Rules about decision-making

PBCs have to make a lot of decisions. Specific processes need to be followed if a decision is a native title decision. For other kinds of decisions, the PBC’s rule book (regulated by the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act)) determines the PBC’s decision-making processes.

New requirements

From March 2021, the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) (PBC Regulations) have been modified to:

  • set out all kinds of decisions to which regulations 8 and 8A apply under the definition of “native title decision” in subregulation 3(1)
  • introduce “high level decision” and “low level decision” classifications for native title decisions, with prescription of consultation requirements determined by the classification
  • allow for certain kinds of decisions to be covered by “standing instructions”
  • modify the process by which a PBC must consult and obtain consent for subsequent determinations of native title
  • add more functions for PBCs and, in particular, in relation to compensation applications
  • clarify the consultation and consent requirements in relation to high level decisions, standing instructions decisions, low level decisions, and the making of compensation applications
  • require that a certificate prepared under regulation 9 address certain matters in relation to the consultation and consent process and be executed by the PBC in accordance with subsection 99-5(1) or (2) of the CATSI Act or signed by the chief executive officer of the PBC, if one exists and
  • ensure that common law holders are able to obtain a copy of a certificate prepared under regulation 9.

Types of native title decisions

Regulation 3(1) of the PBC Regulations defines a ‘native title decision’ and says that native title decisions can be ‘high level decisions’ or ‘low level decisions’.

High level native title decisions are defined in the regulations as decisions to:

  • Surrender native title rights and interests
  • Enter into an Indigenous Land Use Agreement (ILUA) or s 31 agreement
  • Allow people who are not common law native title holders to join the PBC
  • Include a consultation process(es) in the PBC’s rule book

Low level native title decisions are defined in the regulations as any other decision that affects native title rights and interests (other than a decision to make a compensation application). For more information about compensation decisions, see Compensation.

Decision Making Process

For high level native title decisions, PBCs must follow the consultation and consent process in regulation 8. This states that the PBC must consult with the common law native title holders and obtain their consent. If there is more than one class of common law holders under the native title determination (e.g. different language groups), the PBC only has to consult the affected common law holders. PBCs must use a traditional decision making process if one exists. For instance, if decisions were traditionally made by elders, the same process must 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.

Example – Eastern Maar Aboriginal Corporation RNTBC

Under rule 12.2, the decision-making process used by the Eastern Maar Aboriginal Corporation is:

a) the Directors (as representatives of Family Groups) shall each consult with their Family Group about the proposed decision, and with any other native title holder they have identified as having a particular interest in the area affected by the proposed decision;

b) the Directors will notify (by mail or by public notification) native title holders of the proposed decision and the notice will include:

i. A map of the area affected by the proposed decision;

ii. A summary of the proposed decision and any related agreement;

iii. Advice that:

  • there are four weeks from the date of the notice in which to provide a Director or the Corporation’s legal representative with any comments, questions or concerns in relation to the proposed decision;
  • where no comments are received or only comments of support are received, then the Corporation will have met its consultation and consent requirements and can proceed with the proposed decision;
  • where there are concerns expressed in relation to the proposed decision, the Directors directly or through their legal representative, will consult with the relevant native title holder and, where necessary, other members of that native title holder’s Family Group or any other person.

For low level decisions, PBCs can choose to include alternative consultation and consent processes in its rule book. If there is an alternative consultation and consent process in place, this must be followed. Otherwise, the procedure for high level decisions must be followed.

Standing instructions option

For some decisions, the native title holders can give standing (or ongoing) permission to the PBC.

Standing permission can be given for:

  • Low level decisions
  • A decision to enter into an ILUA in relation to the doing of an act by or for the benefit of the PBC
  • A decision to enter into a s 31 agreement if the PBC is the only grantee party (for example, if the PBC manages native title over an area rich in minerals and wants to apply for several exploration licences) 

The purpose of this amendment is to clarify that standing instructions can be given in relation to decisions to enter agreements where the PBC is the instigator and beneficiary of the agreement. Most ILUAs and s 31 agreements are agreements with non-native title holders. PBCs must still consult with native title holders and obtain their consent in these situations.

Common law holders can make conditions on standing instructions and withdraw or vary them at any time.

Example – Gunaikurnai Land & Waters Aboriginal Corporation RNTBC

Rule 8.2 Common law native title holders have given standing authorisation for PBC Directors to make decisions of the following kind:

  • a decision about whether to comment and whether to oppose, agree to or seek conditions (including reaching agreement where that agreement is not an Indigenous Land Use Agreement) in relation to the doing of a proposed future act under the following sections of that Native Title Act; 24KA , 24MD, 24NA, 24GB, 24GD, 24GE, 24HA, 24ID, 24JAA, 24JB
  • in the context of an Arbitral Body Determination under Subdivision P of the Native Title Act 1993 (Cth), a decision to expressly support that a future act can be done

Certificates

PBCs must prepare a certificate for each native title decision they make to confirm that native title holders were consulted and that they consented to the decision. A certificate is now required for:

  • every native title decision that the PBC makes and
  • for a decision to make a compensation application.

The certificate is evidence that the PBC has consulted, and obtained the consent of, the common law holders. It must be executed by the PBC in accordance with the CATSI Act or can be signed by its CEO (if the PBC has a CEO): regulations 9 and 10 PBC Regulations

The certificate needs to include:

  • The date of the certificate
  • Details of the process of making the decision
  • Details (including names) of the persons who participated in the process of making the decision
  • Details of the standing instructions approval process (if applicable); or
  • Details of the consultation and consent process (i.e. whether a traditional or other decision-making process was used, what the process was and how consent was given)

ORIC can assess whether a certificate was validly issued and provide a finding. See further 55A of the Corporations (Aboriginal and Torres Strait Islander) Regulations 2017.

Further resources