Submission to the Ernst & Young Review of

Indigenous Land Corporation and Indigenous Business Australia

24 January 2014

Executive Summary:

QSNTS provides a submission to the review of Indigenous Land Corporation (ILC) and Indigenous Business

Australia (IBA) and in doing so has made a number of contextual observations and recommendations against the

Terms of Reference. These observations are that, first and foremost, effective capacity development for sustainable

Indigenous outcomes is a multi-dimensional concept. A whole-of-system approach must be taken, building the

capacity of individuals and entities within the operating environment as well as the key institutions shaping the

environment itself.

QSNTS’s second observation is the centrality of traditional land and waters to addressing Indigenous disadvantage.

The recognition and protection of traditional land and waters is fundamental to Indigenous economic and capacity

development. For this reason native title is central to the objectives of both the ILC and IBA, which leads to the third

observation: there is a necessity for greater coordination of Indigenous services and programs. The link between

traditional land waters and economic opportunity is vital to sustainable positive outcomes, and as such Traditional

Owner corporations (Prescribed Bodies Corporate and Registered Native Title Bodies Corporate – ‘PBCs’) need the

appropriate funding and support to carry out their community representative statutory and economic functions.

The fourth observation outlined in this submission notes the synergistic power of partnerships. To best leverage the

budget afforded to Indigenous affairs, the ILC, IBA and native title organisations need to work closely with PBCs as

conduits to Indigenous communities. QSNTS is wholly in favour of the streamlining of processes, and notes in its

fifth observation that this principle should extend to all elements of Indigenous policy, programme and services for the

shared and sole objective of delivering tangible, sustainable outcomes for Indigenous Australia.

Recommendations:

A restructure of existing entities so that the IBA forms another of ILC’s subsidiaries, with an expanded Board to provide overarching strategic stewardship.

Stronger partnership building between ILC, IBA, native title organisations and PBCs focussed on providing the appropriate support for Traditional Owner corporations.

Apposite consideration be given to the recent Deloitte Access Economics Review of Native Title Organisations in evaluating the results of the review into the ILC and IBA.

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1. Queensland South Native Title Services Ltd (QSNTS) is a native title service provider pursuant to s203FE of the

Native Title Act 1993 (Cth). QSNTS is a company limited by guarantee and is incorporated under the

Corporations Act 2001. The Company comprises of five ordinary members and six directors. The Board is

appointed pursuant to specific professional qualifications and experience enshrined in the organisation’s

constitution1.

2. As detailed in its submission to the Deloitte review of native title organisations2, QSNTS is the product of an

operational amalgamation. QSNTS was incorporated on 2 June 2005 to assume the statutory functions of the

de-recognised Queensland South Representative Body Aboriginal Corporation. On 1 July 2008, QSNTS’s

operational boundaries were extended to include the entire region of Gurang Land Council Aboriginal

Corporation and the majority of the Carpentaria Land Council Aboriginal Corporation region. At the time of the

amalgamation, there were no determinations of native title in the regions or claim-related Indigenous Land Use

Agreements (ILUAs). QSNTS inherited 36 native title claims, claim overlap issues, and a dearth of connection

evidence to prosecute the claims.

3. In the immediate post-amalgamation phase, QSNTS committed to an evidence-based business model of service

delivery, allocating resources and multi-disciplinary case management teams to all registered claims. Through

developing and adhering to its business model, QSNTS has produced 5 consent determinations to date (and a

significant number of ILUAs) in a region where there were concerns about whether native title could ever be

recognised. In short, the successes of QSNTS’s business model illustrate that inherited and logistical issues of

amalgamation are not always an impediment to achieving positive outcomes for clients.

4. QSNTS is of the view that native title is a continuum and as such it is important to provide services to Traditional

Owner groups along that continuum, including preparation for the long-term management of native title.

Consequently, QSNTS has recently established a PBC3 support programme. Both the Indigenous Land

Corporation (ILC) and Indigenous Business Australia (IBA) are key stakeholders in the delivery of services along

this continuum, in both the settlement of native title claims and more importantly in the maximising of native title

outcomes once those rights and interests are formally recognised by the Federal Court. As the resolution of

claims progresses, the focus of native title service delivery will by necessity shift towards the establishment and

1 A Public Company Limited by Guarantee, Constitution of Queensland South Native Title Services, s5.

2 Deloitte Access Economics Review of Native Title Organisations (2013). Queensland South Native Title Services Submission, 16 October 2013, pp3-5.

3 Prescribed Bodies Corporate, which collectively also refers to Registered Native Title Bodies Corporate: the legal bodies established to hold and manage native title for the Traditional Owners recognised through the Federal Court.

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support of PBCs - a bourgeoning sector in which the IBA and ILC are critical players in a shared vision of self-

determined Indigenous economic independence, land ownership and land management.

5. QSNTS notes that this review was announced on 2 December 2013 with a closing date for submissions of 24

January 2014 – notwithstanding the Christmas and New Year period. Considering also that there was no

discussion paper provided for a contextual analysis of the review, QSNTS is compelled to provide its own

contextual observations as follows before making substantive submissions on the Terms of Reference:

Observation 1: Effective capacity development for sustainable Indigenous outcomes is a multi-dimensional

concept.

6. International case studies examining the economic development of Indigenous peoples demonstrably reinforce

the criticality of building capacity of three different dimensions4 to achieve sustainable outcomes: the

environment; the entity; and the individual:

i. The enabling environment5 encapsulates a range of elements, such as the statutory and/or regulatory

framework, the broader community of Traditional Owners, as well as the relevant organisations regulating

those bodies and/or engaging in governmental, not-for-profit and private services. These interlinking entities

and structures form the environment in which entities and individuals operate and includes Native Title

Representative Bodies and Service Providers, the ILC and IBA;

ii. The entity in this context is the PBC, the legal body which holds native title; and

iii. The individual is, self-explanatorily, an individual Traditional Owner.

7. Academic literature and empirical data, most prominently the findings of the Harvard Project6, confirms that

unless capacity is developed concurrently across each dimension in a coordinated manner, good intentions,

numerous resources and concentrated efforts in only one or two dimensions – or even in sequential order – is

4 Capacity Development in the International Development Context: Implications for Indigenous Australia (2005). Janet Hunt, Centre for Aboriginal Economic Policy Research, Discussion Paper No. 278/2005.

5 In her discussion paper, Hunt noted that policy developments concerning capacity building of Australian Indigenous communities coincided with a wider debate about Australia’s welfare system (p16) and emerged in the context of a coercive ‘mutual obligation’ approach to welfare reform (Humpage, 2005 in Hunt, 2005). Meaningful, successful and sustainable capacity building will require a shift away from a service delivery focus towards partnerships with Indigenous communities (pp16-17) – that is, the conceptual shift between a paternalistic Government-driven and managed approach to the support of Indigenous self-determination.

6 The Harvard Project on American Indian Economic Development is a long-running research program spanning over two decades, seeking to understand and foster the conditions under which economic development is achieved and sustained in American Native Nations. The Harvard Project has also considered the complex issue of maintaining cultural legitimacy within a Western framework of governance.

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unlikely to yield sustainable outcomes. Capacity development must be considered in this holistic context, with a

systematic approach and a sustainable, long-term focus.

8. In 2010, the Office of the Registrar of Indigenous Corporations commissioned a report examining the

characteristics of Indigenous corporate failure7 - chief among the reasons was poor management or governance,

and compliance issues. An inability to meet obligations and duties had the highest rate of prevalence in case

studies (42%) – an inability explained at least in part by the fact that 67% of PBCs have no assets, and 64%

have no income8. Statistics like this bear out the oft-quoted saying that ‘Aboriginal Australia is land rich but dirt

poor.’ If PBCs and Traditional Owner corporations do not receive the requisite support, there is a real risk that

such corporations will fail, putting recognised rights and interests in jeopardy.

Observation 2: Centrality of traditional land and waters to addressing Indigenous disadvantage.

9. It is too simplistic to state that historical dispossession is the sole cause of modern Indigenous disadvantage;

however, the importance of recognising and protecting traditional land and waters and empowering Indigenous

Peoples to leverage those rights and interests cannot be over-stated in redressing disadvantage.

10. The ILC has its genesis in the native title debates of the early 1990s, and its raison d'être is to acquire land for

Indigenous Australians as partial compensation for dispossession9.

11. Unfortunately but understandably, both the ILC and IBA have been reluctant to engage in the native title arena

whilst the jurisprudence was evolving, but with a critical mass of native title determinations over recent years,

both entities have underscored the importance of native title to their organisational objectives by developing

native title policies10 and the establishment of a Traditional Owner and Native Title Unit11.

12. Whilst these initiatives are welcomed, the recency of these developments illustrates the fractured understanding

of the central role native title and land justice can play in broader Indigenous economic and capacity

7 Analysing Key Characteristics in Indigenous Corporate Failure (2010). Dr James Swannson, of the Australia and New Zealand

School of Government’s Institute of Governance, on behalf of the Office of the Registrar of Indigenous Corporations.

8 Review of Native Title Organisations - Discussion Paper (2013). Deloitte Access Economics, p15. 9 The ILC was established in 1996 as one of the Keating Government’s three-part response to the historic Mabo judgement,

complementary to the Native Title Act and a social justice package which was never implemented in full. The ILC was to be allocated funds to acquire alienated land for dispossessed Traditional Owner groups.

Source: Policy Change and the Indigenous Land Corporation (2009). Patrick Sullivan, Australian Institute of Aboriginal and Torres Strait Islander Studies, Research Discussion Paper No. 25, July 2009.

10 Indigenous Land Corporation Board Endorsed Policy on Support For The Resolution of Native Title Claims, June 2013.

11 As detailed in their 2012-13 Annual Report, the IBA have recently established a Traditional Owner and Native Title Unit within their Equity and Investments Program to 'support Traditional Owner groups and Native Title holders to maximise economic development opportunities from their rights in land and waters'.

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development. The reality is that the sheer number of PBCs currently in the system, along with the rapid rate of

PBC establishment and engagement over the next five to ten years, a crisis looms whereby due to capacity

constraints, hard-fought recognised rights may remain idle or under-utilised – or, worse still, potentially lost12.

13. The following map depicts the extensiveness of the Indigenous Estate which forms approximately 32.5%13 of

Australia’s land mass. This map is attached to this submission in higher resolution [Attachment A].

12 This threat to the enjoyment of native title is multi-faceted:

If non-compliant with their obligations - most frequently, their reporting requirements - the Registrar of Indigenous Corporations may deregister PBCs;

The Federal Court may determine the ILC to be an agent prescribed body corporate (Native Title (Prescribed Bodies Corporate Regulations 1999 (Cth), Part 3, s11) – and there is therefore a direct responsibility to ensure effective programs are delivered to support the effective function of PBC; and

Under the Native Title Act, a determination of native title may be revoked or varied (s13).

13 As for areas (all in square kilometers):

Mainland Australia including Islands: approx. 7,692,024.

Indigenous Lands, including Aboriginal lands (from Land Tenure 1993) and Indigenous Protected Areas: approx. 1,215,421 or 15.80% of Australia including islands.

Indigenous Lands combined with NT determined areas (exclusive / non- exclusive): approx. 2,490,039 or 32.37% of Australia including Islands.

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14. The following table shows the number of claims pending resolution in the system14:

Active Native Title Applications

NativeTitle Determinations (national total)

Claimant: 442 Determinations that native title exists in whole or part of the determination area:

213

Compensation: 8 Determinations that native title does not exist in the entire determination area:

54

Non-Claimant: 23 Conditional determinations: 3

Total: 473 Total number of decisions about determinations of native title made:

270

Even if only half of the current 442 claims successfully result in a determination of native title, this could

potentially represent both a doubling of the existing Indigenous Estate to around 60% of Australia’s land mass

and the number of PBCs within the next 5 to 10 years. These statistics, when combined with the map in

paragraph 13 above, illustrate the current and future demands of support for PBCs and related corporate

entities. Unless some critical analysis is undertaken and decisions made now, the problem of PBC capacity will

only compound with the passage of time.

15. Attached also is a map of current determinations that from part of the Indigenous Estate [Attachment B] and the

number of claims currently in the system [Attachment C].

Observation 3: The necessity for greater coordination – leveraging the Indigenous funding envelope.

16. There have been countless reviews on the abysmally poor coordination of Indigenous programme development

and service delivery – as recently as 2012, the Australian National Audit Office acknowledged the fractured

nature of Indigenous program and service delivery across Australia and the need for more integrated service

delivery: working effectively across organisational and jurisdictional boundaries is currently one the most

significant issues in public administration15.

17. Recent administrative changes giving primacy to greater coordination through the Department of the Prime

Minister and Cabinet is a step in the right direction – the aims of which are to streamline arrangements, reduce

14 Data available from the National Native Title Tribunal website http://www.nntt.gov.au), as at 20 January 2014.

15 Australian Government Coordination Arrangements for Indigenous Programs (2012). Australian National Audit Office, Auditor-

General Audit Report No.8 2012-13 Performance Audit, p13.

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red tape and prioritise expenditure to achieve practical outcomes on the ground16. This coordinated approach

needs to be adopted as a principle across programs, not only in the interests of efficiency but because it is

critical to the success of any service delivery. As Senator Nigel Scullion, Minister for Indigenous Affairs has

emphasised, there must be a link between land and economic opportunity, and economic development needs to

be driven ‘in an integrated way through employment, training, business development, land acquisition and

management as well as home ownership’17. QSNTS would argue that PBCs, Traditional Owner corporations and

their related entities provide viable conduits to many Indigenous communities, and as such ought to be the

recipients of a greater proportion of the Indigenous Affairs funding envelope as well as the main coordination

junction for service delivery at a local and regional level. To be clear, QSNTS is not arguing for a transfer of

resources away from IBA or ILC; rather, a renewed concentration of their combined resources on addressing the

capacity issues of those Traditional Owner corporations and the many communities they serve.

Observation 4: The synergistic power of partnerships.

18. It is clear from the predicted increase in the Indigenous Estate that an opportunity presents for PBC/Traditional

Owner corporations, NTRB/NTSPs and the IBA/ILC to work more closely together.

19. However, a challenge as enormous as Indigenous disadvantage must draw in broader partnerships that harness

the unique skills, experience and resources of the public, not-for-profit and private sectors. A coordinated

approach across all sectors is necessary to ensure major inroads are achieved.

Observation 5 – Streamlining processes.

20. Red-tape reduction is critical to improving processes for accessing much-needed programmes, as is the impetus

behind transferring most Indigenous policy and programme initiatives into the Department of the Prime Minister

and Cabinet: The significance of this move should not be under-estimated. It puts Indigenous affairs at the

center of decision-making and will simplify programme delivery and cut red tape to ensure funding. It has

involved moving 1700 employees from eight departments to better coordinate Indigenous programme funding in

2013-14 totaling $2.5 billion18.

16 Department of the Prime Minister and Cabinet website (http://www.dpmc.gov.au/indigenous_affairs/index.cfm), accessed 24

January 2014.

17 Review into Indigenous Business Australia and the Indigenous Land Corporation Media Release, Monday 2 December 2013.

Senator Nigel Scullion, Minister for Indigenous Affairs. 18 Eighth Report into Remote Indigenous Service Delivery Media Release, Thursday 21 November 2013. Senator Nigel Scullion,

Minister for Indigenous Affairs.

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21. The streamlining of processes should not be limited to policy and programme development and implementation

but applied also to the review and evaluation processes thereof – that is, this methodology should be applied to

all facets of the enabling environment.

22. This review into the ILC and IBA is important and timely, but there has been another review recently concluded

in relation to Native Title Representative Bodies (NTRBs) and Native Title Service Providers (NTSPs) which

needs to be linked – the 2013 Deloitte Access Economics Review of Native Title Organisations.

23. The terms of reference for this review looked at the range of functions performed by NTRBs and NTSPs,

whether NTRBs / SPs should play a greater role in the capacity development of PBCs, the nature of services

provided by non-NTRB or NTSP professionals, whether any legislative or regulatory changes were indicated,

and if there is scope for further rationalisation of native title organisations. Of note, four of the nine terms of

reference specifically address PBCs, which highlights the review’s emphasis on the issue of PBC effectiveness

and the business case for Indigenous service providers broadening their engagement in capacity development.

Summary of Observations

24. The point of these observations is to underscore that the world has moved on considerably since the inception of

both the IBA and ILC. Over the past twenty years, many Traditional Owner groups have risen to the seemingly

insuperable challenge of proving native title on the mainland of Australia – acknowledging that the journey has

been long and harrowing for native title groups, and there is much more work to be done with some 442 claims

still to be resolved.

25. Against the odds, Traditional Owner groups have demonstrated remarkable alacrity to adjust to the complexity of

multi-party, cross-cultural native title negotiations that have resulted in some 216 native title determinations

across Australia, 856 registered ILUAs19 and hundreds of mining and access agreements. Some Traditional

Owner groups have displayed astute problem-solving skills by using the native title system to negotiate

alternative agreements to overcome shortcomings within that system, such as the Noongar community

settlement with the West Australia Government20 and negotiations by Traditional Owners to develop an

alternative framework for the settlement of native title claims in Victoria21.

19 Data available from the National Native Title Tribunal website (http://www.nntt.gov.au/Indigenous-Land-Use-

Agreements/Search-Registered-ILUAs/Pages/Search.aspx). Accessed 24 January 2014. 20 A summary is available from the South West Aboriginal Land and Sea Council website (http://www.noongar.org.au/talks-

government.php)

21 A summary is available from the Native Title Services Victoria website (http://www.ntsv.com.au/native-title/traditional-owner-settlement-act/).

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26. In spite of the many real and perceived shortfalls with the native title system, it has mobilised and motivated

Traditional Owner groups to coalesce and achieve group and individual outcomes for current and future

generations. The ILC and IBA have acknowledged this reality by making both policy and structural changes to

their business models (ibid). QSNTS would argue that this review is timely as the native title system has now

matured to the point where native title can no longer remain on the periphery of Indigenous affairs; and

conversely, Indigenous affairs can no longer assign native title to a rights-based nether region if Indigenous

disadvantage is to be meaningfully addressed.

27. In fact, the imminent finalisation of the Deloitte Review report into native title organisations along with this review

into the ILC and IBA is impeccable timing. Both reviews afford the opportunity to lift the gaze beyond the

challenges within the respective operational silos and set new sights to pool resources, draw upon different

experiences and work collaboratively with the sole objective of delivering tangible, sustainable outcomes for

Indigenous Australia22.

Summarised Responses to the Review’s Terms of Reference

(A) The effectiveness of IBA and ILC, as they are currently constituted, in driving Indigenous economic

development through employment, training, business development, land acquisition and management

and home ownership.

28. It is clear from the annual reports of both corporations that each entity is professionally managed with

appropriate governance structures in place that ensure resources and efforts are applied across the respective

programmes to meet organisational objectives. Australian tax payers would expect, and Indigenous People

deserve, nothing less. However, what many tax payers would not know, and many Aboriginal People and Torres

Strait Islanders do not understand, is that there are two completely different publicly-funded entities with the

same associated administrative overheads, similar purposes, visions and goals, similar clients, similar services23,

similar powers, significant land holdings24, similar geographical catchment areas and roughly similar service

access eligibility criteria. A brief comparison of the ILC and IBA purposes25, visions, functions and powers

follows:

22 As noted in QSNTS’s submission to the Deloitte Review, it is crucial that a concerted effort be made by Commonwealth

agencies and funded bodies to work more collaboratively to target effort and resources, underpinned by an evidenced-based methodology. Regrettably government policy has not facilitated this approach. In fact, native title has been essentially consigned to a rights-based domain hermetically separate from other policies and programs associated with economic development.

23 Noting that IBA is run commercially whereas the ILC has a grant model.

24 44% of IBA's investment portfolio as at 30 June 2013 was property - the highest proportion of any sector in their portfolio,

followed by tourism (38%), industrial (12%), retail (3%) and 'other' (3%). Indigenous Business Australia Annual Report 2012-13.

25 Under the Aboriginal and Torres Strait Islander Act (Cth) 200.5

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IBA Purpose ILC Purpose

(s146) IBA’s purpose is to assist and enhance ATSI self-management and economic self-sufficiency, and to advance the commercial and economic interests of ATSI people by accumulating and using a substantial capital asset to their benefit.

(s191B) ILC’s purposes are to assist ATSI persons to acquire land and manage Indigenous-held land, so as to provide economic, environmental, social or cultural benefits for ATSI persons.

IBA Vision ILC Vision

IBA’s vision is for a nation in which the First Australians are economically independent and an integral part of the economy.

Indigenous people achieving sustainable benefits through land ownership and land management.

IBA Functions ILC Functions

(s147) IBA’s functions are to engage in commercial activities, promote and encourage ATSI self-management and economic self-sufficiency, and such other functions as conferred on it by the ATSI Act.

(s191C) ILC has land acquisition functions (191D), land management functions (191E), such other functions as conferred by the ATSI Act or other Commonwealth law.

IBA Powers ILC Powers

(s152) IBA has the power to do ‘all things that are necessary or convenient to be done for or in connection with the performance of its functions’. The Act specifically confers the powers to:

Enter into contracts (including for the provision of business or housing loans);

Make grants for purposes associated with business or housing loans;

Invest money of the IBA;

Appoint agents and attorneys, and act as an agent for other persons;

Form, and participate in the formation of, companies;

Subscribe for and purchase shares in, and debentures and other securities of, companies;

Enter into partnerships;

Participate in joint ventures and arrangements for the sharing of profits;

Accept gifts, grants, bequests and devises made to it;

Act as a trustee of money and other property vested in it on trust; and

Charge for their provision of services.

(s191) ILC also has the power to do ‘all things that are necessary or convenient to be done for or in connection with the performance of its functions’. Similarly to the IBA, the Act specifically confers the powers to:

Enter into contracts and agreements;

Make grants and loans in carrying out their functions;

Invest money of the ILC;

Appoint agents and attorneys, and act as an agent for other persons;

Form, and participate in the formation of, companies;

Subscribe for and purchase shares in, and debentures and other securities of, companies;

Enter into partnerships;

Participate in joint ventures and arrangements for the sharing of profits;

Accept gifts, grants, bequests and devises made to it;

Act as a trustee of money and other property vested in it on trust; and

Charge for their provision of services.

29. Naturally, both entities would refute the last comment as legislatively they cannot duplicate services provided by

another government funded entity – but to many people, the distinctions would seem artificial if not incongruous.

There seem to be subtle and strained arguments that:

IBA focusses on individuals while the ILC focusses on groups;

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IBA exists primarily for economic development whilst the ILC’s scope is broader, but has a significant

economic development limb; and

IBA is solely commercial while the ILC is grant-based.

30. Leaving aside these subtle distinctions, the numerous similarities seem to confirm significant duplication rather

than refute the perception. Recent changes to appoint the same person to chair the Boards of both

corporations, presumably to achieve line of sight between both entities, only confirms their kindred nature.

31. Whilst these distinctions may have been readily justifiable in the past26, cohesive service delivery – which meets

the growing and changing needs of Traditional Owner groups and the individuals comprising them – is likely to

be more efficiently and effectively delivered by one entity than the existing two-entity model. We are

approaching a point of critical mass of native title determinations and alternative settlement agreements and, as

stated in our second observation, must recognise the centrality of traditional land and waters to address

Indigenous disadvantage. Put simply, an amalgamated entity is more likely to nimbly adjust to a rapidly changing

landscape.

32. Moreover, a holistic service is more likely to meet the multiple needs of remote and regional communities and

individuals where a ‘one-stop shop’ model would be better suited – one entity which provides (or at least

coordinates) a multitude of services will be far less cumbersome to navigate than multiple entry points for

interlinked programs and services.

(B) The optimal structure and function of government effort to drive Indigenous economic development.

This should also include consideration of whether outcomes could be enhanced by integrating IBA and

the ILC into a single entity.

33. For the record, QSNTS believes that both organisations have provided professional and appropriate services to

Indigenous Australians over the past twenty or so years. Whilst we may be critical that neither organisation has

demonstrated an appetite to be more proactively involved in the settlement of native title matters or assistance to

PBCs and related entities in a post-determination environment, it is understandable because of the evolving

nature of native title jurisprudence as well as multiple intra- and inter-group disputations. The recency of IBA’s

and ILC’s engagement in the native title space is therefore understandable

34. However, as stated above, the native title system has matured significantly with the jurisprudence settling,

overlap disputes being reduced and better managed, along with improved institutional arrangements between

the Federal Court and the National Native Title Tribunal, all resulting in an increased number of native title

resolutions in terms of determinations as well as alternative settlements. The burgeoning sector of PBCs will

only continue to grow as native title claims are resolved. The native title system has itself also improved, and the

resolution of claims will therefore be expedited. We cannot afford to ignore the critical role that PBCs will play in

the management of Indigenous land and assets, and economic engagement – underscored by cultural

legitimacy through representation of, and consultation with, their Traditional Owner groups.

26 QSNTS appreciates that the IBA and ILC were established to take carriage of separate functions, each in the interest of

Indigenous economic benefit. However, as elaborated in paragraphs 22 and 26, the landscape has evolved and cohesion of operators within the enabling environment – pursuing substantially the same goals – is necessary.

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35. QSNTS notes also that Traditional Owner groups are becoming more sophisticated in their structures. For

example, the PBC holds the group’s native title and its related entities deal with the associated interests of

commercial enterprises, cultural heritage, etc. This practice is not unlike the ILC’s establishment of subsidiaries,

and has been in response to managing risk and compartmentalising discrete matters. These business models

reflect the experience acquired over the native title journey, where complex matters are negotiated with a

multitude of parties.

36. These changes have ushered in a positive attitudinal change in both entities, resulting in new policies and

structures referred to above. Whilst these changes are welcomed by the native title sector, arguably they don’t

go far enough: native title should be front and center of both entities and not just another service line. After all,

the ILC has its genesis in the native title movement. Furthermore, there is a real risk of creating another area of

duplication with both entities focusing on capacity development of Traditional Owner corporations; an important

area that requires system-wide coordination at each dimension (see comments under Observations 1 and 3).

37. QSNTS would argue that Traditional Owner groups and their constituents need all the existing services provided

by both entities, but there may be overall efficiency-gains if delivered through one entity that provides whole-of-

community services. To be very clear, QSNTS does not want to see the abolition or diminution of any of the

services provided by either the ILC or the IBA. However, efficiencies could be gained by amalgamating the

services under one entity to ensure greater alignment and ensure capacity is built at all three dimensions

referred to above under our first observation.

38. Having regard to the annual reports of both entities there appears to be little collaboration between the two,

which could be a direct result of the prevailing legislation (see the Aboriginal and Torres Strait Islander Act 2005

(Cth)). With those legislative barriers it is difficult to see how there can be cross-programme collaboration or

even shared organisational cultures that embraces stronger stakeholder partnering between them.

39. With a view to streamline and coordinate services, the separation of the functions of IBA and ILC under their

enabling legislation (despite the similarities outlined in paragraph 27) imposes an unnecessary divide between

two bodies pursuing different paths towards a common goal of addressing Indigenous disadvantage. If the

statutory mandates separating the distinct functions of each entity are removed, it begs the question as why not

‘go the extra mile’ and amalgamate the organisations so governance, strategic direction, operational

implementation and public accountability are reposed in one entity.

40. This does not mean that a new entity has to be created: the ILC currently has four subsidiary companies, and

the IBA home ownership and other programmes could simply form another subsidiary with an expanded ILC

Board that provides overarching strategic stewardship. Clearly, QSNTS sees native title as central to the

resolution of Indigenous disadvantage (see Observation 2). We believe the ILC has a greater appreciation of this

precept and, we believe, it might be better equipped to take carriage of program alignment. In saying that,

QSNTS does not cast any aspersions on the professionalism of the IBA; we simply believe that it is far easier for

a commercially-focused service to be amalgamated into an organisation like the ILC as a subsidiary company

rather than a commercial entity attempting to absorb the grant-based programmes of the ILC. In summary, the

ILC’s structure allows for the establishment of subsidiaries, and can maintain an overarching Board to manage

the IBA’s programs in line with unified strategic direction.

41. Finally, QSNTS does not purport to have an intimate knowledge of the operations of either the IBA or ILC but

from the perspective of an outsider looking in, as an organization that has successfully undertaken an

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amalgamation we subscribe to the benefits and increased efficiencies that amalgamation can bring. Indeed, a

more apposite comparison is the realignment of service responsibilities between the Federal Court and National

Native Title Tribunal which produced a marked increase in the number of native title determinations.27

42. It is important however to ensure that broader consultation occurs once alternative business models have been

developed. This consultation process does not have to be lengthy, but it is critical to ensure an effective change

management strategy is devised and implemented so as not to impede the current services delivered to

Indigenous Australians.

(C) If a statutory body is considered the best approach, how to structure arrangements to ensure:

Efficient administration and reduce red tape

Transparency and accountability of public funds

Appropriate powers of ministerial direction or government control

43. QSNTS is of the strong opinion that an independent statutory body is the appropriate entity to deliver the types

of services currently provided by both the IBA and ILC. In this vein, the current governing legislation that

regulates the ILC, along with the Commonwealth Authorities and Companies Act 1997 (Cth), affords the

necessary transparency and accountability of public funds whilst maintaining the principles articulated by the

Australian Parliament’s response to the High Court’s Mabo Judgment.

44. It is further submitted that various instruments (Minister’s Statement of Expectations and Statement of Corporate

Intent) afford an appropriate level of ministerial direction and government control without derogating from the

independence of the statutory body.

45. QSNTS is of the view that an appropriately qualified Board comprising of an Indigenous Chairperson, along with

a majority of Indigenous Directors, is important to ensure the entity adheres to the vision, values and purpose of

both the ILC and IBA. QSNTS also believes there should be two ex officio Directors appointed each from the

NTRB / NTSP system and the growing PBC cohort to ensure the entity appropriately considers the needs and

aspirations of that sector.

Appendices

Attachment A: Map of Indigenous Estate (2014) Queensland South Native Title Services

Attachment B: Determinations of Native Title (2013) National Native Title Tribunal

Attachment C: Native Title Applications and Determination Areas (2013) National Native Title Tribunal

Attachment D: Indigenous Protected Areas (2013) Australian Government Department of Sustainability,

Environment, Water, Population and Communities

27 The Native Title Amendment Act 2009 (Cth) gave the Federal Court control over the management of native title claims,

allowing opportunities for negotiated settlements to be more effectively identified and progressed.