Ongoing discussion ahead of the Voice to Parliament referendum.
As the Indigenous Voice to Parliament referendum nears, there has been some discussion on social media about Aboriginal Corporations. Some commentary on social media has pointed to these as evidence of an "Aboriginal agenda" - but the need for these corporationsactually related to Australia’s common law system.
Aboriginal Corporations developed following Mabo v Queensland (No 2) (1992). These corporations represent Aboriginal communities who have been granted exclusive and non-exclusive native title over Australian land.
Exclusive native title is the rarer of the two forms of native title, and is effectively the same as ownership of the land. It is usually granted only if there are no other conflicting claims to the land.
Non-exclusive Aboriginal title will consist of a variety of rights granted. In accordance with Mabo (No 2) and Section 223 of the Native Title Act 1993 (Cth), these rights will be based on the ‘traditional laws and customs’ of the Aboriginal community in question.
Common non-exclusive rights include hunting and gathering, access over the land, camping on the land, and using natural resources for non-commercial purposes. The rights granted depend on how the land was used by the traditional Aboriginal community.
Non-exclusive native title is largely where the need for Aboriginal corporations arises, as this is where traditional laws and customs clash with land rights held by non-Aboriginal people and organisations.
One of the many things introduced to Australia in 1788 was the English legal system. Section 24 of the Australian Courts Act 1828 (Imp) confirmed that all English law prior to 1828 applied to New South Wales and Van Diemen’s Land, and as new colonies were established, this was carried over.
The right to enter into contracts is one of the most fundamental aspects of the legal system, but English common law limited this right to certain parts of society. This included individuals, governments, and corporations.
One of the groups exempted from this right, along with the rights to employ individuals and enter into lawsuits, were ‘unincorporated associations,’ like churches. These groups were also tax-exempt.
In addition, English land law was also brought over, and under the infamous policy of terra nullius, land was parcelled out to white landowners.
The most common form of land grant in native title cases is a ‘pastoral lease’ used by farmers, as it is very difficult to apply for native title if a community’s land is now home to a city, although that has happened in Western Australia. Mining leases are also common.
There is no correlation between the borders of land given out by the Crown and the traditional boundaries of Aboriginal communities. This means that native title grants will cover multiple properties.
While it would be theoretically possible for all native title holders to negotiate with the landowners individually, this is impractical. As a result, the Native Title Act 1993 (Cth) requires the creation of ‘Registered Native Title Bodies Corporates’ to maintain and negotiate complying with the native title grants, as the particular rights granted will depend on the traditional laws and customs.
Check out Common(wealth) Knowledge #69 for more on the Native Title Act 1993 (Cth).
Traditional Aboriginal and Torres Strait Islander relationships with the land have often been described as a form of ‘guardianship,’ whereas Australian property law is based on possession of the land. When land is sold, the title to this land is passed from the seller to the buyer, often contained in physical documents.
This means that native title cannot be bought or sold, but the title or ‘ownership’ of private property can be. These RNTBCs, on behalf of the native title holders, must ensure that this transition does not infringe upon their rights, by negotiating with the new owners when there is a sale of land, or someone else gains an ‘interest’ in it, like mining rights or an easement, which is a right to pass over part of the land.
As corporations, RNTBCs can enter into contracts on behalf of the Aboriginal or Torres Strait Islander community.
Australian corporate law got a massive overhaul with the passage of the Corporations Act 2001 (Cth), and this was followed 5 years later by the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), which regulates these corporations. All Aboriginal corporations must be registered under this Act.
Since then, Australia has also seen the creation of non-native title Aboriginal corporations.
These are organisations that promote Aboriginal interests, provide education and healthcare support, protect cultural heritage, and offer legal aid.
These organisations, which would normally act as charities, are often incorporated as companies limited by guarantee. This provides a corporate structure, gives its members certain rights and guarantees, grants the rights and obligations given to corporations under Australian law, and ensures that they are not-for-profit organisations.
Although Aboriginal corporations generally follow the same rules as non-Aboriginal corporations, they are registered separately and governed by separate legislation to recognise that they are not the same as other corporations. Since Mabo (No 2), the stance of the Australian legal system has been that Aboriginal laws and customs originated outside of the Australian legal system, but are nonetheless protected by it.
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Sources:
Australian Courts Act 1828 (Imp), 9 Geo. 4, c. 83.
Mabo v Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23.
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