There is a long and often difficult road to travel from beginning preparation for a native title claim to reaching the point where a native title group has a viable and successful PBC that is effectively implementing the collective vision of the native title holders it represents. There are different stages to the journey and it is helpful for native title groups to begin planning how they want to make the journey from the outset.
Considerations before lodging a native title claim
Even at the early stage of identifying the membership of a native title group and the extent of country over which a claim will be lodged, it is strategically important to consider how an effective and viable PBC can be established to represent all members of the native title group.
Some potential native title claim groups may not be sufficiently large in number to have the human and financial resources to establish and manage an active and effective PBC. Conversely, it may be apparent that a potentially larger regional claim would have difficulty establishing and maintaining effective governance and decision making processes because of long standing divisions and disputes between different groups in the region.
It is in a native title group’s interests to consider these and similar practical issues very early in the native title process to ensure that the membership of the PBC they establish will be able to work together to ensure that the PBC has the capacity to make and implement effective decisions to fulfil the aspirations of the native title group in the long term.
Possibilities during a native title claim
If there are additional resources available during the course of a native title claim there can be significant benefits in starting to develop plans for the future at an early stage, including by undertaking whole of country planning. This enables the members of the native title group to outline their vision, and identify the objectives and the priorities they have for their country and their families.
If comprehensive country planning is undertaken it can assist with community engagement and developing and maintaining a sense of common purpose. It can also provide information to support native title settlement negotiations, the content of Indigenous land use agreements (ILUAs), and joint management plans if they are required in the years to come. Ultimately it can provide a strategic framework and pathway for a native title group to achieve their vision for the future.
Establishing a PBC
When a native title group finally reaches its objective of achieving a successful determination of native title it must also nominate a corporation to be its PBC so that the court can make a determination confirming this at the same time, or as soon as practicable afterwards.
There are advantages in either selecting or establishing a corporation to be a PBC much earlier in the native title process, and well before the court makes a determination of native title. This can provide significantly more time for native title holders to consider and decide upon an appropriate structure and rules for their corporation.
In addition it enables the native title group to put governance and decision making processes in place and ensure these are functioning effectively. The corporation can also begin to secure resources and establish its operations so that it is up and running and functioning effectively before it formally takes on the role of a PBC. Native title holders may also want their corporation to become the primary point of contact for state and local government and other stakeholders before it becomes a PBC, so that all external parties are accustomed to dealing with the organisation when it becomes a PBC.
PBC strategic planning
A major challenge for any PBC in the long term is to meet the expectations of the native title holders it represents. This will be more easily achieved if a PBC undertakes strategic planning at an early stage with native title holders to reach broad agreement on:
- the vision, purpose and values of the organisation
- the objectives/goals and priorities
- the operational strategies to achieve these objectives.
The PBC can then develop an action plan for each objective identifying the resources required, who is responsible, and the relevant timeframe for achieving the objective. It will also need to monitor, evaluate and reassess the strategic plan periodically.
Where a PBC has aspirations to develop businesses and commercial operation the strategic plan will provide a foundation for the development of the PBC’s business plan. See also further information on commercial development opportunities on the PBC website.
Written by Austin Sweeney, consultant native title lawyer (updated 7.10.2020).
The Eastern Maar Aboriginal Corporation experience
The Eastern Maar Aboriginal Corporation manages native title rights for the Eastern Maar Peoples, which includes people who identify as Maar, Eastern Gunditjmara, Tjap Wurrung, Peek Whurrong, Kirrae Whurrung, Kuurn Kopan Noot and/or Yarro waetch (Tooram Tribe). Jamie Lowe of the Eastern Maar Aboriginal Corporation speaks about establishing a Traditional Owner Corporation (TOC) and their planning for the future. They established a country plan and a document that laid out the costing of their plans.