NATIVE TITLE AMENDMENT BILL 1997

1996-97-98

The Parliament of the
Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Native Title Amendment Bill 1997

No. , 1998

(Prime Minister)

A Bill for an Act to amend the Native Title Act 1993, and for related purposes

ISBN: 0644 51792 1

Part 3—Application of amendments relating to section 61 applications: proceedings relating to determinations 0644517921.html

Part 4—Application of amendments relating to section 61 applications: registration of claims 0644517921.html

A Bill for an Act to amend the Native Title Act 1993, and for related purposes

1 Short title

2 Commencement

(1) Sections 1, 2 and 3 commence on the day on which this Act receives the Royal Assent.

(2) Subject to subsection (3), Part 1 of Schedule 3 commences on a day to be fixed by Proclamation.

(3) If Part 1 of Schedule 3 does not commence within the period of 9 months beginning on the day on which this Act receives the Royal Assent, that Part commences on the first day after the end of that period.

(a) on the first day after the end of the period of 12 months after the commencement of Part 1 of Schedule 3; or

(b) if, before the end of that period, a later day is fixed by Proclamation—on that later day.

(5) Subject to subsection (6), the remaining provisions of this Act commence on a day or days to be fixed by Proclamation.

(6) If a provision referred to in subsection (5) does not commence within the period of 9 months beginning on the day on which this Act receives the Royal Assent, that provision commences on the first day after the end of that period.

3 Schedule(s)

Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Amendments relating to acts affecting native title etc.

4 Overview of Act

(1) This Act recognises and protects native title. It provides that native title cannot be extinguished contrary to the Act.

(b) determining whether native title exists and compensation for acts affecting native title (see subsection (7)).

(a) past acts (mainly acts done before this Act’s commencement on 1 January 1994 that were invalid because of native title); and

(b) future acts (mainly acts done after this Act’s commencement that either validly affect native title or are invalid because of native title).

(5) However, for certain acts (called intermediate period acts) done mainly before the judgment of the High Court in Wik Peoples v Queensland (1996) 187 CLR 1, that would be invalid because they fail to pass any of the future act tests in Division 3 of Part 2, or for any other reason because of native title, this Act provides for similar consequences to past acts.

(6) This Act also confirms that many acts done before the High Court’s judgment, that were either valid, or have been validated under the past act or intermediate period act provisions, will have extinguished native title. If the acts are previous exclusive possession acts (see section 23B), the extinguishment is complete; if the acts are previous non-exclusive possession acts (see section 23F), the extinguishment is to the extent of any inconsistency.

(a) provides for the Federal Court to make determinations of native title and compensation; and

(i) make determinations about whether certain future acts can be done and whether certain agreements concerning native title are to be covered by the Act; and

(ii) provide assistance or undertake mediation in other matters relating to native title; and

(c) deals with other matters such as the keeping of registers and the role of representative Aboriginal/Torres Strait Islander bodies.

(a) in accordance with Division 2B (which deals with confirmation of past extinguishment of native title) or Division 3 (which deals with future acts etc. and native title) of Part 2; or

Division 2—Validation of past acts

Subdivision AA—Overview of Division

13A Overview of Division

(1) In summary, this Division validates, or allows States and Territories to validate, certain acts that:

This Division also covers certain acts done after that day consisting of an extension or renewal etc. of an act done before that day.

(2) The acts validated are called past acts; they are defined in section 228.

(3) This Division also sets out the effect of such validation on native title. The effect varies depending on the nature of the act. For this purpose, different categories of past act are defined by sections 229 to 232.

Note: This subsection does not apply to the act if section 23C or 23G applies to the act.

Division 2A—Validation of intermediate period acts etc.

Subdivision A—Overview of Division

21 Overview of Division

(1) In summary, this Division validates, or allows States and Territories to validate, certain acts that:

(a) took place on or after 1 January 1994 but on or before 23 December 1996; and

(b) would otherwise be invalid to any extent because they fail to pass any of the future act tests in Division 3 of Part 2 or for any other reason because of native title.

(2) The acts are called intermediate period acts; they are defined in section 232A.

(3) For this validation to apply, before the act was done, there must have been:

(4) The Division also sets out the effect of such validation on native title. The effect varies depending on the nature of the act. For this purpose, different categories of intermediate period act are defined by sections 232B to 232E.

(5) The structure of the Division is very similar to that of Division 2 (which deals with validation of past acts).

Subdivision B—Acts attributable to the Commonwealth

22A Validation of Commonwealth acts

If an intermediate period act is an act attributable to the Commonwealth, the act is valid, and is taken always to have been valid.

22B Effect of validation on native title

(a) if it is a category A intermediate period act to which subsection 232B(2), (3) or (4) (which deal with things such as the grant or vesting of freehold estates and certain leases) applies—the act extinguishes all native title in relation to the land or waters concerned; and

(b) if it is a category A intermediate period act to which subsection 232B(7) (which deals with public works) applies:

(i) the act extinguishes the native title in relation to the land or waters on which the public work concerned (on completion of its construction or establishment) was or is situated; and

(ii) the extinguishment is taken to have happened when the construction or establishment began; and

(c) if it is a category B intermediate period act that is wholly or partly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests concerned—the act extinguishes the native title to the extent of the inconsistency; and

(d) if it is a category C intermediate period act or a category D intermediate period act—the non-extinguishment principle applies to the act.

Note: This section does not apply to the act if section 23C or 23G applies to the act.

22C Preservation of beneficial reservations and conditions

(a) an intermediate period act attributable to the Commonwealth contains a reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders; or

(b) the doing of an intermediate period act attributable to the Commonwealth would affect rights or interests (other than native title rights and interests) of Aboriginal peoples or Torres Strait Islanders (whether arising under legislation, at common law or in equity and whether or not rights of usage);

nothing in section 22B affects that reservation or condition or those rights or interests.

22D Entitlement to compensation

(1) If an intermediate period act is an act attributable to the Commonwealth, the native title holders are entitled to compensation for the act.

22E Where “just terms” invalidity

(1) This section applies if the invalidity (disregarding section 22A) of an intermediate period act attributable to the Commonwealth results from a paragraph 51(xxxi) acquisition of property by the Commonwealth from any person having been made otherwise than on paragraph 51(xxxi) just terms.

(2) The person is entitled to compensation from the Commonwealth for the acquisition in accordance with Division 5 and, if that compensation does not ensure that the acquisition is made on paragraph 51(xxxi) just terms, to such additional compensation from the Commonwealth as is necessary to ensure that it is.

22EA Requirement to notify: mining rights

(iii) the extension of the period for which such a right has effect, other than under an option or right of extension or renewal created by the lease, contract or other thing whose grant or making created the right to mine; and

(b) the act took place at any time during the period from the beginning of 1 January 1994 until the end of 23 December 1996; and

(i) a grant of a freehold estate or a lease was made covering any of the land or waters affected by the act; or

(ii) a public work was constructed or established on any of the land or waters affected by the act;

(d) give notice containing the details set out in subsection (2) to any registered native title body corporate, any registered native title claimant and any representative Aboriginal/Torres Strait Islander body, in relation to any of the land or waters affected by the act; and

(e) notify the public in the determined way of the details set out in subsection (2).

(d) information about the way in which further details about the act may be obtained.

Subdivision C—Acts attributable to a State or Territory

22F State/Territory acts may be validated

If a law of a State or Territory contains provisions to the same effect as sections 22B and 22C, the law of the State or Territory may provide that intermediate period acts attributable to the State or Territory are valid, and are taken always to have been valid.

22G Entitlement to compensation

(1) If a law of a State or Territory validates an intermediate period act attributable to the State or Territory in accordance with section 22F, the native title holders are entitled to compensation.

(2) The native title holders may recover the compensation from the State or Territory.

(3) This section does not prevent a law of a State or Territory from creating an entitlement to compensation for an intermediate period act or for the validation of an intermediate period act.

Note: Paragraph 49(b) deals with the situation where there are multiple rights to compensation under Commonwealth, State and Territory laws.

22H Requirement to notify: mining rights

(b) the act took place at any time during the period from the beginning of 1 January 1994 until the end of 23 December 1996; and

(i) a grant of a freehold estate or a lease was made covering any of the land or waters affected by the act; or

(ii) a public work was constructed or established on any of the land or waters affected by the act;

the State or Territory must, before the end of 6 months after the commencement of the law of the State or Territory that validates intermediate period acts attributable to the State or Territory in accordance with section 22F:

(e) notify the public in the determined way of the details set out in subsection (2).

(d) information about the way in which further details about the act may be obtained.

Division 2B—Confirmation of past extinguishment of native title by certain valid or validated acts

23A Overview of Division

(1) In summary, this Division provides that certain acts attributable to the Commonwealth that were done on or before 23 December 1996 will have completely or partially extinguished native title.

(2) If the acts were previous exclusive possession acts (involving the grant or vesting of things such as freehold estates or leases that conferred exclusive possession, or the construction or establishment of public works), the acts will have completely extinguished native title.

(3) If the acts were previous non-exclusive possession acts (involving grants of non-exclusive agricultural leases or non-exclusive pastoral leases), they will have extinguished native title to the extent of any inconsistency.

(4) This Division also allows States and Territories to legislate, in respect of certain acts attributable to them, to extinguish native title in the same way as is done under this Division for Commonwealth acts.

23B Previous exclusive possession act

Note: As at the commencement of this section, acts such as grants before 1 January 1994 that were invalid because of native title have been validated by or under Division 2.

(iii) a commercial lease that is neither an agricultural lease nor a pastoral lease;

(iv) an exclusive agricultural lease (see section 247A) or an exclusive pastoral lease (see section 248A);

(vii) what is taken by subsection 245(3) (which deals with the dissection of mining leases into certain other leases) to be a separate lease in respect of land or waters mentioned in paragraph (a) of that subsection, assuming that the reference in subsection 245(2) to “1 January 1994” were instead a reference to “24 December 1996”;

(viii) any lease (other than a mining lease) that confers a right of exclusive possession over particular land or waters.

(a) by or under legislation of a State or a Territory, particular land or waters are vested in any person; and

(b) a right of exclusive possession of the land or waters is expressly or impliedly conferred on the person by or under the legislation;

the vesting is taken for the purposes of paragraph (2)(c) to be the vesting of a freehold estate over the land or waters.

(b) it consists of the construction or establishment of any public work that commenced to be constructed or established on or before 23 December 1996.

(9) An act is not a previous exclusive possession act if it is the grant or vesting of any thing that is made or done by or under legislation that makes provision for the grant or vesting of such things only to, in or for the benefit of, Aboriginal peoples or Torres Strait Islanders.

(10) The regulations may provide that an act is not a previous exclusive possession act.

23C Confirmation of extinguishment of native title by previous exclusive possession acts of Commonwealth

(1) If an act is a previous exclusive possession act under subsection 23B(2) (including because of subsection 23B(3)) and is attributable to the Commonwealth:

(a) the act extinguishes any native title in relation to the land or waters covered by the freehold estate, Scheduled interest or lease concerned; and

(2) If an act is a previous exclusive possession act under subsection 23B(7) (which deals with public works) and is attributable to the Commonwealth:

(a) the act extinguishes native title in relation to the land or waters on which the public work concerned (on completion of its construction or establishment) was or is situated; and

(b) the extinguishment is taken to have happened when the construction or establishment of the public work began.

(3) If this section applies to the act, sections 15 and 22B do not apply to the act.

23D Preservation of beneficial reservations and conditions

(a) a previous exclusive possession act attributable to the Commonwealth contains a reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders; or

(b) the doing of a previous exclusive possession act attributable to the Commonwealth would affect rights or interests (other than native title rights and interests) of Aboriginal peoples or Torres Strait Islanders (whether arising under legislation, at common law or in equity and whether or not rights of usage);

nothing in section 23C affects that reservation or condition or those rights or interests.

23E Confirmation of extinguishment of native title by previous exclusive possession acts of State or Territory

If a law of a State or Territory contains a provision to the same effect as section 23D, the law of the State or Territory may make provision to the same effect as section 23C in respect of all or any previous exclusive possession acts attributable to the State or Territory.

23F Previous non-exclusive possession act

Note: As at the commencement of this section, acts such as grants before 1 January 1994 that were invalid because of native title have been validated by or under Division 2.

(c) it consists of the grant of a non-exclusive agricultural lease (see section 247B) or a non-exclusive pastoral lease (see section 248B).

(b) it would be a previous non-exclusive possession act under subsection (2) if that subsection were not limited in its application to acts taking place on or before 23 December 1996; and

(i) in exercise of a legally enforceable right created by any act done on or before 23 December 1996; or

(ii) in good faith in giving effect to, or otherwise because of, an offer, commitment, arrangement or undertaking made or given in good faith on or before 23 December 1996, and of which there is written evidence created at or about the time the offer, commitment, arrangement or undertaking was made.

(4) The regulations may provide that an act is not a previous non-exclusive possession act.

23G Confirmation of partial extinguishment of native title by previous non-exclusive possession acts of Commonwealth

(1) Subject to subsection (2), if a previous non-exclusive possession act (see section 23F) is attributable to the Commonwealth:

(a) the act extinguishes any native title rights and interests in relation to the land or waters covered by the lease concerned to the extent that the act involves the grant of rights and interests that are inconsistent with the native title rights and interests; and

(b) any native title rights and interests in relation to the land or waters covered by the lease concerned are extinguished to the extent that they confer possession, occupation, use and enjoyment of the land or waters to the exclusion of all others; and

(d) to the extent that the act involves the grant of rights and interests that are not inconsistent with native title rights and interests in relation to the land or waters covered by the lease concerned, the rights and interests granted, and the doing of any activity in giving effect to them, prevail over the native title rights and interests but do not extinguish them.

(2) If the act is the grant of a pastoral lease or an agricultural lease to which paragraph 15(1)(a) applies, this section does not apply to the act.

(3) If this section applies to the act, sections 15 and 22B do not apply to the act.

23H Preservation of beneficial reservations and conditions

(a) a previous non-exclusive possession act attributable to the Commonwealth contains a reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders; or

(b) the doing of a previous non-exclusive possession act attributable to the Commonwealth would affect rights or interests (other than native title rights and interests) of Aboriginal peoples or Torres Strait Islanders (whether arising under legislation, at common law or in equity and whether or not rights of usage);

nothing in section 23G affects that reservation or condition or those rights or interests.

23HA Notification

In the case of a previous non-exclusive possession act to which subparagraph 23F(3)(c)(ii) applies:

(a) notice must be given, in the way determined in writing by the Commonwealth Minister, to any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the land or waters that will be affected by the act about the doing or proposed doing of the act, or acts of that class, in relation to the land or waters concerned; and

23I Confirmation of partial extinguishment of native title by previous non-exclusive possession acts of State or Territory

If a law of a State or Territory contains provisions to the same effect as sections 23H and 23HA, the law of the State or Territory may make provision to the same effect as section 23G in respect of all or any previous non-exclusive possession acts attributable to the State or Territory.

23J Compensation

(1) The native title holders are entitled to compensation in accordance with Division 5 for any extinguishment under this Division of their native title rights and interests by an act, but only to the extent (if any) that the native title rights and interests were not extinguished otherwise than under this Act.

(2) If the act is attributable to the Commonwealth, the compensation is payable by the Commonwealth.

(3) If the act is attributable to a State or Territory, the compensation is payable by the State or Territory.

Division 3—Future acts etc. and native title

Subdivision A—Preliminary

24AA Overview

(1) This Division deals mainly with future acts, which are defined in section 233. Acts that do not affect native title are not future acts; therefore this Division does not deal with them (see section 227 for the meaning of acts that affect native title).

(2) Basically, this Division provides that, to the extent that a future act affects native title, it will be valid if covered by certain provisions of the Division, and invalid if not.

(3) A future act will be valid if the parties to certain agreements (called indigenous land use agreements—see Subdivisions B, C and D) consent to the act being done.

(4) A future act will also be valid to the extent covered by any of the following:

(a) section 24FA (future acts where procedures indicate absence of native title);

(b) section 24GB (acts permitting primary production on non-exclusive agricultural or pastoral leases);

(d) section 24GE (granting rights to third parties etc. on non-exclusive agricultural or pastoral leases);

(5) In the case of certain acts covered by section 24MD (acts that pass the freehold test), for the acts to be valid it is also necessary to satisfy the requirements of Subdivision P (which provides a “right to negotiate”).

(6) This Division provides that, in general, valid future acts are subject to the non-extinguishment principle. The Division also deals with procedural rights and compensation for the acts.

(7) To avoid doubt, section 44H provides that a valid lease, licence, permit or authority, and any activity done under it, prevail over any native title rights and interests and their exercise.

(8) This Division confers access rights in respect of non-exclusive agricultural and non-exclusive pastoral leases on certain persons covered by registered native title claims (see Subdivision Q).

24AB Order of application of provisions

(1) To the extent that a future act is covered by section 24EB (which deals with the effect of indigenous land use agreements on future acts), it is not covered by any of the sections listed in paragraphs 24AA(4)(a) to (k).

(2) To the extent that a future act is covered by a particular section in the list in paragraphs 24AA(4)(a) to (k), it is not covered by a section that is lower in the list.

Note: It is important to know under which particular provision a future act is valid because the consequences in terms of compensation and procedural rights may be different.

24AC Regulations about notification

The regulations may impose requirements to notify persons of acts, or classes of acts, that are to any extent valid under this Division (whether such notice is required to be given before or after the acts are done).

Subdivision B—Indigenous land use agreements (body corporate agreements)

24BA Indigenous land use agreements (body corporate agreements)

An agreement meeting the requirements of sections 24BB to 24BE is an indigenous land use agreement.

Note: Subdivisions C and D provide for other kinds of indigenous land use agreements.

24BB Coverage of body corporate agreements

The agreement must be about one or more of the following matters in relation to an area:

(a) the doing, or the doing subject to conditions (which may be about procedural matters), of particular future acts, or future acts included in classes;

(b) withdrawing, amending, varying or doing any other thing in relation to an application under Division 1 of Part 3 in relation to land or waters in the area;

(d) the manner of exercise of any native title rights and interests or other rights and interests in relation to the area;

(e) extinguishing native title rights and interests in relation to land or waters in the area by the surrender of those rights and interests to the Commonwealth, a State or a Territory;

(f) any other matter concerning native title rights and interests in relation to the area.

Note 1: If the agreement involves consent to the doing of a future act or class of future act, or the doing of a future act or class of future act subject to conditions, it must include a statement to that effect: see paragraph 24EB(1)(b).

Note 2: If a future act covered by such a statement would otherwise be subject to the “right to negotiate” provisions in Subdivision P, the agreement must also include a statement that those provisions are not intended to apply: see paragraph 24EB(1)(c).

Note 3: If the agreement involves the extinguishment of native title by surrender, it must include a statement to that effect: see paragraph 24EB(1)(d).

24BC Body corporate agreements only where bodies corporate for whole area

The agreement must not be made unless there are registered native title bodies corporate in relation to all of the area.

24BD Parties to body corporate agreements

(1) All of the registered native title bodies corporate in relation to the area must be parties to the agreement.

(2) If the agreement makes provision for the extinguishment of native title rights and interests by surrendering them to the Commonwealth, a State or a Territory as mentioned in paragraph 24BB(e), the Commonwealth, State or Territory must be a party to the agreement. If the agreement does not make such provision, the Commonwealth, a State or a Territory may still be a party.

24BE Consideration and conditions

(1) The agreement may be given for any consideration, and subject to any conditions, agreed by the parties (other than consideration or conditions that contravene any law).

(2) Without limiting subsection (1), the consideration may be the grant of a freehold estate in any land, or any other interests in relation to land whether statutory or otherwise.

24BF Assistance to make body corporate agreements

Persons wishing to make the agreement may request assistance from the NNTT or a recognised State/Territory body in negotiating the agreement.

24BG Application for registration of body corporate agreements

(1) Any party to the agreement may, if all of the other parties agree, apply in writing to the Registrar for the agreement to be registered on the Register of Indigenous Land Use Agreements.

(2) The application must be accompanied by a copy of the agreement and any other prescribed documents or information.

24BH Notice of body corporate agreements

(a) give notice of the agreement, in accordance with subsection (2), to any of the following who are not parties to the agreement:

(ii) if the agreement covers an area within the jurisdictional limits of a State or Territory—the State Minister or the Territory Minister for the State or Territory;

(iii) any representative Aboriginal/Torres Strait Islander body for the area covered by the agreement;

(v) any other person whom the Registrar, having regard to the nature of the agreement, considers appropriate; and

(b) notify the public in the determined way of the agreement in accordance with subsection (2).

(b) state the name of each party to the agreement and the address at which the party can be contacted; and

24BI Registration of body corporate agreements

Unless any of the parties to the agreement advises the Registrar, within 1 month after the Registrar gives notice under section 24BH, that the party does not wish the agreement to be registered on the Register of Indigenous Land Use Agreements, the Registrar must register the agreement on that Register.

Subdivision C—Indigenous land use agreements (area agreements)

24CA Indigenous land use agreements (area agreements)

An agreement meeting the requirements of sections 24CB to 24CE is an indigenous land use agreement.

Note: Subdivisions B and D provide for other kinds of indigenous land use agreements.

24CB Coverage of area agreements

The agreement must be about one or more of the following matters in relation to an area:

(a) the doing, or the doing subject to conditions (which may be about procedural matters), of particular future acts, or future acts included in classes;

(b) withdrawing, amending, varying or doing any other thing in relation to an application under Division 1 of Part 3 in relation to land or waters in the area;

(d) the manner of exercise of any native title rights and interests or other rights and interests in relation to the area;

(e) extinguishing native title rights and interests in relation to land or waters in the area by the surrender of those rights and interests to the Commonwealth, a State or a Territory;

(f) any other matter concerning native title rights and interests in relation to the area;

(g) any matter concerning rights conferred by Subdivision Q (which gives certain persons covered by registered native title claims rights of access to non-exclusive agricultural and pastoral leases).

Note 3: If the agreement involves the extinguishment of native title by surrender, it must include a statement to that effect: see paragraph 24EB(1)(d).

24CC Requirement that no bodies corporate for whole of area

The agreement must not be made if there are registered native title bodies corporate in relation to all of the area.

Note: If there are registered native title bodies corporate for all of the area, an agreement under Subdivision B may be made.

24CD Parties to area agreements

(1) All persons in the native title group (see subsection (2) or (3)) in relation to the area must be parties to the agreement.

(2) If there is a registered native title claimant, or a registered native title body corporate, in relation to any of the land or waters in the area, the native title group consists of:

(a) all registered native title claimants in relation to land or waters in the area; and

Note 1: Registered native title claimants are persons whose names appear on the Register of Native Title Claims as applicants in relation to claims to hold native title: see the definition of registered native title claimant in section 253.

Note 2: The agreement will bind all members of the native title claim group concerned: see paragraph 24EA(1)(b).

(b) all registered native title bodies corporate in relation to land or waters in the area.

(3) If subsection (2) does not apply, the native title group consists of one or more of the following:

(a) any person who claims to hold native title in relation to land or waters in the area;

(4) If the native title group is covered by subsection (2), one or more of the following may also be parties to the agreement:

(a) any other person who claims to hold native title in relation to land or waters in the area;

(5) If the agreement makes provision for the extinguishment of native title rights and interests by surrendering them to the Commonwealth, a State or Territory as mentioned in paragraph 24CB(e), the Commonwealth, State or Territory must be a party to the agreement. If the agreement does not make such provision, the Commonwealth, a State or a Territory may still be a party.

24CE Consideration and conditions

(1) The agreement may be given for any consideration, and subject to any conditions, agreed by the parties (other than consideration or conditions that contravene any law).

(2) Without limiting subsection (1), the consideration may be the grant of a freehold estate in any land, or any other interests in relation to land whether statutory or otherwise.

24CF Assistance to make area agreements

Persons wishing to make the agreement may request assistance from the NNTT or a recognised State/Territory body in negotiating the agreement.

24CG Application for registration of area agreements

(1) Any party to the agreement may, if all of the other parties agree, apply in writing to the Registrar for the agreement to be registered on the Register of Indigenous Land Use Agreements.

(2) The application must be accompanied by a copy of the agreement and any other prescribed documents or information.

(a) have been certified by all representative Aboriginal/Torres Strait Islander bodies for the area in performing their functions under paragraph 202(4)(e) in relation to the area; or

(b) include a statement to the effect that the following requirements have been met:

(i) all reasonable efforts have been made (including by consulting all representative Aboriginal/Torres Strait Islander bodies for the area) to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified;

(ii) all of the persons so identified have authorised the making of the agreement;

together with a further statement briefly setting out the grounds on which the Registrar should be satisfied that the requirements are met.

24CH Notice of area agreements etc.

(a) give notice of the agreement, in accordance with subsection (2), to any of the following who are not parties to the agreement:

(ii) if the agreement covers an area within the jurisdictional limits of a State or Territory—the State Minister or the Territory Minister for the State or Territory;

(iii) any representative Aboriginal/Torres Strait Islander body for the area covered by the agreement;

(v) any other person whom the Registrar, having regard to the nature of the agreement, considers appropriate; and

(b) notify the public in the determined way of the agreement in accordance with subsection (2).

(b) state the name of each party to the agreement and the address at which the party can be contacted; and

(c) set out any statements included in the agreement that are of a kind mentioned in paragraph 24EB(1)(b),(c) or (d); and

(d) include a statement that, within the period (the notice period) of 3 months after the notification day (see subsection (3)):

(i) if the application was certified by representative Aboriginal/Torres Strait Islander bodies for the area (see paragraph 24CG(3)(a))—any person claiming to hold native title in relation to any of the land or waters in the area covered by the agreement may object, in writing to the Registrar, against registration of the agreement on the ground that the requirements of paragraphs 202(8)(a) and (b) were not satisfied in relation to the certification; or

(ii) if the application contained a statement as mentioned in paragraph 24CG(3)(b) to the effect that certain requirements have been met (in summary, relating to identifying native title holders and ensuring that they have authorised the making of the agreement)—any person claiming to hold native title in relation to land or waters in the area covered by the agreement may wish, in response to the notice, to make a native title determination application or equivalent application under a law of a State or Territory.

(3) The notice under paragraph (1)(a) or (b) must specify a day as the notification day for the agreement. Each such notice in relation to the agreement must specify the same day.

(4) That day must be a day by which, in the Registrar’s opinion, it is reasonable to assume that all notices under paragraph (1)(a) or (b) in relation to the agreement will have been received by, or will otherwise have come to the attention of, the persons who must be notified under those paragraphs.

24CI Objections against registration

(1) If the application was certified by representative Aboriginal/Torres Strait Islander bodies for the area (see paragraph 24CG(3)(a)), any person claiming to hold native title in relation to any of the land or waters in the area covered by the agreement may object, in writing to the Registrar, against registration of the agreement on the ground that the requirements of paragraphs 202(8)(a) and (b) were not satisfied in relation to the certification.

(2) If an objection is made within the notice period, the parties to the agreement may request assistance from the NNTT or a recognised State/Territory body in negotiating with the person making the objection with a view to having the objection withdrawn.

24CJ Decision about registration

The Registrar must, after the end of the notice period, decide whether or not to register an agreement covered by an application under this Subdivision on the Register of Indigenous Land Use Agreements. However, in a case where section 24CL is to be applied, the Registrar must not do so until all persons covered by paragraph (2)(b) of that section are known.

24CK Registration of area agreements certified by representative bodies

(1) If the application for registration of the agreement was certified by representative Aboriginal/Torres Strait Islander bodies for the area (see paragraph 24CG(3)(a)) and the conditions in this section are satisfied, the Registrar must register the agreement. If the conditions are not satisfied, the Registrar must not register the agreement.

(a) no objection under section 24CI against registration of the agreement was made within the notice period; or

(b) one or more objections under section 24CI against registration of the agreement were made within the notice period, but they have all been withdrawn; or

(c) one or more objections under section 24CI against registration of the agreement were made within the notice period, all of them have not been withdrawn, but none of the persons making them has satisfied the Registrar that the requirements of paragraphs 202(8)(a) and (b) were not satisfied in relation to the certification of the application by any of the representative Aboriginal/Torres Strait Islander bodies concerned.

(3) The second condition is that if, when the Registrar proposes to register the agreement, there is a registered native title body corporate in relation to any land or waters in the area covered by the agreement, that body corporate is a party to the agreement.

(4) In deciding whether he or she is satisfied as mentioned in paragraph (2)(c), the Registrar must take into account any information given in relation to the matter by:

(b) the representative Aboriginal/Torres Strait Islander bodies that certified the application;

24CL Registration of area agreements not certified by representative Aboriginal/Torres Strait Islander bodies

(1) If the application for registration of the agreement contained a statement as mentioned in paragraph 24CG(3)(b) to the effect that certain requirements have been met (in summary, relating to identifying native title holders and ensuring that they have authorised the making of the agreement), and the conditions in subsections (2) and (3) of this section are satisfied, the Registrar must register the agreement. If the conditions are not satisfied, the Registrar must not register the agreement.

(2) The first condition is that the following persons are parties to the agreement:

(a) any person who is, at the end of the notice period, a registered native title claimant or a registered native title body corporate in relation to any of the land or waters in the area covered by the agreement; and

(b) any person who, after the end of the notice period, becomes a registered native title claimant in relation to any of the land or waters in the area covered by the agreement, where the application containing the claim was made before the end of the notice period and:

(i) the claim is accepted by the Registrar for registration under subsection 190A(6) or is (otherwise than on appeal or review) found to satisfy conditions equivalent to those set out in sections 190B and 190C under a law of a State or Territory; or

(ii) the claim is accepted by the Registrar for registration as a result of an application under subsection 190D(2), where the application was made not more than 28 days after the notice under subsection 190D(1) was given; or

(iii) the claim is found to satisfy conditions equivalent to those set out in sections 190B and 190C under a provision of a law of a State or Territory to similar effect as section 190D, and the application under that provision was made within a time period corresponding to that set out in subparagraph (ii) of this paragraph.

(3) The second condition is that the Registrar considers that the requirements in paragraph 24CG(3)(b) (in summary, relating to identifying native title holders and ensuring that they have authorised the making of the agreement) have been met.

(4) In deciding whether the requirements have been met, the Registrar must take into account:

(b) any information the Registrar is given on the matter by any representative Aboriginal/Torres Strait Islander body or by any other body or person;

Subdivision D—Indigenous land use agreements (alternative procedure agreements)

24DA Indigenous land use agreements (alternative procedure agreements)

An agreement meeting the requirements of sections 24DB to 24DF is an indigenous land use agreement.

Note: Subdivisions B and C provide for other kinds of indigenous land use agreements.

24DB Coverage of alternative procedure agreements

The agreement must be about one or more of the following matters in relation to an area:

(a) the doing, or the doing subject to conditions (which may be about procedural matters), of particular future acts, or future acts included in classes;

(b) withdrawing, amending, varying or doing any other thing in relation to an application under Division 1 of Part 3 in relation to land or waters in the area;

(d) the manner of exercise of any native title rights and interests or other rights and interests in relation to the area;

(e) providing a framework for the making of other agreements about matters relating to native title rights and interests;

(f) any other matter concerning native title rights and interests in relation to the area;

(g) any matter concerning rights conferred by Subdivision Q (which gives certain persons covered by registered native title claims rights of access to non-exclusive agricultural and pastoral leases).

24DC No extinguishment of native title

The agreement must not provide for the extinguishment of any native title rights or interests.

Note: The non-extinguishment principle will apply to any future acts consented to in the agreement: see subsection 24EB(3).

24DD Bodies corporate and representative bodies etc.

(1) The agreement must not be made if there are registered native title bodies corporate in relation to all of the land and waters in the area.

Note: If there are registered native title bodies corporate for all of the area, an agreement under Subdivision B may be made.

(2) There must be at least one registered native title body corporate in relation to land or waters in the area or at least one representative Aboriginal/Torres Strait Islander body for the area.

24DE Parties to alternative procedure agreements

(1) All persons in the native title group (see subsection (2)) in relation to the area must be parties to the agreement, as must every relevant government (see subsection (3)).

(a) all registered native title bodies corporate in relation to land or waters in the area; and

(a) the Commonwealth, if any of the area covered by the agreement is a place outside the jurisdictional limits of the States and Territories;

(b) a State or Territory, if any of the area covered by the agreement is within the jurisdictional limits of the State or Territory.

(a) any registered native title claimant in relation to land or waters in the area;

Note 2: The agreement will bind all members of the native title claim group concerned: see paragraph 24EA(1)(b).

(b) any other person who claims to hold native title in relation to land or waters in the area;

24DF Consideration and conditions

(1) The agreement may be given for any consideration, and subject to any conditions, agreed by the parties (other than consideration or conditions that contravene any law).

(2) Without limiting subsection (1), the consideration may be the grant of a freehold estate in any land, or any other interests in relation to land whether statutory or otherwise.

24DG Assistance to make alternative procedure agreements

Persons wishing to make the agreement may request assistance from the NNTT or a recognised State/Territory body in negotiating the agreement.

24DH Application for registration of alternative procedure agreements

(1) Any party to the agreement may, if all of the other parties agree, apply in writing to the Registrar for the agreement to be registered on the Register of Indigenous Land Use Agreements.

(2) The application must be accompanied by a copy of the agreement and any other prescribed documents or information.

24DI Notice of alternative procedure agreements

(a) give notice of the agreement, in accordance with subsection (2), to any of the following who are not parties to the agreement:

(ii) if the agreement covers an area within the jurisdictional limits of a State or Territory—the State Minister or the Territory Minister for the State or Territory;

(iv) any other person whom the Registrar, having regard to the nature of the agreement, considers appropriate; and

(b) notify the public in the determined way of the agreement in accordance with subsection (2).

(b) state the name of each party to the agreement and the address at which the party can be contacted; and

(d) include a statement that, within the period (the notice period) of 3 months after the notification day (see subsection (3)), any person claiming to hold native title in relation to any of the land or waters in the area covered by the agreement may:

(ii) object, in writing to the Registrar, against registration of the agreement on the ground that it would not be fair and reasonable to do so.

(3) The notice must specify a day as the notification day for the agreement. Each such notice in relation to the agreement must specify the same day.

(5) If a person claiming to hold native title in relation to any of the land or waters covered by the agreement requests a copy of the agreement, the Registrar must comply with the request.

24DJ Objections against registration

(1) Any person claiming to hold native title in relation to any of the land or waters in the area covered by the agreement may make an application to the Registrar objecting against registration of the agreement on the ground that it would not be fair and reasonable to register the agreement.

(2) If an objection is made within the notice period, the parties may request assistance from the NNTT or a recognised State/Territory body in negotiating with the person making the objection with a view to having the objection withdrawn.

24DK Decision about registration

The Registrar must, after the end of the notice period, decide whether or not to register the agreement on the Register of Indigenous Land Use Agreements.

24DL Registration of alternative procedure agreements

(1) If a condition in subsection (2) is satisfied, the Registrar must register the agreement. If none of the conditions is satisfied, the Registrar must not register the agreement.

(a) no objection against registration of the agreement was made within the notice period; or

(b) one or more objections against registration of the agreement were made within the notice period, but they have all been withdrawn; or

(c) one or more objections against registration of the agreement were made during the notice period, all of them have not been withdrawn, but none of the persons making them has satisfied the NNTT or a recognised State/Territory body that it would not be fair and reasonable to register the agreement, having regard to:

(iii) any benefits provided under the agreement to current native title holders (whether or not identified at the time the agreement is made) and their successors, and the way in which those benefits are to be distributed; and

Note: Sections 77A and 77B deal with applications to the NNTT objecting against registration of the agreement.

24DM Other registration procedures and conditions

The regulations may provide for procedures and conditions for the registration of agreements under this Subdivision on the Register of Indigenous Land Use Agreements. Agreements are to be registered if either those procedures and conditions or the ones set out in sections 24DH to 24DL are complied with.

Subdivision E—Effect of registration of indigenous land use agreements

24EA Contractual effect of registered agreement

(1) While details of an agreement are entered on the Register of Indigenous Land Use Agreements, the agreement has effect, in addition to any effect that it may have apart from this subsection, as if:

(b) all persons holding native title in relation to any of the land or waters in the area covered by the agreement, who are not already parties to the agreement, were bound by the agreement in the same way as the registered native title bodies corporate, or the native title group, as the case may be.

Note: Section 199B specifies the details of the agreement that are required to be entered on the Register.

(2) To avoid doubt, a person is not bound by the agreement unless the person is a party to the agreement or a person to whom paragraph (1)(b) applies.

(3) If the Commonwealth, a State or a Territory is a party to an indigenous land use agreement whose details are entered in the Register of Indigenous Land Use Agreements, this Act does not prevent the Commonwealth, the State or the Territory doing any legislative or other act to give effect to any of its obligations under the agreement.

24EB Effect of registration on future acts covered by indigenous land use agreements

(b) when it is done, there are on the Register of Indigenous Land Use Agreements details of an agreement that includes a statement to the effect that the parties consent to:

(ii) the doing of the act, or class of act in which the act is included, subject to conditions; and

(c) if the act is, apart from this Subdivision, an act to which Subdivision P (which deals with the right to negotiate) applies—the agreement also includes a statement to the effect that Subdivision P is not intended to apply; and

Note: The fact that, under the “right to negotiate” provisions in Subdivision P, agreements can be made after notice of an act is given as mentioned in section 29 does not prevent an indigenous land use agreement being made that consents to the doing of the act.

(d) if the act is the surrender of native title under an agreement covered by Subdivision B or C—the agreement also includes a statement to the effect that the surrender is intended to extinguish the native title rights and interests.

(2) The act is valid to the extent that it affects native title in relation to land or waters in the area covered by the agreement.

(3) Unless a statement of the kind mentioned in paragraph (1)(d) in relation to the act is included in the agreement, the non-extinguishment principle applies to the act.

(4) In the case of an agreement under Subdivision B, the following are not entitled to any compensation for the act under this Act, other than compensation provided for in the agreement:

(i) for whom such a registered native title body corporate holds native title rights and interests on trust; or

(ii) of whom such a registered native title body corporate is the agent or representative;

(5) In the case of an agreement under Subdivision C, the following are not entitled to any compensation for the act under this Act, other than compensation provided for in the agreement:

(a) any native title holder who is entitled to any of the benefits provided under the agreement;

(b) any native title holder who authorised the making of the agreement as mentioned in:

(i) if the application was certified by representative Aboriginal/Torres Strait Islander bodies as mentioned in paragraph 24CG(3)(a)—paragraph 202(8)(b); or

(ii) if the application included statements as mentioned in paragraph 24CG(3)(b) to the effect that certain requirements have been met (in summary, relating to identifying all native title holders and ensuring that they have authorised the making of the agreement)—that paragraph.

(6) In the case of an agreement under Subdivision D, no native title holder who is entitled to any of the benefits provided under the agreement is entitled to any compensation for the act under this Act, other than compensation provided for in the agreement.

(7) If any native title holder in relation to the land or waters covered by the agreement (except one who, because of subsection (4), (5) or (6), is not entitled to compensation other than that provided for in the agreement) would be entitled to compensation under subsection 17(2) for the act on the assumption that it was a past act referred to in that subsection:

(a) he or she is entitled, in accordance with Division 5, to compensation for the act; and

(i) if subparagraph (ii) does not apply—the Crown in right of the Commonwealth, a State or a Territory (according to whether the act is attributable to the Commonwealth, the State or the Territory); or

(ii) any person or persons who, under an agreement in writing with the Commonwealth, the State or the Territory, are liable to pay the compensation.

24EC Agreements unrelated to future acts

The fact that this Subdivision deals with agreements with native title holders that relate to their native title rights and interests does not imply that the Commonwealth, a State or a Territory cannot:

with native title holders that relate to their native title rights and interests (other than agreements consenting to the doing of future acts).

Subdivision F—Future acts: if procedures indicate absence of native title

24FA Consequences if section 24FA protection applies

(1) If an area is subject to section 24FA protection (see sections 24FB, 24FC and 24FD) at a particular time:

(a) any future act by any person in relation to the area that is done at that time is valid; and

(b) if such an act extinguishes native title to any extent—the native title holders are entitled to compensation, in accordance with Division 5, for the act in so far as it has that effect; and

(c) if the act mentioned in paragraph (a) does not so extinguish native title and the native title holders would be entitled to compensation under subsection 17(2) for the act on the assumption that it was a past act referred to in that subsection—they are entitled, in accordance with Division 5, to compensation for the act.

(a) if the act is attributable to the Commonwealth—the Crown in right of the Commonwealth; or

(b) if the act is attributable to a State or Territory—the Crown in right of the State or Territory.

24FB When section 24FA protection arises—government applications

(a) before that time, a non-claimant application (see section 253), or a corresponding application for an approved determination of native title under a law of a State or Territory, has been made by or on behalf of a Minister, the Crown in any capacity, or a statutory authority; and

(b) the area is the whole of the area covered by the application and the application has not been amended as to area; and

(c) the period specified in the notice given under section 66, or under a corresponding provision of the law of the State or Territory, has ended; and

(d) at the end of that period, there is no relevant native title claim (see section 24FE) covering the area or a part of the area; and

(e) the application has not been withdrawn, dismissed or otherwise finalised; and

(f) there is no entry on the National Native Title Register, included under paragraph 193(1)(a) or (b), specifying that native title exists in relation to the area or a part of the area.

24FC When section 24FA protection arises—non-government applications

An area is subject to section 24FA protection at a particular time if:

(a) before that time, a non-claimant application, or a corresponding application for an approved determination of native title under a law of a State or Territory, has been made; and

(d) the period specified in the notice given under section 66, or under a corresponding provision of the law of the State or Territory, has ended; and

(i) at the end of that period, there is no relevant native title claim (see section 24FE) covering the area; or

(ii) after the end of that period, but before the particular time, all entries that relate to a relevant native title claim that covered the area are removed from the Register of Native Title Claims or cease to cover the area; and

(f) the application, in so far as it relates to that area, has not been withdrawn, dismissed or otherwise finalised; and

(g) there is no entry on the National Native Title Register, included under paragraph 193(1)(a) or (b), specifying that native title exists in relation to the area.

24FD When section 24FA protection arises—entry on National Native Title Register

An area is subject to section 24FA protection at a particular time if it is covered by an entry on the National Native Title Register, included under paragraph 193(1)(a) or (b), specifying that no native title exists in relation to the area.

24FE Relevant native title claim

For the purposes of this Subdivision, there is a relevant native title claim covering an area at the end of the period mentioned in paragraph 24FB(c) or 24FC(d) if:

(a) at that time, there is an entry covering that area on the Register of Native Title Claims; or

(b) after that time, an entry covering that area is included on the Register of Native Title Claims, provided the application containing the claim was made before that time and:

(ii) the claim is accepted by the Registrar for registration as a result of an application under subsection 190D(2) and the application was made not more than 28 days after the notice under subsection 190D(1) was given; or

Subdivision G—Future acts and primary production

24GA Primary production activity

(e) horticultural activities (see section 253 for the definition of horticulture);

(g) leaving fallow or de-stocking any land in connection with the doing of any thing that is a primary production activity.

24GB Acts permitting primary production on non-exclusive agricultural and pastoral leases

(a) a non-exclusive agricultural lease (see section 247B) or non-exclusive pastoral lease (see section 248B) was granted on or before 23 December 1996; and

Note: As at the commencement of this section, grants before 1 January 1994 that were invalid because of native title have been validated by or under Division 2.

(d) the future act permits or requires the carrying on of any of the following while the lease (including as renewed on one or more occasions) is in force:

(i) a primary production activity (see section 24GA) on the area covered by the lease; or

(ii) another activity, on the area covered by the lease, that is associated with or incidental to a primary production activity covered by subparagraph (i), provided that, when the other activity is being carried on, the majority of the area covered by the lease is used for primary production activities.

Note: For the renewal, re-grant, re-making or extension of certain acts covered by this section, see Subdivision I.

(b) permits or requires a farm tourism activity in the area covered by a lease meeting the requirements of paragraphs (1)(a) and (b) while the lease is in force (including as renewed on one or more occasions).

(3) However, this section does not apply to a future act permitting or requiring farm tourism if the act permits or requires tourism that involves observing activities or cultural works of Aboriginal peoples or Torres Strait Islanders.

(a) where the lease covered by paragraph (1)(a) is a non-exclusive pastoral lease covering an area greater than 5,000 hectares—the act has the effect that the majority of the area covered by the lease is used for purposes other than pastoral purposes; or

(b) in any case—the act converts a lease covered by paragraph (1)(a) into a lease conferring a right of exclusive possession, or into a freehold estate, over any of the land or waters covered by the lease.

Note: If such an act is done in exercise of a legally conferred right, it could be covered by section 24ID. A lease conferring such rights or a freehold estate could be granted after a compulsory acquisition of native title under section 24MD or under certain indigenous land use agreements.

(7) The native title holders concerned are entitled to compensation for the act in accordance with Division 5.

(a) if the act is attributable to the Commonwealth—the Crown in right of the Commonwealth; or

(b) if the act is attributable to a State or Territory—the Crown in right of the State or Territory.

(a) the primary production activity mentioned in subparagraph (1)(d)(i) or (ii) is forest operations, a horticultural activity or an aquacultural activity; or

(b) the lease mentioned in paragraph (1)(a) is a non-exclusive pastoral lease and the primary production activity mentioned in subparagraph (1)(d)(i) or (ii) is an agricultural activity;

(c) notify, in the way determined in writing by the Commonwealth Minister, any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the land or waters covered by the non-exclusive agricultural lease or non-exclusive pastoral lease that the act, or acts of that class, are to be done in relation to the particular land or waters; and

24GC Primary production etc. activities on non-exclusive agricultural or pastoral leases

(a) a non-exclusive agricultural lease (see section 247B) or non-exclusive pastoral lease (see section 248B) was granted on or before 23 December 1996; and

Note: As at the commencement of this section, grants before 1 January 1994 that were invalid because of native title have been validated by or under Division 2.

(c) the activity is the carrying on, after 23 December 1996 and while the lease (including as renewed on one or more occasions) is in force, of any of the following:

(a) the doing of any activity mentioned in paragraph (1)(c) prevails over any native title rights and interests and any exercise of those rights and interests, but does not extinguish them; and

(b) the existence and exercise of native title rights and interests do not prevent the carrying on of any such activity.

Note: This subsection is not intended to imply that the person carrying on the activity is not subject to the laws of a State or Territory.

(3) Native title holders are not entitled to compensation under this Act for the carrying on of the activity.

Note: Any compensation to which the native title holders may be entitled under this Act for the grant of the lease, or other authority for the doing of the activity, may take into account the doing of the activity.

24GD Acts permitting off-farm activities that are directly connected to primary production activities

(a) a freehold estate, an agricultural lease (see section 247) or a pastoral lease (see section 248) was granted on or before 23 December 1996; and

Note: As at the commencement of this section, grants before 1 January 1994 that were invalid because of native title have been validated by or under Division 2.

(e) the future act permits or requires the carrying on of grazing, or an activity consisting of or relating to gaining access to or taking water, that:

(i) takes place while the freehold estate exists or the agricultural lease or pastoral lease (including as renewed on one or more occasions) is in force; and

(ii) is directly connected to the carrying on of any primary production activity on the area covered by the freehold estate or the agricultural lease or pastoral lease; and

(iii) takes place in an area adjoining or near the area covered by the freehold estate or the agricultural lease or pastoral lease; and

(iv) does not prevent native title holders in relation to land or waters in the area in which the activity will be carried on from having reasonable access to the area.

Example 1: An example of an act covered by this section is the conferral of rights to graze cattle in an area adjoining that covered by an agricultural lease or pastoral lease, if the cattle are also grazed in the area covered by the lease.

Example 2: Another example is the conferral of rights to take water from an area near that covered by an agricultural lease or pastoral lease, if the water is for use in carrying on primary production activities in the area covered by the lease.

Note: For the renewal, re-grant, re-making or extension of certain acts covered by this section, see Subdivision I.

(4) The native title holders concerned are entitled to compensation for the act in accordance with Division 5.

(a) if the act is attributable to the Commonwealth—the Crown in right of the Commonwealth; or

(b) if the act is attributable to a State or Territory—the Crown in right of the State or Territory.

(a) notify, in the way determined in writing by the Commonwealth Minister, any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the land or waters that will be affected by the act that the act, or acts of that class, are to be done in relation to the land or waters concerned; and

24GE Granting rights to third parties etc. on non-exclusive agricultural or pastoral leases

(a) a non-exclusive agricultural lease (see section 247B) or a non-exclusive pastoral lease (see section 248B) was granted on or before 23 December 1996; and

Note: As at the commencement of this section, grants before 1 January 1994 that were invalid because of native title have been validated by or under Division 2.

(c) the future act takes place after 23 December 1996 and while the lease (including as renewed on one or more occasions) is in force; and

(iv) to obtain and remove sand, soil or other resources (except so far as doing so constitutes mining);

from the area covered by the non-exclusive agricultural lease or non-exclusive pastoral lease; and

(i) has notified, in the way determined in writing by the Commonwealth Minister, any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the land or waters covered by the non-exclusive agricultural lease or non-exclusive pastoral lease that the act, or acts of that class, are to be done in relation to the particular land or waters; and

Note: For the renewal, re-grant, re-making or extension of certain acts covered by this section, see Subdivision I.

(4) The native title holders concerned are entitled to compensation for the act in accordance with Division 5.

(a) if the act is attributable to the Commonwealth—the Crown in right of the Commonwealth; or

(b) if the act is attributable to a State or Territory—the Crown in right of the State or Territory.

Subdivision H—Management of water and airspace

24HA Management or regulation of water and airspace

(1) This section applies to a future act consisting of the making, amendment or repeal of legislation in relation to the management or regulation of:

(2) This section also applies to a future act consisting of the grant of a lease, licence, permit or authority under legislation that:

(5) The native title holders concerned are entitled to compensation for the act in accordance with Division 5.

(a) if the act is attributable to the Commonwealth—the Crown in right of the Commonwealth; or

(b) if the act is attributable to a State or Territory—the Crown in right of the State or Territory.

(7) Before an act covered by subsection (2) is done, the person proposing to do the act must:

(a) notify, in the way determined in writing by the Commonwealth Minister, any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the land or waters that will be affected by the act, or acts of that class, that the act, or acts of that class, are to be done; and

Subdivision I—Renewals and extensions etc.

24IA Future acts to which this section applies

24IB Pre-existing right-based acts

(a) in exercise of a legally enforceable right created by any act done on or before 23 December 1996 that is valid (including because of Division 2 or 2A); or

(b) in good faith in giving effect to, or otherwise because of, an offer, commitment, arrangement or undertaking made or given in good faith on or before 23 December 1996, and of which there is written evidence created at or about the time the offer, commitment, arrangement or undertaking was made.

24IC Future acts that are permissible lease etc. renewals

of a lease, licence, permit or authority (the original lease etc.) that is valid (including because of Division 2 or 2A); and

(ii) the grant of the original lease etc. was a permissible lease etc. renewal or a pre-existing right-based act;

(iii) the original lease etc. was created by an act covered by section 24GB, 24GD, 24GE or 24HA (which deal with certain acts in relation to primary production activities or involving management or regulation of water and airspace); and

(i) confer a right of exclusive possession over any of the land or waters covered by the original lease etc.; or

(ii) otherwise create a larger proprietary interest in the land or waters than was created by the original lease etc.; or

(iii) create a proprietary interest over any of the land or waters covered by the original lease etc., where the original lease etc. created only a non-proprietary interest; and

(d) if the original lease etc. contains, or is subject to, a reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders—the renewed, re-granted, re-made or extended lease, licence, permit or authority contains, or is subject to, the same reservation or condition; and

(e) if the original lease etc. did not permit mining—the renewed, re-granted, re-made or extended lease, licence, permit or authority does not permit mining.

(2) If 2 or more leases, licences, permits or authorities are granted in place of, respectively, a single lease, licence, permit or authority, then, for the purposes of subsection (1), each of the 2 or more grants is taken to be a renewal of the single lease, licence, permit or authority.

(a) an act from being the renewal, re-grant, re-making, or extension of the term, of a lease, licence, permit or authority (the old authority) for the purposes of subsection (1) (the renewed, re-granted, re-made or extended lease, licence, permit or authority being the new authority); or

(b) 2 or more leases, licences, permits or authorities (each of which is a new authority) from being granted in place of a single lease, licence, permit or authority (the old authority) for the purposes of subsection (2).

(a) the new authority, or the new authorities together, cover a smaller area than the old authority;

(b) the term of the new authority, or of any of the new authorities, is longer than the term of the old authority;

(d) if the new authority or any of the new authorities is a non-exclusive agricultural lease or a non-exclusive pastoral lease—the new authority permits or requires the carrying on of an activity that the old authority did not permit or require and that consists of:

(ii) another activity, on the area covered by the new authority or of any of the new authorities, that is associated with or incidental to a primary production activity, provided that, when the other activity is being carried on, the use of the majority of the area covered by the new authority, or the new authorities together, will be for primary production activities.

24ID Effect of Subdivision applying to an act

(b) if the act consists of the grant of a freehold estate, or the conferral of a right of exclusive possession, over particular land or waters—the act extinguishes any native title in relation to the land or waters; and

Note: The only acts to which this paragraph applies are certain acts covered by section 24IB.

(d) in any case—the native title holders are entitled to compensation for the act in accordance with Division 5.

(a) if the act is attributable to the Commonwealth—the Crown in right of the Commonwealth; or

(b) if the act is attributable to a State or Territory—the Crown in right of the State or Territory.

(3) If paragraph 24IB(b) applied in relation to the future act, then, before the act is done, the person proposing to do the act must:

Subdivision J—Reservations, leases etc.

24JA Acts covered by this Subdivision

(a) an act (the earlier act) took place before the later act and on or before 23 December 1996; and

(i) was done by the Crown in right of the Commonwealth, a State or Territory; or

(ii) consisted of the making, amendment or repeal of legislation by the Commonwealth, a State or Territory: and

(d) the earlier act contained, made or conferred a reservation, proclamation, dedication, condition, permission or authority (the reservation) under which the whole or part of any land or waters was to be used for a particular purpose; and

(ii) in the area covered by the reservation, so long as the act’s impact on native title is no greater than the impact that any act that could have been done under or in accordance with the reservation would have had.

Example 1: A future act consisting of the creation of a national park management plan might be covered by subparagraph (e)(i), if the land concerned was reserved for the establishment of the national park before 23 December 1996.

Example 2: A future act consisting of the grant of a forestry licence might be covered by that subparagraph, if the grant is done under or in accordance with a dedication for forestry purposes made before 23 December 1996.

Example 3: Subparagraph (e)(ii) might apply if particular land was reserved as a hospital site before 23 December 1996, and instead a school is later built on the land.

(a) an act (the earlier act) took place before the later act and on or before 23 December 1996; and

(d) the earlier act consisted of the grant of a lease to a statutory authority of the Commonwealth, the State or the Territory, where:

(i) under the lease, the whole or part of any land or waters covered by the lease was to be used for a particular purpose; or

(ii) there is written evidence, created at any time on or before 23 December 1996 by the Commonwealth, the State or the Territory, that the whole or part of any land or waters covered by the lease was to be used for a particular purpose; and

(e) the later act is done in good faith and consists of the use, by the statutory authority or any person, of the land or waters for the particular purpose.

24JB Treatment of acts covered by section 24JA

(a) the act extinguishes any native title in relation to the land or waters on which the public work (on completion of its construction or establishment) is situated; and

(b) the extinguishment is taken to have happened when the construction or establishment of the public work began.

(3) If the act does not consist of the construction or establishment of a public work, the non-extinguishment principle applies to the act.

(4) The native title holders are entitled to compensation for the act in accordance with Division 5.

(a) if the act is attributable to the Commonwealth—the Crown in right of the Commonwealth; or

(b) if the act is attributable to a State or Territory—the Crown in right of the State or Territory.

(6) If the act consists of the construction or establishment of a public work, then, before the act is done, the person proposing to do the act must:

(a) notify, in the way determined in writing by the Commonwealth Minister, any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the land or waters covered by the reservation or lease that the act, or acts of that class, are to be done in relation to the land or waters; and

Subdivision K—Facilities for services to the public

24KA Facilities for services to the public

(i) permits or requires the construction, operation, use, maintenance or repair, by or on behalf of any person, of any of the things listed in subsection (2) that is to be operated, or is operated, for the general public; or

(ii) consists of the construction, operation, use, maintenance or repair, by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any of its capacities, of any of the things listed in subsection (2) that is to be operated, or is operated, for the general public; and

(c) it does not prevent native title holders in relation to land or waters on which the thing is located or to be located from having reasonable access to such land or waters in the vicinity of the thing, except:

(d) a law of the Commonwealth, a State or a Territory makes provision in relation to the preservation or protection of areas, or sites, that may be:

(ii) of particular significance to Aboriginal peoples or Torres Strait Islanders in accordance with their traditions.

(a) a road, railway, bridge or other transport facility (other than an airport or port);

(i) a drainage facility, or a levee or other device for management of water flows;

(m) any other thing that is similar to any one or more of the things mentioned in the paragraphs above.

(5) If any native title holders would be entitled to compensation under subsection 17(2) for the act on the assumption that it was a past act referred to in that section, the native title holders are entitled to compensation for the act in accordance with Division 5.

(i) if a law of the Commonwealth provides that a person other than the Crown in right of the Commonwealth is liable to pay the compensation—that person; or

(i) if a law of the State or Territory provides that a person other than the Crown in any capacity is liable to pay the compensation—that person; or

(7) The native title holders have the same procedural rights as they would have in relation to the act on the assumption that they instead held:

(a) to the extent (if any) that the land concerned is covered by a non-exclusive agricultural lease (see section 247B) or a non-exclusive pastoral lease (see section 248B)—a lease of that kind; or

covering any land concerned or covering the land adjoining, or surrounding, any waters concerned.

(a) because of subsection (7) or any law of the Commonwealth, a State or a Territory, the native title holders have a procedural right that requires another person to notify them of the act; and

then one way in which the person may give the required notification is by notifying, in the way determined in writing by the Commonwealth Minister for the purposes of this subsection the following that the act is to take place:

(d) any registered native title claimants in relation to land or waters in the area concerned.

Subdivision L—Low impact future acts

24LA Low impact future acts

(1) This Subdivision applies to a future act in relation to particular land or waters if:

(a) the act takes place before, and does not continue after, an approved determination of native title is made in relation to the land or waters, if the determination is that native title exists; and

(iii) the conferral of a right of exclusive possession over any of the land or waters; or

(vi) the construction or placing on the land, or in the waters, of any building, structure, or other thing (other than fencing or a gate), that is a fixture; or

(vii) the disposal or storing, on the land or in the waters, of any garbage or any poisonous, toxic or hazardous substance.

(a) excavation or clearing that is reasonably necessary for the protection of public health or public safety; or

(b) tree lopping, clearing of noxious or introduced animal or plant species, foreshore reclamation, regeneration or environmental assessment or protection activities.

Subdivision M—Acts passing the freehold test

24MA Legislative acts

This Subdivision applies to a future act if it is the making, amendment or repeal of legislation and:

(a) the act applies in the same way to the native title holders concerned as it would if they instead held ordinary title to the land (or to the land adjoining, or surrounding, the waters) affected; or

(b) the effect of the act on the native title in relation to the land or the waters is not such as to cause the native title holders to be in a more disadvantageous position at law than they would be if they instead held ordinary title to the land (or to the land adjoining, or surrounding, the waters).

Example 1: An example of a future act covered by paragraph (a) is the making of legislation that permits mining on land in respect of which there is either native title or ordinary title.

Example 2: An example of a future act covered by paragraph (b) is the amendment of legislation that permits mining on land that is subject to ordinary title so that it will also permit mining, on the same terms, on land in relation to which native title exists.

24MB Non-legislative acts

(i) the act could be done in relation to the land concerned if the native title holders concerned instead held ordinary title to it; or

(ii) the act could be done in relation to the waters concerned if the native title holders concerned held ordinary title to the land adjoining, or surrounding, the waters.

Example: An example of a future act covered by this subsection is the grant of a mining lease over land in relation to which there is native title when a mining lease would also be able to be granted over the land if the native title holders instead held ordinary title to it.

24MC Only onshore places covered

However, this Subdivision only applies to a future act to the extent that it relates to an onshore place. A reference to an act to which this Subdivision applies is to be read as referring to the act to that extent only.

24MD Treatment of acts that pass the freehold test

(1) If this Subdivision applies to a future act, then, subject to Subdivision P (which deals with the right to negotiate), the act is valid.

(a) the act is the compulsory acquisition of the whole or part of any native title rights and interests under a law of the Commonwealth, a State or a Territory that permits both:

(i) the compulsory acquisition by the Commonwealth, the State or the Territory of native title rights and interests; and

(ii) the compulsory acquisition by the Commonwealth, the State or the Territory of non-native title rights and interests in relation to land or waters; and

(b) the whole, or the equivalent part, of all non-native title rights and interests, in relation to the land or waters to which the native title rights and interests that are compulsorily acquired relate, is also acquired (whether compulsorily or otherwise) in connection with the compulsory acquisition of the native title rights and interests; and

(ba) the practices and procedures adopted in acquiring the native title rights and interests are not such as to cause the native title holders any greater disadvantage than is caused to the holders of non-native title rights and interests when their rights and interests are acquired;

(c) nothing in this Act prevents the compulsory acquisition from extinguishing the whole or the part of the native title rights and interests; and

(d) if compensation on just terms is provided under a law of the Commonwealth, a State or a Territory to the native title holders for the compulsory acquisition, and they request that the whole or part of any such compensation should be in a form other than money, the person providing the compensation must:

(e) if compensation on just terms is not provided under a law of the Commonwealth, a State or Territory to the native title holders for the compulsory acquisition, they are entitled to compensation for the acquisition in accordance with Division 5.

Note: Subdivision P (which deals with the right to negotiate) applies to some acquisitions.

(i) the similar compensable interest test is satisfied in relation to the act; and

(ii) the law mentioned in section 240 (which defines similar compensable interest test) does not provide for compensation to the native title holders for the act;

the native title holders are entitled to compensation for the act in accordance with Division 5.

(i) if a law of the Commonwealth provides that a person other than the Crown in right of the Commonwealth is liable to pay the compensation—that person; or

(i) if a law of the State or Territory provides that a person other than the Crown in any capacity is liable to pay the compensation—that person; or

(a) the act is the compulsory acquisition of the whole or part of any native title rights and interests; and

(b) the land or waters concerned are to any extent the subject of a non-exclusive agricultural lease or a non-exclusive pastoral lease;

(d) if the act is attributable to the Commonwealth—the native title holders may recover the compensation from the Crown in right of the Commonwealth; and

(e) if the act is attributable to a State or Territory—the native title holders may recover the compensation from the Crown in right of the State or Territory.

(6) In the case of any future act to which this Subdivision applies, other than:

(a) an act to which Subdivision P (which deals with the right to negotiate) applies; or

(b) an act determined under section 26A to be an approved exploration etc. act; or

the native title holders have the same procedural rights as they would have in relation to the act on the assumption that they instead held ordinary title to any land concerned and to the land adjoining, or surrounding, any waters concerned.

(a) because of subsection (6) or any law of the Commonwealth, a State or a Territory, the native title holders have a procedural right that requires another person to notify them of the act; and

(d) any registered native title claimants in relation to land or waters in the area concerned.

Subdivision N—Acts affecting offshore places

24NA Acts affecting offshore places

(1) This Subdivision applies to a future act to the extent that it relates to an offshore place. A reference to a future act to which this Subdivision applies is to be read as referring to the act to that extent only.

(a) the act is the compulsory acquisition of the whole or part of any native title rights and interests under a law of the Commonwealth, a State or a Territory that permits both:

(i) the compulsory acquisition by the Commonwealth, the State or the Territory of native title rights and interests; and

(ii) the compulsory acquisition by the Commonwealth, the State or the Territory of non-native title rights and interests in relation to land or waters; and

(c) the practices and procedures adopted in acquiring the native title rights and interests are not such as to cause the native title holders any greater disadvantage than is caused to the holders of non-native title rights and interests when their rights and interests are acquired;

then nothing in this Act prevents the acquisition from extinguishing the whole or the part of the native title rights and interests.

(4) In the case of any other future act to which this Subdivision applies, the non-extinguishment principle applies to the act.

(5) If this Subdivision applies to a future act consisting of the compulsory acquisition of the whole or part of any native title rights and interests:

(a) if compensation on just terms is provided under a law of the Commonwealth, a State or a Territory to the native title holders for the acquisition, and they request that the whole or part of any such compensation should be in a form other than money, the person providing the compensation must:

(b) if compensation on just terms is not provided under a law of the Commonwealth, a State or Territory to the native title holders for the acquisition, they are entitled to compensation for the acquisition in accordance with Division 5.

(6) In the case of any other future act to which this Subdivision applies, the native title holders are entitled to compensation for the act in accordance with Division 5.

(i) if a law of the Commonwealth provides that a person other than the Crown in right of the Commonwealth is liable to pay the compensation—that person; or

(i) if a law of the State or Territory provides that a person other than the Crown in any capacity is liable to pay the compensation—that person; or

(8) In the case of any future act to which this Subdivision applies, the native title holders have the same procedural rights as they would have in relation to the act on the assumption that they instead held any corresponding rights and interests in relation to the offshore place that are not native title rights and interests.

(a) because of subsection (8) or any law of the Commonwealth, a State or a Territory, the native title holders have a procedural right that requires another person to notify them of the act; and

(d) any registered native title claimants in relation to land or waters in the area concerned.

Subdivision O—Future acts invalid unless otherwise provided

24OA Future acts invalid unless otherwise provided

Unless a provision of this Act provides otherwise, a future act is invalid to the extent that it affects native title.

Subdivision P—Right to negotiate

25 Overview of Subdivision

(1) In summary, this Subdivision applies to a future act to which Subdivision M (which deals with acts that pass the freehold test) applies that is done by the Commonwealth, a State or a Territory, and is of any of the following kinds:

(2) Before the future act is done, the parties must negotiate with a view to reaching an agreement about the act.

(3) If they do not reach agreement, an arbitral body, or a Minister, will make a determination about the act instead.

(4) If the procedures in this Subdivision are not complied with, the act will be invalid to the extent that it affects native title.

(5) States and Territories may make their own laws as alternatives to this Subdivision. The Commonwealth Minister must be satisfied as to certain matters before such laws can take effect.

Note: The fact that action is being taken to comply with this Subdivision does not imply that action under another law, such as processing requests or applications in respect of the act, cannot be taken at the same time.

26 When Subdivision applies

(a) Subdivision M (which deals with acts that pass the freehold test) applies to the act; and

Note: That Subdivision only applies to an act to the extent that the act relates to an onshore place: see section 24MC.

(b) the act is done by the Commonwealth, a State or a Territory (the Government party); and

(i) the creation of a right to mine, whether by the grant of a mining lease or otherwise; or

(A) the purpose of the acquisition is to confer rights or interests in relation to the land or waters concerned on persons other than the Government party; and

(B) the conferral is not for the purpose of providing an infrastructure facility (see section 253); or

(iv) any other act approved by the Commonwealth Minister, in writing, for the purposes of this paragraph, where, if the act is attributable to a State or Territory, the Commonwealth Minister consulted the State Minister or the Territory Minister about the approval before giving it.

(a) an act covered by section 24EB (which deals with the effects of indigenous land use agreements) or by any of the sections listed in paragraphs 24AA(4)(a) to (i); or

(b) an act determined in writing by the Commonwealth Minister to be an approved exploration etc. act (see section 26A); or

(c) an act determined in writing by the Commonwealth Minister to be an approved gold or tin mining act (see section 26B); or

(d) an act excluded by section 26C (which deals with opal or gem mining) from the coverage of this Subdivision; or

(e) an act excluded by section 26D (which deals with renewals of valid mining leases etc.) from the coverage of this Subdivision; or

(f) an act relating solely to land or waters wholly within a town or city (see section 251C).

Note: Under sections 43 and 43A, a State or Territory may, in certain circumstances, make alternative provisions to the regime provided for by this Subdivision.

(3) This Subdivision only applies to the act to the extent that the act relates to a place that is on the landward side of the mean high-water mark of the sea. A reference to an act to which this Subdivision applies is to be read as referring to the act to that extent only.

26A Approved exploration etc. acts

(1) If the conditions in this section are satisfied, the Commonwealth Minister may determine in writing that an act, or that each act included in a class of acts, is an approved exploration etc. act.

(2) The first condition is that the act, or acts included in the class, consist of the creation or variation of a right to mine, where the right as so created or varied is a right to explore, a right to prospect, a right to fossick or a right to quarry.

(3) The second condition is that the Minister considers that the act or acts are unlikely to have a significant impact on the particular land or waters concerned.

(4) If the act or acts authorise drilling, this does not mean that the second condition cannot be satisfied.

(a) notified any relevant representative Aboriginal/Torres Strait Islander bodies, and notified the public in the determined way, of the proposed determination; and

(6) The fourth condition is that the Minister is satisfied that, if the determination is made:

in relation to any of the land or waters that will be affected by the act or acts will have a right to be notified that the act or each act included in the class is to be done; and

(b) any such persons or bodies will have a right to be heard by an independent person or body about:

unless no other person would have such a right, assuming the person had an interest of any kind in relation to the land or waters; and

(i) the person, or one of the persons, who will do any thing authorised by the act will have a legal obligation to consult appropriately any person or body covered by subparagraph (a)(i) or (ii), unless the person or body indicates that the person or body does not wish to be so consulted; or

(ii) procedures will be in place under which such consultation will be required;

for the purpose of minimising the impact of the act on the exercise of native title rights and interests in relation to land or waters that will be affected by the act, and in particular about the matters set out in subsection (7).

(a) the identification and protection of any area or site, on the land or waters to which the native title rights and interests relate, of particular significance to the persons holding the native title in accordance with their traditional laws and customs; and

(b) any access to the land or waters to which the native title rights and interests relate by:

(ii) any person who will do any thing that is authorised because of, results from, or otherwise relates to, the doing of the act; and

(i) is authorised because of, results from, or otherwise relates to, the doing of the act; and

(8) If, at any time after making the determination, the Commonwealth Minister considers that circumstances have changed to the extent that the conditions in this section would not be satisfied if he or she were making the determination at that time, the Commonwealth Minister must:

(i) advise the State Minister or the Territory Minister concerned in writing of the fact; and

(ii) if at the end of 90 days, or such longer period as the Commonwealth Minister allows, after doing so, the conditions in this section would still not be satisfied—in writing, revoke the determination; or

(b) if the act or acts are done by the Commonwealth—in writing, revoke the determination.

26B Approved gold or tin mining acts

(1) If the conditions in this section are satisfied, the Commonwealth Minister may determine in writing that each act included in a class of acts done by a State or Territory is an approved gold or tin mining act.

(2) The first condition is that the relevant State Minister or Territory Minister has requested the Commonwealth Minister in writing to make such a determination in relation to acts in the class.

(3) The second condition is that acts included in the class consist of the creation or variation of rights to mine, where the rights as so created or varied are rights to mine gold, or tin, in surface alluvium.

(4) The third condition is that, by or under a law of the State or Territory, the only way in which the gold or tin may be recovered from the material that is mined is by a washing or an aeration process.

(5) The fourth condition is that, by or under a law of the State or Territory, the persons given the rights to mine will be required to rehabilitate any area of land or waters, in which the mining takes place and in relation to which native title rights and interests may exist, for the purpose of minimising the impact of the mining on the land or waters.

(a) notified any relevant representative Aboriginal/Torres Strait Islander bodies, and notified the public in the determined way, of the proposed determination; and

(7) The sixth condition is that the Commonwealth Minister is satisfied that, if the determination is made:

in relation to any land or waters that will be affected by the acts will have a right to be notified that each act included in the class is to be done; and

(b) any such persons or bodies will have a right to be heard by an independent person or body about:

unless no other person would have such a right, assuming the person had an interest of any kind in relation to the land or waters; and

(ii) procedures will be in place under which such consultation will be required;

for the purpose of minimising the impact of the act on land or waters, in relation to which native title rights and interests may exist, that will be affected by the act, and in particular about the matters set out in subsection (8).

(b) any access to the land or waters to which the native title rights and interests relate by:

(ii) any person who will do any thing that is authorised because of, results from, or otherwise relates to, the doing of the act; and

(c) the way in which any rehabilitation or other thing that is authorised because of, results from, or otherwise relates to, the doing of the act is to be done.

(9) If, at any time after making the determination, the Commonwealth Minister considers that circumstances have changed to the extent that the conditions in this section would not be satisfied if he or she were making the determination at that time, the Commonwealth Minister must:

(a) advise the State Minister or the Territory Minister concerned in writing of the fact; and

(b) if at the end of 90 days, or such longer period as the Commonwealth Minister allows, after doing so, the conditions in this section would still not be satisfied—in writing, revoke the determination.

26C Excluded opal or gem mining

(1) This Subdivision does not apply to an act consisting of the creation or variation of a right to mine, if the right, as so created or varied:

(b) relates solely to land or waters wholly within an approved opal or gem mining area (see subsection (2)); and

(f) if the right is able to be renewed one or more times—is able to be renewed for no more than 5 years each time.

(1A) This Subdivision also does not apply to an act consisting of the creation or variation of a right to mine that is a right to explore or prospect, if the right, as so created or varied:

(a) relates solely to land or waters wholly within an approved opal or gem mining area (see subsection (2)); and

(e) if the right is able to be renewed one or more times—is able to be renewed for no more than 5 years each time.

(2) If the conditions in subsections (3) to (5A) are satisfied, the Commonwealth Minister may determine in writing that a specified area of land or waters within a particular State or Territory is an approved opal or gem mining area for the purposes of this section.

(3) The first condition is that the relevant State Minister or Territory Minister has requested the Commonwealth Minister in writing to make such a determination in relation to the area.

(4) The second condition is that the Commonwealth Minister is satisfied, having regard to:

that in the future at least some rights will be conferred to mine in the area that will:

(i) mining for opals or gems (other than mining consisting of exploring, prospecting or puddling) only in an area no larger than 5 hectares; or

(ii) mining consisting of puddling in respect of opals or gems only in an area no larger than 5 hectares; or

(iii) mining consisting of exploration or prospecting for opals or gems in an area no larger than 500 hectares; and

(e) if the rights are renewed one or more times—be renewed for a period of no more than 5 years each time.

(5) The third condition is that, before making the request, the State Minister or Territory Minister:

(a) notified the public, and notified any registered native title bodies corporate, registered native title claimants and representative Aboriginal/Torres Strait Islander bodies in relation to any of the area, that he or she was intending to make the request in relation to the area; and

(b) invited submissions about the request, and in particular about the area covered by the request and about processes for the identification and protection of any area or site within that area of particular significance to native title holders in accordance with their traditional laws and customs; and

(5A) The fourth condition is that the Commonwealth Minister is satisfied that mining for opals or gems is currently being carried on in the whole or a substantial part of the area.

(6) If, at any time after making the determination, the Commonwealth Minister considers that circumstances have changed to the extent that the conditions in subsections (3) to (5A) would not be satisfied if he or she were making the determination at that time, the Commonwealth Minister must:

(a) advise the State Minister or the Territory Minister concerned in writing of the fact; and

26D Excluded mining acts: earlier valid acts

(1) This Subdivision does not apply to an act consisting of the creation of a right to mine if:

(i) was created on or before 23 December 1996 by an act that is valid (including because of Division 2 or 2A); or

(ii) was created by an act to which this Subdivision applied that was not invalid to any extent under section 28; and

(2) This Subdivision does not apply to an act (the later act) consisting of the creation of a right to mine if:

(a) before the later act takes place, an act (the earlier act) consisting of the creation of a right to explore or prospect took place; and

(b) this Subdivision applied to the earlier act and, because paragraph 28(1)(f), (g) or (h) applied to the act, it was not invalid to any extent under section 28; and

(c) the agreement mentioned in paragraph 28(1)(f), or conditions in the determination mentioned in paragraph 28(1)(g) or (h), provided that, if the later act were done, certain conditions would be complied with by parties other than native title parties (whether before or after the act was done); and

(d) any such conditions that were required to be complied with before the later act is done are complied with before the later act is done.

27 Arbitral body

(1) If a law of a State or Territory for which there is a recognised State/Territory body so allows, the body is the arbitral body under this Subdivision in relation to acts of the State or Territory to which this Subdivision applies, other than acts in relation to:

(a) a Commonwealth place (within the meaning of the Commonwealth Places (Application of Laws) Act 1970); or

(b) a future act is done by a State or Territory and there is no arbitral body under subsection (1) in respect of the act;

the National Native Title Tribunal is the arbitral body in respect of the act.

(3) If the arbitral body in respect of the act is the NNTT, for the purposes of performing the functions and exercising the powers of the arbitral body in respect of the act, the NNTT must not be constituted by:

27A Relevant Minister

(1) If the arbitral body in respect of the act is the NNTT, for the purposes of this Subdivision the relevant Minister in respect of the act is the Commonwealth Minister.

(2) If the arbitral body in respect of the act is a recognised State/Territory body, for the purposes of this Subdivision the relevant Minister in respect of the act is the State Minister or the Territory Minister, as the case requires.

27B Conditions under agreements or determinations etc.

Conditions of the kind mentioned in paragraph 31(1)(b), 36C(4)(c), 38(1)(c) or 42(3)(b) may provide for procedures to be followed by the negotiation parties (see section 30A) for dealing with issues that may arise as a result of, or otherwise in relation to, the doing of the act.

28 Act invalid if done before negotiation or objection/appeal etc.

(1) Subject to this Act, an act to which this Subdivision applies is invalid to the extent that it affects native title unless, before it is done, the requirements of one of the following paragraphs are satisfied:

(a) by the end of the period of 4 months after the notification day for the act (see subsection 29(4)), there is no native title party in relation to any of the land or waters that will be affected by the act;

(b) after the end of that period, but immediately before the act is done, there is no native title party in relation to any of the land or waters that will be affected by the act;

(c) subsection 32(2) (which applies if no objection is made after the giving of a notice that the act attracts the expedited procedure) allows the act to be done;

(d) a determination is made under subsection 32(4) that the act is an act attracting the expedited procedure;

(e) native title parties have lodged one or more objections in relation to the act under subsection 32(3), but all such objections are withdrawn under subsection 32(6);

(g) a determination is made under section 34A, 36A or 38 that the act may be done, or may be done subject to conditions being complied with;

(h) a determination that the act must not be done is declared to be overruled in accordance with section 42.

(2) Even if, before the act is done, the requirements of one of paragraphs (1)(c) to (h) are satisfied, the act is nevertheless invalid to the extent it affects native title if:

(a) a trustee who is holding an amount in trust under this Subdivision in respect of the act until it is dealt with in accordance with section 52 is informed by the Government party as mentioned in paragraph 52(1)(b) that it no longer proposes to do the act; and

(b) the Government party does the act without again complying with the requirements of this Subdivision.

29 Notification of parties affected

(1) Before the act is done, the Government party must give notice of the act in accordance with this section.

(a) any registered native title body corporate (a native title party) in relation to any of the land or waters that will be affected by the act; and

(b) unless there are one or more registered native title bodies corporate in relation to all of the land or waters that will be affected by the act:

Note: Registered native title claimants are persons whose names appear on the Register of Native Title Claims as applicants in relation to claims to hold native title: see the definition of registered native title claimant in section 253.

(c) if the doing of the act has been requested or applied for by a person (for example, where it is the issue of a licence or the grant of a lease for which the person has applied)—that person (a grantee party); and

(d) the registrar or other proper officer of the arbitral body in relation to the act.

(3) Before the act is done, the Government party or the grantee party must also notify the public in the determined way (see section 252) of the act, unless there is a registered native title body corporate in relation to all of the land or waters that will be affected by the act.

(b) contain a statement to the effect that, under section 30, persons have until 3 months after the notification day to take certain steps to become native title parties in relation to the notice; and

(5) Each such notice in relation to the act must specify the same day as the notification day.

(6) That day must be a day by which, in the Government party’s opinion, it is reasonable to assume that all notices under subsections (2) and (3) in relation to the act will have been received by, or will otherwise have come to the attention of, the persons who must be notified under those subsections.

(7) The notices under this section may include a statement that the Government party considers the act is an act attracting the expedited procedure.

(8) Notice of 2 or more acts to which this Subdivision applies may be given in the same notice.

(b) the 2 or more acts constitute or form part of the project (whether or not the notice separately specifies the area that each act will affect); and

(d) the notice states that the acts are project acts for the purposes of this Subdivision;

Note: Section 42A provides that this Subdivision applies to project acts in a modified way.

(10) However, the notice must not include a statement that the Government party considers any of the project acts is an act attracting the expedited procedure.

30 Other native title parties

(a) any person who, 4 months after the notification day (see subsection 29(4)), is a registered native title claimant in relation to any of the land or waters that will be affected by the act, so long as:

(i) the application containing the claim was filed in the Federal Court, or given to the recognised State/Territory body, before the end of 3 months after the notification day; and

(ii) the claim related to any of the land or waters that will be affected by the act;

Note: The note to subparagraph 29(2)(b)(i) explains who can be a registered native title claimant.

(b) any body corporate that, 3 months after the notification day, is a registered native title body corporate in relation to any of the land or waters that will be affected by the act;

(c) any body corporate that becomes a registered native title body corporate in relation to any of the land or waters that will be affected by the act:

(ii) as a result of a claim whose details were entered on the Register of Native Title Claims before the end of that period of 3 months.

(2) A person ceases to be a native title party if the person ceases to be a registered native title claimant.

Note: If a native title claim is successful, the registered native title claimant will be succeeded as a native title party by the registered native title body corporate.

30A Negotiation parties

31 Normal negotiation procedure

(1) Unless the notice includes a statement that the Government party considers the act attracts the expedited procedure:

(a) the Government party must give all native title parties an opportunity to make submissions to it, in writing or orally, regarding the act; and

(b) the negotiation parties must negotiate in good faith with a view to obtaining the agreement of each of the native title parties to:

(ii) the doing of the act subject to conditions to be complied with by any of the parties.

Note: The native title parties are set out in paragraphs 29(2)(a) and (b) and section 30. If they include a registered native title claimant, the agreement will bind all of the persons in the native title claim group concerned: see subsection 41(2).

(2) If any of the negotiation parties refuses or fails to negotiate as mentioned in paragraph (1)(b) about matters unrelated to the effect of the act on the determined or claimed native title rights and interests of the native title parties, this does not mean that the negotiation party has not negotiated in good faith for the purposes of that paragraph.

(3) If any of the negotiation parties requests the arbitral body to do so, the arbitral body must mediate among the parties to assist in obtaining their agreement.

32 Expedited procedure

(1) This section applies if the notice given under section 29 includes a statement that the Government party considers the act is an act attracting the expedited procedure (see section 237).

(2) If the native title parties do not lodge an objection with the arbitral body in accordance with subsection (3), the Government party may do the act.

(3) A native title party may, within the period of 4 months after the notification day (see subsection 29(4)), lodge an objection with the arbitral body against the inclusion of the statement.

(4) If one or more native title parties object against the inclusion of the statement, the arbitral body must determine whether the act is an act attracting the expedited procedure. If the arbitral body determines that it is, the Government party may do the act.

(5) If the arbitral body determines that the act is not an act attracting the expedited procedure, subsection 31(1) applies as if the notice did not include a statement that the Government party considers the act attracts the expedited procedure.

(6) At any time before the arbitral body makes a determination under subsection (4), a native title party may withdraw his or her objection. If all such objections are withdrawn, the Government party may do the act.

(7) At any time before the arbitral body makes a determination under subsection (4), the Government party may, by giving written notice to the negotiation parties, withdraw its statement that it considers the act is an act attracting the expedited procedure. If it does so, subsection 31(1) applies as if the notice did not include such a statement.

33 Negotiations to include certain things

(1) Without limiting the scope of any negotiations, they may, if relevant, include the possibility of including a condition that has the effect that native title parties are to be entitled to payments worked out by reference to:

by any grantee party as a result of doing anything in relation to the land or waters concerned after the act is done.

(2) Without limiting the scope of any negotiations, the nature and extent of the following may be taken into account:

(a) existing non-native title rights and interests in relation to the land or waters concerned;

(b) existing use of the land or waters concerned by persons other than native title parties;

(c) the practical effect of the exercise of those existing rights and interests, and that existing use, on the exercise of any native title rights and interests in relation to the land or waters concerned.

34 No agreement if determination

An agreement of the kind mentioned in paragraph 31(1)(b) has no effect in relation to the act for the purposes of this Subdivision if it is made after the making of a determination under section 34A, 36A or 38.

34A Ministerial determination in cases of urgent, significant acts

(1) Subject to this section, if at least 4 months have passed since the notification day (see subsection 29(4)) and the relevant Minister has complied with the requirements of section 36B, the relevant Minister may make a determination in relation to the act.

(a) an agreement of the kind mentioned in paragraph 31(1)(b) has been made in relation to the act; or

(b) a determination has been made in relation to the act under section 36A or 38; or

(c) the native title holders in relation to the land or waters concerned do not have, in relation to the act, procedural rights of the kind mentioned in subsection 24MD(6).

(3) The relevant Minister must not make a determination that the act may be done, or may be done subject to conditions to be complied with by any of the negotiation parties (see subsection 36C(4)), unless the relevant Minister considers that:

(b) if the determination is not made at the time, that benefit will be substantially reduced or will not arise; and

(c) if the act is done, or is done subject to the conditions, native title holders in relation to the land or waters concerned will gain significant benefits; and

(d) if the relevant Minister is a State Minister or a Territory Minister—it is in the interests of the State or Territory to make the determination at the time; and

(ii) if the act concerned is an act attributable to a State or Territory—the interests of the State or Territory;

(4) The relevant Minister must not make a determination that the act must not be done (see subsection 36C(4)) unless the relevant Minister considers that:

(a) if the relevant Minister is a State Minister or a Territory Minister—it is in the interests of the State or Territory to make the determination at the time; and

(ii) if the act concerned is an act attributable to a State or Territory—the interests of the State or Territory;

(5) Subsections (3) and (4) do not prevent the relevant Minister from having regard to other matters in deciding whether to make a determination under this section.

35 Application for arbitral body determination

(1) Any negotiation party may apply to the arbitral body for a determination under section 38 in relation to the act if:

(a) at least 6 months have passed since the notification day (see subsection 29(4)); and

(b) no agreement of the kind mentioned in paragraph 31(1)(b) has been made in relation to the act; and

(2) At any time before a determination in relation to the act is made under section 34A, 36A or 38, the negotiation party may withdraw the application by giving notice to the arbitral body.

36 Arbitral body determination to be made as soon as practicable

(1) Subject to section 37, the arbitral body must take all reasonable steps to make a determination in relation to the act as soon as practicable.

(2) The arbitral body must make the determination even if the negotiation parties (other than the party who applied for the determination) did not negotiate in good faith as mentioned in paragraph 31(1)(b).

(3) If the arbitral body is the NNTT and it does not make the determination within the period of 4 months starting when the application is made, it must, as soon as is reasonably practicable after the end of the period, advise the Commonwealth Minister in writing of the reason for it not doing so and include in that advice an estimate of when a determination is likely to be made.

(4) At any time after a negotiation party has made an application under section 35 that has not been withdrawn, and before either:

(a) the negotiation parties have made an agreement of the kind mentioned in paragraph 31(1)(b); or

the relevant Minister may give a written notice to the arbitral body requesting the arbitral body to make such a determination within the period specified in the notice. The period must end at a time later than 4 months after the application under section 35 was made.

36A Ministerial determination if arbitral body determination delayed

(a) the arbitral body has not made a determination in relation to the act within the period specified in a notice under subsection 36(4); and

(b) no agreement of the kind mentioned in paragraph 31(1)(b) has been made in relation to the act; and

the relevant Minister may, subject to this section, make a determination in relation to the act.

(2) The relevant Minister may only make the determination if the relevant Minister considers that:

(a) a determination under section 38 is unlikely to be made within a period that is reasonable having regard to all the circumstances; and

(b) if the relevant Minister is a State Minister or a Territory Minister—it is in the interests of the State or Territory to make the determination at the time; and

(ii) if the act concerned is an act attributable to a State or Territory—the interests of the State or Territory;

(3) Subsection (2) does not prevent the relevant Minister from having regard to other matters in deciding whether to make a determination under this section.

36B Consultation prior to section 34A or 36A determination

(1) Before making a determination under section 34A or 36A, the relevant Minister must give notice in accordance with subsection (2) (if relevant), and with subsection (3), of this section.

(a) the determination is to be made under section 34A and an application has been made to the arbitral body under section 35 for a determination in relation to the act; or

the relevant Minister must give written notice to the arbitral body requiring it, by the end of the day specified in the notice, to give the Minister and each negotiation party a summary of material that has been presented to the arbitral body in the course of the arbitral body considering whether to make a determination under section 38 in relation to the act.

(3) The relevant Minister must give written notice to each negotiation party that the Minister is considering making the determination and that each negotiation party:

(a) may, by the end of the day specified in the notice, give the Minister any submission or other material that the negotiation party wants the Minister to take into account in deciding whether to make the determination and, if so, its terms; and

(b) if the negotiation party does so—must also give each of the other negotiation parties a copy of the submission or other material; and

(c) may, within 7 days after the specified day, in response to any submission or other material given by any other negotiation party or the arbitral body, give the Minister any further submission or other material that the negotiation party wants the Minister to take into account as mentioned in paragraph (a).

(4) The day specified under subsection (2) or (3) must be the same in all of the notices given under the subsections. It must be a day by which, in the relevant Minister’s opinion, it is reasonable to assume that all of the notices so given will have been received by, or will otherwise have come to the attention of, the persons who must be so notified.

(5) If the relevant Minister complies with subsection (1), there is no requirement for any person to be given any further hearing before the relevant Minister makes the determination.

(i) any submission or material provided by any of the negotiation parties in accordance with subsection (3), but only if the negotiation party has complied with the requirements of paragraph (3)(b); and

(7) The fact that no submission or other material of the kind mentioned in subsection (3) has been given to the Minister before the end of the day specified in the notice does not prevent the Minister from making the determination.

36C Section 34A and 36A determinations

(a) sets out the kind of determination that may be made under section 34A or 36A; and

(2) The relevant Minister does not have a duty to make a determination. This is so despite:

(c) a determination that the act may be done subject to conditions to be complied with by any of the negotiation parties.

(5) If a condition to be complied with is that an amount is to be paid and held in trust until it is dealt with in accordance with section 52:

(b) the amount, when paid, must be held in trust in accordance with the regulations until it is dealt with in accordance with section 52.

Note: The NNTT cannot determine compensation (see Division 5 and Division 1 of Part 3). However, if the arbitral body is not the NNTT, it may be able to do so.

(6) If the act is done, any conditions in a determination by the relevant Minister under this section have effect, in addition to any effect that they may have apart from this subsection, as if they were terms of a contract among the negotiation parties. If a native title party is a registered native title claimant, any other person included in the native title claim group (see section 253) concerned is a negotiation party for this purpose only.

(7) The relevant Minister must, as soon as practicable after making a determination, and in any case within 15 sitting days, cause a copy of the determination, together with reasons for the determination, to be laid:

(a) if the relevant Minister is the Commonwealth Minister—before each House of the Parliament; or

(b) if the relevant Minister is a State Minister—before the House, or both of the Houses, of Parliament of the State concerned; or

37 No arbitral body determination if agreement or Ministerial determination

38 Kinds of arbitral body determinations

(1) Except where section 37 applies, the arbitral body must make one of the following determinations:

(2) The arbitral body must not determine a condition under paragraph (1)(c) that has the effect that native title parties are to be entitled to payments worked out by reference to:

by any grantee party as a result of doing anything in relation to the land or waters concerned after the act is done.

39 Criteria for making arbitral body determinations

(1) In making its determination, the arbitral body must take into account the following:

(i) the enjoyment by the native title parties of their determined or claimed native title rights and interests; and

(iii) the development of the social, cultural and economic structures of any of those parties; and

(iv) the freedom of access by any of those parties to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and

(v) any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions;

(b) the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters in relation to which there are determined or claimed native title rights and interests, of the native title parties, that will be affected by the act;

(d) any economic or other detriment to any person other than a native title party if the act is not done;

(2) In determining the effect of the act as mentioned in paragraph (1)(a), the arbitral body must take into account the nature and extent of:

(a) existing non-native title rights and interests in relation to the land or waters concerned; and

(b) existing use of the land or waters concerned by persons other than the native title parties.

(3) Taking into account the effect of the act on areas or sites mentioned in subparagraph (1)(a)(v) does not affect the operation of any law of the Commonwealth, a State or Territory for the preservation or protection of those areas or sites.

(4) Before making its determination, the arbitral body must ascertain whether there are any issues relevant to its determination on which the negotiation parties agree. If there are, and all of the negotiation parties consent, then, in making its determination, the arbitral body:

(b) need not take into account the matters mentioned in subsection (1), to the extent that the matters relate to those issues.

40 No re-opening of issues previously decided

(a) the arbitral body is making a determination in relation to an act consisting of the creation of a right to mine in relation to an area; and

(b) an agreement, or a determination by an arbitral body, under this Subdivision involving the same negotiation parties was previously made in relation to a future act consisting of the creation of a right to mine in relation to the same area; and

the negotiation parties must not, without leave of the arbitral body that is making the determination, seek to vary the decision on the issue.

41 Effect of determination or agreement

that the act may be done subject to conditions being complied with by the parties has effect, if the act is done, as if the conditions were terms of a contract among the negotiation parties. The effect is in addition to any other effect that the agreement or determination may have apart from this subsection.

(2) If a native title party is a registered native title claimant, any other person included in the native title claim group concerned is taken to be a negotiation party for the purposes only of subsection (1).

(3) If, in the case of a determination by the arbitral body, a condition to be complied with is that an amount is to be paid and held in trust until it is dealt with in accordance with section 52:

(b) the amount, when paid, must be held in trust in accordance with the regulations until it is dealt with in accordance with section 52.

Note: The NNTT cannot determine compensation (see Division 5 of this Part and Division 1 of Part 3). However, if the arbitral body is not the NNTT, it may be able to do so.

41A Copies of agreements and determinations

(a) give a copy of any agreement mentioned in paragraph 31(1)(b) to the arbitral body; and

(b) advise the relevant Minister in writing of the making of any such agreement.

(2) The relevant Minister must give a copy of any determination under section 34A or 36A to the negotiation parties and the arbitral body.

(3) The arbitral body must give a copy of any determination under section 38 to the negotiation parties and the relevant Minister.

42 Overruling of determinations

(1) If a State Minister or a Territory Minister considers it to be in the interests of the State or Territory to overrule the determination of a recognised State/Territory body for the State or Territory, the State Minister or Territory Minister may, by writing given to the recognised State/Territory body, make a declaration in accordance with subsection (3).

(b) if the act concerned is an act attributable to a State or Territory—the interests of the State or Territory;

to overrule a determination of the NNTT (other than a determination under subsection 32(4), which deals with the expedited procedure), the Commonwealth Minister may, by writing given to the NNTT, make a declaration in accordance with subsection (3).

(b) a declaration that the determination is overruled and that conditions set out in the declaration are to be complied with by any of the parties.

(4) Any declaration by the Minister concerned must be made within 2 months after the making of the determination.

(5) If a condition to be complied with is that an amount is to be paid and held in trust until it is dealt with in accordance with section 52:

(b) the amount, when paid, must be held in trust in accordance with the regulations until it is dealt with in accordance with section 52.

Note: The NNTT cannot determine compensation (see Division 5 of this Part and Division 1 of Part 3). However, if the arbitral body is not the NNTT, it may be able to do so.

(6) If the act is done, any conditions in a declaration by a Minister under this section have effect, in addition to any effect that they may have apart from this subsection, as if they were terms of a contract among the negotiation parties. If a native title party is a registered native title claimant, any other person included in the native title claim group concerned is a negotiation party for this purpose only.

(7) The arbitral body must give a copy of the declaration to the negotiation parties.

42A Project acts—modified application of Subdivision

(1) This section applies if 2 or more acts are, in accordance with subsection 29(9), project acts for the purposes of this Subdivision.

(2) This Subdivision applies to all of the project acts as if they were a single act.

(3) However, this does not mean that conditions of the kind mentioned in paragraph 31(1)(b), 36C(4)(c), 38(1)(c) or 42(3)(b) must:

43 Modification of Subdivision if satisfactory alternative State or Territory provisions

(a) a law of a State or Territory provides for alternative provisions to those contained in this Subdivision in relation to some or all acts to which this Subdivision applies that are attributable to the State or Territory; and

(b) the Commonwealth Minister determines in writing that the alternative provisions comply with subsection (2);

then, while the determination is in force, the alternative provisions have effect instead of this Subdivision.

(2) The alternative provisions comply with this subsection if, in the opinion of the Commonwealth Minister, they:

(a) contain appropriate procedures for notifying registered native title bodies corporate, representative bodies, registered native title claimants and potential native title claimants of the act; and

(c) provide for mediation by a person or body to assist in settling any dispute among the persons concerned regarding the act; and

(d) give registered native title bodies corporate and registered native title claimants the right to object against the act; and

(e) make provision on similar terms to section 30 and contain time limits similar to those applicable under this Subdivision; and

(f) provide that the body determining the objection consists of, or includes, persons enrolled for at least 5 years as legal practitioners of:

(g) make provision to the same effect as section 39 in relation to matters that are required to be taken into account by the body determining the objection; and

(h) if the alternative provisions involve the hearing and determination of the objection by a person or body other than the NNTT or a recognised State/Territory body for the State or Territory—provide for a member of the recognised State/Territory body (if any) or of the NNTT to participate in the determination; and

(i) provide that any decision of the body determining the objection may only be overruled on grounds of State or Territory interest or of national interest; and

(j) make appropriate provision for compensation for the act, including provision for trusts on similar terms to those in subsections 36C(5), 41(3) and 42(5); and

(k) if the alternative provisions allow a Minister to make a determination in relation to the act in circumstances other than those covered in paragraph (i)—provide for those circumstances to be similar to those set out in section 34A or 36A, or both, and for requirements similar to those in sections 36B and 36C to apply.

(3) If at any time the alternative provisions are amended so that they no longer comply with subsection (2), the Commonwealth Minister must:

(a) advise the State Minister or the Territory Minister concerned in writing of the fact; and

(b) if at the end of 90 days, or such longer period as the Commonwealth Minister allows, after doing so, the alternative provisions still do not comply—in writing, revoke the determination under paragraph (1)(b).

(4) The regulations may prescribe any modifications of this Act that are necessary to deal with transitional matters arising from the making, amendment or revocation of determinations under this section.

43A Exception to right to negotiate: satisfactory State/Territory provisions

(a) a law of a State or Territory provides for alternative provisions to those contained in this Subdivision in relation to some or all acts to which this Subdivision applies that:

(ii) relate, to any extent, to an area of land or waters that is a leased or reserved area (see subsection (2)); and

(i) so far as the provisions relate to an act of the kind mentioned in subparagraph 26(1)(c)(iii) (which deals with certain compulsory acquisitions)—the provisions comply with subsection (3) of this section; and

(ii) so far as the provisions relate to an act of any other kind—the provisions comply with subsection (4) of this section;

then, subject to subsection (7), while the determination is in force, the alternative provisions have effect instead of this Subdivision.

(i) that is, or was (whether before or after this Act commenced), covered by a freehold estate in fee simple or by a lease; and

(ii) over which all native title rights and interests have not been extinguished; or

Example 1: An example of a freehold estate in fee simple over which all native title rights and interests may not have been extinguished is one whose grant or vesting is covered by subsection 23B(9).

Example 2: Examples of non-exclusive areas are areas covered by non-exclusive agricultural leases and non-exclusive pastoral leases (including those subject to section 47).

(i) covered by a reservation, proclamation, dedication, condition, permission or authority, made or conferred by the Crown in right of the State or Territory or by the making, amendment or repeal of legislation of the State or Territory, under which the whole or a part of the land or waters in the area was to be used for public purposes generally or for a particular purpose; and

(ii) in use for public purposes, for the particular purpose or for a similar purpose.

Example: An example of an area covered by paragraph (b) is an area containing a national park.

(3) For the purposes of subparagraph (1)(b)(i), the alternative provisions comply with this subsection if they confer on native title holders the same procedural rights as they would have in relation to the act on the assumption that they instead held ordinary title to any land concerned and to the land adjoining, or surrounding, any waters concerned.

(4) For the purposes of subparagraph (1)(b)(ii), the alternative provisions comply with this subsection if, in the opinion of the Commonwealth Minister:

(i) they confer on native title holders procedural rights in relation to the act equivalent to those conferred on the holder of the freehold estate or the lessee concerned; and

(ii) they make provision for compensation for the act’s effect on the native title rights and interests of native title holders; or

(i) they contain appropriate procedures for notifying registered native title bodies corporate, registered native title claimants and potential native title claimants of the act; and

(ii) they give registered native title bodies corporate and registered native title claimants the right to object against the act and to be heard in relation to the objection; and

(iii) they make provision for compensation for the act’s effect on the native title rights and interests of native title holders.

(5) Laws of a State or Territory may make different provision under subsection (1) in relation to different kinds of land or waters.

Note: In such a case, the Commonwealth Minister would need to make separate determinations under that subsection.

(6) If at any time the alternative provisions are amended so that they no longer comply as mentioned in subparagraph (1)(b)(i) or (ii), the Commonwealth Minister must:

(a) advise the State Minister or the Territory Minister concerned in writing of the fact; and

(7) The alternative provisions do not apply to an act of the kind mentioned in subparagraph 26(1)(c)(iii) (which deals with certain compulsory acquisitions) if the act involves the acquisition of native title rights and interests in relation to land or waters in both a leased or reserved area and an area that is not a leased or reserved area.

(8) The regulations may prescribe any modifications of this Act that are necessary to deal with transitional matters arising from the making, amendment or revocation of determinations under this section.

43B Mining rights covering both leased or reserved area and other land

(a) a particular future act is the creation or variation of a right to mine in both a leased or reserved area (as defined in subsection 43A(2)) and an area (the other area) that is not a leased or reserved area; and

(b) because of section 43A, provisions of a State or Territory law would, apart from this section, have effect in relation to the act;

(i) one act consisting of the creation or variation of that right to mine, but only in the leased or reserved area; and

(ii) the other act consisting of the creation or variation of that right to mine, but only in the other area; and

(d) the act mentioned in subparagraph (c)(ii) is taken to be done only when the right concerned is first exercised in the other area.

Note: In effect, this section splits the act in 2 (for “right to negotiate” purposes only). Only the “act” mentioned in subparagraph (c)(i)—not the “act” mentioned in subparagraph (c)(ii)—attracts the alternative provisions under section 43A.

44 Additional operation of Subdivision

Without affecting its operation apart from this section, this Subdivision also has the effect that it would have if each reference to a grantee party were, by express provision, confined to a grantee party that is a foreign corporation, or a trading or financial corporation formed within the limits of the Commonwealth.

Subdivision Q—Conferral of access rights on native title claimants in respect of non-exclusive agricultural and pastoral leases

44A Conditions for Subdivision to apply

Person in claim group in respect of registered claim over non-exclusive agricultural or pastoral lease

(2) A person must be included in the native title claim group (see section 253) in relation to a claim:

Note: Under paragraph 190(4)(d), entries on the Register must be removed when the application in question is withdrawn, dismissed or otherwise finalised.

(b) that relates to any extent to an area that is covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease.

(a) as at the end of 23 December 1996, the person included in the native title claim group must have regularly had physical access to the whole or part (the traditional access area) of the area that is covered by both the claim and the lease for the purpose of carrying on one or more traditional activities (see subsection (4)) of the person; or

(b) the person included in the native title claim group must be a descendant of a person who, as at 23 December 1996, regularly had such physical access.

(4) A traditional activity is an activity of any of the following kinds, but only if it is carried on for traditional purposes of Aboriginal people or Torres Strait Islanders:

44B Rights of access for traditional activities

(1) At all times while this Subdivision applies, the person included in the native title claim group has a right:

(a) to have access, in the same way and to the same extent as the access mentioned in subsection 44A(3), to the traditional access area for the purpose of carrying on the one or more traditional activities in that area in the same way and to the same extent as they were carried on pursuant to the access mentioned in that subsection; and

(b) any person with non-native title rights or interests in relation to the traditional access area;

prevail over the rights conferred by subsection (1). To avoid doubt, the existence and exercise of the rights conferred by subsection (1) do not prevent the doing of any thing in exercise of the rights of the lessee or person with the non-native title rights or interests.

(3) The lessee or any person with non-native title rights or interests in relation to the traditional access area may make an agreement with the person included in the native title claim group about:

Note: For example, an agreement might be made requiring notification of intended exercise of the rights.

(4) Any persons wishing to make such an agreement may request assistance from the NNTT or a recognised State/Territory body in negotiating the agreement.

(5) To avoid doubt, the fact that the person satisfies the conditions in section 44A does not mean that the person has native title rights and interests in relation to the traditional access area.

44C Suspension of native title rights

(1) For so long as the person included in the native title claim group has rights conferred by subsection 44B(1), no person can enforce any native title rights or interests in relation to the whole or part of the land or waters covered by the lease.

(2) Subsection (1) does not affect the operation of any other provision of this Act.

Note: The “right to negotiate” provisions in Subdivision P are an example of provisions that are not intended to be affected.

44D Certain other laws not affected

(a) any reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders contained:

(b) the operation of any law of the Commonwealth, a State or a Territory that allows for the granting of access rights to Aboriginal peoples or Torres Strait Islanders; or

(c) the operation of any law of the Commonwealth, a State or Territory that relates to the preservation or protection of any area or site of particular significance to Aboriginal peoples or Torres Strait Islanders in accordance with their traditions.

(2) This Subdivision is not intended to imply that, in exercising rights conferred by subsection 44B(1), a person is not subject to laws of the Commonwealth, a State or a Territory that are of general application.

44E Federal Court jurisdiction

The Federal Court may, in its discretion, refuse to exercise the jurisdiction conferred on it under subsection 213(2) in relation to a matter involving a right conferred by subsection 44B(1) for the reason that an adequate alternative means of resolving the matter is available.

44F Request for mediation

If all of the persons involved in any dispute about a right conferred by subsection 44B(1) agree, they may request the NNTT or a recognised State/Territory body to mediate in the dispute.

Note: Persons wishing to make an indigenous land use agreement about access in general may request assistance from the NNTT or a recognised State/Territory body in negotiating the agreement: see sections 24BF, 24CF and 24DG.

44G Other mediation, arbitration and agreements not excluded by Subdivision

(a) mediation or arbitration by any person or body of any matter arising in relation to a right conferred by subsection 44B(1); or

(b) the making or enforcing of agreements about access to the area covered by the non-exclusive agricultural lease or the non-exclusive pastoral lease other than under rights conferred by subsection 44B(1).

44H Rights conferred by valid leases etc.

(a) the grant, issue or creation of a lease, licence, permit or authority is valid (including because of any provision of this Act); and

(b) the lease, licence, permit or authority requires or permits the doing of any activity (whether or not subject to any conditions);

(c) the requirement or permission, and the doing of any activity in giving effect to the requirement or permission, prevail over any native title rights and interests and any exercise of those rights and interests, but do not extinguish them; and

(d) the existence and exercise of the native title rights and interests do not prevent the doing of any activity in giving effect to the requirement or permission; and

(e) native title holders are not entitled to compensation under this Act for the doing of any activity in giving effect to the requirement or permission.

Note: Any compensation to which the native title holders may be entitled under this Act for the grant of the lease, licence, permit or authority may take into account the doing of the activity.

47A Reserves etc. covered by claimant applications

(i) a freehold estate exists, or a lease is in force, over the area or the area is vested in any person, if the grant of the freehold estate or lease or the vesting took place under legislation that makes provision for the grant or vesting of such things only to, in or for the benefit of, Aboriginal peoples or Torres Strait Islanders; or

(ii) the area is held on trust, or is reserved, for the benefit of Aboriginal peoples or Torres Strait Islanders; and

(2) For all purposes under this Act in relation to the application, any extinguishment, of the native title rights and interests in relation to the area that are claimed in the application, by any of the following acts must be disregarded:

(a) the grant or vesting mentioned in subparagraph (1)(b)(i) or the creation of the trust or reservation mentioned in subparagraph (1)(b)(ii);

(b) the creation of any other prior interest in relation to the area, other than, in the case of an area held on trust as mentioned in subparagraph (1)(b)(ii), the grant of a freehold estate.

Note: The applicant will still need to show the existence of any connection with the land or waters concerned that may be required by the common law concept of native title.

(3) If the determination on the application is that the native title claim group hold the native title rights and interests claimed:

(i) the validity of the grant or vesting or of the creation of the trust or reservation; or

(ii) the validity of the creation of any other prior interest in relation to the area; or

(iii) any interest of the Crown in any capacity, or of any statutory authority, in any public works on the land or waters concerned; and

(b) the non-extinguishment principle applies to the grant or vesting or the creation of the trust or reservation or any other prior interest.

(4) For the purposes of this section, a reference to the creation of an interest in relation to an area does not include a reference to the creation of an interest that confirms ownership of natural resources by, or confers ownership of natural resources on, the Crown in any capacity.

47B Vacant Crown land covered by claimant applications

(ii) covered by a reservation, proclamation, declaration, condition, permission or authority, made or conferred by the Crown in any capacity, or by the making, amendment or repeal of legislation of the Commonwealth, a State or a Territory, under which the whole or a part of the land or waters in the area is to be used for public purposes or for a particular purpose; or

Note: The applicant will still need to show the existence of any connection with the land or waters concerned that may be required by the common law concept of native title.

(3) If the determination on the application is that the native title claim group hold the native title rights and interests claimed:

(i) the validity of the creation of any prior interest in relation to the area; or

(ii) any interest of the Crown in any capacity, or of any statutory authority, in any public works on the land or waters concerned; and

(b) the non-extinguishment principle applies to the creation of any prior interest in relation to the area.

(4) For the purposes of paragraph (1)(b), if, after a lease covering an area expires or is terminated, the lease is renewed, or its term is extended, the area is taken to be covered by the lease during the period between the expiry or termination and the renewal or extension.

(a) the creation of a prior interest in relation to an area does not include the creation of an interest that confirms ownership of natural resources by, or confers ownership of natural resources on, the Crown in any capacity; and

(b) an area is subject to a resumption process at a particular time (the test time) if:

(i) all interests last existing in relation to the area before the test time were acquired, resumed or revoked by, or surrendered to, the Crown in any capacity; and

(ii) when that happened, the Crown had a bona fide intention of using the area for public purposes or for a particular purpose; and

(iii) the Crown still had a bona fide intention of that kind in relation to the area at the test time.

Omit “acquisition under a Compulsory Acquisition Act”, substitute “compulsory acquisition”.

Omit “set out in that Act for determining compensation”, substitute “for determining compensation set out in the law under which the compulsory acquisition takes place”.

Note: The heading to subsection 51(2) is altered by omitting “Compulsory Acquisition Act” and substituting “compulsory acquisition law”.

Omit “acquisition under a Compulsory Acquisition Act”, substitute “compulsory acquisition”.

Omit “Compulsory Acquisition Act”, substitute “compulsory acquisition law”.

51A Limit on compensation

(1) The total compensation payable under this Division for an act that extinguishes all native title in relation to particular land or waters must not exceed the amount that would be payable if the act were instead a compulsory acquisition of a freehold estate in the land or waters.

(2) This section has effect subject to section 53 (which deals with the requirement to provide “just terms” compensation).

Omit “compensation (the negotiated compensation) in respect of a proposed act is being held in trust in accordance with”, substitute “an amount (the trust amount) in respect of an act is being held in trust in accordance with paragraph 36C(5)(b),”.

Note: The heading to section 52 is altered by omitting “Compensation” and substituting “Payment”.

(ii) the registered native title body corporate advises the trustee that it wishes to accept the trust amount instead of any compensation to which the native title holders may be entitled under Division 3 for the act; and

(iii) the person who paid the trust amount advises the trustee that the person agrees to the registered native title body corporate accepting the trust amount instead of any compensation to which the native title holders may be entitled under Division 3 for the act;

Omit “Compulsory Acquisition Act”, substitute “compulsory acquisition law”.

Omit “negotiated compensation” (wherever occurring), substitute “trust amount”.

Omit “from the Commonwealth as is necessary to ensure that the acquisition is made on paragraph 51(xxxi) just terms.”, substitute:

as is necessary to ensure that the acquisition is made on paragraph 51(xxxi) just terms.

Part 8A—Register of Indigenous Land Use Agreements

199A Register of Indigenous Land Use Agreements

(1) There is to be a Register known as the Register of Indigenous Land Use Agreements.

199B Contents of the Register etc.

(1) If the Registrar is required by Subdivision B, C or D of Division 3 of Part 2 to register an agreement, the Registrar must enter in the Register the following details of the agreement:

(b) the name of each party to the agreement and the address at which the party can be contacted; and

(d) if the agreement includes any of the statements mentioned in subsection 24EB(1)—a reference to the fact, setting out any such statement.

(2) The Registrar may also enter in the Register any other details of the agreement that the Registrar considers appropriate.

(3) If the agreement relates to any future act, as soon as reasonably practicable after entering the details, the Registrar must give notice in writing:

to any person or body to which the Registrar gave notice of the agreement under paragraph 24BH(1)(a), 24CH(1)(a) or 24DI(1)(a).

199C Removal of details of agreement from Register

(a) in the case of an agreement under Subdivision B of Division 3 of Part 2—an approved determination of native title is made in relation to any of the area covered by the agreement, and the persons who, under the determination, hold native title in relation to the area are not the same as those who had previously been determined to hold it; or

(b) in the case of an agreement under Subdivision C of Division 3 of Part 2—an approved determination of native title is made in relation to any of the area covered by the agreement, and any of the persons who, under the determination, hold native title in relation to the area is not a person who authorised the making of the agreement as mentioned in:

(i) if the application relating to the agreement was certified by representative Aboriginal/Torres Strait Islander bodies as mentioned in paragraph 24CG(3)(a)—paragraph 202(8)(b); or

(ii) if the application relating to the agreement included a statement as mentioned in paragraph 24CG(3)(b) to the effect that certain requirements have been met—that paragraph; or

(ii) all the parties advise the Registrar in writing that they wish to terminate the agreement; or

(iii) the Federal Court, under subsection (2), orders the details to be removed.

Note: If the details of an agreement are removed from the Register, the agreement will cease to have effect under this Act from the time the details are removed: see subsection 24EA(1) and paragraph 24EB(1)(b).

(2) The Federal Court may, if it is satisfied on application by a party to the agreement, or by a representative Aboriginal/Torres Strait Islander body for the area covered by the agreement, that the ground in subsection (3) has been made out, order the Registrar to remove the details of the agreement from the Register.

(3) The ground is that a party was induced to enter into the agreement by reason of fraud, undue influence or duress by any person (whether or not a party to the agreement).

199D Inspection of the Register

(1) Subject to section 199E, the Registrar must ensure that the Register is available for inspection by any member of the public during normal business hours.

(2) Subject to section 199E, when the Register is available for inspection, any member of the public may inspect the Register if the member pays the prescribed fee.

(3) If the Register is kept wholly or partly by use of a computer, subsection (1) is taken to be complied with, so far as the Register is kept in that way, by giving members of the public access to a computer terminal that they can use to inspect the Register, either by viewing a screen display or by obtaining a computer print-out.

199E Parts of the Register to be kept confidential

(1) If the parties to an agreement whose details are entered on the Register advise the Registrar in writing that they do not wish some or all of the details to be available for inspection by the public, section 199D does not apply to the part of the Register containing the details concerned.

(2) Subsection (1) does not apply to details required to be entered in the Register under subsection 199B(1).

199F Delegation by Registrar

The Registrar may, by signed instrument, delegate all or any of his or her powers under:

(b) Subdivision B, C or D of Division 3 of Part 2 (which also deals with indigenous land use agreements);

to the holder of an office, or to a body, established by or under a law of a State or Territory, if the State or Territory agrees to the delegation.

(ba) the law does not provide that such a licence, permit or other instrument is only to be granted or issued for research, environmental protection, public health or public safety purposes; and

Note: In carrying on the class of activity, or gaining the access, the native title holders are subject to laws of general application.

Note: The heading to subsection 212(3) is altered by omitting “under subsection (2)”.

214 Disallowable instruments

The following are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901:

(a) a determination under paragraph 23HA(a), 24GB(9)(c) or 24GD(6)(a), subparagraph 24GE(1)(f)(i), paragraph 24HA(7)(a), 24ID(3)(a) or 24JB(6)(a), subsection 24KA(8), 24MD(7), 24NA(9), 26A(1), 26B(1) or 26C(2), paragraph 43(1)(b) or 43A(1)(b), subsection 202(1), 207A(1), 207B(3), 245(4), 251C(4) or (5) or 252(1) or paragraph (i) of the definition of infrastructure facility in section 253;

(d) a revocation of a determination under subsection 26A(8), 26B(9), 26C(6), 43(3) or 43A(6) or paragraph 207A(4)(b) or 207B(7)(d).

After “Register of Native Title Claims”, insert “, the Register of Indigenous Land Use Agreements”.

(3) Without limiting subsection (1), the regulations may make provision, not inconsistent with this Act, relating to the way in which:

is to be established and kept, or relating to any other matter concerning such a register.

(3A) Subsection (3) does not apply to rights and interests conferred by Subdivision Q of Division 3 of Part 2 of this Act (which deals with statutory access rights for native title claimants).

232A Intermediate period act

(a) the act took place at any time during the period from the beginning of 1 January 1994 until the end of 23 December 1996 when native title existed in relation to particular land or waters; and

(b) the act did not consist of the making, amendment or repeal of legislation, other than legislation that affects the native title by:

(ii) containing, making or conferring a reservation, proclamation or dedication under which the whole or part of the land or waters is to be used for a particular purpose; and

Note: An intermediate period act, such as the grant of a lease, may be validated under Division 2A of Part 2 even if the legislation under which the act was done is not so validated.

(c) the act was invalid to any extent because of Division 3 of Part 2 or for any other reason, but it would have been valid to that extent if the native title did not exist; and

(i) a grant of a freehold estate or a lease (other than a mining lease) was made covering any of the land or waters affected by the act; or

(ii) a public work was constructed or established on any of the land or waters affected by the act; and

(f) the grant, or the construction or establishment, mentioned in paragraph (e) was valid (including because of any provision of this Act).

(3) The regulations may provide that an act is not an intermediate period act.

232B Category A intermediate period act

(1) This section defines the expression category A intermediate period act.

(2) An intermediate period act consisting of the grant or vesting of a freehold estate is a category A intermediate period act.

(b) a commercial lease that is neither an agricultural lease nor a pastoral lease; or

(f) what is taken by subsection 245(3) (which deals with the dissection of mining leases into certain other leases) to be a separate lease in respect of land or waters mentioned in paragraph (a) of that subsection, assuming that the reference in subsection 245(2) to “1 January 1994” were instead a reference to “24 December 1996”; or

(g) any lease (other than a mining lease) that confers a right of exclusive possession over particular land or waters;

(a) an intermediate period act is done by or under legislation of a State or a Territory; and

(b) the intermediate period act consists of the vesting of particular land or waters in any person; and

(c) a right of exclusive possession of the land or waters is expressly or impliedly conferred on the person by or under the legislation;

(7) An intermediate period act consisting of the construction or establishment of any public work is a category A intermediate period act.

(8) An intermediate period act is not a category A intermediate period act if it is:

(a) the grant or vesting of any thing that is made or done by or under legislation that makes provision for the grant or vesting of such things only to, in or for the benefit of, Aboriginal peoples or Torres Strait Islanders; or

(b) the grant or vesting of any thing to or in a person to hold on trust for the benefit of Aboriginal peoples or Torres Strait Islanders; or

(c) the grant or vesting of any thing over particular land or waters, if at the time a thing covered by paragraph (a) or (b) is in effect in relation to the land or waters.

(9) The regulations may provide that an act is not a category A intermediate period act.

232C Category B intermediate period act

A category B intermediate period act is an intermediate period act consisting of the grant of a lease if:

(ii) a lease granted by or under legislation that grants leases only to or for the benefit of Aboriginal peoples or Torres Strait Islanders; or

(iii) a lease granted to a person to hold on trust for the benefit of Aboriginal peoples or Torres Strait Islanders; or

(iv) any other lease granted over particular land or waters, if at the time a lease covered by subparagraph (ii) or (iii) is in force over the land or waters.

232D Category C intermediate period act

A category C intermediate period act is an intermediate period act consisting of the grant of a mining lease.

232E Category D intermediate period act

A category D intermediate period act is any intermediate period act that is not a category A intermediate period act, a category B intermediate period act or a category C intermediate period act.

(ii) extinguish native title, or extinguish native title rights and interests to an extent; and

subsection (1) does not apply to the extent that the act purports to validate the act, or to extinguish the native title or the native title rights and interests.

Omit “does not directly interfere with”, substitute “is not likely to interfere directly with the physical aspects of”.

237A Extinguish

The word extinguish, in relation to native title, means permanently extinguish the native title. To avoid any doubt, this means that after the extinguishment the native title rights and interests cannot revive, even if the act that caused the extinguishment ceases to have effect.

(2) Except in so far as the expression is used in or in relation to Division 2 of Part 2, agricultural lease also includes a lease that permits the lessee to use the land or waters covered by the lease solely or primarily for aquacultural purposes.

247A Exclusive agricultural lease

(a) confers a right of exclusive possession over the land or waters covered by the lease; or

247B Non-exclusive agricultural lease

A non-exclusive agricultural lease is an agricultural lease that is not an exclusive agricultural lease.

Note: In practice, there might be few, or no, non-exclusive agricultural leases.

248A Exclusive pastoral lease

(a) confers a right of exclusive possession over the land or waters covered by the lease; or

248B Non-exclusive pastoral lease

A non-exclusive pastoral lease is a pastoral lease that is not an exclusive pastoral lease.

249A Community purposes lease

(a) permits the lessee to use the land or waters covered by the lease solely or primarily for community, religious, educational, charitable or sporting purposes; or

(b) contains a statement to the effect that it is solely or primarily a community purposes lease or that it is granted solely or primarily for community, religious, educational, charitable or sporting purposes.

249B Perpetual lease

(b) the lease may be forfeited, cancelled or otherwise cease to have effect for failure to pay rent or for contravention of a condition or conditions.

249C Scheduled interest

(b) an interest, in relation to land or waters, of a type declared by a regulation for the purposes of this paragraph to be a Scheduled interest.

(2) A particular regulation only has effect for the purposes of paragraph (1)(b) if it covers a single type of interest.

251A Authorising the making of indigenous land use agreements

For the purposes of this Act, persons holding native title in relation to land or waters in the area covered by an indigenous land use agreement authorise the making of the agreement if:

(a) where there is a process of decision-making that, under the traditional laws and customs of the persons who hold or may hold the common or group rights comprising the native title, must be complied with in relation to authorising things of that kind—the persons authorise the making of the agreement in accordance with that process; or

(b) where there is no such process—the persons authorise the making of the agreement in accordance with a process of decision-making agreed to and adopted, by the persons who hold or may hold the common or group rights comprising the native title, in relation to authorising the making of the agreement or of things of that kind.

251B Authorising the making of applications

For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if:

(a) where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind—the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or

(b) where there is no such process—the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.

251C Towns and cities

(1) Subject to subsection (4), a particular area in Western Australia is a town or city if, as at 23 December 1996, it was gazetted as a townsite or as suburban lands under section 10 of the Land Act 1933 of Western Australia.

(2) Subject to subsection (4), a particular area in South Australia is a town or city if, as at 23 December 1996, it was:

(a) within the boundaries of a town constituted under section 5(g) of the Crown Lands Act 1929 of South Australia; or

(b) set apart as town lands, or suburban lands, by notice under section 5(h) of that Act; or

(d) gazetted in the South Australian Government Gazette, or proclaimed by the Governor of South Australia, as suburban lands, where the gazettal took place, or the proclamation was made, before the enactment of the Crown Lands Act 1929 of South Australia; or

(e) a township within the meaning of section 5(1) of the Local Government Act, 1934 of South Australia; or

(f) park land, within the meaning of section 5(1) of that Act, that was within or adjacent to a township within the meaning of that section; or

(g) the area in relation to which a municipal council was constituted under section 6 of that Act; or

(i) a township allotment within the meaning of section 5 of the Renmark Irrigation Trust Act 1936 of South Australia; or

(j) town lands within the meaning of section 5 of the Water Conservation Act 1936 of South Australia.

(3) Subject to subsection (4), a particular area in the Northern Territory is a town or city if:

(a) as at 23 December 1996, it was gazetted as a town, other than the town of Darwin, under subsection 95(1) of the Crown Lands Act 1992 of the Northern Territory; or

(b) it is the area in the Schedule to the Darwin Lands Acquisition Act 1945 of the Commonwealth; or

(c) it is within a municipality constituted under section 29 of the Local Government Act 1993 of the Northern Territory.

Exclusion of areas in Western Australia, South Australia or Northern Territory

(4) A particular area is not a town or city under subsection (1), (2) or (3) if the Commonwealth Minister makes a written determination to that effect.

(5) A particular area in any State or Territory is a town or city if the Commonwealth Minister makes a written determination stating that, in his or her opinion, the area was a town or a city as at 23 December 1996.

251D Land or waters on which a public work is constructed, established or situated

In this Act, a reference to land or waters on which a public work is constructed, established or situated includes a reference to any adjacent land or waters the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the work.

(a) in relation to the making of indigenous land area agreements—has the meaning given by section 251A; and

(b) in relation to the making of native title determination applications or compensation applications, and dealing with matters arising in relation to such applications—has the meaning given by section 251B.

(a) the planting or tending, in a plantation or forest, of trees intended for felling; or

(b) propagation, maintenance or cultivation of seeds, bulbs, spores or similar things; or

(d) propagation, maintenance or cultivation in environments other than soil, whether natural or artificial.

indigenous land use agreement has the meaning given by sections 24BA, 24CA and 24DA.

(f) a storage or transportation facility for coal, any other mineral or any mineral concentrate;

(g) a dam, pipeline, channel or other water management, distribution or reticulation facility;

(i) any other thing that is similar to any or all of the things mentioned in paragraphs (a) to (h) and that the Commonwealth Minister determines in writing to be an infrastructure facility for the purposes of this paragraph.

(a) any of the following that is constructed or established by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any of its capacities:

(i) a building, or other structure (including a memorial), that is a fixture; or

(iia) where the expression is used in or for the purposes of Division 2 or 2A of Part 2—a stock-route; or

(b) a building that is constructed with the authority of the Crown, other than on a lease.

Note: In addition, section 251D deals with land or waters relating to public works.

Register of Indigenous Land Use Agreements means the register established and maintained under Part 8A.

subject to section 24FA protection has the meaning given by Subdivision F of Division 3 of Part 2.

Schedule 2—Amendments relating to applications, registration of claims etc.

Note: The heading to subsection 13(1) is altered by omitting “Native Title Registrar” and substituting “Federal Court”.

(1A) No application is allowed to be made under paragraph (1)(a) later than 6 years after the commencement of this subsection.

Note: Under subsection 62(3), if no native title determination application has previously been made in relation to the area to which a compensation application relates, the compensation application must be accompanied by the affidavit, and contain the information, that would be required for a native title determination application for the area.

Note: The heading to subsection 50(2) is altered by omitting “Registrar” and substituting “Federal Court”.

(2A) If an act gives rise to an entitlement to compensation payable under Division 3, no application is allowed to be made under Part 3 for a determination of the compensation more than 6 years after the later of:

(b) the time when the doing of the act is notified to all of the following who exist for the area concerned at the time of the notification:

Part 3—Applications

Division 1AA—Overview of Part

60A Overview of Part

(a) applications to the Federal Court for native title determinations, revised native title determinations and compensation: see Division 1; and

(c) applications to the National Native Title Tribunal under the “right to negotiate” provisions in Subdivision P of Division 3 of Part 2: see Division 2;

(d) applications to the Native Title Registrar objecting against registration of certain indigenous land use agreements: see Division 2A.

There are also some general rules that apply to the various kinds of application: see Division 3.

(2) Basically, the provisions set out who may make the different kinds of application, what they must contain and what is to be done when they are made.

Division 1—Applications to the Federal Court: native title and compensation

61 Native title and compensation applications

(1) The following table sets out applications that may be made under this Division to the Federal Court and the persons who may make each of those applications:

Applications
Kind of application	Application	Persons who may make application
Native title determination application	Application, as mentioned in subsection 13(1), for a determination of native title in relation to an area for which there is no approved determination of native title.	(1) A person or persons authorised by the persons (the *native title claim group) who claim to hold the common or group rights and interests comprising the particular native title, provided the person or persons are also included in the native title claim group; or Note 1: The person or persons will be the applicant: see subsection (2) of this section. Note 2: The word authorised* has a special meaning: see section 251B. (2) A person who holds a non-native title interest in relation to the whole of the area in relation to which the determination is sought; or (3) The Commonwealth Minister; or (4) The State Minister or the Territory Minister, if the determination is sought in relation to an area within the jurisdictional limits of the State or Territory concerned.
Revised native title determination application	Application, as mentioned in subsection 13(1), for revocation or variation of an approved determination of native title, on the grounds set out in subsection 13(5).	(1) The registered native title body corporate; or (2) The Commonwealth Minister; or (3) The State Minister or the Territory Minister, if the determination is sought in relation to an area within the jurisdictional limits of the State or Territory concerned; or (4) The Native Title Registrar.
Compensation application	Application under subsection 50(2) for a determination of compensation.	(1) The registered native title body corporate (if any); or (2) A person or persons authorised by the persons (the *compensation claim group) who claim to be entitled to the compensation, provided the person or persons are also included in the compensation claim group. Note 1: The person or persons will be the applicant: see subsection (2) of this section. Note 2: The word authorised* has a special meaning: see section 251B.

Applicant in case of applications authorised by claim groups

(2) In the case of:

(a) a native title determination application made by a person or persons authorised to make the application by a native title claim group; or

(b) a compensation application made by a person or persons authorised to make the application by a compensation claim group;

the following apply:

(d) none of the other members of the native title claim group or compensation claim group is the applicant.

Applicant’s name and address

(3) An application must state the name and address for service of the person who is, or persons who are, the applicant.

Applications authorised by persons

(4) A native title determination application, or a compensation application, that persons in a native title claim group or a compensation claim group authorise the applicant to make must:

(a) name the persons; or

(b) otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons.

Form etc.

(5) An application must:

(a) be in the prescribed form; and

(b) be filed in the Federal Court; and

(d) be accompanied by any prescribed documents and any prescribed fee.

61A Restrictions on making of certain applications

No native title determination application if approved determination of native title

(1) A native title determination application must not be made in relation to an area for which there is an approved determination of native title.

Claimant applications not to be made covering previous exclusive possession act areas

(2) If:

(a) a previous exclusive possession act (see section 23B) was done in relation to an area; and

(b) either:

(i) the act was an act attributable to the Commonwealth; or

(ii) the act was attributable to a State or Territory and a law of the State or Territory has made provision as mentioned in section 23E in relation to the act;

a claimant application must not be made that covers any of the area.

Claimant applications not to claim certain rights and interests in previous non-exclusive possession act areas

(3) If:

(a) a previous non-exclusive possession act (see section 23F) was done in relation to an area; and

(b) either:

(i) the act was an act attributable to the Commonwealth; or

(ii) the act was attributable to a State or Territory and a law of the State or Territory has made provision as mentioned in section 23I in relation to the act;

a claimant application must not be made in which any of the native title rights and interests claimed confer possession, occupation, use and enjoyment of any of the area to the exclusion of all others.

Section not to apply in section 47, 47A or 47B cases

(4) However, subsection (2) or (3) does not apply to an application if the only previous exclusive possession act or previous non-exclusive possession act concerned was one whose extinguishment of native title rights and interests would be required by section 47, 47A or 47B to be disregarded were the application to be made.

62 Information etc. in relation to certain applications

Claimant applications

(1) A claimant application (see section 253):

(a) must be accompanied by an affidavit sworn by the applicant:

(i) that the applicant believes that the native title rights and interests claimed by the native title claim group have not been extinguished in relation to any part of the area covered by the application; and

(ii) that the applicant believes that none of the area covered by the application is also covered by an entry in the National Native Title Register; and

(iii) that the applicant believes that all of the statements made in the application are true; and

(iv) that the applicant is authorised by the other persons included in the native title claim group to make the application and to deal with matters arising in relation to it; and

(v) stating the basis on which the applicant is authorised as mentioned in subparagraph (iv); and

Note: The word authorised has a special meaning: see section 251B.

(b) must contain the details specified in subsection (2); and

(i) if any member of the native title claim group currently has, or previously had, any traditional physical connection with any of the land or waters covered by the application—that traditional physical connection; or

(ii) if any member of the native title claim group has been prevented from gaining access to any of the land or waters covered by the application—the circumstances in which the access was prevented.

Note: The applicant will be the registered native title claimant in relation to the area claimed if and for so long as the claim is entered on the Register of Native Title Claims.

Details required by paragraph (1)(b)

(2) For the purposes of paragraph (1)(b), the details required are as follows:

(a) information, whether by physical description or otherwise, that enables the boundaries of:

(i) the area covered by the application; and

(ii) any areas within those boundaries that are not covered by the application;

to be identified;

(b) a map showing the boundaries of the area mentioned in subparagraph (a)(i);

(c) details and results of all searches carried out to determine the existence of any non-native title rights and interests in relation to the land or waters in the area covered by the application;

(d) a description of the native title rights and interests claimed in relation to particular land or waters (including any activities in exercise of those rights and interests), but not merely consisting of a statement to the effect that the native title rights and interests are all native title rights and interests that may exist, or that have not been extinguished, at law;

(e) a general description of the factual basis on which it is asserted that the native title rights and interests claimed exist and in particular that:

(i) the native title claim group have, and the predecessors of those persons had, an association with the area; and

(ii) there exist traditional laws and customs that give rise to the claimed native title; and

(iii) the native title claim group have continued to hold the native title in accordance with those traditional laws and customs;

(f) if the native title claim group currently carry on any activities in relation to the land or waters—details of those activities;

(g) details of any other applications to the High Court, Federal Court or a recognised State/Territory body, of which the applicant is aware, that have been made in relation to the whole or a part of the area covered by the application and that seek a determination of native title or a determination of compensation in relation to native title;

(h) details of any notices under section 29 (or under a corresponding provision of a law of a State or Territory), of which the applicant is aware, that have been given and that relate to the whole or a part of the area.

Note: Notices under section 29 are relevant to subsection 190A(2).

Compensation applications

(3) In the case of a compensation application whose making was authorised by a compensation claim group, the application:

(a) must be accompanied by an affidavit sworn by the applicant:

(i) that the applicant believes that native title rights and interests exist or have existed in relation to the area; and

(ii) that the applicant believes that all of the statements made in the application are true; and

(iii) that the applicant is authorised by the other persons included in the compensation claim group to make the application and to deal with matters arising in relation to it; and

(iv) stating the basis on which the applicant is authorised as mentioned in subparagraph (iii); and

Note: The word authorised has a special meaning: see section 251B.

(b) must contain the details that would be required to be specified by paragraph (1)(b), and may contain the details that would be permitted under paragraph (1)(c), if the compensation application were instead a native title determination application in respect of the native title involved in the compensation application.

62A Power of applicants where application authorised by group

In the case of:

(a) a claimant application; or

(b) a compensation application whose making was authorised by a compensation claim group;

the applicant may deal with all matters arising under this Act in relation to the application.

63 Reference of applications to Native Title Registrar

If an application under section 61 is filed in the Federal Court, the Registrar of the Federal Court must, as soon as practicable, give the Native Title Registrar a copy of:

(a) the application; and

(b) any affidavit that accompanies the application under paragraph 62(1)(a) or (3)(a); and

64 Amendment of applications

Amendment not to result in inclusion of additional areas

(1) An amendment of an application must not result in the inclusion of any area of land or waters that was not covered by the original application.

Note: The Federal Court Rules provide for the amendment of applications.

Exception to subsection (1)

(2) However, if:

(a) the application is a claimant application (see section 253); and

(b) the amendment combines the application with another claimant application or claimant applications;

subsection (1) does not prevent the inclusion of any area of land or waters covered by the other application or applications.

Application may be amended despite section 190A consideration

(3) In the case of a claimant application, the fact that the Registrar is, under section 190A, considering the claim made in the application does not prevent amendment of the application.

Registrar of the Federal Court to give copy of amended application to Native Title Registrar

(4) If an application is amended, the Registrar of the Federal Court must, as soon as practicable, give a copy of the amended application to the Native Title Registrar.

Group applications—amendment to change applicant

(5) If a claimant application, or a compensation application whose making was authorised by a compensation claim group, is amended so as to replace the applicant with a new applicant, the amended application must be accompanied by an affidavit sworn by the new applicant:

(a) that the new applicant is authorised by the other persons included in the native title claim group, or the compensation claim group, to deal with matters arising in relation to the application; and

(b) stating the basis on which the new applicant is authorised as mentioned in paragraph (a).

66 Notice of application

Registrar to comply with section

(1) If the Native Title Registrar is given a copy of an application under section 63, the Registrar must comply with the requirements of this section.

Copies to State/Territory Minister

(2) If any of the area covered by the application is within the jurisdictional limits of a State or Territory, the Registrar must, as soon as is reasonably practicable, give the State Minister or Territory Minister for the State or Territory a copy of:

(a) the application; and

(b) any other documents that the Registrar of the Federal Court gives the Native Title Registrar under section 63 in relation to the application.

Copies to representative bodies

(2A) The Registrar must, as soon as is reasonably practicable, give the representative bodies for the area covered by the application a copy of:

(a) the application; and

(b) any other documents that the Registrar of the Federal Court gives the Native Title Registrar under section 63 in relation to the application.

Notice to be given

(3) Subject to this section, the Registrar must:

(a) give notice containing details of the application to the following persons or bodies (other than the applicant in relation to the application):

(i) any registered native title claimant in relation to any of the area covered by the application; and

(ii) any registered native title body corporate in relation to any of the area covered by the application; and

(iii) any representative Aboriginal/Torres Strait Islander body for any of the area covered by the application; and

(iv) subject to subsection (5), any person who, when the application was filed in the Federal Court, held a proprietary interest, in relation to any of the area covered by the application, that is registered in a public register of interests in relation to land or waters maintained by the Commonwealth, a State or Territory; and

(v) the Commonwealth Minister; and

(vi) any local government body for any of the area covered by the application; and

(vii) if the Registrar considers it appropriate in relation to the person—any person whose interests may be affected by a determination in relation to the application; and

(b) give a copy of the notice to the Federal Court; and

(c) if any of the area covered by the application is within the jurisdictional limits of a State or Territory—give a copy of the notice to the State Minister or Territory Minister for the State or Territory; and

(d) notify the public in the determined way of the application.

Exception where application is struck out

(4) Subsection (3) does not apply if:

(a) the State or Territory Minister applies to the Federal Court under subsection 84C(1) or otherwise, within 28 days after the day on which the State or Territory Minister is given a copy of the application under subsection (2), to strike out the application; and

(b) the Court strikes out the application.

Exception to subparagraph (3)(a)(iv)

(5) If the Registrar considers that, in the circumstances, it would be unreasonable to give notice to a person in accordance with subparagraph (3)(a)(iv), the Registrar is not required to give notice to that person.

Notice etc. not to be given until claim registration decision made

(6) If the application is a claimant application:

(a) the Registrar must not comply with subsection (3) until the Registrar has decided, in accordance with section 190A, whether or not to accept for registration the claim made in the application; and

(b) the notice required to be given under subsection (3) must state whether or not the Registrar has accepted the claim for registration.

Federal Court order as to notice

(7) The Registrar may apply to the Federal Court for an order as to:

(a) whether a particular person or class of persons must be given notice under paragraph (3)(a); or

(b) how such notice must be given.

Notice to specify day

(8) A notice under paragraph (3)(a) or (d) must specify a day as the notification day for the application. Each such notice in relation to the application must specify the same day.

Which days may be specified

(9) That day must be a day by which, in the Registrar’s opinion, it is reasonable to assume that all notices under paragraphs (3)(a) and (d) in relation to the application will have been received by, or will otherwise have come to the attention of, the persons who must be notified under those paragraphs.

Contents of notice

(10) A notice under paragraph (3)(a) or (d) must also include a statement to the effect that:

(a) in the case of a non-claimant application (see section 253)—the area covered by the application may be subject to section 24FA protection unless, at the end of the period of 3 months starting on the notification day (as defined in subsection (8) of this section), the area is covered by a relevant native title claim (as defined in section 24FE); and

(b) in the case of any native title determination application—as there can be only one determination of native title for an area, if a person does not become a party in relation to the application, there may be no other opportunity for the Federal Court, in making its determination, to take into account the person’s native title rights and interests in relation to the area concerned; and

(c) in any case—a person who wants to be a party in relation to the application must notify the Federal Court, in writing, within the period of 3 months starting on the notification day (as defined in subsection (8)), or, after that period, get the leave of the Federal Court under subsection 84(5) to become a party.

66A Notice of amended application

Native Title Registrar to notify parties etc.

(1) If:

(a) the Native Title Registrar is given a copy of an amended application under section 64; and

(b) the amendment concerned results in a change to the area of land or waters covered by the original application; and

the Registrar must:

(d) give notice of the amended application to each person who, when the Registrar receives the copy, is a party to a proceeding under Part 4 in relation to the application; and

(e) if, when the Registrar receives the copy, the period specified in the notice in accordance with paragraph 66(10)(c) has not ended:

(i) give notice of the amended application to all persons to whom the Registrar gave notice of the application in accordance with paragraph 66(3)(a); and

(ii) notify the public in the determined way of the amended application.

Combined applications

(2) If an amended application of which the Registrar is given a copy under section 64 results from combining the application with one or more other applications, the Native Title Registrar must:

(a) give notice of the combining of the applications to each person who, immediately before the combining of the applications, was a party to a proceeding under Part 4 in relation to any of the applications; and

(b) if, when the Registrar receives the copy, the period specified in the notice in accordance with paragraph 66(10)(c) has not ended:
(i) give notice of the combining of the applications to all persons to whom the Registrar gave notice of the applications in accordance with paragraph 66(3)(a); and
(ii) notify the public in the determined way of the combining of the applications.

Federal Court order as to notice

(3) The Registrar may apply to the Federal Court for an order as to:

(a) whether a particular person or class of persons must be given notice under subsection (1) or (2); or

(b) how such notice must be given.

Federal Court may direct Native Title Registrar to give notice

(4) The Federal Court may, if it considers it necessary, direct the Native Title Registrar to give such additional notice of the amended application as the Court considers appropriate.

Parties to original applications become parties to combined application

(5) If an amended application of which the Registrar is given a copy under section 64 results from combining the application with one or more other applications, each person who, immediately before the combining of the applications, was a party to a proceeding under Part 4 in relation to any of the applications becomes a party to a proceeding under Part 4 in relation to the combined application.

67 Overlapping native title determination applications

(1) If 2 or more proceedings before the Federal Court relate to native title determination applications that cover (in whole or in part) the same area, the Court must make such order as it considers appropriate to ensure that, to the extent that the applications cover the same area, they are dealt with in the same proceeding.

Splitting of application area

(2) Without limiting subsection (1), the order of the Court may provide that different parts of the area covered by an application are to be dealt with in separate proceedings.

68 Only one determination of native title per area

If there is an approved determination of native title (the first determination) in relation to a particular area, the Federal Court must not:

(a) conduct any proceeding relating to an application for another determination of native title; or

(b) make any other determination of native title;

in relation to that area or to an area wholly within that area, except in the case of:

(d) a review or appeal of the first determination.

Note: Paragraph 13(1)(a) provides that no native title determination application can be made in relation to an area for which there is already an approved determination of native title.

Division 1A—Other applications to the Federal Court

69 Applications that may be made

(1) The following table sets out applications that may be made under this Division to the Federal Court and the persons who may make each of those applications:

Applications
Kind of application	Application	Persons who may make application
Claim registration application	Application as mentioned in subsection 190D(2) for review of a decision of the Registrar not to accept a claim for registration.	The applicant in relation to the application under section 61.
Application to remove agreement from Register	Application as mentioned in subsection 199C(2) for an order to remove the details of an agreement from the Register of Indigenous Land Use Agreements.	(1) A party to the agreement; or (2) A representative Aboriginal/Torres Strait Islander body for the area covered by the agreement.
Application about transfer of records	Application as mentioned in subsection 203FC(4) for orders to ensure that a representative Aboriginal/Torres Strait Islander body complies with directions under subsection 203FC(1).	A person affected by the body’s non-compliance with the directions.

Other applications

(2) This Division also applies to any other application to the Federal Court in relation to a matter arising under this Act.

70 Federal Court Rules about applications etc.

Federal Court Rules

(1) The application must be filed in the Federal Court and must comply with any Rules of the Federal Court about:

(a) the form of the application; or

(b) information to be contained in the application; or

(d) any other matter relating to the application.

Prescribed fees

(2) The application must be accompanied by any prescribed fee.

Division 2—Applications to the National Native Title Tribunal: right to negotiate

75 Right to negotiate applications

The following table sets out applications that may be made to the National Native Title Tribunal under this Division and the persons who may make each of those applications:

Applications
Kind of application	Application	Persons who may make application
Expedited procedure objection application	Application objecting as mentioned in subsection 32(3) against the inclusion of a statement that an act is an act attracting the expedited procedure.	A native title party.
Future act determination application	Application as mentioned in section 35 for a determination in relation to a future act.	A negotiation party.

76 Material and fees to accompany applications

An application must:

(a) be in the prescribed form; and

(b) be given to the Registrar; and

(d) be accompanied by any prescribed documents and any prescribed fee.

77 Action to be taken in relation to applications

If an application complies with section 76, the National Native Title Tribunal must accept the application.

Note: The procedure to be followed in relation to these applications is set out in Subdivision P of Division 3 of Part 2.

Division 2A—Applications to the Native Title Registrar: objections against registration of indigenous land use agreements

77A Material and fees to accompany applications

An application under subsection 24DJ(1) objecting against registration of an agreement on the ground that it would not be fair and reasonable to register it must:

(a) be in the prescribed form; and

(b) be given to the Registrar; and

(d) be accompanied by any prescribed documents and any prescribed fee.

77B Action to be taken in relation to applications

If an application complies with section 77A, the Registrar must accept the application.

Division 3—Miscellaneous

78 Assistance in relation to proceedings

Native Title Registrar may assist applicants, respondents etc.

(1) The Native Title Registrar may give such assistance as he or she considers reasonable to:

(a) help people prepare applications and accompanying material and to help them, at any stage of a proceeding, in matters related to the proceeding; and

(b) help other people, at any stage of a proceeding, in matters related to the proceeding.

Types of assistance

(2) Without limiting subsection (1), the assistance may include:

(a) providing research services; or

(b) conducting searches of registers or other records of current or former interests in land or waters.

No assistance to search own registers etc.

(3) Unless the Native Title Registrar considers there are special reasons for doing so, the Registrar must not give assistance to the Commonwealth, a State or a Territory by way of conducting searches of registers or other records maintained by the Commonwealth, the State or the Territory.

79 Requests for non-monetary compensation

Requests must be considered

(1) If, during negotiations in relation to a compensation application under this Part, a person or persons involved in the negotiations propose that the whole or part of the compensation should be in a form other than money, the other person or persons involved in the negotiations:

(a) must consider the proposal; and

(b) must negotiate in good faith in relation to the proposal.

Examples of non-monetary compensation

(2) The transfer of land or other property or the provision of goods or services is an example of compensation in a form other than money.

20 Division 1 of Part 4

Repeal the Division, substitute:

Division 1—Overview of Part

79A Overview of Part

This Part has the rules for processing Federal Court applications, and making determinations, relating to native title. Division 1A has the general rules, and the other Divisions of the Part deal with the following topics:

(a) referring applications to the NNTT for mediation (see Division 1B);

(b) agreements and unopposed applications (see Division 1C);

(d) orders (see Division 3).

Division 1A—General

80 Operation of Part

The provisions of this Part apply in proceedings in relation to applications filed in the Federal Court that relate to native title.

81 Jurisdiction of the Federal Court

The Federal Court has jurisdiction to hear and determine applications filed in the Federal Court that relate to native title and that jurisdiction is exclusive of the jurisdiction of all other courts except the High Court.

82 Federal Court’s way of operating

Rules of evidence

(1) The Federal Court is bound by the rules of evidence, except to the extent that the Court otherwise orders.

Concerns of Aboriginal peoples and Torres Strait Islanders

(2) In conducting its proceedings, the Court may take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, but not so as to prejudice unduly any other party to the proceedings.

83 Assessor assisting the Federal Court

Assessor to assist Court

(1) The Chief Justice may direct an assessor to assist the Federal Court in relation to a proceeding.

Assessor subject to Court’s control

(2) The assessor is, in relation to that proceeding, subject to the control and direction of the Court.

Assessor not to exercise judicial power

(3) In assisting the Court, the assessor is not to exercise any judicial power of the Court.

83A Federal Court may request searches to be conducted

Request to State Minister or Territory Minister

(1) If a State Minister or Territory Minister is a party to a proceeding, the Federal Court may, for the purposes of the proceeding, request that Minister to conduct searches of the State or Territory’s registers or other records of current or former interests in land or waters and to report the results to the Court.

Request to Native Title Registrar

(2) However, if:

(a) no State Minister or Territory Minister is a party to the proceeding; or

(b) the Federal Court considers it appropriate;

the Federal Court may, for the purposes of the proceeding, instead request the Native Title Registrar to conduct such searches and to report the results to the Court.

84 Parties

Coverage of section

(1) This section applies to proceedings in relation to applications to which section 61 applies.

Applicant

(2) The applicant is a party to the proceedings.

Affected persons

(3) Another person is a party to the proceedings if:

(a) any of the following applies:

(i) the person is covered by paragraph 66(3)(a);

(ii) the person claims to hold native title in relation to land or waters in the area covered by the application;

(iii) the person’s interests may be affected by a determination in the proceedings; and

(b) the person notifies the Federal Court, in writing, within the period specified in the notice under section 66, that the person wants to be a party to the proceeding.

State or Territory Ministers

(4) If any of the area covered by the application is within the jurisdictional limits of a State or Territory, the State Minister or Territory Minister for the State or Territory is a party to the proceedings unless the Minister gives the Federal Court written notice, within the period specified in the notice under section 66, that the Minister does not want to be a party.

Joining parties

(5) The Federal Court may at any time join any person as a party to the proceedings.

Parties may withdraw before first hearing of proceeding

(6) In addition to any other rights to withdraw from the proceedings, any party to the proceedings, other than the applicant, may, at any time before the first hearing of the proceedings starts, cease to be a party by giving written notice to the Court.

Parties may withdraw with leave of Federal Court

(7) In addition to any other rights to withdraw from the proceedings, any party to the proceedings, other than the applicant, may, with the leave of the Federal Court, cease to be a party.

Dismissing parties

(8) The Federal Court may at any time order that a person, other than the applicant, cease to be a party to the proceedings.

84A Intervention by Commonwealth Minister

Commonwealth Minister may intervene

(1) The Commonwealth Minister may, at any time, on behalf of the Commonwealth, by giving written notice to the Federal Court, intervene in a proceeding before the Court in a matter arising under this Act.

Court may order costs against Commonwealth

(2) If the Commonwealth Minister intervenes in a proceeding before the Court, the Court may make an order as to costs against the Commonwealth.

Commonwealth Minister taken to be a party for purposes of appeal

(3) If the Commonwealth Minister intervenes in a proceeding before the Court, then, for the purposes of the institution and prosecution of an appeal from a judgment given in the proceeding, the Commonwealth Minister is taken to be a party to the proceeding.

Court may order costs against Commonwealth if Commonwealth Minister appeals

(4) If, under subsection (3), the Commonwealth Minister institutes an appeal from a judgment, a court hearing the appeal may make an order as to costs against the Commonwealth.

84B Parties may appoint an agent

(1) A party to a proceeding may appoint a society, organisation, association or other body to act as agent on behalf of the party in relation to the proceeding.

Body may act for 2 or more parties

(2) The same body may act as agent for 2 or more parties in the same proceeding.

Example: An industry body may act as agent for a number of its members who are parties to a particular proceeding.

84C Striking out applications for failure to comply with requirements of this Act

Strike-out application

(1) If an application (the main application) does not comply with section 61 (which deals with the basic requirements for applications), 61A (which provides that certain applications must not be made) or 62 (which requires applications to be accompanied by affidavits and to contain certain details), a party to the proceedings may at any time apply to the Federal Court to strike out the application.

Court must consider strike-out application before other proceedings

(2) The Court must, before any further proceedings take place in relation to the main application, consider the application made under subsection (1).

Registrar of Court to advise Native Title Registrar of application etc.

(3) The Registrar of the Court must advise the Native Title Registrar of the making of any application under subsection (1) and of the outcome of the application.

Other strike-out applications unaffected

(4) This section does not prevent the making of any other application to strike out the main application.

85 Representation before Federal Court

A party may appear in person or may be represented by a barrister, a solicitor or, with the leave of the Federal Court, another person.

85A Costs

(1) Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs.

Unreasonable conduct

(2) Without limiting the Court’s power to make orders under subsection (1), if the Federal Court is satisfied that a party to a proceeding has, by any unreasonable act or omission, caused another party to incur costs in connection with the institution or conduct of the proceeding, the Court may order the first-mentioned party to pay some or all of those costs.

86 Evidence and findings in other proceedings

Subject to subsection 82(1), the Federal Court may:

(a) receive into evidence the transcript of evidence in any other proceedings before:

(i) the Court; or

(ii) another court; or

(iii) the NNTT; or

(iv) a recognised State/Territory body; or

(v) any other person or body;

and draw any conclusions of fact from that transcript that it thinks proper; and

(b) receive into evidence the transcript of evidence in any proceedings before the assessor and draw any conclusions of fact from that transcript that it thinks proper; and

(c) adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (v).

Division 1B—Reference to NNTT for mediation

86A Purpose of mediation

Proceeding not involving compensation

(1) The purpose of mediation in a proceeding that does not involve a compensation application is to assist the parties to reach agreement on some or all of the following matters:

(a) whether native title exists or existed in relation to the area of land or waters covered by the application;

(b) if native title exists or existed in relation to the area of land or waters covered by the application:

(i) who holds or held the native title;

(ii) the nature, extent and manner of exercise of the native title rights and interests in relation to the area;

(iii) the nature and extent of any other interests in relation to the area;

(iv) the relationship between the rights and interests in subparagraphs (ii) and (iii) (taking into account the effects of this Act);

(v) to the extent that the area is not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease—whether the native title rights and interests confer or conferred possession, occupation, use and enjoyment of the land or waters on its holders to the exclusion of all others.

Note: The matters set out in paragraphs (a) and (b) are based on those that are required, under section 225, for a determination of native title.

Proceeding involving compensation

(2) The purpose of mediation in a proceeding that involves a compensation application is to assist the parties to reach agreement on some or all of the following matters:

(a) the matters set out in paragraphs (1)(a) and (b) in relation to the area of land or waters covered by the application;

(b) the amount or kind of any compensation payable;

(d) the method (if any) for determining the amount or kind of compensation to be given to each person;

(e) the method for determining any dispute regarding the entitlement of a person to an amount of compensation.

Note: The matters set out in paragraphs (b) to (e) reflect the matters that, under section 94, must be set out in an order for compensation.

86B Referral of matters to NNTT for mediation

Federal Court must refer applications to mediation

(1) Unless an order is made under subsection (2) that there be no mediation, the Federal Court must refer every application under section 61 to the NNTT for mediation, including the ascertaining of agreed facts, as soon as practicable after the end of the period specified in the notice under section 66.

Court may order no mediation

(2) The Court may, on application by a party to the proceeding, or of its own motion, make an order that there be no mediation in relation to the whole of the proceeding or a part of the proceeding.

No mediation if it will be unnecessary etc.

(3) The Court, upon application under subsection (2) or if it is considering making an order of its own motion, must order that there be no mediation in relation to the whole of the proceeding or a part of the proceeding if the Court considers that:

(a) any mediation will be unnecessary in relation to the whole or that part, whether because of an agreement between the parties about the whole or the part of the proceeding or for any other reason; or

(b) there is no likelihood of the parties being able to reach agreement on, or on facts relevant to, any of the matters set out in subsection 86A(1) or (2) in relation to the whole or that part; or

(c) the applicant in relation to the application under section 61 has not provided sufficient detail (whether in the application or otherwise) about the matters mentioned in subsection 86A(1) or (2) in relation to the whole or that part.

Factors to take into account

(4) In deciding whether to make an order that there be no mediation in relation to the whole of the proceeding or a part of the proceeding, the Court is to take the following factors into account:

(a) the number of parties;

(b) the number of those parties who have appointed the same agent under section 84B or same representative;

(c) how long it is likely to take to reach agreement on the matters set out in subsection 86A(1) or (2) in relation to the whole or the part of the proceeding;

(d) the size of the area involved;

(e) the nature and extent of any non-native title rights and interests in relation to the land and waters in the area;

(f) any other factor that the Court considers relevant.

Whole or part of a proceeding may be referred at any time

(5) In addition to referring a proceeding to mediation under subsection (1), the Court may, at any time in a proceeding, refer the whole or a part of the proceeding to the NNTT for mediation if the Court considers that the parties will be able to reach agreement on, or on facts relevant to, any of the matters set out in subsection 86A(1) or (2).

86C Cessation of mediation

Court may order mediation to cease

(1) The Court may, of its own motion, at any time in a proceeding, order that mediation is to cease in relation to the whole or a part of the proceeding if the Court considers that:

(a) any further mediation will be unnecessary in relation to the whole or that part; or

(b) there is no likelihood of the parties being able to reach agreement on, or on facts relevant to, any of the matters set out in subsection 86A(1) or (2) in relation to the whole or that part.

Party may seek cessation of mediation

(2) A party to a proceeding may, at any time after 3 months after the start of mediation, apply to the Court for an order that mediation cease in relation to the whole of the proceeding or a part of the proceeding.

Where Court must order mediation to cease

(3) If the party making the application is:

(a) the applicant in relation to the application under section 61; or

(b) the Commonwealth, a State or a Territory;

the Court must make an order that mediation is to cease unless the Court is satisfied that the mediation is likely to be successful in enabling the parties to reach agreement on any of the matters set out in subsection 86A(1) or (2) in relation to the whole or the part of the proceeding.

Where Court may order mediation to cease

(4) If the party making the application is any other person, the Court may make such an order unless the Court is satisfied that the mediation is likely to be successful as mentioned in subsection (3).

Court to consider NNTT report

(5) The Court, in deciding whether to make an order under subsection (1), (3) or (4), must take into account any report provided by the NNTT under section 86E or by the presiding member of the NNTT under subsection 136G(3).

86D Federal Court’s powers

Court may determine fact or law

(1) The Court may, at any time during mediation, determine a question of fact or law that is referred to it by the NNTT.

Note: Under subsection 136D(1), the presiding member of the NNTT may refer to the Federal Court a question of fact or law that arises during mediation.

Court may adopt agreement on facts

(2) The Court may adopt any agreement on facts between the parties, reached during mediation.

86E Federal Court may request reports from NNTT

The Federal Court may request the NNTT to provide reports on the progress of any mediation under this Division being undertaken by the NNTT and may specify when the report is to be provided.

Division 1C—Agreements and unopposed applications

86F Agreement to settle application etc.

Parties may negotiate for agreement

(1) Some or all of the parties to a proceeding in relation to an application may negotiate with a view to agreeing to action that will result in any one or more of the following:

(a) the application being withdrawn or amended;

(b) the parties to the proceeding being varied;

The agreement may involve matters other than native title.

Assistance by NNTT

(2) The parties may request assistance from the NNTT in negotiating the agreement.

Court may order adjournment to help negotiations

(3) The Federal Court may order an adjournment of the proceeding to allow time for the negotiations. It may do so on its own motion or on application by a party.

Court may end adjournment

(4) The Federal Court may order that the adjournment end. It may do so:

(a) on its own motion; or

(b) on application by a party; or

Court’s powers not limited

(5) Subsection (3) does not limit the Federal Court’s powers to order an adjournment.

86G Unopposed applications

Federal Court may make order

(1) If, at any stage of a proceeding in relation to an application under section 61, but after the end of the period specified in the notice given under section 66:

(a) the application is unopposed; and

(b) the Federal Court is satisfied that an order in, or consistent with, the terms sought by the applicant is within the power of the Court;

the Court may, if it appears appropriate to do so, make such an order without holding a hearing or, if a hearing has started, without completing the hearing.

Note: If the application involves making a determination of native title, the Court’s order would need to comply with section 94A (which deals with the requirements of native title determination orders).

Meaning of unopposed

(2) For the purpose of this section, an application is unopposed if the only party is the applicant or if each other party notifies the Federal Court in writing that he or she does not oppose an order in, or consistent with, the terms sought by the applicant.

87 Power of Federal Court if parties reach agreement

Power of Court

(1) If, at any stage of proceedings after the end of the period specified in the notice given under section 66:

(a) agreement is reached between the parties on the terms of an order of the Federal Court in relation to:

(i) the proceedings; or

(ii) a part of the proceedings; or

(iii) a matter arising out of the proceedings; and

(b) the terms of the agreement, in writing signed by or on behalf of the parties, are filed with the Court; and

the Court may, if it appears to it to be appropriate to do so, act in accordance with whichever of subsection (2) or (3) is relevant in the particular case.

Agreement as to order

(2) If the agreement is on the terms of an order of the Court in relation to the proceedings, the Court may make an order in, or consistent with, those terms without holding a hearing or, if a hearing has started, without completing the hearing.

Agreement as to part of proceedings

(3) If the agreement relates to a part of the proceedings or a matter arising out of the proceedings, the Court may in its order give effect to the terms of the agreement without, if it has not already done so, dealing at the hearing with the part of the proceedings or the matter arising out of the proceedings, as the case may be, to which the agreement relates.

21 After section 94

Insert:

94A Order containing determination of native title

An order in which the Federal Court makes a determination of native title must set out details of the matters mentioned in section 225 (which defines determination of native title).

22 After section 97

Insert:

97A Searches for Federal Court etc.

The Registrar has the power to conduct, or arrange for the conducting of, searches:

(a) as requested by the Federal Court under section 83A; or

(b) for the purposes of section 190A or any other provision of this Act.

23 Section 98

Repeal the section, substitute:

98 Powers of Registrar—registers

The Registrar has the powers set out in Parts 7, 8 and 8A in relation to the Register of Native Title Claims, the National Native Title Register and the Register of Indigenous Land Use Agreements.

98A Power of Registrar—other public records and information

Registrar may keep other records and information

(1) The Registrar has the power to keep such other records and information as he or she considers appropriate and to make those records or that information available to the public.

Certain information to be confidential

(2) The Registrar must not make particular information available to the public if the Registrar considers that it would not be in the public interest for the information to be available to the public.

Concerns of Aboriginal peoples and Torres Strait Islanders

(3) In determining whether it would or would not be in the public interest for information to be available to the public, the Registrar must have due regard to the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders.

24 After subsection 108(1)

Insert:

Mediation for Federal Court proceedings

(1A) The Tribunal has the functions in relation to Federal Court proceedings given to the Tribunal by Division 4A.

Requests for assistance or mediation

(1B) The Tribunal has the function of providing assistance or mediating in accordance with any provision of this Act.

25 Subsection 109(2)

Repeal the subsection, substitute:

Concerns of Aboriginal peoples and Torres Strait Islanders

(2) The Tribunal, in carrying out its functions, may take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, but not so as to prejudice unduly any party to any proceedings that may be involved.

26 Subsection 109(3)

Omit “conducting an inquiry”, substitute “carrying out its functions”.

26A Section 110 (table, column dealing with persons who may be appointed, row dealing with presidential members)

Add:

; or (3) A person who is, and has been for at least 5 years, enrolled as a legal practitioner of the High Court, of another federal court or of the Supreme Court of a State or Territory.

27 Subsections 122(1) and (3)

Omit “Part 4”, substitute “Part 3”.

28 Subsection 123(1)

Omit “sections 69 and”, substitute “section”.

29 Paragraph 123(1)(b)

Repeal the paragraph, substitute:

(b) the persons who are to conduct mediation in a particular proceeding, or to provide assistance in making or negotiating agreements under this Act;

30 Paragraph 123(1)(c)

Omit “, or for the purposes of making a decision under section 69”.

31 Subsection 124(1)

Omit “Subject to section 69, the”, substitute “The”.

32 Subdivision B of Division 4 of Part 6 (heading)

Repeal the heading, substitute:

Subdivision B—Other officers, Tribunal staff and consultants

33 After section 131

Insert:

131A President may engage consultants

(1) The President may engage a person as a consultant in relation to any assistance or mediation that the Tribunal provides under any provision of this Act.

Consultants to have relevant skills or knowledge

(2) The President may only engage a person under subsection (1) if:

(a) the person has, in the opinion of the President, particular skills or knowledge in relation to matters of substantial relevance to the assistance or mediation; and

(b) so far as is reasonably practicable, the person has, in the opinion of the President, special knowledge in relation to Aboriginal or Torres Strait Islander societies.

Engagements to be in writing

(3) An engagement under subsection (1) must be made:

(a) on behalf of the Commonwealth; and

(b) by written agreement.

Consultant subject to President’s direction

(4) A consultant engaged under subsection (1) is subject to directions given by the President under subsection 123(1).

Note 1: The heading to section 132 is replaced by the heading “Registrar may engage consultants”.

Note 2: The heading to subsection 132(1) is omitted.

131B Disclosure of interests

Consultant to disclose conflict of interest

(1) A person engaged under subsection 131A(1) as a consultant in relation to any assistance or mediation being provided by the Tribunal who has a conflict of interest in relation to the assistance or mediation must disclose the matters giving rise to that conflict to:

(a) the President of the Tribunal; and

(b) the persons to whom the Tribunal is providing the assistance or mediation.

Requirement for consent

(2) The person must not perform his or her duties as a consultant in relation to the assistance or mediation unless the President and the persons to whom the Tribunal is providing the assistance or mediation consent.

Meaning of conflict of interest

(3) For the purposes of this section, a person engaged under subsection 131A(1) as a consultant in relation to any assistance or mediation being provided by the Tribunal has a conflict of interest in relation to the assistance or mediation if the person has any interest, pecuniary or otherwise, that could conflict with the proper performance of his or her duties as a consultant in relation to the assistance or mediation.

Conflict of interest at a particular time

(4) Without limiting subsection (3), a person engaged under subsection 131A(1) as a consultant in relation to any assistance or mediation being provided by the Tribunal has a conflict of interest at a particular time in relation to the assistance or mediation if:

(a) at that time, the person is employed by, or engaged as a consultant to, an organisation that has an interest in the matter in relation to which the assistance or mediation is being provided; or

(b) at any time in the 12 months immediately before that time, the person was so employed or engaged.

34 After section 136

Insert:

Division 4A—Mediation conferences

136A Mediation conferences

President to direct conference to be held

(1) If the Federal Court refers the whole or a part of a proceeding to the Tribunal under section 86B for mediation, the Tribunal may hold such conferences of the parties or their representatives as the Tribunal considers will help in resolving the matter.

Member must preside

(2) A conference must be presided over by a member of the Tribunal.

Assistance for presiding member

(3) The member presiding at a conference may be assisted by another member of the Tribunal or by a member of the staff of the Tribunal.

Statements at conference are without prejudice

(4) In a proceeding before the Court, unless the parties otherwise agree, evidence may not be given, and statements may not be made, concerning any word spoken or act done at a conference.

Member not to take further part in relation to a proceeding

(5) Unless the parties otherwise agree, a member who presides over, or assists at, a conference in relation to a proceeding may not, in any other capacity, take any further part in the proceeding.

Participation by telephone etc.

(6) The presiding member may allow a person to participate by:

(a) telephone; or

(b) closed-circuit television; or

Division applies as if consultant were a member

(7) If a consultant is engaged under subsection 131A(1) to conduct mediation in relation to a particular matter under this Division, this Division applies in relation to that matter as if the consultant were a member of the Tribunal.

136B Parties at conferences

Limiting parties at conferences

(1) The presiding member may direct that only one or some of the parties may attend, and be represented, at a conference.

Excluding parties from conferences

(2) If the presiding member considers that:

(a) a party, or a party’s representative, at a conference is disrupting or hindering the conference; or

(b) excluding a party, or a party’s representative, from a conference would help to resolve matters;

the member may direct that the party or representative not attend at that conference or at other conferences.

Parties may be represented

(3) A party may be represented by a barrister, a solicitor or another person.

136C Other persons attending or participating in conferences

The presiding member may, with the consent of all of the parties present at a conference:

(a) direct that other persons be permitted to attend as observers of the conference; or

(b) if he or she considers it would assist the parties to reach agreement on any of the matters mentioned in subsection 86A(1) or (2)—direct that other persons be permitted to participate in the conference.

136D Referral of questions of fact or law

Reference of questions to Federal Court

(1) Subject to subsections (2) and (3), if the presiding member considers that it would expedite the reaching of an agreement on any matter that is the subject of mediation, he or she may refer to the Federal Court a question of fact or law relating to a proceeding that arises during the mediation.

Note: Under subsection 86D(1), the Federal Court may determine a question of fact or law that the NNTT refers to it.

Presiding member not a consultant

(2) If the presiding member is not a consultant engaged under subsection 131A(1), the question may only be referred to the Court under subsection (1) of this section:

(a) on the initiative of the presiding member; or

(b) at the request of a party, if the presiding member agrees.

Presiding member a consultant

(3) If the presiding member is a consultant engaged under subsection 131A(1), the question may only be referred to the Court under subsection (1) of this section:

(a) on the initiative of the presiding member, if a presidential member agrees; or

(b) at the request of a party, if both the presiding member and a presidential member agree.

Mediation may continue

(4) If a question of fact or law arising during mediation has been referred to the Court under this section, the presiding member may continue mediation if he or she considers that it is appropriate.

136E Conferences to be held in private

A conference must be held in private, unless the member presiding directs otherwise and no party objects.

136F Presiding member may prohibit disclosure of information

Power of presiding member

(1) The presiding member may direct that:

(a) any information given, or statements made, at a conference; or

(b) the contents of any document produced at a conference;

must not be disclosed, or must not be disclosed except in such manner, and to such persons, as the presiding member specifies.

Applications etc.

(2) The presiding member may make the direction on his or her own initiative or on an application by a party.

Presiding member may disclose if parties agree

(3) If the parties agree, the presiding member may, despite the direction, disclose things of the kind mentioned in paragraph (1)(a) or (b).

136G Report to be given to Federal Court

Report after mediation concludes

(1) The presiding member must, as soon as practicable after mediation is successfully concluded, provide a written report to the Federal Court setting out the results of the mediation.

Report requested under section 86E

(2) The presiding member must provide a written report to the Federal Court setting out the progress of the mediation if requested to do so under section 86E.

Report to assist the Court

(3) The presiding member may provide a written report to the Federal Court setting out the progress of the mediation if the presiding member considers that it would assist the Federal Court in progressing the proceeding in relation to which the mediation is being undertaken.

Agreement on facts

(4) If the parties agree, any report under this section must include any agreement on facts between the parties that was reached during the mediation concerned.

Division 4B—How assistance or mediation is to be provided

136H Regulations about assistance or mediation

(1) The regulations may make provision in relation to the way in which:

(a) any assistance is to be provided by the NNTT under any provision of this Act; or

(b) any mediation, that the NNTT is requested to provide, is to be provided under any provision of this Act.

Regulations must be consistent with this Act

(2) Such regulations must not be inconsistent with Division 4A or any other provision of this Act.

35 Paragraph 139(a)

Repeal the paragraph.

36 At the end of section 139

Add:

; or (d) if a person has made an objection against registration of an indigenous land use agreement as mentioned in paragraph 24DL(2)(c) and not withdrawn the objection—whether the person satisfies the Tribunal that it would not be fair and reasonable to register the agreement having regard to the matters mentioned in that paragraph.

37 Section 140

Omit “or application”, substitute “, application or objection”.

38 Subsection 141(1)

Repeal the subsection.

39 At the end of section 141

Add:

Registration of indigenous land use agreements

(4) The parties to an inquiry into whether a person satisfies the Tribunal that it would not be fair and reasonable to register an indigenous land use agreement are:

(a) the person; and

(b) the parties to the agreement; and

40 Section 148

Repeal the section.

41 At the end of section 151

Add:

Determinations “on the papers”

(2) The Tribunal may:

(a) decide for the purposes of paragraph 24DL(2)(c) whether it would be fair and reasonable to register an agreement; or

(b) make a determination in relation to a right to negotiate application;

by considering, without holding a hearing, the documents or other material lodged with or provided to the Tribunal. However, the Tribunal must hold a hearing if it appears to the Tribunal that the issues for determination cannot be adequately determined in the absence of the parties.

42 Subsection 154(1)

Omit “an inquiry”, substitute “a hearing”.

Note 1: The heading to section 154 is altered by omitting “Inquiries” and substituting “Hearings”.

Note 2: The heading to subsection 154(1) is altered by omitting “inquiries” and substituting “hearings”.

43 Subsection 154(3)

Omit “an inquiry, or part of an inquiry,”, substitute “a hearing, or part of a hearing,”.

Note: The heading to subsection 154(3) is altered by omitting “inquiries” and substituting “hearings”.

44 Subsection 154(4)

Omit “an inquiry or part of an inquiry”, substitute “a hearing or part of a hearing”.

45 Sections 160, 161 and 165

Repeal the sections.

46 Subdivision E of Division 5 of Part 6

Repeal the Subdivision.

47 Subsections 169(2) and (3)

Repeal the subsections, substitute:

Appeal from Tribunal decision—indigenous land use agreement registration

(2) A party to an inquiry relating to registration of an indigenous land use agreement before the Tribunal may appeal to the Federal Court, on a question of law, from any decision of the Tribunal in that proceeding.

Note: The heading to subsection 169(1) is altered by omitting “the”.

48 Section 176

After “section 92”, insert “, 136F”.

49 Paragraph 177(a)

Omit “or a member”, substitute “, a member or a consultant engaged under subsection 131A(1)”.

50 Section 178

Omit “a determination of the Tribunal is lodged with the Federal Court under section 166,”.

51 After subsection 180(1)

Insert:

Protection of consultants

(1A) A person engaged under subsection 131A(1) as a consultant has, in performing duties under the engagement, the same protection and immunity as a Justice of the High Court.

52 Section 181

Repeal the section, substitute:

181 Confidential information not to be disclosed

Persons to whom section applies

(1) This section applies to a person who is a member or officer of the Tribunal or a consultant engaged under subsection 131A(1).

Persons not competent etc. to give evidence

(2) A person to whom this section applies is not competent, and must not be required, to give evidence to a court relating to a matter if:

(a) the giving of the evidence would be contrary to a direction of the Tribunal in force under section 155 or to a direction of the presiding member under subsection 136F(1); or

(b) an application has been made to the Tribunal for a direction under section 155, or to the presiding member for a direction under section 136F, concerning the matter to which the evidence would relate and the Tribunal or the presiding member has not determined that application.

Persons not required to produce documents

(3) A person to whom this section applies must not be required to produce in a court a document given to the Tribunal in connection with a proceeding if:

(a) the production of the document would be contrary to a direction of the Tribunal in force under section 155 or to a direction of the presiding member under subsection 136F(1); or

(b) an application has been made to the Tribunal for a direction under section 155, or to the presiding member for a direction under section 136F, in relation to the document and the Tribunal or the presiding member has not determined that application.

Persons not required to give evidence

(4) A person to whom this section applies must not be required to give evidence to a court in relation to any proceedings before the Tribunal or any mediation required under subsection 31(3).

Definitions

(5) In this section:

court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.

produce includes permit access to.

53 Section 183

Repeal the section, substitute:

183 Assistance from Attorney-General

Assistance in relation to inquiries etc.

(1) A person who is a party, or who intends to apply to be a party, to an inquiry, mediation or proceeding related to native title may apply to the Attorney-General for the provision of assistance under this section in relation to the inquiry, mediation or proceeding.

Assistance in relation to agreements and disputes

(2) A person who:

(a) is or intends to become a party to an indigenous land use agreement or an agreement about rights conferred under subsection 44B(1); or

(b) is in dispute with any other person about rights conferred under subsection 44B(1);

may apply to the Attorney-General for the provision of assistance under this section in relation to:

(d) any inquiry, mediation or proceeding in relation to the agreement; or

(e) resolving the dispute.

Attorney-General may grant assistance

(3) If the Attorney-General is satisfied that:

(a) the applicant is not eligible to receive assistance in relation to the matter concerned from any other source (including from a representative Aboriginal/Torres Strait Islander body); and

(b) the provision of assistance to the applicant in relation to the matter concerned is in accordance with the guidelines (if any) determined under subsection (4); and

the Attorney-General may authorise the provision by the Commonwealth to the applicant, either unconditionally or subject to such conditions as the Attorney-General determines, of such legal or financial assistance as the Attorney-General determines.

Attorney-General may determine guidelines

(4) The Attorney-General may, in writing, determine guidelines that are to be applied in authorising the provision of assistance under this section.

Assistance not to be provided to Ministers

(5) The Attorney-General cannot authorise the provision of assistance under this section to the Commonwealth Minister, a State Minister or a Territory Minister.

Assistance not to be provided to native title claimants etc.

(6) The Attorney-General must not authorise the provision of assistance under this section to a person in relation to:

(a) any claim by the person, in an inquiry, mediation or proceeding, to hold native title or to be entitled to compensation in relation to native title; or

(b) an indigenous land use agreement, if the person holds or claims to hold native title in relation to the area covered by the agreement; or

(c) an agreement or dispute about rights conferred under subsection 44B(1), if the person is included in the native title claim group concerned.

Delegation by Attorney-General

(7) The Attorney-General may, in writing, delegate any or all of his or her powers under subsection (3) to:

(a) the Secretary of the Department; or

(b) a person engaged under the Public Service Act 1997 who occupies a specified position in the Department.

54 Section 184

Omit “given to the Registrar, or”, substitute “filed in the Federal Court, or given”.

55 Subsection 185(2)

Before “Registrar”, insert “Native Title”.

56 Subsection 186(1)

After “each claim”, insert “covered by subsection 190(1)”.

57 Paragraph 186(1)(a)

Omit “lodged with the Registrar or”, substitute “filed in the Federal Court or lodged with”.

58 Paragraph 186(1)(c)

After “was”, insert “filed or”.

59 After paragraph 186(1)(c)

Insert:

(ca) the date on which the claim is entered on the Register;

60 Paragraph 186(1)(d)

Omit “person who is taken to be the claimant”, substitute “applicant”.

61 At the end of subsection 188(1)

Add:

Note: Such information must not be made available to the public: see subsection 98A(2).

62 Subsection 188(2)

Repeal the subsection.

63 Sections 189 and 190

Repeal the sections, substitute:

189 Senior Registrar of the High Court to notify Registrar

The Senior Registrar of the High Court must, as soon as is practicable, notify the Registrar of the details of any decision or determination made by the High Court that covers a claim.

189A Registrar of Federal Court to notify Native Title Registrar

The Registrar of the Federal Court must, as soon as practicable, notify the Native Title Registrar of:

(a) the withdrawal of an application that contains a claim (whether or not covered by an entry on the Register); and

(b) the details of any decision or determination of the Federal Court that covers a claim (whether or not covered by an entry on the Register).

190 Keeping the Register

Registrar to include claims

(1) The Native Title Registrar must, as soon as practicable, include in the Register:

(a) details of any claims accepted for registration by the Registrar under section 190A; and

(b) details of any claims that have been found to satisfy conditions equivalent to those set out in sections 190B and 190C, being claims of which the Registrar is notified by a recognised State/Territory body.

Amending Register after amendment of claims: recognised bodies

(2) If a recognised State/Territory body notifies the Registrar of an amendment of an application containing a claim that is on the Register, the Registrar must, as soon as practicable:

(a) if the claim as set out in the amended application has been found to satisfy conditions equivalent to those set out in sections 190B and 190C—amend the Register to reflect the amendment; or

(b) if the claim as set out in the amended application has been found not to satisfy conditions equivalent to those set out in sections 190B and 190C—amend the Register to remove any entry relating to the claim.

Amending Register after amendment of claims: other cases

(3) If the Registrar is given a copy of an amended application under subsection 64(4) that contains a claim or amends a claim, the Registrar must, as soon as practicable:

(a) if the claim is accepted for registration under section 190A—amend the Register to reflect the amendment; or

(b) if the claim is not accepted for registration under section 190A—amend the Register to remove any entry relating to the claim.

Entries removed or amended after determination, decision or withdrawal

(4) If:

(a) the Registrar is notified under section 189 or 189A of a decision or determination covering a claim; or

(b) the Registrar is notified by a recognised State/Territory body of a decision or determination covering a claim; or

the Registrar must, as soon as practicable:

(d) if the application in question has been withdrawn, dismissed or otherwise finalised—remove the entry on the Register that relates to the claim; or

(e) in any other case—amend the entry on the Register that relates to the claim so that it only relates to the matters in relation to which the application has not been finalised.

Note: If an application has been finalised in relation to part of the area claimed, the Register would be amended to remove references to that area. If the application has been finalised by an approved determination of native title, that determination would be entered on the National Native Title Register.

190A Registrar to consider claims

Claims made to Federal Court

(1) If the Registrar is given a copy of a claimant application under section 63 or subsection 64(4), the Registrar must, in accordance with this section, consider the claim made in the application.

Effect of section 29 notice

(2) If, either before the Registrar begins to do so or while he or she is doing so, a notice is given under section 29 in relation to an act affecting any of the land or waters in the area covered by the application, the Registrar must use his or her best endeavours to finish considering the claim by the end of 3 months after the notification day specified in the notice.

Information to be considered

(3) In considering a claim under this section, the Registrar must have regard to:

(a) information contained in the application and in any accompanying documents; and

(b) any information obtained by the Registrar as a result of any searches conducted by the Registrar of registers of interests in relation to land or waters maintained by the Commonwealth, a State or a Territory; and

(c) to the extent that it is reasonably practicable to do so in the circumstances—any information supplied by the Commonwealth, a State or a Territory, that, in the Registrar’s opinion, is relevant to whether any one or more of the conditions set out in section 190B or 190C are satisfied in relation to the claim;

and may have regard to such other information as he or she considers appropriate.

Information about other rights and interests

(4) Without limiting subsection (3), information mentioned in that subsection may include information about current or previous non-native title rights and interests in, or in relation to, the land or waters in the area covered by the application.

Effect of paragraph (3)(b)

(5) The fact that no information of the kind referred to in paragraph (3)(b) has been supplied at a particular time does not prevent the Registrar accepting a claim for registration under this section.

Notification about amending application

(5A) Before the Registrar has decided whether or not to accept the claim for registration, he or she may notify the applicant that the application may be amended under the Federal Court Rules.

Test for registration

(6) The Registrar must accept the claim for registration if the claim satisfies all of the conditions in:

(a) section 190B (which deals mainly with the merits of the claim); and

(b) section 190C (which deals with procedural and other matters).

In any other case, the Registrar must not accept the claim for registration.

Note: The fact that the Registrar is considering the claim under this section does not mean that the application cannot be amended: see subsection 64(3).

Effect of withdrawal etc. of application

(7) If:

(a) before the Registrar has decided whether or not to accept the claim for registration; or

(b) after the Registrar has decided to accept the claim for registration but before the Registrar has included details of the claim in the Register of Native Title Claims;

the Registrar is notified under section 189 or 189A of a decision or determination to the effect that the application has been dismissed or otherwise finalised, or is notified that the application has been withdrawn, the Registrar must not:

(d) enter the details in the Register;

as the case requires.

190B Registration: conditions about merits of the claim

(1) This section contains the conditions mentioned in paragraph 190A(6)(a).

Identification of area subject to native title

(2) The Registrar must be satisfied that the information and map contained in the application as required by paragraphs 62(2)(a) and (b) are sufficient for it to be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters.

Identification of native title claim groups

(3) The Registrar must be satisfied that:

(a) the persons in the native title claim group are named in the application; or

(b) the persons in that group are described sufficiently clearly so that it can be ascertained whether any particular person is in that group.

Identification of claimed native title

(4) The Registrar must be satisfied that the description contained in the application as required by paragraph 62(2)(d) is sufficient to allow the native title rights and interests claimed to be readily identified.

Factual basis for claimed native title

(5) The Registrar must be satisfied that the factual basis described in the application as required by paragraph 62(2)(e) is sufficient to support the assertion that the native title rights and interests claimed exist.

Prima facie case

(6) The Registrar must consider that, prima facie, each of the native title rights and interests claimed in the application can be established.

Physical connection

(7) The Registrar must be satisfied that at least one member of the native title claim group currently has or previously had a traditional physical connection with the area covered by the application.

No failure to comply with section 61A

(8) The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that, because of section 61A (which forbids the making of applications where there have been previous native title determinations or exclusive or non-exclusive possession acts), the application should not have been made.

Claimed native title not to involve mineral rights or certain offshore place rights

(9) The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that:

(a) to the extent that the native title rights and interests claimed consist of or include ownership of minerals, petroleum or gas—the Crown in right of the Commonwealth, a State or a Territory owns the minerals, petroleum or gas; or

(b) to the extent that the native title rights and interests claimed relate to waters in an offshore place—those rights and interests purport to exclude all other rights and interests in relation to the whole or part of the offshore place.

No other extinguishment of claimed native title

(10) The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that the native title rights and interests claimed have otherwise been extinguished.

190C Registration: conditions about procedural and other matters

(1) This section contains the conditions mentioned in paragraph 190A(6)(b).

Information etc. required by sections 61 and 62

(2) The Registrar must be satisfied that the application contains all details and other information, and is accompanied by any affidavit or other document, required by sections 61 and 62.

No previous overlapping claim groups

(3) The Registrar must be satisfied that no person included in the native title claim group for the application (the current application) was a member of the native title claim group for any previous application, if:

(a) the previous application covered the whole or part of the area covered by the current application; and

(b) an entry relating to the claim in the previous application was on the Register of Native Title Claims when the current application was made; and

Identity of claimed native title holders

(4) The Registrar must be satisfied that either of the following is the case:

(a) the application has been certified under paragraph 202(4)(d) by each representative Aboriginal/Torres Strait Islander body that could certify the application in performing its functions under that Part; or

(b) the applicant is a member of the native title claim group and is authorised to make the application, and deal with matters arising in relation to it, by all the other persons in the native title claim group.

Note: The word authorise is defined in section 251B.

Requirements for uncertified applications

(5) If the application has not been certified as mentioned in paragraph (4)(a), the Registrar cannot be satisfied that the condition in subsection (4) has been satisfied unless the application:

(a) includes a statement to the effect that the requirement set out in paragraph (4)(b) has been met; and

(b) briefly sets out the grounds on which the Registrar should consider that it has been met.

Overlapping representative body areas

(6) Paragraph (4)(a) does not require certification by a particular representative Aboriginal/Torres Strait Islander body that could certify the application in performing its functions if:

(a) the application has been certified under paragraph 202(4)(d) by another representative Aboriginal Torres/Strait Islander body whose area includes all of the area of land or waters, to which the application relates, that is within the first-mentioned body’s area; or

(b) the application has been certified under paragraph 202(4)(d) by 2 or more other representative Aboriginal/Torres Strait Islander bodies whose areas, when combined, include all of the area of land or waters, to which the application relates, that is within the first-mentioned body’s area.

Definition of area

(7) In subsection (6):

area, in relation to a representative Aboriginal/Torres Strait Islander body, means the area in relation to which the body has been determined under section 202 to be a representative Aboriginal/Torres Strait Islander body.

190D If the claim cannot be registered

(1) If the Registrar does not accept the claim for registration, the Registrar must, as soon as practicable, give the applicant and the Federal Court written notice of his or her decision not to accept the claim, including a statement of the reasons for the decision.

Applicant may apply to Federal Court for review

(2) If the Registrar gives the applicant a notice under subsection (1), the applicant may apply to the Federal Court for a review of the Registrar’s decision not to accept the claim.

Federal Court has jurisdiction

(3) The Court has jurisdiction to hear and determine an application made to it under subsection (2).

64 Section 191

After “Registrar may”, insert “, if the State or Territory concerned agrees,”.

65 Subsection 192(2)

Before “Registrar”, insert “Native Title”.

66 Paragraph 193(1)(a)

Omit “the NNTT,”.

67 Paragraph 193(2)(d)

Repeal the paragraph, substitute:

(d) the matters determined, including:

(i) whether or not native title exists in relation to the land or waters covered by the determination; and

(ii) if it exists—who the common law holders of the native title are; and

(iii) in the case of an approved determination of native title by the Federal Court, where the determination is that native title exists—the name and address of any prescribed body corporate that holds the native title rights and interests concerned on trust or that is determined under section 57 in relation to the native title; and

(iv) in the case of an approved determination of native title by a recognised State/Territory body, where the determination is that native title exists—the name and address of any body corporate that holds the native title rights and interests concerned on trust or that is determined in relation to the native title under a provision of a law of the State or Territory concerned that corresponds to section 57.

68 Section 196

Repeal the section.

69 Subsection 200(1)

Omit all the words before “Commonwealth”, substitute “The”.

70 Paragraph 200(1)(a)

After “Part 2”, insert “or of the kind mentioned in section 45”.

71 After Part 12

Insert:

Part 12A—State/Territory bodies

207B Equivalent State/Territory bodies

Equivalent bodies

(1) This section applies if the State Minister for a State, or the Territory Minister for a Territory, nominates to the Commonwealth Minister one or more offices, tribunals or bodies (each of which is an equivalent body), established by or under a law of the State or Territory, for the purpose of each performing specified functions or exercising specified powers of the NNTT or the Native Title Registrar, in specified circumstances, under specified equivalent body provisions (see subsection (9)).

Different functions/powers etc.

(2) To avoid doubt, the nomination may specify:

(a) different functions or powers in relation to different equivalent bodies; or

(b) different functions or powers in different circumstances.

Determination

(3) The Commonwealth Minister may, in writing, determine that the one or more equivalent bodies are to perform the specified functions or exercise the specified powers in the specified circumstances, under the specified equivalent body provisions.

Criteria to be satisfied

(4) In order to ensure that there is a nationally consistent approach to the recognition and protection of native title, the Commonwealth Minister must not make the determination unless the Commonwealth Minister is satisfied that:

(a) the one or more equivalent bodies will have available to them, through the bodies’ membership, appropriate expertise (including expertise in matters relating to Aboriginal peoples and Torres Strait Islanders) for performing their functions or exercising their powers under the determination; and

(b) under the law of the State or Territory, the procedures of the one or more equivalent bodies in performing those functions or exercising those powers will be fair, just, informal, accessible and expeditious; and

(c) the one or more equivalent bodies will have adequate resources to enable them to perform those functions or exercise those powers; and

(d) the law of the State or Territory will enable and require the one or more equivalent bodies to perform those functions or exercise those powers if the Commonwealth Minister makes the determination; and

(e) if any of the functions or powers that the one or more equivalent bodies will perform or exercise under the determination involves the maintenance of any register under this Act—the law of the State or Territory will require the functions to be performed or the powers to be exercised in a way that ensures that the register will be maintained in a nationally integrated and accessible manner; and

(f) if:

(i) any of the functions or powers that will be performed or exercised under the determination will be performed or exercised by an equivalent body that consists of more than one person; and

(ii) the Commonwealth Minister considers it appropriate that a member of the NNTT should be a member of the equivalent body;

the law of the State or Territory will require a member of the NNTT to be a member of the equivalent body; and

(g) any other requirement that the Commonwealth Minister considers relevant will be satisfied.

Modified application of Act etc.

(5) While the determination is in force, this Act, and Schedule 5 to the Native Title Amendment Act 1997, have effect, in relation to a function or power of the NNTT or Native Title Registrar specified in the determination, as if, in the specified circumstances:

(a) the one or more equivalent bodies had the functions or powers, instead of the NNTT or the Registrar; and

(b) if one of the powers specified in the determination is the power to make determinations under Subdivision P of Division 3 of Part 2 of this Act—for the purposes of sections 34A, 36A, 36B, 36C and 42 of this Act, the State Minister or the Territory Minister of the relevant State or Territory had the powers of the Commonwealth Minister under that section, instead of the Commonwealth Minister.

Vesting of functions and powers in equivalent bodies

(6) While the determination is in force, the functions and powers specified in the determination are vested in the one or more equivalent bodies, in the circumstances set out in the determination.

Revocation of determination

(7) If, at any time:

(a) the law of the State or Territory is amended; and

(b) as a result, the Commonwealth Minister ceases to be satisfied as mentioned in subsection (4) in relation to any or all of the equivalent bodies;

he or she must:

(d) if at the end of 90 days, or such longer period as the Commonwealth Minister allows, after doing so, the Commonwealth Minister is still not satisfied as mentioned in subsection (4)—in writing, revoke the determination.

Regulations to make transitional provisions

(8) The regulations may prescribe any modifications of this Act that are necessary or convenient to deal with transitional matters arising from the making or revocation of determinations under this section.

Equivalent body provisions

(9) The equivalent body provisions are:

(a) all of the provisions of this Act, except the following:

(i) this section;

(ii) Part 5;

(iii) the provisions of Part 6, other than subsection 136D(1) and sections 139, 145, 169, 178 and 179; and

(b) Schedule 5 to the Native Title Amendment Act 1997.

72 Subsection 209(1)

Omit “Aboriginal and Torres Strait Islander Social Justice Commissioner (appointed under the Human Rights and Equal Opportunity Commission Act 1986)”, substitute “Human Rights and Equal Opportunity Commission”.

Note: The heading to section 209 is altered by omitting “by Aboriginal and Torres Strait Islander Social Justice Commissioner”, and substituting “on matters related to the Act”.

73 Subsection 209(2)

Omit “Commissioner”, substitute “Commission”.

74 At the end of section 209

Add:

Commissioner to prepare and submit reports

(3) The preparation and submission of reports under subsections (1) and (2) is to be carried out by the Aboriginal and Torres Strait Islander Social Justice Commissioner (appointed under the Human Rights and Equal Opportunity Commission Act 1986) on behalf of the Commission.

Commonwealth Minister must table reports

(4) The Commonwealth Minister must cause a copy of each report received by the Minister under subsection (1) or (2) to be laid before each House of the Parliament within 15 sitting days of that House after the report is received by the Minister.

75 After paragraph 215(2)(a)

Insert:

(aa) the regulations may make provision:

(i) prescribing fees to be paid to obtain access to, or information from, records or information kept by the Native Title Registrar as mentioned in section 98A; and

(ii) for or in relation to the waiver or refund, in whole or part, of such fees; and

76 Subparagraph 215(2)(b)(i)

Before “Registrar”, insert “Native Title”.

77 After subparagraph 215(2)(b)(i)

Insert:

(ia) the waiver, in whole or in part, of those fees; and

78 Section 222 (table)

Repeal the table, substitute:

List of Definitions
Expression	Section
Aboriginal peoples	253
Aboriginal/Torres Strait Islander land or waters	253
act	226
act attracting the expedited procedure	237
affect	227
agricultural lease	247
applicant	253
approved determination of native title	253
arbitral body	253
assessor	253
attributable	239
authorise	253
category A intermediate period act	232B
category A past act	229
category B intermediate period act	232C
category B past act	230
category C intermediate period act	232D
category C past act	231
category D intermediate period act	232E
category D past act	232
Chief Justice	253
claimant application	253
coastal sea	253
commercial lease	246
common law holders	253
Commonwealth Minister	253
community purposes lease	249A
determination of native title	225
exclusive agricultural lease	247A
exclusive pastoral lease	248A
explore	253
extinguish	237A
Federal Court	253
forest operations	253
former judge	253
future act	233
Government party	253
grantee party	253
horticulture	253
indigenous land use agreement	253
infrastructure facility	253
interest	253
intermediate period act	232A
Judge	253
jurisdictional limits	253
land	253
land or waters on which a public work is constructed, established or situated	251D
lease	242
lessee	243
major earthworks	253
member	253
mine	253
mining lease	245
National Native Title Register	253
National Native Title Tribunal	253
native title	223
native title claim group	253
native title group	24CD, 24DE
native title holder	224
native title party	253
Native Title Registrar	253
native title rights and interests	223
negotiation party	253
NNTT	253
non-claimant application	253
non-exclusive agricultural lease	247B
non-exclusive pastoral lease	248B
non-extinguishment principle	238
non-presidential member	253
notify the public in the determined way	252
offshore place	253
onshore place	253
ordinary title	253
paragraph 51(xxxi) acquisition of property	253
paragraph 51(xxxi) just terms	253
past act	228
pastoral lease	248
permit	244
perpetual lease	249B
prescribed	253
President	253
presidential member	253
previous exclusive possession act	23B
previous non-exclusive possession act	23F
primary production activity	24GA
procedural right	253
public work	253
recognised State/Territory body	253
Register of Indigenous Land Use Agreements	253
Register of Native Title Claims	253
registered native title body corporate	253
registered native title claimant	253
Registrar	253
representative Aboriginal/Torres Strait Islander body	253
representative body	253
residential lease	249
right to negotiate application	253
Scheduled interest	249C
similar compensable interest test	240
special matter	253
State Minister	253
statutory authority	253
subject to section 24FA protection	253
Territory Minister	253
Torres Strait Islander	253
town or city	251C
traditional activity	44A
Tribunal	253
valid	253
waters	253

79 Section 225

Repeal the section, substitute:

225 Determination of native title

A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:

(a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and

(b) the nature and extent of the native title rights and interests in relation to the determination area; and

(d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and

(e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease—whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

Note: The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non-native title interests.

80 Subsection 226(2)

Omit “Subject to subsection (4), act includes”, substitute “An act includes”.

81 Subsection 226(3)

Omit “Subject to subsection (4), an”, substitute “An”.

82 Subparagraph 251(2)(a)(ii)

Omit “and”.

83 Subparagraph 251(2)(a)(iii)

Repeal the subparagraph.

85 After paragraph 251(2)(a)

Insert:

(aa) any procedures under the law of the State or Territory for determinations whether acts affecting native title may be done will be consistent with those set out in this Act; and

(ab) the law of the State or Territory will require a decision to be made whether a claim in respect of native title satisfies conditions equivalent to those set out in sections 190B and 190C; and

86 Paragraph 251(2)(g)

Repeal the paragraph.

87 After subparagraph 251(2)(i)(i)

Insert:

(ia) any claims contained in any such applications (including amended applications) that have been found to satisfy conditions equivalent to those set out in sections 190B and 190C; and

(ib) any amendments of applications covered by subparagraph (ia), if the claims contained in the application as amended have been found not to satisfy conditions equivalent to those set out in sections 190B and 190C; and

(ic) any withdrawal or dismissal of applications covered by subparagraph (i); and

88 Paragraph 251(4)(b)

After “90 days”, insert “, or such longer period as the Commonwealth Minister allows,”.

89 Subsection 251(6)

Omit “Division 1 of Part 4”, substitute “Division 1A of Part 4”.

90 Section 251

After amending the section in accordance with this Schedule, move the section to new Part 12A (so that it appears immediately after the heading to that Part) and re-number the section as 207A.

91 Section 253 (paragraph (c) of the definition of Aboriginal/Torres Strait Islander land or waters)

After “law”, insert “, or part of a law,”.

92 Section 253

Insert:

applicant has a meaning affected by subsection 61(2).

93 Section 253

Insert:

claimant application means a native title determination application that a native title claim group has authorised to be made, and, unless the contrary intention appears, includes such an application that has been amended.

94 Section 253 (definition of land, after the note)

Insert:

Note 2: Because of the definition of waters, the area between high water and low water will not be included in land.

95 Section 253

Insert:

native title claim group means:

(a) in relation to a claim in an application for a determination of native title made to the Federal Court—the native title claim group mentioned in relation to the application in the table in subsection 61(1); or

(b) in relation to a claim in an application for an approved determination of native title made to a recognised State/Territory body—the person or persons making the claim, or on whose behalf the claim is made.

96 Section 253 (definition of non-claimant application)

Repeal the definition, substitute:

non-claimant application means a native title determination application that is not a claimant application.

97 Section 253 (definition of recognised State/Territory body)

Omit “section 251”, substitute “section 207A”.

98 Section 253 (definition of registered native title body corporate)

Repeal the definition, substitute:

registered native title body corporate means:

(a) a prescribed body corporate whose name and address are registered on the National Native Title Register under subparagraph 193(2)(d)(iii); or

(b) a body corporate whose name and address are registered on the National Native Title Register under subparagraph 193(2)(d)(iv).

99 Section 253 (definition of registered native title claimant)

Repeal the definition, substitute:

registered native title claimant, in relation to land or waters, means a person or persons whose name or names appear in an entry on the Register of Native Title Claims as the applicant in relation to a claim to hold native title in relation to the land or waters.

100 Section 253 (definition of unopposed application)

Repeal the definition.

101 Section 253 (at the end of the definition of waters)

Add:

; or (c) the shore, or subsoil under or airspace over the shore, between high water and low water.

Part 2—Federal Court of Australia Act 1976

102 After subsection 18AB(2)

Insert:

(2A) The Judges, or a majority of them, may also make Rules of Court delegating to the Judicial Registrars all or any of the following powers of the Court:

(a) to determine parties to proceedings under the Native Title Act 1993;

(b) to make orders under sections 86D and 87 of that Act.

103 Subsections 18AB(3), (6) and (7)

After “subsection (1)” (wherever occurring), insert “or (2A)”.

Part 3—Human Rights and Equal Opportunity Commission Act 1986

104 At the end of subsection 46C(1)

Add:

Note: Functions are also conferred on the Commission under section 209 of the Native Title Act 1993.

Schedule 3—Amendments relating to representative Aboriginal/Torres Strait Islander bodies

Part 1—Initial amendments

1 Before section 202

Insert:

Division 1—Preliminary

201A Definitions

In this Part, unless the contrary intention appears:

director, in relation to a representative body, means a member of the governing body of the representative body.

executive officer, in relation to a representative body, means:

(a) a director of the representative body; or

(b) any other person who is concerned in, or takes part in, the management of the representative body at a senior level.

exempt State body means a body established by a law of a State that confers functions or powers on the body to be performed or exercised in its capacity as a body representing the interests of, or acting on behalf of, Aboriginal peoples or Torres Strait Islanders.

functions, in relation to a representative body, means the functions conferred on the body by this Act and includes the obligations imposed on the body by this Act, whether or not any of those functions or obligations are also conferred or imposed on the body under a law of a State or Territory.

governing body, in relation to a representative body, means the group of persons (by whatever name called) who are responsible for the executive decisions of the representative body.

powers, in relation to a representative body, means the powers conferred on the body by this Act, whether or not any of those powers are also conferred on the body under a law of a State or Territory.

transition period means the period:

(a) beginning on the day on which Division 2 commences; and

(b) ending immediately before Division 3 commences.

201B Eligible bodies

(1) For the purposes of this Part, an eligible body is:

(a) a body corporate, incorporated under Part IV of the Aboriginal Councils and Associations Act 1976, the objects of which enable the body to perform the functions of a representative body under Division 3 of this Part; or

(b) a body corporate that is a representative body at the commencement of this section; or

(c) a body corporate established by or under a law of the Commonwealth, a State or a Territory, or a part of such a law, prescribed for the purposes of this paragraph.

However, a registered native title body corporate cannot be an eligible body.

(2) A regulation prescribing a law, or a part of a law, for the purposes of paragraph (1)(c) may be limited in its application to bodies corporate included in a specified class or classes of bodies corporate.

Division 1A—Original representative Aboriginal/Torres Strait Islander bodies

2 Subsection 202(4)

Omit “may”, substitute “determined under this section may do the following”.

3 Paragraphs 202(4)(a) and (b)

Omit “claims”, substitute “applications”.

4 Paragraphs 202(4)(a) and (b)

Omit “or” (last occurring).

5 Paragraph 202(4)(c)

Repeal the paragraph, substitute:

(c) assist such individuals or groups by representing them, if requested to do so, in negotiations and proceedings relating to:

(i) the doing of acts affecting native title; or

(ii) the provision of compensation in relation to such acts; or

(iii) indigenous land use agreements or other agreements in relation to native title; or

(iv) rights of access conferred under this Act or otherwise; or

(v) any other matter relevant to the operation of this Act;

(d) certify, in writing, applications for determinations of native title relating to areas of land or waters wholly or partly within the area in relation to which the representative body has been determined to be a representative body;

(e) certify, in writing, applications for registration of indigenous land use agreements relating to areas of land or waters wholly or partly within the area in relation to which the representative body has been determined to be a representative body;

(f) become a party to indigenous land use agreements.

6 At the end of section 202

Add:

Certification of applications for determinations of native title

(5) A representative body must not certify under paragraph (4)(d) an application for a determination of native title unless it is of the opinion that:

(a) the applicant has authority to make the application, and deal with matters arising in relation to it, on behalf of all the other persons in the native title claim group; and

(b) all reasonable efforts have been made to ensure that the application describes or otherwise identifies all the other persons in the native title claim group.

Note: Section 251B deals with authority to make the application.

Overlapping applications for determinations of native title

(6) If the land or waters covered by the application are wholly or partly covered by one or more applications (including proposed applications) of which the representative body is aware, the representative body must make all reasonable efforts:

(a) to achieve agreement, relating to native title over the land or waters, between the persons in respect of whom the applications are, or would be, made; and

(b) to minimise the number of applications covering the land or waters.

However, a failure by the representative body to comply with this subsection does not invalidate any certification of the application by the representative body.

Statement to be included in certifications of applications for determinations of native title

(7) A certification of an application for a determination of native title by a representative body must:

(a) include a statement to the effect that the representative body is of the opinion that the requirements of paragraphs (5)(a) and (b) have been met; and

(b) briefly set out the body’s reasons for being of that opinion; and

Certification of applications for registration of indigenous land use agreements

(8) A representative body must not certify under paragraph (4)(e) an application for registration of an indigenous land use agreement unless it is of the opinion that:

(a) all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified; and

(b) all of the persons so identified have authorised the making of the agreement.

Note: Section 251A deals with authority to make the agreement.

Statement to be included in certifications of applications for registration of indigenous land use agreements

(9) A certification of an application for registration of an indigenous land use agreement by a representative body must:

(a) include a statement to the effect that the representative body is of the opinion that the requirements of paragraphs (8)(a) and (b) have been met; and

(b) briefly set out the body’s reasons for being of that opinion.

7 After section 202

Insert:

202A Entering indigenous land use agreements

Before becoming a party to an indigenous land use agreement, a representative body must, as far as practicable, consult with, and have regard to the interests of, persons who hold or may hold native title in relation to land or waters in that area.

8 Subsection 203(1)

After “Islander body”, insert “determined under section 202”.

9 Subsection 203(1)

Omit “the Commonwealth Minister or”.

10 Subsection 203(2)

Repeal the subsection.

Note: The heading to subsection 203(3) is altered by omitting “—ATSIC”.

11 At the end of Part 11

Add:

Division 2—Recognition of representative Aboriginal/Torres Strait Islander bodies

203A Inviting applications for recognition

Commonwealth Minister may invite applications

(1) Subject to section 203AA, the Commonwealth Minister may, in the way determined in writing by the Commonwealth Minister, invite applications from eligible bodies for recognition as the representative body for an area.

Invitations may cover more than one area

(2) The invitation may specify more than one area for which applications are invited.

Invitations to specify application period

(3) The invitation must specify the period (of at least 28 days) within which applications are to be given to the Commonwealth Minister.

Invitations may be general

(4) For the avoidance of doubt, the way determined under subsection (1) for inviting applications may provide for the publication of general invitations to eligible bodies, and need not require that a separate invitation be made to each eligible body.

203AA Inviting applications from representative bodies during the transition period

Commonwealth Minister to invite applications

(1) As soon as practicable after the start of the transition period, the Commonwealth Minister must make invitations under section 203A relating to areas that, taken together, cover all the land and waters to which this Act extends. The invitations need not all be made at the same time.

Matters to which Commonwealth Minister must have regard

(2) Without limiting the matters to which the Commonwealth Minister may have regard in deciding the areas in relation to which the invitations will be made, he or she must have regard to the following:

(a) the areas for the representative bodies that are already in existence;

(b) the need to minimise any disruption to the performance of the functions of those representative bodies;

Invitation to representative bodies

(3) If an invitation under section 203A relates to an area (the original invitation area) that wholly or partly covers an area for which a body was, on the day on which this section commenced, a representative body:

(a) the invitation must initially be made only to each of the bodies that was, on that day, a representative body for an area wholly or partly covered by the original invitation area; and

(b) other than as provided in subsection (4), no other invitations may be made under section 203A, for areas that wholly or partly cover the original invitation area, until the end of the transition period.

Situations where general invitations can still be made

(4) If the Commonwealth Minister has, as mentioned in paragraph (3)(a), made an invitation in respect of the original invitation area to a representative body or bodies, the Commonwealth Minister may make another invitation within the transition period in respect of the original invitation area, or an area wholly or partly within the original invitation area, if:

(a) none of the bodies invited as mentioned in paragraph (3)(a) applied for recognition as the representative body for the original invitation area within the relevant application period under subsection 203A(3); or

(b) the Commonwealth Minister has rejected the application of each of the bodies so invited that did apply.

Diagram of the rules for making invitations

(5) This diagram shows when, under section 203A and this section, invitations can be made, during the transition period, for applications for recognition as the representative body for a particular area.

Note: These rules will not apply once the transition period has ended.

203AB Application for recognition

Eligible bodies may apply

(1) Subject to subsection (3), an eligible body may apply to the Commonwealth Minister, in the form approved by the Commonwealth Minister, for recognition as the representative body for the area, or for one or more of the areas, in respect of which applications have been invited under section 203A.

Application period

(2) The application must be given to the Commonwealth Minister within the period specified under subsection 203A(3), or within such further period as the Commonwealth Minister allows (whether or not the initial period has expired).

Invitation to existing representative bodies

(3) If the invitation in question was one to which subsection 203AA(3) applied, an application can only be made by an eligible body that has been invited to apply in accordance with subsection 203AA(3) or (4), as the case requires.

203AC Dealing with applications

(1A) The Commonwealth Minister must determine applications under section 203AB:

(a) as soon as practicable after:

(i) the period specified under subsection 203A(3); or

(ii) if a further period applies under subsection 203AB(2) in relation to one or more of those applications—the last such further period to end; or

(iii) if the Commonwealth Minister has, in relation to one or more of those applications, given to a body a notice under subsection (1) requiring the body to give further information within a specified period—the last such period to end;

whichever occurs last; and

(b) if the applications are in respect of an invitation to which subsection 203AA(3) applied—in any event before the end of the transition period.

(1) The Commonwealth Minister may give to a body that has made an application under section 203AB a notice requiring the body to give further information relating to the application within a period specified in the notice.

(2) The period specified:

(a) must not begin before the day on which the notice was given; and

(b) must be a period of at least 21 days.

(3) The fact that no further information has been given to the Commonwealth Minister as at the end of the period specified in the notice does not prevent the Commonwealth Minister from determining the application.

(4) The notice must contain a statement setting out the effect of subsection (3).

203AD Recognition of representative bodies

Commonwealth Minister may recognise representative bodies

(1) The Commonwealth Minister may, by written instrument, recognise, as the representative body for an area, an eligible body that has applied under section 203AB to be the representative body for the area if the Commonwealth Minister is satisfied that:

(a) the body will satisfactorily represent persons who hold or may hold native title in the area; and

(b) the body will be able to consult effectively with Aboriginal peoples and Torres Strait Islanders living in the area; and

(d) the body would be able to perform satisfactorily the functions of a representative body.

When recognition takes effect

(2) The recognition of the body as a representative body takes effect on the day specified in the instrument of recognition. However, that day must not precede the day on which Division 3 commences.

Exempt State bodies

(3) The Commonwealth Minister must not recognise an exempt State body unless satisfied that the obligations it would have under this Act, together with its other obligations under the laws of a State, provide an appropriate level of accountability.

Commonwealth Minister not to recognise more than one body for an area

(4) The Commonwealth Minister must not, under this section, recognise a body as the representative body for an area at a particular time if, at that time, there is already a representative body recognised under this section (whether or not the recognition has taken effect) for all or part of that area.

Note: The fact that a representative body has previously been determined under section 202 will not prevent recognition of a body under this section.

Notifying unsuccessful applicants

(5) If the Commonwealth Minister decides not to recognise as the representative body for an area a body that applied for that recognition, the Commonwealth Minister must notify the body, in writing, of the decision and the reasons for the decision.

203AI Matters to which Commonwealth Minister must have regard

Fairness of organisational structures and administrative processes

(1) In considering, for the purposes of making a decision under this Division in relation to a particular area, whether a body:

(a) will satisfactorily represent persons who hold or may hold native title in the area; or

(b) will be able to consult effectively with Aboriginal peoples and Torres Strait Islanders living in the area;

the Commonwealth Minister must take into account whether, in the Commonwealth Minister’s opinion, the body’s organisational structures and administrative processes will operate in a fair manner.

Criteria for assessing fairness

(2) Without limiting the matters to which the Commonwealth Minister may have regard in assessing the fairness of the body’s organisational structures and administrative processes, the Commonwealth Minister must have particular regard to:

(a) the opportunities for the Aboriginal peoples or Torres Strait Islanders for whom it might act to participate in its processes; and

(b) the level of consultation with them involved in its processes; and

(d) its rules or requirements relating to the conduct of its executive officers; and

(e) the nature of its management structures and management processes; and

(f) its procedures for reporting back to persons who hold or may hold native title in the area, and to the Aboriginal peoples or Torres Strait Islanders living in the area.

Commonwealth Minister’s consideration of other matters unaffected

(3) This section does not limit any other matters that the Commonwealth Minister may take into account in making a decision under this Division.

Note: Divisions 3 to 6 of this Part are to be inserted, and will enter into force, at the end of the transition period (see Part 2 of Schedule 3 to the Native Title Amendment Act 1997).

Division 7—Miscellaneous

203FC Transfer of documents and records

Commonwealth Minister may issue directions

(1) The Commonwealth Minister may, by written instrument, issue directions requiring, or relating to, all or any of the following:

(a) a former representative body returning documents and records, relating to the performance of its functions or the exercise of its powers in respect of its former area, to the person or persons who provided them to the body;

(b) the former representative body allowing access to documents and records, relating to the performance of its functions or the exercise of its powers in respect of its former area, by a body that has become the representative body for all or part of the former representative body’s former area;

(i) giving documents and records, relating to the performance of its functions or the exercise of its powers in respect of its former area, to the other representative body, but only with the consent of the owners of the documents and records; and

(ii) giving copies of such documents and records to the other representative body.

Directions take effect on the day on which they are issued.

Bodies must comply with directions

(3) A body to which directions apply must comply with those directions.

Orders by the Federal Court

(4) If a body fails to comply with subsection (3), the Federal Court may, on the application of a person affected by the non-compliance, make such orders as it thinks fit to ensure the body’s compliance.

Definitions

(5) In this section:

former area, in relation to a former representative body, means the area for which the body is no longer a representative body.

former representative body means a body that:

(a) has ceased to be a representative body; or

(b) has ceased to be a representative body for a particular area; or

203FD Liability of executive officers etc.

An executive officer or a member of a representative body is not personally liable to an action or other proceeding for damages in relation to an act done or omitted to be done in good faith:

(a) by the representative body; or

(b) by the person in the capacity of executive officer or member;

in connection with the performance of the representative body’s functions or the exercise of its powers.

203FH Conduct by directors, employees and agents

State of mind of directors, employees or agents of bodies corporate

(1) If, for the purposes of this Part, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show:

(a) that the conduct was engaged in by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; and

(b) that the director, employee or agent had the state of mind.

Conduct of directors, employees or agents of bodies corporate

(2) Any conduct engaged in on behalf of a body corporate by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority is taken, for the purposes of this Part, to have been engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct.

State of mind of employees or agents of persons other than bodies corporate

(3) If, for the purposes of this Part, it is necessary to establish the state of mind of a person other than a body corporate in relation to a particular conduct, it is sufficient to show:

(a) that the conduct was engaged in by an employee or agent of the person within the scope of his or her actual or apparent authority; and

(b) that the employee or agent had the state of mind.

Conduct of employees or agents of persons other than bodies corporate

(4) Any conduct engaged in on behalf of a person other than a body corporate by an employee or agent of the person within the scope of his or her actual or apparent authority is taken, for the purposes of this Part, to have been engaged in also by the person unless the person establishes that the person took reasonable precautions and exercised due diligence to avoid the conduct.

Other persons not to be punished by imprisonment

(5) If:

(a) a person other than a body corporate is convicted of an offence; and

(b) the person would not have been convicted of the offence if subsections (3) and (4) had not been enacted;

the person is not liable to be punished by imprisonment for that offence.

Meaning of state of mind

(6) A reference in subsection (1) or (3) to the state of mind of a person includes a reference to:

(a) the knowledge, intention, opinion, belief or purpose of the person; and

(b) the person’s reasons for the intention, opinion, belief or purpose.

Meaning of director

(7) A reference in this section to a director of a body corporate includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, a State or a Territory.

Failing etc. to engage in conduct

(8) A reference in this section to engaging in conduct includes a reference to failing or refusing to engage in conduct.

12 Section 253 (at the end of the definition of representative Aboriginal/Torres Strait Islander body)

Add “or that is recognised under section 203AD”.

13 Section 253

Insert:

representative body means a representative Aboriginal/Torres Strait Islander body.

Part 2—Later amendments

14 Paragraph 24CG(3)(a)

Omit “paragraph 202(4)(e)”, substitute “paragraph 203BE(1)(b)”.

15 Subparagraph 24CH(2)(d)(i)

Omit “paragraphs 202(8)(a) and (b)”, substitute “paragraphs 203BE(5)(a) and (b)”.

16 Subsection 24CI(1)

Omit “paragraphs 202(8)(a) and (b)”, substitute “paragraphs 203BE(5)(a) and (b)”.

17 Paragraph 24CK(2)(c)

Omit “paragraphs 202(8)(a) and (b)”, substitute “paragraphs 203BE(5)(a) and (b)”.

18 Subparagraph 24EB(5)(b)(i)

Omit “paragraph 202(8)(b)”, substitute “paragraph 203BE(5)(b)”.

18A Subsection 108(1B)

Repeal the subsection, substitute:

Assistance and mediation generally

(1B) The Tribunal has the functions of:

(a) providing assistance, or mediating, in accordance with any provision of this Act; and

(b) entering into agreements as mentioned in subsection 203BK(3) in relation to assistance of the kind referred to in that subsection.

19 Paragraph 190C(4)(a)

Omit “paragraph 202(4)(d)”, substitute “Part 11”.

20 At the end of paragraph 190C(4)(a)

Add:

Note: An application can be certified under section 203BE, or may have been certified under the former paragraph 202(4)(d).

21 Subsections 190C(6) and (7)

Repeal the subsections.

22 Subparagraph 199C(1)(b)(i)

Omit “paragraph 202(8)(b)”, substitute “paragraph 203BE(5)(b)”.

23 Section 201A

Insert:

ATSIC means the Aboriginal and Torres Strait Islander Commission established by the Aboriginal and Torres Strait Islander Commission Act 1989.

native title application means an application under subsection 24DJ(1) or section 61, 69 or 75, and includes an appeal under subsection 169(1).

24 Division 1A of Part 11

Repeal the Division.

25 After section 203AD

Insert:

203AE Extension of areas

The Commonwealth Minister may, by written instrument, extend the area for which a body is the representative body by adding adjoining land or waters to the area if:

(a) there is no representative body for the adjoining land or waters; and

(b) the Commonwealth Minister considers that the adjoining land or waters are not of such significance that invitations should be made under section 203A in respect of them; and

(c) the Commonwealth Minister is satisfied that the body will satisfactorily represent persons who hold or may hold native title in the adjoining land or waters; and

(d) the Commonwealth Minister is satisfied that the body will be able to consult effectively with Aboriginal peoples and Torres Strait Islanders living in the area of the adjoining land or waters; and

(e) the Commonwealth Minister is satisfied that the body will satisfactorily perform its functions in relation to the adjoining land or waters; and

(f) the body has agreed to the adjoining land or waters being added.

203AF Variation of adjoining areas

Applications to vary areas

(1) If the boundary of an area for which a body is the representative body adjoins the boundary of an area for which another body is the representative body, the bodies may jointly apply in writing to the Commonwealth Minister to vary the area for which each body is the representative body. The proposed variations are to relate only to the adjoining boundary.

Consultation prior to applications

(2) Before making an application under subsection (1), the bodies must:

(a) take all reasonable steps to consult the Aboriginal peoples or Torres Strait Islanders who could reasonably be expected to be affected by the proposed variations; and

(b) satisfy themselves that there is broad support for the variations among the persons who hold, or may hold, native title in the area that will be covered by a different representative body as a result of the variations.

Matters to be included in applications

(3) The application must:

(a) include a statement of the steps the bodies took in consulting the Aboriginal peoples or Torres Strait Islanders referred to in paragraph (2)(a); and

(b) briefly set out the grounds on which the bodies are satisfied that there is broad support for the variations among the persons referred to in paragraph (2)(b).

Commonwealth Minister may vary areas

(4) The Commonwealth Minister may, by written instrument, vary the areas for which each body is the representative body in accordance with the application if the Commonwealth Minister is satisfied that, after the variations:

(a) each body will satisfactorily represent the native title holders and persons who may hold native title in the area for which it will, after the variations, be the representative body; and

(b) each body will be able to consult effectively with Aboriginal peoples and Torres Strait Islanders living in the area for which it will, after the variations, be the representative body; and

203AG Reduction of areas

Grounds for reducing the areas of representative bodies

(1) The Commonwealth Minister may, by written instrument, reduce the area for which a body is the representative body by excising a specified part of the area if satisfied that:

(a) the body is not satisfactorily representing native title holders or persons who may hold native title in that part of the area; or

(b) the body is not consulting effectively with Aboriginal peoples and Torres Strait Islanders living in that part of the area; or

Effect on remainder of areas

(2) The Commonwealth Minister must not so reduce the area unless satisfied that, after the reduction, the body:

(a) will satisfactorily represent native title holders or persons who may hold native title in the remainder of the area; and

(b) will be able to consult effectively with Aboriginal peoples and Torres Strait Islanders living in the remainder of the area; and

Notice that reduction of area is being considered

(3) At least 90 days before deciding to reduce the area, the Commonwealth Minister must notify the body that the reduction is being considered. The notice must be in writing and must:

(a) state the reasons why the Minister is considering reducing the area; and

(b) invite the body to make submissions to the Commonwealth Minister, within the period specified in the notice, about whether the area should be reduced.

The period specified must not begin before the day on which the notice was given, and must be a period of at least 90 days.

Consideration of reports etc.

(4) In deciding whether to reduce the area, the Commonwealth Minister may consider the following:

(a) any reports under section 203DF of audits or investigations of the body;

(b) any reports under section 76 of the Aboriginal and Torres Strait Islander Commission Act 1989 in relation to a grant made to the body under section 203C or 203FE of this Act;

(d) any information or documents that ATSIC has given to the Minister under section 203FA in relation to the body.

Commonwealth Minister’s consideration of other matters unaffected

(5) Subsection (4) does not limit any other matters that the Commonwealth Minister may take into account in deciding whether to reduce the area.

Consideration of submissions

(6) In deciding whether to reduce the area, the Commonwealth Minister must consider any submissions made by the body within the period referred to in subsection (3).

Notice of decision

(7) As soon as practicable after deciding whether to reduce the area, the Commonwealth Minister must notify the body, in writing, of:

(a) the decision; and

(b) if the decision is that the area be reduced—the reasons for the decision.

203AH Withdrawal of recognition

Mandatory grounds for withdrawing recognition

(1) The Commonwealth Minister must, by written instrument, withdraw the recognition of a body as the representative body for an area if:

(a) the body has ceased to exist; or

(b) the body makes a written request to the Commonwealth Minister for the recognition to be withdrawn.

However, paragraph (b) only applies if the request was authorised by a meeting of the body open to all its members and convened and conducted in accordance with the procedures governing the convening and conduct of such meetings by the body. The body must include in its request to the Commonwealth Minister evidence that the request was so authorised.

Discretionary grounds for withdrawing recognition

(2) The Commonwealth Minister may, by written instrument, withdraw the recognition of a body as the representative body for an area if satisfied that:

(a) the body:

(i) is not satisfactorily representing the native title holders or persons who may hold native title in the area; or

(ii) is not consulting effectively with Aboriginal peoples and Torres Strait Islanders living in the area; or

(iii) is not satisfactorily performing its functions; and

(b) the body is unlikely to take steps to ensure that, within a reasonable period, none of subparagraphs (a)(i), (ii) and (iii) apply in relation to the body.

Notice that withdrawal of recognition is being considered

(3) At least 90 days before deciding to withdraw the recognition under subsection (2), the Commonwealth Minister must notify the body that withdrawal of the recognition is being considered. The notice must be in writing and must:

(a) state the reasons why the Minister is considering withdrawal of the recognition; and

(b) invite the body to make submissions to the Commonwealth Minister, within the period specified in the notice, about whether the recognition should be withdrawn.

The period specified must not begin before the day on which the notice was given, and must be a period of at least 90 days.

Consideration of reports etc.

(4) In deciding whether to withdraw the recognition under subsection (2), the Commonwealth Minister may consider the following:

(a) any reports under section 203DF of audits or investigations of the body;

(b) any reports under section 76 of the Aboriginal and Torres Strait Islander Commission Act 1989 in relation to a grant made to the body under section 203C or 203FE of this Act;

(d) any information or documents that ATSIC has given to the Minister under section 203FA in relation to the body.

Commonwealth Minister’s consideration of other matters unaffected

(5) Subsection (4) does not limit any other matters that the Commonwealth Minister may take into account in making a decision under subsection (2).

Consideration of submissions

(6) In deciding whether to withdraw the recognition under subsection (2), the Commonwealth Minister must consider any submissions made by the body within the period referred to in subsection (3).

Notice of decision

(7) As soon as practicable after deciding whether to withdraw the recognition under subsection (2), the Commonwealth Minister must notify the body, in writing, of:

(a) the decision; and

(b) if the decision is that the recognition be withdrawn—the reasons for the decision.

26 Paragraph 203AI(1)(a)

After “will satisfactorily represent”, insert “, or is not satisfactorily representing,”.

27 Paragraph 203AI(1)(b)

After “will be able to consult effectively”, insert “, or is not consulting effectively,”.

28 Subsection 203AI(1)

After “operate”, insert “, or are operating,”.

29 Subsection 203AI(3) (note)

Repeal the note.

30 After Division 2 of Part 11

Insert:

Division 3—Functions and powers of representative bodies

203B Functions of representative bodies

General

(1) A representative body has the following functions:

(a) the facilitation and assistance functions referred to in section 203BB;

(b) the certification functions referred to in section 203BE;

(d) the notification functions referred to in section 203BG;

(e) the agreement making function referred to in section 203BH;

(f) the internal review functions referred to in section 203BI;

(g) the functions referred to in section 203BJ and such other functions as are conferred on representative bodies by this Act.

Other laws may confer functions

(2) The functions conferred on a representative body by this Act are in addition to, and not instead of, any functions conferred on the representative body (whether in its capacity as a representative body or otherwise) by or under:

(a) any other law of the Commonwealth; or

(b) a law of a State or Territory.

Representative bodies to perform functions

(3) Except as mentioned in section 203BB, 203BD or 203BK, a representative body must not enter into an arrangement with another person under which the person is to perform the functions of the representative body.

Priorities of representative bodies

(4) A representative body:

(a) must from time to time determine the priorities it will give to performing its functions under this Part; and

(b) may allocate resources in the way it thinks fit so as to be able to perform its functions efficiently;

but must give priority to the protection of the interests of native title holders.

203BA How functions of representative bodies are to be performed

Functions to be performed in a timely manner

(1) A representative body must use its best efforts to perform its functions in a timely manner, particularly in respect of matters affected by:

(a) the time limits under this Act; or

(b) time limits, under another law of the Commonwealth or a law of a State or Territory, that are relevant to the performance of its functions.

Maintenance of organisational structures and processes

(2) A representative body must perform its functions in a manner that:

(a) maintains organisational structures and administrative processes that promote the satisfactory representation by the body of native title holders and persons who may hold native title in the area for which it is the representative body; and

(b) maintains organisational structures and administrative processes that promote effective consultation with Aboriginal peoples and Torres Strait Islanders living in the area for which it is the representative body; and

(c) ensures that the structures and processes operate in a fair manner, having particular regard to the matters set out in paragraphs 203AI(2)(a) to (f).

203BB Facilitation and assistance functions

General

(1) The facilitation and assistance functions of a representative body are:

(a) to research and prepare native title applications, and to facilitate research into, preparation of and making of native title applications; and

(b) to assist registered native title bodies corporate, native title holders and persons who may hold native title (including by representing them or facilitating their representation) in consultations, mediations, negotiations and proceedings relating to the following:

(i) native title applications;

(ii) future acts;

(iii) indigenous land use agreements or other agreements in relation to native title;

(iv) rights of access conferred under this Act or otherwise;

(v) any other matters relating to native title or to the operation of this Act.

Facilitation and assistance functions only exercisable on request

(2) A representative body must not perform its facilitation and assistance functions in relation to a particular matter unless it is requested to do so.

Facilitation and assistance functions only exercisable within a representative body’s area

(3) A representative body can only perform its facilitation and assistance functions in relation to a matter that relates to land or waters:

(a) that are wholly within the area for which the body is the representative body; or

(b) that are partly within that area.

If paragraph (b) applies, the body must not perform the functions for the part of the land or waters that is outside that area except in accordance with section 203BD.

Consent required if matters relate to same land or waters

(4) If:

(a) a registered native title body corporate or a person who holds or may hold native title requests that a representative body represent the body or the person (the new body or person) in relation to a particular matter that relates to particular land or waters; and

(b) the representative body is already representing another body or person (the original body or person) in relation to one or more other matters that relate wholly or partly to that land or those waters;

the representative body must not represent the new body or person unless the representative body has obtained consent, from the original body or person, for the representative body also to represent the new body or person to the extent that the other matters relate to the land or waters.

“Briefing out” matters that relate to the same land or waters

(5) Subsection (4) does not prevent a representative body from facilitating the representation of a body or person, in relation to a particular matter, by entering into an arrangement with another person under which the other person represents the body or person in relation to that matter.

Definition

(6) In this section and section 203BC:

matter means a native title application, or a consultation, mediation, negotiation or proceeding of a kind referred to in paragraph (1)(b).

203BC How facilitation and assistance functions are to be performed

General

(1) In performing its facilitation and assistance functions in relation to any matter, a representative body must:

(a) consult with, and have regard to the interests of, any registered native title bodies corporate, native title holders or persons who may hold native title who are affected by the matter; and

(b) if the matter involves the representative body representing such bodies corporate, native title holders or persons—be satisfied they understand and consent to any general course of action that the representative body takes on their behalf in relation to the matter.

Consent of native title holders etc.

(2) For the purposes of paragraph (1)(b), a native title holder or a person who may hold native title is taken to have consented to action if:

(a) where there is a process of decision-making that, under the traditional laws and customs of the group to which he or she belongs, must be complied with in relation to giving consent of that kind—the consent was given in accordance with that process; or

(b) where there is no such process of decision-making—the consent was given in accordance with a process of decision-making agreed to and adopted by the members of the group to which he or she belongs in relation to giving the consent or giving consent of that kind.

Streamlining of applications process

(3) In performing its facilitation and assistance functions in relation to an application under section 61 in relation to land or waters wholly or partly within the area for which the body is the representative body, the representative body must:

(a) act in a way that promotes an orderly, efficient and cost-effective process for making such applications; and

(b) if the land or waters covered by the application are wholly or partly covered by one or more applications (including proposed applications) of which the representative body is aware—make all reasonable efforts to minimise the number of applications covering the land or waters.

203BD Matters that overlap different representative body areas

If:

(a) a native title application covers land or waters partly within the area for which the body is the representative bod

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