PBC are largely run by their members who have more rights and responsibilities under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act) than native title holders who are not members. This includes the rights to request a general meeting, and to attend and vote at the meeting.
The CATSI Act has legal requirements for PBC membership structures and processes. There are also a number of replaceable and exemptible rules related to membership application and eligibility.
Inclusive vs representative
The CATSI Act does not provide specific requirements about how a corporation must organise and structure membership. Under s 77.5 however, a corporation will need at least five members, otherwise requires an exemption for less. Also the corporation structure must meet the Indigeneity requirement, and have at least some members who are Indigenous.
Most PBCs have an ‘all-inclusive’ membership structure whereby all eligible native title holders can become members of the PBC. In areas where people live in close proximity to each other PBCs might benefit from an all-inclusive membership to ensure everyone has the opportunity to attend meetings and actively participate in the running of the PBC.
A small number of PBCs have ‘representational’ membership structures where there are a limited number of members who work to represent the interests of the other native title holders. PBCs employing this structure have limited members, and may also limit the length of time membership is held for. Representational membership structures might occur when a PBC represents the native title interests of more than one group in one determination, or where native title holders are geographically dispersed and all-inclusive membership becomes less practical.
Example for representational membership
Nyangumarta Karajarri has a limit of 40 total members, with a maximum of twenty members each from the Nyangumarta PBC and the Karajarri PBC. A person cannot be a member for longer than four years, but can be nominated to continue for a further term by their nominating group.
Classes of membership
A few PBCs have different classes of membership. This might include having a membership category for,
- members under 18; and/or
- individuals who have a strong connection to the group such as the spouses of members, but are not native title holders themselves.
Example membership classes
Tatampi Puranga have two classes of membership:
- ordinary members which shall comprise all members 18 years of age and over; and
- youth members which shall comprise all members aged at least 15 years and under 18 years of age.
Division 144 of the CATSI Act requires that individuals wanting to become members must apply in writing to the corporation and be over fifteen years of age. The act does not otherwise provide membership eligibility requirements, but some PBCs have included extra rules about membership eligibility in their rule books. The changes included in their rule book can be:
- applicants must be nominated by existing members
- include an age requirement higher than fifteen
- roving (interchanging) directors approve new members by consensus
- members approve new membership applications at a general meeting
- new members require elder approval.
After an application has been submitted, it is then the director’s responsibility to assess and decide on membership applications. Directors must only accept membership applications submitted in the correct manner and if applicants meet the PBC’s membership requirements.
Examples for rules about membership application
To become a member a person must:
- be eligible to apply under rule 3.1; and
- submit an application for membership in writing to the corporation signed by the applicant and two existing members nominating the applicant for membership.
How to become a member:
- a person applies in writing;
- a person is eligible under rule 3.1; and
- the directors agree by consensus.
Each nominated member is to be admitted by the current members of the corporation by consensus at the annual general meeting. Current members may only object to a nomination where they are of the opinion that the person is either:
- not a native title holder; or
- there is a provision in these rules or the act that makes the person ineligible to be a member of the corporation.
A member must be:
- at least 18 years old; and
- a native title holder; or
- recognised by the Dhubbi Warra elders as being a Dhubbi Warra person.
The CATSI Act does not detail a list of responsibilities or obligations for members of Aboriginal and Torres Strait Islander corporations. However, s147.5 allows corporations to attach additional obligations for members of their corporation in their rule book.
PBC rule books include a range of different membership responsibilities. Most rule books include the responsibility for members to:
- follow the corporation’s rules
- let the corporation know if they change their address
- treat other members with respect.
A number of PBC have added additional member responsibilities in their rule books, like:
- members must follow the Code of Conduct
- members must act in accordance with tradition and culture
- members must attend meetings
- members must not make improper use of information or opportunities received through membership of the corporation
- members must comply with any dispute resolution or other policy adopted by the corporation
- members must not claim to act with the authority of the corporation or any trust of which the corporation is trustee other than in accordance with the rules as set out in the rule book
- members must not make any public statement on behalf of the corporation unless authorised by the board of directors
- members must not bring the corporation into disrepute
- members must treat other members, employees of the corporation and the directors with respect and dignity and not engage in personal attacks or abusive behaviour.
Division 150 of the CATSI Act provides a model for membership cancellation that PBCs can choose to adopt. This section deals with the cancellation of membership on the grounds of ineligibility for membership, as the member is not contactable or fails to pay fees (if any), or the member is not an Aboriginal and Torres Strait Islander person, or misbehaves.
Some PBCs rule books have expanded the list of reasons for which members can be removed from the PBC. These additional rules include that members can be removed if they,
- act in a threatening or abusive manner toward staff;
- provide third parties with confidential documents or information;
- consistently disrupt the operations of the corporation; and/or
- engage in conduct that undermines the objects of the corporation.
In some PBCs, members can be removed if they no longer observe, or commit serious breach of cultural laws and customs.
Several PBCs have adapted the process of cancelling membership. These changes include referring membership cancellation to elders councils or general meetings.
Example for removal of members
The Malu Ki’ai rule book, for instance, states that members can be removed if they breach alian kustom or the protocols of Boigulgal.
Members of the Karajarri Traditional Lands Association can similarly be removed if, in accordance to Karajarri law, the Karajarri people cease to recognise that person as Karajarri.
The constitutions of the Wintawari Guruma AC and Western Desert LAC stated that directors must consider memberships cancellations in accordance with ‘Law and Customs’ and the process to cancel membership requires either 80 per cent (Wintawari) or 100 per cent (Western Desert) of directors to vote in favour of the decision.
CATSI Act review
The CATSI Act is currently under review. Any amendments made will likely impact on membership management. In July 2020 a draft report of the CATSI Act review has been released which highlights issues with membership management (4.5-4.17). The next phase of the review is seeking more information in particular about:
- provision of alternative contact details and redacting members personal information from the public corporation registers
- using email as another ways of contacting members
- membership approval and the lack of clarity about the timeframe for approvals or the appeals process for rejected members
- membership cancellation because a members is uncontactable.
Disputes about membership
The CATSI Act, section 66-1(3A) requires that all PBC rule books include a process for dealing with disputes. Under the CATSI Act PBCs can make their own rules to fit their specific circumstances and it is recommendable to add rules about resolving disputes about PBC membership.
Many PBCs that experience disputes about native title holder group membership often also have disputes about corporation membership. An alignment of the native title holding groups and the membership of the PBC can reduce the complexity of dealings for directors and reduce the conflict between the distinct legal duties owed to the members and the native title holders.