1996

 

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

THE HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

 

NATIVE TITLE AMENDMENT BILL 1996

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Prime Minister

 the Honourable John Howard, MP)

 

78919

 

NATIVE TITLE AMENDMENT BILL 1996

 

Outline

 

This Bill contains amendments to the Native Title Act 1993  (NTA) which clarify the circumstances in which acts affecting native title may be done, facilitate agreements between governments and native title holders about those acts, streamline the processes for determining native title matters, provide an effective registration process for claims and ensure that native title and compensation determinations under the NTA are enforceable.  The Bill also contains proposed amendments to make technical improvements to the NTA and correct minor typographical errors.

 

Schedule 1 - Amendment of the Native Title Act 1993

 

Schedule 1 of the Bill contains amendments to the NTA and is divided into seven parts.

 

Part 1deals with amendments related to applications.  Many of those amendments are necessary because of the decision of the High Court in Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 (‘the Brandy decision’).  The majority of the amendments in this Part were contained in the Native Title Amendment Bill 1995.  The amendments address the implications of the Brandy decision by withdrawing from the NNTT and conferring on the Federal Court the responsibility for receiving all native title applications, controlling the proceedings and making any determinations concerning native title and compensation. 

 

All applications for determinations of native title and compensation under the NTA are to be made to the Federal Court.  There will be no acceptance test for applications. The Native Title Registrar will have the administrative function of assessing whether the claims pass a registration test for inclusion on the Register of Native Title Claims but this will not affect an applicant’s right to be heard in the Court.

 

The Federal Court determines who are parties, but a party has a right to withdraw from a proceeding before the hearing.  After that date parties may apply to the Federal Court to withdraw.  A party can appoint an agent, such as an industry peak body, to act on his or her behalf in a proceeding or mediation.  Parties will be able to apply for an order to dismiss or strike out an application, under the normal Federal Court rules.  Where an order is dismissed, struck out or there is a determination that no native title exists, the claim will be removed from the Register of Native Title Claims.

 

The NNTT will continue to mediate applications.  The amendments set out the purpose of mediation, which is for the parties to reach agreement on some or all of the matters relevant to the legal rights being claimed.  The Federal Court will refer all applications to the NNTT for mediation, unless the Court orders than no mediation occur.  After 3 months, any party can apply to the Federal Court for an order that mediation cease and the Court must so order unless it considers that further mediation will be successful.  The Court also has power to order that mediation cease at any time in a proceeding if it considers that further mediation would be unnecessary or unproductive.  The Federal Court can ask the NNTT to provide a report on the progress of any mediation.  A consultant mediator may be appointed on an ad hoc basis by the President for a particular mediation where the mediator has special skills or knowledge that could help the mediation achieve its purpose.  The NNTT will be able, at any time during mediation, to refer to the Federal Court for decision a question of law or fact that has arisen.

 

Where applications are unopposed or where there is agreement between parties (whether arising from mediation or otherwise) the Federal Court may make an order consistent with the wishes of the parties.  In cases where the parties do not agree, the Federal Court will hear the matter.  Where mediation produces an agreement on facts, the Federal Court will be able to take the agreed facts into account when making a determination in relation to that matter.  Even where there is agreement between the parties, or the application is unopposed, the Court may choose to hear the matter in full.  The Federal Court can ask the NNTT to conduct further mediation at any stage, if it is satisfied that the parties are likely to reach agreement.

 

The Bill provides for the appointment of judicial registrars to the Federal Court.  The Federal Court will be able to delegate some of its functions to judicial registrars, including the determination of unopposed or agreed claimant and non-claimant native title applications and compensation applications.

 

Part 2contains amendments dealing with the conditions to be satisfied for the registration of claims.  Registration provides access to the right to negotiate, the ability to participate in section 24A agreements and to deny the operation of sections 24 and 24B.  The proposed amendments will ensure that there is a higher threshold for access to these statutory rights.  In order to be registered claimants will need to provide more detailed information about their claim including: a fuller physical description of the area claimed; information about the facts which will be produced to establish the traditional connection of the claimants with the land as well as any current use by them of the land claimed; the results of searches of land tenure information; and the basis on which the claimants, as a group, are making the claim. 

 

In addition, the Registrar must be satisfied that prima facie all the native title rights and interests claimed can be made out.  The Registrar cannot register a claim if he or she is aware, through information contained in the application or information provided by a State or Territory, that the land covered by the claim includes land that is or has been freehold or residential or commercial leasehold (other than pastoral or agricultural leases or leases issued for the benefit of indigenous peoples).  The amendments address an issue arising from the High Court’s decision in North Ganalanja Aboriginal v Queensland (1995) 135 ALR 225 (the Waanyi case) by providing that the Registrar will be able to look at additional information to that contained in applications in making a decision.  Decisions not to register can be reviewed by the Federal Court.

 

Part 3contains amendments to section 21 to make it clear that where an agreement is made with registered native title holders, acts affecting native title in accordance with the agreement will be valid in the unlikely event that there is a later determination that another group holds, or also holds, native title in the area affected by the acts.  Compensation is payable to any later determined native title holders where the valid act has affected their native title.  Acts covered by a section 21 agreement will also be exempt from the right to negotiate process.

 

Part 4 contains amendments to make it clear that registered native title claimants and holders can enter into agreements with governments and other parties to allow certain future acts to be done validly over areas even where there is a registered claim for native title in relation to that area.  Proposed section 24A describes the pre-conditions for (including provision for notification) and legal effect of making such agreements.  Proposed section 24B sets out the consequences where no native title party responds to a notice.  The non-extinguishment principle applies to any acts done under sections 24A or 24B.  Compensation may be payable for acts done under section 24A agreements or under section 24B.

 

Part 5contains amendments to section 24 which are necessitated by the new process for making applications contained in Part 1 of Schedule 1.  The amendments make it clear when section 24 protection arises in relation to areas covered by a non-claimant application and maintain the distinction between government and non-government non-claimant applications.

 

Part 6 containsamendments that will clarify the circumstances in which certain leases and other interests originally granted before 1 January 1994 may be renewed, regranted or extended, and in which pastoral leases can be varied or non-pastoral lease activities carried out on the land.  While the renewal or variation of a pastoral lease may allow non-pastoral activities, mining is not permitted and the land must not cease to be used solely or primarily for pastoral purposes.  This amendment will allow pastoralists to diversify their activities and also allow term pastoral leases to be converted into perpetual pastoral leases.

 

Part 7contains miscellaneous amendments.  Many correct minor typographical errors and make technical improvements to the NTA.  The Native Title Registrar will be able to provide assistance to non-claimants and other people as well as claimants.  The financial assistance provisions in section 183 will be amended to make it clear that native title claimants are not able to access assistance under this section.  The amendment implements the recommendation of the Review of Representative Bodies that representative Aboriginal and Torres Strait Islander  bodies be the sole source of assistance to claimants.  Section 183 will also be amended to make it clear that financial or other assistance may be provided to non-native title parties at all stages of the Federal Court and NNTT processes.  The amendments include an amendment to confirm the status of the inter-tidal zone as ‘waters’ not ‘land’ but does not alter its status as an onshore place.

 

Schedule 2 - Amendment of other acts

 

This schedule contains amendments to the Federal Court of Australia Act 1976 dealing with judicial registrars, and a minor amendment to the Human Rights and Equal Opportunity Commission Act 1986 to note that the Commission has functions under section 209 of the NTA.  Similar amendments to the Federal Court of Australia Act 1976 are also contained in the Workplace Relations and Other Legislation Amendment Bill 1996.  These amendments will only take effect if the relevant provisions of the Native Title Amendment Act 1996 commence before the relevant provisions of theWorkplace Relations and Other Legislation Amendment Act 1996.

 

Schedule 3 - Transitional

 

This schedule deals with the status of current native title applications before the NNTT and the Federal Court, and explains how those matters are to be dealt with during the transition to the new scheme set up by Part 1 of Schedule 1.  It provides for the application of the new registration test to all claims made after the introduction of this Bill.

 

FINANCIAL IMPACT STATEMENT

 

The revised procedures will lead to an increase in workload for the Federal Court, as all native title and compensation applications will be commenced in, and determined by, the Federal Court.  The appointment of judicial registrars to the Federal Court will also have resource implications.  Any additional funds necessary will be sought through the new policy process.

 

 

NOTES ON CLAUSES

 

 

In this explanatory memorandum the items which are marked with an asterisk ‘*’ are identical to those in the Native Title Amendment Bill 1995.

 

Clause 1 - Short Title

 

This clause provides that the Act may be cited as the Native Title Amendment Act 1996.

 

Clause 2 - Commencement

 

Subclause (1) provides that sections 1, 2 and 3 commence on Royal Assent. 

 

Subclause (2) provides that, subject to subclause (3) the remaining provisions of the Act commence on a day or days to be fixed by Proclamation. 

 

Subclause (3) establishes a 9 month time limit for the commencement of all provisions of the Act (excluding subclause 1) if they have not commenced by that time period.  The period of 9 months is to allow necessary arrangements, for example the making regulations, to take place before commencement.  It also gives time for South Australia, which has a system determined under section 251 of the NTA, to amend its legislation to take account of the higher threshold for registration of claims so that it will be consistent with the new NTA provisions.

 

Clause 3 - Schedule(s)

 

This clause makes operative the amendments and other provisions contained in the Schedules.

 

SCHEDULE 1 - AMENDMENT OF THE NATIVE TITLE ACT 1993

 

 

SCHEDULE 1,  Part 1 - Amendments relating to applications

 

Description of amendments in this Part

 

This Part implements changes to the processes for making applications under the NTA for native title and compensation determinations.  The changes are in response to the High Court’s decision in the Brandy case which dealt with provisions in the Racial Discrimination Act 1975 having similar effect to provisions in the NTA for the registration and enforcement of determinations of the NNTT.

 

The changes will ensure that determinations of native title and compensation are fully effective. A number of procedural amendments are consequential on those changes.

 

Under the new scheme, all applications under the NTA for determinations of native title and compensation are made to, and determined by, the Federal Court. The power of the NNTT to make such determinations is removed.  However, the NNTT retains its current role in providing assistance with the mediation of future act applications (that is, acts attracting the 'right to negotiate') where requested to do so, and in cases where there is no agreement, determining whether those acts can proceed.

 

There is no acceptance test for applications made to the Federal Court.  Provided that they comply with the formal requirements, applications are referred to the Native Title Registrar for notification of all persons whose interests might be affected.  This process includes general notification to the public.

 

Minor changes to the notification requirements will ensure that persons to whom notices are sent are able to ascertain when the period in which they can respond runs out.  A similar change is made to the notification provisions in the ‘right to negotiate’ regime.  There will be an increase in time from 2 to 3 months for native title claimants to lodge claims in response to non-claimant applications and proposed section 24A notices and to have those claims registered in response to section 29 notices.

 

Persons whose interests may be affected by a native title claim may apply to the Federal Court to become parties. State and Territory governments are automatically parties to applications within their jurisdiction. There is a provision for intervention by the Commonwealth Minister.

 

In the normal course, matters will then be referred to the NNTT for mediation.  The amendments will provide clear guidance to the parties by setting out the purposes of mediation.  In the case of a claim for a determination of native title, the purpose is to assist the parties to reach agreement on some or all of matters relevant to whether native title exists in the areas claimed and its characteristics.  In the case of a claim for compensation, the purpose is to assist the parties to reach agreement on those matters as well as the amount and kind of compensation, those who are entitled to it and the method for its determination. 

 

A part of the mediation process will involve ascertaining any agreed facts between parties.  Any such agreed facts may be adopted by the Federal Court. 

 

A party may apply to the Court for an order that mediation be by-passed.  The Court will be obliged to make such an order if it considers that mediation will be unnecessary or parties will be unable to reach an agreement on the matters referred to above or facts relevant to those matters.  The Court may also make an order on its own motion that mediation be by-passed.  Before making such an order, the Court may ask for, and have regard to, a report from the NNTT about the prospects for successful mediation.  In coming to a decision about whether to refer a matter for mediation, the Court will need to take into account factors such as the number of parties, how long reaching agreement is likely to take, the size of the area involved and the nature and extent of interests of non-native title holders in the area.

 

Furthermore, at any time from 3 months after the start of mediation, any party to a proceeding will be able to apply for an order that mediation cease and the Court will be required to make such an order unless it is satisfied that mediation will produce an agreement on the matters referred to above.  The Court is able on its own motion to order that mediation cease at any time or to refer matters to the NNTT for mediation at any time.

 

Experience has shown that overall flexibility in procedures is important.  Accordingly, the Federal Court’s and the NNTT's current method of operating in an informal, economical and prompt manner, and with regard to the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, will remain.  It will also remain the case that the Federal Court and the NNTT will not be bound by technicalities, legal forms or rules of evidence.

 

Mediation conferences are to be held in private.  Statements made and information produced in mediation will remain confidential so as to encourage full and frank discussion between the parties.  Where all parties agree, there is provision for other persons to attend conferences where this may help to resolve an issue.  

 

Questions of law and fact which arise in the course of mediation may be referred to the Federal Court for resolution.  The Court will retain overall control of the process by being able to request reports on progress in mediation from the NNTT.  These reports will be of a general nature so will not refer to confidential information disclosed, or statements made, during mediation.

 

Any determinations of native title or compensation will be made by the Federal Court.  Where applications are unopposed or agreement is reached, whether arising from mediation or otherwise, the determination functions may be exercised by a judicial registrar (see Schedule 2 to the Bill).  However, the Court retains overall control of the proceeding, and there is provision for appeal from a decision of a judicial registrar.

 

Although there is no acceptance test for applications, those made by persons claiming native title must satisfy a separate registration test if they are to attract the statutory benefits conferred by the NTA, including the 'right to negotiate'.  The registration test is contained in Part 2 of Schedule 1.

 

A claim which is not registered will nevertheless still be able to be referred to the NNTT for mediation and will be determined by the Federal Court in accordance with the procedures set out in the Act.  The usual Federal Court procedures governing strike out motions, the withdrawal and dismissal of applications and costs will apply to all native title matters.  Where an order is dismissed, struck out or there is a determination that no native title exists, the claim will be removed from the Register of Native Title Claims.

 

There are changes to the financial assistance provisions administered by the Attorney-General. These ensure that assistance is available to eligible parties who are not claiming native title at all stages of the proceeding, including the period before they become parties and also during mediation.

 

Item

 

1               *Section 4 -  (Table, entry relating to Part 6, after paragraph (d))

 

This item inserts a reference to new Division 4A (provisions dealing with mediation conferences) into the Table summarising the content of the Act.

 

 

2               *Subsection 13(1)

 

This item substitutes the term ‘Federal Court’ for ‘Registrar’ with the effect that all applications for determinations of native title and compensation and variations or revocations of an approved determination under the Act will be made to the Federal Court.

 

 

3-5            *Paragraph 13(2)(a), subsection 13(2), and paragraphs 13(4)(a) and (6)(a) 

 

These items amend section 13 (which deals with determinations of native title and compensation) to replace references to the NNTT with references to the Federal Court.  Under the revised procedures only the Federal Court will make determinations of native title and compensation.

 

 

6-8           Paragraphs 28(1)(a), 30(a) and (b) and subsection 32(3)

 

These items amend their respective provisions to reflect the longer time (3 months instead of 2 months) that claimants have in order to have a claim registered in response to a section 29 notice or to object to the inclusion of a statement in such a notice that an act attracts the expedited procedure.

 

 

9-14          *Subsections 50(2), section 55, subsections 56(1), (2), (4) and 57(2)

 

These items make minor consequential amendments to reflect the fact that applications will be made to the Federal Court instead of the Native Title Registrar.

 

 

15-17        *Section 61

 

These items make minor consequential amendments to section 61, which deals with applications, to reflect the fact that applications will be made to the Federal Court instead of the Native Title Registrar.

 

 

18             *Before paragraph 62(1)(a)

 

This item provides for one person out of the claimant group to be taken to be the claimant in order to facilitate dealings with the claim under the Act.  New paragraph 62(1)(aa) mirrors the existing requirement for the application to state the name and address of the person who is taken to be the claimant.

 

 

19-20        *Paragraphs 62(1)(a) and (b)

 

These items reflect the fact that the claimant must swear the necessary affidavit and provide information known to him or her about non-native title interests in the area.

 

 

21             Paragraph 62(1)(d) 

 

This item is intended to help the Native Title Registrar to gauge whether or not a claimant application is made in response to a non-claimant application or a notice under sections 24A or 29 (or a notice under a corresponding provision of a law of a State or Territory).  This is important because a claimant is able to exercise certain rights where the claim is made or registered within 3 months.  ‘Brief details’ includes giving specifics of who is the claimant in the non-claimant application, and the area that application or notice covers and any other possible identifying matters which are relevant.  It is not intended to require claimants to duplicate the supporting materials used in the other application or notice. 

 

22             *Subsection 62(1)(note)

 

This item replaces the current note and refers to the fact that the person whose name is given under paragraph 62(1)(aa) - the applicant - will be the registered native claimant while the claim is entered on the Register of Native Title Claims.

 

 

23             Sections 63, 64 and 65

 

This item repeals the existing sections 63, 64 and 65 and inserts new sections 63 and 64.  The current acceptance test in section 63 will be removed.  The registration test for claims in new section 190A (see item 96) will determine which claims get access to the right to negotiate and other statutory benefits.  Registration is not linked to acceptance of a claim for the purpose of obtaining a determination and unregistered claims will proceed through to a determination in the Federal Court unless withdrawn or otherwise dismissed.

 

Section 63 - Reference of applications to the Native Title Registrar

 

This section requires the Federal Court to forward to the Native Title Registrar as soon as practicable a copy of applications which comply with sections 61 and 62, so that the notification and registration processes can commence.  

 

Section 64 - Amendment of applications

 

Subsection 64(1) provides that an amendment cannot result in an increase in the area covered by the original application.  Applicants wishing to claim an additional area may make a new claim.  In such circumstances, the Federal Court might choose to hear the applications together.  The note indicates that the Federal Court Rules will set out how an amended application may be made.

 

Subsection 64(2) provides for notice of amended applications to be given to the Native Title Registrar.

 

Subsection 64(3) enables the Federal Court to direct the Native Title Registrar to give notice of the amended application where the Court considers it appropriate.  This may be of particular value where the nature of the interest claimed has been varied or where the area claimed has been narrowed significantly.  Given the range of possible changes, it is appropriate that the ordering and the extent of notice be left to the discretion of the Court.

 

 

24             Subsection 66(1)

 

Subsection 66(1) - Notification by Native Title Registrar

 

This item replaces existing subsection (1) and deals with the persons who must be given notice of a native title or compensation application.  The Registrar is empowered to give notice to such other persons as the Registrar considers appropriate.  This additional power recognises that there may be other groups/individuals who it is appropriate to notify.  Subsection (1A) provides that a copy of the notice must be given to the Federal Court to ensure that the Federal Court is aware of when the notification period commenced in relation to the application. 

 

 

25             *After subsection 66(2)

 

Subsection 66(2A)

 

This item requires the Registrar when giving notice under section 66, to specify in the notice the day on which notice is taken to have been given.  This day cannot be earlier than 14 days after the last day on which notice is dispatched (defined in new section 252A) under subsection 66(2).  This means persons will be able to ascertain the date by which they need to notify the Federal Court that they wish to become a party or to file a native title determination application.

 

 

26             *Paragraph 66(3)(b)

 

This item makes it clear that any notice under section 66 is to specify the date on which it is taken to have been given.

 

 

27             *Paragraph 66(3)(b)

 

This item is a consequential amendment as those wishing to become parties will give notice to the Federal Court instead of the Native Title Registrar.

 

 

28             Paragraph 66(3)(b)

 

This item gives 3 months (increased from 2 months) for persons to become parties.

 

 

29             Subsections 67(2), (3) and (4)

 

This item repeals subsections 67(2), (3) and (4).  New subsection (2) provides that where a native title claimant makes a claim which covers any part of an area covered by a non-claimant application, the claimant application and the non-claimant application may be combined into the same matter in accordance with the Federal Court Rules.  It is anticipated that this will be the usual course where two applications deal with the same area of land, and in which the claims are thus interrelated.  This course will permit the resolution of both applications in a co-ordinated and more efficient manner.  This section does not limit the Federal Court’s power to combine other applications.

 

The matters covered by subsection 67(3) are now included in subsection 190A(2) in item 96.

 

 

30             *Sections 68 to 74

 

This item repeals sections 68 to 74.  These are consequential amendments reflecting the shift of functions in relation to applications from the NNTT to the Federal Court.

 

31             Paragraph 78(2)(b)

 

This item makes it clear that the Native Title Registrar may assist in the searching of registers or other records of interests in land or water.  The section is also amended by item 127.

 

 

32             *Subsection 79(1)

 

This item removes a reference to section 79 consequent on its repeal.  The obligation imposed by section 79 on persons involved in a negotiation to consider requests for non-monetary compensation, provided for in section 74, is not affected.

 

 

33-34        *Sections 80 and 81

 

These items are consequential amendments reflecting changes to the functions performed by the Federal Court in relation to applications.

 

 

35             After Section 83

 

Section 83A - Native Title Registrar to conduct searches

 

This item provides that the Federal Court may ask the Native Title Registrar to conduct searches of registers and other records of interests in land and waters.  It is intended to assist the Federal Court to gather further information.  However, the Registrar could report back to the Court in cases where the searches would be prohibitively expensive, and seek further directions in that event.

 

 

36             *Subsection 84(1)

 

This item repeals existing subsection 84(1) and the replacement subsection specifies who are ‘parties’ to a proceeding in the Federal Court.  They include the same groups of persons who were previously included under the repealed section 68, except for the Commonwealth Minister.  The omission of the reference to the Commonwealth Minister reflects the fact that the Commonwealth (rather than the Minister) will become a party where its interests are affected.  New subsection 84(1B) states that if an area covered by an application is within the jurisdictional limits of a State or Territory, the State/Territory Minister is automatically a party unless the Minister gives the Court written notice to the contrary.

 

Subsection 84(1C) also adds that the Commonwealth may, at any time, become a party to a compensation application under section 61.  This is appropriate given that the Commonwealth can have funding responsibilities under Commonwealth/State financial agreements under section 200.

 

 

37             At the end of section 84

 

Subsection 84(3) - Parties may withdraw

 

This item allows a party (other than an applicant) to withdraw at any time before the first substantive hearing.  After that date a party’s ability to withdraw would be governed by the relevant provisions of the Federal Court Rules.

 

 

38             After section 84

 

This item inserts new sections 84A and 84B.

 

Section 84A - Intervention by Commonwealth Minister

 

This section provides that the Commonwealth Minister, on behalf of the Commonwealth, may intervene in a proceeding before the Federal Court.  The right may be exercised, for example, in cases raising issues of public importance.  It reflects the overall national policy interest the Commonwealth has in proceedings under the Act.

 

Subsection 84A(2) puts it beyond doubt that costs in such a case may be awarded against the Commonwealth.

 

Subsection 84A(3) allows the Commonwealth Minister to appeal from a judgment given in a proceeding in which the Minister has intervened.  If the Minister institutes an appeal from a judgment under subsection 84A(3), subsection 84A(4) makes it clear that a court may make an order as to costs against the Commonwealth.

 

Section 84B - Parties may appoint an agent

 

This section specifically provides for a party to appoint a society, organisation, association or other body as their agent in the proceeding.  For example, a number of pastoralists who are parties to a proceeding and have similar interests could appoint a peak body to act as their agent in the proceeding.  A body appointed as agent under this section can act for more than one party.  The body might also arrange, for example, for a number of parties to be represented by one legal practitioner.

 

 

39             After section 86

 

This item inserts new Divisions 1A and 1B.

 

Division 1A - Reference to NNTT for mediation

 

Section 86A - Referral of matters to  NNTT

 

The existing emphasis on mediation is continued by the proposed amendments.  Subsection (1) sets out the purposes of mediation, where a matter does not involve a claim for compensation.  Briefly, the mediation is intended to help the parties agree on whether native title exists and if so, what rights it comprises and who holds them.  The mediation is also to help identify what other interests are held in relation to the land or waters that may affect the native title rights and interests.  These are the matters which are essential to a determination of native title by the Court.

 

Where the proceeding involves a claim for compensation, subsection (2) provides that the purpose of the mediation is to reach agreement on the matters mentioned in subsection (1) and also whether any person is entitled to compensation and, if so, how much and in what form that compensation should be paid.

 

The notes to subsections (1) and (2) indicate that the matters relevant to mediation are those required for determinations of native title and compensation.  This will assist parties to identify better the issues relevant to the mediation and will also assist in keeping mediations focussed on achieving outcomes directly related to native title.

 

Subsection (3) provides for the Federal Court to refer every application to the NNTT for mediation unless the Court has ordered, as a result of an application by a party or of its own motion, that mediation not occur.

 

Under subsection (4) a referral to mediation may be made even if all the parties to the proceeding have not yet been determined. 

 

Under subsection (5) a party may apply to the Court for an order that there be no mediation or the Court may make such an order of its own motion.

 

New subsection (6) provides that an order that there be no mediation must be made if the Federal Court considers that mediation will be unnecessary or unsuccessful, after taking account of the matters set out in subsection (7), which include the number of parties or their agents, the likely time to reach an agreement, the size of the area, and the nature of the interests held in the area by parties other than the native title claimants.  For example, where an application is unopposed there would be no need for mediation.

 

Under subsection (8), the Federal Court can also refer the whole or part of a proceeding to the NNTT for mediation at any time where it believes that it will achieve its purpose.  For example, where a judicial decision is given in another case which clarifies or resolves a matter in dispute in the proceeding it may be worthwhile to refer the proceeding (or part of it) back to the NNTT for mediation.  The Court may make an order under this subsection even if it had previously made an order that there be no mediation or that mediation cease.

 

Subsection (9) provides that the Court may, of its own motion, at any time order that mediation cease over part or the whole of an application if it is satisfied that further mediation is unnecessary (for example, where agreement has been reached) or where it considers that the parties will be unable to reach agreement on either factual issues relating to the claim or the substance of the native title claimed.

 

Subsection (10) provides that once mediation has been underway for 3 months, a party to a proceeding can ask the Federal Court for an order that mediation cease.  Subsection (11) provides that the Federal Court must order that mediation cease if there is an application under subsection (10), unless it is satisfied that mediation can achieve its purpose.

 

Subsection (12) provides that the Court may take into account a report from the NNTT about the mediation when deciding whether or not mediation should cease.  The report would be in general terms so that the confidentiality of matters raised in mediation is maintained.

 

Subsection (13) provides that the Federal Court may determine a question of fact or law referred to it under new section 136E during mediation. 

 

Subsection (14) provides that the Federal Court may take into account any agreement on factual issues agreed by the parties during a mediation.

 

Section 86B - Federal Court may request reports from the NNTT

 

Under new section 86B, the Federal Court may ask the NNTT to report on the progress of any mediation and may specify when the report is due.  This will assist the Federal Court in its management of a proceeding.  Such a report would not refer to statements made or information given in confidence during the mediation.

 

Division 1B - Agreements and unopposed applications

 

New Division 1B deals with agreements and unopposed applications.

 

Section 86C - Unopposed applications

 

New section 86C provides that where applications are unopposed or where there is agreement between parties, the Federal Court may make an order consistent with the wishes of the party without necessarily holding, or completing, a hearing.  Unopposed applications are those in which the only party is the applicant, or where any other party has notified the Federal Court that he/she does not oppose the application (subsection 86C(2)).

 

A non-claimant applicant may, where the claim is unopposed, seek to have a proceeding adjourned in accordance with the Federal Court Rules.  Non-claimant applicants who do not wish to get a determination after having obtained section 24 protection for an act, may withdraw their application.  The validity of any act which has section 24 protection will not be affected.

 

 

40             Subsection 87(1)

 

This item is included to ensure that any agreements are made after the end of the notification period, so that the agreement is between all relevant parties.

 

 

41             *After Section 97

 

Section 97A - Searches for Federal Court

 

This item inserts a new section empowering the Native Title Registrar to conduct searches requested by the Federal Court under new section 83A.

 

 

42             After subsection 108(1)

 

This item inserts new subsections 108(1A) and (1B).

 

Subsection 108(1A) - Mediation for Federal Court proceedings

 

This subsection includes in the NNTT’s functions that of mediation in Federal Court proceedings.

 

Subsection 108 (1B) - Negotiations under section 24A

 

This subsection makes it clear that the NNTT has the ability to assist in negotiations, if requested, in relation to a proposed agreement under section 24A. 

 

The President of the NNTT can decide whether assistance can reasonably be provided in each case.

 

 

43-44        *Subsections 109(2) and 109(3)

 

These items substitute the words ‘carrying out its functions’ for the words ‘conducting inquiries’.  This will ensure that the requirement to take into account the cultural and customary concerns of Aboriginal people and Torres Strait Islanders will apply to all the functions of the Tribunal. The Tribunal will not be bound by technicalities, legal forms or rules of evidence in relation to any of its functions.

 

 

45-48        *Subsections 123(1) and 124(1)

 

These items amend the way in which the President arranges the NNTT’s business and are consequential amendments to reflect the shift of functions from the NNTT to the Federal Court.

 

 

49             After section 136

                

This item inserts a new Division 4A which sets out the procedures for the NNTT to follow when mediating matters referred to it by the Federal Court.  These referrals will take place under section 86A.

 

Section 136A - Mediation Conferences

 

This section provides that: the President may direct that a conference will be held; a member must preside; other members of the NNTT or its staff may assist the member presiding; statements at conferences cannot be used in evidence before the Federal Court; a member who presides over, or assists at, a conference, may not take further part in relation to a proceeding; and, participation in a conference may be by telephone, closed circuit television, or other means of communication.

 

Section 136B - President may engage consultants to conduct mediation

 

This section allows the President of the NNTT to employ a consultant on an ad hoc basis to conduct mediation for a particular matter.  Subsection (2) makes it clear that Division 4A applies to the mediation as though the consultant were a member of the NNTT.

 

To be appointed as a consultant under this section, subsection (3) requires that the person has, in the opinion of the President of the NNTT, particular skills or knowledge which are particularly relevant to the mediation in question.  Subsection (5) makes it clear that the consultant is subject to directions given by the President under section 123.

 

Section 136C - Parties at conferences

 

This section allows the presiding member to direct that some parties and their representatives be excluded from a conference where this will help to achieve the purpose of the mediation.  Subsection (3) provides that a party may be represented by a legal practitioner or another person.

 

Section 136D - Other persons attending or participating in conferences

 

This section allows other persons, who are not representing parties, to attend and participate in the conference where it will help parties to reach agreement on the subject matter of the mediation and all parties agree.

 

 

Section 136E - Referral of questions of law or fact

 

Subsection (1) provides that a question of law or fact arising in mediation may be referred to the Federal Court by the presiding member.  Subsection (2) provides that, where the presiding member is not a consultant, a question of law or fact cannot be referred at the request of a party unless the presiding member also agrees. 

 

Subsection (3) provides that when the mediation is presided over by a consultant, questions of law or fact may only be referred on the initiative of the consultant if a presidential member agrees.  Where a party to a mediation seeks the reference, the question can only be referred to the Federal Court if the consultant and a presidential member agree.

 

Under subsection (4) the Federal Court has jurisdiction to hear and determine questions of fact or law referred to it under this section.  Subsection (5) provides that mediation may continue while the Federal Court determines the question if the presiding member considers this appropriate.

 

Section 136F - Conferences to be held in private

 

This section provides that mediation conferences are to be held in private. 

 

Section 136G - Presiding member may prohibit disclosure of evidence

 

This section allows the presiding member to give directions to preserve the confidentiality of the mediation.  This allows parties in a mediation to present evidence of matters that they consider sensitive or confidential, but which are nevertheless essential to the establishment of their claim.

 

Note that an amendment to section 176 makes it an offence to disclose information in contravention of a non-disclosure order made under section 136G.

 

Section 136H - Report to be given to Federal Court

 

Subsection (1) requires a presiding member to report in writing to the Federal Court about the results of the mediation as soon as practicable after a mediation concludes successfully (ie. the parties are able to reach an agreement on the matters, or part of the matters, set out in proposed subsections 86A(1) or (2)).  The presiding member is also required to report to the Federal Court on progress in the mediation where requested to do so by the Court under section 86B.  Subsection (3) provides that the presiding member may also provide a report to the Court on the progress of a mediation where the presiding member considers that such a report would assist the Court in the proceeding to which the mediation relates.  Subsection (4) requires any report made under this section to contain any agreed facts reached during the mediation.

 

 

50-51        *Paragraph 139(a) and subsection 141(1)

 

These items are consequential amendments as the NNTT will no longer be able to hold an inquiry into native title or compensation applications.

 

 

52             Section 148

 

This item repeals section 148 as it is no longer necessary.  The prima facie test was only relevant to the acceptance or rejection of native title and compensation applications by the NNTT. The prima facie test will now be part of the registration process under new section 190A, see Part 2 of Schedule 1.

 

 

53-55        Subsections 154(1), 154(3) and 154(4)

 

These items have been included to remove an anomaly.  The NNTT is required to hold an inquiry for right to negotiate applications and for special matters.  Section 151 provides that the NNTT is not required to hold hearings for every inquiry.  The provisions in section 154 requiring inquiries to be held in public cannot have any operation unless the inquiry includes a hearing.  Therefore section 154 has been amended to refer to hearings, rather than inquiries, being held in public.  It is possible that an inquiry into right to negotiate matters may be done by the NNTT without a hearing.

 

 

56             *Sections 160, 161 and 165

 

This item repeals these sections, and is a consequential amendment as the NNTT no longer makes determinations of native title and compensation.

 

 

57             *Subdivision E of Division 5 of Part 6

 

This item repeals Subdivision E of Division 5 of Part 6 which dealt with the registration of Tribunal determinations in Federal Court and the enforcement of such determinations.  These provisions were similar to the registration and enforcement scheme under the Racial Discrimination Act 1975  found to be invalid by the High Court in the Brandy case.

 

58             *Subsections 169(2) and (3)

 

This item repeals these subsections as claims will now be filed in the Federal Court rather than the NNTT and the Federal Court will now decide who will be parties to a proceeding.

 

 

59             Section 176

 

This item inserts a reference to section 136G, so that it is an offence to disclose information in contravention of a non-disclosure order related to mediation.

 

 

60             Paragraph 177(a)

 

This item amends paragraph 177(a) to make it clear that it applies to consultants engaged under section 136B(1) to undertake mediations.

 

 

61             *Section 178

 

This item is a consequential amendment as the NNTT will no longer lodge determinations in the Federal Court.

 

 

62             Subsection 181(3)

 

This item amends subsection 181(3) to make it clear that consultants engaged under subsection 136B(1) to undertake mediations cannot be required to give evidence in relation to the proceeding.

 

 

63-65        *Subsections 183(1) and (2)

 

These items enable the Attorney-General to authorise legal or financial assistance to a person who intends to apply to be a party to an inquiry, mediation or proceeding in relation to native title, or who is a party.  Further amendments to section 183 are contained in Part 7 of Schedule 1.

 

 

66             Section 184

 

This item is a consequential amendment as claims will be filed in the Federal Court.

 

 

67             *Subsection 185(2)

 

This item is a technical drafting amendment to avoid confusion between a Registrar of the Federal Court and the Native Title Registrar.

 

 

68             *Subsection 186(1)

 

This is a technical drafting amendment consequential on changes to the registration process.

 

 

69-70        Paragraphs 186(1)(a) and (c)

 

These items are consequential amendments as claims will be filed in the Federal Court.

 

 

71             *After paragraph 186(1)(c)

 

This item inserts a new paragraph 186(1)(ca) which makes it clear that the Register of Native Title Claims must include the date that the claim is registered.  This is important, for example, for determining whether a person is a registered native title claimant at a particular time for ‘right to negotiate’ purposes.

 

 

72             *Section 189

 

This is a technical drafting amendment reflecting the correct title of the relevant official of the High Court.

 

 

73             *After paragraph 189(a)

 

This item inserts a new paragraph 189(aa) and requires the Senior Registrar of the High Court to notify the Native Title Registrar, as soon as practicable, of the details of any amendment or withdrawal of a claim contained in an application given to the High Court.  This is relevant to the Native Title Registrar’s function under new section 190A to consider claims for the purposes of registration.

 

 

74             At the end of section 189

                

This item adds subsection 189(2) and provides that when an application or an amended application is given to the High Court, a copy of the application or amended application should be given to the Native Title Registrar when the Senior Registrar of the High Court notifies the Native Title Registrar of the claim.

 

 

75             After section 189

 

Section 189A - Federal Court to notify Native Title Registrar

 

This item inserts a new section 189A and requires the Federal Court to notify the Native Title Registrar when a registered claim is withdrawn or there is any decision or determination covering a claim (whether or not yet covered by an entry on the Register) made by the Federal Court.  This would include decisions to dismiss an application in whole or in part.  The section replaces current section 196, which is repealed.

 

 

76             *Subsection 190(1)

 

This item amends the subsection by removing a redundant phrase.  As the Registrar is required to include items on the Register of Native Title Claims as soon as practicable after the Registrar, or an equivalent person in a recognised State or Territory system, has decided that the claims satisfy the relevant test, the phrase ‘after becoming aware of them’ is redundant.

 

 

77             *Paragraph 190(1)(a)

 

This item ensures that only the details of those claims which are accepted for registration (by passing the registration test contained in the new section 190A) are included on the Register.  Claims which do not satisfy the registration test are not included on the Register.

 

 

78             *Paragraph 190(1)(b)

 

This item ensures that claims made to the High Court must also pass the registration test before being placed on the Register.

 

 

79             Paragraph 190(1)(c)

 

This item provides that of the claims of which the Registrar is notified by a recognised State/Territory body, only those claims and amended claims that have satisfied conditions equivalent to the Commonwealth registration test in new section 190A are to be included in the Register of Native Title Claims.  Changes to subparagraph 251(2)(i)(i) will impose requirements on recognised State/Territory bodies to advise the Native Title Registrar of claims and amended claims that pass a test similar to the registration test so that these can be registered, and of amended claims which fail the test and claims which are withdrawn or dismissed, so that these claims can be removed from the Register of Native Title Claims (see item 98).

 

 

80             After subsection 190(1)

 

This item inserts new subsection 190(1A) which provides for amending the Register to reflect amendment of claims.

 

New paragraph 190(1A)(a) imposes an obligation on the Native Title Registrar, if notified by a recognised State/Territory body of an amendment of a claim that is on the Register and which has satisfied conditions similar to those in new section 190A, to amend the Register to reflect the amendment as soon as is practicable.  New paragraph 190(1A)(b) requires the Registrar to remove from the Register any entry relating to an amended claim which has been found not to satisfy conditions equivalent to those in new section 190A.  This is to ensure that the Register of Native Title Claims accurately reflects the current status of claims which.

 

 

81             Before subsection 190(2)

 

This item inserts new subsection 190(1B) which ensures that amended claims given to the Registrar by the Federal Court or amendments of claims notified by the High Court are also subject to the registration test before being included on the Register.  If the claim contained in the application as amended satisfies the registration test, the Register must be amended to reflect the amendment.  However, if the claim contained in the application as amended is not registered, the Register is to be amended to remove any entry relating to the claim that was contained in the pre-amended application.  This ensures that claimants cannot, by amendment, add claims which do not pass the registration test.  If claimants do attempt to increase their claim to an unregisterable level, the whole claim is removed from the Register.

 

 

82-83        *Paragraphs 190(2)(a) and (b)

 

These items are consequential amendments as the NNTT no longer makes determinations of native title and compensation and section 196 has been repealed and replaced by section 189A.

 

 

84             *After paragraph 190(2)(c)

 

This item inserts new paragraph 190(2)(d) which provides that the Registrar must amend the Register of Native Title Claims when notified that an application has been withdrawn.

 

 

85             *Subsection 190(2)

 

This item amends subsection 190(2) so that when the Registrar is notified of the withdrawal of a claim or of a decision or determination covering a claim made by the High Court or the Federal Court, or a recognised State/Territory body, the Registrar must, as soon as practicable, either remove the entry in the Register that relates to the claim (in circumstances where the application has been withdrawn, dismissed or otherwise finalised) or amend the entry in the Register so that it only relates to the matters in relation to which the application has not been finalised.  The Note following the subsection indicates that claims leading to a determination of native title are removed from the Register only to place them on the National Native Title Register. 

 

This amendment is to ensure that the Register reflects the current state of claims and so that where the whole/part of a claim has been withdrawn or dismissed, the Register does not continue to show details of that claim. 

 

 

86             *Subsection 192(2)

 

This is a technical drafting amendment to avoid confusion between a Registrar of the Federal Court and the Native Title Registrar.

 

 

87             *Paragraph 193(1)(a)

 

This item is a consequential amendment as the NNTT no longer makes determinations of this kind.

 

 

88             *Section 196

 

This item is a consequential amendment.  It repeals section 196 which has been replaced by section 189A.

 

 

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

 

This item repeals the reference to the definition which, as it refers to paragraph 139(a) which is also repealed, is no longer necessary.

 

 

90-91        Subparagraphs 251(2)(a)(ii) and (iii)

 

These items repeal subparagraph 251(2)(a)(iii) which is replaced by item 93 below.  Item 90 makes a consequential amendment to subparagraph (iii) to remove the word ‘and’.

 

 

92             Paragraph 251(2)(a)

 

This item allows the Commonwealth Minister to be satisfied that State/Territory procedures are consistent with the NTA as in force either before or after its amendment by this Bill.  This ensures the continued recognition of the scheme set up by South Australia, which has been determined to satisfy the requirements of the original Act.

 

 

93             After paragraph 251(2)(a)

 

This item amends section 251 to add a new paragraph to replace the subparagraph repealed by item 91.  The paragraph would require the Minister to be satisfied that State or Territory  procedures for determining whether future acts affecting native title may be done are consistent with the procedures in the new Act when making a determination ‘recognising’ State or Territory bodies.

 

 

94             *Section 253 (definition of registered native title claimant )

 

This item is a consequential amendment reflecting the amendments to subsection 190(2) under which the Register of Native Title Claims shows the current state of claims including any amended claims.

 

 

95             Section 253 (definition of unopposed application)

 

This item is a consequential amendment as the NNTT no longer holds inquiries into unopposed applications.

SCHEDULE 1, Part 2 - Amendments related to criteria for registration of claims

 

Description of amendments in this Part

 

This Part contains the new registration test to be applied to claims contained in applications for determinations of native title.  The test is to be applied to all claims made on or after date of the introduction of this Bill into the Parliament (see item 3 in Part 2 of Schedule 3, dealing with transitional provisions).  The registration test is intended to ensure that only claims with some prospect of success attract the benefits given to registered native title claims under the NTA.  Status as a registered native title claimant is a precondition for participating in the right to negotiate process, is relevant to the ability of a native title claimant to prevent section 24 protection from applying to an area and is relevant to the making of agreements under section 24A. 

 

In brief, the test requires that claimants provide detailed information about their claim and for the Registrar to assess whether, prima facie, the claim can be made out.  A claim that fails the registration test may still proceed through the Federal Court to a determination, but the claimants will not have the statutory benefits attached to registered native title claimant status.  Provision is made for applications to the Federal Court for orders directing the registration of a claim.  The new section also obliges the Registrar to make registration decisions quickly when a claimant application indicates that it is made in response to a non-claimant application or to a notice under sections 24A or 29.

 

 

96             After section 190

 

This item inserts new section 190A, which sets out a new test for the registration of claims.

 

Section 190A - Registrar to consider claims

 

This section sets out the requirements of the registration test to be applied by the Registrar to applications for a determination of native title.  The Registrar will need to be satisfied that these requirements are met before details of a claim can be entered into the Register of Native Title Claims. 

 

Subsection (1) imposes an obligation on the Registrar to consider all claims that are forwarded from the Federal Court.

 

Subsection (2) requires the Native Title Registrar to take all reasonable steps, within one month starting when a claimant application is filed, to decide whether or not to register the claim contained in the application when it gives details of a non-claimant application or a notice under sections 24A or 29 in respect of the same or part of the same area.  It is important for all parties that a claim made in response to a non-claimant application, or a notice under sections 24A or 29, is assessed for registration as soon as possible.

 

Subsection (3) makes it clear that the obligation to consider a claim also arises when the Registrar is given a claim under paragraphs 189(a) or (aa), which provide that the Native Title Registrar is to be given details of claims made to the High Court and of amendments to such claims.

 

Subsection (4) makes it clear that in making a decision about the registration of a claim the Registrar must have regard to the information contained in the application and to any information provided in relation to the claim under paragraph (4)(b) by the Commonwealth or a State or Territory that is relevant to subsection (9), that is, whether the claim includes land that is or was subject to freehold title or to a residential or commercial lease.  The Registrar may also have regard to other information if he or she considers it appropriate.  Notwithstanding the above, the registration process remains an ex parte process in that it essentially involves only one party - the applicant.

Subsection (5) makes it clear that the Registrar is able to decide whether or not to register a claim even if no information under paragraph (4)(b) has been provided at the time.

 

Subsection (6) provides that a claim cannot be registered unless certain conditions have been met.  Those conditions are set out in subsections (7) to (10).

 

Subsection (7) states that the first condition is that the Registrar considers that, prima facie, each of the native title rights and interests claimed can be established.  This means that the Registrar cannot register a claim where only some of the rights and interests claimed satisfy the test.  For example, a claim made in the alternative for exclusive possession and some lesser rights would not be registered if the Registrar considered that the claim to exclusive possession did not satisfy the test even if the lesser rights claimed did satisfy it.

 

The second condition is set out in subsection (8) and deals with the information that must be contained in a claimant application including:

·      sufficient information (including a map) about the physical boundaries of the claim (both internal and external - see Figure 1, below) to allow the claim area to be identified with certainty;

·      information about the results of any title searches carried out by the claimants and reasons for not carrying out relevant title searches;

·      sufficient information to identify clearly the native title rights and interests claimed (rights may not be defined simply according to whether or not they can be established, for example, a claim to native title rights ‘other than those previously extinguished’, or a claim to those rights ‘which can be exercised consistently with another interest’, would not be sufficient);

·      information about the factual basis for the claim, such as the nature of evidence which will be used to show the association that the claimants have had with the claim area and details of any current use by them of the claim area;

·      the basis for any claim of a communal or group interest in relation to the land or waters claimed; and 

·      if the application had been made to the High Court, to be registered it must also contain the information required by sections 61 and 62.

 

Figure 1: this represents a claim with inner boundaries, with the area claimed shown in grey and non-claimed areas in white.

 

 

 

 

The third condition is set out in subsection (9) and requires that all searches that could be relevant to determining the existence of interests in the area of land or water claimed and which the Registrar considers could reasonably have been made in the particular circumstances, have been carried out.  Some factors which may affect the claimant’s ability to do such searches would be: cost; inaccessibility of records of some interests in land in some jurisdictions; the time frame in which such searches are ordinarily carried out; and the fact that the claimant application is in response to a section 24A or 29 notification or a non-claimant application (all of which require lodgment and/or registration within a specified period).  The Registrar will take such factors into account in deciding under paragraph 190A(9)(b) which searches would be reasonable in the circumstances.

 

The fourth condition is set out in subsection (10).  A claim cannot be registered if the application discloses, or the Registrar is otherwise aware, that it includes land that is or was subject to freehold, a residential lease or a commercial lease, except where the residential or commercial lease was granted under legislation for the benefit of Aboriginal and Torres Strait Islander peoples.  ‘Commercial lease’ is defined in section 246 of the NTA but for this purpose it will not include a lease which is also a pastoral or agricultural lease (as defined in sections 248 and 247 respectively).

 

Where the Registrar decides that a claim fails the registration test, under subsection (11) the Registrar must give reasons and inform the claimant and the Federal Court.

 

Where a claim is not registered, subsection (12) provides a right to seek an order from the Federal Court directing registration.  Such orders may be sought at any time.  However, when a successful application is made beyond 28 days, it may not operate to deny section 24 protection to non-claimant applications, or cause the claimant to be a registered native title claimant for the purpose of a section 24A agreement.

 

Subsection (13) provides that the Federal Court must apply the registration test under subsection (6) when exercising its powers under subsection (12).  In other words, the Federal Court must have regard to the same criteria that the Registrar must take into account.  In subsection (14) the Federal Court is expressly given jurisdiction to decide applications made under subsection (12).

 

 

97             Before paragraph 251(2)(b)

 

This item inserts new subparagraph 251(2)(ab) which adds to the criteria for the determination of a recognised State/Territory body about which the Commonwealth Minister needs to be satisfied.  In order for a body to be recognised the relevant State or Territory law will have to require that a decision be made whether a claim satisfies conditions equivalent to the section 190A test.  This will ensure that only those claims which are of that standard are entered on the Register of Native Title Claims and can therefore benefit from the right to negotiate provisions.

 

 

98             After subparagraph 251(2)(i)(i)

 

This item inserts new subparagraphs 251(2)(i)(ia), (ib) and (ic) which add to the criteria for the determination of a recognised State/Territory body.  The new criteria require the law of the State or Territory to provide for the Native Title Registrar to be informed of applications containing claims which are found to satisfy a test equivalent to section 190A, amendments of such applications, and any withdrawal or dismissal of any application.  Again, this will ensure that only those claims which meet the section 190A standard can have the benefit of the right to negotiate provisions.  This is linked to item 97.

 

SCHEDULE 1, Part 3 - Amendments related to section 21 agreements

 

Description of amendments in this Part

 

This Part contains amendments to section 21 to make it clear that where an agreement is made with registered native title holders, acts affecting native title done under the agreement will be valid in the unlikely event that there is a later determination that another group holds, or also holds, native title to the area affected by the acts.  Acts covered by a section 21 agreement will also be exempt from the right to negotiate process.

 

 

99             *After section 21 

 

Section 21A - Effect of agreement to surrender native title

 

This item inserts a new section 21A and ensures the validity of future acts covered by section 21 agreements with determined native title holders in the unlikely event that there is a later determination under which it is determined that persons other than those previously determined hold, or also hold, native title in relation to the area.

 

If the agreement constitutes a surrender of native title under paragraph 21(1)(a), any future act by any person in relation to the area, which is done before the second determination, is valid.  If the agreement authorises acts, but does not constitute surrender (see paragraph 21(1)(b)), any future act by any person that is authorised by the agreement and done before the later determination, is valid. 

 

Native title holders may be entitled to compensation where their native title rights are extinguished or affected by an act covered by this section. Compensation is payable for the effects of that act in accordance with Division 5 if the act could not have been done validly over freehold land, or if it could where a freeholder would have a compensation entitlement.  Such compensation is recoverable from whichever government was responsible for the relevant act.

 

 

100           *Before paragraph 26(3)(a)

 

This item adds new paragraph 26(3)(aa) which makes it clear that where an act is authorised by an agreement under section 21, the right to negotiate provisions do not apply.

 

 

101           *At the end of section 193

 

This item adds new subsection 193(4), which provides that the National Native Title Register is to contain details of agreements to surrender native title under section 21 of which the Registrar is notified, to ensure that important information about native title is available to the public.

 

SCHEDULE 1, Part 4 - Amendment related to agreements with registered claimants

 

Description of amendments in this Part

 

This Part contains amendments to provide that registered native title claimants and holders can enter into agreements with governments and other parties to allow future acts (even if otherwise impermissible) to be done validly over areas even where there is a registered claim for native title.  The non-extinguishment principle applies to any such acts.  Any registered claimants and determined holders must be parties to the agreement in order for an act done in accordance with the agreement to be valid.  Should there be other native title holders who have not come forward and are not parties to the agreement, compensation is payable to them for the effect on their native title.  Proposed section 24A describes the pre-conditions for (including provision for notification) and effects of making such agreements.  Proposed section 24B sets out the consequences where no native title party responds to a notice.  Compensation may be payable for acts authorised by section 24A agreements or under section 24B and section 24C sets out who is responsible for paying that compensation.

 

 

102-103    Sections 22 and 23

This item expressly precludes the application of these sections to acts covered new sections 21A, 24A and 24B.  The effect of these amendments is to remove acts covered by these new sections from the legal consequences of an act being ‘impermissible’ (22 section) or ‘permissible’ (section 23).  As with sections 24 and 25 (which are referred to in Parts 5 and 6 of Schedule 1 respectively), new sections 21A, 24A and 24B provide for the validity of acts concerned, impose conditions in relation to the payment of compensation and, in the case of section 24A and 24B, apply the non-extinguishment principle.

 

 

104           After section 24

 

This item inserts new sections 24A, 24B and 24C.

 

Section 24A - Agreement to do particular act

 

This section deals with agreements made between registered native title claimants (and any determined native title holders) and governments to allow specified future acts, other than those covered by the right to negotiate, to occur validly, even where such acts might otherwise be impermissible.  Proposed subsection (1) sets out the effect of agreements made under this section. 

 

Paragraph (a) provides that an act permitted by such an agreement will be valid unless, after the agreement was made, but before the act takes place, there has been a determination that native title is held by a person who was not a party to the agreement.  This is to ensure that any subsequently determined holders of native title, who were not parties to the agreement, do not have their rights infringed in the event that there is a delay between the time of the agreement and the time of doing the act authorised by the agreement. 

 

Paragraph (b) applies the non-extinguishment principle to the future act, so that it will not extinguish native title although it will prevail over inconsistent native title rights.  Once the interest created by the act expires, the native title may again have full effect.

 

Paragraph (c) makes it clear that the only source of compensation for parties to the agreement is the agreement itself, that is, if compensation is to be payable it will be set out in the agreement. 

 

Paragraph (d) provides that if the native title of a person who was not a party to the agreement is affected by the act, that person is entitled to compensation for the effects of that act in accordance with Division 5, if the act could not have been done validly over freehold land, or if it could, where a freeholder would have a compensation entitlement.

 

Subsection (2) makes it clear that an agreement under this section cannot cover acts which attract the right to negotiate process.

 

Subsection (3) sets out the persons who must be notified of the act or acts proposed to be covered by an agreement in order for the acts to be covered by the section.  Notice must be given to any registered native title holders for the area, any registered native title claimants for the area, the relevant representative Aboriginal/Torres Strait Islander body, any person at whose request the act is to be done (known as the ‘grantee party’) and the NNTT. 

 

Under subsection (4) notice must also be given to the public.

 

Under subsection (5), the agreement must be made with any determined native title holders for any part of the area in existence at the time the agreement is made.  Subsection (6) provides that all registered native title claimants for any part of the area have to be parties to the agreement, where those claimants were registered before the notice is given, or where their claim is made before the expiration of the notice period for the act (3 months) and is registered (including as a result of satisfying a State/Territory test equivalent to section 190A) either then or afterwards (other than where registration is the result of an appeal process commenced more than 28 days after notice of non-registration was given).

 

Subsection (7) allows a party, at whose request or on whose application the government proposes to do the act to be covered by the agreement (a ‘grantee party’), to be a party to the agreement.

 

Subsection (8) provides that the parties may ask the NNTT or a recognised State/Territory body to assist the parties to negotiate an agreement. 

 

Under subsection (9), the government party must give a copy of any agreement made under this section to the NNTT.

 

Subsection (10) makes it clear that the parties are free to agree as to the consideration that is to be given for the agreement.

 

Subsection (11) provides that the terms of the agreement are to have contractual effect between the parties and the agreement is binding on all persons with whom the registered native title claimant claims to hold the native title concerned.

 

Section 24B - Acts where no relevant native title claim

 

Subsection (1) sets out the circumstances in which section 24B applies.  Briefly, this section will apply to a future act (other than one which attracts the right to negotiate) where a government has given notice of that act and at the end of the 3 month notification period there were no relevant native title claims lodged, whether registered then or later, and no determined native title holders for the area.  Furthermore, there must be no determined native title holders for the area immediately before the act is done.  This ensures that if there is a substantial delay between the giving of notice and the doing of the act notified, any native title holders whose native title is determined in the intervening period do not have their rights adversely affected.

 

Subsection (2) sets out the consequences of this section applying - the act specified in the notice will be valid and the non-extinguishment principle will apply.  If any native title rights are affected by the act, the holders are entitled to compensation in accordance with Division 5 if the act could not have been done validly over freehold land, or if it could, where a freeholder would have a compensation entitlement. 

 

For the act notified to be valid, subsection (3) requires the government to have given notice to the relevant representative Aboriginal/Torres Strait Islander body, any person on whose behalf the act is proposed to be done and the NNTT.

 

The term ‘relevant native title claim’ is defined in subsection (4).  There is a relevant native title claim at the end of the notice period if:

·   there is already a registered native title claim for the area; or

·   a claim is made within the 3 months notice period and is registered (including as a result of satisfying a State/Territory test equivalent to section 190A) by the end of the notice period or afterwards, other than where registration is the result of an appeal process commenced more than 28 days after the notice of non-registration is given.

 

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

 

Proposed section 24C provides that where an act attracting compensation under sections 24A or 24B is attributable to the Commonwealth, the Commonwealth must pay the compensation.  If the act is attributable to a State or Territory, the compensation is payable by that State or Territory.  Subsection (2) provides that nothing in subsection (1) prevents a government liable to pay compensation under the section from entering into an agreement with a grantee party in relation to the compensation.  Even if the government makes an agreement with a grantee party, the liability of the government is not removed.  In those circumstances, the government may merely have a corresponding right of indemnity under the agreement against the grantee party for any compensation liability.

 

SCHEDULE 1, Part 5 - Amendments related to section 24 protection

 

Description of amendments in this Part

 

A major purpose of section 24 is to ensure the validity of future acts (defined by section 233) done over certain areas before a determination as to whether or not native title exists has been made, but only where certain conditions apply.  ‘Section 24 protection’ refers to the validity conferred by the section on all future acts over an area covered by a non-claimant application, when those conditions are met.  In broad terms, an area will be subject to section 24 protection where it is covered by a non-claimant application (defined in subsection 67(1)), and at the end of three months, no application has been lodged by a person claiming native title to the area.

 

For non-government entities to make non-claimant applications over an area they must have an interest in relation to the whole area.  By contrast, governments can make non-claimant applications over any area within their jurisdiction (subsection 61(1)).  These differences remain as the amendments do not depart to any substantial extent from the position under the original Act.  However, this Part makes a number of essentially technical amendments to section 24 to clarify its operation.  One change is that section 24 protection will be available for an area where there has been a determination that no native title exists.

 

 

105           *Subsection 24(1)

 

This item amends subsection 24(1) so that if an area is subject to section 24 protection at a particular time, the consequences are those set out in the new paragraph (c), and the existing paragraphs (d) and (e).

 

New paragraph (c) makes it clear that whenever section 24 protection applies, any future act by any person in relation to the area that is done at the particular time is valid and remains valid.  The existing paragraphs (d) and (e) (which deal with compensation for extinguishment or impairment of native title by any such act) remain.

 

 

106           *At the end of paragraph 24(1)(d)

 

This item is self explanatory.

 

 

107           At the end of section 24

 

This item inserts new subsections (3) to (6).

 

Subsection 24(3) - When section 24 protection arises - government applications

 

New subsection (3) specifies when section 24 protection applies to areas covered by government non-claimant applications, or corresponding applications to a recognised State/Territory body.  Government non-claimant applications are those made by or on behalf of a Minister of any government, the Crown in any capacity or a statutory authority as defined by section 253 (paragraph 24(3)(a)).

 

The test for whether an act is valid is whether section 24 protection applies to the area at the time the act is done.  For an area to be subject to section 24 protection at a particular time, all the conditions in subsection (3) must be satisfied at that time:

·   paragraph (a) requires the non-claimant application must have been made before that time;

·   paragraph (b) requires that the area must be the whole of the area covered by the application and the application must not have been amended as to area.  This prevents a government non-claimant application attracting section 24 protection simply by being amended to exclude an area covered by a relevant native title claim and resembles the position under the original Act;

·   paragraph (c) requires the 3 month notice period to have ended;

·   paragraph (d) provides that section 24 protection can only apply at a particular time, if, at the end of the notice period, there are no relevant native title claims covering the area or a part of the area;

·   paragraph (e) requires that the application has not been finalised.  (An application is finalised if it has been withdrawn or dismissed, but is not finalised if it has been adjourned.  Therefore, once section 24 protection has arisen, a non-claimant application may be adjourned and the area covered by the application continues to attract section 24 protection);

·   paragraph (f) requires that at the particular time there must be no entry on the National Native Title Register, relating to an approved determination of native title, that specifies that native title exists in relation to the area or a part of the area.

 

Subsection 24(4) - When section 24 protection arises - non-government applications

 

Subsection 24(4) sets out the conditions for section 24 protection to apply to an area covered by a non-government non-claimant application or a corresponding application to a recognised State/Territory body.  These are those non-claimant applications which are made by parties other than a Minister of any government, the Crown in any capacity or a statutory authority as defined by section 253 (paragraph 24(4)(b)).

 

For an area to be subject to section 24 protection at a particular time, all the conditions in subsection (4) must be satisfied at that time:

·   paragraph (a) requires the non-claimant application to have been made before that time;

·   paragraph (b) requires the application to be made by parties other than a Minister, the Crown in any capacity or a statutory authority;

·   paragraph (c) provides that the area over which section 24 protection applies can be either the whole of the area covered by the application or part of it.  The result is that where a non-government non-claimant application has been made and there is a relevant native title claim over part of the area at the end of the 3 month notice period, section 24 protection can still apply to the remainder of the area.  This differs from the position with government non-claimant applications and resembles the position under the original Act;

·   paragraph (d) states that section 24 protection can only arise once the 3 month notice period has ended;

·   paragraph (e) provides that either:

-    at the end of the notice period there must be no relevant native title claim covering the area; or

-    after the end of the notice period but, before the particular time, all entries relating to such relevant native title claims are removed from the Register of Native Title Claims or cease to cover the area.

The condition in paragraph (e) is another difference between government and non-government applications in relation to section 24 protection.  For non-government non-claimant applications, section 24 protection can still apply where  ‘relevant native title claims’ are removed from the Register (for example, because of dismissal or withdrawal) or the entries cease to cover the areas concerned (for example, because of amendment of claims to reduce their coverage).  Where a relevant native title claim is removed from the Register, section 24 protection can arise over the area claimed from the time of removal;

·      paragraph (f) requires that an application has not been finalised; and

·      paragraph (g) requires that at the particular time there must be no entry on the National Native Title Register, relating to an approved determination of native title that specifies that native title exists in relation to the area.

 

Subsection 24(5) - When section 24 protection arises - entry in National Native Title Register

 

New subsection 24(5) provides that section 24 protection also applies from the time an area is covered by an entry on the National Native Title Register relating to an approved determination that no native title exists (see section 13 and paragraphs193 (1)(a) and (b)).

 

Subsection 24(6) - Relevant native title claim

 

New subsection 24(6) specifies when there is a ‘relevant native title claim’ at the end of the period referred to in paragraphs 24(3)(d) or (4)(e).  The critical time for determining section 24 protection is at the end of the notice period.  Section 24 protection can apply if, at that time, there are no relevant native title claims covering the area.

 

There is a relevant native title claim covering an area at the end of the period referred to in paragraphs 24(3)(d) or (4)(e) if:

·   there is, at that time, a claim on the Register of Native Title Claims covering the area (paragraph 24(6)(a)); or

·   there is, after that time, a claim on the Register of Native Title Claims covering the area where the claim was made before that time and:

-   registered following initial consideration of the claim for registration by the Native Title Registrar under subsection 190A(6) (see subparagraph (b)(i)) or is found to satisfy an equivalent test to that in section 190A under a State or Territory law; or

-   registered following a direction that the claim be accepted for registration as a result of an application under subsection 190A(12) which must be made within 28 days of notification of non-acceptance for registration (see subparagraph (b)(ii)); or

-   registered following satisfaction of an equivalent test to that in section 190A under a State or Territory law having similar effect to subsection 190A(12) where the application for review was made within 28 days (see the reference to State/Territory law in subparagraph (b)(iii)).

 

 

108           *Paragraph 66(3)(a)

 

This item clarifies the statement to be included in the notice given under section 66 that an area covered by the application may be subject to section 24 protection unless there is a relevant native title claim.  This alerts potential claimants that they may need to make a native title claim if they wish to avoid the operation of section 24.

 

 

109           *Subsection 66(4)

 

This item repeals the subsection as its content has now been included in paragraph 66(3)(a).

 

 

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

 

This item inserts a reference to the term ‘section 24 protection’ in the table listing definitions.

 

 

111           *Section 253

 

This item is a consequential amendment. It inserts a definition of ‘section 24 protection’ used in the Act.

SCHEDULE 1, Part 6 - Amendments related to the renewal of certain leases and rights

 

Description of amendments in this Part

 

This Part contains proposed amendments to section 25 which will ensure that certain leases and other interests that existed when the NTA commenced on 1 January 1994 can be validly renewed, regranted or extended even if native title has survived and would be affected, provided the conditions in the amended section are met.  These changes will not impact on the right to negotiate scheme in Subdivision B of Division 2 of Part 2 of the NTA.

 

If native title has survived and is affected as a result of the renewal, regrant or extension there is provision for compensation.  The non-extinguishment principle also applies.

 

Leases which can be validly renewed, regranted and extended (including on subsequent occasions) are mining, commercial, agricultural, residential and pastoral leases which were originally granted before 1 January 1994 (‘permissible lease renewals’).  The renewal, regrant or extension must not create a new or greater proprietory interest, and any existing reservations for the benefit of indigenous people must be retained.  Apart from the inclusion of mining leases, this reflects current subsection 235(7).

 

Greater flexibility is provided in relation to renewals and changes to pastoral leases, and the range of activities which can take place on pastoral lease land.  In addition to the renewals just described, renewals, regrants and extensions of pastoral leases created before 1 January 1994 (‘permissible pastoral lease renewals’) or those themselves the product of a permissible pastoral lease renewal, are also valid, even if a new or greater proprietary interest (including a perpetual lease) is created and even if the renewal, regrant or extension permits the land to be used for non-pastoral purposes.  Variations to pastoral leases which permit any purpose, other than mining, are also valid.  The conditions in each case are that any reservations in favor of indigenous people are retained, and that the renewed, regranted, extended or varied lease is an ‘eligible pastoral lease’.  This expression is defined in new subsection 25(3) and is essentially a lease which permits the lessee to use the land solely or primarily for pastoral purposes (see paragraph 248(a) of the Act).

 

The new section will also allow for ‘permissible pastoral lease related acts’.  These are acts, such as the grant of a licence, which allow for the use of pastoral lease land for any purpose (other than mining) so long as the land does not cease to be used solely or primarily for pastoral purposes.

 

112           Subsection 25(1)

 

This item repeals existing subsection 25(1) and replaces it with new subsections 25(1) to (1F).  This amendment is linked to item 114, which repeals subsection 235(7), the contents of which have been replicated and expanded in new section 25.

 

Subsection (1) sets out the future acts to which amended section 25 will apply.  These are:

·      renewals of interests where the right to renew was created before 1 January 1994 (paragraph (1)(a)).  These matters are currently covered in existing subsection 25(1);

·   permissible lease renewals (defined in subsection (1B));

·   permissible pastoral lease renewals (defined in subsection (1C) combined with (1D));

·   permissible pastoral lease variations (defined in subsection (1E)); and

·   permissible pastoral lease related acts (defined in subsection (1F)).

 

Subsection (1A) sets out the consequences of section 25 applying to a future act - the act is valid, the non-extinguishment principle applies to the act, and if the act affects native title to any extent, the native title holders will be entitled to compensation where the act could not be done validly over freehold, or if it could, a freeholder would be entitled to compensation.  Subsection 25(2) provides who pays such compensation.

 

Subsection (1B) defines the term ‘permissible lease renewal’.  A permissible lease renewal is the renewal, re-grant or extension of the term of a mining, commercial, agricultural, pastoral or residential lease (defined in sections 245 to 249).  The preconditions for subsection (1B) are the following:

·   that the renewal, re-grant or extension only occurs when the lease expires or is terminated;

·   that it does not create a greater proprietary interest, or create a proprietary interest where previously the lease gave only a non-proprietary interest;

·   that any reservations in favour of indigenous people are preserved;

·   that the lease was originally granted before 1 January 1994 or the creation of the lease was itself a permissible lease renewal - this covers, for example, mining leases issued before 1 January 1994 and any that have since been renewed or re-granted where the other pre-conditions are satisfied.

 

Although pastoral leases can be renewed under subsection (1B), subsections (1C) to (1E) provide additional flexibility in relation to renewals and variations.

 

Subsection (1C) defines the term ‘permissible pastoral lease renewal’.  This term refers to the renewal, regrant, or extension of the term of a pastoral lease  (defined in section 248) where the following conditions are met:

·   the renewal, re-grant or extension only occurs when the lease expires or is terminated;

·   any reservations in favour of indigenous people are preserved;

·      the renewed, regranted or extended lease is an ‘eligible pastoral lease’.  That is, it is a lease which permits the land to be used solely or primarily for pastoral activities; and

·   the lease was created before 1 January 1994 or its creation was itself a permissble lease renewal or a permissible pastoral lease renewal under this section.

 

Subsection (1D) makes it clear that an act may be a ‘permissible pastoral lease renewal’ even if the act:

·  permits the lessee to use the land for non-pastoral purposes;

·  creates a greater proprietary interest, or creates a proprietary interest where previously the lease gave only a non-proprietary interest; or

·  changes the term of the lease into a perpetual lease,

provided that the renewed, regranted or extended lease is an ‘eligible pastoral lease’, that is, a lease that permits the land to be used solely or primarily for pastoral purposes.

 

Subsection (1E) defines the term ‘permissible pastoral lease variation’ to mean a variation which permits the lessee to use the land for other purposes, although the varied lease must be an ‘eligible pastoral lease’, that is, a lease which permits the use of land solely or primarily for pastoral purposes.  Any reservations in favor of indigenous peoples must be preserved.  It also excludes mining from the relevant purposes.  For example, a lease may prevent the lessee from sowing certain fodder crops.  This subsection will allow the lease to be varied to permit the sowing of such crops.  As another example, a lease might be varied to allow the lessee to conduct feedlot operations, or to engage in farm-related tourism activities (such as ‘farm-stay’ holidays).

 

Subsection (1F) defines the term ‘permissible pastoral lease related act’ to mean an act such as a licence or permit which allows the lessee to use the land for any purpose, other than mining, although this must not cause the land to cease being used, or being capable of being used, solely or primarily for pastoral purposes.  The example mentioned in relation to subsection (1E) might also be covered under this provision, where the act was authorised under a license or permit rather than by a variation of the lease.

 

The note to this item changes the heading to section 25 to read ‘Renewal of certain leases and rights’.

 

 

113           Section 25

 

This item adds a definition of an ‘eligible pastoral lease’ as used in this section to mean one that permits the lessee to use the land or waters covered by the lease solely or primarily for maintaining or breeding sheep, cattle or other animals - or any other pastoral purpose coming within the terms of paragraph 248(a), whether or not it also comes within the terms of paragraph 248(b).  A lease which contains a statement that it is for pastoral purposes, but which does not permit the lessee to use the area solely or primarily for pastoral purposes, is not an ‘eligible pastoral lease’.  Accordingly, it is not possible to gain the benefit of the provision using this expression simply by including a statement in a lease that is a pastoral lease, and then permitting the lessee to use the land for essentially non-pastoral purposes.

 

 

114           Subsection 235(7)

 

This item repeals this subsection which is substantially replaced by subsection 25(1B).

SCHEDULE 1,  Part 7 - Miscellaneous amendments

 

Description of amendments in this Part

 

This Part makes a number of technical amendments to the NTA in order to clarify certain aspects of its operation and to correct typographical errors.

 

 

115           *Section 12 

 

This item repeals section 12.  This is in response to the High Court’s decision in Western Australia v Commonwealth (1995) 183 CLR 373 that the section is invalid.

 

 

116           *Paragraph 23(4)(b)

 

This is a technical drafting correction.

 

 

117           *Subsection 23(4)

 

This is a technical drafting correction.

 

 

118           Paragraph 23(7)(e)

 

This item repeals this paragraph.  Subsection (7) sets out one way in which a person, who is required to notify native title holders of an act so it can proceed, can carry out that notification validly where there has been no approved determination of native title.  The effect of this item is that where the person chooses to notify native title holders in this way, he or she is no longer required to erect notices on land affected by the proposed act.  This will simplify notification procedures.

 

 

119           *After subparagraph 28(1)(a)

 

This item inserts new paragraph 28(1)(aa) which provides that a permissible future act to which the right to negotiate provisions apply will be valid where, after the end of the notification 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.  This amendment ensures that where a native title party’s claim is withdrawn or dismissed, the proposed act may then be done with certainty without further recourse to the right to negotiate.  

 

 

120           *At the end of subsection 29(1)

 

This item requires the Government party, when giving notice under section 29 of its intention to do a future act, to specify in the notice the day on which notice is taken to have been given.  This day cannot be earlier than 14 days after the last day on which notice is dispatched (defined in new section 252A) under subsection (2).  This means persons who receive such a notice can ascertain the date before which they have to respond. 

 

                

121           *Paragraph 29(2)(e)

 

This is a technical amendment to provide that a notice is given to an arbitral body by sending it to the registrar or other proper officer of that body.

 

 

122           At the end of section 30

 

This item adds new paragraph 30(1)(c) and new subsection 30(2) which are technical amendments.

 

Paragraph 30(1)(c) provides that where a registered native title claimant who is a ‘native title party’ obtains an approved determination that native title exists, the determined native title holder becomes a ‘native title party’ and takes the place of the registered native title claimant.

 

Subsection 30(2) provides that a person ceases to be a native title party if the person ceases to be a registered native title claimant.  When a claimant is removed from the Register (eg. when the claim is  dismissed or withdrawn) the claimant no longer enjoys access to the right to negotiate provisions of the Act.  This does not prevent changes in the identity of a registered native title claimant - for example if a registered claimant dies and another person becomes the registered claimant for that claim, the latter party would continue to the a ‘native title party’.

 

 

123-124    *Section 55

 

These items are technical drafting corrections.

 

 

125           *Paragraph 58(d) 

 

This item is a technical drafting correction.

 

 

126           *Section 59

 

Section 59 provides for the making of regulations relating to the kinds of bodies corporate which may be registered native title bodies corporate.  This item ensures that the regulation making power is sufficiently broad. 

 

 

127           Subsection 78(1)

 

This item repeals existing subsection 78(1).  The replacement subsection ensures that the Native Title Registrar has power to provide assistance to people at any stage of a proceeding in relation to an application.

 

128           After section 98

 

Section 98A Power of Registrar - other public records and information

 

This item adds a new section 98A which allows the Registrar to keep appropriate records or information (in addition to the National Native Title Register and the Register of Native Title Claims) and to make them available to the public.  This will allow the Registrar to keep records, for example, of claims which have not passed the registration test or have been dismissed or withdrawn.  It acknowledges the public interest in having additional information available to that entered on the two statutory Registers.

 

Subsections (2) and (3) ensure that privacy considerations are respected and subsection (4) ensures that the cultural and customary concerns of indigenous peoples are considered in determining whether the release of information is in the public interest.

 

 

129           *After section 106

 

Section 106A - Appointment of Acting Registrar

 

This item inserts a new section 106A which allows the President to appoint an acting Registrar. 

 

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

 

This item adds a further class of persons who may be appointed as a presidential member of the NNTT - namely, persons who have been admitted to legal practice for at least five years.

 

 

131           *Subsections 122(1) and (3) 

 

This item contains technical drafting amendments to correct a cross reference.

 

 

132           *After subsection 183(4)

 

Subsection 183(4) - Assistance not to be provided to applicants

 

This item inserts new subsection (4A) which provides that the Attorney-General cannot authorise the provision of assistance, for the purposes of an inquiry, mediation or proceeding, to a person who is claiming to hold native title. 

 

This amendment reflects the Government’s intention that representative Aboriginal/Torres Strait Islander bodies should be the sole source of funding for claims in their areas.  Where an area is not covered by such a body, ATSIC will continue to make interim arrangements for the funding of native title claimants.

 

133           *Subsection 183(5)

 

This item enables the Attorney-General to delegate all or any of his powers under subsection (2) to an officer occupying a specified office in the Attorney-General’s Department.  This will bring the delegation of the decision making power into line with other financial assistance schemes for which the Attorney-General is responsible.

 

 

134-136    *Section 209 

 

These items amend section 209 by providing that the reporting function is conferred on the Human Rights and Equal Opportunity Commission rather than directly on the Aboriginal and Torres Strait Islander Social Justice Commissioner. 

New subsection 209(3), however, makes it clear that the Aboriginal and Torres Strait Islander Social Justice Commissioner will continue to make the reports on behalf of the Commission.  This more closely reflects the arrangements applying in relation to the other reporting functions of the Aboriginal and Torres Strait Islander Social Justice Commissioner.

 

New subsection 209(4) imposes on the Commonwealth Minister who receives a report under either subsection 209(1) or (2) an obligation to table that report before each House of Parliament within 15 sitting days after the report is received by the Minister.

 

 

137           *After paragraph 215(2)(a)

 

This item inserts new paragraph (2)(aa) which extends the regulation making power in relation to prescribed fees.  It authorises regulations prescribing the fees to be paid to obtain access to, or information from, records or information kept by the Native Title Registrar under new section 98A, and regulations in relation to the waiver or refund of such fees.

 

 

138           *Subparagraph 215(2)(b)(i)

 

This item is a technical amendment to avoid confusion between a Registrar of the Federal Court and the Native Title Registrar.

 

 

139           After subparagraph 215(2)(b)(i)

 

This item inserts subparagraph 215(2)(b)(ia) which provides that the regulations may make provision for the waiver of application fees.

 

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

This item amends the list of definitions to include the term ‘dispatched’.

 

 

141           Section 225

 

This item alters the definition of ‘determination of native title’ and makes it clear that it is only where a determination is that the native title does not confer exclusive rights that the maker of the determination should determine those native title rights that he/she considers to be of importance.

 

 

142-143    *Subsections 226(2) and (3) 

 

These items insert technical drafting corrections.

 

 

144           Paragraph 235(8)(a)

 

                 This item provides that where a future act covers both an onshore and an offshore area, the fact that the act applies onshore (and may otherwise be an impermissible future act and invalid) does not prevent the act being permissible and therefore valid to the extent it applies offshore.

 

 

145           After section 252

 

Section 252A Meaning of dispatched

 

This item inserts new section 252A which explains when a notice under the Act is taken to be dispatched (see amended subsection 29(1), proposed section 24A(3) and subsection 66(2A)) to a natural person, a body corporate and to the NNTT.

 

 

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

 

This item makes an amendment to paragraph (c) of the definition to make it clear that part of a law may be prescribed for the purposes of prescribing land or waters held by or for the benefit of Aboriginal peoples or Torres Strait Islanders.

 

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

 

This item is a consequential amendment reflecting the item below.

 

 

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

 

This item amends the definition of ‘waters’ to confirm that the area between the high water and low water mark is ‘waters’ and not ‘land’.  It does not alter the status of the area as an ‘onshore place’ nor does it prevent the right to negotiate from applying to that area. 

 

SCHEDULE 2 - AMENDMENT OF OTHER ACTS

 

This Schedule sets out the amendments made to Acts other than the Native Title Act 1993.

 

Schedule 2, Part 1 - Federal Court of Australia Act 1976

 

The amendments to the Federal Court of Australia Act 1976 outlined below are also contained in the Workplace Relations and Other Legislation Amendment Bill 1996.  The amendments below will only take effect if the Native Title Amendment Act 1996 commences before the Workplace Relations and Other Legislation Amendment Bill 1996.

 

 

1      After Section 18

 

        Division 2 - Judicial Registrars

 

This item inserts new Division 2 which provides for the appointment, terms and conditions of judicial registrars.

 

Section 18AA - Judicial Registrars

 

Section 18AA provides for the Governor-General to appoint judicial registrars of the Federal Court.  Judicial registrars may be appointed on a full time or part time basis.

 

Section 18AB - Powers of Judicial Registrars

 

Subsection 18AB(1) provides for the judges to make Rules of Court delegating to judicial registrars all or any of the Court’s powers to:

·   determine parties to a proceeding under the NTA; and

·   make an order in relation to unopposed (section 86C) or agreed (section 87) compensation or native title applications.

 

Subsection 18AB(2) provides that in relation to a matter under subsection 18AB(1), a judicial registrar may also exercise any power that may be delegated to a registrar under section 35A of the Federal Court Act.

 

Subsections 18AB (3) - (5) inclusive provide that a power delegated to a judicial registrar, when exercised, will be taken to have been exercised by the Court or a judge and the delegation of such a power does not prevent the exercise of the power by the Court or a judge.

 

Subsection 18AB(6) provides that as well as delegated powers judicial registrars may have powers conferred on them by the Federal Court of Australia Act 1976, regulations or Rules of Court.

 

Section 18AC - Review of decisions of Judicial Registrars

 

Section 18AC provides for a party to a proceeding to apply to the Court for a review of the exercise by a judicial registrar of any delegated power (18AC(1)).  In reviewing a matter the Court may make any order it considers appropriate (18AC(2)) and may refer the matter to the Full Court (18AC(3)).

 

Section 18AD - Exercise by Court of delegated powers

 

Subsection 18AD(1) provides for a judicial registrar to refer a matter, which he or she is hearing, to the Court if the judicial registrar considers that the matter is not appropriate for determination by a judicial registrar.

 

Subsections 18AD(2) and (3) provide for a person who is party to a proceeding to apply to a judge to have a power, that is about to be exercised by a judicial registrar, exercised by a judge instead.  Where a party has applied for the power to be exercised by a judge, subsection 18AD(4) provides that the judicial registrar cannot exercise that power until the application has been determined.

 

Section 18AE - Independence of Judicial Registrars

 

Section 18AE ensures that judicial registrars are not subject to direction or control where exercising any powers that have been delegated to them. 

 

Section 18AF - Qualification for appointment etc.

 

Section 18AF provides that a person may not be appointed as a judicial registrar unless he or she has been a legal practitioner for at least five years.  This provision ensures that only experienced legal practitioners will exercise the power of the Court.

 

Section 18AG - Term of office

 

Section 18AG provides that the term of appointment of a judicial registrar is to be specified in the instrument of appointment.  The term is not to exceed 5 years.  Judicial registrars are eligible for reappointment.

 

Section 18AH - Remuneration and allowances

 

Subsections 18AH(1) and (3) provide for the remuneration of judicial registrars to be determined by the Remuneration Tribunal.  Subsection 18AH(2) provides that a judicial registrar is to be paid such allowances as are prescribed.  Subsection 18AH(4) provides that remuneration and allowances are to be paid out of money appropriated to the Court. 

 

Section 18AI - Leave of absence

 

Recreation leave entitlements of judicial registrars will be determined by the Remuneration Tribunal.  These entitlements are subject to any recreation leave entitlements that may be preserved by section 87E of the Public Service Act 1922.  Other leave entitlements will be granted on such terms and conditions as the Chief Judge, with the Attorney-General’s approval, determines.

 

Section 18AJ - Resignation

 

Section 18AJ provides that a judicial registrar may resign by delivering a signed resignation to the Governor-General.

 

Section 18AK - Termination of appointment

 

Section 18AK provides that the Governor-General may terminate the appointment of a judicial registrar for misbehaviour or physical or mental incapacity (subsection 18AK(1)).  An appointment must be terminated if the judicial registrar becomes bankrupt or insolvent (subsection 18AK(2)).  The Governor-General may, with the consent of the judicial registrar, retire the judicial registrar from office on the ground of incapacity (subsection 18AK(3)).

 

Section 18AL - Oath  or affirmation of office

 

Section 18AL provides that a judicial registrar must take an oath or affirmation of office before proceeding to discharge the duties of his or her office.  The form of the oath or affirmation is set out in the section. 

 

Section 18AM - Other terms and conditions of appointment

 

Section 18AM provides for the Governor-General to determine any terms and conditions of office that are not provided for in the Act. 

 

 

2         Subsections 59(3) and (4)

 

This item consequentially amends subsections 59(3) and (4) of the Federal Court Act by inserting a reference to Rules made under the Act, rather than Rules made under section 59.  This ensures that Rules made under sections 18AB and 18AC in relation to the exercise of power by judicial registrars are covered by subsections 59(3) and (4).

 

 

SCHEDULE 2, Part 2 - Contingent amendments of the Federal Court of Australia Act 1976 concerning Judicial Registrars

 

3        Consequences of certain prior amendments of the Federal Court of Australia Act 1976

 

This item provides that if the Federal Court Act has been amended to provide for the office of judicial registrar before this Schedule commences then items 1 and 2 of Part 1 are omitted from the Schedule as they will be unnecessary and new items 1 and 2 are substituted.

 

1        After subsection 18AB(2)

 

This item inserts new subsection 18AB(2A).  If the Federal Court Act is already amended to provide for the office of judicial registrar, this item will amend the Act to allow for judicial registrars to exercise powers in native title matters.  Subsection 18AB(2A) provides for the judges to make Rules of Court delegating to judicial registrars all or any of the Court’s powers to:

•   determine parties to a proceeding under the Native Title Act; and

•   make an order in relation to unopposed (section 86C) or agreed (section 87) compensation or native title applications.

 

 

2      Subsections 18AB(2), (5) and (6)

 

This item is a consequential amendment.
SCHEDULE 2, Part 3 - Human Rights and Equal Opportunity Commission Act 1986

 

 

4      At the end of subsection 46C(1)

 

This item amends subsection 46C(1) to add a note alerting the reader to the fact that functions are conferred on the Human Rights and Equal Opportunity Commission by section 209 of the Native Title Act 1993.

 

SCHEDULE 3 – TRANSITIONAL

 

Description of this schedule

 

This Schedule sets out what happens to applications which have been made to the Native Title Registrar before the commencement of the amendments contained in this Bill.

 

In general, applications which are before the Native Title Registrar, the Tribunal or the Federal Court at that time will be taken to have been made to the Federal Court under the new system, and will be taken to have reached an equivalent stage to that reached under the old system.  Any notification or mediation which has been or is being carried out in relation to the application will be taken into account.

 

Where the Tribunal has made an approved determination that native title does not exist, that determination will be removed from the National Native Title Register.  However, a fresh application for a native title determination may be made to the Federal Court under the new system, and ‘section 24 protection’ will apply to the area covered by the determination unless and until there is an approved determination that native title exists over the area.

 

The Schedule also provides for the effect of the amendments on the registration of claims which have not yet been accepted by the Registrar under the old system.  In response to Federal Court judgments which expressed an opinion as to the effect of the provisions of the old Act relating to the registration of claims, the Tribunal has adopted procedures under which a claim is entered on the Register of Native Title Claims when the claimant application is given to the Native Title Registrar (rather than only being entered on the Register on acceptance of the application by the Registrar).  Accordingly, at the time of the commencement of the amendments in this Bill, there will be claims entered on the Register which have not yet been accepted by the Native Title Registrar.  Such claims must now satisfy a threshold test to remain registered.

 

The schedule also provides for the application of the new registration test in section 190A to claims which were lodged on or after the date on which the Bill was introduced into the Parliament, in order to determine whether such claims should remain on the Register of Native Title Claims.

 

 

SCHEDULE 3, Part 1 –  Contents of Schedule

 

1               Contents of this Schedule

 

This item describes the contents of Schedule 3.

 

 

SCHEDULE 3, Part 2 – Transitional provisions

 

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

 

This item sets out the various successive stages that may have been reached by an application (for a determination of native title and/or compensation or that native title does not exist) as at the date of commencement of the amending Act which were lodged under the old system before 27 June 1996 and provides for what happens in relation to that application upon that commencement.  Definitions of some of the phrases used in the Table are contained in Part 3 of the Schedule.

 

Case 1 applies to applications which have been given to the Native Title Registrar and registered but where a decision has not yet been made as to whether the application should be accepted.  That is, either the Native Title Registrar has not yet decided whether to accept the application or to refer it to a presidential member, or the Native Title Registrar has referred the application to a presidential member who has not yet given a direction to the Registrar to accept or not to accept the application.  The following consequences apply to applications covered by case 1.

 

·   These applications continue as if they had been made to the Federal Court under the new system.

·   Where the application is a claimant application, the Native Title Registrar must apply the acceptance test contained in subsection 63(1) of the old Act to determine whether the claim should remain on the Register of Native Title Claims.  If that test is satisfied the claim will remain on the Register.

·   If the Native Title Registrar considers that the application is frivolous or vexatious or that prima facie the claim cannot be made out, then the claim will be removed from the Register.  The claimant will be given written notice and can seek review in the Federal Court.

·   In this case the Court is to apply the acceptance test under the old law and not the new criteria under section 190A.

 

Case 2 applies to applications where a presidential member has directed the Native Title Registrar not to accept the application, the applicant has appealed from this decision under subsection 169(2) of the old Act, and the appeal has not been finalised.  Case 2 also applies to applications where a presidential member has directed the Native Title Registrar not to accept the application and the period for appeal from the non-acceptance decision has not yet finished.  The following consequences apply to applications covered by case 2.

    

·   These applications continue as if they had been made to the Federal Court under the new system.

·   An appeal against the non-acceptance of the application continues as if the old Act were still applicable.  However, the outcome of the appeal will have consequences only for the registration of claims; it will not prevent the application from proceeding in the Federal Court. 

·   If the appeal is successful (that is, if the courts ultimately decide that the application should have been accepted) any claim which had been entered on the Register of Native Title Claims will remain on the Register. 

·   If the appeal is unsuccessful (that is, if the courts ultimately uphold the decision not to accept the application) any claim which had been entered on the Register of Native Title Claims will be removed.  There is no appeal from the removal of a claim from the Register in such circumstances and no order can be sought under section 190A(12).

 

Case 3 applies to applications which have been by whatever means accepted by the Native Title Registrar, where the Native Title Registrar has not yet commenced giving notice of the application to interested persons under paragraph 66(1)(a) of the old Act.  The following consequences apply to applications covered by case 3.

 

·       These applications continue as if they had been made to the Federal Court under the new system.

·       The Native Title Registrar must give notice of the application to all interested persons under subsection 66(1) of the new Act. 

·       Such claims are taken to have been accepted for registration under the new Act, and remain on the Register of Native Title Claims.

 

Case 4 applies to accepted applications where the Native Title Registrar has commenced giving notice of the application to interested persons under paragraph 66(1)(a) of the old Act, but where the notification process has not been completed or the 2 month notice period has not finished.  The following consequences apply to applications covered by case 4.

 

·       These applications continue as if they had been made to the Federal Court under the new system.

·       Any notification of such an application which has been given by the Native Title Registrar under section 66 of the old Act is taken to have been given under section 66 of the new Act.  That is, the Native Title Registrar does not have to repeat any notification which has been carried out before the commencement of the amendments in this Bill, although she must complete the notification process.

·       Any person who has become a party to the application before the commencement of the amendments will continue to be a party to the application.  Any person who is entitled to become a party to the application and subsequently notifies the Native Title Registrar before the end of the 2 month notice period will become a party to the application.

·       Such claims are taken to have been accepted for registration under the new Act, and remain on the Register of Native Title Claims.

 

Case 5 applies to accepted applications which are ‘unopposed’ at the end of the 2 month notice period (that is, where the only party at the end of that period is the applicant, where all the parties do not oppose the application, or where the application is a non-claimant application and there is no claim made over the relevant area within the 2 month notice period and subsequently accepted: see section 70 of the old Act), but which have not yet been finalised.  The following consequences apply to applications covered by case 5.

 

·       These applications continue as if they had been made to the Federal Court under the new system.

·       Any notification of such an application which has been given by the Native Title Registrar under section 66 of the old Act is taken to have been given under section 66 of the new Act.  Accordingly, the Native Title Registrar does not need to give any further notification of the application.

·       Any person who is a party to the application continues to be a party.

·       Where the application is an unopposed non-claimant application, section 24 protection under the new Act applies in relation to the area covered by that application until either there is an approved determination that native title exists or the non-claimant application is withdrawn or dismissed.  This means that future acts can validly be done over the area, subject to possible compensation to any native title holders whose native title is affected by any such future act. 

·       Such claims are taken to have been accepted for registration under the new Act, and remain on the Register of Native Title Claims.

 

Case 5 also covers applications where the NNTT has made a determination of native title but an application has been made to the Federal Court for review of the determination, or the period for making such a review application has not finished.  The decision in Brandy throws considerable doubt on the effectiveness of the registration of these determinations.  Any entry relating to these determinations must be removed from the National Native Title Register.  Further, such determinations are taken not to have been ‘approved determinations of native title’, and are taken never to have been registered under the relevant provisions of the old Act.

 

Case 6 applies to accepted applications which are not unopposed at the end of the 2 month notice period, and which have not yet been finalised.  This category would cover applications in respect of which mediation has commenced, as well as contested applications which have been referred to the Federal Court under section 74 of the old Act.  The following consequences apply to applications covered by case 6.

    

·   These applications continue as if they had been made to the Federal Court under the new system. 

·   Any notification of such an application which has been given by the Native Title Registrar under section 66 of the old Act is taken to have been given under section 66 of the new Act.  Accordingly, the Native Title Registrar does not need to give any further notification of the application. 

·   Any person who is a party to the application continues to be a party. 

·   If mediation has commenced and is still in progress, then the Federal Court is taken to have referred the proceeding to the NNTT for mediation under section 86A of the new Act.  The mediation conference can continue, subject to the provisions of the new Act. 

·   If the mediation has concluded without producing agreement, and the application has been referred to the Federal Court, the Federal Court is taken to have made an order that mediation cease (under section 86A of the new Act).  The Federal Court would then hear the application, although it has power (under subsection 86A(8) of the new Act) to refer the proceeding back to the NNTT for further mediation. 

·   Such claims are taken to have been accepted for registration under the new Act, and remain on the Register of Native Title Claims.

 

Case 7  applies to applications which have resulted in determinations made by the Tribunal that native title does not exist in relation to an area of land or waters, where those determinations have been registered in the Federal Court under the old Act and are not subject to review proceedings.  The following consequences apply to applications covered by case 7.

 

·       Since the decision in Brandy throws considerable doubt on the effectiveness of the registration of these determinations, any entry relating to these determinations must be removed from the National Native Title Register.  Further, such determinations are taken not to have been ‘approved determinations of native title’, and are taken never to have been registered under the relevant provisions of the old Act. 

·       However, section 24 protection applies to the area covered by the determination unless and until there is an approved determination that native title exists in relation to the relevant area.  This means that future acts can validly be done over the area, subject to possible compensation to any native title holders whose native title is affected by any such future act. 

·       Further, a fresh application can be made to the Federal Court under the new Act for a determination of native title in relation to the area.

        

 

3               Table of situations and consequences - application on or after 27 June 1996

 

This item sets out the various successive stages that may have been reached by an application (for a determination of native title and/or compensation or that native title does not exist) as at the date of commencement of the amending Act which were lodged under the old system on or after 27 June 1996, and provides for what happens in relation to that application upon that commencement.

 

Applications covered by this item (which have been given to the Native Title Registrar on or after the date on which these amendments were introduced into the Parliament) will be subject to the registration test set out in new section 190A.

 

Aside from the consequences as to registration of claims, the consequences of these amendments for applications covered by this item are the same as those set out above, in relation to applications made before the date of introduction (see the explanation in relation to item 2 above).  The differences concerning the registration of claims are as follows.

 

For applications covered by case 1, the Native Title Registrar must apply the registration test contained in section 190A (not the test contained in subsection 63(1) of the old Act) to determine whether the claim should remain on the Register of Native Title Claims.  If the claim cannot be registered, it will be removed from the Register.  The claimant will be given written notice of the removal, and can seek review in the Federal Court, which must also apply the registration test under the new Act.

 

For applications covered by case 2, the Court hearing the non-acceptance appeal must apply the registration test contained in section 190A.  If the appeal is unsuccessful (that is, if the claim does not satisfy the conditions set out in subsections 190A(7) to (10)), then any claim which had been entered on the Register of Native Title Claims will be removed from the Register.  There is no appeal from the removal of a claim from the Register in such circumstances and no order can be sought under subsection 190A(12).

 

For applications covered by cases 3 to 6, notwithstanding that a claim has been accepted under the old Act, the Native Title Registrar must apply the registration test contained in section 190A to determine whether the claim should remain on the Register.  If the claim does not satisfy the conditions set out in subsections 190A(7) to (10), then it must be removed from the Register.  The claimant can seek review in the Federal Court.

 

 

 

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

 

This item deals with the registration of claims contained in applications given to the Native Title Registrar before 27 June 1996 which have not been accepted when the new Act commences.  See the explanation in relation to item 2 (case 1).

 

 

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

 

This item deals with the registration of claims contained in applications given to the Native Title Registrar on or after 27 June 1996 but before the commencement of this Act which have not yet been accepted.  See the explanation in relation to item 3 (case 1).

 

 

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

 

This item deals with the registration of claims contained in applications (whether made before or after the date of introduction of this Bill) where the application has not been accepted and the decision not to accept the application is subject to appeal proceedings.  See the explanation in relation to items 2 and 3 (case 2).

 

 

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

 

This item deals with the registration of claims contained in applications given to the Native Title Registrar on or after 27 June 1996 where the application has been accepted under the old law but has not yet been finalised.  Any such claim will be required to satisfy the registration test under section 190A and if the claim does not satisfy this test, the Registrar must remove it from the Register.

 

 

8               Previously directed mediation conference

 

This item applies to applications which are covered by case 6 in items 2 or 3 where, before the commencement of this item, the President has directed the holding of a mediation conference, and that mediation has either not concluded (whether successfully or otherwise) or, if concluded, there has been no determination under section 73 or referral to the Federal Court under section 74 of the old Act.  In such circumstances, the Federal Court is taken to have referred the proceeding to mediation under the new Act.  This will avoid any unnecessary disruption to mediation which is in progress or about to be commenced.  The 3 month period during which a party cannot ask for an order that mediation cease, will commence when this Act commences.

 

 

9               Application already with Federal Court

 

This item applies to applications which are covered by case 6 in items 2 or 3, where the mediation has concluded without agreement between the parties and, as a result, the application has been lodged with the Federal Court under section 74 of the old Act.  In such circumstances, the Federal Court is taken to have made an order under the new Act that mediation cease in relation to the proceeding.  The Federal Court may then hear the application without referring it to the Tribunal for further mediation.  However, it remains open to the Federal Court at any time to refer the whole or part of the proceeding to the Tribunal for mediation.

 

 

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

 

This item applies to unopposed non-claimant applications (see sections 67 and 70 of the old Act) which have not yet been finalised.  Under the old Act, section 24 applies to protect the validity of future acts done in relation to the area covered by the non-claimant application.  This item provides that the area covered by the non-claimant application is subject to section 24 protection under the new Act unless and until either the making of an approved determination that native title exists in relation to the area, or the withdrawal or dismissal of the non-claimant application.  This means that future acts may be done validly in relation to the area during that time, subject to possible compensation to any native title holders whose native title is affected by any such future act.

 

 

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

 

This item applies where there has been a determination made by the Tribunal that native title does not exist in relation to an area, where that determination is not subject to review proceedings.  In such circumstances, any part of the area will be subject to section 24 protection under the new Act unless and until the making of an approved determination that native title exists in relation to that part of the area.  This means that future acts may be done validly in relation to the area during that time, subject to possible compensation to any native title holders whose native title is affected by any such future act.

 

 

12             Claims advised by State/Territory bodies

                

                 This item applies where the Registrar has been advised by a State or Territory of the acceptance of a claim lodged after 27 June and has registered it.  If the State or Territory chooses to retest that claim against conditions equivalent to those applied in section 190A and finds that the conditions are not satisfied and so advises the Registrar, the Registrar must remove that claim from the Register of Native Title Claims.

 

 

13             Regulations

 

This item confers power to make regulations, and in particular regulations in relation to transitional matters.

 

SCHEDULE 3, Part 3 - Interpretation

 

Description of items in this Part

 

This Part defines terms used in the transitional provisions (that is in Parts 2 and 3 of Schedule 3 to the Bill).  These terms are essential to understanding the operation of the tables in items 2 and 3 of this Schedule.

 

 

14             Contents of this Part

 

This item is self-explanatory.

 

 

15             Meaning of commencement of this Act

 

This item provides that the term ‘commencement of this Act’ means the time that this item is proclaimed to come into effect or 9 months after the amending Act receives Royal Assent whichever is the earlier.

 

 

16             Meaning of new Act and old Act

 

This item provides that in Schedule 3, the term new Act means the Native Title Act 1993, as amended by this Bill, and the term old Act means the NTA as in force immediately before the commencement of the provisions of this Act.

 

 

17             Meaning of application is being processed

 

This item defines the term application is being processed.  An application is being processed if  it has been given to the Native Title Registrar under subsection 61(1) of the old Act and a decision has not yet been made whether or not to accept the application. It covers the situation when the Native Title Registrar is still considering whether the application is frivolous or vexatious or whether prima facie the claim cannot be made out.  It also covers the situation when the Registrar has decided to refer the application to a presidential member, who has not yet given a direction to the Registrar to accept or not to accept the application.

 

 

18             Meaning of application is being reviewed by a court

 

This item provides that an application is being reviewed by a court if the presidential member has directed the Native Title Registrar not to accept the application and either the direction is subject to an appeal proceeding before a court or the appeal period has not yet finished.

 

 

19             Meaning of application has been accepted

 

This item provides that an application has been accepted if it has been accepted under section 63 or section 64 of the old Act.

 

 

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

 

This item provides that where an application is taken to have been made to Federal Court the application is to be treated as if it were made to the Federal Court under the relevant provisions of the new Act.  The application is taken to have conformed with the formal requirements of the new Act if it complies with the formal requirements of the old Act.  The Native Title Registrar must give the application to the Federal Court.

 

 

21             Meaning of non-acceptance appeal

 

This item provides that 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.  Subsection 169(2) permitted an applicant to appeal to the Federal Court on questions of fact or law from a decision not to accept the application. 

 

 

22             Meaning of old law is to apply

 

This item provides that if the old law is to apply to an appeal, the court hearing the appeal is to disregard the amendments made by this Act.  This means that the court hearing a non-acceptance appeal will apply the acceptance test set out in subsection 63(1) of the old Act rather than the provisions of the new Act.

 

 

23             Meaning of new law is to apply

 

This item provides that if the new law is to apply to an appeal, the court hearing the appeal is to take account of the amendments made in this Act.  This means that the court hearing a non-acceptance appeal will apply the registration test contained in section 190A of the new Act.

 

 

24             Meaning of Registrar is giving notification

 

This item provides that the Registrar is giving notification if he or she has commenced giving notice of an application accepted under the old Act, but has not yet given notice to all persons whose interests will be affected by a determination.

 

 

25             Meaning of Registrar has given notification

 

This item provides that the Native Title Registrar has given notification if he or she has completed giving 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

 

This item defines the section 66 notification period, that is, the 2 month period within which persons may apply to become a party to an application under the old Act. 

 

 

27             Meaning of notification is taken to be for that application

 

This item ensures that notification of an application which has been given by the Registrar prior to the commencement of these amendments does not need to be repeated.

 

 

28             Meaning of unopposed

 

This item provides that an application is unopposed if the application is unopposed for the purposes of section 70 of the old Act.  Subsection 70(2) of the old Act provided that applications were unopposed if the applicant was the only party at the end of the notification period, or the parties to the application did not oppose it, or no native title claim had been lodged in response to a non-claimant application within the notification period and subsequently been accepted.

 

 

29             Meaning of not finalised

 

This item provides that an application is not finalised if it is still being dealt with by the NNTT, the Federal Court, or the High Court or if a determination has been made and the period within which review of that determination may be sought has not yet finished.

 

 

30             Meaning of same people are the parties

 

This item ensures that any persons who had become parties to an application before the commencement of these amendments will remain as parties to the application.  Further, where the notification period has not expired at the commencement of these amendments, any person who would have been entitled to become a party within that notification period remains entitled to do so.