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Published online by Cambridge University Press: 24 January 2025
The author acknowledges the support provided by the Australian Research Council, the Australian Institute for Aboriginal and Torres Strait Islander Studies and the project linkage partners: Department of Families, Community Services and Indigenous Affairs; Marnda Mia Ltd; Rio Tinto Services Ltd; Santos Ltd; and Woodside Energy Ltd. The views expressed in this work are solely the views of the author. My thanks go to my colleagues on this project for their patience as I began to find my way around the Native Title Act and to an anonymous reviewer for their insightful and provocative comments. All errors are, of course, my own.
1 Argyle Diamond Mine Participation Agreement — Indigenous Land Use Agreement (8 April 2005), ‘Plain English’ text preamble, ATNS Project Database, <www.atns.net.au/objects/Agreements/Argyle%20ILUA.pdf> ('Argyle Diamond Agreement’).
2 (1992) 175 CLR 1 ('Mabo’).
3 Lisa, Strelein, ‘Taxation of Native Title Agreements’ (2008) 1 Native Title Research MonographGoogle Scholar; Commonwealth of Australia, Department of Families, Housing, Community Services and Indigenous Affairs, Optimising Benefits from Native Title Agreements, Discussion Paper (2008) <http://www.fahcsia.gov.au/sa/indigenous/progserv/land/Documents/native_title_discussion_paper/default.htm>; ATNS Project, ‘Optimising Benefits from Native Title Agreements’ (Submission to Department of Families, Housing, Community Services and Indigenous Affairs Discussion Paper, 6 December 2008); A Levin, Improvements to the Tax and Legal Environment for Aboriginal Community Organisations and Trusts (Discussion paper presented at the Indigenous Community and Economic Development and Tax Policy Workshop, ATNS Project, 28 August 2007); Minerals Council of Australia ('MCA’) with Jackson McDonald Lawyers and AIATSIS, ‘Improving the Tax Treatment of Benefits and Payments to Indigenous Communities from Resource Agreements, Introducing an Alternative: Indigenous Community Development Corporations’ (Consultative Discussion Paper, Minerals Council of Australia, August 2009).
4 Commonwealth of Australia, Treasury, Native Title, Indigenous Economic Development and Tax, Consultation Paper (2010), <http://www.treasury.gov.au/documents/1890/PDF/20101020_Native_Title_Tax_Consultation_Paper.pdf>. The consultation process was suspended during the 2010 election but recommenced in October 2010; 32 submissions were received by November 2010, available at <http://www.treasury.gov.au/contentitem.asp?ContentID=1916&NavID=037>.
5 Robert McLelland, ‘Negotiating Native Title Forum’ (Speech delivered at the Negotiating Native Title Forum, The Novotel Brisbane, 29 February 2008) [17] <http://www.ag.gov.au/www/ministers/mcclelland.nsf/Page/Speeches_2008_FirstQuarter_29February2008-NegotiatingNativeTitleForum>.
6 Commonwealth of Australia, Treasury, above n 6, 14.
7 Income Tax Assessment Act 1936 (Cth) Div 11A, applying among other things to mining payments under the Aboriginal Land Rights Act 1976 (NT).
8 See especially Strelein, above n 3; Jon Altman, Submission to the Treasury (Cth), Consultation Paper: ‘Native Title, Indigenous Economic Development and Tax’ 25 November 2010 <http://www.treasury.gov.au/documents/1916/PDF/Altman.pdf>; Jon Altman, ‘Native Title and Taxation’ (CAEPR Topical Issue 4/2010, Centre for Aboriginal Economic Policy Research, the Australian National University, September 2010) <http://caepr.anu.edu.au/sites/default/files/Publications/topical/Topical_Altman_Native%20Title%20and%20tax.pdf>; Fiona, Martin, ‘Native Title Payments and their Tax Consequences: Is the Federal Government's Recommendation of a Withholding Tax the Best Approach?’ (2010) 33 University of New South Wales Law Journal 685Google Scholar.
9 Gunya Australia, ‘Indigenous Economic Development Scheme: a solution to create employment opportunities within Indigenous communities’ (Gunya Discussion Paper, August 2007); Cape York Institute for Policy and Leadership, ‘Can Cape York communities be economically viable?’ (November 2005) Viewpoint <http://www.cyi.org.au/WEBSITE%20uploads/Economic%20Viability%20Attachments/SPEECH_Can%20CY%20communities%20be%20economically%20viable.pdf>; Miranda Stewart, ‘Tax Law and Policy for Indigenous Economic Development', University of Melbourne Legal Studies Research Paper No 436 (December 2009), available at <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1519603>.
10 Argyle Diamond Agreement, above n 1, cl 10.
11 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141; Coe v Commonwealth (1979) 53 ALJR 403.
12 See, eg, Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) and Aboriginal Land Trusts Act 1966 (SA).
13 Marcia, Langton et al, ‘Introduction’ in Marcia, Langton et al (eds), Honour Among Nations? Treaties and Agreements with Indigenous People (Melbourne University Press, 2004) 17Google Scholar.
14 Mabo (1992) 175 CLR 1, 58.
15 Native Title Act 1993 (Cth) Pt III, Div 6. See also Marcia, Langton and Angus, Frith, ‘Legal Personality and Native Title Corporations: The Problem of Perpetual Succession’ in Lisa, Strelein (ed), Dialogue About Land Justice: Papers from the National Native Title Conferences (Aboriginal Studies Press, 2010) 170Google Scholar.
16 The concept has been widely analysed. See, eg, Langton et al, above n 13; Noel, Pearson, ‘Land is Susceptible of Ownership’ in Marcia, Langton et al (eds), Honour Among Nations? Treaties and Agreements with Indigenous People (Melbourne University Press, 2004)Google Scholar; Katy, Barnett, ‘Western Australia v Ward; One Step Forward and Two Steps Back: Native Title and the Bundle of Rights Analysis’ (2000) 24 Melbourne University Law Review 462Google Scholar; Lisa, Strelein, ‘Conceptualising Native Title’ (2001) 23 Sydney Law Review 95, 114-115Google Scholar; Kent, McNeil, ‘The Relevance of Traditional Laws and Customs to the Existence and Content of Native Title at Common Law’ in Kent, McNeil (ed), Emerging Justice?: Essays on Indigenous Rights in Canada and Australia (University of Saskatchewan, Native Law Centre, 2001) 416Google Scholar, 420–3, 435.
17 Contrast the approach of Deane and Gaudron JJ in Mabo (1992) 175 CLR 1, 109-110 to the majority judgment by Brennan J at 77. The different approaches were considered in the judgments in Western Australia v Ward (2000) 170 ALR 159, 178-179 (Beaumont and von Doussa JJ), and are discussed in the references, above n 16.
18 (1996) 187 CLR 1.
19 Ibid 169.
20 Diane E Smith, ‘Valuing native title: Aboriginal, Statutory and policy discourses about compensation’ (Discussion Paper No 222, Centre for Aboriginal Economic Policy Research, 2001) 20, citing P Sutton ‘Aboriginal common law and native title', Unpublished paper presented to the NNTT, Perth (1998).
21 (2002) 191 ALR 1 ('Ward’).
22 Ibid 35–6, 40 (Gleeson CJ, Gaudron, Gummow and Hayne JJ).
23 (2002) 214 CLR 422 ('YortaYorta’).
24 James, Cockayne, ‘Members of the YortaYorta Aboriginal Community v Victoria: Indigenous and Colonial Traditions in Native Title’ (2001) 25 Melbourne University Law Review 786, 805Google Scholar.
25 (2002) 214 CLR 422, 440; Lisa, Strelein, ‘Symbolism and Function: From Native Title to Indigenous Self-Government’ in Lisa, Strelein (ed), Dialogue About Land Justice: Papers from the National Native Title Conferences (Aboriginal Studies Press, 2010) 127, 128Google Scholar. Some have expressed doubt as to whether there really is, any more, a common law native title claimable in Australia: Kent McNeil, ‘The Relationship Between the Sources and Content of Indigenous Land Rights in Australia and Canada: A Critical Comparison’ (Paper presented at Section 223 ATNS Workshop, Melbourne University Law School, 14 May 2007); Lisa Strelein, ‘Native Title: A captive statute’ (Paper presented at Section 223 ATNS Workshop, Melbourne University Law School, 14 May 2007).
26 Odette, Mazel, ‘Returning ParnaWiru: Restitution of the Maralinga Lands to Traditional Owners in South Australia’ in Marcia, Langton et al (eds), Settling with Indigenous People: Modern treaty and agreement-making (Federation Press, 2006) 159, 178Google Scholar.
27 See, eg, Mabo (1992) 175 CLR 1, 61, 70 (Brennan J), 110 (Deane and Gaudron JJ), 192 (Toohey J); Ward (1998) 159 ALR 483, 502, 541; YortaYorta (2002) 214 CLR 422, 439-440 (Gleeson CJ, Gummow and Hayne JJ).
28 Lisa, Strelein, ‘Symbolism and Function: From Native Title to Aboriginal and Torres Strait Islander Self-Government’ in Marcia, Langton et al (eds), Honour Among Nations? Treaties and Agreements with Indigenous People (Melbourne University Press, 2004) 189Google Scholar.
29 Pearson, above n 16, 95.
30 Native Title Act 1993 (Cth) ss 17, 29, 20, 22D, 22E, 24EB(7), 24GB(8), 24GHA(6), 24ID(2), 24KA(6), 24MD(4), 24NA(7), 51 all relate to compensation. See Smith, above n 20, 22; Tina Jowett and Kevin Williams, ‘Jango: Payment of Compensation for the Extinguishment of Native Title (May 2007) Issues Paper 3(8).
31 Native Title Act 1993 (Cth) s 24AA(6) for ‘future acts', and s 238(8) for past acts.
32 National Native Title Tribunal ('NNTT’), National Report: Native Title (August 2011) 1 <www.nntt.gov.au>.
33 Smith, above n 20.
34 Jon Altman and David P Pollack, ‘Native title compensation: historic and policy perspectives for an effective and fair regime’ (Discussion Paper No 152, Centre for Aboriginal Economic Policy Research, 1998) <http://caepr.anu.edu.au/Publications/DP/1998DP152.php>. Appendix A identifies relevant State mining statutes. See also Altman, above n 8 and the references on native title compensation available from Native Title Research Unit, Native Title Compensation Annotated Reference List (2009) Australian Institute of Aboriginal and Torres Strait Islander Studies <http://www.aiatsis.gov.au/ntru/compensation.html>.
35 Altman and Pollack, above n 34, 12.
36 Krysti Guest, ‘The Promise of Comprehensive Native Title Settlements: The Burrup, MG-Ord and Wimmera Agreements’ (Research Discussion Paper No 27, Australian Institute of Aboriginal and Torres Strait Islander Studies, 2009) <http://www.aiatsis.gov.au/research/docs/dp/DP27.pdf> 8. See also Ciaran, O’Faircheallaigh, ‘Resource Development and Inequality in Indigenous Societies’ (1998) 26 World Development 381–394Google Scholar; Ciaran, O'Faircheallaigh, ‘Evaluating Agreements between Indigenous Peoples and Resource Developers’ in Marcia, Langton et al (eds), Honour Among Nations? Treaties and Agreements with Indigenous People (Melbourne University Press, 2004) 303Google Scholar; Deirdre, Howard-Wagner, ‘Scrutinising ILUAs in the Context of Agreement Making as a Panacea for Poverty and Welfare Dependency in Indigenous Communities’ (2010) 14(2) Australian Indigenous Law Review 100Google Scholar; Deirdre, Howard-Wagner and Amy, Maguire, ‘“The Holy Grail” or “The good, the bad and the Ugly“?: A Qualitative Exploration of the ILUAs Agreement-making Process and the Relationship between ILUAs and Native Title’ (2010) 14(1) Australian Indigenous Law Review 71Google Scholar; Sarah, Burnside, ‘“We're from the mining industry and we're here to help“: The impact of the rhetoric of crisis on future act negotiations’ (2008) 12(2) Australian Indigenous Law Review 54Google Scholar; Lee, Godden et al, ‘Accommodating Interests in Resource Extraction: Indigenous Peoples, Local Communities and the Role of Law in Economic and Social Sustainability’ (2008) 26 Journal of Energy and Natural Resources Law 1, 4Google Scholar.
37 Jenny Macklin, ‘Beyond Mabo: Native title and closing the gap’ (Speech delivered at James Cook University, Townsville, 21 May 2008) <http://www.nswbar.asn.au/circulars/macklin.pdf>.
38 McClelland, above n 5, [26].
39 Commonwealth of Australia, Department of Families, Housing, Community Services and Indigenous Affairs, Indigenous Economic Development Strategy 2011-2018, (2011) 17, <http://www.indigenous.gov.au/ieds/>.
40 Ibid.
41 See, eg, Cape York Institute for Policy and Leadership, Economic Viability <http://www.cyi.org.au/economicviability.aspx>.
42 Other relevant government papers include Commonwealth of Australia, Department of Families, Housing, Community Services and Indigenous Affairs and Attorney-General's Department, Leading Practice Agreements: Maximising Outcomes from Native Title Benefits, Discussion Paper (July 2010) <http://www.ag.gov.au>; Commonwealth of Australia, Department of Families, Housing, Community Services and Indigenous Affairs, Indigenous Home Ownership, Issues Paper (May 2010) <http://www.facs.gov.au/sa/indigenous/pubs/housing/indig_home_ownership/Documents/Indigenous_Home_Ownership_Issues_Paper.pdf>.
43 Smith, above n 20, 29.
44 Marcia Langton, ‘The Mabo Lecture: Native Title, Poverty and Economic Development’ (Speech delivered at the Native Title Conference, 3 June 2010) 17.
45 Commonwealth of Australia, Treasury, above n 3, 4.
46 See references at above n 3; Martin, above n 8; Julie, Cassidy, ‘Black Fella Land — White Fella Tax: changing the CGT implications of aboriginal/native title’ (2010) 25 Australian Tax Forum 397Google Scholar; Julie, Cassidy, ‘Black Fella Land: White Fella Tax: Changing the CGT Implications of Aboriginal/Native Title’ in Georg, Kofler et al (eds), Taxation and Human Rights in Europe and the World (IBFD Publications, 2011) 327Google Scholar; Warren, Black, ‘Tax Implications to Native Title Holders of Compensation Payments’ (1999) 2 Journal of Australian Taxation 344Google Scholar; Warren, Black, ‘Transferring Native Title to a Body Corporate under the Native Title Act 1993 (Cth) — Can CGT Arise?’ (2000) 3 Journal of Australian Taxation 155Google Scholar.
47 Goods and Services Tax Ruling 2006/9 accepts that in the case of a ‘government authority compulsorily acquiring land and interests relating to that land, including the native title rights under a particular statute where the effect of compulsory acquisition is that every registered and unregistered interest in the land is extinguished, and each person who formerly held such an interest has that holding converted into a claim for compensation', then ‘the compensation relates to the loss suffered by the claimants on the extinguishment of their interest in the land’ and so is not subject to GST: [89]. However, this GST ruling does not address payments by private parties, or payments where there is no extinguishment of native title, or the income tax treatment of such payments.
48 Australian Taxation Office, Private Binding Ruling 53360, 2003-2007; Australian Taxation Office, Private Binding Ruling 77829, 2008-2011; Australian Taxation Office, Private Binding Ruling 83511, 2005-2011; Australian Taxation Office, Private Binding Ruling 1011313296606, available from the ATO Register of Private Binding Rulings <http://www.ato.gov.au/rba/>. Private Binding Ruling 77829 is an extension of Private Binding Ruling 53360 in respect of the same facts. The Register contains anonymised texts of private rulings provided to specific entities or individuals who requested the ruling. Private rulings are binding on the ATO only in respect of the particular applicant, years and arrangement ruled upon, and strictly speaking have no precedential value; however, in the absence of other issued guidance, the rulings in the database provide an indication of how the ATO may approach similar fact situations.
49 Commissioner of Taxation v Sydney Refractive Surgery Centre Pty Ltd [2008] FCAFC 190, [10]; The Commissioner of Taxation of the Commonwealth of Australia v Smith (1981) 147 CLR 578, 586 (Gibbs CJ, Stephen, Mason and Wilson JJ); The Commissioner of Taxes (Victoria) v Phillips (1936) 55 CLR 144, 153 (Starke J), 156-157 (Dixon and Evatt JJ); The Glenboig Union Fireclay Co Ltd v Inland Revenue Commissioners [UK] (1922) 12 TC 427, 463-464 (Lord Buckmaster).
50 Australian Taxation Office, Private Binding Ruling 53360, above n 48.
51 (1968) 118 CLR 666 ('Barrett’).
52 (1978) 78 ATC 4329 ('Nullaga’).
53 Barrett v The Commissioner of Taxation of the Commonwealth of Australia (1968) 118 CLR 666, 672 (Owen J).
54 (1978) 78 ATC 4329, 4331.
55 Ibid.
56 (1970) 70 ATC 366.
57 Ibid 367.
58 Peter, Crooke, Bruce, Harvey and Marcia, Langton, ‘Implementing and Monitoring Indigenous Land Use Agreements in the Minerals Industry: The Western Cape Communities Co-Existence Agreement’ in Marcia, Langton et al (eds), Settling with Indigenous People: Modern treaty and agreement-making (Federation Press, 2006) 95, 95Google Scholar.
59 Australian Taxation Office, Private Binding Ruling 53360, above n 48.
60 The Commissioner of Taxation of the Commonwealth of Australia v The Myer Emporium Limited (1987) 163 CLR 199, 209-210 (Mason ACJ, Wilson, Brennan, Deane and Dawson JJ); The Commissioner of Taxation of the Commonwealth of Australia v Whitfords Beach Proprietary Limited (1982) 150 CLR 355, 360-361 (Gibbs CJ); Commissioner of Taxation of the Commonwealth of Australia v Montgomery (1999) 198 CLR 639, 656-657 (Gaudron, Gummow, Kirby and Hayne JJ).
61 Cassidy, above n 46. See also Martin, above n 8; Black, above n 46.
62 Commonwealth of Australia, Treasury, above n 3, 4.
63 Commonwealth of Australia, Attorney-General's Department, Australia's Future Tax System, Final Report (December 2009), Overview (Part 1), Recommendation 17 <www.taxreview.treasury.gov.au>.
64 Henry Simons, Personal Income Taxation: the definition of income as a problem of fiscal policy (University of Chicago Press, 1938) 51.
65 Named after US economists Henry Simons and Robert Haig, and German economist Georg Schanz; Simons essentially synthesised the work of Haig and Schanz and developed the now-classic definition.
66 Simons, above n 64, 49.
67 In Australia, various scholars and tax reform bodies have adopted this ‘comprehensive’ notion of income, including: Commonwealth Taxation Review Committee, Full Report 1975 (Australian Government Publishing Service, 1975) ('Asprey Committee’); Commonwealth of Australia, Treasury, Reform of the Australian tax system: draft white paper (Australian Government Publishing Service, 1985)Google Scholar; Review of Business Taxation, A Tax System Redesigned: more certain, equitable and durable: report (1999, Commonwealth of Australia). The Review of Australia's Future Tax System moves away from ‘comprehensive’ income towards a ‘consumption’ tax base for some purposes, however this is not relevant to the discussion here: Commonwealth of Australia, Attorney-General's Department, above n 63.
68 Asprey Committee, above n 67, [7.5].
69 These issues have been most debated in the US: see, eg, Victor, Thuronyi, ‘The Concept of Income’ (Fall 1990) 46 New York University Tax Law Review 45Google Scholar; Paul, B Stephan III, ‘Federal Income Taxation and Human Capital’ (1984) 70 Virginia Law Review 1357Google Scholar.
70 See Mabo and other cases discussed in Part II; Stuart Bradfield, ‘White picket fence or Trojan horse? The debate over communal ownership of Indigenous land and individual wealth creation’ (June 2005) 3(3) Land, Rights, Laws: Issues of Native Title.
71 Strelein, above n 3, 17.
72 Simons, above n 64, 49.
73 There has been little written on this issue in Australia. In the US, there has been substantial academic debate about the principled basis for the legal exemption of personal injury damages: see, eg, Stephan, above n 69; Jennifer, J S Brooks, ‘Developing a Theory of Damage Recovery Taxation’ (1988) 14 William Mitchell Law Review 759Google Scholar; Joseph, Dodge, ‘Taxes and Torts’ (1992) 77 Cornell Law Review 143Google Scholar; Thomas, D Griffith, ‘Should “Tax Norms” be Abandoned? Rethinking Tax Policy Analysis and the Taxation of Personal Injury Recoveries’ (1993) Wisconsin Law Review 1115Google Scholar.
74 Asprey Committee, above n 67.
75 Asprey Committee, above n 67, [7.37].
76 Australian Taxation Office, Class Ruling CR 2003/35 (7 May 2003) <http://law.ato.gov.au> [19].
77 (1996) 185 CLR 595, 644 (McHugh J).
78 Simons, above n 64, 46.
79 Amartya, Sen, ‘Development: Which Way Now?’ (1983) 93 The Economic Journal 745Google Scholar; on development more broadly, see Sen, , Development as Freedom (Oxford University Press, 1995)Google Scholar; Sudhir, Anand and Amartya, Sen, ‘The Income Component of the Human Development Index’ (2000) 1(1) Journal of Human Development 83Google Scholar.
80 Liam, Murphy and Thomas, Nagel, The Myth of Ownership: Taxes and Justice (Oxford University Press, 2nd ed, 2004) 175Google Scholar.
81 Ibid 37.
82 This concept is discussed and analysed in Lisa, Philipps, Neil, Brooks and Jinyan, Li, Tax Expenditures: State of the Art (Canadian Tax Foundation, 2011)Google Scholar; see also, Commonwealth of Australia, Treasury, Tax Expenditure Statement 2010 (28 January 2011) <http://www.treasury.gov.au/contentitem.asp?NavId=022&ContentID=1950>.
83 Commonwealth of Australia, Treasury, above n 4, 2, 8–10, and Section 3.1.
84 Many examples and case studies of the benefits and payments in a range of types of agreements are included in Strelein, above n 3; O’Faircheallaigh, above n 36. Summaries of agreements, including location, date, parties and basic content, sometimes with primary documents, are searchable at <www.atns.net.au>.
85 A diversity of financial models are illustrated in Ciaran O’Faircheallaigh, ‘Financial Models for Agreements between Indigenous Peoples and Mining Companies’ (Research Paper No 12, Centre for Australian Public Sector Management, January 2003); and see MCA et al, above n 3; Strelein, above n 3, 26.
86 BHP Billiton Ltd, Submission to Commonwealth of Australia, Treasury (Cth), Submission on the Consultation Paper – ‘Native Title, Indigenous Economic Development and Tax', 30 November 2010, 3 <http://www.treasury.gov.au/documents/1916/PDF/BHP_Billiton%20.pdf>.
87 NNTT, National Native Title Report (August 2011), <www.nntt.gov.au> 4. Some registered ILUAs have expired and been removed from the register.
88 Strelein, above n 3, 12.
89 Bruce Harvey, ‘Rio Tinto's Agreement Making in Australia in a context of Globalisation’ in Langton, Tehan, Palmer and Shain (eds), above n 13, 239.
90 Early in the negotiations, the High Court found in Wik Peoples v Queensland (1996) 187 CLR 1 that the Comalco mining lease was valid and had extinguished native title. The 1998 amendments to the NTA further reduced any legal imperative to negotiate for Comalco.
91 Harvey, above n 89, 241.
92 Argyle Diamond Agreement, above n 1, cl 5.2-5.3.
93 Ibid cl 6.8.
94 Rio Tinto, Sustainable development report, Argyle Diamonds 2007 - Innovation brings rewards (2007) <http://www.argylediamonds.com.au/docs/AD_11477_SD%20Report.pdf> 20.
95 NNTT File No: QIA1999/00; see also NNTT, Registered ILUA summary - Mackay Harbour Beach Park <http://www.nntt.gov.au/Indigenous-Land-Use-Agreements/Search-Registered-ILUAs/Pages/Mackay_Harbour_Beach_Park_QIA1999001.aspx>; ATNS Database, Mackay Harbour Beach Park Indigenous Land Use Agreement (15 February 2005) <http://www.atns.net.au/agreement.asp?EntityID=1234>.
96 NNTT, Registered ILUA summary-Owen Springs Transmission Line ILUA <http://www.nntt.gov.au/Indigenous-Land-Use-Agreements/Search-Registered-ILUAs/Pages/NT-Registered_ILUA_Owen_Springs_Transmission_Line_ILUA-DI2008_001.aspx>.
97 NNTT, above n 32, 13.
98 The NNTT records 72 future act agreements concluded in 2009–2010, above n 32, 43.
99 An example is the Maralinga Tjarutja Land Rights Act 1984 (SA) under which the South Australian government transferred inalienable freehold title of lands to the Maralinga Tjarutja peoples: Strelein, above n 28.
100 NNTT, above n 32, 5.
101 Government of South Australia, South Australian Native Title Resolution (20 July 2009) <http://www.iluasa.com/>; AIATSIS, South Australian Settlement Framework <http://www.aiatsis.gov.au/ntru/docs/researchthemes/agreement/broadsettlements/SouthAustralianSettlementFramework.pdf>.
102 Department of Justice (Vic), Native Title (24 December 2010) <http://www.justice.vic.gov.au/wps/wcm/connect/justlib/DOJ+Internet/Home/Your+Rights/Indigenous+Victorians/Native+Title/>.
103 Smith, above n 20, 25.
104 The NNTT recognises these ‘ancillary’ agreements in relation to future acts: NNTT, ILUA or the right to negotiate process? A comparison for mineral tenement applications, (December 2008) <www.nntt.gov.au>.
105 See Government of Western Australia, Browse LNG Precinct: Native Title Agreements (10 August 2011) <http://www.dsd.wa.gov.au/8416.aspx#8424>.
106 ITAA 1997 s 6–23.
107 Commonwealth of Australia, Treasury, above n 4, 8.
108 Ibid 9.
109 Not all stakeholders who participate in native title agreements concur with this view: eg, see BHP Billiton, above n 86.
110 Commonwealth of Australia, Department of Families, Housing, Community Services and Indigenous Affairs, above n 42, 7.
111 As in both the WCCCA and the Argyle Diamond Agreement. Further examples are Mt John Valley ILUA, NNTT Number: DI2009/002, registered 6 May 2009 and Broome ILUA: Yawuru Prescribed Body Corporate ILUA, NNTT Number: WI2020/003, registered 24 May 2010 and Yawuru Area Agreement ILUA, NNTT Number: WI2010/004, registered 6 August 2010.
112 Western Cape Communities Trust and Western Cape Communities Co-ordinating Committee, Strategic Plan 2009–2012 (2009) 5 <http://www.westerncape.com.au/> 5.
113 Remuneration for services is prima facie taxable. A receipt may not be taxable where it is derived in respect of performance of a duty as traditional owner in relation to land: for example, an occasional cultural heritage survey may be characterised as private in nature, part of ‘looking after country'. A statement would need to be provided to the mining company in accordance with the Pay-As-You-Go withholding rules in this situation; see Argyle Diamond Agreement, above n 1, cl 19.
114 Commonwealth of Australia, Treasury, above n 4, 10.
115 A detailed examination of the charitable tax exemption is being conducted by the Melbourne Law School Not for Profits research project; see <http://tax.law.unimelb.edu.au/go/research-and-resources/current-research-projects/index.cfm>. There is a significant analysis in US sources about the principle and policy of the charitable exemption, see, eg, Edward H Rabin, ‘Charitable Trusts and Charitable Deductions’ (1966) 41 New York University Law Review 912; R Musgrave, ‘In Defense of an Income Concept’ (1967) 81 Harvard Law Review 44; L M Stone, ‘Federal Tax Support of Charities and Other Exempt Organisations: The Need for a National Policy’ (1968) 20 University of Southern California School of Law Tax Institute 27.
116 Australian Government Tax Expenditures Statement 2010 lists the charitable exemption but does not estimate a revenue cost of this exemption as a result of a lack of good data about the size of the sector; see Commonwealth of Australia, Treasury, Tax Expenditures Statement 2010, above n 82.
117 Commonwealth of Australia, Treasury, Better Targeting of Tax Concessions (Consultation Paper), (27 May 2011), <http://www.treasury.gov.au/contentitem.asp?ContentID=2056&NavID=035>; Commonwealth of Australia, Treasury, Final Report on the Scoping Study for a National Not for Profit Regulator, (4 July 2011) <http://www.treasury.gov.au/contentitem.asp?NavId=035&ContentID=2054>.
118 See, eg, BHP Billiton, above n 86.
119 MCA et al, above n 3; Strelein, above n 3, 25; Levin, above n 3, 6; Lisa Strelein and Tran Tran, ‘Taxation, trusts and the distribution of benefits under native title agreements’ (Native Title Research Report No 1/2007, 2007) 9–10.
120 [1891] AC 531.
121 Australian Taxation Office, Tax Ruling 2011/4 addresses these issues in light of recent case law; see Royal National Agricultural & Industrial Association v Chester (1974) 48 ALJR 304. See also Ann, O’Connell, ‘The Tax Position of Charities in Australia: Why Does It Have to Be so Complicated?’ (2008) 37 Australian Tax Review 17Google Scholar; Gino, Dal Pont, The Law of Charities (Lexis Asia Pacific, 2010)Google Scholar.
122 There is no direct authority, but a positive indication is in Northern Land Council v Commissioner of Taxes (2002) 12 NTLR 86; see Fiona, Martin, ‘Prescribed Bodies Corporate under the Native Title Act 1993: Can they be exempt from income tax as charitable trusts?’ (2007) 30 University of New South Wales Law Journal 713Google Scholar; Fiona, Martin, ‘The legal concept of charity in the context of Australian taxation law: The public benefit and commercial activity, important issues for indigenous charities’ (2010) 25 Australian Tax Forum 275Google Scholar.
123 (2008) 236 CLR 204.
124 Commonwealth of Australia, Treasury, above n 117.
125 Flynn v Mamarika (1996) 130 FLR 218 held that a charitable trust for the benefit of 12 Aboriginal clans was allowed as this was a sufficient section of the public. However, whether this would apply for smaller numbers of clans in a native title PBC, or one clan only, is not clear.
126 Fiona Martin and Audrey Sharp, ‘The Family Connection when a Charity is for the Advancement of Indigenous Peoples: Australia and New Zealand compared’ (AIATSIS Issues Paper No 4(4), November 2009) 8.
127 Strelein, above n 3, 26, suggests that native title prescribed bodies corporate have sometimes been wound up due to failure to ‘get the money out on the ground'.
128 Crooke et al, above n 58, 100.
129 Ibid.
130 Harvey, above n 89, 243.
131 Crooke et al, above n 58, 105–6.
132 MCA et al, above n 3.
133 This would be based on the information provided in evidence led to establish the native title claim in the first place — see Adnyamathanha No 1 Native Title Claim Group v The State of South Australia (No 2) [2009] FCA 359 — Determination made 30/03/2009, among others. It should not, however, be necessary that a native title claim is established, in order to set up an Indigenous Community Fund.
134 This is particularly the case if the proposed carbon tax compensation reform is carried out, which will raise the tax-free threshold to $18 200 for an individual: Clean Energy Act 2011 (Cth).
135 See Office of the Registrar of Indigenous Corporations (Cth) (2011) <www.oric.gov.au>.
136 See Youtube, ACNC Taskforce (11 October 2011) <http://www.youtube.com/user/acnctaskforce>.
137 Langton, above n 44, 10.