In June 2015, the Australian Government released its first ever White Paper on developing northern Australia.  It states: a strong north means a strong nation. Included in it are 2, 5, 10 and 20 year implementation plans.  The paper provides that the Commonwealth Government will address challenges to development by:

Making it easier to use natural assets, in close consultation with, and the support of, Indigenous communities:

• Providing a more welcoming investment environment;
• Investing in infrastructure to lower business and household costs;
• Reducing barriers to employing people; and
• Improving governance.

It also states that the Commonwealth will work with the Indigenous communities to simplify and modernise land arrangements in the north.  It recognises that native title is of importance to northern Australia and that the majority of native title determinations are in the country’s north.

It recognises that there is strong support in the north to try new ways of using land to promote economic opportunity and refers to a native title regime that has a greater focus on economic opportunity for indigenous Australians.

The Government will invest $10.6M to support pilot land projects in partnership between business and    indigenous Australians to provide simpler and more efficient ways to investing. The project will focus on economic development and home ownership.  It includes that “this White Paper, with its 20 year horizon, looks forward to when native title holders can fully participate in developing the north”.

The Government “aspires to have all current native title claims finalised within a decade”. It suggests that native title should not be seen as a barrier to development, but essential to it. Without providing any ready answers, it suggests that all parties are seeking better ways to leverage native title to develop the north. The Government also says that it will consider options to make processes to do with native title more efficient and transparent, while protecting indigenous interests.

It states that the Commonwealth Government will provide $20.4M to better support to native title holders including direct funding for native title corporations. One of the aims is to ensure PBCs move “beyond basic compliance to active engagement in development”. It suggests that more effective native title corporations would create more certainty for investors and traditional owners, lower transaction costs and speed up agreement making.

The White Paper says that the Government will progress options to support the use of exclusive native title rights for commercial purposes.  There is an aim to assist indigenous landowners, to create, on a voluntary basis, transferrable interests that can be used to support commercial loans, without extinguishing native title. That is currently possible without changes to the Native Title Act.  It would rely on the non-extinguishment principle that automatically applies to native title decisions under indigenous land use agreements. Of course, as ILUAs are entered into on a voluntary basis by native title holders, the ILUAs must offer enough to be attractive to enter.

One example of what the Government is suggesting may be to consent to the grant of long term leasing of native title land to indigenous corporations or ventures that include substantial indigenous ownership.

The ideas set out in the White Paper do not appear to be new or revolutionary. Rather, they appear to be a summary of what many Aboriginal and Torres Strait Islander groups have been saying for a long time. What is new is that the statement is coming from the highest level in Canberra.

Importantly, the White Paper includes the observation that if the history of northern development teaches us one thing, it is that business and governments should stick to what they do best.

Government’s role is to create successful business environments, not successful business. This is best achieved through prudent economic policies, the right infrastructure to get things moving, regulation that minimises costs on business, a workforce with the right skills, and basic research necessary for business to identify opportunities in the north.

Native title holders would be well advised to insist on having well-functioning PBCs to represent them in negotiations for any ILUAs to ensure that they get a good deal that no only looks good now, but will stand the test of time and look good in several decades time.  Unusually, the Government’s proposal to strengthen PBCs appears to be timely and essential if the aspirations stated in the White Paper are going to be achieved.

Published 1 September 2015.