Native Title a powder keg of corruption waiting to explode

Gerry Georgatos - courtesy of The National Indigenous Times - http://nit.com.au/ - Native title is a powder keg of improprieties and corruption just waiting to explode so that if and when it does then at long last native title can be crafted with the necessary changes so that indeed the peoples of the land, the impoverished communities, are reached by the native title benefits which for now much of these intended benefits are being rorted and denied to them. To pretend that native title is not being rorted by carpetbaggers and scoundrels is a crime only second to the thievery of the carpetbaggers and scoundrels. The problem is that Governments and their vested instruments, such as the Office of the Registrar of Indigenous Corporations, have been sitting quiet on the rorts in the inane belief that somehow some of the native title benefits do reach the people of the lands.

There are no Robin Hoods among the carpetbaggers and scoundrels in that they could be stealing from the rich and giving to the poor. They swell only their personal bank accounts.

Tanganekald and Meintangk Elder and lawyer, Irene Watson describes native title as both the greatest disaster and greatest missed opportunity of the last two decades. The lawlessness that is native title has turned people against people.

“The principle of native title is really just to extinguish native title and connection to Country. Native title divides communities and rips apart the fabric of societies. Native title is not about the people. It is corrupted at the core.”

Over the last few years I have been chasing down transgressors and transgressions in native title however they are just straws in the bale. For every transgressor and transgression that we corner hundreds slip by quietly, protected by an unbelievably huge a-list of the nation’s carpetbaggers, who include some very influential and well-known types, and not just their sycophants. The transgressions – myriad improprieties, thievery and corruption – are perniciously endemic right across this vast continent, but yes some transgressions are worse than others, but nevertheless in all circumstances impoverished peoples are continually denied their due. Chasing down the transgressors and transgressions will take a hundred years and a day and generations of impoverished peoples will come and go without a benefit from native title ever enjoyed.

We were not put on this Earth to betray one another, but by hell and high water we bloody well do.

Courts have found that rorting in native title is indeed rampant. CEOs and legal principals of Aboriginal corporations hijacked by sweet charley operators and by scumbag carpetbaggers have blown the whistle to the Office of the Registrar of Aboriginal Corporations and to Federal Senate Committees again and again. First the complaints languish, then they are tinkered with and then they are shut down.

Only a few years ago, former Western Desert Puntukurnuparna Aboriginal Corporation CEO, Bruce Hill, and a WDPAC lawyer travelled to Canberra and blew the whistle on a litany of alleged improprieties – they went to then Indigenous Affairs Minister, Jenny Macklin, to ORIC and their testimonies were presented to a Senate Committee. But what happened? After more than a year, the investigations were shut down and the deplorable line offered to justify the shut downs was that slack had to be cut to Aboriginal corporations “who need special assistance” or dispensations. This racist motherhood statement undermines native title and allows the charlatans the free run – while communities languish, tortured dustbowl poor.

The mess in the Western Desert is tragic but it is also not dissimilar to what is the case across this continent. Who will fix it?

In recent weeks, the Sydney Morning Herald, through the courageous journalism of investigative reporters, Paul Baker and Nick McKenzie, and The National Indigenous Times have brought to the nation’s attention the unnatural hand of carpetbaggers lining their pockets with native title monies that with all due respect should have gone to the Martu peoples of the Western Desert. This is nothing new to those at the coalface and in Government but that it is allowed to continue casts a dark pall upon all of us.

International land litigation lawyer, Canadian Dr Sharon Venne describes Australia’s native title system as “flawed” and that “it should be rejected.”

Dr Venne has worked in land rights for four decades and has been with the United Nations since 1977. Dr Venne said that whoever wants to benefit from the land needs to put their case to the people of the land and seek their approval and then share with them fairly what they reap. This is not happening, certainly not in any fair minded way. There are mining companies in Australia that refuse to scrub up to Aboriginal corporations even 0.5 per cent of revenue raised from what they’ve dug up and exported. They will not even return half a per cent to some of the most impoverished peoples on this continent.

There are changes on the horizon, changes being crafted to native title in terms of access to Country for miners and developers and also some changes in terms of the acquittal of benefits from native title but will it be too little? Will the Native Title Review skew its findings as many expect in the interests of miners and developers? Will the Native Title Review go anywhere near where it matters, that is for the peoples of the land? Or will the joke continue on the most impoverished and neglected peoples of this resources-rich continent? Unless the carpetbaggers, the snake oil merchants, the middle persons are cleaned out of what is now a money-grubbing infested native title industry then much will remain the same.

Aboriginal corporations which handle native title benefits need to be restructured as predominately Aboriginal-run Aboriginal corporations and they should not be vulnerable to being hijacked by the queue of non-Aboriginal people dreaming of lazy executive jobs. Royalties and benefits raised should be holistically directed, to whole-of-community spending approaches and targeted to augmenting and sustaining cultural integrity, empowerment and self-determination, upgrading schools and services, promoting shared emotional well-being agendas – and these need to be acquitted to noble standards which must have real oversight.

The Office of the Registrar of Aboriginal Corporations should be pulled into line or replaced. ORIC is not just a lame duck overseer but it is the majority of the problem in effectively making permissible the rampant rorting and short-changing that should have always been legally impermissible. The poor governance is the fault of the Native Title Act, of the legislation that ORIC is guided by and in general by one neglectful Government after another.

“We know that the corruption and the rorts are rife but head office in Canberra does not want to deal with it, it’s political. The philosophy has been we need to give latitude to Aboriginal corporations in ways ASIC would not with non-Aboriginal corporations,” said an ORIC insider.

This ridiculous premise has opened native title up to every charlatan under the sun.

Then there is the National Native Title Tribunal, which like the ORIC needs urgent and extensive repair. Both the ORIC and the NNTT have failed as overseers of native title. Nearly 300 federal determinations and more than 900 Indigenous Land Use Agreements later, the peoples of the lands continue to endure myriad social ills, worsening impoverishment, shanty-town living, they are dying at the nation’s highest suicide rates while not only carpetbaggers but also the executives of Aboriginal corporations are lining their pockets and have their hand in several biscuit tins. Multiple material conflicts should be blown out of the water. There are some very wealthy Aboriginal corporations, predominately run by non-Aboriginal executives but who cry poor when it comes to their ‘inability’ to provide urgent needs and services and opportunities to the peoples of the lands. Each year tens of millions of dollars pour through some of the wealthiest Aboriginal corporations but the population they represent, usually only between 1000 to 3000 people in total, gets jack.

A former CEO of the Western Desert Puntukurnuparna Aboriginal Corporation, Bruce Hill was one of those propriety-driven individuals who went to Canberra and blew the whistle on a litany of improprieties and alleged corruption. Mr Hill did this for the sake of the Martu peoples. However despite the whistle blown by the senior most executive of the organisation investigations came to an end more than a year later. ORIC and a Senate committee argued effectively that they were toothless.

Mr Hill believes what many more than ever before are beginning to argue, that people from around the nation need to unite and “force change.”

Mr Hill said that it “appears little may change at the important top end – that is ORIC – unless there are public displays of outrage by many Indigenous (people) at ORIC’s headquarters in Canberra.”

“ORIC is plainly a waste on taxpayers.”

“It is just not performing as per legislation.”

Native title benefits should not be measured in terms of individual operators but in terms of holistic indicators, whole-of-community works and enterprises. Native title benefits should not be measured in terms of how wealthy the operational and foundation arms of an Aboriginal corporation are but how native title benefits are meted out to community as a whole – thus transforming the benefits into social wealth.

The Western Desert debacle will come and go if attrition has its way as it does just like so many other similar stories that shone bright for a day or two but have since been forgotten. It is up to the Federal Government to deliver the systemic difference, to craft the changes that so desperately need to be crafted, and not just foremost but exclusively in the interests of the communities – the people of the lands.

Last year the Federal Court of Queensland ordered an Aboriginal group to hand over millions of dollars paid by companies, including Santos, Origin Energy and QGC, after Justice Steven Rares raised concerns of rorting of the native title system. The decision by Justice Rares in the Mandandanji claim in south-west Queensland was touted as likely to have wide implications for native title nationally but as per usual the implications petered into the deaf silence that in the first place allowed for the flourish of native title rorting.

In the case of the Mandandanji, Justice Rares ordered that a court registrar manage all money paid to the group by gas companies in any future payments as a result of their native title claim. Members of the Mandandanji need to apply to the court for disbursements and fully account for any payments to them. Should it have come to this? If ORIC and the NNTT did their jobs better, in oversight and mediation, then Justice Rares would not need to have made the ruling he did. If the Government stepped in and set standards and bestowed adequate acquittal in native title benefits then we would have a whole different show.

Justice Rares said, “I’m going to see the court controlling that and making sure whoever gets this money account for it publicly and transparently, because rorting this system has gone on through the community for much too long.”

“It’s time people realised that when they’re making native title applications they’re not doing it to feather their own nests, they’re doing it to benefit the whole of the group and the community is entitled to know what the money is and where it’s going, and I’m not going to have secret deals done on the side that benefit particular people protected from public scrutiny and supervision by the court.”

“Unless the court took the initiative of imposing controls over what has now been shown to be the very substantial monetary entitlements there was a real risk that no proper person would be able to control and protect those monies,” said Justice Rares.

This should not be the way. The way should be that the crap about “good faith negotiations” and latitude for Aboriginal corporations need to be done away with. There should be no burden on the mining companies and Aboriginal corporations to negotiate in “good faith”. Some play a straighter bat than others but in general there is no consistency, that’s human nature, we’re not homogenous. The Native Title Act needs urgent amendments where disbursement quotients of native title benefits at base levels are at least equitably quantified and defined. Aboriginal corporations must be made up predominately of their own people. Spending must be whole of community foremost before other enterprise. ORIC and the NNTT must be strengthened in their oversight and capacities to work to these interests exclusively. And as instruments of the Commonwealth ORIC and the NNTT personnel must have no material conflicts, this must be impermissible.

The day after Justice Rares delivered his ruling, the then Attorney-General, Mark Dreyfus did not go to the defence of the native title system and in a statement from his office noted that Justice Rares was committed to “ensuring native title payments provided real benefit to native title holders now and for future generations.”