FOI updates on the ALC and Groote Eylandt

In natures infinite book of secrecy

A little I can read.

Antony and Cleopatra, Act one, Scene two.

 

FOI revelations. The NIAA FOI log contains two recently released documents that expand the information available in the public domain albeit only at the margin. I have also had access to documents released in response to a third FOI but not yet made available on the Disclosure Log. In this post, bolded text has been added by me to emphasise matters of particular salience to the arguments made here. The highlights below were highlighted in the documents provided by NIAA.

Request One FOI/2425/039 dated 30 January 2025 (link here).    This request sought the NIAA’s proposed response to a series of questions on notice from Senator Pocock in late 2024 (which had presumably been delayed in the Minister’s Office and not seen the light of day when the request was made). Once made available, it revealed that the NIAA’s Group Manager Integrity had attended the ALC Board meeting on 16 October 2024 ‘to support Board discussion regarding Mr Hewitt’s employment arrangements.’  The ALC terminated the CEO’s employment at that meeting. NIAA failed to respond substantively to the Senator’s request for information on what legal or policy advice had been provided to the ALC Board by the NIAA attendee.

Request Two FOI/2425/065 dated 14 April 2025 (link here).  This request relating to the February 2025 Senate Estimates hearings (link here) sought All briefs prepared by the agency for the Minister, her staff, senior staff of NIAA, and other Ministers or portfolio agencies which relate to the governance and operations of the Anindilyakwa Land Council, associated corporations in receipt of royalty equivalent payments, the proposed Winchelsea mine, the 2023 ANAO Audit of the ALC; the National Anti-Corruption Commission investigations in relation to Groote Eylandt matters; and/or Groote Eylandt generally."

The response comprised two documents prepared in February 2025. The first document included the following dot points under Key Talking Points:

·       The Ministerial response to the petition was tabled on 29 February 2024. The response states that the Minister has referred the issues raised in the petition and media articles to the NIAA’s Integrity Group for review and referral to relevant Commonwealth and Territory agencies if required.

·       The NIAA received some information that was subsequently referred to the National Anti-Corruption Commission (NACC).

·       As part of NIAA’s response, the NIAA commissioned an independent review of the ALC’s responses to the issues and recommendations of the ANAO audit.

In a section headed ‘If asked: What is NIAA doing to address the concerns in relation to ALC governance?’, the brief discussed the Bellchambers Barrett Review, referring to it as ‘independent’, and confirming that that the Group Manager Integrity had determined the scope and composition the review. 

The brief then states:

• The ALC CEO and Board fully cooperated with this independent review….

• In my capacity as NIAA Integrity Group Manager, I accompanied the independent reviewer to Groote Eylandt on 27 and 28 May 2024 to gather additional evidence and meet with the ALC Board and management.

• On 24 Sepember [sic] 2024, I also attended Groote Eylandt to provide the newly elected ALC board members a walkthrough of the issues review report.

• On 15 and 16 October 2024, I attended Groote Eylandt to work with the board members to support their next steps in progressing the governance arrangements of the ALC board.

A second document was the brief prepared for the NIAA CEO.

The CEO brief confirms that the ALC has engaged Yamagigu Consulting to act as Independent Adviser to the ALC Board and to develop a governance framework in consultation with the NIAA. Yamagigu is associated with Deloitte Australia.

The CEO Brief states:

·       The August 2024 Bellchambers Barrett review concluded that while significant progress has been made by ALC since May 2023 across the ANAO’s 15 recommendations, none had been fully implemented.

·       The Minister wrote to the ALC Board on 29 August 2024 to advise she was extremely disappointed to read the review’s conclusion.

In a section headed Former Chief Executive Officer Mark Hewitt, the Brief notes:

• The ALC Board terminated the employment of Chief Executive Officer (CEO) Mark Hewitt on 16 October 2024 ….  

• The termination payment made to Mr Hewit [sic] was in accordance with his contract of employment and provisions of the Fair Work Act 2009.

o If asked: Did the Minister approve the termination payment?

o [placeholder - brief was provided to the Minister for approval in February 2025].

• The CEO’s tenure had been a matter for the ALC’s Board.

• The NIAA is aware of public concerns that Mr Hewitt allegedly misused royalties and directed funds into a mining company in which he is a director.

• The NIAA referred the former CEO to the National Anti-Corruption Commission (NACC) in July May* 2024. [*Correction made by NIAA FOI Team]

Request Three FOI 2425/066 dated 19 May 2025. This request sought briefing notes and associated file notes and records related to the attendance by NIAA officers at the ALC Board meeting in mid-October 2024 and all records of communications with the Minister or her Office in relation to the attendance at the ALC meeting or in relation to discussions with Mr Hewitt. Six documents were identified as being within the scope of the request. Access to three (documents 1, 2 and 4) was refused in full on the basis that they were legal advice that was subject to legal professional privilege. The remaining documents were released in part. Extensive sections were redacted on the basis of personal privacy exemptions.

Document 3 was an email to either the Minister’s Office or senior NIAA officers dated 18 October 2024 advising inter alia that the ALC had terminated the CEO and had appointed the ALC’s Chief Financial Officer Colin Wakefield as interim CEO.

Document 5 is an email trail dated 5 November 2024 beginning with a request for a brief to support a meeting between the Minister and the ALC the following day. NIAA’s Group Manager Integrity provided a series of talking points under the heading Update on ALC CEO status. After listing the date of the termination, the appointment of an interim CEO and the ALCs intention to appoint a recruitment firm, the brief stated:

·       As part of the termination process, Mark has resigned from the positions of Executive Director Groote Holdings Aboriginal Corporation (GHAC) and CEO of Winchelsea Mining

·       The Boards of GHAC and Winchelsea are considering next steps following Mark Hewitt’s termination, including engagement of an independent advisor to assess current operations and the required way forward.

Document 6 is a NIAA brief to the Minister dated 25 October 2024 responding to the ALC Chair’s correspondence dated 16 October advising that the Board had terminated their CEO. Under a heading Key Points, the NIAA noted that the Chair had advised that the CEO had been terminated ‘on notice’ by the ALC and that the ALC Board had been considering Mr Hewitt’s position for some time. The brief then stated:

5. It is understood ALC will be submitting a supplementary budget request shortly to cover Mr Hewitt’s final entitlements.

 

Commentary on FOI documents released:

What jumps off the page in the documents provided in response to Request One is the determined effort by both the Minister and NIAA to keep the Minister at arm’s length from whatever is going on. This signals, in turn, either prior knowledge of misfeasance within the ALC, a statutory corporation in the Minister’s portfolio for which she is responsible, or an appreciation that the events unravelling on Groote and within the ALC were in some way potential political time bombs.

At least two other issues arise from the Request One documents. First, the close involvement of the NIAA in the Bellchambers Barrett Review – which as I have pointed out previously was focussed solely on the ANAO recommendations and not on the detailed issues identified - (including collecting evidence) and the ‘cooperation of the ALC CEO and Board’ raise serious questions regarding the Review’s independence.

The second issue concerns the reason for the Group Manager’s attendance at the Board meeting. In the response to Senator Pocock’s questions, it was stated that it was ‘to support Board discussion regarding Mr Hewitt’s employment arrangements.’ In the Estimates brief, it was ‘to work with the board members to support their next steps in progressing the governance arrangements of the ALC board’.

The visit took place in the context of a series of previous events: the prior visits to Groote by the Group Manager; a letter from the Minister to the ALC expressing her ‘extreme disappointment’ in relation to the poor ALC response to the Review that her agency had been involved in developing for months; the referral by the NIAA of the former CEO to the NACC four months previously. The visit coincided with the NACC attendance at the ALC Office on Groote to obtain evidence. Given NACC protocols to allow it to work with Commonwealth agencies on investigations, it is possible that the NIAA had been provided with progress reports by the NACC. The differences in the explanations set down in the two documents, although nuanced and not definitive, point to something more than NIAA engaging in a purely passive support role. Why else would legal advice have been necessary (bearing in mind that the ALC employs its own legal advisers)?

The complete absence of any preparatory briefing (except perhaps the emailed legal advice), as well as the absence of any file notes recording the ‘support’ offered by the NIAA officer suggests a deliberate effort to avoid future scrutiny and serves to reinforce the sensitivity (and potential irregularity) of the discussions. This is the bureaucratic equivalent of a police officer turning off his/her bodycam prior to engaging with a person of interest.

The Request One CEO Brief (document two) confirms that notwithstanding NIAA’s awareness of allegations that ‘Mr Hewitt allegedly misused royalties and directed funds into a mining company in which he is a director’, and their decision to refer the CEO to the NACC presumably in relation to at least these allegations, the ALC decided to pay Mr Hewitt an unspecified termination payment and the Minister appears to have been asked to approve that payment in February 2025. This strikes me as unusual insofar as if it was entirely consistent with the CEO’s land council employment contract and assuming that the contract which has never been made public adheres to standard employment practice), there would have been no need to obtain the Minister’s approval. On the other hand, if the ALC proposed to pay any amount related to his termination as CEO of GHAC and/or Co-CEO of Winchelsea Mining, the ALC may well have found it necessary or convenient to seek ministerial approval for an expansion of its section 64(1) operational budget approval or for an approval under section 36 of the ALRA (link here). I have previously argued that the former CEO’s simultaneous roles constituted misfeasance insofar as the ALC CEO salary set by the Remuneration Tribunal is for a full-time position, and it seems unlikely that the Tribunal’s approval was sought and granted for the CEO to engage in additional paid employment.

The fact that the document 5 of Request Three makes clear that the Mr Hewitt resigned from his roles on Winchelsea and GHAC ‘as part of the termination process’ adds to the likelihood that the Minister was made aware of and agreed to termination payments for Mr Hewitt linked to a notice period for these roles. Importantly, the apparent willingness of the ALC to intrude financially into the internal affairs of GHAC and AAAC/Winchelsea Mining (apparently with the tacit assent of the NIAA)  also reinforces the argument I have made on numerous occasions that the ALC exercises effective control over these corporations through the allocation of section 64(3) payments and is thus in effect allocating royalty equivalent funds to itself in contravention of the intent of the ALRA.

The CEO Brief also confirms that NIAA’s referral to the NACC was in May 2024, a year after the ANAO report was issued. The allegations mentioned above that likely formed the basis for the NIAA referral of the then CEO to the NACC were two of numerous concerns described in the ANAO performance audit over a year before the referral. Why then did it take a year for the Minister and NIAA to make the referral? And what changed to persuade them to act in May 2024?

As I have long argued in my posts on this blog, there appears to have been a deliberate and sustained attempt by NIAA and the last two Ministers to ignore and downplay the concerns raised by the hundreds of signatories to the February 2024 petition to Parliament and the numerous serious issues raised by the ANAO report. Whether intentional or not, it amounts to complicit behaviour with respect to these issues. As mentioned above the tactic adopted was to establish a review that focussed solely on the ANAO recommendations, and to ignore the myriad concerns and red flags raised in the detail of the 2023 ANAO report. What is less clear is why this policy of regulatory neglect was pursued.

I have long taken the view that not only were there shortcomings in the ALC’s management processes, but that the NIAA and its ministers have failed in their role as the ‘regulator’ oversighting the operations of the ALC and particularly its royalty and royalty equivalent distributions.

The unexplained termination of the ALC’s CEO in October 2024, the determined efforts of all involved to downplay those events, the complete absence of any justification or rationale form the ALC, and the secrecy imposed until now on the termination payments made to him notwithstanding the concerns that were significant enough to underpin a yearlong investigation by the NACC, suggests that there is much more to this than is currently available on the public record.

One hypothesis that is consistent with the facts as we know them is that the Government decided (utterly belatedly) that the ALC should terminate the CEO to set up a situation where a potentially adverse NACC report could be defended with the blithe response that the individual responsible for whatever egregious flaws are determined to have existed has already been dealt with. Persuading the ALC would be simple: the Minister had the leverage of only partially approving the ALC’s budget for 2024/25 as well as numerous ways in which to make the land council’s ongoing operations difficult. Persuading the former CEO (and his spouse) to depart quietly would be trickier. The offer of generous termination payments would assist, but other inducements are also conceivable. In this scenario, the ongoing silence of the terminated CEO would be more securely achieved if the termination payments were accompanied by a formal non-disclosure agreement.

Concluding comment

In my view, the pervasive veil of secrecy that has been thrown over this whole episode would be necessary only if the decisions taken were not able to be justified according to law and were not able to meet the so-called ‘pub test’. The fact that questions from Senator David Pocock have been ignored or answered with misleading diversions serves to emphasise the determination of the Commonwealth to avoid public scrutiny. The fact that the veil of secrecy remains substantially in place merely reinforces doubts regarding the appropriateness and propriety of the actions (and inactions) of ministers and the NIAA related to the oversight of the ALC over the past decade.

The issues and concerns raised by the ANAO and by the concerned community members who signed the 2024 petition to Parliament are yet to be addressed in any rigorous and comprehensive way. The fact that the NACC is investigating unspecified matters without any transparency in relation to the focus of its investigation is no substitute for an open, transparent and rigorous examination of what has transpired.

Unfortunately, the reluctance to initiate such a forensic and strategic review appears to be an essential element of the Commonwealth’s approach to the operations of the ALC (and also reinforces the likelihood that the hypothesis outlined above is in play). This means that we are reliant on the efficacy of the various accountability institutions with a role on Groote to ensure that the systemic issues that allowed the imbroglio on Groote to emerge and to flourish are identified, and curtailed. I don’t see the NACC as the institution best placed to address these systemic issues (though I hope they at least go some of the way to doing so).

The ANAO in my view should step up. It could undertake a follow up report to its 2023 performance audit. It might also take a long close look at the issue of the effective control by the ALC over the corporations involved in the Winchelsea mine and the Little Paradise infrastructure hub, and which are in receipt of ongoing and significant flows of royalty equivalents. A decision to qualify the annual financial statements of the ALC (and the concomitant ramifications of such a decision) would go a long way to addressing the systemic defects in the current sector wide administration of the ABA and ALRA.

 

25 June 2025

June 2025 Update on Groote Eylandt Issues

 

'twere a concealment
Worse than a theft, no less than a traducement,
To hide your doings; and to silence that,
Which, to the spire and top of praises vouch'd,
Would seem but modest.

Coriolanus Act one, Scene nine.

 

I have not published any posts on Groote or the Anindilyakwa Land Council (ALC) since February, when I published two posts on the inadequacies of the NIAA’s responses to previous Senate Estimates Questions on Notice (link here and link here) and a more general post explaining why pursuing an understanding of what has transpired on Groote, and how it has been allowed to occur, is important (link here).

Since then, several noteworthy developments have occurred or come to my attention.

Manganese sales. Perhaps of most significance in economic terms has been the resumption of sales of manganese ore by South32 subsidiary GEMCO (link here and link here) following the considerable cyclone damage to the Alyangula wharf last year. That damage disrupted sales and export of manganese ore from the GEMCO mine and led to a temporary halt to the flow of royalty payments to the Groote Eylandt Aboriginals Trust (GEAT), to the Anindilyakwa Mining Trust (AMT) and a halt in section 64(3) royalty equivalent payments from the Aboriginals Benefit Account (ABA) to the ALC for onward distribution to local corporations.

GEMCO legal action. In October 2024, the Supreme Court of the NT published a decision on a largely procedural matter relating to a longstanding dispute between GEAT and the ALC regarding rights to be paid royalties over yet to be developed mineral leases held by GEMCO on Groote Eylandt (link here). As an aside, that decision lays out a very useful account of the history of mining on Groote, including the prescient taking up of exploration permits by the Church Missionary Society which were then used to leverage a royalty payment from BHP and led to the establishment of GEAT and the payments of royalties based on that commercial agreement (and not Indigenous rights per se).

According to GEAT’s website (link here), GEMCO took legal action to clarify the required allocation of royalty payments to GEAT and the ALC derived from the new South and East mineral leases on Groote. The dispute has been ongoing since 2016. The GEAT website reports that following a mediation in February 2025, the parties to the litigation signed a Heads of Agreement, and that subject to the finalisation of some technical legal conditions, the dispute between GEAT and the ALC will be resolved. The terms of the mediation were to remain confidential. I am yet to see any confirmation that the resolution has occurred and on what terms. The GEAT Management Committee notes that the resolution of the dispute will be ‘a big step forward’ for GEAT and its beneficiaries and ‘a great outcome for the community’.

ALC staff changes. Following the termination for unspecified reasons of the former CEO, Mark Hewitt by the ALC in October 2024 (link here), the ALC appointed its Chief Financial Officer, Colin Wakefield, as Acting CEO. In April the ALC announced (link here) the appointment of Matthew Bonson, a former ALP member of the NT Parliament from 2001 to 2008. He served in several ministerial roles during that period (link here).

Winchelsea and Little Paradise EPA updates. The EPA website includes a detailed web page with a chronological listing of the initial application and all subsequent EPA decisions and proponent variations.

 Winchelsea Mining lodged its initial application with the NT Environmental Protection Authority in 2020, signed by Winchelsea CEO Mark Hewitt (link here). The initial proposal was accepted for consideration by the EPA in 2021 (link here and link here) where the EPA advised that an Environmental Impact Statement would be required. The proposal described the mine on Winchelsea Island and the supporting infrastructure:

To develop and operate an open cut manganese mine at Winchelsea Island (Akwamburkba) and Groote Eylandt, East Arnhem, about 600 km southeast of Darwin. Strip mining using free digging and rock breaking would be undertaken to extract ore and overburden. Mine infrastructure would include run-of-mine and ore stockpiling areas, a processing plant, workshops, haul and access roads, a product conveyor from the processing area to the wharf, a jetty and a boat ramp. Product would be direct loaded from the conveyor onto ships for export. Supporting infrastructure would be located at Little Paradise Bay on Groote Eylandt, approximately 6 km southwest of the mine site, and include a barge landing ramp and jetty, access roads, a logistics hub and a 100-person accommodation camp. The disturbance footprint is 659 hectares, and the mine life would be approximately 14 years (emphasis added).

Subsequently there were two significant variations made by the proponents (in 2021 and 2023) and subsequent consultation processes undertaken by the EPA. In October 22023, the EPA issued terms of reference outlining the required content of the necessary EIS. The proponent’s EIS was finalised in December 2023 (link here). It is an extensive document (the Executive Summary runs to 89 pages). Section Two of the Executive Summary titled Project Purpose places the proposed mine within its institutional context. This section makes clear that the proposed mine is seen as part of the ALC’s high level strategic objectives:

In response to the need for a self-sufficient and sustainable local economy following cessation of mining by GEMCO, and the desire for greater self-governance, the Anindilyakwa Land Council (ALC) developed the 15-Year Strategic Plan 2012- 2027 (ALC, 2012). In line with its Strategic Plan, the ALC entered into a series of agreed reforms with the NT Government to take over control of core services and functions for the communities and region. As part of the reforms, the NT Government and ALC established Local Decision-Making Agreements (LDMAs), with the aim of transitioning control for services and decision-making to the Anindilyakwa people, as the Traditional Owners of the Groote Archipelago. A key commitment by the NT Government in the LDMAs was the support and advice to Traditional Owners to conduct exploration and mining in the Groote Archipelago, in accordance with recognised rights of Traditional Owners to utilise their natural resources [page 14].

The Winchelsea Funding structure laid out in Figure E-3 [page16] makes no mention of Little Paradise. In section 8 headed Holistic Impacts, the Little Paradise development being progressed by Groote Holding Aboriginal Corporation (GHAC) is cast as ancillary to the mine and not part of it.

Public consultation on the Draft EIS took place in the first half of 2024. In July 2024, the EPA issued a Direction to include Additional Information in relation to an extensive list of matters (link here) and required that a revised EIS be prepared and submitted within two years. Two issues caught my attention: first, the EPA concluded that the draft EIS did not demonstrate how the claimed transformational residual economic benefits the Groote Archipelago and Indigenous residents and directed the proponents to more specific details [item 25]. Second, the EPA also noted that the EIS did not provide adequate information in relation to the proposed 50-person accommodation camp and other supporting infrastructure to be developed by a separate entity [ie GHAC’s Little Paradise development] and directed that it be included in the EIS.

The EPA website also includes details of an application lodged by GHAC in relation to the Little Paradise marine and logistics hub in August 2024 (link here). According to the proposal (page i), the project is designed to support the long-term economic and social future of all Anindilyakwa clans of the Groote Archipelago, and includes a marina facility, associated biosecurity compounds, logistics camp and aquaculture facility. The development is a key component of GHAC’s plan to secure a sustainable long-term economy for the Anindilyakwa. According to GHAC’s Little Paradise Development Report:

GHAC was formed as a commercial entity to support Traditional Owner commercial activity on their land that accords with the governance requirements in section 23 of the Land Rights Act. GHAC was initiated in the 2012 ALC 15-year Strategic Plan — a plan driven by Community Elders to reverse the decisions made over the last 100 years and reassert control over Anindilyakwa destiny. In line with its Strategic Plan, the ALC in 2018 entered a series of agreed reforms with the NT Government to take over control of core services and functions….

…The mandate of GHAC is to support and progress major projects and hold in-trust major infrastructure and assets as well as provide services for social and economic development of all Traditional Owners. ALC and GHAC are actively working to establish projects that deliver a living cultural economy providing inter-generational opportunities to participate in the learning and delivery of both contemporary pursuits and culturally significant traditional practices

The EPA website indicates that on 25 March 2025, the GHAC proposal for a marine infrastructure development at Little Paradise was withdrawn (link here). No reasons were given.

Senate Estimates Committee Hearings. The most recent Hearings were held on 28 February 2025. The transcript (link here) is rather desultory reading; not helped by the fact that the Committee has no effective process in place to efficiently manage what is an extensive agenda spanning the Indigenous policy domain.

The Chair, Senator Pratt, invited the land councils to make extended opening statements which conveniently serve to limit the time available for serious questions. The ALC Chair, Cherelle Wurrawilya limited her pre-prepared comments (at page 39) to good news:  ‘We have made strong changes and will make more changes to continue what is best for the Anindilyakwa people’. She mentioned that recruitment of the new CEO was underway without commenting in any way on why the Council had terminated the former CEO. She mentioned progress in establishing the Groote Archipelago Regional Council: ‘A local council is what we always wanted for our people to ensure we take back control for our local services’. She reported that construction for the boarding school at Milyakburra will commence this year, with the bilingual school system to begin operating in 2026. Finally, she noted ‘It is a new year and the ALC board is committed to look forward, not backwards, to determine our future. We will be getting on with the important functions of the Anindilyakwa Land Council and delivering for the Anindilyakwa people…’ No mention of an ongoing National Anti-Corruption Committee Investigation into the ALC and/or its former CEO. No mention of the GEMCO litigation and the ALC’s dispute with GEAT. No mention of the progress (or lack of progress) of the Winchelsea Mine which the ALC has allocated tens of millions of dollars in section 64(3) payments (see below). No mention of the progress (or lack of progress) of the Little Paradise infrastructure hub which previously had been touted as central to the ALC’s economic strategy for Groote, and which within a month would seemingly be placed on the backburner (see above). Nothing to see here.

The rather lame Committee members were seemingly oblivious to the extent to which they were being taken for a ride, nor of their Panglossian complicity in gaslighting the public at large that all is now well in this best of all possible worlds on Groote Eylandt.

Senator Nampijinpa Price (at page 41) asked about the ANAO’s audit recommendations, and in particular which recommendations remain outstanding, the action taken to implement the recommendations and a timeline for implementation. The acting CEO’s response was a virtuoso display of technical and process-laden verbosity. Senator Price moved on to ask whether Mr Hewitt had been involved in the selection of the ALC Board [a strange question given that no-one to my knowledge has ever suggested that he had been]. The Acting CEO responded: ‘Not to my knowledge, no. It goes through a process as set out in the ILUA [sic: should read ALRA]. The clans nominate their representatives to represent them, the 14 clans on the board, and that process takes place. If there are more than the number of nominees, it goes through the normal NT election process.

In response to a question from ALP Senator Ghosh, seeking information from each land council on their most promising programs, the Acting CALC CEO stated (page 50):

At ALC, we distribute 64-3 royalty money to many corporations. We receive funding applications to be considered by a finance committee based on how the project will benefit our Anindilyakwa people and how it falls in line with local decision-making and aligns with our ALC strategic plan. So we go through that process. Ultimately, funding decisions are made by the ALC board.

Narrowly factual and succinct. No mention however of how the ALC handles the vexed issues of conflicts of interest. No mention of the millions invested in the ALC backed agenda for a mine on Winchelsea. No mention of the governance changes made since the termination of the former CEO.

All in all, the Estimates Hearing was hardly a forensic tour de force by the Senators present. Labor Senators only wanted to hear the good news; the Opposition spokesperson Senator Price, consistent with her previous approaches to the accountability concerns with the ALC (link here and link here), did enough to allow her to claim in the future that she had not ignored the issues being investigated by the NACC while not pursuing anything of substance. The officials present delivered a sophisticated exercise in ensuring the Parliament, the media and the public at large remain in the dark by proactively avoiding any issues of contention or involving defective accountability.  

NACC status. In early 2024, the National Anti-Corruption Commission (NACC) received several complaints, including from the NIAA in May 2024. At some point thereafter they initiated an investigation into unspecified matters involving the ALC and potentially other corporations based on Groote Eylandt. Multiple media outlets reported that they had visited the ALC’s Offices on 16 October (the same day that the ALC terminated the appointment of the former CEO Mark Hewitt). There have been no subsequent statements from the NACC relating to these investigations. While rational assessment would suggest it is a fool’s errand to predict when the investigation might be finalised, the odds of this occurring over the next six months must be increasing.

Concluding comment

This overview of recent developments, most of which have received little or no coverage in the media nor in the public statements emanating from the ALC and the Minister, provide a partial insight into the complexity of the wheels within wheels that are currently revolving on Groote, in the ALC offices in Groote, Cairns and Darwin, in the Board rooms of South32 and GEMCO, in various agencies of the NT Government in Darwin, and in various agencies of the Federal Government in Canberra. What is easily forgotten is that the lives of some 1500 people on Groote, and the opportunities of their descendants, are impacted for better or worse by the decisions reached as those wheels continue to revolve.

Over the past decade, a series of developments have occurred which raise serious questions regarding the quality of regulatory oversight over the actions of the ALC and its staff. The decision of the ALC to in effect engage directly in commercial activities, and particularly mining has been highly problematic. Its involvement was funded largely by the allocation of royalty equivalents to corporations which it appears to effectively control and was based on a ministerially approved agreement which was fundamentally compromised by the fact that the key individuals involved simultaneously sat on both sides of the negotiation. Where was the regulatory oversight as all this was set in train and continued?

It is my considered assessment that the quality of regulatory oversight by successive ministers for Indigenous Australians and the agency that serves them, NIAA, has been an egregious disaster. The case for greater transparency as a counterbalance to the vested interests in play, and as a guarantee that the Minister will ensure public accountability and the ALC will protect the interests of its constituents (which is its fundamental statutory raison d’etre) is inarguable.

In a forthcoming post, I consider the outcomes of some recent FOI decisions in relation to the operations of the ALC and its rather nebulous relationship with the NIAA.

 

 23 June 2025

 

Protecting and advancing Indigenous interests: the way forward

 

A greater power than we can contradict

Hath thwarted our intents.

Romeo and Juliet, Act five, Scene three

A New York Times article dated 12 June (link here) reports on developments in the US in the Columbia River basin in the Northwest USA, where native American tribes entered into 15 legally binding treaties in the 19^th Century. The legal and policy issues, which will now re-enter the political realm, involve a conflict between competing principles: Native American treaty rights, the commercial viability of existing renewable energy infrastructure, and the basin wide threats to the viability of native fish species.

The NYT article began as follows:

Trump Withdraws From Agreement With Tribes to Protect Salmon

The Biden administration had brokered a 10-year truce in an extended legal battle with Native American tribes in the Pacific Northwest over dams that had prevented fish from spawning.

President Trump moved on Thursday to withdraw from a Biden administration agreement that had brokered a truce in a decades-long legal battle with tribes in the Pacific Northwest.

The federal government has been mired in legal battles for decades over the depletion of fish populations in the Columbia River Basin, caused by four hydroelectric dams in the lower Snake River. Native American tribes have argued in court that the federal government has violated longstanding treaties by failing to protect the salmon and other fish that have been prevented by the dams from spawning upstream of the river. That legal fight is now expected to resume, with no brokered agreement in place.

The article reports comments of various interests, including the following statement by Gerald Lewis, the chairman of the tribal council of the Yakama Nation, who was reported as stating (inter alia) that his tribe was “deeply disappointed” by the decision, and that:

The administration’s decision to terminate these commitments echoes the federal government’s historic pattern of broken promises to tribes, … 

I don’t propose to consider the merits of the competing issues in play, not least because I have not been following the issue and recognise that there are undoubtedly myriad complexities involved. Instead, I propose to consider some higher order issues.

The issue in the Pacific Northwest does however resonate with the ongoing and longstanding legal, policy and political conflicts between Indigenous rights and economic development here in Australia. Issues such as the destruction of Juukan Gorge by Rio Tinto, and the past and possibly ongoing destruction of Aboriginal heritage at Murujuga adjacent to the Woodside’s North West Shelf developments make clear that we here in Australia are not exempt from these types of conflicts.

What then is the best way for First Nations to protect their interests, whether cultural, social or economic in the face of the reality that these conflicts are inevitable and will persist into the decades ahead?

Might Constitutional reform be the answer? In theory, one might envisage a reform that privileged Indigenous rights over development. However, such a reform faces what I would assess as insurmountable political difficulties (as well as myriad legal and conceptual difficulties) and will never be a serious option. The recent experience with the Voice which was a much weaker proposal, merely providing First Nations and Indigenous citizens with a constitutionally guaranteed forum in which to express their views on issues affecting their interests indicates the difficulties First Nations face in using the Constitution as the mechanism to protect their interests writ large.

Might a Treaty or treaties be the answer? The notion that formal agreements will provide the leverage to protect First Nations interests from the ongoing avalanche of modernity and its concomitant developmentalism is in my view a chimera. Treaties are agreements between parties and in the case of Australia, those parties, whether at regional or national scales, are characterised by extraordinarily unequal bargaining strength. Even were mainstream Australia to agree to enter into bona fide negotiations (a prospect I consider highly unlikely) the likelihood that comprehensive settlements might be devised and constructed that are simultaneously able to protect Indigenous interests and acceptable within the framework of mainstream politics is in my view close to zero. Even were we to overcome that hurdle, the risks of the dominant society hollowing out and obfuscating their engagement with treaties that had been agreed to, co-opting key players, and ultimately just walking away and ignoring their treaty obligations are considerable.

Given that discussion of treaties is ubiquitous amongst Indigenous advocates, it is somewhat curious that no widely accepted statement of claim exists that lays out the specific institutional and policy reforms sought. The 2017 Uluru Statement (link here) perhaps comes closest to doing this, but a close reading make clear that in relation to treaties and agreement making, it proposes that governments establish a process, the establishment of a Makarrata Commission, to oversight the development and implementation of a specific agenda to be included in a treaty or treaties.

Clearly, there is a place for agreements in shaping and improving the public domain, but they work best when the parties have an incentive to engage, and there are mutual benefits from making the agreement. Resolving land tenure uncertainties is a case in point. This suggests that narrow issues-based agreements are more likely to be both feasible and successful.

The problem with agreements of any type is that once the initial mutual benefits disappear, the parties have an incentive to walk away. The US experience with Treaties (as evidenced in the NYT article cited above), is one of government parties seeking to walk away from their previous commitments when circumstances changed. Here in Australia, First Nations leaders and advocates would be wise to take heed of the structural incentives that underpin Treaties and consider closely the experience of native Americans in the US when advocating for and entering into treaties and or agreements that are designed to protect their long-term interests.

If neither constitutional reform nor Treaties are the way forward for protecting and advancing First Nations interests writ large, what might be the way forward?

The obvious area where Indigenous interests should focus to enhance their ability to both protect their interests (whether cultural, social or economic) is in building their capacity and capability to advocate in support of their interests. The key prerequisites of political and policy influence include the establishment and employment of a critical mass of committed and technical specialists across each of the major sectors where Indigenous interests seek to exert influence. While almost all political debate in Australia is based on the gross simplification of the issues being discussed, the wider community (and the media) do not appreciate that the technical details of policy design and implementation are crucial to shaping the outcomes that emerge from those debates.

Political rhetoric and advocacy untethered from detailed policy analysis is a recipe for failure to influence outcomes. For Indigenous interests, establishing the infrastructure for engaging effectively on policy detail requires the building of a network of financially and politically independent organisations and perhaps the establishment of a loose federation or federations to ensure there is organisational heft to address national and state-wide issues.  

The view that a single organisational entity can or should represent the diversity of Indigenous interests across the nation is misguided, but there is a strong imperative for the establishment of strong informal links across the key national and state-based organisations.

Much of the institutional architecture I have just described is already in place, although the strength of the formal and informal networks essential to building the intellectual capital necessary to exert influence effectively is under-developed. There is also a paucity of policy and technical depth and an under-acknowledged and misguided over-reliance on finding ways to extract funding from governments which creates both dependence and implicitly constrains what organisations are prepared to do and say in public.

Governments and major mainstream interests have a long history of seeking to co-opt individuals who have the potential to emerge as effective independent advocates.  Engaging in private discussions is a favoured tactic of governments as it precludes critical commentary and the exploration of more wide-ranging options. Secrecy is the preferred modus operandi of governments and powerful interest groups as it allows deals to be done without scrutiny and accompanying pressure. For less powerful interests (such as those representing the most disadvantaged elements of society), transparency and openness is a friend and not an enemy. In my view, there is a pressing need for the Indigenous leadership to engage more openly in public debate and discussion on policy options, including mainstream policy options, and they can only do this effectively if they are not constrained by threats of funding cuts, or signed up to confidentiality agreements imposed as the price of access to government deliberative processes.

Implicit in this vision is a strategy of gradual accretion of policy and political influence in the same way that the Minerals Council or the National Farmers Federation have long exerted influence. The most effective mainstream interest group peak bodies are not reliant on government funding. Achieving greater influence will require a broad commitment which looks beyond reliance on individual aspirations, ambitions, talent and abilities (important as these are) and which is focussed on building a stable, well governed, independently funded and strategically focussed organisational base. Such a base would necessarily comprise a network of independent organisations and coalitions.

Governments have a history of abolishing successful or difficult Indigenous organisations established to provide representative feedback. Self determination is not something that governments will grant or deliver to Indigenous interests; it is something that First Nations must build, maintain, develop and sustain for themselves. There is already a good foundation for implementing such a strategy, but to go to the next level, a changed mindset across the breadth of the First Nations leadership regarding the relationship of Indigenous interests and governments will be necessary.

The best way for First Nations to protect and advance their cultural, social and economic interests is to build an independent and professional advocacy capability (both technical and organisational) and to progressively engage more proactively on mainstream as well as Indigenous specific issues at both national and state / territory levels. While I have focussed here on improved advocacy capability, it is also the case that while it is necessary, it is not sufficient to guarantee stronger influence across the policy domains impacting First Nations.

Developing the organisational capability to multiply policy and political influence is just the first step. Indigenous interests must also develop an effective strategic framework and underpinning strategies which counter government tactics of promising the world and delivering little. Such a framework would need, as an essential element, the building of broad support across the leadership of First Nations interests.  It would engage simultaneously with macro issues of national significance and with the micro issues of policy design and implementation. It would also consider not just the merits of courses of action, but the opportunity costs of doing so: a decision to focus on one issue inevitably draws oxygen and energy away from others.

An effective strategic framework will not emerge instantaneously but will develop organically if the Indigenous leadership commits to the first step, building a robust and cohesive independent capability to influence governments and to counter the influence of those interests with antithetical agendas towards full Indigenous inclusion in Australia’s political and public policy domain.

 

 

15 June 2025