Native Title Report 2006: Chapter 7: The Yarrabah Housing Project

Native Title Report 2006

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Chapter 7: The Yarrabah Housing Project

Chapter 6 << Chapter 7 >> Appendix 1

• Introduction
• Land tenure resolution
• The housing project
• A Yarrabah building enterprise: Y-Build
• The Yarrabah Shire Council
• Negotiations
• Building in Yarrabah
• Conclusion

Underpinning the Government’s partnerships approach to Indigenous policy is the belief that economic development is the key to sustainable improvement in the quality of life of residents of Indigenous communities.1

Introduction

The Yarrabah Housing Project has some distinct parallels with the Australian Government’s initiative to individualise tenures on Indigenous communal lands and encourage home ownership. However, while there are similarities in the intention of the Government and Yarrabah initiatives, there are also marked differences in the management and governance structures. This case study provides an alternative to the Australian Government model, demonstrating an example of a community determined to locally manage the development of the township while stimulating local economic growth.

The Yarrabah Aboriginal Shire Council (the Council) is proposing to hold a 99 year headlease over the Yarrabah township in trust for the Indigenous land owners, while managing 99 year subleases for Yarrabah residents and businesses. The Council will also manage a housing construction project in Yarrabah through its own construction company Y-Build. Y-Build will employ, train and develop a local Indigenous workforce with the skills to build and maintain residential housing in Yarrabah.

The Yarrabah Aboriginal Shire Council is approaching all aspects of the project in close collaboration with the community. All decisions about the nature of tenure resolution, enterprise and the residential development are made with the informed participation of Yarrabah residents. In contrast, the Australian Government’s lease scheme is at arms length from Indigenous people within a community. Once a 99 year lease is signed under the Australian Government model, local people will have no on-going role in managing, planning or building the housing and infrastructure developments in their township. 

The Yarrabah Housing Project is still in the very early stages of planning and negotiation. Mediations for an Indigenous Land Use Agreement are in progress and confidentiality obligations preclude a detailed analysis of some aspects of the project to be recorded. However, a good deal of information is already public, and this information provides a clear picture of the direction and parameters of the project. Some of the matters which are integral to the project include, resolving native title matters, developing a collaborative working relationship with the State Government, building community governance capacity and amending land rights and local government legislations and regulations.  This case study documents the requirements, successes, challenges and pressures of the Yarrabah Housing Project.

Background

Yarrabah is an Indigenous township in Far North Queensland, approximately 40kms east of Cairns. It was initially set up as an Anglican mission in 1892. The community is made up of families of traditional owner groups as well as families of those forcibly removed to the area under the Aboriginals Protection and Restriction of the Sale of Opium Act 1897 which came into operation on 1 January 1898. There are approximately 40 different language groups in the Yarrabah region.2

The housing stock in Yarrabah is in poor repair and there are insufficient houses to meet the current requirements. Approximately 43 houses, a significant proportion of the Yarrabah housing stock, has been identified for demolition or replacement over the next 5-7 years. The Aboriginal and Torres Strait Islander Housing (ATSIH) needs study identified a target occupancy rate of 5.5 persons per dwelling. In Yarrabah’s 335 houses the occupancy rates are up to 11 persons per dwelling.3 The ATSIH Division of the Department of Pubic Works and Housing identified the following new housing requirements for Yarrabah at Chart 23.4

CHART 23: HOUSING REQUIREMENTS IN YARRABAH TOWNSHIP – 2001 - 2010

Period	Number of Houses Required	Number of Houses Funded
2001-2002	51	15
2002-2003	52	18
2003-2004	53	19
2004-2005	50	15
2005-2006	45	*
2006-2010	88	*
Total	339	67

*Outside current funding period

Source: The Aboriginal and Torres Strait Islander Housing needs study

Current and future housing requirements are estimated to be at 300 houses to be provided between 2000-2010. Yarrabah Aboriginal Shire Council and the community are working in partnership with the Queensland Government to develop a plan to address this situation. While the affordability of home ownership is declining for mainstream Australia, the Yarrabah Aboriginal Shire Council and the community believe that home ownership is the best way to provide an economic future for community residents and to reduce the community’s dependence on Government funds for housing in the long term.5 In pursuit of these goals, the Yarrabah Aboriginal Shire Council is developing a lease proposal, a town plan, a house building project and an Indigenous employment enterprise, all aimed at building houses and establishing conditions for individual home ownership.  

Land tenure resolution

Yarrabah is located on Deed of Grant in Trust (DOGIT) land under the Aboriginal Land Act 1991 (Qld). Trustees appointed by the Queensland State Minister for Natural Resources and Water, hold the freehold title for the traditional owners. The land cannot be sold or mortgaged. Decisions to grant leases must be made in accordance with Aboriginal tradition6 and residential leases require Ministerial consent.7 There is also an active title claim over the Yarrabah region, the combined Gunggandji Native Title Claim. The claim was lodged in 2001 and has been notified though it is not yet registered. The area covered by this claim includes the Yarrabah DOGIT and surrounding lots.

The native title and DOGIT land tenures over Yarrabah provide some complex challenges. The native title traditional owners have a recognised common law right to their traditional lands, and the Indigenous residents have rights to the land under the DOGIT regime. Those with rights under DOGIT are all Indigenous residents, including those Indigenous people who were removed from their traditional lands to reserves or missions under various Acts of Parliament. Further complicating this situation is the fact that DOGIT lands have not yet been transferred back to Indigenous community control. In fact, the Queensland Government has faced criticism regarding the amount of time it is taking to transfer lands under the Aboriginal Land Act 1991 (Qld). The Government argues a number of impediments to speedy transferral including, the need for extensive consultation, the requirement for surveys of easements, the requirement for surveys of existing tenures on the land, and the implementation of appropriate corporate governance arrangements for land trusts.8 The Council expects that an outcome of the review of the Aboriginal Land Act 1991 will enable them to issue 99 year leases to residents of the Yarrabah community.9

In accordance with the Native Title Act 1993 (Cth), all developments in Yarrabah are future acts and traditional owners must be consulted.10  It is through an Indigenous Land Use Agreement to which the traditional owners and the Council are parties that native title tenure resolution will be resolved. For example, native title negotiations are occurring to resolve the status of leases in Yarrabah which were issued under the Aborigines and Torres Strait Islanders (Land Holding) Act 1985. While the ILUA negotiations are underway, the traditional owners have given permission for the project to proceed on designated residential areas within the township. This means that the housing project can go ahead before the ILUA is registered.



In all likelihood, the tenure plan for Yarrabah will give the Council responsibility to manage and administer 99 year leases over areas within the township. The lease areas located outside the town area will be managed by a land trust or a Prescribed Bodies Corporate on behalf of the traditional owners. The traditional owners will be able to develop the leases outside of the town area as an economic development initiative. Both the Council and the traditional owner groups will be in a position to provide home ownership opportunities to the community.

However, it is not 100 percent certain that the Council will be the land trustee once the DOGIT is transferred. This is an issue that will potentially effect the management and governance of the housing project.

Whoever the Trustee party is, they will be the ones charged with the responsibility of actually issuing leases and it may not be the Council…

It is intended that once the Aboriginal Land Act transfer process is finalised the trusteeship of the trust area may rest with another body other than the Council. One likely outcome will be the creation of a town area, and the creation of a trust area.  There will be different land use governing structures, and it is envisaged that there will only be inalienable freehold, restricting the transferability of the land between Indigenous peoples only.11

While it is yet to be confirmed, the Review of the Aboriginal Land Act 1991(Qld) (the Review) suggests that the Aboriginal Shire Council will retain ownership of the township area.12 The Review recommends that Aboriginal Shire Councils consider converting blocks of land in townships to normal freehold and selling them on an open or restricted market.13

Indigenous land tenure is a complex issue in Queensland due to the number of interests and the various pieces of legislations that govern these interests. The review of the Aboriginal Land Act considers the following actions in community areas essential for communities to encourage economic development and home ownership:

• define township areas;
• address native title issues through an ILUA;
• introduce clearer leasing provisions;
• resolve tenure issues that arose out of the Aborigines and Torres Strait Islander (Land Holding) Act 1985 (Qld); and
• survey land interests properly.14

A White Paper outlining the government’s amendments to the Aboriginal Land Act was due to be released in September 2006, but has not been to date. It is anticipated that the proposed Aboriginal Land Act amendments will provide a legislative base to support leasing initiatives.

The housing project

Conceptually, the Yarrabah Housing Project is about the integration of core social values which include a belief in community engagement, the right to adequate housing, and a commitment to develop local enterprises that will sustain local community employment and economic growth. Fundamental to this process is the involvement of traditional owners and community members in planning and decisions affecting the tenure arrangements and all aspects of the housing development. The CEO of the Council, Mr Leon Yeatman, describes the Yarrabah Housing Project as setting up a system ‘which will help us to govern land use in the future.’15

The Council has engaged consultants to assist in developing a land use plan and ultimately a town plan. The town plan will identify housing lots for future development and other land use provisions including the provision of heritage areas for future generations. Proposals are being developed that address both the short term housing needs and the long-term sustainability of community development at Yarrabah.16

An additional 300 homes are required over the next 10 years. The responsibility for achieving these housing targets rests with the Council, the Yarrabah community, and relevant government agencies. The Council is seeking the Queensland government’s assistance to explore an option to borrow funds for housing construction. Rental income will be used to service the loan. The Council is also considering an option to use its own resources to leverage funds from the government in a matched funding arrangement through a Shared Responsibility Agreement.17 Private finance is also being considered, though this will only be an option when tenure resolution has occurred.18

A Yarrabah building enterprise: Y-Build

The Yarrabah Council is hoping to commence construction of housing and infrastructure in 2006. The Council have developed a construction workforce, Y-Build, which is community owned and managed. Y-Build was ‘developed in response to the State Government Housing Reform Agenda which (recommended realignment of) housing repairs and maintenance program.’19 It is expected that in the future Y-Build may tender for work outside of the community and thereby create an external income stream.

The Council and community rejected the proposal for Q-build to provide housing services to Yarrabah. Q-Build is the Queensland Government’s housing construction and maintenance provider. While Q-Build is currently the broker for repairs and maintenance, the majority of construction work in Yarrabah is undertaken by local Council employees. These employees will be part of Y-Build once the company is fully operational. Approaches have been made to the Queensland Government to seek funds for local training and apprenticeships in order to train additional Indigenous employees for the pool of workers that will be required for Y-Build.20

The housing project brings together a number of projects for the Council. ‘We are not just dealing with things in isolation… (we are) knocking over two or three things at the same time.’21

The Yarrabah Shire Council

The big challenge for us long term is whether this Council remains the local government body or not. There is a big threat at the moment for amalgamation to occur. The bureaucratic model usually takes longer to adapt than the policy does.22

Yarrabah Aboriginal Shire Council was established as the local government body in 1984 when the Queensland Government granted land rights and self-management to 14 Aboriginal communities. The Yarrabah Aboriginal Shire Council (the Council) was previously subject to the Community Services (Aborigines) Act 1984 (Qld), though it is now in transition to mainstream Shire Council status under the Local Government Act 1993 (Qld).23 The Yarrabah Aboriginal Shire Council considers this transition as an opportunity to achieve full self management.

In order to bring the Aboriginal Community Councils up to a standard to operate under the new Local Government Act 1993 (Qld) the Queensland Government is providing financial management training.24 A four year transition period is being negotiated for councils to develop capacity to transition to Aboriginal Shire status. Aboriginal Shire Councils will continue to have responsibility to manage the complexities of communal tenure with the added administration of community leases. Communal land tenures require different provisions than those of townships and cities that operate under a freehold Torrens system. For example, the absence of individual private property means that Aboriginal Councils can not raise rates, a key source of revenue for other local governments. Special provisions have been included in the Local Government Act 1993 (Qld), including the power to raise revenue through a general levy on residents. Levies have provided revenue for Aboriginal Councils for maintenance on homes and other essential services.25 In the transition phase, councils such as Yarrabah are negotiating town plans which are essential for the transition to Aboriginal Shire Council.26  

The Yarrabah Aboriginal Shire Council is responsible for all major planning and for the supply of essential services that are common functions of local government. However it has the additional responsibilities for community housing and community employment. In terms of housing, the Council has responsibility to maintain the existing housing stock and to construct new housing using labour partially funded under the Community Development Employment Program (CDEP). The Council employs both Indigenous and non-Indigenous qualified tradesmen to manage the construction and to train indentured Indigenous apprentices.27 The Council currently provides full time employment to over 260 Indigenous and non-Indigenous personnel. In addition 795 community personnel are employed under the Council CDEP Scheme.28

Due to the heavy burden on Council to provide almost all community services, the Council and community have proposed a model to reduce this burden. This involves new provisions under Part 5 of the Local Government (Community Government Areas) Act 2004 (Qld) to establish a Yarrabah Community Housing Management Committee. With these provisions, the Council could devolve housing responsibility to the Housing Management Committee. The Council would continue to provide administrative and housing management support, but decision-making would occur through the Committee. The objective for the proposed Community Management Structure for Housing at Yarrabah is to:

• engage the community more in decisions about housing management;
• entrench non-politicised, rational, policy-based decision-making about housing; and
• reduce the heavy burden on the Council which has the responsibility to make decisions about almost every aspect of community life.29

CHART 24: PROPOSED HOUSING MANAGEMENT MODEL FOR YARRABAH

Negotiations

The key players in the negotiations are:

the representatives of the Guru-gulu clan group who directly assisted in the coordination of native title interests; the National Native Title Tribunal; North Queensland Land Council; traditional owners for their positive contribution and support; the Yarrabah Aboriginal Shire Council and the community advisory body for management and governance of the process.30

While Council acknowledges that not everyone will agree on housing project and land tenure resolution, the Council is serious about its obligations to engage with the community. The Council has committed to inform community members about future planning, and to provide opportunity for advice and feedback.31

There is a willingness on the part of the Council to engage with the relevant parties, so we can preserve the historical and cultural values. In this respect we have got two hats. You are a traditional owner/ community member but also a key decision-maker of Council which potentially puts you in a complex situation.32

The Council has identified community engagement as one of the key strategies that contributes to good governance. To this end, the Council have included the Yarrabah Housing Project in the Queensland Negotiation Table process.33 Negotiation Tables are part of the Queensland Government Meeting Challenges, Making Choices initiative to address priority issues at the local level.34  The Negotiation Tables involve a sustained process of consultation, planning and negotiation between community leaders and local, state and federal government agency representatives. In most cases there is a Government ‘champion’ to facilitate the Negotiation Tables, usually the Director General of a State Government agency.  Negotiation Tables have six main steps:

• identification of community needs;
• creation of a whole-of-community plan that identifies community needs and aspirations;
• response from the government at the negotiation table;
• development of a mutually agreed community action plan and shared responsibility agreement that clearly define the commitments of all participants;
• development of Government service delivery responses; and
• performance measurement and reporting.35

Yarrabah community residents are invited to attend Negotiation Tables and other forums where they can have a say in the community projects. The Council provided community information workshops to canvass housing issues and prepare residents for formal meeting processes. Workshops were held with the Women’s Corporation, Girriny Yealamuka Health Service, the rehabilitation centre and the school. As a result of the meetings a Community Reference Group was established.36

The following four stages describe Yarrabah participation in the housing Negotiation Table.

• Newsletters, flyers and letters were distributed as part of a community housing information campaign aimed at informing residents about meetings and the Negotiation Tables;

• Community information meetings were conducted to involve residents in discussion about housing matters. This resulted in the establishment of a Community Reference Group. The Reference Group identifies community priorities and actions and also had responsibility to select a Community Negotiating Team with responsibility to formally negotiate at the Negotiation Table;

• A housing Negotiation Table was conducted and the Community Negotiating Team and community members discussed concerns, aspirations, proposed outcomes, actions and resource requirements with government agencies; and

• Community Action Plans were developed to reflect the shared responsibility of Government and community in meeting the proposed outcomes. The Community Action Plan includes a monitoring and implementation phase for Government, community and Council.37

The outcome of the Housing Negotiation Table at Yarrabah was a Community Action Plan on Housing that set clear tasks and timeframes for the relevant government agencies, the Council and the community. This included a resource plan. Seven items were identified for the Plan:

• future housing construction needs in Yarrabah;
• identification of housing design and accommodation types;
• employment and training requirements;
• housing service delivery models;
• community home ownership options;
• transitional accommodation models for Yarrabah; and
• monitoring and implementation of the Community Action Plan.38

Building in Yarrabah

A housing estate of Djenghi in Yarrabah is the first phase of the Council Housing Project. While this project commenced 10 years ago through the Queensland State housing program, it will be integrated as part of the 99 year lease and home ownership project. It is a joint project with the Queensland Department of State Development and is being driven by housing need in the community.

To ensure the community was still able to proceed with the creation of a new housing estate at Djenghi, the Council initiated a proactive process, with the assistance of the North Queensland Land Council and Native Title claimants to conduct the very first official site clearance and mapping within the Yarrabah DOGIT. This process exposed the parties to the key aspects of planning for the community. The parties have thus worked to establish trust in the process to ensure the potential to improve the standard of living in the Yarrabah community is realised.39

Achievements under the Djenghi project include the construction of up to ten new houses over the last three years and the identification of 100 new lots under the Djenghi building proponent.

Conclusion

While the building component of the project is not progressing quickly, the preconditions are in place for building activity to escalate in the future. Projects such as the one at Yarrabah are ambitious and they take time. The Yarrabah project includes the integration of various complex processes. They are:

• land tenure resolution;
• transition from community council to shire council status;
• the need to develop an income stream;
• community consultation processes;
• the development of a community building enterprise;
• the pending outcomes of the review of the Aboriginal Land Act 1991(Qld); and
• the uncertainty of the Queensland governments plans to transfer the DOGIT lands as inalienable freehold.

The Australian Government’s current Indigenous policy approach is based on the belief that sustainable improvement in the quality of life of Indigenous people can only be achieved through economic development. For communities like Yarrabah, determined to achieve better outcomes and standards of living, economic development and community participation are being pursued as a means to maintain a thriving community. However, the administrative challenges ahead are considerable. It is now important that the Queensland Government provide full support to assist the developments in Yarrabah and to maintain momentum. To this end, the Government has a responsibility to move quickly to provide certainty regarding land rights provisions under the Aboriginal Land Act 1991 (Qld).

Yarrabah community has been involved in sustained activity to develop its own economic interests and to retain authority to govern all commercial interests over the land. It is now incumbent on the Queensland Government and to the fullest extent possible, the Australian Government, to do its part to see the project through to full implementation.

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Endnotes