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Mantziaris, Christos --- "Problems with Prescribed Bodies Corporate Mualgal People v Queensland" [1999] IndigLawB 61; (1999) 4(22) Indigenous Law Bulletin 21


Problems with Prescribed Bodies Corporate:

Mualgal People v Queensland

by Chrisros Mantziaris

Mualgal People v Queensland

Federal Court of Australia

Unreported

Drummond J

Interlocutory determination

24 December 1998

This note concerns an interlocutory decision in the litigation which led to the native title determination in respect of Moa Island in the Torres Strait.[1] This decision clarified the procedure for nominating ‘prescribed bodies corporate’ (‘PBCs’) to act as either the agents or trustees of successful native title claimants. It also found that some of the PBC Regulations[2] are inoperative.

The Issue

Sections 55-57 of the Native Title Act 1993 (Cth) (‘the NTA’) outline the procedure for nominating and determining whether a PBC will act as the successful claimants’ trustee or agent. The Court must, ‘at the same time’ as it determines that native title exists, determine the way in which that title is to be held. The NTA prescribes that there are two ways for successful native title claimants to hold their title. Under section 56, native title may be determined to be held on trust by a PBC nominated by the successful claimants.

If, under section 56, the title is not determined to be held on trust, section 57(2) sets out a procedure for the nomination of a PBC to fulfil certain statutory functions for the native title holders. A PBC incorporated to fulfil these functions is described by the PBC Regulations as the ‘agent’ of the native title holders.

In Mualgal, Justice Drummond had to decide whether the Court was bound, under subsection 57(2)(c), to determine which PBC to appoint where the successful claimants did not want their title to be held on trust but had not yet nominated a PBC to act as their agent. Subsection 57(2)(c) was designed as a default procedure, but it is poorly drafted. The Court cannot determine which corporation is the PBC if no corporation has been nominated.

The Simultaneous Determination Requirement

The NTA’s apparent requirement that the manner in which the title is held be determined at the same time as the determination that the title exists, is problematic. Many claimants cannot finalise the incorporation of a PBC by the time a PBC nomination is sought by the Court. The reasons for this range from the refusal of the incorporation application to internal disagreements over the constitution and membership of the corporation. A further barrier to nominating a PBC at the same time as native title is determined to exist is the fact that until the native title determination is made, it is impossible to know which claimants may become members of the corporation.

The Federal Court has responded to this problem pragmatically. In the Hopevale case,[3] Justice Beaumont took judicial notice of the incompatibility of the NTA and the incorporation requirements of the Aboriginal Councils and Association Act 1976 (Cth) (‘the ACA Act’) and granted a highly unorthodox time extension of four years for nomination of a PBC. Displeased with the situation, His Honour urged law reform. Justice Beaumont’s concerns about the incorporation requirements give force to the call for a long hard look at the ACA Act.[4]

A second strategy, suggested in the Miriuwung-Gajerrong case[5] and implemented in Mualgal, has been to interpret the requirement as an obligation upon the Court to direct that the claimants commence to implement the nomination procedures required by subsections 56(2) or 57(2) at the same time as the native title determination is made. In this way, the nomination (and determination) procedures for PBCs, whether acting as trustees or agents, need only be completed some time after the native title determination.

This is a sensible resolution of the problem. Upon one reading of the legislation, this had always been the position with respect to the nomination of PBCs acting as trustees. In any case, the NTA or the PBC Regulations should be amended to accommodate Justice Drummond’s solution.

Inoperative Regulations

In Mualgal, Justice Drummond also found that PBC Regulation 3[6] was rendered inoperative by the Native Title (Amendment) Act 1998 (‘the Amending Act’).

Regulation 3 prescribes the features of corporations formed for the purpose of NTA section 59(a). This subsection requires that a corporation nominated by native title claimants as their PBC must be incorporated under the ACA Act for the express purpose of serving as a PBC. This requirement affects the corporation’s Rules of Association and its membership composition. The Amending Act removed subsection 59(a), the very provision to which PBC Reg 3 referred.

Sometimes, such problems are resolved by robust techniques of interpretation. However, Justice Drummond found that the transitional provisions in the Amending Act disclosed the legislature’s intention as to which Regulations affected by the amendments would be saved. As the PBC Regulations were not mentioned in the transitional provisions, His Honour found that Parliament intended their demise.

As a result, PBC Regulation 3 is inoperative, though not invalid ¾ ie valid but useless. The practical upshot of the decision is that, in any current native title claim, no corporation can be nominated by the successful native title claimants as a PBC. It is uncertain whether other PBC Regulations are also affected.

It is difficult to agree with Justice Drummond that Parliament’s silence in transitional provisions amounts to a positive intention that the PBC Regulations would no longer operate. Implied legislative intention is jurisprudential mysticism. This is a simple case of poor drafting and legislative oversight. However, it is undeniable that the Court has, yet again, been embarrassed by legislative and executive under-performance.

In this instance the embarrassment can ¾ indeed must ¾ be remedied by the repeal and remaking of the PBC Regulations. Many months have elapsed since Mualgal and the redrafted PBC Regulations are yet to emerge. The delay is explained by the fact that the PBC regime, in its entirety, presents grave legal and political problems. Difficulties with the PBC Regulations are just a surface manifestation.[7]

Christos Mantziaris is a Barrister and Lecturer in the Law Program, Research School of Social Sciences (Australian National University).

EDITOR’S NOTE: This article was received April 1999. On 14 July 1999, new Native Title (PBC) Regulations 1999 were gazetted. The regulations replace the previous PBC regulations. New regulation 4, designed to overcome the problems identified in Mualgal, commences retrospectively from 30 September 1998. However, it continues to require PBCs to incorporate under the ACA Act. There is a possibility that the ACA Act will be reviewed in 2000.


[1] Mualgal People v State of Queensland [1999] FCA 157 (12 February 1999). See also Saibai People v State of Queensland [1999] FCA 158 (12 February 1999).

[2] Native Title (Prescribed Bodies Corporate) Regulations (Statutory Rules 1994, no 440 as amended by Statutory Rules 1998, no 120, gazetted on 9 June 1998).

[3] Deeral v Charlie [1998] 723 FCA (1 June 1998).

[4] Cf AITSIS, Final report - review of the Aboriginal Councils and Associations Act 1976 (Cth) (Report No. 2 vols, 1996); C Mantziaris, ‘Beyond the Aboriginal Councils and Associations Act?’[1997] IndigLawB 78; , (1997) 4(5) Indigenous Law Bulletin 10 and (1997) Indigenous Law Bulletin 4(6) 7, 16 and J Fingleton[1997] IndigLawB 88; , (1997) 4(6) Indigenous Law Bulletin 14.

[5] Ward v Western Australia [1998] 1478 FCA (24 November 1998).

[6] Op cit, above n 2.

[7] See P Sullivan, A Sacred Land, a Sovereign People, an Aboriginal Corporation: Prescribed Bodies and the Native Title Act, (NARU, Report No. 3, 1997) and C Mantziaris & D Martin, Native Title Corporations: A Legal and Anthropological Analysis of Institutional Design (NNTT, forthcoming 1999).

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