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Indigenous Law Bulletin

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Jackson, Vanessa; Simpson, Edward --- "Creating an Aboriginal Corporation Constitution" [2000] IndigLawB 15; (2000) 4(27) Indigenous Law Bulletin 19

Creating an Aboriginal Corporate Constitution

By Edward Simpson and Vanessa Jackson[1]

After buying a pastoral property on behalf of a community, how can the Aboriginal owners retain the sort of control that they want? This was a question recently addressed by the Ngemba people of North Western NSW

The Indigenous Land Corporation purchased the Cowga pastoral station in 1999, on behalf of the traditional owners, the Ngemba people. Cowga is 23,000 acres, just south of Brewarrina, on the Bogan River, in the north west of New South Wales. Subject to final government approval, it is expected that the station will be managed by Orana Haven Rehabilitation Centre.[2]

The Ngemba people want to establish Cowga as an economic and cultural base for Aboriginal people in the Murdi Paaki/Orana Region. They also want to use the property as a source of work and training for the people attending Orana Haven.

When purchasing Cowga, the traditional owners sought legal advice so that they could hold title to the land in a manner that was both legally and culturally appropriate. After careful consideration, it was decided that a company under the Corporations Law could provide more certainty, protection and flexibility to the traditional owners.

The company formed by the traditional owners is one limited by guarantee, called ‘BALLOT Land Enterprises Pty Ltd’, where BALLOT stands for Brewarrina Aboriginal Local Land Owners Trust.

The Constitution of BALLOT is tailored to address the specific concerns and needs of the Aboriginal people of the region, as well as the requirements of the Corporations Law and other relevant legislation, such as the Western Lands Lease. The overriding objective of the Company Members as expressed in the Constitution is to permanently hold title to Cowga and to ‘avoid putting any land controlled by the Company at risk of being permanently lost from Aboriginal ownership or control’. Members’ objectives also include:

b) ‘to maintain the traditions, observances, customs and beliefs, and to promote the dignity and independence of Members of the Company; and

c) to provide economic, educational, environmental, social, sporting and cultural benefits to the Members of the Company.’

One of the concerns expressed by the community was the need to define terms such as ‘historical member’ and ‘traditional owner’ and in so doing to define the potential membership of BALLOT in a manner that would be neither exclusive, nor open to misinterpretation. To this end, the Constitution sets out the following key definitions: -

‘Tradition’ means the body of traditions, observances, customs and beliefs of Aboriginals or of a community or group of Aboriginals and includes those traditions, observances, customs and beliefs;

‘Traditional Land Owners’ means that person or people who according to their traditional Membership of the Ngemba people, or according to law or custom are acknowledged and recognised as the Traditional Land Owners;

‘Traditional Member’ means a current member of the Company admitted to Membership under clause 13(h) of this Constitution;

‘Historical Member’ means a non-voting current member of the Company admitted to membership under Clause 13(i) of the Constitution.

Clause 13 (h) of the Constitution provides that a person may be admitted as a Traditional Member, and thereby have full voting rights, if the person meets the following criteria:

i. is an adult Aboriginal person;

ii. is a Member of an identified family which has blood ties to the identified group forming the Ngemba people, who are the Traditional Land Owners of the area of Brewarrina; and

iii. is accepted by the Ngemba people as having a legitimate claim to having maintained links with the Land and with the Ngemba people through residence in the Brewarrina area, or through having maintained links with the Brewarrina area and Ngemba people living in that area.

The process is described in greater detail in the Constitution.

At the discretion of the Board, a person may become an Historical Member of BALLOT. Such Members must be an adult Aboriginal people with blood ties to the Ngemba people. They are not required to have maintained links with the Land, or links with the Brewarrina area and the Ngemba people. Although Historical Members may participate in the affairs of BALLOT, they do not have voting rights.

The Constitution of BALLOT is designed to be an actual exercise of Indigenous peoples’ right of self-determination as well as an active recognition and implementation of their economic, social, political and cultural rights.

The framework of BALLOT’s Constitution may provide assistance to other Indigenous communities who are faced with the challenge of establishing a body corporate in order to resume title to lands, but in a manner that promotes and protects their cultural traditions and beliefs.

Edward Simpson is the Manager of Orana Haven, the Chairperson of BALLOT, a Councillor of the Brewarrina Shire and a Director of the Western Aboriginal Legal Service.

Vanessa Jackson is an environmental lawyer who has worked with the NSW Aboriginal Land Council and Orana Haven.

[1] The authors would also like to thank Liz Simpson and Tony Simpson for their assistance with this article.

[2] See [2000] ILB 16; 4(27) 19 Indigenous Law Bulletin.

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