The Native Title Act and PBC Regulations

The Native Title Act 1993 (Cth) (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 (CATSI Act) (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
  • to provide for, or permit, the validation of past acts, and intermediate period acts, invalidated because of the existence of native title (NTA s 3).

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:

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 depending on the type of decision to be made (see Rules About Decision Making).

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 [2017] 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. Section 31 agreements can now be signed in the same way (Native Title Legislation Amendment Act 2021 (Cth) sch 9(2)).

Further resources