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

 Download WordDownload Word  Download PDFDownload PDF 


Bill home page
Table Of Contents
Previous Fragment    Next Fragment
Native Title Amendment Bill 1996
Schedule 1 Amendment of the Native Title Act 1993

Part 1— Amendments related to applications

1  Section 4 (table, entry relating to Part 6, after paragraph (d))

Insert:

                    (da)  Division 4A contains provisions dealing with mediation conferences;

2  Subsection 13(1)

Omit “Registrar”, substitute “Federal Court”.

Note:       The heading to subsection 13(1) is altered by omitting “ Native Title Registrar ” and substituting “ Federal Court ”.

3  Paragraph 13(2)(a)

Omit “the NNTT or”.

Note:       The heading to subsection 13(2) is altered by omitting “ NNTT or ”.

4  Subsection 13(2)

Omit “NNTT or”.

5  Paragraphs 13(4)(a) and (6)(a)

Omit “the NNTT or”.

6  Paragraph 28(1)(a)

Omit “2 months”, substitute “3 months”.

7  Paragraphs 30(a) and (b)

Omit “2 months”, substitute “3 months”.

8  Subsection 32(3)

Omit “2 months”, substitute “3 months”.

9  Subsection 50(2)

Omit “Registrar”, substitute “Federal Court”.

Note:       The heading to subsection 50(2) is altered by omitting “ Registrar ” and substituting “ Federal Court ”.

10  Section 55

Omit “the NNTT or” (wherever occurring).

Note:       The heading to section 55 is altered by omitting “ NNTT and ”.

11  Subsection 56(1)

Omit “the NNTT or”.

12  Subsection 56(2)

Omit “NNTT or the” (wherever occurring).

13  Subsection 56(4)

Omit “the NNTT or”.

14  Subsection 57(2)

Omit “the NNTT or” (wherever occurring).

15  Subsection 61(1)

Omit “Native Title Registrar”, substitute “Federal Court”.

16  Subsection 61(1) (table, column dealing with Persons who may make application, row dealing with Revised native title determination application)

Before “Registrar”, insert “Native Title”.

17  Subsection 61(2)

Omit “given to the Registrar”, substitute “filed in the Federal Court”.

18  Before paragraph 62(1)(a)

Insert:

                    (aa)  state the name and the address of the person who is to be taken to be the claimant; and

19  Paragraph 62(1)(a)

Omit “applicant that the applicant”, substitute “claimant that he or she”.

20  Paragraph 62(1)(b)

Omit “applicant”, substitute “claimant”.

21  Paragraph 62(1)(d)

Repeal the paragraph, substitute:

                     (d)  give brief details of any other applications to the High Court, Federal Court or a recognised State/Territory body, of which the claimant is aware, that have been made in relation to the whole or a part of the area and that seek a determination of native title; and

                     (e)  give brief details of any notices under section 24A or 29 (or under a corresponding provision of a law of a State or Territory), of which the claimant is aware, that have been given and that relate to the whole or a part of the area.

22  Subsection 62(1) (note)

Repeal the note, substitute:

Note:          The person whose name is given under paragraph (1)(aa) will be the registered native title claimant while the claim is entered on the Register of Native Title Claims.

23  Sections 63 , 64 and 65

Repeal the sections, substitute:

63   Reference of applications to Native Title Registrar

                   If an application that complies with sections 61 and 62 is filed in the Federal Court, the Federal Court must, as soon as practicable, give a copy of the application to the Native Title Registrar.

64   Amendment of applications

Amendment not to result in inclusion of additional areas

             (1)  An amendment of an application cannot result in the inclusion of any area of land or waters that was not covered by the original application.

Note:          The Federal Court Rules provide for the amendment of applications.

Federal Court to give copy of amended application to Native Title Registrar

             (2)  If an application is amended, the Federal Court must, as soon as practicable, give a copy of the amended application to the Native Title Registrar.

Federal Court may direct Native Title Registrar to give notice

             (3)  The Court may, if it considers it necessary, direct the Native Title Registrar to give such notice of the amended application as the Court considers appropriate.

24  Subsection 66(1)

Repeal the subsection, substitute:

Notification by Native Title Registrar

             (1)  If the Native Title Registrar is given a copy of an application under section 63, the Registrar must give notice of the application to all persons whose interests may be affected by a determination in relation to the application. The Registrar may also give notice to such other persons as the Registrar considers appropriate.

Copy of notice to Federal Court

          (1A)  The Registrar is to give a copy of the notice to the Federal Court.

Note:       The heading to section 66 is altered by omitting “ Action to be taken in relation to accepted ” and substituting “ Notification of ”.

25  After subsection 66(2)

Insert:

Notice to specify date

          (2A)  The notice must specify the day on which it is taken to have been given, which cannot be earlier than 14 days after the last day on which notice under paragraph (2)(a) is dispatched.

26  Paragraph 66(3)(b)

Omit “other”.

27  Paragraph 66(3)(b)

Omit “Registrar”, substitute “Federal Court”.

28  Paragraph 66(3)(b)

Omit “2 months”, substitute “3 months”.

29  Subsections 67(2) , (3) and (4)

Repeal the subsections, substitute:

Effect of an application by native title claimant to Federal Court

             (2)  If a person or persons claiming to hold native title file in the Federal Court a native title determination application (the claimant application ) that covers any part of the area covered by the non-claimant application, the claimant application and the non-claimant application may be combined, under the Rules of Court, into the same matter.

Note:       The heading to section 67 is altered by omitting “ Special procedure in relation to ” and substituting “ Combining ”.

30  Sections 68 to 74

Repeal the sections.

31  Paragraph 78(2)(b)

Omit “referred to in subparagraph 62(1)(a)(i)”, substitute “of registers or other records of current or former interests in land or waters”.

32  Subsection 79(1)

Omit “(whether or not during a conference under section 72)”.

33  Section 80

Omit “lodged with the Federal Court under section 74”, substitute “filed in the Federal Court that relate to native title”.

34  Section 81

Omit “lodged with it under section 74”, substitute “filed in the Court that relate to native title”.

35  After section 83

Insert:

83A   Native Title Registrar to conduct searches

                   The Federal Court may, for the purposes of a proceeding, request the Native Title Registrar to conduct searches of registers or other records of current or former interests in land or waters and to report the results to the Court.

36  Subsection 84(1)

Repeal the subsection, substitute:

Applicant

             (1)  The applicant is a party.

Affected persons

          (1A)  Another person is a party to a proceeding in relation to an application if:

                     (a)  the person is covered by any of subparagraph 66(2)(a)(i), (iv), (v) or (vi), or the person’s interests may be affected by a determination in the proceeding; and

                     (b)  the person notifies the Federal Court, in writing, within the period specified in the notice under section 66, that the person wants to be a party to the proceeding.

State or Territory Ministers

          (1B)  If any of the area covered by the application is within the jurisdictional limits of a State or Territory, the State Minister or Territory Minister for the State or Territory is a party unless the Minister gives the Federal Court written notice, within the period specified in the notice under section 66, that the Minister does not want to be a party.

Commonwealth may become party to compensation application at any time

          (1C)  The Commonwealth may, at any time, become a party to a compensation application under section 61.

37  At the end of section 84

Add:

Parties may withdraw

             (3)  In addition to any other rights to withdraw from a proceeding, any party to a proceeding, other than the applicant, may, at any time before the first hearing of the proceeding, cease to be a party by giving written notice to the Court.

38  After section 84

Insert:

84A   Intervention by Commonwealth Minister

Commonwealth Minister may intervene

             (1)  The Commonwealth Minister may, at any time, on behalf of the Commonwealth, by giving written notice to the Federal Court, intervene in a proceeding before the Court in a matter arising under this Act.

Court may order costs against Commonwealth

             (2)  If the Commonwealth Minister intervenes in a proceeding before the Court, the Court may make an order as to costs against the Commonwealth.

Commonwealth Minister taken to be a party for purposes of appeal

             (3)  If the Commonwealth Minister intervenes in a proceeding before the Court, then, for the purposes of the institution and prosecution of an appeal from a judgment given in the proceeding, the Commonwealth Minister is taken to be a party to the proceeding.

Court may order costs against Commonwealth if Commonwealth Minister appeals

             (4)  If, under subsection (3), the Commonwealth Minister institutes an appeal from a judgment, a court hearing the appeal may make an order as to costs against the Commonwealth.

84B   Parties may appoint an agent

             (1)  A party to a proceeding may appoint a society, organisation, association or other body to act as agent on behalf of the party in relation to the proceeding.

             (2)  The same body may act as agent for 2 or more parties in the same proceeding.

Example:    An industry body may act as agent for a number of its members who are parties to a particular proceeding.

39  After section 86

Insert:

Division 1A Reference to NNTT for mediation

86A   Referral of matters to NNTT for mediation

Purpose of mediation in a proceeding not involving compensation

             (1)  The purpose of mediation in a proceeding that does not involve a compensation application is to assist the parties to reach agreement on some or all of the following matters:

                     (a)  whether native title exists in relation to the area of land or waters covered by the application;

                     (b)  if it exists:

                              (i)  who holds it; and

                             (ii)  whether the native title rights and interests confer possession, occupation, use and enjoyment of the land or waters on its holders to the exclusion of all others; and

                            (iii)  if the native title rights and interests do not confer such exclusive rights—the nature and extent of any native title rights and interests; and

                            (iv)  the nature and extent of any other interests in relation to the land or waters that may affect the native title rights and interests.

Note:          The matters set out in paragraphs (a) and (b) reflect those that are required, under section 225, for a determination of native title.

Purpose of mediation in a proceeding involving compensation

             (2)  The purpose of mediation in a proceeding that involves a compensation application is to assist the parties to reach agreement on some or all of the following matters:

                     (a)  whether native title exists, or existed, in relation to the area of land or waters covered by the application;

                     (b)  if it exists or existed:

                              (i)  who holds or held it; and

                             (ii)  whether the native title rights and interests confer or conferred possession, occupation, use and enjoyment of the land or waters on its holders to the exclusion of all others; and

                            (iii)  if the native title rights and interests do not, or did not, confer such exclusive rights—the nature and extent of any native title rights; and

                            (iv)  the nature and extent of any other interests in relation to the land or waters that may affect, or may have affected, the native title rights and interests;

                     (c)  the amount or kind of any compensation payable;

                     (d)  the name of the person or persons entitled to any compensation or the method for determining the person or persons;

                     (e)  the method (if any) for determining the amount or kind of compensation to be given to each person;

                      (f)  the method for determining any dispute regarding the entitlement of a person to an amount of compensation.

Note 1:       The matters set out in paragraphs (a) and (b) reflect those that are required, under section 225, for a determination of native title.

Note 2:       The matters set out in paragraphs (c) to (f) reflect the matters that, under section 94, must be set out in an order for compensation.

Federal Court must refer applications to mediation

             (3)  Unless an order is made under subsection (5) that there be no mediation, the Federal Court must refer every application under section 61 to the NNTT for mediation, including the ascertaining of agreed facts, as soon as practicable after the end of the period specified in the notice under section 66.

Referral even if parties not determined

             (4)  A referral may be made even if all of the parties to the proceeding have not been determined.

Court may order no mediation

             (5)  The Court may, on application by a party to the proceeding, or of its own motion, make an order that there be no mediation in relation to the whole of the proceeding or a part of the proceeding.

No mediation if it will be unnecessary or unsuccessful

             (6)  The Court, upon application under subsection (5) or if it is considering making an order of its own motion, must order that there be no mediation in relation to the whole of the proceeding or a part of the proceeding if the Court considers that:

                     (a)  any mediation will be unnecessary in relation to the whole or that part; or

                     (b)  the parties will be unable to reach agreement on, or on facts relevant to, any of the matters set out in subsection (1) or (2) in relation to the whole or that part.

Factors to take into account

             (7)  In deciding whether to make an order that there be no mediation in relation to the whole of the proceeding or a part of the proceeding, the Court is to take the following factors into account:

                     (a)  the number of parties;

                     (b)  the number of those parties who have appointed the same agent under section 84B;

                     (c)  how long it is likely to take to reach agreement on the matters set out in subsection (1) or (2) in relation to the whole or the part of the proceeding;

                     (d)  the size of the area involved;

                     (e)  the nature and extent of interests in relation to the land and waters in the area that are held by persons other than as native title holders.

Whole or part of a proceeding may be referred at any time

             (8)  In addition to referring a proceeding to mediation under subsection (3), the Court may, at any time in a proceeding, refer the whole or a part of the proceeding to the NNTT for mediation if the Court considers that the parties will be able to reach agreement on, or on facts relevant to, any of the matters set out in subsection (1) or (2).

Court may order mediation to cease

             (9)  The Court may, of its own motion, at any time in a proceeding, order that mediation is to cease in relation to the whole or a part of the proceeding if the Court considers that:

                     (a)  any further mediation will be unnecessary in relation to the whole or that part; or

                     (b)  the parties will be unable to reach agreement on, or on facts relevant to, any of the matters set out in subsection (1) or (2) in relation to the whole or that part.

Party may seek cessation of mediation

           (10)  A party to a proceeding may, at any time after 3 months after the start of mediation, apply to the Court for an order that mediation cease in relation to the whole of the proceeding or a part of the proceeding.

Court must order mediation to cease unless satisfied it will be successful

           (11)  If an application is made under subsection (10), the Court must make an order that mediation is to cease unless the Court is satisfied that the mediation will be successful in enabling the parties to reach agreement on any of the matters set out in subsection (1) or (2) in relation to the whole or the part of the proceeding.

Court may consider NNTT report

           (12)  The Court, in deciding whether to make an order under subsection (9) or (11), may take into account any report provided by the NNTT under section 86B.

Court may determine law or fact

           (13)  The Court may, at any time during mediation, determine a question of law or fact that is referred to it by the NNTT.

Court may adopt agreement on facts

           (14)  The Court may adopt any agreement on facts between the parties, reached during mediation.

86B   Federal Court may request reports from NNTT

                   The Federal Court may request the NNTT to provide reports on the progress of any mediation under this Division being undertaken by the NNTT and may specify when the report is to be provided.

Division 1B Agreements and unopposed applications

86C   Unopposed applications

Federal Court may make order

             (1)  If, at any stage of a proceeding in relation to an application under section 61, but after the end of the period specified in the notice given under section 66:

                     (a)  the application is unopposed; and

                     (b)  the Federal Court is satisfied that an order in, or consistent with, the terms sought by the applicant is within the power of the Court;

the Court may, if it appears appropriate to do so, make such an order without holding a hearing or, if a hearing has started, without completing the hearing.

Meaning of unopposed

             (2)  For the purpose of this section, an application is unopposed if the only party is the applicant or if each other party notifies the Federal Court in writing that he or she does not oppose an order in, or consistent with, the terms sought by the applicant.

40  Subsection 87(1)

After “at any stage of proceedings”, insert “after the end of the period specified in the notice given under section 66”.

41  After section 97

Insert:

97A   Searches for Federal Court

                   The Registrar has the power to conduct, or arrange for the conducting of, searches as requested by the Federal Court under section 83A.

42  After subsection 108(1)

Insert:

Mediation for Federal Court proceedings

          (1A)  The Tribunal also has the functions in relation to Federal Court proceedings given to the Tribunal by Division 4A.

Negotiations under section 24A

          (1B)  The Tribunal also has the function of providing assistance sought under subsection 24A(8) to the extent the President considers this is reasonable.

43  Subsection 109(2)

Omit “conducting inquiries”, substitute “carrying out its functions”.

44  Subsection 109(3)

Omit “conducting an inquiry”, substitute “carrying out its functions”.

45  Subsection 123(1)

Omit “sections 69 and”, substitute “section”.

46  Paragraph 123(1)(b)

Repeal the paragraph, substitute:

                     (b)  the persons who are to conduct mediation in a particular proceeding;

47  Paragraph 123(1)(c)

Omit “, or for the purposes of making a decision under section 69”.

48  Subsection 124(1)

Omit “Subject to section 69, the”, substitute “The”.

49  After section 136

Insert:

Division 4A Mediation conferences

136A   Mediation conferences

President to direct conference to be held

             (1)  If the Federal Court refers the whole or a part of a proceeding to the NNTT under section 86A for mediation, the President must direct the holding of such conferences of the parties or their representatives as the President considers will help in resolving the matter.

Member must preside

             (2)  A conference must be presided over by a member of the Tribunal.

Note:          Under section 136B a consultant may be engaged for the purposes of conducting mediation in a particular proceeding. If this occurs, this Division applies as if the consultant were a member of the Tribunal.

Assistance for presiding member

             (3)  The member presiding at a conference may be assisted by another member of the Tribunal or by a member of the staff of the Tribunal.

Statements at conference are without prejudice

             (4)  In a proceeding before the Court, unless the parties otherwise agree, evidence may not be given, and statements may not be made, concerning any word spoken or act done at a conference.

Member not to take further part in relation to a proceeding

             (5)  Unless the parties otherwise agree, a member who presides over, or assists at, a conference in relation to a proceeding may not, in any other capacity, take any further part in the proceeding.

Participation by telephone etc.

             (6)  The presiding member may allow a person to participate by:

                     (a)  telephone; or

                     (b)  closed-circuit television; or

                     (c)  any other means of communication.

136B   President may engage consultants to conduct mediation

             (1)  The President may engage a person as a consultant to conduct mediation in relation to a particular matter under this Division.

Division applies as if consultant were a member

             (2)  If a consultant is engaged to conduct mediation in relation to a particular matter under this Division, this Division applies in relation to that matter as if the consultant were a member of the Tribunal.

Consultants to have relevant skills or knowledge

             (3)  The President may only engage a person under subsection (1) to conduct mediation in relation to a particular matter if the person has, in the opinion of the President, particular skills or knowledge in relation to matters of substantial relevance to the conduct of the mediation in that matter.

Engagements to be in writing

             (4)  An engagement under subsection (1) must be made:

                     (a)  on behalf of the Commonwealth; and

                     (b)  by written agreement.

Consultant subject to President’s direction

             (5)  A consultant engaged under subsection (1) is subject to directions given by the President under subsection 123(1).

136C   Parties at conferences

Parties may be excluded

             (1)  The presiding member may direct that one or some of the parties not attend, and not be represented, at a conference.

Basis for excluding parties

             (2)  The presiding member may do this only if he or she considers it would assist the resolution of a matter that is the subject of the mediation.

Parties may be represented

             (3)  A party may be represented by a barrister, a solicitor or another person.

136D   Other persons attending or participating in conferences

Other persons may attend or participate if parties consent

             (1)  The presiding member may, with the consent of all of the parties present at a conference, direct that other persons be permitted to attend, or participate in, the conference.

Basis for allowing participation

             (2)  The presiding member may do this only if he or she considers it would assist the parties to reach agreement on any of the matters mentioned in subsection 86A(1) or (2).

136E   Referral of questions of law or fact

Reference of questions to Federal Court

             (1)  Subject to subsections (2) and (3), the presiding member may refer to the Federal Court a question of law or fact relating to the proceeding that arises during mediation.

Presiding member not a consultant

             (2)  If the presiding member is not a consultant engaged under subsection 136B(1), the question may only be referred to the Court under subsection (1):

                     (a)  on the initiative of the presiding member; or

                     (b)  at the request of a party, if the presiding member agrees.

Presiding member a consultant

             (3)  If the presiding member is a consultant engaged under subsection 136B(1), the question may only be referred to the Court under subsection (1):

                     (a)  on the initiative of the presiding member, if a presidential member agrees; or

                     (b)  at the request of a party, if both the presiding member and a presidential member agree.

Jurisdiction of Federal Court

             (4)  The Court has jurisdiction to hear and determine a question of law or fact referred to it under this section.

Mediation may continue

             (5)  If a question of law or fact arising during mediation has been referred to the Court under this section, the presiding member may continue mediation if he or she considers that it is appropriate.

136F   Conferences to be held in private

                   A conference must be held in private.

136G   Presiding member may prohibit disclosure of evidence

Power of presiding member

             (1)  The presiding member may direct that:

                     (a)  any evidence given, or statements made, at a conference; or

                     (b)  the contents of any document produced at a conference;

must not be disclosed, or must not be disclosed except in such manner, and to such persons, as the presiding member specifies.

Applications etc.

             (2)  The presiding member may make the direction on his or her own initiative or on an application by a party.

136H   Report to be given to Federal Court

             (1)  The presiding member must, as soon as practicable after mediation is successfully concluded, provide a written report to the Federal Court setting out the results of the mediation.

             (2)  The presiding member must provide a written report to the Federal Court setting out the progress of the mediation if requested to do so under section 86B.

             (3)  The presiding member may provide a written report to the Federal Court setting out the progress of the mediation if the presiding member considers that it would assist the Federal Court in progressing the proceeding in relation to which the mediation is being undertaken.

             (4)  Any report under this section must include any agreement on facts between the parties that was reached during the mediation concerned.

50  Paragraph 139(a)

Repeal the paragraph.

51  Subsection 141(1)

Repeal the subsection.

52  Section 148

Repeal the section.

53  Subsection 154(1)

Omit “an inquiry”, substitute “a hearing”.

Note:       The heading to section 154 is altered by omitting “ Inquiries ” and substituting “ Hearings ”.

Note:       The heading to subsection 154(1) is altered by omitting “ inquiries ” and substituting “ hearings ”.

54  Subsection 154(3)

Omit “an inquiry, or part of an inquiry,”, substitute “a hearing, or part of a hearing,”.

Note:       The heading to subsection 154(3) is altered by omitting “ inquiries ” and substituting “ hearings ”.

55  Subsection 154(4)

Omit “an inquiry or part of an inquiry”, substitute “a hearing or part of a hearing”.

56  Sections 160, 161 and 165

Repeal the sections.

57  Subdivision E of Division 5 of Part 6

Repeal the Subdivision.

58  Subsections 169(2) and (3)

Repeal the subsections.

59  Section 176

After “section 92”, insert “, 136G”.

60  Paragraph 177(a)

Omit “or a member”, substitute “, a member or a consultant engaged under subsection 136B(1)”.

61  Section 178

Omit “a determination of the Tribunal is lodged with the Federal Court under section 166,”.

62  Subsection 181(3)

After “member of the Tribunal”, insert “or a consultant engaged under subsection 136B(1)”.

63  Subsection 183(1)

Omit all of the words before “may”, substitute “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”.

64  Subsection 183(1)

After “the inquiry”, insert “, mediation”.

65  Subsection 183(2)

After “inquiry” (wherever occurring), insert “, mediation”.

66  Section 184

Omit “given to the Registrar, or”, substitute “filed in the Federal Court, or given”.

67  Subsection 185(2)

Before “Registrar”, insert “Native Title”.

68  Subsection 186(1)

After “each claim”, insert “covered by subsection 190(1)”.

69  Paragraph 186(1)(a)

Omit “lodged with the Registrar or”, substitute “filed in the Federal Court or lodged with”.

70  Paragraph 186(1)(c)

After “was”, insert “filed or”.

71  After paragraph 186(1)(c)

Insert:

                    (ca)  the date that the claim is entered on the Register;

72  Section 189

Before “Registrar of the High Court”, insert “Senior”.

Note:       The heading to section 189 is altered by inserting “ Senior ” before “ Registrar of the High Court ”.

73  After paragraph 189(a)

Insert:

                    (aa)  the details of any amendment or withdrawal of such a claim; and

74  At the end of section 189

Add:

             (2)  Details of any claim, or of any amendment of a claim, must be accompanied by a copy of the application containing the claim or the amendment of the claim.

75  After section 189

Insert:

189A   Federal Court to notify Native Title Registrar

                   The Federal Court must, as soon as practicable, notify the Native Title Registrar of:

                     (a)  the withdrawal of an application that contains a claim that is covered by an entry on the Register; and

                     (b)  the details of any decision or determination covering a claim (whether or not covered by an entry on the Register) made by the Federal Court.

76  Subsection 190(1)

Omit “after becoming aware of them”.

77  Paragraph 190(1)(a)

Omit “contained in applications given to the Registrar”, substitute “accepted for registration by the Registrar under section 190A”.

78  Paragraph 190(1)(b)

After “section 189”, insert “that are accepted for registration by the Registrar under section 190A”.

79  Paragraph 190(1)(c)

After “claims”, insert “that have been found to satisfy conditions equivalent to those set out in section 190A, being claims”.

80  After subsection 190(1)

Insert:

Amending Register after amendment of claims

          (1A)  If a recognised State/Territory body notifies the Registrar of an amendment of an application containing a claim that is on the Register, the Registrar must, as soon as practicable:

                     (a)  if the claim as set out in the amended application has been found to satisfy conditions equivalent to those set out in section 190A—amend the Register to reflect the amendment; or

                     (b)  if the claim as set out in the amended application has been found not to satisfy conditions equivalent to those set out in section 190A—amend the Register to remove any entry relating to the claim.

81  Before subsection 190(2)

Insert:

          (1B)  If:

                     (a)  the Registrar is given a copy of an amended application under subsection 64(2) that contains a claim or amends a claim; or

                     (b)  the Registrar is notified under section 189 of an amendment of a claim;

the Registrar must, as soon as practicable:

                     (c)  if the claim is accepted for registration under section 190A—amend the Register to reflect the amendment; or

                     (d)  if the claim is not accepted for registration under section 190A—amend the Register to remove any entry relating to the claim.

82  Paragraph 190(2)(a)

Repeal the paragraph.

83  Paragraph 190(2)(b)

Omit “196”, substitute “189A”.

84  After paragraph 190(2)(c)

Insert:

                 or (d)  the Registrar is notified that an application that contained a claim has been withdrawn;

85  Subsection 190(2)

Omit all the words after “must,”, substitute:

                   as soon as practicable:

                     (e)  if the application in question has been withdrawn, dismissed or otherwise finalised—remove the entry in the Register that relates to the claim; or

                      (f)  in any other case—amend the entry in the Register that relates to the claim so that it only relates to the matters in relation to which the application has not been finalised.

Note:       If an application has been finalised in relation to part of the area claimed, the Register would be amended to remove references to that area. If the application has been finalised by an approved determination of native title, that determination would be entered on the National Native Title Register.

Note:       The heading to subsection 190(2) is replaced by the heading “ Entries removed or amended after determination, decision or withdrawal ”.

86  Subsection 192(2)

Before “Registrar”, insert “Native Title”.

87  Paragraph 193(1)(a)

Omit “the NNTT,”.

88  Section 196

Repeal the section.

89  Section 222 (table, entry relating to unopposed application)

Repeal the entry.

90  Subparagraph 251(2)(a)(ii)

Omit “and”.

91  Subparagraph 251(2)(a)(iii)

Repeal the subparagraph.

92  Paragraph 251(2)(a)

After “this Act”, insert “as in force either before or after the commencement of section 3 of the Native Title Amendment Act 1996 ”.

93  After paragraph 251(2)(a)

Insert:

                    (aa)  any procedures under the law of the State or Territory for determinations whether acts affecting native title may be done will be consistent with those set out in this Act; and

94  Section 253 (definition of registered native title claimant )

Omit “(other than an entry amended under subsection 190(2) to include details of a decision or determination)”.

95  Section 253 (definition of unopposed application )

Repeal the definition.



 

Part 2—Amendments related to criteria for registration of claims

96  After section 190

Insert:

190A   Registrar to consider claims

Claims made to Federal Court

             (1)  If the Registrar is given a copy of an application under section 63, or an amended application under subsection 64(2), in which a person or persons claim to hold native title, the Registrar must consider the claim.

Certain claims to be dealt with within one month

             (2)  The Native Title Registrar must take all reasonable steps to decide whether to accept a claim for registration within a period of one month starting when the application containing the claim is filed if, in accordance with paragraph 62(1)(d) or (e), the application:

                     (a)  gives details of another application; or

                     (b)  gives details of a notice under section 24A or 29 (or a corresponding provision of a law of a State or Territory).

Claims made to High Court

             (3)  The Registrar must also consider any claim of which he or she is notified under paragraph 189(1)(a) or (aa).

Information to be considered

             (4)  In considering a claim under this section, the Registrar must have regard to:

                     (a)  information contained in the application; and

                     (b)  any information supplied, in relation to the claim, by the Commonwealth, a State or a Territory, being information that is relevant to whether the fourth condition (set out in subsection (10)) is satisfied in relation to a claim;

and may have regard to such other information as he or she considers appropriate.

Effect of paragraph (4)(b)

             (5)  The fact that no information of the kind referred to in paragraph (4)(b) has been supplied at a particular time does not prevent the Registrar accepting a claim for registration under this section.

Test for registration

             (6)  The Registrar must accept the claim for registration if the claim satisfies the conditions in subsections (7) to (10). In any other case, the claim cannot be registered.

First condition

             (7)  The first condition is that the Registrar considers that, prima facie, each of the native title rights and interests claimed in the application can be established.

Second condition

             (8)  The second condition is that it appears to the Registrar that the application contains:

                     (a)  sufficient information, whether by physical description or otherwise, to enable the boundaries of the area covered by the application, and of any areas within those boundaries that are not covered by the application, to be identified so that it can be said with certainty whether native title rights or interests are claimed in relation to particular land or waters; and

                     (b)  a map showing as many of those boundaries as practicable; and

                     (c)  details and results of all searches carried out to determine the existence of any interests in, or in relation to, the land or waters in the area covered by the application held by persons other than as native title holders, together with a copy of any documents obtained, including documents of title, that record an existing or expired interest granted over any part of the area covered by the application; and

                     (d)  reasons for not conducting any searches that could have been relevant to determining the existence of any interests in, or in relation to, the land or waters in the area covered by the application that are held by persons other than as native title holders; and

                     (e)  sufficient description of native title rights and interests claimed to allow them to be readily identified, but not by reference to whether or not the rights or interests can, or may be able to be, established; and

                      (f)  a description of the factual basis on which it is asserted:

                              (i)  that the persons who it is claimed hold the native title have, and the ancestors of those persons had, an association with the area; and

                             (ii)  that there exist customary laws and traditions that give rise to the claimed native title; and

                            (iii)  that the persons who it is claimed hold the native title have continued to hold the native title in accordance with those customary laws and traditions; and

                     (g)  details of any current use of the land by the persons who it is claimed hold the native title; and

                     (h)  where the application is made by a person or persons claiming to hold native title with others, there is sufficient information to allow the Registrar to be satisfied as to the basis on which it is claimed that all of those persons have common or group rights in relation to the land or waters in relation to which native title is claimed; and

                      (i)  if the application is covered by subsection (3)—it contains all information required under sections 61 and 62.

Third condition

             (9)  The third condition is that all searches:

                     (a)  that could have been relevant to determining the existence of any interests in, or in relation to, the land or waters in the area covered by the application that are held by persons other than as native title holders; and

                     (b)  that the Registrar considers it reasonable, in the particular circumstances, to expect would have been carried out;

have been carried out by, or on behalf of, the claimant.

Fourth condition

           (10)  The fourth condition is that the application does not disclose, and the Registrar is not otherwise aware, that the claim covers any land or waters that is, or was, covered by:

                     (a)  ordinary title; or

                     (b)  a residential or commercial lease other than:

                              (i)  a pastoral or agricultural lease; or

                             (ii)  a lease made by or under legislation that grants leases only to or for the benefit of Aboriginal peoples or Torres Strait Islanders.

Claim cannot be registered

           (11)  If the claim cannot be registered, the Registrar must, as soon as practicable, give the claimant and the Federal Court written notice, including reasons, to that effect.

Claimant may apply to Federal Court

           (12)  If the Registrar gives the claimant a notice under subsection (11), the claimant may apply to the Federal Court for an order directing the Registrar to accept the claim for registration.

Court to apply test in subsection (6)

           (13)  The Court, in deciding whether to make an order under subsection (12), is to apply the test set out in subsection (6).

Federal Court has jurisdiction

           (14)  The Court has jurisdiction to hear and determine an application made to it under subsection (12).

97  Before paragraph 251(2)(b)

Insert:

                    (ab)  the law of the State or Territory will require a decision to be made whether a claim in respect of native title satisfies conditions equivalent to those set out in section 190A; and

98  After subparagraph 251(2)(i)(i)

Insert:

                            (ia)  any claims contained in any such applications (including amended applications) that have been found to satisfy conditions equivalent to those set out in section 190A; and

                            (ib)  any amendments of applications covered by subparagraph (ia), if the claims contained in the application as amended have been found not to satisfy conditions equivalent to those set out in section 190A; and

                            (ic)  any withdrawal or dismissal of applications covered by subparagraph (i); and



 

Part 3—Amendments related to section 21 agreements

99  After section 21

Insert:

21A   Effect of agreement to surrender native title

When this section applies

             (1)  This section applies if:

                     (a)  an approved determination of native title in relation to an area has been made; and

                     (b)  the registered native title body corporate, or the common law holders of the native title, make an agreement covered by subsection 21(1); and

                     (c)  a later approved determination of native title is made under which persons, other than those previously determined, hold, or also hold, native title in relation to the area.

Effect of this section

             (2)  If this section applies:

                     (a)  if the agreement is under paragraph 21(1)(a)—any future act by any person that is done in relation to the area before the making of the later approved determination of native title is valid; and

                     (b)  if the agreement is under paragraph 21(1)(b)—any future act by any person in relation to the area that is authorised by the agreement and that is done before the making of the later approved determination of native title is valid; and

                     (c)  if the act mentioned in paragraph (a) or (b) extinguishes native title that is held by the persons mentioned in paragraph (1)(c) to any extent—those persons are entitled to compensation for the act in so far as it has that effect; and

                     (d)  if the act mentioned in paragraph (a) or (b) does not so extinguish native title and the persons mentioned in paragraph (1)(c) would be entitled to compensation under subsection 17(2) for the act on the assumption that it was a past act referred to in that subsection—they are entitled, in accordance with Division 5, to compensation for the act.

Who is to pay compensation

             (3)  The persons mentioned in paragraph (1)(c) may recover the compensation from:

                     (a)  if the act is attributable to the Commonwealth—the Crown in right of the Commonwealth; or

                     (b)  if the act is attributable to a State or Territory—the Crown in right of the State or Territory.

100  Before paragraph 26(3)(a)

Insert:

                    (aa)  an act covered by an agreement under section 21; or

101  At the end of section 193

Add:

Register to contain section 21 agreements

             (4)  The Register is also to contain details of any agreement under paragraph 21(1)(a) of which the Registrar is notified.



 

Part 4—Amendments related to agreements with registered claimants

102  Section 22

Omit “24”, substitute “21A, 24, 24A, 24B”.

103  Subsection 23(1)

Omit “24”, substitute “21A, 24, 24A, 24B”.

104  After section 24

Insert:

24A   Agreement to do particular act

Effect if there is an agreement to do an act

             (1)  If an agreement that satisfies the conditions in subsections (2) to (6) authorises a future act to be done by the Commonwealth, a State or a Territory (the Government party ):

                     (a)  the act is valid unless, before the act is done, an approved determination of native title in relation to any area of land or waters affected by the act is made, and the determination is that a person who is not a party to the agreement holds native title to the area; and

                     (b)  the non-extinguishment principle applies to the act; and

                     (c)  no party to the agreement is entitled to any compensation under this Act, other than compensation provided for in the agreement, in relation to any effect that the act has on native title held by a party to the agreement; and

                     (d)  if any native title holders who are not parties to the agreement would be entitled to compensation under subsection 17(2) for the act on the assumption that it was a past act referred to in that subsection—they are entitled, in accordance with Division 5, to compensation for the act.

Acts subject to right to negotiate not covered by this section

             (2)  The first condition is that the act is not an act to which Subdivision B applies.

Government party to give notice

             (3)  The second condition is that the Government party has given notice of the act to:

                     (a)  any registered native title body corporate in relation to any of the land or waters affected by the act; and

                     (b)  any registered native title claimant in relation to any of the land or waters affected by the act; and

                     (c)  any representative Aboriginal/Torres Strait Islander body in relation to the area in which the land or waters affected by the act are situated; and

                     (d)  if the act is to be done at the request of, or on application by, a person (for example, where it is the issue of a licence or the grant of a lease for which the person has applied)—that person (a grantee party ); and

                     (e)  the NNTT.

The notice must specify the day on which it is taken to have been given, which cannot be earlier than 14 days after the last day on which a notice under this subsection is dispatched.

Public notification

             (4)  The third condition is that the Government party has notified the public in the determined way.

Registered native title body corporate must be party

             (5)  The fourth condition is that any body that, at the time of the agreement, is a registered native title body corporate in relation to any of the land or waters affected by the act is a party to the agreement.

Registered claimants must be parties

             (6)  The fifth condition is that any person who:

                     (a)  is, at the end of the period of 3 months beginning when the notice is given, a registered native title claimant in relation to any of the land or waters affected by the act; or

                     (b)  becomes, after that time, a registered native title claimant in relation to any of the land or waters affected by the act, where the application containing the claim was made before that time, and:

                              (i)  the claim is accepted by the Registrar for registration under subsection 190A(6) or is (otherwise than on appeal or review) found to satisfy conditions equivalent to those set out in section 190A under a law of a State or Territory; or

                             (ii)  the claim is accepted by the Registrar for registration as a result of an application under subsection 190A(12), where the application was made not more than 28 days after the notice under subsection 190A(11) was given; or

                            (iii)  the claim is found to satisfy conditions equivalent to those set out in section 190A under a provision of a law of a State or Territory to similar effect as subsection 190A(12), and the application under that provision was made within a time period corresponding to that set out in subparagraph (ii);

other than such a person who ceases to be a registered native title claimant before the agreement is made, is a party to the agreement.

Grantee party may be party

             (7)  A grantee party may be a party to the agreement.

Assistance from NNTT or recognised State/Territory body

             (8)  The parties may request assistance from the NNTT or a recognised State/Territory body in negotiating an agreement.

Provision of copy of agreement

             (9)  If an agreement is made under this section, the Government party must give a copy of the agreement to the NNTT.

Consideration for agreement

           (10)  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).

Conditions to have contractual effect

           (11)  If the act is done, any conditions in the agreement have effect, in addition to any effect that they may have apart from this subsection, as if they were terms of a contract among the parties to the agreement. Where a native title party is a registered native title claimant, any other person (except a registered native title claimant) with whom the claimant claimed to hold the native title concerned is a party to the agreement for this purpose only.

24B   Acts where no relevant native title claim

When section applies

             (1)  This section applies in relation to a future act done by the Commonwealth, a State or a Territory (the Government party ) if:

                     (a)  the act is not an act to which Subdivision B applies; and

                     (b)  the Government party gave notice of the act as set out in subsection (3); and

                     (c)  the Government party notified the public in the determined way; and

                     (d)  at the end of the period of 3 months starting when the notice was given:

                              (i)  there was no relevant native title claim covering any part of the land or waters affected by the act; and

                             (ii)  there was no entry on the National Native Title Register, included under paragraph 193(1)(a) or (b), specifying that native title exists in relation to any of the land or waters affected by the act; and

                     (e)  immediately before the act is done, there is no registered native title body corporate in relation to any of the land or waters affected by the act.

Effect if section applies

             (2)  If this section applies in relation to an act:

                     (a)  the act is valid; and

                     (b)  the non-extinguishment principle applies to the act; and

                     (c)  if any native title holders would be entitled to compensation under subsection 17(2) for the act on the assumption that it was a past act referred to in that subsection—they are entitled, in accordance with Division 5, to compensation for the act.

Notice by Government party

             (3)  Notice under this subsection is notice of the act given by the Government party to:

                     (a)  any representative Aboriginal/Torres Strait Islander body in relation to the area in which the land or waters affected by the act are situated; and

                     (b)  if the act is to be done at the request of, or on application by, a person (for example, where it is the issue of a licence or the grant of a lease for which the person has applied)—that person (a grantee party ); and

                     (c)  the NNTT.

Any notice must specify the day on which it is taken to have been given, which cannot be earlier than 14 days after the last day on which a notice under this subsection was dispatched.

Relevant native title claim

             (4)  For the purposes of this section, there is a relevant native title claim covering land or waters at the end of the period referred to in paragraph (1)(d) if:

                     (a)  at that time, there is an entry covering the land or waters on the Register of Native Title Claims; or

                     (b)  after that time, an entry covering the land or waters is included on the Register of Native Title Claims, where the application containing the claim was made before that time and:

                              (i)  the claim is accepted by the Registrar for registration under subsection 190A(6) or is (otherwise than on appeal or review) found to satisfy conditions equivalent to those set out in section 190A under a law of a State or Territory; or

                             (ii)  the claim is accepted by the Registrar for registration as a result of an application under subsection 190A(12), where the application was made not more than 28 days after the notice under subsection 190A(11) was given; or

                            (iii)  the claim is found to satisfy conditions equivalent to those set out in section 190A under a provision of a law of a State or Territory to similar effect as subsection 190A(12), and the application under that provision was made within a time period corresponding to that set out in subparagraph (ii).

24C   Who pays compensation under sections 24A and 24B

             (1)  Compensation payable under paragraph 24A(1)(d) or 24B(2)(c) is payable by:

                     (a)  if the act is attributable to the Commonwealth—the Crown in right of the Commonwealth; or

                     (b)  if the act is attributable to a State or Territory—the Crown in right of the State or Territory.

             (2)  Nothing in subsection (1) prevents the Crown from making an agreement with a grantee party in relation to the payment of compensation under this section.



 

Part 5—Amendments related to section 24 protection

105  Subsection 24(1)

Omit all the words before paragraph (d), substitute:

                   If an area is subject to section 24 protection at a particular time:

                     (c)  any future act by any person in relation to the area that is done at that time is valid; and

Note:       The heading to section 24 is replaced by the heading “ Future acts where section 24 applies ”.

Note:       The heading to subsection 24(1) is altered by omitting “ applications ” and substituting “ section 24 protection ”.

106  At the end of paragraph 24(1)(d)

Add “and”.

107  At the end of section 24

Add:

When section 24 protection arises—government applications

             (3)  An area is subject to section 24 protection at a particular time if:

                     (a)  before that time, a non-claimant application, or a corresponding application for an approved determination of native title under a law of a State or Territory, has been made by or on behalf of a Minister, the Crown in any capacity, or a statutory authority; and

                     (b)  the area is the whole of the area covered by the application and the application has not been amended as to area; and

                     (c)  the period specified in the notice given under section 66, or under a corresponding provision of a law of the State or Territory, has ended; and

                     (d)  at the end of that period, there is no relevant native title claim (see subsection (6)) covering the area or a part of the area; and

                     (e)  the application has not been withdrawn, dismissed or otherwise finalised; and

                      (f)  at that time, there is no entry on the National Native Title Register, included under paragraph 193(1)(a) or (b), specifying that native title exists in relation to the area or a part of the area.

When section 24 protection arises—non-government applications

             (4)  An area is subject to section 24 protection at a particular time if:

                     (a)  before that time, a non-claimant application, or a corresponding application for an approved determination of native title under a law of a State or Territory, has been made; and

                     (b)  the application is not covered by paragraph (3)(a); and

                     (c)  the area is the whole or a part of the area covered by the application; and

                     (d)  the period specified in the notice given under section 66, or under a corresponding provision of a law of the State or Territory, has ended; and

                     (e)  either:

                              (i)  at the end of that period, there is no relevant native title claim (see subsection (6)) covering the area; or

                             (ii)  after the end of that period, but before the particular time, all entries that relate to a relevant native title claim that covered the area are removed from the Register of Native Title Claims or cease to cover the area; and

                      (f)  the application, in so far as it relates to that area, has not been withdrawn, dismissed or otherwise finalised; and

                     (g)  at that time, there is no entry on the National Native Title Register, included under paragraph 193(1)(a) or (b), specifying that native title exists in relation to the area.

When section 24 protection arises—entry on National Native Title Register

             (5)  An area is subject to section 24 protection at a particular time if it is covered by an entry on the National Native Title Register, included under paragraph 193(1)(a) or (b), specifying that no native title exists in relation to the area.

Relevant native title claim

             (6)  For the purposes of this section, there is a relevant native title claim covering an area at the end of the period referred to in paragraph (3)(d) or (4)(e) if:

                     (a)  at that time, there is an entry covering that area on the Register of Native Title Claims; or

                     (b)  after that time, an entry covering that area is included on the Register of Native Title Claims, where the application containing the claim was made before that time and:

                              (i)  the claim is accepted by the Registrar for registration under subsection 190A(6) or is (otherwise than on appeal or review) found to satisfy conditions equivalent to those set out in section 190A under a law of a State or Territory; or

                             (ii)  the claim is accepted by the Registrar for registration as a result of an application under subsection 190A(12), where the application was made not more than 28 days after the notice under subsection 190A(11) was given; or

                            (iii)  the claim is found to satisfy conditions equivalent to those set out in section 190A under a provision of a law of a State or Territory to similar effect as subsection 190A(12), and the application under that provision was made within a time period corresponding to that set out in subparagraph (ii).

108  Paragraph 66(3)(a)

Repeal the paragraph, substitute:

                     (a)  if the application is a non-claimant application—the area covered by the application may be subject to section 24 protection unless, at the end of the period of 3 months starting on the day the notice is given, the area is covered by a relevant native title claim (see subsection 24(6)); or

109  Subsection 66(4)

Repeal the subsection.

110  Section 222 (table, after entry relating to right to negotiate application)

Insert:

section 24 protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253

111  Section 253

Insert:

section 24 protection has the meaning given by section 24.



 

Part 6—Amendments related to the renewal of certain leases and rights

112  Subsection 25(1)

Repeal the subsection, substitute:

Future acts that section applies to

             (1)  This section applies to a future act if the act consists of:

                     (a)  the renewal of any interest in relation to land or waters that takes place in exercise of a legally enforceable right that was created before 1 January 1994; or

                     (b)  a permissible lease renewal (see subsection (1B)); or

                     (c)  a permissible pastoral lease renewal (see subsections (1C) and (1D)); or

                     (d)  a permissible pastoral lease variation (see subsection (1E)); or

                     (e)  a permissible pastoral lease related act (see subsection (1F)).

 Effect of section applying to an act

          (1A)  If this section applies to an act:

                     (a)  the act is valid; and

                     (b)  the non-extinguishment principle applies to the act; and

                     (c)  if any native title holders would be entitled to compensation under subsection 17(2) for the act on the assumption that it was a past act referred to in that subsection—the native title holders are entitled to compensation for the act in accordance with Division 5.

Future acts that are permissible lease renewals

          (1B)  A future act is a permissible lease renewal if:

                     (a)  it is:

                              (i)  the renewal; or

                             (ii)  the re-grant; or

                            (iii)  the extension of the term;

                            of a mining, commercial, agricultural, pastoral or residential lease; and

                     (b)  the renewal, re-grant or extension takes effect at the end of the term of the lease, or at the time of any earlier termination of the lease; and

                     (c)  the act does not:

                              (i)  create a proprietary interest where the lease previously created only a non-proprietary interest; or

                             (ii)  create a larger proprietary interest than was previously created by the lease; and

                     (d)  if the lease contains, or is subject to, a reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders—the renewed, re-granted or extended lease contains, or is subject to, the same reservation or condition; and

                     (e)  the lease was created before 1 January 1994 or the creation of the lease was itself a permissible lease renewal.

Future acts that are permissible pastoral lease renewals

          (1C)  A future act is a permissible pastoral lease renewal if:

                     (a)  it is:

                              (i)  the renewal; or

                             (ii)  the re-grant; or

                            (iii)  the extension of the term;

                            of a pastoral lease; and

                     (b)  the renewal, re-grant or extension takes effect at the end of the term of the lease, or at the time of any earlier termination of the lease; and

                     (c)  if the lease contains, or is subject to, a reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders—the renewed, re-granted or extended lease contains, or is subject to, the same reservation or condition; and

                     (d)  the renewed, re-granted or extended lease is an eligible pastoral lease; and

                     (e)  if the lease did not permit mining, the renewed, re-granted or extended lease does not permit mining; and

                      (f)  the lease was created before 1 January 1994 or the creation of the lease was a permissible lease renewal or a permissible pastoral lease renewal.

Features that do not prevent lease from being permissible pastoral lease renewal

          (1D)  The following do not prevent the renewed, re-granted or extended lease from being a permissible pastoral lease renewal provided that the renewed, re-granted or extended lease is an eligible pastoral lease:

                     (a)  the renewed, re-granted or extended lease permits the lessee to use the land or waters covered by the lease for a purpose (other than mining) which is not pastoral;

                     (b)  the renewed, re-granted or extended lease creates a proprietary interest where the lease that was renewed, re-granted or extended previously created only a non-proprietary interest;

                     (c)  the renewed, re-granted or extended lease creates a larger proprietary interest than was previously created by the lease that was renewed, re-granted or extended;

                     (d)  the renewed, re-granted or extended lease is a perpetual lease.

Future act that is a permissible pastoral lease variation

           (1E)  A future act is a permissible pastoral lease variation if:

                     (a)  it is the variation of a pastoral lease and the variation permits the lessee to use the land or waters covered by the lease for a purpose (other than mining) which may not be pastoral; and

                     (b)  the lease was created before 1 January 1994 or the creation of the lease was a permissible lease renewal or a permissible pastoral lease renewal; and

                     (c)  if the lease contains, or is subject to, a reservation for the benefit of Aboriginal peoples or Torres Strait Islanders—the varied lease contains, or is subject to, the same reservation or condition; and

                     (d)  the varied lease is an eligible pastoral lease.

Future act that is a permissible pastoral lease related act

           (1F)  A future act is a permissible pastoral lease related act if it is an act relating to land or waters covered by a pastoral lease and the act permits the lessee to use the land or waters covered by the lease for a purpose (other than mining) which, even if it is not pastoral, does not cause the land or waters covered by the lease to cease being used, or being capable of being used, solely or primarily for:

                     (a)  maintaining or breeding sheep, cattle or other animals; or

                     (b)  any other pastoral purpose.

Note:       The heading to section 25 is altered by omitting “ under pre-1 January 1994 right to renew ” and substituting “ of certain leases and rights ”.

113  At the end of Section 25

Add:

             (3)  In this section:

eligible pastoral lease means a pastoral lease that is covered by paragraph 248(a) (whether or not it is also covered by paragraph 248(b)).

114  Subsection 235(7)

Repeal the subsection.



 

Part 7—Miscellaneous amendments

115  Section 12

Repeal the section.

116  Paragraph 23(4)(b)

Before “either”, insert “if”.

117  Subsection 23(4)

Align the text beginning with “the native title holders” and ending with “Division 5” with the paragraph (b) margin.

118  Paragraph 23(7)(e)

Repeal the paragraph.

119  After paragraph 28(1)(a)

Insert:

                    (aa)  after the end of that period, but immediately before the act is done, there is no native title party in relation to any of the land or waters that will be affected by the act; or

120  At the end of subsection 29(1)

Add:

                   The notice must specify the day on which it is taken to have been given, which cannot be earlier than 14 days after the last day on which notice under subsection (2) is dispatched.

121  Paragraph 29(2)(e)

Before “arbitral body”, insert “registrar or other proper officer of the”.

122  At the end of section 30

Add:

                   ; (c)  any body corporate that becomes a registered native title body corporate in relation to any of the land or waters that will be affected by the act:

                              (i)  after the end of that period of 3 months; and

                             (ii)  as a result of a claim the details of which were entered on the Register of Native Title Claims before the end of that period of 3 months.

             (2)  A person ceases to be a native title party if the person ceases to be a registered native title claimant.

Note:          Where a native title claim is successful, the registered native title claimant will be succeeded as a native title party by the registered native title body corporate.

Note:       The heading to section 30 is altered by omitting “ Additional ” and substituting “ Other ”.

123  Section 55

Omit “sections”, substitute “section”.

124  Section 55

Omit “and 57”, substitute “or 57”.

125  Paragraph 58(d)

Omit “their”, substitute “its”.

126  Section 59

Omit all the words and paragraphs after “or 57”.

127  Subsection 78(1)

Repeal the subsection, substitute:

Native Title Registrar may give assistance

             (1)  The Native Title Registrar may give such assistance as he or she considers reasonable to:

                     (a)  help people prepare applications and accompanying material; or

                     (b)  help people, at any stage of a proceeding, in matters related to applications.

Note:       The heading to section 78 is altered by omitting “ to potential applicants ” and substituting “ in relation to applications ”.

128  After section 98

Insert:

98A   Power of Registrar—other public records and information

Registrar may keep other records and information

             (1)  The Registrar has the power to keep such other records and information as he or she considers appropriate and to make those records or that information available to the public.

Certain information to be confidential

             (2)  The Registrar must not make particular information available to the public if the Registrar considers that it would not be in the public interest for the information to be available to the public.

Names and addresses to be confidential

             (3)  The Registrar is not to make available to the public the names or addresses of persons who it is claimed hold native title, other than the name and address for service of a person who is taken to be a claimant.

Concerns of Aboriginal peoples and Torres Strait Islanders

             (4)  In determining whether it would or would not be in the public interest for information to be available to the public, the Registrar must have due regard to the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders.

129  After section 106

Insert in Part 5:

106A   Appointment of acting Registrar

President may appoint acting Registrar

             (1)  The President may appoint a person to act as the Registrar:

                     (a)  if there is a vacancy in the office of Registrar; or

                     (b)  during any period, or during all periods, when the Registrar is absent from duty or absent from Australia or is, for any reason, unable to perform the duties of the office.

A person appointed to act during a vacancy is not to continue so to act for more than 12 months.

Qualifications

             (2)  A person is not to be appointed to act as Registrar unless the person is, and has been for at least 5 years, enrolled as a legal practitioner of the High Court, of another federal court or of the Supreme Court of a State or Territory.

Validation

             (3)  Anything done by a person purporting to act under an appointment under this section is not invalid merely because:

                     (a)  the occasion for the appointment had not arisen; or

                     (b)  there was a defect or irregularity in, or in connection with, the appointment; or

                     (c)  the appointment had ceased to have effect; or

                     (d)  the occasion to act had not arisen or had ceased.

Note:          Section 33A of the Acts Interpretation Act 1901 has additional rules that apply to acting appointments.

130  At the end of section 110 (table, column dealing with persons who may be appointed, row dealing with presidential members)

Add:

                     ; or

             (3)  A person who is, and has been for at least 5 years, enrolled as a legal practitioner of the High Court, of another federal court or of the Supreme Court of a State or Territory.

131  Subsections 122(1) and (3)

Omit “Part 4”, substitute “Part 3”.

132  After subsection 183(4)

Insert:

Assistance not to be provided to claimants

          (4A)  The Attorney-General cannot authorise the provision of assistance under this section to a person claiming, in an inquiry, mediation or proceeding, to hold native title to an area.

133  Subsection 183(5)

Omit “the holder of an office in the Senior Executive Service of the Australian Public Service”, substitute “a person occupying a specified office in the Department”.

134  Subsection 209(1)

Omit “Aboriginal and Torres Strait Islander Social Justice Commissioner (appointed under the Human Rights and Equal Opportunity Commission Act 1986 )”, substitute “Human Rights and Equal Opportunity Commission”.

Note:       The heading to section 209 is altered by omitting “ by Aboriginal and Torres Strait Islander Social Justice Commissioner ”, and substituting “ on matters related to the Act ”.

135  Subsection 209(2)

Omit “Commissioner”, substitute “Commission”.

136  At the end of section 209

Add:

Commissioner to prepare and submit reports

             (3)  The preparation and submission of reports under subsections (1) and (2) is to be carried out by the Aboriginal and Torres Strait Islander Social Justice Commissioner (appointed under the Human Rights and Equal Opportunity Commission Act 1986 ) on behalf of the Commission.

Commonwealth Minister must table reports

             (4)  The Commonwealth Minister must cause a copy of each report received by the Minister under subsection (1) or (2) to be laid before each House of the Parliament within 15 sitting days of that House after the report is received by the Minister.

Note:       The heading to subsection 212(3) is altered by omitting “ under subsection (2) ”.

137  After paragraph 215(2)(a)

Insert:

                    (aa)  the regulations may make provision:

                              (i)  prescribing fees to be paid to obtain access to, or information from, records or information kept by the Native Title Registrar as mentioned in section 98A; and

                             (ii)  for or in relation to the waiver or refund, in whole or part, of such fees; and

138  Subparagraph 215(2)(b)(i)

Before “Registrar”, insert “Native Title”.

139  After subparagraph 215(2)(b)(i)

Insert:

                            (ia)  the waiver, in whole or in part, of those fees; and

140  Section 222 (table, after entry relating to determination of native title)

Insert:

dispatched . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252A

141  Section 225

Repeal the section, substitute:

225   Determination of native title

                   A determination of native title is a determination whether or not native title exists in relation to a particular area of land or waters and, if it does exist, a determination of:

                     (a)  who holds it; and

                     (b)  whether the native title rights and interests confer possession, occupation, use and enjoyment of the land or waters on its holders to the exclusion of all others; and

                     (c)  if the native title rights and interests do not confer such exclusive rights—those native title rights and interests that the maker of the determination considers to be of importance; and

                     (d)  the nature and extent of any other interests in relation to the land or waters that may affect the native title rights and interests.

142  Subsection 226(2)

Omit “Subject to subsection (4), act includes”, substitute “An act includes”.

143  Subsection 226(3)

Omit “Subject to subsection (4), an”, substitute “An”.

144  Paragraph 235(8)(a)

Omit “in relation to”, substitute “to the extent that it relates to”

145  After section 252

Insert:

252A   Meaning of dispatched

             (1)  A notice is taken to be dispatched to a natural person on the day on which it is:

                     (a)  delivered to the person personally; or

                     (b)  left at, or posted by pre-paid post to, the last known address of the place of residence or business of the person.

             (2)  A notice is taken to be dispatched to a body corporate on the day on which it is left at, or posted by pre-paid post to, the head office, a registered office or a principal office of the body corporate.

             (3)  A notice is taken to be dispatched to the NNTT on the day on which it is given to, or posted by pre-paid post to, the Native Title Registrar.

146  Section 253 (paragraph (c) of the definition of Aboriginal/Torres Strait Islander land or waters )

After “law”, insert “, or part of a law,”.

147  Section 253 (definition of land , after the note)

Insert:

Note 2:       Because of the definition of waters , the area between high water and low water will not be included in land .

148  At the end of section 253 (definition of waters )

Add:

               ; or (c)  the shore, or subsoil under or airspace over the shore, between high water and low water.