What are Future Act Notices (“FAN”)?
As a Registered Native Title Body Corporate (“RNTBC”), your Prescribed Body Corporate (“PBC”) can receive numerous Future Act Notices (“FAN”) from various government departments. Each FAN seeks a response from your PBC which comes at a direct cost to the PBC in terms of time, effort and often the provision of knowledge and expertise.
Public or Private Sector requestsYour PBC may also be approached by public and private sector entities to provide services such as:
• technical matters where your PBC or RNTBC has statutory responsibilities (such as matters to do with native title future acts and cultural heritages); or
• engagement by your PBC in formal consultations or informal feedback (such as in relation to the development of government policies and programs).
How do these requests affect your PBC?
The time and energy involved in reviewing, consulting, and preparing a response to FANs or public and private sector requests puts a strain on the limited resources and capacity of employees and directors of a PBC.
Through its officers (i.e. directors) or employees, the PBC is required to respond to queries, notifications and requests, analyse and assess proposals or drafts, participate in meetings and a wide range of other tasks to ensure any response provided protects their rights at law.
When can a PBC charge a Fee For Service?
To perform some of the functions under the Native Title Act (s60AB) and the PBC Regulations, an RNTBC can charge a fee to Governments, mining companies or others for their services. An RNTBC can charge fees for the following activities:
• receiving and processing notices relating to future acts.
• negotiating agreements under either the right to negotiate provisions of the NTA or alternative State or Territory provisions.
• negotiating ILUAs or the compulsory acquisition of land.
• commenting or making submissions on future acts.
• consultation on future acts.
• consulting with native title holders and obtaining their free, prior and informed consent to do something that will affect their native title rights and interests.
• exercising other procedural rights.
When can’t a PBC charge a Fee For Service?
An RNTBC cannot charge a fee to their common law holders, another RNTBC, a native title representative body or service provider and persons who claim to hold native title in relation to relevant land or waters.
Fees cannot be charged for being a party in any court proceedings or participating in certain other proceedings or inquiries specified in subsection 60AB(5) of the Native Title Act.
How much can a PBC charge?
The PBC must first determine what services it provides in meeting obligations under the Native Title Act, and whether it is reasonable to charge for those services. PBCs can set their own fees but they must be related to ‘costs incurred’ in performing one of the functions (section 60AB(3)). The important threshold in the Native Title Act is that the fee cannot amount to a tax.
Who can help identify your PBC fees?
Under section 60AC of the Native Title Act, the Registrar of Indigenous Corporations has the powers to give an opinion on fees your PBC intends to charge. If the fee is unfit, the Registrar’s opinion is final and the RNTBC must withdraw that charge.
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