Who are the native title holders?

During our native title claim application process our traditional owners were identified as the native title claimant group.

When a native title determination is made, usually the native title group is defined as the descendants of one or more of a list of apical ancestors.

Members of a native title group become native title holders once a successful determination has been handed down by the Federal Court of Australia. 

PBCs are required by law to make sure that the rules about membership that are included in a PBCs Rule Book match up with the information about the native title group that was recognised by the Federal Court in the native title determination. 

Not all native title holders are members of a PBC and there is no requirement for native title holders to also be members.  

Who are our PBC Members?

Our PBC members are the native title holders (and in some circumstances, other individuals) who join the PBC either at registration or during the life of a PBC. Not all native title holders will be members of the PBC.

All native title holders who wish to become a member of the PBC and meet- the criteria need to apply in writing to the PBC by completing a membership form. It is then up to the PBC board to resolve to approve their membership.

Being a member of the PBC offers native title holders the opportunity to take a more active role in the business and governance of the PBC.

There is no requirement for a native title holder to be a member, and all native title holders must give their consent (permission) to becoming a member of the PBC.

This also means that native title holder’s do not automatically become PBC members.

Who are the Board of Directors?

The board of directors (or PBC directors) are members of the PBC (and in some circumstances, other individuals) who have been elected onto the board (with their consent).

A director must first give their consent in writing prior to becoming a director of a PBC.

The board of directors have the main task of leading and directing the PBC and representing the views of the members and the native title holders.

Native title holders and PBC members

A native title determination identifies the Aboriginal people who are traditional owners for an area of country. During a native title claim the group of traditional owners are called the ‘native title claim group’.

Common law native title holders (also known as native title holders or the native title group) include everyone who is defined in the native title determination as the holders of native title rights and interests under Aboriginal law and custom.

Traditional owners who are recognised by a native title determination as a native title holder have certain legal rights. This includes the collective right to be consulted by the PBC board of directors on native title decisions.

Each native title group will have its own decision making process about how the decisions are made within the group.

Under the native title regime, Australian law sets out rules about how this group must operate when managing native title business. The law requires that once native title has been determined each group sets up a PBC, and the role of the PBC is to, as best as possible, bridge the gap between traditional Aboriginal laws and customs and Australian law.

PBCs have a difficult job and need to operate effectively so that native title holders are able to utilise and maximise their native title rights and engage meaningfully in land management while balancing the requirements of traditional Aboriginal laws and customs and the Australian law.  

Additionally, Australian law provides for three key groups   to play important roles on how the PBC functions and include the:

• common law native title holders (also known as native title holders or the native title group);

• PBC members; and

• board of directors (or PBC directors)

Members vs directors

The members elect the board of directors who are tasked to lead, direct and conduct PBC business to the best of their ability while representing the views of the members and the native title holders.

Members can keep the directors in check by attending general meetings, asking questions, putting forward their ideas and, if needed, proposing to remove a director.

Because members of a PBC will almost always be native title holders as well, they have a unique relationship with the board of directors.

The directors of most other corporations don’t have to consult their members when making decisions; however, PBC directors must consult with native title holders when making native title decisions.

What is a Native Title decision?

A native title decision is a decision to agree (or not to agree) to do something that would affect the native title rights or interests of native title holders, including the right to surrender native title rights and interests. For example: decisions about future acts or signing an ILUA.

This is a requirement under the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) (PBC Regulations) Regulation 8.

All future acts affect native title, the crucial distinction for determining whether there is a ‘Native Title Decision’ (NTD) is the procedural rights afforded to Native Title holders and whether a PBC is making a decision.

Each PBC needs to deal with proponents wishing to engage with them about certain acts on Country and different types of decisions can be classified broadly by procedural right that applies.

Not every act that occurs on Country involves a NTD and every PBC must first establish what procedural rights are afforded by each class of act.

When there is a NTD, the PBC must follow the processes set out in the PBC Regulations and the Rule Book (if applicable). This includes not only consulting and seeking consent to enter into an agreement or ILUA, but also seeking direction from common law native title holders as to how any compensation negotiated can be spent which is held on trust by a PBC.

The process that each PBC must follow in dealing with compensation negotiated in NTD is set out in the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) in regulations 6 and 7 depending on whether the PBC holds native title on trust or as agent.