Looking beyond the ANAO governance audits of the NT land councils

Defer no time, delays have dangerous ends.

1 Henry IV, Act 3, scene 2

 

On 15 August 2023, the ANAO published its audit Governance of the Northern Land Council, the last of its four performance audits of governance arrangements in the four NT Land Councils (link here). The NT land councils are statutory entities established by the Aboriginal Land Rights (Northern Territory) Act 1976 (ALRA), which is federal legislation.

 

The audit results were largely positive, as was the response from NLC management which agreed to implement the eleven largely technical recommendations. I previously commented on the audits of the Tiwi Land Council and the Anindilyakwa Land Council (link here) and on the audit of the Central Land Council (link here).

 

In relation to the NLC, the ANAO headline conclusions stated (inter alia):

8. The Northern Land Council’s governance arrangements under the Aboriginal Land Rights (Northern Territory) Act 1976, Native Title Act 1993 and Public Governance, Performance and Accountability Act 2013 are largely effective...

10. The NLC’s governance arrangements under the ALRA and NTA are largely effective. The establishment and governance of the Council and its committees complies with legislative requirements. Poor record-keeping reduces transparency over the Council member nomination process and the validity of the constitution of the Council. The transparency of other decision-making arrangements could be improved. The NLC has not met a commitment to the Minister for Indigenous Australians and the community to review its method of choice for Council member selection. Governance arrangements for the exercise of the NLC’s key statutory functions (negotiating and assisting with land use, assisting with commercial activities, consulting and obtaining informed consent, and distributing royalties and rents) are largely appropriate.

11. The NLC’s arrangements to promote the proper use and management of resources are largely appropriate …. the 2021–22 Annual Report was fully compliant with PGPA Act and Aboriginal Land Rights (Northern Territory) Act 1976 (ALRA) requirements. There could be improvements to performance reporting…

 

Given the inherent challenges of the NLC’s operating environment, this result must be rated as outstanding. There were nevertheless a number of issues identified that should be of concern to the Minister and her agency, particularly if they are left unaddressed. These include adverse ANAO commentary regarding the failure of the NLC to follow through on a number of repeated commitments to Ministers regarding the method of selection of Council members (para 3.12-13), and some mildly critical commentary on the effectiveness of the Audit Committee (paras 4.57 – 71) including the failure of the land council to advise its own Audit Committee of a fraud by a staff member (Appendix 8, para 1.f). I recommend interested readers take a look at the report for the ANAO’s detailed analysis.

 

What emerges from these four performance audit reports is a policy and administrative landscape permeated with competing pressures, including conflicting cross cultural expectations, complex legislative frameworks, continuous flows of funding from a range of sources including mining royalty equivalents (which are used to fund the land councils and to compensate Indigenous landowners for the impacts of mining, negotiated royalty payments derived from mining and other resource use on Aboriginal land, and so called section 19 payments for the use of Aboriginal land by third parties. All of these funding flows are subject to both upward and downward accountability expectations, that is, to the Parliament and to land councils’ constituents.

 

Given these inherent challenges, it is worth looking at the sorts of issues that the ANAO reports do not assess and consider.

 

In 1985, I published an article (link here) arguing for the extension of public sector audits beyond compliance audits and beyond efficiency (or performance) audits to effectiveness audits. To date, the effectiveness realm has not been embraced by the ANAO (nor most other state audit offices).

 

The four land council performance audits provide a useful case study of the limitations of performance or efficiency auditing within a complex and challenging policy domain. The audits are narrowly focussed on the compliance of the land councils with their statutory obligations. Financial compliance with normal accounting obligations, and compliance with the expectations of ministers and the wider public regarding the standards of governance within statutory entities are extremely important. However, by ignoring the issue of effectiveness, that is, whether the land councils are achieving what they are designed to achieve by the parliament and the community, the ANAO has missed a major opportunity.

 

More worryingly, there is a risk that the failure to analyse the need for reforms designed to improve effectiveness will contribute to creating the preconditions for more radical and retrogressive reform in the future. Indeed, it would not be an exaggeration to observe that in relation to an assessment of the operations of the land councils, the ANAO might itself be regarded as ineffective by failing to focus on effectiveness as well as financial compliance and performance and efficiency.

 

One of the implications of this blind spot by the Parliament which should expect effectiveness assessments, and the ANAO which should be pushing to undertake these assessments, is that other mechanisms are utilised to assess effectiveness. Invariably, these are ad hoc, opportunistic and random. They include royal commissions, parliamentary inquiries, evaluations, commissioned and internal reviews, and perhaps media revelations. In this context, it is worth noting that it is almost twenty years since there has been a comprehensive review of the NT Land Rights legislation, and I am not aware of any comprehensive evaluation or high level review of the operation of land councils since their establishment in 1976, almost fifty years ago. There have been a number of reviews and evaluations focussed on specific issues, but these lack the panoptic perspective required to lay the groundwork for sensible policy reform.

 

In the remainder of this post, I seek to identify a number of issues related to the operation of the land rights system in the NT that would benefit from regular overarching effectiveness assessments. To be clear, I am not seeking to provide policy answers or solutions, but merely point out that issues exist that warrant focussed analytic attention. Nor are all effectiveness issues focussed on the land councils. The Minister, the NIAA, and the NT Government all have interests and responsibility that intersect with the land rights legislative framework. In no particular order, here seven important issues that impact the effectiveness of the land rights framework in the NT and consequently deserve regular analysis and assessment:

 

Royalties and other payments: The NTG is currently consulting on potential changes to its royalty regime (link here). In particular, it seems likely that it is under pressure from mining interests to reduce royalty rates. One consequence of such a change would be to reduce the quantum of royalty equivalent payments that are automatically paid by the Commonwealth to the ABA (and indirectly the land councils, the newly established NTAIC (link here), and landowner groups more generally. Yet it is unclear whether the land councils are engaging with either the NT Government or the Commonwealth on this issue.

 

More broadly, the functions of land councils include to ascertain and express the wishes of Aboriginal peoples living in the area of the Land Council regarding the management of Aboriginal land; and to protect the interests of relevant Aboriginal people. Aboriginal land is held communally, yet payments arising from third party use of the land are often paid to entities that do not necessarily reflect all members of the land owning group. Further, in the case of large resource developments, the payments are also substantial, but time limited. There is a persuasive argument that both the Commonwealth and the land councils in administering financial transfers have something approaching a fiduciary duty to ensure benefits are distributed appropriately and beneficiaries are aware of the potential alternative approaches to use of such benefits. Or to put this another way, there is a risk of future litigation that benefits have not been administered and distributed in accordance with those entities fiduciary responsibilities.  Yet neither the Commonwealth nor the land councils appear to have mechanisms that provide any evidence that beneficial payments are in accord with either fiduciary responsibilities or the land council obligations to protect the interests of their constituents.

 

Land Council membership: A longstanding weakness in land council membership, emanating from the customary or traditional basis of member selection, has been a reluctance to select women in some quarters. There has to my knowledge never been a female chair of a land council, and women are invariably a minority on land councils. So a quick scan of the various land council web sites indicates the following data on female membership: TLC 4 /32; ALC 8/26; CLC 22/90; and NLC 17/78 with five additional women yet to be appointed. Overall, 51/226. This in turn raises the question: are land council priorities gendered in ways which exclude or diminish women. I don’t know the answer, but nor does anyone ever seem to formally ask the question. A further issue relates to the longevity of land council membership, and whether there is an optimal level of turnover of council members and in particular executive committee members.

 

Executive Committees: The role of Executive committees and the land council CEOs are crucial offices within land council structures. The ANAO identified a number of instances where executive committees were operating beyond the authority delegated to them and without adequate advice and information flowing to members. A further issue concerns the longstanding under-representation of women on these influential decision-making committees. According to the current websites of the four land councils, the representation of women on these committees at present is as follows: NLC 5/14; CLC 3/11. The TLC has a nine member executive management committee, but its web site does not disclose its membership. The ALC has a Finance Committee, but does not appear to have an executive committee. The potential exists for membership of executive committees and the office of CEO to confer extraordinary influence over the operations of land councils and in particular their financial distributions. In the event that audit committees are not operating independently, the risks of influential individuals appropriating decision making power that the Parliament has provided to the land councils increases. The absence of independent effectiveness audits able to scrutinise the substantive activities and decisions of land council executive committees and CEOs (and not just the processes they adopt) removes a potential ‘check and balance’ that would provide additional protection for land councils’ constituents.

 

Section 19 land agreements: the NLC audit lists (para 3.74) data on the numbers of community consultations on all issues undertaken by the NLC. Over six years there were almost 1750 meetings, consulting around 38,000 participants. It is not clear how many of these resulted in section 19 agreements, nor is it clear how many such agreements are on foot. Similar issues arise with the other land councils, although the workload levels will be much lower. Nor is it clear how long section 19 negotiations take to be finalised (see para 3.57 for the NLC estimate). Similarly, there is little data available on the extent of formal agreements as opposed to informal arrangements with traditional owners.

Delays and reluctance of the land councils two decades ago to prioritise speedy section 19 negotiations were one of the drivers of the township leasing arrangements that have long been resisted by the land councils. It is not clear to me if the township leasing framework is working effectively, but the deeper issue (particularly if we wish to see commercial investment encouraged within townships) is to ensure that individuals and corporations prepared to engage in commercial activities within townships have speedy options for securing leases and tenure that facilitate raising commercial finance.

 

The fundamental issue here is the answer to the question: how well do these agreements for access to Aboriginal land operate. Are the needs of landowner groups being met? Are the third party users satisfied? However, as far as I can tell, there is no data or public information available to answer these questions across all four land councils.

 

Royalty and payment distributions: The ANAO found that the land councils are largely complying with their legislative requirements in relation to royalty distributions under Part IV and section 19 of ALRA. However over time, it is clear that land councils and eligible communities have resorted to utilising corporations to receive payments which then distribute the funds to their members. One result of the use of such corporate mechanisms, in effect as a middleman in the process, is that there is no transparency in relation to the characteristics or identity of the ultimate beneficiaries, arguably avoiding the legislative intent that the land council as a whole should decide on the class of beneficiaries. In addition, there are obvious potential risks with non-transparent payments allocated by the land council (or worse still, by the executive committees) to corporations whose controlling members are not always apparent.

 

Issues of organisational scale: Given the complex policy environment described earlier, and perhaps counter-intuitively, it is clear from the ANAO audits that the two larger land councils (ie the NLC and the CLC) have developed and maintained much stronger governance frameworks that the two smaller land councils. Both the TLC and particularly the ALC appear to be beset with serious and deep-seated governance issues. One of the wider policy implications arising from this result relates to the scale of land council operations. The experience of the two smaller land councils, where small numbers of key individuals exercise substantial authority and control without the checks and balances provided by members from different regions and backgrounds, suggests that devolution can be taken too far. Both the larger land councils have developed regional administrative frameworks to address the longstanding pressure for greater devolution of land council powers and functions. Are those arrangements working well, or not? And given the scale of the dollars flowing through the system, should NIAA be undertaking greater oversight of the smaller land councils?

 

Land tenure responsibilities: The relationship between the land councils and land trusts (who are if effect the entities who own Aboriginal land under ALRA) are complex. A person or corporation seeking to utilise or access a land trust’s country must approach the land council. In turn the land council consults the traditional owners (from whom land trust members are appointed) and then conveys the views of the traditional owners to the land trust as a directive. This innovative and prescient arrangement has in my view worked well over the past almost fifty years, but was not adopted by the Parliament when it enacted the Native Title Act (NTA). Under the NTA, the native title holders who are all members of the Prescribed Body Corporate make their own decisions. In the NT, both legislative regimes operate. Which is most effective? No one seriously discusses this within policy contexts.

 

Further, houses (and other assets) affixed and located on land trust land which are not leased to a government entity are the responsibility of the land trust as landlord. The land councils have a responsibility to meet the financial commitments of land trusts, and in turn the Commonwealth has an implicit responsibility to ensure that the financial liabilities of land councils are funded. There is NT legislation (the Residential Tenancy Act) which requires landlords to, inter alia, ensure the property is maintained and habitable, and ensure the property is safe and secure (link here). These obligations are rarely if ever addressed by land trusts or the land councils, and Aboriginal tenants have, to my knowledge, never taken legal action against a land trust to do so. This may be a function of the dearth of independent advice available to individuals in remote contexts. Yet Aboriginal people continue to live in overcrowded and under-maintained conditions throughout the NT. Where leases exist, the landlord is usually a government or community housing provider. But where they do not (for example, on outstations on Aboriginal land), the landlord is the relevant land trust. It is not clear how many NT Indigenous citizens live in houses without a lease, and the extent of support they receive from land trusts and land councils. My own intuition is that the answer is some thousands of people are housed in such locations, and the support they receive from land trusts (who must act on the direction of a land council) is zero or ‘not much’. A regular effectiveness audit would offer one mechanism for beginning to measure the scale of this issue, and encourage policymakers to set in train policy responses to address it.

 

Conclusion

The ANAO audits of the four NT Aboriginal land councils have been an extraordinarily valuable exercise in setting down a detailed picture of the workings of these important organisations. The overall picture has been positive, although the ANAO findings in relation to the ALC in particular are in my view extraordinary and of serious concern. In relation to the ALC audit, we are yet to see any formal or public response by Minister Burney nor NIAA, though one hopes that action is underway behind the scenes.

 

Yet the ANAO remit is limited, and this means that it under-invests in focussing on effectiveness issues. This post has identified seven broader issues that have the potential to impact the effectiveness of the NT land rights framework for better or for worse, and consequently, deserve explicit policy attention from land councils and from the relevant governments. It is my contention that an explicit program of effectiveness audits by the ANAO across the mainstream, but particularly across the Indigenous policy domain would make a much greater contribution to assisting policymakers to find timely and proactive solutions to many of the issues that require attention in those policy domains.

 

Avoiding asking the hard questions is always convenient at the time, but Indigenous Territorians will not thank policymakers, whether in NIAA, in the ANAO, or in the land councils who deliberately avoid the hard issues. The risk is that at some point, effectiveness deficits will lead to regressive policy changes that undermine the substantial rights presently available to Aboriginal Territorians.

 

17 August 2023

 

Typographical errors: ANAO audits of the Tiwi and Anindilyakwa Land Councils

 

Here are a few of the unpleasant’st words

That ever blotted paper.

Merchant of Venice Act 3, scene 2.

 

There are four land councils established in the NT under the Aboriginal Land Rights (Northern Territory) Act 1976 (ALRA): the Tiwi Land Council (TLC), the Northern Land Council (NLC), the Central Land Council (CLC), and the Anindilyakwa Land Council (ALC).

 

In the last fortnight, the ANAO has published two important audit reports on the smaller two land councils, the TLC (link here) and the ALC (link here). Land Councils are Commonwealth statutory corporations albeit with a range of unique elements relating to the appointment of members, their funding, and their linkages with other Indigenous institutions in the Northern Territory. They are also native title representative bodies under the NTA. Over and above their narrow legislative roles, they have developed into important Indigenous institutions in both the NT and nationally.

 

The ANAO notes that the rationale for these audits is provide independent assurance to Parliament that the Land Councils’ governance arrangements are effective in meeting legislative obligations under the ALRA, the Native Title Act 1993 (NTA) and the Public Governance, Performance and Accountability Act 2013 (PGPA Act). The ANAO has indicated that an audit of the CLC will shortly be published and an audit of the NLC is expected to be published in a couple of months.

 

I don’t have the space here to provide a comprehensive summary of each of these reports, and will instead cherry pick a small number of issues that appear to me to have significant governance implications both for the individual land councils and the broader institutional framework they operate under.

 

The ANAO is to be congratulated on the quality and accessibility of its analysis given the innate complexity of these institutions, including their cross cultural responsibilities. Nevertheless, as I have previously noted on this blog, the ANAO has a propensity to cloak its findings in heavily qualified bureaucratic prose and extreme understatement. The result is that an ANAO report reads like a novel written in a foreign language. Those proficient in bureaucratese know exactly what is being said while those unfamiliar with the language (eg in the media and the general public) are left largely untroubled and unaware of the significance of what has been said.

Tiwi Land Council Audit

 

The ANAO headline findings for the TLC were:

The Tiwi Land Council's (TLC) governance arrangements under the ALRA and the PGPA Act are partly effective….The TLC’s arrangements to promote the proper use and management of resources under the PGPA Act are largely inappropriate. (page 5).

 

The ANAO notes that in 2021-22the TLC budget was $4.3m, and it distributed $5.9m in land use payments to Traditional owners (TOs). These are not particularly large amounts, but will add to around $100m over the span of a decade.

 

In para 2.9, the ANAO noted that its analysis of Management Committee and Council meeting minutes identified multiple instances where the Management Committee made decisions without delegation between 2008 and 2020.  

 

A core statutory function of the land councils is to consult Traditional owners and ascertain their consent to proposed activities on their land. The ANAO identified significant shortfalls in the TLC’s approach to exercising this function:

3.64 The ALRA determines that, in carrying out its functions, a Land Council shall have regard to the interests of, and shall consult with, the Traditional Aboriginal Owners of the land in its area and any other Aboriginal people interested in the land. The ALRA further specifies that a Land Council shall not take any action unless it is satisfied that: •the Traditional Owners of that land understand the nature and purpose of the proposed action and, as a group, consent to it; and •any Aboriginal community or group that may be affected by the proposed action has been consulted and has had adequate opportunity to express its view to the Land Council…

…3.66 The TLC subcontracts the organisation and conduct of the clan meetings to Tiwi Resources, an Aboriginal corporation owned by the eight clans. The TLC presents at these meetings, however does not take minutes, and does not request the minutes from Tiwi Resources. The TLC was unable to provide information to the ANAO about the discussions or decisions made at clan meetings and cannot demonstrate it has conducted effective clan consultations. 

 

In the summary at the start of Chapter Four, the ANAO note (page 51):

The TLC’s arrangements to promote the proper use and management of resources are largely inappropriate. The TLC’s policy framework and arrangements for risk management, fraud control and managing conflicts of interest are incomplete, not appropriately established, and inconsistently implemented. The TLC’s corporate plan and annual report, including performance statements, are not fully consistent with legislative requirements.

 

Finally, in what I took to be a damning indictment of the level of engagement of the National Indigenous Australians Agency, the ANAO laid out the functions of the NIAA set out in the formal order which established it (see para.2.26), which includes roles ‘to lead and coordinate policy Commonwealth policy development’ and to ‘build and maintain effective partnerships…’, and then noted (in para 2.27) the NIAA’s advice of its perception of its role in relation to the NT Land Councils which adopted a much more passive approach. Then to ram home the point, in para 2.28, the ANAO stated without further comment:

2.28 As part of this audit, the ANAO approached the NIAA regarding a potential recommendation to the NIAA to support the Tiwi Land Council to develop appropriate delegation instruments. The NIAA responded that ‘This is a matter for the Tiwi Land Council’.

 

Anindilyakwa Land Council Audit

The ANAO headline findings for the ALC were:

The ALC’s governance arrangements under the ALRA and PGPA Act are partly effective …. The ALC’s arrangements to promote the proper use and management of resources under the PGPA Act are partly appropriate (page 6).

 

The ANAO notes that in 2021-22 the ALC budget was $7.4m, and it distributed $70.2m in land use payments to traditional owners (TOs). These are substantial amounts appropriated for Aboriginal benefit, and will add to around $770m over the span of a decade.

 

Notwithstanding this rather anodyne description, I was quite astonished to read the detailed analysis contained in the ANAO audit. While the audit focusses on a single organisation, the ALC, it necessarily describes a network of parallel organisations with interlocked directors, and senior staff, and a complex web of financial flows between them. Yet the financial books of the parallel organisations (and their commercial subsidiaries) are beyond the ANAO remit, leaving the readers to ponder the implications of a series of questionable arrangements and decisions taken within the ALC.

 

The high level conclusions of the ANAO are outlined at pages 8 to 10, followed by a series of technical recommendations. The following extracts pick out some of the more salient high level conclusions:

17. …. Key interests held by the CEO and Council members (including the Chair) in corporations that receive funding based on decisions of the Council, are not consistently declared and are ineffectively managed. (See paragraphs 4.19 to 4.51)…

18….The 2021-22 Annual Report was not published as at March 2023. Although the draft 2021–22 Annual Report mostly complies with PGPA Act and Rule and ALRA requirements, it lacks transparency in relation to operations.

19. The Audit Committee does not provide adequate oversight and scrutiny of the ALC’s operations. The Audit Committee is not independent from management and is not effective in the delivery of some of its key mandatory functions under the PGPA Act. It does not appropriately review the ALC’s performance reporting; system of risk oversight and management; and system of internal control. The Audit Committee secretariat is not effective. (See paragraphs 4.64 to 4.85)

 

The issue of conflicts of interest is at the core of this audit. In plain English, a conflict of interest opens the way for those conflicted to accrue inappropriate financial benefits. The ANAO has identified no instances where that has occurred, however its remit is limited to the ALC and it has not examined the financial affairs of the various parallel and subsidiary organisations. Figure 4.1 on page 68 provides a useful summary of the complex relationships involved. The key must read paragraphs are 4.45 to 4.50.

 

Some extracts:

4.32 The CEO’s declaration identified an interest arising from the ALC’s employment of his spouse (who was first employed by the ALC in 2014). The ‘notes’ section of the declaration was left blank, and no management plan was included in the register or elsewhere. The CEO had not made a written declaration of the interest prior to 2022...  

4.47 The involvement of the ALC Chair, CEO and CEO’s spouse in organisations that, in 2021–22, received the majority of royalty equivalents and that, in 2020–21 and 2021–22, received the majority of NT Indigenous Economic Stimulus Package funds, creates a risk of conflicted interests….

4.48 In Council funding decisions, the ANAO observed disproportionate benefit to the entities with which the CEO is associated. During the two 2022 Finance Committee meetings (at which the ALC CEO was present), 112 requests for funding valued at $109.1 million were reviewed… In summary, requests submitted by the ALC CEO represented 24 per cent of funding applied for, and 36 per cent of approved funding; and the success rate for requests submitted by the ALC CEO was 99 per cent by value, compared to a success rate for the other applicants of 53 per cent by value. 

4.50 Given the influence of the Chair and CEO over the ALC’s funding and management decisions; the financial benefit that AAAC, GHAC and consequently Winchelsea Mining obtain from the ALC; and the ALC Chair’s, CEO’s and CEO’s spouse’s positions in GHAC and Winchelsea Mining; the risk of conflicts of interest is high. The current management strategies applied to this risk are either insufficient or not implemented. 

 

The ANAO analysis of the ALC Audit Committee is also eye watering. The ANAO identifies that the ‘independent chair’ costs nine times more than other land councils expend on their audit committee chairs (para. 4.73), and is engaged by the parallel organisations that are also effectively controlled by the CEO and ALC Directors.

 

The ANAO identified several significant issues in relation to the independence of the Audit Committee Chair (para. 4.70):

• The Chair of the Audit Committee is the founding director of Enmark Pty Ltd (Enmark). Between 2014–15 and 2021–22 the ALC paid $896,056 in fees to Enmark for services. Between 2017–18 and 2021–22 Enmark was one of the top three consultants by value engaged by the ALC.

• Enmark provides consultancy and other services to several Aboriginal corporations receiving royalty equivalent funding from the ALC. This includes GHAC and AAAC.  The ANAO identified numerous deficiencies in the approach of the Audit Committee to its responsibilities.

 

One further issue that I won’t explore in detail relates to the ALC’s use of royalty payments to third party organisations which were then effectively reallocated to the land council for the payment of salaries (see paras 3.51 and 3.52). The ANAO correctly identifies this mechanism as a potential source of fraud, but fails to note that it effectively undermines one of the Minister’s tools available to ensure the land council is appropriately focussed on its legislated remit. Under the ALRA, the Minister approves the budgets of the land councils, but the ALC has effectively been redirecting royalty equivalent funding away from community benefit and towards its own operations, thus undermining the fiscal constraints that incentivises good priority setting.

 

Finally, the ALC Board and CEO provided a ten page response to the Audit report, which needs to be read in full. The response focusses on the undoubted achievements of the ALC and its associated organisations in a range of areas. It documents a massive increase in staff of the ALC, many from the local communities. It also notes that the former Minister for Indigenous Australians Ken Wyatt was kept fully informed of development on Groote Eylandt, and that the CEO of NIAA has been briefed. It points to the ALC’s involvement with the ANU in documenting the social indicators on Groote; a matter I commented on in an earlier post (link here).

 

Clearly whatever its other deficiencies, the capability of the ALC Board to write entertaining prose far exceeds that of the ANAO. The ALC response provided my favourite line from the whole report in a comment on the ANAO’s conclusions on conflict of interest:

The ALC has effectively managed conflicts of interest in the context of this operating environment and accepts that we have not always properly documented these practices. Therefore, instances of typographical errors have given the auditors a negative overall impression.

 

Conclusion

These two audits raise important issues regarding the quality of governance in two of the four NT land councils. The TLC appears to have taken a series of remedial actions and should hopefully make good progress. The ALC faces more deep-seated issues and notwithstanding its response, I for one am unconvinced that it is yet on the right path.

 

The existence of these issues however is not just an issue for the Land Council directors and management. It seems to me that the relevant Ministers over the past decade have allowed the quality of regulatory oversight of the NT land councils to significantly weaken and in some cases to perhaps disappear. Not only has this laissez faire approach opened up the opportunities for conflicts of interest to emerge (and thus to opportunities for fraud against local communities and the Commonwealth), but it has also undermined the overall effectiveness of the land councils in fulfilling their statutory obligations and remit.

 

To address the issues raised in these audits, it strikes me that there are two essential actions required.

 

First, to provide an assurance to the ordinary members of the Groote community, there appears to be an overwhelming case for an independent forensic investigation into the financial affairs of the ALC, its associated organisations, and its key staff and Directors. It seems to me imperative that Minister Burney should both initiate such an investigation immediately, and initiate a short sharp review of the way in which NIAA oversights portfolio bodies.

 

Second, given that it is now almost fifty years since land councils were established, and that there has been no overarching review for two decades or so, there is a strong case for a high level independent review of the appropriate regulatory framework for the operations of the NT land councils. Such a review should reconsider their statutory remit, their funding arrangements, and importantly, how land councils relate to associated Indigenous entities that have responsibilities for utilising the royalties, royalty equivalents, and other land use payments that accrue to landowners and affected communities. Such a review should not have any overt political agenda apart from considering the best way to meet the future needs and aspirations of Aboriginal landowners and native title holders in the NT into the future.