The models to emerge for each subregion both have, as a core structural element, a centralised Land and Sea Management Agency, providing administrative and other functions to the various Aboriginal landholding entities in its subregion. In other respects, however, the models differ, reflecting the different cultural, demographic and socio-geographic landscape of each subregion.
Whereas the Wik have opted for a single PBC and have not chosen to formally incorporate each of their eight subgroups for local land management purposes, but rather to work through existing organisations (such as the Aurukun Shire Council), the traditional owners in the Coen subregion wish to formalise their four language-named tribal groupings into four corporations to carry out land and sea management contracts, outstation development, and enterprises. In the interests of rationalising the multiplicity of 18 or more titles in this latter region, a method is proposed to amalgamate these entities for each language group or tribe. This will result in all of a tribe’s land and sea areas having a single PBC, which also acts as a trustee of their freehold ALTs.
Administrative and consultative complexities are identified that are likely to be encountered at and near subregional boundaries where groups may choose to seek land and sea management services from centres in adjoining subregions, and where land tenures on ILUAs straddle subregional boundaries.
Wik and Wik Way claimants expressed a strong preference for having all Wik people represented on a single PBC (‘all Wik people have spoken as one’).[15] Their preference was for an agency type PBC with minimal membership based upon representation by regional and ceremonial subgroups from across all Wik and Wik Way country. There was an additional need to ensure that some of the representatives resided in each of the Coen, Napranum and Pormpuraaw communities, and to ensure adequate representation of native title holders in these communities for the purpose of communication and feedback. Thus the translation of customary membership into contemporary landholding corporations has to take into account those post-contact demographic factors that have taken people away from their country.
The Wik PBC model, as detailed in Figure 13-2, lies somewhere between the passive and active PBC types.[16] It has at its centre a ‘passive’, agency-type PBC based upon representative subgroups and with limited objects and limited executive powers. But it also has ‘active’ features, such as participatory representation providing for widespread PBC membership and a representative Governing Committee based upon the eight ceremonial and language groups discussed above. The latter characteristics may support the growth of corporate governance culture within the native title group, possibly causing the PBC to take on a more ‘active’ role in decision making in the future.
Note: This model shows the proposed structural relationship between the Wik PBC and the Wik Land and Sea Management Agency.
A core feature of this model is that each of the representational groups will need to have a capacity to meet by themselves on occasions in accordance with their customary methods of decision making, to make decisions about critical events affecting native title in their respective regions. This is a most critical aspect of the model, necessary to ensure that Wik and Wik Way law and custom are incorporated into decision making on land and sea issues.
However, this is also a vulnerable aspect of the model, with potential problems including the difficulty of individual groups having a viable meeting when key personnel may be residing in dispersed centres (for example, Aurukun, Coen, and Pormpuraaw), the need to raise funds to facilitate transport for adequate consultation, and the possibility of apathy amongst members of the representative groups to attend meetings.
It should also be noted that decision making within each of these groups may still have to devolve to the clan or extended family level, before being brought back to the group level, because the ceremonial and regional groups are not landholding units, nor are they units of political, social, or economic action. They do not correspond to corporate units within Wik society which are particularly relevant to the operations of native title. The basic appropriate groupings in which such discussions would be held are ‘families’ within regional associations.[17]
It is not proposed that any of the representational groups be separately incorporated for business activities (as was the case for the four language-named tribes of the Coen subregion). On the contrary, there is some concern about the likelihood of ‘fissioning’ or the subdivision of such corporations if they were formed, as it is a commonplace feature of the political dynamics in the Wik universe, both socially and corporately.
The most plausible and efficient method of providing the PBC with an administration facility would be for the PBC to contract the Aurukun Shire Council as a service provider through the council’s Land and Sea Management Unit (which in turn could draw on wider council resources by internal arrangements). The minimal administration services required of such a secretariat would include: dealing with correspondence; holding bank accounts, minutes, legal documents and the like; calling meetings for decision making, elections among the representative groups and information dissemination; providing feedback to native title holders; representing the PBC at meetings with development companies, government departments and authorities, and so on; and raising funds to provide such services. While there are advantages of centrality of location and economies of scale and resources in the council taking on the administration role, there is also potential for conflict of interest in that the civic interests and responsibilities of a Shire Council may not always coincide with those of native title holders. There would therefore need to be protocols in place to deal with such eventualities by separating off the council’s local government functions from its PBC-resourcing functions.
In addition to the PBC having a service agreement with the council’s Land and Sea Management Unit for administration services, there is traditional owner support for this unit to eventually contract out a range of land and sea management services on behalf of the native title holders, including: land and sea management planning; provision of outstation services; provision of rangers to monitor country and carry out management projects in country; negotiation with developers of various sorts, including mining companies and tourism operators; cultural heritage assessments and socio-economic impact studies prior to land developments; and employment of native title holders to participate in the range of land and sea management activities.
Traditional owner groups expressed a preference for a structure which retains independent corporate vehicles for each of the four language-named tribes while at the same time recognising the need for a central agency for the subregion that will provide the necessary administration functions common to all four groups. Preference was for agency-type PBCs for each group.
This model is structurally analogous to the relationship which has been established between the Coen Regional Aboriginal Corporation and the outlying outstation communities which it has serviced for the past 20 years. The model, as outlined in Figure 13-3, has two key structural dimensions. The first of these is an overarching corporate structure which brings traditional owner and native title groups from the subregion together to form a decision-making committee for common purposes, such as financial administration, subregional land and sea management, resourcing outstations, and liaising with National Park Boards of Management.
Within this wider structure, separate traditional owner decision-making committees for each of the four tribal native title groups will act as trustees for their respective local areas of land. These committees will have responsibility for making decisions about budget allocations for their own groups, use of local assets, businesses and so on, as well as PBC- and ALT-relevant matters, and overseeing land and sea management contracts on the group’s traditional land. Eventually, this model should lead to the structural amalgamation of PBCs and ALTs for each tribal group, though this may still be some way off since it will depend upon the resolution of the political and legal impediments discussed above.
There are persuasive arguments for having one central agency for the Coen subregion as a point of contact with outside agencies, government departments, industry groups and so forth. One is to achieve economies of scale; another is that it is already a requirement of most state and federal government funding agencies that funding goes through a regional organisation rather than to individuals, family or outstation groups.
Note: The model illustrates the proposed Coen Land and Sea Management Agency, a set of tribal PBCs which also serve as ALTs, and a set of four tribal corporations for day-to-day business in the Coen subregion. This would result from an amalgamation and rationalisation of all existing PBCs and ALTs.
The most plausible and efficient method of providing an administrative service to the various PBCs and ALTs is for them to contract to one service provider. Using one agency will reduce the complexity of transactions, given that for the foreseeable future there is likely to be a number of PBCs and ALTs for any one language group, as well as PBCs and/or ALTs for multiple language groups. To some extent this role is already being played by Coen Regional Aboriginal Corporation, but this role will need to be mandated separately from the four constituent language groups as they establish their PBCs or ALTs. The administration services required from a central agency are likely to be similar to those described above for the Wik Agency.
The Coen subregion is economically ‘poor’ from the indigenous perspective. As of 2002 there were no viable Aboriginal commercial enterprises in active operation, nor were there any prospective mining projects from which cash flows were imminent. Nevertheless, viable prospects for tourism, cattle herding and prawn farming have been identified and form part of traditional owner aspirations.
The Right to Negotiate and the ILUA provisions of the NTA also provide a valuable basis for negotiating benefits in return for access to native title lands, and in compensation for any extinguished or impaired native title resulting from land and sea developments (for example loss of resource collection area, damage to a sacred site, and so on). Mining and other development companies may also be legislatively obliged to carry out a social and environmental impact assessment in relation to their projects. Through such studies a range of economic activities can often be designed in which local Aboriginal groups can engage and which can ‘piggy-back’ on the main project. The proposed gas pipeline from Papua New Guinea constitutes a project of this type which could provide such opportunities in the Coen subregion.
Three key components common to the land management models for both subregions are centralised Land and Sea Management Agencies providing support to landholding entities; predominantly passive, agency-type PBCs; and a strong desire for the amalgamation of PBCs and ALTs, at least to the extent possible under state and commonwealth regulations. This arrangement is predicated upon an understanding of the traditional social organisation, land tenure and decision-making systems among groups in each subregion, but constrained by the necessity of incorporating traditional decision-making practices into organisations which will be economically sustainable and will comply with the legal and regulatory environment imposed by state and commonwealth legislation for the registration of Aboriginal interests into various forms of title.
The role of the regional agencies is to provide sufficient economies of scale for their affiliated title-holding bodies to be able to accommodate a more traditional mode of operation. They would provide contracted secretarial services to PBCs, ALTs and leaseholding corporations. PBCs and ALTs might also outsource some of their functions, for example the management of certain areas of native title land, issuing of entry permits onto Aboriginal freehold land, and so on. The agencies’ activities will intermesh with a range of the native title rights and interests being claimed in the region with respect to: the general use of country; occupation and erection of residences; hunting, fishing and collecting resources; management, conservation and care for the land; the right to prohibit unauthorised use of the land; and cultural, heritage and social functions.
Therefore the most critical external design factor in the regional models is the development of satisfactory consultation and communication among landholding entities (PBCs, ALTs, corporations holding leases and so forth), the native title holders and the regional agencies. In order to respond to consent requests for planning and development activities from other parties under the NTA, properly resourced consultation of native title holders needs to be ensured.
In the case of PBCs, the extent of outsourcing to a regional agency will depend on whether an active or passive PBC model is adopted. However such an arrangement would ideally require that the native title holders agree to consent to the regional agency performing certain acts or classes of activity. This would enable day-to-day transactions to take place within such an agency without its staff having to continually consult with the native title holders — for instance a policy where the agency staff can approve permits for certain scales of tourist activity, camping, fishing and so forth, without having to worry the PBC membership.
The proposed regional agency model also allows income derived from compensation or other benefits, such as those negotiated under ILUAs, to be channelled through the PBC to the agency, which can then engage practically in a range of land-based operations, drawing upon any available infrastructure, Community Development Employment Program workers, community rangers, or consultants, on behalf of the native title holders. In all cases there needs to be a close coincidence between the membership, and to some extent the structure, of the landholding entities in the subregion and that of the agency to prevent conflicts of interest, although it would be possible to incorporate spouses, and those with historical interests in land, in the membership of the agency where that is not possible for a PBC.
A key problem for indigenous landholding groups is to develop a capacity to independently fund their operational as well as infrastructure costs. At the very least, a minimum income is required for a base secretarial and administration service to fulfil the legislative duties of ALTs, PBCs and leaseholding corporations (including meeting organisation and travel costs). Therefore the ability to use ILUA agreements to finance not only title-holding bodies but also their regional service agencies will be vital because ongoing grant funding is likely to become increasingly limited. Neither the commonwealth nor state governments were allocating money for the recurrent administration of PBCs or ALTs. Yet these corporations will be unable to perform their prescribed functions without some base funding, and this is a critical limitation on the ability of Aboriginal landholders to derive real benefits from either native title or statutory land rights legislation in Queensland (QDNRM 2004: 20).
Poor funding already results in low levels of minimal corporate compliance (such as failing to hold annual general meetings, lodge financial reports and hold elections and so forth) (ibid: 21). But it also results in poor levels of consultation and places limitations on traditional owners’ abilities to engage in the interactive social practices that often characterise traditional decision making. This in turn increases the likelihood for dispute amongst native title holders and poorly negotiated outcomes marked by corruption, lack of accountability and legal uncertainty.
There is a substantial dollar investment required to maintain Aboriginal traditional connection to country through customary land tenure systems incorporated into contemporary corporate entities. Traditional land management does not equate necessarily to a cheaper alternative; indeed, because of its communal nature and a general tendency toward consensus decision making through intra-community consultation, resources are required to run what might be termed the ‘software’ (such as the recurrent administration) of traditional land management, as well as the ‘hardware’ (such as the management operations). Funding bodies all too often fail to get this balance right, so that while there may be resources available for ‘doing’ things (often termed project, implementation or program funding), there is little provision for maintaining the capacities of the organisation to function effectively over the longer term.
Clear rules of agreement will have to be established amongst traditional owners (including native title holders) as to how monies coming into the regional agency will be distributed, to complement those set down for PBC and ALT income (if any). This is particularly the case where a subgroup of native title holders has an established income stream from an ILUA or other agreement, but the other subgroups in the PBC do not. There is thus a need for an economic plan that allows, on the one hand, Aboriginal income into the region to be equitably spread to groups across the region for basic regional agency functions, but which at the same time recognises local native title rights in compensation outcomes or acknowledges local enterprise initiatives by individual groups.