A critical feature of many Indigenous Corporations is that they are not ‘voluntary’. Family and clan groups which do not choose to be involved with each other to manage and distribute multi-millions of dollars are forced to join together by Native Title and Corporations Laws. Such forced groupings are vulnerable to destabilising competition and inequitable distribution of cash and benefits.
The Statutes call for elections by simple majority but violence and bullyboy tactics are reportedly rife. Once control is gained by baseball bat elections, nepotism rules for the distribution of sinecures, cash and control of the exploitation of heritage and mineral resources.
Examples are easily found. Any one who views the video of the disrupted meeting in this video clip of https://www.youtube.com/watch?v=3xa1eX_E0p8&feature=related (a meeting in Western Australia) can never again read “minutes” of such a meeting and have faith in the so called democratic process.
Anyone who reads the story of the appointed manager of the Anangu Pitjatjanjara Lands being stood down for failing to supply money to the chairman on a Saturday night at the Alice Springs Casino can’t fail to think something is wrong.
Just watch the ABC Cour Corners program regarding the abuse of funds by the Jarwoyn Aboriginal management and the sacking of the non-Jarwoyn financial managers trying to re-instate good governance and you will see the issues are not just skin deep. There the national regulating body ORIC (Office of Registrar of Indigenous Corporations), even when they eventually attended on site, did not interview or take statements from the financial managers.
Controversial Northern Territory CLP politician Larissa Lee, was the deputy chair, and is the sister of Preston Lee, then chairman of the Jarwoyn Association. She is reported as saying she would pay back $16,000.00 of Association funds that she had used in her election campaign. Such funding previously being repeatedly denied with her resisting exposure of the issue during her campaign.
Preston Lee tapped into the Jarwoyn Charitable Trust for, amongst more than half a million dollars of other things, over $50,000 of legal fees to defend two assault charges.
These few cases are not presented to embarrass the particular groups. They are just illustrations. Australia is riddled with greater and lesser examples.
Some large Indigenous Corporations could be considered quasi-local governments. The Australian Human Rights Commissioner’s 2007 report (The 2007 Report)
The 2002 Review (by the Registrar of Aboriginal Corporations team included Mick Dodson) found that the Aboriginal Corporations Act (the predecessor act) was failing to prevent corruption and it provided inadequate protection for members of Corporations.
There is a need to protect the rights of members of Indigenous Corporations against oppression and abuse by officers of the Corporation (The 2007 Report)
Breakdowns in communities result in alienation between the corporation and the community. With violence and threatening and intimidating behaviour, violence orders, nepotism, cronyism and poor governance. 2010 The Office of the Registrar of Indigenous Corporations (ORIC) research paper
“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 (Australian) Human Rights Commissioners Native Title Report 2011
Where control of an Association is gained by “bullying, fighting, and intimidation” the controlling faction will not opt for external management.
Australians who buy shares in public companies can sell their shares and move their investment elsewhere. Australians who are members of their local sporting club, or community service club, can resign and join a different one.
Members of Aboriginal Native Title Corporations cannot opt out of membership – they are forced by Statute to be a member. Their Traditional Aboriginal connection with the Locale, their Land Rights, Native Title Rights and any financial benefits that may flow are all locked in to the Association.
It is blindingly obvious that a Jarwoyn person cannot stop being Jarwoyn, nor a Pitjatjanjara stop being Pitjatjanjara. If their Statutory Corporation does not provide equity they can go nowhere else.
The Corporations Aboriginal and Torres Strait Islanders Act (CATSI Act) must be amended to ensure equity. It has to be more different to the general corporations law.
The CATSI Act needs amendments to: Permit a Special Resolution by a large minority (say 25% or more, but not just a few whingers) and to require a secret ballot for a resolution to opt in to temporary or permanent external management of the association (to be appointed by ORIC.)
Large disenfranchised minorities must be given a tool to access equity. No baseball bat majority ruling clique is ever going to opt for external management. In fact they will cry foul. They will cry racism. They will cry abuse of the right to self determination.
Exactly the opposite is the case. It is not a foul if 25% or more of their captured membership “calls it”.
It is not racism to insist that there is equitable distributions of benefits in all Australian communities.
These amendments will increase Aboriginal self determination for the large disenfranchised groups which are currently denied such rights by nepotistic bullyboy tactics.
No one really wants external non-Aboriginal management of Aboriginal Corporations. The mere existence of such an option will give controlling factions greater incentive to provide equitably for their large community minorities.
The writer’s background in Native Title (NT) and Aboriginal issues is briefly.
Former Native Title Solicitor to Govt.
Solicitor to Aboriginal native title and heritage groups
Advisor to non-native title parties on commercial and developments in NT areas
Acted for commercial industry bodies – developing NT policy, discussions and negotiations with Aboriginal parties and Govts..
Acted for native title claim groups negotiating with mining companies.
Acted for internal native title group issues.
Recently assisted a substantial but unsuccessful submission to ORIC.