It is proposed that the Corporations (Aboriginal and Torres Strait Islander) Act 2006 be amended to provide that a substantial minority of corporation members may elect that the corporation “opt in” to external management.
This article focuses on a single issue: Fiscal Lateral Violence in Aboriginal Corporations. These organisations include land-holding bodies such as state and territory land rights corporations and registered native title bodies corporate (RNTBCs) of which there are currently more than 216.
Some large Indigenous corporations could be considered quasi-local governments, particularly those located in remote and regional areas. Depending on the size of the corporation, they might deliver: essential services that would usually be provided by mainstream local government, including access to basic human rights such as health, housing and medical services; a range of services that are different to those of mainstream corporations; functions associated with native
title; an interface to ‘mainstream’ society; infrastructure (such as power stations) to remote Indigenous communities; and hold land for Indigenous groups or manage the group’s native title rights and interests. The Australian Human Rights Commissioner’s 2007 report (The 2007 Report) http://www.humanrights.gov.au/publications/native-title-report-2007-chapter-6
In 2002 there was a review of the Aboriginal Corporations and Associations Act 1976. (the ACA Act) The review found, amongst other things, that the ACA Act was failing to prevent corruption and consequently it provided inadequate protection for members of corporations;
The CATSI Act was developed after independent review and consultation over two years. Further
research was conducted by the Office of the Registrar of Aboriginal Corporations (now ORIC). Important decisions by ORIC are not reviewable under the Act.
The 2007 Report said that “A critical feature of many Indigenous corporations is that they are formed pursuant to a legislative requirement or as a result of government policy. Arguably they are not truly ‘voluntary’ corporations of individuals.” and it cited various passages from the ACA review
people who would not otherwise have formed a corporation, and who may not understand the consequences or technical requirements of incorporation, are required to do so; the requirement for incorporation can force together Indigenous groups which would not otherwise have joined together, and which might not share the same views or goals, making the corporation vulnerable to destabilising competition between groups; and
the requirement for the establishment of community corporations to perform community services can result in confusion between the membership of the community and the membership of the corporation itself
The 2007 report went on
“The ACA Act Report was critical of the ACA Act for not significantly discouraging corruption and nepotism within Indigenous corporations. There were concerns about the need to protect the rights of members of Indigenous corporations against oppression and abuse by officers of the corporation and external stakeholders”
In 2010 the Office of the Registrar of Indigenous Corporations (ORIC) produced a research paper on the failure of some 96 Indigenous corporations. http://www.oric.gov.au/html/publications/other/Analysing-key-characteristics-in-Indigenous-corporate%20failure_v-2-2.pdf
Among the concluded reasons for failure were:
There are two groups claiming to be the legitimate Governing Committee.
The dispute has become protracted involving solicitors and the police and there is little likelihood of the dispute being resolved at a local level.
It appears that neither current Committee has a legitimate claim to manage the corporations affairs.
It is considered that acknowledgement of one Committee over the other will open the gates to legal challenges by the other Committee, the outcome of which may only be resolved in a court of
There has been a complete communication breakdown within the Aboriginal community that has resulted in a sense of alienation between certain members of the corporation and factions within the community.
There have been allegations of threatening and intimidating behaviour.
The chairperson currently has an apprehended violence order against a community member.
The chairperson and administrator argue that the Committee acts in the broader interests of the Aboriginal community. A ‘vocal’ minority disagree suggesting it is rife with ‘nepotism, cronyism and poor governance.’
In 2011 The Commissioners Native Title Report,
with some stated misgivings, opened dialogue on “lateral violence” - A range of damaging behaviours expressed by those of a minority oppressed group towards others of that group rather than towards the system of oppression - and recommended “That targeted research is undertaken to develop the evidence base and tools to address lateral violence as it relates to the native title system.”
At page 95 The Commissioner said
we use tactics such as bullying, fighting, gossiping and intimidation to assert authority within our native title claim group and to ensure we have access to any benefits that flow from membership in
the claim group.
The 2012 Native Title report
referred back to the 2011 recommendations: and asserted that “The Government has failed to implement these recommendations.”
The Minerals Council of Australia (MCA) and the National Native Title Council (NNTC) have developed the Indigenous Community Development Corporation (ICDC) as a model for managing native title and other payments negotiated by Aboriginal and Torres Strait Islander peoples. http://www.humanrights.gov.au/publications/native-title-report-2012
Ultimately it provides for an external measure of equitable management. It is said that:
The objective of the ICDC is to accept and distribute payments on a tax-free basis so as
maximise the economic and social benefits for current and future generations of native title groups
reduce administration for native title groups that have minimal governance capacity
improve governance arrangements.
The ICDC is a single entity that will facilitate funds accumulation, economic development, environment and land management, housing, education and learning, culture and community development ... Native title groups will be able to either choose to ‘opt in to have their
mining and/or other agreement payments managed’ under the ICDC or ‘continue with current practices’...
In the 2007 report The Commissioner had already said that:
PBCs (Prescribed Bodies Corporate) and RNTBCs (Registered Native Title Bodies Corporate) are
governed by a complex legislative framework that sets out functions and responsibilities for RNTBCs through the Native Title Act and the Native Title (Prescribed Bodies Corporate) Regulations. While the CATSI Act aims to remove conflicts and uncertainty about how the two Acts operate together, the corporation may also have added responsibilities. The responsibilities may be under other Commonwealth, state or territory legislation. They are often expected to address broader community social and cultural issues that exceed legislative requirements and responsibilities.
A prescribed body corporate must be registered under the CATSI Act. Additionally, they are regulated by a number of other complex and sometimes conflicting sources of law, including:
the law of trusts and agency; ·
the Federal Court’s determination of native title;
aspects of traditional law and custom recognised by the Federal
This legislative framework is also supported by an array of administrative arrangements that involve:
The Department of Families, Housing, Community Services and Indigenous Affairs;
The Office of the Registrar of Aboriginal and Torres Strait Islander Corporations; ·
Native title representative bodies;
State and local governments where Indigenous land use agreements
and other native title agreements have been negotiated; and
The private sector supporting the operations of registered native
title bodies corporate.
...needs to be a process whereby members of PBCs can properly hold PBCs to account for breaches of the NTA [Native Title Act] and PBC Regulations. At the moment, if a PBC does not comply with its obligations, the only remedy is for members to take legal action against the PBC. This course of action is often outside the capacity and resources of affected members. The result is that
native title rights and interests can be severely impacted upon and affected through the actions of a PBC without the mandate of the common law [native title] holders and the common law [native title] holders have little or no recourse to easily accessible legal advice or other relevant assistance.
Much of the Commissioners reports concerning the objectives of sovereignty and self determination are omitted in this article which is focussed on a single issue in the melange of complexities brought about by the mixture of indigenous and non-indigenous law and cultural customs.
If these are premises that can be drawn from the discussion:
Common to all humanity Aboriginal Communities and Aboriginal People are not homogenous and one size does not fit all
Communities have been subjected to statutory impositions to amalgamate in ways they may not otherwise have chosen in order to manage native title rights and benefits.
There are many failures and breakdowns of Aboriginal Corporations and some of these breakdowns are due to lateral violence – physical and fiscal.
These breakdowns are identified by factionalism which prevents self management.
Access to legal remedies is very difficult if not impossible.
ORIC frequently gets called in too late.
Then why not introduce a further option for corporation management? The ICDC
is an “opt in” model. But it needs a majority resolution by the corporation.
How will those in temporary or permanent power of the corporation ever be persuaded to “opt in” to the ICDC model if it means giving up control? This is a perennial human problem
resolved in the Australian Constitution by a balance of powers.
Total autonomy and self determination are sometimes asserted as a sort of indigenous Holy Grail yet such autonomy in any community, indigenous or otherwise, is rare. Aboriginal Corporations (by their breakdown record) seem to demonstrate inadequate internal balances of power and
the external power circuit breaker of legal action seem out of reach. If it is broke – then fix it.
An amendment to the CATSI act could provide that a substantial minority group is able to elect that the corporation “opt in” to the ICDC management model. That would have at least two affects;
firstly it would provide an internal balance of power by giving some incentive to the management of the corporation to satisfy the substantial minority and secondly it would provide an equitable alternative if it did not.
It would only need a stroke of the pen to provide that a special resolution of say 40%, perhaps 30% or 20% would compel the ORIC to impose the IDCC model.
Diagram of the ICDC model as cited in the
Commissioners 2012 report (and would be here if I knew how to do it)
The author, John Bolton, has practised in the Native Title Jurisdiction, acting for State, Native Title and other parties. He is currently semi-retired.