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Native Title Amendment Bill 2009

Schedule 4 Assistance in relation to inquiries etc.

   

Native Title Act 1993

1  Section 183

Repeal the section.

2  After section 213

Insert:

213A   Assistance from Attorney-General

Assistance in relation to inquiries etc.

             (1)  A person who is a party, or who intends to apply to be a party, to an inquiry, mediation or proceeding related to native title may apply to the Attorney-General for the provision of assistance under this section in relation to the inquiry, mediation or proceeding.

Assistance in relation to agreements and disputes

             (2)  A person who:

                     (a)  is or intends to become a party to an indigenous land use agreement or an agreement about rights conferred under subsection 44B(1); or

                     (b)  is in dispute with any other person about rights conferred under subsection 44B(1);

may apply to the Attorney-General for the provision of assistance under this section in relation to:

                     (c)  negotiating the agreement; or

                     (d)  any inquiry, mediation or proceeding in relation to the agreement; or

                     (e)  resolving the dispute.

             (3)  A person who is, or intends to become, a grantee party in relation to a future act to which Subdivision P of Division 3 of Part 2 applies may apply to the Attorney-General for the provision of assistance under this section in relation to:

                     (a)  the development of a standard form of agreement to facilitate negotiation in good faith as mentioned in paragraph 31(1)(b); or

                     (b)  the development of a standard form of agreement which, if agreed by a grantee party in relation to a future act to which the Subdivision applies, would make it more likely that the Government party doing the act would consider it an act attracting the expedited procedure; or

                     (c)  a review of an existing standard form of agreement mentioned in paragraph (a) or (b), with a view to improving the standard form.

Note:          Subdivision P of Division 3 of Part 2 deals with the right to negotiate.

Attorney-General may grant assistance

             (4)  If the Attorney-General is satisfied that:

                     (a)  the applicant is not eligible to receive assistance in relation to the matter concerned from any other source (including from a representative Aboriginal/Torres Strait Islander body); and

                     (b)  the provision of assistance to the applicant in relation to the matter concerned is in accordance with the guidelines (if any) made under subsection (5); and

                     (c)  in all the circumstances, it is reasonable that the application be granted;

the Attorney-General may authorise the provision by the Commonwealth to the applicant, either unconditionally or subject to such conditions as the Attorney-General determines, of such legal or financial assistance as the Attorney-General determines.

Attorney-General may make guidelines

             (5)  The Attorney-General may, in writing, make guidelines that are to be applied in authorising the provision of assistance under this section.

Assistance not to be provided to Ministers

             (6)  The Attorney-General cannot authorise the provision of assistance under this section to the Commonwealth Minister, a State Minister or a Territory Minister.

Assistance not to be provided to native title claimants etc.

             (7)  The Attorney-General must not authorise the provision of assistance under this section to a person in relation to:

                     (a)  any claim by the person, in an inquiry, mediation or proceeding, to hold native title or to be entitled to compensation in relation to native title; or

                     (b)  an indigenous land use agreement, if the person holds or claims to hold native title in relation to the area covered by the agreement; or

                     (c)  an agreement or dispute about rights conferred under subsection 44B(1), if the person is included in the native title claim group concerned.

Delegation by Attorney-General

             (8)  The Attorney-General may, in writing, delegate any or all of his or her powers under subsection (4) to:

                     (a)  the Secretary of the Department; or

                     (b)  a person engaged under the Public Service Act 1999 who occupies a specified position in the Department.

3  Transitional and saving provisions relating to section 183 of the Native Title Act

(1)       An application made under subsection 183(1) of the Native Title Act 1993 but not determined before the commencement of this item is taken to have been made under subsection 213A(1) of that Act as inserted by this Schedule.

(2)       An application made under subsection 183(2) of the Native Title Act 1993 but not determined before the commencement of this item is taken to have been made under subsection 213A(2) of that Act as inserted by this Schedule.

(3)       An application made under subsection 183(2A) of the Native Title Act 1993 but not determined before the commencement of this item is taken to have been made under subsection 213A(3) of that Act as inserted by this Schedule.

(4)       If:

                     (a)  the provision of assistance was authorised under subsection 183(3) of that Act before the commencement of this item; and

                     (b)  the assistance has not been provided before that commencement;

then, despite the repeal of that subsection by this Schedule, the authorisation has effect, after that commencement, as if it were an authorisation under subsection 213A(4) of that Act as inserted by this Schedule.

(5)       Guidelines determined under subsection 183(4) of that Act that were in force immediately before the commencement of this item continue to have effect after that commencement as if they were guidelines made under subsection 213A(5) of that Act as inserted by this Schedule.

(6)       A delegation in force under subsection 183(7) of that Act immediately before the commencement of this item continues to have effect after that commencement as if it were a delegation under subsection 213A(8) of that Act as inserted by this Schedule.