Economic development And native title
Economic development—the economic decisions and actions that improve areas such as health, housing, education and other societal structures—is an important part of Indigenous nation building. In Australia, there are a range of views on the barriers to economic development, and the relationship between economic development activities, native title and other sources of land rights.
Recognition of native title rights
Specific native title rights are recognised on a case by case basis. While native title does offer benefits to Traditional Owners—including the right to live on the land, hunt, fish and engage in ceremonial activities, and even exclusive possession of an area—there are different views on the extent to which these rights create opportunities for economic development.
Native title agreements can lead to commercial arrangements and economic development activities. For example, both Indigenous Land Use Agreements and Future Act Agreements can be made specifically in relation to mining activities and the use of farmland. As AIATSIS explains, there may also be other development and commercial opportunities for native title holders and Prescribed Body Corporates (PBCs).
Prescribed Body Corporates (PBCs) +
When native title rights and interests have been recognised, the Native Title Act 1993 (Cth) requires native title holders to establish a corporation known as a Prescribed Body Corporate (PBC).
Once the corporation is approved by the court, it is entered onto the National Native Title Register as the 'Registered Native Title Body Corporate' or RNTBC. Search for RNTBCs using the map search.
According the PBC website, PBCs represent native title holders and have legal obligations to manage and protect their native title rights and interests. A PBC's role may also involve holding money in trust (such as from compensation or mining agreements), agreement negotiation, monitoring and implementation, and supporting community development activities.
Detailed information and resources for PBCs are available on the PBC website.
Limitations of native title +
Outlining the limitations of native title, Neva Collings explains that there is a range of activities that are not necessarily available to Traditional Owners, even where native title has been recognised:
'[C]arbon credits, bio-banking, geo-sequestration, bio-mass power generation and wildfire management all provide opportunities for Aboriginal people. [...] The stumbling block is that exclusive possession and legal title to land is required to enter into commercial agreements, and to reap economic benefits. This is not always the case with native title where a bundle of rights approach means traditional owners may only be granted limited access to their traditional lands.'
– Neva Collings, 'Native title, economic development and the environment'
Lily O’Neill expands on this, noting the particular limitations of the law governing negotiations between Traditional Owners and resource companies:
‘[A]lmost no land owners in Australia own the minerals that are beneath the surface of their land. [...] When mining or petroleum companies want to access native title land, they must follow the procedures set out in the Native Title Act. This says that the native title party has the “right to negotiate” an agreement with the resource company. That’s not a right to stop the development, nor the right to reach an agreement, just the right to negotiate.’
– Lily O’Neill, ‘Marcia Langton’s “quiet revolution” and what you don’t hear about James Price Point’
The case law on Traditional Owners' commercial rights to resources continues to develop.
By contrast, the National Native Title Council (NNTC) argues that bureaucracy and government legislation may actually be greater barriers to economic development for Traditional Owners than the limitations of native title:
‘[T]he NNTC is of the view that the main impediment to achieving [economic development] outcomes is in fact the barriers created by the bureaucratic and legislative mechanisms in various Government jurisdictions. Such barriers also impede Traditional Owners from realising the potential of their land and from taking their place in the economy.’
According to the NNTC, removing these barriers to allow for economic development activities—such as the sustainable harvest of natural resources—‘will have a significant and positive impact on the ability of Traditional Owners to fully and effectively engage in economic development activities’.
Native title and the 2013 tax law amendments +
In 2013, new legislation was introduced that applied to the way native title benefits were taxed. As the National Native Title Tribunal explains, this legislation established that payments received in relation to native title rights are not subject to tax, including capital gains tax.
Read more +
- Leveraging from Property Rights – National Native Title Council.
- The National Native Title Council's submission: Exposure Draft Materials to Provide Clarity on the Tax Treatment of Native Title Benefits Joint Submission.
- Access resources by AIATSIS for PBCs and managing native title.
- Read about economic development news and programs on the Australian Government's National Indigenous Australians Agency website.
- Read ATNS publications about native title, agreements and economic development.
- Where native title has been extinguished, compensation may be available.
References and acknowledgements +
Cited on this page:
- Collings, N., 2009. 'Native title, economic development and the environment'. Australian Law Reform Commission Reform Journal 45.
- Lily O’Neill, ‘Marcia Langton’s “quiet revolution” and what you don’t hear about James Price Point’, The Conversation, December 12, 2012.