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 structure its membership. Under s 77.5 however, a corporation will need at least five members, otherwise it 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.
The Native Title Legislation Amendment Act 2021 (Cth) (NTLAA) introduced changes to membership rules. A PBC’s eligibility requirements for membership must provide for all the common law holders of native title to be represented directly or indirectly, even if they have representational membership. PBCs will no longer be able to refuse membership to applicants who meet the eligibility criteria.
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, for example, an age requirement higher than fifteen.
After an application has been submitted, it is the director’s responsibility to assess and decide on membership applications. Directors must accept membership applications if they are submitted in the correct manner and the applicant meets the PBC’s membership requirements.
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.
Membership can be cancelled on the grounds of ineligibility for membership or failure to pay fees . Membership can also be cancelled if the member is not contactable, 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.
Under changes introduced by the NTLAA, however, membership can now only be cancelled for reasons listed in the CATSI Act. PBCs must change their rule books within two years.
CATSI Act review
The CATSI Act is currently under review. Any amendments made will likely impact on membership management. In October 2020 a final report of the CATSI Act review was released which highlights issues with membership management (4.5-4.51). Some of the recommendations include:
- That PBCs must process membership applications within six months
- That PBCs should collect alternative contact details, including email addresses
- That members be able to ask to have their contact details removed from the member register
- That rules about cancelling membership where a member can’t be contacted be a replaceable rule
The next phase of the review is drafting a CATSI Amendment Bill.
Disputes about membership
The PBC rule book must include a process for dealing with internal disputes (CATSI Act s 66-1(3A)) and disputes with a person who is or claims to be a common law holder (CATSI Act s 66-1(3B)) about whether or not the person is a common law holder and the PBC’s performance of its native title functions. Under the CATSI Act PBCs can make their own rules to fit their specific circumstances and it is recommended to add rules about resolving disputes about PBC membership.
Under changes introduced by the NTLAA, the National Native Title Tribunal can help solve disputes if the PBC asks it to (new s 60AAA).
What do PBCs need to do to respond to changes introduced in 2021?
PBCs registered before 25 March 2021 need to change their rule books within two years to ensure that:
- Rules for cancelling membership align with those set out in the CATSI Act and there are no additional grounds for cancellation
- Membership rules allow all common law holders to be represented either directly or indirectly
- There are rules for resolving disputes between the PBC and people who are or claim to be common law holders