EIGHTH REPORT OF THE PARLIAMENTARY JOINT COMMITTEE ON NATIVE TITLE AND
THE ABORIGINAL AND TORRES STRAIT ISLANDER LAND FUND
Table of Contents
Chapter 3
ILC Report
The ILC
3.1 The ILC is an independent statutory authority established under s.191A
of the ATSIC Act. Its role is to assist indigenous Australians to acquire
and manage land in a sustainable way to obtain economic, environmental,
social and cultural benefits pursuant to s.191B.
3.2 Funding for the operations of the ILC is provided from the Land Fund
pursuant to Division 10 of the ATSIC Act. Responsibility for reporting
on the Land Fund resides with ATSIC; this report has already considered
ATSIC's Land Fund reporting for 1995-96.
Statutory Reporting Requirements
3.3 The statutory requirements in relation to the ILC's annual report
are found in section 193K of the ATSIC Act, which applies the requirements
found in section 63H of the Audit Act 1901 to the ILC.
3.4 Pursuant to this legislation, the ILC is obliged to prepare and submit
to the Minister a report of its operations during the year together with
financial statements in respect of that year in the approved form. (The
Committee's fifth report stated (p. 21) that the Minister's delegate
approved the form of the financial statements for the ILC on 8 June 1995.)
Pursuant to s.63H(2) of the Audit Act 1901, copies of the ILC report
are to be laid before each House of Parliament within fifteen sitting
days after the completion of the report.
3.5 Prior to submitting the annual report to the Minister, the financial
statements must be presented to the Auditor-General, who has a reporting
responsibility to the Minister pursuant to s. 63H(2) of the Audit
Act. The ILC's financial statements were audited by the Australian National
Audit Office and an independent audit report was issued on 5 September
1996 (reproduced at pp. 35 and 36 of the ILC report).
Other Reporting Requirements
3.6 As stated in the Committee's fifth report (p.19), as a statutory
authority the ILC should also comply with the Guidelines for the Content,
Preparation and Presentation of Annual Reports by Statutory Authorities
tabled in the Senate on 11 November 1982. In summary, the guidelines require
that reports include the following information:
(i) enabling legislation;
(ii) responsible minister;
(iii) powers, functions and objects;
(iv) membership and staff;
(v) financial statements;
(vi) activities and reports;
(vii) operational problems; and
(viii) subsidiaries.
Compliance
Tabling
3.7 The report was presented to the Minister on 18 October 1996 and tabled
in the House of Representatives on 7 November 1996 and in the Senate on
19 November 1996. It accordingly satisfied the tabling requirements.
Enabling legislation
3.8 The Committee is pleased to note that its suggestion about referencing
legislation in the ILC's first annual report for the 1994-95 annual report
(referred to at p. 20 of the Committee's fifth report) has been accepted
for the ILC's 1995-1996 annual report. At page 6 of its second report,
the ILC complied with the requirement to clearly state the legislation
under which it operates.
Responsible Minister
3.9 The ILC complied with the guidelines in respect of this item at page
6 of its second report.
Powers, functions and objects
3.10 The ILC report (pp. 6,7) details the core powers and functions
of the ILC. It lists the priorities required under the ATSIC Act in relation
to its land acquisition and land management functions. This discussion
is enhanced by references to the relevant sections of the ATSIC Act.
3.11 In view of the detailed treatment of the functions and objects of
the ILC in the latest report, however, it is interesting that only some
of the ILC's specific powers are outlined at page 7 of the ILC report.
A fuller treatment of the powers of the ILC is advisable in particular
considering the specific constraints on the ILC's borrowing of capital
pursuant to Division 11 of Part 4A of the ATSIC Act.
Membership and staff
3.12 At page 17 the ILC reported on membership and staff in the report
under consideration. It is commended for including a section on consultants.
This important information explains the total of $272,662 spent on consultants
recorded in the financial statements at page 42.
Financial statements
3.13 The ILC received an unqualified audit opinion from the Australian
National Audit Office. It confirmed (p. 36) that the financial statements
are in accordance with the Guidelines for Financial Statements of Commonwealth
Authorities.
Activities and reports
3.14 It is stated in the second ILC report (pp. 21,22), and more
substantively in the National Indigenous Land Strategy 1996-2001
(pp.10 to 12), that the particular challenges facing the ILC in its operations
arise from dispossession and the resultant complex tribal and land attachments
formed. The ILC has reported (p. 7) that, pursuant to s.191D of the
ATSIC Act, the land acquisition functions include:
- purchasing land for the purpose of making land grants to Aboriginal
and Torres Strait Islander corporations;
- granting land acquired to Aboriginal or Torres Strait Islander corporations;
- granting money to Aboriginal or Torres Strait Islander corporations
to acquire land; and
- acting as guarantor for loans to Aboriginal or Torres Strait Islander
corporations so that they may acquire land.
3.15 The ILC's functions include the acquisition of land for indigenous
people who are unlikely to be recognised as native title holders or have
other legislative mechanisms for land acquisition. Neither the purchase
of land nor land management is based on a system of 'application-and-grant'.
This ensures that the ILC can take a more flexible approach. It will progressively
register land needs and aim to acquire land strategically so that key
needs are met (p. 21).
3.16 The central feature of the acquisition program is the cultural
significance of the land. This is very broadly defined (p. 22)
to include:
- traditional significance (prior ownership or important sites);
- historical significance (the land has acquired particular associations
during and since the colonial period); and
- contemporary significance (the land has current or future value based
on the assertion of cultural identity in a modern context).
- Consultation
3.17 The report notes (p. 23) that, in order to consult about the
National and Regional Strategies, ILC officers visited each ATSIC Regional
Council and the Torres Strait Regional Authority between October 1995
and April 1996. Appendix 3 (pp. 56,57) provides a list of these consultations.
3.18 With regard to the acquisition of property, the report indicates
(p. 23) that approval to negotiate for the purchase of a property
on the Eastern seaboard had already been granted and that at 30 June 1996
approximately 12 other proposals for land acquisition had progressed to
a point short of an offer to purchase. At the public hearing on 24 March
1997, the ILC confirmed (Evidence, p. NT2,3) that the Board had approved
37 proposals for a total of $35 million. Settlement to the extent of $4
million had taken place.
3.19 Progress in relation to these acquisition activities should be detailed
by the ILC in its 1996-97 report in sufficient detail to enable an accurate
review of the land purchase program; an analysis of the way projects responded
to the criteria for ILC property purchase (p. 7) would be desirable.
3.20 Importantly, the Committee notes the advice of the ILC (Evidence,
p. NT4) that the Wik decision of December 1996 has had no impact
at all on the ILC's land acquisition activities. General Manager John Wilson
stated:
What the board I think is saying is that we are not going to
wait around to see what the final outcome of native title is in terms
of us maybe purchasing a block of land. (Evidence, p. NT6)
The Committee draws attention to the potential inconsistency of this
fact with the ILC's function of land acquisition for indigenous people
who are unlikely to be recognised as native title holders.
3.21 The report (p. 8) indicates the land management functions of
the ILC. A comprehensive account of land actually under management should
appear in the ILC's next annual report. As discussed with the ILC on 24
March 1997 (Evidence, p. NT3,4) the annual report for 1996-97 could
contain a register of properties under ILC management.
Operational problems
3.22 The ILC has complied more fully with the guideline in respect of
this item than it did in its first report. At page 27 the ILC notes that
it is unable to rely on an extensive network of its own regional and state
offices. The head office is located in Adelaide; it was opened on 7 May
1996. Considerable progress was made towards the establishment and staffing
of divisional offices in Adelaide, Perth and Brisbane (p. 2). In
these circumstances, the Committee acknowledges the benefit of the ILC's
policy of cooperative arrangements with other federal and state government
agencies.
3.23 Under the subheading Operational Problems (p. 29) the
ILC identifies the need to maximise the amount of funding available for
program activity through low administrative overheads. The ILC decided
that Adelaide would be the preferred location for both the head office
and a co-located divisional office. The ILC's approach to this problem
is understood and the Committee will continue to take an interest in it.
3.24 Turning to land purchases, the ILC report advises that vendors'
asking prices are generally above independent valuations and above market
prices (p. 30). The ILC's resistance to pay inflated prices is applauded;
this matter was discussed with the Committee at the public hearing on
24 March 1997 (p. NT3). In the long term, the benefit of
this approach for indigenous people should be apparent.
Subsidiaries
3.25 The ILC has reported that it established no subsidiaries under the
Act during the reporting period but will examine that option during 1996-97
(p. 33).
Response to the Committee's Fifth Report
3.26 A number of concerns about the ILC's first report were set out in
this Committee's fifth report which was presented to the President of
the Senate on 8 July 1996 and tabled in both Houses on 21 August 1996.
Those concerns relevant to the ILC's second report include:
- reference to the reporting requirements pursuant to s.193I of the
ATSIC Act (p.11);
- reporting obligations of the Minister (pp.11,12);
- the need for the ILC and ATSIC to coordinate their reporting (p.12);
- details of actual allocations credited to and from the Land Fund (pp.13,14);
- adequate reference to relevant legislation (p. 20);
- title of the Chairperson (p. 21);
- comprehensive staff list (p. 21);
- report on activities (p. 22);
- the ILC's response to the report of the Senate Select Committee on
Certain Land Fund Matters (pp. 22,23); and
- operational problems and any subsidiaries to be noted (pp. 23,24).
3.27 In summary, the Committee's consideration of the 1995-96 ILC report
against these concerns is as follows:
- Reference to the statutory reporting requirements appears on page 10.
- The Minister's reporting obligations are not specified although useful
reference is made to the Minister's responsibility pursuant to s.191M
of the ATSIC Act; under this provision the Minister may seek information
from the ILC about its activities (p. 6).
- With regard to the coordination of reporting for 1995-96, the Committee
notes the statement by the ILC's Chairperson in his covering letter
that the ILC and ATSIC have liaised closely on the respective reporting
obligations. This is evident in the discussion of reporting requirements
at page 10 of the ILC report. This section satisfactorily responds to
the concerns of the Committee's fifth report and Recommendation 4 in
particular.
Similarly, Recommendation 5 of the Committee's fifth report was that
a single coordinated report be prepared for 1995-96 regarding the administration
of the Land Fund. The Committee notes the inclusion in the ILC's second
report (at Appendix 1) of material from ATSIC's report relevant to the
Land Fund which largely satisfies the Committee's concern; however,
as is stated in paragraph 2.10 of this report, further consideration
about this matter may be required for future reports.
- Details of actual allocations to and from the Land Fund are provided
(pp.10,11).
- Adequate reference to relevant legislation appears throughout the
report.
- The legislation (s.191V(2) of the ATSIC Act) provides for the title
of Chairperson of the ILC, although Mr Ross continues to sign as 'Chairman'
(as permitted pursuant to s.18B of the Acts Interpretation Act 1901).
- Staff details are provided on page 17.
- With regard to activities, the second ILC report provides a much more
complete account than could be given for the one month of operations
for 1994-95.
- The Committee's fifth report advised that the ILC's response to the
report Certain Land Fund Matters should be contained in its 1995-96
report. The ILC has made reference to this matter at page 33 of the
report. The ILC notes that the formal government response to that report
was completed in June 1996 by ATSIC. The Committee understands, however,
that a government response has yet to be tabled in the Parliament. This
is a matter in which the Committee will continue to take an interest.
- Finally, and as has been noted already, the ILC report provides an
account of operational problems experienced in the course of the year.
Summary
3.28 The 1995-96 annual report of the Indigenous Land Corporation complies
with the legislative and other requirements. Like the Land Fund report,
it appears to have adopted the suggestions of the Committee's fifth report.
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