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Native Title Amendment Bill 1996
Schedule 3 Transitional

Part 1—Contents of Schedule

1  Contents of this Schedule

This Schedule:

                     (a)  sets out various situations that may exist in relation to an application that was given to the Native Title Registrar as mentioned in section 61 of the old Act, and the consequences of the commencement of this Act (see Part 2); and

                     (b)  defines terms used in this Schedule (see Part 3).



 

Part 2—Transitional provisions

2  Table of situations and consequences —applications before 27 June 1996

The following table sets out various situations that may exist in relation to an application that was given to the Native Title Registrar as mentioned in section 61 of the old Act before 27 June 1996, and the consequences of the commencement of this Act.

 



Case

Situation at the commencement of this Act



Consequences

1

Application is being processed.

Application is taken to have been made to Federal Court. Item 4 applies to registration of claim.

2

Application is being reviewed by a court.

Application is taken to have been made to Federal Court. Old law is to apply to non-acceptance appeals. Item 6 applies to registration of claim.

3

Application has been accepted but the Registrar has not started giving notification.

Application is taken to have been made to Federal Court. For claimant applications, Native Title Registrar is taken to have accepted claim for registration under section 190A.

4

Registrar has given, or is giving, notification but section 66 period not completed.

Application is taken to have been made to Federal Court. For claimant applications, Native Title Registrar is taken to have accepted claim for registration under section 190A. Any notification is taken to be for that application and the same people are the parties.

5

Notification given by Registrar, section 66 period for the application is completed and application is unopposed. Application not finalised.

Application is taken to have been made to Federal Court. For claimant applications, Native Title Registrar is taken to have accepted claim for registration under section 190A. Any notification is taken to be for that application and the same people are the parties.

Native Title Registrar must remove any relevant entry from National Native Title Register.

Any determination is taken not to have been an approved determination of native title.

Any determination is taken never to have been registered under section 166 of the old Act.

For non-claimant applications, item 10 applies in relation to section 24 protection.

6

Notification given by Registrar, section 66 period for the application is completed and application is not unopposed. Application not finalised.

Application is taken to have been made to Federal Court. For claimant applications, Native Title Registrar is taken to have accepted claim for registration under section 190A. Any notification is taken to be for that application and the same people are the parties.

Item 8 or 9 applies in relation to mediation.

Native Title Registrar must remove any relevant entry from National Native Title Register.

Any determination is taken not to have been an approved determination of native title.

Any determination is taken never to have been registered under section 166 of the old Act.

7

NNTT has made, or has purported to make, a determination under the old Act that there is no native title in relation to an area.

The normal application and review period defined in subsection 167(10) of the old Act has finished, and neither case 5 nor case 6 applies.

Native Title Registrar must remove any relevant entry from National Native Title Register.

Any determination is taken not to have been an approved determination of native title.

Any determination is taken never to have been registered under section 166 of the old Act.

Item 11 applies in relation to section 24 protection.

A further native title determination application may be made.

3  Table of situations and consequences—applications on or after 27 June 1996

The following table sets out various situations that may exist in relation to an application that was given to the Native Title Registrar under the old Act on or after 27 June 1996 and at or before the commencement of this Act, and the consequences of the commencement of this Act.

 



Case

Situation at the commencement of this Act



Consequences

 

 

1

Application is being processed.

Application is taken to have been made to Federal Court. Item 5 applies to registration of claim.

 

2

Application is being reviewed by a court.

Application is taken to have been made to Federal Court. New law is to apply to non-acceptance appeals. Item 6 applies to registration of claim.

 

3

Application has been accepted but the Registrar has not started giving notification.

Application is taken to have been made to Federal Court. For claimant applications, item 7 applies to registration of claim.

 

4

Registrar has given, or is giving, notification but section 66 period not completed.

Application is taken to have been made to Federal Court. For claimant applications, item 7 applies to registration of claim. Any notification is taken to be for that application and the same people are the parties.

 

5

Notification given by Registrar, section 66 period for the application is completed and application is unopposed. Application not finalised.

Application is taken to have been made to Federal Court. For claimant applications, item 7 applies to registration of claim. Any notification is taken to be for that application and the same people are the parties.

Native Title Registrar must remove any relevant entry from National Native Title Register.

Any determination is taken not to have been an approved determination of native title.

Any determination is taken never to have been registered under section 166 of the old Act.

For non-claimant applications, item 10 applies in relation to section 24 protection.

 

6

Notification given by Registrar, section 66 period for the application is completed and application is not unopposed. Application not finalised.

Application is taken to have been made to Federal Court. For claimant applications, item 7 applies to registration of claim. Any notification is taken to be for that application and the same people are the parties.

Item 8 or 9 applies in relation to mediation.

Native Title Registrar must remove any relevant entry from National Native Title Register.

Any determination is taken not to have been an approved determination of native title.

Any determination is taken never to have been registered under section 166 of the old Act.

 

7

NNTT has made, or has purported to make, a determination under the old Act that there is no native title in relation to an area.

The normal application and review period defined in subsection 167(10) of the old Act has finished, and neither case 5 nor case 6 applies.

Native Title Registrar must remove any relevant entry from National Native Title Register.

Any determination is taken not to have been an approved determination of native title.

Any determination is taken never to have been registered under section 166 of the old Act.

Item 11 applies in relation to section 24 protection.

A further native title determination application may be made.

4  Case 1 in item 2—removal of claims from Register of Native Title Claims

(1)        If:

                     (a)  at the commencement of this Act there is an entry on the Register of Native Title Claims that records details of a claim contained in an application made under the old Act; and

                     (b)  the application is covered by case 1 in the table in item 2;

the Native Title Registrar must consider whether the application could have been accepted by the Registrar under subsection 63(1) of the old Act.

(2)        If the Registrar considers that the application could not have been accepted under subsection 63(1) of the old Act:

                     (a)  the Registrar must remove the claim from the Register and give the claimant and the Federal Court written notice, including reasons, to that effect; and

                     (b)  the provisions of section 190A, other than subsection (13), apply as if the notice mentioned in paragraph (a) were given under subsection 190A(11).

(3)        A court, in any appeal from the decision of the Registrar, is to determine if the application could have been accepted under subsection 63(1) of the old Act.

(4)        After the Registrar has complied with subitems (1) and (2), he or she is taken to have complied with section 190A.

5  Case 1 in item 3—removal of claims from Register of Native Title Claims

(1)        If:

                     (a)  at the commencement of this Act there is an entry on the Register of Native Title Claims that records details of a claim contained in an application made under the old Act; and

                     (b)  the application is covered by case 1 in the table in item 3;

the Native Title Registrar must consider the claim under section 190A.

(2)        If the claim does not satisfy all of the conditions in subsections 190A(7) to (10):

                     (a)  the Registrar must remove the claim from the Register and give written notice as required by subsection 190A(11); and

                     (b)  the other provisions of section 190A apply as if the notice mentioned in paragraph (a) were given under subsection 190A(11).

(3)        After the Registrar has complied with subitems (1) and (2), he or she is taken to have complied with section 190A.

6  Case 2 in item 2 or 3—removal of claims from Register of Native Title Claims

(1)        If:

                     (a)  at the commencement of this Act there is an entry on the Register of Native Title Claims that records details of a claim contained in an application made under a provision of the old Act; and

                     (b)  the application is covered by case 2 in the table in item 2 or 3; and

                     (c)  at a later time the application is no longer being reviewed by a court;

the Native Title Registrar must remove the claim from the Register unless the applicant has been successful in a non-acceptance appeal.

(2)        After the Registrar has complied with subitem (1), he or she is taken to have complied with section 190A, but no application can be made under subsection 190A(12) in relation to the removal of a claim from the Register under subitem (1).

7  Case 3, 4, 5 or 6 in item 3—removal of claims from Register of Native Title Claims

(1)        If:

                     (a)  at the commencement of this Act there is an entry on the Register of Native Title Claims that records details of a claim contained in an application made under the old Act; and

                     (b)  the application is covered by case 3, 4, 5 or 6 in the table in item 3;

the Native Title Registrar must consider the claim under section 190A.

(2)        If the claim does not satisfy all of the conditions in subsections 190A(7) to (10):

                     (a)  the Registrar must remove the claim from the Register and give written notice as required by subsection 190A(11); and

                     (b)  the other provisions of section 190A apply as if the notice mentioned in paragraph (a) were given under subsection 190A(11).

(3)        After the Registrar has complied with subitems (1) and (2), he or she is taken to have complied with section 190A.

8  Previously directed mediation conference

If:

                     (a)  an application that was made to the Native Title Registrar under section 61 of the old Act is taken to have been made to the Federal Court; and

                     (b)  at or before the commencement of this Act, the President has directed the holding of a conference of the parties or their representatives under subsection 72(1) of the old Act, in respect of the whole or a part of the proceeding; and

                     (c)  the Tribunal has not made a determination under section 73 or 160 of the old Act; and

                     (d)  the Native Title Registrar has not lodged the application with the Federal Court under section 74 of the old Act;

then, for the purposes of the new Act, the Federal Court is taken to have referred the proceeding, or the part of the proceeding, to mediation under section 86A of the new Act. The Court is taken to have made the referral at the commencement of this Act.

9  Application already with Federal Court

If:

                     (a)  an application that was made to the Native Title Registrar under section 61 of the old Act is taken to have been made to the Federal Court; and

                     (b)  the Native Title Registrar has lodged the application with the Federal Court under section 74 of the old Act;

the Federal Court is taken to have made an order, under subsection 86A(9) of the new Act, that mediation cease in relation to the whole of the proceeding.

10  Case 5 in item 2 or 3—effect of section 24 protection

If case 5 in the table in item 2 or 3 applies to a non-claimant application covering an area, the area:

                     (a)  is taken to be subject to section 24 protection (within the meaning of the new Act) unless and until:

                              (i)  the area is covered by an entry in the National Native Title Register specifying that native title exists in relation to the area; or

                             (ii)  the non-claimant application (if any) is withdrawn or dismissed; and

                     (b)  is taken to have been subject to section 24 protection (within the meaning of the new Act) at all times since the end of the period of 2 months worked out under section 66 of the old Act.

11  Case 7 in item 2 or 3—effect of section 24 protection

If case 7 in the table in item 2 or 3 applies to an area, any part of the area:

                     (a)  is taken to be subject to section 24 protection (within the meaning of the new Act) unless and until that part of the area is covered by an entry in the National Native Title Register specifying that native title exists in relation to that part of the area; and

                     (b)  is taken to have been subject to section 24 protection (within the meaning of the new Act) at all times since the end of the period of 2 months worked out under section 66 of the old Act.

12  Claims advised by recognised State/Territory bodies

If:

                     (a)  the Registrar was notified of a claim by a recognised State/Territory body under paragraph 190(1)(c) of the old Act; and

                     (b)  the claim was contained in an application that was made on or after 27 June 1996; and

                     (c)  after the commencement of this item, the Registrar is notified by the recognised State/Territory body that the claim does not satisfy conditions equivalent to those set out in section 190A;

the Registrar must remove the claim from the Register.

13  Regulations

(1)        The Governor-General may make regulations prescribing matters:

                     (a)  required or permitted by this Act to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act.

(2)        In particular, regulations may be made for transitional measures in relation to the transition from the old Act to the new Act.



 

Part 3—Interpretation

14  Contents of this Part

This Part defines terms used in this Schedule.

15  Meaning of commencement of this Act

The commencement of this Act is the time when this item commences.

16  Meaning of new Act and old Act

(1)        The new Act is the Native Title Act 1993 , as amended at the commencement of this Act.

(2)        The old Act is the Native Title Act 1993 , as in force immediately before the commencement of this Act.

17  Meaning of application is being processed

(1)        An application is being processed if:

                     (a)  the application has been given to the Native Title Registrar under subsection 61(1) of the old Act; and

                     (b)  the application is still being reviewed by the Registrar (see subsection (2)) or a presidential member (see subsection (3)).

(2)        An application is being reviewed by the Registrar if:

                     (a)  the Registrar has not yet completed consideration of the application; or

                     (b)  the Registrar has completed consideration of the application and:

                              (i)  has formed an opinion mentioned in paragraph 63(1)(a) or (1)(b) or subsection 64(1) of the old Act; but

                             (ii)  has not referred the application to a presidential member under subsection 63(2) or 64(1) of the old Act.

(3)        An application is being reviewed by a presidential member if:

                     (a)  the Registrar has referred the application to a presidential member under subsection 63(2) or 64(1) of the old Act; and

                     (b)  the presidential member has not completed consideration of the application.

18  Meaning of application is being reviewed by a court

An application is being reviewed by a court if:

                     (a)  the presidential member has made a direction under paragraph 63(3)(c) or 64(2)(c) of the old Act; and

                     (b)  either:

                              (i)  the direction is the subject of a proceeding under the old Act before a court; or

                             (ii)  the period during which an application for some form of review of the direction, or of a decision made on review of the direction, may be made has not yet finished.

19  Meaning of application has been accepted

An application has been accepted if it has been accepted under section 63 or 64 of the old Act.

20  Meaning of application is taken to have been made to Federal Court

If an application is taken to have been made to Federal Court:

                     (a)  the application is to be treated as if it were made to the Federal Court under the relevant provisions of the new Act; and

                     (b)  if the application complies with sections 61 and 62 of the old Act—it is taken to comply with sections 61 and 62 of the new Act; and

                     (c)  the Native Title Registrar must give the application to the Federal Court.

21  Meaning of non-acceptance appeal

A non-acceptance appeal is an appeal under subsection 169(2) of the old Act or an appeal from a decision on such an appeal.

22  Meaning of old law is to apply

If the old law is to apply to an appeal, the court hearing the appeal, and any subsequent appeal, is to disregard the amendments made by this Act.

23  Meaning of new law is to apply

If the new law is to apply to an appeal, the court hearing the appeal, and any subsequent appeal, is to take account of the amendments made by this Act.

24  Meaning of Registrar is giving notification

The Registrar is giving notification if he or she has given notice of the application to a person whose interests may be affected by a determination but has not given, and is not taken to have given, notice to all such persons.

25  Meaning of Registrar has given notification

The Registrar has given notification if he or she has given, or is taken to have given, notice of the application to all persons whose interests may be affected by a determination in relation to the application, under section 66 of the old Act.

26  Meaning of section 66 period

The section 66 period , for an application, means the period of 2 months worked out under section 66 of the old Act in relation to the application.

27  Meaning of notification is taken to be for that application

If, in relation to an application, notification is taken to be for that application , the notification is to be treated as if it were notice of the application given, or taken to have been given, under section 66 of the new Act, that contained details of the application.

28  Meaning of unopposed

An application is unopposed if the application is unopposed for the purposes of section 70 of the old Act.

29  Meaning of not finalised

An application is not finalised if:

                     (a)  the application is the subject of a proceeding before the NNTT, the Federal Court or the High Court; or

                     (b)  a determination has been made in respect of the application but the normal application and review period defined in subsection 167(10) of the old Act has not finished.

30  Meaning of same people are the parties

If the same people are the parties :

                     (a)  any people who were parties to the application that was made to the Registrar under section 61 of the old Act are taken to be the parties to the application that is taken to have been made to the Federal Court under the relevant provisions of the new Act; and

                     (b)  a person who notifies the Registrar under paragraph 68(2)(b) of the old Act, after the commencement of the new Act but within the period of 2 months worked out under section 66 of the old Act, is also a party.

Note:          Other people may also become parties (see section 84).