Gosford, Robert --- "The Last Great Bureaucratic Landgrab of the C20th: Registrar Liquidates Aboriginal Corporations" [2001] IndigLawB 20; (2001) 5(7) Indigenous Law Bulletin 13

The Last Great Bureaucratic Land Grab of the C20th: Registrar Liquidates Aboriginal Corporations

By Robert Gosford

The Office of the Registrar of Aboriginal Corporations is charged with the administration of the Aboriginal Councils and Associations Act 1976 (Cth) (‘the AC&A Act’). According to its mission statement, it should do so in an ‘efficient and effective manner’. It should also ‘promote understanding of, and compliance with, the Act and regulations’ and ‘assist indigenous Australians to manage their own affairs’. The Office must strive to conduct its business in a ‘simple and flexible’ and as ‘culturally appropriate’ way as possible.

There are currently about 2,700 Aboriginal Associations incorporated under the AC&A Act. Section 63 of the AC&A Act allows winding up orders to be made by application to the Court. Applications can be made by the Corporation, its members, creditors and the Registrar. Grounds available for a winding-up application include the ground of ‘just and equitable’ that the Corporation be wound-up. Winding up means that effective control is taken away by the appointment of a liquidator, whose job is to gather any assets of the Corporation, including land, sell them and pay any creditors.

The Rush to Liquidate

In early- to mid-1999 the Northern and Central Land Councils became aware of applications made by the then Registrar to the Supreme Court of Queensland for the winding-up of a number of Aboriginal Corporations in the Northern Territory. Of these, seven were established for the sole purpose of holding the legal title to land. All seven have been wound-up.

Of the four Aboriginal Corporations wound-up in the NLC area, three were formed following successful claims for Community Living Areas (‘CLA’), the other following the settlement of a land claim under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). In all cases, the grant of land was subject to the claimants forming an incorporated body to hold the title to the land. It was considered appropriate at the time to use the AC&A Act rather than the Northern Territory Associations Incorporation Act.

The CLA process was developed as a means of allowing those persons dispossessed by pastoral stations to receive title to small parcels of land (often referred to as ‘pocket-handkerchief blocks’) within pastoral stations to which they have traditional responsibilities or to which they have historical connections after having lived or worked on the station for long periods of time. Grantees are often old, frail and have poor oral and written English language skills – if any. The history of grants of CLAs can be characterised as one of delay, frustration and sorrow – many of the applications taking so long to process that the applicants pass away before a grant of land is made. The last CLA grant made by the Northern Territory Government was in the mid-nineties.

Incorporation under the AC&A Act requires that, among other things, members of a Corporation hold regular meetings, establish a Governing Committee, appoint a Public Officer and report on their activities annually to the Registrar’s office.

All of the four Corporations in the NLC area that were wound-up had poor records of compliance with this last requirement – to forward to the Registrar’s office annual audited statements of income and expenditure and documents signed by the Corporation’s Governing Committee, certifying the corporation’s compliance with the requirements of the AC&A Act. All of the liquidated corporations have, in the past, been assisted by either the NLC, ATSIC or local resource agencies to belatedly comply with the requirements by filing exemption statements and certificates under the AC&A Act – sometimes in relation to years of non-compliance.

In the past, the Registrar’s office has taken a benign approach to this non-compliance as it is aware that none of these corporations did anything else other than hold the legal title to their land; they did not trade, employ staff or conduct business of any kind. This benign approach changed in late 1998 and early 1999, when the Registrar’s Office took a stricter view of compliance. Suddenly, if an Aboriginal failed to meet its procedural obligations under the AC&A Act, it was to be liquidated or de-registered. At no stage did the Registrar advise or seek assistance from the Land Councils in order to avoid the foreseeably draconian results of liquidation. The four corporations wound-up in the NLC area were all liquidated following applications that they be wound-up on the ‘just and equitable’ ground

Documents filed with the Court in support of one application for winding-up revealed that at one time there was a plan to liquidate some hundreds of Aboriginal Corporations and that a ‘bulk deal’ had been struck to conduct these applications through the Supreme Court of Queensland – regardless of the State or Territory in which the Corporation was formed and conducted its activities.

The first that many of the members of the Aboriginal Corporations affected by this change in approach knew of the appointment of liquidators to their corporations was when the liquidator’s representatives endeavoured to ascertain and acquire the corporation’s meagre assets. The typical reaction of corporate members to this bad news was a mixture of rage, disbelief and sadness. An understandable reaction - first indigenous land was stolen and strip-mined with cattle, and then, once a tokenistic little pocket-handkerchief parcel is begrudgingly returned – it is stolen back again!

The Plan Hits Problems

Prior to the winding up applications, none of the seven corporations had any creditors. They could not: they did not do any business; employ anyone; or incur debts, they just held the title to their land.

But the liquidators had a problem – the land, often the sole asset of the corporations, was valueless for the purpose of being sold to pay the costs of the liquidation. These costs were climbing towards $15,000 for each winding-up. Other factors make any sale or dealing with the respective properties difficult if not impossible, including:

• Native title – neither the Registrar, the Court or the liquidator appear to have considered that the liquidation may well be invalid as unlawfully extinguishing native title;
• In order to realise the sale of the land, the liquidators would have to evict the members of the corporation living on the land from their homes and traditional country. No consideration of where those people might move to appears to have been given or how, and by whom, this would be done; and
• What would happen to the fixtures on the land, like houses and schools? Would fittings like the demountables be removed and sold? Many, if not all houses on these lands were provided by external funding – ATSIC and other agencies. Where might those kids go to school? What would happen to the school-houses – the property of the NT Education department?

Today

In late 2000, Minister for Aboriginal and Torres Strait Islander Affairs, Senator John Herron, retired to the backbench. Registrar Bouhafs has resigned and been replaced. The Registrar’s office now says that they will meet the costs of the liquidation and support an application to the Court to terminate the liquidation under section 482 of the Corporations Law.

Not surprisingly, some of the liquidators have purported to disclaim the land as ‘onerous property’ for the purposes of the liquidations. This disclaimer has the effect of returning the land to the Registrar-General of Titles in the Northern Territory and, for the land to be returned to the corporation and it’s members, would require a new grant of land to the corporation.

The new Acting Registrar, Colin Plowman, has taken a positive and active role to resolve the problem, and has declared a moratorium on further liquidations, and resolved to conduct an internal review of the application of the AC&A Act and to consider a raft of other necessary changes to the Act.

Two years after the winding-up of their corporations, the members have still not had their land returned to their control. No-one has been evicted from their lands or houses. The major hold-up is not getting the applications to terminate the liquidations back before the Court – it is who is going to pay the liquidators and lawyer’s fees.

Resolving these issues should be straightforward – and present opportunities for the new Minister for Aboriginal and Torres Strait Islander Affairs, Phillip Ruddock, to take an active role to identify practical solutions. The obvious immediate step to take is for the new Minister to accept responsibility for the fees, and restore title to the corporations.

Robert Gosford is a solicitor employed by the Northern Land Council. He works in the areas of local government, land use agreements and incorporation matters.