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NATIVE TITLE ACT 1993 - SECT 190B

Registration: conditions about merits of the claim

             (1)  This section contains the conditions mentioned in subparagraph 190A(6)(b)(i).

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 on which it is asserted that the native title rights and interests claimed exist is sufficient to support the assertion. In particular, the factual basis must support the following assertions:

                     (a)  that the native title claim group have, and the predecessors of those persons had, an association with the area; and

                     (b)  that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests; and

                     (c)  that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs.

Prima facie case

             (6)  The Registrar must consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established.

Note:          If the claim is accepted for registration, the Registrar must, under paragraph 186(1)(g), enter on the Register of Native Title Claims details of only those claimed native title rights and interests that can, prima facie, be established. Only those rights and interests are taken into account for the purposes of subsection 31(2) (which deals with negotiation in good faith in a "right to negotiate" process) and subsection 39(1) (which deals with criteria for making arbitral body determinations in a "right to negotiate" process).

Physical connection

             (7)  The Registrar must be satisfied that at least one member of the native title claim group:

                     (a)  currently has or previously had a traditional physical connection with any part of the land or waters covered by the application; or

                     (b)  previously had and would reasonably have been expected currently to have a traditional physical connection with any part of the land or waters but for things done (other than the creation of an interest in relation to land or waters) by:

                              (i)  the Crown in any capacity; or

                             (ii)  a statutory authority of the Crown in any capacity; or

                            (iii)  any holder of a lease over any of the land or waters, or any person acting on behalf of such a holder of a lease.

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.

No extinguishment etc. of claimed native title

             (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 wholly 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; or

                     (c)  in any case--the native title rights and interests claimed have otherwise been extinguished (except to the extent that the extinguishment is required to be disregarded under subsection 47(2), 47A(2) or 47B(2)).



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