Decision-making in registered native title bodies corporate
Registered native title bodies corporate (RNTBCs) make decisions related to native title and corporate operations. These decisions must be made correctly and by the right people.
Native title decisions and compensation applications
An important part of an RNTBC’s job is making decisions about native title.
RNTBCs must consult with and get consent from common law holders whose native title rights and interests are affected when you want to:
- make a native title decision
- apply for compensation for acts that have affected common law holders’ native title rights and interests.
Examples of native title decisions include:
- surrendering native title rights and interests
- entering into an Indigenous Land Use Agreement (ILUA) or a right to negotiate (section 31) agreement
- allowing a person who is not a common law holder to become a member of the RNTBC
- consenting to alternative consultation processes in the RNTBC’s rule book
- other decisions affecting native title rights and interests (except for making a compensation application).
Examples of compensation decisions include:
- making a claim for compensation over land or waters covered by a determination that the RNTBC holds or manages on behalf of common law holders
- applying to revoke (cancel) or vary an existing native title determination
- investing in native title money held in trust as directed by common law holders
- exercising a right to comment for a future act.
RNTBCs make these decisions according to the wishes or directions of the common law holders who give consent for their native title rights and interests to be affected.
The Native Title (Prescribed Bodies Corporate) Regulations 1999 (PBC Regulations) set out how to consult with the common law holders.
RNTBC’s are required to prepare a certificate every time a native title decision is made and for a decision to make a compensation application. Information must be included to evidence that the RNTBC has consulted and obtained the consent from the common law holders. The Registrar can assess whether the certificate is validly issued.
The RNTBC directors are accountable to all of the common law holders for these types of decisions. This includes common law holders or native title holders who aren’t members of the RNTBC.
You might find this flowchart for making decisions about native title and compensation decisions helpful.
pdf document
Flowchart for making decisions about native title and compensation applications (325.44 KB)
Corporate and operational decisions
Like other corporations, RNTBCs make decisions about its strategic direction, budget, risk and operations.
These types of decisions include:
- matters dealing with the day-to-day operation of the RNTBC;
- rule book (internal governance rules) including dispute resolution processes
- further detail on internal governance, such as delegations, policies and procedures
- setting strategic direction
- calling and conducting directors’ meetings and general meetings
- sourcing, allocating, monitoring and reporting on RNTBC resources (human and financial)
- approving reports, such as corporate, tax, charity, funding acquittal, industry
- membership applications
- land outside the native title determination (freehold land) such as sale and usage of the land, Welcome to Country, cultural heritage inspection, joint management committee for a national park
- programs and services.
An RNTBC delivers services or runs businesses will make lots of these types of decisions.
The RNTBC’s directors make these decisions (or delegate the decision to staff) in line with:
- the CATSI Act
- the RNTBC’s rule book.
Learn more about making corporation decisions.
Trusts and native title money
The trust deed usually sets out arrangements of a trust relationship. The trust deed may include terms on how money and assets must be held, looked after by the trustee and used.
The trustee manages the money and assets held by the trust for the benefit of the beneficiaries. A common beneficiary is the RNTBC which is the body corporate that holds the native title rights and interests on trust or as agent for the common law holders.
For example, an ILUA may require that the company or government pay money to a trust for the benefit of common law holders.
Sometimes trusts handle money for agreements made before:
- native title is determined
- an RNTBC is established.
Using a separate trust may:
- provide different or stronger controls and accountability
- reduce taxes to be paid on trust benefits.
Trustees
In a trust established for native title money, the trustee is responsible for managing the fund and making decisions in line with the terms of the trust deed.
A trust deed may require a trustee to:
- consult with common law holders
- set up an advisory group to help them make decisions.
A trustee may also choose to consult the common law holders or an advisory group.
A trustee can only be replaced by following processes set out in the trust deed or by a court.
The trustee has lots of legal duties, including to:
- keep records tracking all the money and assets
- manage the trust’s tax (register the trust in the tax system, lodge trust tax returns, pay relevant tax liabilities)
- distribute benefits to the beneficiaries; ensure native title law holders are consulted as appropriate.
Trustees are accountable to the beneficiaries for all activities of the trust and its compliance and performance. They must follow terms in the trust deed.
Beneficiaries
Beneficiaries must include their share of the trust’s income in their tax return. They might need to pay tax on that income.
Decision makers and processes
Type of Decision | Nature of Decision | Decision Makers | Process for Deciding |
Native Title (High Level) | Membership eligibility – whether people or groups who are not common law holders can be eligible for corporation membership | Common law holders | Must follow both the consultation and consent process set out in the regulations, and any special rules in the rule book. The RNTBC must then act on the directions of the common law holders |
Corporate Governance | Membership model – what model of membership to adopt: direct (all inclusive) where all common law holders are eligible to become members of the corporation, or indirect (representative) where a smaller number of common law holders are appointed to represent each common law holder group | RNTBC members | Good practice is to consult common law holders because the purpose of the RNTBC is to represent them. Special resolution of members (to approve what is written in the rule book) |
Native Title (High Level) | Setting alternative consultation processes for low level native title decisions – the rule book could specify a process that differs from the process in the regulations | Common law holders | Must follow both the consultation and consent process set out in the PBC regulations and any special rules in the rule book. The RNTBC must then act on the directions of the common law holders |
Native Title (High Level) | Giving standing consent for certain native title decisions – agreeing to the RNTBC making some native title decisions without consulting common law holders for every single one | Common law holders | Must follow both the consultation and consent process set out in the PBC regulations and any special rules in the rule book. The RNTBC must then act on the directions of the common law holders |
Corporate Governance | Membership applications – whether to accept or decline a membership application | Depends on the rule book: In most cases RNTBC directors decide, noting they cannot refuse an application if the person meets the eligibility criteria, but it may vary if the RNTBC has an indirect (representative) membership model | Depends on the rule book: Directors’ resolution or if the RNTBC has an indirect (representative) membership model, the process set out in the rule book |
Corporate Governance | How to elect and appoint directors | Depends on rule book: Directors are elected by the RNTBC members at a general meeting. Common law holder groups and elders (even if they are not members) may decide which directors are nominated | The process set out in the rule book – which may accommodate traditional decision-making by common law holder groups and elders |
Corporate Governance | Board composition – whether the board is structured to: represent all common law holders and groups, reflect diversity of age, gender etc, provide independent perspectives, include particular expertise, such as legal, financial or specific to an industry | RNTBC members | Good practice is to consult with all common law holders because the purpose of the RNTBC is to represent them. Special resolution of members (to approve what is written in the rule book) |
Corporate Governance | Appointing a CEO | RNTBC directors | Directors’ decision-making process set out in the rule book |
Operational | Appointing other staff | CEO (under a delegation from the RNTBC directors) | Managers’ decision-making process in line with policies and budgets as set by the RNTBC directors |
Relating to Native Title | Make a compensation application to the Federal Court | Common law holders | Directors’ decision-making process set out in the RNTBC’s rule book – check for specific processes involving consultation |
Native Title (High Level) | Enter into an ILUA | Common law holders – noting that the RNTBC directors may sign the ILUA on behalf of the native title holders after the decision is made | Must follow both the consultation and consent process set out in the PBC regulations and any special rules in the RNTBC’s rule book |
More information
For more information about running RNTBCs, visit the RNTBC page.