Explanatory Statement
Native Title Act 1993
Recognition under subsection 203AD(1A)
No. 12 of 2007
This instrument is made under subsection 203AD(1A) of the Native Title Act 1993
(the Act).
This subsection, which took effect on 15 April 2007, provides that the
Commonwealth Minister for Families, Community Services and Indigenous Affairs must, by legislative instrument, recognise as the representative body for a transitionally affected area, a body that:
a) on the day the transition period commenced, was the representative body for the area as it stood on that day; and
b) during the transition period, applied under section 203AB to be the representative body for that area as it stood on the day the application was made.
Paragraph 203AD(2A)(a) of the Act provides that the prior recognition of a representative body ceases to have effect at the end of 30 June 2007.
As the representative body for the area described in Schedule 1 on the day the transition period commenced, the Cape York Land Council Aboriginal Corporation was invited by the Minister under section 203A to apply for recognition as the representative body for the area for a period of three years from 1 July 2007. During the transition period, and within the period specified in the invitation, the Cape York Land Council Aboriginal Corporation applied for recognition as the representative body for that area.
Paragraph 203AD(2)(b) of the Act provides that recognition of a representative body under subsection 203AD(1A) takes effect on 1 July 2007. Paragraph 203AD(2A)(b) of the Act provides that recognition of a representative body under subsection 203AD(1A) ceases to have effect at the end of the day specified in the instrument of recognition.
Subsection 203AD(1A) requires the Minister to recognise certain bodies as representative bodies (see above). Paragraph 203AD(2D)(a) requires the period for which these bodies are recognised to be the same as the period for which they were invited to apply. As the Minister has no discretion in relation to these matters, consultation about the making of the instrument was not undertaken. However, bodies that will be recognised under subsection 203AD(1A) were advised of criteria to which the Minister would have regard in making decisions about recognition periods. They were also advised that it was open to them to provide comments or information about appropriate recognition terms, and that any relevant information would be taken into account.
The instrument is not regulatory in nature, will not impact on business activity and will have no compliance costs for business or competition impact.
The instrument provides that the recognition of the Cape York Land Council Aboriginal Corporation as the representative body for the area commences on 1 July 2007 and will cease to have effect at the end of 30 June 2010.
Authority: Subsection 203AD(1A) of the Native Title Act 1993
Overview
The Native Title Act 1993 was enacted to address the legal recognition and protection of native title rights in Australia, providing a framework for the determination and recognition of native title claims. This legislative instrument, made under subsection 203AD(1A) of the Act, pertains specifically to the recognition of certain bodies as representative entities for transitionally affected areas. The instrument mandates the Commonwealth Minister for Families, Community Services and Indigenous Affairs to recognise the Cape York Land Council Aboriginal Corporation as the representative body for a specified area for a period of three years from 1 July 2007. The policy objective here is to ensure a smooth transition in the recognition of these bodies during a specified transition period, with the recognition ceasing to have effect at the end of 30 June 2010. This legislative measure was implemented by the Australian Parliament to provide clarity and continuity in the recognition process for these representative bodies.
Scope and Application
The F2007L02020 instrument, made under subsection 203AD(1A) of the Native Title Act 1993, specifically addresses the recognition of the Cape York Land Council Aboriginal Corporation as the representative body for a transitionally affected area within the context of native title. This legislative instrument applies to the Cape York Land Council Aboriginal Corporation, recognising it as the representative body for a specified area, effective from 1 July 2007, and ceasing on 30 June 2010. The Act mandates that the Minister for Families, Community Services and Indigenous Affairs must recognise this body, provided it fulfilled certain criteria during the transition period. This legislation does not extend to any other entities or industries beyond the specified representative body and its designated area, and it does not impose any regulatory, business, or competition impacts. The instrument strictly adheres to the provisions outlined in the Native Title Act 1993, with no discretion left to the Minister, and it does not introduce any exclusions or exemptions beyond those already stipulated within the Act itself.
Key Provisions
The Native Title Act 1993 (the Act) mandates that the Commonwealth Minister for Families, Community Services and Indigenous Affairs must recognise certain bodies as representative bodies for transitionally affected areas (subsection 203AD(1A)). Specifically, the Act requires recognition of bodies that were representative bodies for the area as it stood on the day the transition period commenced, and who applied under section 203AB to remain as the representative body during the transition period (subsection 203AD(1A)(a) and (b)). This legislative requirement is straightforward: any body meeting these criteria must be recognised by the Minister. The recognition of such bodies is set to take effect from 1 July 2007 and will cease at the end of 30 June 2010 (subsection 203AD(2)(b) and (2A)(b)).
Under the Act, the obligations placed on the Minister are clear and non-discretionary. The Minister must recognise the Cape York Land Council Aboriginal Corporation, which was the representative body on the commencement of the transition period and applied to continue in this role, as the representative body for the specified area. Additionally, the Act mandates that the period for which these bodies are recognised must align with the period for which they were invited to apply (subsection 203AD(2D)(a)). While the Act does not require consultation with the bodies in question, they were nonetheless informed of the criteria the Minister would consider in determining recognition periods and were given the opportunity to provide comments or information on appropriate recognition terms (subsection 203AD(2D)(a)).
Breach of the requirements outlined in the Act does not result in criminal or civil penalties, as the legislation is not regulatory in nature and does not impact business activity or impose compliance costs. The primary consequence of non-compliance would be the failure to recognise the Cape York Land Council Aboriginal Corporation as the representative body, which could lead to legal and administrative challenges in asserting native title rights for the area in question. However, such non-compliance would not attract specific penalties under this legislative instrument. The Act's focus remains on ensuring the continuity of recognised bodies in their representative roles during the specified transition period.