Native Title Decisions under the PBC Regulations - Unshackling the constraints imposed upon PBCs

Regulation 8 of the Native Title (Prescribed Body Corporate) Regulations 1999 requires a prescribed body corporate (PBC) to consult with and obtain the consent of common law native title holders before making a decision to surrender title or do or agree to do any act which would affect the native title rights or interests of the common law native title holders (a ‘native title decision’). 

Regulation 8 aims to ensure that native title rights are not detrimentally affected by decisions made by the PBC without the full understanding and consent of the common law native title holders. But the regulation has the potential to make dealing by PBC with some low level future acts unnecessarily time consuming and costly. 

While the introduction of Regulation 8A under the 2011 amendments empowered PBCs to make native title decisions pursuant to alternative consultation processes (so long as those processes are consented to by the common law native title holders and are incorporated into the PBC’s constitution), this streamlined option does not apply to decisions to enter into ‘right to negotiate’ (RTN) agreements. 

Although consultation by the PBC and obtainment of consent of common law native title holders is justifiably mandated by the PBC Regulations in circumstances involving high level future acts, the time required and cost of complying with Regulation 8 is overly burdensome when the project is of low value. 

This paper critically examines the PBC Regulations as they apply to native title decision-making by PBCs in relation to low level future acts; discusses ways in which PBCs and their legal representatives have dealt with the constraints imposed upon them in practice; and proposes amendments to the PBC Regulations to address the issue.