The Aboriginal Representative Body warrants to the State that:
1. Compliance
a. The Self-Determination Fund has been administered and continues to be administered in compliance with this Agreement and the Governing Documents.
2. Treaty Act purposes
a. The Trust Deed provides that the Self-Determination Fund is to be held exclusively for the purposes as provided for in section 36 of the Treaty Act.
3. Agreement principles
a. The Self-Determination Fund has operated and continues to operate according to the Principles.
4. Public charitable trust
a. The Trust Deed provides that the Self-Determination Fund is held as a public charitable trust.
b. The Self-Determination Fund is Endorsed as a Charity.
5. Legal structure of the Trustee
a. The Trust Deed appoints the Trustee.
b. The Trust Deed provides that the Trustee must be a public company limited by guarantee, with its sole member being the Aboriginal Representative Body, where such an entity hasbeen declared under the Treaty Act.
c. The Trust Deed and Company Constitution provide that the Trustee operates on a not-for-profit basis.
d. The Trust Deed and Company Constitution provide that the company that is the Trustee must apply to be Endorsed as a Charity and maintain that endorsement if it is granted.
e. The Company Constitution provides that the company that is the Trustee may:
- i. not act as trustee of any trust other than the Self-Determination Fund; and
- ii. only carry out business relating to its role as trustee of the Self-Determination Fund.
6. Legal powers of the Trustee
a. The Trust Deed provides the Trustee with legal powers necessary to perform its duties and functions, including in respect of:
- i. making distributions and investments from the Self-Determination Fund; and
- ii. undertaking its own activities, or engaging others to undertake activities on its behalf, for the purposes in section 36 of the Treaty Act, but not directly providing community or social services.
b. In respect of distributions from the Self-Determination Fund, the Trust Deed requires they are made in accordance with an assessment and oversight process, having regard to the Distribution Policy, which is a Direction to Trustee that sets out parameters, processes or rules for distributions made by the Trustee.
c. The assessment and oversight process will specify:
- i. eligibility criteria in relation to distributions that are consistent with the purposes of the Self-Determination Fund;
- ii. principles for distributions from the Self-Determination Fund that ensure distributions by the Trustee, as a whole, fairly and equitably benefit a broad cross-section of First Peoples; and
- iii. measures for ensuring funds distributed are used by recipients for purposes that are consistent with the purposes of the Self-Determination Fund, including through the imposition of conditions and reporting requirements.
d. The Trust Deed requires that distributions be consistent with the budgets required under the Trust Deed and any strategic plan, having regard to the sustainability of the Self-Determination Fund.
e. The Distribution Policy is subject to provisions of the Trust Deed and applicable laws.
f. In respect of investments by the Self-Determination Fund, the Trust Deed requires they are made in accordance with the Investment Policy, which is a Direction to Trustee that sets out parameters, processes or rules for investments made by the Trustee.
g. The Trust Deed requires that investments are made consistent with any advice obtained by the Trustee from appropriately qualified and licensed financial advisers and consistent with the budgets required under the Trust Deed and any strategic plan, having regard to the sustainability of the Self-Determination Fund.
h. The Investment Policy is subject to provisions of the Trust Deed and applicable laws.
i. The Trustee has established an Advisory and Investment Committee in accordance with the Company Constitution and Directions to Trustee, and the Trustee exercises its powers taking into account the Advisory and Investment Committee’s relevant advice.
7. Role of the Aboriginal Representative Body
a. The Company Constitution sets out the rights and responsibilities of the Aboriginal Representative Body as the sole member of the Trustee, including with respect to general meetings, directors and the company secretary.
b. The Trust Deed provides that the Aboriginal Representative Body may issue binding Directions to Trustee with which the Trustee must comply. Directions to Trustee must be consistent with the Trust Deed, this Agreement and applicable laws.
c. The Trust Deed provides that Directions to Trustee may cover:
- i. priority areas for the application of Assets by the Trustee;
- ii. the Distribution Policy;
- iii. the Investment Policy;
- iv. the Code of Conduct;
- v. the Dispute Resolution Process;
- vi. a Conflicts Policy;
- vii. the formation, composition, functions and processes of an Advisory and Investment Committee to advise the Trustee;
- viii. reporting in relation to the activities of the Trustee and financial position of the Self-Determination Fund; and
- ix. any other matters relevant to the administration of the Self-Determination Fund.
d. The Trust Deed provides that the Aboriginal Representative Body may provide guidance or information from time to time which the Trustee must consider in relation to consultations with First Peoples conducted by the Aboriginal Representative Body which are relevant to the administration of the Self-Determination Fund.
e. The Trust Deed provides that the Aboriginal Representative Body receives and approves the strategic plan and the budgets required under the Trust Deed.
f. The Trust Deed provides to the Aboriginal Representative Body a veto power in relation to proposed distributions or investments by the Trustee for amounts exceeding a threshold specified in a Direction to Trustee.
g. The Trust Deed provides that the Aboriginal Representative Body must consent to the winding up of the Self-Determination Fund.
h. The Aboriginal Representative Body, by the Directions to Trustee, requires the Trustee to regulate the costs of professional services funded directly or indirectly from the Self-Determination Fund, to ensure such costs are value for money and not excessive. This includes ensuring that the Trustee reports on the proportion of total annual funds provided to each recipient to spend on professional services.
i. Directions to Trustee made by the Aboriginal Representative Body are consistent with the Principles.
8. Director appointment
a. The Company Constitution sets out clear, transparent and objective selection criteria for the appointment of directors, to be appointed initially by the Aboriginal Representative Body, and subsequently by the company that is appointed Trustee in general meeting.
b. The selection criteria prescribed in the Company Constitution include that a person is eligible to be appointed a director of the Trustee if they:
- i. are able to discharge the obligations and duties of director under applicable laws; and
- ii. are able to read and understand financial statements.
9. Change in Aboriginal Representative Body
a. Consistent with the Treaty Act, the Company Constitution provides a mechanism to ensure that in the event that there is a change in the entity declared to be the Aboriginal Representative Body under the Treaty Act, the new Aboriginal Representative Body will administer the Self-Determination Fund under section 37 of that Act.
10. Accountability and transparency
a. First Peoples have been consulted regarding their aspirations for the Self-Determination Fund.
b. First Peoples’ aspirations are reflected in the administration of the Self-Determination Fund, including in the Directions to Trustee.
c. The Trust Deed requires the Trustee to produce annual reports and report on all distributions made from the Self-Determination Fund and the costs of its administration.
d. The Trust Deed requires the Trustee to record and periodically report to the Aboriginal Representative Body on the activities of the Self-Determination Fund and the impact of those activities in advancing the purposes of the Self-Determination Fund.
e. The Trust Deed requires the Trustee to prepare and provide to the Aboriginal Representative Body, for publication, audited financial statements for the Self-Determination Fund for each financial year.
f. The Aboriginal Representative Body will publish the Governing Documents, and the strategic plan prepared under the Trust Deed, on its website.
11. Conflicts of interest
a. The Aboriginal Representative Body and the Trustee will each adopt a conflicts policy with respect to the Self-Determination Fund to effectively identify, disclose and manage any actual, potential or perceived conflicts of interest in order to preserve fairness and impartiality in the administration of the Self-Determination Fund, protect the integrity of the Self-Determination Fund and manage risk.
b. The conflicts policies of the Aboriginal Representative Body and the Trustee will address the management of other competing interests of persons involved in decision-making in order to preserve fairness and impartiality in the administration of the Self-Determination Fund, protect the integrity of the Self-Determination Fund and manage risk.
12. Dispute resolution
a. The Aboriginal Representative Body will give Directions to Trustee containing a fair and effective dispute resolution process.
b. The process will provide for the handling of complaints and resolution of disputes arising in connection with the administration of the Self-Determination Fund, including disputes between:
- i. a potential recipient, applicant or recipient of funds and the Self-Determination Fund; and
- ii. the Aboriginal Representative Body and the Trustee.
- c. The process will provide for fair, timely and efficient handing of complaints and resolution of disputes through a process that:
- i. respects First Peoples’ cultural values and practices;
- ii. promotes open and transparent discussions focused on finding common understandings;
- iii. includes an appeal or review process; and
- iv. maintains confidentiality of disputes as appropriate.
Updated