Major Projects
Taxation, Trusts &
Distribution of Benefits
Project Overview
The vexed issue of best practice in structuring agreements for
taxation, creation of trusts and distribution of benefits from
native title has been virtually undocumented. The lack of
understanding of these issues makes policy development, for
example in relation to the taxation of native title payments
almost impossible. This project will provide some initial
baseline data and qualitative information. At this early stage it
is unlikely that best practice’ can be clearly identified,
however, it is possible to identify issues for analysis, survey of
current practice, identify good practice examples and promote
invaluable sharing of information and experience.
Project Partners
Agreements,
Treaties & Negotiated Settlements Project (Melbourne
University): ARC linkage grant examining the ‘The Implementation
of Agreements and Treaties with Indigenous Peoples from
Postcolonial States’.
Aurora Project (UNSW, Monash University): to examine current
practice, develop scenarios and coordinate expert pro bono legal
advice to improve the available knowledge base in this area.
Centre for
Indigenous Governance and Development (Massey University, New
Zealand): Dr Strelein and Dr Manuhuia Barcham from the Centre for
Indigenous Governance and Development at Massey University, Aotearoa/New
Zealand, have established a research partnership to share
research findings relating to taxation, trusts and the distribution
of benefits and explore opportunities for collaborative research.
Research Publications
Native title is a unique legal concept that seeks to bridge the
rights held by Indigenous peoples under their own law and an
accommodation and protection of those rights within Australia
law. Its recognition required an immediate rethinking of
Australia property law and the way in which governments, in
particular, dealt with land.
An agreement making framework was developed to facilitate
access to land where native title has been found to exist or is
under native title claim. However, the common law and legislative
framework have constrained native title as an economically
valuable right.
These legal constraints are strangely at odds with the tendency
to presume that native title will be an economic boon for
Indigenous peoples. This is teamed with the rhetoric of
respondents and interest groups, particularly in the years
surrounding the 1996 Wik decision and subsequent amendments to the
NTA, that native title is a significant cost to industries and the
economy more broadly.
Despite the restrictive framework of native title law,
Indigenous groups are active in negotiating agreements over land
and water matters, both inside and outside the framework of the
NTA.
Some of the agreements being reached involve payments and
benefit packages that are complex and in almost all circumstances raise significant questions,
both conceptually and practically, as to their treatment for
taxation purposes. But little analysis has been done to determine
how native title fits with the tax system and resolution of the
question has eluded a generation of policy makers.
This research monograph explores these issues in detail and
proposes potential resolutions for the taxation of native
title.
- Strelein, L, 2008,
Taxation of Native
Title Agreements, Research Monograph 1/2008, Native Title
Research Unit, Australian Institute of Aboriginal and Torres
Strait Islander Studies, Canberra.
Senior Professional Officers' Workshop:
Taxation, trusts and the distribution of benefits under native
title agreements
At the Senior Professional
Officers Workshop conducted at the University of New South Wales in
September 2006, representatives from native title
representative bodies (NTRBs) and native title service providers (NTSPs) met and discussed problems that have emerged, legal
options available to claimants and the outcomes these have produced.
The outcomes and key themes of the workshop have been summarised in
a Workshop report. This report is divided into the
key discussion issues. It begins with an account of the major themes
raised during a general discussion of the issues of taxation, trusts
and the distribution of benefits that have arisen in the various
NTRB service areas. This is followed by specific case studies and
information sessions dealing with taxation, structuring of
agreements, trusts and distribution policies. The report concludes
by detailing the future directions for NTRB/NTSPs and how these
emerging issues can be dealt with.
Pro Bono Legal Advice for Native Title
Representative Bodies and Native Title Services
A group of legal firms met in Sydney on 3 May 2007 agreeing to
accept requests for advice and to develop Fact Sheets on corporate
structuring, commercial arrangements, taxation and trusts issues
affecting native title representative bodies and native title
services.
Requests for advice under this initiative are being coordinated
by the Native Title Research Unit and the
Aurora Project with assistance from the
National Pro Bono Resource Centre. Requests for advice
should relate to corporate structuring, commercial arrangements,
taxation and trusts issues. Principal Legal Officers of native title
representative bodies or native title services are invited to submit
requests for assistance through the Native Title Research Unit.
Please contact Ms Lara Wiseman at the Native Title Research Unit
on 02 6261 4244 or
lara.wiseman@aiatsis.gov.au for further information about this
initiative or to submit a request for advice.
Practice Resources
Tax Scenarios – Tax Masterclass
A three-day NTRB Legal Masterclass was held in Sydney in July
2007 to focus on specific aspects of law which experienced NTRB
staff had previously identified as pivotal to their native title
work. The Masterclass included half-day sessions on: mining and
resources law; law and practice of native title transactions;
taxation and trusts. It concluded with a Native Title forum, which
focussed on recent developments in native title law, particularly
significant full Federal Court decisions and the implications of
the decisions.
The key facilitators of the program were Sean Brennan (University
of New South Wales), Lisa Strelein (AIATSIS) and David Yarrow (Monash
University). They were supported by a variety of guest speakers with
expertise in the specific topics, including a special guest speaker,
Justice Murray Wilcox. Staff from 10 NTRBs attended the Masterclass.
One session which participants found particularly useful was
Alexandra Richards QC’s presentation of Monday 30 July regarding the
interaction of the law of trusts with Native Title. The following is
a summary of that session.
Recent decisions
Shire of
Derby-West Kimberley v Yungngora Association INC
[2007] WASCA 233
Involves an
appeal from a decision of the State Administrative Tribunal to grant
the Yungngora Association Inc an exemption from an obligation to pay
rates on the basis that the land was used exclusively for a
charitable purpose. The association holds land including the
Noonkanbah pastoral station and has been endorsed as a charitable
organisation providing housing, schooling and facilities on the land
it owns. The shire had argued that the charitable purpose of the
station was incidental to its commercial purpose. However the
tribunal had found that the land was charitable, being to improve
the economic position, social condition and traditional ties to the
Land of the local Indigenous community. However on appeal it was
found that the tribunal had erred in law by focusing on the benefits
of the pastoral enterprise rather than the use to which the land was
actually put. It was noted that the ‘land is not used for charitable
purposes where the land is used for the purpose of raising funds for
charitable purposes’. The Court held that the ‘benefits to the
community and its members are not sufficient for a finding that the
Land is used exclusively for charitable purposes’.
Tax Incentives for
Indigenous Economic Development
Gunya Australia -
Indigenous Economic Development Scheme Discussion Paper
(August 2007 PDF format)
Submissions
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