Commonwealth Numbered Regulations - Explanatory Statements

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NATIVE TITLE (PRESCRIBED BODIES CORPORATE) REGULATIONS 1999 1999 NO. 151

STATUTORY RULES 1999 No. 151

Issued by the Authority of the Minister for Aboriginal and Torres Strait Islander Affairs

Native Title Act 1993

Native Title (Prescribed Bodies Corporate) Regulations 1999

These Regulations were made under subsection 215(1) of the Native Title Act 1993 (the Act). That subsection empowers the Governor-General to make Regulations for the purposes of the Act.

For the purposes of recognition and protection of native title the Act empowers the Federal Court to make determinations of native title in relation to areas of land. Section 56 of the Act empowers the Federal Court when making a determination of native title to determine whether the native title rights and interests are to be held in trust for the native title holders (defined as " common law holders") and, if so, by which prescribed bodies. Section 57 of the Act requires a prescribed body corporate to perform certain functions depending upon whether the body corporate is acting as a trustee or as an agent of the common law holders.

Section 58 of the Act provides for the making of regulations prescribing the functions to be performed by a registered native title body corporate. Section 59 provides that regulations may prescribe the kinds of body corporate that may be determined under section 56 or 57.

These Regulations repeal and replace the Native Title (Prescribed Bodies Corporate) Regulations 1994 and the Native Title (Prescribed Bodies Corporate) Regulations Amendment 1998.

Regulation 4 ensures the continuity of bodies corporate which were validly prescribed under the repealed Regulations. Regulation 5 permits a prescribed body corporate to act for or be a trustee for more than 1 group of common law holders if a native title determination applies to each group.

Subregulation 6(1) sets out the management, financial and consultative functions of a body which holds native title rights and interests in trust under section 56. Subregulation 6(2) allows such a body to act on behalf of common law holders in respect of consultations, the entering into of agreements and the exercise of procedural rights. Subregulation 7(1) sets out the representative, managerial, financial and consultative functions of a body which acts as an agent of the common law holders under section 57 of the Act. Subregulation 7(2) would also allow such a body to act on behalf of common law holders in respect of consultations, agreements, acceptance of notices and the exercise of procedural rights.

Regulation 8 requires a prescribed body corporate which acts either as trustee or as agent to consult with and obtain the consent of common law holders before making a decision to surrender title or do or agree to do any act which would affect the native title rights or interests of the common law holders. This regulation also requires a prescribed body corporate body to ensure understanding on the part of the common law holders and to follow traditional decision making processes where applicable. Subregulations 8(7) and (8) provide that an agreement to give effect to a native title decision of a prescribed body corporate other than an indigenous land use agreement under sections 24EB or 24EB of the Act has no effect if the agreement would surrender or affect native title contrary to Regulation 8.

Regulation 9 describes the documentation that constitutes certification of compliance with consultation and consent requirements. Proposed Regulation 10 provides access to documents relating to decisions made under Regulations 8 and 9.

The Regulations commenced on Gazettal with the exception of Regulation 4 which is taken to have commenced on 30 September 199 8, the date on which the amendment to section 59 of the Act took effect. In accordance with section 48 of the Acts Interpretation Act 1901, no person will be disadvantaged and no liabilities will be imposed in respect of anything done or omitted to be done before the date of notification.