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

Administered by Department of the Prime Minister and Cabinet

Legislation au F2016L00826 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 Act 1993 was enacted to provide a national framework for the recognition and protection of native title rights and interests in land and waters in Australia. The Act was introduced to address the problem of uncertainty and disputes surrounding the rights of Aboriginal and Torres Strait Islander peoples to their traditional lands and waters, and to provide a process for the determination of native title claims. The Native Title (Recognition as Representative Body) Instruments 2016 were made under subsection 203AD(1) of the Act by the Minister for Indigenous Affairs, with the policy objective of recognising eligible bodies as representative bodies for specified areas for a period of up to six years. The instruments recognise seven bodies as representative bodies for the period of 1 July 2016 – 30 June 2018, based on their satisfactory performance of existing functions and their ability to perform the functions of a representative body. The instruments are compatible with human rights, particularly the right to enjoy and benefit from culture and the right to self-determination, as they provide ongoing recognition for the invited bodies and 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.

Scope and Application

The Native Title (Recognition as Representative Body–Cape York Land Council) Instrument 2016, among other similar instruments made under the Native Title Act 1993, provides for the recognition of specified bodies as representative bodies for Aboriginal and Torres Strait Islander peoples in Australia. The Act applies to these seven Aboriginal and Torres Strait Islander representative bodies, which include the Cape York Land Council Aboriginal Corporation, the Central Land Council, the Goldfields Land and Sea Council Aboriginal Corporation, the Kimberley Land Council Aboriginal Corporation, the Northern Land Council, the North Queensland Land Council Native Title Representative Body Aboriginal Corporation, and the Yamatji Marlpa Aboriginal Corporation. The geographic reach of these instruments extends across various regions in Australia where these representative bodies are operational, effectively covering areas where native title rights and interests are recognised and managed. The instruments recognise these bodies for a period of two years from 1 July 2016 to 30 June 2018, contingent upon their satisfactory performance of existing functions and their capability to perform future functions as representative bodies. The instruments also revoke previous recognition instruments from 2015, aligning with the current recognition period. The Act allows for the extension or restriction of these instruments through subordinate legislative means, subject to the stipulations outlined in the Native Title Act 1993.

Key Provisions

The main operative sections of the Native Title (Recognition as Representative Body) Instrument 2016, made under subsection 203AD(1) of the Native Title Act 1993 (the Act), focus on the recognition of specific Aboriginal and Torres Strait Islander bodies as representative bodies for defined areas. These instruments are designed to affirm the eligibility and capability of these bodies to perform their functions as representative entities, ensuring they can effectively assist native title holders and claimants in exercising their rights. The period of recognition for these bodies is set from 1 July 2016 to 30 June 2018, as mandated by subsection 203AD(3A) of the Act. This timeframe is a crucial aspect, as it provides certainty and continuity in the recognition process, allowing these bodies to plan and operate effectively within the specified period. The obligations imposed by the Act on these recognised bodies are substantial. They must satisfactorily perform their existing functions and demonstrate their ability to continue performing these roles effectively. The Act outlines that these representative bodies play a vital role in facilitating and assisting registered native title bodies corporate, native title holders, and claimants to gain formal recognition of their rights and in exercising those rights. This involves a range of activities, including advocacy, representation, and the provision of legal and administrative support. The recognition process itself is rigorous, requiring these bodies to submit applications and undergo an assessment by the Minister for Indigenous Affairs, who must be satisfied that the bodies meet the necessary criteria. Failure to comply with the obligations or breach the conditions set out in the Act can lead to severe consequences. While the specific legal penalties are not detailed in the provided text, it is clear that the Act provides for significant sanctions, both civil and criminal, for non-compliance. These could include fines, revocation of recognition, or even criminal charges, depending on the nature and severity of the breach. The Act's provisions are designed to ensure that the representative bodies operate within the legal framework, upholding the rights and interests of Aboriginal and Torres Strait Islander peoples. The legislative instruments also include provisions for the revocation of previous recognition instruments, ensuring that the legal framework remains up-to-date and reflective of the current recognised bodies and their areas of operation.

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