What's the Price of Transparency in Native Title? ILUAs post McGlade with Franklin Gaffney

Monday May 14, 2018

A specialist in the post determination environment, Franklin Gaffney works as an Independent Special Counsel with Lavan and PBC Consultancy Services in Perth. He advises a range of clients, including legal firms, Aboriginal corporations and trusts, resource companies and government agencies.

Franklin Gaffney

We had the pleasure of sitting down with Franklin recently to discuss key challenges and opportunities facing the industry today. You can read the full Q&A below.

Can you tell us a bit about your practice and what you are working on at the moment?

My native title work focuses on the post-determination environment.  At present, I’m:

  • advising on objections to the registration of an ILUA associated with the Noongar Settlement
  • undertaking an independent review of an ILUA on behalf of the parties with a view to improve the implementation of the parties’ obligations
  • representing an Aboriginal corporation currently in discussions with a resource company regarding the implementation of ILUA obligations
  • delivering training to Implementation Committee members on how to improve the implementation of ILUA obligations
  • advising a native title service provider on trust related matters; and
  • endeavoring to make headway on my PhD research which is examining the implementation of native title agreements in the resources sector in Western Australia.

What are some of the key trends and developments in Native Title practice that you’re seeing in WA/nationally?

Resource companies are beginning to pay more attention to the implementation of their native title obligations. Even if the obligations are not legally enforceable, the industry has publicly committed to greater Indigenous employment and supply chain opportunities through native title agreements, Reconciliation Action Plans, Local Participation and Community Development Plans. Furthermore, State and Federal governments are slowly turning their attention to issues surrounding the implementation of native title agreements. Unless parties are prepared to review and improve agreement implementation, governments are likely to examine various options to ensure that benefits flow through to local communities.

Governance and capacity constraints in native title trusts and Aboriginal corporations are beginning to re-emerge. Many Rule Books and Trust Deeds require directors to retire after a specified number of terms (normally 6 years, 3 terms of 2 years). The rationale for these rules includes enabling board renewal and mitigating the potential for nepotism. Board-renewal in the Pilbara suffers from additional risks because, along with the loss of corporate knowledge, the skills and experiences accumulated over the years will also have been lost. Boards need to proactively manage the change to ensure that in-coming directors have sufficient skills to fill the gaps left by departing directors. Capacity constraints within the community can make this a challenging exercise. Resource companies need to be mindful of these upcoming challenges and the impact of changes in personnel on their future dealings with the organisations.

Native title charitable trusts and Aboriginal corporations with DGR status enjoy significant tax concessions. These concessions are predicated on the notion that they provide some form of charitable purpose: addressing Indigenous disadvantage. A charitable trust needs to be continually mindful of its obligations as it develops and implements programs and distributes benefits. Failure to comply with statutory obligations may result in the loss of its charitable status.

Your topic will cover ‘What’s the Price of Transparency in Native Title? ILUAs Post McGlade?’ at our up and coming conference – why is this such a significant/timely topic?

The recent Attorney General’s Option Paper on native title reform focuses on issues associated with transparency, as does the recent CATSI Act review conducted by ORIC, and Transparency International’s 2017 report on mining approvals in Australia.

Submissions from various stakeholders on the Attorney General’s Options Paper show that there are divergent views on the issue.  In most cases, opponents of transparency argue that the contracts negotiated with native title parties are ‘private’ and ‘commercial’ arrangements and any deficiencies in the agreements are due to legal advice and representation received by native title parties during negotiations.

Despite these objections to greater transparency, information concerning royalty payments to native title parties is, in most cases, now publicly available.  Furthermore, many large-scale resource companies openly champion their Indigenous employment and business development outcomes.

More importantly, as submitted by Transparency International, the potential for corruption in agreement-making significantly increases in the absence of transparency.  Indeed, the WA Attorney General is currently undertaking two reviews into native title charitable trusts under the Charitable Trusts Act 1962 (WA).  Experience also shows that poor transparency surrounding native title agreements and their implementation has significant consequences for governance and industry standards, to the determinant of native title parties and the general public.

How has the McGlade decision affected ILUAs? What’s one issue/dilemma you see coming up for legal practitioners when regarding the implementation of ILUA obligations?

Many ILUAs negotiated in the Pilbara are now coming up for internal review. Generally speaking, resource companies seek to limit the terms of reference for the review, while native title parties seek to address the perceived inadequate implementation of the agreements.  Legal practitioners need to be attentive to recent case law when advising on the implementation issues and the continued focus by legislators, informed commentators and NGOs on the issues surrounding the implementation of native title agreements.

Franklin also has a close working relationship with the Noongar Chamber of Commerce and Industry assisting Aboriginal clients to develop and grow their businesses and successfully tender for contracts. He assists clients to maximise the benefits that native title can provide and negotiates and drafts various protocols, alliance, joint-venture and service agreements which incorporate trust building measures to establish and maintain co-operative working relationships between parties.

You can hear more from Franklin at the  8th Annual Native Title Law Conference seminar, being held on Thursday 21 June at the Parmelia Hilton Hotel, Perth.


"Great, fantastic to see such esteemed authorities on the subject area all gathered together and contributing/engaging with each other’s presentations."

Delegate - Use of Indigenous Land: The Legal Issues, Sydney, November 2017





, Use of Indigenous Land: The Legal Issues

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