Reviews & Reforms
With over 120 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.
PBCs face substantial challenges to meet the funding requirements needed to support the activities of native title holders. On 27 October 2006, the Commonwealth Attorney-General and the Minister for the Department of Families, Community Services and Indigenous Affairs (FaCSIA)(now FaCHSIA) released a report examining the structures and processes of PBCs (the PBC Report). The Commonwealth’s review of PBCs was carried out by a Steering Committee chaired by the Attorney General’s Department (AGD) and comprised of officers from AGD, FaCSIA and the Office of the Registrar of Indigenous Corporations (ORIC).
The key recommendations of the report included measures to:
- improve the ability of PBCs to access and utilise existing sources of assistance, including from NTRBs;
- authorise PBCs to recover costs reasonably incurred in performing specific functions at the request of third parties;
- encourage greater State and Territory government involvement in addressing PBC needs; and
- improve the flexibility of the PBCs governance regime while protecting native title rights and interests.
This review lead to the implementation of a series of legislative and policy measures aimed to address the development needs of PBCs.
Timeline of reforms
- Nineteenth Report of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund. Recommended that PBCs ‘receive adequate funding to perform their statutory functions and that they receive appropriate training to meet their statutory duties’.
- Research project into the Issue of Funding of Registered Native Title Bodies Corporate (Rashid report) recommended the following:
- Direct funding model: Direct resourcing for each PBC for both regulatory compliance and performance of statutory functions.
- NTRB funding model: NTRBs directly funded to deliver both regulatory compliance and performance of statutory function assistance for PBCs in their area. Provision for PBCs who satisfy certain criteria to ‘opt out’ and directly apply for funding.
- Regional PBC Support Centre funding model: Assistance for both regulatory compliance and performance of statutory functions provided through Regional Support Centres funded through a competitive tendering process. Process open to NTRBs.
- Regional PBC Support Centre Funding Model Special Purpose Corporations: Assistance for both regulatory compliance and performance of statutory functions provided through special purpose bodies established and funded to deliver services to PBCs
- Review of needs and functions of PBCs conducted by Steering Committee chaired by the AGD, FaCSIA and ORIC. A ‘Report on the Structures and Processes of Prescribed Bodies Corporate’ was released which noted that there was a need to:
- Improve the ability of PBCs to access and utilise existing sources of assistance
- Authorise PBCs to recover costs reasonably incurred in performing specific functions at the request of third parties
- Encourage greater State and Territory government involvement in addressing PBC needs; and
- Improve the flexibility of the PBC governance regime while protecting native title rights and interests
- FaHCSIA ‘Guidelines for the support of PBCs’ provides for ‘emergency’ funding for basic administrative assistance through NTRBs and NTSPs (option 2 of the Rashid report).
- Native Title (Amendment) Act 2007. Section 58 imposes consultation changes through the PBC regulations (addresses recommendation 5 of the PBC Report which called for greater clarity of the statutory requirements for consultation). Requires consultation for ‘native title decisions’ narrowing the situations where consultation is required. Allows existing PBC to be determined for a later determination where all the native title holders covered by the determination agree.
- All PBCs arerequired to incorporate under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act) which replaced the Aboriginal Councils and Associations Act 1976 (ACA Act) which made changes scaling of reporting requirements reducing the administrative burden on PBCs.
- Native Title (Technical Amendment) Act 2007 authorises a PBC to charge a third party for costs incurred in performing its statutory functions (addresses recommendation 11 of the PBC report) and contains provisions for determining a defalt PBC.
- Native title recognised as being critical to economic development and properly structured property rights to land is a key component in expanding commercial and economic opportunities: Jenny Macklin Mabo Lecture at James Cook University.
- Joint Working Group on Indigenous Land Settlement (JWGILS) involving officers from the AGD, FaHCSIA and State and Territory governments leading to the publication of the Discussion paper Optimising the Benefits of Native Title Payments.
- JWGILS released discussion paper ‘Leading Practice Agreements: maximising outcomes from native title benefits’:
- supporting and building the capacity of PBCs to effectively manage the financial and non-financial benefits provided in native title agreements following settlement
- designing culturally appropriate and effective corporate and governance structures to manage benefits provided in native title agreements, including cross-generational benefits; and
- maximising economic development, leadership and governance opportunities through broader land settlements which benefit traditional owners and their communities.
- AGD exposure draft to amend legislation to allow parties to agree to disregard historical extinguishment of native title areas of land set aside for the purpose of preserving the natural environment.
- Department of Treasury (‘Treasury’) consultation paper Native Title, Indigenous Economic Development and Tax.
Native Title (Prescribed Bodies Corporate) Regulations 1999 (PBC Regulations). Consultation draft released by FaHCSIA addressing recommendations from the PBC Report including:
- consultation requirements (recommendation 5);
- certification requirements (recommendation 6);
an existing PBC being determined as a PBC for a subsequent determination (recommendation 7);
- PBC membership requirements (recommendation 8)
- PBCs charging fees for service (recommendation 11); and
- the determination of a default PBC (recommendation 15).
- The Native Title (Prescribed Bodies Corporate) Amendment Regulations 2011 were registered on 14 December 2011. The Amendment Regulations are made under the Native Title Act 1993 and implement a number of recommendations concerning the structures and processes of Prescribed Bodies Corporate (PBC). These recommendations originate from a review of the native title system conducted in 2005 and can be found in the Structures and Processes of Prescribed Bodies Corporate Report (see above).
- The Amendment Regulations will amend the existing regulations to:
- improve the flexibility of the PBC governance regime by:
- enabling an existing PBC to be determined as a PBC for subsequent determinations of native title;
- removing the requirement that all members of a PBC must also be the native title holders (where agreed by the native title holders);
- clarifying that standing authorisations in relation to particular activities of a PBC need only be issued once; and
- subject to certain exceptions, including native title holder consent, allowing PBCs to substitute their own consultation requirements in relation to native title decisions rather than follow the requirements in the regulations;
- provide for the transfer of PBC functions in circumstances where there has been failure to nominate a PBC, where a liquidator is appointed, or where a PBC wishes this to occur; and
- enable PBCs to charge a fee for costs incurred in providing certain services and set out a procedure for review by the Registrar of Indigenous Corporations of a decision by a PBC to charge such a fee.
- The Amendment Regulations are registered on the Federal Register of Legislative Instruments and are available at the following link.
- Native Title (Prescribed Bodies Corporate) Amendment Regulations 2011
- FaHCSIA initiates the Native Title Organisations Review, which is a review of the role and functions of NTRBs and NTSPs to ensure that they continue to meet the evolving needs of the system, and particularly the needs of native title holders, and their PBC after claims have been resolved. The terms of reference for this review are available at the following link:
- Native title organisations review terms of reference.