Native Title (Prescribed Bodies Corporate) Regulations

Native Title (Prescribed Bodies Corporate) Regulations

SR 1994 No. 440 as amended

Native Title Act 1993

Consolidated as in force on 16 September 1998

(includes amendments up to SR 1998, No. 120)

Prepared by the Office of Legislative Drafting,

Attorney-General’s Department, Canberra

Native Title (Prescribed Bodies Corporate) Regulations

SR 1994 No. 440 as amended

Contents

Page

 1 Citation 2

 2 Interpretation 2

 3 Kinds of prescribed bodies corporate 2

 4 Functions of registered native title body corporate 3

 5 Consultation with, and consent of, common law holders 4

 6 Consultation with representative bodies 5

 7 Evidence of consent and consultation 5

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1 Citation

  These Regulations may be cited as the Native Title (Prescribed Bodies Corporate) Regulations.

2 Interpretation

 (1) In these Regulations, unless the contrary intention appears:

Aboriginal association has the same meaning as in the Aboriginal Councils and Associations Act 1976.

Act means the Native Title Act 1993.

Rules, in relation to an Aboriginal association that is a registered native title body corporate, means the Rules, within the meaning of the Aboriginal Councils and Associations Act 1976, that regulate the affairs of the Association.

 (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.

3 Kinds of prescribed bodies corporate

 (1) An Aboriginal association is prescribed for the purposes of paragraph 59 (a) of the Act if it is incorporated under the Aboriginal Councils and Associations Act 1976:

 (a) after the commencement of these Regulations; and

 (b) for the purpose of being the subject of a determination under section 56 or 57 of the Act.

 (2) An Aboriginal association is taken to be incorporated for the purpose of being the subject of a determination under section 56 or 57 of the Act only if:

 (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

 (b) the purpose of becoming a registered native title body corporate is set out in the objects of the association; and

 (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.

 (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.

4 Functions of registered native title body corporate

 (1) The functions of a registered native title body corporate are:

 (a) if the native title rights and interests concerned are held in trust by the registered native title body corporate under section 56 of the Act — to manage the native title rights and interests of the common law holders; and

 (b) if the native title rights and interests concerned are not held in trust by the registered native title body corporate:

 (i) to act as agent of the common law holders in respect of matters relating to the native title; and

 (ii) to manage the native title rights and interests of the common law holders as authorised by the common law holders; and

 (iii) to perform any other functions in relation to the native title rights and interests as directed by the common law holders; and

 (c) in any case — to hold money (including money received by way of compensation or other consideration payable in relation to the native title rights and interests) on trust and to invest or otherwise apply the money as directed by the common law holders.

 (2) Without limiting the generality of subregulation (1), for the purposes of performing its functions a registered native title body corporate may, on behalf of the common law holders:

 (a) enter into agreements; and

 (b) be consulted; and

 (c) exercise procedural rights; and

 (d) accept notices required by any law of the Commonwealth, a State or a Territory to be given to the common law holders.

5 Consultation with, and consent of, common law holders

 (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.

6 Consultation with representative bodies

 (1) If a registered native title body corporate proposes:

 (a) to surrender native title rights and interests in relation to land or waters; or

 (b) to agree to any other act that will affect the native title rights or interests of the common law holders;

  it must act in accordance with subregulation (2).

 (2) The registered native title body corporate must (in addition to complying with any other obligations imposed on it by these Regulations) ensure that the common law holders understand the purpose and nature of the proposal by:

 (a) consulting and considering the views of a representative Aboriginal/Torres Strait Islander body for the area that includes the land or waters in relation to which the native title exists; and

 (b) if the registered native title body corporate considers it to be appropriate and practicable — giving notice of  those views to the common law holders.

 (3) If a registered native title body corporate fails to comply with subregulation 6 (1) in relation to an agreement:

 (a) to surrender native title rights and interests in relation to land or waters; or

 (b) to any other act that will affect the native title rights or interests of the common law holders;

  the agreement has no effect.

7 Evidence of consent and consultation

 (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.

 (2) If, under these Regulations a decision cannot be made, or an act cannot be done, by a registered native title body corporate unless:

 (a) a representative Aboriginal/Torres Strait Islander body is consulted; and

 (b) its views in relation to the decision or act are considered; these Regulations are taken to have been complied with if:

 (c) a document that certifies that a representative Aboriginal/Torres Strait Islander body for the area concerned has been consulted about the act or decision and its views have been considered in the manner required by these Regulations is signed by at least 5 members of the registered native title body corporate; and

 (d) a document that certifies that the representative Aboriginal/Torres Strait Islander body has been consulted by the registered native title body corporate is signed by an authorised member of the representative Aboriginal/Torres Strait Islander body.

 (3) If a registered native title body corporate has made a decision or agreed to an act referred to in this regulation, the registered native title body corporate must make a copy of any document referred to in this regulation that relates to the act or decision available to a person who:

 (a) makes a request, in writing, to the registered native title body corporate for a copy of the document; and

 (b) has a substantial interest in the decision or act to which the document relates.

Notes to the Native Title (Prescribed Bodies Corporate) Regulations

Note 1

The Native Title (Prescribed Bodies Corporate) Regulations (in force under the Native Title Act 1993) as shown in this reprint comprise Statutory Rules 1994 No. 440 as amended as indicated in the Tables below.

Table of Statutory Rules

Table of Amendments