Native Title (Recognition as Representative Body–Cape York Land Council) Instrument 2016

Administered by Department of the Prime Minister and Cabinet

Legislation au F2016L00828 Not in force Legislative Instrument

Legislation content

Explanatory Statement

 

Issued by the authority of the Minister for Indigenous Affairs

 

Native Title Act 1993

 

 

Native Title (Recognition as Representative Body–Cape York Land Council) Instrument 2016  

 

Native Title (Recognition as Representative Body–Central Land Council) Instrument 2016

 

Native Title (Recognition as Representative Body–Goldfields Land and Sea Council) Instrument 2016

 

Native Title (Recognition as Representative Body–Kimberley Land Council) Instrument 2016

 

Native Title (Recognition as Representative Body–Northern Land Council) Instrument 2016 

 

Native Title (Recognition as Representative Body–North Queensland Land Council) Instrument 2016

 

Native Title (Recognition as Representative Body–Yamatji Marlpa Aboriginal Corporation) Instrument 2016

 

 

These instruments are made under subsection 203AD(1) of the Native Title Act 1993 (the Act).

 

Under subsection 203AD(1), the Minister may, by legislative instrument, recognise,  as the representative body for an area or areas, an eligible body that has applied under section 203AB to be the representative body for the area or areas if the

Minister is satisfied that:

 

(a)  if the body is already a representative body, it satisfactorily performs its existing functions; and

 

(b)  the body would be able to perform satisfactorily the functions of a representative body.

 

Subsection 203AD(3A) of the Act provides that the period of recognition specified in the instrument of recognition must be at least one year but no more than six years.

 


The following seven bodies are currently recognised as representative bodies for the period of 1 July 2015 – 30 June 2016 and it is proposed to recognise them for a further two year period from 1 July 2016 – 30 June 2018:

 

  • Cape York Land Council Aboriginal Corporation.
  • Central Land Council.
  • Goldfields Land and Sea Council Aboriginal Corporation.
  • Kimberley Land Council Aboriginal Corporation.
  • Northern Land Council.
  • North Queensland Land Council Native Title Representative Body Aboriginal Corporation.
  • Yamatji Marlpa Aboriginal Corporation.

 

In accordance with section 203A of the Act, the Minister invited the representative bodies listed above to apply for recognition as the representative body for the area described in the Schedules to each instrument of recognition as a Representative Body for the period of 1 July 2016 – 30 June 2018.

 

On the basis of the information provided, the Minister was satisfied each of the invited bodies satisfactorily perform its existing functions and would be able to continue to perform satisfactorily the functions of a representative body as required under section 203AD of the Act. The Minister subsequently decided to recognise each of the invited bodies for the areas described in the Schedules to each instrument of recognition as a Representative Body for the period of 1 July 2016 – 30 June 2018. In determining the period of recognition, the Minister considered the matters specified in subsection 203AD(3B) of the Act.   

 

The instruments provide that the recognition of each of the invited bodies takes effect on 1 July 2016 and ceases to have effect on 30 June 2018. 

 

Under subsection 33 (3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

 

The instruments also revoke, with effect from the date the recognition takes effect, the following current recognition instruments:  

 

  • Recognition as Representative Aboriginal/Torres Strait Islander Body 2015 (No. 1)
  • Recognition as Representative Aboriginal/Torres Strait Islander Body 2015 (No. 2)
  • Recognition as Representative Aboriginal/Torres Strait Islander Body 2015 (No. 3)
  • Recognition as Representative Aboriginal/Torres Strait Islander Body 2015 (No. 6)
  • Recognition as Representative Aboriginal/Torres Strait Islander Body 2015 (No. 7)
  • Recognition as Representative Aboriginal/Torres Strait Islander Body 2015 (No. 8)
  • Recognition as Representative Aboriginal/Torres Strait Islander Body 2015 (No. 9)

 

The instruments are legislative instruments for the purposes of the Legislation Act 2003. 

 

The Office of Best Practice Regulation has advised a Regulatory Impact Statement is not required.

Consultation

 

Applications from each of the invited bodies were subject to the required assessment process after which the Minister decided to continue to recognise each of the invited bodies as representative bodies for the areas described in the Schedules to each instrument of recognition as a Representative Body. In this context, the extent of consultation is reasonably limited to the representative bodies involved and the expert advice of Departmental Officers.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

The instruments are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the Instruments

 

The instruments provide for the recognition of representative bodies in most areas where representative bodies are currently recognised as described in the schedules to the instruments. Among other things, the role of representative bodies is to facilitate and assist registered native title bodies corporate, native title holders and native title claimants to gain formal recognition of their native title rights and in the exercise of those rights.

 

Human rights implications

 

The instruments engage the following human rights:

  • the right to enjoy and benefit from culture, and
  • the right to self-determination.

 

The right to enjoy and benefit from culture

 

The right to enjoy and benefit from culture is contained in Article 27 of the International Covenant on Civil and Political Rights (ICCPR) and Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).  Article 27 of the ICCPR protects the rights of individuals belonging to minorities within a country to enjoy their own culture. Article 15 of the ICESCR protects the right of all persons to take part in cultural life.

 

The United Nations Human Rights Committee has stated that culture can manifest itself as a particular way of life associated with the use of land resources, especially in the case of Indigenous peoples, which may include such traditional activities as fishing or hunting and the right to live on lands protected by law.[1] The United Nations Committee on Economic, Social and Cultural Rights has stated that Indigenous peoples’ cultural values and rights associated with their ancestral lands and their relationship with nature should be regarded with respect and protected.[2]

 

The Native Title Act 1993 (the Act) as a whole promotes the rights to enjoy and benefit from culture by creating processes through which native title can be recognised, and providing protection for native title rights and interests. 

 

The right to self-determination

 

The right to self-determination is a collective right applying to groups of ‘peoples’.  This is in contrast to the rights to culture which protect the rights of individuals within a group. The right to self-determination, as set out in Article 1 of the ICCPR and Article 1 of the ICESCR, entails the entitlement of peoples to have control over their destiny and to be treated respectfully. This includes peoples being free to pursue their economic, social and cultural development. 

 

The principles contained in the United Nations Declaration on the Rights of Indigenous Peoples (the Declaration) are also relevant to the instruments. While the Declaration is not included in the definition of ‘human rights’ under the Human Rights (Parliamentary Scrutiny) Act 2011, it provides some useful context on how human rights standards under the international treaties apply to the particular situation of Indigenous peoples. 

 

In particular, the following Articles are relevant to the instrument:

  • Article 8(2)(a) provides that States shall provide effective mechanisms for prevention of, and redress for any action which has the aim or effect of depriving Indigenous peoples of their integrity as distinct peoples, or of their cultural values or ethnic identities.
  • Article 8(2)(b) provides that States shall provide effective mechanisms for prevention of, and redress for any action which has the effect of dispossessing Indigenous peoples of their lands, territories or resources. 
  • Article 26(3) provides that States shall give legal recognition and protection to these lands, territories and resources.
  • Article 27 provides that States shall establish and implement, in conjunction with Indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to Indigenous peoples’ laws, traditions, customs and land tenure systems, to recognise and adjudicate the rights of Indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used.

 

It is important that appropriate bodies are recognised to represent Aboriginal and Torres Strait Islander people and to assist them to pursue their native title rights and interests.

 

The instruments are a key component of the special procedures in the Act for recognising native title rights and interests. Providing ongoing recognition for the invited bodies will further advance the ability of Aboriginal and Torres Strait Islander peoples to achieve self-determination through pursuing economic, social and cultural development in relation to native title.

 

Conclusion

The instruments are compatible with human rights because they advance human rights particularly the right to enjoy and benefit from culture and the right to self‑determination.

 

[1] United Nations Human Rights Committee, General Comment No. 23 (1994).

[2] The Committee on Economic, Social and Cultural Rights, General Comment No. 21 (2009).

Overview

The Native Title (Recognition as Representative Body–[Body Name]) Instruments 2016, made under the authority of the Minister for Indigenous Affairs, were introduced to address the need for ongoing recognition of representative bodies for Aboriginal and Torres Strait Islander peoples in the context of native title rights and interests. These instruments, made under subsection 203AD(1) of the Native Title Act 1993, recognise seven specified bodies as representative entities for a period of two years, from 1 July 2016 to 30 June 2018. The Act empowers the Minister to recognise eligible bodies as representative entities if they satisfactorily perform their existing functions and are capable of continuing to do so. The instruments serve to extend the recognition period for these bodies, ensuring continuity in their role of assisting native title holders and claimants to gain formal recognition of their rights. This legislative action is crucial in supporting the self-determination and cultural integrity of Indigenous peoples, aligning with the principles of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

Scope and Application

The instruments, Native Title (Recognition as Representative Body–Cape York Land Council) Instrument 2016 and others, are legislative instruments made under subsection 203AD(1) of the Native Title Act 1993. They recognise seven specified Aboriginal and Torres Strait Islander representative bodies as the representative body for certain areas for a period of two years from 1 July 2016 to 30 June 2018. These representative bodies are already performing their functions satisfactorily and are deemed capable of continuing to do so. The instruments also revoke existing recognition instruments issued in 2015, with the new recognition taking effect from the date the instruments come into force. These instruments are applicable to the specified representative bodies within the designated areas and are subject to the conditions and provisions outlined in the Native Title Act 1993. The instruments are compatible with human rights as they support the right to enjoy and benefit from culture and the right to self-determination, engaging with relevant international covenants and the United Nations Declaration on the Rights of Indigenous Peoples.

Key Provisions

The main operative sections of these instruments (sections 3 and 4) recognise seven specified Aboriginal and Torres Strait Islander bodies as representative bodies for specified areas for a period of two years, from 1 July 2016 to 30 June 2018 (section 3(1)). The instruments also revoke the previous recognition instruments for these bodies (section 4). These instruments are made under section 203AD(1) of the Native Title Act 1993, which allows the Minister for Indigenous Affairs to recognise a body as a representative body if the Minister is satisfied that the body performs, or would be able to perform, its functions satisfactorily (subsection 203AD(1)). The instruments comply with the requirement that the period of recognition must be at least one year but no more than six years (subsection 203AD(3A)). The Minister was satisfied that the bodies performed, or would be able to perform, their functions satisfactorily (subsection 203AD(2)). The Minister also considered the matters specified in subsection 203AD(3B) in determining the period of recognition. The obligations imposed by these instruments on the recognised bodies include performing their functions as representative bodies, which include facilitating and assisting registered native title bodies corporate, native title holders and native title claimants to gain formal recognition of their native title rights and in the exercise of those rights. These obligations are set out in the Native Title Act 1993 and the recognised bodies must comply with these obligations as part of their recognition as representative bodies. Breaches of these obligations may result in consequences under the Native Title Act 1993, such as the Minister revoking the recognition of the body as a representative body or the body being subject to a review by the Federal Court. The instruments themselves do not impose specific offences, penalties, or consequences for breach, but breaches of the obligations under the Native Title Act 1993 may result in civil or criminal consequences, depending on the nature of the breach. The maximum penalties for offences under the Native Title Act 1993 vary depending on the offence and can include fines of up to $22,200 for individuals and $111,000 for bodies corporate, as well as imprisonment for up to two years.

Legal classification tags

Area of Law
Indigenous Peoples & Native Title Law
Instrument
Legislative Instrument
Concepts
Definitions & Interpretation
Licensing & Registration
Reporting & Disclosure Obligations
Rights & Protections

Interactions

Authorises

All Versions

Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.