Explanatory Statement
Native Title Act 1993
Recognition under subsection 203AD(1A)
No. 7 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 Goldfields Land and Sea 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 Goldfields Land and Sea 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 Goldfields Land and Sea 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, enacted by the Australian Parliament, was designed to address the legal recognition of native title rights and interests within Australian law, providing a framework for the protection and recognition of the traditional rights of Aboriginal and Torres Strait Islander peoples. In 2007, the Act was amended to include provisions that aimed to ensure a smooth transition for certain areas affected by native title claims. This amendment was introduced to provide certainty and stability in the recognition of representative bodies for these transitionally affected areas, ensuring that there is a clear and continuous pathway for these bodies to operate within the legal framework established by the Act. The recognition of the Goldfields Land and Sea Council Aboriginal Corporation as the representative body for a specific area from 1 July 2007 to 30 June 2010 is an example of this legislative intent, providing stability and continuity in the management and representation of native title interests.
Scope and Application
The F2007L02015 instrument, made under subsection 203AD(1A) of the Native Title Act 1993, pertains specifically to the recognition of the Goldfields Land and Sea Council Aboriginal Corporation as the representative body for a transitionally affected area. This legislation applies to the entity named in the instrument, which must have been the representative body for the specified area on the commencement day of the transition period and must have applied for recognition during the transition period. The Act's jurisdictional reach is national, as it falls under the purview of the Commonwealth of Australia. The instrument provides that the recognition of this Aboriginal corporation as the representative body commences on 1 July 2007 and ceases on 30 June 2010, aligning with the period for which the corporation was invited to apply for recognition. Notably, the Act does not provide the Minister with discretionary powers regarding the recognition of these bodies, and hence, no consultation was undertaken. However, the entities in question were informed of the criteria the Minister would consider in determining the recognition periods and were encouraged to provide relevant information or comments.
The instrument is non-regulatory, imposing no business activity impacts or compliance costs, nor does it affect competition. The legislative instrument strictly adheres to the parameters set by the Native Title Act 1993, ensuring that the recognition period for the Goldfields Land and Sea Council Aboriginal Corporation aligns with the invitation period. Furthermore, the Act mandates that the recognition of any such body under subsection 203AD(1A) will terminate at the end of the specified recognition period, thereby ensuring a clear and defined timeframe for the corporation's recognition as the representative body.
Key Provisions
The main operative sections of this legislation are subsections 203AD(1A), 203AD(2), and 203AD(2A). Subsection 203AD(1A) mandates the Commonwealth Minister for Families, Community Services and Indigenous Affairs to recognise as the representative body for a transitionally affected area, a body that was recognised on the day the transition period commenced and applied for recognition during the transition period (subsection 203AD(1A)). The recognition takes effect on 1 July 2007 and ceases to have effect on the day specified in the instrument of recognition (subsection 203AD(2)). The prior recognition of a representative body ceases to have effect at the end of 30 June 2007 (subsection 203AD(2A)(a)), and the 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(2A)(b)).
The obligations and requirements imposed by the Act on the parties or entities it governs are primarily centred on the recognition of the Goldfields Land and Sea Council Aboriginal Corporation as the representative body for a specified area. The Goldfields Land and Sea Council Aboriginal Corporation was required to apply for recognition as the representative body for the area during the transition period, as specified in the invitation extended by the Minister under section 203A. The Minister, in turn, was required to recognise the Goldfields Land and Sea Council Aboriginal Corporation as the representative body for the area for a period of three years from 1 July 2007. The Minister was not required to consult with the parties or entities involved, as the decision was made under a legislative instrument without any discretion.
The Act also provides for certain consequences for breach of its provisions. However, as the instrument is not regulatory in nature, there are no specific offences, penalties, or civil/criminal consequences outlined in the Act. The Act does not impact on business activity and will have no compliance costs for business or competition impact. The main consequence of non-compliance would be the failure to recognise the Goldfields Land and Sea Council Aboriginal Corporation as the representative body for the area, which may have implications for the administration of native title in the specified area. Nonetheless, the Act itself does not provide for any specific penalties or consequences for non-compliance.