Explanatory Statement
Native Title Act 1993
Recognition under subsection 203AD(1A)
No. 3 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 transitionally affected area as it stood on that day; and
b) during the transition period, applied to be the representative body for that area.
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 South West Aboriginal 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 one year from 1 July 2007. During the transition period, and within the period specified in the invitation, the South West Aboriginal 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 South West Aboriginal 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 2008.
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 recognition, protection and resolution of native title claims. This Act was introduced by the Australian Parliament to provide a mechanism for the recognition and protection of native title rights, which had previously been largely unrecognised by the common law. The explanatory statement for F2007L02011, made under subsection 203AD(1A) of the Native Title Act 1993, indicates that the Commonwealth Minister for Families, Community Services and Indigenous Affairs is required by legislative instrument to recognise as the representative body for a transitionally affected area, a body that met specific criteria, namely that it was the representative body on the day the transition period commenced and applied to be the representative body during the transition period. The policy objective here is to ensure that recognised bodies continue to represent the interests of native title holders effectively during a transition period, with the instrument providing that the recognition of the South West Aboriginal Land and Sea Council Aboriginal Corporation as the representative body for a specified area commences on 1 July 2007 and ceases to have effect at the end of 30 June 2008.
Scope and Application
The Native Title Act 1993, under 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, any body that was the representative body on the day the transition period commenced and applied to be the representative body during the transition period. The Act specifies that such recognition takes effect from 1 July 2007 and ceases to have effect at the end of 30 June 2008. In accordance with this provision, the South West Aboriginal Land and Sea Council Aboriginal Corporation has been recognised as the representative body for the area described in Schedule 1. This legislative instrument does not have regulatory implications, business impacts, compliance costs, or competition effects. The Minister has no discretion in recognising these bodies, though consultation was not deemed necessary as bodies were informed of the criteria for recognition periods and were invited to provide relevant information for consideration.
Key Provisions
The key operative sections of the legislation, F2007L02011, are subsections 203AD(1A), 203AD(2), and 203AD(2A) of the Native Title Act 1993. Subsection 203AD(1A) requires the Commonwealth Minister for Families, Community Services and Indigenous Affairs to recognise certain bodies as representative bodies for transitionally affected areas. This recognition must be for the same period that the body was invited to apply for recognition, as outlined in subsection 203AD(2). Subsection 203AD(2A)(a) stipulates that this recognition takes effect on 1 July 2007, while subsection 203AD(2A)(b) specifies that the recognition will cease to have effect at the end of 30 June 2008.
The obligations and requirements imposed by the Act on the parties or entities it governs are primarily centred around the recognition of the South West Aboriginal Land and Sea Council Aboriginal Corporation as the representative body for a specified area. The Act mandates that the Minister must recognise this body, given that it was the representative body on the day the transition period commenced and applied for recognition during the transition period. The Act also outlines that the period of recognition must be aligned with the period for which the body was invited to apply, and the Minister has no discretion in this matter. The South West Aboriginal Land and Sea Council Aboriginal Corporation was informed of the criteria the Minister would consider when deciding the recognition period and was also given the opportunity to provide comments or information about appropriate recognition terms.
Under the Act, breaches of the specified recognition requirements or failure to comply with the statutory obligations could result in civil or criminal consequences. However, the explanatory statement indicates that the instrument is not regulatory in nature and does not impact business activity. Consequently, there are no compliance costs or competition impacts for businesses. The Act does not detail specific offences, penalties, or consequences for breaches within the explanatory statement, but the recognition of the South West Aboriginal Land and Sea Council Aboriginal Corporation as the representative body is clearly defined in terms of its commencement and cessation dates, ensuring clarity and legal certainty for the involved parties.