What it does
The Native Title (Prescribed Bodies Corporate) Regulations 1999 (the Regulations) operationalise key aspects of the Native Title Act 1993 (Cth) (the Act) by prescribing the corporate vehicles through which native title rights and interests are held or managed. At core, the Regulations prescribe which Aboriginal and Torres Strait Islander corporations may be determined under ss 56 or 57 of the Act to be the trustee or agent of native title (reg 4). An Aboriginal and Torres Strait Islander corporation is eligible only if its constitution expressly states the purpose of becoming a registered native title body corporate, its membership is limited to native title holders or persons they have consented to, membership remains so restricted after determination, and it satisfies the Indigeneity requirement in s 29-5 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act) (reg 4(2)).
The Regulations then elaborate the functions of both trustee prescribed bodies corporate (PBCs) and agent registered native title bodies corporate (RNTBCs). Regulation 6(1) provides that a trustee PBC must manage native title rights and interests, hold compensation money in trust, invest or apply that money as directed by common law holders, consult in accordance with regs 8–8B, and perform any other directed function. Subregulation 6(1A) adds parallel functions where a trustee RNTBC makes a compensation application for an extinguished area. Regulation 7 supplies the mirror functions for agent RNTBCs that do not hold title in trust.
A central innovation is the tiered consultation and consent regime for “native title decisions”. Regulation 3(1) defines a native title decision expansively to include surrender of native title, entry into indigenous land use agreements (ILUAs) under Subdivisions B–D or right-to-negotiate agreements under Subdivision P, admission of non-common law holders as members, inclusion of consultation processes in the constitution, or any other act affecting native title rights (except compensation applications). These are divided into “high level decisions” (the first four categories) and “low level decisions”. Before making any such decision, a trustee PBC or agent RNTBC must consult and obtain consent (reg 8(1)). The process first respects any traditional decision-making process under Aboriginal or Torres Strait Islander laws and customs (reg 8(3)); if none exists, consent follows a process agreed or adopted by the relevant common law holders or identified classes (reg 8(4)).