Australia’s native title system is in need of reform

Australia’s native title system is in need of reform.

South Australian elder Mark Koolmatrie and chair of the Tribal owners of Southern South Australia, at Port Noarlunga. Picture: Roy Van Der Vegt

Twenty-five years after its introduction, Aboriginal native title is failing to deliver tangible benefits in many parts of Australia and at least two state Aboriginal Affairs departments and federal minister Ken Wyatt are having a serious look at how to fix it.

South Australian Aboriginal elder Mark Koolmatrie created a stir in Adelaide legal and political circles with a 400-word piece in this newspaper last month, criticising the operation of native title. Koolmatrie, who runs an Aboriginal tourism business in the state’s south, is a vocal critic of the “big man, big clan” domination of the nation’s $2bn-a-year native title royalties system.

“These guys believe that it is their birthright to control everybody,” he says of some of the local strongmen who seem to dominate local native title bodies in parts of the state. “They believe they have a right to do what they wish with country and with financial assets. Everybody who is a claimant to native title for a particular area should have a right to transparent access to the financial records of that native title association.”

Native title is a relatively new area of public policy and law. It grew out of Paul Keating’s response to the Mabo decision and later John Howard’s response to the High Court’s Wik decision, and specifically from the Ten Point Plan that recommended Indigenous Land Use agreements between pastoralists, miners and native title claimants as a way to avoid drawn-out legal battles over claims.

Native title royalties are really a charge for the extinguishment of certain traditional cultural rights over land to be mined. These payments were seen two decades ago as a way forward for traditional owners in areas where economic development has been slow or non-existent. In early successful arrangements, such as Rio Tinto’s Century Zinc mine in Queensland’s Gulf Country, native title brought jobs, training and careers to an area that once relied on welfare.

And, while there are successful mining operations and Aboriginal communities that benefit from them, there are also signs that in some communities across the country, such benefits are not shared widely among claimants, especially in South Australia.

In SA, two so-called Aboriginal Prescribed Bodies Corporate (APBC) are in administration by the Office of the Registrar of Indigenous Corporations (ORIC), and another three are expected to follow. South Australia has 20 of the country’s 220 native title bodies corporate.

In Western Australia, Labor Attorney-General John Quigley in June announced an inquiry into the operations of charitable trusts “holding potentially hundreds of millions of dollars in mining royalties”.

“When I go to these remote areas … where the beneficiaries of these trusts reside … I look at the dreadful living conditions that some of the indigenous people are living in and I think of the money being paid by way of mining rights compensation, I’m appalled,” Quigley said on June 15.

There have also been problems in Queensland, in the troubled Cape York town of Aurukun, with a series of riots and violent crimes in the town of 1000 breaking out earlier this year.

Some of the tensions can be sheeted back to community tensions over native title royalties. The local Western Cape Communities Trust reported a $16m net profit last year, and the trust has $120m in cash and assets built up from royalties paid by Rio Tinto for mining bauxite on traditional land. Within the community, there are concerns that the funds are not being spent for the greater good.

Rio has been embroiled in a separate but related native title dispute over its destruction of two caves in Juukan Gorge in the Pilbara in WA in late May. While Rio could have handled the matter better, WA Treasurer and Minister for Indigenous Affairs Ben Wyatt, who approved Rio’s destruction of the caves, says the outcry seems to reflect a view that “traditional owners are simple and unsophisticated managers of their lands who don’t fully understand what’s best for them or their people”.

Wyatt is a nephew of federal Indigenous Australians Minister Ken Wyatt.

Continued expansion of iron ore mining in the Pilbara by Rio, BHP and Fortescue will almost certainly involve the destruction of other sites, but that is precisely why miners are paying for the extinguishment of some traditional heritage.

Inquirer has spoken to dozens of politicians, federal and state bureaucrats, academics, native title holders and senior mining industry figures, who all agree something needs to be done. But in an era of self-determination — alluded to by Ben Wyatt — no political leader is keen to come in over the top with an inquiry that could be portrayed by critics within the present system as paternalistic or even racist.

Cloud over royalties

Koolmatrie, 56, does not depend on native title royalties. He is a member of a South Australian ginger group pushing for reform of the native title system in the state. The loosely aligned SA Native Title Reform Group is active on Facebook and includes an eclectic membership of lawyers, accountants, miners, anthropologists and Aboriginal native title claimants, all bound by one clear conviction: the present Prescribed Body Corporate system of native title payments is not working properly for many of the poorer, more traditional rights holders.

Indeed, Koolmatrie is of the view that there should be a “full judicial inquiry into governance of Aboriginal corporations”.

Richard Yeeles, a former senior mining executive who has negotiated large native title royalty agreements for BHP and who now works in SA Premier Steven Marshall’s department, is sympathetic to the views of Koolmatrie and the reform group but makes the problem clear.

“Many people have approached the government about this matter since its election in March 2018 and one point I always make to them is governments are not party to these agreements. They are between mining companies and Aboriginal claimants,” he says.

“The Premier’s got a view that Aboriginal people are asking to be empowered and to manage their own affairs so unless there’s a very good reason, he is not keen to intervene in arrangements between Aboriginal people and private businesses.”

Yeeles did point to the benefits set out in the charitable trust set up by BHP when negotiating with three native title groups over the state’s Olympic Dam site, and made clear he understood there were issues at one of the SA groups under ORIC administration, the Adnyamathanha Traditional Lands Association (ATLA).

Vince Coulthard, Chief Executive Officer of the Adnyamathanha Traditional Lands Association. PICTURE: Brad Fleet

Yeeles also did not rule out a state inquiry into the situation, depending on information coming forward to make the case for government involvement. Indeed, after Koolmatrie’s piece was published in The Australian in July, the SA Premier said: “The government is prepared to consider any evidence … that would justify further action to ensure Aboriginal people are not denied access to benefits to which they are entitled.”

But this is where the difficulty lies for would-be reformers. While ATLA is in administration, investigations of its accounts make clear details of expenditure, membership and meeting minutes are tardy at best.

Inquirer spoke to two senior Adnyamathanha women, Sally Clark and Cheryl Waye, who want more details than have been available to them as ATLA members. Both say some family members have received only occasional royalty payments of a few hundred dollars every few years. Clark, an accountant, says ATLA has been receiving more than $3m a year for 12 years from the Beverley uranium mine in the Flinders Ranges.

She believes she is entitled to more information about the accounts of ATLA and its associates, the Cramond investment vehicle that has acquired a share in the Wilpena Pound resort in the Flinders Ranges and the Rangelea charitable trust that receives and distributes royalties from Beverley’s operator, Heathgate Resources.

“ATLA’s been a closed book. We’ve had no access to information other than what was publicly available,” Clark told Inquirer.

Waye was a director of Adnyamathanha Elders Women in 2013-14 and told Inquirer she often lobbies on behalf of elders who need help buying whitegoods or getting repairs done but is always told there is no money in ATLA or in Cramond and they have to wait. When a payment comes it is usually $400, she says.

“How can an elder buy a fridge or an airconditioner for $400?” she asks.

Questions asked

Vincent Coulthard is the head of a powerful local family in the Port Augusta region, and a former ATLA chief executive and director before it was placed in administration. Coulthard was also a director and secretary of Cramond. Family members Glenis, Terrence and Pauline Coulthard were previous directors of ATLA and Cramond. Vincent Coulthard was also the chairman — and his wife CEO — of an Aboriginal medical service, Pika Wiya, that was placed into administration by ORIC in 2014, and eventually found to be $2m in the red. He remains a director of the Rangelea charitable trust.

Accounting firm William Buck was engaged on March 20 last year to review spending by Cramond as Trustee of the Adnyamathanha Traditional Lands Trust. The ATLT owns 12.62 per cent of Wilpena Pound Resort, the balance being held by Indigenous Business Australia. Buck made several recommendations suggesting ATLA compel Cramond directors to provide information withheld from its investigation and appoint an independent director to Cramond.

“There is sufficient uncertainty around the financial activity of ATLT to warrant further investigative actions, including a more detailed forensic assessment of financial activity.”

More specific are questions raised by ORIC in a letter dated February 7, 2020, to directors of ATLA. Kevin Vu, delegate of the Registrar of Aboriginal and Torres Strait Islander Corporations, was writing to outline reasons for appointment of a special administrator. He mentions irregularities and lack of documentation concerning 50 payments totalling $29,900 to director Damian Coulthard and $15,700 to director Vivianne McKenzie. Vu queries banking records showing Vincent and Damian Coulthard and McKenzie all had access to daily $1m limits on internet banking, but there was no record of ATLA directors approving this limit.

Vu also suspected ATLA may have been trading while insolvent and focused heavily on the Buck queries about Cramond.

Senior Adnyamathanha woman Cheryl Waye. Supplied

None of this proves wrongdoing in connection with the financial affairs of ATLA or its associated companies or by any director or member of the Coulthard family. These are just questions being asked by ORIC, and Coulthard is highly respected. He is close to ALP Aboriginal Affairs spokesman Senator Pat Dodson and to former Sydney Swans AFL superstar Adam Goodes.

But, as Clark and Waye point out, many of the association’s members live in dire poverty and see very little of the royalty money flowing into ATLA.

Says Clark: “Concerned members over the years have passed motions calling for the appointment of a forensic examiner to look at the accounts of ATLA but that’s never been listened to. We have been lobbying ORIC to intervene for years but they always defer to their view that members need to work with directors of Aboriginal corporations. I spoke to ORIC about the ATLA administration but they are determined we should forget the past.

“I have offered to help ORIC pro bono with the money story but they’re not interested.”

Waye, 64, questions why those who need access to native title royalties the most struggle to receive funds. She fears her daughter will never receive any royalties and says she wants the current directors removed.

Inquirer has contacted VincentCoulthard for comment directly and through a local Port Augusta Aboriginal radio station, but he has not returned calls.

Litigation burden

South Australia’s other ORIC administration concerns the Kokatha Aboriginal Corporation based in Port Augusta. Many inside Kokatha believe ORIC blundered by placing the corporation in administration for what was essentially family and interpersonal rivalry between groups of directors. The administration investigation appears to have found no evidence of financial impropriety within Kokatha, which receives royalties from Oz Minerals and BHP.

Former Kokatha chairman Chris Larkin told Inquirer the entire native title regime needed to be rethought. According to Larkin, the federal government, via ORIC, had essentially appropriated the private income of Kokatha members on the say-so of a group of directors representing just five families who complained regularly to ORIC.

“This is despite evidence of successful job creation and revenue generation for members at Carrapateena and at Roxby Downs. This kind of confiscation of private rights seems at odds with Liberal Party philosophy,” Larkin said.

Kokatha has 800 members and as many as 4000 common-law members. Its main source of income is royalties from BHP’s Olympic Dam mine project at Roxby Downs and Oz Minerals’ copper-gold project at Carrapateena. The Kokatha people are traditional owners of 140,000sq km of land in the state’s north, stretching north from Port Augusta and from Lake Torrens in the east to the Gawler Rangers in the west.

Vu’s statement of reasons for administration, sent to Kokatha directors in October last year, could not be more different from his letter to ATLA directors. Vu essentially confirms Kokatha is being put into administration because ORIC’s investigators believe internal director relationships are too fractious. “The directors are split along family lines and directors’ meetings often deteriorate into chaos, shouting and abuse,” according to ORIC investigators.

Kokatha’s lawyers fired back, opposing the administration and pointing to the examiners’ apparent lack of understanding of disputes among traditional Aboriginal clan groups.

Tim Campbell, of Adelaide law firm Campbell Law, wrote to ORIC objecting to aspects of its examination — namely, that only four of 15 directors were spoken to by examiners. Far more important, the examiners completely overlooked “the importance of Indigenous cultural issues”, he wrote. “It should be acknowledged the manner in which Kokatha people resolve disputes is somewhat different to how non-Indigenous people might conduct themselves in a similar situation.”

This gets to the heart of many problems with native title and Prescribed Aboriginal Bodies Corporate. And many academics, mining executives and lawyers — even lawyers from within the native title system — have told Inquirer of problems reconciling traditional Aboriginal approaches to legal matters with Western law.

Perth-based Raelene Webb QC, president of the National Native Title Tribunal from 2013 to 2018, has probably said it best of all. Delivering the annual John Mansfield lecture at Adelaide University last year she made it clear she believed there needs to be a better way forward for Aboriginal claimants. She said with “the spectre of complex, lengthy and expensive native title compensation claims to come”, governments should consider non-litigated ways to compensate native title claimants.

Like many of her friends in the SA reform group, she believes the legal costs of the current system are prohibitive.

“The journey to recognition of native title can be long and arduous; it’s also disruptive for Indigenous groups required to establish their adherence to traditional laws and customs in order to succeed. Once native title has been determined to exist, further disruption occurs, this time when non-Indigenous governance structures, which contrast to Indigenous cultural governance, are imposed.”

’Too much money’

A spokesman for Ken Wyatt said the minister was “very keen to see improved governance”, and looked forward to the release of findings of the review of the Corporations (Aboriginal and Torres Strait Islander) Act.

The current review is considering how the Act can better operate to achieve this goal.

One senior native title expert who did not wish to be named says: “Unlike other CATSI bodies which are entirely voluntary, a health service for example, where membership is entirely up to the individual, if you are a traditional owner and you want to have your say in managing your country you must be a member of that PBC. So PBCs are bringing together people who don’t necessarily agree about everything, because unlike many other CATSI corporations they don’t have a common purpose.

“There is a second problem. A PBC may commonly have two or three hundred members, but it may be making decisions that affect thousands of common-law native title rights holders who are not members. This too is likely to create disputes among members.’’

Under the present Act there is no requirement for royalty money to be directly managed by a PBC. Many agreements with mining companies provide for royalty money to be paid into a separate charitable trust for tax benefit purposes. Problems arise where management of the trust is distinct from management of the PBC.

“A lot of concern in WA, for example, comes back to the failures of trust managers in cities far from claimants who have no idea of the needs of native title holders,’’ one native title bureaucrat said last week. “This also creates problems with extraordinary Sydney or Melbourne top-end-of-town lawyer rates being charged for simple advice to trust managers in remote areas.”

Another native title bureaucrat said it was undoubtedly the case that two decades down the track, the system had not provided traditional owners with the sort of benefits hoped for at the start.

Andrew Cole, Managing Director and CEO, OZ Minerals, and Chris Larkin, Chairman, Kokatha Aboriginal Corporation, signing the Partnering Agreement at the opening of the Tjati Decline, Carrapateena (3 November 2016)

“Agreements still have too much welfare focus. We need to move to procurement and involvement in jobs in projects for native title holders and their families. Partly, this was because mining companies did not want to be seen to be paying for rivers of grog into their communities. Their response, understandably, was to try to tie up trust moneys and how they could be spent. This may have stopped rivers of grog but it has also stopped legitimate economic activity.”

Many former mining executives Inquirer has spoken to agree the system can be improved and point to overseas examples where it is operating for the benefit of traditional owners.

John Fargher is an economic development economist living in South Australia who still runs his own consultancy. He has done work around the world on mining trusts for the World Bank. He says negotiating mining rights was easier in the past without the presence of lawyers and native title specialists.

“I helped negotiate mining rights on the first mine established on Aboriginal land – the Granites goldmine in the Tanami Desert. The owner of the company wanted to do the right thing by Aboriginal people and brought me in because I had been working in Africa on such agreements. Sitting down with traditional men to negotiate a mine, their first question was always, ‘will there be jobs?’. There were no lawyers involved,” Fargher says.

“What’s missing in the new regime is accountability and agency. There’s too much money. People lie for the money and young people bypass the elders. We have entrenched principal agents, lawyers, directors, etc, and the elders are now disempowered.

“The mining companies who don’t have the negotiating skills and just want to get a deal done, they go to the agents.

“We need communities that are ready to say, ‘look, we are ready to work with you’.”

Fargher helped settle arrangements in the Pilbara in the 1990s for Hamersley Iron, later Rio Tinto, and talks about how easy it was for the company to listen to and address simple community concerns, like helping women keep their kids at school or shooting positive footage of local communities that was given to the WA television news channels so nightly news items did not always present them in a poor light.

Bruce Harvey, 65, is a retired exploration geologist and supporter of the reform group. After 20 years with Rio in mining he went back to university and did an MBA. He came back to Rio as general manager of Aboriginal and Community Relations. Three years later he went overseas to help set up Rio’s global social performance arm.

Harvey says today’s big miners lack the leadership drive from the top that propelled the native title system in the 90s.

“Rio used to get people like me or Marcia Langton to go to sites for a background briefing every two months. That was very useful in guiding the company’s direction.

“Starting about 10 years ago there has been this slippage and no one now understands how we reached the positions we did. You ring people in these corporate roles at HQ and they no longer have a clue how we got where we are. People with no experience get plonked into managing Aboriginal relations and don’t have a clue.”

Last word to Paul Keath, retired lawyer and company director, and the driving force behind the SA reform group: “We will be making the case that the federal regulator of Aboriginal corporations, ORIC, has failed to do its job and talk of reform is pointless. They should be wound down and folded into ASIC at the end of the current inquiry. We need to do better for Aboriginal Australians.”

Chris Mitchell is an ambassador for the Australian Indigenous Education Foundation. He is an AO for services to media, journalism and Aboriginal education, and was a daily newspaper editor for 24 years.