Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Native Title Amendment Bill 2012

Bill home page  


Download WordDownload Word


Download PDFDownload PDF

7385

2010-2011-2012-2013

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

 

Native Title Amendment Bill 2012

 

 

(1)           Schedule 1, page 3 (after line 11), after item 1, insert:

1A  Subsection 35(1)

Omit “Any”, substitute “Subject to subsection (1A), any”.

[arbitral body determination]

(2)           Schedule 1, page 3 (after line 11), after item 1, insert:

1B  After subsection 35(1)

Insert:

          (1A)  A negotiation party may not apply to the arbitral body under subsection (1) unless the negotiation party has negotiated in good faith using all reasonable efforts, in accordance with section 31.

[arbitral body determination]

(3)           Schedule 1, item 2, page 3 (after line 34), after paragraph (1)(c), insert:

            ; and (d)  before a determination on the application is made, there is an agreement in writing between the applicant and the Government party that the extinguishment of native title rights or interests by a prior act affecting native title in relation to the area, or any part of the area, covered by the application be disregarded.

[prior extinguishment]

(4)     Page 17 (after line 6), at the end of the Bill, add:

Schedule 5—Further amendments

Native Title Act 1993

1  After section 61

Insert:

61AA   Presumptions relating to applications

             (1)  This section applies to an application for a native title determination brought under section 61 if the following circumstances exist:

                     (a)  the native title claim group defined in the application applies for a determination of native title rights and interests where the rights and interests are found to be possessed under laws acknowledged and customs observed by the native title claim group;

                     (b)  the members of the native title claim group reasonably believe the laws so acknowledged and the customs so observed to be traditional;

                     (c)  the members of the native title claim group, by the laws acknowledged and the customs observed, have a connection with the land or waters that are the subject of the application;

                     (d)  the members of the native title claim group reasonably believe that persons, from whom one or more of them is descended, acknowledged traditional laws and observed traditional customs at sovereignty by which those persons had a connection with the land or waters that are the subject of the application.

             (2)  If this section applies to an application, it must be presumed, in the absence of proof to the contrary:

                     (a)  that the laws acknowledged and customs observed by the native title claim group are traditional laws acknowledged and traditional customs observed at sovereignty; and

                     (b)  that the native title claim group has a connection with the land or waters by those traditional laws and traditional customs; and

                     (c)  if the native title rights and interests asserted are capable of recognition by the common law—that the facts necessary for the recognition of those rights and interests by the common law are established.

61AB   Continuing connection

                   A court may determine that subsection 223(1) has been satisfied, despite finding that there has been:

                     (a)  a substantial interruption in the acknowledgement of traditional laws or the observance of traditional customs; or

                     (b)  a significant change to traditional laws acknowledged or traditional customs observed;

if the primary reason for the substantial interruption or the significant change is the action of a State or a Territory or a person or other party who is not an Aboriginal person or a Torres Strait Islander.

2  Subsection 61A(4) (heading)

Repeal the heading, substitute:

Section not to apply in section 47, 47A, 47B, 47C or 47D cases

3  Paragraph 61A(4)(a)

Omit “or 47B”, substitute “, 47B, 47C or 47D”.

4  Paragraph 61A(4)(b)

Omit “or 47B”, substitute “, 47B, 47C or 47D”.

5  After subsection 223(1)

Insert:

Traditional laws and customs

          (1A)  Without limiting subsection (1), traditional laws acknowledged in that subsection includes such laws as remain identifiable through time, regardless of whether there is a change in those laws or in the manner in which they are acknowledged.

          (1B)  Without limiting subsection (1), traditional customs observed in that subsection includes such customs as remain identifiable through time, regardless of whether there is a change in those customs or in the manner in which they are observed.

Connection

          (1C)  To avoid doubt, and without limiting subsection (1), it is not necessary for a connection with the land or waters referred to in paragraph (1)(c) to be a physical connection.

          (1D)  Nothing in subsection (1) requires:

                     (a)  traditional laws to be acknowledged continuously; or

                     (b)  traditional customs to be observed continuously; or

                     (c)  a connection with the land or waters to be maintained continuously.

6  Subsection 223(2)

Repeal the subsection, substitute:

Hunting, gathering and fishing rights and interests, rights to trade, and other rights and interests of a commercial nature covered

             (2)  Without limiting subsection (1), rights and interests in that subsection includes:

                     (a)  hunting, gathering, or fishing, rights and interests; and

                     (b)  the right to trade and other rights and interests of a commercial nature.

7  Application of amendments

             (1)  This item applies if:

                     (a)  a claimant application; or

                     (b)  a revised native title determination application;

made under the Native Title Act 1993 before the commencement of item 8, has not been determined.

             (2)  The amendments made by this Schedule apply in relation to the application.

             (3)  The application:

                     (a)  may be amended to state that section 47C or 47D applies to it; and

                     (b)  if it is so amended—must, for the purposes of sections 63 and 66 of the Native Title Act 1993 , be treated as if it were a new application filed in the Federal Court under section 61 of that Act, accompanied by:

                              (i)  any affidavit under paragraph 62(1)(a) or (3)(a); and

                             (ii)  any prescribed documents under paragraph 61(5)(d);

                            that accompanied the application when it was originally filed.

[onus of proof]