EXPLANATORY STATEMENT
Select Legislative Instrument 2006 No. 49
Issued by the authority of the Attorney‑General
Native Title Act 1993
Native Title (Indigenous Land Use Agreements) Amendment
Regulations 2006 (No. 1)
Subsection 215(1) of the Native Title Act 1993 (the Act) provides that the Governor‑General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
These Regulations amend the Native Title (Indigenous Land Use Agreements) Regulations 1999 (the Principal Regulations) to provide a prescribed form for objecting to an alternative procedure agreement under subsection 24DJ(1) of the Act. No form has previously been prescribed.
Alternative procedure agreements are a type of indigenous land use agreement (ILUA). ILUAs are voluntary agreements, provided for by the Act, which are made with native title parties regarding the use and management of an area.
The Regulations also insert definitions of the three different types of ILUAs that are presently dealt with in the Principal Regulations. The definitions refer to relevant provisions of the Act which outline the requirements for each type of ILUA. This amendment does not change the effect of the Principal Regulations but is intended to remove any doubt about the meaning of the terms to be defined.
Once an ILUA is completed, the parties to it may apply to the Registrar of the National Native Title Tribunal (NNTT) (the Registrar) to have it registered on the Register of Indigenous Land Use Agreements. Registration of an ILUA has certain statutory benefits:
- if the ILUA so provides, future acts affecting native title are valid; and
- the ILUA will bind all native title holders in relation to land and waters in the agreement area, even if they are not a party to the ILUA.
As a registered ILUA binds all native title holders in the agreement area (even those who are not a party to the ILUA), the Act allows persons claiming to hold native title in the area to object to the registration of certain types of ILUAs. Objections to an alternative procedure agreement may be made under subsection 24DJ(1).
Section 77A of the Act provides that an application under subsection 24DJ(1) objecting against registration of an alternative procedure agreement must, amongst other matters, be in the prescribed form and be accompanied by any prescribed documents and any prescribed fee.
After the end of the notice period for objections, the Registrar must decide whether or not to register the agreement. The Registrar must register an alternative procedure agreement if:
- no objection is made against registration within the notice period; or
- one or more objections have been made during the notice period but all of them have been withdrawn; or
- one or more objections have been made during the notice period and all of them have not been withdrawn, but none of the persons making the objections has satisfied the NNTT or a recognised State/Territory body that it would not be fair and reasonable to register the agreement.
Although the ability to apply for registration of an alternative procedure agreement has been available since 30 September 1998, when the relevant provisions were inserted into the Act, the NNTT has advised that, as of 17 January 2005, it has not received any applications. However, the Regulations are required to enable objections to be made in accordance with the Act in the event that an alternative procedure agreement is lodged for registration.
It was considered inappropriate for the Regulations to prescribe any fee for objecting to an alternative procedure agreement. A prescribed fee may be difficult and costly to administer and fees are not imposed for objecting to other types of ILUAs.
It was also considered inappropriate for the Regulations to require any documents to accompany the form for objecting to an alternative procedure agreement. The form requires objectors to provide essential information, which would form a basis for consideration of or negotiation concerning the objection. While further information may subsequently be requested from an objector, requiring additional information when the objection is made may impose greater compliance costs on an objector.
The NNTT has been consulted about the Regulations.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations commence the day after they are registered in the Federal Register of Legislative Instruments.
Overview
The Native Title (Indigenous Land Use Agreements) Amendment Regulations 2006 (No. 1) were introduced to amend the Native Title (Indigenous Land Use Agreements) Regulations 1999, which were established under the Native Title Act 1993. The primary objective of these amendments is to provide a prescribed form for objecting to an alternative procedure agreement under subsection 24DJ(1) of the Native Title Act 1993, a requirement that was previously unmet. This regulation ensures that the process for objecting to such agreements is clear and consistent, thereby facilitating the effective administration of the Act. Additionally, the amendments include definitions for the three different types of Indigenous Land Use Agreements (ILUAs), clarifying their scope and purpose without altering the existing legal framework. These changes aim to streamline the registration process for ILUAs and ensure that all parties are fully informed of their rights and obligations under the Act.
Scope and Application
The Native Title (Indigenous Land Use Agreements) Amendment Regulations 2006 (No. 1) amends the Native Title (Indigenous Land Use Agreements) Regulations 1999 to address the procedural aspect of objecting to an alternative procedure agreement, a type of indigenous land use agreement (ILUA), under the Native Title Act 1993. These Regulations are applicable to any person or entity that wishes to object to the registration of an alternative procedure agreement, a voluntary agreement concerning the use and management of land made with native title parties. The Regulations are designed to ensure clarity in the objection process by providing a prescribed form for objections, which was previously not available. This legislative instrument operates within the framework of the Commonwealth of Australia, and its application is confined to the procedures outlined in the Native Title Act 1993. The Regulations do not introduce any fees or additional documentary requirements for objecting to an alternative procedure agreement, aligning with the approach taken for other types of ILUAs. The Regulations are intended to streamline the objection process while maintaining the integrity and purpose of the Native Title Act 1993.
Key Provisions
The Native Title (Indigenous Land Use Agreements) Amendment Regulations 2006 (No. 1) primarily introduce a prescribed form for objecting to an alternative procedure agreement under subsection 24DJ(1) of the Native Title Act 1993 (the Act). This form is intended to facilitate objections to an alternative procedure agreement, which is a type of indigenous land use agreement (ILUA). The Regulations also define the three different types of ILUAs currently dealt with in the Principal Regulations. These definitions refer to relevant provisions of the Act which outline the requirements for each type of ILUA. These amendments do not alter the effect of the Principal Regulations but are meant to eliminate any ambiguity regarding the terms being defined.
The Act imposes several obligations on the parties and entities it governs. For instance, native title parties are required to enter into ILUAs voluntarily regarding the use and management of an area. These agreements, once completed, may be applied for registration by the parties to the Registrar of the National Native Title Tribunal (NNTT). Upon registration, the ILUA binds all native title holders in the agreement area, even if they are not a party to the ILUA. Additionally, the Act allows persons claiming to hold native title in the area to object to the registration of certain types of ILUAs, including alternative procedure agreements. Objections to an alternative procedure agreement must be made under subsection 24DJ(1) and must be in the prescribed form.
The Regulations also establish specific requirements for making objections to the registration of alternative procedure agreements. Section 77A of the Act mandates that an objection application must be in the prescribed form and accompanied by any prescribed documents and fee. However, the Regulations do not prescribe any fee or additional documents for objecting to an alternative procedure agreement. The prescribed form requires objectors to provide essential information, which will form the basis for consideration or negotiation of the objection. The Registrar has the responsibility to decide whether to register the agreement after the notice period for objections. The Registrar must register an alternative procedure agreement if no objections are made within the notice period, if all objections have been withdrawn, or if none of the objectors can satisfy the NNTT or a recognised State/Territory body that it would not be fair and reasonable to register the agreement.
Breach of the provisions in the Act and the Regulations may lead to civil or criminal consequences. Although specific penalties are not mentioned in the explanatory statement, the Act and the Regulations likely impose penalties for non-compliance with the procedural requirements, such as failing to object in the prescribed form. Such breaches could potentially invalidate the agreement or lead to legal disputes. Given the nature of the regulations, penalties might include fines or other legal consequences as outlined in the Act and other relevant legislation. The specific penalties would depend on the nature and severity of the breach, and could be determined by the courts or administrative tribunals as per the applicable laws.