Save Search

Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document

Native Title Amendment Bill 1997 [No. 2]

A message from the House of Representatives was reported as follows:

Message no. 659, dated 3 July 1998-Native Title Amendment Bill 1997

[No. 2]-Agreeing to certain amendments and disagreeing to certain

other amendments made by the Senate, and making amendments to the

bill.

Ordered, on the motion of the Special Minister of State (Senator

Minchin), that the message be considered in committee of the whole

immediately.

The Senate resolved itself into committee for the consideration of the

message.

In the committee

Message read.

AMENDMENTS MADE BY THE SENATE TO WHICH THE HOUSE OF

REPRESENTATIVES HAS DISAGREED

RACIAL DISCRIMINATION ACT

OPP (RN42)

Schedule 1, item 3, page 5 (lines 4 and 5), omit the item, substitute:

3 SECTION 7

Repeal the section, substitute:

7 RELATIONSHIP WITH RACIAL DISCRIMINATION ACT

(1) This Act is intended to be read and construed subject to the

provisions of the Racial Discrimination Act 1975.

(2) Subsection (1) does not affect the validation of past acts or

intermediate period acts by or in accordance with this Act.

Note: The provisions of the Racial Discrimination Act 1975

apply to the performance of functions and exercise of

powers conferred by or authorised by this Act. To

construe this Act, and thereby to determine its

operation, ambiguous terms should be construed

consistently with the Racial Discrimination Act 1975 if

that construction would remove ambiguity.

CONFIRMATION

GOVT (3)

Schedule 1, item 9, page 14 (lines 23 to 28), omit subsection (9),

substitute:

Exclusion of acts benefiting Aboriginal peoples or Torres

Strait Islanders

(9) An act is not a PREVIOUS EXCLUSIVE POSSESSION 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 expressly for the benefit of, or to

or in a person to hold on trust expressly 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.

Note: The expression ABORIGINAL PEOPLES is defined in section

253.

Exclusion of national parks etc.

(9A) An act is not a PREVIOUS EXCLUSIVE POSSESSION ACT if the grant

or vesting concerned involves the establishment of an area,

such as a national, State or Territory park, for the purpose

of preserving the natural environment of the area.

Effect of exclusions

(9B) To avoid doubt, the fact that an act is, because of any of the

previous subsections, not a previous exclusive possession act

does not imply that the act is not valid.

GOVT (9)

Schedule 1, item 49, page 140 (line 24), omit paragraph 249C(1)(a),

substitute:

(a) anything set out in Schedule 1, other than:

(i) a mining lease; or

(ii) an interest created by or under legislation that creates interests

only for the benefit of Aboriginal peoples or Torres

Strait Islanders; or

(iii) an interest created expressly for the benefit of, or held on trust

expressly for the benefit of, Aboriginal peoples or

Torres Strait Islanders; or

(iv) any other interest created in relation to particular land or waters,

if at the time an interest covered by subparagraph

(ii) or (iii) is in effect in relation to the land or

waters; or

OPP (N5)

Schedule 1, item 9, page 14 (after line 28), after subsection (9), insert:

(9B) An act is not a PREVIOUS EXCLUSIVE POSSESSION ACT if it is an act

done pursuant to a law of the Commonwealth, a State or

Territory which provides that it does not extinguish

native title rights or interests.

OPP (N10)

.

Schedule 1, item 49, page 140 (line 27), at the end of subsection (1),

add:

; or (c) but not any interest otherwise excluded from the definition of a

previous exclusive possession act.

OPP (N3)

Schedule 1, item 9, page 14 (after line 28), after subsection (9), insert:

(9A) An act is not a PREVIOUS EXCLUSIVE POSSESSION ACT if it is:

(a) the grant of an interest in land from the Crown, or a statutory

authority, to the Crown in any capacity, or a statutory

authority; or

(b) the creation or vesting of an interest in land in the Crown in any

capacity, or a statutory authority;

, unlessexcept, or until, the land is put to residential,

agricultural or commercial uses, which would otherwise

extinguish native title rights and interests.; or

OPP (RN2)

Schedule 1, item 9, page 14 (after line 31), at the end of section 23B,

add:

(11) Notwithstanding anything else in this Act, native title rights

and interests, extinguishment of which is confirmed by this

Division, may, if not otherwise extinguished, lost or

abandoned, revive upon the cessation of the interest

(including any valid renewal or extension of the interest)

created by the previous exclusive possession act.

INDIGENOUS LAND USE AGREEMENTS

GOVT (19)

Schedule 1, item 9, page 45 (after line 5), after section 24EB, insert:

24EBA VALIDATING PREVIOUS FUTURE ACTS COVERED BY INDIGENOUS LAND USE

AGREEMENTS

Coverage of section

(1) The consequences set out in this section apply if:

(a) details are on the Register of Indigenous Land Use Agreements of an

agreement that includes a statement to the effect that the

parties agree to:

(i) the validating of a particular future act (other than an intermediate

period act), or future acts (other than intermediate

period acts) included in classes, that have already

been done invalidly; or

(ii) the validating, subject to conditions, of a particular future act

(other than an intermediate period act), or of future

acts (other than intermediate period acts) included in

classes, that have already been done invalidly; and

Note: Intermediate period acts are or can be validated only

under Division 2A.

(b) whichever of the Commonwealth, the State or the Territory to which

the future act or class of future acts is attributable is

a party to the agreement; and

(c) where, whether under the agreement or otherwise, a person other than

the Crown in right of the Commonwealth, a State or a

Territory is or may become liable to pay compensation in

relation to the future act or class of future acts-that

person is a party to the agreement.

Commonwealth acts valid

(2) If the act or class of acts is attributable to the

Commonwealth, the act or class of acts is valid, and is taken

always to have been valid.

State or Territory laws may validate their acts

(3) If the act or class of acts is attributable to a State or

Territory, a law of the State or the Territory may provide

that the act or class of acts is valid, and is taken always to

have been valid. The law may do so by applying to all acts,

to classes of acts, or to particular acts, in respect of which

the requirements of subsection (1) are or become satisfied.

Non-extinguishment principle

(4) If subsection (2) applies or a law makes provision in

accordance with subsection (3), the non-extinguishment

principle applies to the act or class of acts unless:

(a) the act or class of acts is the surrender of native title; and

(b) the agreement includes a statement to the effect that the surrender

is intended to have extinguished the native title rights

and interests.

Compensation consequences

(5) If subsection (2) applies or a law makes provision in

accordance with subsection (3), the consequences set out in

subsection 24EB(4), (5) or (6), and the consequences set out

in subsection 24EB(7), apply to the act or to each of the acts

in the class.

GOVT (12)

Schedule 1, item 9, page 22 (after line 21), after paragraph (a), insert:

(aa) particular future acts (other than intermediate period acts), or

future acts (other than intermediate period acts) included

in classes, that have already been done;

Note: Intermediate period acts are or can be validated only

under Division 2A.

GOVT (14)

Schedule 1, item 9, page 26 (after line 6), after paragraph (a), insert:

(aa) particular future acts (other than intermediate period acts), or

future acts (other than intermediate period acts) included

in classes, that have already been done;

Note: Intermediate period acts are or can be validated only

under Division 2A.

GOVT (17)

Schedule 1, item 9, page 35 (after line 14), after paragraph (a), insert:

(aa) particular future acts (other than intermediate period acts), or

future acts (other than intermediate period acts) included

in classes, that have already been done;

Note: Intermediate period acts are or can be validated only

under Division 2A.

DEMS-GWA (163)

(141) Schedule 1, item 30, page 122 (line 33), omit "24EA(1)", substitute

"23ZJ(1)".

(142) Schedule 1, item 30, page 122 (line 34), omit "24EB(1)(b)", substitute

"23ZK(1)(b)".

Schedule 1, item 30, page 131 (after line 10), at the end of section 199C,

add:

(4) The Federal Court must not make an order under subsection (2)

unless it is satisfied that, if the party referred to in

subsection (3) is one of the native title holders, authority

to enter into the agreement would not have been given but for

the fraud, undue influence or duress.

(5) If the Federal Court makes an order under subsection (2), the

Court may also grant further or ancillary relief against any

person involved in the fraud, undue influence or duress for

the purpose of compensating any party to the agreement who has

suffered loss as a result of the order to remove details of

the agreement from the Register.

OPP (N46)

Schedule 1, page 6 (after line 10), after item 8, insert:

8A AT THE END OF SECTION 15

Add:

(3) Notwithstanding subsection (1), if an indigenous land use

agreement to which a State or Territory is a party is

registered and makes provision in relation to the consequences

of a past act validated under this Division, the provision has

effect from the time at which the agreement is registered.

OPP (N47)

Schedule 1, item 9, page 8 (after line 3), at the end of section 22B, add:

(2) Notwithstanding subsection (1), if an indigenous land use

agreement to which a State or Territory is a party is

registered and makes provision in relation to the consequences

of an intermediate period act validated under this Division,

the provision has effect from the time at which the agreement

is registered.

OPP (N11) [AMT TO GOVT (12)]

[as numbered in 30/3/98 draft, timed 5.46 pm]Paragraph 24BB(aa), after

"other than" (wherever occurring), insert "the validation of".

OPP (N12)

Schedule 1, item 9, page 22 (after line 31)Government amendment (13), after

paragraph 24BB(ea), insert:

(ebb) the consequences of any act with respect to which an agreement can

be made (other than the validation of past acts or

intermediate period acts);

OPP (N13) [AMT TO GOVT (14)]

Paragraph 24CB(aa), after "other than" (wherever occurring), insert "the

validation of".

OPP (N14)

Schedule 1, item 9, page 26 (after line 16)Government amendment (15), after

paragraph 24CB(ea), insert:

(ebb) the consequences of any act with respect to which an agreement can

be made (other than the validation of past acts or

intermediate period acts);

OPP (N15) [AMT TO GOVT (17)]

Paragraph 24DB(aa), after "other than" (wherever occurring), insert "the

validation of".

OPP (N16)

Schedule 1, item 9, page 35 (after line 23)Government amendment (18), after

paragraph 24DB(ea), insert:

(ebb) the consequences of any act with respect to which an agreement can

be made (other than the validation of past acts or

intermediate period acts);

DEMS-GWA (20)

Schedule 1, item 9, page 22 (lines 19 to 21), omit "future" (wherever

occurring).

DEMS-GWA (21)

Schedule 1, item 9, page 23 (lines 3 and 4), omit "a future act or class of

future act" (wherever occurring), substitute "an act or class of

acts".

DEMS-GWA (22)

Schedule 1, item 9, page 23 (line 7), omit "a future act", substitute "an

act".

DEMS-GWA (25)

SUBDIVISION C-INDIGENOUS LAND USE AGREEMENTS (AREA AGREEMENTS)

23K INDIGENOUS LAND USE AGREEMENTS (AREA AGREEMENTS)

An agreement meeting the requirements of sections 23L to 23O is an

INDIGENOUS LAND USE AGREEMENT.

Note: Subdivisions B and D provide for other kinds of indigenous

land use agreements.

23L 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, of particular acts, or

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;

(c) the relationship between native title rights and interests and other

rights and interests in relation to 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 1: If the agreement involves consent to the doing of an act

or class of acts, or the doing of an act or class of acts

subject to conditions, it must include a statement to that

effect: see paragraph 23ZK(1)(b).

Note 2: If an 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 23ZK(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 23ZK(1)(d).

23M 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.

23N PARTIES TO AREA AGREEMENTS

Native title group to be parties

(1) All persons in the native title group (see subsection (2) or

(3)) in relation to the area must be parties to the

agreement.

Native title group where registered claimant or body

corporate

(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

23ZJ(1)(b).

(b) all registered native title bodies corporate in relation to land or

waters in the area.

Native title group where no registered claimant or body

corporate

(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;

(b) any representative Aboriginal/Torres Strait Islander body for the

area.

Other native title parties

(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;

(b) any representative Aboriginal/Torres Strait Islander body for the

area.

Government parties

(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

23L(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.

Other parties

(6) Any other person may be a party to the agreement. Schedule 1, item 9,

page 26 (line 5), omit "future" (wherever occurring).

DEMS-GWA (26)

Schedule 1, item 9, page 26 (lines 23 and 24), omit "a future act or class

of future act" (wherever occurring), substitute "an act or class of

acts".

DEMS-GWA (27)

Schedule 1, item 9, page 26 (line 27), omit "a future act", substitute "an

act".

DEMS-GWA (23)

Schedule 1, item 9, page 23 (after line 30), at the end of section 24BD,

add:

(4) If no representative body for the area (or a part of the area)

is a party to the agreement, the registered native title

bodies corporate must consult with such a representative body

as to the terms of the agreement before it enters into the

agreement.

DEMS-GWA (24)

23F 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).

Consideration may be freehold grant or other interests

(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.

23G 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.

23H APPLICATION FOR REGISTRATION OF BODY CORPORATE AGREEMENTS

Application

(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.

Things accompanying application

(2) The application must be accompanied by a copy of the agreement

and any other prescribed documents or information.

23I NOTICE OF BODY CORPORATE AGREEMENTS

(1) The Registrar must:

(a) give notice of the agreement, in accordance with subsection (2), to

any of the following who are not parties to the

agreement:

(i) the Commonwealth Minister;

(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;

(iv) any local government 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).

Content of notice

(2) The notice under paragraph (1)(a) or (b) must:

(a) describe the area covered by the agreement; and

(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 23ZK(1)(b), (c) or (d).

23J REGISTRATION OF BODY CORPORATE AGREEMENTS

(1) Unless any of the parties to the agreement advises the Registrar, within

1 month after the Registrar gives notice under section 23I, 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. Schedule 1, item 9, page 25 (after line

24), at the end of section 24BI, add:

(2) The Registrar must not register the agreement if a

representative body for the area notifies the Registrar,

within that period of 1 month, that no representative body was

consulted in accordance with subsection 24BD(4).

DEMS-GWA (28)

Schedule 1, item 9, page 28 (after line 11), at the end of section 24CD,

add:

(7) If no representative body for the area (or a part of the area)

is a party to the agreement, the native title group must

consult with such a representative body as to the terms of the

agreement before it enters into the agreement.

DEMS-GWA (29)

23O 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).

Consideration may be freehold grant or other interests

(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.

23P 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.

23Q APPLICATION FOR REGISTRATION OF AREA AGREEMENTS

Application

(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.

Things accompanying application

(2) The application must be accompanied by a copy of the agreement and any

other prescribed documents or information. Schedule 1, item 9, page

29 (lines 4 to 22), omit subsection (3), substitute:

Certificate or statement to accompany application

(3) Also:

(a) the application must the application must have been certified by all

representative Aboriginal/Torres Strait Islander bodies

for the area in performing their functions under section

203BE in relation to the area; and

(b) the certificate must 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) each of the persons so identified has had a reasonable opportunity to

participate in a decision to authorise the making of

the agreement;

(iii) there was consultation with a representative body as to the terms of

the agreement in accordance with subsection 24CD(7).

Note: The word AUTHORISE is defined in section 251A.

DEMS-GWA (30)

23R NOTICE OF AREA AGREEMENTS ETC.

(1) The Registrar must:

(a) give notice of the agreement, in accordance with subsection (2), to

any of the following who are not parties to the

agreement:

(i) the Commonwealth Minister;

(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;

(iv) any local government 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).

Content of notice

(2) The notice under paragraph (1)(a) or (b) must:

(a) describe the area covered by the agreement; and

(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 23ZK(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

23Q(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

203BE(5)(a), (b) and (c) were not satisfied in

relation to the certification; or

(ii) if the application contained a statement as mentioned in paragraph

23Q(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.

Notice to specify day

(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.

Which days may be specified

(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.

23S OBJECTIONS AGAINST REGISTRATION

Making objections

(1) If the application was certified by representative

Aboriginal/Torres Strait Islander bodies for the area (see

paragraph 23Q(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 203BE(5)(a), (b) and (c) were not

satisfied in relation to the certification.

Assistance in withdrawing objection

(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. Schedule 1,

item 9, page 30 (line 23), omit "paragraphs 202(8)(a) and (b)",

substitute "paragraphs 203BE(5)(a), (b) and (c)".

DEMS-GWA (31)

Schedule 1, item 9, page 31 (line 18), omit "paragraphs 202(8)(a) and (b)",

substitute "paragraphs 203BE(5)(a), (b) and (c)".

DEMS-GWA (32A)

Schedule 1, item 9, page 32 (line 23), omit "paragraphs 202(8)(a) and (b)",

substitute "paragraphs 203BE(5)(a), (b) and (c)".

PRIMARY PRODUCTION

GOVT (26)

Schedule 1, page 145 (after line 32), after item 57, insert:

57A SECTION 253 (PARAGRAPH (C) OF THE DEFINITION OF MINE)

Repeal the paragraph, substitute:

(c) quarry;

but does not include extract, obtain or remove sand, gravel,

rocks or soil from the natural surface of land, or of the bed

beneath waters, for a purpose other than:

(d) extracting, producing or refining minerals from the sand, gravel,

rocks or soil; or

(e) processing the sand, gravel, rocks or soil by non-mechanical means.

OPP (N19) [AMT TO GOVT (26)]

Schedule 1, item 57A, after paragraph (c) of the definition of MINE, omit

after "but", insertsubstitute "but, for the purposes of section

24GE,".

HARRADINE (N1)/OPP (N17)

Schedule 1, item 9, page 49 (line 26), at the end of subsection (1), add:

; and (e) the future act could lawfully have been done in relation to the

lease prior to 23 December 1996 if any native title in

relation to the land and waters covered by the lease had

not then existed.

HARRADINE (N2)/OPP (N18)

Schedule 1, item 9, page 52 (line 16), at the end of subsection (1), add:

; and (d) prior to 23 December 1996, the activity could have been carried

out in the area covered by the lease because:

(i) the terms of the lease or the legislation governing the lease permitted

or required the activity; or

(ii) if an act (such as a permit, licence or authority) was required, that

act could lawfully have been done in relation to that

activity prior to 23 December 1996.

HARRADINE (R9)

Schedule 1, item 9, page 53 (line 31), at the end of subsection (1), add:

; and (f) the future act takes place on land which has not been the

subject of an approved determination of native title in

respect of which the native title rights and interests

include a right to exclusive possession of the land.

RENEWALS

GOVT (29)

Schedule 1, item 9, page 60 (line 17), at the end of paragraph (c), add

"(other than a mining lease)".

OPP (RN27)

2 Schedule 1, item 9, page 87 (line 25) to page 88 (line 5), omit subsection

(1), substitute:

(1) This Subdivision does not apply to an act consisting of the

creation of a right to mine if:

(a) the creation of the right is done by:

(i) the renewal; or

(ii) the extension of the term;

of an earlier right to mine; and

(b) the earlier right:

(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

(c) the area to which the earlier right relates is not extended; and

(d) the term of the renewal or extension is not longer than the term of

the earlier right; and

(e) the renewal or extension:

(i) does not confer on the grantee rights to do things which will have a

greater impact on the land or waters concerned than

the rights conferred by the earlier right; and

(ii) without limiting subparagraph (i), does not confer a right to mine

minerals which were not included in the earlier

grant.

Note: For compensation in relation to acts of this class,

see Subdivision I.

OPP (N21)

Schedule 1, item 9, page 58 (line 28), after "authority", insert ", other

than one which permits mining,".

OPP (N22)

Schedule 1, item 9, page 59 (lines 24 to 26), omit paragraph (e).

OPP (RN23)

Schedule 1, item 9, page 59 (after line 26), after subsection (1), insert:

(1A) A future act is also a PERMISSIBLE LEASE ETC. RENEWAL if:

(a) the original lease etc. was the creation of a right to mine; and

(b) the future act is a renewal or extension of the original lease etc.;

and

(c) either:

(i) the original lease etc. was granted on or before 23 December 1996;

or

(ii) the grant of the original lease etc. was a permissible lease etc.

renewal or a pre-existing right-based act; and

(d) the future act does not:

(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; or

(iv) confer on the grantee rights to do things which will have a greater

impact on the land or waters concerned than the rights

conferred by the earlier right; or

(v) confer a right to mine minerals which were not included in the earlier

grant; and

(e) the area to which the original lease etc. relates is not extended;

and

(f) the term of the renewal or extension is not longer than the term of

the original lease etc.; and

(g) 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 or extended lease

either contains, or is subject to, the same reservation or

condition.

HARRADINE (14)

Schedule 1, item 9, page 60 (lines 14 to 17), omit paragraphs (4)(b) and

(c).

SERVICES TO THE PUBLIC

OPP (RR101)

Schedule 1, item 9, page 67 (after line 27), at the end of section 24KA,

add:

(9) If there are registered claimants in relation to the land or

waters concerned, they have the procedural rights referred to

in subsection (7).

(10) If there is no registered claimant in relation to the land or

waters concerned, the representative body, in addition to any

procedural right conferred on it by any other law, has a right

to comment on the act before it is done.

OPP (93)

Schedule 1, item 9, page 65 (line 3), omit "construction", substitute

"reconstruction (but not so as to increase significantly the area of

land used)".

OPP (94)

Schedule 1, item 9, page 65 (line 7), omit "construction", substitute

"reconstruction (but not so as to increase significantly the area of

land used)".

OPP (95)/DEMS-GWA (87)

Schedule 1, item 9, page 65 (lines 13 to 18), omit paragraph (1)(c),

substitute:

(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 the land or waters in the

vicinity of the thing, except for reasons of health and

safety; and

DEMS-GWA (92)/OPP (100)

Schedule 1, item 9, page 67 (lines 2 to 12), omit subsection (7),

substitute:

(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 ordinary title covering any land concerned

or covering the land adjoining, or surrounding, any waters

concerned.

FREEHOLD TEST AND OFFSHORE

OPP (RR107)

Schedule 1, item 9, page 73 (after line 33), at the end of section 24MD,

add:

(8) If there are registered claimants in relation to the land or

waters concerned, they have the procedural rights referred to

in subsection (6).

(9) If there is no registered claimant in relation to the land or

waters concerned, the representative body, in addition to any

procedural right conferred on it by any other law, has a right

to comment on the act before it is done.

OPP (RR110)

Schedule 1, item 9, page 76 (after line 26), at the end of section 24NA,

add:

(10) If there are registered claimants in relation to the land or

waters concerned, they have the procedural rights referred to

in subsection (8).

(11) If there is no registered claimant in relation to the land or

waters concerned, the representative body, in addition to any

procedural right conferred on it by any other law, has a right

to comment on the act before it is done.

HARRADINE (18)

Schedule 1, item 9, page 71 (line 4), omit "(whether compulsorily or

otherwise)", substitute "compulsorily".

HARRADINE (21)

Schedule 1, item 9, page 74 (line 24), omit "(whether compulsorily or

otherwise)", substitute "compulsorily".

RIGHT TO NEGOTIATE

GOVT (44)

Schedule 1, item 9, page 99 (after line 23), at the end of section 35,

add:

Negotiations for an agreement

(3) Even though the application has been made, the negotiation

parties may continue to negotiate with a view to obtaining an

agreement of the kind mentioned in paragraph 31(1)(b) before a

determination in relation to the act is made under section

34A, 36A or 38. If they make such an agreement before such a

determination is made, the application is taken to have been

withdrawn.

OPP (R114)

Schedule 1, item 9, page 78 (after line 21), after subsection (1), insert:

(1A) A compulsory acquisition will be deemed to be an acquisition

involving a conferral of interests on persons other than the

Government party, unless it is stated in writing to be for a

Government purpose.

HARRADINE (22)

Schedule 1, item 9, page 78 (lines 13 to 15), omit "and" and subsubparagraph

(B).

OPP (201)/DEMS-GWA (170)

Schedule 1, item 34, page 133 (lines 11 and 12), omit "or paragraph (i) of

the definition of INFRASTRUCTURE FACILITY in section 253".

OPP (221)/DEMS-GWA (188)

Schedule 1, item 57, page 145 (lines 13 to 32), omit the item.

OPP (287)/DEMS-GWA (258)

Schedule 2, item 78, page 216 (table), omit the item relating to

infrastructure facility.

OPP (117)/DEMS-GWA (107)/HARRADINE (23)

Schedule 1, item 9, page 79 (lines 1 and 2), omit paragraph (f).

OPP (200)/DEMS-GWA (169)

Schedule 1, item 34, page 133 (line 11), omit ", 251C(4) or (5)".

OPP (218)/DEMS-GWA (185)

Schedule 1, item 50, page 142 (line 12) to page 144 (line 9), omit sections

251C and 251D.

OPP (295)/DEMS-GWA (265)

Schedule 2, item 78, page 218 (table), omit the item relating to town or

city.

OPP (N24)

Schedule 1, item 9, page 79 (lines 22 to 24), omit subsection 26A(3),

substitute:

(3) The second condition is that the act or acts will have an

insignificant impact on the particular land or waters

concerned, taking into account, in appropriate cases, the

possibility or likelihood that more than one such act may

affect the same area.

OPP (N25)

Schedule 1, item 9, page 80 (line 18) to page 81 (line 2), omit paragraphs

(6)(b) and (c), substitute:

(b) any such persons or bodies will have a right to be heard by an

independent person or body, which person or body (not less

than two months after receipt of the notice referred to in

paragraph (a)) will determine:

(i) whether the act is to be done; and

(ii) any matter relating to the doing of the act, and in particular, the

matters referred to in subsection (7); and

(c) the person who will do any thing authorised by the act will have a

legal obligation to consult in good faith:

(i) any person or body covered by subparagraph (a)(i) or (ii); and

(ii) any person identified by the representative Aboriginal/Torres Strait

Islander body as a holder of native title in the area

affected by the act;

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).

OPP (N26)

Schedule 1, item 9, page 81 (after line 20), after subsection (7), insert:

Fifth condition

(7A) The fifth condition is that the Minister is satisfied that if

the person who will do any thing authorised by the act does

not comply with any requirement, limitation or condition

imposed in relation to the doing of the act in accordance with

the outcome of procedures and matters referred to in the

fourth condition, the persons and bodies referred to in

subparagraphs (6)(a)(i) and (ii), or in the case where such

persons or bodies do not exist in relation to all of the area

affected by the act or acts, the representative

Aboriginal/Torres Strait Islander body referred to in

subparagraph (6)(a)(iii) may make application to the

independent body or person referred to in paragraph (6)(b) and

the independent body or person may determine that:

(a) the authority for the act be revoked; and

(b) where applicable, compensation be paid to the parties referred to in

subparagraphs (6)(c)(i) and (ii).

OPP (125)/DEMS-GWA (114)

Schedule 1, item 9, page 88 (line 13), omit ", (g) or (h)".

OPP (126)/DEMS-GWA (115)

Schedule 1, item 9, page 88 (lines 15 to 19), omit paragraph (c),

substitute:

(c) the agreement mentioned in paragraph 28(1)(f) provided:

(i) an express understanding that there would be no further negotiation

before the later act took place; and

(ii) 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

OPP (127)/DEMS-GWA (116)

Schedule 1, item 9, page 88 (after line 22), at the end of section 26D,

add:

Exception

(3) However, the exclusion provided by this section does not apply

if the agreement with respect to the earlier act provides for

or permits the application of this Subdivision to the later

act.

OPP (134)/DEMS-GWA (124)

Schedule 1, item 9, page 97 (after line 14), at the end of section 33,

add:

(3) If the negotiations are with respect to a right the creation of

which may constitute an earlier act for the purposes of

section 26D, the negotiations may include the possibility

that:

(a) any agreement which results will provide for further negotiations in

respect of an act that constitutes a later act for the

purposes of that section; or

(b) this Subdivision will apply to the later act.

(4) Proceedings may be taken in the Federal Court in relation to an

agreement reached under section 31 pursuant to negotiations

about matters referred to in subsection (3):

(a) for specific performance of the agreement; or

(b) for a declaration that the conditions of the agreement agreed to by

non-native title parties have not been complied with; or

(c) for an injunction or prohibition restraining those parties from

continuing to do things under the act or the later act;

or

(d) for damages for the doing of the things or for a failure to comply

with the conditions, or both.

OPP (170)/DEMS-GWA (136)

Schedule 1, item 9, page 106 (after line 5), at the end of section 38,

add:

(3) If the act is with respect to a right the creation of which may

constitute an earlier act for the purposes of section 26D, the

determination may include a condition that:

(a) will provide for further negotiations in respect of an act that

constitutes a later act for the purposes of that section;

or

(b) will provide that this Subdivision will apply to the later act.

(4) Proceedings may be taken in a court of a State or Territory in

relation to a determination under this section:

(a) for specific performance of a condition of the determination; or

(b) for a declaration that the conditions of the determination have not

been complied with by non-native title parties; or

(c) for an injunction or prohibition restraining those parties from

continuing to do things under the act or the later act;

or

(d) for damages for the doing of the things or for a failure to comply

with the conditions, or both.

OPP (130)/DEMS-GWA (120)

Schedule 1, item 9, page 91 (after line 7), at the end of section 28, add:

(3) A person wishing to lodge a native title determination

application under section 61 may apply to the Federal Court

for an order prohibiting the doing or continuation of any act

to which this Subdivision applies on the basis that section 29

has not been complied with.

OPP (N28) [AMT TO GOVT (44)]

Schedule 1, item 9, subsection 35(3), omit "34A,".

OPP (152)

Schedule 1, item 9, page 101 (lines 28 to 30), omit paragraph 36B(2)(a).

OPP (142)

Schedule 1, item 9, page 99 (line 25) to page 100 (line 20), omit

subsections (1), (2), (3) and (4), substitute:

(1) Subject to section 37, the arbitral body must take all

reasonable steps to make a determination in relation to the

act within:

(a) if the act is the grant of a licence to prospect or explore for

things that may be mined-the period of 4 months starting

when the application is made; or

(b) in any other case-the period of 6 months starting when the

application is made.

(2) The arbitral body must not make a determination that the act

may be done unless it is satisfied that the Government and

grantee parties negotiated in good faith as required by

subsection 31(1).

Report to Commonwealth Minister

(3) If the arbitral body is the NNTT and it does not make the

determination within the period, 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.

Commonwealth Minister may give notice as to urgency

(4) At any time after the end of the period applicable under

subsection (1) in respect of 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

(b) the arbitral body has made a determination under section 38;

the Commonwealth 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 not earlier than 30 days after the day on

which the notice was given.

OPP (143)

Schedule 1, item 9, page 100 (line 23), omit "Relevant", substitute

"Commonwealth".

OPP (145)

Schedule 1, item 9, page 101 (line 1), omit "relevant", substitute

"Commonwealth".

OPP (146)

Schedule 1, item 9, page 101 (line 4), omit "relevant", substitute

"Commonwealth".

OPP (147)

Schedule 1, item 9, page 101 (line 5), omit "relevant", substitute

"Commonwealth".

OPP (148)

Schedule 1, item 9, page 101 (lines 9 to 21), omit paragraphs (2)(b) and (c)

and subsection (3), substitute:

(b) it is in the national interest to make the determination at that

time.

OPP (151)

Schedule 1, item 9, page 101 (line 24), omit "relevant", substitute

"Commonwealth".

OPP (153)

Schedule 1, item 9, page 102 (line 1), omit "relevant", substitute

"Commonwealth".

OPP (154)

Schedule 1, item 9, page 102 (line 8), omit "relevant", substitute

"Commonwealth".

OPP (155)

Schedule 1, item 9, page 102 (line 28), omit "relevant", substitute

"Commonwealth".

OPP (156)

Schedule 1, item 9, page 103 (line 2), omit "relevant", substitute

"Commonwealth".

OPP (157)

Schedule 1, item 9, page 103 (line 4), omit "relevant", substitute

"Commonwealth".

OPP (158)

Schedule 1, item 9, page 103 (line 6), omit "relevant", substitute

"Commonwealth".

OPP (161)

Schedule 1, item 9, page 103 (line 28), omit "relevant", substitute

"Commonwealth".

OPP (162)

Schedule 1, item 9, page 104 (line 7), omit "relevant", substitute

"Commonwealth".

OPP (163)

Schedule 1, item 9, page 104 (line 9), omit "relevant", substitute

"Commonwealth".

OPP (164)

Schedule 1, item 9, page 104 (line 27), omit "relevant", substitute

"Commonwealth".

OPP (165)

Schedule 1, item 9, page 105 (lines 4 to 14), omit subsection (7),

substitute:

(7) The Commonwealth 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 before each House of the

Parliament.

OPP (167)/DEMS-GWA (135)

Schedule 1, item 9, page 105 (after line 27), after subsection (1),

insert:

(1A) A determination may, with the agreement of the parties,

provide that particular matters that:

(a) are not reasonably capable of being determined at the time the

determination is made; and

(b) are not directly relevant to the doing of the act;

are to be the subject of further negotiations or determined in

a specified manner.

(1B) If the matter is to be determined by arbitration otherwise

than by the arbitral body, the parties must agree to the

manner of determination or, in the absence of agreement, the

matter must be determined by the arbitral body at an

appropriate time.

Example 1: A mining lease may be granted subject to

quantification of compensation etc. at a later time

by an independent arbitrator.

Example 2: A mining lease may be granted subject to site

clearance procedures to be determined by a third

person.

OPP (172)/DEMS-GWA (138)

Schedule 1, item 9, page 106 (lines 32 and 33), omit paragraph (d).

DEMS-GWA (137)

Schedule 1, item 9, page 106 (line 24), at the end of paragraph (1)(a),

add:

and (vi) the natural environment of the land or waters concerned, to the

extent that it, and the likely effect of the act upon

it, are relevant to the native title rights and

interests claimed or determined;

(aa) any assessment of the effect of the proposed act on the natural

environment of the land or waters concerned that is

relevant to subparagraph (a)(vi):

(i) made by a court or tribunal; or

(ii) made, or commissioned, by the Crown in any capacity or by a statutory

authority;

OPP (173)

Schedule 1, item 9, page 108 (after line 4), at the end of section 40,

add:

(2) Subsection (1) does not apply to an indigenous land use

agreement, or an agreement in writing referred to in paragraph

31(1)(b)section 34, that identifies the agreement or

determination affected.

OPP (178)/DEMS-GWA (146)/HARRADINE (31)

Schedule 1, item 9, page 113 (line 16) to page 117 (line 14), omit sections

43A and 43B.

OPP (198)/DEMS-GWA (167)/HARRADINE (52)

Schedule 1, item 34, page 133 (line 10), omit "or 43A(1)(b)".

OPP (203)/DEMS-GWA (172)/HARRADINE (53)

Schedule 1, item 34, page 133 (line 16), omit ", 43(3) or 43A(6)",

substitute "or 43(3)".

OPP (355)/DEMS-GWA (330)/HARRADINE (54)

Schedule 5, item 11, page 352 (lines 7 and 8), omit "or 43A(8)".

OPP (R209)

Schedule 1, item 42, page 138 (lines 16 to 18), omit the item, substitute:

42 PARAGRAPH 237(A)

Omit "does not directly interfere with the community life",

substitute "does not interfere directly with the actual functioning

of the way of life of the community".

OPP (210)

Schedule 1, items 43 and 44, page 138 (lines 19 to 22), omit the items,

substitute:

43 AT THE END OF SECTION 237

Add:

(2) If the act creates rights in persons other than those who are

or may be native title holders in relation to the land or

waters concerned, the following must be taken into account:

(a) the terms and conditions contained in any relevant grant, licence,

permission or authority;

(b) the legislation governing their creation;

(c) the possible activities that would be authorised by their creation.

(3) In deciding whether an act involves a major disturbance as

mentioned in paragraph (1)(c), the beliefs and concerns of the

native title claim group must be considered.

DEMS-GWA (268)

Schedule 2, item 94, page 221 (lines 13 to 16), omit the item.

DEMS-GWA (270)

Schedule 2, item 101, page 222 (lines 24 to 27), omit the item.

OPP (118)/DEMS-GWA (108)/HARRADINE (N3)

Schedule 1, item 9, page 79 (line 3), omit "sections 43 and 43A", substitute

"section 43".

STATUTORY ACCESS RIGHTS

OPP (N30)

19 Schedule 1, item 9, page 118 (after line 17), after subsection (3),

insert:

(3A) For the purposes of paragraph (3)(a), physical access to land

is deemed to have been regular up to 23 December 1996 if the

person, being a member of the native title claim group, had

not had regular physical access to the land prior to 23

December 1996 by reason of an act of government or by reason

of the person having been denied physical access to the land

by the lessee or a person acting on behalf of the lessee or

any other person.

OPP (183)/DEMS-GWA (151)

Schedule 1, item 9, page 120 (lines 1 to 10), omit section 44C.

COMPENSATION

GOVT (51)

Schedule 2, item 102, page 223 (after line 9), after paragraph (a),

insert:

(aa) to hear and determine applications under subsection 50(2) of that

Act for determinations of compensation, where the amount

of the compensation to which the applicant claims to be

entitled is less than:

(i) $100,000; or

(ii) such other amount as is prescribed instead for the purposes of this

paragraph;

OPP (RN32)

Schedule 2, item 102, page 223 (after line 10), after subsection 18AB(2A),

insert:

Compensation

(2B) Where a compensation claim is referred to a Judicial

Registrar:

(a) the Court may give such directions as it considers appropriate, and

for the purpose of ensuring that, so far as is reasonably

practicable:

(i) the claim is determined as expeditiously and cheaply as possible and

without unnecessary formality; and

(ii) the likely cost to the claimant of maintaining a reasonable claim is

not disproportionate to the benefit claimed; and

(b) the directions which the Court may give may include, but are not

limited to, orders about:

(i) the principles and procedures to be adapted to the circumstances of the

case; and

(ii) providing for referral to mediation; and

(iii) ensuring that the issues in dispute are identified as soon as

possible and that the procedures required and evidence

to be called by any party are limited to what is

necessary to resolve such issues; and

(iv) limiting the liability of the claimant to an adverse costs order;

and

(v) directing that the claimant's costs, or any part thereof, be paid by

another party in any event or in particular

circumstances.

OPP (R188)

Schedule 1, page 126 (after line 2), after item 13, insert:

13A SUBSECTION 50(1)

Omit "section", substitute "Division".

13CB SUBSECTION 51(1)

Omit "Subject to subsection (3), the", substitute "The".

OPP (N31)

Schedule 1, page 126 (after line 2), after item 13, insert:

13DC AFTER SUBSECTION 51(1)

Insert:

(1A) To avoid doubt, the entitlement to compensation referred to in

subsection (1) arises whether the loss, diminution, impairment

or other effect of the act on native title rights and

interests occurs as a result of a valid act or an invalid

act.

CLAIMS PROCESS AND THE SUNSET CLAUSE

GOVT (61)

Schedule 2, item 3, page 147 (lines 13 to 15), omit subsection (1A),

substitute:

Time limit for applications

(1A) No application is allowed to be made under paragraph (1)(a) in

relation to an area later than 6 years after:

(a) if neither paragraph (b) nor paragraph (c) applies-the commencement

of this subsection; or

(b) if section 47A or 47B would apply to the whole of the area covered by

the application-the earliest time at which it could

reasonably be known that an application in relation to the

area could be made under either of those sections; or

(c) if section 47 would apply to the whole of the area covered by the

application-the later of:

(i) the commencement of this subsection; or

(ii) the earliest time at which it could reasonably be known that an

application in relation to the area could be made

under that section.

DEMS-GWA (333)

18 Schedule 5, items 18 and 19, page 339355 (lines 14 to 21), omit the

items.

REGISTRATION TEST

GOVT (70)

Schedule 2, page 200 (after line 9), after item 60, insert:

60A AFTER PARAGRAPH 186(1)(F)

Insert:

; (g) a description of the native title rights and interests in the claim

that:

(i) the Registrar in applying subsection 190B(6); or

(ii) a recognised State/Territory body in applying provisions equivalent to

that subsection;

considered, prima facie, could be established.

OPP (RN34) [AMT TO GOVT (70)]

At the end of paragraph 186(1)(g), add "or thereafter considers, prima

facie, could be established".

OPP (RN35) [AMT TO GOVT (70)]

After paragraph 186(1)(g), insert:

Note: The Registrar may wish to enter some rights or

interests immediately and continue to consider others.

Rights may be entered when the Registrar forms the

appropriate view.

OPP (N36) [AS AMENDED BY OPP (N37)]

Schedule 2, item 63, page 205 (line 22) to page 206 (line 28), omit

subsections (5) to (10), substitute:

Registrar's satisfaction about the basis of the application

(5) The Registrar must be satisfied that:

(a) the factual basis on which it is asserted that the native title

rights and interests claimed exist is sufficient to

support the assertion and that it supports the following

assertions:

(i) that the native title claim group have, and the predecessors of those

persons had, an association with the area;

(ii) 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;

(iii) that the native title claim group has continued to hold the native

title in accordance with those traditional laws and

customs; or

(b) at least one member of the native title claim group:

(i) currently has or previously had a traditional physical connection with

any part of the land or waters covered by the

application; or

(ii) 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 the

Crown in any capacity, a statutory authority of the

Crown in any capacity or any other person.

Prima facie case

(6) The Registrar must consider that, prima facie, at least one 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).

No failure to comply with section 61A

(7) 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.

(8) If the Registrar is considering placing reliance on material

which is adverse to the interests of the claimant, or

inconsistent with material supplied by the claimant, the

claimant must be shown the material and given a reasonable

opportunity to respond or supply further material.

No extinguishment of native title to minerals etc.

(9) The application and accompanying documents must not disclose,

and the Registrar must not otherwise be aware, that 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.

REPRESENTATIVE BODIES

GOVT (77)

Schedule 3, item 11, page 238 (lines 3 to 23), omit subsection (1),

substitute:

Commonwealth Minister may issue directions

(1) The Commonwealth Minister may, by written instrument, issue

directions requiring, or relating to, either or both 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, giving or giving

copies of documents and records held by the former

representative body to a body (the REPLACEMENT BODY) that

has become the representative body for all or part of the

former representative body's former area, where the

documents and records are reasonably necessary for the

performance of the functions, or the exercise of the

powers, of the replacement body.

Directions take effect on the day on which they are issued.

Limit on directions

(2) Directions must not require the former representative body to

allow access to, give or give copies of documents and records,

of the kind mentioned in paragraph (1)(b) that relate to:

(a) a claim in a claimant application or a compensation application; or

(b) native title rights and interests that are the subject of a

determination of native title;

to the replacement body, unless the replacement body has been

asked by the claimants to assist them in relation to the

claim, or has been asked by the persons who have been

determined to hold the native title rights and interests to

assist them in relation to those rights and interests.

GOVT (78)

Schedule 3, item 11, page 239 (after line 10), after section 203FC,

insert:

203FCA REPRESENTATIVE BODY TO COMPLY WITH WISHES OF TRADITIONAL

CUSTODIANS

(1) In performing its functions and exercising its powers, a

representative body must make all reasonable efforts to comply

with the wishes of the traditional custodians of any

traditional materials in its possession about the way in which

the traditional materials, and any information contained in

them, are to be dealt with.

Definitions

(2) In this section:

TRADITIONAL CUSTODIAN of traditional materials means a person

who, according to the traditional laws and customs concerned,

is responsible for the traditional materials.

TRADITIONAL MATERIALS means documents, records or other things

that are of significance to Aboriginal peoples or Torres

Strait Islanders according to their traditional laws and

customs.

OPP (N45) [AMT TO GOVT (77)]

After subsection 203FC(2), insert:

Traditional materials

(2A) Directions must not require the former representative body to

act in contravention of its obligations under section

203FCA.

MISCELLANEOUS

GOVT (87)

Schedule 1, item 34, page 133 (lines 8 to 10), omit ", subsection 24KA(8),

24MD(7), 24NA(9), 26A(1), 26B(1) or 26C(2), paragraph 43(1)(b) or

43A(1)(b)", substitute "or (7)(a), subsection 24KA(8), 24MD(7),

24NA(9), 26A(1), 26B(1) or 26C(2), paragraph 43(1)(b), subparagraph

43(3)(c)(ii), paragraph 43A(1)(b), subparagraph 43A(6)(c)(ii)".

OPP (N49)

Schedule 5, page 357 (after line 9), at the end of Part 5, add:

26A TRANSITIONAL-CERTAIN ACTS ARE VALID

(1) If the conditions in this item are satisfied an act will be

valid.

First condition

(2) The first condition is that the act:

(a) if done under the old Act would be a permissible future act; and

(b) would not have been subject to the requirements of the right to

negotiate provisions in the old Act; and

(c) is subject to the right to negotiate provisions in this Act.

Second condition

(3) The second condition is that after 1 July 1996 and before the

commencement of this Act:

(a) negotiations in good faith with native title parties have been

entered into by the person requesting that the act be

done; and

(b) an agreement about the doing of the act is reached between:

(i) the person requesting that the act be done; and

(ii) one or more of the native title parties; and

and at least one Aboriginal/Torres Strait Islander body for the area

endorses that it is satisfied that negotiations have

occurred in accordance with paragraph (3)(a); and

(c) the act is done either by the person requesting to do the act or by a

State or Territory government, consistent with the terms

of the agreement.

Act may be done without agreement

(4) If agreement is not reached in accordance with paragraphs (3)(a)

and (b) and the Aboriginal/Torres Strait Islander body for the area

endorses that it is satisfied that negotiations have occurred in

accordance with paragraph (3)(a) for a reasonable period:

(a) the act may be done; and

(b) the native title parties have the same procedural rights in relation

to the doing of the act as if the old Act was still in

force.

AMENDMENTS TO THE BILL MADE BY

THE HOUSE OF REPRESENTATIVES

RACIAL DISCRIMINATION ACT

(H1) Schedule 1, item 3, page 5 (lines 4 and 5), omit the item,

substitute:

3 SECTION 7

Repeal the section, substitute:

7 RACIAL DISCRIMINATION ACT

(1) This Act is intended to be read and construed subject to the

provisions of the Racial Discrimination Act 1975.

(2) Subsection (1) means only that:

(a) the provisions of the Racial Discrimination Act 1975 apply to the

performance of functions and the exercise of powers

conferred by or authorised by this Act; and

(b) to construe this Act, and thereby to determine its operation,

ambiguous terms should be construed consistently with the

Racial Discrimination Act 1975 if that construction would

remove the ambiguity.

(3) Subsections (1) and (2) do not affect the validation of past

acts or intermediate period acts in accordance with this

Act.

[SECTION 7]

CONFIRMATION

(H2) Schedule 1, item 9, page 14 (lines 23 to 28), omit subsection (9),

substitute:

Exclusion of acts benefiting Aboriginal peoples or Torres

Strait Islanders

(9) An act is not a PREVIOUS EXCLUSIVE POSSESSION 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 expressly for the benefit of, or to

or in a person to hold on trust expressly 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.

Note: The expression ABORIGINAL PEOPLES is defined in section

253.

Exclusion of national parks etc.

(9A) An act is not a PREVIOUS EXCLUSIVE POSSESSION ACT if the grant

or vesting concerned involves the establishment of an area,

such as a national, State or Territory park, for the purpose

of preserving the natural environment of the area.

Exclusion of acts where legislation provides for

non-extinguishment

(9B) An act is not a PREVIOUS EXCLUSIVE POSSESSION ACT if it is

done by or under legislation that expressly provides that the

act does not extinguish native title.

Exclusion of Crown to Crown grants etc.

(9C) If an act is the grant or vesting of an interest in relation

to land or waters to or in the Crown in any capacity or a

statutory authority, the act is not a PREVIOUS EXCLUSIVE

POSSESSION ACT:

(a) unless, apart from this Act, the grant or vesting extinguishes native

title in relation to the land or waters; or

(b) if the grant or vesting does not, apart from this Act, extinguish

native title in relation to the land or waters-unless and

until the land or waters are (whether before or after 23

December 1996) used to any extent in a way that, apart

from this Act, extinguishes native title in relation to

the land or waters.

[SECTION 23B]

(H3) Schedule 1, item 9, page 14 (after line 31), at the end of section

23B, add:

Effect of exclusions

(11) To avoid doubt, the fact that an act is, because of any of the

previous subsections, not a previous exclusive possession act

does not imply that the act is not valid.

[SECTION 23B]

(H4) Schedule 1, item 9, page 16 (after line 4), after section 23D,

insert:

23DA CONFIRMATION OF VALIDITY OF USE OF CERTAIN LAND HELD BY CROWN

ETC.

To avoid doubt, if the act is a previous exclusive possession act

because of paragraph 23B(9C)(b) (which deals with grants to

the Crown etc.), the use of the land or waters concerned as

mentioned in that paragraph is valid.

[SECTION 23DA]

(H5) Schedule 1, item 9, page 16 (line 8), after "23D", insert "or

23DA".

[SECTION 23E]

(H6) Schedule 1, item 9, page 17 (lines 15 to 34), omit subsection (1),

substitute:

(1) Subject to subsection (2), if a previous non-exclusive

possession act (see section 23F) is attributable to the

Commonwealth:

(a) 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; and

(b) to the extent that the act involves the grant of rights and interests

that are inconsistent with native title rights and

interests in relation to the land or waters covered by the

lease concerned:

(i) if, apart from this Act, the act extinguishes the native title rights

and interests-the native title rights and interests

are extinguished; and

(ii) in any other case-the native title rights and interests are suspended

while the lease concerned, or the lease as renewed,

re-made, re-granted or extended, is in force; and

(c) any extinguishment under this subsection is taken to have happened

when the act was done.

[SECTION 23G]

(H7) Schedule 1, item 49, page 140 (line 24), omit paragraph (1)(a),

substitute:

(a) anything set out in Schedule 1, other than a mining lease or anything

whose grant or vesting is covered by subsection 23B(9),

(9A), (9B), (9C) or (10) (which provide that certain acts

are not previous exclusive possession acts); or

[SECTION 249C]

INDIGENOUS LAND USE AGREEMENTS

(H8) Schedule 1, item 9, page 7 (line 13), omit "If", substitute "Subject

to subsection 24EBA(6), if".

[SECTION 22B]

(H9) Schedule 1, item 9, page 22 (after line 21), after paragraph (a),

insert:

(aa) particular future acts (other than intermediate period acts), or

future acts (other than intermediate period acts) included

in classes, that have already been done;

Note: Intermediate period acts are or can be validated only

under Division 2A.

(ab) changing the effects, that are provided for by section 22B or by a

law of a State or Territory that contains provisions to

the same effect, of an intermediate period act or of

intermediate period acts included in classes;

[SECTION 24BB]

(H10) Schedule 1, item 9, page 23 (after line 30), at the end of section

24BD, add:

Procedure where no representative body party

(4) If there are any representative Aboriginal/Torres Strait

Islander bodies for any of the area and none of them is

proposed to be a party to the agreement, the registered native

title body corporate, before entering into the agreement:

(a) must inform at least one of the representative Aboriginal/Torres

Strait Islander bodies of its intention to enter into the

agreement; and

(b) may consult any such representative Aboriginal/Torres Strait Islander

bodies about the agreement.

[SECTION 24BD]

(H11) Schedule 1, item 9, page 25 (lines 19 to 24), omit section 24BI,

substitute:

24BI REGISTRATION OF BODY CORPORATE AGREEMENTS

(1) Subject to this section, the Registrar must register the

agreement on the Register of Indigenous Land Use Agreements.

(2) The Registrar must not register the agreement if 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.

(3) The Registrar must not register the agreement if:

(a) a representative Aboriginal/Torres Strait Islander body for any of

the area advises the Registrar, within 1 month after the

Registrar gives notice under section 24BH, that the

requirements of paragraph 24BD(4)(a) were not complied

with in relation to the agreement; and

(b) the Registrar is satisfied that the requirements were not complied

with.

[SECTION 24BI]

(H12) Schedule 1, item 9, page 26 (after line 6), after paragraph (a),

insert:

(aa) particular future acts (other than intermediate period acts), or

future acts (other than intermediate period acts) included

in classes, that have already been done;

Note: Intermediate period acts are or can be validated only

under Division 2A.

(ab) changing the effects, that are provided for by section 22B or by a

law of a State or Territory that contains provisions to

the same effect, of an intermediate period act or of

intermediate period acts included in classes;

[SECTION 24CB]

(H13) Schedule 1, item 9, page 28 (after line 11), at the end of section

24CD, add:

Procedure where no representative body party

(7) If there are any representative Aboriginal/Torres Strait

Islander bodies for any of the area and none of them is

proposed to be a party to the agreement, a person in the

native title group, before entering into the agreement:

(a) must inform at least one of the representative Aboriginal/Torres

Islander bodies of its intention to enter into the

agreement; and

(b) may consult any such representative Aboriginal/Torres Strait Islander

bodies about the agreement.

Note: The registration of agreements that are certified by a

representative Aboriginal/Torres Strait Islander body is

facilitated under section 24CK.

[SECTION 24CD]

(H14) Schedule 1, item 9, page 35 (after line 14), after paragraph (a),

insert:

(aa) particular future acts (other than intermediate period acts), or

future acts (other than intermediate period acts) included

in classes, that have already been done;

Note: Intermediate period acts are or can be validated only

under Division 2A.

[SECTION 24DB]

(H15) Schedule 1, item 9, page 45 (after line 5), after section 24EB,

insert:

24EBA EFFECT OF REGISTRATION ON PREVIOUS ACTS COVERED BY INDIGENOUS

LAND USE AGREEMENTS

Coverage of section

(1) The consequences set out in this section apply if:

(a) details are on the Register of Indigenous Land Use Agreements of an

agreement that includes a statement to the effect that the

parties agree to:

(i) the validating of a particular future act (other than an intermediate

period act), or future acts (other than intermediate

period acts) included in classes, that have already

been done invalidly; or

Note: Intermediate period acts are or can be validated

only under Division 2A.

(ii) the validating, subject to conditions, of a particular future act

(other than an intermediate period act), or of future

acts (other than intermediate period acts) included in

classes, that have already been done invalidly; or

(iii) changing the effects, that are provided for by section 22B (which

relates to native title rights and interests) or by a

law of a State or Territory that contains provisions

to the same effect, of an intermediate period act or

of intermediate period acts included in classes; and

(b) whichever of the Commonwealth, the State or the Territory to which

the act or class of acts is attributable is a party to the

agreement; and

(c) where, whether under the agreement or otherwise, a person other than

the Crown in right of the Commonwealth, a State or a

Territory is or may become liable to pay compensation in

relation to the act or class of acts-that person is a

party to the agreement.

Commonwealth future acts valid

(2) If subparagraph (1)(a)(i) or (ii) applies and the future act or

class of future acts is attributable to the Commonwealth, the

act or class of acts is valid, and is taken always to have

been valid.

State or Territory laws may validate their future acts

(3) If subparagraph (1)(a)(i) or (ii) applies and the future act or

class of future acts is attributable to a State or Territory,

a law of the State or the Territory may provide that the act

or class of acts is valid, and is taken always to have been

valid. The law may do so by applying to all acts, to classes

of acts, or to particular acts, to which subparagraph

(1)(a)(i) or (ii) applies in respect of which the requirements

of subsection (1) are or become satisfied.

Non-extinguishment principle applies to future acts

(4) If subsection (2) applies or a law makes provision in

accordance with subsection (3), the non-extinguishment

principle applies to the act or class of acts unless:

(a) the act or class of acts is the surrender of native title; and

(b) the agreement includes a statement to the effect that the surrender

is intended to have extinguished the native title rights

and interests.

Compensation consequences of future acts

(5) If subsection (2) applies or a law makes provision in

accordance with subsection (3), the consequences set out in

subsection 24EB(4), (5) or (6), and the consequences set out

in subsection 24EB(7), apply to the act or to each of the acts

in the class.

Changing the effects of validated acts

(6) If subparagraph (1)(a)(iii) applies, the effects mentioned in

that subparagraph are changed in accordance with the

agreement.

Note about Schedule 1, item 9: The heading to section 24EB (page

42, line 17) is altered by omitting "FUTURE" and substituting

"PROPOSED".

[SECTION 24EBA]

(H16) Schedule 1, item 30, page 131 (lines 7 to 10), omit subsection

199C(3), substitute:

Ground for order

(3) The ground is that a party would not have entered into the

agreement but for fraud, undue influence or duress by any

person (whether or not a party to the agreement).

Compensation order

(4) If the Court orders the Registrar to remove the details, the

Court may also order the person who committed the fraud,

exerted the influence or applied the duress to pay

compensation to any party to the agreement who will suffer

loss or damage as a result of the removal of the details.

[SECTION 199C]

PRIMARY PRODUCTION

(H17) Schedule 1, item 9, page 49 (after line 26), at the end of

subsection (1), add:

; and (e) the future act could have been validly done or authorised at

some time before 31 March 1998, if any native title in

relation to the area covered by the lease had not then

existed.

[SECTION 24GB]

(H18) Schedule 1, item 9, page 52 (after line 16), at the end of

subsection (1), add:

; and (d) at some time before 31 March 1998, the activity could have been

done under any legislation then in force, or under any

lease, licence, permit or authority that could have then

been issued, in relation to the area covered by the lease,

if any native title in relation to the area covered by the

lease had not then existed.

[SECTION 24GC]

(H19) Schedule 1, item 9, page 53 (after line 31), at the end of

subsection (1), add:

; and (f) if:

(i) before the future act is done, an approved determination of native

title is made in relation to the land or waters on

which any activity permitted or required by the future

act takes place; and

(ii) the determination is that native title exists in relation to the land

or waters and that the native title rights and

interests confer exclusive possession of the land or

waters on the native title holders;

the doing of the activity is not inconsistent with the exercise of the

native title rights and interests.

[SECTION 24GD]

(H20) Schedule 1, page 145 (after line 32), after item 57, insert:

57A SECTION 253 (PARAGRAPH (C) OF THE DEFINITION OF MINE)

Repeal the paragraph, substitute:

(c) quarry;

but does not include extract, obtain or remove sand, gravel,

rocks or soil from the natural surface of land, or of the bed

beneath waters, for a purpose other than:

(d) extracting, producing or refining minerals from the sand, gravel,

rocks or soil; or

(e) processing the sand, gravel, rocks or soil by non-mechanical means.

[SECTION 253]

WATER ETC.

(H21) Schedule 1, item 9, page 56 (line 25), omit "forms", substitute

"forms and MANAGEMENT OR REGULATION of water includes granting

access to water, or taking water".

[SECTION 24HA]

(H22) Schedule 1, item 9, page 57 (line 9), omit "forms", substitute

"forms and MANAGEMENT OR REGULATION of water includes granting

access to water, or taking water".

[SECTION 24HA]

RENEWALS

(H22A) Schedule 1, item 9, page 60 (line 17), at the end of paragraph (c),

add "(other than a mining lease)".

[SECTION 24IC]

(H23) Schedule 1, item 9, page 61 (line 18), omit "paragraph 24IB(b)",

substitute "paragraph (1)(b)".

[SECTION 24ID]

(H24) Schedule 1, item 9, page 61 (after line 28), at the end of section

24ID, add:

Other procedural rights

(4) If:

(a) the act is a permissible lease etc. renewal of a non-exclusive

agricultural lease (see section 247B) or a non-exclusive

pastoral lease (see section 248B); and

(b) the act is covered by paragraph 24IC(4)(b) or (c);

subsection 24MD(6B) applies to the act as if the act were a

compulsory acquisition, of the kind mentioned in that

subsection, of native title rights and interests in relation

to the land or waters that will be affected by the act, done

by:

(c) if the act is attributable to the Commonwealth-the Commonwealth; or

(d) if the act is attributable to a State or Territory-that State or

Territory.

[SECTION 24ID]

SERVICES TO THE PUBLIC

(H25) Schedule 1, item 9, page 65 (after line 25), after subsection (1),

insert:

Compulsory acquisitions not covered

(1A) To avoid doubt, this Subdivision does not apply to a future

act that is the compulsory acquisition of the whole or part of

any native title rights and interests.

[SECTION 24KA]

(H26) Schedule 1, item 9, page 67 (line 2), after "holders", insert ",

and any registered native title claimants in relation to land or

waters in the area concerned,".

[SECTION 24KA]

(H27) Schedule 1, item 9, page 67 (after line 12), after subsection (7),

insert:

Native title rights and interests to be considered

(7A) If, in the exercise of those procedural rights, the native

title holders are entitled to have matters considered, those

matters include their native title rights and interests.

[SECTION 24KA]

(H28) Schedule 1, item 9, page 67 (after line 27), at the end of section

24KA, add:

Satisfying other procedural rights

(9) If:

(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 do any thing in

relation to the native title holders; and

(b) there has been no approved determination of the native title;

then one way in which the person may give effect to the

requirement is:

(c) by doing the thing in relation to any registered native title

claimant in relation to land or waters in the area

concerned; or

(d) if there are no such registered native title claimants-by ensuring

that any representative Aboriginal/Torres Strait Islander

bodies for the area concerned have an opportunity to

comment on the doing of the act.

[SECTION 24KA]

FREEHOLD TEST AND OFFSHORE

(H29) Schedule 1, item 9, page 69 (after line 32), after paragraph (b),

before the example, insert:

; and (c) 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:

(i) in the area to which the act relates; and

(ii) of particular significance to Aboriginal peoples or Torres Strait

Islanders in accordance with their traditions.

[SECTION 24MB]

(H30) Schedule 1, item 9, page 70 (after line 9), at the end of

subsection 24MB(2), add:

; and (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:

(i) in the area to which the act relates; and

(ii) of particular significance to Aboriginal peoples or Torres Strait

Islanders in accordance with their traditions.

[SECTION 24MB]

(H31) Schedule 1, item 9, page 71 (line 4), before "or otherwise", insert

"or by surrender, cancellation or resumption".

[SECTION 24MD]

(H32) Schedule 1, item 9, page 73 (lines 15 to 18), omit all the words in

subsection (6) after paragraph (d), substitute:

the consequences in subsections (6A) and (6B) apply.

[SECTION 24MD]

Note about Schedule 1, item 9: The heading to subsection 24MD(6)

(page 73, line 4) is replaced by the heading "Consequences of

certain acts".

(H33) Schedule 1, item 9, page 73 (after line 18), after subsection (6),

insert:

Procedural rights

(6A) The native title holders, and any registered native title

claimants in relation to the land or waters concerned, 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.

Other consequences

(6B) If the act is:

(a) the compulsory acquisition of native title rights and interests for

the purpose of conferring rights or interests in relation

to the land or waters concerned on persons other than the

Commonwealth, the State or the Territory to which the act

is attributable; or

(b) the creation or variation of a right to mine for the sole purpose of

the construction of an infrastructure facility (see

section 253) associated with mining;

Note: The acts covered by paragraphs (a) and (b) are not

covered by Subdivision P: see subsection (6) and

paragraph 26(1)(c).

the following consequences also apply:

(c) the Commonwealth, the State or the Territory to which the act is

attributable must notify each of the following:

(i) any registered native title claimant (a CLAIMANT) in relation to the

land or waters; and

(ii) any native title body corporate (a BODY CORPORATE), in relation to the

land or waters; and

(iii) any representative Aboriginal/Torres Strait Islander body in relation

to the land or waters;

that the act is to be done; and

(d) any claimant or body corporate may object, within 2 months after the

notification, to the doing of the act so far as it affects

their registered native title rights and interests; and

(e) either:

(i) in a paragraph (a) case-the Commonwealth, the State or the Territory;

or

(ii) in a paragraph (b) case-the person who requested or applied for the

doing of the act;

must consult any claimants, and bodies corporate, who object, about ways

of minimising the act's impact on registered native title

rights and interests in relation to the land or waters,

and, if relevant, any access to the land or waters or the

way in which any thing authorised by the act might be

done; and

(f) if any claimant or body corporate objects, as mentioned in paragraph

(d), to the doing of the act and so requests, the

Commonwealth, the State or the Territory must ensure that

the objection is heard by an independent person or body;

and

(g) if the independent person or body hearing any objection as mentioned

in paragraph (f) makes a determination upholding the

objection, or that contains conditions about the doing of

the act that relate to registered native title rights and

interests, the determination must be complied with

unless:

(i) the Minister of the Commonwealth, the State or the Territory

responsible for indigenous affairs is consulted; and

(ii) the consultation is taken into account; and

(iii) it is in the interests of the Commonwealth, the State or the

Territory not to comply with the determination.

Meaning of DETERMINATION

(6C) In paragraph (6B)(g):

DETERMINATION includes recommendation.

IN THE INTERESTS OF the Commonwealth, the State or the

Territory includes:

(a) for the social or economic benefit of the Commonwealth, the State or

the Territory (including of Aboriginal peoples and Torres

Strait Islanders); and

(b) in the interests of the relevant region or locality in the

Commonwealth, the State or the Territory.

[SECTION 24MD]

(H34) Schedule 1, item 9, page 73 (line 21), omit "(6)", substitute

"(6A)".

[SECTION 24MD]

(H35) Schedule 1, item 9, page 73 (after line 33), at the end of section

24MD, add:

Satisfying other procedural rights

(8) If:

(a) because of subsection (6A) or any law of the Commonwealth, a State or

a Territory, the native title holders have a procedural

right that requires another person to do any thing in

relation to the native title holders; and

(b) there has been no approved determination of the native title;

then one way in which the person may give effect to the

requirement is:

(c) by doing the thing in relation to any registered native title

claimant in relation to land or waters in the area

concerned; or

(d) if there are no such registered native title claimants-by ensuring

that any representative Aboriginal/Torres Strait Islander

bodies for the area concerned have an opportunity to

comment on the doing of the act.

[SECTION 24MD]

(H36) Schedule 1, item 9, page 74 (line 24), before "or otherwise",

insert "or by surrender, cancellation or resumption".

[SECTION 24NA]

(H37) Schedule 1, item 9, page 76 (line 8), after "holders", insert ",

and any registered native title claimants in relation to land or

waters in the area concerned,".

[SECTION 24NA]

(H38) Schedule 1, item 9, page 76 (after line 26), at the end of section

24NA, add:

Satisfying other procedural rights

(10) If:

(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 do any thing in

relation to the native title holders; and

(b) there has been no approved determination of the native title;

then one way in which the person may give effect to the

requirement is:

(c) by doing the thing in relation to any registered native title

claimant in relation to land or waters in the area

concerned; or

(d) if there are no such registered native title claimants-by ensuring

that any representative Aboriginal/Torres Strait Islander

bodies for the area concerned have an opportunity to

comment on the doing of the act.

[SECTION 24NA]

RIGHT TO NEGOTIATE

(H39) Schedule 1, item 9, page 21 (line 2), after "section", insert "24IC

(permissible lease etc. renewals) or section".

[SECTION 24AA]

(H40) Schedule 1, item 9, page 60 (line 33), before "the", insert

"subject to Subdivision P (which deals with the right to

negotiate),".

[SECTION 24ID]

(H41) Schedule 1, item 9, page 60 (after line 33), at the end of

paragraph (1)(a), add:

Note: Subdivision P applies only to certain renewals of

mining leases etc.: see subsections 26(1A) and 26D(1).

[SECTION 24ID]

(H42) Schedule 1, item 9, page 77 (lines 3 to 6), omit "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", substitute "certain future acts done by the

Commonwealth, a State or a Territory that are".

[SECTION 25]

(H43) Schedule 1, item 9, page 77 (before line 7), before paragraph

25(1)(a), insert:

(aa) certain acts covered by section 24IC (which deals with permissible

lease etc. renewals);

[SECTION 25]

(H44) Schedule 1, item 9, page 77 (before line 25), before subsection

26(1), insert:

Subdivision applies to certain permissible lease etc.

renewals

(1A) This Subdivision applies to a future act if:

(a) section 24IC (which deals with permissible lease etc. renewals)

applies to the act; and

(b) the act is done by the Commonwealth, a State or a Territory (the

GOVERNMENT PARTY); and

(c) the renewal, re-grant, re-making or extension of the term of the

lease, licence, permit or authority concerned creates a

right to mine.

[SECTION 26]

(H45) Schedule 1, item 9, page 77 (line 26), after "Subdivision", insert

"also".

[SECTION 26]

Note about Schedule 1, item 9: The heading to subsection 26(1) is

altered by inserting "also" after "Subdivision".

(H46) Schedule 1, item 9, page 78 (line 5), after "otherwise", insert ",

except one created for the sole purpose of the construction of an

infrastructure facility (see section 253) associated with mining".

[SECTION 26]

(H47) Schedule 1, item 9, page 78 (after line 5), at the end of

subparagraph (i), add:

Note: Rights to mine created for the sole purpose of the

construction of an infrastructure facility associated

with mining are dealt with in subsection 24MD(6B).

[SECTION 26]

(H48) Schedule 1, item 9, page 78 (lines 8 to 15), omit subparagraph

(iii), substitute:

(iii) the compulsory acquisition of native title rights and interests,

unless:

(A) the purpose of the acquisition is to confer rights or interests in

relation to the land or waters concerned on the

Government party and the Government party makes a

statement in writing to that effect before the

acquisition takes place; or

(B) the purpose of the acquisition is to provide an infrastructure

facility; or

Note: Certain compulsory acquisitions covered by

sub-subparagraphs (iii)(A) and (B) are dealt with in

subsection 24MD(6B).

[SECTION 26]

(H49) Schedule 1, item 9, page 79 (lines 1 and 2), omit paragraph (f),

substitute:

(f) an act that is the compulsory acquisition of native title rights and

interests and that relates solely to land or waters wholly

within a town or city (see section 251C).

[SECTION 26]

(H50) Schedule 1, item 9, page 79 (line 22), omit "considers", substitute

"is satisfied".

[SECTION 26A]

(H51) Schedule 1, item 9, page 84 (line 9), omit "identification and

protection", substitute "protection and avoidance".

[SECTION 26B]

(H52) Schedule 1, item 9, page 88 (after line 5), at the end of

subsection 26D(1), add:

; and (d) the term of the right is not longer than the term of the

earlier right; and

(e) no rights are created in connection with the right that were not

created in connection with the earlier right.

[SECTION 26D]

(H53) Schedule 1, item 9, page 88 (lines 12 to 19), omit paragraphs

(2)(b) and (c), substitute:

(b) this Subdivision applied to the earlier act and, because:

(i) an agreement of the kind mentioned in paragraph 31(1)(b) was made in

relation to the earlier act; or

(ii) a determination was made under section 38 that the earlier act might

be done, or might be done subject to conditions being

complied with;

the earlier act was not invalid to any extent under section 28; and

(c) the agreement or determination:

(i) included a statement to the effect that, if the later act were done,

this Subdivision would not apply to the later act;

and

(ii) 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

[SECTION 26D]

(H54) Schedule 1, item 9, page 99 (after line 23), at the end of section

35, add:

Negotiations for an agreement

(3) Even though the application has been made, the negotiation

parties may continue to negotiate with a view to obtaining an

agreement of the kind mentioned in paragraph 31(1)(b) before a

determination in relation to the act is made under section 36A

or 38. If they make such an agreement before such a

determination is made, the application is taken to have been

withdrawn.

[SECTION 35]

(H55) Schedule 1, item 9, page 99 (line 28) to page 100 (line 2), omit

subsection 36(2), substitute:

Determination not to be made where failure to negotiate in

good faith

(2) If any negotiation party satisfies the arbitral body that any

other negotiation party (other than a native title party) did

not negotiate in good faith as mentioned in paragraph

31(1)(b), the arbitral body must not make the determination on

the application.

Note: It would be possible for a further application to be

made under section 35.

[SECTION 36]

(H56) Schedule 1, item 9, page 100 (line 5), omit "4 months", substitute

"6 months".

[SECTION 36]

(H57) Schedule 1, item 9, page 100 (line 11), after "time", insert "later

than 4 months".

[SECTION 36]

(H58) Schedule 1, item 9, page 100 (line 19), omit "4 months", substitute

"6 months".

[SECTION 36]

(H59) Schedule 1, item 9, page 101 (after line 2), after subsection

36A(1), insert:

Requirement for State/Territory Minister to consult before

making determination

(1A) If:

(a) the relevant Minister is a State Minister or a Territory Minister;

and

(b) the determination is that the act may be done or may be done subject

to conditions to be complied with by any of the parties;

the relevant Minister may only make the determination after he

or she has consulted the Commonwealth Minister about the

determination.

[SECTION 36A]

(H60) Schedule 1, item 9, page 101 (line 25), omit "(if relevant)".

[SECTION 36B]

(H61) Schedule 1, item 9, page 101 (line 26) to page 102 (line 6), omit

subsection (2), substitute:

Notice to arbitral body

(2) 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.

[SECTION 36B]

(H62) Schedule 1, item 9, page 103 (after line 12), at the end of

paragraph (6)(a), add:

(iii) any consultations with the Commonwealth Minister as mentioned in

subsection 36A(1A); and

[SECTION 36B]

(H63) Schedule 1, item 9, page 105 (after line 27), after subsection (1),

insert:

Determinations may cover other matters

(1A) A determination may, with the agreement of the negotiation

parties, provide that a particular matter that:

(a) is not reasonably capable of being determined when the determination

is made; and

(b) is not directly relevant to the doing of the act;

is to be the subject of further negotiations or to be

determined in a specified manner.

Example: The arbitral body could determine that a mining lease

may be granted subject to site clearance procedures to

be determined by a third person.

Matters to be determined by arbitration

(1B) If:

(a) the manner specified is arbitration (other than by the arbitral

body); and

(b) the negotiation parties do not agree about the manner in which the

arbitration is to take place;

the arbitral body must determine the matter at an appropriate

time.

[SECTION 38]

(H64) Schedule 1, item 9, page 106 (lines 30 to 33), omit paragraphs

39(1)(c) and (d), substitute:

(c) the economic or other significance of the act to Australia, the State

or Territory concerned, the area in which the land or

waters concerned are located and Aboriginal peoples and

Torres Strait Islanders who live in that area;

[SECTION 39]

(H65) Schedule 1, item 9, page 113 (line 16) to page 116 (line 22), omit

section 43A, substitute:

43A EXCEPTION TO RIGHT TO NEGOTIATE: SATISFACTORY STATE/TERRITORY

PROVISIONS

Determination about alternative provisions

(1) If:

(a) a law or laws of a State or Territory provide for alternative

provisions to those contained in this Subdivision in

relation to some or all acts to which this Subdivision

applies that:

(i) are attributable to the State or Territory; and

(ii) relate, to any extent, to an area of land or waters that is an

alternative provision area (see subsection (2)); and

(b) the Commonwealth Minister determines in writing that the provisions

comply with subsections (4) and (6) and that the

requirements of subsection (7) are complied with;

then, subject to subsection (10), while the determination is

in force, the alternative provisions have effect instead of

this Subdivision.

Meaning of ALTERNATIVE PROVISION AREA

(2) An ALTERNATIVE PROVISION AREA is:

(a) an area:

(i) that is, or was (whether before or after this Act commenced), covered

by a freehold estate in fee simple or by a lease

(other than a mining lease); and

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

extinguished; or

Example 1: An example of such an area is an area covered by a

non-exclusive agricultural lease or a non-exclusive

pastoral lease (including one subject to section 47).

Example 2: 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), (9A), (9B) or (9C).

(b) an area that is, or was (whether before or after this Act

commenced):

(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; or

Example: An example of an area covered by paragraph (b) is an

area containing a national park.

(c) an area that, when the act is done, is wholly within a town or city

(see section 251C).

Notification of proposed determination

(3) Before making the determination, the Commonwealth Minister

must:

(a) notify all representative Aboriginal/Torres Strait Islander bodies

for the land or waters concerned of the proposed

determination; and

(b) invite submissions from them about the proposed determination; and

(c) consider any submissions made in response to the invitation.

Requirement to be satisfied: procedures etc.

(4) For the purposes of paragraph (1)(b), the alternative

provisions comply with this subsection if, in the opinion of

the Commonwealth Minister, they:

(a) contain appropriate procedures for notifying each of the following

that an act to which the provisions apply is to be done:

(i) any registered native title claimant (a CLAIMANT) in relation to any of

the land or waters to which the act relates;

(ii) any registered native title body corporate (a BODY CORPORATE) in

relation to any of that land or waters;

(iii) any representative Aboriginal/Torres Strait Islander body in relation

to any of that land or waters; and

(b) give any claimant or body corporate the right to object, within a

specified period after the notification, to the doing of

the act so far as it affects their registered native title

rights and interests; and

(c) if the act is of the kind mentioned in subparagraph 26(1)(c)(iii)

(which deals with certain compulsory acquisitions)-provide

for consultation (including provide in relation to

mediation) between:

(i) any claimants, and bodies corporate, who object; and

(ii) the State or Territory;

about ways of minimising the act's impact on registered native title

rights and interests in relation to the land or waters

concerned; and

(d) in any other case-provide for consultation (including provide in

relation to mediation) between:

(i) any claimants, and bodies corporate, who object; and

(ii) the person who requested or applied for the doing of the act;

about ways of minimising the act's impact on registered native title

rights and interests in relation to the land or waters

concerned, including about any access to the land or

waters or the way in which any thing authorised by the act

might be done; and

(e) if any person objects as mentioned in paragraph (b), provide for the

objection to be heard by an independent person or body;

and

Example: The independent person or body could be a State or

Territory tribunal which deals with acts of the

kind concerned, for example, a mining warden where

the act is the grant of a mining lease.

(f) provide for judicial review of the decision to do the act; and

Example: The judicial review could be by the Supreme Court

of the State or Territory.

(g) provide that, if the independent person or body hearing any objection

as mentioned in paragraph (e) makes a determination

upholding the objection, or that contains conditions about

the doing of the act that relate to registered native

title rights and interests, the determination must be

complied with unless:

(i) the Minister of the State or the Territory responsible for indigenous

affairs is consulted; and

(ii) the consultation is taken into account; and

(iii) it is in the interests of the State or the Territory not to comply

with the determination; and

(h) if the act is of the kind mentioned in subparagraph 26(1)(c)(iii)

(which deals with certain compulsory acquisitions)-confer

on each claimant and body corporate procedural rights that

are not less favourable than those they would have on the

assumption that they instead held ordinary title to any

land concerned and to the land adjoining, or surrounding,

any waters concerned.

Meaning of DETERMINATION

(5) In paragraph (4)(g):

DETERMINATION includes recommendation.

IN THE INTERESTS OF the State or the Territory includes:

(a) for the social or economic benefit of the State or the Territory

(including of Aboriginal peoples and Torres Strait

Islanders); and

(b) in the interests of the relevant region or locality in the State or

the Territory.

Requirement to be satisfied: compensation

(6) For the purposes of paragraph (1)(b), the alternative

provisions comply with this subsection if, in the opinion of

the Commonwealth Minister, they provide for compensation for

the effect of the act on native title to be payable and for

any dispute about the compensation to be determined by an

independent person or body.

Requirement to be satisfied: preservation of areas of

significance

(7) For the purposes of paragraph (1)(b), the requirements of this

subsection are complied with if, in the opinion of the

Commonwealth Minister, a law of the Commonwealth, the State or

the Territory provides, for the whole of the land or waters to

which the alternative provisions relate, in relation to the

preservation or protection of areas, or sites, that may be of

particular significance to Aboriginal peoples or Torres Strait

Islanders in accordance with their traditions.

Different provisions for different kinds of land or waters

(8) 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.

Revocation of determination

(9) If at any time the alternative provisions are amended so that

they no longer comply as mentioned in paragraph (1)(b), 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 after doing so, the alternative provisions

do not comply and subparagraphs (c)(i) and (ii) do not

apply-in writing, revoke the determination made under

paragraph (1)(b); and

(c) if:

(i) at the end of 90 days after advising the State Minister or Territory

Minister, the alternative provisions do not comply and

the Commonwealth Minister is satisfied that the State

Minister or the Territory Minister is using his or her

best endeavours to ensure that the alternative

provisions will comply; and

(ii) before the end of the 90 days, the Commonwealth Minister determined in

writing that a further period should apply for the

purposes of this paragraph; and

(iii) at the end of the further period, the alternative provisions still do

not comply;

in writing, revoke the determination made under paragraph (1)(b).

Note: A determination mentioned in subparagraph (c)(ii) is

a disallowable instrument: see section 214.

Exclusion of certain compulsory acquisitions

(10) 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 an alternative provision area and an

area that is not an alternative provision area.

Regulations to make transitional provisions

(11) 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.

[SECTION 43A]

(H66) Schedule 1, item 9, page 116 (lines 27 to 29), omit "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", substitute "an

alternative provision area (as defined in subsection 43A(2)) and an

area (the OTHER AREA) that is not an alternative provision area".

[SECTION 43B]

Note about Schedule 1, item 9: The heading to section 43B (page 116,

lines 23 and 24) is replaced by the heading "MINING RIGHTS COVERING

BOTH ALTERNATIVE PROVISION AREA AND OTHER AREA".

(H67) Schedule 1, item 9, page 117 (line 4), omit "leased or reserved

area", substitute "alternative provision area".

[SECTION 43B]

(H68) Schedule 1, item 34, page 133 (lines 8 to 10), omit ", subsection

24KA(8), 24MD(7), 24NA(9), 26A(1), 26B(1) or 26C(2), paragraph

43(1)(b) or 43A(1)(b)", substitute "or (7)(a), subsection 24KA(8),

24MD(7), 24NA(9), 26A(1), 26B(1) or 26C(2), paragraph 43(1)(b),

subparagraph 43(3)(c)(ii), paragraph 43A(1)(b), subparagraph

43A(9)(c)(ii)".

[SECTION 214]

(H69) Schedule 1, item 34, page 133 (line 16), omit "43A(6)", substitute

"43A(9)".

[SECTION 214]

(H70) Schedule 1, item 42, page 138 (lines 16 to 18), omit the item,

substitute:

42 PARAGRAPH 237(A)

Repeal the paragraph, substitute:

(a) the act is not likely to interfere directly with the carrying on of

the community or social activities of the persons who are

the holders (disregarding any trust created under Division

6 of Part 2) of native title in relation to the land or

waters concerned; and

[SECTION 237]

(H71) Schedule 1, item 50, page 143 (lines 11 to 20), omit subsection

(3), substitute:

Areas in the Northern Territory

(3) Subject to subsection (4), a particular area in the Northern

Territory is a TOWN OR CITY if, as at 23 December 1996, it

was:

(a) gazetted as a town (other than the town of Darwin, Hatches Creek,

Brocks Creek, Burrundie or Urapunga) under subsection

95(1) of the Crown Lands Act of the Northern Territory;

or

(b) the area in the Schedule to the Darwin Lands Acquisition Act 1945 of

the Commonwealth; or

(c) within a municipality constituted under section 29 of the Local

Government Act of the Northern Territory.

[SECTION 251C]

(H72) Schedule 2, item 71, page 212 (line 25), omit "34A,".

[section 207B]

(H73) Schedule 5, item 11, page 352 (line 8), omit "43A(8)", substitute

"43A(11)".

[ITEM 11 OF SCHEDULE 5]

STATUTORY ACCESS RIGHTS

(H74) Schedule 1, item 9, page 120 (line 5), at the end of subsection

44C(1), add ", except in proceedings before the Federal Court or a

recognised State/Territory body that are related to the making of an

approved determination of native title.".

[SECTION 44C]

COMPENSATION

(H75) Schedule 2, item 102, page 223 (before line 10), before paragraph

(b), insert:

(aa) to hear and determine applications under subsection 50(2) of that

Act for determinations of compensation, where:

(i) the amount of the compensation to which the applicant claims to be

entitled is less than $100,000 or such other amount as

is prescribed instead for the purposes of this

paragraph; and

(ii) at the time the hearing and determination takes place, one or more

approved determinations of native title have been made

in relation to the whole of the area concerned;

[SECTION 18AB OF FEDERAL COURT ACT]

(H76) Schedule 2, item 102, page 223 (after line 10), after subsection

(2A), insert:

(2B) If, in accordance with subsection (2A), Rules of Court are

made delegating to the Judicial Registrars the powers of the

Court to hear and determine applications under subsection

50(2) of the Native Title Act 1993 for determinations of

compensation as mentioned in paragraph (2A)(aa), the Judges,

or a majority of them, may, in respect of any such

application, give such directions as they consider appropriate

for the purpose of ensuring that, so far as is reasonably

practicable, the application is determined as expeditiously

and cheaply as possible and without unnecessary formality.

(2C) Without limiting the directions that may be made, they may

cover all or any of the following:

(a) principles and procedures to be applied in hearing and determining

the application;

(b) referring any matter for mediation;

(c) ensuring that the issues in dispute are identified as soon as

possible and that the procedures to be applied, and the

evidence that may be given, in the proceedings are limited

to what is necessary to resolve those issues;

(d) limiting the amount of costs of the proceedings that may be awarded

against the claimant;

(e) requiring some or all of the costs of the claimant to be paid by

another party to the proceedings.

[SECTION 18AB OF FEDERAL COURT ACT]

CLAIMS PROCESS AND SUNSET CLAUSE

(H77) Schedule 5, item 18, page 355 (lines 14 to 17), omit the item.

[ITEM 18 OF SCHEDULE 5]

REPRESENTATIVE BODIES

(H78) Schedule 3, item 11, page 238 (lines 3 to 23), omit subsection (1),

substitute:

Commonwealth Minister may issue directions

(1) The Commonwealth Minister may, by written instrument, issue

directions requiring, or relating to, either or both 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, giving or giving

copies of documents and records held by the former

representative body to a body (the REPLACEMENT BODY) that

has become the representative body for all or part of the

former representative body's former area, where the

documents and records are reasonably necessary for the

performance of the functions, or the exercise of the

powers, of the replacement body.

Directions take effect on the day on which they are issued.

Limit on directions

(2) Directions must not require the former representative body to

allow access to, give or give copies of documents and records,

of the kind mentioned in paragraph (1)(b) that relate to:

(a) a claim in a claimant application or a compensation application; or

(b) native title rights and interests that are the subject of a

determination of native title;

to the replacement body, unless the replacement body has been

asked by the claimants to assist them in relation to the

claim, or has been asked by the persons who have been

determined to hold the native title rights and interests to

assist them in relation to those rights and interests.

[SECTION 203FC]

(H79) Schedule 3, item 11, page 239 (after line 10), after section 203FC,

insert:

203FCA REPRESENTATIVE BODY ETC. TO COMPLY WITH WISHES OF TRADITIONAL

CUSTODIANS

(1) If:

(a) a representative body, in performing its functions and exercising its

powers; or

(b) a former representative body (as defined in subsection 203FC(5)), in

complying with directions in accordance with subsection

203FC(3);

deals with traditional materials, or any information contained

in them, the body must make all reasonable efforts to comply

with the wishes of the traditional custodians of the

traditional materials about the way in which the traditional

materials or information is to be dealt with.

Definitions

(2) In this section:

TRADITIONAL CUSTODIAN of traditional materials means a person

who, according to the traditional laws and customs concerned,

is responsible for the traditional materials.

TRADITIONAL MATERIALS means documents, records or other things

that are of significance to Aboriginal peoples or Torres

Strait Islanders according to their traditional laws and

customs.

[SECTION 203FCA]

REGISTRATION TEST

(H80) Schedule 2, page 200 (after line 9), after item 60, insert:

60A AFTER PARAGRAPH 186(1)(F)

Insert:

; (g) a description of the native title rights and interests in the claim

that:

(i) the Registrar in applying subsection 190B(6); or

(ii) a recognised State/Territory body in applying provisions equivalent to

that subsection;

considered, prima facie, could be established.

[SECTION 186]

(H81) Schedule 2, item 63, page 202 (after line 3), after subsection (3),

insert:

Amending Register where additional information provided

(3A) If:

(a) the Registrar accepts for registration a claim made in an application

under section 63 or an amended application under

subsection 64(4); and

(b) in accordance with this section, the Registrar includes in the

Register details of the claim and a description of the

nature and extent of the native title rights and interests

concerned; and

(c) afterwards, but before a native title determination in relation to

the application or amended application is made, the

applicant provides to the Registrar further information

relating to any native title rights and interests that

were claimed in the application but whose details and

description were not included in the Register; and

(d) the Registrar considers that, if the information had been provided

before the claim had been accepted for registration, the

details and description would have been included in the

Register;

the Registrar must amend the Register to include the details

and description.

[SECTION 190]

(H82) Schedule 2, item 63, page 202 (after line 29), at the end of

subsection (1), add:

Note: In the case of an amended application (under subsection

64(4)), the Registrar would be required to consider the

claim in the amended application even if the Registrar had

already accepted for registration the claim in the original

application. In such a case, if the claim in the amended

application were then accepted for registration, the

Registrar would be required under subsection 190(3) to

amend the Native Title Register to reflect the amendment.

[SECTION 190A]

(H83) Schedule 2, item 63, page 205 (line 22) to page 206 (line 28), omit

subsections (5) to (10), substitute:

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)).

[SECTION 190B]

(H84) Schedule 2, item 63, page 208 (after line 29), after subsection

(1), insert:

Content of notice where failure to satisfy physical connection

test

(1A) If the only reason why the Registrar cannot accept the claim

for registration is that the condition in subsection 190B(7)

(which is about a physical connection with the claim area) is

not satisfied, the notice must advise the applicant of the

applicant's right to make an application to the Federal Court

under subsection (2) and of the power of the Court to make an

order in accordance with subsection (4) in respect of the

application.

[SECTION 190D]

(H85) Schedule 2, item 63, page 209 (after line 7), at the end of section

190D, add:

Court order where physical connection test failed

(4) If, on an application under subsection (2) in a case to which

subsection (1A) 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

(5) Before making an order under subsection (4), 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.

[SECTION 190D]

(H86) Schedule 5, item 11, page 348 (lines 8 and 9), omit "non-exclusive

agricultural lease or a non-exclusive pastoral lease", substitute

"freehold estate or a lease (other than a mining lease)".

[ITEM 11 OF SCHEDULE 5]

Note about Schedule 5, item 11: The heading to subitem (4) (page

348, line 4) is altered by omitting "non-exclusive agricultural or

pastoral lease" and substituting "freehold estate or non-mining

lease".

MISCELLANEOUS

(H87) Schedule 2, page 149 (after line 10), after item 18, insert:

18A AT THE END OF DIVISION 6 OF PART 2

Add:

60AA BODY CORPORATE FOR MERIAM PEOPLE

(1) If:

(a) a body corporate is or becomes incorporated under the Aboriginal

Councils and Associations Act 1976; and

(b) all of the members of the body corporate are members of the Meriam

people (see subsection (2)); and

(c) one of the objects of the body corporate is to become a registered

native title body corporate in relation to native title

held by the Meriam people; and

(d) a member of the Meriam people applies to the Federal Court for a

determination under this section; and

(e) the Court is satisfied that the applicant represents the Meriam

people;

then:

(f) this Act applies as if the body corporate were a prescribed body

corporate nominated under subsection 56(2) or 57(2) in

relation to those native title holders; and

(g) the Court may make a determination under section 56 or 57, in

relation to that native title, as if the Court were doing

so at the same time as making an approved determination of

native title as mentioned in section 55; and

(h) if the Court makes such a determination under section 56 or 57-the

Native Title Registrar must enter the name and address of

the body corporate on the National Native Title Register;

and

(i) while those details are on the Register, the body corporate is taken

to be a REGISTERED NATIVE TITLE BODY CORPORATE for the

purposes of this Act.

(2) In this section:

MERIAM PEOPLE means the people who were described by the High

Court in its declaration in Mabo v Queensland [No. 2] (1992)

175 CLR 1 as the Meriam people.

[SECTION 60AA]

(H88) Schedule 2, page 210 (after line 11), after item 70, insert:

70A PARAGRAPH 206(D)

Omit "at the end of 2 years after the commencement of this Part",

substitute "from time to time".

[SECTION 206]

70B SECTION 207

Omit "at the end of 5 years after the Parliamentary Joint Committee

is first appointed", substitute "on 23 March 2004".

Senator Minchin moved-That the committee does not insist on its

amendments disagreed to by the House of Representatives and agrees to the

amendments made by the House of Representatives.

Debate ensued.

At 2 pm: The President resumed the chair and the Temporary Chair of

Committees (Senator Murphy) reported progress.