Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Native Title Amendment Bill 2009

Schedule 2 Powers of the Court

   

Native Title Act 1993

1  Subsection 87(1)

Omit “If”, substitute “This section applies if”

Note:       The heading to subsection 87(1) is replaced by the heading “ Application ”.

2  Paragraph 87(1)(c)

Omit “Court; and”, substitute “Court.”.

3  Subsection 87(1)

Omit all the words after paragraph (c).

4  After subsection 87(1)(c)

Insert:

Power of Court

          (1A)  The Court may, if it appears to the Court to be appropriate to do so, act in accordance with:

                     (a)  whichever of subsection (2) or (3) is relevant in the particular case; and

                     (b)  if subsection (5) applies in the particular case—that subsection.

5  At the end of section 87

Add:

Orders about matters other than native title

             (4)  Without limiting subsection (2) or (3), if the order under that subsection does not involve the Court making a determination of native title, the order may give effect to terms of the agreement that involve matters other than native title.

             (5)  Without limiting subsection (2) or (3), if the order under that subsection involves the Court making a determination of native title, the Court may also make an order under this subsection that gives effect to terms of the agreement that involve matters other than native title.

             (6)  The jurisdiction conferred on the Court by this Act extends to:

                     (a)  making an order under subsection (2) or (3) that gives effect to terms of the agreement that involve matters other than native title; and

                     (b)  making an order under subsection (5).

             (7)  The regulations may specify the kinds of matters other than native title that an order under subsection (2), (3) or (5) may give effect to.

Agreed statement of facts

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

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

           (10)  In considering whether to make an order under subsection (2), (3) or (5), the Court may accept a statement of facts that has been agreed to by some or all of the parties to the proceedings but only if those parties include:

                     (a)  the applicant; and

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

           (11)  In considering whether to accept under subsection (10) a statement of facts agreed to by some of the parties to the proceedings, the Court must take into account any objections that are made by the other parties to the proceedings within 21 days after the notice is given under subsection (9).

6  Subsection 87A(4)

After “consistent with,” (wherever occurring), insert “the terms of”.

Note:       The heading to subsection 87A(4) is altered by omitting “ Order ” and substituting “ Orders ”.

7  Subsection 87A(5)

Repeal the subsection, substitute:

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

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

                     (b)  it would be appropriate to do so.

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

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

Objections

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

Agreed statement of facts

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

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

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

                     (a)  the applicant; and

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

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