What is an Indigenous Corporation?

When establishing a non-profit organisation specialising in providing programs or services to Aboriginal and Torres Strait groups, founding an Indigenous Corporation is a great option. An Indigenous Corporation is a specific type of organisational legal structure that can be used in Australia. Indigenous Corporations are overseen by the Office of the Registrar of Indigenous Corporations (ORIC), an independent statutory office appointed by the Minister for Indigenous Affairs under the Corporations (Aboriginal and Torres Strait Islander) Act 2006. Most but not all Indigenous Corporations are non-profit organisations.

The Australian Bureau of Statistics (ABS) estimates there are 984,000 Aboriginal and Torres Strait Islander people in Australia. Among them, 33% are under the age of 15, compared to only 18% of non-Indigenous Australians, and only 5.4% are over the age of 65 (compared to 17%) ¹. The majority of Indigenous Australians live in inner and outer regional areas (44%) or remote areas (18%) ². These statistics present several challenges for Indigenous communities already experiencing economic, social, and cultural disparities due to the impact of colonisation. Aboriginal and Torres Strait Islanders have the lowest life expectancy in remote or very remote areas. They lack access to the services and resources available in major cities, showing a need for investing in initiatives aimed at children and adolescents, and senior wellness.

Who are Australia’s Indigenous people?

Aboriginal and Torres Strait Islander people represent several communities with distinct cultures, languages, and histories. The Australian government considers a person Indigenous if they are of Aboriginal or Torres Strait Islander descent, identify as such, and are accepted as such in the community they live or have lived. European colonisation had a devastating impact on Indigenous communities and their cultures. Aboriginal and Torre Straits Islander people were subjected to killings, displacement, loss of land, and the suppression of their language and cultural practices over many generations. “Since colonisation, numerous government laws, policies and practices resulted in the forced removal of generations of Aboriginal and Torres Strait Islander children from their families and communities across Australia.” (AIATSIS)

AIATSIS published a map exploring the diversity of pre-colonial languages and cultures in Australia and shows how many different Indigenous groups historically existed on the continent. Australia’s Aboriginal peoples have been living here for millennia and see themselves in relation to their entire family, their community and tribe, and most importantly the land, to which they have a spiritual connection. The land is central to their language, economy, education, laws, rights, artistic performances, food, travel, and rituals.

The Australian government has committed to participating in a reconciliation process that has produced a set of recommendations and led to the development of new initiatives and approaches.

Today, nearly 93% of Australians support the self-determination of Aboriginal and Torres Strait Islander communities and agree that they should be free to make decisions about how to manage their affairs ³. There are more and more groups choosing to create non-profit organisations that focus on the needs of Indigenous peoples.

Why do Indigenous groups become incorporated?

There are various reasons for Indigenous groups to choose a corporation as an organisational structure. They may wish to support the education and housing needs of Aboriginal and Torres Strait Islander communities, conduct work that involves securing protected lands, offer legal advice to Indigenous individuals, help develop community infrastructure, or promote Indigenous art, culture, language, and music. An Indigenous Corporation can help ATSI group members do this.

Many Indigenous Australians experience discrimination, racism, not to mention the legacy of colonialism, which has had a negative impact on their health and welfare and created inequities in the social system. In 2018, researchers Bourke et al. found that investing in projects and programs that improve and support self-determination, family and kinship, cultural expression, and develop strong knowledge and belief systems can be a positive factor in the well-being of Aboriginal and Torres Strait Islander people ⁴.

One recent example is the National Aboriginal Community Controlled Health Organisation (NACCHO). During the Covid-19 pandemic, they worked with the Australian government to provide advice and guidance on how to approach policies and budget allocations and advocated on behalf of communities to help improve health outcomes. To register an Indigenous corporation, you must identify your group members, create a rule book that will help you govern the organisation, hold regular meetings, and file an application with the Office of the Registrar of Indigenous Corporations (ORIC).

Who manages Indigenous Corporations in Australia?

Indigenous Corporations are overseen by the Office of the Registrar of Indigenous Corporations (ORIC) an independent statutory officer holder appointed by the Minister for Indigenous Affairs under the Corporations (Aboriginal and Torres Strait Islander) Act 2006. Most but not all Indigenous Corporations are non-profit organisations. ORIC regulates Indigenous corporations through the Corporations (Aboriginal and Torres Strait Islander) Act 2006, also called CATSI.

ORIC has the power to register Indigenous entities that wish to become incorporated and assist and support them once they incorporate. It can provide services in response to the specific needs of Indigenous Australian groups and corporations. Similar to the Australian Securities and Investments Commission, ORIC has the authority to intervene when an Indigenous Corporation or its directors are found to be failing in their duties or not meeting legal requirements.

Most Indigenous Corporations could also be incorporated or registered under other organisational structures if they chose to be, but the Indigenous Corporations structure affords cultural and community understanding and support and, in some cases, varied requirements that might make it a better choice for some organisations. ORIC serves Aboriginal and Torres Strait Islander individuals, groups, and businesses, provides support to agencies, ministers, and the Australian government and states, and leaders in the medical, housing, land holding, and legal sectors who work with Indigenous individuals and groups.

Indigenous Corporations vs non-Indigenous corporations

The biggest difference between an Indigenous Corporation and a non-Indigenous one is that it is governed by a different legislation. Indigenous Corporations must follow the rules outlined by the CATSI Act, while non-Indigenous entities are registered under the Corporations Act.

The CATSI Act

The CATSI Act has special rules aimed at benefiting Aboriginal and Torres Strait Islander people and correcting some of the disadvantages created by multi-generational colonialism. Indigenous Corporation members who become owners of the organisation must be at least 15 years of age and identify as Aboriginal or Torres Strait Islander. They are not liable for debts incurred by the corporation. But members can impose additional rules on membership, such as living in a particular community. Internal governance rules must include the objectives and name of the entity, frequent Board meetings, and a dispute resolution process. Indigenous Corporations classified as charities are exempted from reporting to the ACNC. Instead, they must submit reports to ORIC. A smaller corporation with an income under $100,000 will likely have fewer reports to submit, while larger Indigenous corporations will be required to provide more information.

The Corporations Act

Companies registered under the Corporations Act are governed by the ASIC, a general Commonwealth law intended to govern the operation of Australian companies. Like Indigenous Corporations, non-Indigenous members become owners of the company, however only one member is required to register the organisation. Private companies must have 50 members or less, and those with more are considered public. Unlike CATSI, the Corporations Act does not impose age or ethnicity restrictions on its members. There are more risks involved as well. Members may be required to cover some of the costs associated with liquidating the assets of a company if debts are incurred and the group fails.

There are several advantages to becoming an Indigenous Corporation. Aboriginal and Torres Strait Islander groups can incorporate under a Commonwealth, a state, or territory law. The most significant difference between the two Acts is that CATSI offers more regulatory assistance. The CATSI Registrar can appoint a special administrator as a safety net against financial failure when the services provided are considered essential to the community. Under CATSI, Indigenous Corporations can also change their rule book.

Indigenous and non-Indigenous corporations both have legal duties and directors, officers, and employees can be held responsible for wrongdoings or failure to comply with regulations. There are also factors that can disqualify members from becoming Board directors. A member who has declared bankruptcy and has not been discharged or is disqualified from managing another corporation due to a criminal conviction such as fraud, may not become a director.

Your organisation’s legal structure will determine the activities you will be carrying out. While choosing an Indigenous Corporation is one option, there are several others. Find out more about the other types of legal structures here. As a Board, you may also want to seek out governance tools that help you share and manage information about the decisions you make during meetings. A board portal may be a good option for you.

Resources

The Indigenous Governance Toolkit is a great resource for leadership teams of Indigenous Corporations. It is a joint venture of Reconciliation Australia and the Australian Indigenous Governance Institute. The toolkit is a free public-access document designed to provide information and guidance to Indigenous communities and organisations. The toolkit draws on the research of the Indigenous Community Governance Project.

For more resources, reports, and videos about Indigenous reconciliation, visit the Australian Human Rights Commission. One of the foundational reports published by the commission is the Bringing Them Home Report (1997).