Registered Native Title Bodies Corporate Legislation Amendment Regulations 2021 (F2021L00292)

Schedule 1   Amendments

Native Title (Prescribed Bodies Corporate) Regulations 1999

49   Regulations 8A and 9

Repeal the regulations, substitute:

8A Alternative consultation processes in relation to native title decisions

(1) This regulation applies to the making of a low level decision if the prescribed body corporate 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 prescribed body corporate identifies classes of common law holders - the classes of common law holders on whom the decision would have an effect;

(b) in any other case - the common law holders.

(2) Before making a native title decision, the prescribed body corporate must consult and obtain consent in relation to the decision using the relevant consultation process in its constitution.

8B Consultation and consent in relation to the making of compensation applications

(1) Before making a compensation application, a registered native title body corporate must consult and obtain consent in relation to the making of the application in accordance with this regulation.

Identify relevant determinations

(2) Any of the following is a specified native title determination for the compensation application:

(a) a native title determination in relation to an area of land or waters to which the compensation application relates;

(b) if, in relation to an area of land or waters to which the compensation application relates (the relevant land or waters ), there is no native title determination - the native title determination that covers the area of land or waters whose external boundary includes the relevant land or waters.

Note 1: A native title determination is a determination that native title exists: see the definition of native title determination in subregulation 3(1).

Note 2: Paragraph (a) of this subsection relates to applications made by a registered native title body corporate under paragraph (1) in the item dealing with compensation applications in the table in subsection 61(1) of the Act. Paragraph (b) of this subsection relates to applications made under paragraph (1A) of that item by a registered native title body corporate 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) of this subsection.

Identify relevant common law holders

(3) The specified persons for the compensation application are the common law holders included in any specified native title determination for the compensation application.

(4) However, if:

(a) it has been determined that native title exists in relation to all of the land or waters to which the compensation application relates; and

(b) a specified native title determination for the compensation application identifies classes of common law holders;

the classes of common law holders identified in the specified native title determination who possess native title rights and interests in relation to the land or waters to which the compensation application relates are specified persons for the compensation application instead of all the common law holders included in the specified native title determination.

Identify and follow appropriate consultation process

(5) 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.

(6) If subregulation (5) does not apply, the consent must be given 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.

9 Certificate in relation to consultation and consent

(1) As soon as practicable after:

(a) a native title decision is made by a prescribed body corporate that:

(i) holds native title rights and interests in trust for the common law holders; or

(ii) is an agent prescribed body corporate that has become a registered native title body corporate; or

(b) a registered native title body corporate decides to make a compensation application;

the body corporate must prepare a certificate in writing.

(2) 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.

Note: The Registrar of Aboriginal and Torres Strait Islander Corporations has functions in relation to certificates prepared under this regulation: see section 55A of the Corporations (Aboriginal and Torres Strait Islander) Regulations 2017.

(3) The certificate must include the following:

(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) - details of the process of approval under subregulation 8(8);

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

(4) The certificate must be:

(a) executed by the body corporate in accordance with subsection 99-5(1) or (2) of the Corporations (Aboriginal and Torres Strait Islander) Act 2006; or

(b) signed by the chief executive officer of the body corporate.

(5) The body corporate may collect (within the meaning of the Privacy Act 1988) personal information (within the meaning of that Act) about common law holders or persons who claim to be entitled to compensation for the purposes of preparing a certificate.

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

(7) A certificate prepared in accordance with this regulation 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.