2022 Year in Review: Native Title Law and Policy

Native title and other related laws continue to be complex and dynamic. This article summarises key native title claim statistics and then identifies trends from in 2022, including in relation to native title compensation and charitable trust laws. Updates to national treaty discussions are also provided. Four key native title decisions from 2022 are then explored, including a decision relating to implied Indigenous Land Use Agreement terms. Finally, recent changes to related laws in Western Australia and Northern Territory are explained.

The article is available here.

Tax considerations for a PBC

If a native title claim is successful, the native title holders must nominate an Aboriginal corporation to hold their native title. This is formally called a Registered Native Title Body Corporate (or ‘RNTBC’). It more commonly referred to as a Prescribed Body Corporate, or a PBC.

A PBC is likely to encounter tax issues in a range of matters. This factsheet identifies some possible tax issues in four commonly experienced scenarios.

Our factsheet is available here.

Template PBC Rulebook

If a native title claim is successful, the native title holders must nominate an Aboriginal corporation to hold their native title. This is formally called a Registered Native Title Body Corporate (or ‘RNTBC’). It more commonly referred to as a Prescribed Body Corporate, or a PBC. To learn more about the steps for PBC incorporation, view our video and factsheet here.

In making a PBC, native title holders can design their own Rule Book. The Rule Book sets out how the PBC will work. Some rules are set and cannot be changed. Other rules can be changed.

We have developed a Template Rule Book and Schedule Index to help native title holders understand which rules are set and which rules can be changed. The Template Rule book has a light bulb symbol for each rule that native title holders should discuss further. The Schedule Index then provides brief commentary and key questions for that rule.

Our Template Rule Book is available here and the Schedule Index is available here.  

Five tips for chairing tricky meetings

This factsheet provides five tips for chairing tricky meetings.

The Chairperson is responsible for allowing a reasonable opportunity for the members at an AGM to ask questions or make comments about the management of the corporation. It is an offence not to do so. The Chairperson also is the public face of the corporation, so assists with maintaining the corporation’s values and upholding its reputation.

In a meeting, the Chairperson needs to keep the meeting on track so that decisions are made properly and fairly. Where lots of people want to have a say and topics can be emotive, this can be very difficult.

We have facilitated several tricky meetings in our collective experience, so we’ve summarised our five best tips.

The factsheet is available here.

Roles and responsibilities in Prescribed Body Corporates (PBCs)

This factsheet explains the roles of people in a PBC.

If a native title claim is successful, the native title holders must nominate an Aboriginal corporation to hold their native title. This is called a prescribed body corporate, or a PBC.

There are many people involved in a PBC, including native title holders, members, directors and in some circumstances a Chief Executive Officer.

It is important that the roles and responsibilities of these people are understood.

The factsheet is available here.

What is a native title ‘Future Act’?

This factsheet explains future acts.

A future act is a proposal to do something on land or waters that affects native title rights and interests. Examples of future acts include mining tenements, public infrastructure, water licences, and the compulsory acquisition of land.

The Native Title Act sets out the rights that a native title party has when a future act is proposed. These are called “procedural rights” and depending on the type of future act being proposed, can include:

  • The right to be notified
  • The right to comment
  • The right to be consulted
  • The right to object, or
  • The right to negotiate.

Under the Native Title Act, a native title party does not have the right to veto a future act from being done. The highest procedural right is the right to negotiate an agreement about the future act.

 

The factsheet is available here.

Incorporating a Prescribed Body Corporate (PBC)

This factsheet explains the process to incorporate a PBC.

If a native title claim is successful, the native title holders must nominate an Aboriginal corporation to hold their native title. This is called a prescribed body corporate, or a PBC. To do this, the native title holders ask the Federal Court to determine that the Aboriginal corporation they nominated should be the PBC for the native title determination.

If the claim group does not nominate an Aboriginal corporation within the time allowed by the Court, the Indigenous Land and Sea Corporation (ILSC) may become the default PBC. If the ILSC becomes the default PBC, then the native title holders lose direct control of management of their native title.

Native title holders, members and directors all have a role in the PBC carrying out its functions. The members and directors run the operations of the PBC and have an obligation to speak to the native title holders about native title decisions.

Once the PBC is nominated it becomes the job of the PBC to deal with native title, not the claim group. The PBC is the contact point for people who want to do something on the native title area.

The factsheet is available here.

We have also developed a Template Rule Book. That is available here.

How healthy is your native title corporation?

Native title corporations hold, manage, and protect recognised native title rights and interests.  We have developed a checklist to see how healthy your corporation is.

 

Native title corporations should:

  • be managed in a way that is transparent and promotes accountability;
  • act in accordance with the law; and
  • ensure their directors act professionally, responsibly and plan for the future.

MPS Law has worked with native title corporations (or ‘RNTBCs’) and Aboriginal and Torres Strait Islander corporations across Australia and has developed a checklist to assist you in determining how healthy your corporation is.  We encourage you to read this document in conjunction with our heritage survey checklist, native title benefits checklist, RNTBC AGM checklist and template letter agreement for heritage surveys in native title land.

The checklist is available here.

Note: This document is intended as a guide only to assist directors and members in ensuring their corporation is well managed.  This does not constitute legal advice.  The issues and questions set out are of a general nature and may not reflect your specific circumstances.  There may be additional and important issues that should be considered when evaluating the actions of the corporation.  If you or your organisation has a legal problem you should obtain professional advice from a legal practitioner.

Witness Statement Checklist for Native Title Claims

witness statement native title law

This checklist sets out necessary legal, ethical, and practical considerations to ensure that witness statements are obtained and prepared in a way that increases the likelihood of success and satisfies obligations.

 

 

Witness statements are a key source of evidence in native title claims. The United Nations Declaration on the Rights of Indigenous Peoples require that free, prior and informed consent is a key aspect when obtaining instructions or legal agreements from Indigenous clients. Free, prior and informed consent implies that consent should be obtained with no coercion, sufficiently in advance and with the size, pace, reversibility and scope of the activity appropriately explained. In addition, native title law is complex and the settings can be challenging, which can make witness statements more difficult than usual.

You can download the checklist here.

Note: This document is intended as a guide only. This does not constitute legal advice. The issues and questions set out are of a general nature and may not reflect your specific circumstances. There may be additional and important considerations that should be taken into account in your specific circumstances, depending on the requirements of your corporation and its rule book. If you or your organisation has a legal problem, you should obtain professional advice from a legal practitioner.

AGM checklist for Registered Native Title Body Corporates

This checklist is to help RNTBCs plan and hold Annual General Meetings.

Registered Native Title Body Corporates are required to hold an Annual General Meeting before December each year. Procedurally, these meetings are held to ensure that RNTBC members have an opportunity to comment, make decisions and elect directors.

Practically, these meetings are a key opportunity for community to hold the RNTBC accountable. These meetings provide community with a platform to make key decisions which effect their interests and enjoyment of country.

You can view the checklist here.

 

Note: This document is intended as a guide only to assist with the facilitation of RNTBC AGMs in accordance with the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth). This does not constitute legal advice. The issues and questions set out are of a general nature and may not reflect your specific circumstances. There may be additional and important considerations that should be taken into account in your specific circumstances, depending on the requirements of your corporation and its rule book. If you or your organisation has a legal problem, you should obtain professional advice from a legal practitioner.