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.
Overview
The Native Title (Notices) Amendment Determination 2010 (No. 1) was enacted to address procedural requirements under the Native Title Act 1993, specifically regarding the notice to be given for certain activities that may impact native title claims on land. This determination was made under the authority of the Attorney-General, who is now the relevant Commonwealth Minister responsible for such legislative instruments, following a variation in the Administrative Arrangements Order. The primary purpose of this amendment is to align with the Native Title Amendment Act (No. 1) 2010, which introduced new provisions facilitating the construction of various public infrastructure on Indigenous-held land. The amendment requires that before any such activities can proceed, the responsible body must notify relevant native title claimants, holders, or representative Aboriginal or Torres Strait Islander bodies. Notice must be sent by post, although alternative methods may be used if agreed upon by the recipient, and must include specified information to enable the affected parties to exercise their procedural rights under the new legislative framework. This amendment ensures that procedural rights are respected and provides a structured means for consultation and notification, thereby balancing the need for public infrastructure development with the protection of native title rights.
Scope and Application
The Native Title (Notices) Amendment Determination 2010 (No. 1) amends the Native Title (Notices) Determination 1998 to align with changes introduced by the Native Title Amendment Act (No. 1) 2010. It applies to entities such as the Crown, local government bodies, or other statutory authorities of the Crown involved in activities that affect native title. These activities include the construction of public housing, public education facilities, public health facilities, police facilities, emergency facilities, staff housing related to these facilities, and related public infrastructure on land held by Indigenous people. The instrument specifies that notice must be given by post, although an alternative method can be used if agreed upon by the party to be notified. The notice must include specific information to enable any registered native title claimants, native title body corporates, or representative Aboriginal or Torres Strait Islander bodies to exercise their procedural rights under the new subdivision JA. The instrument is a legislative instrument under the Legislative Instruments Act 2003 and applies nationally across Australia, reflecting the Commonwealth's jurisdiction in native title matters.
Key Provisions
The Native Title (Notices) Amendment Determination 2010 (No. 1) (F2010L03001) amends the Native Title (Notices) Determination 1998 to align with the new requirements introduced by the Native Title Amendment Act (No. 1) 2010. The primary operative sections of this instrument (sections 7 and 8) detail how notice must be given for acts that fall under the new subdivision JA of the Native Title Act 1993 (the Act). Section 7 specifies that notice must be given by post, but it allows for an alternative method if the recipient agrees. Section 8 outlines the information that must be included in the notice, which supplements the requirements set out in section 24JAA(11) of the Act. This notice process is essential for notifying registered native title claimants, native title body corporates, or representative Aboriginal or Torres Strait Islander bodies about acts that affect native title, such as the construction of public housing, public education facilities, and other public infrastructure on Indigenous-held land.
The obligations imposed by this instrument on parties involved in the notice process are clear and structured. Action bodies, which include the Crown, local government bodies, or other statutory authorities, are required to give notice to relevant parties about acts covered under new subdivision JA. This notice must be provided by post, unless otherwise agreed upon by the recipient, and must include specific information as detailed in section 8 of the instrument. Additionally, action bodies must allow the notified parties an opportunity to comment on the proposed act and provide a chance for consultation if requested by the claimant or body corporate. This ensures that any acts affecting native title rights and interests are done transparently and with due regard to the rights of native title holders.
Breaches of the obligations set out in the Native Title (Notices) Amendment Determination 2010 (No. 1) may result in various consequences. While the instrument itself does not specify explicit penalties for non-compliance, failure to adhere to the notice requirements could lead to legal challenges or disputes regarding the validity of the act in question. Furthermore, the failure to properly notify or consult with native title holders could undermine the procedural rights provided under the Native Title Act 1993, potentially leading to legal actions or remedies being sought by the affected parties. It is important for action bodies to comply with the notice provisions to avoid such legal and procedural challenges.