Native Title Corporations: New legal entities

Wednesday, 4 June 2014
Angus Frith

When native title is recognised, the court must determine a prescribed body corporate (PBC) to manage it, giving the native title group legal personality under Australian law. As a group, they can now make contracts, hold interests in land and better engage with the broader economy. In addition, PBCs must consult with the group and obtain its consent before taking actions that affect native title. If PBCs are to manage native title effectively and achieve other benefits for the group, they must operate in both the Australian and the Aboriginal or Torres Strait Islander legal systems.

The paper considers theoretical approaches to PBCs engaging with two laws. Specifically, the idea that native title recognition occurs in a ‘recognition space’ is applied to PBCs and expanded by reference to conceptions arising in legal and postcolonial theory. The paper argues that PBCs should be seen as new political entities arising in a third space between two systems of law. It then considers several consequences of this approach, with a view to enabling PBCs, shaped and influenced by both laws, to operate more effectively and in a manner more controlled by the native title group.