Perpetual Trustee Company Limited (Perpetual), in its capacity as the first Trustee for the Noongar Boodja Trust, has determined that some sections of the Trust Deed have become unworkable.
Perpetual filed proceedings in the Western Australian Supreme Court today, 1 June 2022, seeking orders under s.89 (or alternatively s.92) of the Trustees Act 1962 (WA) for relief to make the implementation of the Deed workable in the best interests of the Noongar people, whose central services corporation and regional corporations are the sole beneficiaries of the Trust.
The draft orders Perpetual seek on behalf of the Trust aim to clarify the correct interpretation of the Trust Deed regarding the operation of the Investment Committee, the Nominations Committee, and the Noongar Relationship Committee.
Without the orders from the Court, Perpetual will be unable to reappoint the Nominations Committee, will be unable to form the Investment Committee and replace the default investment policy, will be unable to appoint a Remuneration Auditor, and will be unable to determine the annual budget for the Trust.
Perpetual had undertaken not to lodge the application with the Court until both the South West Aboriginal Land and Sea Council (SWALSC), and the State of Western Australia (State) had reviewed the application materials and provided their feedback. Perpetual has received input from the State and provided a briefing on the application to the SWALSC board in May 2022.
The first part of the orders Perpetual is seeking would enable Perpetual to appoint the Investment Committee in circumstances where the Noongar Corporations Committee has not been established. Perpetual is asking for this power because, under the Trust Deed, the Investment Committee cannot be appointed until all seven members of the Investment Committee have been recommended, and two of the seven members must be nominated by the Noongar Corporations Committee, which is yet to be established.
Any delay in the establishment of the Noongar Corporations Committee will lead to a delay in the establishment of the Investment Committee which would delay the replacement of the default investment policy with an investment policy better suited to the current market.
The second part of the orders would enable Perpetual to appoint the Nominations Committee where Noongar Relationship Committee has not yet been established. Perpetual is seeking this power because the term of the first Nominations Committee expired 19 April 2022 and a new Nominations Committee cannot be appointed until all six members of the Nominations Committee have been recommended, and one of the six members is to be nominated by the Noongar Relationship Committee.
Any delay in the establishment of the Noongar Relationship Committee will lead to a delay in the establishment of the Nomination Committee and would mean that Perpetual would be unable to establish and maintain a functioning Nominations Committee until such time as the Noongar Relationship Committee is established. The implications of this are that there would be no mechanism for assessment of the eligibility of candidates for directors for the Noongar corporations. Nor would there be any mechanism for a body to make recommendations for membership of the Investment Committee.
The third part of the orders would enable Perpetual to appoint the Noongar Relationship Committee where the Noongar Corporations Committee has not yet been established. Perpetual is asking for this power because the members of the Noongar Corporations Committee are also members of the Noongar Relationship Committee.
Any delay in the establishment of the Noongar Corporations Committee will lead to a delay in the establishment of the Noongar Relationship Committee and would mean that Perpetual would be unable to establish and maintain a functioning Noongar Relationship Committee until such time as the Noongar Corporations Committee is established. If there is no Noongar Relationships Committee able to act, the Nominations Committee is unable to operate. The Noongar Relationship’s Committee also provides guidance to Perpetual as trustee regarding its dealings with the traditional laws and customs relevant to the Noongar Community, implementing cultural governance into policies and procedures and codes of conduct and providing recommendations to Perpetual as to how its obligations can be met.
The Noongar Boodja Trust Deed was drafted by lawyers for the State of Western Australia and is contained within Annexure G of the Indigenous Land Use Agreements that formed part of the State’s final offer to the Noongar people in July 2013.
The Noongar people voted to accept the State’s offer, including the Deed contained within the ILUAs, at the authorisation meetings held January to March 2015.
Perpetual was selected by the trustee selection taskforce to be the initial trustee for the Trust in July 2016 and was formally appointed as Trustee for the Noongar Boodja Trust 29 March 2021.