimberley Land Council

Noel Pearson Cape York Land Council

Sandra Saunders Gwen Owens SA Aboriginal Legal Rights Movement

Joseph Elu ATSIC Commissioner for the Torres Strait

Herb Pettit Victorian Aboriginal Legal Service

Michael Mansell Tasmanian Aboriginal Centre

Aden Ridgeway NSW Aboriginal Land Council

John Christopherson ABTA Advisory Committee

Patrick Dodson Council for Aboriginal Reconciliation

Mick Dodson Aboriginal and Torres Strait Islander Social Justice Commissioner

Robert Tickner Minister for Aboriginal and Torres Strait Islander Affairs

Simon Balderstone Senior Advisor to the Prime Minister

Greg Wood Deputy Secretary, PM&C

Mike Dillon First Assistant Secretary Office of Indigenous Affairs, PM&C

Patricia Turner Chief Executive Officer, ATSIC

Senate Select Committee on Certain Land Fund Matters - Minority Report

- MINORITY REPORT -

The terms of reference for this inquiry have their origins in the continuing politics of the debate over the Native Title Act and the Land Fund legislation; in the differing ideological views on models of indigenous representation (ie those who support the

ATSIC model and those who don't); and in Aboriginal politics: in the rivalry between established land councils with responsibility for "traditional" lands and urban based land councils in States and Territories where most land has been alienated.

These political considerations were illustrated in the Senate well prior to the setting up of this Select Committee by both Senator Chamarette and Senator Ian Campbell.

Senator Chamarette:

“Does this not confirm the fears 1 expressed at the time o f the passage o f the Land Fund Bill that the Government and ATSIC had made a deal with Aboriginal people in the Northern Territory that they would get the lion's share o f the money available through

ATSIC in exchange fo r support fo r the Land Fund Bill? ” 1

Senator Ian Campbell:

“The Government’s deception and the corruption o f this process...

We believe based on the ATSIC minute that was tabled in this place by me, that there was some sort o f deal.

We do not suspect that this deal was done at a meeting o f eight or 10 Aboriginal negotiators last year in June.

... they have had their dispossession further entrenched because o f a grubby little deal done by this grubby Prime Minister.... ” 2

The writers of this dissenting report have a significant disagreement with the majority report particularly in its selectivity of evidence in dogged pursuit of a negative finding despite the fact that all relevant witnesses from ATSIC, PM&C, the ILC and Land Councils represented vehemently denied the existence of any agreements arising from negotiations on the N.T. Act or the Land Fund Bill.

1 Senate Hansard Thursday 11 May 1995, pp.301-302 2 Senate Hansard Monday 5 June 1995, pp.792-797

Page 1

Senate Select Committee on Certain Land Fund Matters - Minority Report

It is quite ludicrous to say as the majority report does at 7.1 "that insufficient evidence was available to the Committee to substantiate or exclude their existence."3

The fact is that the Committee had the opportunity to call all relevant witnesses; the fact is that this line of inquiry and these allegations have already been pursued through

• Questions to Ministers; .

• a Senate motion to censure Ministers Gareth Evans and Bob Collins; • extensive questioning of ATSIC and Departmental officers at consecutive Estimates Committee hearings; • considerations of the Legislation Committee; • debate on a return to order resolution; and finally • this Select Committee of the Senate.

During these various proceedings copious amounts of information have been made available and all relevant ATSIC officers have appeared before the various Senate Committees.

Independent of these proceedings the decision of ATSIC in relation to the allocation of funds to the Northern Territory from the Land Acquisition and Maintenance Program (LAMP) was successfully appealed in the Federal Court by the NSW Land Council; the Tasmanian Aboriginal Centre Inc.; and the Foundation of Aboriginal and Islander Research and Action (FAIRA) Aboriginal Corporation.

ATSIC resolved not to appeal that decision and to revisit their original funding decision.

Despite the effective overturn of the ATSIC decision through the appropriate channels, a majority of the Senate resolved to establish the current inquiry on the motion of Senator Chamarette rather than wait for ATSIC's response.

The Senate majority chose to ignore the statutory role of the Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund. It instead established a Select Committee with the composition of 3 Liberals, 1 Green, 1 Democrat and 2 Labor Senators. This ensured that those who had supported the allegations of “other deals” had a majority on the Committee.

Following the conclusion of the public hearings, the Committee sought further responses in writing from the ATSIC officers. The replies established there was no wrongdoing on their part.

Term of Reference (A)

“ in the light of the Federal Court decision of 30th August 1995 which set aside the ATSIC Board decision of March 1995 ‘that in all the circumstances was so

3 Report of the Senate Select Committee on Certain Land Fund Matters, p. 8

Page 2

Senate Select Committee on Certain Land Fund Matters - Minority Report

unreasonable that no reasonable decision maker could come to it,’ to examine the process which led to that decision.”

(i) The Federal Court found that the decision of ATSIC should be overturned. The Court found in part that in failing to consider all applications for grants for land purchase ATSIC had not complied with the processes required of it.

This finding is obviously central to any examination of the decision making process.

We do not intend to further review or provide commentary on the Court decision.

(ii) Notwithstanding point (i) the Committee received evidence of decision making behaviour consistent with the ATSIC Board's function as a democratic political institution.

Those seeking access to land grants for the Northern Territory argued and lobbied strongly in support of their case. They pursued policy development and negotiation strategies that appear quite unremarkable.

In the same way as it is impossible to reach conclusions about why members of Parliament vote as they do, it is similarly impossible to reach conclusions about or impute the motives to the Board members in reaching their decision. It is enough to record that the Board was clearly divided and a decision was only made on the casting vote of the Chairperson, as is her right.

The decision was very much one made by the Board and not the ATSIC officers. The officers' advice was used to commence discussion but the decision was one clearly made by the Board after serious debate.

It is appropriate that Board decisions be subject to some form of administrative review process and the strength of that system was demonstrated on this occasion.

(iii) Despite the appeal by essentially urban based land organisations, there exists a strongly held view among some Aboriginal people that the policy represented by the ATSIC decision was in the best interests of Aboriginal people.

Mr David Ross in evidence to the Committee continued to support the position that had been adopted.

“The opportunity fo r Aboriginal people to have the best form o f title that they will ever get in this country is available only for a short period o f time. The opportunity for people to go fo r that rather than something less is much more important than what may have been said by anyone else " 4

4 Senate Select Committee on Certain Land Fund Matters Hansard Monday 16 October 1995 Canberra p. 36

Page 3

Senate Select Committee on Certain Land Fund Matters - Minority Report

The failure to continue ATSIC land acquisition would have effectively arbitrarily brought forward by two years the cut off of funding for purchases of land under the Northern Territory Land Rights legislation.

In these circumstances it is not difficult to appreciate the strong views of those who represent Northern Territory Aboriginal people.

Not only is theirs a legitimate view but their constituents could have rightly been critical if they had not pursued with vigour the outcome that they did.

One does not need conspiracy theories to explain their actions.

It is no different from the expectations any constitutents have of their representatives in other elected parliaments in this country.

(iv) There has been a concentration on the issue of what the ATSIC allocation to the Northern Territory represents in percentage terms of the total land acquisition and management funds available in Australia.

We note that vastly different results can be obtained depending upon the assumptions used.

It is worth noting, however, that the ATSIC decision was taken within the context of total ATSIC and ILC funding and that ATSIC sought to ensure ILC funds did not result in the Northern Territory receiving more than was considered appropriate.

Conclusion

We conclude that:

1. The ATSIC Board reached its decision after exercising the democratic processes that are provided for it in the governing legislation.

2. The Federal Court decision found that the process had not met the administrative processes required.

3. While there may be some merit in examining issues relating to access to ATSIC Board decisions we believe no good purpose would be served by yet another report on ATSIC when there have been so many - See Attachment A.

In fact, since its inception, ATSIC has probably been the most closely scrutinised body in existence.

Page 4

Senate Select Committee on Certain Land Fund Matters - Minority Report

Term of Reference B

“Whether there were any agreements between the Government, ATSIC, and/or Aboriginal people arising from negotiations on the Native Title Act or the Land Fund Bill.”

As stated earlier this term of reference provided the opportunity to investigate the claims that “other agreements” existed between the Government and certain Aboriginal people.

(i) There was no evidence presented to the Select Committee to support any allegation that other agreements or deals existed between the various interest groups.

In fact all relevant witnesses from ATSIC, PM &C, the ILC and Land Councils vehemently denied the existence o f any other agreements.

Evidence was provided by all relevant witnesses that a consensus emerged following discussion at a meeting between the Prime Minister and Aboriginal representatives in June 1994.

The Prime Minister agreed at that meeting to give favourable consideration to a proposal advanced by Darryl Pearce that ATSIC continue to conduct a Land Acquisition program for a transitional period. That suggestion was incorporated into the Bill following Cabinet approval.

(ii) The NSW Land Council led the opposition to the ATSIC decision and successfully appealed that decision in the Federal Court. In arguing its appeal the NSW Land Council did not seek to establish that an agreement existed and rather submitted that there was no agreement.5

In its final submission to the Committee the NSW Land Council focused on its concern at the decision making processes within ATSIC and what it viewed as the potential for inappropriate influence to be applied to ATSIC officers.

(iii) The Federal Court in its decision found:

“what was sought to be done by ATSIC was to get around, with the anticipated assistance o f the Indigenous Land Corporation, the policy which the Prime Minister had enunciated in the speech to which I referred earlier and which had led to the enactment o f

Section 191 U o f the ATSIC Act. ...

5 Federal Court Transcript 22 August 1995 pp. 41-42

Page 5

Senate Select Committee on Certain Land Fund Matters - Minority Report

[ATSIC] embarked upon a course which would ensure that this policy would, at least to the extent o f some $10 million allocated, be frustrated”. 6

The Court in part relied on the view that ATSIC had acted contrary to Government policy in determining to overturn the ATSIC decision.

A conclusion that cannot also sustain any suggestion of other agreements existing with Government.

The key relevant evidence presented to the Committee was:

(a) all parties denied that any other agreement or deals existed;

(b) no witnesses made any such allegation to the Committee;

(c) the evidence o f relevant witnesses provided a consistent and plausible explanation of events;

(d) the leading critic of the ATSIC decision did not support the proposition that other agreements had existed; and

(e) the Federal Court made findings that ATSIC acted contrary to Government policy.

In the light of this evidence any fair minded person would expect the Committee to conclude that no other agreements between the parties existed.

The majority of the Committee refused to make such a finding but rather sought to continue to justify the allegations that they had made.

We, as the Senators who constitute the minority on the Committee, found this totally unacceptable and were therefore obliged to write this minority report.

Our findings are as follows:

Finding 1

“ There were no other agreements between the Government, ATSIC and/or Aboriginal people beyond what emerged from the meeting between the Prime Minister and Aboriginal representatives in June 1994.”

6 Federal Court Judgment 672/95 30 August 1995 pp. 45-46

Page 6

Senate Select Committee on Certain Land Fund Matters - Minority Report

Finding 2

(i) ATSIC failed to follow an adequate decision making process in coming to its decision as found by the Federal Court decision of 30 August 1995.

(ii) otherwise the process was consistent with that observed in other democratically elected bodies dealing with political issues.

In conclusion we would like to concur with the evidence of the Chairperson of ATSIC, Miss Lois O’Donoghue:

"My view, o f course, is that this is an ATSIC bashing exercise, and the sooner we get this behind us - 1 mean, how many more times do we have to answer the same questions before it is really dead? We have had a Court decision. We are getting on with the job and we are not going to appeal it. Even though we are dissatisfied with it, we are getting on with the job. We will be taking into account the priorities that will come back to us and I think we should be

allowed to get on and do that. The job is hard enough. ” 7

Senator Chris Evans wishes his name to be associated with this minority report.

Senator Bruce Childs Senator Cheryl Kernot

ALP Senator for New South Wales Leader of the Australian Democrats

7 Senate Select Committee on Certain Land Fund Matters Hansard Monday 16 October 1995 Canberra p.14

Page 7

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Attachment Η

A ustralian N ational A u dit Office

• Audit Report No. 5 1990-91 - Report on Ministerial Portfolios: budget Sittings 1990 - this dealt with the Registrar of Aboriginal Corporations and the Aboriginals Benefit Trust.

• Audit Report No. 12 1990-91 - Aboriginal and Tones Strait Islander Commission: Community Development Employment Projects.

• Audit Report No, 22 - Aggregate and Departmental Financial Statements 1989-90 - also related to the CDEP.

• Audit.Report No. 7, 1992-92 -Report on Ministerial Portfolios - budget Sittings 1991 - this report commented, among other things, on the operations of ATSIC and dealt with qualifications to the Audit Certificate on the Commission's 1989-90 financial statements relating to CDEP (Community Development Employment Project) participant eligibility and assets transferred from the former Department of Aboriginal Affairs, problems in grant administration and problems associated with the Commission's financial systems and associated month-end reconciliations. It also addressed issues relating to the operations of the Aboriginal Benefits Trust Account

• Audit Report No. 22 - Report on Ministerial Portfolios - Autumn Sittings 1992 - this ANAO report also dealt with ATSIC, among other things.

• Aboriginal and Torres Strait Islander Commission - Personnel Management (published during 1992-93 financial year)

• The Auditor-General Report ;No. 15, Aboriginal and Torres Strait Islander Commission - Regional Administration (published during the 1992-93 financial year)

• Audit Report No.24 1994-95 - tabled in Parliament in March 1995

• Community Development Employment Projects Scheme, Aboriginal and Torres Strait Islander Commission, published by the ANAO in 1995.

H ouse o f R epresentatives S tan din g Committee on A boriginal a n d Torres S tra it b la n d e r

A ffairs

• Review of the Auditor-General's report No. 12, 1990-91, Aboriginal and Torres Strait Islander Commission Community Development Employment Projects.

• Review of the Auditor-General's Audit Report No.20 1992-93; Efficiency Audit of the Northern Land Council - tabled in Parliament in May 1994;

• Review of the Auditor-General's Report No.36, 1992-93: Aboriginal and Torres Strait Islander Commission: Community Infrastructure ... community development employment Projects - published in 1994.

O ther

• The National Aboriginal Health Strategy: An evaluation - national Aboriginal Health Strategy Evaluation Committee, 1994

Reviews for and by ATSIC include:

• Review of the Operation of the Aboriginal and Torres Strait Islander Commission Act 1989 These reviews are conducted by ATSIC under section 29 of the Act:

• Review of the Operation of the Aboriginal and Torres Strait Islander Commission Act 1989: interim report: proposals for technical amendments which can be implemented for the next round of Regional Council and Zone elections - published in 1992.

• A report on the Operations of the Act was also made to the Minister for Aboriginal and Torres Strait Islander Affairs in 1993.

• No reverse Gear: a National Review of the Community Development Employment Projects. Scheme - by Deloitte Touche Tohamsu, published by ATSIC in 1993

■

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T H E PARLIAM ENT O F T H E COM M ON W EALTH O F AU STRALIA

PARLIAMENTARY PAPER No 346 of 1995 O R D E R E D T O BE PR IN TE D

ISSN 072 7 -4 1 8 1