Appropriate decision-making and communication processes go a long way to avoiding and managing disputes.
The Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act) requires the constitution or rule book of an Aboriginal or Torres Strait Islander corporation to include a process for dealing with internal disputes within the corporation (s. 66-1(3A)), for example, a dispute between a PBC member and a director.
Since changes to the CATSI Act in 2021 all PBC rule books must also include a dispute resolution process that can be used by native title holders for native title disputes (s 66-1(3B)).
Example dispute resolution processes
ORIC’s model rule book for RNTBCs provides an example dispute resolution process. Research conducted by AIATSIS found that whilst a number of PBCs used this dispute resolution process as a guide, only a minority used this dispute resolution process without any changes or additions.
Yamatji Marlpa Aboriginal Corporation (YMAC) has produced a guide on how to handle complaints and disputes.
What processes do PBCs add to ORIC's example dispute resolution process?
PBCs have made the following changes in regards to the example dispute resolution process from ORIC’s model rule book:
- changing the amount of time allowed for each stage of the dispute resolution process;
- including the use of independent mediation and/or arbitration;
- using their NTRB to help resolve disputes;
- using Elders Councils and/or other traditional advisory groups to help resolve disputes; and/or
- stating that disputes must be resolved ‘in accordance with Traditional Law and Custom’.
Examples from PBC rule books
- The Githabul Nation rule book includes a process where the PBC goes to NTSCorp, their NTRB, or another independent person to help them arbitrate disputes about membership.
- Top End PBC similarly utilises the Northern Land Council (NLC) to help review their decisions about membership. If the NLC determines that a person is eligible for membership the PBC must approve the membership and in the opposite case the PBC must cancel the membership.
- Gawler Ranges have established a review panel to deal with disputes over membership.
- Ilkewartn Ywel and Mer Gedkem Le PBCs both draw upon traditional decision making processes to deal with membership disputes. Ilkewartn Ywel refers unresolved membership applications to the senior apmerek-artwey and kwertengerl who then put their resolution on the application to the directors to vote.
- Mer Gedkem Le similarly use the Meriam Tribal Council to assist in making decisions about membership application.
Changes to the CATSI Act in 2021 regarding dispute resolution
Since the 2021 changes to the CATSI Act, all PBCs must now have a dispute resolution process in their rule book that native title holders can use to resolve disputes with the PBC about:
- Whether or not a person is a native title holder
- The way the PBC is dealing with native title business
The dispute resolution process for these native title disputes can be the same as the PBC’s existing dispute resolution process, or it can be different. Even if it is the same, PBCs still needed to change their rule books so that it says native title holders can use the existing dispute resolution process (even if they are not members of the PBC).
Disputes over membership
The CATSI Act doesn’t require rule books to include a specific process for resolving membership disputes (unless the dispute is based on whether or not a person is a native title holder). However, PBCs can choose to include a specific membership dispute resolution process in their rule book.
For example, some PBC rule books refer membership disputes to a general meeting and outline that an individual involved in a membership dispute has the right to appeal the decision and make their case for membership at a general meeting. The members then have the responsibility to determine whether or not the applicant is eligible for member.
Seeking assistance from ORIC
If a dispute or any part of a dispute relates to the meaning of any provision of the CATSI Act or the corporation’s rule book, any party to the dispute may seek an opinion from the Registrar about the correct meaning of the relevant provision.
In an appropriate case the Registrar may provide further assistance to resolve the dispute, by attending or convening meetings and providing mediatory services.
See ORIC’s Dispute resolution webpage for more information.
Seeking assistance from the Tribunal
Under changes introduced by the Native Title Legislation Amendment Act 2021 (Cth) (NTLAA), PBCs and native title holders can now ask the National Native Title Tribunal (NNTT) to help solve disputes between PBCs, between a PBC and native title holders or between native title holders (NTA new s 60AAA).
See the NNTT’s post-determination assistance webpage for more information.
Seeking assistance from a Native Title Representative Body/Service Provider (NTRB/SP)
Native Title Representative Bodies/Service Providers (NTRBs/SPs) are organisations which are responsible for various native title functions under the Native Title Act 1993 (Cth) in a particular region of Australia.
One of the functions of NTRBs/SPs is dispute resolution (see NTA s 203BF). Specifically, NTRBs/SPs can help to promote agreement between native title holders and PBCs about issues relating to native title.
Depending on their resources and capacity, some NTRBs/SPs may also be able to help resolve disputes about governance and the rule book. NTRBs/SPs are not funded to provide governance assistance and may charge for these services.
See the National Indigenous Australian’s (NIAA) webpage on Native title representative bodies and service providers to find a list of NTRBs/SPs. The webpage also includes a link to a map, which identifies which NTRBs/SPs are responsible for different areas across Australia.
- Dispute resolution, ORIC
- Disputes involving corporations, ORIC
- Complaints and how to manage them, ORIC, 2015
- Procedure for handling complaints or disputes, YMAC, 2017
- Rule book, ORIC, 2011
- Rule book, PBC website
- Rules about membership, ORIC
- Rules about members, PBC website
- Dispute management, PBC website
- CATSI Act review, NIAA