The Native Title Act 1993 (Cth) (NTA) states that when a native title determination is made, native title holders must establish a corporation called a Prescribed Bodies Corporate (PBC) to manage and protect their native title rights and interests. These corporations are called ‘prescribed bodies’ because they have certain prescribed obligations under the NTA, including a requirement to incorporate under the Corporations (Aboriginal and Torres Strait Islander Act) 2006 (CATSI ACT).
The corporate design of a PBC will be influenced by a range of considerations including the traditional laws and customs of the native title group, whether it is located in a remote, regional or urban area, as well as its size and future aspirations. A native title claim group can either create a new PBC, or nominate an existing corporation to manage their native title interests. If an existing corporation is nominated, it must comply with the provisions of the NTA and already be incorporated under the CATSI Act.
The NTA states that all PBCs must be registered with the National Native Title Tribunal (NNTT). When a PBC is officially registered, it becomes a Registered Native Title Bodies Corporate (RNTBC). This makes it clear to other people and organisations that it is a corporation that manages native title. While RNTBC is the accurate name for these corporations, most people still call them PBCs. In accordance with the NTA, the NNTT Register records whether a PBC holds native title rights as a trustee or agent for traditional owners. There are some minor differences between trustee and agent PBCs, and traditional owners may choose the model that best suits their needs.
A PBC is the first point of contact for government and other parties wishing to undertake activities on native title land. It acts as a bridge for traditional owners to deal with the non-Indigenous legal system, and ensures certainty for government and other parties by providing a legal entity through which they can conduct business with traditional owners.
As legal entities, PBCs have certain roles and responsibilities under the NTA, PBC Regulations, CATSI Act as well as other Commonwealth, state and territory legislation. The main job of a PBC is to manage and protect native title on behalf of the native title holders. PBCs are required under the NTA to consult with and obtain consent from traditional owners in regards to any decisions that surrender or affect native title rights and interests. The PBC Regulations require that a PBC can produce evidence that native title holders were consulted and provided consent in regards to native title decisions.
The NTA and PBC Regulations prescribe certain key matters that PBCs are required to deal with in regard to the management of traditional owners’ native title rights and interests. These include:
- future acts (proposals for work that will affect native title)
- Indigenous land usage agreements (ILUAs - negotiations between governments, companies and the PBC about future developments on the land)
- exercising, negotiating, implementing and monitoring native title agreements
- consulting with native title holders and documenting evidence of consultation and consent
- consulting with and considering the views of relevant native title representative bodies (NTRB) and native title service providers (NTSP) for an area regarding native title decisions
- compensation (considering compensation matters, and bringing native title compensation applications in the Federal Court)
- bringing future native title application cases in the Federal Court.
A PBC may also hold money in trust for native title holders (such as from compensation payments or mining agreements) which they invest or use as directed by the native title holders.
Some of the areas that a PBC might be required to deal with in relation to other Commonwealth, state and territory legislation may relate to:
- land and water management
- tenure issues
- biodiversity and environmental protection
- cultural heritage
- land use planning.
Native title holders may decide that they also wish their PBC to engage in a broader range of activities, not directly related to the management of native title, such as social and economic development for their communities. Activities may include cultural projects, economic development, training and employment. It is up to the directors and members of each PBC to decide whether they want their PBC to undertake these activities. In this way PBCs can work to care for country, culture and people, using their native title rights to improve the social, economic and cultural wellbeing of their members.
Some examples of the wide range of activities in which PBCs are involved:
Amongst Quandamooka Yoolooburrabee Aboriginal Corporation’s activities, the PBC (in the area of Stradbroke Islands) operates a land and sea country management program, provides cultural heritage consultation services, operates tourism businesses, delivers cultural performances, and welcome to country addresses.
Yindjibarndi Aboriginal Corporation represents the lands of the Ngarluma and Yindjibarndi people focussed on the Burrup Peninsula. The PBC maintains a commercial arm involved in investment and business development, a media division that provides content to the Gumala radio network, education and training support for members, cultural heritage consultation services, as well as cultural documentation activities for the benefit of its members.
Yawuru Native Title Holders Aboriginal Corporation encompassing Broome and surrounding country, operates a language centre, a business arm to generate income for the PBC through investment, and community development programs including education and training, housing, health and cultural development.
Written by Michael Cawthorn, consultant anthropologist.