The Native Title (Prescribed Bodies Corporate) Amendment Regulations 2011 (Cth) (‘the Amendment Regulations’) are made under the Native Title Act 1993 (Cth) and implement a number of recommendations concerning the structures and processes of Prescribed Bodies Corporate (PBC). These recommendations originate from a review of the native title system conducted in 2005 and can be found in the Structures and Processes of Prescribed Bodies Corporate Report (the 'PBC Report').
The Amendment Regulations are designed to improve the effectiveness of the post-determination management of native title by PBCs. The Amendment Regulations will amend the existing regulations to:
- improve the flexibility of the PBC governance regime by:
- enable an existing PBC to be determined as a PBC for subsequent determinations of native title;
- remove the requirement that all members of a PBC must also be the native title holders (where agreed by the native title holders);
- clarify that standing authorisations in relation to particular activities of a PBC need only be issued once; and
- subject to certain exceptions, including native title holder consent, allow PBCs to substitute their own consultation requirements in relation to native title decisions rather than follow the requirements in the regulations;
- provide for the transfer of PBC functions in circumstances where there has been failure to nominate a PBC, where a liquidator is appointed, or where a PBC wishes this to occur; and
- enable PBCs to charge a fee for costs incurred in providing certain services and set out a procedure for review by the Registrar of Indigenous Corporations of a decision by a PBC to charge such a fee.
The Amendment Regulations were made following a comprehensive public consultation process conducted in 2010. In addition to some minor technical and other corrections, changes made to the Amendment Regulations as a result of the consultations include:
- a mandatory requirement to consult and obtain the consent of native title holders in relation to decisions;
- affecting native title when an Indigenous Land Use Agreement or a Right To Negotiate agreement is entered into;
- allowing non-common law holders to become members of the PBC, and
- consenting to one or more consultation processes in the PBC’s constitution.
- requiring the Registrar of Indigenous Corporations to give written reasons for an opinion about a fee charged by a PBC for costs incurred in providing certain services.
- allowing the Registrar of Indigenous Corporations to seek information from the applicant and the PBC when reconsidering an opinion or decision not to give an opinion (about a fee charged by a PBC) and consequential changes to timeframes for the giving of an opinion.