Legislation & Policy
With the increasing number of successful determinations across Australia, PBCs have emerged as a key element within the native title system. Under the Native Title Act 1993 (NTA) PBCs are established for each native title determination in order to hold in trust or manage the native title rights and interests on behalf of the native title holders.
PBC functions and obligations are regulated by the:
- Native Title Act 1993 (Cth)
- Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth)
- Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth)
However, state and territory legislation also interacts with the rights and interests of native title holders that have been determined. Therefore, while there are prescribed activities that are listed in the legislation, PBCs have constitutions that reflect broader community aspirations and needs. See further PBC profiles.
Under the regulatory framework, the recognised primary functions of PBCs are to:
- protect and manage determined native title in accordance with the objectives of the native title holding group; and
- ensure certainty for governments and other parties interested in accessing or regulating native title land and waters by providing a legal entity to manage and conduct the affairs of the native title holders.
PBCs need to operate effectively so that native title holders are able to utilise and maximise their native title rights and engage meaningfully in land management. Concerns have been raised that very few PBCs are able to fulfil the functions intended under the legislation or the aspirations of the native title holders. Over the last ten years there have been increasing demands from diverse sectors for greater investment in PBCs. During 2006 there were 42 PBCs this has almost doubled in the last 5 years.
Statutory differences between PBCs and other corporations
- RNTBCs and PBCs are special types of Aboriginal and Torres Strait Islander Corporations because they are created especially for common law native title holders to hold or manage native title.
- PBCs must have the words ‘registered native title body corporate’ or ‘RNTBC’ in their name, to signify this and must be registered with ORIC as required by the NTA whilst other Aboriginal and Torres Strait Islander Corporations can choose to register under other state or territory associations law or under the Corporations Act 2001 (Cth).
- PBCs have obligations under the NTA such as the requirement to consult with and obtain consent from native title holders in relation to any decisions which surrender or affect native title rights and interests.
- If an Aboriginal and Torres Strait Islander corporation becomes or ceases to be an PBC, it must notify the Registrar of Indigenous Corporations within 28 days.
- PBC directors and officers are protected from a range of criminal and civil penalties for breach of duties as long as they have acted in good faith in complying with obligations under native title legislation (not including the duty to trade while insolvent).
- PBCs are not required to value their native title rights and interests as part of their assets, for the purpose of determining their size classification under CATSI.
- PBCs must ensure that their constitution is consistent with native title legislation.
- The Registrar of Indigenous Corporations must not change the PBC’s constitution on the basis of an act done in good faith and with the belief that the corporation or its officers are complying with native title legislation.
- The Registrar of Indigenous Corporations is not able to de-register an PBC as long as it remains an PBC and manages or holds native title interests.
Although native title corporations are sometimes referred to as PBCs, this is not strictly accurate. Under the Native Title Act 1993, ss 55-57, as part of the determination of native title, native title groups are required to nominate a ‘prescribed body corporate’ or PBC to hold (as trustee) or manage (as agent) their native title.
Following a determination, PBCs are entered onto the National Native Title Register at the National Native Title Tribunal. At this point, the corporation becomes a Registered Native Title Body Corporate or RNTBC. While the terms PBC and RNTBC are often used interchangeably, the Native Title Act 1993 deals with them separately. On the whole, the term RNTBC is more accurate.