Common mistakes in PBC design and operation
Pdf of Powerpoint: Dr David Martin: Common mistakes in PBC design and operation: anthropological insights
Short Paper on consultation: Paper Substantive Consultation
The Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) has conducted research on PBCs over many years. Information on AIATSIS’ PBC/RNTBC research can be found on the AIATSIS website. As discussed on that page, surveys of PBCs were conducted in 2017 and again in 2019, and there are some research reports and information sheets which would be of interest to anthropologists.
For instance, there is a downloadable report which outlines the rationale, methods, results, and implications of the 2019 survey of Registered Native Title Bodies Corporate (RNTBCs) (published February 2021). There are also a number of short papers/fact sheets arising from the 2017 PBC survey; for example, regarding the range of decision-making and dispute management rules, set out in RNTBC constitutions.
In both instances, the focus appeared to be on rules related to the internal (corporate) governance of RNTBCs themselves, but did not include the governance of the functions they performed by the RNTBCs, such as ascertaining the views of native title holders regarding dealings in the native title (in accordance with the PBC Regulations), or disputation amongst the native title holders concerning who rightfully ‘speaks for’ particular locales or areas within the determined lands and waters concerned.
AIATSIS also has a special-purpose website for PBCs (nativetitle.org.au) which contains an overview of the Native Title Act, and of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act) and the role that the Office of the Registrar of Indigenous Corporations (ORIC) plays in administering the CATSI Act. It also outlines the process of a native title claimant application and the Prescribed Body Corporate (PBC) regulations under the NTA which set out the functions of a PBC and the principles by which decisions are to be made by native title holders regarding the management of their native title.
The AIATSIS nativetitle.org.au website also has an extensive list of materials relevant to PBCs on its ‘Resources and publications‘ tab.
The ORIC website has a specific section dealing with the intersection between the CATSI Act and native title, including a discussion of the PBC Regulations. It also has a downloadable paper entitled Writing good governance rules for PBCs and RNTBCs, which however focuses almost exclusively on rules for the internal governance of the PBC/RNTBC, with little detail directly relevant to decision-making concerning governance of the native title.
Below are downloadable files relevant to PBC design and management. The first is a paper by David Martin Framework for working with native title groups in establishing and managing socially and culturally sustainable PBCs. Yamatji Marlpa Aboriginal Corporation, for whom it was originally prepared, have given permission for an edited version of this paper to be available on the CNTA website.
There is also a Fact Sheet published in 2012 by the Aurora Foundation which very usefully sets out the legal contexts in which PBCs/RNTBCs make decisions, and separates those relating to the internal governance of the PBC on the one hand, and on the other the governance of managing and making decisions concerning native title. This Fact Sheet does not appear to now be available on the Foundation’s website, so CNTA has uploaded it to this site.
Presentations from a workshop held in Alice Springs, 27-28 May, 2021.
This workshop focussed on the governance of compensation and other such funds held in trust for Indigenous groups, not on the internal governance of RNTBCs and other Trustee corporations. Its objective is to improve the practice of lawyers, anthropologists, and other specialists in working with Native Title Holders in this significant aspect of the post-determination arena. Presentations are being progressively uploaded to this site.
Prescribed Bodies Corporate are established under the ‘CATSI’ Act, comprising over 600 pages focusing almost exclusively on what the Act terms the ‘internal governance’ of the corporations themselves. PBCs’ functions are set out in the current PBC Regulations and include:
Regulation 7(c) and 7(d) set out the identical functions for Agent PBCs. How this direction is to be implemented is a matter for each Trust. That is, while the principles and mechanisms by which internal governance of the PBC is to be conducted are prescribed in detail in the CATSI Act, the governance principles by which the common law holders are to direct their PBC to apply the money held in trust, and how the PBC is to engage with the native title holder beneficiaries in determining how the trust funds are to be utilised, are left essentially unspecified.
Even where attention has been given to the objectives of a Trust and these have been negotiated with the Indigenous beneficiaries, as is the case with what are represented as best-practice mining agreements, it appears to be common that internal structures of the broader beneficiary group below the level of language-named ‘tribes’ or ‘nations’ are not reflected in Agreements and Trust Deeds or other corporate instruments which bear on how benefits from the Trust are to be accessed. Yet, Native Title claims themselves illustrate that the common law holders for a given claim or determination, whether described as a language-named group or set of such groups, a community, or some other collectivising label, are highly complex in structure and are not infrequently beset by endemic disputation amongst constituent local groups. This is reflected in much of the politicking post determination in the internal governance of RNTBCs, and there is no reason to suppose that this conflict does not also impact on the way access to Trust funds is established.
This workshop focussed on this latter governance arena, not on the internal governance of RNTBCs and other Trustee corporations. Its objective is to draw on anthropological, legal, and community development thinking to improve the practice of specialists working with Native Title Holders in this significant but typically neglected aspect of the post-determination arena.
CLC has been working with Warlpiri traditional owners and educators since 2001 to establish the WETT – an innovative trust established to invest mining royalties from the Tanami gold mine in education and training programs. Beneficiaries are four Warlpiri communities of Lajamanu, Nyirrpi, Yuendumu and Willowra.
Staff from the CLC’s Community Development Unit and members of the WETT’s Warlpiri advisory committee will discuss their achievements to date, how they found a workable governance structure and the challenges faced.
Deciphering complex community, organisational and operational governance domains may provide an answer. The presentation will focus on Trustee/beneficiary tensions and solutions.
To be uploaded