Prescribed Bodies Corporate Submission, January 2006

PRESCRIBED BODIES CORPORATE

SUBMISSION, JANUARY 2006

Aboriginal and Torres Strait Social Justice Commissioner, Tom Calma

Role of the Aboriginal and Torres Strait Islander Social Justice Commissioner

The Aboriginal and Torres Strait Islander Social Justice Commissioner under section 209 of the Native Title Act 1993 (NTA), is required to report annually to the Commonwealth Attorney-General on the operation of the NTA and its effect on the human rights of Aboriginal and Torres Strait Islander peoples. As part of this role, the Commissioner also provides submissions to government reviews and inquiries in relation to the operation and effectiveness of the native title system. It is in this capacity that the Commissioner provides the following submission in response to the consultation paper: native title, prescribed bodies corporate.

Purpose of this submission

The consultation regarding Prescribed Bodies Corporate is part of a process announced by the Attorney-General in September 2005 to reform the native title system. Other areas of reform include:

• Measures to improve the effectiveness of Native Title Representative Bodies (NTRBs)
• Reform of the respondents financial assistance program
• Technical amendments to the NTA designed to improve existing processes for native title litigation and negotiations
• Review of the claims resolution process
• Promoting more transparent practices in the resolution of native title issues between Commonwealth, State and Territory Governments.

I welcome the opportunity to make a submission on the Prescribed Bodies Corporate (PBCs). The optimum functioning of PBCs is essential to native title. Without appropriate means through which to make decisions about land, the existence of native title makes minimal appreciable difference to Aboriginal Torres Strait Islander people. Land title only goes part of the way to redress the historical injustice of land dispossession. Native title holders require the means to engage with non Indigenous interests in order to exercise all of the rights and obligations to land. Article 1 of the International Covenant on Economic Social and Cultural Rights, and Article 1 of the International Covenant on Civil and Political Rights state that ‘all peoples have the right to self determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.’1

In the interests of self determination, we need to ensure that native title returns social, cultural and economic benefits to native title holders. Well functioning PBCs are an important instrument to contribute to Indigenous self-directed development in the future.

Currently there are 56 determinations of the existence of native title with 50 PBCs representing the interests of 48 native title holder groups.2 There are 8 PBCs pending. My understanding is that very few PBCs are fully functioning.

Given the underperformance of PBCs to date, it is essential that thorough consultation occurs with native title holders. I am concerned at the timing of this submission process over the Christmas break period. My staff have attempted to speak with a number of PBCs, but have found that many of them are on leave or are not contactable. Given that PBCs are not funded in any formal sense, it is not reasonable to expect that administrative staff will be available at this time. Therefore, I urge you to ensure that you receive submissions or responses from a representative sample of PBCs before you make recommendations for any amendments to the funding and the functions of PBCs. I further recommend that the report findings from this consultation be made available to participants in this submission process for further comment if necessary.

• • Do you have any comments on the appropriateness of the statutory functions of PBCs under the Native Title Act and Native Title (Prescribed Bodies Corporate) Regulations?

The Native Title Act (NTA) and the Native Title (Prescribed Bodies Corporate) Regulations set out functions and responsibilities for both Agent and Trustee PBCs. The PBC regulations require that agents and trustees are competent to administer and implement a wide range of duties and functions and negotiate a complex framework of legal relations. In addition to the NTA and PBC regulations, additional legal and relational obligations apply. They include the rights and obligations of traditional laws and customs, (which may incorporate more than one clan group) as specified in the Federal Court’s determination; and the Aboriginal Councils and Associations Act (ACA Act). By any measure, PBC members require a clear understanding of complex processes and an ability to communicate these processes with the wider group of native title holders.

I note therefore that the statutory functions are wide ranging and complex. The overlay of the extensive ACA Act reporting requirements creates a framework that is burdensome and unwieldy. Moreover, if PBCs are under resourced to carry out these complex statutory functions, there is a risk that native title holders could be liable for debts that have resulted from the actions of the PBC principals.

…the native title holders are liable for acts of an Agent PBC in the performance of its agency. This has two important consequences: Personal assets of the holders may be at risk: This arrangement puts the assets of the native title holders at risk. Whilst the native title asset itself is protected by legislation from sale to pay the debts of the PBC the personal assets of native title holders such as cars, houses and other items of property may still be able to satisfy debts which have resulted from actions of the native title holders as principals.3

It is essential that PBCs have an opportunity to put forward their views on the existing statutory obligations. They are the most appropriate respondents to this question as they are the people who are administering these obligations. This adds weight to the argument that full and frank consultations are required with representative groups of PBC members.

• • Do you think there is a role for any other bodies to assist PBCs with their statutory functions?

Given the low numbers of fully functioning PBCs there is a role for other bodies and/or for other support mechanisms to assist PBCs, even if for an interim period until the PBC is independently operational. The role of other bodies assisting PBCs will differ depending on the requirements and the capacity of the PBC membership and the existing support personnel.

Native Title Representative Bodies can, and do provide assistance, though the level of support and assistance depends on the relationship between the native title holders and these bodies, and the resources that are available for this support. In some instances, the relationship with the entities is highly functional. In others it is not. It is important to note the NTRBs are not funded to support PBCs in their ongoing functions. In addition, it is not reasonable to assume that NTRBs will be the default support mechanisms for PBCs.

We don’t work with the Native Title Representative Body. It is the Central Land Council. Since we decided to be a pro-active PBC, and hold our own title and operate for ourselves, they cut us loose and wouldn’t offer us anything. We could have been a trustee under a trusteeship and let the CLC hold our title and act for us, but that would be a passive approach to native title and we wanted to be pro-active.4

The Office of the Registrar of Aboriginal Corporations (ORAC) has an important role in supporting and regulating PBCs. ORAC delivers training in corporate governance on a needs basis, and links corporations and associations with further training options. There may be issues of capacity in the future as the numbers of determinations increase. The Lhere Artepe PBC in Alice Springs welcomed the one day training provided by ORAC, and they have booked three day training session for their principals, though they made clear that there is an unlimited need for training.

Office of Registration of Aboriginal Corporations (ORAC) has helped provide training, but this has been one day training and it is not really enough. It is not hard to get ORAC help and it costs the PBC nothing. We have organised three day training for the new Working Executive of the PBC. This should be more intensive. Even so, it would be better if potential Working Executive members could receive training prior to election so we can better run the PBC.

We need business development training as well as governance training. We need people who are trained to know what opportunities are available. We do have business development training in the N.T.
Bruce Clifford (not connected with ORAC) and ORAC can run this – and actually they have done some of this training. It is good and it is done with English as a second language focus.

We also need training before the new Act (Corporations Aboriginal and Torres Strait Islander Bill 2005) comes in. We really need to understand this stuff because when the new Act comes in, if someone decides that an organisation is not running the way they feel it should, they can write to ORAC and after little investigation, ORAC can come in and put an administrator in. We don’t want this.5

There are a number of organisations that can potentially support PBCs. It is important that PBCs have discretion in deciding their support and resource needs. A purchaser provider model will allow PBCs to access services that meet their specific requirements. Support may be required in the following areas: legal, administrative, management, business management, asset investment, mediation, translator and interpreter services, education and training and anthropological services.

In order to ensure that PBCs have access to the best service providers, reliable monitoring and evaluation is required. For example, legal services could register and be monitored and evaluated by the Office of Indigenous Policy Coordination or another centralised government body. Such activity will ensure quality control.

• • Are you aware of any existing programs that can potentially provide education, training, funding or other support to assist PBCs with their native title responsibilities?

State territory and the Australian government currently provide a range of funded services that may be appropriate to support and buttress the programs and projects of the PBC. At the policy and planning level there is potential for high level interaction between native title bodies and government service providers through whole of government decision-making processes. Shared Responsibility Agreements (SRAs) and Regional Participation Agreements (RPAs) are ideal instruments through which to negotiate resource and support requirements for native title projects. It is important to make the distinction that SRAs will support PBC projects and support needs, though they will not directly resource the PBC entity. SRAs can be the platform upon which to provide secondary forms of support to PBCs. These supports can include customised training for native title holders, as well as assistance in developing projects on native title land. SRA negotiations are useful for assessing and agreeing to a range of collaborative projects as well as giving the respective bodies an understanding of resource requirements and resource availability.

• • What functions additional to native title, if any, are you aware of that PBCs are, or have been, asked to perform?

The Lhere Artepe PBC provides a range of services for its members that are additional to the administration of the PBC regulations, the AACA and the NTA.

Lhere Artepe’s main task is to look after the wellbeing of the Native Title members by providing programs and setting up groups. We provide a service to our people. There is a Women’s Committee and a Men’s Committee and we will be working with our old people and aged care facilities.

Lhere Artepe has set up a business enterprise aimed at getting income. (LA) has a business plan that covers all of our activities and proposed activities. We also have a role to develop cultural protocols for visitors on our land. We need to look at getting the right balance of land use and land care.

Most of our time is spent reporting and meeting the Aboriginal Councils and Associations Act (ACAA) regulations. There is a lot of administrative work like accounting and we have to make sure that we run the required meetings and that they are properly planned. There is a lot of work to account for all monies spent. These administrative tasks take up about 75 percent of our time.6

• • Are you aware of any programs that can potentially provide education, training, funding or other support to assist them with their responsibilities?

Australian schools in all states and territories are increasingly integrating Indigenous content in their curricula at all stages of schooling. Australian schools have an important role to provide the interface between Indigenous and non-Indigenous worlds. Given that Aboriginal young people and Torres Strait Islanders are added to the native title register when they are 18 years old, the school is an appropriate place to teach about the legal and regulatory framework of native title. In regional and remote locations, language maintenance and language revitalisation programs focus on land as one of the key learning areas. By adding modules of education about the functions and the obligations of PBCs, schools will not only inform young people about their (non traditional) native title rights and responsibilities, they may be providing the preliminary training ground for young people who aspire to work in these entities.

Vocational education (VET) and higher education institutions currently provide courses in corporate governance and business studies. There is a vast array of nationally accredited curricula that would be suited to training people to participate in PBCs. What is required is coordination of these government training services, and specific targeting of training where it is required. To this end, ATSI people need to be well informed about possible training programs and the ways in which these programs can assist them to proactively manage their land.

ORAC obviously has an ongoing role to support and provide training for the PBC once established.

• • Do you think the consultation mechanisms in the PBC Regulations are appropriate?

PBCs are required to consult with native title holders on proposed future acts. The regulations set out that:

• Native title decisions to be made in accordance with traditional law and custom, appropriate to the native title decision;
• If no traditional decision making process exists in relation to the native title decision, another process must be adopted and agreed to by the group;

Section 8 (6) also requires that only the group whose rights are affected by the native title decision are to provide consent. This requires identifying the relevant group and consulting with them exclusively.

Despite the clear processes outlines in the regulations for consultation, PBCs make local decisions about the extent, the nature and the terms on which they undertake consultation processes. Currently there is no requirement for the consultation procedures to be written into the PBC’s rules of the corporation. While the lack of prescriptive direction in the negotiation mechanisms creates a flexible context for communication, it can also lead to confusion and misunderstanding about to what constitutes consultation and ultimately informed consent.7 In addition, there are no regulations to ensure that native title holders have sufficient time and information in order to make informed decisions about future acts. The principles of free, prior and informed consent should apply as set out in international human rights law. These principles provide a framework for the development of consultation processes.

The principle of free, prior and informed consent is central to indigenous peoples’ exercise of their right of self-determination with respect to developments affecting their lands, territories and natural resources.8

Article 6 of the ILO Convention 169 refers to the principle of free prior and informed consent in relation to Indigenous peoples.

1. In applying the provisions of this Convention, Governments shall:
(a) Consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly;
(b) Establish means by which these peoples can freely participate, to at least the same extent as other sectors of the population, at all levels of decision-making in elective institutions and administrative and other bodies responsible for policies and programmes which concern them;
(c) Establish means for the full development of these peoples’ own institutions and initiatives, and in appropriate cases provide the resources necessary for this purpose.
2. The consultations carried out in application of this Convention shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures.9

The terms ‘free’, ‘prior’ and ‘informed’ ‘consent’ were defined in a report from the UN Permanent Forum on Indigenous Issues in may 2005.

Free: It is a general principle of law that consent is not valid if obtained through coercion or manipulation. While no legislative measure is foolproof, mechanisms need to be established to verify that consent has been freely obtained.

Prior: To be meaningful, informed consent must be sought sufficiently in advance of any authorization by the State or third parties or commencement of activities by a company that affect indigenous peoples and their lands, territories and resources.

Informed: A procedure based on the principle of free, prior and informed consent must involve consultation and participation by indigenous peoples, which includes the full and legally accurate disclosure of information concerning the proposed development in a form which is both accessible and understandable to the affected indigenous people(s)/communities regarding, inter alia:

• The nature, size and scope of the proposed development or activity;
• The duration of the development (including the construction phase) or the activity;
• The locality of areas that will be affected;
• A preliminary assessment of the likely impact of the development;
• The reasons/purpose for the development;
• Personnel likely to be involved in both construction and operational phases (including local people, research institutes, sponsors, commercial interests and partners – as possible third parties and beneficiaries) of the development process;
• Specific procedures the development or activity would entail;
• Potential risks involved (e.g. entry into sacred areas, environmental pollution, partial destruction of a significant site, disturbance of a breeding ground);
• The full implications that can realistically be foreseen (e.g. commercial, economic, environmental, cultural);
• Conditions for third-party involvement;
• Provision of misleading or false information should result in a penalty or denial of consent for the proposed development to proceed.

Consent: This involves consultation about and meaningful participation in all aspects of assessment, planning, implementation, monitoring and closure of a project. As such, consultation and meaningful participation are fundamental components of a consent process. There may also be negotiation involved to reach agreement on the proposal as a whole, certain components thereof, or conditions that may be attached to the operationalisation of the principle of free, prior and informed consent. At all times, indigenous peoples have the right to participate through their own freely chosen representatives and to identify the persons, communities or other entities that may require special measures in relation to consultation and participation. They also have the right to secure and use the services of any advisers, including legal counsel of their choice.10

In order to safeguard the principles of free, prior and informed consent, it is necessary to document the means by which appropriate consultative processes should occur. This will provide a greater level of transparency and make explicit the terms under which consultation should take place and the process for appropriate consultation. It is particularly important where there are large composite groups of native title holders with different languages, customs and interests. The consent and consultation rules should reflect the favoured forms of communication of native title holders of each PBC region. Therefore the design of the corporation rules should be flexible to accommodate the widest range of practices. They are not mandated in the ACA Act nor the proposed CATSI Bill.

Flexibility is essential, as various communication patterns are associated with different Indigenous societies. For example, in some communities, public meetings may not necessarily bring about an intended result in terms of arriving at a decision or a consensus. It is essential that the modes of decision making have the respect and the agreement of native title holders. Without this, the whole native title process is undermined.

• • If the native title holders have not requested the PBC to do so, do you think the consultation and consent processes should apply in relation to minor future acts?

The principles and practices of transparent communication apply here. Native title holders need to understand what constitutes minor future acts and potential consequences before they can give free, prior and informed consent to processes without negotiation. Native title holders need to be aware of the legally binding and potentially long term consequences of PBC decisions. PBCs should not be in a position to act unilaterally without clear direction about the circumstances under which they can act. Though not mandated, during the corporation application process, the corporation’s rules under the ACA Act can specify the circumstances under which PBCs can act without consent processes.

• • Do you think the provision made for traditional decision making processes in the PBC Regulations is appropriately flexible?

This question can only be appropriately answered through evaluation of the success or otherwise of traditional decision making processes to date, and the extent to which Indigenous people have been consulted about future acts that affect their native title interests. Notwithstanding, it would appear that the PBC regulations afford a level of flexibility in that they do not prescribe decision making processes.

In their study of Indigenous land management in Cape York, Dr P Memmott and S Mcdougall point out that PBCs may implement expedient decision making measures to respond to time pressures from external parties. This may undermine traditional decision making, and be at odds with the very traditions and customs that provided the evidence of native title to land. Regulations should specify appropriate timeframes for decision making.

Thus one of the major challenges for native title holders would appear to be maintaining the integrity of traditional decision-making processes whilst responding to the legal and administrative requirements of the PBC regime and the pressures of dealing with external parties. Accordingly, decision-making structures for PBCs need to find a balance that is capable of meeting the requirements of both traditional decision-making and the demands created by the globalised world’s need for transactional speed and efficiency. For unless the authority of those decision-making processes is respected and supported, the system of laws and customs underpinning the native title may itself be at risk.11

• • What resources do you think are essential to enable PBCs to carry out their functions and why?

The funding requirements of PBCs are twofold. In the first instance, funds are required to establish a PBC, and later they are required for the ongoing costs of employing staff to manage and administer the PBC.

Establishment costs need to be assessed on a needs basis. For example, it is possible that some PBCs will prefer to contract the services of other organisations, especially if the administrative load is not extensive, though for others there will be costs for office infrastructure, including office space and equipment. ATSIC’s 2002 research12 into the funding requirements for PBCs provides a cost analysis of the various PBC models. Basic infrastructure is important, and at this stage the majority of PBCs are not resourced with telephones as a minimum.

Essential funds are required for:

• Establishment costs of the office hardware, or funds to contract these services on a case by case basis;
• Salaries for administrative and professional personnel with responsibilities to (a) receive future act notices about interests that may impact on native title, (b) to exercise procedural rights about proposed future acts, (c) to negotiate and implement Indigenous Land Use Agreements (ILUAs), (d) to consider compensation matters, (e) to hold or invest money as directed by the common law holders, and (f) to consult with and gain the consent of relevant native title holders before making native title decisions. This needs to be funded on a case by case basis with regular opportunities to review should the work change significantly;
• An operating budget to fund telephone and other utilities; and
• Access to discretionary funding to purchase education and training services, legal services, negotiation expertise and/or facilitation, and translation and interpreting services.

There are consequences if PBCs are under funded.

Poor funding is also likely to lead to poor levels of consultation with the native title holders and substandard decision-making. This in turn increases the likelihood for dispute amongst native title holders.13

• • Are you aware of any instances in negotiated agreements or ILUAs where PBCs have been able to recover costs or charge for performance of its functions, or reimburse the NTRB for its services?

The Lhere Artepe PBC received $1.5 million from the Northern Territory government for the transfer of Larapinta, (land under native title) to the Northern Territory government.

The Lhere Artepe PBC represents the only native title claim in Australia over a municipality. In 2005 the Northern Territory government engaged in processes to compulsorily acquire a portion of land from the Lhere Artepe native title holders. In order to ensure a better outcome for native title holders, the PBC negotiated to manage the sale of the land. The PBC now uses the compensation monies to fund the salaries of the paid administrators of the PBC. This is not an ideal situation, especially if the PBC is expected to maintain its funding over time. It would be a cynical exercise if more land was acquired in future, and compensation became the means by which this PBC stayed viable.

We have used the money from the compensation from Larapinta to keep the PBC going, though by our estimation, we will be able to operate for another 18 months with the money that we have. We are going to have to find other sources of funding. We are now working closely with the government to look at opportunities to develop the land so that we can generate some income. We need this money for office expenses and salaries.14

As there is no formalised government funding for PBCs, there is considerable risk that PBCs will not meet their statutory functions and obligations, and will not be able to discharge their considerable compliance obligations of the NTA, the PBC Regulations and the ACA Act.

RNTBCs currently receive no government funding to perform their statutory functions under the NTA Act or meet their regulatory compliance obligations under the ACA Act… As a result, existing RNTBCs are, for the most part, essentially dysfunctional, have no infrastructure and are unlikely to be meeting existing regulatory compliance requirements under the ACA Act. They are accordingly vulnerable to failure and being wound up. 15

It is essential that future funding for PBCs is recurrent and adequate and that seed funding is provided to cover the considerable cost of establishing a PBC.

• • To what extent do you think native title holders are able to assist in the performance of the PBC’s functions – for example, as staff members, volunteers or members?

The extent to which native title holders can assist in the functioning of the PBC can only be assessed on a case by case basis. Consultation with existing PBCs is required to assess capacity and other issues about staffing. For example, Lhere Artepe chose not to employ local Indigenous people as PBC administrators in order to maintain independence in all processes and avoid the charge of cronyism or bias.

Obviously almost all people who have roles and responsibilities to the PBCs require extensive education and training. This is not simple legislation, and the regulations are technical and complex. As members and beneficiaries, native title holders also need education and training. The native title system will function best when there are high levels of understanding across all stakeholder groups.

Native title holders should not be required to volunteer as a means to keep PBCs functioning. Currently the lack of PBC funding means that native title holders of Lhere Artepe are volunteering time and skills to keep the entity afloat. As there is a legislative requirement for PBCs to be established where native title has been determined, PBC entities should be funded in order to meet their statutory obligations.

• • What do you think are the major difficulties for PBCs in meeting the requirements of the relevant legislation?

There are a hierarchy of impediments that prevent PBCs from meeting legislative requirements. The lack of resources is the overarching impediment, and from this cascades a range of capacity issues regarding staffing, office infrastructure, contracting expertise, capacity to provide education and training native title holders, and capacity to meet the obligations of the ACA Act.

The administrative requirements of the ACA Act are overly burdensome, meaning that resources are consumed by actions that do not progress the strategic interests of the native title group. This is of great concern as minimal existing resources are diverted from action such as the development of business enterprise programs and ILUAs. The proposed Corporations (Aboriginal and Torres Strait Islander) Bill 2005 (CATSI Bill) is also large and complex. While the CATSI Bill is designed to reduce reporting requirements for small organisations, it is complex legislation. In addition, it sets out its own regulation regime with liability for failure to comply. If the CATSI Bill is implemented, PBCs will require extensive support to meet the new requirements of this Bill.

What do you think would help PBCs to better understand and meet the requirements of the legislation?

Intensive, ongoing consultation, training and information sessions will assist PBCs and the broader native title holder community to understand the requirements of the legislation.

PBCs need to be freed from the overly complex processes of the ACA Act and potentially from the proposed CATSI Bill. They would benefit from simplified incorporation process that is specific to their purpose. To this end, the Central Land Council has proposed that prescribed bodies corporate should be accommodated under a separate Division in the CATSI Bill “rather than as proposed, a situation where PBCs are in no way distinguished from other bodies incorporated under the legislation.”16 This would be one way to simplify processes for PBCs rather than expecting that they negotiate the 565 pages of the proposed CATSI Bill.

• • Do you think the existing PBC structure meets the needs of native title holders? If not, how could the structure be amended to better suit native title holders?

There is flexibility in the ways in which the PBCs can be constituted, meaning that they can be pared back organisational structures that meet the minimum requirements of the NTA and PBC regulations, or they can be organisations that meet the wider needs of native title holders. The agent and trustee models allow a level of flexibility regarding the extent to which native title holders are active participants of the PBC membership. In this respect, the PBC structure does allow for certain options.

What is at issue here is extent to which native title holders are informed and involved in deciding and designing the structure of their representative PBC at the time of the native title determination. It is important to ensure that native title holders are extensively briefed on the potential and the consequences of different PBC structures, and the ways in which the PBC structure can reflect the priorities of traditional laws and customs.

• • Do you think any of the current requirements are unnecessary, too complex or onerous?

According to Lhere Artepe members, the PBC administrative requirements of the ACA Act are onerous. While the CATSI Bill is designed to reduce administration, the current responsibilities are considerable.

Most of our time is spent reporting and meeting the Aboriginal Councils and Associations Act regulations. There is a lot of administrative work like accounting and we have to make sure that we run the required meetings and that they are properly planned. There is a lot of work to account for all monies spent. These administrative tasks take up about 75 percent of our time.17

The focus on administration means that other opportunities for PBCs are lost. Even the process of streamlining the ACA Act obligations will take a time and administrative toll. In the short term, PBC members will have to be appraised of the new obligations under the CATSI Bill.

We also need training before the new Act (Corporations Aboriginal and Torres Strait Islander Bill 2005) comes in. we really need to understand this stuff because when the new Act comes in, if someone decides that an organisation is not running the way they feel it should, they can write into ORAC and after little investigation, ORAC can come in and put an administrator in. We don’t want this.18

Do you have any other comments or practical examples of relevance to the operation of PBCs?

The size and composition of the native title group is obviously a critical determinant in the design of a PBC.
A PBC consisting of only one ‘descent group’ comprising twenty or so people is likely to require less complexity of design than a large composite group featuring distinctions between members based on language, ceremony and/or descent. Such issues may also be relevant to the potential for dispute within the group and the consequent need for workable dispute resolution processes to be incorporated into the PBC rules. As noted below the size of the group will also affect the administrative and financial requirements of the PBC and thus its design.19

If the design of the PBCs is determined by the composition of the native title group, then there cannot be a one size fits all funding allocation. The function of each PBC should determine the resource allocation, and a flexible formula will accommodate variation in the structure, and functions and the activities of PBCs. ATSICs 2002 research into funding20 provides a breakdown of costs for the various PBC functions and composition types. This includes an outline of establishment and ongoing operational costs based on native title holder membership and dispersal over a geographic location. Importantly, this formula also includes the cost of a PBC decision. The ATSIC report provides examples for equitable and flexible funding formulae that accommodate the complexity of PBC function and structure.

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Footnotes

Last updated 21 August, 2006