Who is who in a PBC. The Kimberley Land Council welcomes you to the first issue of PBC Essentials...

Transcription

1 Who is who in a PBC Issue #1 June 2017 PBC Essentials he Kimberley Land Council welcomes you to the first issue of PBC Essentials... his newspaper will be a quarterly edition to provide information to PBCs. Each edition will have a different theme and will address issues common to PBCs in the Kimberley. he first edition has been put together as a summary of the roles and responsibilities of PBCs and the functions they are required to carry out. KLC PBC Essentials - Issue 1 - June PO Box 2145 Broome WA 6725 Ph: (08) Fax: (08)

2 What is a PBC? Who Might be in Contact with a PBC? A prescribed body corporate (PBC) is a court appointed Aboriginal corporation that holds native title rights and interests either on trust or as an agent for the Native itle Holders. A PBC becomes a registered native title body corporate (RNBC) when its details are entered onto the National Native itle Register. PBCs have additional rights and responsibilities that ordinary Aboriginal do not have because they look after Native itle rights and interests. PBCs have a significant role to play in the management of land and water in Australia. With the increasing number of native title determinations, PBCs have emerged as a key element of the native title system, with 165 currently registered. PBCs provide the interface between traditional laws and customs of Indigenous Australians and the land ownership and management systems of the wider Australian Community. What is the Role of the PBC? he main role of the PBC is to look after the native title rights and interests of Native itle Holders. PBCs may have other roles and functions that are set out in their Rule Books. How a PBC acts depends on its objectives and whether it acts as an agent for the Native itle Holders. rustee: PBC directors can make decisions on the best interests of the members (except native title decisions ) Agent: PBC directors must seek instructions from the native title holders for each decision it makes. In the Kimberley region, all PBCs hold native title rights and interests on trust for Native itle Holders. PBCs are the go-between for native title holders when they have to deal with the non indigenous legal system. A third party wishing to conduct any proposed activity on Native itle Determined land may contact the PBC. hese can include parties such as: Mining & exploration companies National Native itle ribunal Government Departments Pastoral & Agricultural Companies ourism Companies Universities and researchers hese parties will generally notify the PBC of their intentions/request and then it is the role of the PBC directors to make a decision for the benefit of the members and native title holders, and make sure that they speak to the native title holders for the area that the request affects. If the proposed activity or development is a future act (according to the NA), then the third party will have to engage more formally with the PBC. What they are required to do depends on what the NA says. For example, they may have to notify the PBC, negotiate an agreement or obtain consent. Key definitions Native title determination: A decision by the Federal Court that native title rights and interests either exist, or do not exist in relation to an area. Native title holders: People that have been determined by the Federal Court to hold native title rights and interests. Native itle Rights and Interests: he communal, group or individual rights and interests held by a group of native title holders in relation to land or water. For example, the right to hunt, the right to perform ceremonies, the right to camp. Future Act: A proposed activity on land and/or waters that may affect native title rights and interests. 2 KLC PBC Essentials - Issue 1 - June 2017 KLC PBC Essentials - Issue 1 - June

3 What Governs a PBC? PBCs are special types of Aboriginal and orres Strait Islander, created especially to look after the native title rights and interests of the native title holders. Because of this, PBCs have additional rights and obligations above ordinary Aboriginal corporations. here are a number of different laws and bodies that govern PBCs. hese laws set out how the PBC has to run and what happens to the PBC (including the PBC directors) if they don t comply with these laws. Native itle Act 1993 (Aboriginal & orres Strait islander) Act 2006 he Native itle Act (NA) is the law that gives PBCs the power to look after Native itle rights. PBCs have obligations under the NA such as the requirement to consult with and obtain consent of the Native Itle Holders in relation to any decisions which surrender (Give up your Native itle right and interests) or affect Native itle Rights and interests. he CASI Act allows Aboriginal and orres Strait Islander groups to form corporations. that have been determined as RNBC s by the federal court are required to register under the CASI Act. he CASI sets out how Aboriginal must run and what happens if they do the wrong things. hese regulations set out how PBCs operate. he regulations set out a consultation process for when and how the PBC must consult and how they prove that they have the consent of the Native itle Holders. Native itle (PBC) Regulations 1999 O RIC is an independent statutory body who administers the CASI Act ( Aboriginal & orres Strait Islander) Act ORIC supports and regulates Aboriginal. It is there to make sure that Aboriginal comply with the law. it has the power to step in if a is not complying with the law. Registrar of Indigenous (ORIC) Rule Book Cultural Governance Each PBC has their own rule book which governs how the corporation must be run. Having a rule book that can be clearly followed and which works well for a corporation is essential to maintaining good governance. All rulebooks are publicly avalaible at Common law is law made by the Courts/Judges. For example, over time the Courts have made lots of decisions about what corporation directors can and cannot do. hey have also made decisions interpreting the NA, and deciding when PBCs have complied with the NA, and when they have not. Each group of Native itle Holders has a unique set of cultural rules and law. It is important that each PBC has a culturally appropriate structure that works for Native itle Holders now and into the future. Check out the following websites for further information on the governing of PBC s: Common Law 4 KLC PBC Essentials - Issue 1 - June 2017 KLC PBC Essentials - Issue 1 - June

4 Key players of a PBC A PBC has many key players, including the Native itle Holders, PBC Members, PBC Directors and Office Bearers. Each one has its own role to play in the proper functioning, governance and decision making of the PBC. Once a Native itle Group 6 has its Native itle rights recognised by the Federal Court the PBC is then established. he Native itle Holders can then apply to become members of the PBC. he directors of the PBC who make up the governing body are generally selected from the PBC membership. his diagram shows the general structure of Kimberley PBCs. Sometimes PBCs will have a slightly different structure, for example a PBC could have independent directors that are not native title holders or members of the PBC. It is important to remember that the structure of the PBC must comply with the NA, the PBC Regulations and the CASI Act. WHO HOW O BECOME ROLE/RESPONSIBILIIES Native itle Holders Members Directors Office Bearers For example - contact person, secretary, Chairperson You have to be a part of a native title group that has had a positive determination of native title. Depends on the criteria in the PBC s Rule Book. Generally have to be over 18 and a native title holder. Native title holders of the PBC must apply to become members of the PBC, you are not automatically a member if you are a Native itle Holder. Sometimes membership will be limited to representatives (rather than all) native title holders e.g. You cannot become a director of a PBC if you are disqualified under the CASI Act Are elected by the members (and are usually members themselves) he process and criteria for election is set out in the PBC s rule book (usually by resolution at a general meeting) How man anf for how long directors are appointed for will vary (e.g. some rule books provide for rotating boards). Rule books may also include formal cultural advisors Make Native itle decisions about things that affect native title rights and interests (as required by the NA and PBC Regulations). Attend general meetings Elect directors Put forward resolutions Make decisions about how to run the PBC Represent the members Make decisions about how to run the PBC. Consult with and obtain the consent of Native itle Holders for Native itle decisions Carry out their directors duties in accordance with obligations under their rule book, the CASI Act and the common law (e.g. directors duties) Have responsibilities to members and Native itle Holders What office bearers a PBC has Depends on their role as set out in the is set out in the PBC Rulebook. Rule Book and CASI Act. he process for appointment is Contact person for small and medium set out in the Rule book PBCs. Secretary for large PBCs. he Contact person is a central For further information check out contact point for the PBC. hey have to be contactable and be able to contact and communicate with all of the directors. KLC PBC Essentials - Issue 1 - June 2017 KLC PBC Essentials - Issue 1 - June

5 PBC Decision Making Native itle Decision Making he decision making process within a Corporation can vary between PBCs but most follow a similar structure and comply with all relevant laws. PBCs are required by law to follow certain steps when making a decision depending on what type of a decision it is. Court recognises native rights and interests Native title Holders Directors must get the consent from the Native itle holders when making decisions that affect Native title rights and interests Members elect Directors to represent them 1. Decisions affecting Native itle need to be brought back to the native title holders to get their consent. 2. Decisions to do with the day to day running of a PBC such as the powers of the CEO, the way it spends its money, can generally be made by the directors of the PBC. Directors report back to the members PBC is set up to look after the native title rights and interests PBC Members Native title holders must apply to become a member of the PBC PBCs hold native title rights and interests either on trust or act as an agent for native title holders. One of the most important functions of a PBC is to make sure that native title decisions are made properly. What is a native title decision? he NA and the PBC Regulations set out what a native title decision is this is a decision to do anything that would affect native title rights and interests in relation to the land or waters of the native title holders. Some examples of native title decisions are: agreeing to surrender some of your native title rights and interests allowing a mining company to commence mining operations on your native title lands agreeing to a pastoral lease being granted over your native title lands entering into a joint management agreement with the State government Special processes apply to native title decisions PBC directors and/or members do not have the authority to make native title decisions. PBC directors can only authorise native title decisions if they have consulted with and obtained the consent of the affected native title holders. he PBC directors have an important duty not to enter into any agreement or proposal with third parties, until they have the consent of the affected native title holders. If they do, they would be in breach of the NA, the PBC Regulations and their common law duties as directors. It is the job of the PBC directors to make sure that the right people are speaking for country and that the affected native title holders consent to any native title decisions. Who the affected native title holders are, will depend on what type of decision it is, and how the native title holders for a particular PBC usually make decisions. For example, some decisions may only affect a particular family group or clan of native title holders for a particular PBC or it may affect all native title holders. he affected native title holders have to authorise the native title decision either: in accordance with their traditional decision making process (if they have one for those kind of decisions) or through an agreed and adopted decision making process if there is no traditional decision making process of that kind. he PBC Directors can only sign off on an agreement that affects native title once the affected native title holders for a particular decision are identified, consulted with and their consent to that decision is given. 8 KLC PBC Essentials - Issue 1 - June 2017 KLC PBC Essentials - Issue 1 - June

6 here are currently 13 registered PBCs in the Kimberley all at various stages of development his map shows who they are and which Native itle holders they look after. 10 KLC PBC Essentials - Issue 1 - June 2017 KLC PBC Essentials - Issue 1 - June

7 KLC Update he KLC recognises that the role of Native itle Representative Bodies is changing with the increase in the number of PBCs as more and more Native itle claims are determined. In theory, the PBC is supposed to take over responsibility for all the functions and activities that the Native itle Representative Body was doing on behalf of the claim group. However, in reality most PBCs cannot carry out those functions all by themselves when they first start out due to limited capacity and resourcing. he KLC provides support to Kimberley native title holders and PBCs in the form of: Meeting support Administrative assistance Financial support Governance Skills training Legal representation If you have any questions regarding your PBC, please contact the KLC. Chelsea Stanway and Alex Romano are the Legal Officers who work with the PBCs throughout the region. his purpose of this publication is to provide general information to PBCS. It is not legal advice. PBCs that have specific questions about their PBC should contact the Kimberley Land Council for assistance and legal advice specific to their PBC. Key dates to remember West Kimberley PBC Governance raining: 3rd & 4th July 2017, Broome Central Kimberley PBC Governance raining: 6th & 7th July 2017, Fitzroy Crossing East Kimberley PBC Governance raining: 10th & 11th July 2017, Kununurra ICN KLC PBC Essentials - Issue 1 - June 2017