Message Stick (April 2014) - North Queensland Land Council

The Newsletter of North Queensland Land Council
April 2014
Gudjala
celebrate...
...it’s their Country!
INSIDE...
?
8
Bar Barrum
Decision
?
14
NQLC Staff
Workshop
?
18
PBC
Workshop
For the Chair...
Message Stick is
published by the
North Queensland
Land Council
NQLC chair Errol Neal
with Social Justice
Commissioner Mick
Gooda at the staff
workshop earlier this
year (pages 14-15)
INSIDE
From the CEO 4
New Staff
5
Introducing our FAME Unit
6
Landmark win for Bar Barrum
8
Gudjala Determination
10
NQLC Staff Workshop
14
Points of Law from Martin Dore 16
PBC Workshop 18
Message Stick is published by North
Queensland Land Council (NQLC) Aboriginal
Native Title Representative Body Aboriginal
Corporation (ICN1996), 61 Anderson Street,
Manunda, Queensland 4870.
The contents of Message Stick are copyright
to NQLC and should not be reproduced in
whole, or part, without the written consent of
the NQLC CEO.
Message Stick contains photographs
copyrighted to Christine Howes, Leigh
Harris and others. Edited by Miranda Grant,
reporting, writing and layout assistance by
Christine Howes, cover design by ingeous
studios.
Firstly I’d like to pay my respects to our Elders, past and
present.
And especially those Elders who lined the streets and who ended
up in jail.
These people we should never forget.
I’ve been on a long journey with this Land Council.
This month there has been a determination in an area which was
within the former Central Land Council’s area.
When that Land Council went into administration all hopes and
aspirations of our people to retain Native Title had fallen away.
But the opportunity came for those people - the Gudjala People to look to the North Queensland Land Council for support and we
were too happy to help.
The NQLC now has 36 native title determinations and we are
leading the country.
Slowly but surely we are getting Native Title for our people.
It’s a long road, and little by little we’ll get there.
Message Stick is not for resale. Any
information is correct at time of writing.
The publisher apologises for any images
used that contain deceased individuals or
cultural sites of significance.
Message Stick is made possible from funding
provided by the Federal Government under
the Native Title Funding Program.
Ph: (07) 4042 7000
Fax: (07) 4031 7414
Freecall 1800 814 779
Email: nqlc@nqlc.com.au
http://www.nqlc.com.au
Spending some time with some of Yarrabah’s future leaders in January
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Message Stick
I’d like to thank our staff for their commitment
and work, which was highlighted in a staff
workshop held earlier this year with Social Justice
Commissioner Mick Gooda in attendance as one of
the presenters.
The State Government has applied for leave to
appeal that decision, which is disappointing.
Our people fought in every war in defense of
their country, despite the treatment they and their
families suffered.
This year we will continue with that hard work,
which will include developing a set of Memorandum
of Understandings (MOUs) with our neighbouring
Native Title rep bodies and we have also formed a
state-wide alliance of rep bodies which includes the
Torres Straits.
Our soldiers were also given a raw deal on their
return and we believe the Government should step
back from taking any further action.
So that means all the Native Title bodies in there
and the Native Title services in our state are
working together and because of that, we now
have a better dialogue with the State Government
through the Department of Natural Resources.
Leaders all around the country are concerned
about these changes, and it’s certainly a
backwards step.
We believe that is going to make it a lot easier for
ourselves, our members and the government to
have better understanding and more time to deal
with each matter, such as Future Acts and things
like that.
We have also had some success with the Federal
Court in terms of establishing that military orders
over land in the Second World War have not
affected our Native Title.
Finally, we are all watching to see what will happen
with changes to the Racial Discrimination Act.
The Prime Minister said he was going to work
closely with Aboriginal people but it seems to me
that at the same time he’s intent on diluting what
little power and protection we have.
We are the First Nation People of this country and
we have our rights.
Mala Neal
Chair, North Queensland Land Council
JUST IN... The National Congress of Australia’s First Peoples (Congress) says they reject
the government’s Freedom of Speech (Repeal of S. 18D) Bill 2014, which seeks to amend
the Racial Discrimination Act 1975 and has pursued a vigorous campaign to dissuade
federal parliamentarians from watering down the laws.
Congress has argued the views and experience
of Aboriginal and Torres Strait Islander peoples
strongly to Government,” Congress Co-Chair
Kirstie Parker said.
Ms Parker said they must not exclude public
discussions, broadcasts and publications from
common decency and current standards enshrined
in legislation. She said other worrying proposed
changes included a new ‘ordinary and reasonable
person’ test that was undefined and would almost
certainly become a loophole for perpetrators of
racial abuse.
The Government’s Freedom of Speech (Repeal of
S. 18D) Bill 2014 seeks to repeal section 18C of
the Act, as well as sections 18B, 18D, and 18E. It
seeks to insert a new section that omits the words
‘offend’, ‘insult’ and ‘humiliate’, retains ‘intimidate’,
and adds a narrowly-defined ‘vilify’, as well as
exempts ‘words, sounds, images or writing spoken,
broadcast, published or otherwise communicated in
the course of participating in the public discussion
of any political, social, cultural, religious, artistic,
academic or scientific matter’.
www.nationalcongress.com.au
BACKGROUND
At present, section 18C of the Racial Discrimination
Act 1975 makes it unlawful for a person to do an
act, otherwise than in private, that is reasonably
likely to offend, insult, humiliate or intimidate
another person or a group of people on the basis
of race, colour or national or ethnic origin. Section
18C is currently balanced by section 18D, which
exempts artistic works, statements, publication,
discussion or debate in the public interest, fair
and accurate reporting, and fair comment if the
comment is an expression of a genuinely held
belief.
Racial Discrimination
Act
#savetheRDA
Your Way Forward for Native Title
3
From our CEO
Since the Christmas 2013 edition, the NQLC
has had another consent determination of
Native Title, that of the Gudjala People in
Charters Towers on the 18th March 2014.
My congratulations to the Gudjala People on their
success.
The NQLC on 4-6 March 2014 held a three-day
workshop with Prescribed Body Corporates (PBCs)
and Registered Native Title Body Corporates
(RNTBCs) from throughout the region, the first of
its kind held by the NQLC with 22 PBCs (after the
Gudjala Determination) in the region.
The NQLC is focused on improving services to
PBCs.
From the positive response to the workshop, which
centred on compliance, funding opportunities
and good corporate governance, the NQLC will
certainly be making these type of workshops a
more regular feature of the NQLC calendar.
At that workshop I indicated I would communicate
to PBCs any news of the outcome of the recent
Deloitte Review as related to PBCs.
On the 7th March, Chair Neal and I attended a
briefing by Deloitte as to the options they have
submitted to Government.
I must emphasise at this time that Deloitte’s
findings are only recommendations at this stage
and the Department of Prime Minister & Cabinet
are yet to announce any significant decisions
arising from the review.
Overall Deloitte found that:
• While the establishment of the Native Title
system has been challenging, it is moving in a
positive direction;
• Native Title Representative Bodies (NTRBs),
Native Title Service Providers (NTSPs) and
Native Title holders are finding different ways
to use their Native Title, a natural reflection of
differences in circumstances;
• There are significant variations in the activities
of NTRBs and NTSPs, particularly in terms of
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Message Stick
the level of claims work and extent of progress
in providing post-determination support and
services; and,
• While there are continuing challenges with the
claims determination process, the single largest
concern is lack of PBC capacity, leading to the
frustration of their ability to enjoy their Native
Title.
In addressing shortcomings in PBC capacity the
NQLC has always asserted it is a resourcing
issue so it is pleasing to see that Deloitte has
recognised:
There may be a role for government to provide two
levels of support to PBCs - they are:
• Establishment Funding: temporary funding,
potentially $100,000 per annum. over a three
year period, to enable a PBC to determine its
future pathway; and,
• Basic Support Funding: ongoing funding,
subject to chosen pathway, potentially $20,000
- $50,000 per annum to enable a PBC to
fulfil its core compliance and governance
responsibilities;
• Each of these funding streams could be
means-tested;
• Ideally, funding would go to PBCs who
need to be empowered to make decisions.
However, it is recognised that not all PBCs
will be in a position to manage even relatively
small amounts of funding appropriately and
other options of providing support need to be
available. This could include funding through
NTRBs/NTSPs, possibly in the initial phases;
• The necessary funding envisaged is modest in
the context of the Native Title system and could
be found through re-prioritisation of existing
programs, including the Native Title program
managed by Prime Minister & Cabinet, or
consideration of activities of other parts of the
Native Title system such as the Indigenous
Land Corporation (ILC); and,
• PBC resource needs should also be
recognised in the settlements reached with
state and territory governments.
Whilst it is pleasing that there has been some
practical recommendations to address PBC
resourcing issues, the notion of rearranging
existing funding to include other Indigenous
programs is not the solution in our view.
The Deloitte Review was conducted on a “costs
neutral” basis, that is that there would be no new
money to allocate to PBCs and that savings would
have to be found to address this important need.
This is problematic in the NQLC’s case where we
still have a reasonable number of groups yet to
have a successful Native Title claim.
What is clearly needed is additional funding, not
rearranging existing funding.
A word of caution about the proposed
establishment funding is that it will not be like
the current PBC Basic Support Funding Program
to support staff, operational costs, equipment
purchases and the like but targeted towards
planning and securing other funding sources for
PBCs into the future.
Standby for further bulletins on the Government’s
response to the review findings.
Message Stick is now produced quarterly and
I commend this edition of it to all members and
clients of the NQLC.
Ian Kuch
CEO, North Queensland Land Council
Welcome to our new staff
Chris Harriss, Legal Officer, Cairns
I’m a Mareeba boy, schooled in Cairns who has spent time in the Air Force
and Army working with explosives and weapons systems amongst other
things. Bombs, bullets and bulldust we used to say!
This is the second time I’ve worked for the North Queensland Land Council,
having returned from two years at Cape York Land Council.
Now I’m a Senior Legal Officer working in the Future Acts Mining and
Exploration (FAME) section of NQLC.
I really enjoy getting out and working with clients and I get a lot of personal
satisfaction helping them to understand their rights and assist with their
issues.
Sarah Thomson, Anthropologist, Townsville
I finished my studies at Deakin University in Melbourne with first class
honours in Anthropology.
Shortly after I drove across the country to explore parts of Western Australia,
working for a time in the Kimberley and settling in Fremantle, where I started
work as an anthropologist with the South West Aboriginal Land and Sea
Council (SWALSC) on Noongar Native Title claims. After a couple of years I
then worked for a consulting company and worked closely with the Ngarluma
Native Title holders - specifically the elders - in a cultural heritage capacity.
During this time I started post graduate studies in sustainability and
development studies, with a particular interest in women’s issues.
What interests me most is current expressions of traditional practice and the
practical use and sharing of traditional cultural, spiritual and environmental
knowledge, especially women’s specialised knowledge.
It’s not surprising that I was drawn to anthropology as my paternal
grandfather’s brother was eminent anthropologist Donald Thomson,
who is remembered as a friend to the Yolngu People and “champion of
understanding” for the culture and society of Indigenous Australians (http://
en.wikipedia.org/wiki/Donald_Thomson).
Your Way Forward for Native Title
5
FAME
Future
Act,
Mining and
Exploration
If you have mining, exploration and/or infrastructure future acts affecting your lands,
you’d have most likely dealt with our FAME team based in the Cairns, Townsville and
Mackay offices.
The fabulous FAME team are made up of staff
with extensive experience in Native Title, most
particularly in future act works are:
Administration Staff:
Melony Philpot (more than three years in FAME);
and,
Pricilla Chapman – Notifications Officer (four
years).
Project Officers:
Danny O’Shane – Mining Coordinator (more than
seven years);
John Clark – Project Officer (six years);
Jasmine Clubb – Project Officer, ILUA
Implementation (more than five years; and,
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Natalie Harrison – Acting Project Officer, Mackay
(18 months).
Legal Officers:
Rhonda Jacobsen (better known as Jake) – Senior
Legal Officer-Manager (six years);
Trish Holding – Senior Legal Officer, Mackay (six
years);
Ricardo Martinez – Senior Legal Officer, Townsville
– (primarily does claim legal work and has been in
the FAME unit for 18 months); and,
Chris Harriss (three months).
NQLC has also employed Tony Johnson on a
casual basis to assist us with the conduct of a
number of workshops NQLC is conducting for our
clients.
WHAT DO WE DO?
In addition to the facilitation and assistance
function of NQLC, the FAME Unit fulfils:
• the ‘notification’ function – which means that
we receive notices from government and other
agencies advising of a proposed future act
and we send those notices to the Native Title
parties whose Native Title rights and interests
might be affected by the future acts;
• under ‘other functions’ we provide education/
information regarding future acts to increase
awareness of future acts generally and future
acts that specifically affect the Native Title
group.
Central to these services is a focus on building the
capacity of the Native Title groups to participate
in the future act processes - particularly in
understanding your rights and obligations in
dealing with proponents.
Programs we are currently running include:
• Future Act Notices Forum: this program
focuses on future act notices where the Native
Title parties have the ‘right to comment’;
the provisions to invoice explorers for the
annual administration fee and responding to
cultural heritage notices;
• ILUA Implementation Projects (FAME): core
activity involves an audit of a group’s ILUAs
and Agreements and assist the Native Title
group to implement the ILUA. We have also
commenced the projects of ‘Financial Advisory’
and ‘Community Planning’ activities.
• FAME Workshops: in October 2013, the
FAME Unit invited Native Title groups who
were affected by mining exploration and
infrastructure activities to a Workshop
titled: Identifying and Managing Community
Development Opportunities and Assets.
Building on that Workshop, we are currently
designing a second Workshop which we expect
to hold in May in Townsville: Engagement with
(mining and infrastructure) Industries and the
State.
HAVE QUESTIONS/WANT ASSISTANCE
If you have any questions about FAME or
would like to discuss any of our programs,
please contact the relevant Project Officer.
• Native Title Protection Conditions (NTPC)
Workshop: examines the NTPC’s highlighting
www.nqlc.com.au
The NQLC’s new look website has a huge
amount of information for you to peruse
which includes up-to-date information on
claim group meetings throughout the North
Queensland Land Council region.
nqlc.com.au also contains photographs and
videos from NQLC events such as claim meetings,
successful Native Title determinations, workshops
and up and coming events throughout our region.
Along with all this up-to-date information the website
also contains a section where you can signup to
receive the latest news on what we’re up to and
announcements for planned events and meeting.
Sign up TODAY for Our Online News!
Your Way Forward for Native Title
7
National significance in Federal Court
http://www.awm.gov.au/collection/053296
General Douglas MacArthur visited the Australian 9th Division in training on the Atherton Tablelands in Queensland, July
1943. Pic courtesy Australian War Memorial.
A Full Bench of the Federal Court last month ruled by majority that military orders made
during last century’s war years did not extinguish Native Title in a landmark decision for Bar
Barrum People and the North Queensland Land Council.
NQLC chair Errol Neal said the ruling was
significant, not only for the Bar Barrum (west of
Cairns and Townsville) People but for all Native Title
holders.
Evidence filed in the Court indicated there were
more than 13,500 such military orders across
Australia.
we were told not to go anywhere because of target
practice and there was ground forces,” he said.
“It was hard for us as kids, I remember all of that.
“So it became a big issue in the Federal Court in
Brisbane last year and it finished up in the Full
Federal Court of Australia.
Bar Barrum Elder Tom Congoo said it was good
news.
“All I can say is I’m very pleased that I was able
to chip in at the hearing and we’ve come out with
something for the people.
“At that time, I remember all that, because that was
in 1942 and 1945, I was only a young child, 7- or
8-year old, and all these planes used to fly over and
“It’s also helped other claims where people have
been in the same position for about ten years,
now they’re able to go ahead and get their
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decision for
Bar Barrum
possession and the continuation of underlying rights
was pre-supposed with strong implications that
rights and interests in the land continued and could
be exercised once Commonwealth possession
ceased.
“Further, the Australian Constitution provides that
the Commonwealth cannot acquire property of
another except on ‘just terms’ compensation,” Mr
Dore said. “The majority of the Court concluded
that the Bar Barrum People had had their ‘bundle
of rights’ seized and taken away for the period of
possession alone. This is a significant decision.”
NQLC CEO Ian Kuch said the State Government
had wasted tax payer money.
Bar Barrum Elder Tom Congoo in his country near Dimbula.
determinations, which I suppose will be the next
step for the Bar Barrum People.
“Now that we have accomplished that I’m very
pleased.”
NQLC Principal Legal Officer Martin Dore said The
National Security Act gave the Commonwealth
Government “flexible and far-reaching” powers to
allow them to defend Australia.
“Amongst those powers was one which allowed the
Minister of State for the Army to authorise military
personnel to take possession of any land for any
purpose,” he said.
“There are many claims throughout Queensland and
other parts of Australia potentially affected by these
Military Orders, so this decision is significant.
“The basis of the decision was there was no
intention that existing rights or interests in land
should be extinguished once an order was made,
it was solely about use of the land for the task at
hand.
“In other words while rights to the land concerned
could not be exercised whilst the Commonwealth
was in possession, once that possession ceased
all rights, including Native Title rights, could be
resumed.”
“When the State Government takes Traditional
Owners to Court on matters such as this it comes
at a very high price, which they have a greater
capacity to afford” he said.
“The NQLC has to seek special, limited funding
from the Prime Minister and Cabinet’s Contested
Litigation Fund in order to prepare and conduct a
trial.
“We believe the State Government should not be
wasting tax payer money by engaging in expensive
litigation where their prospects for success
were limited and where in New South Wales the
Government had already conceded military orders
did not create extinguishment in Native Title.
“The dollars spent on the trial by both parties could
have been more usefully used to progress Native
Title claims.
“I would also like to offer my congratulations to the
NQLC legal team and Bar Barrum People for their
courage in taking on the State Government in this
matter.”
STOP PRESS
In late March the State Government filed
an application seeking leave to appeal to
the High Court over this decision. More in
the June edition of Message Stick or visit
our website (http://www.nqlc.com.au) for
regular news updates.
He said factors influencing the decision included that
rights were restricted only during Commonwealth
Your Way Forward for Native Title
9
Gudjala celebrate...
...it’s their Country!
Gudjula Peoples’ “long and enduring connection” with their country was recognised by
Justice Logan in their successful Native Title Consent Determination in Charters Towers this
month.
Speaking on behalf of the State,
Kevin Murphy told the 200-strong
crowd of families and well-wishers
the the claim was huge.
“The historic and cultural
significant Dalrymple and Great
Basalt Wall National Parks and
of course the claim includes
significant stretches of the mighty
Burdekin River,” he said.
“Today’s decision recognises the
long and enduring connection
with your country.
“That connection is now forever
formally acknowledged by Justice
Logan’s decision today.”
“We always knew who we were
and where we came from and
that this is our country,” Applicant
10
Message Stick
Elizabeth Santo-Dodds told
Australian news wire service AAP.
“It’s about peace of mind that
people can’t question our
authority or authenticity over this
land.”
Christine Hero, also an Applicant,
said it was a big thing.
“It means so much, Elders and
ancestors struggled over years
to actually get Native Title and in
recognition of the Elders is very
important because the struggle is
over now,” she said.
“But there’s still work to be done
in the mainstream; you still got
to work along with the mines and
the farmers and such and build a
great relationship with them so we
can continue to work on our land.
“It’s great to have a big crowd
here; everyone was so proud and
so overwhelmed by how today
turned out, so I think it’s very
good.”
Younger Applicant Priscilla Huen
said if it wasn’t for the Elders they
wouldn’t be where they were.
“Over the years we’ve got a lot
of knowledge about our area just
with finding out everything about
our country, so I think it was a
really good outcome,” she said.
“And I’m proud and happy.
“And hopefully we can work with
the government organisations
now to moving forward for our
people.
“I’d like to see a lot of youth going
back on country.
“There’s things that happen on
country, you know like the hard
work and stuff like that; kids have
got it a lot easier nowadays, so I
think that’s a good outcome.
“I’d like to see a lot more of
Gudjala material around town for
tourism because a lot of tourists
come through here.
“I’d like to see signs and statures
and that of elders that have
passed and signs up saying this
is Gudjala country,
“I’m very proud to be Gudjala
today.”
Gloria Santo, also an applicant
said it took them nine years to get
there.
“It means everything; it means
everything to everyone here
because of what our elders,
ancestors have gone through,
and today marks a big significant
day for our people because
we are now the recognised
Traditional Owners for this area,”
she said.
“It took us many years to get
here, we thought it would never
come, but it finally did, at last,”
Applicant Gloria Santo said.
“I’m one of the applicants who
has been there from the start.
“It’s been a very long journey,
but everybody pulled through
and with the great help of North
Queensland Land Council.
“There is five of us (applicants);
one of them couldn’t come today
so his son stepped in for him.
“What happens next? Well, I hope
a lot of wonderful and great things
happen next for and especially for
our younger generation.
“I hope this will make it an easier
stepping stone for them to get to
where they want to get to.”
President of the Mgaroongoonda
Aboriginal Corporation, the
Prescribed Body Corporate for
their Native Title Country, Gary
Santo said it was a historical
Your Way Forward for Native Title
11
and monumental occasion for
everyone.
have today, there’s still a road to
travel but I wish you all the best.”
don’t forget about kinship and
connectedness.
“Pastoralists, regional councils
and all the stakeholders will be
negotiating with us for future
development in our community,”
he said.
“It’s been a nine to 12-year battle
and we have lost many elders
and community members leading
up to this point.”
Other speakers, including Gail
Mitchell and David Anderson, paid
their respects to the Elders and
acknowledged the work of those
who had come before them.
“Lastly, I sincerely thank the key
people who have made today a
reality, and I’m very, very proud to
be a Gudjala descendant.”
NQLC Chair Errol Neal
congratulated the Gudjala People.
“As traditional owners, we have a
responsibility as descendants to
take care of country in a modern
way, in a way that families and
family values are not forgotten,”
Ms Mitchell said.
“It’s been a long hard journey,
some of that work from Elders
who have passed on,” he said.
“North Queensland Land Council
was only too happy to help the
brothers, sisters and Elders of this
country achieve the outcome they
“But we don’t forget about
country, we don’t forget about
caring, that we don’t forget about
listening, that we don’t forget
about respect, that we don’t forget
about teaching and learning of
our young people and that we
Mr Anderson also thanked the
NQLC.
“I’d like to thank North
Queensland Land Council
for doing their best job to get
Determination for our people,” he
said.
“Our people have always been
proud of who they are and where
they come from; I’d like to see
young people carry on that
tradition in the next generation as
well.”
Check out the full Gudjula determination photo gallery under the
resource menu at www.nqlc.com.au
12
Message Stick
Your Way Forward for Native Title
13
NQLC staff workshop aims
to deliver on goals
Two important goals were behind
a Staff Training and Development
Workshop held over four days in
January this year coordinator Tony
Johnson writes.
The dual goals for the staff workshop were to
improve overall service delivery capability to
our clients and to continue to develop our staff’s
professional skills and expertise.
These two key areas underpin our ability as a
Native Title Representative Body to provide a
quality service delivery to our clients.
The workshop was held in Cairns from 28-31
January this year.
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Unfortunately some of our Townsville and Mackay
staff had to return home early because of weather
conditions brought on by Cyclone Hadi.
The program included presentations on workplace,
health and safety, Excel, website and photography,
anthropology, database, finance, Prescribed
Body Corporates project, cultural awareness
and a number of other continuing professional
development topics for Legal Officers including
preparation of forms in Native Title proceedings,
discovery, legal privilege and protection of
information, Future Act determination applications
(in conjunction with the National Native Title
Tribunal), and major sea law cases.
NLQC Chair Errol (Mala) Neal opened the
workshop with thanks to all staff for their ongoing
efforts in helping many Native Title groups
attain final determinations over the years, and
acknowledged that more work in support of our
mob in their aspirations for self determination
would also be required.
Keynote speakers included Social Justice
Commissioner Mick Gooda, who discussed his
Native Title and social justice reporting process
with NQLC staff, along with many of the major
social justice issues facing Indigenous Australians
today.
Also keynoting was Department of Prime Minister
& Cabinet’s Native Title Officer Stephen Ducksbury,
who offered advice about the PM&C’s Indigenous
program rationalisation, where Native Title is
located within the new structure and how the new
system is intended to operate.
There was also a number of positive suggestions
from staff on how to conduct future staff training
and development workshops.
Legal Officer attendees from the NQLC, and
some from the Cape York Land Council for
those sessions, were able to meet Queensland
Law Society criteria for annual Compulsory
Professional Development (CPD) requirements
for ongoing registration.
As an employer of more than 40 people, NQLC
keenly recognises the need to invest in continuing
to develop our most valuable asset – our staff –
which in turn improves our ability to continually
provide improved support for our People.
The workshop was an important part of that
ongoing process.
Feedback from workshop participants was
overwhelmingly supportive and positive, with
information relating to future staff training
needs identified including project management,
submission and report writing, personal
development, information technology, policy
development, conflict and dispute resolution,
tenure analysis, pleadings and notices of
contention.
Your Way Forward for Native Title
15
Points of Law
Poin
ts
of La
w
Poin
t
of L s
aw
Martin Dore is an experienced
Native Title lawyer. He grew up
and studied in Adelaide, and was
in private practice for 10-15 years
before moving to work with the
Yamatji Land and Sea Council in
Geraldton, WA. He has been with
the NQLC since 2000.
The myth of the instant vote in Board Meetings
I thought I would say a few words about what appears to be a widespread
misunderstanding of formal meeting procedure.
I have been in many meetings where a motion is
put and a view is expressed that a vote must be
taken immediately.
Under formal meeting procedure there should be
no discussion of an issue until a motion is moved it is the motion itself which should begin the whole
process of the debate.
Formal meeting procedure is:1. A motion is moved;
2. (If required), the motion is seconded;
3. The mover has first right of speaking in favour;
4. The Chair then allows a member who does not
support the motion to speak against;
5. The for and against speakers alternate in turn
as invited by the Chair;
6. When the debate is finalised or the Chair rules
that enough time has been spent, a vote is
taken.
It seems that common practice has relaxed these
strict procedures so general discussion of a matter
occurs first and ultimately a decision is formalised
by a motion being put and voted on.
However there is no statutory or common law
requirement to immediately vote once a motion
has been put.
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It is the Chair’s responsibility to ensure adequate
debate on any motion is allowed.
Where there has been discussion of a point
prior to a motion being put, the Chair still has a
responsibility to allow proper debate.
The Chair can decide that there has been enough
discussion and call for an immediate vote.
If not challenged on this, the vote can proceed.
A member who has moved a motion cannot insist
on an immediate vote.
If there are persons who wish to debate the motion,
the Chair has a duty to allow debate but may set
limits on the extent of debate.
Seconding a Motion
It is common practice to have a seconder for any
motion before a debate or vote.
However, this is - strictly speaking - not required
unless the rules of the organisation concerned
specifically require it.
Martin Dore
Principal Legal Officer
North Queensland Land Council
And the moral to the story is...
As a director, your duty to the corporation and its members is paramount and must take
precedence over any other duty. Failure to observe directors duties can result in heavy
penalties, NQLC Principal Legal Officer Martin Dore writes.
In November 2013 Justice Logan of the Federal
Court handed down reasons for judgment in the
matter of Registrar of Aboriginal and Torres Strait
Islanders Corporation v Kerkhoffs.
The application by the Registrar was for civil penalty
orders against Ms Kerkhoffs for breaches of the
Corporations (Aboriginal & Torres Strait Islander CATSI) Act incurred in the running of the Aboriginal
and Torres Strait Islanders Corporation for Welfare
Services - a CATSI corporation in Mount Isa set
up to provide Indigenous housing and owned 33
houses.
Ms Kerkhoffs was initially a director and later
became the chairperson. At the time the Corporation
was in financial difficulty, principally as a result of
failure to recover rental payments due to it over a
period of years.
The breaches, which Ms Kerkhoffs admitted took
place over three years, are summarised as follows:
1) causing the corporation to forgive rent arrears
due by Ms Kerkhoffs to the amount of $23,194.
2) unauthorised receipt of financial benefit or
“wages” which when added to the rental
arrears, brought the total owing to $31, 414.17.
3) causing the corporation to enter into a contract
to sell the house Ms Kerkhoffs rented to herself
and her husband at an undervalue (estimated
at $42, 000 below market value).
The Court noted that Ms Kerkhoffs felt she was
under considerable family pressure, particularly
from her mother, a respected Elder in relation to
governance matters.
Ms Kerkoffs also failed to keep proper financial
records for the Corporation which the Registrar
described as “the worst case [he had] encountered
in respect of keeping books and the general
organisation of the office”.
The sale at undervalue did not go through. Ms
Kerkhoffs and her husband ran their own modestly
successful company and Ms Kerkhoffs did the
books for that company and was not without skills in
that area.
The Court noted that “where particular clan
obligations and intimate family obligations have
intruded, Ms Kerkhoffs has succumbed to those
obligations, as opposed to observing what one might
term wider obligations through the Corporation to
the Aboriginal community more generally”.
The Court also noted this was not unique to Ms
Kerkhoffs’ situation, but potentially existed for all
Aboriginal corporations and that balancing clan
obligations and the obligations of prudent financial
management was a challenge.
The Court said: “those who hold office in such
corporations must nonetheless observe standards
of corporate governance which are akin to those
who hold office as a director of a corporation
established under the Corporations Act 2001 (Cth).
In imposing that particular obligation, necessary as it
is, particularly where public funds are deployed, the
CATSI Act is pregnant with the potential of a clash
between conventional expectations of appropriate
corporate governance and directors’ behaviours and
the very real, heartfelt obligations of clan and tribe to
a fellow member of a clan or tribe in the Australian
Aboriginal Torres Strait Islander community”.
Effectively, the Court said the obligation as a
corporate director comes first. Ms Kerkhoffs’
downfall was that she put clan and family matters
first.
The Court ordered Ms Kerkhoffs:
1. pay the corporation $31, 414;
2. pay a penalty of $50,000; and
3. be disqualified from being a director of CATSI
Act Corporations for five years.
Shortly after the hearing concluded, the Registrar
brought to the Court’s attention that submissions
they had made (and which both Ms Kerkhoffs
Counsel and the Court has not challenged) to the
effect that there were no provisions that would
mean that a disqualification under CATSI would
automatically “flow on” to act as a disqualification
under mainstream corporation law were wrong.
There were such provisions.
This would mean Ms Kerkhoffs could not continue
to be a director in the private business run by her
husband and her.
Judge Logan however, after considering this, felt
that the penalty should stand and no change to the
penalty order was made.
Postscript
Ms Kerkoffs has lodged an appeal against the
sentencing which is due to be heard in the May
sittings of the Full Federal Court sitting as a Court of
Appeal.
Your Way Forward for Native Title
17
NQLC Legal Officer David Saylor, facilitator Tony Johnson, ORIC Regional Officer Jennifer Reuben & workshop organiser
Brad Foster.
Workshop success for PBC reps.
Last month PBCs from across the NQLC region took part in a three-day workshop in Cairns
organised by PBC Project Officer Brad Foster.
Mr Foster said up to then his primary goal had been
gathering up-to-date information on PBC aspirations
and challenges to help provide the NQLC with a
comprehensive picture of their current capacity to
carry out their statutory obligations.
He said it had been a long road to get to the larger
workshop with several smaller workshops held
along the way.
“I have worked this past year to get an idea of what
challenges PBCs are experiencing, and to get
some ideas on how we can collaborate with them to
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make sure they are not facing those challenges in
isolation,” he said.
“Ultimately it’s about them running their own affairs
with some elements of collective planning so there’s
more chances to get resources instead of doing
things individually.”
He said the NQLC had made the decision to assist
with improving their effectiveness and find where
support was for them to adequately carry out their
functions.
“It’s taken nine months to get to the stage of having
the larger workshop where we all got to work on
problems together,” he said.
“I had also come to realise we needed a PBC
toolkit to help with linking into economic opportunity
through things like regional planning opportunities,
funding opportunities, and basically how to do what
they needed to do on their own.”
The workshop had three themes, day one was
about compliance with their statutory obligations
and funding agreements, day two centred
on opportunities for PBCs where a variety of
speakers addressed representatives about funding
opportunities currently available.
Betty Cashmere & Joyce Bean (Jirrabul (Wabubdadda AC)
Speakers included presentations from Office of
the Registrar for Indigenous Corporations (ORIC),
AIATSIS, Regional Development Australia, Terrain
NRM, the Department of Environment, Indigenous
Business Australia and Aboriginal Carbon Fund.
Day three was a session on good corporate
governance by well-known Melbourne lawyer Shane
Carroll.
NQLC Townsville Principal Legal Officer David
Sailor hosted a session on decision-making
processes.
“My part of the session looked at decision-making
processes for PBCs, being confident in making
decisions and looking at decisions being made
in accordance with maybe a traditional system or
an agreed and adopted process, and decisions
also being made in accordance with the PBC
regulations,” he said.
Tina & Rona Hart (Djiru Warrangburra)
“It’s all about the PBCs becoming confident in
making their decisions and empowering the group
to make their decisions so they can’t be challenged;
that was the guts of it - sticking together and being
confident and making decisions as a legitimate
stakeholder.”
Mr Foster said the workshop was a success for
those who attended.
Raylene Oui (Kyburra Munda Yalga AC), Justin Power
(Bulganana Jangga AC) & Glennis Noble (Gunggandji
PBC)
Your Way Forward for Native Title
19
Frank Roy, Allison Halliday, Luke Clubb & Jasmine Clubb
(Dulabed Malanbarra Yidinji)
Wayne Grogan (Western Yalanji AC) & Raelene Madigan
(Muluridji)
Marcia Jerry (Jirramay), Sharon Prior (Ewamian) &
Janet Busch (Tagalaka) and Below: Chris Richardson
(Djabugay Tribal AC) & Jenny Lacey (Ewamian)
Kalvin Thompson (Gugubadhun),
Natalie Forbes (Choorechillum
[Nadjon-Jii]), Hazel Ilin (Gugubadhun)
& Cecil Leftwich (Gunggandji)
Tina & Rona Hart (Djiru Warrangburra)
Angie Akee (Kyburra Munda Yalga) &
Hazel Ilin (Gugu Badhun)
Check out more photographs from the PBC workshop
under the resource menu www.nqlc.com.au
Aboriginal Carbon Fund is a not-for-profit
company supporting Traditional Owners in
FNQ. Contact Rowan Foley on 0427 013 318 for
a free site inspection and preliminary carbon
assessment.