Federal Register of Legislation - Australian Government

Primary content

Regulations as made
These regulations amend the Corporations (Aboriginal and Torres Strait Islander) Regulations 2017, the Native Title (Indigenous Land Use Agreements) Regulations 1999 and the Native Title (Prescribed Bodies Corporate) Regulations 1999 to clarify and strengthen the requirements for prescribed bodies corporate to consult and obtain consent in relation to certain decisions and the making of compensation applications.
Administered by: Attorney-General's; Prime Minister and Cabinet
Registered 22 Mar 2021
Tabling HistoryDate
Tabled HR23-Mar-2021
Tabled Senate11-May-2021
Date of repeal 12 Aug 2021
Repealed by Division 1 of Part 3 of Chapter 3 of the Legislation Act 2003

EXPLANATORY STATEMENT

 

Issued by the authority of the Minister for Indigenous Australians

 

Corporations (Aboriginal and Torres Strait Islander) Act 2006

Native Title Act 1993

 

Registered Native Title Bodies Corporate Legislation Amendment Regulations 2021

 

 

Overview 

The Registered Native Title Bodies Corporate Legislation Amendment Regulations 2021 (Amendment Regulations) amend the Corporations (Aboriginal and Torres Strait Islander) Regulations 2017 (CATSI Regulations), the Native Title (Indigenous Land Use Agreements) Regulations 1999 (ILUA Regulations) and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (PBC Regulations).

The Amendment Regulations form part of a package of reforms alongside the Native Title Legislation Amendment Act 2021 (Amendment Act), which amends the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act) and Native Title Act 1993 (Native Title Act) to improve native title claims resolution, agreement-making, decision-making and dispute resolution processes.

The Amendment Regulations clarify and strengthen the requirements for prescribed bodies corporate (PBCs) to consult and obtain consent in relation to certain decisions and the making of compensation applications. The consultation and consent process is evidenced through a certificate produced by the PBC. A copy of the certificate can be accessed by the Registrar of Aboriginal and Torres Strait Islander Corporations (CATSI Registrar), common law holders or persons that have a substantial interest in the decision to which the certificate relates.

Background

Native title has its origin in the rights recognised in or held by a traditional indigenous society under its laws and customs.[1] Gleeson CJ, Gummow and Hayne JJ in Yorta Yorta Aboriginal Community v Victoria (2002) 194 ALR 538 held that:

… upon acquisition of sovereignty over a particular part of Australia, the Crown acquired a radical title to the land in that part, but native title to that land survived the Crown’s acquisition of sovereignty and radical title. What survived were rights and interests in relation to land or waters. Those rights and interests owed their origin to a normative system other than the legal system of the new sovereign power; they owed their origin to the traditional laws acknowledged and the traditional customs observed by the indigenous peoples concerned.[2]

A fundamental basis of the Native Title Act is that native title rights and interests can be possessed under traditional laws and customs.[3] The Native Title Act regulates native title in relation to land and waters. In addition, the CATSI Act provides for the establishment and regulation of Aboriginal and Torres Strait Islander corporations. The PBC Regulations provide, among other things, that a PBC must be an Aboriginal and Torres Strait Islander corporation as defined by the CATSI Act, unless the Indigenous Land and Sea Corporation is the PBC. Together, this legislation operates to provide the framework for Australia’s recognition of and system for holding, managing and dealing with native title.

Section 55 of the Native Title Act provides that when the Federal Court (Court) makes an approved determination that native title exists, it must, at the same time, or as soon as practicable after the determination, determine which PBC is to hold the native title on trust or perform functions as agent for the native title holders. The functions of a PBC are set out in section 56 of the Native Title Act (which deals with holding the native title on trust) and section 57 (which deals with non‑trust functions).

Once a PBC is registered on the National Native Title Register kept by the Native Title Registrar of the National Native Title Tribunal, it becomes a registered native title body corporate (RNTBC) under sections 57 and 253 of the Native Title Act. Under section 58 of the Native Title Act, the PBC Regulations may make provision for certain matters with respect to RNTBCs. Section 633-1 of the CATSI Act and subsection 215(1) of the Native Title Act provide, in part, that the Governor-General may make regulations prescribing matters required or permitted by those Acts to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to those Acts.

Proposed amendments

The Amendment Regulations modify the CATSI Regulations to provide that the CATSI Registrar has the functions of assessing certificates and notifying the person who requested the assessment the outcome of the assessment. These new functions apply in relation to any certificate prepared under regulation 9 of the PBC Regulations after the commencement of Schedule 1 to the Amendment Regulations.

The Amendment Regulations modify the ILUA Regulations to:

a.       align the definition of “native title decision” to the meaning given in the PBC Regulations;

b.      require an application to register a body corporate agreement, area agreement and an alternative procedure agreement be accompanied by a certificate prepared under regulation 9 of the PBC Regulations; and

c.       update Notes 2 and 3 under subregulations 6(2), 7(2) and 8(2).

The amendments to the ILUA Regulations apply in relation to any native title decision made after the commencement of Schedule 1 to the Amendment Regulations.

The Amendment Regulations modify the PBC Regulations to:

a.       set out all kinds of decisions to which regulations 8 and 8A apply under the definition of “native title decision” in subregulation 3(1);

b.      introduce “high level decision” and “low level decision” classifications for native title decisions, with prescription of consultation requirements determined by the classification;

c.       allow for certain kinds of decisions to be covered by “standing instructions”;

d.      update the definition of PBC to reflect the Indigenous Land and Sea Corporation’s change of name;

e.       modify the process by which a PBC must consult and obtain consent for subsequent determinations of native title;

f.       add more functions for PBCs and, in particular, in relation to compensation applications;

g.      clarify the consultation and consent requirements in relation to high level decisions, standing instructions decisions, low level decisions, and the making of compensation applications;

h.      require that a certificate prepared under regulation 9 address certain matters in relation to the consultation and consent process and be executed by the PBC in accordance with subsection 99-5(1) or (2) of the CATSI Act or signed by the chief executive officer of the PBC, if one exists; and

i.        ensure that common law holders are able to obtain a copy of a certificate prepared under regulation 9.

Further information is provided about the Amendment Regulations at Attachment A. A Statement of Compatibility with Human Rights is at Attachment B.

Commencement

The Amendment Regulations commence at the same time as the commencement of Part 1 of Schedule 4 to the Amendment Act.

Consultation

The Attorney-General’s Department and the National Indigenous Australians Agency (then the Department of the Prime Minister and Cabinet) jointly consulted on the proposed Amendment Bill and Amendment Regulations. This included public consultation on an options paper (open from 29 November 2017 to 28 February 2018), which was followed by an invitation for written submissions on exposure drafts of the Amendment Bill and Amendment Regulations. Feedback was received from 36 stakeholders during a six-week consultation period (from 20 October to 10 December 2018). The options for reform were drawn from a number of native title reviews, including:

a.       the Australian Law Reform Commission’s report on ‘Connection to Country: Review of the Native Title Act 1993 (Cth)’, published June 2015;

b.      the report to the Council of Australian Governments on the ‘Investigation into Indigenous Land Administration and Use’, published December 2015; and

c.       the Office of the Registrar of Indigenous Corporation’s 2017 Technical Review of the CATSI Act.

During the consultation stages, the Government received submissions from, and conducted meetings with, a wide range of stakeholders in the native title system, including native title representative bodies, PBCs and other Indigenous stakeholders.

The Expert Technical Advisory Group, comprising nominated representatives from the National Native Title Council, states and territories, industry peaks and the National Native Title Tribunal, was also consulted in order to provide technical advice to the Government, which fed into the proposed Amendment Regulations.

Financial impact

Nil


ATTACHMENT A

Explanation of Regulations

Section 1 – Name

The instrument is the Registered Native Title Bodies Corporate Legislation Amendment Regulations 2021 (Amendment Regulations).

Section 2 – Commencement

The Amendment Regulations commence at the same time as the commencement of Part 1 of Schedule 4 to the Native Title Legislation Amendment Act 2021 (Amendment Act). However, the provisions do not commence at all if that Part does not commence. The Amendment Regulations are made in reliance of section 4 of the Acts Interpretation Act 1901 (AI Act).

Section 3 – Authority

The instrument is made under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act) and the Native Title Act 1993 (Native Title Act).

Section 4 – Schedules

This section provides that the Corporations (Aboriginal and Torres Strait Islander) Regulations 2017 (CATSI Regulations), Native Title (Indigenous Land Use Agreements) Regulations 1999 (ILUA Regulations) and Native Title (Prescribed Bodies Corporate) Regulations 1999 (PBC Regulations) are amended or repealed as set out in the applicable Schedule to this instrument, and any other item in a Schedule to this instrument has effect according to its terms.

Schedule 1 - Amendments

Corporations (Aboriginal and Torres Strait Islander) Regulations 2017

Section 1

This section inserts into section 5 the definition of “PBC Regulations”, which means the PBC Regulations.

Section 2

This section amends the heading of section 55 from “Functions of the Registrar” to “Public information functions of the Registrar”.

Section 3

This section adds section 55A at the end of Part 11, which prescribes the registered native title body corporate (RNTBC) functions of the Registrar of Aboriginal and Torres Strait Islander Corporations (CATSI Registrar). These functions include assessing whether or not, in the CATSI Registrar’s opinion, a certificate evidencing consultation and consent complies with regulation 9 of the PBC Regulations. This assessment can only be done on request by a common law holder or a person who has a substantial interest in the decision to which the certificate relates.

The CATSI Registrar also has the function of notifying the person who requested the assessment and the PBC of the date of the certificate, the decision to which the certificate relates and in the CATSI Registrar’s opinion whether the certificate complies with regulation 9 of the PBC Regulations. Regulation 9 sets out the requirements for a certificate in relation to the consultation and consent which a PBC must prepare in writing when making a native title decision or a decision to make a compensation claim.

The CATSI Registrar’s powers do not have any effect for the purposes of subregulations 9(6) and (7) of the PBC Regulations, which state the certificate prepared in accordance with regulation 9 is prima facie evidence that the body corporate has consulted and obtained consent in relation to the decision as required by regulations 8 and 8B respectively.

To avoid doubt, the CATSI Registrar, when performing the function, is not required to assess the accuracy of the information contained in the certificate, nor whether consultation was properly carried out or consent properly obtained in accordance with regulations 8, 8A or 8B of the PBC Regulations.

The amendments do not include giving the CATSI Registrar the power to direct the PBC to issue a compliant certificate. A PBC’s refusal to properly prepare a certificate under regulation 9 could be a relevant consideration in deciding whether to appoint a special administrator under the CATSI Act, in particular under the proposed new power in the Amendment Act in proposed paragraph 487-5(1)(ca) of the CATSI Act.

Section 4

This section inserts into Part 12 an application provision relating to section 55A. It confirms that section 55A applies in relation to any certificate issued under regulation 9 of the PBC Regulations after the commencement of the relevant amendments.

Native Title (Indigenous Land Use Agreements) Regulations 1999

Section 5

This section inserts a new heading, “Part 1 – Preliminary” before regulation 1.

Section 6

This section amends the definition of “native title decision” in regulation 5 to the meaning given in subregulation 3(1) of the PBC Regulations.

Section 7

This section inserts a new heading, “Part 2 – Documents, information and forms” before regulation 6.

Section 8

This section amends paragraph 6(2)(e) to replace the reference to “document mentioned in subregulation 9 (2)” with a reference to “certificate under regulation 9” as a consequence of the amendment to regulation 9 of the PBC Regulations made by section 49.

Section 9

This section amends Note 2 to subregulation 6(2) to clarify that regulation 8 of the PBC Regulations provides that a PBC, before making a decision to enter a body corporate agreement, must consult the common law holders.

Sections 10

This section amends Note 3 under subregulation 6(2) to state that regulation 9 of the PBC regulations sets out the requirements for the certificate that will provide evidence of consultation about, and consent to, the decision.

Sections 11 to 12

These sections amend paragraph 7(2)(g) to clarify that a certificate that relates to the native title decision made under regulation 9 of the PBC Regulations must accompany an application to register an area agreement if an RNTBC is a party to an area agreement, the agreement gives effect to a native title decision in an area (the affected area) and for any part of the affected area where there is a representative body that is not a party to the agreement or no representative body.

Section 13

This section amends Note 2 after subregulation 7(2) to clarify that regulation 8 of the PBC Regulations provides that a PBC, before making a decision to enter an area agreement, must consult the common law holders.

Section 14

This section amends Note 3 under subregulation 7(2) to replace the reference to “document” with a reference to “certificate” as a consequence of the amendment to regulation 9 of the PBC Regulations made by section 49.

Sections 15 to 16

These sections amend paragraph 8(2)(e) to ensure that a certificate that relates to a native title decision under regulation 9 of the PBC Regulations accompanies an application to register an alternative procedure agreement if an RNTBC is a party to the agreement, the agreement gives effect to a native title decision in an area (the affected area) and for any part of the affected area there is no representative body.

Section 17

This section amends Note 2 after subregulation 8(2) to clarify that regulation 8 of the PBC Regulations provides that a PBC, before making a decision to enter an alternative procedure agreement, must consult the common law holders.

Section 18

This section is a consequential amendment as a result of the amendments to regulation 9 of the PBC Regulations made by section 49. It amends Note 3 under subregulation 8(2) to clarify that regulation 9 of the PBC Regulations sets out the requirements for the certificate that will provide evidence of consultation about, and consent to, the decision.

Section 19

This section inserts, after regulation 9, the heading, “Part 3 – Application, saving and transitional provisions” and regulation 10, which is an application provision that confirms the amendments to the ILUA Regulations apply in relation to any native title decision made after the commencement of Schedule 1 of the Amendment Regulations.

Native Title (Prescribed Bodies Corporate) Regulations 1999

Sections 20 to 23

These sections insert the definitions of “chief executive officer”, “high level decision”, “low level decision”, “specified native title determination”, “specified persons” and “standing instructions decision” as well as amend the definitions of a “native title decision” and “prescribed body corporate” in subregulation 3(1).

Chief executive officer

The purpose of including the definition of “chief executive officer” of a PBC or an RNTBC is to identify the relevant person who is able to sign a certificate under paragraph 9(4)(b). A “chief executive officer” means any of the following:

a.       if the body is an Aboriginal and Torres Strait Islander corporation, the person primarily and directly responsible to the directors for the general and overall management of the body corporate. This definition reflects the scope of subsection 694-85(1) of the CATSI Act;

b.      if the body corporate is the Indigenous Land and Sea Corporation (as established under s 191A of the Aboriginal and Torres Strait Islander Act 2005 (ATSI Act)), its Chief Executive Officer as established under s 192K of the ATSI Act; or

c.       in any other case, the officer having the day to day management of the affairs of the body corporate.

Alternatively, a certificate made under regulation 9 can be executed by the body corporate in accordance with subsections 99-5(1) or (2) of the CATSI Act (i.e. by two directors, a director and a secretary, or a sole director).

High level decision

A “high level decision” means a decision covered by paragraph (a), (b), (c) or (d) in the definition of a native title decision. High level decisions require consultation with common law holders (including via standing instructions where relevant).

Low level decision

A “low level decision” is a native title decision other than a high level decision. Low level decisions are those for which the PBC may, following consultation and with the consent of common law holders, adopt an alternative consultation process in their constitution (see regulation 8A amended by section 49).

Specified native title determination

“Specified native title determination” has the meaning given by subregulation 8B(2).

Specified persons

“Specified persons” has the meaning given by subregulations 8B(3) and (4).

Standing instructions decision

A “standing instructions decision” is a native title decision that is:

a.       a low level decision;

b.      a decision to enter an indigenous land use agreement under Subdivision B, C or D of Division 3 of Part 2 of the Native Title Act in relation to the doing of an act by or for the benefit of the PBC; or

c.       a decision to enter an agreement under Subdivision P (right to negotiate) of that Division in relation to which the PBC is the only grantee party.

The purpose of this amendment is to clarify that standing instructions are able to be given in relation to decisions to enter agreements where the PBC is the instigator and beneficiary of the agreement (see subregulations 8(2) and (8)). This will prevent the PBC engaging in a time-consuming and costly consultation process each time it wants to enter this type of agreement. Native title holders are able to give standing instructions to their PBC to make certain decisions and also be able to revoke or put conditions on these standing instructions at any time.

Example: A PBC manages native title over an area that is rich in minerals. The PBC has set up an exploration business. It plans to apply for a number of exploration licences over the next three years. The Native Title Act requires an Indigenous Land Use Agreement (ILUA) or section 31 agreement between the PBC and the state or territory government every time the PBC applies for an exploration licence. The amendments allow native title holders to give their PBC standing instructions to enter into exploration agreements without having to come back to the native title holders each time a new agreement is proposed. The standing instructions would only be for agreements where the PBC has applied for the exploration licence. For agreements with other (external) explorers, the PBC would still need to consult the native title holders and seek their consent.

Native title decision

The purpose of this amendment is to bring all types of decisions to which the consultation and consent processes in regulations 8 and 8A apply, “native title decisions”, under one definition. “Native title decision’ means a decision to:

a.       surrender native title rights and interests in relation to land or waters; or

b.      enter an ILUA under Subdivision B, C or D of Division 3 of Part 2 of the Native Title Act or an agreement under Subdivision P of that Division; or

c.       to allow a person who is not a common law holder, or a class of persons who are not common law holders, to become members of a PBC; or

d.      to include one or more consultation processes in the constitution of a PBC; or

e.       to do, or to agree to, any act that would otherwise affect the native title rights or interests of the common law holders (other than a decision to make a compensation application).

Prescribed body corporate

Paragraph (b) of the definition of “prescribed body corporate” is substituted so that there is a reference to the “Indigenous Land and Sea Corporation” instead of the “Indigenous Land Corporation”. The name of the entity was updated to the “Indigenous Land and Sea Corporation” pursuant to the Aboriginal and Torres Strait Islander Amendment (Indigenous Land Corporation) Act 2018 (ATSI Amendment Act). The update to the PBC Regulations is not strictly required because section 25B of the AI Act provides for references to the old name to be read as references to the new name. On that basis, transitional provisions have not been included for these amendments.

Section 24

This section substitutes the heading to regulation 4A with “4A Obtaining consent to subsequent determination in relation to a prescribed body corporate”.

Section 25

Subsection 59A(3) of the Native Title Act confirms that the regulations may prescribe the ways in which the consent of common law holders may be obtained for determinations made under section 56 or paragraph 57(2)(b) by the Federal Court that the PBC is to be the PBC for other common law holders.

This section amends paragraph 4A(a) to clarify that in relation to “initial holders” (the common law holders for whom the PBC holds native title rights and interests in trust or for whom it is an agent PBC) a PBC must obtain their consent utilising the relevant process of decision-making under the Aboriginal or Torres Strait Islander traditional laws and customs of the initial holders, or if there is no such process, in accordance with the process of decision-making agreed to, or adopted by, the initial holders in relation to giving the consent.

Sections 26

This section omits the reference to “(Act s 56)” from the heading of regulation 6 as a consequence of the prescription of additional functions in regulation 6 under section 58 of the Act (see section 32).

Section 27

This section inserts before subregulation 6(1) the subheading “Body Corporate that holds native title rights and interests”.

Sections 28 to 31

Regulation 6 prescribes functions of PBCs that hold native title rights and interests in trust under section 56 of the Native Title Act. The amendments to subregulation 6(1) clarify the functions that a PBC has in relation to native title rights and interests that are held in trust.

Section 28 amends paragraph 6(1)(b) to provide that a PBC has the function of holding in trust money connected with the holding in trust of the native title rights and interests (including payments received as compensation or otherwise related to the native title rights and interests). The money held in trust could relate to compensation related to native title and money raised for maintaining native title. Subregulation 6(1)(b) does not limit the money that can be held on trust by a PBC.

Section 29 amends paragraph 6(1)(c) to provide that a PBC has the function of investing or otherwise applying the money held in trust as directed by the common law holders.

Section 30 amends paragraph 6(1)(d) to provide that a PBC has the function of consulting with the common law holders in accordance with regulations 8, 8A and 8B. This is a consequential amendment as a result of the amendments to those provisions by sections 46 to 49.

Section 31 amends paragraph 6(1)(e) to provide that a function of a PBC is to perform any other function relating to the holding in trust of the native title rights and interests as directed by the common law holders.

Section 32

This section inserts after subregulation 6(1), subregulation 6(1A) which sets out the functions of an RNTBC pursuant to section 58 of the Native Title Act. Subregulation 6(1A) is only relevant for compensation applications that can be made by an RNTBC in relation to extinguished areas pursuant to paragraph (1A) of the item dealing with who may make compensation applications in the table in subsection 61(1) of the Native Title Act (as amended by the Amendment Act). PBCs must consult with, and obtain the consent of, common law holders or persons who claim to be entitled to compensation before making a compensation application pursuant to regulation 8B.

An RNTBC that holds native title rights and interests in trust and makes a compensation application on behalf of all the persons who claim to be entitled to the compensation has the following functions:

a.       to consult with the persons who claim to be entitled to the compensation in accordance with regulation 8B;

b.      to hold in trust payments received as compensation;

c.       to invest or otherwise apply the money held in trust as directed by the persons entitled to the compensation;

d.      to perform any other function relating to the compensation as directed by the persons entitled to the compensation.

After subregulation 6(1A), the subheading “General” is inserted above subregulation 6(2), which provides for a range powers that support the performance of a PBC’s or an RNTBC’s functions under subregulations 6(1) or (1A), respectively.

Sections 33 to 35

Sections 33 and 34 amend subregulation 6(2) to clarify that without limiting subregulation 6(1) or  6(1A), in order to perform its functions, a PBC or RNTBC may, on behalf of the common law holders or persons entitled to, or who claim to be entitled to, the compensation:

a.       consult other persons or bodies; and

b.      enter into agreements; and

c.       exercise procedural rights; and

d.      accept notices required by any law of the Commonwealth, a State or a Territory to be given to the common law holders or persons entitled to, or who claim to be entitled to, the compensation.

Section 35 inserts into the Note after subregulation 6(2) a reference to RNTBCs to alert the reader to the fact that a PBC or RNTBC acting as trustee for common law holders is also subject to regulations 8 to 10.

Section 36

This section omits reference to “(Act s 57)” from the title of regulation 7. The amendments at sections 38 to 43 incorporate into regulation 7 functions under section 58 of the Native Title Act.

Section 37

This section inserts before subregulation 7(1) the subheading “Body corporate that does not hold native title rights and interests”.

Sections 38 to 42

Regulation 7 provides for the functions of RNTBCs that are agent PBCs in relation to native title rights and interests of common law holders. The amendments to subregulation 7(1) clarify the functions that an agent RNTBC has in relation to native title rights and interests for the purposes of section 58 of the Native Title Act.

Section 38 amends subregulation 7(1) to state that for the purposes of section 58 of the Act, an RNTBC that is an agent PBC in relation to native rights and interests of common law holders has various functions, which are then listed from paragraphs (a) to (f).

Section 39 amends paragraph 7(1)(a) by repealing the paragraph and replacing it with the function of acting as agent of the common law holders in respect of matters relating to the native title.

Section 40 amends paragraph 7(1)(c) to provide that an RNTBC has the function of holding in trust money connected with the native title rights and interests (including payments received as compensation or otherwise related to those rights and interests).

Section 41 amends paragraph 7(1)(d) to provide that an RNTBC has the function of investing or otherwise applying the money held in trust as directed by the common law holders.

Section 2 amends paragraph 7(1)(e) to provide that a function of an RNTBC is to consult with the common law holders in accordance with regulations 8, 8A and 8B.

Section 43

This section inserts after subregulation 7(1), subregulation 7(1A) which prescribes specific functions under section 58 of the Native Title Act in relation to compensation applications that can be made by an agent RNTBC in relation to extinguished areas. This is relevant to applications made pursuant to paragraph (1A) of the item prescribing who may make a compensation application in the table in subsection 61(1) of the Native Title Act (as amended by the Amendment Act).

Section 43 inserts before subregulation 7(1A) the subheading “Body corporate that makes compensation application in relation to extinguished area”. The body of subregulation 7(1A) then clarifies that for the purposes of section 58 of the Native Title Act, an agent RNTBC that makes a compensation application on behalf of all the persons who claim to be entitled to the compensation has the following functions:

a.       to consult with the persons who claim to be entitled to the compensation in accordance with regulation 8B;

b.      to hold in trust payments received as compensation;

c.       to invest or otherwise apply the money held in trust as directed by the persons entitled to the compensation;

d.      to perform any other function relating to the compensation as directed by the persons entitled to the compensation.

After subregulation 7(1A), the subheading “General” is inserted above subregulation 7(2), which provides for a range powers that support the performance of an RNTBC’s functions under subregulations 7(1) or (1A).

Sections 44 to 45

These sections amend subregulation 7(2) to state that without limiting subregulation 7(1) or (1A), in order to perform its functions, an RNTBC may, on behalf of the common law holders or persons entitled to, or who claim to be entitled to, the compensation:

a.       consult other persons or bodies; and

b.      enter into agreements; and

c.       exercise procedural rights; and

d.      accept notices required by any law of the Commonwealth, a State or a Territory to be given to the common law holders or persons entitled to, or who claim to be entitled to, the compensation.

Sections 46 to 49

The purpose of the amendments to regulations 8, 8A, 8B and 9 is to improve transparency by enhancing the consultation, consent and certification requirements for certain decisions made by PBCs or RNTBCs. As soon as practicable after making a native title decision or deciding to make a compensation application, a PBC is obliged to certify that the consultation and consent requirements for that decision have been complied with. If the decision is a standing instructions decision, the PBC would be required to certify that such standing instructions have been given. The decision-making process is required to be clearly set out in the regulation 9 certificate and it must include details of the persons who participated in the process. The certificate must be executed in accordance with subsection 99-5(1) or (2) of the CATSI Act or signed by the chief executive officer. The certificate can then be taken as prima facie evidence that the consultation and consent requirements have been complied with.

Consultation with, and consent of, common law holders in relation to native title decisions

Section 46 substitutes the heading to regulation 8 with “8 Consultation with, and consent of, common law holders in relation to native title decisions”.

Section 47 amends regulation 8 by repealing subregulations 8(1) to (5) and substituting a new process for consulting and obtaining consent of common law holders in relation to native title decisions as defined in subregulation 3(1).

Subregulation 8(1) provides for consultation and consent required before a native title decision is made. A PBC that holds native title rights and interests in trust for the common law holders or an agent PBC that has become an RNTBC must consult and obtain consent in relation to a high level decision in accordance with regulation 8 or a low level decision in accordance with regulation 8 or 8A.

Subregulation 8(2) provides that there is no need for a PBC to consult or obtain consent in relation to a standing instructions decision covered by approval under subregulation 8(8).

Subregulations 8(3) to (4) provide for the consultation and consent processes for the making of native title decisions. The following process applies:

The PBC must look to the relevant native title determination (as defined in subregulation 3(1)) to check whether it identifies classes of common law holders (e.g. the determination sets out more than one class of common law holders who hold native title over the determination area).

a.       If classes of common law holders are identified, the PBC must identify the classes of common law holders on whom the proposed native title decision would have an effect. Subsequently:

                                                                                      i.      The PBC must check whether, under the Aboriginal or Torres Strait Islander traditional laws and customs of those classes, there is a particular process of decision-making that should be followed.

                                                                                    ii.      If there is such a process, the consent must be given in accordance with that process.

                                                                                  iii.      If the affected classes do not have a decision-making process determined by traditional laws and customs, the consent must be given in accordance with the process of decision-making agreed to, or adopted, for the proposed native title decision, or for decisions of the same kind as that decision by the relevant classes of common law holders.

b.      If no classes of common law holders are identified:

                                                                                      i.      The PBC must check whether, under the Aboriginal or Torres Strait Islander traditional laws and customs of the common law holders, there is a particular process of decision-making that should be followed.

                                                                                    ii.      If there is such a process, the consent must be given in accordance with that process.

                                                                                  iii.      If the common law holders do not have a decision-making process determined by traditional laws and customs, the consent must be given in accordance with the process of decision-making agreed to, or adopted, for the proposed native title decision, or for decisions of the same kind as that decision by the common law holders.

Lastly, the heading “Effect of failure to consult or obtain consent” is added after subregulation 8(4).

Approval for standing instructions decisions

Section 48 inserts subregulations 8(8) and 8(9) and a corresponding subheading before subregulation 8(8) that states “Approval for standing instructions decisions”.

Subregulation 8(8) clarifies the circumstances in which a standing instruction decision is covered by an approval. That is, there is no need to consult and obtain further consent for decisions of a particular type where the PBC has approval from the classes of common law holders on whom the decision would have an effect, or - if no classes are identified in the native title determination - the common law holders. In addition, any conditions imposed by the classes of common law holders or the common law holders on the approval to make decisions of that kind without needing to consult and obtain further consent must have been met.

Subregulation 8(9) permits the common law holders or the classes of common law holders on whom the decision would have an effect to give or revoke an approval, and impose, vary or revoke conditions on approval in two manners:

a.       if the approval relates to a low level decision, the common law holders or the classes of common law holders on whom the decision would have an effect must use a relevant consultation process contained in the constitution of the PBC; or

b.      in any other case:

                                                        i.            if there is a particular process of decision-making that, under the Aboriginal or Torres Strait Islander traditional laws and customs of the common law holders or the classes of common law holders on whom the decision would have an effect, must be followed in relation to giving the approval in accordance with the process; or

                                                      ii.            otherwise in accordance with the process of decision-making agreed to, or adopted, by the common law holders or the classes of common law holders on whom the decision would have an effect for the giving of the approval.

Section 49 repeals regulations 8A and 9 and substitutes regulations 8A, 8B and 9.

Alternative consultation processes in relation to native title decisions

Regulation 8A, titled “Alternative consultation processes in relation to native title decisions”, applies to the consultation and consent processes for making of a low level decision if the PBC has in its constitution one or more consultation processes to which the following have consented:

a.       if the native title determination in relation to the PBC identifies classes of common law holders – the classes or common law holders on whom the decision would have an effect; or

b.      in any other case – the common law holders.

Before making a native title decision, the PBC must consult and obtain consent in relation to the decision using the relevant consultation process in its constitution.

Consultation and consent in relation to the making of compensation applications

Subparagraph 56(4)(a)(ii) and paragraph 58(d) of the Native Title Act (as amended by the Amendment Act) enable the regulations to provide for RNTBCs to consult with common law holders or persons entitled to compensation in the performance of the RNTBC’s functions. In addition, paragraph 58(ba) enables the regulations to provide for RNTBCs to perform functions in relation to a compensation application in a specified way. Paragraphs (1) and (1A) of the item in the table in subsection 61(1) of the Native Title Act (prescribing persons who may make a compensation application) give RNTBCs a function of making compensation applications.

Regulation 8B requires consultation with common law holders or, in respect of areas in relation to which there is no native title determination, with the common law holders for the surrounding area. Under paragraph (1A)(c) of the item in the table in subsection 61(1) of the Native Title Act prescribing persons who may make a compensation application, these are the persons who claim to be entitled to the compensation.

Regulation 8B is titled “Consultation and consent in relation to the making of compensation applications”. Before making a compensation application, an RNTBC must consult and obtain consent in relation to the making of the application in accordance with the process set out in regulation 8B. That process is:

a.       Identify the relevant determination, known as the “specified native title determination”, for the compensation application, which is either:

                                                        i.            the native title determination in relation to an area of land or waters to which the compensation application relates (i.e. the compensation is sought in relation to an area of land or waters in relation to which native title is partially extinguished or impaired); or

                                                      ii.            if, in relation to an area of land or waters to which the compensation application relates, there is no native title determination (as defined in regulation 3), the native title determination that covers the area of land or waters whose external boundary includes the relevant land or waters (i.e. the compensation is sought in relation to an area of land or waters in relation to which native title is fully extinguished).

b.      Identify relevant common law holders, known as the “specified persons”, who are either:

                                                        i.            the common law holders included in any specified native title determination for the compensation application; or

                                                      ii.            if it has been determined that native title exists in relation to all of the land or waters to which the compensation application relates and a specified native title determination for the compensation application identifies classes of common law holders, the classes of common law holders who possess native title rights and interests in the land or waters to which the compensation application relates (instead of all the common law holders included in the specified native title determination).

c.       Identify and follow the appropriate consultation process, which is either:

                                                        i.            if there is a particular process of decision-making that, under the Aboriginal or Torres Strait Islander traditional laws and customs of the specified persons, must be followed in relation to the giving of the consent, the consent must be given in accordance with that process; or 

                                                      ii.            in accordance with the process of decision-making agreed to, or adopted, for the compensation application, or for compensation applications of the same kind, by the specified persons.

Below subregulation 8B(2) there are two Notes that are intended to assist with the interpretation of that subregulation. Note 1 explains that a native title determination is a determination that native title exists, as defined in subregulation 3(1). Note 2 explains that paragraph 8B(2)(a) relates to applications made by an RNTBC under paragraph (1) in the item dealing with compensation applications in the table in subsection 61(1) of the Native Title Act. Paragraph 8B(2)(b) relates to applications made under paragraph (1A) of that item by an RNTBC on behalf of all the persons who claim to be entitled to the compensation, being the common law holders in relation to the native title determination mentioned in paragraph (b).

Certificate in relation to consultation and consent

Regulation 9, titled “Certificate in relation to consultation and consent”, mandates in subregulation 9(1) that as soon as practicable after a native title decision is made by a PBC (that either holds native title rights and interests in trust for the common law holders or is an agent PBC that has become an RNTBC) or an RNTBC decides to make a compensation application, the body corporate must prepare a certificate in writing.

Subregulation 9(2) specifies that the certificate must certify that:

a.       for a high level decision other than a standing instructions decision - the body corporate has consulted and obtained consent in relation to the decision in accordance with regulation 8; or

b.      for a high level decision that is a standing instructions decision:

                                                        i.            if the decision is covered by an approval under subregulation 8(8) -  the decision is of that kind; or

                                                      ii.            in any case - the body corporate has consulted and obtained consent in relation to the decision in accordance with regulation 8; or

c.       for a low level decision:

                                                        i.            if the decision is covered by an approval under subregulation 8(8) - the decision is of that kind; or

                                                      ii.            in any case -the body corporate has consulted and obtained consent in relation to the decision in accordance with regulation 8 or 8A; or

d.      for a decision to make a compensation application - the body corporate has consulted and obtained consent in relation to the making of the compensation application in accordance with regulation 8B.

The note following subregulation 9(2) confirms that the CATSI Registrar has functions in relation to certificates given under this regulation and refers to section 55A of the CATSI Regulations. The CATSI Registrar is appointed by the Minister under section 653-1 of the CATSI Act and has the duties, functions and powers provided for under that Act or another law of the Commonwealth. The CATSI Registrar is an ‘agency’ within the meaning of paragraph (e) of the definition of agency in section 6 of the Privacy Act 1988 (Privacy Act). Accordingly, the CATSI Registrar must comply with the Australian Privacy Principles as they apply to agencies.

Subregulation 9(3) requires that the certificate must contain certain information:

a.       the date of the certificate;

b.      details of the process of making the decision;

c.       details (including names) of the persons who participated in the process of making the decision;

d.      if the certificate is of a kind mentioned in subparagraph (2)(b)(i) or (c)(i), the details of the process of approval under subregulation 8(8); and

e.       if paragraph (d) does not apply, the details of the consultation and consent process.

Subregulation 9(4) mandates that the certificate must be executed by the body corporate in accordance with subsection 99-5(1) or (2) of the CATSI Act or signed by the chief executive officer of the body corporate.

Subregulation 9(5) permits the body corporate to collect (within the meaning of the Privacy Act) personal information (within the meaning of the Privacy Act) about common law holders or persons who claim to be entitled to compensation for the purposes of preparing a certificate. The Privacy Act defines ‘personal information’ as “information or opinion about an identified or reasonably identifiable individual, whether the information or opinion is true or not, and whether it is recorded in material form or not”. Typical examples include an individual’s name, email or home address, telephone number, date of birth, health information, financial information, employment details, as well as commentary or opinion about a person.

Subregulation 9(6) states that a certificate prepared in accordance with regulation 9 in relation to a native title decision is prima facie evidence that the body corporate has consulted and obtained consent to the decision as required by regulation 8.

Subregulation 9(7) states that a certificate prepared in accordance with regulation 9 in relation to a decision to make a compensation application is prima facie evidence that the body corporate has consulted and obtained consent in relation to the making of the compensation application as required by regulation 8B.

Sections 50 to 55

Under new regulation 10, the common law holders (whether or not they are members of the PBC) and persons with a ‘substantial interest’ in the decision to which the certificate under regulation 9 relates (including the CATSI Registrar) are entitled to a copy of a certificate on request. Subregulations 10(1) and (2) interact to authorise the disclosure of personal information within the meaning of the Privacy Act. The circumstances in which such disclosures might occur are narrowed by subregulations 10(3) and 10(4). These provisions ensure that any disclosure of personal information via access to the certificate is limited to those individuals and circumstances necessary to ensure the integrity and transparency of the native title consultation and decision making processes of the PBC.

Section 50 changes the heading of regulation 10 to now refer to “Access to certificates”.

Section 51 repeals and substitutes subregulations 10(1) and (2).

Subregulation 10(1) mandates that if a PBC that holds native title rights and interests in trust for the common law holders or is an agent PBC that has become an RNTBC makes a native title decision, the body corporate must give a copy of the certificate under regulation 9 to any person who is entitled to it under subregulation 10(3).

Subregulation 10(2) requires if a RNTBC decides to make a compensation application, the body corporate must give a copy of a certificate under regulation 9 to any person who is entitled to it under subregulation 10(3).

Sections 52 to 54 make minor amendments to subregulation 10(3) to ensure that the subregulation now states that a person is entitled to a copy of the certificate if the person is a common law holder or has a substantial interest in the decision to which the certificate relates and they make a request in writing to the body corporate for a copy of the certificate.

Section 55 inserts subregulation 10(4) to ensure that for the purposes of the Privacy Act and without limiting the operation of subregulation 10(3), the CATSI Registrar is entitled under subregulation 10(3) to a copy of a certificate for the purposes of performing the functions under section 55A of the CATSI Regulations if the Registrar makes a request in writing to the relevant body corporate for a copy of the certificate. Subregulation 10(4) is an authorisation for the purposes of the Privacy Act.

Section 56

This section replaces all references to the “Indigenous Land Corporation” with the “Indigenous Land and Sea Corporation” in regulation 11 because that organisation’s name was updated by the ATSI Amendment Act.

Section 57

This section updates the note at the end of subregulation 13(2) to state that an agent PBC that becomes an RNTBC has the functions listed in subregulation 7(1).

Section 58

This section replaces all references to the “Indigenous Land Corporation” with the “Indigenous Land and Sea Corporation in paragraphs 14(1)(b) and 17(1)(b) because that organisation’s name was updated by the ATSI Amendment Act.

Section 59

This section adds the headings:

a.       Part 5 – Application, saving and transitional provisions;

b.      Division 1 – Application of amendments made by the Registered Native Title Bodies Corporate Legislation Amendment Regulations 2021; and

c.       27 Application of amendments made by the Registered Native Title Bodies Corporate Legislation Amendment Regulations 2021.

Subregulation 27(1) follows the subheading “Definitions”. The definitions inserted are:

a.       “amending regulations”, which means the Registered Native Title Bodies Corporate Legislation Amendment Regulations 2021; and

b.      “commencement time”, which means the commencement of Schedule 1 to the amending regulations.

The subheading “Consent for subsequent determinations of native title” is followed by subregulation 27(2), which provides that the amendments of regulation 4A made by the amending regulations apply in relation to any consent obtained after the commencement time.

The subheading “Functions of bodies corporate” is followed by subregulation 27(3), which provides that the amendments of regulation 6 made by the amending regulations apply in relation to any PBC or RNTBC that holds native title rights and interests in trust after the commencement time, whether determined to hold the rights and interests in trust before or after the commencement time.

Subregulation 27(4) provides that the amendments of regulation 7 made by the amending regulations apply in relation to any RNTBC after the commencement time, whether it became a registered body corporate before or after the commencement time.

The subheading “Consent for native title and compensation applications” is followed by subregulation 27(5), which provides that the amendments of regulations 3, 8, and 10 made by the amending regulations (other than the amendment of the definition of “prescribed body corporate” in regulation 3) and regulations 8A, 8B and 9 as inserted by the amending regulations apply in relation to any native title decision and any compensation application made after the commencement time.



 


ATTACHMENT B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Registered Native Title Bodies Corporate Legislation Amendment Regulations 2021

 

The Registered Native Title Bodies Corporate Legislation Amendment Regulations 2021 (Amendment Regulations) 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 Amendment Regulations

The proposed Amendment Regulations amend the Corporations (Aboriginal and Torres Strait Islander) Regulations 2017 (CATSI Regulations), the Native Title (Indigenous Land Use Agreements) Regulations 1999 (ILUA Regulations) and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (PBC Regulations).

The Amendment Regulations form part of a package of reforms alongside the Native Title Legislation Amendment Act 2021 (Amendment Act), which amends the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act) and Native Title Act 1993 (Native Title Act) to improve native title claims resolution, agreement-making, decision-making and dispute resolution processes.

The Amendment Regulations clarify and strengthen the requirements for prescribed bodies corporate (PBCs) to consult and obtain consent in relation to certain decisions and the making of compensation applications. The consultation and consent process is evidenced through a certificate produced by the PBC. A copy of the certificate can be accessed by the Registrar of Aboriginal and Torres Strait Islander Corporations (CATSI Registrar), common law holders or persons that have a substantial interest in the decision to which the certificate relates.

Background

Native title has its origin in the rights recognised in or held by a traditional indigenous society under its laws and customs.[4] Gleeson CJ, Gummow and Hayne JJ in Yorta Yorta Aboriginal Community v Victoria (2002) 194 ALR 538 held that:

… upon acquisition of sovereignty over a particular part of Australia, the Crown acquired a radical title to the land in that part, but native title to that land survived the Crown’s acquisition of sovereignty and radical title. What survived were rights and interests in relation to land or waters. Those rights and interests owed their origin to a normative system other than the legal system of the new sovereign power; they owed their origin to the traditional laws acknowledged and the traditional customs observed by the indigenous peoples concerned.[5]

A fundamental basis of the Native Title Act is that native title rights and interests can be possessed under traditional laws and customs.[6] The Native Title Act regulates native title in relation to land and waters. In addition, the CATSI Act provides for the establishment and regulation of Aboriginal and Torres Strait Islander corporations. Together, this legislation operates to provide the framework for Australia’s recognition of and system for holding, managing and dealing with native title.

The process of dealing with native title often begins when the Federal Court (Court) proposes to make an approved determination of native title. The Court may determine that the native title rights and interests are to be held by either the common law holders or by a PBC in trust for the common law holders (subsection 56(2) of the Native Title Act).

Under subsection 56(2) of the Native Title Act, the common law holders are the native title holders. If the Court determines that the common law holders are to hold the native title rights and interests, the Court must determine which PBC is to perform the functions mentioned in subsection 57(3) of the Native Title Act (subsection 57(2) of the Native Title Act). The PBC Regulations provide, among other things, that a PBC must be an Aboriginal and Torres Strait Islander corporation as defined by the CATSI Act and under regulation 4 of the PBC Regulations.[7]

Once a PBC is registered on the National Native Title Register, it becomes a registered native title body corporate (RNTBC) under sections 57 and 253 of the Native Title Act. Under section 58 of the Native Title Act, the PBC Regulations may make provision for certain matters with respect to RNTBCs including specifying the functions of an RNTBC to:

a.       hold, protect and manage determined native title in accordance with the objectives of the native title holding group; and

b.      ensure certainty for governments and other parties interested in accessing or regulating native title land and waters by providing a legal entity to manage and conduct the affairs of the native title holders.

Subsection 215(1) of the Native Title Act and section 633-1 of the CATSI Act provide, in part, that the Governor-General may make regulations prescribing matters required or permitted by those Acts to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to those Acts.

Proposed amendments

The Amendment Regulations modify the CATSI Regulations to provide that the CATSI Registrar has the functions of assessing certificates and notifying the person who requested the CATSI Registrar to make the assessment. New section 55A applies in relation to any certificate prepared under regulation 9 of the PBC Regulations after the commencement of Schedule 1 to the Amendment Regulations.

The Amendment Regulations modify the ILUA Regulations to:

a.       align the definition of “native title decision” to that meaning given in the PBC Regulations;

b.      require an application to register a body corporate agreement, area agreement or an alternative procedure agreement be accompanied by a certificate prepared under regulation 9 of the PBC Regulations; and

c.       update Notes 2 and 3 under subregulations 6(2), 7(2) and 8(2).

The amendments to the ILUA Regulations will apply in relation to any native title decision made after the commencement of Schedule 1 to the Amendment Regulations.

The Amendment Regulations modify the PBC Regulations to:

a.       set out all kinds of decisions to which regulations 8 and 8A apply under the definition of “native title decision” in subregulation 3(1) of the PBC Regulations;

b.      introduce “high level decision” and “low level decision” classifications for native title decisions, with prescription of consultation requirements determined by the classification;

c.       allow for certain kinds of decisions to be covered by “standing instructions”;

d.      include the Indigenous Land and Sea Corporation in the definition of PBC;

e.       modify the process by which a PBC must consult and obtain consent for subsequent determinations of native title;

f.       add more functions for PBCs and, in particular, in relation to compensation applications;

g.      clarify the consultation and consent requirements in relation to high level decisions, standing instructions decisions, low level decisions, and the making of compensation applications;

h.      require that a certificate prepared under regulation 9 address certain matters in relation to the consultation and consent process and be executed by the PBC in accordance with subsection 99-5(1) or (2) of the CATSI Act or signed by the chief executive officer of the PBC, if one exists; and

i.        provide for copies of certificates to be available to common law holders and those with a substantial interest in the decision to which the certificate relates.

Commencement

The Amendment Regulations commence at the same time as the commencement of Part 1 of Schedule 4 to the Amendment Act.

Consultation

The Attorney-General’s Department consulted on the proposed Amendment Act and Amendment Regulations. This included public consultation on an options paper (open from 29 November 2017 to 28 February 2018). This was followed by an invitation for written submissions on exposure drafts of the Amendment Act and Amendment Regulations, which were received from 36 stakeholders during a six-week consultation period (from 20 October to 10 December 2018).

During the consultation stages, the Government received submissions from, and conducted meetings with, a wide range of stakeholders in the native title system, including native title representative bodies, PBCs and other Indigenous stakeholders.

The Expert Technical Advisory Group, comprising of nominated representatives from the National Native Title Council, states and territories, industry peaks and the National Native Title Tribunal, was also consulted in order to provide advice to the Government on the Amendment Regulations.

Human rights implications

The Amendment Regulations engage the following rights:

a.       the right to enjoy and benefit from culture 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);

b.      the right to self-determination in Article 1 of ICCPR and Article 1 of the ICESCR; and

c.       the rights of equality and non-discrimination in Article 2, 16 and 26 of the ICCPR and Article 2 of the International Convention on the Elimination of all forms of Racial Discrimination (CERD).

Right to enjoy and benefit from culture

The right to enjoy and benefit from culture is contained in Article 27 of the ICCPR and Article 15 of the 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 (UNHRC) 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.[8]

The United Nations Committee on Economic, Social and Cultural Rights (UNCESCR) specifically refers to Indigenous peoples’ cultural values and rights associated with their ancestral lands and states that their relationship with nature should be regarded with respect and protected.[9] UNCESCR has also provided guidance on the communal and individual aspects of the right to culture, in particular that the reference to ‘everyone’ in Article 15 of the ICESCR may denote either individual or collective rights to culture.[10] UNCESCR has noted, in particular that Indigenous peoples have the right to act collectively to protect their cultural heritage, traditional knowledge and cultural expressions.[11]

In Australia, Indigenous culture and spirituality is closely linked to land or the country with which particular groups have a traditional attachment or relationship. The traditional connection to land is the basis for the laws, customs and ways of life that Indigenous people have inherited from their ancestors. This connection was recognised in the native title decision of Mabo v Queensland (No 2) (1992) 175 CLR 1 (Mabo decision) where the High Court majority agreed that the source of native title was the traditional connection to or occupation of the land and the nature and content of native title was determined by the character of the connection or occupation under traditional laws or customs.[12] Native title consists of the rights of Indigenous people to their traditional lands and waters recognised at common law and subsequently in the Native Title Act.

The Amendment Regulations are directed towards accountability and transparency of PBCs to their native title common law holders and compensation claimants in relation to certain native title decisions. They engage and promote the right to enjoy and benefit from culture by ensuring the accountability and transparency of PBCs in relation to native title decision-making. The Amendment Regulations ensure that if a native title decision is to be made by a PBC that the appropriate decision-making process that accords with tradition and custom is followed. If there is no relevant traditional decision-making process, a process agreed by the common law holders or the persons who claim to be entitled to compensation is to be followed.

The Amendment Regulations also ensure that a certificate evidencing consultation and consent is given in relation to relevant native title and compensation decisions that a PBC is proposing to make. This measure will enhance transparency for common law holders and persons who claim to be entitled to compensation by recording the key information about decisions that may affect them. This will also increase the transparency and accountability of the directors of the body corporates to the common law holders and persons who claim to be entitled to compensation. Importantly, providing for the CATSI Registrar to assess the compliance of the certificate with the requirements of regulation 9 of the PBC Regulations will assist with any complaints that may be made to the Office of the Registrar of Indigenous Corporations about a PBC in relation to particular native title or compensation claim decisions.

The combined effect of the measures in the Amendment Regulations is to promote improved decision-making and help to ensure that the appropriate cultural perspective is incorporated into the decisions of PBCs.

Right to self-determination

The right to self-determination is a collective right, in that it pertains to groups of people, as opposed to 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 collectively pursue their economic, social and cultural development without outside interference.

Although the right to self-determination is a collective right, it is important that individuals are heard with regard to contributing to the direction of the group. This may include adequately consulting and giving appropriate consideration to minority views to ensure that genuine agreement is reached.[13]

Native title decision-making is often a process involving a collective. Under section 223 of the Native Title Act, the expressions “native title” and “native title rights and interests” means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

a.       the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

b.      the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

c.       the rights and interests are recognised by the common law of Australia.

When a determination recognising native title is made by the Federal Court, the Native Title Act requires that a corporation be established to represent them and their interests (Division 6 of Part 2 of the Native Title Act refers). These organisations are known as PBCs, or RNTBCs once registered. They have prescribed functions specified under the PBC Regulations, which will include, to:

a.       manage the native title rights and interest of the common law holders;

b.      hold in trust money connected with the holding in trust of the native title rights and interests (including payments received as compensation or otherwise related to the native title rights and interests);

c.       to invest or otherwise apply the money held in trust as directed by the common law holders or persons who claim to be entitled to the compensation;

d.      to consult with the common law holders or persons who claim to be entitled to the compensation in accordance with regulations 8, 8A and 8B;

e.       to perform any other function relating to the holding in trust of those rights and interests as directed by the common law holders;

f.       to perform any other function relating to the compensation as directed by the persons entitled to the compensation.

The Amendment Regulations promote the right to self-determination by strengthening the ability of common law holders and persons who claim to be entitled to compensation to influence native title decision-making through their membership of a PBC or RNTBC. The relevant common law holders or all persons who claim to be entitled to compensation must be consulted and give their consent to each decision unless it is a standing instructions decision. In addition, prior approval for standing instructions decisions must have been sought by the PBC or RNTBC, which facilitates the efficacy and efficiency of native title decision-making. The Amendment Regulations ensure that a cultural perspective is taken into account when required by the common law holders and persons who claim to be entitled to compensation.

The Amendment Regulations require that reference be had to the relevant native title determination for the identification of the classes of common law holders or common law holders that must be consulted. This will enable those common law holders to give their free, prior and informed consent to a native title decision that will affect them. Referring to the native title determination provides a tool for the PBC and RNTBC to assess who may be affected by a native title decision. This will assist to ensure that the necessary common law holders are consulted and provide their consent. The risk that some common law holders would be inadvertently left out of the consultation process is low. The low risk of omission is reasonable, necessary and proportionate to the aim of the legislation, which is to increase the accountability and transparency of PBCs and RNTBCs in relation to native title decision-making.

Rights of equality and non-discrimination

The rights of equality and non-discrimination are contained in Articles 2, 3, 16 and 26 of the ICCPR, Article 2 of the ICESCR and Article 5 of the CERD. These rights recognise that all human beings have the right to be treated equally and not to be discriminated against. Of particular relevance, the CERD establishes a general prohibition on racial discrimination. The Racial Discrimination Act 1975 (RDA) implements this prohibition in Australian domestic law.

Subsection 8(1) of the RDA, in accordance with Article 1(4) of the CERD, allows ‘special measures’ which are designed to ensure advancement of certain groups. Special measures are an exception to the general prohibition on racial discrimination, and are designed to “secure to disadvantaged groups the full and equal enjoyment of human rights and fundamental freedoms.” For a measure to be characterised as a special measure it must:

a.       be for a particular group or individuals;

b.      be taken for the sole purpose of securing the adequate advancement of that group or those individuals;

c.       be ‘necessary’; and

d.      not continue after its objective has been achieved.

The measures in the Amendment Regulations that amend the subordinate legislation under the Native Title Act and the CATSI Act are characterized as components of broader special measures, being those Acts in their entirety. In the Mabo decision, the High Court gave preeminence to equality before the law and declared that “the preferable rule equates the indigenous inhabitants of a settled colony with the inhabitants of a conquered colony in respect of their rights and interest in land”, and that their rights are to be “fully respected”.[14] Due to the structural disadvantage experienced by Aboriginal and Torres Strait Islander persons in Australia, certain measures are required to progress equality and non-discrimination before the law.

The Amendment Regulations promote the rights of equality and non-discrimination by requiring that the traditional laws or customs that pertain to native title decision-making among Aboriginal and Torres Strait Islander persons are observed and respected in the administration of native title rights and interests.

The proposed measures are appropriate, adapted and proportionate and promote the development of self-management and autonomy among Aboriginal and Torres Strait Islander people by increasing the transparency and accountability of PBCs to common law holders and persons who claim to be entitled to compensation.

Conclusion

The Amendment Regulations are compatible with human rights because they promote the protection of human rights and to the extent that they may limit human rights, those limitations are reasonable, necessary and proportionate.



[1] R. Bartlett, Native Title in Australia, 3rd edn., China, LexisNexis Butterworths, 2015, at page 146.

[2] Yorta Yorta Aboriginal Community v Victoria (2002) 194 ALR 538 at paragraphs 37-38.

[3] Yorta Yorta Aboriginal Community v Victoria, (2002) 194 ALR 538, at paragraph 40.

[4] R. Bartlett, Native Title in Australia, 3rd edn., China, LexisNexis Butterworths, 2015, at page 146.

[5] Yorta Yorta Aboriginal Community v Victoria (2002) 194 ALR 538, at paragraphs 37-38.

[6] Yorta Yorta Aboriginal Community v Victoria, (2002) 194 ALR 538, at paragraph 40.

[7] Under regulation 11 of the PBC Regulations the Indigenous Land and Sea Corporation can also be a PBC.

[8] UNHRC, CCPR General Comment No. 23: Article 27 (Rights of Minorities), 8 April 1994, CCPR/C/21/Rev.1/Add.5, at paragraph 7.

[9] UNCESCR, General comment no. 21, Right of everyone to take part in cultural life (art. 15, para. 1a of the Covenant on Economic, Social and Cultural Rights) 21 December 2009, E/C.12/GC/21, at paragraph 36.

[10] UNCESCR, General comment no. 21, Right of everyone to take part in cultural life (art. 15, para. 1a of the Covenant on Economic, Social and Cultural Rights), at paragraphs 9 and 37.

[11] UNCESCR, General comment no. 21, Right of everyone to take part in cultural life (art. 15, para. 1a of the Covenant on Economic, Social and Cultural Rights) 21 December 2009, E/C.12/GC/21, at paragraph 37.

[12] R. Bartlett, Native Title in Australia, 3rd edn., China, LexisNexis Butterworths, 2015, at page 27.

[13] Parliamentary Joint Committee on Human Rights comment on Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 (Scrutiny Report 1 of 2020), at paragraph 1.87.

[14] Mabo v Queensland (No 2) (1992) 175 CLR 1 at paragraphs 56-7, 82-3 and 182-3.