Living with native
title: an overview of
the experiences of
native title
corporations
Joe Edgar (Karajarri Traditional Lands
Association RNTBC), Claire Stacey (AIATSIS)
and Geoff Buchanan (AIATSIS)
Karajarri Traditional Lands Association RNTBC (KTLA)
Karajarri Traditional Lands Association RNTBC (KTLA)
• 1998: KTLA incorporated as an Aboriginal
Corporation
• 2002: First native title determination: Karajarri
People (Area A) Nangkiriny v Western
Australia [2002] FCA 660
• 2002: KTLA becomes a RNTBC
• 2004: Second native title determination:
Karajarri People (Area B) Nangkiriny v State
of Western Australia [2004] FCA 1156
• 2013: KTLA gets an office space in
Bidyadanga
Karajarri Traditional Lands Association RNTBC (KTLA)
Current activities include:
• Declaration of an Indigenous Protected
Area (IPA)
• Establishment of a joint-managed Marine
Park over the 80 Mile Beach area with the
WA state government
Overview
• Karajarri Traditional Lands Association
RNTBC
• PBC partnerships with AIATSIS
• What is a PBC?
• National overview of PBCs
• PBCs aspirations, challenges and
strengths
• Future for PBCs
“Twenty years after the Mabo decision and the Native
Title Act, I am extremely concerned that the
opportunities and promise of the early 1990s have
not been realised. We need to view and understand
native title in a holistic way that recognises native title
is intrinsically linked to social justice and the
enjoyment and exercise of our human rights as
Aboriginal and Torres Strait Islander peoples….
….If we are to realise the benefits of our native title,
then we need to invest in the governance of native
title right now. This means that we need to build the
capacity of PBCs to support native title holders to
maximise opportunities from their native title”
Mick Gooda, Aboriginal and Torres Strait Islander
Social Justice Commissioner 2013: 84-105.
AIATSIS PBC research: 2006-2014
• The Native Title Research Unit (NTRU), established
in 1993, provides high quality independent research
and policy advice in order to promote the
recognition and protection of the native title of
Aboriginal and Torres Strait Islander Peoples
• NTRU has been conducting extensive research into
the post-determination environment for native title
holders since 2006
• Research action partnerships – Living with
native title
• Workshops
• Survey
• Statistical research and summaries
What is a PBC?
•
•
•
When Aboriginal or Torres Strait Islander people
receive a determination of native title on their
country, the Native Title Act 1993 (Cth) requires that
a Prescribed Bodies Corporate (PBCs) is
established.
PBCs become Registered Native Title Bodies
Corporate (RNTBCs) when they are registered with
the National Native Title Tribunal (NNTT).
While RNTBC is technically the accurate name for
these organisations, they are most commonly known
as PBCs.
“legal relationships of great complexity”
• Native Title Act 1993 (Cth) (NTA)
• Corporations (Aboriginal and Torres
Strait Islander) Act 2006 (Cth) (the
CATSI Act)
• Native Title (Prescribed Bodies
Corporate) Regulations 1999 (PBC
Regulations)
What is a PBC?
“This new corporate sector, underwritten by
traditional laws and customs, is challenging
legal, political and social institutions in Australia
to be more responsive to Indigenous political,
legal and cultural diversity.”
(Source: Bauman, Strelein & Weir 2013: 1)
What is a PBC?
According to the Attorney-General’s Department (2006: 6),
‘the primary roles of PBCs are to:
• Protect and manage determined native title in accordance
with the wishes of the broader native title holding group;
and
• Ensure certainty for governments and other parties with
an interest in accessing or regulating native title lands and
waters by providing a legal entity through which to
conduct business with the native title holders’.
However, according to traditional owners, PBCs have a much
broader role as the cultural custodians for country
What do PBCs have to do?
• Communicate and consult with native title holders when
making decisions
• Future Acts
• Agreement making
• Negotiate and implement Indigenous Land Use
Agreements (ILUAs)
• Meet compliance under the Office of the Registrar of
Indigenous Corporations (ORIC) including regular reporting
and holding meetings
• Perform functions as landholders with respect to:
• land and water management;
• tenure issues;
• biodiversity and environmental protection;
• cultural heritage; and
• land use planning including town planning
• controlling feral pests and weeds.
Determinations and Native Title Prescribed
Bodies Corporate
As at 30 June 2013
Source: National Native Title Tribunal
Classification of PBCs under the
CATSI Act
Has at least two
of the below
factors in a
financial year:
 Consolidated
gross
operating
income
 Consolidated
gross assets
 Employees
Small
Medium
Large
<$100,000
$100,000-$5
million
>$5 million
<$100,000
$100,000-$2.5
million
5-24
>$2.5 million
<5
>24
Source: Office of the Registrar of Indigenous Registrations, ‘Fact sheet corporation size and financial reporting’, ORIC, Canberra,
2011,<http://www.oric.gov.au/html/publications/factsheets/Fact%20sheet_Corp-size-and-reporting_Jan2011_11_0012.pdf>,
accessed 18 June 2013.
Distribution of PBCs by region
and size, 30 June 2013
NSW
NT
QLD
TSI
SA
VIC
WA
Total
(No.)
Total (%)
Small
1
11
31
19
6
1
19
88
81.48
Medium
1
1
4
0
3
3
5
17
15.74
Large
0
0
0
0
0
0
3
3
2.77
Total
2
13
35
19
9
4
27
109
100.00
Source: Office of the Registrar of Indigenous Corporations (ORIC), ‘Public register’, ORIC Canberra,<www.oric.gov.au>, accessed 30June 2013.
PBCs on the Native Title Register,
1994-2013
Registered Native Title Claims
As at 31 December 2013: 300 claims nationally
Source: National Native Title Tribunal
Demographic characteristics of PBC Boards
A snapshot of PBCs and their boards
as at 31 June 2012 showed that:
• Average number of directors: 8.2
• Average age of directors: 49.9
years (Males 49.9, Females 50.0)
• Nationally: 59% male, 41% female
• Torres Strait: 83% male, 17%
female
(Source: Buchanan, forthcoming)
AIATSIS 2013 PBC Survey: Key
findings
A survey of 27 PBCs from across Australia found:
•
•
•
•
•
•
Low levels of physical, financial and human
capital;
Lack of funding as a barrier to most PBCs
achieving their aspirations;
Heavy reliance on unpaid board members;
Most common activities undertaken by PBCs
related to Future Acts and cultural programs and
heritage management;
Most PBCs were supported by a Native Title
Representative Body or a Native Title Service
Provider, with legal support being the most
common form of support received;
The most common visions PBCs had for the
future related to community development,
economic development and corporate
independence.
PBC aspirations
“There is significant tension between
governments and native title holders about what
is and what is not native title and what is and
what is not reasonable support for the
Registered Native Title Bodies Corporate
(RNTBCs) prescribed by the NTA.”
(Source: Bauman, Strelein & Weir 2013: 1)
PBC aspirations
AIATSIS research to date suggests that PBC aspirations fall into four
main themes:
• Independence – PBCs seek greater levels of corporate
independence in the management of their native title rights and
interests
• Respect and recognition of traditional ownership – PBCs seek
greater levels of political recognition and respect for their traditional
rights by other interest groups
• Caring for country, culture and people – PBCs aspire to use their
native title rights to achieve greater social and emotional well-being
for their members as well as the broader community
• Enabling community development, service provision and
economic development – PBCs want to use their native title rights
to provide greater socio-economic security for their communities
(McGrath, Stacey & Wiseman 2013: 29).
• “PBC aspirations relate not only to performing their statutory
functions, but to also acting as agents for social, cultural and
economic change” (Bauman & Tran 2007: vii)
PBC challenges
AIATSIS research has shown:
•
A lack of human and financial resources
•
An over-reliance on PBC members contributing unpaid labour (volunteer time)
•
A lack of appropriately targeted training in governance, leadership, strategic planning and
business development
•
Financial instability and longer-term financial insecurity
•
Onerous and highly technical reporting obligations
•
High levels of external demands on PBC resources
•
Poor engagement and recognition of PBCs by regulators and all levels of government
•
At times poorly articulated relationships with NTRBs and other service providers
•
Lack of access to reliable legal advice and financial management
•
Lack of access to and skills in IT and administration
•
Lack of capacity to successfully apply for external grants
•
High costs associated with servicing membership and convening meetings for decision
making
•
Limited capacity to access traditional lands and exercise native title rights
•
The complex and frequently overlapping jurisdictional legal and policy frameworks
governing native title, charitable trusts, land management and future acts
•
Constantly changing policy environments and a lack of appropriate consultation
•
Low levels of youth engagement
•
Lack of long-term strategies for managing material and intangible cultural heritage
•
Lack of knowledge and skills for identifying and developing culturally-appropriate
businesses and employment opportunities
PBC Funding timeline
2001
Nineteenth Report of the Parliamentary Joint Committee on Native Title and the
Aboriginal and Torres Strait Islander Land Fund. Recommended that PBCs ‘receive
adequate funding to perform their statutory functions and that they receive
appropriate training to meet their statutory duties’.
2007
PBCs request direct government funding, stating that “government should not rely
upon third party funding/fees-for-service provisions as an alternative to adequate
government funding” (Bauman & Tran, 2007: xiii)
2007
FaHCSIA ‘Guidelines for the support of PBCs’ provides for ‘emergency’ funding for
basic administrative assistance through NTRBs and NTSPs (option 2 of the Rashid
report).
2012
Aboriginal and Torres Strait Islander Social Justice Commissioner formally
recommends that “the Australian Government provides Prescribed Bodies Corporate
with adequate funding levels to meet their administrative, legal and financial
functions.” 2012, p.14
2014
Report on the Native Title Organisations Review concludes that government should:
provide a base level of support to RNTBCs that are unable to meet their compliance
and governance obligations under the Act, however any ongoing direct government
support should be limited. RNTBC resource needs should also be recognised in
the settlements reached with state and territory governments.
“Whoever invented PBCs didn’t do their homework”
“Prescribing such a corporate sector without concomitant
funding and other support is a policy failure”
(Source: Bauman, Strelein & Weir 2013: 1)
PBCs are caught between state and federal government for
support.
Native title does not give commercial rights to land
“The habitual (as well as discriminatory and unnecessary)
configuration of native title rights and interests in
determinations as personal, ceremonial and communal but
not commercial is problematic.This dichotomising of culture
and commerce limits the benefits of native title in ways that
do not reflect reality.” (Source: Bauman, Strelein & Weir
2013: 8)
PBC Strengths: why are PBCs important?
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•
•
•
•
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•
Key aspirations are to address the disadvantage
faced by their communities
PBCs who do have the capacity are leveraging
unique, culturally appropriate and community driven
outcomes for their communities
Self government for Indigenous nations
Traditional knowledge can be employed in
innovative ways
20% of the Australian land mass – and growing
Volunteer hours – potential capacity of PBCs
Alignment with broader government priorities –
Closing the Gap
Communities being in control
The recent Social Justice and Native Title Report 2013 outlined the need for
Aboriginal and Torres Strait Islander communities being in control,
employing principles drawn from the United Declaration on the Rights of
Indigenous People (UNDRIP) which include:
•
self-determination
•
participation in decision-making, underpinned by the concepts of
free, prior and informed consent and good faith
•
respect for and protection of culture
•
equality and non-discrimination (p.108)
The report quotes Professor Megan Davis:
“governments cannot truly tackle disadvantage or close the gap
without allowing communities more responsibility in the decisions that
affect their lives and this includes service delivery.” (p.108)
Future for PBCs?
•
•
•
•
‘de facto’ form of self governance
PBCs are critical features in the landscape of contemporary
Indigenous governance
Assertion of rights and authority
How to achieve adequate resourcing for PBCs:
• renegotiating settlements with state and terrtiory
governments
• further political lobbying of the commonwealth government;
• innovative models for income generation
• philanthropic sectors
• models for community grants based organisations
• collective and regional action
• looking at international examples of income generation of
collective title
• seeking to challenge the lack of commercial rights
transferred with native title rights.
“Indeed, more than a misplaced ignorance it [a narrow
interpretation of RNTBCs] is a denial of the place of
Indigenous peoples in the Australian state which was
forged by the recognition of native title in Mabo: as first
peoples, as law makers and as landowners. Native title is
changing the legal and political fabric of the country, and
the native title sector has been established to recognise
something of great value to current and future
generations. Embracing this new order is still a work in
progress as governments come to terms with the need to
adapt old ways and accommodate the existence of
native title, to make reparation for past wrongs and to
forge new partnerships that will be sustainable into the
future.”
(Source: Bauman, Strelein & Weir 2013: 1)
Further reading
•
•
PBC website:
http://nativetitle.org.au/research.html
Recent publication: Bauman, T, Strelein, LM
and Weir, JK, Living with native title: the
experiences of registered native title
corporations, AIATSIS Research
Publication, AIATSIS, Canberra, 2013.