Native title fee opinions
The Native Title Act 1993 (Native Title Act) gives registered native title bodies corporate (RNTBCs) the ability to charge fees for certain native title functions.
The Native Title Act also grants the Registrar of Aboriginal and Torres Strait Islander Corporations (the Registrar) the power to issue an opinion about whether a fee can be charged.
The Native Title (Prescribed Bodies Corporate) Regulations 1999 explains the process for asking the Registrar for their opinion as well as how the Registrar gives an opinion. The Registrar’s opinion is meant to help resolve disputes over fees between an RNTBC and a third party.
What fees can be charged
RNTBCs can charge fees for negotiating:
- a ‘right to negotiate’ agreement under section 31(1)(b) of the Native Title Act
- an agreement under alternative state or territory provisions which replace the right to negotiate (such as Land Use Activity Agreements under the Traditional Owner Settlement Act 2010 (Vic))
- Indigenous land use agreements (ILUAs).
RNTBCs can also charge fees for costs incurred for certain activities as set out in the table below.
| Activities | Relevant sections of the Native Title Act |
|---|---|
| Providing comments on proposed future acts | Sections 24GB(9)(d), 24GD(6)(b), 24GE(1)(f)(ii), 24HA(7)(b), 24ID(3)(b), 24JB(6)(b) and 24JB(7)(b) |
| Exercising procedural rights | Sections 24KA(7), 24MD(6A), and 24NA(8) |
| Consultations | Sections 24JAA and 24MD(6B)(e) |
| Exercising procedural rights for acts or provisions mentioned in a determination | Sections 26A, 26B and 43A |
| Making submissions in response to a request for a determination in relation to an approved opal or gem mining area | Section 26C(5)(b) |
RNTBCs can only charge fees for costs incurred. Fees charged by RNTBCs cannot be a tax.
What fees cannot be charged
RNTBCs cannot charge fees for costs incurred as a party to court proceedings or inquiries used to progress negotiations. Such inquiries are generally conducted by the National Native Title Tribunal (NNTT) following the lodgement of an application under section 38 of the Native Title Act. These inquiries may also be conducted if the determination is being made under state or territory legislation.
RNTBCs cannot charge fees to:
- common law holders for whom the RNTBC holds native title rights and interests or for whom the RNTBC is an agent prescribed body corporate
- another RNTBC
- a representative body
- a registered native title claimant or other person who claims to hold native title in relation to the land or waters in an area affected by an act to which negotiations under section 60AB(1) relate or in an area proposed to be covered by an ILUA.
Asking the Registrar for an opinion
A person who is charged a fee by an RNTBC can ask the Registrar for their opinion on whether the fee can be charged.
A request for the Registrar’s opinion on a fee must:
- Be made within 21 days of the person being charged the fee.
- Be in writing and signed by the individual making the request. If the request is made on behalf of a body, it must be signed by a director, secretary or another authorised person of the body.
- Include:
- the name and address of the person or body seeking the opinion
- the address, name and Indigenous Corporation Number of the RNTBC that charged the fee
- any document provided by the RNTBC that explains the activities for which the fee was charged, the fee amount and its calculation
- a description of the services provided by the RNTBC in exchange for the fee
- a statement as to why the person or body seeking the opinion does not believe the fee should be charged (i.e. their reasons).
Within 7 days of asking the Registrar for an opinion, the person or body seeking the opinion must give a copy of their request with any supporting material to the RNTBC that charged the fee.
The Registrar may decide not to give an opinion.
Payment of the fee to the RNTBC is suspended while the Registrar is considering a request for opinion. Interest cannot be charged on the suspended fee.
How to make your request
You can request an opinion from the Registrar by:
- sending an email to info@oric.gov.au
- submitting an online enquiry through myCorp.
Change to the Registrar’s opinion or decision not to give an opinion
After the Registrar gives an opinion, the person or body who asked for the opinion or the RNTBC that charged the fee can ask the Registrar to change it (reconsideration). You need to ask the Registrar to change their opinion in writing within 28 days of being told of it.
If the Registrar decided not to give their opinion, you can also ask the Registrar to change that decision. You need to do this in writing within 28 days of when the Registrar should have made their decision by (i.e. within 28 days of when the Registrar was asked for an opinion).
In your request you need to state your reasons for asking the Registrar to change their opinion or decision.
The Registrar may also change an opinion or their decision not to give one on their own initiative.
Payment of the fee to the RNTBC is suspended while the Registrar is considering a request to change their opinion or a decision not to issue one. Interest cannot be charged on the suspended fee.
The Registrar may ask for information
When considering a request for an opinion or decision not to give an opinion, the Registrar may ask the person or body who requested the opinion for more information.
The Registrar may also ask the RNTBC that charged the fee for information about the service for which the fee was charged, the fee amount and how it was calculated.
If the Registrar requests additional information from the applicant and does not receive the information within the timeframe requested (or an extended timeframe), the Registrar can treat the request as withdrawn.
Notification of the Registrar’s opinion, decision not to give one and any changes
The Registrar is generally required to give their opinion within 28 days of receiving the request for opinion or a change. If the Registrar asks for information from the person or body that made the request or the RNTBC, the 28 days is extended accordingly.
The Registrar is required to provide their opinion to the:
- person or body who requested the opinion
- RNTBC that charged the fee
- Secretary of the Department responsible for administering the Native Title Act – discretionary if an opinion or decision is being changed.
If the Registrar does not give an opinion, they are not required to notify stakeholders of this decision.
If the Registrar does not give an opinion after being asked to change one or change their decision not to give one, they are taken to have affirmed the opinion or the decision not to give an opinion.
The Registrar will also publish their opinion on ORIC’s website except in exceptional circumstances.
Further review options
A person can apply to the Administrative Review Tribunal for further review after the Registrar has considered a request to change their opinion or decision not to give one.
Payment of fee
If the Registrar’s opinion is that the fee is payable, it must be paid by the latest of:
- 28 days after a request to change an opinion or decision could have been made but wasn’t
- 28 days after a review request to the Administrative Review Tribunal could have been made but wasn’t
- when the RNTBC said in writing that the fee had to be paid.
If the Registrar’s opinion is that the fee is not payable, the RNTBC must withdraw the fee.