EXPLANATORY STATEMENT
Issued by the authority of the Attorney-General
Native Title (Notices) Amendment Determination 2010 (No. 1)
Authority for making the instrument
Various provisions in the Native Title Act 1993 (the Act) require notice to be given ‘in the way determined, by legislative instrument, by the Commonwealth Minister’ before certain activity takes place on land that may be subject to native title.
Section 252 of the Act provides examples of how the Commonwealth Minister may determine that notice may be given, such as in newspapers, radio broadcasts or television transmissions.
The Native Title (Notices) Determination 1998 (the Notices Determination), made by the Special Minister of State on 29 August 1998, specifies particular requirements for how notice should be given under the following sections of the Act:
- section 23HA – notification
- subsection 24GB(9) – acts permitting primary production on non-exclusive agricultural and pastoral leases
- subsection 24GD(6) – acts permitting off-farm activities that are directly connected to primary production activities
- subsection 24GE(1) – granting rights to third parties etc on non-exclusive agricultural or pastoral leases
- subsection 24HA(7) – management or regulation of water and airspace
- subsection 24ID(3) – effect of Subdivision 24I (renewals and extensions etc) applying to an act
- subsection 24JB(6) – treatment of acts covered by section 24JA
- subsection 24JB(7) – treatment of acts covered by section 24JA
- subsection 24KA(8) – facilities for services to the public
- subsection 24MD(7) – treatment of acts that pass the freehold test
- subsection 24NA(9) – acts affecting offshore places
The Native Title (Notices) Amendment Determination 2010 (No. 1) (the instrument) amends the Notices Determination to provide how notice is to be given for the purposes of paragraph 24JAA(10) in the Act, inserted into the Act by the Native Title Amendment Act (No. 1) 2010.
The instrument is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
As a result of a variation to the Administrative Arrangements Order, and under section 253 of the Act and section 19A of the Acts Interpretation Act 1901, the relevant ‘Commonwealth Minister’ under the Act is now the Attorney‑General. Therefore, the Attorney‑General is the Minister responsible for issuing this instrument.
Purpose and operation of the instrument
The instrument amends the Notices Determination to include new provisions to give effect to the Native Title Amendment Act (No. 1) 2010 (the Amendment Act). The Amendment Act inserts new subdivision JA in the ‘future acts’ regime’ in Division 3, Part 2 of the Act. The future acts regime sets out how acts (called ‘future acts’) that affect native title can be done. In particular, it sets out procedural rights which must be observed before particular kinds of future acts are done. New subdivision JA provides for a new future act process to facilitate the construction, on Indigenous held land, of public housing, public education facilities, public health facilities, police facilities, emergency facilities, staff housing provided in connection with this housing or facilities, and related public infrastructure.
The purpose of the instrument is to outline how notice must be given for acts which are covered by new subdivision JA. This subdivision requires an action body (the Crown, or a local government body or other statutory authority of the Crown) to notify any registered native title claimant, any registered native title body corporate or any representative Aboriginal or Torres Strait Islander body in relation to the relevant area of land or waters (paragraph 24JAA(10)(a)). Paragraph 8(1)(fa) of the instrument provides that notice under paragraph 24JAA(10)(a) of the Act must be given by post. However, under subsection 8(2), a notice may be given by a different means if the person to be notified agrees. Subsection 8(4) provides a list of information that must be included in the notice which is in addition to requirements provided under subsection 24JAA(11) of the Act.
Notice issued under the instrument enables any registered native title claimant, any registered native title body corporate or any representative Aboriginal/Torres Strait Islander body to avail themselves of relevant procedural rights under new subdivision JA. When giving notice of an act, an action body must give a registered claimant, native title holder or representative body an opportunity to comment on the act. A registered claimant or body corporate may also request to be consulted about the doing of the act so far as it affects their registered native title rights and interests.
The instrument commences on the commencement of the Amendment Act.
Consultation
The previous determination commenced in 1998. This instrument amends that instrument, and reflects changes as a result of the Amendment Act. While a formal consultation process about the new instrument has not been undertaken, stakeholders are aware of these changes through consultation on the Native Title Amendment Bill (No. 1) 2010.