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)

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 is a PBC?

• 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.

What do PBCs have to do?

Determinations and Native Title Prescribed Bodies Corporate As at 30 June 2013Source: National Native Title Tribunal

Classification of PBCs under the CATSI ActHas at least two of the below factors in a financial year:

Small Medium Large

Consolidated gross operating income

<$100,000 $100,000-$5 million

>$5 million

Consolidated gross assets

<$100,000 $100,000-$2.5 million

>$2.5 million

Employees <5 5-24 >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 ClaimsAs at 31 December 2013: 300 claims nationallySource: 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 aspirationsAIATSIS 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 challengesAIATSIS 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

2001Nineteenth 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’.2007PBCs 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) 2007FaHCSIA ‘Guidelines for the support of PBCs’ provides for ‘emergency’ funding for basic administrative assistance through NTRBs and NTSPs (option 2 of the Rashid report).2012Aboriginal 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 2014Report 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.

PBC Funding timeline

“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?

• 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

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)

Communities being in control

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.