A prescribed body corporate for the purposes of native title is a corporation required to be nominated by a group of Aboriginal or Torres Strait Islander people to hold and manage (as trustee) or manage (as agent) their native title rights and interests when that group has succeeded in having their native title recognised in a Federal Court determination. These corporations are known as Prescribed Bodies Corporate (PBCs) as they have prescribed characteristics under the Native Title Act 1993, including that they are incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 ("CATSI Act"). Once registered by the National Native Title Tribunal (NNTT) as required by the Native Title Act 1993, they are technically known as registered native title bodies corporate (RNTBCs). It is at this point that their statutory obligations under the Native Title Act 1993 and the Native Title (Prescribed Bodies Corporate) Regulations 1999 are triggered.
In some instances native title claim groups will create a new organisation whose sole purpose is to act as an RNTBC. Alternatively, they may nominate an existing corporation to become the RNTBC as long as it is already incorporated under the CATSI Act and complies with the provisions of the NTA. Importantly, it must have, among its purposes, the purpose of becoming an RNTBC. Where native title groups have received financial settlements, RNTBCs may become part of a corporate structure which can include charitable trusts, companies, and other Aboriginal or Torres Strait Islander corporations, each of which may perform different or similar functions to achieve the objectives of the native title group and some of which may be incorporated under the Corporations Act 2001 (Cth) (Corporations Act) which applies to the broader Australian community.
Adding further complexity to this corporate landscape are Aboriginal and Torres Strait Islander corporations that are not RNTBCs (often referred to as ‘native title corporations’ or ‘traditional owner corporations’) but which have generated native title outcomes without having a native title determination. This may have occurred in different ways, including under other legislation such as the Victorian Traditional Owner Settlement Act 2010 (Vic), through native title settlements such as the comprehensive South West Native Title Settlement for Noongar people in Western Australia, and through native title claimant groups entering into Indigenous Land Use Agreements (ILUAs).
The kind of bodies that can be determined as PBCs (and therefore registered as RNTBCs) and their functions are set out in the Native Title Act 1993 and Native Title (Prescribed Bodies Corporate) Regulations 1999.
Statutory differences between PBCs & other corporations - RNTBCs and PBCs are special types of Aboriginal and Torres Strait Islander Corporations because they are created especially for common law native title holders to hold or manage native title. - PBCs must have the words ‘registered native title body corporate’ or ‘RNTBC’ in their name, to signify this and must be registered with ORIC as required by the NTA whilst other Aboriginal and Torres Strait Islander Corporations can choose to register under other state or territory associations law or under the Corporations Act 2001 (Cth). - PBCs have obligations under the NTA such as the requirement to consult with and obtain consent from native title holders in relation to any decisions which surrender or affect native title rights and interests. - If an Aboriginal and Torres Strait Islander corporation becomes or ceases to be a PBC (RNTBC), it must notify the Office of the Registrar of Indigenous Corporationsexternal sites (ORIC) within 28 days. - PBC directors and officers are protected from a range of criminal and civil penalties for breach of duties as long as they have acted in good faith in complying with obligations under native title legislation (excluding the duty to not trade while insolvent). - PBCs are not required to value their native title rights and interests as part of their assets, for the purpose of determining their size classification under CATSI. - PBCs must ensure that their constitution is consistent with native title legislation. - The Office of the Registrar of Indigenous Corporationsexternal sites (ORIC) must not change the PBC’s constitution on the basis of an act done in good faith and with the belief that the corporation or its officers are complying with native title legislation. The Office of the Registrar of Indigenous Corporationsexternal sites (ORIC) is not able to de-register an PBC as long as it remains an PBC and manages or holds native title interests.