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What is a Prescribed Body Corporate?

A Prescribed Body Corporate (PBC) is the first point of contact for proponents, government and other parties wanting to undertake activities on native title land.

PBCs (and Registered Native Title Bodies Corporates) represent Australia’s First Nations Traditional Owner groups. 

PBCs across Australia are being approached on multiple fronts by project proponents: wind (including offshore) and solar projects, transmission infrastructure, energy storage, green hydrogen facilities, and critical minerals mining.

Daunting for anyone, First Nations must be readily equipped to deal strategically and effectively with the opportunities and risks of potential projects. 

Most PBCs are significantly under-resourced with over 70% relying on government ‘Basic Support funding’ of around $50,000 - $80,000 per PBC per annum. This funding is limited to basic administration and compliance to help meet corporate and operational obligations. 

Many PBCs also face challenges including a lack of skills or expert knowledge. Making sure all of the different laws governing PBCs are followed can be confusing for directors, their members and common law holders.

Companies and governments must invest in PBCs capacity prior to any negotiation to ensure a level playing field.

 

 

Where can I find the relevant PBC?

There are more than 250 PBCs in Australia.

Find a PBC

 

 

 

 

 

 

 

 

 

 

 

 

 

What is the role of a PBC?

A Prescribed Body Corporate (PBC) acts as a bridge for Traditional Owners to deal with the legal system, and ensures certainty for government and other parties by providing a legal entity through which they can conduct business with Traditional Owners.

Some of the areas a PBC might be required to deal with in relation to Commonwealth, state and territory legislation may relate to:

  • land and water management (ranger groups are also able to deliver environmental services for a fee)
  • tenure issues
  • biodiversity and environmental protection
  • cultural heritage
  • land use planning.

Native title holders may decide they also wish their PBC to engage in a broader range of activities such as social and economic development for their communities.

 

 

When is a PBC set up? 

PBCs hold native title rights in the name of a group of Traditional Owners living within a determined geographic area on Australian territory. Their role is to support native title owners.

When a native title determination is made, the native title claim group can either create a new PBC, or nominate an existing corporation to manage and protect their native title rights and interests as per the Native Title Act 1993 (Cth). (If an existing corporation is nominated, it must comply with the provisions of the Native Title Act 1993 (Cth) and already be incorporated under the Corporations (Aboriginal and Torres Strait Islander Act) 2006 (CATSI Act).

If a PBC is created, it must registered with the National Native Title Tribunal.

When a PBC is officially registered, it becomes a Registered Native Title Body Corporate (RNTBC).

The National Native Title Tribunal Register records whether a PBC holds native title rights as a trustee or agent for Traditional Owners. There are some minor differences between trustee and agent PBCs, and Traditional Owners may choose the model that best suits their needs.

In the rare event a PBC is not nominated by native title holders, the Native Title Act allows for the Indigenous Land and Sea Corporation (ILSC) to be appointed by the Federal Court to operate as a default agent PBC for an initial five-year period or until such time native title holders are ready to establish a PBC.

 

 

What are the rules governing a PBC?

Legally, a PBC must meet obligations set by the First Nations native title holders, and the organisation may hold these as a trustee or agent for Traditional Owners.

Traditional Owners must decide whether the PBC will:

  • hold the native title in trust for the TOs (known as a ‘trustee PBC’) or
  • manage the native title as an agent for the TOs who own the native title (known as an ‘agent PBC’) (Native Title Act, s. 56).

PBCs must incorporate under the (CATSI Act)Like other CATSI Act corporations they must also look after their members and have general meetings and provide general and financial reports. Unlike other CATSI Act corporations, PBCs must also look after the rights and interests of common law holders, whether or not they are a member of the Registered Native Title Body Corporate (RNTBC) or live in a different place from where the RNTBC is based.

PBCs are also regulated by the Native Title Act 1993 (Cth) - the legal requirements under Commonwealth, state or territory laws that govern the area where the members are located - and PBC regulations which make sure consultation takes place with First Nations peoples and that their views are considered.

Given the requirements of the PBC Regulations, the outcome is the same — the PBC has a duty to manage the native title on behalf of the Traditional Owners, including consulting them about key decisions. It is entirely up to each group to decide whether to have a trustee or agent PBC.

The PBC legal structure also relies on agreements that compensate native title owners when matters are brought to the Federal Court. Land usage agreements provide guidelines for dealing with future native title acts and cases. Issues usually relate to land and water management, biodiversity and environmental protection, tenure issues, cultural heritage, and land use planning.

 

 

How are PBCs structured?

PBC members choose their own directors, and get access to copies of all meeting minutes, financial information, and auditor reports. They can invite other native title holders to join the PBC.

PBCs are required under the Native Title Act to consult with and obtain consent from Traditional Owners in relation to any decisions that surrender or affect native title rights and interests, including on issues impacting or proposed for their land

For certain types of native title decisions there are options for PBCs to work with common law holders — through standing instructions and alternative consultation processes. For example, common law holders can give their PBC standing instructions about decisions to enter into:

  • an Indigenous Land Use Agreement (ILUA) or
  • section 31 agreement under the Native Title Act when the PBC 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 the types of native title decisions to be made as high level or low level.

High level native title decisions are defined in the regulations as decisions to:

  • surrender native title rights and interests
  • enter into an Indigenous Land Use Agreement (ILUA) or s 31 agreement
  • allow people who are not common law native title holders to join the PBC
  • include a consultation process(es) in the PBC’s rule book.

Low level native title decisions are defined as any other decision that affects native title rights and interests (other than a decision to make a compensation application).

The PBC Regulations require a PBC to produce evidence that native title holders were consulted and provided consent in regards to native title decisions.

 

 

What is Native Title compensation?

The PBC legal structure relies on agreements that compensate native title owners when matters are brought to the Federal Court. Land usage agreements provide guidelines for dealing with future native title acts and cases. 

Native title holders can claim compensation for activities where there has been full or partial extinguishment, or impairment, diminishing or damage to their native title rights and interests under the Native Title Act 1993 (Cth) s 51(1).

Extinguishment or partial extinguishment of native title means that native title holders are no longer able to fully exercise their traditional rights in an area. Examples of acts which can extinguish native title include the grant of a freehold lease or the construction of public works that are inconsistent with the ongoing enjoyment of native title rights.

Activities may be classified as past acts, intermediate acts or future acts.

  • Past Acts - Acts before 1 January 1994 
  • Intermediate Acts - Acts occurring between 1 January 1994 and 23 December 1996
  • Future Acts - Proposals to do work on land or have plans for the land that may affect native title rights and interests, such as mining or granting pastoral leases

Compensation is payable for economic loss and cultural loss, calculated separately. A claim for compensation is made in the Federal Court.

 

 

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