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?
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?
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
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.
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.
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?
To be uploaded