High Court case may affect deals in Aboriginal land

By ERWIN CHLANDA

 

Action taken by a Top End elder against the Northern Land Council (NLC), now in the High Court, could have a significant impact on the way the Central Land Council (CLC) is dealing with millions of dollars worth of assets owned by the Aboriginal people of The Centre.

 

Right: The court was dealing with a delegation of decision-making in an Indigenous Land Use Agreement, like the one underpinning the Mount Johns Valley subdivision in Alice Springs. 

 

The issue in Northern Land Council v Quall – that is Kevin Lance Quall – is this: Can decisions about Aboriginal land be “delegated,” or do they need to be made by the “representative bodies” –  76 elected people in the case of the NLC. It’s 90 for the CLC.

 

The Federal Court was examining the certification under the Native Title Act of the Kenbi Indigenous Land Use Agreement, which was delegated to the former CEO of the NLC, Joe Morrison.

 

The court has said twice, this certification function cannot be delegated.

 

It has to be made by a representative body. The Native Title Act recognises the land councils as such representative bodies.

 

In June last year this was the decision of Justice John Reeves, and in May this year three judges of the court rejected an appeal of his decision.

 

The NT Government is a party to this action, on the side of the NLC.

 

Mr Quall is represented by Darwin lawyers Robert Welfare & Associates.

 

Last week the High Court gave the respondents leave to appeal the findings of the Federal Court.

 

The matter is putting the Kenbi ILUA in the Top End on hold.

 

The CLC must be keeping its ear close to the ground on this one.

 

Are the Indigenous Land Use Agreements (ILUAs) within its region defective? Their certification is also highly likely to have been delegated. Examples close to home are the Mount Johns and Stirling Heights subdivisions in Alice Springs.

 

Further, could the decision in NLC v Quall be extended to other dealings with Aboriginal property?

 

Could it be relevant to the CLC’s council of 90 members, elected for three years, and meeting just three times a year, coping with complex decisions around acquiring and managing assets worth tens – possibly hundreds – of millions of dollars?

 

In NLC v Quall the Federal Court found, in relation to certification, that the Native Title Act “makes plain that the representative body can enter into contracts or other arrangements to obtain services to assist the body in the performance of its functions. This is not a power to delegate the performance of those functions”.

 

The court says the Act “does not permit such a body to delegate to anyone else, including its CEO, the performance of those particular functions”.

 

And: “Functions are to be performed by the representative body itself and not someone else.”

 

The Federal Court went on to comment: “No doubt this may present practical and logistical difficulties in the case of a body such as the NLC, which has 78 members, and which currently normally meets twice a year as a Full Council.”

 

This would surely apply equally to the CLC.

 

And if this logic extends to dealings more broadly with Aboriginal property, could the decisions – highly likely to have been delegated – around investing Aboriginal wealth in Centrecorp Aboriginal Investment Corporation Pty Ltd be drawn into question?

 

Left: Some of Centrecorp’s “principal investments” in town: 1 Peter Kittle Motor Company; 2 Yeperenye shopping centre; 3 L J Hooker; 4 Mercure Alice Springs; 5 Memorial Club property; 75 and 82 Hartley Street. Not shown: Milner Road Foodtown.

 

Could there be implications for the management of Centrecorp itself, in which the CLC has the biggest (three shares) but not a majority share holding: Congress and Tangentyere Council have two shares each.

 

Centrecorp, as a Pty Ltd company, is not obliged to provide broad transparency. It is believed to own businesses and real estate throughout the nation worth of millions of dollars – now including, according to unconfirmed reports, the long vacant Melanka block.

 

Without giving financial or percentage details, a Centrecorp brochure lists its “principal investments” to be in the Peter Kittle Motor Company, Yeperenye shopping centre, L J Hooker, Milner Road Food Town, Mercure hotel, the Memo Club building and 75 & 82 Hartley Street, all in Alice Springs, plus Hertz commercial vehicle franchises in Sydney, Melbourne and Adelaide.

 

Centrecorp’s money is believed to come from royalties that must be paid under the Aboriginal Land Rights Act, mostly from the fabulously wealthy gold mine at the Granites, owned by Newmont, some 400 km north-west of Alice Springs.

 

The brochure, however, is at pains to make the point that the company “does not receive any operational grants or royalties”.

 

There seems to be a nifty strategy: When royalties are paid to a royalty association they become private money. So when that money is invested in Centrecorp it is no longer royalty money.

 

But royalties are originally paid under a statutory requirement of the Land Rights Act. Could it be that decisions around how they are treated have to be made by the fully informed elected representatives of the land councils. Has this been the case?

 

Are the CLC arrangements in place to achieve “delegations” of the kind that the Federal Court has found not to be permitted?

 

The Alice Springs News gets frequent questions from Aboriginal people: What is Centrecorp doing with our money? The response is a brick wall – and has been for decades.

 

The CLC’s director continues to decline an interview with the News – but other sources make it clear that there are huge amounts of money in play, and how the flow of the money is organised.

 

The High Court decision isn’t likely before next year.

 

If it agrees with the plaintiff, and with the Federal Court, this may have far-reaching consequences, including traditional owners finding out what is the state of play with the assets of their children and grandchildren.

 

 

 

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Erwin Chlanda, Editor


2 Comments (starting with the most recent)

NB: If you want to reply to a previous comment, start your comment with this notation: @n where n is the number of the comment you want to reply to.
  1. Psuedo Guru
    Posted November 19, 2019 at 3:38 pm

    Land for projects is essential. Beware, China would take land by force.

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  2. John Bell
    Posted November 19, 2019 at 2:30 pm

    “Can decisions about Aboriginal land be “delegated,” or do they need to be made by the “representative bodies”.
    This question brings to mind the dissenting judgment of Brennan J in Wik. In dissenting from the majority that the Wik people had equal access rights, Brennan commented that leasehold tenancy cannot be “a bundle of rights”.
    The question of delegating rights in NLC v Quall would seem to touch on the issues in Wik?

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