Land and Sea Rights

Traditional Owners have inherent rights derived from, and in connection to, their traditional land and waters. These inherent rights manifest from traditional law and custom and flow from Aboriginal and Torres Strait Islander peoples’ continuing connection, use and occupation of Country. These rights are not established or granted by the State, rather, they are inherent to First Nations peoples. As collective rights, these are held broadly by the community and upheld through their self-determined representative structures.

This is consistent with the relevant provisions of the United Nations Declaration on the Rights of Indigenous People (UNDRIP), to which Australia is a signatory. Under UNDRIP, Indigenous Peoples have the right to participate in decision-making in matters that affect their rights, through representatives chosen by themselves in accordance with their own procedures.

It is important to be clear when discussing Traditional Owner representative organisations (TORIs), such as Prescribed Bodies Corporate (PBC), that there is a distinction between this sector and broader notions of Aboriginal and Torres Strait Islander organisations. TORIs are defined by their statutory recognition and role with respect to the traditional lands and waters of their members. From these lands and waters springs cultural responsibilities and rights in respect of natural resources and traditional knowledge.

Native Title

The Native Title Act 1993 provides recognition by Australian law of the rights and interests in land and waters held by Traditional Owners under their traditional laws and customs, which existed before the start of colonisation.

Native title was first recognised in Australian law in 1992 in the Mabo v Queensland (No 2) decision. The five Meriam people who mounted the case were Eddie Koiki Mabo, Reverend David Passi, Sam Passi, James Rice and one Meriam women, Celuia Mapo Sale. Eddie Koiki Mabo was the first named plaintiff and the case became known as the Mabo Case.

In the Mabo Case, the High Court recognised that:

When Britain assumed sovereignty, the common law recognised that Aboriginal and Torres Strait Islander peoples held a native title under their own system of law and customs.

The land and waters of Australia were not terra nullius, a land belonging to no one.

Native title continues to exist unless the ongoing connection to the land was lost or the government did something to extinguish it.

Since 1993, the Native Title Act has set processes and requirements around native title. As with much legislation, details on application and meaning in the Act has been determined through court cases.

Positive native title determinations realise a collection of rights that can managed by Traditional Owners through agreement making. The Mabo Centre will undertake research and capacity development programming to assist Traditional Owner organisations leverage these rights to realise the ambitions of their communities.

Post Determination

When a positive native title determination is made by the Federal Court, the Native Title Act 1993 requires Traditional Owners to establish a corporation to represent them and their interests. These organisations are Registered Native Title Bodies Corporate (RNTBCs) but are most commonly known as Prescribed Bodies Corporate (PBC).

These bodies are the inclusive and representative groups identified in the United Nations Declaration on the Rights of Indigenous People (UNDRIP). As such, they hold the collectively owned cultural rights of the community and manage functions under the Native Title Act, including to:

Hold, protect and manage determined native title in accordance with the objectives of the native title holding group

Ensure certainty for governments and other parties interested in accessing or regulating native title land and waters by providing a legal entity to manage and conduct the affairs of the native title holders.

All RNTBCs must be incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act).

Central to the work of the Mabo Centre is provision of support to PBC and other Traditional Owner representative organisations (TORIs).

There are currently 265 PBC across Australia. This number is expected to exceed 300 by 2026 with a further 84 applications pending registration. As demand for Traditional Owner engagement, consultation, and consent continues to grow, so too does the importance of understanding the capacity challenges that PBC face. Such challenges impact their capacity to make informed decisions about proposed activity across their lands and waters in line with UNDRIPs free, prior and informed consent (FPIC) principles and their rights holders’ interests.

60% of PBC are classified as small (less than $100,000 in gross operating income, less than 5 employees, consolidated assets valued at less than $100,000).

Between 2020-21, 60% of PBC reported zero employees, with a further 13% reporting just 1.

Over one third of PBC in Australia have no income, no grant funding, no assets, and not employees.

The National Native Title Council’s PBC Futures: Roadmap to Reform, published in PBC 2023, provides a snapshot of the complexity of PBC.

As representative institutions of native title holders, PBC are tasked with managing and protecting their country, but do not have the support of secure and ongoing funding, effective mechanisms for cost recovery or access to the appropriate expertise.

PBC and TORIs are not simply land holding bodies or regular corporations under the CATSI Act. They are the ‘self’ in self-determination. They represent the nations that hold rights, own and speak for country and have the cultural authenticity to act as nations. While a PBC is not an Indigenous creation, rather one of the Native Title Act, Traditional Owners use the PBC structure to enact their rights, interests and practices.

PBC are culturally and legally complex bodies that have been forced to incorporate under CATSI to be able to hold and manage their native title rights and interests under the Native Title Act. They have a range of statutory obligations and, unlike other CATSI corporations, have a fiduciary duty to both their members and current and future common law holders.

Legislative Environment

The broad and deep range of connections that Traditional Owners have to Country are protected through the contemporary Australian legal and regulatory system in a number of ways. These include legislation across all jurisdictions and includes: