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NATIVE TITLE ACT 1993 - SECT 190F

If the claim cannot be registered--review by Federal Court

Applicant may apply to Federal Court for review

             (1)  If the Registrar gives the applicant a notice under subsection 190D(1), the applicant may apply to the Federal Court for a review of the Registrar's decision not to accept the claim, provided the NNTT is not reconsidering the claim under section 190E at the time the application is made.

Federal Court has jurisdiction

             (2)  The Court has jurisdiction to hear and determine an application made to it under subsection (1).

Court order where physical connection test failed

             (3)  If, on an application under subsection (1) in a case to which subsection 190D(2) applies, the Court is satisfied that:

                     (a)  prima facie, at least some of the native title rights and interests claimed in the application can be established; and

                     (b)  at some time in his or her lifetime, at least one parent of one member of the native title claim group had a traditional physical connection with any part of the land or waters and would reasonably have been expected to have maintained that connection 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;

the Court may order the Registrar to accept the claim for registration.

Opportunity to be heard

             (4)  Before making an order under subsection (3), the Court must give to any person who is a party to the proceedings in the Court under Part 4 in relation to the application an opportunity to be heard in relation to the making of the order.

Where no application for review, or Court does not make order under subsection (4) on review

             (5)  Subsection (6) applies in a case where:

                     (a)  the Registrar does not accept the claim for registration either because, in the opinion of the Registrar or, if the claim is reconsidered under section 190E, of the member of the NNTT reconsidering the claim:

                              (i)  it does not satisfy all of the conditions in section 190B; or

                             (ii)  it is not possible to determine whether all of the conditions in section 190B have been satisfied because of a failure to satisfy section 190C; and

                     (b)  the Court is satisfied that the avenues for:

                              (i)  the reconsideration under section 190E of the Registrar's decision; and

                             (ii)  the review under this section of the Registrar's decision; and

                            (iii)  the review of orders made in the determination of an application under this section; and

                            (iv)  the review of the Registrar's decision under any other law;

                            have all been exhausted without the registration of the claim.

             (6)  The Court may, either on the application of a party or on its own motion, dismiss the application in which the claim was made (the application in issue ) if:

                     (a)  the Court is satisfied that the application in issue has not been amended since consideration by the Registrar, and is not likely to be amended in a way that would lead to a different outcome once considered by the Registrar; and

                     (b)  in the opinion of the Court, there is no other reason why the application in issue should not be dismissed.



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