Native Title (Prescribed Bodies Corporate) Regulations (Amendment) (Cth)

Statutory Rules 1998No. 120 1

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Native Title (Prescribed Bodies Corporate) Regulations2 (Amendment)

I, WILLIAM PATRICK DEANE, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Native Title Act 1993.

Dated 2 June 1998.

 WILLIAM DEANE

 Governor-General

By His Excellency’s Command,

 

JOHN Herron

Minister for Aboriginal and Torres Strait Islander Affairs

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1.   Commencement

1.1   These Regulations commence on gazettal.

2.   Amendment

2.1   The Native Title (Prescribed Bodies Corporate) Regulations are amended as set out in these Regulations.

3.   Regulation 2 (Interpretation)

3.1   After subregulation 2 (1), insert:

 “(2) For these Regulations, a number of common law holders constitute a group of common law holders if they belong to a tribe, clan or family, or a descent, language or other group, recognised as such in accordance with Aboriginal or Torres Strait Islander custom applicable to them.”.

4.   Regulation 3 (Kinds of prescribed bodies corporate)

4.1   Paragraph 3 (2) (a):

Omit the paragraph, substitute:

• “(a)

  all of its members are persons who, at the time of making of the determination, are, or were, included, or proposed to be included, in the determination as native title holders; and”.

4.2   Paragraph 3 (2) (b):

Omit “or in the Rules”, substitute “of the association”.

4.3   Paragraph 3 (2) (c):

Omit the paragraph, substitute:

• “(c)

  at all times after the determination is made, its membership comprises only persons who have native title rights and interest in the land for which it is the registered native title body corporate.”.

4.4   Add at the end:

 “(3) A prescribed body corporate may be a trustee or agent for more than 1 group of common law holders in relation to a determination if all the groups are included in the determination.”.

5.   Regulation 4 (Functions of registered native title body corporate)

5.1   Paragraphs 4 (2) (a), (b) and (c):

Omit the paragraphs, substitute:

• “(a)

  enter into agreements; and

• (b)

  be consulted; and

• (c)

  exercise procedural rights; and”.

5.2   Subregulation 4 (3):

Omit the subregulation.

6.   Regulation 5 (Consultation with, and consent of, common law holders)

6.1   Omit the regulation, substitute:

Consultation with, and consent of, common law holders

 “5. (1) Subject to subregulation (4), if a registered native title body corporate acts as trustee or agent for the common law holders, it must consult with, and obtain the consent of, the common law holders before making any decision, or doing any act, that will affect the native title rights or interests of the common law holders.

 “(2) If there is a particular process of decision-making that, under the Aboriginal or Torres Strait Islander custom or tradition of the common law holders, must be followed in relation to the giving of the consent mentioned in subregulation (1), that consent must be consent that was given in accordance with that process.

 “(3) If subregulation (2) does not apply, the consent mentioned in subregulation (1) must be consent that was given by the common law holders in accordance with a process of decision-making agreed to, and adopted, by them for the decision or for decisions of that kind.

 “(4) If the registered native title body corporate acts as trustee or agent for more than 1 group of common law holders, it is required to consult with, and obtain the consent of, only those groups of common law holders whose native title rights or interests will be affected by the decision or act.

 “(5) If a registered native title body corporate does not comply with subregulation (1) in relation to an agreement:

• (a)

  to surrender native title rights and interests for land or waters; or

• (b)

  to do any other act that will affect the native title rights and interests of the common law holders;

the agreement has no effect.”.

7.   Regulation 7 (Evidence of consent and consultation)

7.1   Subregulation 7 (1):

Omit the subregulation, substitute:

 “(1) The common law holders are taken to have been consulted on, and to have consented to, a decision or act of a prescribed body corporate if a document, signed in accordance with subregulation (1A), certifies:

• (a)

  that the common law holders have been consulted about the decision or act and have consented; or

• (b)

  that:

  • (i)

    the decision or act is of a kind about which the common law holders have been consulted; and

  • (ii)

    the common law holders have made a decision that decisions of that kind can be made, or acts of that kind can be done, by the registered native title body corporate.

Example  for paragraph (b)

To enable people other than the common law holders to enter land to which the common law holders have exclusive access, the common law holders are able to put arrangements in place for the registered native title body corporate for that land to issue entry permits without further consultation.

 “(1A) A document mentioned in subregulation (1) is signed in accordance with this subregulation if:

• (a)

  it is signed by at least 5 members of the registered native title body corporate (the signatories); and

• (b)

  either:

  • (i)

    each of the signatories is a common law holder whose native title rights or interests will be affected by the decision or act; or

  • (ii)

    there are fewer than 5 members of the registered native title body corporate who are common law holders whose native title rights or interests will be affected by the decision or act but the signatories include all of them.”.

7.2   Subregulation 7 (2):

Omit “or its Rules, a decision cannot be made, or an act cannot be undertaken,”, substitute “a decision cannot be made, or an act cannot be done,”.

7.3   Subregulation 7 (2):

Omit “or the Rules (as the case requires)”.

7.4   Paragraph 7 (2) (c):

Omit “or the Rules”.

7.5   Subregulation 7 (3):

Omit “undertake”, substitute “do”.

NOTES

1. Notified in the Commonwealth of Australia Gazette on 9 June 1998.

2. Statutory Rules 1994 No. 440.