On March 17 2021, CNTA Director Nicolas Peterson and Research Fellow Julie Finlayson attended a Forum for Native Title practitioners  held in Sydney by the NSW District Registry of the Federal Court. The purpose of the Forum was to continue ongoing discussions and developing best practice processes for the Native Title practice area in New South Wales. Anthropologists Jitendra Kumerage and David Martin also attended, and each gave a presentation; Jitendra as a member of a panel Connection: Meeting evidentiary standards for a consent determination, and David Martin a response to a presentation on anthropologists roles in Native Title proceedings.

Certain of the papers and presentations will be of direct interest not only to CNTA’s anthropologist constituency, but also to lawyers working in the Native Title area more generally, and not just in New South Wales.

These are:

Regarding access to  Court Expert and other reports and documents

Justice Mortimer’s proposals regarding the roles of anthropologists in Native Title proceedings, and responses to them.

Trustee corporations and their Indigenous beneficiaries: meeting challenges in the sustainable utilisation of trust funds.

Presentations from a workshop held in Alice Springs, 27-28 May, 2021.

This workshop focussed on the governance of compensation and other such funds held in trust for Indigenous groups, not on the internal governance of RNTBCs and other Trustee corporations. Its objective is to improve the practice of lawyers, anthropologists, and other specialists in working with Native Title Holders in this significant aspect of the post-determination arena. Presentations are being progressively uploaded to this site.

Background and rationale

Prescribed Bodies Corporate are established under the ‘CATSI’ Act, comprising over 600 pages focusing almost exclusively on what the Act terms the ‘internal governance’ of the corporations themselves.  PBCs’ functions are set out in the current PBC Regulations and include:

  • for Trustee PBCs in Reg. 6(b), to hold money (including payments received as compensation or otherwise related to the native title rights and interests) in trust; and
  • in 6(c) to invest or otherwise apply money held in trust as directed by the common law holders.

Regulation 7(c) and 7(d) set out the identical functions for Agent PBCs. How this direction is to be implemented is a matter for each Trust. That is, while the principles and mechanisms by which internal governance of the PBC is to be conducted are prescribed in detail in the CATSI Act, the governance principles by which the common law holders are to direct their PBC to apply the money held in trust, and how the PBC is to engage with the native title holder beneficiaries in determining how the trust funds are to be utilised, are left essentially unspecified.

Even where attention has been given to the objectives of a Trust and these have been negotiated with the Indigenous beneficiaries, as is the case with what are represented as best-practice mining agreements, it appears to be common that internal structures of the broader beneficiary group below the level of language-named ‘tribes’ or ‘nations’ are not reflected in Agreements and Trust Deeds or other corporate instruments which bear on how benefits from the Trust are to be accessed. Yet, Native Title claims themselves illustrate that the common law holders for a given claim or determination, whether described as a language-named group or set of such groups, a community, or some other collectivising label, are highly complex in structure and are not infrequently beset by endemic disputation amongst constituent local groups.  This is reflected in much of the politicking post determination in the internal governance of RNTBCs, and there is no reason to suppose that this conflict does not also impact on the way access to Trust funds is established.

This workshop focussed on this latter governance arena, not on the internal governance of RNTBCs and other Trustee corporations. Its objective is to draw on anthropological, legal, and community development thinking to improve the practice of specialists working with Native Title Holders in this significant but typically neglected aspect of the post-determination arena.

Setting the scene anthropologically: David Martin: Why should more attention be paid to the governance of trust funds?

Podcast

Videocast

Downloadable text of David Martin’s presentation

Setting the scene legally: Susan Phillips and Patricia Lane: What is going wrong in use of trust funds in PBCs and other Indigenous trustee corporations; and what remedies are there?

Podcast

Videocast

Downloadable text of the presentation of Susan Phillips and Patricia Lane

Setting the scene – Emeritus Professor Nic Peterson: Native title funds and the public interest

Podcast

Videocast

Downloadable text of Nic Peterson’s presentation

Central Land Council: Lessons from the field – The experience of the CLC and the Warlpiri Education and Training Trust

CLC has been working with Warlpiri traditional owners and educators since 2001 to establish the WETT – an innovative trust established to invest mining royalties from the Tanami gold mine in education and training programs. Beneficiaries are four Warlpiri communities of Lajamanu, Nyirrpi, Yuendumu and Willowra.

Staff from the CLC’s Community Development Unit and members of the WETT’s Warlpiri advisory committee will discuss their achievements to date, how they found a workable governance structure and the challenges faced.

Videocast

Kevin Smith and Felicity Thiessen (QSNTS): Disentangling Indigenous governance – Who is the Boss?

Deciphering complex community, organisational and operational governance domains may provide an answer.  The presentation will focus on Trustee/beneficiary tensions and solutions.

Videocast

Nadja Mack and Lisa Castanelli (Native Title Policy and Agreement and PBC Policy, NIAA): Key issues in the NTA amendments and regulations as they affect the PBC relationship with trusts

Videocast

To be uploaded

Tony McAvoy in conversation with David Trigger: Trusts & native title holder beneficiaries: legal and anthropological perspectives

  • Governance arrangements for the interface between Trusts and Indigenous beneficiaries
  • Families and sub-groups’ access to Trust funds
  • Funds available for communal development purposes as well as for individuals’ projects?
  • How should lawyers, community development specialists and anthropologists contribute to both the establishment and management of such trusts?

Videocast

To be uploaded

Issues for anthropological evidence in Native Title claims on matters of trade and commerce

This virtual workshop specifically for anthropological consultants was held on 25 June 2020. Nicolas Peterson focused on the relevant literature on these issues, while David Trigger considered the complexities facing anthropologists called to give expert evidence in Native Title claims on the rights to trade or to engage in commerce.

Presentations by Nicolas Peterson and David Trigger

Question and answer session with audience and presenters

References for Nic Peterson’s presentation

Trade and commerce references.pdf

During the Covid-19 lock down, CNTA is sponsoring virtual meetings of all NTRB/NTSP Research Managers. The objective is not only to support communication amongst peers, but to facilitate discussion around emerging Native Title issues, such as compensation, and their implications for anthropological methodologies and opinions around the issue of ‘cultural loss’ identified by the High Court.