The Native Title Act and PBC regulations
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The NTA and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) (PBC regulations) state that following a native title determination corporations must register under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (see ORIC and CATSI Act). The NTA and PBC Regulations are key pieces of legislation that explain what PBCs must do and how they must function.
The NTA provides recognition under Australian law for Aboriginal and Torres Strait Islander peoples’ rights and interests in land and waters according to traditional laws and customs. The main objectives of the NTA are:
- To provide for the recognition and protection of native title;
- To establish ways in which future dealings affecting native title may proceed and to set standards for those dealings;
- To establish a mechanism for determining claims to native title; and
- To provide for, or permit, the validation of past acts, and intermediate period acts, invalidated because of the existence of native title (s.3, NTA).
The NTA establishes a mechanism for claimants to make an application to the Federal Court of Australia to have their native title recognised. Under the NTA, native title claimants are required to show that they possess rights and interests in land under traditional laws and customs. The NTA sets out the legal principles and processes for recognising native title, and the roles and responsibilities of the various bodies involved in this process.
The NTA also establishes a legal mechanism for regulating future act activities affecting native title. This allows for government and non-Indigenous parties to undertake development on native title land.
When a native title determination is made, the NTA and PBC Regulations require that native title holders establish a PBC to hold and manage (as a trustee), or manage (as an agent) their native title interests, and register the PBC under the CATSI Act (s. 56(2)(a)(i), NTA). The NTA also requires PBCs to be recorded on the National Native Title Register. Once this occurs the PBC becomes known as a Registered Native Title Body Corporate (NTRB) (see About PBCs).
The NTA is important for PBCs because it contains a number of sections that deal specifically with how PBCs operate (Division 6, NTA). This includes information on:
- the way PBCs are created and incorporated;
- the way future acts work;
- what native title holder rights are;
- how native title agreements are made (such as ILUAs); and
Most importantly, PBCs are required under the NTA to consult with and obtain consent from native title holders before making decisions that affect or surrender native title rights and interests. The PBC Regulations set out how PBCs must consult, and require PBCs to provide evidence that they have obtained the informed consent of native title holders before surrendering native title or making any decisions that may affect native title holders’ enjoyment of their native title rights and interests. For example, signing a mining ILUA may restrict native title holders’ access to, and use of the land, and therefore, according to section 251 of the NTA and Regulation 8 of the PBC Regulations, all native title holders must be consulted. Other decisions affecting native title that require consultation with native title holders include, but are not limited to: Future Acts; making Right to Negotiate (RTN) agreements; managing native title agreements; native title compensation claims; and new native title applications.
A group of ILUAs negotiated between Noongar native title holders and the State to resolve native title claims through negotiated settlement were ruled invalid in McGlade v Native Title Registrar  FCAFC 10 because five of the named applicants did not sign the ILUAs, whereas section 24CD(1) of the NTA required ILUAs to be signed by all registered native title applicants. The Native Title Amendment (Indigenous Land Use Agreements) Act 2017 (Cth) changes this requirement so that the majority of applicants can sign ILUAs, or alternatively, that native title groups can nominate particular applicants to be parties to ILUAs.
The PBC Regulations also stipulate that PBCs must consult and consider the views of Native Title Representative Bodies (NTRBs) and Native Title Service Providers (NTSPs) for an area, and where appropriate, inform the native title holders about their views. These consultation requirements do not apply to decisions that do not affect native title, such as establishing PBC rules and governance processes, which can be made by the PBC members or Directors.
Section 251 of the NTA and Regulation 8 of the PBC Regulations set out the decision-making processes that PBCs must follow when considering decisions that affect native title. PBCs must use a traditional decision making process if one exists. A traditional decision making process means that decision-making is guided by the native title holders’ traditional laws and customs. For instance, if decisions were traditionally made by elders, the same process should be adopted. If there is no traditional process, native title holders must agree upon an alternative decision making process. This may involve each native title holder voting, a nominated individual making the decision, PBC Directors making the decision, or another agreed upon process.
Native title decisions must be made by the native title holders, rather than PBC directors unless the native title holders have agreed to provide ‘standing consent’ about certain kinds of native title matters. Standing consent means that the PBC is not required to consult with native title holders on every occasion for low impact native title matters (Regulation 9, PBC Regulations).