Statement from MWAC Board – December 17, 2020

Dear members

The following statement is being issued to all MWAC Members to advise you who the current directors of your corporation are. After the 2020 AGM and subsequent legal advice, we are pleased to advise the MWAC Board of Directors comprise:

Dwayne Mallard – Chair (casual director)
Dawn Hamlett (appointed 2019 AGM)
Gloria Merry (appointed 2019 AGM)
Patricia Nola Councillor (appointed 2019 AGM)
Gail Simpson (casual director)
Marcus Holmes – (Independent)
Bruce Fielding – (Independent)

A special General Meeting will be called in the new year to re-run the 2020 AGM MWAC Director nominations and elections process and a criterion developed for incoming future directors in consultation with MWAC members. This comes after inquiry into the validity of appointments following the 2020 AGM held on 14 November 2020 in Geraldton.

Inquiry into the 2020 AGM Director elections

The MWAC directors resolved for investigation (“investigation”) by Independent Director Marcus Holmes into the nominations process and ballot papers used at the 2020 AGM and sought legal advice on the validity of the appointment of the resolution moved by members at the 2020 AGM to increase the number of Wajarri Yamatji Directors from two to five.

The investigation, which has now concluded and provided its report to the MWAC Board and the 2020 AGM Director-nominees, was set up to investigate the validity of nominations for the 2020 AGM Director positions and the voting ballot papers.

The investigation found that the voting process was entirely valid and lawful. Furthermore, all the directors appointed at the 2020 AGM had nominated before the close-off date set out in the MWAC Rule Book.

“This validity is clear because of the thorough explanation… to members of the ballot process to be followed, the disclosure at the [2020] AGM of the six director candidates before the vote was taken, the fact that the correct ballot paper was issued to members before any voting began and the careful votes counting and recording process followed by the MWAC staff [on the day]”, the report states.

The MWAC Board sought legal advice into the validity of the resolution that came from the floor at the 2020 AGM to increase the number of Wajarri Yamatji Directors appointed on the day from two to five (“resolution”).

The legal advice, which has been received and reviewed by the MWAC Board, has found that the resolution was not validly moved from the floor of the AGM.

“The proper process for proposing a members’ resolution in the [MWAC] Rule Book and the [Corporations Aboriginal and Torres Strait Islander Act 2006] was not followed, and this likely caused substantial injustice to the members and director candidates”, the summary of the advice states.

“As a result of the above point, the election at the [2020] AGM was not a properly convened election. Therefore, the directors purportedly elected at the AGM were not validly elected, and those persons are not current board members.”

“The directors in office following the 2019 AGM are the current board members (i.e. not including those directors whose terms ceased at the 2020 AGM).”

Measures adopted

Both the investigation and the legal advice make several recommendations to the Corporation which have been adopted by the MWAC Board.

The MWAC Board has appointed two casual WY Directors under rule 10.7(a) of the Rule Book to ensure it meets the composition requirements in rule 10.1 of the Rule Book. These directors will hold office until the next general meeting and meet the eligibility requirements for the role. The casual WY Directors appointed by the board are Dwayne Mallard and Gail Simpson.

The Board has also agreed to develop and adopt criteria for assessing future director nominations. These criteria will assist the board to determine the suitability and merit of candidates and seek to address conduct and behaviour at director and general meetings. In accordance with the Rule Book the membership may change or revoke these criteria at a general meeting.

“The board agrees it needs to develop a solid set of criteria for directors and strengthen its governance around behaviour and conduct of directors and members at Corporation meetings”.

The nominees will be presented to the membership at the next general meeting with a recommendation on the most suitable nominees.

ORIC has also been informed by the Corporation of these issues and about the measures it has adopted to address them.

Next steps

The MWAC Board has agreed to call a special general meeting to repeat the election process for two WY director positions, as originally proposed in the 2020 AGM notice.

This board has agreed that the timing of this meeting be held with enough time for members to propose a resolution that a higher number of directors be elected (a resolution of this nature would need to be proposed following the process specified in rule 9.6 of the Rule Book), and should factor in the timing of the forthcoming Wajarri Yamatji native title holder community meeting and follow on from that meeting.

It is expected this will happen in quarter one of 2021. Members can access key information below and contact the Wajarri Community Office on members@wajarri.com.au or the board at corporationdirectors@wajarri.com.au

Summary of Advice