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On 25 March 2021, the Native Title Legislation Amendment Act 2021 came into effect. That law altered both the Native Title Act 1993 and the Corporations (Aboriginal and Torres Strait Islander Act 2006. The Native Title (Prescribed Bodies Corporate) Regulations 1999 that guide implementation of the law were also updated.
The changes apply to registered native title bodies corporate (RNTBCs) and Aboriginal and Torres Strait Islander corporations that are registered for the purpose of becoming an RNTBC.
Some of the amendments require RNTBCs to change their rule books. Others require RNTBCs to make operational changes. This section introduces the key changes and links to more detailed information.
What's required? All RNTBCs must have particular rules about disputes and membership.
By when? A corporation that becomes an RNTBC after 25 March 2021 must cover the requirements from the date it becomes an RNTBC. Previously-registered RNTBCs have until 24 March 2023 to update their rule book to meet the new requirements.
A corporation that is registered in order to become an RNTBC does not have to meet these requirements until a determination of native title is made where it is prescribed as the body corporate to hold or manage the native title. However, the rule book should include membership eligibility criteria that apply before the native title determination and once the corporation becomes an RNTBC.
These are the rules you need to revise:
- who can become a member
- accepting an application for membership
- reasons for cancelling membership
- process for cancelling membership
- dispute resolution
Rules about membership
An RNTBC’s rule book must must allow for all common law holders to be represented in the membership of the corporation. This can be directly or indirectly.
The directors must accept an application for membership if the applicant is eligible for membership and applies in the proper way. Any rules that say otherwise should be removed.
Further, the only grounds (reasons) for cancelling membership are those set out in the CATSI Act: ineligibility; failure to pay fees; uncontactability; non-Indigeneity; or disruptive misbehaviour. If an RNTBC's rule book includes any other grounds for cancellation, those rules must be removed.
There must be no process for cancelling membership other than the processes set out in the CATSI Act. If an RNTBC's rule book describes any other process for cancelling membership, it must be removed.
Rules about disputes
An RNTBC's rule book must include a rule stating how to resolve a dispute between the RNTBC and a common law holder (or person who claims to be a common law holder) about:
- whether or not the person is a common law holder and
- the RNTBC’s performance of its native title functions.
This model rule book has examples for all the rules above. [INSERT LINK HERE]
Making native title decisions
All 'native title decisions' must be made according to the wishes and directions of the common law holders, but for certain types of native title decisions there are options for RNTBCs to work with common law holders to make the process less of a burden—through standing instructions and alternative consultation processes. For example, common law holders can give their RNTBC standing instructions about decisions to enter into:
- an Indigenous Land Use Agreement (ILUA) or
- section 31 agreement under the Native Title Act when the RNTBC itself is the beneficiary or only grantee party (i.e. the body who has applied to the government for the grant of a mining tenement such as exploration licences and mining leases).
To help figure out which consultation and consent process to use the PBC Regulations categorise native title decisions as high level or low level.
It's optional for the RNTBC to consult with and consider the views of, the relevant native title representative body or service provider before making a native title decision.
RNTBCs must prepare a certificate for every native title decision as evidence that the decision was made following the right process and by the right people.
Making applications for compensation
After an RNTBC has consulted and got consent from the relevant common law holders whose native title has been partially or fully extinguished, it can make a claim for compensation on behalf of relevant native title holders.
RNTBCs and common law holders can ask the National Native Title Tribunal to provide assistance to resolve disputes about native title matters such as whether or not a person is a common law holder, or the corporation’s performance of its functions under the native title legislation (section 60AAA of the Native Title Act).
The NNTT explains how they can help you resolve a native title dispute in a fact sheet and infographic.
National Indigenous Australians Agency has further information on changes to native title laws and obligations.
The ORIC website includes several resources for Aboriginal and Torres Strait Islander corporations involved in native title:
- The CATSI Act and native title
- A guide to writing good governance rules for PBCs and RNTBCs
- ORIC paper—Interaction between the Corporations (Aboriginal and Torres Strait Islander) Act 2006 and the Native Title Act 1993
- ORIC Policy Statement 10: Corporations' native title status
- ORIC Policy Statement 23: Review of fees charged by RNTBCs for certain native title functions