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NATIVE TITLE ACT 1993 - SECT 87A

Power of Federal Court to make determination for part of an area

Application

             (1)  This section applies if:

                     (a)  there is a proceeding in relation to an application for a determination of native title; and

                     (b)  at any stage of the proceeding after the end of the period specified in the notice given under section 66, agreement is reached on a proposed determination of native title in relation to an area (the determination area ) included in the area covered by the application; and

                     (c)  all of the following persons are parties to the agreement:

                              (i)  the applicant;

                             (ii)  each registered native title claimant in relation to any part of the determination area who is a party to the proceeding at the time the agreement is made;

                            (iv)  each representative Aboriginal/Torres Strait Islander body for any part of the determination area who is a party to the proceeding at the time the agreement is made;

                             (v)  each person who holds an interest in relation to land or waters in any part of the determination area at the time the agreement is made, and who is a party to the proceeding at the time the agreement is made;

                            (vi)  each person who claims to hold native title in relation to land or waters in the determination area and who is a party to the proceeding at the time the agreement is made;

                           (vii)  the Commonwealth Minister, if the Commonwealth Minister is a party to the proceeding at the time the agreement is made or has intervened in the proceeding at any time before the agreement is made;

                          (viii)  if any part of the determination area is within the jurisdictional limits of a State or Territory, the State or Territory Minister for the State or Territory if the State or Territory Minister is a party to the proceeding at the time the agreement is made;

                            (ix)  any local government body for any part of the determination area who is a party to the proceeding at the time the agreement is made; and

                     (d)  the terms of the proposed determination are in writing and signed by or on behalf of each of those parties.

Proposed determination may be filed with the Court

             (2)  A party to the agreement may file a copy of the terms of the proposed determination of native title with the Federal Court.

Certain parties to the proceeding to be given notice

             (3)  The Federal Court Chief Executive Officer must give notice to the other parties to the proceeding that the proposed determination of native title has been filed with the Court.

Orders may be made

             (4)  The Court may make an order in, or consistent with, the terms of the proposed determination of native title without holding a hearing, or if a hearing has started, without completing the hearing, if the Court considers that:

                     (a)  an order in, or consistent with, the terms of the proposed determination would be within its power; and

                     (b)  it would be appropriate to do so.

Note:          As the Court's order involves making a determination of native title, the order needs to comply with section 94A (which deals with the requirements of native title determination orders).

             (5)  Without limiting subsection (4), if the Court makes an order under that subsection, the Court may also make an order under this subsection that gives effect to terms of the agreement that involve matters other than native title if the Court considers that:

                     (a)  the order would be within its power; and

                     (b)  it would be appropriate to do so.

             (6)  The jurisdiction conferred on the Court by this Act extends to making an order under subsection (5).

             (7)  The regulations may specify the kinds of matters other than native title that an order under subsection (5) may give effect to.

Objections

             (8)  In considering whether to make an order under subsection (4) or (5), the Court must take into account any objections made by the other parties to the proceedings.

Agreed statement of facts

             (9)  If some or all of the parties to the proceeding have reached agreement on a statement of facts, one of those parties may file a copy of the statement with the Court.

           (10)  Within 7 days after a statement of facts agreed to by some of the parties to the proceeding is filed, the Federal Court Chief Executive Officer must give notice to the other parties to the proceeding that the statement has been filed with the Court.

           (11)  In considering whether to make an order under subsection (4) or (5), the Court may accept a statement of facts that has been agreed to by some or all of the parties to the proceedings but only if those parties include:

                     (a)  the applicant; and

                     (b)  the party that the Court considers was the principal government respondent in relation to the proceedings at the time the agreement was reached.

           (12)  In considering whether to accept under subsection (11) a statement of facts agreed to by some of the parties to the proceedings, the Court must take into account any objections that are made by the other parties to the proceedings within 21 days after the notice is given under subsection (10).



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