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 disputes within the corporation (s. 66-1(3A)).
New changes were introduced in early 2021. Corporation rule books must now also include a process or processes for dealing with disputes between the PBC and persons who identify as common law holders (s 66-1(3B)). PBCs have until 25 March 2023 to change their rule books to include these dispute resolution processes.
Example dispute resolution processes
ORIC’s rule book condensed 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.
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, the directors or any party to the dispute may seek an opinion from the Registrar about the correct meaning of the relevant provision.
The right to request assistance from the Registrar does not create a right to request a formal mediation. However, in an appropriate case the Registrar may provide assistance in having the matter resolved. For more information on members’ rights see rule 3.3.
Seeking assistance from the Tribunal
Under changes introduced by the Native Title Legislation Amendment Act 2021 (Cth) (NTLAA), PBCs and common law holders can now ask the National Native Title Tribunal (NNTT) to help solve disputes between PBCs, between a PBC and common law holders or between common law holders (NTA new s 60AAA). The NNTT might ask you to enter into an agreement with them to pay them for their assistance.
Yamatji Marlpa Aboriginal Corporation (YMAC) has produced a guide on how to handle complaints and disputes.
What changes or additions do PBCs make to the dispute resolution process?
PBCs have made the following changes in regards to the dispute resolution process in their rule books:
- 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.
Disputes over membership
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. The right of the applicant to address a general meeting is not included within the CATSI Act model.
- 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