Native Title (Prescribed Bodies Corporate) Regulations 1999

The primary subjects are prescribed bodies corporate and registered native title bodies corporate. A PBC is either an Aboriginal and Torres Strait Islander corporation prescribed by reg 4 or the ILSC (reg 3(1)). Once determined under s 56 (trustee) or s 57 (agent) of the Act, it becomes an RNTBC if it is also registered under the CATSI Act.

Common law holders—the Aboriginal and Torres Strait Islander persons in whom native title is found to exist—are the ultimate beneficiaries and decision-makers. They must be consulted and must consent to high-level and most low-level native title decisions. Where a native title determination identifies classes of holders, consultation is limited to the classes affected by the particular decision (regs 8(3)(a), 8B(4)).

The Federal Court is the gatekeeper for initial determinations and all subsequent changes to the identity or character of the PBC (regs 11–17). The Court’s powers are not merely mechanical; it may make ancillary orders to give effect to the common law holders’ wishes or to smooth transitions (e.g. reg 12(2)(b)).

The Registrar of Aboriginal and Torres Strait Islander Corporations receives certificates (reg 9 note, reg 10(4)) and performs functions under the CATSI Regulations. The Registrar of the Federal Court must give the ILSC notice before certain determinations (reg 11(2)).

Third parties—miners, developers, governments, and others—interact with RNTBCs when seeking ILUAs, future act consents, or exercising procedural rights. They are indirectly affected by the fee-charging regime in Part 4 and by the prima-facie-evidence status of certificates.

The Indigenous Land and Sea Corporation occupies a unique position: it may be imposed as an interim agent PBC (reg 11) and is the default replacement in liquidation scenarios.

Liquidators of insolvent PBCs or RNTBCs are placed under strict 14-day timelines to apply for replacement (regs 14 and 17).

Finally, the Secretary of the Department receives copies of Registrar opinions on fee disputes (regs 22(2) and 25(2)), reflecting ongoing Commonwealth oversight.

Duties of PBCs/RNTBCs

• Consultation and consent: Before any native title decision, consult and obtain consent in accordance with traditional law or an agreed process (reg 8(1), (3)–(4)). For low-level decisions, the constitution may provide a standing consultation mechanism (reg 8A). Compensation applications attract their own process (reg 8B). Failure to comply renders the resulting agreement void to the extent it gives effect to the decision (reg 8(6)), although ILUAs under ss 24EB and 24EBA are protected.
• Certificate production: Prepare and execute a detailed certificate after every relevant decision (reg 9).
• Record-keeping and access: Provide copies of certificates to entitled persons (reg 10).
• Financial stewardship: Hold compensation in trust, invest or apply it only as directed (regs 6(1)(b)–(c), 7(1)(c)–(d)).
• General functions: Manage rights and interests, act as agent, consult outsiders, enter agreements, exercise procedural rights, and accept statutory notices (regs 6(2) and 7(2)).

Rights of common law holders

• To have their traditional decision-making processes respected (regs 8(3), 8B(5)).
• To agree or adopt alternative processes (regs 8(4), 8B(6)).
• To give, revoke, or condition “standing instructions” approvals for low-level or certain agreement decisions (reg 8(8)–(9)).
• To apply to the Federal Court to replace a PBC or change from trustee to agent or vice versa (regs 12, 13, 15, 16).
• To receive copies of certificates and to be consulted on compensation applications.

Rights and obligations in fee disputes (Part 4)
An RNTBC may charge third parties for listed future-act and procedural-rights activities (reg 20). The charged person has a right to a Registrar opinion, reconsideration, and Administrative Review Tribunal review. The RNTBC must not demand payment while review rights subsist (reg 26(1)).

ILSC-specific rights: To receive notice before being determined as agent PBC (reg 11(2)) and to be nominated as replacement in liquidation.

The Regulations themselves contain no offence provisions or civil penalty units. Enforcement is indirect.

Breach of consultation obligations renders the underlying agreement “of no effect to the extent that it applies to the decision” (reg 8(6)). This gives common law holders a powerful contractual and equitable lever to set aside agreements. Certificates provide prima-facie evidence of compliance (reg 9(6)–(7)), reversing the evidential burden and protecting third parties who rely on them.

Failure to produce or distribute certificates may ground administrative action by the Registrar of Aboriginal and Torres Strait Islander Corporations under the CATSI Act, including compliance notices or cancellation of registration.

In fee disputes, the Registrar’s opinion is not binding but carries significant practical weight; non-compliance with an opinion that a fee is unauthorised triggers the statutory obligation under s 60AC(3) of the Act to withdraw the charge. Continued demands for payment after a negative opinion could expose the RNTBC to actions for recovery, breach of statutory duty, or judicial review.

Liquidators who fail to apply for replacement within 14 days (regs 14(1) and 17(1)) risk contempt or personal liability for breach of the statutory duty imposed directly on them.

The ultimate sanction is Federal Court oversight. The Court’s broad powers to make “any orders necessary or appropriate” on replacement applications (regs 12(2)(b), 13(2)(b), 15(2)(b), 16(2)(b)) allow it to fashion remedies including removal of directors, appointment of receivers, or directions to the PBC.

The Regulations are subordinate legislation made under the Act and must be read with it. Key cross-references include:

• Native Title Act 1993: Sections 56–60 (determination of prescribed bodies), s 59A (subsequent determinations), Part 2 Division 3 (future acts and ILUAs), s 60AB–60AC (fees and Registrar opinions), and the compensation provisions in s 61.

• Corporations (Aboriginal and Torres Strait Islander) Act 2006: Supplies the corporate vehicle, the Indigeneity test (s 29-5), execution rules for certificates (s 99-5), and the regulatory oversight functions of the Registrar (cross-referenced in reg 9 note and reg 10(4)).

• Privacy Act 1988: Expressly authorises collection of personal information for certificate preparation (reg 9(5)) and clarifies that the Registrar is entitled to certificates (reg 10(4)).

• Administrative Review Tribunal (Consequential and Transitional Provisions) Act 2024: Updated the review forum from the former Administrative Appeals Tribunal to the new Administrative Review Tribunal (regs 25(4) and 26(1)(b)).

The Regulations sit alongside the Native Title (Indigenous Land Use Agreements) Regulations 1999 and various State and Territory native title procedures. Where an ILUA is involved, the protective carve-out in reg 8(7) ensures that technical consultation defects do not invalidate registered ILUAs, preserving certainty for developers.

Constitutionally, the regime relies on the race power (s 51(xxvi)) and the corporations power. The emphasis on traditional decision-making processes reflects the Act’s recognition of Aboriginal and Torres Strait Islander laws and customs as the source of native title (Mabo (No 2) principles embedded in s 223 of the Act).

The most significant recent amendments were made by the Registered Native Title Bodies Corporate Legislation Amendment Regulations 2021. These inserted regs 8A, 8B and 9 in their current form, expanded the definition of “native title decision”, refined the certificate regime, and added the compensation-application consultation rules.

The changes responded to two practical problems. First, many PBCs reported that the pre-2021 consultation requirements were overly rigid for routine “low level” decisions, leading to unnecessary cost and delay. The introduction of constitutional consultation processes (reg 8A) and standing-instructions approvals (reg 8(8)–(9)) allows forward planning and reduces transaction friction. Second, uncertainty existed around consultation for compensation applications on extinguished areas. Regulation 8B and the associated certificate obligation clarify who must be consulted and how.

Transitional provision reg 27 applies the new rules only to decisions and applications made after commencement, preserving the validity of earlier processes. The 2021 amendments also aligned the Regulations with contemporaneous CATSI Act reforms and the move toward greater PBC self-determination.

Although the Regulations have not generated a large volume of reported litigation, several themes emerge from Federal Court native title practice.

In Western Bundjalung People v Attorney General of New South Wales [2017] FCA 992 the Court considered whether a PBC’s constitution adequately reflected the consultation processes required by the then-current regulations; the decision underscored that constitutional provisions must be drafted with reg 8 in mind. Disputes about the validity of “standing instructions” approvals have arisen in ILUA negotiations, with respondents occasionally challenging the sufficiency of evidence that conditions imposed under reg 8(8)(b) were met.

The certificate regime has been invoked in strike-out applications. Where a certificate is produced, courts have treated it as prima-facie evidence, shifting the onus to applicants to prove non-compliance with the detailed process requirements of reg 8 (see various interlocutory reasons in claims such as the Noongar settlement proceedings).

Controversy also surrounds the fee-charging provisions. Some resource companies have complained that RNTBCs charge for activities that fall outside the enumerated list in reg 20 or duplicate work already funded by native title agreements. The multi-layered review mechanism (Registrar opinion → reconsideration → Tribunal) has been criticised as slow; however, the strict timelines (21 days to object, 28 days for opinions) were deliberately inserted to provide commercial certainty.

The ILSC’s role as a “default” agent PBC has been controversial in communities that view it as an imposed external body. Litigation around the five-year initial period and automatic one-year extensions (reg 11(3)–(4)) has occurred where common law holders have been slow to nominate a replacement PBC.

Most practitioners underestimate the granularity of the “traditional decision-making process” test. Regulation 8(3) requires the PBC to determine whether such a process must be followed for the specific consent in question. If the native title determination identifies classes, only the affected classes’ traditional processes are relevant. Failure to document this inquiry can render the subsequent certificate misleading and expose the decision to collateral attack.

The distinction between “high level” and “low level” decisions is not intuitive. Admission of new members or inclusion of consultation processes in the constitution are high-level decisions even though they may appear administrative. A decision to enter an ILUA that benefits the PBC itself may qualify as a standing-instructions decision, but only if the PBC is the only grantee party (reg 3(1) definition of standing instructions decision, paragraph (c)).

Certificates are not mere formalities. Regulation 9(3) requires “details (including names) of the persons who participated”. In large claim groups this can be onerous. Privacy Act authorisation in reg 9(5) is narrowly worded; collection for any other purpose risks breach.

The 14-day notification rule in reg 18 is unforgiving. Failure to notify the existing PBC of an intention to apply for replacement can invalidate the application. Courts have struck out applications where the supporting affidavit failed to annex evidence of compliance.

In liquidation scenarios, the liquidator’s personal obligation under regs 14 and 17 is unusual and easily overlooked. A liquidator who simply treats the PBC as an ordinary company risks Federal Court censure or costs orders.

Finally, many PBC constitutions pre-date the 2021 amendments and do not contain the “relevant consultation processes” required for reg 8A or standing-instructions approvals. Amending such constitutions themselves constitutes a high-level native title decision, creating a bootstraps problem that requires careful sequencing.

Compliance begins at incorporation. When drafting a CATSI Act corporation’s constitution, expressly include the reg 4(2)(a) object, restrict membership to the classes permitted by reg 4(2)(b)–(c), insert the Indigeneity clause, and—crucially—include at least one consultation process for low-level decisions that can be approved by the common law holders.

Once determined as a PBC, map every anticipated native title decision against the reg 3(1) definition. For each class of decision, document whether a traditional decision-making process exists (preferably by anthropological report or elder affidavit). If it does, embed that process in all future resolutions. If not, obtain an initial broad resolution from the common law holders adopting a standing consultation process and, where possible, standing instructions for low-level and internal-benefit ILUAs.

Maintain a register of approvals, conditions, and revocations under reg 8(9). Before any decision, minute the precise process followed, retain attendance records, and prepare the reg 9 certificate on the same day or as soon as practicable. Execute it either under s 99-5 of the CATSI Act (two directors or director and secretary) or by CEO signature. Distribute copies promptly upon written request.

For compensation applications, separately identify the “specified native title determination(s)” and “specified persons” under reg 8B(2)–(4) before commencing consultation.

When charging fees under Part 4, maintain detailed time records linking each activity to one of the paragraphs in reg 20. Provide a clear written explanation of the charge. If a reg 21 request is received, respond promptly to Registrar requests for information; the 28-day opinion clock is unforgiving.

On replacement applications, strictly observe the 14-day pre-application notice under reg 18. Annex the nominated body’s consent to the Court application. Prepare draft transition orders addressing transfer of funds, contracts, and statutory notices.

Finally, schedule periodic governance audits. Because the Regulations cross-reference both traditional law and the corporation’s constitution, changes in either domain (new native title determination varying classes, constitutional amendment, evolution of customary law) can require fresh common-law-holder resolutions. Documenting that every decision rests on a current, compliant process is the single most effective insurance against later challenge.