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Reworking Indigenous corporate structures:

the Central Arrernte case

Manuhuia Barcham

Introduction

Registered Native Title Bodies Corporate (RNTBCs) provide an opportunity for


two laws – Australian and Aboriginal – to come together. In doing this, RNTBCs
provide a point of interaction which, while created to satisfy the requirements
of Australian law, provides an opportunity for Aboriginal law to be recognized
by external stakeholders. RNTBCs also, though, provide a space for the
creation of new resources which may help Aboriginal groups to more effectively
undertake their roles in maintaining their own law in their own regions –
including through such basic features as providing increased support to cultural
and language programs or increased or more appropriate health or education
services for their communities.

In exploring these issues this paper will look at the experiences of the three
Central Arrernte1 estate groups Mparntwe, Irlpme and Antulye which
collectively hold native title in the Alice Springs region. The paper opens with a
discussion of the creation of the RNTBC for the three estate groups in the wake
of the positive determination of their native title claim. After a brief discussion
of some of the issues surrounding the creation and operation of such a body –
in terms of its need to be seen as being legitimate to both internal and external
stakeholders – the paper then looks at how the RNTBC, and related bodies,
may assist the three estate groups in their function as custodians of the
Altyerre (Dreaming) in the Alice Springs region. In addressing this issue the
paper then discusses the way in which the RNTBCis pursuing economic
development as a further way to bolster the ability of the three estate groups
in their role as custodians of the Altyerre. The paper then ends with a brief
discussion of some of the points of contention that are currently confronting
the RNTBC, and related organisations, as the work to maintain the delicate
balance between maintaining their internal and external legitimacy.

Gaining Native Title

The positive native title determination in 1999 for Alice Springs by the Central
Arrernte estate groups of Mparntwe, Irlpme and Antulye ruled that the three
groups did in fact possess native title over the region, but not in an exclusive
manner. In the ruling Olney J. argued that:

“The persons who hold the common or group rights comprising the
native title (the common law holders) are those Aboriginals who are
descended from the original Arrernte inhabitants of the Mparntwe,
Antulye and Irlpme estates who are recognised by the respective

1
Throughout this paper the spelling Arrernte is used following modern spelling convention –
although in quoting earlier authors older spelling conventions, such as Aranda and Arunda, are
used. For more on this see Henderson and Dobson (1994), p. 8.
apmereke-artweye2 and kwertengerle3 of those estates under the
traditional laws acknowledged and the traditional customs observed by
them as having communal, group or individual rights and interests in
relation to such estates.”4

Following the positive determination a Registered Native Title Body Corporate


(RNTBC) was established to hold the three estate groups native title rights.5
Following the positive determination meetings were called for each of the three
estate groups by the Central Land Council to decide how the RNTBC was to be
established.6 At these meetings it was decided that the three estate groups
would each elect ten members who would then sit on the executive of the
RNTBC. These ten members would then select a Deputy Chair from amongst
their own number. From these three Deputy Chairs one individual would then
be chosen by the thirty members to act as Chairperson for the RNTBC as a
whole. This process was to occur on a yearly basis at an annual general
meeting. This process has continued on to the present day even though the
structure through which the RNTBC and the three estate groups interact with
one another and the external community have changed over the years.

The name chosen for the new RNTBC was Lhere Artepe (which can be glossed
in Central Arrente as alhere = river or creek and artepe = backbone). The
name was chosen because the Todd River linked all three estates as it flowed
through each of them. The new RNTBC and three separate corporations
representing the three estate groups were then incorporated under the
Aboriginal Councils and Associations Act 1976 (the ACA Act).7

In looking at the creation of the RNTBC we need to address not only the
Western legal imperatives required under the Native Title Act 1993 (Cth)
(NTA)to create a corporate body in which native title rights can be vested but
also the various social and cultural imperatives required by the native title
holders themselves to legitimate the existence of this body given their roles as
apmereke-artweye and kwertengerle of the lands covered by the native title
determination. In one respect then we are referring to the issue of cultural
match popularised by those who have worked in the Harvard project and its
various derivatives including the Australian Indigenous Community Governance
Project.8
2
Estate owners, usually linked patrilineally to the first ancestral owners of the country (Morton
1999, p. 332).
3
Estate custodians – often matrifiliates (Morton 1999, p. 332).
4
Hayes v Northern Territory [1999] FCA 1248 (9 September 1999) at para. 2. A point to note
was that this decision was the first to recognise Native Title in an urban area in Australia. This
paper will not focus on the specific characteristics that an urban Native title ruling may have on
the progress of a RNTBC as that would require an explicitly comparative study. However, some
of the opportunities afforded to the three estate groups as a result of them having Native Title,
such as the opportunity to extinguish some aspects of native title over sections of land in
return for monetary compensation flow directly from the urban situation of the group.
5
The PBC was recognised by the Court and entered on to the register of native title as the
‘Registered Native Title Body Corporate (RNTBC). .
6
The Central Land Council had acted as the Native Title Representative Body (NTRB) for the
claim by the three estate groups.
7
This act has now been superseded by the Corporations (Aboriginal and Torres Strait Islander)
Act 2006.
8
The key issue at stake here is that a ‘cultural match’ between the institutions and
One of the underlying messages of the Harvard Project’s corpus of work is that
sovereignty matters. That is, the ability of an indigenous group to successfully
achieve development appears, from the empirical data, to be directly related to
the ability of that group to exercise a degree of sovereignty over their own
affairs. Cultural match, as one example of this exercise of sovereignty, is
important in that it provides an ability for indigenous groups to ensure that the
modern institutions and organisations that they use to govern themselves and
their interactions with external stakeholders are based in their own traditions
and so possess a cultural legitimacy within the community. In some respects
then, the current native title regime in Australia could be seen as being in
opposition to the issue of cultural sovereignty as the structures that indigenous
groups need to take on in the wake of a positive native title determination are
strongly determined by the Australian Federal government. However, looking
at this issue through a slightly different lens – and putting to the side the fact
that these structures are imposed by an external power – modern indigenous
groups must necessarily utilise hybrid structures for their interaction with
external groups (and even possibly with internal stakeholders) as the
environment in which these indigenous groups and individuals operate is very
different from that in which their traditional practices and modes of
organization emerged. This is not to say, though, that these traditional
practices and modes of organization are necessarily no longer legitimate or
effective. It is rather to make the claim that just as the environment in which
these groups operate has changed then so too the way in which these groups
engage with one another within the group and with external stakeholders may
also need to change. The challenge though may be balancing these competing
interests of needing to maintain the cultural legitimacy of indigenous groups
which helps define who they are as a group and as individuals and the need to
interact effectively with external stakeholders – often through the use of
externally imposed organizational structures and processes.

One of the key issues at stake then is, as David Martin has previously
discussed, that:

the more that attempts are made to reflect the complexities and
subtleties of the values and practices of indigenous people in formal
corporate structures and processes – for example, regarding such
matters as authority and decision-making, or the various forms of the
typically labile indigenous groupings and sub-groupings – the more there
is the risk that over time the formal corporate structures and processes
will supplant the informal indigenous ones – a process of the
‘juridification’ of social relations (Martin 2003, p. 10).

organisations of governance utilised by a group and their traditional ways of organising


themselves can lead to increased legitimacy within a group about the ways in which their
modern organisations operate. This then can directly impact on their sustainability and
success. For a good overview of the key ideas of the Harvard Project and the issue of cultural
match see Miriam Jorgensen, (ed) 2007 Rebuilding Native Nations: Strategies for Governance
and Development (Tucson: University of Arizona Press). For those interested in looking at how
these ideas have played out in research in the Australian context see Janet Hunt, Diane Smith,
Stephanie Garling and Will Sanders (eds), Contested Governance: Culture, power and
institutions in Indigenous Australia (Canberra: ANU E-Press). For a slightly different perspective,
and one which is not as wholeheartedly supportive of the transfer of the findings of the Harvard
Project to the Australian context see Sullivan (2006).
In addressing these issues then we need to look at the meaning of the two
terms apmereke-artweye and kwertengerle which were central to the ruling of
Olney J. in the three estate groups native title claim. We also need to look at
the roles associated with those who fulfill these functions and how the RNTBC
may act as a way in which these roles may be performed even more effectively
through the RNTBC’s ability to provide a source of legitimacy for external
stakeholders and a source of external resources.

Apmereke-artweye, kwertengerle and the Altyerre

In the Altyerre (dreaming) of the region the country in and around Alice Springs
is a collection of ancestral bodies – as discussed above the Todd River is the
spinal column and runs north-south through Alice Springs, hence the name of
the RNTBC. Overlaying all of this are a range of stories, an important one being
the altyerre ayepe-arenye which crosses over the Alice Springs region entering
the body at different parts. Depending on how balanced the country is and
people are, the ayepe-arenye (a type of caterpillar that lives on the tar vine –
one of the principal Altyerre of the Alice Springs region) has the effect of
bringing well-being or sickness to the country. The apmereke-artweye and
kwertengerle from the three estate groups work to maintain this balance and
keep the land and those who live on it healthy.

The word apmereke-artweye is itself taken from two separate base words
apmere (place) and artweye (ownership/belonging/relationship).9 Apmereke-
artweye are thus the holders of a particular estate or defined geographic area
and have certain responsibilities for caring for that land. While apmereke-
artweye can be identified as the owners of an estate they care for the land in
partnership with the kwertengerle. The kwertengerle’s role includes taking the
lead in discussions about certain estates and also includes ensuring that
apmereke-artweye look after an estate according to the dictates of the
Altyerre.

The strongest connections to estates for Arrernte are through patrilineal


descent – particularly through father’s father’s line. Apmereke-artweye
linkages to particular estates are thus drawn through continuous patrilineal
descent whereas kwertengerle are generally descended from women
patrilineally linked to a specific estate. What this means in practice is that
apmereke-artweye have a notional degree of seniority over kwertengerle in the
management of estates although proper maintenance of Altyerre depends on
the partnership between both roles. The importance of patrilienal descent also
plays out in individual’s relationships to others and their relationships to
particular estates. An individual can thus simultaneously be apmereke-
artweye to one estate and kwertengerle to another. What this means in
practice is that while apmereke-artweye have strong ties to the estate of their
arrenge (father's father) they may also have kwertengerle roles and
responsibilities for estates related to them through their atyemeye (mothers'
fathers), aperle (fathers' mothers) and/or ipmenhe (mother's mothers). While
these connections may be held simultaneously it does not necessarily mean
that each role is held with the same level of commitment. Generally one’s
9
For more on this see Henderson and Dobson (1994).
strongest relationship is to the estate of one’s father’s father, next to the
estate of one’s mother’s father and so on down to the estate of one’s mother’s
mother. However, these relationships can vary depending on factors such as on
which estate an individual resides, their level of knowledge around various
estates and their level of seniority within a family.

One point which ought to be noted is that these familial relationships are not
necessarily genetic. In Arrernte law the children of a woman to another man
who then marries an Arrernte man and so are adopted by that man may take
on all the rights and responsibilities of that man’s natural-born children with no
distinction being made between adopted and natural-born children.10

In looking at the role of the three estate groups as apmereke-artweye and


kwertengerle we need to look at the other common gloss of the term Altyerre
which is law. In this respect the Altyerre is a system of rules and regulations by
which people define their rights and interests. The Altyerre and the common
law are thus conceptually similar.11 In addressing this issue we can usefully
draw on Diane Austin-Broos’ (1994) discussion of Western Arrernte’s
engagement with Christianity and early mission encounters at
Hermmansburg/Ntaria where she used the motif of ‘two laws’ to explore the
way in which Arrernte accounts “look for an exchange of laws or knowledge…
that suggests a continuous world between the Aranda and Europeans (p. 147).”
In her work, she placed the Arrernte equal understanding of these two laws in
contrast to the Lutheran’s view of ‘two laws’ which stood “in a hierarchical
fashion (p. 147).” This hierarchical understanding of these ‘two laws’ is
mirrored in the modern understanding of the Australian legal system of the
relationship between the common law and that of the law(s) of various
Aboriginal and Torres Strait Islander groups including the Altyerre of the
Central Arrernte. This concept of the two laws thus provides us with an
interesting conceptual apparatus to explore the issue raised above of the need
for indigenous groups to maintain a degree of cultural legitimacy in their
modes of governing themselves. This is done, in order, at the very least, to
maintain the integrity of who they are as a group and individuals, while
simultaneously engaging with external stakeholders – such as governments
and corporate actors – who operate under a different law.

The issue is that unfortunately those who operate under Australian law
generally tend to see that law as somehow superior to other law(s) extant in
Australia including the Altyerre as opposed to being viewed merely as a
different law which deserves respect as an equal yet different way of viewing
one’s role and place in the world.

10
In practice though there appears to be an age cut-off for these forms of adoption. They
generally seem to apply to children under the age of five at the time of adoption. They thus
would not apply to the grown children of a woman who later in life marries an Arrernte man.
This would make sense in the fact that older children would not be ‘growed up’ by the man and
so would not acquire the necessary knowledge to act as apmereke-artweye and kwertengerle
of their adoptive father’s estates.
11
I do not want to spend too much time on elaborating this point. Instead John Borrow’s recent
book Canada's Indigenous Constitution provides a useful exposition of the ways in which
different indigenous legal systems within settler countries such as Australia and Canada are
the equivalent to introduced systems such as the common law.
In her earlier discussion of the case of the Western Arrernte Austin-Broos has
argued that “the Aranda negotiation of two laws comes in the face of a
European power that will not allow the assimilation of its knowledge to Arandic
conditions (p. 148).”12 In one respect the recognition of the three estate groups
continuing native title over large areas of what is now known as Alice Springs,
and the creation of the RNTBC as a corporate body in which those rights are
vested, provides an opportunity of bringing together these two laws to provide
a more effective way to engage with both traditions. This more effectively
allow for the apmereke-artweye and kwertengerle maintenance of the Altyerre
with all that entails for not only the land and the three estate groups but also
those individuals who now reside on this land who are not members of these
three estate groups – both Aboriginal and non-Aboriginal.

In arguing this though, the recognition by Olney J. that the three estate groups
are apmereke-artweye and kwertengerle of the Alice Springs region does not
imply that the resulting RNTBC from that determination is the key body for the
maintenance of the Altyerre in this region. Nonetheless, this new corporate
body and the fulfilment of these functions may be usefully intertwined. In some
ways the new RNTBC represents external recognition of the role played by
these three estate groups in the maintenance of the Altyerre. So too, the
creation of the RNTBC can be seen as providing an opportunity for increased
resources to be mobilised to assist these groups to fulfil their roles as
apmereke-artweye and kwertengerle more effectively.

One immediate way in which the RNTBC may help improve the ability of the
members of the three estate groups to fulfil their roles as apmereke-artweye
and kwertengerle is in the ability of the new organisation Lhere Artepe to
provide a point of organisational engagement with groups such as the town
council, the Northern Territory and Federal governments and other external
groups – both Aboriginal and non-Aboriginal. While the members of the three
estate groups would argue that they have always held these roles, something
affirmed by the courts in the positive native title determination, the actual
ability of these groups to effect change within Alice Springs as apmereke-
artweye and kwertengerle has, since the inflow of large numbers of individuals
who do not belong to these three estate groups – again both Aboriginal and
non-Aboriginal – been relatively marginal. A famous example of this was the
construction of Barrett Drive.

Broken Promise Drive13

Mparntwe hold the Altyerre that after leaving their home at Anthwerrke (Emily
Gap) the ayepe-arenye (tar vine caterpillars) swarmed along the eastern side
of the Todd River. One of the important Altyerre sites created by the
movement of the ayepe-arenye was Ntyarlkarle Tyaneme – a small ridge
running east-west on the eastern side of the Todd River. The ridge signified the
point where the ayepe-arenye crossed the river to the western side.

12
For more on this, and for a more comprehensive view of Arrernte agency in light of the
operation of ‘Australian Law’ see Austin-Broos (2009).
13
Description of this particular event draws heavily on an account found in Brooks (2003) pp.
16-20.
In 1983 the Northern Territory government began the construction of a road on
the eastern side of the river to facilitate access to the newly constructed
casino. However, in the planning process it was identified that Ntyarlkarle
Tyaneme stood in the planned path for the new road. As the site was already
registered under the Northern Territory government’s own Aboriginal Sacred
Sites Act it appeared that a negotiated agreement would be the only way to
resolve this apparent impasse. A number of options were suggested including a
slight deviation in the road or the creation of a build up on either side of the
ridge in order that the road could pass over the site but not disturb it. The
government agreed to halt the construction of the road while these options
were considered by Mparntwe.

However, before a negotiated decision could be reached an Mparntwe


individual was walking near Ntyarlkarle Tyaneme in Christmas of that year –
vehicle access to the site had been blocked as part of the road construction
process – and saw that the tail of the caterpillar was missing. It eventuated that
the government, growing tired of the delays in constructing the road, had
taken advantage of the relative quiet of the holiday period and had dynamited
and bulldozed the tail of the caterpillar. While charges were laid under the
Sacred Sites Act against the Minister for Lands and others responsible these
charges were dropped when it was found that the Act was not binding on the
Crown.

Despite their acknowledged acceptance as custodians of Ntyarlkarle Tyaneme


the rights and interests of the Mparntwe estate groups were thus eventually
ignored by the government of the day in the interests of the ‘development’ of
Alice Springs. The RNTBC may provide an opportunity for an increased level of
leverage and support for the three estate groups in pursuing their rights and
interests under the law given the organizational ‘legitimacy’ of the RNTBC
within the Australian legal system and as outlined in Olney J’s positive Native
Title determination.

A recent example of this is the debate in the last two years over the behaviour
of Aboriginal residents of Alice Springs who are not members of the three
estate groups. Traditionally Aboriginal individuals and groups who were not
members of the three estate groups would occasionally pass through what is
now Alice Springs for ceremony or other reasons. In doing this though they
would only do so with the acceptance of local Central Arrernte custodians
under threat of violence if certain minimum behavioural levels of decorum
were not maintained. The Central Arrernte language has a number of different
ways of describing the type of relationship that would hold under these visiting
arrangements (which also can include how members of the three estate groups
would engage with one another as well) which collectively would be understood
in modern Aboriginal English as ‘keeping company’ – that is, how we can live
with one another. The three common relationships were:

- Irlkwatherre – to keep someone’s company in a formal way observing


protocols
- Yatyarre – informal keeping company for a short time, to visit for an
afternoon or a day trip
- Tantye - keeping someone company while they do something, very
informal and relaxed
Each of these forms of keeping company was accompanied by specific
principles and actions. However, in the wake of colonisation and the growth of
the town of Alice Springs, with the accompanying inflow of Aboriginal and non-
Aboriginal residents in the town, these protocols no longer held as the three
estate groups were unable to effectively police them with no real coercive
power at their disposal. That is, they no longer effectively held sovereignty
over the region.

Recently though, under the auspices of the RNTBC, Lhere Artepe have begun
to be more vocal as the custodians of Alice Springs and the need for those
coming to live in Alice Springs to respect the norms and values of Central
Arrernte – especially in relation to the relationships of Irlkwatherre, Yatyarre
and Tantye. Working with both the Federal and Northern Territory governments
the RNTBC is currently working to develop new protocols for anti-cultural
behaviour in the Alice Springs region based on these three forms of
relationships. The new protocols will be designed to help reduce anti-social
behaviour in the town including humbugging (which in the town environment
can be glossed as begging) and disrespectful behaviour around sacred sites.

The increased external legitimacy that the creation of the RNTBC has brought
for the three estate groups is also replicated in the increased economic
leverage available to the groups through the RNTBC – although this movement
is not without its challenges.

Economic Development

One of the key issues confronting groups who hold native title is how they can
convert these rights into a resource base for development. Associated with this
is that despite the reorganisation of the overarching corporations legislation
that regulates RNTBCs, there is still a high degree of mistrust in the broader
business community of the reliability and dependability of these structures. In
particular, the Corporations (Aboriginal and Torres Strait Islanders) (CATSI) Act
2006 is still identified by some as being paternalistic and so is seen by some
within the business community as providing opportunities for the Federal
government, through the Office of the Registrar of Indigenous Corporations, to
provide particularly onerous reporting constraints and compliance costs on
these forms of corporate structures which may negatively impact on their
ability to engage with private enterprise in the pursuit of entrepreneurial
activity. Nonetheless, there continues to be a need under the current
legislation for native title rights to be held by RNTBCs which must be
incorporated under the CATSI Act. In addition, in the Central Arrernte case, as
with many Aboriginal and Torres Strait Islander groups around Australia and in
other parts of the globe, some within the three estate groups are wary of the
existence of the RNTBC and were concerned about the lack of traditional
mechanisms for dealing with decision-making in what they saw as an
introduced structure, foreign to their ways and needs.14
14
Related to this distrust is the way in which the RNTBC, and associated organizational
structures, can provide a point of capture for various interests within the community who may
prefer to use the organization as a vehicle for the advancement of their interests as opposed to
the interests of the group as a whole. While this is an important issue to be discussed in the
operation of these types of structures within indigenous Australia it is beyond the scope of this
As discussed above, one of the key issues facing indigenous groups in the
modern environment is the need to provide corporate structures in which
resources are able to be vested that are recognised by external stakeholders
such as private companies and governments. However, in adopting these
structures, there is also often an internal push by the constituencies of these
groups themselves to ensure that whatever structures are adopted are seen as
being legitimate by the community and are based on traditionally legitimate
decision making structures. This then is the issue of cultural match discussed
above. The three estate groups are currently working through this tension.

The creation of the RNTBC brought together the three estate groups under a
single corporate structure. Also, as noted above, given the separate character
of the three groups, three additional corporate structures were also established
to provide a mechanism through which each of the estate groups could provide
a coherent voice in the operation of the RNTBC. The question continued to
arise, however, of how these groups could satisfy their own internal
constituents as to their role as custodians of Alice Springs (as apmereke-
artweye and kwertengerle of the Altyerre of the region) as well as external
stakeholders, such as possible joint investment partners for entrepreneurial
activity in the town of Alice Springs.

An alternative mechanism to enable a way to both satisfy traditionalists within


the community as well as provide a solid structure for entrepreneurial
economic activity to proceed was reached by these groups (see Fig. 1) in 2008.
The three estate groups continued to exist as corporate bodies under the
CATSI Act. The three bodies then provided a mechanism whereby decisions
made by the three groups were able to be fed into decision making at the
RNTBC level – and were able to take seriously the concerns of the apmereke-
artweye and the kwertengerle of the three estate groups in the actions of the
RNTBC in terms of, for example, the organisation pursuing economic
development opportunities. Decisions by these groups about native title
matters under the structure created in 2008 were then transmitted through to
RNTBC through the members of the three estate groups who sat on the RNTBC
executive committee.

Mpantw Antulye Irlpme


e

RNTBC

paper and so will not be discussed further.


Lhere
Artepe Pty
Ltd

Lhere Lhere
Artepe Artepe
Services Enterprises
Pty Ltd Pty Ltd

Figure 1. Lhere Artepe Corporate Structures (2008)

Separate to these four groups set up under the CATSI Act, a number of
additional corporate structures were also established by the three estate
groups. However, unlike these four other structures they were established
under the Corporations Act 2001 (Cth) and as such are not subject to control by
the Office of the Registrar of Indigenous Corporations (ORIC). One of these
structures was set up to operate as the key investment body for the three
estate groups (Lhere Artepe Enterprises Pty Ltd) with another of the three
structures set up as the main provider of social services for the group (Lhere
Artepe Services Pty Ltd). The remaining corporate structure (Lhere Artepe Pty
Ltd) was designed to act as the peak governing body for these other two
structures with part of the executive from the native title holding body sitting
on the board of this organisation. What this new structure was designed to do
was to effectively quarantine risk associated with the corporations established
under the CATSI Act from the operation of the structures incorporated under
the Corporations Act. The rationale for this was that the possible power of ORIC
alluded to above to access records of private business concerns engaging with
the RNTBC may be detrimental to the operation of the corporate structures
established to promote the group’s economic and social interests.15 The
quarantining of risk could also work the other way though with the corporate
structures established under the auspices of the Corporations Act to ensure
that bad business decisions made through those structures do not cause the
collapse of the native title holding corporate structures.

These new structures were thus able to satisfy the interests of a range of
stakeholders, both external and internal to the three estate groups. Without
becoming overly complicated these inter-connected corporate structures
provide a way for the three estate groups to both engage with external
stakeholders through a recognisably robust corporate structure while at the
same time ensuring that their own internal constituency is convinced of the
legitimacy of the decision making structures that the three estate groups are
15
This would be because private business entities may not want their operations made fully
public – not because of any corrupt activity in which they may be involved with but rather
because of the need to maintain a market edge which often necessitates not sharing one’s
operations with one’s competitors – and this may be a concern with CATSI-derived structures.
able to use in the operation of these bodies.

Under these new structures Lhere Artepe has operated a number of


commercial deals including the Mount John property development ($20 million)
and Sterling Heights property development ($2 million). It also administers five
Indigenous Land Use Agreements (ILUA) and a land release agreement. These
include the Simpson’s Gap National Park Extension ILUA, the Emily and Jessie
Gaps Nature Park – Heavitree Range Extension ILUA, and Kuyanba
Conservation Reserve 1 ILUA. The Larapinta Indigenous Land Use Agreement of
2004 between Lhere Artepe and the Northern Territory Government was the
first ILUA for residential development in Australia. Also, the Alice Springs
Telegraph Station Historical Reserve Indigenous Land Use Agreement was
made between the Central Land Council, the Northern Territory of Australia and
Lhere Artepe to clarify the future title and management of the Alice Springs
Telegraph Station Historical Reserve.

Ongoing organizational change

Concerns within the group about the relationship of the RNTBC to the other
sections of the broader organizational structures – particularly the role of the
RNTBC in native title specific issues – have, however, recently led to the
redesign of these structures to provide a more direct link between the three
estate groups and the structures incorporated under the Corporations Act and
to ensure that the RNTBC remains focused on native title issues (see Fig. 2).
Under the new structure discretionary trusts (which were established for each
of the three estate groups in 2005 for the first distribution of funds by the
RNTBC but were not directly linked up to the membership) are now the owners
of the organisation’s key corporate governance structure (Lhere Artepe Pty
Ltd). The three estate groups also link up to provide the key governance
mechanism for the RNTBC with the council of thirty discussed above but the
RNTBC is no longer directly connected to Lhere Artepe Pty Ltd. Lhere Artepe
Enterprises Pty Ltd and Lhere Artepe Services Pty Ltd are then owned by Lhere
Artepe Pty Ltd. The directors for Lhere Artepe Pty Ltd are drawn from the three
estate groups – four from each group. The directors of the investment body
(Lhere Artepe Enterprises Pty Ltd) and service delivery body (Lhere Artepe
Services Pty Ltd) are independently sourced but do include some native title
holders as well as individuals with specific backgrounds pertinent to the
corporations they oversee such as law and financial services.

Mpantw Antulye Irlpme


e

Trust Trust Trust


Lhere
Artepe Pty
Ltd

Lhere Lhere
Artepe Artepe
Services Enterprises
Pty Ltd Pty Ltd

Figure 2. Lhere Artepe Corporate Structures (2010)

Profit created by Lhere Artepe Enterprises Pty Ltd will be distributed to the
organisations within the network through the following breakdown:

• 50% to remain with Lhere Artepe Enterprises Pty Ltd;


• 10% to the Mparntwe estate groups corporate structure;
• 10% to the Irlpme estate groups corporate structure;
• 10% to the Antulye estate groups corporate structure;
• 10% to the RNTBC; and
• 10% to Lhere Artepe Services Pty Ltd.

These distribution structures were set up to ensure that distribution to the


community involves investment in the community rather than receiving ‘cash
along the finger’ – although the three estate groups are able to distribute funds
received in whatever manner they feel most appropriate for their members.
The distribution of monies direct to members of the three estate groups was
avoided due to estate group member’s understanding of the negative
experience of native American groups receiving per capita payments in the
USA. The estate groups do not want to see the same experience occur to them
where assets are distributed to individuals and do not contribute to the
development of the community as a whole which, as has happened in some
reserves in the USA and Canada, has actually led to decreases in well-being in
some communities.16

New economic opportunities

Under this new structure the three estate groups have undertaken their largest
economic development initiative to date. Lhere Artepe are taking a particular
approach in pursuing this Mount John development opportunity. This novel
16
This is not to say that some individuals within the community would not prefer to just receive
the monies directly. However, corporately, the groups have decided that they will not proceed
in that way at this current point in time.
approach has its roots in an earlier commercial deal that the RNTBC had been
involved in that dealt directly with the issues of per capita payments and which
has shaped the way in which they are engaging in this new commercial
venture.

In 2005 as part of a broader settlement package the Northern Territory


government arranged for the sale of a parcel of land at Stirling Heights in Alice
Springs. The estate groups agreed to extinguish native title in the area in
return for receiving some of the land in a fee simple form of title. This
government-negotiated package was brought to the table by the government
as Alice Springs is growing at a rapid rate and there is an ongoing housing
shortage and so a great need for new land for housing. The freeing up of this
land at Stirling Heights would thus provide an opportunity for the creation of
much needed housing stock. As part of this package, half of the land was to be
given to Lhere Artepe and the other half was to be sold by the government.
Lhere Artepe, at that point, agreed to also sell their half of the land and receive
a monetary compensation package. This money was then distributed across
the estate groups. None of this capital was retained by the RNTBC or other
corporate organisations held by the three estate groups for investment. The
long-term impact of these monies in the community has, as a result, been
negligible although it did fund the purchase of a number of consumer items –
such as cars and alcohol – by community members in the wake of the
distribution.

As a result of this, when a similar opportunity presented itself to the three


estate groups in 2008/09 the groups chose to pursue a different path. Similar
to the Stirling Heights deal the new parcel of land, in this case located at Mount
John, was to be split with half going to Lhere Artepe and the other half to be
sold by the government in return for the native title holders agreeing to
extinguish native title. However, rather than merely immediately on-selling
their parcel of land Lhere Artepe negotiated a number of different types of
deals. As a first step they asked that they be given the first right of refusal on
the land owned by the government. They then put together a business plan
based on their development of the lands that they were to receive which would
then be on-sold as individuals parcels of developed land. They then took this
plan to their bank who agreed to provide a multi-million dollar line of credit for
this land development – with the land acting as security. At the time of writing
all of the sites have already been pre-sold and the development of the land is
scheduled to begin in late 2010. The monies from this transaction will then be
used to purchase the land currently owned by the government as well as
provide seed capital for Lhere Artepe Enterprises Pty Ltd although some
monies will be directed to Lhere Artepe Services Pty Ltd for work with the
community. The explicit aim of this new approach to dealing with land issues in
Mount John versus what happened with the Stirling Heights development, as
voiced at a Director’s meeting of the three estate groups, is that this time
‘money won’t go into cars, grog and the casino’. Instead these monies will be
utilized to provide long-term development opportunities for the community in
areas such as education, health, language and in assisting the various estate
groups to effectively as possible undertake their roles as apmereke-artweye
and kwertengerle for the Altyerre in the Alice Springs region.

Overcoming Concerns
This is not to say that all that has occurred so far has not been achieved
without some conflict within the community over the direction that the RNTBC
and related organisations will and are taking. There are two key issues at stake
at the moment which directly impact on the ongoing success of the RNTBC.
The first of these is with regards the question of membership – who is it that is
a member of the three estate groups; and the second is with regards the use of
native title and its extinguishment for commercial purposes.

The issue of membership is firstly complicated by the fact that those who are
listed on the native title decision are not necessarily all those individuals and
families who actually have connections to the lands covered by the decision.17
Secondly, the genealogies of the three estate groups which were utilized by the
Central Land Council during the prosecution of the native title case are not
being made available to the RNTBC. This means that the three estate groups
need to return to their members and compile new membership rolls – which
will be a time and resource intensive exercise. It is also a site of much
contestation, especially as the possibility of large amounts of monies begin to
become more real for the estate groups. The contestation, unfortunately, is
focused around certain individuals and families trying to exclude other families
and individuals from membership of the estate groups. In some cases this has
become quite ugly and publicly heated. One particularly troublesome issue is
that some are trying to exclude those with interests via adoption from
membership even though under Arrernte ways of being there is no distinction
made between adopted and natural-born children in the appointment of roles
such as apmereke-artweye and kwertengerle let alone over issues such as
membership of an estate group.

The second point of contention currently being faced by the RNTBC and the
three estate groups is over the alienation of land to which the estate groups
have been awarded native title. This alienation of land is an important part of
the economic development strategy currently being pursued by the RNTBC in
the provision of start-up capital for Lhere Artepe Enterprises Pty Ltd. However,
for some members of the three estate groups the battle for native title, and the
eventual positive native title ruling signifies that the land should not be
alienated as to do so would be to extinguish their native title over the land –
something they fought so hard to have recognised. Others though within the
community argue that they are the apmereke-artweye and kwertengerle of the
Altyerre in the Alice Springs region regardless of the decision of any Australian
court ruling that they do or no not possess native title over the area. Given
this, these members of the community argue that to alienate the land to
provide resources for their development as a community is not a matter of
great importance as they will still remain apmereke-artweye and kwertengerle
despite the legal status of the land.18

These tensions are not derailing the ongoing development of the RNTBC and
17
These concerns are raised to demonstrate how things have not all been ‘plain sailing’ in the
development of the RNTBC and related organizational structures since the positive
determination in 1999. However, these specific issues will not be expanded on in this
particular. [Refer to recent issues paper on the use of genealogies by CLC staff]
18
It should be noted that under Native Title there is ultimately the power of compulsory
acquisition for such developments.
related corporate structures although they do provide a particular dynamic
which needs to be managed to ensure that the organisations do continue to be
seen as being representative of the interests of the three estate groups. While
this may not necessarily mean that all members of the three estate groups all
agree with all of the actions of the RNTBC and other organisations there does
need to be a certain critical level of agreement that these organisations
represent the groups interests. To date the organisations have managed to
maintain this legitimacy with both their own members – including a degree of
internal cultural legitimacy – and with external stakeholders. In saying this
though, it is not to give the mistaken impression that all members of these
organisations agree entirely with what Lhere Artepe and the three estate
groups have done to date. There is tension and disagreement between the four
structures’ members about how best to proceed but this is a very normal part
of the functioning of any organisation. The tensions will remain – but the skill
lies in navigating through this to provide as best as possible an outcome for all
involved. The ongoing success of these organisations will thus depend on the
four organisations maintaining this balance in the wake of a constantly
changing environment.

Conclusion

The three Central Arrernte estate groups Mparntwe, Irlpme and Antulye are
apmereke-artweye and kwertengerle for the Altyerre in the Alice Springs
region. They have been so since time immemorial. However, the successful
native title determination in 1999 provided the three estate groups with an
opportunity to have these roles legitimated by external stakeholders. The
RNTBC, and related structures such as Lhere Artepe Pty Ltd, have thus
provided a point of interaction, which while created to satisfy the requirements
of Australian law actually provides an opportunity for Central Arrernte law to be
recognized by external stakeholders. In addition the operation of the RNTBC
provides a space for the creation of new resources which may help the
apmereke-artweye and kwertengerle of the three estate groups to more
effectively undertake their roles in maintaining the Altyerre in the Alice Springs
region.

In order to do this though the issue confronting the three estate groups in the
operation of their RNTBC and related organisations is ensuring that these same
organisations are able to be seen as legitimate by both their own internal
stakeholders – especially in terms of the operation of the organisations
matching their traditional cultural practices of governing themselves – but also
in terms of these organisations ongoing legitimacy with external stakeholders.
Maintaining this balance between two laws provides a space for great
opportunities for the three estate groups but it is a precarious balance and
something which the groups will need to continue to work on to ensure that
they are able to use these organisational structures to assist them in their roles
as apmereke-artweye and kwertengerle of the Altyerre in the Alice Springs
region.
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