Native Title Act 1993

Native title is recognised, and protected, in accordance with this Act.

Native title is not able to be extinguished contrary to this Act.

Effect of subsection (1)

An act that consists of the making, amendment or repeal of legislation on or after 1 July 1993 by the Commonwealth, a State or a Territory is only able to extinguish native title:

in accordance with Division 2B (which deals with confirmation of past extinguishment of native title) or Division 3 (which deals with future acts etc. and native title) of Part 2; or

by validating past acts, or intermediate period acts, in relation to the native title.

Applications to Federal Court

An application may be made to the Federal Court under Part 3:

for a determination of native title in relation to an area for which there is no approved determination of native title; or

to revoke or vary an approved determination of native title on the grounds set out in subsection (5).

Native title determinations by Federal Court when determining compensation entitlements

If:

the Federal Court is making a determination of compensation in accordance with Division 5; and

an approved determination of native title has not previously been made in relation to the whole or part of the area concerned;

the Federal Court must also make a current determination of native title in relation to the whole or the part of the area, that is to say, a determination of native title as at the time at which the determination of compensation is being made.

Approved determinations of native title

Note: The compensation application must contain the information that would be required for a native title determination application for the area: see section 62.

(3) Subject to subsection (4), each of the following is an approved determination of native title:

a determination of native title made on an application under paragraph (1)(a) or in accordance with subsection (2);

an order, judgment or other decision of a recognised State/Territory body that involves a determination of native title in relation to an area within the jurisdictional limits of the State or Territory.

Variation or revocation of determinations

If an approved determination of native title is varied or revoked on the grounds set out in subsection (5) by:

the Federal Court, in determining an application under Part 3; or

a recognised State/Territory body in an order, judgment or other decision;

then:

(c) in the case of a variation—the determination as varied becomes an approved determination of native title in place of the original; and

in the case of a revocation—the determination is no longer an approved determination of native title.

Grounds for variation or revocation

For the purposes of subsection (4), the grounds for variation or revocation of an approved determination of native title are:

that events have taken place since the determination was made that have caused the determination no longer to be correct; or

that the interests of justice require the variation or revocation of the determination; or

that the determination relates to an area in relation to which the agreement required by paragraph 47C(1)(b) has been given.

Note: Section 47C provides for extinguishment of native title rights and interests in relation to certain areas such as national parks etc. to be disregarded.

Review or appeal

If:

a determination of the Federal Court; or

an order, judgment or other decision of a recognised State/Territory body;

is subject to any review or appeal, this section refers to the determination, order, judgment or decision as affected by the review or appeal, when finally determined.

High Court determinations

(7) A determination of native title by the High Court is an approved determination of native title.

In summary, this Division validates, or allows States and Territories to validate, certain acts that:

took place before 1 January 1994; and

would otherwise be invalid because of native title.

This Division also covers certain acts done after that day consisting of an extension or renewal etc. of an act done before that day.

(2) The acts validated are called past acts; they are defined in section 228.

This Division also sets out the effect of such validation on native title. The effect varies depending on the nature of the act. For this purpose, different categories of past act are defined by sections 229 to 232.

Subdivision A—Acts attributable to the Commonwealth

If a past act is an act attributable to the Commonwealth, the act is valid, and is taken always to have been valid.

Effect of validation of law

To avoid any doubt, if a past act validated by subsection (1) is the making, amendment or repeal of legislation, subsection (1) does not validate:

the grant or issue of any lease, licence, permit or authority; or

the creation of any interest in relation to land or waters;

under any legislation concerned, unless the grant, issue or creation is itself a past act attributable to the Commonwealth.

If a past act is an act attributable to the Commonwealth:

if it is a category A past act other than one to which subsection 229(4) (which deals with public works) applies—the act extinguishes the native title concerned; and

if it is a category A past act to which subsection 229(4) applies:

in any case—the act extinguishes the native title in relation to the land or waters on which the public work concerned (on completion of its construction or establishment) was or is situated; and

if paragraph 229(4)(a) applies—the extinguishment is taken to have happened on 1 January 1994; and

if it is a category B past act that is wholly or partly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests concerned—the act extinguishes the native title to the extent of the inconsistency; and

if it is a category C past act or a category D past act—the non-extinguishment principle applies to the act.

Note: This subsection does not apply to the act if section 23C or 23G applies to the act.

The extinguishment effected by this section does not by itself confer any right to eject or remove any Aboriginal persons who reside on or who exercise access over land or waters covered by a pastoral lease the grant, re-grant or extension of which is validated by section 14.

If:

the act attributable to the Commonwealth contains a reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders; or

the doing of the act would affect rights or interests (other than native title rights and interests) of Aboriginal peoples or Torres Strait Islanders (whether arising under legislation, at common law or in equity and whether or not rights of usage);

nothing in section 15 affects that reservation or condition or those rights or interests.

Extinguishment case

If the act attributable to the Commonwealth is a category A past act or a category B past act, the native title holders are entitled to compensation for the act.

Non-extinguishment case

If it is any other past act, the native title holders are entitled to compensation for the act if:

the native title concerned is to some extent in relation to an onshore place and the act could not have been validly done on the assumption that the native title holders instead held ordinary title to:

any land concerned; and

the land adjoining, or surrounding, any waters concerned; or

the native title concerned is to some extent in relation to an offshore place; or

the native title concerned relates either to land or to waters and the similar compensable interest test is satisfied in relation to the act.

Compensation for partial effect of act

If the entitlement arises only because one, but not both, of paragraphs (2)(a) and (b) are satisfied, it is only an entitlement for the effect of the act on the native title in relation to the onshore place, or the offshore place, mentioned in the relevant paragraph.

Who pays compensation

The compensation is payable by the Commonwealth.

Section applies if acquisition of property other than on just terms

This section applies if the invalidity (disregarding section 14) of a past act attributable to the Commonwealth results from a paragraph 51(xxxi) acquisition of property by the Commonwealth from any person having been made otherwise than on paragraph 51(xxxi) just terms.

Entitlement to compensation

The person is entitled to compensation from the Commonwealth for the acquisition in accordance with Division 5 and, if that compensation does not ensure that the acquisition is made on paragraph 51(xxxi) just terms, to such additional compensation from the Commonwealth as is necessary to ensure that it is.

Subdivision B—Acts attributable to a State or Territory

If a law of a State or Territory contains provisions to the same effect as sections 15 and 16, the law of the State or Territory may provide that past acts attributable to the State or Territory are valid, and are taken always to have been valid.

Effect of validation of law

To avoid any doubt, if a past act validated by subsection (1) is the making, amendment or repeal of legislation, subsection (1) does not validate:

the grant or issue of any lease, licence, permit or authority; or

the creation of any interest in relation to land or waters;

under any legislation concerned, unless the grant, issue or creation is itself a past act attributable to the State or Territory.

Compensation where validation

If a law of a State or Territory validates a past act attributable to the State or Territory in accordance with section 19, the native title holders are entitled to compensation if they would be so entitled under subsection 17(1) or (2) on the assumption that section 17 applied to acts attributable to the State or Territory.

Compensation where no validation

Native title holders are entitled to compensation for the past act attributable to a State or Territory that, at the time when the claim for compensation is determined, has not been validated by the State or Territory in accordance with section 19.

Recovery of compensation

The native title holders may recover the compensation from the State or Territory.

States or Territories may create compensation entitlement

This section does not prevent a law of a State or Territory from creating an entitlement to compensation for a past act or for the validation of a past act.

Note: Paragraph 49(b) deals with the situation where there are multiple rights to compensation under Commonwealth, State and Territory laws.

In summary, this Division validates, or allows States and Territories to validate, certain acts that:

took place on or after 1 January 1994 but on or before 23 December 1996; and

would otherwise be invalid to any extent because they fail to pass any of the future act tests in Division 3 of Part 2 or for any other reason because of native title.

(2) The acts are called intermediate period acts; they are defined in section 232A.

For this validation to apply, before the act was done, there must have been:

a grant of a freehold estate or a lease (other than a mining lease); or

a public work;

over any of the land or waters concerned.

The Division also sets out the effect of such validation on native title. The effect varies depending on the nature of the act. For this purpose, different categories of intermediate period act are defined by sections 232B to 232E.

The structure of the Division is very similar to that of Division 2 (which deals with validation of past acts).

Subdivision B—Acts attributable to the Commonwealth

If an intermediate period act is an act attributable to the Commonwealth, the act is valid, and is taken always to have been valid.

Subject to subsection 24EBA(6), if an intermediate period act is an act attributable to the Commonwealth:

if it is a category A intermediate period act to which subsection 232B(2), (3) or (4) (which deal with things such as the grant or vesting of freehold estates and certain leases) applies—the act extinguishes all native title in relation to the land or waters concerned; and

if it is a category A intermediate period act to which subsection 232B(7) (which deals with public works) applies:

the act extinguishes the native title in relation to the land or waters on which the public work concerned (on completion of its construction or establishment) was or is situated; and

the extinguishment is taken to have happened when the construction or establishment began; and

if it is a category B intermediate period act that is wholly or partly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests concerned—the act extinguishes the native title to the extent of the inconsistency; and

if it is a category C intermediate period act or a category D intermediate period act—the non-extinguishment principle applies to the act.

Note: This section does not apply to the act if section 23C or 23G applies to the act.

If:

an intermediate period act attributable to the Commonwealth contains a reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders; or

the doing of an intermediate period act attributable to the Commonwealth would affect rights or interests (other than native title rights and interests) of Aboriginal peoples or Torres Strait Islanders (whether arising under legislation, at common law or in equity and whether or not rights of usage);

nothing in section 22B affects that reservation or condition or those rights or interests.

If an intermediate period act is an act attributable to the Commonwealth, the native title holders are entitled to compensation for the act.

Who pays compensation

The compensation is payable by the Commonwealth.

Section applies if acquisition of property other than on just terms

This section applies if the invalidity (disregarding section 22A) of an intermediate period act attributable to the Commonwealth results from a paragraph 51(xxxi) acquisition of property by the Commonwealth from any person having been made otherwise than on paragraph 51(xxxi) just terms.

Entitlement to compensation

The person is entitled to compensation from the Commonwealth for the acquisition in accordance with Division 5 and, if that compensation does not ensure that the acquisition is made on paragraph 51(xxxi) just terms, to such additional compensation from the Commonwealth as is necessary to ensure that it is.

If:

an act that is attributable to the Commonwealth consists of:

the creation of a right to mine; or

the variation of such a right to extend the area to which it relates; or

the extension of the period for which such a right has effect, other than under an option or right of extension or renewal created by the lease, contract or other thing whose grant or making created the right to mine; and

the act took place at any time during the period from the beginning of 1 January 1994 until the end of 23 December 1996; and

at any time before the act was done, either:

a grant of a freehold estate or a lease was made covering any of the land or waters affected by the act; or

a public work was constructed or established on any of the land or waters affected by the act;

the Commonwealth must, before the end of 6 months after this section commences:

give notice containing the details set out in subsection (2) to any registered native title body corporate, any registered native title claimant and any representative Aboriginal/Torres Strait Islander body, in relation to any of the land or waters affected by the act; and

notify the public in the determined way of the details set out in subsection (2).

Details

The details are:

the date on which the act was done; and

the kind of mining involved; and

sufficient information to enable the area affected by the act to be identified; and

information about the way in which further details about the act may be obtained.

Subdivision C—Acts attributable to a State or Territory

If a law of a State or Territory contains provisions to the same effect as sections 22B and 22C, the law of the State or Territory may provide that intermediate period acts attributable to the State or Territory are valid, and are taken always to have been valid.

Compensation where validation

If a law of a State or Territory validates an intermediate period act attributable to the State or Territory in accordance with section 22F, the native title holders are entitled to compensation.

Recovery of compensation

The native title holders may recover the compensation from the State or Territory.

States or Territories may create compensation entitlement

This section does not prevent a law of a State or Territory from creating an entitlement to compensation for an intermediate period act or for the validation of an intermediate period act.

Note: Paragraph 49(b) deals with the situation where there are multiple rights to compensation under Commonwealth, State and Territory laws.

If:

an act that is attributable to a State or Territory consists of:

the creation of a right to mine; or

the variation of such a right to extend the area to which it relates; or

the extension of the period for which such a right has effect, other than under an option or right of extension or renewal created by the lease, contract or other thing whose grant or making created the right to mine; and

the act took place at any time during the period from the beginning of 1 January 1994 until the end of 23 December 1996; and

at any time before the act was done, either:

a grant of a freehold estate or a lease was made covering any of the land or waters affected by the act; or

a public work was constructed or established on any of the land or waters affected by the act;

the State or Territory must, before the end of 6 months after the commencement of the law of the State or Territory that validates intermediate period acts attributable to the State or Territory in accordance with section 22F:

give notice containing the details set out in subsection (2) to any registered native title body corporate, any registered native title claimant and any representative Aboriginal/Torres Strait Islander body, in relation to any of the land or waters affected by the act; and

notify the public in the determined way of the details set out in subsection (2).

Details

The details are:

the date on which the act was done; and

the kind of mining involved; and

sufficient information to enable the area affected by the act to be identified; and

information about the way in which further details about the act may be obtained.

In summary, this Division allows New South Wales to validate certain transfers under the Aboriginal Land Rights Act 1983 of that State.

If:

(a) future acts consist of the transfer of lands under Aboriginal Land Rights Act 1983 of New South Wales; andsection 36 of the

the claims for the lands were made before 28 November 1994; and

the acts took place before or take place after the commencement of this section; and

the acts are not intermediate period acts; and

the acts are invalid to any extent because of Division 3 of Part 2 or for any other reason, but would be valid to that extent if native title did not exist in relation to the lands;

a law of New South Wales may provide that the acts are valid, and are taken always to have been valid.

The non-extinguishment principle applies to the acts.

Compensation where validation

If a law of New South Wales validates the acts, the native title holders concerned are entitled to compensation.

Recovery of compensation

The native title holders may recover the compensation from New South Wales.

Compensation to take into account rights etc. conferred by transferee

(3) The compensation is to take into account all rights, interests and other benefits conferred, in relation to the lands, on the native title holders by, or by virtue of membership of, the Aboriginal Land Council (within the meaning of the Aboriginal Land Rights Act 1983 of New South Wales) to which the lands are transferred or by which the lands are held.

NSW may create compensation entitlement

This section does not prevent a law of New South Wales from creating an entitlement to compensation for the acts or for their validation.

Note: Paragraph 49(b) deals with the situation where there are multiple rights to compensation under Commonwealth and State legislation.

In summary, this Division provides that certain acts attributable to the Commonwealth that were done on or before 23 December 1996 will have completely or partially extinguished native title.

(2) If the acts were previous exclusive possession acts (involving the grant or vesting of things such as freehold estates or leases that conferred exclusive possession, or the construction or establishment of public works), the acts will have completely extinguished native title.

(3) If the acts were previous non-exclusive possession acts (involving grants of non-exclusive agricultural leases or non-exclusive pastoral leases), they will have extinguished native title to the extent of any inconsistency.

This Division also allows States and Territories to legislate, in respect of certain acts attributable to them, to extinguish native title in the same way as is done under this Division for Commonwealth acts.

(1) This section defines previous exclusive possession act.

Grant of freehold estates or certain leases etc. on or before 23.12.1996

(2) An act is a previous exclusive possession act if:

it is valid (including because of Division 2 or 2A of Part 2); and

Note: As at the commencement of this section, acts such as grants before 1 January 1994 that were invalid because of native title have been validated by or under Division 2.

it took place on or before 23 December 1996; and

it consists of the grant or vesting of any of the following:

a Scheduled interest (see section 249C);

a freehold estate;

a commercial lease that is neither an agricultural lease nor a pastoral lease;

an exclusive agricultural lease (see section 247A) or an exclusive pastoral lease (see section 248A);

a residential lease;

a community purposes lease (see section 249A);

what is taken by subsection 245(3) (which deals with the dissection of mining leases into certain other leases) to be a separate lease in respect of land or waters mentioned in paragraph (a) of that subsection, assuming that the reference in subsection 245(2) to “1 January 1994” were instead a reference to “24 December 1996”;

any lease (other than a mining lease) that confers a right of exclusive possession over particular land or waters.

Vesting of certain land or waters to be covered by paragraph (2)(c)

If:

by or under legislation of a State or a Territory, particular land or waters are vested in any person; and

a right of exclusive possession of the land or waters is expressly or impliedly conferred on the person by or under the legislation;

the vesting is taken for the purposes of paragraph (2)(c) to be the vesting of a freehold estate over the land or waters.

Construction of public works commencing on or before 23.12.1996

(7) An act is a previous exclusive possession act if:

it is valid (including because of Division 2 or 2A); and

it consists of the construction or establishment of any public work that commenced to be constructed or established on or before 23 December 1996.

Exclusion of acts benefiting Aboriginal peoples or Torres Strait Islanders

(9) An act is not a previous exclusive possession act if it is:

the grant or vesting of any thing that is made or done by or under legislation that makes provision for the grant or vesting of such things only to, in or for the benefit of, Aboriginal peoples or Torres Strait Islanders; or

the grant or vesting of any thing expressly for the benefit of, or to or in a person to hold on trust expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders; or

the grant or vesting of any thing over particular land or waters, if at the time a thing covered by paragraph (a) or (b) is in effect in relation to the land or waters.

Note: The expression Aboriginal peoples is defined in section 253.

Exclusion of national parks etc.

(9A) An act is not a previous exclusive possession act if the grant or vesting concerned involves the establishment of an area, such as a national, State or Territory park, for the purpose of preserving the natural environment of the area.

Exclusion of acts where legislation provides for non-extinguishment

(9B) An act is not a previous exclusive possession act if it is done by or under legislation that expressly provides that the act does not extinguish native title.

Exclusion of Crown to Crown grants etc.

(9C) If an act is the grant or vesting of an interest in relation to land or waters to or in the Crown in any capacity or a statutory authority, the act is not a previous exclusive possession act:

unless, apart from this Act, the grant or vesting extinguishes native title in relation to the land or waters; or

if the grant or vesting does not, apart from this Act, extinguish native title in relation to the land or waters—unless and until the land or waters are (whether before or after 23 December 1996) used to any extent in a way that, apart from this Act, extinguishes native title in relation to the land or waters.

Exclusion by regulation

(10) The regulations may provide that an act is not a previous exclusive possession act.

Effect of exclusions

To avoid doubt, the fact that an act is, because of any of the previous subsections, not a previous exclusive possession act does not imply that the act is not valid.

Acts other than public works

If an act is a previous exclusive possession act under subsection 23B(2) (including because of subsection 23B(3)) and is attributable to the Commonwealth:

the act extinguishes any native title in relation to the land or waters covered by the freehold estate, Scheduled interest or lease concerned; and

the extinguishment is taken to have happened when the act was done.

Public works

If an act is a previous exclusive possession act under subsection 23B(7) (which deals with public works) and is attributable to the Commonwealth:

the act extinguishes native title in relation to the land or waters on which the public work concerned (on completion of its construction or establishment) was or is situated; and

the extinguishment is taken to have happened when the construction or establishment of the public work began.

Other extinguishment provisions do not apply

If this section applies to the act, sections 15 and 22B do not apply to the act.

If:

a previous exclusive possession act attributable to the Commonwealth contains a reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders; or

the doing of a previous exclusive possession act attributable to the Commonwealth would affect rights or interests (other than native title rights and interests) of Aboriginal peoples or Torres Strait Islanders (whether arising under legislation, at common law or in equity and whether or not rights of usage);

nothing in section 23C affects that reservation or condition or those rights or interests.

To avoid doubt, if the act is a previous exclusive possession act because of paragraph 23B(9C)(b) (which deals with grants to the Crown etc.), the use of the land or waters concerned as mentioned in that paragraph is valid.

If a law of a State or Territory contains a provision to the same effect as section 23D or 23DA, the law of the State or Territory may make provision to the same effect as section 23C in respect of all or any previous exclusive possession acts attributable to the State or Territory.

(1) This section defines previous non-exclusive possession act.

Acts on or before 23.12.96

(2) An act is a previous non-exclusive possession act if:

it is valid (including because of Division 2 or 2A of Part 2); and

Note: As at the commencement of this section, acts such as grants before 1 January 1994 that were invalid because of native title have been validated by or under Division 2.

it takes place on or before 23 December 1996; and

(c) it consists of the grant of a non-exclusive agricultural lease (see (see section 248B).section 247B) or a non-exclusive pastoral lease

Acts after 23.12.96

(3) An act is also a previous non-exclusive possession act if:

it takes place after 23 December 1996; and

it would be a previous non-exclusive possession act under subsection (2) if that subsection were not limited in its application to acts taking place on or before 23 December 1996; and

it takes place:

in exercise of a legally enforceable right created by any act done on or before 23 December 1996; or

in good faith in giving effect to, or otherwise because of, an offer, commitment, arrangement or undertaking made or given in good faith on or before 23 December 1996, and of which there is written evidence created at or about the time the offer, commitment, arrangement or undertaking was made.

Exclusion by regulation

(4) The regulations may provide that an act is not a previous non-exclusive possession act.

Subject to subsection (2), if a previous non-exclusive possession act (see section 23F) is attributable to the Commonwealth:

to the extent that the act involves the grant of rights and interests that are not inconsistent with native title rights and interests in relation to the land or waters covered by the lease concerned, the rights and interests granted, and the doing of any activity in giving effect to them, prevail over the native title rights and interests but do not extinguish them; and

to the extent that the act involves the grant of rights and interests that are inconsistent with native title rights and interests in relation to the land or waters covered by the lease concerned:

if, apart from this Act, the act extinguishes the native title rights and interests—the native title rights and interests are extinguished; and

in any other case—the native title rights and interests are suspended while the lease concerned, or the lease as renewed, re-made, re-granted or extended, is in force; and

any extinguishment under this subsection is taken to have happened when the act was done.

Exclusion of certain acts

If the act is the grant of a pastoral lease or an agricultural lease to which paragraph 15(1)(a) applies, this section does not apply to the act.

Effect on sections 15 and 22B

If this section applies to the act, sections 15 and 22B do not apply to the act.

If:

a previous non-exclusive possession act attributable to the Commonwealth contains a reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders; or

the doing of a previous non-exclusive possession act attributable to the Commonwealth would affect rights or interests (other than native title rights and interests) of Aboriginal peoples or Torres Strait Islanders (whether arising under legislation, at common law or in equity and whether or not rights of usage);

nothing in section 23G affects that reservation or condition or those rights or interests.

In the case of a previous non-exclusive possession act to which subparagraph 23F(3)(c)(ii) applies:

notice must be given, in the way determined, by legislative instrument, by the Commonwealth Minister, to any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the land or waters that will be affected by the act about the doing or proposed doing of the act, or acts of that class, in relation to the land or waters concerned; and

they must be given an opportunity to comment on the act or class of acts.

If a law of a State or Territory contains provisions to the same effect as sections 23H and 23HA, the law of the State or Territory may make provision to the same effect as section 23G in respect of all or any previous non-exclusive possession acts attributable to the State or Territory.

Entitlement

The native title holders are entitled to compensation in accordance with Division 5 for any extinguishment under this Division of their native title rights and interests by an act, but only to the extent (if any) that the native title rights and interests were not extinguished otherwise than under this Act.

Commonwealth acts

If the act is attributable to the Commonwealth, the compensation is payable by the Commonwealth.

State and Territory acts

If the act is attributable to a State or Territory, the compensation is payable by the State or Territory.

If:

a previous exclusive possession act or a previous non-exclusive possession act took place before the establishment of a particular State, the Jervis Bay Territory, the Australian Capital Territory or the Northern Territory; and

the act affected land or waters that, when this section commences, form part of the State or Territory;

then, for the purposes of this Division, the act is taken to be attributable to:

the State; or

if the Territory is the Jervis Bay Territory—the Commonwealth; or

if the Territory is the Australian Capital Territory or the Northern Territory—that Territory.

Note: The meaning given to the expression attributable by section 239 will apply for the purposes of this Division to all other previous exclusive and non-exclusive possession acts.

Future acts

(1) This Division deals mainly with future acts, which are defined in future acts; therefore this Division does not deal with them (see section 227 for the meaning of acts that affect native title).section 233. Acts that do not affect native title are not

Validity of future acts

Basically, this Division provides that, to the extent that a future act affects native title, it will be valid if covered by certain provisions of the Division, and invalid if not.

Validity under indigenous land use agreements

A future act will be valid if the parties to certain agreements (called indigenous land use agreements—see Subdivisions B, C and D) consent to it being done and, at the time it is done, details of the agreement are on the Register of Indigenous Land Use Agreements. An indigenous land use agreement, details of which are on the Register, may also validate a future act (other than an intermediate period act) that has already been invalidly done.

Other bases for validity

A future act will also be valid to the extent covered by any of the following:

section 24FA (future acts where procedures indicate absence of native title);

section 24GB (acts permitting primary production on non-exclusive agricultural or pastoral leases);

section 24GD (acts permitting off-farm activities directly connected to primary production activities);

section 24GE (granting rights to third parties etc. on non-exclusive agricultural or pastoral leases);

section 24HA (management of water and airspace);

section 24IA (acts involving renewals and extensions etc. of acts);

section 24JAA (public housing etc.);

section 24JA (acts involving reservations, leases etc.);

section 24KA (acts involving facilities for services to the public);

section 24LA (low impact future acts);

section 24MD (acts that pass the freehold test—but see subsection (5));

section 24NA (acts affecting offshore places).

Right to negotiate

In the case of certain acts covered by section 24IC (permissible lease etc. renewals) or section 24MD (acts that pass the freehold test), for the acts to be valid it is also necessary to satisfy the requirements of Subdivision P (which provides a “right to negotiate”).

Extinguishment/non-extinguishment; procedural rights and compensation

This Division provides that, in general, valid future acts are subject to the non-extinguishment principle. The Division also deals with procedural rights and compensation for the acts.

Activities etc. prevail over native title

To avoid doubt, section 44H provides that a valid lease, licence, permit or authority, and any activity done under it, prevail over any native title rights and interests and their exercise.

Statutory access rights

This Division confers access rights in respect of non-exclusive agricultural and non-exclusive pastoral leases on certain persons covered by registered native title claims (see Subdivision Q).

Indigenous land use agreement provisions

To the extent that a future act is covered by section 24EB (which deals with the effect of indigenous land use agreements on future acts), it is not covered by any of the sections listed in paragraphs 24AA(4)(a) to (k).

Other provisions

To the extent that a future act is covered by a particular section in the list in paragraphs 24AA(4)(a) to (k), it is not covered by a section that is lower in the list.

Note: It is important to know under which particular provision a future act is valid because the consequences in terms of compensation and procedural rights may be different.

However, if, apart from subsection (2), a future act could be covered, to any extent, by both section 24JAA and section 24KA, then:

if the act is notified in accordance with subsections 24JAA(10) to (12), it is not covered, to that extent, by section 24KA; and

if the act is not notified in accordance with subsections 24JAA(10) to (12), it is not covered, to that extent, by section 24JAA.

Note: This allows for things, such as the construction of roads and electricity transmission or distribution facilities, to be done under either Subdivision JA or Subdivision K when done in connection with housing or facilities covered by Subdivision JA.

The regulations may impose requirements to notify persons of acts, or classes of acts, that are to any extent valid under this Division (whether such notice is required to be given before or after the acts are done).

Subdivision B—Indigenous land use agreements (body corporate agreements)

An agreement meeting the requirements of sections 24BB to 24BE is an indigenous land use agreement.

Note: Subdivisions C and D provide for other kinds of indigenous land use agreements.

The agreement must be about one or more of the following matters in relation to an area:

the doing, or the doing subject to conditions (which may be about procedural matters), of particular future acts, or future acts included in classes;

particular future acts (other than intermediate period acts), or future acts (other than intermediate period acts) included in classes, that have already been done;

Note: Intermediate period acts are or can be validated only under Division 2A.

changing the effects, that are provided for by section 22B or by a law of a State or Territory that contains provisions to the same effect, of an intermediate period act or of intermediate period acts included in classes;

withdrawing, amending, varying or doing any other thing in relation to an application under Division 1 of Part 3 in relation to land or waters in the area;

the relationship between native title rights and interests and other rights and interests in relation to the area;

the manner of exercise of any native title rights and interests or other rights and interests in relation to the area;

extinguishing native title rights and interests in relation to land or waters in the area by the surrender of those rights and interests to the Commonwealth, a State or a Territory;

providing a framework for the making of other agreements about matters relating to native title rights and interests;

compensation for any past act, intermediate period act or future act;

any other matter concerning native title rights and interests in relation to the area.

Note 1: If the agreement involves consent to the doing of a future act or class of future act, or the doing of a future act or class of future act subject to conditions, it must include a statement to that effect: see paragraph 24EB(1)(b).

Note 2: If a future act covered by such a statement would otherwise be subject to the “right to negotiate” provisions in Subdivision P, the agreement must also include a statement that those provisions are not intended to apply: see paragraph 24EB(1)(c).

Note 3: If the agreement involves the extinguishment of native title by surrender, it must include a statement to that effect: see paragraph 24EB(1)(d).

The agreement must not be made unless there are registered native title bodies corporate in relation to all of the area.

If:

there is an approved determination of native title to the effect that native title does not exist in relation to part of the area; or

part of the area was expressly excluded from the area covered by an approved determination of native title because of subsection 61A(2) (restrictions on making of certain applications);

it is not necessary for there to be a registered native title body corporate for that part of the area in order to satisfy subsection (1).

Registered native title bodies corporate

All of the registered native title bodies corporate in relation to the area must be parties to the agreement.

Governments

If the agreement makes provision for the extinguishment of native title rights and interests by surrendering them to the Commonwealth, a State or a Territory as mentioned in paragraph 24BB(e), the Commonwealth, State or Territory must be a party to the agreement. If the agreement does not make such provision, the Commonwealth, a State or a Territory may still be a party.

Others

Any other person or persons may be parties.

Procedure where no representative body party

If there are any representative Aboriginal/Torres Strait Islander bodies for any of the area and none of them is proposed to be a party to the agreement, the registered native title body corporate, before entering into the agreement:

must inform at least one of the representative Aboriginal/Torres Strait Islander bodies of its intention to enter into the agreement; and

may consult any such representative Aboriginal/Torres Strait Islander bodies about the agreement.

The agreement may be given for any consideration, and subject to any conditions, agreed by the parties (other than consideration or conditions that contravene any law).

Consideration may be freehold grant or other interests

Without limiting subsection (1), the consideration may be the grant of a freehold estate in any land, or any other interests in relation to land whether statutory or otherwise.

Persons wishing to make the agreement may request assistance from the NNTT or a recognised State/Territory body in negotiating the agreement.

(2) The NNTT must not use or disclose information to which it has had access only because it has provided assistance in negotiating the agreement for any purpose other than providing that assistance without the prior consent of the person who provided the NNTT with the information.

Application

Any party to the agreement may, if all of the other parties agree, apply in writing to the Registrar for the agreement to be registered on the Register of Indigenous Land Use Agreements.

Things accompanying application

The application must be accompanied by a copy of the agreement and any other prescribed documents or information.

Registrar may assist parties

The Registrar may give such assistance as he or she considers reasonable to help a party to the agreement prepare the application and accompanying material.

Notice to persons who are not parties to an agreement

The Registrar must give notice of the agreement, in accordance with subsection (2), to any of the following who are not parties to the agreement:

the Commonwealth Minister;

if the agreement covers an area within the jurisdictional limits of a State or Territory—the State Minister or the Territory Minister for the State or Territory;

any representative Aboriginal/Torres Strait Islander body for the area covered by the agreement;

any local government body for the area covered by the agreement;

any other person whom the Registrar, having regard to the nature of the agreement, considers appropriate.

Content of notice

The notice under subsection (1) must:

identify the area covered by the agreement, whether by including a map or otherwise; and

state the name of each party to the agreement and the address at which the party can be contacted; and

set out:

any statements included in the agreement that are of a kind mentioned in paragraph 24EB(1)(b), (c) or (d) or 24EBA(1)(a); or

a summary of any statements included in the agreement that are of that kind, together with information about where further detail about the statements may be obtained.

Notice to specify day

(3) The notice under subsection (1) must specify a day as the notification day for the agreement. Each such notice in relation to the agreement must specify the same day.

Which days may be specified

That day must be a day by which, in the Registrar’s opinion, it is reasonable to assume that all notices under subsection (1) in relation to the agreement will have been received by, or will otherwise have come to the attention of, the persons who must be notified under that subsection.

Notice to parties to the agreement

The Registrar must give notice to the parties to the agreement of the notification day for the agreement that was specified in the notice under subsection (1).

Subject to this section, the Registrar must register the agreement on the Register of Indigenous Land Use Agreements.

The Registrar must not register the agreement if any of the parties to the agreement advises the Registrar, within 1 month after the notification day, that the party does not wish the agreement to be registered on the Register.

The Registrar must not register the agreement if:

a representative Aboriginal/Torres Strait Islander body for any of the area advises the Registrar, within 1 month after the notification day, that the requirements of paragraph 24BD(4)(a) were not complied with in relation to the agreement; and

the Registrar is satisfied that the requirements were not complied with.

Subdivision C—Indigenous land use agreements (area agreements)

An agreement meeting the requirements of sections 24CB to 24CE is an indigenous land use agreement.

Note: Subdivisions B and D provide for other kinds of indigenous land use agreements.

The agreement must be about one or more of the following matters in relation to an area:

the doing, or the doing subject to conditions (which may be about procedural matters), of particular future acts, or future acts included in classes;

particular future acts (other than intermediate period acts), or future acts (other than intermediate period acts) included in classes, that have already been done;

Note: Intermediate period acts are or can be validated only under Division 2A.

changing the effects, that are provided for by section 22B or by a law of a State or Territory that contains provisions to the same effect, of an intermediate period act or of intermediate period acts included in classes;

withdrawing, amending, varying or doing any other thing in relation to an application under Division 1 of Part 3 in relation to land or waters in the area;

the relationship between native title rights and interests and other rights and interests in relation to the area;

the manner of exercise of any native title rights and interests or other rights and interests in relation to the area;

extinguishing native title rights and interests in relation to land or waters in the area by the surrender of those rights and interests to the Commonwealth, a State or a Territory;

providing a framework for the making of other agreements about matters relating to native title rights and interests;

compensation for any past act, intermediate period act or future act;

any other matter concerning native title rights and interests in relation to the area;

any matter concerning rights conferred by Subdivision Q (which gives certain persons covered by registered native title claims rights of access to non-exclusive agricultural and pastoral leases).

Note 1: If the agreement involves consent to the doing of a future act or class of future act, or the doing of a future act or class of future act subject to conditions, it must include a statement to that effect: see paragraph 24EB(1)(b).

Note 2: If a future act covered by such a statement would otherwise be subject to the “right to negotiate” provisions in Subdivision P, the agreement must also include a statement that those provisions are not intended to apply: see paragraph 24EB(1)(c).

Note 3: If the agreement involves the extinguishment of native title by surrender, it must include a statement to that effect: see paragraph 24EB(1)(d).

The agreement must not be made if there are registered native title bodies corporate in relation to all of the area.

Note: If there are registered native title bodies corporate for all of the area, an agreement under Subdivision B may be made.

Native title group to be parties

All members of the native title group (see subsection (2) or (3)) in relation to the area must be parties to the agreement.

Native title group where registered claimant or body corporate

(2) If there is a registered native title claimant, or a registered native title body corporate, in relation to any of the land or waters in the area, the native title group consists of:

all registered native title claimants in relation to land or waters in the area; and

Note: The agreement will bind all members of the native title claim group concerned: see paragraph 24EA(1)(b).

all registered native title bodies corporate in relation to land or waters in the area; and

(c) if, for any part (the non-claimed/determined part) of the land or waters in the area, there is neither a registered native title claimant nor a registered native title body corporate—one or more of the following:

any person who claims to hold native title in relation to land or waters in the non-claimed/determined part;

any representative Aboriginal/Torres Strait Islander body for the non-claimed/determined part.

The requirement that all registered native title claimants in relation to land or waters in the area be parties to the agreement is satisfied if, for each of those registered native title claimants:

a majority of the persons who comprise the registered native title claimant are parties to the agreement, unless paragraph (b) applies; or

if conditions under the authority of the registered native title claimant provide for the persons who must become a party to the agreement—those persons are parties to the agreement.section 251BA on

The persons in the majority must notify the other persons who comprise the registered native title claimant within a reasonable period after becoming parties to the agreement as mentioned in paragraph (2A)(a). A failure to comply with this subsection does not invalidate the agreement.

Native title group where no registered claimant or body corporate

(3) If subsection (2) does not apply, the native title group consists of one or more of the following:

any person who claims to hold native title in relation to land or waters in the area;

any representative Aboriginal/Torres Strait Islander body for the area.

Other native title parties

If the native title group is covered by subsection (2), one or more of the following may also be parties to the agreement:

any other person who claims to hold native title in relation to land or waters in the area;

any representative Aboriginal/Torres Strait Islander body for the area.

Government parties

If the agreement makes provision for the extinguishment of native title rights and interests by surrendering them to the Commonwealth, a State or Territory as mentioned in paragraph 24CB(e), the Commonwealth, State or Territory must be a party to the agreement. If the agreement does not make such provision, the Commonwealth, a State or a Territory may still be a party.

Other parties

Any other person may be a party to the agreement.

Procedure where no representative body party

If there are any representative Aboriginal/Torres Strait Islander bodies for any of the area and none of them is proposed to be a party to the agreement, a member of the native title group, before entering into the agreement:

must inform at least one of the representative Aboriginal/Torres Islander bodies of its intention to enter into the agreement; and

may consult any such representative Aboriginal/Torres Strait Islander bodies about the agreement.

Note: The registration of agreements that are certified by a representative Aboriginal/Torres Strait Islander body is facilitated under section 24CK.

The agreement may be given for any consideration, and subject to any conditions, agreed by the parties (other than consideration or conditions that contravene any law).

Consideration may be freehold grant or other interests

Without limiting subsection (1), the consideration may be the grant of a freehold estate in any land, or any other interests in relation to land whether statutory or otherwise.

Persons wishing to make the agreement may request assistance from the NNTT or a recognised State/Territory body in negotiating the agreement.

(2) The NNTT must not use or disclose information to which it has had access only because it provided assistance in negotiating the agreement for any purpose other than providing that assistance without the prior consent of the person who provided the NNTT with the information.

Application

Any party to the agreement may, if all of the other parties agree, apply in writing to the Registrar for the agreement to be registered on the Register of Indigenous Land Use Agreements.

Things accompanying application

The application must be accompanied by a copy of the agreement and any other prescribed documents or information.

Certificate or statement to accompany application in certain cases

Also, the application must either:

have been certified by all representative Aboriginal/Torres Strait Islander bodies for the area in performing their functions under paragraph 203BE(1)(b) in relation to the area; or

include a statement to the effect that the following requirements have been met:

all reasonable efforts have been made (including by consulting all representative Aboriginal/Torres Strait Islander bodies for the area) to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified;

all of the persons so identified have authorised the making of the agreement;

any conditions under the authority that relate to the making of the agreement have been satisfied;section 251BA on

together with a further statement briefly setting out the grounds on which the Registrar should be satisfied that the requirements are met.

Registrar may assist parties

Note: The word authorise is defined in section 251A.

The Registrar may give such assistance as he or she considers reasonable to help a party to the agreement prepare the application and accompanying material.

Certification not affected if Aboriginal/Torres Strait Islander body subsequently ceases to be recognised

To avoid doubt, the certification of an application under Part 11 by a representative Aboriginal/Torres Strait Islander body is not affected merely because, after certification, the recognition of the body as the representative Aboriginal/Torres Strait Islander body for the area concerned is withdrawn or otherwise ceases to have effect.

If the Registrar is satisfied that an indigenous land use agreement that meets the requirements of sections 24CB to 24CE is in existence, the Registrar must:

give notice of the agreement, in accordance with subsection (2), to any of the following who are not parties to the agreement:

the Commonwealth Minister;

if the agreement covers an area within the jurisdictional limits of a State or Territory—the State Minister or the Territory Minister for the State or Territory;

any representative Aboriginal/Torres Strait Islander body for the area covered by the agreement;

any local government body for the area covered by the agreement;

any other person whom the Registrar, having regard to the nature of the agreement, considers appropriate; and

notify the public in the determined way of the agreement in accordance with subsection (2).

Content of notice

The notice under paragraph (1)(a) or (b) must:

identify the area covered by the agreement, whether by including a map or otherwise; and

state the name of each party to the agreement and the address at which the party can be contacted; and

set out:

any statements included in the agreement that are of a kind mentioned in paragraph 24EB(1)(b), (c) or (d) or 24EBA(1)(a); or

a summary of any statements included in the agreement that are of that kind, together with information about where further detail about the statements may be obtained; and

(d) include a statement that, within the period (the notice period) of 3 months after the notification day (see subsection (3)):

if the application was certified by representative Aboriginal/Torres Strait Islander bodies for the area (see paragraph 24CG(3)(a))—any person claiming to hold native title in relation to any of the land or waters in the area covered by the agreement may object, in writing to the Registrar, against registration of the agreement on the ground that the requirements of paragraph 203BE(5)(a), (b) or (c) were not satisfied in relation to the certification; or

if the application contained a statement as mentioned in paragraph 24CG(3)(b) to the effect that certain requirements have been met (in summary, relating to identifying native title holders and ensuring that they have authorised the making of the agreement)—any person claiming to hold native title in relation to land or waters in the area covered by the agreement may wish, in response to the notice, to make a native title determination application or equivalent application under a law of a State or Territory.

Notice to specify day

(3) The notice under paragraph (1)(a) or (b) must specify a day as the notification day for the agreement. Each such notice in relation to the agreement must specify the same day.

Which days may be specified

That day must be a day by which, in the Registrar’s opinion, it is reasonable to assume that all notices under paragraph (1)(a) or (b) in relation to the agreement will have been received by, or will otherwise have come to the attention of, the persons who must be notified under those paragraphs.

Making objections

If the application was certified by representative Aboriginal/Torres Strait Islander bodies for the area (see paragraph 24CG(3)(a)), any person claiming to hold native title in relation to any of the land or waters in the area covered by the agreement may object, in writing to the Registrar, against registration of the agreement on the ground that the requirements of paragraph 203BE(5)(a), (b) or (c) were not satisfied in relation to the certification.

Assistance in withdrawing objection

If an objection is made within the notice period, the parties to the agreement may request assistance from the NNTT or a recognised State/Territory body in negotiating with the person making the objection with a view to having the objection withdrawn.

Information obtained to provide assistance not to be used or disclosed in other contexts

(3) The NNTT must not use or disclose information to which it has had access only because it provided assistance under subsection (2) for any purpose other than providing that assistance without the prior consent of the person who provided the NNTT with the information.

The Registrar must, after the end of the notice period, decide whether or not to register an agreement covered by an application under this Subdivision on the Register of Indigenous Land Use Agreements. However, in a case where section 24CL is to be applied, the Registrar must not do so until all persons covered by paragraph (2)(b) of that section are known.

Registration only if conditions satisfied

If the application for registration of the agreement was certified by representative Aboriginal/Torres Strait Islander bodies for the area (see paragraph 24CG(3)(a)) and the conditions in this section are satisfied, the Registrar must register the agreement. If the conditions are not satisfied, the Registrar must not register the agreement.

First condition

The first condition is that:

no objection under section 24CI against registration of the agreement was made within the notice period; or

one or more objections under section 24CI against registration of the agreement were made within the notice period, but they have all been withdrawn; or

one or more objections under the Registrar that the requirements of paragraph 203BE(5)(a), (b) or (c) were not satisfied in relation to the certification of the application by any of the representative Aboriginal/Torres Strait Islander bodies concerned.section 24CI against registration of the agreement were made within the notice period, all of them have not been withdrawn, but none of the persons making them has satisfied

Second condition

The second condition is that if, when the Registrar proposes to register the agreement, there is a registered native title body corporate in relation to any land or waters in the area covered by the agreement, that body corporate is a party to the agreement.

Matters to be taken into account

In deciding whether he or she is satisfied as mentioned in paragraph (2)(c), the Registrar must take into account any information given to the Registrar in relation to the matter by:

the persons making the objections mentioned in that paragraph; and

the representative Aboriginal/Torres Strait Islander bodies that certified the application;

and may, but need not, take into account any other matter or thing.

Registration only if conditions satisfied

If the application for registration of the agreement contained a statement as mentioned in paragraph 24CG(3)(b) to the effect that certain requirements have been met (in summary, relating to identifying native title holders and ensuring that they have authorised the making of the agreement), and the conditions in subsections (2) and (3) of this section are satisfied, the Registrar must register the agreement. If the conditions are not satisfied, the Registrar must not register the agreement.

First condition

The first condition is that the following are parties to the agreement:

any person who is, at the end of the notice period, a registered native title body corporate in relation to any of the land or waters in the area covered by the agreement; and

any applicant who is, at the end of the notice period, a registered native title claimant in relation to any of the land or waters in the area covered by the agreement; and

any applicant who, after the end of the notice period, becomes a registered native title claimant in relation to any of the land or waters in the area covered by the agreement, where the application containing the claim was made before the end of the notice period and:

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

the claim is accepted by the Registrar for registration as a result of an application under subsection 190F(1), where the application was made not more than 28 days after the notice under subsection 190D(1) was given; or

the claim is accepted by the Registrar for registration as a result of notification given to the Registrar by the NNTT under section 190E on application under that section, where the application was made not more than 28 days after the notice under subsection 190D(1) was given; or

the claim is found to satisfy conditions equivalent to those set out in sections 190B and 190C under a provision of a law of a State or Territory to similar effect as section 190E or 190F, and the application under that provision was made within a time period corresponding to that set out in subparagraph (ii) of this paragraph.

The requirement that an applicant who is or becomes a registered native title claimant be a party to the agreement is satisfied if:

a majority of the persons who comprise the registered native title claimant are parties to the agreement, unless paragraph (b) applies; or

if conditions under the authority of the registered native title claimant provide for the persons who must become a party to the agreement—those persons are parties to the agreement.section 251BA on

The persons in the majority must notify the other persons who comprise the registered native title claimant within a reasonable period after becoming parties to the agreement as mentioned in paragraph (2A)(a). A failure to comply with this subsection does not invalidate the agreement.

Second condition

The second condition is that the Registrar considers that the requirements in paragraph 24CG(3)(b) (in summary, relating to identifying native title holders and ensuring that they have authorised the making of the agreement) have been met.

Matters to be taken into account

In deciding whether the requirements have been met, the Registrar must take into account:

the statements in the application; and

any information the Registrar is given on the matter by any representative Aboriginal/Torres Strait Islander body or by any other body or person;

and may, but need not, take into account any other matter or thing.

Subdivision D—Indigenous land use agreements (alternative procedure agreements)

An agreement meeting the requirements of sections 24DB to 24DF is an indigenous land use agreement.

Note: Subdivisions B and C provide for other kinds of indigenous land use agreements.

The agreement must be about one or more of the following matters in relation to an area:

the doing, or the doing subject to conditions (which may be about procedural matters), of particular future acts, or future acts included in classes;

particular future acts (other than intermediate period acts), or future acts (other than intermediate period acts) included in classes, that have already been done;

Note: Intermediate period acts are or can be validated only under Division 2A.

withdrawing, amending, varying or doing any other thing in relation to an application under Division 1 of Part 3 in relation to land or waters in the area;

the relationship between native title rights and interests and other rights and interests in relation to the area;

the manner of exercise of any native title rights and interests or other rights and interests in relation to the area;

providing a framework for the making of other agreements about matters relating to native title rights and interests;

compensation for any past act, intermediate period act or future act;

any other matter concerning native title rights and interests in relation to the area;

any matter concerning rights conferred by Subdivision Q (which gives certain persons covered by registered native title claims rights of access to non-exclusive agricultural and pastoral leases).

Note 1: If the agreement involves consent to the doing of a future act or class of future act, or the doing of a future act or class of future act subject to conditions, it must include a statement to that effect: see paragraph 24EB(1)(b).

Note 2: If a future act covered by such a statement would otherwise be subject to the “right to negotiate” provisions in Subdivision P, the agreement must also include a statement that those provisions are not intended to apply: see paragraph 24EB(1)(c).

The agreement must not provide for the extinguishment of any native title rights or interests.

Note: The non-extinguishment principle will apply to any future acts consented to in the agreement: see subsection 24EB(3).

No bodies corporate for whole of area

The agreement must not be made if there are registered native title bodies corporate in relation to all of the land and waters in the area.

Note: If there are registered native title bodies corporate for all of the area, an agreement under Subdivision B may be made.

Body corporate or representative body for area

There must be at least one registered native title body corporate in relation to land or waters in the area or at least one representative Aboriginal/Torres Strait Islander body for the area.

Native title group and relevant governments to be parties

All members of the native title group (see subsection (2)) in relation to the area must be parties to the agreement, as must every relevant government (see subsection (3)).

Native title group

(2) The native title group consists of:

all registered native title bodies corporate in relation to land or waters in the area; and

all representative Aboriginal/Torres Strait Islander bodies for the area.

Relevant government

(3) Each of the following is a relevant government:

the Commonwealth, if any of the area covered by the agreement is a place outside the jurisdictional limits of the States and Territories;

a State or Territory, if any of the area covered by the agreement is within the jurisdictional limits of the State or Territory.

Other parties

Any of the following may also be a party to the agreement:

any registered native title claimant in relation to land or waters in the area;

Note 1: Registered native title claimants are named on the Register of Native Title Claims as applicants in relation to claims to hold native title: see the definition of registered native title claimant in section 253.

Note 2: The agreement will bind all members of the native title claim group concerned: see paragraph 24EA(1)(b).

any other person who claims to hold native title in relation to land or waters in the area;

any other person.

A registered native title claimant is taken to be a party to the agreement if:

a majority of the persons who comprise the registered native title claimant are parties to the agreement, unless paragraph (b) applies; or

if conditions under the authority of the registered native title claimant provide for the persons who must become a party to the agreement—those persons are parties to the agreement.section 251BA on

The persons in the majority must notify the other persons who comprise the registered native title claimant within a reasonable period after becoming parties to the agreement as mentioned in paragraph (5)(a). A failure to comply with this subsection does not invalidate the agreement.

The agreement may be given for any consideration, and subject to any conditions, agreed by the parties (other than consideration or conditions that contravene any law).

Consideration may be freehold grant or other interests

Without limiting subsection (1), the consideration may be the grant of a freehold estate in any land, or any other interests in relation to land whether statutory or otherwise.

Persons wishing to make the agreement may request assistance from the NNTT or a recognised State/Territory body in negotiating the agreement.

Information obtained in providing assistance not to be used or disclosed in other contexts

(2) The NNTT must not use or disclose information to which it has had access only because it provided assistance in negotiating the agreement for any purpose other than providing that assistance without the prior consent of the person who provided the NNTT with the information.

Application

Any party to the agreement may, if all of the other parties agree, apply in writing to the Registrar for the agreement to be registered on the Register of Indigenous Land Use Agreements.

Things accompanying application

The application must be accompanied by a copy of the agreement and any other prescribed documents or information.

Registrar may assist parties

The Registrar may give such assistance as he or she considers reasonable to help a party to the agreement prepare the application and accompanying material.

Notice to be given

The Registrar must:

give notice of the agreement, in accordance with subsection (2), to any of the following who are not parties to the agreement:

the Commonwealth Minister;

if the agreement covers an area within the jurisdictional limits of a State or Territory—the State Minister or the Territory Minister for the State or Territory;

any local government body for the area covered by the agreement;

any other person whom the Registrar, having regard to the nature of the agreement, considers appropriate; and

notify the public in the determined way of the agreement in accordance with subsection (2).

Content of notice

The notice under paragraph (1)(a) or (b) must:

identify the area covered by the agreement, whether by including a map or otherwise; and

state the name of each party to the agreement and the address at which the party can be contacted; and

set out:

any statements included in the agreement that are of a kind mentioned in paragraph 24EB(1)(b) or (c) or 24EBA(1)(a); or

a summary of any statements included in the agreement that are of that kind, together with information about where further detail about the statements may be obtained; and

(d) include a statement that, within the period (the notice period) of 3 months after the notification day (see subsection (3)), any person claiming to hold native title in relation to any of the land or waters in the area covered by the agreement may:

obtain a copy of the agreement from the Registrar; and

object, in writing to the Registrar, against registration of the agreement on the ground that it would not be fair and reasonable to do so.

Notice to specify day

(3) The notice must specify a day as the notification day for the agreement. Each such notice in relation to the agreement must specify the same day.

Which days may be specified

That day must be a day by which, in the Registrar’s opinion, it is reasonable to assume that all notices under paragraph (1)(a) or (b) in relation to the agreement will have been received by, or will otherwise have come to the attention of, the persons who must be notified under those paragraphs.

Request for copy of agreement

If a person claiming to hold native title in relation to any of the land or waters covered by the agreement requests a copy of the agreement, the Registrar must comply with the request.

Making objections

Any person claiming to hold native title in relation to any of the land or waters in the area covered by the agreement may make an application to the Registrar objecting against registration of the agreement on the ground that it would not be fair and reasonable to register the agreement.

Note: Section 77A sets out the material and fees that must accompany the application, and includes a requirement to state reasons why it would not be fair and reasonable to register the agreement.

Assistance in withdrawing objection

If an objection is made within the notice period, the parties may request assistance from the NNTT or a recognised State/Territory body in negotiating with the person making the objection with a view to having the objection withdrawn.

Information obtained in providing assistance not to be used or disclosed in other contexts

(3) The NNTT must not use or disclose information to which it has had access only because it provided assistance under subsection (2) for any purpose other than providing that assistance without the prior consent of the person who provided the NNTT with the information.

The Registrar must, after the end of the notice period, decide whether or not to register the agreement on the Register of Indigenous Land Use Agreements.

Registration only if conditions satisfied

If a condition in subsection (2) is satisfied, the Registrar must register the agreement. If none of the conditions is satisfied, the Registrar must not register the agreement.

Conditions

The conditions are that:

no objection against registration of the agreement was made within the notice period; or

one or more objections against registration of the agreement were made within the notice period, but they have all been withdrawn; or

one or more objections against registration of the agreement were made during the notice period, all of them have not been withdrawn, but none of the persons making them has satisfied the NNTT or a recognised State/Territory body that it would not be fair and reasonable to register the agreement, having regard to:

the content of the agreement; and

the effect of the agreement on native title rights and interests; and

any benefits provided under the agreement to current native title holders (whether or not identified at the time the agreement is made) and their successors, and the way in which those benefits are to be distributed; and

any other relevant circumstance.

Note: Sections 77A and 77B deal with applications to the NNTT objecting against registration of the agreement.

The regulations may provide for procedures and conditions for the registration of agreements under this Subdivision on the Register of Indigenous Land Use Agreements. Agreements are to be registered if either those procedures and conditions or the ones set out in sections 24DH to 24DL are complied with.

Subdivision E—Effect of registration of indigenous land use agreements

While details of an agreement are entered on the Register of Indigenous Land Use Agreements, the agreement has effect, in addition to any effect that it may have apart from this subsection, as if:

it were a contract among the parties to the agreement; and

all persons holding native title in relation to any of the land or waters in the area covered by the agreement, who are not already parties to the agreement, were bound by the agreement in the same way as the registered native title bodies corporate, or the native title group, as the case may be.

Note: Section 199B specifies the details of the agreement that are required to be entered on the Register.

Only certain persons bound by agreement

To avoid doubt, a person is not bound by the agreement unless the person is a party to the agreement or a person to whom paragraph (1)(b) applies.

Legislation etc. to give effect to agreement not affected

If the Commonwealth, a State or a Territory is a party to an indigenous land use agreement whose details are entered in the Register of Indigenous Land Use Agreements, this Act does not prevent the Commonwealth, the State or the Territory doing any legislative or other act to give effect to any of its obligations under the agreement.

Coverage of section

The consequences set out in this section apply if:

a future act is done; and

when it is done, there are on the Register of Indigenous Land Use Agreements details of an agreement that includes a statement to the effect that the parties consent to:

the doing of the act or class of act in which the act is included; or

the doing of the act, or class of act in which the act is included, subject to conditions; and

if the act is, apart from this Subdivision, an act to which Subdivision P (which deals with the right to negotiate) applies—the agreement also includes a statement to the effect that Subdivision P is not intended to apply; and

Note: The fact that, under the “right to negotiate” provisions in Subdivision P, agreements can be made after notice of an act is given as mentioned in section 29 does not prevent an indigenous land use agreement being made that consents to the doing of the act.

if the act is the surrender of native title under an agreement covered by Subdivision B or C—the agreement also includes a statement to the effect that the surrender is intended to extinguish the native title rights and interests.

Validation of act

The act is valid to the extent that it affects native title in relation to land or waters in the area covered by the agreement.

To avoid doubt, removal of the details of an agreement from the Register of Indigenous Land Use Agreements does not affect the validity of a future act done while the details were on the Register.

Non-extinguishment principle

Unless a statement of the kind mentioned in paragraph (1)(d) in relation to the act is included in the agreement, the non-extinguishment principle applies to the act.

Restriction on compensation where Subdivision B agreement

In the case of an agreement under Subdivision B, the following are not entitled to any compensation for the act under this Act, other than compensation provided for in the agreement:

any registered native title body corporate who is a party to the agreement;

any common law holder of native title:

for whom such a registered native title body corporate holds native title rights and interests on trust; or

of whom such a registered native title body corporate is the agent or representative;

Note: For the definition of common law holder, see section 56.

any native title holder who is entitled to any of the benefits provided under the agreement.

Restriction on compensation where Subdivision C agreement

In the case of an agreement under Subdivision C, the following are not entitled to any compensation for the act under this Act, other than compensation provided for in the agreement:

any native title holder who is entitled to any of the benefits provided under the agreement;

any native title holder who authorised the making of the agreement as mentioned in:

if the application was certified by representative Aboriginal/Torres Strait Islander bodies as mentioned in paragraph 24CG(3)(a)—paragraph 203BE(5)(b); or

if the application included statements as mentioned in paragraph 24CG(3)(b) to the effect that certain requirements have been met (in summary, relating to identifying all native title holders and ensuring that they have authorised the making of the agreement)—that paragraph.

Restriction on compensation where Subdivision D agreement

In the case of an agreement under Subdivision D, no native title holder who is entitled to any of the benefits provided under the agreement is entitled to any compensation for the act under this Act, other than compensation provided for in the agreement.

Compensation under Division 5

If any native title holder in relation to the land or waters covered by the agreement (except one who, because of subsection (4), (5) or (6), is not entitled to compensation other than that provided for in the agreement) would be entitled to compensation under subsection 17(2) for the act on the assumption that it was a past act referred to in that subsection:

he or she is entitled, in accordance with Division 5, to compensation for the act; and

he or she may recover the compensation from:

if subparagraph (ii) does not apply—the Crown in right of the Commonwealth, a State or a Territory (according to whether the act is attributable to the Commonwealth, the State or the Territory); or

any person or persons who, under an agreement in writing with the Commonwealth, the State or the Territory, are liable to pay the compensation.

Coverage of section

The consequences set out in this section apply if:

details are on the Register of Indigenous Land Use Agreements of an agreement that includes a statement to the effect that the parties agree to:

the validating of a particular future act (other than an intermediate period act), or future acts (other than intermediate period acts) included in classes, that have already been done invalidly; or

Note: Intermediate period acts are or can be validated only under Division 2A.

the validating, subject to conditions, of a particular future act (other than an intermediate period act), or of future acts (other than intermediate period acts) included in classes, that have already been done invalidly; or

changing the effects, that are provided for by section 22B (which relates to native title rights and interests) or by a law of a State or Territory that contains provisions to the same effect, of an intermediate period act or of intermediate period acts included in classes; and

whichever of the Commonwealth, the State or the Territory to which the act or class of acts is attributable is a party to the agreement; and

where, whether under the agreement or otherwise, a person other than the Crown in right of the Commonwealth, a State or a Territory is or may become liable to pay compensation in relation to the act or class of acts—that person is a party to the agreement.

Commonwealth future acts valid

If subparagraph (1)(a)(i) or (ii) applies and the future act or class of future acts is attributable to the Commonwealth, the act or class of acts is valid, and is taken always to have been valid.

State or Territory laws may validate their future acts

If subparagraph (1)(a)(i) or (ii) applies and the future act or class of future acts is attributable to a State or Territory, a law of the State or the Territory may provide that the act or class of acts is valid, and is taken always to have been valid. The law may do so by applying to all acts, to classes of acts, or to particular acts, to which subparagraph (1)(a)(i) or (ii) applies in respect of which the requirements of subsection (1) are or become satisfied.

Non-extinguishment principle applies to future acts

If subsection (2) applies or a law makes provision in accordance with subsection (3), the non-extinguishment principle applies to the act or class of acts unless:

the act or class of acts is the surrender of native title; and

the agreement includes a statement to the effect that the surrender is intended to have extinguished the native title rights and interests.

Compensation consequences of future acts

If subsection (2) applies or a law makes provision in accordance with subsection (3), the consequences set out in subsection 24EB(4), (5) or (6), and the consequences set out in subsection 24EB(7), apply to the act or to each of the acts in the class.

Changing the effects of validated acts

If subparagraph (1)(a)(iii) applies, the effects mentioned in that subparagraph are changed in accordance with the agreement.

Removal of agreement from the Register

To avoid doubt, removal of the details of an agreement from the Register of Indigenous Land Use Agreements does not affect:

the validity of a future act validated by subsection (2) or a law of a State or Territory mentioned in subsection (3); or

the effects of an intermediate period act that have been changed under subsection (6).

The fact that this Subdivision deals with agreements with native title holders that relate to their native title rights and interests does not imply that the Commonwealth, a State or a Territory cannot:

make other agreements; or

legislate in relation to the making of other agreements;

with native title holders that relate to their native title rights and interests (other than agreements consenting to the doing of future acts).

If the details of an agreement are entered on the Register of Indigenous Land Use Agreements, the agreement has effect, for the purposes of this Act, as if the agreement included any amendments of the agreement that:

have been agreed to by the parties to the agreement; and

have been notified to the Registrar in writing by the parties;

but only so far as the amendments:

update property descriptions, but not so as to result in the inclusion of any area of land or waters not previously covered by the agreement; or

update a description identifying a party to the agreement, including where a party has assigned or otherwise transferred rights or liabilities under the agreement; or

do a thing specified in a legislative instrument made under subsection (3).

If the details of an agreement are entered on the Register of Indigenous Land Use Agreements, the agreement has effect, for the purposes of this Act, as if it did not include any amendments other than those that have effect because of subsection (1).

Note: An application for registration of such an agreement as amended could be made under Subdivision B, C or D.

Instrument specifying a thing

The Commonwealth Minister may, by legislative instrument, specify a thing that an amendment to an agreement may do for the purposes of paragraph (1)(e).

Subdivision F—Future acts: if procedures indicate absence of native title

If an area is subject to section 24FA protection (see sections 24FB, 24FC and 24FD) at a particular time:

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

if such an act extinguishes native title to any extent—the native title holders are entitled to compensation, in accordance with Division 5, for the act in so far as it has that effect; and

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

Who pays compensation

The native title holders may recover the compensation from:

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

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

An area is subject to section 24FA protection at a particular time if:

before that time, a non-claimant application (see section 253), or a corresponding application for an approved determination of native title under a law of a State or Territory, has been made by or on behalf of a Minister, the Crown in any capacity, or a statutory authority; and

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

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

at the end of that period, there is no relevant native title claim (see section 24FE) covering the area or a part of the area; and

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

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

An area is subject to section 24FA protection at a particular time if:

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

the application is not covered by paragraph 24FB(a); and

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

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

either:

at the end of that period, there is no relevant native title claim (see section 24FE) covering the area; or

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

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

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

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

For the purposes of this Subdivision, there is a relevant native title claim covering an area at the end of the period mentioned in paragraph 24FB(c) or 24FC(d) if:

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

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

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

the claim is accepted by the Registrar for registration as a result of an application under subsection 190F(1) and the application was made not more than 28 days after the notice under subsection 190D(1) was given; or

the claim is accepted by the Registrar for registration as a result of notification given to the Registrar by the NNTT under section 190E on application under that section, where the application was made not more than 28 days after the notice under subsection 190D(1) was given; or

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

Subdivision G—Future acts and primary production

Primary production activity

(1) The expression primary production activity includes the following:

cultivating land;

maintaining, breeding or agisting animals;

taking or catching fish or shellfish;

forest operations (defined in section 253);

(e) horticultural activities (see horticulture);section 253 for the definition of

aquacultural activities;

leaving fallow or de-stocking any land in connection with the doing of any thing that is a primary production activity.

Mining excluded

(2) The expression primary production activity does not include mining.

This section applies to a future act if:

a non-exclusive agricultural lease (see 23 December 1996; andsection 247B) or non-exclusive pastoral lease (see section 248B) was granted on or before

the grant was valid (including because of Division 2 or 2A); and

Note: As at the commencement of this section, grants before 1 January 1994 that were invalid because of native title have been validated by or under Division 2.

the future act takes place after 23 December 1996; and

the future act permits or requires the carrying on of any of the following while the lease (including as renewed on one or more occasions) is in force:

a primary production activity (see section 24GA) on the area covered by the lease; or

another activity, on the area covered by the lease, that is associated with or incidental to a primary production activity covered by subparagraph (i), provided that, when the other activity is being carried on, the majority of the area covered by the lease is used for primary production activities; and

the future act could have been validly done or authorised at some time before 31 March 1998, if any native title in relation to the area covered by the lease had not then existed.

Note: For the renewal, re-grant, re-making or extension of certain acts covered by this section, see Subdivision I.

Farm tourism included

This section applies to a future act that:

takes place after 23 December 1996; and

permits or requires a farm tourism activity in the area covered by a lease meeting the requirements of paragraphs (1)(a) and (b) while the lease is in force (including as renewed on one or more occasions).

Exception to subsection (2)

However, this section does not apply to a future act permitting or requiring farm tourism if the act permits or requires tourism that involves observing activities or cultural works of Aboriginal peoples or Torres Strait Islanders.

Certain acts not covered

This section does not apply to a future act if:

where the lease covered by paragraph (1)(a) is a non-exclusive pastoral lease covering an area greater than 5,000 hectares—the act has the effect that the majority of the area covered by the lease is required or permitted to be used for purposes other than pastoral purposes; or

in any case—the act converts a lease covered by paragraph (1)(a) into a lease conferring a right of exclusive possession, or into a freehold estate, over any of the land or waters covered by the lease.

Note: If such an act is done in exercise of a legally conferred right, it could be covered by section 24ID. A lease conferring such rights or a freehold estate could be granted after a compulsory acquisition of native title under section 24MD or under certain indigenous land use agreements.

Validation of act

If this section applies to a future act, the act is valid.

Non-extinguishment principle

The non-extinguishment principle applies to the act.

Compensation

The native title holders concerned are entitled to compensation for the act in accordance with Division 5.

Who pays compensation

The compensation is payable by:

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

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

Notification

If:

the primary production activity mentioned in subparagraph (1)(d)(i) or (ii) is forest operations, a horticultural activity or an aquacultural activity; or

the lease mentioned in paragraph (1)(a) is a non-exclusive pastoral lease and the primary production activity mentioned in subparagraph (1)(d)(i) or (ii) is an agricultural activity;

before the future act is done, the person proposing to do the act must:

notify, in the way determined, by legislative instrument, by the Commonwealth Minister, any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the land or waters covered by the non-exclusive agricultural lease or non-exclusive pastoral lease that the act, or acts of that class, are to be done in relation to the particular land or waters; and

give them an opportunity to comment on the act or class of acts.

This section applies to an activity if:

a non-exclusive agricultural lease (see 23 December 1996; andsection 247B) or non-exclusive pastoral lease (see section 248B) was granted on or before

the grant was valid (including because of Division 2 or 2A); and

Note: As at the commencement of this section, grants before 1 January 1994 that were invalid because of native title have been validated by or under Division 2.

the activity is the carrying on, after 23 December 1996 and while the lease (including as renewed on one or more occasions) is in force, of any of the following:

a primary production activity on the area covered by the lease; or

another activity, on the area covered by the lease, that is associated with or incidental to a primary production activity covered by subparagraph (i), provided that, when the other activity is being carried on, the majority of the area covered by the lease is used for primary production activities; and

at some time before 31 March 1998, the activity could have been done under any legislation then in force, or under any lease, licence, permit or authority that could have then been issued, in relation to the area covered by the lease, if any native title in relation to the area covered by the lease had not then existed.

Activities prevail over native title etc.

To avoid doubt:

the doing of any activity mentioned in paragraph (1)(c) prevails over any native title rights and interests and any exercise of those rights and interests, but does not extinguish them; and

the existence and exercise of native title rights and interests do not prevent the carrying on of any such activity.

Note: This subsection is not intended to imply that the person carrying on the activity is not subject to the laws of a State or Territory.

Compensation

Native title holders are not entitled to compensation under this Act for the carrying on of the activity.

Note: Any compensation to which the native title holders may be entitled under this Act for the grant of the lease, or other authority for the doing of the activity, may take into account the doing of the activity.

This section applies to a future act if:

a freehold estate, an agricultural lease (see 23 December 1996; andsection 247) or a pastoral lease (see section 248) was granted on or before

the grant was valid (including because of Division 2 or 2A); and

Note: As at the commencement of this section, grants before 1 January 1994 that were invalid because of native title have been validated by or under Division 2.

the future act takes place after 23 December 1996; and

the future act is not:

the grant of a lease; or

any act that confers a right of exclusive possession over land; and

the future act permits or requires the carrying on of grazing, or an activity consisting of or relating to gaining access to or taking water, that:

takes place while the freehold estate exists or the agricultural lease or pastoral lease (including as renewed on one or more occasions) is in force; and

is directly connected to the carrying on of any primary production activity on the area covered by the freehold estate or the agricultural lease or pastoral lease; and

takes place in an area adjoining or near the area covered by the freehold estate or the agricultural lease or pastoral lease; and

does not prevent native title holders in relation to land or waters in the area in which the activity will be carried on from having reasonable access to the area; and

if:

before the future act is done, an approved determination of native title is made in relation to the land or waters on which any activity permitted or required by the future act takes place; and

the determination is that native title exists in relation to the land or waters and that the native title rights and interests confer exclusive possession of the land or waters on the native title holders;

the doing of the activity is not inconsistent with the exercise of the native title rights and interests.

Validation of act

Example 1: An example of an act covered by this section is the conferral of rights to graze cattle in an area adjoining that covered by an agricultural lease or pastoral lease, if the cattle are also grazed in the area covered by the lease.

Example 2: Another example is the conferral of rights to take water from an area near that covered by an agricultural lease or pastoral lease, if the water is for use in carrying on primary production activities in the area covered by the lease.

Note: For the renewal, re-grant, re-making or extension of certain acts covered by this section, see Subdivision I.

If this section applies to a future act, the act is valid.

Non-extinguishment principle

The non-extinguishment principle applies to the act.

Compensation

The native title holders concerned are entitled to compensation for the act in accordance with Division 5.

Who pays compensation

The compensation is payable by:

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

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

Notification

Before the act is done, the person proposing to do the act must:

notify, in the way determined, by legislative instrument, by the Commonwealth Minister, any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the land or waters that will be affected by the act that the act, or acts of that class, are to be done in relation to the land or waters concerned; and

give them an opportunity to comment on the act or class of acts.

This section applies to a future act if:

a non-exclusive agricultural lease (see 23 December 1996; andsection 247B) or a non-exclusive pastoral lease (see section 248B) was granted on or before

the grant was valid (including because of Division 2 or 2A); and

Note: As at the commencement of this section, grants before 1 January 1994 that were invalid because of native title have been validated by or under Division 2.

the future act takes place after 23 December 1996 and while the lease (including as renewed on one or more occasions) is in force; and

the future act is not the grant of a lease; and

the future act confers on any person (including the lessee) a right:

to cut and remove timber; or

to extract, obtain or remove sand, gravel, rocks, soil or other resources (except so far as doing so constitutes mining);

from the area covered by the non-exclusive agricultural lease or non-exclusive pastoral lease; and

before the future act is done, the person proposing to do the act:

has notified, in the way determined, by legislative instrument, by the Commonwealth Minister, any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the land or waters covered by the non-exclusive agricultural lease or non-exclusive pastoral lease that the act, or acts of that class, are to be done in relation to the particular land or waters; and

has given them an opportunity to comment on the act or class of acts.

Note: For the renewal, re-grant, re-making or extension of certain acts covered by this section, see Subdivision I.

Validation of act

The future act is valid.

Non-extinguishment principle

The non-extinguishment principle applies to the act.

Compensation

The native title holders concerned are entitled to compensation for the act in accordance with Division 5.

Who pays compensation

The compensation is payable by:

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

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

Subdivision H—Management of water and airspace

Legislative acts

This section applies to a future act consisting of the making, amendment or repeal of legislation in relation to the management or regulation of:

surface and subterranean water; or

living aquatic resources; or

airspace.

In this subsection, water means water in all its forms and management or regulation of water includes granting access to water, or taking water.

Leases, licences etc.

This section also applies to a future act consisting of the grant of a lease, licence, permit or authority under legislation that:

is valid (including because of this Act); and

relates to the management or regulation of:

surface and subterranean water; or

living aquatic resources; or

airspace.

In this paragraph, water means water in all its forms and management or regulation of water includes granting access to water, or taking water.

Validity of act

The act is valid.

Non-extinguishment principle

The non-extinguishment principle applies to the act.

Compensation

The native title holders concerned are entitled to compensation for the act in accordance with Division 5.

Who pays compensation

The compensation is payable by:

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

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

Notification

Before an act covered by subsection (2) is done, the person proposing to do the act must:

notify, in the way determined, by legislative instrument, by the Commonwealth Minister, any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the land or waters that will be affected by the act, or acts of that class, that the act, or acts of that class, are to be done; and

give them an opportunity to comment on the act or class of acts.

Subdivision I—Renewals and extensions etc.

This Subdivision applies to a future act if the act is:

a pre-existing right-based act (see section 24IB); or

a permissible lease etc. renewal (see section 24IC).

A future act is a pre-existing right-based act if it takes place:

in exercise of a legally enforceable right created by any act done on or before 23 December 1996 that is valid (including because of Division 2 or 2A); or

in good faith in giving effect to, or otherwise because of, an offer, commitment, arrangement or undertaking made or given in good faith on or before 23 December 1996, and of which there is written evidence created at or about the time the offer, commitment, arrangement or undertaking was made.

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

it is:

the renewal; or

the re-grant or re-making; or

the extension of the term;

of a lease, licence, permit or authority (the original lease etc.) that is valid (including because of Division 2 or 2A); and

any of the following subparagraphs applies:

the original lease etc. was granted on or before 23 December 1996;

the grant of the original lease etc. was a permissible lease etc. renewal or a pre-existing right-based act;

the original lease etc. was created by an act covered by section 24GB, 24GD, 24GE or 24HA (which deal with certain acts in relation to primary production activities or involving management or regulation of water and airspace); and

the future act does not:

confer a right of exclusive possession over any of the land or waters covered by the original lease etc.; or

otherwise create a larger proprietary interest in the land or waters than was created by the original lease etc.; or

create a proprietary interest over any of the land or waters covered by the original lease etc., where the original lease etc. created only a non-proprietary interest; or

if the original lease etc. was a non-exclusive pastoral lease covering an area greater than 5,000 hectares and the majority of the area covered was not required or permitted to be used for purposes other than pastoral purposes—have the effect that the majority of the area covered by the renewed, re-granted, re-made or extended lease is required or permitted to be used for purposes other than pastoral purposes; and

if the original lease etc. contains, or is subject to, a reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders—the renewed, re-granted, re-made or extended lease, licence, permit or authority contains, or is subject to, the same reservation or condition; and

if the original lease etc. did not permit mining—the renewed, re-granted, re-made or extended lease, licence, permit or authority does not permit mining.

Replacement by 2 or more leases etc.

(2) If 2 or more leases, licences, permits or authorities are granted in place of, respectively, a single lease, licence, permit or authority, then, for the purposes of subsection (1), each of the 2 or more grants is taken to be a renewal of the single lease, licence, permit or authority.

Replacing 2 or more leases etc. with a single lease etc.

(2A) If a single lease, licence, permit or authority is granted in place of, respectively, 2 or more leases, licences, permits or authorities (the original leases etc.), then:

for the purpose of subsection (1), the single grant is taken to be a renewal of the original leases etc.; and

paragraphs (1)(b) to (e) apply as if a reference in those paragraphs to the original lease etc. were a reference to the original leases etc.

Features that do not prevent a lease etc. from being a renewal

The features listed in subsection (4) do not prevent:

(a) an act from being the renewal, re-grant, re-making, or extension of the term, of a lease, licence, permit or authority (the old authority) for the purposes of subsection (1) (the renewed, re-granted, re-made or extended lease, licence, permit or authority being the new authority); or

(b) 2 or more leases, licences, permits or authorities (each of which is a new authority) from being granted in place of a single lease, licence, permit or authority (the old authority) for the purposes of subsection (2).

Features

The features are as follows:

the new authority, or the new authorities together, cover a smaller area than the old authority;

the term of the new authority, or of any of the new authorities, is longer than the term of the old authority;

the new authority or any of the new authorities is a perpetual lease (other than a mining lease);

if the new authority or any of the new authorities is a non-exclusive agricultural lease or a non-exclusive pastoral lease—the new authority permits or requires the carrying on of an activity that the old authority did not permit or require and that consists of:

a primary production activity (see section 24GA); or

another activity, on the area covered by the new authority or of any of the new authorities, that is associated with or incidental to a primary production activity, provided that, when the other activity is being carried on, the use of the majority of the area covered by the new authority, or the new authorities together, will be for primary production activities.

If this Subdivision applies to a future act:

subject to Subdivision P (which deals with the right to negotiate), the act is valid; and

Note: Subdivision P applies only to certain renewals of mining leases etc.: see subsections 26(1A) and 26D(1).

if the act consists of the grant of a freehold estate, or the conferral of a right of exclusive possession, over particular land or waters—the act extinguishes any native title in relation to the land or waters; and

Note: The only acts to which this paragraph applies are certain acts covered by section 24IB.

in any other case—the non-extinguishment principle applies to the act; and

in any case—the native title holders are entitled to compensation for the act in accordance with Division 5.

Who pays compensation

The compensation is payable by:

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

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

Notification

If paragraph (1)(b) applied in relation to the future act, then, before the act is done, the person proposing to do the act must:

notify, in the way determined, by legislative instrument, by the Commonwealth Minister, any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the land or waters that will be affected by the act that the act, or acts of that class, are to be done in relation to the land or waters concerned; and

give them an opportunity to comment on the act or class of acts.

Other procedural rights

If:

the act is a permissible lease etc. renewal of a non-exclusive agricultural lease (see section 247B) or a non-exclusive pastoral lease (see section 248B); and

the act is covered by paragraph 24IC(4)(b) or (c);

subsection 24MD(6B) applies to the act as if the act were a compulsory acquisition, of the kind mentioned in that subsection, of native title rights and interests in relation to the land or waters that will be affected by the act, done by:

if the act is attributable to the Commonwealth—the Commonwealth; or

if the act is attributable to a State or Territory—that State or Territory.

Subdivision JA—Public housing etc.

Coverage of Subdivision

This Subdivision applies to a future act if:

it relates, to any extent, to an onshore place; and

it relates to:

an area over which a freehold estate exists or a lease is in force, or that is vested in any person, where the grant of the freehold estate or lease or the vesting took place under legislation that makes provision for the grant or vesting of such things only to, in or for the benefit of Aboriginal peoples or Torres Strait Islanders; or

an area that is held expressly for the benefit of, or held on trust, or reserved, expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders; and

it either:

(i) permits or requires the construction, operation, use, maintenance or repair by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any of its capacities (the action body), of any of the things listed in subsection (3); or

(ii) consists of the construction, operation, use, maintenance or repair by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any of its capacities (the action body), of any of the things listed in subsection (3); and

it is done or commenced as follows:

(i) if the act is covered by subparagraph (c)(i)—it is done within the period of 20 years beginning on the day on which the Native Title Amendment Act (No. 1) 2010 commences;

(ii) if the act is covered by subparagraph (c)(ii)—it is commenced within the period of 20 years beginning on the day on which the Native Title Amendment Act (No. 1) 2010 commences; and

a law of the Commonwealth, a State or a Territory makes provision in relation to the preservation or protection of areas, or sites, that may be:

in the area in which the act is done; and

of particular significance to Aboriginal peoples or Torres Strait Islanders in accordance with their traditions.

Compulsory acquisitions not covered

To avoid doubt, this Subdivision does not apply to a future act that is the compulsory acquisition of the whole or part of any native title rights and interests.

Public housing etc.

For the purposes of paragraph (1)(c), the things are as follows:

public housing provided for Aboriginal people or Torres Strait Islanders living in, or in the vicinity of, the area;

any of the following that benefit those people:

public education facilities;

public health facilities;

police facilities;

emergency facilities;

staff housing provided in connection with housing or facilities covered by paragraph (a) or (b);

any of the following provided in connection with housing or facilities covered by paragraph (a), (b) or (c):

things listed in subsection 24KA(2);

sewerage treatment facilities;

things prescribed by the regulations.

Note: This subsection does not mean that facilities that benefit Aboriginal people or Torres Strait Islanders could not also benefit other people.

Validation of act

If this Subdivision applies to a future act, then, subject to subsections (5) and (6), the act is valid.

An act to which this Subdivision applies is invalid to the extent that it affects native title unless:

if the act is covered by subparagraph (1)(c)(i)—before it is done; or

if the act is covered by subparagraph (1)(c)(ii)—before it is commenced;

the action body:

gives notice of, and an opportunity to comment on, the act in accordance with subsections (10) to (12); and

provides a report to the Commonwealth Minister in accordance with subsection (16).

An act to which this Subdivision applies is invalid to the extent that it affects native title if:

if the act is covered by subparagraph (1)(c)(i)—it is done before; or

if the act is covered by subparagraph (1)(c)(ii)—it is commenced before;

the end of the consultation period.

Non-extinguishment principle

The non-extinguishment principle applies to the act.

Compensation

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

Who pays compensation

The native title holders may recover the compensation from:

if the act is attributable to the Commonwealth:

if a law of the Commonwealth provides that a person other than the Crown in right of the Commonwealth is liable to pay the compensation—that person; or

if not—the Crown in right of the Commonwealth; or

if the act is attributable to a State or Territory:

if a law of the State or Territory provides that a person other than the Crown in any capacity is liable to pay the compensation—that person; or

if not—the Crown in right of the State or Territory.

Notice

The action body must:

notify each of the following, in the way determined, by legislative instrument, by the Commonwealth Minister, that the act is to be done:

any registered native title claimant in relation to land or waters in the area;

any registered native title body corporate in relation to land or waters in the area;

any representative Aboriginal/Torres Strait Islander body in relation to land or waters in the area; and

give them an opportunity to comment on the act.

The notice must:

(a) specify a day as the notification day for the act; and

contain statements to the effect that:

comments on the act; and

requests under subsection (13) to be consulted about the act;

must be made within the period of 2 months that begins on the notification day.

The notification day must be a day by which, in the action body’s opinion, it is reasonable to assume that all notices under subsection (10) in relation to the act will have been received by, or will otherwise have come to the attention of, the persons who must be notified under that subsection.

Consultation

Any registered native title claimant or registered native title body corporate may, in writing, request to be consulted about the doing of the act so far as it affects their registered native title rights and interests.

If a request to be consulted is made within the time specified in paragraph (11)(b), the action body must consult with the claimant or body corporate about ways of minimising the act’s impact on registered native title rights and interests in relation to land or waters in the area, and, if relevant, any access to the land or waters or the way in which any thing authorised by the act might be done.

In consulting with a claimant or body corporate, the action body must comply with any requirements determined, by legislative instrument, by the Commonwealth Minister.

Report

The action body must provide the Commonwealth Minister with a report on the things done under subsections (10) to (12) and (14) and (15) in relation to the act. The report:

must be provided:

in writing in accordance with any requirements determined, by legislative instrument, by the Commonwealth Minister; and

whether or not there were comments on, or requests to be consulted about, the act; and

may be published by the Commonwealth Minister.

Note: The Privacy Act 1988 contains provisions relevant to the use and disclosure of information.

Multiple action bodies

If there are 2 or more action bodies for the act, it is sufficient if only one of those bodies meets the requirements of subsections (10) to (12) and (14) to (16) in relation to the act.

Multiple acts

Notice of 2 or more acts to which this Subdivision applies may be given in the same notice under subsection (10).

Definitions

In this section:

consultation period means the period that:

begins on the notification day; and

ends:

if no claimant or body corporate requests under subsection (13) to be consulted about the act—2 months later; or

if one or more claimants or bodies corporate request to be consulted about the act—4 months later, or at such earlier time after the time specified in paragraph (i) as each claimant and body corporate that requested to be consulted has notified, in writing, that they have been consulted.

registered native title rights and interests means native title rights and interests described in an entry on:

the Register of Native Title Claims; or

the National Native Title Register.

Subdivision J—Reservations, leases etc.

Reservations etc.

(1) This Subdivision applies to a future act (the later act) if:

(a) an act (the earlier act) took place before the later act and on or before 23 December 1996; and

the earlier act was valid (including because of Division 2 or 2A); and

the earlier act:

was done by the Crown in right of the Commonwealth, a State or Territory; or

consisted of the making, amendment or repeal of legislation by the Commonwealth, a State or Territory: and

(d) the earlier act contained, made or conferred a reservation, proclamation, dedication, condition, permission or authority (the reservation) under which the whole or part of any land or waters was to be used for a particular purpose; and

the later act is done in good faith:

under or in accordance with the reservation; or

in the area covered by the reservation, so long as the act’s impact on native title is no greater than the impact that any act that could have been done under or in accordance with the reservation would have had.

Example 1: A future act consisting of the creation of a national park management plan might be covered by subparagraph (e)(i), if the land concerned was reserved for the establishment of the national park before 23 December 1996.

Example 2: A future act consisting of the grant of a forestry licence might be covered by that subparagraph, if the grant is done under or in accordance with a dedication for forestry purposes made before 23 December 1996.

Example 3: Subparagraph (e)(ii) might apply if particular land was reserved as a hospital site before 23 December 1996, and instead a school is later built on the land.

Leases

(2) This Subdivision also applies to a future act (the later act) if:

(a) an act (the earlier act) took place before the later act and on or before 23 December 1996; and

the earlier act was valid (including because of Division 2 or 2A); and

the earlier act was done by the Crown in right of the Commonwealth, a State or a Territory; and

the earlier act consisted of the grant of a lease to a statutory authority of the Commonwealth, the State or the Territory, where:

under the lease, the whole or part of any land or waters covered by the lease was to be used for a particular purpose; or

there is written evidence, created at any time on or before 23 December 1996 by the Commonwealth, the State or the Territory, that the whole or part of any land or waters covered by the lease was to be used for a particular purpose; and

the later act is done in good faith and consists of the use, by the statutory authority or any person, of the land or waters for the particular purpose.

Validation of act

If this Subdivision applies to a future act, the act is valid.

Extinguishment consequences—public works

If the act consists of the construction or establishment of a public work:

the act extinguishes any native title in relation to the land or waters on which the public work (on completion of its construction or establishment) is situated; and

the extinguishment is taken to have happened when the construction or establishment of the public work began.

Extinguishment consequences—not public works

If the act does not consist of the construction or establishment of a public work, the non-extinguishment principle applies to the act.

Compensation

The native title holders are entitled to compensation for the act in accordance with Division 5.

Who pays compensation

The compensation is payable by:

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

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

Notification of public works

If the act consists of the construction or establishment of a public work, then, before the act is done, the person proposing to do the act must:

notify, in the way determined, by legislative instrument, by the Commonwealth Minister, any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the land or waters covered by the reservation or lease that the act, or acts of that class, are to be done in relation to the land or waters; and

give them an opportunity to comment on the act or class of acts.

Notification of national, State and Territory park management plans

If the act consists of the creation of a plan for the management of a national, State or Territory park intended to preserve the natural environment of an area, then, before the act is done, the person proposing to do the act must:

notify, in the way determined, by legislative instrument, by the Commonwealth Minister, any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the land or waters covered by the plan that the act is to be done in relation to the land or waters; and

give them an opportunity to comment on the act.

Subdivision K—Facilities for services to the public

Coverage of Subdivision

This Subdivision applies to a future act if:

it relates, to any extent, to an onshore place; and

it either:

permits or requires the construction, operation, use, maintenance or repair, by or on behalf of any person, of any of the things listed in subsection (2) that is to be operated, or is operated, for the general public; or

consists of the construction, operation, use, maintenance or repair, by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any of its capacities, of any of the things listed in subsection (2) that is to be operated, or is operated, for the general public; and

it does not prevent native title holders in relation to land or waters on which the thing is located or to be located from having reasonable access to such land or waters in the vicinity of the thing, except:

while the thing is being constructed; or

for reasons of health and safety; and

a law of the Commonwealth, a State or a Territory makes provision in relation to the preservation or protection of areas, or sites, that may be:

in the area in which the act is done; and

of particular significance to Aboriginal peoples or Torres Strait Islanders in accordance with their traditions.

Compulsory acquisitions not covered

To avoid doubt, this Subdivision does not apply to a future act that is the compulsory acquisition of the whole or part of any native title rights and interests.

Facilities etc.

For the purposes of paragraph (1)(b), the things are as follows:

a road, railway, bridge or other transport facility (other than an airport or port);

a jetty or wharf;

a navigation marker or other navigational facility;

an electricity transmission or distribution facility;

lighting of streets or other public places;

a gas transmission or distribution facility;

a well, or a bore, for obtaining water;

a pipeline or other water supply or reticulation facility;

a drainage facility, or a levee or other device for management of water flows;

an irrigation channel or other irrigation facility;

a sewerage facility, other than a treatment facility;

a cable, antenna, tower or other communication facility;

an automatic weather station;

any other thing that is similar to any one or more of the things mentioned in the paragraphs above.

Validation of act

If this Subdivision applies to a future act, the act is valid.

Non-extinguishment principle

The non-extinguishment principle applies to the act.

Compensation

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

Who pays compensation

The native title holders may recover the compensation from:

if the act is attributable to the Commonwealth:

if a law of the Commonwealth provides that a person other than the Crown in right of the Commonwealth is liable to pay the compensation—that person; or

if not—the Crown in right of the Commonwealth; or

if the act is attributable to a State or Territory:

if a law of the State or Territory provides that a person other than the Crown in any capacity is liable to pay the compensation—that person; or

if not—the Crown in right of the State or Territory.

Procedural rights

The native title holders, and any registered native title claimants in relation to land or waters in the area concerned, have the same procedural rights as they would have in relation to the act on the assumption that they instead held:

to the extent (if any) that the land concerned is covered by a non-exclusive agricultural lease (see section 247B) or a non-exclusive pastoral lease (see section 248B)—a lease of that kind; or

to the extent (if any) that paragraph (a) does not apply—ordinary title;

covering any land concerned or covering the land adjoining, or surrounding, any waters concerned.

Native title rights and interests to be considered

If, in the exercise of those procedural rights, the native title holders are entitled to have matters considered, those matters include their native title rights and interests.

Satisfying the right to be notified

If:

because of subsection (7) or any law of the Commonwealth, a State or a Territory, the native title holders have a procedural right that requires another person to notify them of the act; and

there is no registered native title body corporate, or there are no registered native title bodies corporate, in relation to the whole of the land or waters in the area concerned;

then one way in which the person may give the required notification is by notifying, in the way determined, by legislative instrument, by the Commonwealth Minister for the purposes of this subsection the following that the act is to take place:

any representative Aboriginal/Torres Islander bodies for that part of the area concerned for which there is no registered native title body corporate;

any registered native title claimants in relation to land or waters in that part of the area concerned for which there is no registered native title body corporate.

Satisfying other procedural rights

If:

because of subsection (7) or any law of the Commonwealth, a State or a Territory, the native title holders have a procedural right that requires another person to do any thing in relation to the native title holders; and

there is no registered native title body corporate, or there are no registered native title bodies corporate, in relation to the whole of the land or waters in the area concerned;

then one way in which the person may give effect to the requirement is:

by doing the thing in relation to any registered native title claimant in relation to land or waters in that part of the area concerned for which there is no registered native title body corporate; or

if there are no such registered native title claimants—by ensuring that any representative Aboriginal/Torres Strait Islander bodies for that part of the area concerned for which there is no registered native title body corporate have an opportunity to comment on the doing of the act.

Subdivision L—Low impact future acts

This Subdivision applies to a future act in relation to particular land or waters if:

the act takes place before, and does not continue after, an approved determination of native title is made in relation to the land or waters, if the determination is that native title exists; and

the act does not consist of, authorise or otherwise involve:

the grant of a freehold estate in any of the land or waters; or

the grant of a lease over any of the land or waters; or

the conferral of a right of exclusive possession over any of the land or waters; or

the excavation or clearing of any of the land or waters; or

mining (other than fossicking by using hand-held implements); or

the construction or placing on the land, or in the waters, of any building, structure, or other thing (other than fencing or a gate), that is a fixture; or

the disposal or storing, on the land or in the waters, of any garbage or any poisonous, toxic or hazardous substance.

Exclusion for public health or safety etc.

Subparagraph (1)(b)(iv) does not apply to:

excavation or clearing that is reasonably necessary for the protection of public health or public safety; or

tree lopping, clearing of noxious or introduced animal or plant species, foreshore reclamation, regeneration or environmental assessment or protection activities.

Validation of act

If this Subdivision applies to a future act, the act is valid.

Non-extinguishment

The non-extinguishment principle applies to the act.

Subdivision M—Acts passing the freehold test

This Subdivision applies to a future act if it is the making, amendment or repeal of legislation and:

the act applies in the same way to the native title holders concerned as it would if they instead held ordinary title to the land (or to the land adjoining, or surrounding, the waters) affected; or

the effect of the act on the native title in relation to the land or the waters is not such as to cause the native title holders to be in a more disadvantageous position at law than they would be if they instead held ordinary title to the land (or to the land adjoining, or surrounding, the waters).

Example 1: An example of a future act covered by paragraph (a) is the making of legislation that permits mining on land in respect of which there is either native title or ordinary title.

Example 2: An example of a future act covered by paragraph (b) is the amendment of legislation that permits mining on land that is subject to ordinary title so that it will also permit mining, on the same terms, on land in relation to which native title exists.

Freehold test

This Subdivision applies to a future act if:

it is an act other than the making, amendment or repeal of legislation; and

either:

the act could be done in relation to the land concerned if the native title holders concerned instead held ordinary title to it; or

the act could be done in relation to the waters concerned if the native title holders concerned held ordinary title to the land adjoining, or surrounding, the waters; and

a law of the Commonwealth, a State or a Territory makes provision in relation to the preservation or protection of areas, or sites, that may be:

in the area to which the act relates; and

of particular significance to Aboriginal peoples or Torres Strait Islanders in accordance with their traditions.

Example: An example of a future act covered by this subsection is the grant of a mining lease over land in relation to which there is native title when a mining lease would also be able to be granted over the land if the native title holders instead held ordinary title to it.

Opal or gem mining

This Subdivision also applies to a future act if:

it is an act other than the making, amendment or repeal of legislation; and

it is not covered by subsection (1); and

it consists of the creation or variation of a right to mine for opals or gems; and

a law of the Commonwealth, a State or a Territory makes provision in relation to the preservation or protection of areas, or sites, that may be:

in the area to which the act relates; and

of particular significance to Aboriginal peoples or Torres Strait Islanders in accordance with their traditions.

However, this Subdivision only applies to a future act to the extent that it relates to an onshore place. A reference to an act to which this Subdivision applies is to be read as referring to the act to that extent only.

Validation of act

If this Subdivision applies to a future act, then, subject to Subdivision P (which deals with the right to negotiate), the act is valid.

Extinguishment of native title by compulsory acquisition

If:

the act is the compulsory acquisition of the whole or part of any native title rights and interests under a law of the Commonwealth, a State or a Territory that permits both:

the compulsory acquisition by the Commonwealth, the State or the Territory of native title rights and interests; and

the compulsory acquisition by the Commonwealth, the State or the Territory of non-native title rights and interests in relation to land or waters; and

the whole, or the equivalent part, of all non-native title rights and interests, in relation to the land or waters to which the native title rights and interests that are compulsorily acquired relate, is also acquired (whether compulsorily or by surrender, cancellation or resumption or otherwise) in connection with the compulsory acquisition of the native title rights and interests; and

the practices and procedures adopted in acquiring the native title rights and interests are not such as to cause the native title holders any greater disadvantage than is caused to the holders of non-native title rights and interests when their rights and interests are acquired;

then:

the compulsory acquisition extinguishes the whole or the part of the native title rights and interests; and

if compensation on just terms is provided under a law of the Commonwealth, a State or a Territory to the native title holders for the compulsory acquisition, and they request that the whole or part of any such compensation should be in a form other than money, the person providing the compensation must:

consider the request; and

negotiate in good faith in relation to the request; and

if compensation on just terms is not provided under a law of the Commonwealth, a State or Territory to the native title holders for the compulsory acquisition, they are entitled to compensation for the acquisition in accordance with Division 5.

Note 1: Subdivision P (which deals with the right to negotiate) applies to some acquisitions.

Note 2: This subsection only deals with the case where native title rights and interests are compulsorily acquired. It is also possible for native title rights and interests to be acquired voluntarily by means of an indigenous land use agreement or an agreement covered by subsection (2A). In such cases, non-native title rights and interests could be acquired either compulsorily or by some other means (e.g. voluntarily).

Extinguishment of native title by surrender in course of right to negotiate process

If:

notice of a proposed compulsory acquisition of native title rights and interests is given in accordance with section 29 or with an equivalent alternative provision applicable under section 43 or 43A; and

an agreement arose out of negotiations in relation to the proposed compulsory acquisition of the native title rights and interests; and

the agreement includes a statement to the effect that an act consisting of the surrender of the whole or part of the native title rights and interests is intended to extinguish the whole or the part of the native title rights and interests;

then:

the surrender extinguishes the whole or the part of the native title rights and interests; and

no native title holder who is entitled to any benefit provided under the agreement is entitled to any compensation for the act under this Act, other than compensation provided for in the agreement; and

any other native title holder is entitled to compensation for the act in accordance with Division 5.

Non-extinguishment and compensation

In the case of any future act to which this Subdivision applies that is not covered by subsection (2) or (2A):

the non-extinguishment principle applies to the act; and

if the following conditions are satisfied:

the similar compensable interest test is satisfied in relation to the act; and

(ii) the law mentioned in similar compensable interest test) does not provide for compensation to the native title holders for the act;section 240 (which defines

the native title holders are entitled to compensation for the act in accordance with Division 5.

Who pays compensation

The native title holders may recover the compensation from:

if the act is attributable to the Commonwealth:

if a law of the Commonwealth provides that a person other than the Crown in right of the Commonwealth is liable to pay the compensation—that person; or

if not—the Crown in right of the Commonwealth; or

if the act is attributable to a State or Territory:

if a law of the State or Territory provides that a person other than the Crown in any capacity is liable to pay the compensation—that person; or

if not—the Crown in right of the State or Territory.

Exception for certain lessees

If:

the act is the compulsory acquisition of the whole or part of any native title rights and interests; and

the land or waters concerned are to any extent the subject of a non-exclusive agricultural lease or a non-exclusive pastoral lease;

then, despite subsection (4):

the native title holders are not entitled to recover the compensation from the lessee; and

if the act is attributable to the Commonwealth—the native title holders may recover the compensation from the Crown in right of the Commonwealth; and

if the act is attributable to a State or Territory—the native title holders may recover the compensation from the Crown in right of the State or Territory.

Consequences of certain acts

In the case of any future act to which this Subdivision applies, other than:

an act to which Subdivision P (which deals with the right to negotiate) applies; or

an act determined under section 26A to be an approved exploration etc. act; or

an act determined under section 26B to be an approved gold or tin mining act; or

an act covered by section 26C (which deals with opal or gem mining);

the consequences in subsections (6A) and (6B) apply.

Procedural rights

The native title holders, and any registered native title claimants in relation to the land or waters concerned, have the same procedural rights as they would have in relation to the act on the assumption that they instead held ordinary title to any land concerned and to the land adjoining, or surrounding, any waters concerned.

Other consequences

If the act is:

the compulsory acquisition of native title rights and interests for the purpose of conferring rights or interests in relation to the land or waters concerned on persons other than the Commonwealth, the State or the Territory to which the act is attributable; or

the creation or variation of a right to mine for the sole purpose of the construction of an infrastructure facility (see section 253) associated with mining;

the following consequences also apply:

the Commonwealth, the State or the Territory to which the act is attributable must notify each of the following:

(i) any registered native title claimant (a claimant) in relation to the land or waters; and

(ii) any registered native title body corporate (a body corporate), in relation to the land or waters; and

any representative Aboriginal/Torres Strait Islander body in relation to the land or waters; and

the Registrar;

that the act is to be done; and

any claimant or body corporate may object, within 2 months after the notification, to the doing of the act so far as it affects their registered native title rights and interests; and

either:

in a paragraph (a) case—the Commonwealth, the State or the Territory; or

in a paragraph (b) case—the person who requested or applied for the doing of the act;

must consult any claimants, and bodies corporate, who object, about ways of minimising the act’s impact on registered native title rights and interests in relation to the land or waters, and, if relevant, any access to the land or waters or the way in which any thing authorised by the act might be done; and

if:

a claimant or body corporate objects, as mentioned in paragraph (d), to the doing of the act; and

8 months after the notification mentioned in paragraph (c), the objection has not been withdrawn;

the Commonwealth, the State or the Territory must ensure that the objection is heard by an independent person or body; and

if the independent person or body hearing any objection as mentioned in paragraph (f) makes a determination upholding the objection, or that contains conditions about the doing of the act that relate to registered native title rights and interests, the determination must be complied with unless:

the Minister of the Commonwealth, the State or the Territory responsible for indigenous affairs is consulted; and

the consultation is taken into account; and

it is in the interests of the Commonwealth, the State or the Territory not to comply with the determination.

Meaning of determination

In paragraph (6B)(g):

determination includes recommendation.

in the interests of the Commonwealth, the State or the Territory includes:

for the social or economic benefit of the Commonwealth, the State or the Territory (including of Aboriginal peoples and Torres Strait Islanders); and

in the interests of the relevant region or locality in the Commonwealth, the State or the Territory.

Satisfying the right to be notified

If:

because of subsection (6A) or any law of the Commonwealth, a State or a Territory, the native title holders have a procedural right that requires another person to notify them of the act; and

there is no registered native title body corporate, or there are no registered native title bodies corporate, in relation to the whole of the land or waters in the area concerned;

then one way in which the person may give the required notification is by notifying, in the way determined, by legislative instrument, by the Commonwealth Minister for the purposes of this subsection, the following that the act is to take place:

any representative Aboriginal/Torres Strait Islander bodies for that part of the area concerned for which there is no registered native title body corporate;

any registered native title claimants in relation to land or waters in that part of the area concerned for which there is no registered native title body corporate.

Satisfying other procedural rights

If:

because of subsection (6A) or any law of the Commonwealth, a State or a Territory, the native title holders have a procedural right that requires another person to do any thing in relation to the native title holders; and

there is no registered native title body corporate, or there are no registered native title bodies corporate, in relation to the whole of the land or waters in the area concerned;

then one way in which the person may give effect to the requirement is:

by doing the thing in relation to any registered native title claimant in relation to land or waters in that part of the area concerned for which there is no registered native title body corporate; or

if there are no such registered native title claimants—by ensuring that any representative Aboriginal/Torres Strait Islander bodies for that part of the area concerned for which there is no registered native title body corporate have an opportunity to comment on the doing of the act.

Subdivision N—Acts affecting offshore places

Coverage of Subdivision

This Subdivision applies to a future act to the extent that it relates to an offshore place. A reference to a future act to which this Subdivision applies is to be read as referring to the act to that extent only.

Validation of act

If this Subdivision applies to a future act, the act is valid.

Extinguishment of native title by compulsory acquisition

If:

the act is the compulsory acquisition of the whole or part of any native title rights and interests under a law of the Commonwealth, a State or a Territory that permits both:

the compulsory acquisition by the Commonwealth, the State or the Territory of native title rights and interests; and

the compulsory acquisition by the Commonwealth, the State or the Territory of non-native title rights and interests in relation to land or waters; and

the whole, or the equivalent part, of all non-native title rights and interests, in relation to the land or waters to which the native title rights and interests that are compulsorily acquired relate, is also acquired (whether compulsorily or by surrender, cancellation or resumption or otherwise) in connection with the compulsory acquisition of the native title rights and interests; and

the practices and procedures adopted in acquiring the native title rights and interests are not such as to cause the native title holders any greater disadvantage than is caused to the holders of non-native title rights and interests when their rights and interests are acquired;

then the compulsory acquisition extinguishes the whole or the part of the native title rights and interests.

Non-extinguishment principle

In the case of any other future act to which this Subdivision applies, the non-extinguishment principle applies to the act.

Compensation where compulsory acquisition

If this Subdivision applies to a future act consisting of the compulsory acquisition of the whole or part of any native title rights and interests:

if compensation on just terms is provided under a law of the Commonwealth, a State or a Territory to the native title holders for the acquisition, and they request that the whole or part of any such compensation should be in a form other than money, the person providing the compensation must:

consider the request; and

negotiate in good faith in relation to the request; and

if compensation on just terms is not provided under a law of the Commonwealth, a State or Territory to the native title holders for the acquisition, they are entitled to compensation for the acquisition in accordance with Division 5.

Compensation for other acts

In the case of any other future act to which this Subdivision applies, the native title holders are entitled to compensation for the act in accordance with Division 5.

Who pays compensation

The native title holders may recover the compensation from:

if the act is attributable to the Commonwealth:

if a law of the Commonwealth provides that a person other than the Crown in right of the Commonwealth is liable to pay the compensation—that person; or

if not—the Crown in right of the Commonwealth; or

if the act is attributable to a State or Territory:

if a law of the State or Territory provides that a person other than the Crown in any capacity is liable to pay the compensation—that person; or

if not—the Crown in right of the State or Territory.

Procedural rights

In the case of any future act to which this Subdivision applies, the native title holders, and any registered native title claimants in relation to land or waters in the area concerned, have the same procedural rights as they would have in relation to the act on the assumption that they instead held any corresponding rights and interests in relation to the offshore place that are not native title rights and interests.

Satisfying the right to be notified

If:

because of subsection (8) or any law of the Commonwealth, a State or a Territory, the native title holders have a procedural right that requires another person to notify them of the act; and

there is no registered native title body corporate, or there are no registered native title bodies corporate, in relation to the whole of the land or waters in the area concerned;

then one way in which the person may give the required notification is by notifying, in the way determined, by legislative instrument, by the Commonwealth Minister for the purposes of this subsection, the following that the act is to take place:

any representative Aboriginal/Torres Strait Islander bodies for that part of the area concerned for which there is no registered native title body corporate;

any registered native title claimants in relation to land or waters in that part of the area concerned for which there is no registered native title body corporate.

Satisfying other procedural rights

If:

because of subsection (8) or any law of the Commonwealth, a State or a Territory, the native title holders have a procedural right that requires another person to do any thing in relation to the native title holders; and

there is no registered native title body corporate, or there are no registered native title bodies corporate, in relation to the whole of the land or waters in the area concerned;

then one way in which the person may give effect to the requirement is:

by doing the thing in relation to any registered native title claimant in relation to land or waters in that part of the area concerned for which there is no registered native title body corporate; or

if there are no such registered native title claimants—by ensuring that any representative Aboriginal/Torres Strait Islander bodies for that part of the area concerned for which there is no registered native title body corporate have an opportunity to comment on the doing of the act.

Subdivision O—Future acts invalid unless otherwise provided

Unless a provision of this Act provides otherwise, a future act is invalid to the extent that it affects native title.

Subdivision P—Right to negotiate

In summary, this Subdivision applies to certain future acts done by the Commonwealth, a State or a Territory that are of any of the following kinds:

certain acts covered by section 24IC (which deals with permissible lease etc. renewals);

certain conferrals of mining rights;

certain compulsory acquisitions of native title rights and interests;

other acts approved by the Commonwealth Minister.

Before the future act is done, the parties must negotiate with a view to reaching an agreement about the act. However, in certain circumstances, the Commonwealth, State or Territory can limit its participation in negotiations if the other parties consent.

If they do not reach agreement, an arbitral body, or a Minister, will make a determination about the act instead.

If the procedures in this Subdivision are not complied with, the act will be invalid to the extent that it affects native title.

States and Territories may make their own laws as alternatives to this Subdivision. The Commonwealth Minister must be satisfied as to certain matters before such laws can take effect.

Note: The fact that action is being taken to comply with this Subdivision does not imply that action under another law, such as processing requests or applications in respect of the act, cannot be taken at the same time.

Subdivision applies to certain permissible lease etc. renewals

This Subdivision applies to a future act if:

section 24IC (which deals with permissible lease etc. renewals) applies to the act; and

(b) the act is done by the Commonwealth, a State or a Territory (the Government party); and

the renewal, re-grant, re-making or extension of the term of the lease, licence, permit or authority concerned creates a right to mine.

Subdivision also applies to certain future acts

This Subdivision also applies to a future act if:

Subdivision M (which deals with acts that pass the freehold test) applies to the act; and

Note: That Subdivision only applies to an act to the extent that the act relates to an onshore place: see section 24MC.

(b) the act is done by the Commonwealth, a State or a Territory (the Government party); and

subject to this section, the act is:

the creation of a right to mine, whether by the grant of a mining lease or otherwise, except one created for the sole purpose of the construction of an infrastructure facility (see section 253) associated with mining; or

Note: Rights to mine created for the sole purpose of the construction of an infrastructure facility associated with mining are dealt with in subsection 24MD(6B).

the variation of such a right, to extend the area to which it relates; or

the compulsory acquisition of native title rights and interests, unless:

(A) the purpose of the acquisition is to confer rights or interests in relation to the land or waters concerned on the Government party and the Government party makes a statement in writing to that effect before the acquisition takes place; or

(B) the purpose of the acquisition is to provide an infrastructure facility; or

Note: Certain compulsory acquisitions covered by sub-subparagraphs(iii)(A) and (B) are dealt with in subsection 24MD(6B).

any other act approved by the Commonwealth Minister, by legislative instrument, for the purposes of this paragraph, where, if the act is attributable to a State or Territory, the Commonwealth Minister consulted the State Minister or the Territory Minister about the approval before giving it.

Exclusions

This Subdivision does not apply to the extent that the act is:

an act covered by section 24EB (which deals with the effects of indigenous land use agreements) or by any of the sections listed in paragraphs 24AA(4)(a) to (i); or

an act determined, by legislative instrument, by the Commonwealth Minister to be an approved exploration etc. act (see section 26A); or

an act determined, by legislative instrument, by the Commonwealth Minister to be an approved gold or tin mining act (see section 26B); or

an act excluded by section 26C (which deals with opal or gem mining) from the coverage of this Subdivision; or

an act excluded by section 26D (which deals with renewals of valid mining leases etc.) from the coverage of this Subdivision; or

an act that is the compulsory acquisition of native title rights and interests and that relates solely to land or waters wholly within a town or city (see section 251C).

Note: Under sections 43 and 43A, a State or Territory may, in certain circumstances, make alternative provisions to the regime provided for by this Subdivision.

Sea and intertidal zone excluded

This Subdivision only applies to the act to the extent that the act relates to a place that is on the landward side of the mean high-water mark of the sea. A reference to an act to which this Subdivision applies is to be read as referring to the act to that extent only.

(1) If the conditions in this section are satisfied, the Commonwealth Minister may, by legislative instrument, determine that an act, or that each act included in a class of acts, is an approved exploration etc. act.

First condition

The first condition is that the act, or acts included in the class, consist of the creation or variation of a right to mine, where the right as so created or varied is a right to explore, a right to prospect or a right to fossick.

Second condition

The second condition is that the Minister is satisfied that the act or acts are unlikely to have a significant impact on the particular land or waters concerned.

Drilling and second condition

If the act or acts authorise drilling, this does not mean that the second condition cannot be satisfied.

Third condition

The third condition is that the Minister has:

notified any relevant representative Aboriginal/Torres Strait Islander bodies, and notified the public in the determined way, of the proposed determination; and

invited submissions from them about the proposed determination; and

considered any submissions made in response to the invitation.

Fourth condition

The fourth condition is that the Minister is satisfied that, if the determination is made:

all:

registered native title bodies corporate; and

registered native title claimants; and

representative Aboriginal/Torres Strait Islander bodies;

in relation to any of the land or waters that will be affected by the act or acts will have a right to be notified that the act or each act included in the class is to be done; and

any such persons or bodies will have a right to be heard by an independent person or body about:

whether the act is to be done; and

any matter relating to the doing of the act;

unless no other person would have such a right, assuming the person had an interest of any kind in relation to the land or waters; and

either:

the person, or one of the persons, who will do any thing authorised by the act will have a legal obligation to consult appropriately any person or body covered by subparagraph (a)(i) or (ii), unless the person or body indicates that the person or body does not wish to be so consulted; or

procedures will be in place under which such consultation will be required;

for the purpose of minimising the impact of the act on the exercise of native title rights and interests in relation to land or waters that will be affected by the act, and in particular about the matters set out in subsection (7).

Matters relevant to fourth condition

The matters are:

the protection and avoidance of any area or site, on the land or waters to which the native title rights and interests relate, of particular significance to the persons holding the native title in accordance with their traditional laws and customs; and

any access to the land or waters to which the native title rights and interests relate by:

those persons; or

any person who will do any thing that is authorised because of, results from, or otherwise relates to, the doing of the act; and

the way in which any other thing that:

is authorised because of, results from, or otherwise relates to, the doing of the act; and

affects the native title rights and interests;

is to be done.

Revocation of determination

If, at any time after making the determination, the Commonwealth Minister considers that circumstances have changed to the extent that the conditions in this section would not be satisfied if he or she were making the determination at that time, the Commonwealth Minister must:

if the act or acts are done by a State or Territory:

advise the State Minister or the Territory Minister concerned in writing of the fact; and

if at the end of 90 days, or such longer period as the Commonwealth Minister allows, after doing so, the conditions in this section would still not be satisfied—by legislative instrument, revoke the determination; or

if the act or acts are done by the Commonwealth—by legislative instrument, revoke the determination.

(1) If the conditions in this section are satisfied, the Commonwealth Minister may, by legislative instrument, determine that each act included in a class of acts done by a State or Territory is an approved gold or tin mining act.

First condition

The first condition is that the relevant State Minister or Territory Minister has requested the Commonwealth Minister in writing to make such a determination in relation to acts in the class.

Second condition

The second condition is that acts included in the class consist of the creation or variation of rights to mine, where the rights as so created or varied are rights to mine gold, or tin, in surface alluvium.

Third condition

The third condition is that, by or under a law of the State or Territory, the only way in which the gold or tin may be recovered from the material that is mined is by a washing or an aeration process.

Fourth condition

The fourth condition is that, by or under a law of the State or Territory, the persons given the rights to mine will be required to rehabilitate any area of land or waters, in which the mining takes place and in relation to which native title rights and interests may exist, for the purpose of minimising the impact of the mining on the land or waters.

Fifth condition

The fifth condition is that the Commonwealth Minister has:

notified any relevant representative Aboriginal/Torres Strait Islander bodies, and notified the public in the determined way, of the proposed determination; and

invited submissions from them about the proposed determination; and

considered any submissions made in response to the invitation.

Sixth condition

The sixth condition is that the Commonwealth Minister is satisfied that, if the determination is made:

all:

registered native title bodies corporate; and

registered native title claimants; and

representative Aboriginal/Torres Strait Islander bodies;

in relation to any land or waters that will be affected by the acts will have a right to be notified that each act included in the class is to be done; and

any such persons or bodies will have a right to be heard by an independent person or body about:

whether the act is to be done; and

any matter relating to the doing of the act;

unless no other person would have such a right, assuming the person had an interest of any kind in relation to the land or waters; and

either:

the person, or one of the persons, who will do any thing authorised by the act will have a legal obligation to consult appropriately any person or body covered by subparagraph (a)(i) or (ii), unless the person or body indicates that the person or body does not wish to be so consulted; or

procedures will be in place under which such consultation will be required;

for the purpose of minimising the impact of the act on land or waters, in relation to which native title rights and interests may exist, that will be affected by the act, and in particular about the matters set out in subsection (8).

Matters relevant to sixth condition

The matters are:

the protection and avoidance of any area or site, on the land or waters to which the native title rights and interests relate, of particular significance to the persons holding the native title in accordance with their traditional laws and customs; and

any access to the land or waters to which the native title rights and interests relate by:

those persons; or

any person who will do any thing that is authorised because of, results from, or otherwise relates to, the doing of the act; and

the way in which any rehabilitation or other thing that is authorised because of, results from, or otherwise relates to, the doing of the act is to be done.

Revocation of determination

If, at any time after making the determination, the Commonwealth Minister considers that circumstances have changed to the extent that the conditions in this section would not be satisfied if he or she were making the determination at that time, the Commonwealth Minister must:

advise the State Minister or the Territory Minister concerned in writing of the fact; and

if at the end of 90 days, or such longer period as the Commonwealth Minister allows, after doing so, the conditions in this section would still not be satisfied—by legislative instrument, revoke the determination.

Mining other than exploring or prospecting

This Subdivision does not apply to an act consisting of the creation or variation of a right to mine, if the right, as so created or varied:

is not a right to explore or prospect; and

relates solely to land or waters wholly within an approved opal or gem mining area (see subsection (2)); and

allows:

mining (other than puddling) only for opals or gems; or

mining consisting of puddling in respect of opals or gems; and

allows that mining only in an area no larger than 5 hectares; and

is conferred for a period of no more than 5 years; and

if the right is able to be renewed one or more times—is able to be renewed for no more than 5 years each time.

Exploring or prospecting

This Subdivision also does not apply to an act consisting of the creation or variation of a right to mine that is a right to explore or prospect, if the right, as so created or varied:

relates solely to land or waters wholly within an approved opal or gem mining area (see subsection (2)); and

allows exploration or prospecting only for opals or gems; and

allows that exploration or prospecting in an area no larger than 500 hectares; and

is conferred for a period of no more than 5 years; and

if the right is able to be renewed one or more times—is able to be renewed for no more than 5 years each time.

Approved opal or gem mining area

(2) If the conditions in subsections (3) to (5A) are satisfied, the Commonwealth Minister may, by legislative instrument, determine that a specified area of land or waters within a particular State or Territory is an approved opal or gem mining area for the purposes of this section.

First condition

The first condition is that the relevant State Minister or Territory Minister has requested the Commonwealth Minister in writing to make such a determination in relation to the area.

Second condition

The second condition is that the Commonwealth Minister is satisfied, having regard to:

any mining rights conferred in the past in the area; and

any other relevant matter;

that in the future at least some rights will be conferred to mine in the area that will:

allow:

mining for opals or gems (other than mining consisting of exploring, prospecting or puddling) only in an area no larger than 5 hectares; or

mining consisting of puddling in respect of opals or gems only in an area no larger than 5 hectares; or

mining consisting of exploration or prospecting for opals or gems in an area no larger than 500 hectares; and

be conferred for a period of no more than 5 years; and

if the rights are renewed one or more times—be renewed for a period of no more than 5 years each time.

Third condition

The third condition is that, before making the request, the State Minister or Territory Minister:

notified the public, and notified any registered native title bodies corporate, registered native title claimants and representative Aboriginal/Torres Strait Islander bodies in relation to any of the area, that he or she was intending to make the request in relation to the area; and

invited submissions about the request, and in particular about the area covered by the request and about processes for the identification and protection of any area or site within that area of particular significance to native title holders in accordance with their traditional laws and customs; and

considered any such submissions that were made.

Fourth condition

The fourth condition is that the Commonwealth Minister is satisfied, immediately before the determination is made, that mining for opals or gems is being carried on in the whole or a substantial part of:

if paragraph (b) does not apply—the area; or

if, immediately before the determination is made, any part of the area is an approved opal or gem mining area—so much of the area as is not already an approved opal or gem mining area.

Revocation of determination

If, at any time after making the determination, the Commonwealth Minister considers that circumstances have changed to the extent that the conditions in subsections (3) to (5A) would not be satisfied if he or she were making the determination at that time, the Commonwealth Minister must:

advise the State Minister or the Territory Minister concerned in writing of the fact; and

if at the end of 90 days, or such longer period as the Commonwealth Minister allows, after doing so, the conditions in this section would still not be satisfied—by legislative instrument, revoke the determination.

Renewal of valid mining lease etc.

This Subdivision does not apply to an act consisting of the creation of a right to mine if:

the creation of the right is done by:

the renewal; or

the re-grant or re-making; or

the extension of the term;

of an earlier right to mine; and

the earlier right:

was created on or before 23 December 1996 by an act that is valid (including because of Division 2 or 2A); or

was created by an act to which this Subdivision applied that was not invalid to any extent under section 28; and

the area to which the earlier right relates is not extended; and

the term of the right is not longer than the term of the earlier right; and

no rights are created in connection with the right that were not created in connection with the earlier right.

Act contemplated by exploration or prospecting agreement etc.

(2) This Subdivision does not apply to an act (the later act) consisting of the creation of a right to mine if:

(a) before the later act takes place, an act (the earlier act) consisting of the creation of a right to explore or prospect took place; and

the earlier act took place after the commencement of this section; and

this Subdivision applied to the earlier act and, because:

an agreement of the kind mentioned in paragraph 31(1)(b) was made in relation to the earlier act; or

a determination was made under section 38 that the earlier act might be done, or might be done subject to conditions being complied with;

the earlier act was not invalid to any extent under section 28; and

the agreement or determination:

included a statement to the effect that, if the later act were done, this Subdivision would not apply to the later act; and

provided that, if the later act were done, certain conditions would be complied with by parties other than native title parties (whether before or after the act was done); and

any such conditions that were required to be complied with before the later act is done are complied with before the later act is done.

Arbitral bodies: recognised State/Territory bodies

(1) If a law of a State or Territory for which there is a recognised State/Territory body so allows, the body is the arbitral body under this Subdivision in relation to acts of the State or Territory to which this Subdivision applies, other than acts in relation to:

(a) a Commonwealth place (within the meaning of the Commonwealth Places (Application of Laws) Act 1970); or

any place outside the jurisdictional limits of the State or Territory.

Arbitral bodies: NNTT

If:

a future act is done by the Commonwealth; or

a future act is done by a State or Territory and there is no arbitral body under subsection (1) in respect of the act;

the National Native Title Tribunal is the arbitral body in respect of the act.

Arbitral body not to include holders of judicial offices

If the arbitral body in respect of the act is the NNTT, for the purposes of performing the functions and exercising the powers of the arbitral body in respect of the act, the NNTT must not be constituted by:

a member who is the holder of a judicial office; or

members one or more of whom are the holders of judicial offices.

Commonwealth Minister

(1) If the arbitral body in respect of the act is the NNTT, for the purposes of this Subdivision the relevant Minister in respect of the act is the Commonwealth Minister.

State or Territory Minister

(2) If the arbitral body in respect of the act is a recognised State/Territory body, for the purposes of this Subdivision the relevant Minister in respect of the act is the State Minister or the Territory Minister, as the case requires.

Conditions of the kind mentioned in paragraph 31(1)(b), 36C(4)(c), 38(1)(c) or 42(3)(b) may provide for procedures to be followed by the negotiation parties (see section 30A) for dealing with issues that may arise as a result of, or otherwise in relation to, the doing of the act.

Subject to this Act, an act to which this Subdivision applies is invalid to the extent that it affects native title unless, before it is done, the requirements of one of the following paragraphs are satisfied:

by the end of the period of 4 months after the notification day for the act (see subsection 29(4)), there is no native title party in relation to any of the land or waters that will be affected by the act;

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

subsection 32(2) (which applies if no objection is made after the giving of a notice that the act attracts the expedited procedure) allows the act to be done;

a determination is made under subsection 32(4) that the act is an act attracting the expedited procedure;

native title parties have lodged one or more objections in relation to the act under subsection 32(3), but all such objections are withdrawn under subsection 32(6);

an agreement of the kind mentioned in paragraph 31(1)(b) is made;

a determination is made under section 36A or 38 that the act may be done, or may be done subject to conditions being complied with;

a determination that the act must not be done is declared to be overruled in accordance with section 42.

Breach of undertaking to trustee

Even if, before the act is done, the requirements of one of paragraphs (1)(c) to (h) are satisfied, the act is nevertheless invalid to the extent it affects native title if:

in a case where an amount is to be secured by bank guarantee in favour of the Registrar in compliance with a condition of a determination made under section 36A or 38 or a declaration made under section 42:

the Registrar is informed by the Government party as mentioned in item 2 of the table in subsection 52(2) that it no longer proposes to do the act; and

the Government party does the act without again complying with the requirements of this Subdivision; or

in a case where a trustee is holding an amount in trust under this Subdivision in respect of the act until it is dealt with in accordance with section 52A:

the trustee is informed by the Government party as mentioned in paragraph 52A(1)(b) that it no longer proposes to do the act; and

the Government party does the act without again complying with the requirements of this Subdivision.

Notice in accordance with section

Before the act is done, the Government party must give notice of the act in accordance with this section.

Persons to be given notice

The Government party must give notice to:

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

unless there are one or more registered native title bodies corporate in relation to all of the land or waters that will be affected by the act:

(i) any registered native title claimant (also a native title party); and

Note: A registered native title claimant is a person or group of persons whose name or names appear on the Register of Native Title Claims as the applicant in relation to a claim to hold native title: see the definition of registered native title claimant in section 253.

any representative Aboriginal/Torres Strait Islander body;

in relation to any land or waters that will be affected by the act; and

(c) if the doing of the act has been requested or applied for by a person (for example, where it is the issue of a licence or the grant of a lease for which the person has applied)—that person (a grantee party); and

the registrar or other proper officer of the arbitral body in relation to the act.

Public notification

Before the act is done, the Government party or the grantee party must also notify the public in the determined way (see section 252) of the act, unless there is a registered native title body corporate in relation to all of the land or waters that will be affected by the act.

Notice to specify day and include prescribed documents etc.

The notice given under subsection (2) or (3) must:

(a) specify a day as the notification day for the act; and

contain a statement to the effect that, under section 30, persons have until 3 months after the notification day to take certain steps to become native title parties in relation to the notice; and

be accompanied by any prescribed documents and include any prescribed information.

Each notice to specify the same day

Each such notice in relation to the act must specify the same day as the notification day.

Which days may be specified

That day must be a day by which, in the Government party’s opinion, it is reasonable to assume that all notices under subsections (2) and (3) in relation to the act will have been received by, or will otherwise have come to the attention of, the persons who must be notified under those subsections.

Acts attracting the expedited procedure

The notices under this section may include a statement that the Government party considers the act is an act attracting the expedited procedure.

Multiple acts

The Commonwealth Minister may, by legislative instrument, determine the circumstances and manner in which notice to a person under subsection (2) of 2 or more acts to which this Subdivision applies may be given in the same notice.

Notice to the public under subsection (3) of 2 or more acts to which this Subdivision applies may be given in the same notice.

Project acts

If such a notice is given and:

the notice identifies a project to be carried on in a specified area; and

the 2 or more acts constitute or form part of the project (whether or not the notice separately specifies the area that each act will affect); and

the arbitral body is the same for each of the acts; and

the notice states that the acts are project acts for the purposes of this Subdivision;

the acts are project acts for the purposes of this Subdivision.

Project acts not to include statement about expedited procedure

Note: Section 42A provides that this Subdivision applies to project acts in a modified way.

However, the notice must not include a statement that the Government party considers any of the project acts is an act attracting the expedited procedure.

(1) Each of the following is also a native title party:

any applicant who, 4 months after the notification day (see subsection 29(4)), is a registered native title claimant in relation to any of the land or waters that will be affected by the act, so long as:

the application containing the claim was filed in the Federal Court, or given to the recognised State/Territory body, before the end of 3 months after the notification day; and

the claim related to any of the land or waters that will be affected by the act;

Note: The note to subparagraph 29(2)(b)(i) explains who can be a registered native title claimant.

any body corporate that, 3 months after the notification day, is a registered native title body corporate in relation to any of the land or waters that will be affected by the act;

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

after the end of that period of 3 months; and

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

Ceasing to be a native title party

A registered native title claimant ceases to be a native title party if the registered native title claimant ceases to be a registered native title claimant.

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

Registered native title rights and interests

(3) For the purposes of this Subdivision, the registered native title rights and interests of a native title party are:

if the native title party is such because an entry has been made on the National Native Title Register—the native title rights and interests described in that entry; or

if the native title party is such because an entry has been made on the Register of Native Title Claims—the native title rights and interests described in that entry.

Replacing a native title party

If:

(a) an applicant (the old applicant) in relation to a claimant application is a native title party; and

(b) the old applicant is replaced as the applicant in relation to the claimant application by another applicant (the new applicant); and

the new applicant becomes a registered native title claimant;

the new applicant also replaces the old applicant as the native title party.

Each of the following is a negotiation party:

the Government party;

any native title party;

any grantee party.

Unless the notice includes a statement that the Government party considers the act attracts the expedited procedure:

the Government party must give all native title parties an opportunity to make submissions to it, in writing or orally, regarding the act; and

the negotiation parties must negotiate in good faith with a view to obtaining the agreement of each of the native title parties to:

the doing of the act; or

the doing of the act subject to conditions to be complied with by any of the parties.

Note: The native title parties are set out in paragraphs 29(2)(a) and (b) and section 30. If they include a registered native title claimant, the agreement will bind all of the persons in the native title claim group concerned: see subsection 41(2).

Government party does not need to participate in negotiations

Despite paragraph (1)(b), the Government party does not need to negotiate about matters that the Government party determines do not affect the Government party if the other negotiation parties give written consent.

However, the Government party must be a party to the agreement.

Registered native title claimants

The requirement that a native title party that is a registered native title claimant be a party to the agreement is satisfied if:

a majority of the persons who comprise the registered native title claimant are parties to the agreement, unless paragraph (b) applies; or

if conditions under the authority of the registered native title claimant provide for the persons who must become a party to the agreement—those persons are parties to the agreement.section 251BA on

The persons in the majority must notify the other persons who comprise the registered native title claimant within a reasonable period after becoming parties to the agreement as mentioned in paragraph (1C)(a). A failure to comply with this subsection does not invalidate the agreement.

Negotiation in good faith

If any of the negotiation parties refuses or fails to negotiate as mentioned in paragraph (1)(b) about matters unrelated to the effect of the act on the registered native title rights and interests of the native title parties, this does not mean that the negotiation party has not negotiated in good faith for the purposes of that paragraph.

Arbitral body to assist in negotiations

If any of the negotiation parties requests the arbitral body to do so, the arbitral body must mediate among the parties to assist in obtaining their agreement.

Information obtained in providing assistance not to be used or disclosed in other contexts

If the NNTT is the arbitral body, it must not use or disclose information to which it has had access only because it provided assistance under subsection (3) for any purpose other than:

providing that assistance; or

establishing whether a negotiation party has negotiated in good faith as mentioned in paragraph (1)(b);

without the prior consent of the person who provided the NNTT with the information.

This section applies if the notice given under section 29 includes a statement that the Government party considers the act is an act attracting the expedited procedure (see section 237).

Act may be done if no objection

If the native title parties do not lodge an objection with the arbitral body in accordance with subsection (3), the Government party may do the act.

Kinds of objection

A native title party may, within the period of 4 months after the notification day (see subsection 29(4)), lodge an objection with the arbitral body against the inclusion of the statement.

Objections against inclusion of statement

If one or more native title parties object against the inclusion of the statement, the arbitral body must determine whether the act is an act attracting the expedited procedure. If the arbitral body determines that it is, the Government party may do the act.

Act not attracting expedited procedure

If the arbitral body determines that the act is not an act attracting the expedited procedure, subsection 31(1) applies as if the notice did not include a statement that the Government party considers the act attracts the expedited procedure.

Withdrawal of objection

At any time before the arbitral body makes a determination under subsection (4), a native title party may withdraw his or her objection. If all such objections are withdrawn, the Government party may do the act.

Withdrawal of statement about expedited procedure

At any time before the arbitral body makes a determination under subsection (4), the Government party may, by giving written notice to the negotiation parties, withdraw its statement that it considers the act is an act attracting the expedited procedure. If it does so, subsection 31(1) applies as if the notice did not include such a statement.

Profits, income etc.

Without limiting the scope of any negotiations, they may, if relevant, include the possibility of including a condition that has the effect that native title parties are to be entitled to payments worked out by reference to:

the amount of profits made; or

any income derived; or

any things produced;

by any grantee party as a result of doing anything in relation to the land or waters concerned after the act is done.

Existing rights, interests and use

Without limiting the scope of any negotiations, the nature and extent of the following may be taken into account:

existing non-native title rights and interests in relation to the land or waters concerned;

existing use of the land or waters concerned by persons other than native title parties;

the practical effect of the exercise of those existing rights and interests, and that existing use, on the exercise of any native title rights and interests in relation to the land or waters concerned.

An agreement of the kind mentioned in paragraph 31(1)(b) has no effect in relation to the act for the purposes of this Subdivision if it is made after the making of a determination under section 36A or 38.

Any negotiation party may apply to the arbitral body for a determination under section 38 in relation to the act if:

at least 6 months have passed since the notification day (see subsection 29(4)); and

no agreement of the kind mentioned in paragraph 31(1)(b) has been made in relation to the act.

Withdrawal of application

At any time before a determination in relation to the act is made under section 36A or 38, the negotiation party may withdraw the application by giving notice to the arbitral body.

Negotiations for an agreement

Even though the application has been made, the negotiation parties may continue to negotiate with a view to obtaining an agreement of the kind mentioned in paragraph 31(1)(b) before a determination in relation to the act is made under section 36A or 38. If they make such an agreement before such a determination is made, the application is taken to have been withdrawn.

Subject to section 37, the arbitral body must take all reasonable steps to make a determination in relation to the act as soon as practicable.

Determination not to be made where failure to negotiate in good faith

If any negotiation party satisfies the arbitral body that any other negotiation party (other than a native title party) did not negotiate in good faith as mentioned in paragraph 31(1)(b) (other than as provided by subsections 31(1A) and (2)), the arbitral body must not make the determination on the application.

Note: It would be possible for a further application to be made under section 35.

Report to Commonwealth Minister

If the arbitral body is the NNTT and it does not make the determination within the period of 6 months starting when the application is made, it must, as soon as is reasonably practicable after the end of the period, advise the Commonwealth Minister in writing of the reason for it not doing so and include in that advice an estimate of when a determination is likely to be made.

Relevant Minister may give arbitral body notice as to urgency

At any time later than 4 months after a negotiation party has made an application under section 35 that has not been withdrawn, and before either:

the negotiation parties have made an agreement of the kind mentioned in paragraph 31(1)(b); or

the arbitral body has made a determination under section 38;

the relevant Minister may give a written notice to the arbitral body requesting the arbitral body to make such a determination within the period specified in the notice. The period must end at a time later than 6 months after the application under section 35 was made.

Relevant Minister may make determination

If:

the arbitral body has not made a determination in relation to the act within the period specified in a notice under subsection 36(4); and

no agreement of the kind mentioned in paragraph 31(1)(b) has been made in relation to the act; and

the requirements of section 36B are met;

the relevant Minister may, subject to this section, make a determination in relation to the act.

Requirement for State/Territory Minister to consult before making determination

If:

the relevant Minister is a State Minister or a Territory Minister; and

the determination is that the act may be done or may be done subject to conditions to be complied with by any of the parties;

the relevant Minister may only make the determination after he or she has consulted the Commonwealth Minister about the determination.

Criteria for making determination

The relevant Minister may only make the determination if the relevant Minister considers that:

a determination under section 38 is unlikely to be made within a period that is reasonable having regard to all the circumstances; and

if the relevant Minister is a State Minister or a Territory Minister—it is in the interests of the State or Territory to make the determination at the time; and

if the relevant Minister is the Commonwealth Minister—it is in:

in any case—the national interest; and

if the act concerned is an act attributable to a State or Territory—the interests of the State or Territory;

to make the determination at the time.

Relevant Minister may consider other matters

Subsection (2) does not prevent the relevant Minister from having regard to other matters in deciding whether to make a determination under this section.

Before making a determination under section 36A, the relevant Minister must give notice in accordance with subsection (2), and with subsection (3), of this section.

Notice to arbitral body

The relevant Minister must give written notice to the arbitral body requiring it, by the end of the day specified in the notice, to give the Minister and each negotiation party a summary of material that has been presented to the arbitral body in the course of the arbitral body considering whether to make a determination under section 38 in relation to the act.

Notice to negotiation parties

The relevant Minister must give written notice to each negotiation party that the Minister is considering making the determination and that each negotiation party:

may, by the end of the day specified in the notice, give the Minister any submission or other material that the negotiation party wants the Minister to take into account in deciding whether to make the determination and, if so, its terms; and

if the negotiation party does so—must also give each of the other negotiation parties a copy of the submission or other material; and

may, within 7 days after the specified day, in response to any submission or other material given by any other negotiation party or the arbitral body, give the Minister any further submission or other material that the negotiation party wants the Minister to take into account as mentioned in paragraph (a).

Specified day

The day specified under subsection (2) or (3) must be the same in all of the notices given under the subsections. It must be a day by which, in the relevant Minister’s opinion, it is reasonable to assume that all of the notices so given will have been received by, or will otherwise have come to the attention of, the persons who must be so notified.

Natural justice

If the relevant Minister complies with subsection (1), there is no requirement for any person to be given any further hearing before the relevant Minister makes the determination.

Material etc. taken into account

In making the determination, the relevant Minister:

must take into account:

any submission or material provided by any of the negotiation parties in accordance with subsection (3), but only if the negotiation party has complied with the requirements of paragraph (3)(b); and

any report provided by the arbitral body; and

any consultations with the Commonwealth Minister as mentioned in subsection 36A(1A); and

may, but need not, take into account any other matter or thing.

Minister’s power not limited

The fact that no submission or other material of the kind mentioned in subsection (3) has been given to the Minister before the end of the day specified in the notice does not prevent the Minister from making the determination.

Coverage of section

This section:

sets out the kind of determination that may be made under section 36A; and

states the effect of such a determination; and

contains other provisions relevant to such a determination.

Determination

The relevant Minister does not have a duty to make a determination. This is so despite:

the giving of any notice by the Minister; and

the giving of any submission or other material to the Minister; and

any request by a negotiation party for the Minister to make the determination; and

any other circumstance.

Who makes determination

A determination must be made by the relevant Minister personally.

Kinds of determination

The relevant Minister may make any one of the following determinations:

a determination that the act must not be done;

a determination that the act may be done;

a determination that the act may be done subject to conditions to be complied with by any of the negotiation parties.

Bank guarantee condition

If a condition to be complied with is that an amount is to be secured by bank guarantee:

the arbitral body must:

determine the amount; and

specify the person who must secure the amount in that way; and

the condition is not complied with unless:

(i) the guarantee is given by an authorised deposit-taking institution within the meaning of the Banking Act 1959; and

the guarantee is secured in favour of the Registrar; and

regulations made under subsection (5A) are complied with.

The regulations may make provision in relation to the securing of an amount by bank guarantee in compliance with such a condition, and any other matter in relation to such a guarantee.

Trust condition

If a condition to be complied with is that an amount is to be paid and held in trust until it is dealt with in accordance with section 52A:

the arbitral body must determine the amount; and

the amount, when paid, must be held in trust in accordance with the regulations until it is dealt with in accordance with section 52A.

Note: The NNTT cannot determine compensation (see Division 5 of this Part and Division 1 of Part 3). However, if the arbitral body is not the NNTT, it may be able to do so.

Conditions to have contractual effect

If the act is done, any conditions in a determination by the relevant Minister under this section have effect, in addition to any effect that they may have apart from this subsection, as if they were terms of a contract among the negotiation parties. If a native title party is a registered native title claimant, any other person included in the native title claim group (see section 253) concerned is a negotiation party for this purpose only.

Copy of determination to be tabled

The relevant Minister must, as soon as practicable after making a determination, and in any case within 15 sitting days, cause a copy of the determination, together with reasons for the determination, to be laid:

if the relevant Minister is the Commonwealth Minister—before each House of the Parliament; or

if the relevant Minister is a State Minister—before the House, or both of the Houses, of Parliament of the State concerned; or

if the relevant Minister is a Territory Minister—before the Legislative Assembly of the Territory concerned.

The arbitral body must not make a determination if:

an agreement of the kind mentioned in paragraph 31(1)(b) has been made; or

a determination under section 36A has been made.

Except where section 37 applies, the arbitral body must make one of the following determinations:

a determination that the act must not be done;

a determination that the act may be done;

a determination that the act may be done subject to conditions to be complied with by any of the parties.

Determinations may cover other matters

A determination may, with the agreement of the negotiation parties, provide that a particular matter that:

is not reasonably capable of being determined when the determination is made; and

is not directly relevant to the doing of the act;

is to be the subject of further negotiations or to be determined in a specified manner.

Matters to be determined by arbitration

Example: The arbitral body could determine that a mining lease may be granted subject to site clearance procedures to be determined by a third person.

If:

the manner specified is arbitration (other than by the arbitral body); and

the negotiation parties do not agree about the manner in which the arbitration is to take place;

the arbitral body must determine the matter at an appropriate time.

Profit-sharing conditions not to be determined

The arbitral body must not determine a condition under paragraph (1)(c) that has the effect that native title parties are to be entitled to payments worked out by reference to:

the amount of profits made; or

any income derived; or

any things produced;

by any grantee party as a result of doing anything in relation to the land or waters concerned after the act is done.

In making its determination, the arbitral body must take into account the following:

the effect of the act on:

the enjoyment by the native title parties of their registered native title rights and interests; and

the way of life, culture and traditions of any of those parties; and

the development of the social, cultural and economic structures of any of those parties; and

the freedom of access by any of those parties to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and

any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions;

the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters in relation to which there are registered native title rights and interests, of the native title parties, that will be affected by the act;

the economic or other significance of the act to Australia, the State or Territory concerned, the area in which the land or waters concerned are located and Aboriginal peoples and Torres Strait Islanders who live in that area;

any public interest in the doing of the act;

any other matter that the arbitral body considers relevant.

Existing non-native title interests etc.

In determining the effect of the act as mentioned in paragraph (1)(a), the arbitral body must take into account the nature and extent of:

existing non-native title rights and interests in relation to the land or waters concerned; and

existing use of the land or waters concerned by persons other than the native title parties.

Laws protecting sites of significance etc. not affected

Taking into account the effect of the act on areas or sites mentioned in subparagraph (1)(a)(v) does not affect the operation of any law of the Commonwealth, a State or Territory for the preservation or protection of those areas or sites.

Agreements to be given effect

Before making its determination, the arbitral body must ascertain whether there are any issues relevant to its determination on which the negotiation parties agree. If there are, and all of the negotiation parties consent, then, in making its determination, the arbitral body:

must take that agreement into account; and

need not take into account the matters mentioned in subsection (1), to the extent that the matters relate to those issues.

If:

the arbitral body is making a determination in relation to an act consisting of the creation of a right to mine in relation to an area; and

an agreement, or a determination by an arbitral body, under this Subdivision involving the same negotiation parties was previously made in relation to a future act consisting of the creation of a right to mine in relation to the same area; and

an issue was decided in the agreement or during the inquiry;

the negotiation parties must not, without leave of the arbitral body that is making the determination, seek to vary the decision on the issue.

Subject to this section:

a determination by the arbitral body; or

an agreement of the kind mentioned in paragraph 31(1)(b);

that the act may be done subject to conditions being complied with by the parties has effect, if the act is done, as if the conditions were terms of a contract among the negotiation parties. The effect is in addition to any other effect that the agreement or determination may have apart from this subsection.

Other negotiation parties

If a native title party is a registered native title claimant, any other person included in the native title claim group concerned is taken to be a negotiation party for the purposes only of subsection (1).

Bank guarantee condition

If, in the case of a determination by an arbitral body, a condition to be complied with is that an amount is to be secured by bank guarantee:

the arbitral body must:

determine the amount; and

specify the person who must secure the amount in that way; and

the condition is not complied with unless:

(i) the guarantee is given by an authorised deposit-taking institution within the meaning of the Banking Act 1959; and

the guarantee is secured in favour of the Registrar; and

regulations made under subsection (4) are complied with.

The regulations may make provision in relation to the securing of an amount by bank guarantee in compliance with such a condition, and any other matter in relation to such a guarantee.

Trust condition

If, in the case of a determination by the arbitral body, a condition to be complied with is that an amount is to be paid and held in trust until it is dealt with in accordance with section 52A:

the arbitral body must determine the amount; and

the amount, when paid, must be held in trust in accordance with the regulations until it is dealt with in accordance with section 52A.

Note: The NNTT cannot determine compensation (see Division 5 of this Part and Division 1 of Part 3). However, if the arbitral body is not the NNTT, it may be able to do so.

Negotiation parties

The negotiation parties must:

give a copy of any agreement mentioned in paragraph 31(1)(b) to the arbitral body; and

advise the relevant Minister in writing of the making of any such agreement; and

advise the arbitral body whether or not there is any other written agreement made between some or all of the negotiation parties in connection with the doing of the act.

Relevant Minister

The relevant Minister must give a copy of any determination under section 36A to the negotiation parties and the arbitral body.

Arbitral body

The arbitral body must give a copy of any determination under section 38 to the negotiation parties and the relevant Minister.

The arbitral body must give a copy of any agreement or advice the arbitral body receives under subsection (1) of this section to the Registrar.

Registrar must keep records

The Registrar must keep a record in relation to each agreement of the kind mentioned in paragraph 31(1)(b) that the Registrar receives under subsection 41A(4).

The record must include the following information in relation to the agreement (to the extent known to the Registrar):

a description of the area of land or waters to which the agreement relates;

the name of each party to the agreement and the address at which the party can be contacted;

if the agreement specifies the period during which it will operate—that period;

whether or not there is any other written agreement made between some or all of the parties to the agreement in connection with the doing of the act to which the agreement relates.

Parties must notify Registrar of changes

A party to the agreement must notify the Registrar in writing of any change to the information mentioned in subsection (2).

The Registrar must update the records to reflect any changes notified under subsection (3).

Information from records may be made available

The Registrar must make the information mentioned in subsection (2) available to a person on request.

However, if a party to the agreement notifies the Registrar in writing that the party does not wish some or all of the information to be made available under subsection (5), the Registrar must not make available the information concerned.

If a party to the agreement notifies the Registrar in accordance with subsection (6), the party must notify each other party to the agreement.

Expired agreements

The Registrar does not need to keep a record, or provide information, in relation to an agreement that has expired.

If a State Minister or a Territory Minister considers it to be in the interests of the State or Territory to overrule the determination of a recognised State/Territory body for the State or Territory, the State Minister or Territory Minister may, by writing given to the recognised State/Territory body, make a declaration in accordance with subsection (3).

Right of Commonwealth to overrule

If the Commonwealth Minister considers it to be in:

in any case—the national interest; or

if the act concerned is an act attributable to a State or Territory—the interests of the State or Territory;

to overrule a determination of the NNTT (other than a determination under subsection 32(4), which deals with the expedited procedure), the Commonwealth Minister may, by writing given to the NNTT, make a declaration in accordance with subsection (3).

Kinds of declaration

The Minister concerned may make either of the following declarations:

a declaration that the determination is overruled;

a declaration that the determination is overruled and that conditions set out in the declaration are to be complied with by any of the parties.

Time limit for making declaration

Any declaration by the Minister concerned must be made within 2 months after the making of the determination.

Bank guarantee condition

If a condition to be complied with is that an amount is to be secured by bank guarantee:

the arbitral body must:

determine the amount; and

specify the person who must secure the amount in that way; and

the condition is not complied with unless:

(i) the guarantee is given by an authorised deposit-taking institution within the meaning of the Banking Act 1959; and

the guarantee is secured in favour of the Registrar; and

regulations made under subsection (5A) are complied with.

The regulations may make provision in relation to the securing of an amount by bank guarantee in compliance with such a condition, and any other matter in relation to such a guarantee.

Trust condition

If a condition to be complied with is that an amount is to be paid and held in trust until it is dealt with in accordance with section 52A:

the arbitral body concerned must determine the amount; and

the amount, when paid, must be held in trust in accordance with the regulations until it is dealt with in accordance with section 52A.

Note: The NNTT cannot determine compensation (see Division 5 of this Part and Division 1 of Part 3). However, if the arbitral body is not the NNTT, it may be able to do so.

Conditions have contractual effect

If the act is done, any conditions in a declaration by a Minister under this section have effect, in addition to any effect that they may have apart from this subsection, as if they were terms of a contract among the negotiation parties. If a native title party is a registered native title claimant, any other person included in the native title claim group concerned is a negotiation party for this purpose only.

Copy of declaration to be given to parties

The arbitral body must give a copy of the declaration to the negotiation parties.

This section applies if 2 or more acts are, in accordance with subsection 29(9), project acts for the purposes of this Subdivision.

General rule—project acts treated as a single act

This Subdivision applies to all of the project acts as if they were a single act.

Conditions

However, this does not mean that conditions of the kind mentioned in paragraph 31(1)(b), 36C(4)(c), 38(1)(c) or 42(3)(b) must:

apply to all of the project acts comprising the single act; or

be the same for all of the project acts to which they apply.

Determination about alternative provisions

If:

a law of a State or Territory provides for alternative provisions to those contained in this Subdivision in relation to some or all acts to which this Subdivision applies that are attributable to the State or Territory; and

the Commonwealth Minister determines, by legislative instrument, that the alternative provisions comply with subsection (2);

then, while the determination is in force, the alternative provisions have effect instead of this Subdivision.

Requirement to be satisfied

The alternative provisions comply with this subsection if, in the opinion of the Commonwealth Minister, they:

contain appropriate procedures for notifying registered native title bodies corporate, representative bodies, registered native title claimants and potential native title claimants of the act; and

require negotiation in good faith among the persons concerned; and

provide for mediation by a person or body to assist in settling any dispute among the persons concerned regarding the act; and

give registered native title bodies corporate and registered native title claimants the right to object against the act; and

make provision on similar terms to section 30 and contain time limits similar to those applicable under this Subdivision; and

provide that the body determining the objection consists of, or includes, persons enrolled for at least 5 years as legal practitioners of:

the High Court; or

another federal court; or

the Supreme Court of a State or Territory; and

make provision to the same effect as section 39 in relation to matters that are required to be taken into account by the body determining the objection; and

if the alternative provisions involve the hearing and determination of the objection by a person or body other than the NNTT or a recognised State/Territory body for the State or Territory—provide for a member of the recognised State/Territory body (if any) or of the NNTT to participate in the determination; and

provide that any decision of the body determining the objection may only be overruled on grounds of State or Territory interest or of national interest; and

make appropriate provision for compensation for the act, including provision for:

bank guarantees on similar terms to those in subsections 36C(5), 41(3) and 42(5), and regulations made for the purposes of subsections 36C(5A), 41(4) and 42(5A); or

for trusts on similar terms to those in subsections 36C(5B), 41(5) and 42(5B); and

if the alternative provisions allow a Minister to make a determination in relation to the act in circumstances other than those covered in paragraph (i)—provide for those circumstances to be similar to those set out in section 36A and for requirements similar to those in sections 36B and 36C to apply.

Effect of including conjunctive agreement/determination provisions and expedited procedure provisions

If the only reason for the Commonwealth Minister not being of the opinion that the alternative provisions comply with subsection (2) is that they include conjunctive agreement/determination provisions or expedited procedure provisions (see subsection (5)), the alternative provisions nevertheless comply with subsection (2).

Revocation of determination

If at any time the alternative provisions are amended so that they no longer comply with subsection (2), the Commonwealth Minister must:

advise the State Minister or the Territory Minister concerned in writing of the fact; and

if, at the end of 180 days after doing so, the alternative provisions do not comply and subparagraphs (c)(i) and (ii) do not apply—by legislative instrument, revoke the determination made under paragraph (1)(b); and

if:

at the end of 180 days after advising the State Minister or Territory Minister, the alternative provisions do not comply and the Commonwealth Minister is satisfied that the State Minister or the Territory Minister is using his or her best endeavours to ensure that the alternative provisions will comply; and

before the end of the 180 days, the Commonwealth Minister determined, by legislative instrument, that a further period should apply for the purposes of this paragraph; and

at the end of the further period, the alternative provisions still do not comply;

by legislative instrument, revoke the determination made under paragraph (1)(b).

If, at any time, the alternative provisions cease to have ongoing effect, the Commonwealth Minister must, by legislative instrument, revoke the determination made under paragraph (1)(b).

Regulations to make transitional provisions

The regulations may prescribe any modifications of this Act that are necessary to deal with transitional matters arising from the making, amendment or revocation of determinations under this section.

Meaning of certain expressions

In this section:

conjunctive agreement/determination provisions means provisions that:

are included in alternative provisions; and

in the opinion of the Commonwealth Minister, have an effect, in combination with the other alternative provisions, that is similar to the effect that subsection 26D(2) of this Act has in combination with the other provisions of this Subdivision.

expedited procedure provisions means provisions that:

are included in alternative provisions; and

in the opinion of the Commonwealth Minister, have an effect, in combination with the other alternative provisions, that is similar to the effect that section 32 of this Act has in combination with the other provisions of this Subdivision.

Determination about alternative provisions

If:

a law or laws of a State or Territory provide for alternative provisions to those contained in this Subdivision in relation to some or all acts to which this Subdivision applies that:

are attributable to the State or Territory; and

relate, to any extent, to an area of land or waters that is an alternative provision area (see subsection (2)); and

the Commonwealth Minister determines, by legislative instrument, that the provisions comply with subsections (4) and (6) and that the requirements of subsection (7) are complied with;

then, subject to subsection (10), while the determination is in force, the alternative provisions have effect instead of this Subdivision.

Meaning of alternative provision area

(2) An alternative provision area is:

an area:

that is, or was (whether before or after this Act commenced), covered by a freehold estate in fee simple or by a lease (other than a mining lease); and

over which all native title rights and interests have not been extinguished; or

Example 1: An example of such an area is an area covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease (including one subject to section 47).

Example 2: An example of a freehold estate in fee simple over which all native title rights and interests may not have been extinguished is one whose grant or vesting is covered by subsection 23B(9), (9A), (9B) or (9C).

an area that is, or was (whether before or after this Act commenced):

covered by a reservation, proclamation, dedication, condition, permission or authority, made or conferred by the Crown in right of the State or Territory or by the making, amendment or repeal of legislation of the State or Territory, under which the whole or a part of the land or waters in the area was to be used for public purposes generally or for a particular purpose; and

in use for public purposes, for the particular purpose or for a similar purpose; or

Example: An example of an area covered by paragraph (b) is an area containing a national park.

an area that, when the act is done, is wholly within a town or city (see section 251C).

Notification of proposed determination

Before making the determination, the Commonwealth Minister must:

notify all representative Aboriginal/Torres Strait Islander bodies for the land or waters concerned of the proposed determination; and

invite submissions from them about the proposed determination; and

consider any submissions made in response to the invitation.

Requirement to be satisfied: procedures etc.

For the purposes of paragraph (1)(b), the alternative provisions comply with this subsection if, in the opinion of the Commonwealth Minister, they:

contain appropriate procedures for notifying each of the following that an act to which the provisions apply is to be done:

(i) any registered native title claimant (a claimant) in relation to any of the land or waters to which the act relates;

(ii) any registered native title body corporate (a body corporate) in relation to any of that land or waters;

any representative Aboriginal/Torres Strait Islander body in relation to any of that land or waters; and

give any claimant or body corporate the right to object, within a specified period after the notification, to the doing of the act so far as it affects their registered native title rights and interests; and

if the act is of the kind mentioned in subparagraph 26(1)(c)(iii) (which deals with certain compulsory acquisitions)—provide for consultation (including provide in relation to mediation) between:

any claimants, and bodies corporate, who object; and

the State or Territory;

about ways of minimising the act’s impact on registered native title rights and interests in relation to the land or waters concerned; and

in any other case—provide for consultation (including provide in relation to mediation) between:

any claimants, and bodies corporate, who object; and

the person who requested or applied for the doing of the act;

about ways of minimising the act’s impact on registered native title rights and interests in relation to the land or waters concerned, including about any access to the land or waters or the way in which any thing authorised by the act might be done; and

if any person objects as mentioned in paragraph (b), provide for the objection to be heard by an independent person or body; and

Example: The independent person or body could be a State or Territory tribunal which deals with acts of the kind concerned, for example, a mining warden where the act is the grant of a mining lease.

provide for judicial review of the decision to do the act; and

Example: The judicial review could be by the Supreme Court of the State or Territory.

provide that, if the independent person or body hearing any objection as mentioned in paragraph (e) makes a determination upholding the objection, or that contains conditions about the doing of the act that relate to registered native title rights and interests, the determination must be complied with unless:

the Minister of the State or the Territory responsible for indigenous affairs is consulted; and

the consultation is taken into account; and

it is in the interests of the State or the Territory not to comply with the determination; and

if the act is of the kind mentioned in subparagraph 26(1)(c)(iii) (which deals with certain compulsory acquisitions)—confer on each claimant and body corporate procedural rights that are not less favourable than those they would have on the assumption that they instead held ordinary title to any land concerned and to the land adjoining, or surrounding, any waters concerned.

Meaning of determination

In paragraph (4)(g):

determination includes recommendation.

in the interests of the State or the Territory includes:

for the social or economic benefit of the State or the Territory (including of Aboriginal peoples and Torres Strait Islanders); and

in the interests of the relevant region or locality in the State or the Territory.

Requirement to be satisfied: compensation

For the purposes of paragraph (1)(b), the alternative provisions comply with this subsection if, in the opinion of the Commonwealth Minister, they provide for compensation for the effect of the act on native title to be payable and for any dispute about the compensation to be determined by an independent person or body.

Requirement to be satisfied: preservation of areas of significance

For the purposes of paragraph (1)(b), the requirements of this subsection are complied with if, in the opinion of the Commonwealth Minister, a law of the Commonwealth, the State or the Territory provides, for the whole of the land or waters to which the alternative provisions relate, in relation to the preservation or protection of areas, or sites, that may be of particular significance to Aboriginal peoples or Torres Strait Islanders in accordance with their traditions.

Different provisions for different kinds of land or waters

Laws of a State or Territory may make different provision under subsection (1) in relation to different kinds of land or waters.

Note: In such a case, the Commonwealth Minister would need to make separate determinations under that subsection.

Revocation of determination

If at any time the alternative provisions are amended so that they no longer comply as mentioned in paragraph (1)(b), the Commonwealth Minister must:

advise the State Minister or the Territory Minister concerned in writing of the fact; and

if, at the end of 90 days after doing so, the alternative provisions do not comply and subparagraphs (c)(i) and (ii) do not apply—by legislative instrument, revoke the determination made under paragraph (1)(b); and

if:

at the end of 90 days after advising the State Minister or Territory Minister, the alternative provisions do not comply and the Commonwealth Minister is satisfied that the State Minister or the Territory Minister is using his or her best endeavours to ensure that the alternative provisions will comply; and

before the end of the 90 days, the Commonwealth Minister determined, by legislative instrument, that a further period should apply for the purposes of this paragraph; and

at the end of the further period, the alternative provisions still do not comply;

by legislative instrument, revoke the determination made under paragraph (1)(b).

If, at any time, the alternative provisions cease to have ongoing effect, the Commonwealth Minister must, by legislative instrument, revoke the determination made under paragraph (1)(b).

Exclusion of certain compulsory acquisitions

The alternative provisions do not apply to an act of the kind mentioned in subparagraph 26(1)(c)(iii) (which deals with certain compulsory acquisitions) if the act involves the acquisition of native title rights and interests in relation to land or waters in both an alternative provision area and an area that is not an alternative provision area.

Regulations to make transitional provisions

The regulations may prescribe any modifications of this Act that are necessary to deal with transitional matters arising from the making, amendment or revocation of determinations under this section.

If:

(a) a particular future act is the creation or variation of a right to mine in both an alternative provision area (other area) that is not an alternative provision area; andas defined in subsection 43A(2)) and an area (the

because of section 43A, provisions of a State or Territory law would, apart from this section, have effect in relation to the act;

then, for the purposes of this Subdivision:

the act is taken to consist of 2 separate acts, as follows:

one act consisting of the creation or variation of that right to mine, but only in the alternative provision area; and

the other act consisting of the creation or variation of that right to mine, but only in the other area; and

the act mentioned in subparagraph (c)(ii) is taken to be done only when the right concerned is first exercised in the other area.

Note: In effect, this section splits the act in 2 (for “right to negotiate” purposes only). Only the “act” mentioned in subparagraph (c)(i)—not the “act” mentioned in subparagraph (c)(ii)—attracts the alternative provisions under section 43A.

Without affecting its operation apart from this section, this Subdivision also has the effect that it would have if each reference to a grantee party were, by express provision, confined to a grantee party that is a foreign corporation, or a trading or financial corporation formed within the limits of the Commonwealth.

Subdivision Q—Conferral of access rights on native title claimants in respect of non-exclusive agricultural and pastoral leases

This Subdivision applies if the conditions in this section are met.

Person in claim group in respect of registered claim over non-exclusive agricultural or pastoral lease

A person must be included in the native title claim group (see section 253) in relation to a claim:

for which there is an entry on the Register of Native Title Claims; and

Note: Under paragraph 190(4)(d), entries on the Register must be removed when the application in question is withdrawn, dismissed or otherwise finalised.

that relates to any extent to an area that is covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease.

Access for traditional activities

Either:

(a) as at the end of 23 December 1996, the person included in the native title claim group must have regularly had physical access to the whole or part (the traditional access area) of the area that is covered by both the claim and the lease for the purpose of carrying on one or more traditional activities (see subsection (4)) of the person; or

the person included in the native title claim group must be a descendant of a person who, as at 23 December 1996, regularly had such physical access.

Traditional activity

(4) A traditional activity is an activity of any of the following kinds, but only if it is carried on for traditional purposes of Aboriginal people or Torres Strait Islanders:

hunting, fishing, gathering or camping;

performing rites or other ceremonies;

visiting sites of significance.

Conferral of rights

At all times while this Subdivision applies, the person included in the native title claim group has a right:

to have access, in the same way and to the same extent as the access mentioned in subsection 44A(3), to the traditional access area for the purpose of carrying on the one or more traditional activities in that area in the same way and to the same extent as they were carried on pursuant to the access mentioned in that subsection; and

to carry on those activities in that area in that way and to that extent.

Lessee etc. rights prevail

The rights of:

the lessee under the lease; or

any person with non-native title rights or interests in relation to the traditional access area;

prevail over the rights conferred by subsection (1). To avoid doubt, the existence and exercise of the rights conferred by subsection (1) do not prevent the doing of any thing in exercise of the rights of the lessee or person with the non-native title rights or interests.

Agreements about rights

The lessee or any person with non-native title rights or interests in relation to the traditional access area may make an agreement with the person included in the native title claim group about:

the manner of exercise of any of the rights conferred by subsection (1); or

the variation of any of those rights.

Note: For example, an agreement might be made requiring notification of intended exercise of the rights.

Assistance in making agreements

Any persons wishing to make such an agreement may request assistance from the NNTT or a recognised State/Territory body in negotiating the agreement.

Information obtained in providing assistance not to be used or disclosed in other contexts

(4A) The NNTT must not use or disclose information to which it has had access only because it provided assistance in negotiating the agreement for any purpose other than providing that assistance without the prior consent of the person who provided the NNTT with the information.

Statutory access rights do not amount to native title

To avoid doubt, the fact that the person satisfies the conditions in section 44A does not mean that the person has native title rights and interests in relation to the traditional access area.

For so long as the person included in the native title claim group has rights conferred by subsection 44B(1), no person can enforce any native title rights or interests in relation to the whole or part of the land or waters covered by the lease, except in proceedings before the Federal Court or a recognised State/Territory body that are related to the making of an approved determination of native title.

Other provisions not affected

Subsection (1) does not affect the operation of any other provision of this Act.

Note: The “right to negotiate” provisions in Subdivision P are an example of provisions that are not intended to be affected.

Laws etc. of benefit to Aboriginal peoples or Torres Strait Islanders

This Subdivision does not affect:

any reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders contained:

in any law of the Commonwealth, a State or a Territory; or

elsewhere; or

the operation of any law of the Commonwealth, a State or a Territory that allows for the granting of access rights to Aboriginal peoples or Torres Strait Islanders; or

the operation of any law of the Commonwealth, a State or Territory that relates to the preservation or protection of any area or site of particular significance to Aboriginal peoples or Torres Strait Islanders in accordance with their traditions.

Laws of general application

This Subdivision is not intended to imply that, in exercising rights conferred by subsection 44B(1), a person is not subject to laws of the Commonwealth, a State or a Territory that are of general application.

The Federal Court may, in its discretion, refuse to exercise the jurisdiction conferred on it under subsection 213(2) in relation to a matter involving a right conferred by subsection 44B(1) for the reason that an adequate alternative means of resolving the matter is available.

If all of the persons involved in any dispute about a right conferred by subsection 44B(1) agree, they may request the NNTT or a recognised State/Territory body to mediate in the dispute.

Note: Persons wishing to make an indigenous land use agreement about access in general may request assistance from the NNTT or a recognised State/Territory body in negotiating the agreement: see sections 24BF, 24CF and 24DG.

(2) The NNTT must not use or disclose information to which it has had access only because it mediated in the dispute for any purpose other than mediating the dispute without the prior consent of the person who provided the NNTT with the information.

Nothing in this Subdivision prevents:

mediation or arbitration by any person or body of any matter arising in relation to a right conferred by subsection 44B(1); or

the making or enforcing of agreements about access to the area covered by the non-exclusive agricultural lease or the non-exclusive pastoral lease other than under rights conferred by subsection 44B(1).

To avoid doubt, if:

the grant, issue or creation of a lease, licence, permit or authority is valid (including because of any provision of this Act); and

the lease, licence, permit or authority requires or permits the doing of any activity (whether or not subject to any conditions); and

an activity is done in accordance with the lease, licence, permit or authority and any such conditions;

then:

the requirement or permission, and the doing of the activity, prevail over any native title rights and interests and any exercise of those rights and interests, but do not extinguish them; and

the existence and exercise of the native title rights and interests do not prevent the doing of the activity; and

native title holders are not entitled to compensation under this Act for the doing of the activity.

Note 1: Any compensation to which the native title holders may be entitled under this Act for the grant of the lease, licence, permit or authority may take into account the doing of the activity.

Note 2: This section is not intended to imply that the person carrying on the activity is not subject to the laws of a State or Territory.

(1) If the Racial Discrimination Act 1975 has the effect that compensation is payable to native title holders in respect of an act that validly affects native title to any extent, the compensation, in so far as it relates to the effect on native title, is to be determined in accordance with section 50 as if the entitlement arose under this Act.

Recovery of compensation

If the act took place before 1 January 1994 and is attributable to the Commonwealth, a State or a Territory, the native title holders may recover the compensation from the Commonwealth, the State or the Territory, as the case requires.

The non-extinguishment principle applies to:

(a) the granting of the mineral leases and exploration licences validated by McArthur River Project Agreement Ratification Amendment Act 1993 of the Northern Territory; andsection 3 of the

(b) the granting of the mineral lease and exploration licence by McArthur River Project Agreement Ratification Act 1992 of the Northern Territory.section 4A of the

When section applies

This section applies if:

an application under section 61 is made in relation to an area; and

when the application is made, a pastoral lease is held over the area by:

any of the persons who made the application claiming to hold the native title or any other persons with whom they claimed to hold the title; or

a trustee, on trust for any of those persons; or

a company whose only shareholders or, in the case of a body corporate without shareholders, members are any of those persons.

Prior extinguishment to be disregarded

For all purposes under this Act in relation to the application, any extinguishment of the native title rights and interests by any of the following acts must be disregarded:

the grant of the lease itself;

the creation of any other interest itself in relation to the area;

the doing of any act under the lease or by virtue of holding the interest.

Note: The applicant will still need to show the existence of any connection with the land or waters concerned that may be required by the common law concept of native title.

Effect of determination

If the determination on the application is that the native title exists and is held by the persons mentioned in subparagraph (1)(b)(i), (ii) or (iii):

the determination does not affect:

the validity of the lease; or

any interest of the Crown in any capacity, or of any statutory authority, in any public works on the land or waters concerned; and

the non-extinguishment principle applies in relation to the grant of the lease and any other prior act affecting the native title; and

any person, trustee or company holding the lease as mentioned in subparagraph (1)(b)(i), (ii) or (iii) has no procedural rights as holder of the lease in relation to any act, in relation to the land or waters, to which Subdivision P of Division 3 (which deals with the right to negotiate) applies.

When section applies

This section applies if:

a claimant application is made in relation to an area; and

when the application is made:

a freehold estate exists, or a lease is in force, over the area or the area is vested in any person, if the grant of the freehold estate or lease or the vesting took place under legislation that makes provision for the grant or vesting of such things only to, in or for the benefit of, Aboriginal peoples or Torres Strait Islanders; or

the area is held expressly for the benefit of, or is held on trust, or reserved, expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders; and

when the application is made, one or more members of the native title claim group occupy the area.

Prior extinguishment to be disregarded

For all purposes under this Act in relation to the application, any extinguishment, of the native title rights and interests in relation to the area that are claimed in the application, by any of the following acts must be disregarded:

the grant or vesting mentioned in subparagraph (1)(b)(i) or the doing of the thing that resulted in the holding or reservation mentioned in subparagraph (1)(b)(ii);

the creation of any other prior interest in relation to the area, other than, in the case of an area held as mentioned in subparagraph (1)(b)(ii), the grant of a freehold estate for the provision of services (such as health and welfare services).

Note: The applicant will still need to show the existence of any connection with the land or waters concerned that may be required by the common law concept of native title.

Effect of determination

If the determination on the application is that the native title claim group hold the native title rights and interests claimed:

the determination does not affect:

the validity of the grant or vesting or of the creation of the trust or reservation; or

the validity of the creation of any other prior interest in relation to the area; or

any interest of the Crown in any capacity, or of any statutory authority, in any public works on the land or waters concerned; and

the non-extinguishment principle applies to the grant or vesting or the creation of the trust or reservation or any other prior interest.

Exclusion of Crown ownership of natural resources

For the purposes of this section, a reference to the creation of an interest in relation to an area does not include a reference to the creation of an interest that confirms ownership of natural resources by, or confers ownership of natural resources on, the Crown in any capacity.

When section applies

This section applies if:

a claimant application is made in relation to an area; and

when the application is made, the area is not:

covered by a freehold estate or a lease; or

covered by a reservation, proclamation, dedication, condition, permission or authority, made or conferred by the Crown in any capacity, or by the making, amendment or repeal of legislation of the Commonwealth, a State or a Territory, under which the whole or a part of the land or waters in the area is to be used for public purposes or for a particular purpose; or

subject to a resumption process (see paragraph (5)(b)); and

when the application is made, one or more members of the native title claim group occupy the area.

Prior extinguishment to be disregarded

For all purposes under this Act in relation to the application, any extinguishment, of the native title rights and interests in relation to the area that are claimed in the application, by the creation of any prior interest in relation to the area must be disregarded.

Note: The applicant will still need to show the existence of any connection with the land or waters concerned that may be required by the common law concept of native title.

Effect of determination

If the determination on the application is that the native title claim group hold the native title rights and interests claimed:

the determination does not affect:

the validity of the creation of any prior interest in relation to the area; or

any interest of the Crown in any capacity, or of any statutory authority, in any public works on the land or waters concerned; and

the non-extinguishment principle applies to the creation of any prior interest in relation to the area.

Renewals and extensions of leases

For the purposes of paragraph (1)(b), if, after a lease covering an area expires or is terminated, the lease is bona fide renewed, or its term is bona fide extended, the area is taken to be covered by the lease during the period between the expiry or termination and the renewal or extension.

Defined expressions

For the purposes of this section:

(a) the creation of a prior interest in relation to an area does not include the creation of an interest that confirms ownership of natural resources by, or confers ownership of natural resources on, the Crown in any capacity; and

(b) an area is subject to a resumption process at a particular time (the test time) if:

all interests last existing in relation to the area before the test time were acquired, resumed or revoked by, or surrendered to, the Crown in any capacity; and

when that happened, the Crown had a bona fide intention of using the area for public purposes or for a particular purpose; and

the Crown still had a bona fide intention of that kind in relation to the area at the test time.

When section applies

This section applies if:

a claimant application or a revised native title determination application is made in relation to an area that is, or is part of, a park area (see subsection (3)); and

(b) the operation of this section in relation to an area (the agreement area) that is in an onshore place, and comprises the whole or a part of the park area, has been agreed to in writing by:

any registered native title body corporate concerned or the applicant for any native title claim group concerned; and

whichever of the Commonwealth, the State or the Territory by or under whose law the park area was set aside, or the interest over the park area was granted or vested, as mentioned in subsection (3); and

the agreement area is:

Crown land; or

covered by a freehold estate held by the Crown, or a statutory authority of the Crown, in any of its capacities; and

none of sections 47, 47A and 47B applies in relation to the agreement area.

For the purposes of paragraph (1)(c), it is immaterial whether the land is:

subject to a lease or licence; or

covered by a dedication, reservation, proclamation, condition or declaration made or conferred by the Commonwealth, a State or a Territory; or

covered by legislation of the Commonwealth, a State or a Territory under which the whole or a part of the land is to be used for a public purpose or public purposes; or

held on trust for the benefit of another person; or

subject to native title.

Meaning of park area

(3) A park area means an area (such as a national, State or Territory park):

that is set aside; or

over which an interest is granted or vested;

by or under a law of the Commonwealth, a State or a Territory for the purpose of, or purposes that include, preserving the natural environment of the area, whether that setting aside, granting or vesting resulted from a dedication, reservation, proclamation, condition, declaration, vesting in trustees or otherwise.

Public works

An agreement referred to in paragraph (1)(b) may include a statement by the Commonwealth, or the State or Territory concerned, that it agrees that the extinguishing effect of any of its relevant public works (see subsection (11)) in the agreement area is to be disregarded.

If the agreement area contains one or more relevant public works, the application mentioned in paragraph (1)(a) may also be the subject of an agreement in writing between:

any registered native title body corporate concerned or the applicant for any native title claim group concerned; and

the Commonwealth, the State or the Territory to which the relevant public work relates (see subsection (11));

that any extinguishment of native title by the construction or establishment of the relevant public work is to be disregarded.

Notice and time for comment

Before making an agreement for the purposes of paragraph (1)(b) or subsection (5), the Commonwealth, or the State or Territory concerned, must:

arrange for reasonable notification of the proposed agreement in the State or Territory in which the agreement area is located, whether on the internet, in a newspaper circulating generally in the State or Territory, on the radio or otherwise; and

give interested persons an opportunity to comment on the proposed agreement.

The period for comment must be at least 3 months.

The agreement must not be made before the end of the period for comment.

Prior extinguishment to be disregarded

For all purposes under this Act in relation to the application, any extinguishment of the native title rights and interests in relation to the agreement area by any of the following acts must be disregarded:

the setting aside, granting or vesting mentioned in subsection (3);

the creation of any other prior interest in relation to the agreement area;

if:

the agreement under paragraph (1)(b) includes a statement of a kind mentioned in subsection (4); or

there is an agreement under subsection (5);

the construction or establishment of any relevant public works that are the subject of the agreement concerned.

Effect of determination

Note: The applicant will still need to show the existence of any connection with the land or waters concerned that may be required by the common law concept of native title.

If the determination on the application is that native title rights and interests exist in the agreement area:

the determination does not affect:

the validity of the setting aside, granting or vesting; or

the validity of the creation of any other prior interest in relation to the agreement area; or

any interest of the Crown in any capacity, or of any statutory authority, or of any other person, in any public works on the land or waters concerned (whether or not a relevant public work that is the subject of an agreement), or access to such public works; or

any existing public access to the agreement area; and

the non-extinguishment principle applies to the setting aside, granting or vesting or the creation of any other prior interest in relation to the agreement area.

Exclusion of Crown ownership of natural resources

For the purposes of this section, a reference to the creation of an interest in relation to an area does not include a reference to the creation of an interest that confirms ownership of natural resources by, or confers ownership of natural resources on, the Crown in any capacity.

Definitions

In this section:

Crown land means:

land that has not been alienated from the Crown in right of the Commonwealth, a State or a Territory by a grant of an estate in fee simple; or

land that has been so alienated, but has been resumed by, or has reverted to or been acquired by, the Crown.

relevant public work, in relation to the Commonwealth, a State or a Territory, means a public work:

constructed or established directly by the Commonwealth, the State or the Territory; or

constructed or established by another person on behalf of the Commonwealth, the State or the Territory.

Compensation payable under Division 2, 2A, 2B, 3 or 4 in relation to an act is only payable in accordance with this Division.

Despite anything in Division 2, 2A, 2B, 3 or 4:

compensation is only payable under this Act once for acts that are essentially the same; and

the court, person or body determining compensation in accordance with this Division must take into account any compensation awarded under a law of a State or Territory, or under another Commonwealth law, for essentially the same act.

Division exhaustive

A determination of the compensation may only be made in accordance with this Division.

Note: Such compensation is generally for acts that are validated or valid. Native title holders would ordinarily be entitled to compensation or damages for invalid acts under the general law. The Federal Court may be able to award such compensation or damages in proceedings in relation to the invalidity of the act: see subsection 213(2).

Applications to Federal Court

An application may be made to the Federal Court under Part 3 for a determination of the compensation.

Jurisdiction to hear appeals, to review etc. not affected

Nothing in this Division affects:

any jurisdiction of a court, person or body to hear appeals against, to review or otherwise to affect, a determination of compensation made in accordance with this Division; or

the jurisdiction of the High Court.

Just compensation

Subject to subsection (3), the entitlement to compensation under Division 2, 2A, 2B, 3 or 4 is an entitlement on just terms to compensate the native title holders for any loss, diminution, impairment or other effect of the act on their native title rights and interests.

Acquisition under compulsory acquisition law

If the act is the compulsory acquisition of all or any of the native title rights and interests of the native title holders, the court, person or body making the determination of compensation on just terms may, subject to subsections (5) to (8), in doing so have regard to any principles or criteria for determining compensation set out in the law under which the compulsory acquisition takes place.

Compensation where similar compensable interest test satisfied

If:

the act is not the compulsory acquisition of all or any of the native title rights and interests; and

the similar compensable interest test is satisfied in relation to the act;

the court, person or body making the determination of compensation must, subject to subsections (5) to (8), in doing so apply any principles or criteria for determining compensation (whether or not on just terms) set out in the law mentioned in similar compensable interest test).section 240 (which defines

Compensation not covered by subsection (2) or (3)

If:

neither subsection (2) nor (3) applies; and

there is a compulsory acquisition law for the Commonwealth (if the act giving rise to the entitlement is attributable to the Commonwealth) or for the State or Territory to which the act is attributable;

the court, person or body making the determination of compensation on just terms may, subject to subsections (5) to (8), in doing so have regard to any principles or criteria set out in that law for determining compensation.

Monetary compensation

Subject to subsection (6), the compensation may only consist of the payment of money.

Requests for non-monetary compensation

If the person claiming to be entitled to the compensation requests that the whole or part of the compensation should consist of the transfer of property or the provision of goods or services, the court, person or body:

must consider the request; and

may, instead of determining the whole or any part of the compensation, recommend that the person liable to give the compensation should, within a specified period, transfer property or provide goods or services in accordance with the recommendation.

Where recommendation not complied with

If the person does not transfer the property or provide the goods or services in accordance with the recommendation, the person claiming to be entitled to the compensation may request the court, person or body to determine instead that the whole or the part of the compensation concerned is to consist of the payment of money.

Where recommendation complied with

If the person does transfer the property or provide the goods or services in accordance with the recommendation, the transfer of the property or provision of the goods or services constitutes full compensation for the act, and the entitlement to it is taken to have been determined in accordance with this Division.

Compensation limited by reference to freehold estate

The total compensation payable under this Division for an act that extinguishes all native title in relation to particular land or waters must not exceed the amount that would be payable if the act were instead a compulsory acquisition of a freehold estate in the land or waters.

This section is subject to section 53

This section has effect subject to section 53 (which deals with the requirement to provide “just terms” compensation).

This section applies if a condition to be complied with under:

a determination made under section 36A; or

a determination made under section 38; or

a declaration made under section 42;

in respect of an act is that an amount is to be secured by bank guarantee given by an authorised deposit-taking institution within the meaning of the Banking Act 1959 (an ADI) in favour of the Registrar.

Directions to ADI and payments to ultimate beneficiaries

The Registrar must take the action set out in column 3 of the following table in the circumstances set out in column 2 of the table:

Application to the Federal Court where compensation includes transfer of property or provision of goods or services

If:

a determination is made, on a claim for compensation in respect of the act:

in accordance with this Division; or

on just terms under a law of the Commonwealth or of a State or Territory dealing with the compulsory acquisition of rights or interests in the land or waters in relation to which compensation is claimed;

that a person is entitled to compensation; and

some or all of the compensation is constituted by the transfer of property or the provision of goods or services;

the Registrar must apply to the Federal Court for a direction as to the payment of the amount secured.

Federal Court jurisdiction

The Federal Court has jurisdiction in relation to the matters mentioned in:

items 5, 8 and 9 of the table in subsection (2); and

subsection (3).

Compensation payable is greater amount than that secured

If:

a determination is made, on a claim for compensation in respect of the act:

in accordance with this Division; or

on just terms under a law of the Commonwealth or of a State or Territory dealing with the compulsory acquisition of rights or interests in the land or waters in relation to which compensation is claimed;

that a person is entitled to compensation; and

the amount secured by the bank guarantee is less than the amount determined;

the Government party must pay the shortfall to the person.

No compensation if already paid under bank guarantee

Subject to the Registrar pays an amount to a registered native title body corporate in accordance with item 3 of the table in subsection (2), there is no entitlement to compensation under Division 3 for the act.section 53, if

When section applies

(1) This section applies if an amount (the trust amount) in respect of an act is being held in trust in accordance with paragraph 36C(5B)(b), subsection 41(5) or paragraph 42(5B)(b) and any of the following happens:

an approved determination of native title is made to the effect that there is no native title in relation to the area concerned immediately before the act takes place;

the Government party informs the trustee in writing that it is not going to do the act;

the following requirements are satisfied:

an approved determination of native title is made to the effect that the native title parties concerned are (disregarding any holding of the native title in trust under Division 6) the native title holders in relation to the area affected by the act;

the registered native title body corporate advises the trustee that it wishes to accept the trust amount instead of any compensation to which the native title holders may be entitled under Division 3 for the act;

the person who paid the trust amount advises the trustee that the person agrees to the registered native title body corporate accepting the trust amount instead of any compensation to which the native title holders may be entitled under Division 3 for the act;

a determination is made, on a claim for compensation in respect of the act:

in accordance with this Division; or

on just terms under a compulsory acquisition law;

that a person is entitled to compensation, or that no compensation is payable to any person;

none of paragraphs (a), (b), (c) and (d) applies and the Federal Court decides, on application by any person, that it would be just and equitable in all the circumstances to pay the trust amount to that person or another person.

Paragraph (1)(a) or (b) case

In a paragraph (1)(a) or (b) case, the trustee must:

repay the trust amount to the person who paid it to the trustee; or

if that person no longer exists—apply to the Federal Court for a direction as to the payment of the trust amount.

Paragraph (1)(c) case

In a paragraph (1)(c) case:

the trustee must pay the trust amount to the body corporate; and

subject to section 53, there is no entitlement to compensation under Division 3 for the act.

Paragraph (1)(d) case where monetary compensation

In a paragraph (1)(d) case where the determination is that a person is entitled to an amount of monetary compensation:

if the trust amount is the same as the amount determined—the trustee must pay the trust amount to the person; or

if the trust amount is less than the amount determined—the trustee must pay the trust amount to the person and the Government party must pay the shortfall to the person; or

if the trust amount is more than the amount determined—the trustee must:

pay the person so much of the trust amount as equals the amount determined; and

refund the excess to the person who paid the trust amount to the trustee or, if that person no longer exists, apply to the Federal Court for a direction as to its payment.

Paragraph (1)(d) case where non-monetary compensation

In a paragraph (1)(d) case where the transfer of property or the provision of goods or services constitutes some or all of the compensation, the trustee must apply to the Federal Court for a direction as to the payment of the trust amount.

Paragraph (1)(d) case where no compensation

In a paragraph (1)(d) case where the determination is that no compensation is payable or to be given to any person, the trustee must repay the trust amount to the person who paid it to the trustee or, if that person no longer exists, apply to the Federal Court for a direction as to its payment.

Paragraph (1)(e) case

In a paragraph (1)(e) case, the trustee must pay the trust amount in accordance with the decision of the Federal Court mentioned in that paragraph.

Entitlement to just terms compensation

Where, apart from this section:

the doing of any future act; or

the application of any of the provisions of this Act in any particular case;

would result in a paragraph 51(xxxi) acquisition of property of a person other than on paragraph 51(xxxi) just terms, the person is entitled to such compensation, or compensation in addition to any otherwise provided by this Act, from:

if the compensation is in respect of a future act attributable to a State or a Territory—the State or Territory; or

in any other case—the Commonwealth;

as is necessary to ensure that the acquisition is made on paragraph 51(xxxi) just terms.

Federal Court’s jurisdiction

The Federal Court has jurisdiction with respect to matters arising under subsection (1) and that jurisdiction is exclusive of the jurisdiction of all other courts except the High Court.

Amounts payable from CRF

The following amounts are payable out of the Consolidated Revenue Fund:

amounts of compensation payable by the Commonwealth in accordance with this Division;

amounts to be spent by the Commonwealth in acquiring property or providing goods or services in order to comply with a recommendation under paragraph 51(6)(b) (which deals with requests for non-monetary compensation).

Appropriation

The Consolidated Revenue Fund is appropriated for the purposes of paying the amounts.

If:

the Federal Court proposes to make an approved determination of native title; and

the determination is that native title exists at the time of making the determination;

the Federal Court must, at the same time as, or as soon as practicable after, it makes the determination, make such determinations as are required by sections 56 (which deals with holding the native title on trust) and 57 (which deals with non-trust functions of prescribed bodies corporate).

Trust determination

One of the determinations that the Federal Court must make is whether the native title is to be held in trust, and, if so, by whom.

Steps in making determination

The Federal Court is to take the following steps in making the determination:

(a) first, it must request a representative of the persons it proposes to include in the determination of native title as the native title holders (the common law holders) to indicate whether the common law holders intend to have the native title held in trust by:

nominating, in writing given to the Federal Court within a specified period, a prescribed body corporate to be trustee of the native title; and

including with the nomination the written consent of the body corporate; and

secondly, if the common law holders give the nomination within the period, the Federal Court must determine that the prescribed body corporate is to hold the rights and interests from time to time comprising the native title in trust for the common law holders; and

thirdly, if the common law holders do not give the nomination within the period, the Federal Court must determine that the rights and interests are to be held by the common law holders.

Native title held in trust

On the making of a determination under paragraph (2)(b), the prescribed body corporate holds, in accordance with the regulations, the rights and interests from time to time comprising the native title in trust for the common law holders.

Other matters relating to the trust to be dealt with by regulation

The regulations may also make provision in respect of:

the following matters relating to the holding in trust of the native title rights and interests:

the functions to be performed by the body corporate;

the nature of any consultation with, or other role for, the common law holders;

the circumstances in which the rights and interests may be surrendered, transferred or otherwise dealt with;

the determination of any other matter by the Federal Court;

any other matter; and

the replacement of the trustee where the common law holders wish the trustee to be replaced; and

the determination by the Federal Court of a prescribed body corporate to replace the trustee, and any other matter in relation to the replacement of the trustee; and

the termination of the trust where:

the common law holders wish the trust to be terminated; or

a liquidator is appointed for the body corporate; and

the determination by the Federal Court of a prescribed body corporate to perform the functions mentioned in subsection 57(3) once the trust is terminated; and

any matter in relation to the termination of the trust, the performance of those functions and the transition from the trust arrangement to the new arrangement, including the determination of those matters by the Federal Court.

Protection of native title from debt recovery processes etc.

Subject to subsection (6), native title rights and interests held by the body corporate are not able to be:

assigned, restrained, garnisheed, seized or sold; or

made subject to any charge or interest; or

otherwise affected;

as a result of:

the incurring, creation or enforcement of any debt or other liability of the body corporate (including a debt or liability owed to the Crown in any capacity or to any statutory authority); or

any act done by the body corporate.

Subsection (5) not applicable to dealings authorised by regulations

Subsection (5) does not apply if the incurring of the debt, creation of the liability or doing of the act was in connection with a dealing with the native title rights and interests authorised by regulations for the purposes of paragraph (4)(c).

Where common law holders later wish a trust be determined

The regulations may make provision in respect of:

the determination by the Federal Court of a prescribed body corporate to hold the rights and interests from time to time comprising the native title in trust for the common law holders where:

a determination is made, either under this section or under regulations made for the purposes of this section, that the rights and interests are to be held by the common law holders; and

the common law holders wish a prescribed body corporate to instead hold those rights and interests in trust; and

the functions to be performed by the prescribed body corporate, once determined; and

the nature of any consultation with, or other role for, the common law holders; and

the circumstances in which the rights and interests may be surrendered, transferred or otherwise dealt with; and

any other matter in relation to the holding in trust of the native title rights and interests, and the transition from the former to the new arrangement, including the determination of the matter by the Federal Court.

Where trustee

If the determination under section 56 is that the native title rights and interests are to be held in trust by a prescribed body corporate, the prescribed body corporate, after becoming a registered native title body corporate (see the definition of that expression in section 253), must also perform:

any other functions given to it as a registered native title body corporate under particular provisions of this Act; and

any functions given to it as a registered native title body corporate under the regulations (see section 58).

Where not trustee

If the determination under section 56 is not as mentioned in subsection (1) of this section, the Federal Court must take the following steps in determining which prescribed body corporate is, after becoming a registered native title body corporate, to perform the functions mentioned in subsection (3):

first, it must request a representative of the common law holders to:

nominate, in writing given to the Federal Court within a specified period, a prescribed body corporate for the purpose; and

include with the nomination the written consent of the body corporate;

secondly, if a prescribed body corporate is nominated in accordance with the request, the Federal Court must determine that the body is to perform the functions;

thirdly, if no prescribed body corporate is nominated in accordance with the request, the Federal Court must, in accordance with the regulations, determine which prescribed body corporate is to perform the functions.

Functions where not trustee

After becoming a registered native title body corporate, the body must perform:

any functions given to it as a registered native title body corporate under particular provisions of this Act; and

any functions given to it under the regulations (see section 58).

The regulations may make provision for a registered native title body corporate to do all or any of the following:

if it does not hold the native title on trust under section 56, or regulations made for the purposes of that section—to act as agent or representative of the common law holders in respect of matters relating to the native title;

to perform in a specified way any functions in relation to the native title given to it under other provisions of this Act;

to perform in a specified way any functions, in relation to a compensation application, given to it under other provisions of this Act;

to hold on trust, or perform functions in relation to, compensation under this Act;

to consult with, and act in accordance with the directions of, the common law holders, or persons entitled to compensation under this Act, in performing any of its functions;

if it does not hold the native title on trust—to enter into agreements in relation to the native title that are binding on the common law holders, provided the agreements have been made in accordance with processes set out in the regulations;

to perform any other functions in relation to the native title, or compensation under this Act.

The regulations may prescribe the kinds of body corporate that may be determined under paragraph 56(2)(b) or 57(2)(b).

The regulations may prescribe the body corporate, or the kinds of body corporate, that may be determined under paragraph 57(2)(c).

The regulations may prescribe the body corporate, or the kinds of body corporate, that may be determined under paragraph 56(4)(c) or (e), 56(7)(a) or 60(b).

If a prescribed body corporate holds native title rights and interests in trust for some common law holders, the Federal Court may determine under section 56 that the prescribed body corporate is to hold native title rights and interests in trust for other common law holders, so long as all of the common law holders mentioned consent to the determination.

If a prescribed body corporate is an agent prescribed body corporate for some common law holders, the Federal Court may determine under paragraph 57(2)(b) that the prescribed body corporate is to be the agent prescribed body corporate for other common law holders, so long all of the common law holders mentioned consent to the determination.

For the purposes of subsections (1) and (2), the regulations may prescribe the ways in which the consent of the common law holders may be obtained, and if the regulations do so, the common law holders must obtain the consent in that way.

The regulations may make provision for:

(a) the replacement of an agent prescribed body corporate (the original PBC) with another prescribed body corporate (the replacement PBC) to perform the functions mentioned in subsection 57(3) where:

the common law holders wish the replacement to occur; or

a liquidator is appointed for the original PBC; and

the determination by the Federal Court of the replacement PBC; and

any matter in relation to the transition from the original PBC to the replacement PBC, including the determination of that matter by the Federal Court; and

any other matters in relation to the replacement of the original PBC with the replacement PBC.

A registered native title body corporate may request the NNTT to provide assistance in promoting agreement about matters relating to native title or the operation of this Act between:

the registered native title body corporate and another registered native title body corporate; or

the registered native title body corporate and one or more common law holders; or

common law holders.

A common law holder may request the NNTT to provide assistance in promoting agreement about matters relating to native title or the operation of this Act between:

the common law holder and the registered native title body corporate; or

the common law holder, the registered native title body corporate and one or more other common law holders.

The NNTT may enter into an agreement with a registered native title body corporate or common law holder or both under which either or both of them are liable to pay the Commonwealth for assistance under subsection (1) or (2).

The NNTT must not use or disclose information to which it has had access only because it provided assistance under subsection (1) or (2) for any purpose other than providing that assistance without the prior consent of the person who provided the NNTT with the information.

If:

(a) a body corporate is or becomes registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006; and

all of the members of the body corporate are members of the Meriam people (see subsection (2)); and

one of the objects of the body corporate is to become a registered native title body corporate in relation to native title held by the Meriam people; and

a member of the Meriam people applies to the Federal Court for a determination under this section; and

the Court is satisfied that the applicant represents the Meriam people;

then:

this Act applies as if the body corporate were a prescribed body corporate nominated under subsection 56(2) or 57(2) in relation to those native title holders; and

the Court may make a determination under section 56 or 57, in relation to that native title, as if the Court were doing so at the same time as making an approved determination of native title as mentioned in section 55; and

if the Court makes such a determination under section 56 or 57—the Native Title Registrar must enter the name and address of the body corporate on the National Native Title Register; and

(i) while those details are on the Register, the body corporate is taken to be a registered native title body corporate for the purposes of this Act.

In this section:

Meriam people means the people who were described by the High Court in its declaration in Mabo v Queensland [No. 2] (1992) 175 CLR 1 as the Meriam people.

A registered native title body corporate may charge a person, other than a person mentioned in subsection (4), a fee for costs the registered native title body corporate incurs when performing one or more of the following functions:

negotiating an agreement under paragraph 31(1)(b);

negotiating an agreement under alternative provisions provided for by a law of a State or Territory in respect of which the Commonwealth Minister has made a determination under paragraph 43(1)(b);

negotiating indigenous land use agreements under Subdivisions B, C and D of Division 3 of this Part.

The regulations may provide for a registered native title body corporate to charge a person, other than a person mentioned in subsection (4), a fee for costs the registered native title body corporate incurs when performing other functions specified in the regulations.

A fee imposed under subsection (1), or under regulations made for the purposes of subsection (2), must not be such as to amount to taxation.

For the purposes of this section, a registered native title body corporate may not charge the following persons a fee:

the common law holders for whom the registered native title body corporate holds native title rights and interests in trust;

the common law holders for whom the registered native title body corporate is an agent prescribed body corporate;

another registered native title body corporate;

a representative body;

a registered native title claimant or other person who claims to hold native title in relation to the land or waters in:

an area affected by an act to which negotiations mentioned in subsection (1) relate; or

an area proposed to be covered by an indigenous land use agreement.

A registered native title body corporate may not charge a person a fee for costs the registered native title body corporate incurs when performing functions:

as a party to a proceeding or an inquiry in which:

a determination that an act must not be done; or

a determination that an act may be done; or

a determination that an act may be done subject to conditions being complied with;

may be made in respect of an act to which negotiations mentioned in subsection (1) relate; and

as a party to any court proceedings; and

in any other circumstances prescribed by the regulations.

(1) If a registered native title body corporate charges a person a fee in reliance on Registrar) to give an opinion on whether the fee is one that the body corporate may charge under that section.section 60AB, the person may, in writing, request the Registrar of Aboriginal and Torres Strait Islander Corporations (the

The Registrar may give an opinion, in writing, on whether the fee is one that the registered native title body corporate may charge under that section.

If the Registrar gives the opinion that the fee is not one that the registered native title body corporate may charge under that section, the body corporate must withdraw the charge.

An opinion given by the Registrar under subsection (2) is not a legislative instrument.

The regulations may make provisions dealing with:

the process by which the request to the Registrar is made and considered; and

the withholding of payment of the fee in relation to which a request is made; and

any other matters in relation to the request, the consideration of the request, the giving of an opinion by the Registrar, and the consequences of the giving of that opinion.

This Part has the rules for making:

applications to the Federal Court for native title determinations, revised native title determinations and compensation: see Division 1; and

various other applications to the Federal Court: see Division 1A; and

applications to the National Native Title Tribunal under the “right to negotiate” provisions in Subdivision P of Division 3 of Part 2: see Division 2;

applications to the Native Title Registrar objecting against registration of certain indigenous land use agreements: see Division 2A.

There are also some general rules that apply to the various kinds of application: see Division 3.

Basically, the provisions set out who may make the different kinds of application, what they must contain and what is to be done when they are made.

Applications that may be made

The following table sets out applications that may be made under this Division to the Federal Court and the persons who may make each of those applications:

Applicant in case of applications authorised by claim groups

In the case of:

a native title determination application made by a person or persons authorised to make the application by a native title claim group; or

a compensation application made by a person or persons authorised to make the application by a compensation claim group;

the following apply:

(c) the person is, or the persons are jointly, the applicant; and

(d) none of the other members of the native title claim group or compensation claim group is the applicant.

Applicant’s name and address

An application must state the name and address for service of the person who is, or persons who are, the applicant.

Applications authorised by persons

A native title determination application, or a compensation application, that persons in a native title claim group or a compensation claim group authorise the applicant to make must:

name the persons; or

otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons.

Form etc.

An application must:

be in the prescribed form; and

be filed in the Federal Court; and

contain such information in relation to the matters sought to be determined as is prescribed; and

be accompanied by any prescribed documents and any prescribed fee.

No native title determination application if approved determination of native title

A native title determination application must not be made in relation to an area for which there is an approved determination of native title.

Claimant applications not to be made covering previous exclusive possession act areas

If:

a previous exclusive possession act (see section 23B) was done in relation to an area; and

either:

the act was an act attributable to the Commonwealth; or

the act was attributable to a State or Territory and a law of the State or Territory has made provision as mentioned in section 23E in relation to the act;

a claimant application must not be made that covers any of the area.

Claimant applications not to claim certain rights and interests in previous non-exclusive possession act areas

If:

a previous non-exclusive possession act (see section 23F) was done in relation to an area; and

either:

the act was an act attributable to the Commonwealth; or

the act was attributable to a State or Territory and a law of the State or Territory has made provision as mentioned in section 23I in relation to the act;

a claimant application must not be made in which any of the native title rights and interests claimed confer possession, occupation, use and enjoyment of any of the area to the exclusion of all others.

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

However, subsection (2) or (3) does not apply to an application if:

the only previous exclusive possession act or previous non-exclusive possession act concerned was one whose extinguishment of native title rights and interests would be required by section 47, 47A, 47B or 47C to be disregarded were the application to be made; and

the application states that section 47, 47A, 47B or 47C, as the case may be, applies to it.

Claimant applications

A claimant application (see section 253):

must be accompanied by an affidavit sworn by the applicant stating the matters mentioned in subsection (1A); and

must contain the details specified in subsection (2); and

may contain details of:

if any member of the native title claim group currently has, or previously had, any traditional physical connection with any of the land or waters covered by the application—that traditional physical connection; or

if any member of the native title claim group has been prevented from gaining access to any of the land or waters covered by the application—the circumstances in which the access was prevented; and

if the operation of section 47C (national parks etc. covered by native title applications) has been agreed to in writing in accordance with paragraph 47C(1)(b) in relation to the whole or any part of the area covered by the application—must be accompanied by a copy of the agreement, and if there is an agreement under subsection 47C(5), that agreement.

Note: The applicant will be the registered native title claimant in relation to the area claimed if and for so long as the claim is entered on the Register of Native Title Claims.

For the purposes of paragraph (1)(a), the matters are:

that the applicant believes that the native title rights and interests claimed by the native title claim group have not been extinguished in relation to any part of the area covered by the application; and

that the applicant believes that none of the area covered by the application is also covered by an approved determination of native title; and

that the applicant believes that all of the statements made in the application are true; and

that the applicant is authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it; and

the details of the process of decision-making complied with in authorising the applicant to make the application and to deal with matters arising in relation to it; and

if there are no conditions under the authority that relate to the making of the application—that there are no such conditions; andsection 251BA on

if there are any conditions under the authority that relate to the making of the application:section 251BA on

that the conditions have been satisfied; and

how the conditions have been satisfied.

Note: Section 251B states what it means for the applicant to be authorised by all the persons in the native title claim group.

Details required by paragraph (1)(b)

For the purposes of paragraph (1)(b), the details required are as follows:

information, whether by physical description or otherwise, that enables the boundaries of:

the area covered by the application; and

any areas within those boundaries that are not covered by the application;

to be identified;

a map showing the boundaries of the area mentioned in subparagraph (a)(i);

details and results of all searches carried out by or on behalf of the native title claim group to determine the existence of any non-native title rights and interests in relation to the land or waters in the area covered by the application;

a description of the native title rights and interests claimed in relation to particular land or waters (including any activities in exercise of those rights and interests), but not merely consisting of a statement to the effect that the native title rights and interests are all native title rights and interests that may exist, or that have not been extinguished, at law;

a general description of the factual basis on which it is asserted that the native title rights and interests claimed exist and in particular that:

the native title claim group have, and the predecessors of those persons had, an association with the area; and

there exist traditional laws and customs that give rise to the claimed native title; and

the native title claim group have continued to hold the native title in accordance with those traditional laws and customs;

if the native title claim group currently carry on any activities in relation to the land or waters—details of those activities;

details of any other applications to the High Court, Federal Court or a recognised State/Territory body, of which the applicant is aware, that have been made in relation to the whole or a part of the area covered by the application and that seek a determination of native title or a determination of compensation in relation to native title;

details of any notifications under paragraph 24MD(6B)(c), of which the applicant is aware, that have been given and that relate to the whole or a part of the area;

details of any notices under section 29 (or under a corresponding provision of a law of a State or Territory), of which the applicant is aware, that have been given and that relate to the whole or a part of the area;

if there are any conditions under the authority of the applicant to make the application and to deal with matters arising in relation to it—details of the conditions.section 251BA on

Note: Notices under paragraph 24MD(6B)(c) and section 29 are relevant to subsection 190A(2).

Compensation applications—compensation claim group

In the case of a compensation application whose making was authorised by a compensation claim group, the application:

must be accompanied by an affidavit sworn by the applicant stating the matters mentioned in subsection (4); and

must contain the details that would be required to be specified by paragraph (1)(b), and may contain the details that would be permitted under paragraph (1)(c), if the compensation application were instead a native title determination application in respect of the native title involved in the compensation application.

For the purposes of paragraph (3)(a), the matters are:

that the applicant believes that native title rights and interests exist or have existed in relation to the area; and

that the applicant believes that all of the statements made in the application are true; and

that the applicant is authorised by all the persons in the compensation claim group to make the application and to deal with matters arising in relation to it; and

the details of the process of decision-making complied with in authorising the applicant to make the application and to deal with matters arising in relation to it; and

if there are no conditions under the authority that relate to the making of the application—that there are no such conditions; andsection 251BA on

if there are any conditions under the authority that relate to the making of the application:section 251BA on

that the conditions have been satisfied; and

how the conditions have been satisfied.

Note: Section 251B states what it means for the applicant to be authorised by all the persons in the compensation claim group.

Compensation applications—registered native title body corporate

In the case of a compensation application by a registered native title body corporate, the application:

must be accompanied by an affidavit sworn by the applicant stating the matters mentioned in subsection (6); and

must contain the details that would be required to be specified by paragraph (1)(b), and may contain the details that would be permitted under paragraph (1)(c), if the compensation application were instead a native title determination application in respect of the native title involved in the compensation application.

For the purposes of paragraph (5)(a), the matters are:

that the applicant believes that native title rights and interests exist or have existed in relation to the area; and

that the applicant believes that all of the statements made in the application are true; and

either:

that the applicant holds, or is an agent prescribed body corporate in relation to, the native title rights and interests; or

that the area is within the external boundary of the area of land or waters covered by an approved determination of native title under which the registered native title body corporate holds, or is an agent prescribed body corporate in relation to, native title rights and interests.

Revised native title determination applications

A revised native title determination application that covers an area in relation to which the operation of section 47C (national parks etc. covered by native title applications) has been agreed to in writing in accordance with paragraph 47C(1)(b) must be accompanied by a copy of the agreement and, if there is an agreement under subsection 47C(5), that agreement.

In the case of:

a claimant application; or

a compensation application whose making was authorised by a compensation claim group;

the applicant may deal with all matters arising under this Act in relation to the application.

Note: This section deals only with claimant applications and compensation applications. For provisions dealing with indigenous land use agreements, see Subdivisions B to E of Division 3 of Part 2.

Subsection (1) is subject to any conditions under the authority of the applicant.section 251BA on

Any obligation of the applicant under this Act does not relieve the applicant, or detract, from any other duty of the applicant at common law or in equity to persons in the native title claim group or compensation claim group.

This section applies if:

an applicant makes a native title determination application or a compensation application; and

(b) 2 or more persons (the authorised persons) are jointly the applicant; and

the applicant is required or permitted to do something under this Act, or for the purposes of this Act under another law of the Commonwealth; and

apart from this section, for the applicant to do the thing, all of the authorised persons would need to do the thing.

Default rule—applicant may act by majority

The requirement mentioned in paragraph (1)(d) is satisfied if the thing is done by a majority of the authorised persons unless subsection (4) applies.

The authorised persons who do the thing must, within a reasonable period, notify the other authorised persons that the thing has been done. A failure to comply with this subsection does not invalidate the thing done.

Default rule may be displaced

If conditions under the authority of the authorised persons provide for the applicant to do the thing in a particular way, the requirement mentioned in paragraph (1)(d) is satisfied if the thing is done in that way.section 251BA on

Example: A condition may provide that all the authorised persons need to do something required by a provision of this Act.

Rule covers applicant acting in any capacity

This section applies whether the provision imposing the requirement or giving the permission refers to the applicant as an applicant, a registered native title claimant, a native title party, a negotiation party, a party or otherwise.

Deceased authorised persons

For the purposes of this section, the authorised persons include any who have died. However, subsection (3) does not require notice to be given to a person who has died.

Note: The applicant may be replaced where an authorised person has died: see section 66B.

If an application under section 61 is filed in the Federal Court, the Federal Court Chief Executive Officer must, as soon as practicable, give the Native Title Registrar a copy of:

the application; and

any affidavit that accompanies the application under paragraph 62(1)(a), (3)(a) or (5)(a); and

any copy of an agreement that accompanies the application under paragraph 62(1)(d) or subsection 62(7); and

any prescribed documents that accompany the application under paragraph 61(5)(d).

Application may be amended to reduce land or waters covered

An application may at any time be amended to reduce the area of land or waters covered by the application. (This subsection does not, by implication, limit the amendment of applications in any other way.)

Note: If such an amendment is made, the Court may make an appropriate costs order under section 85A.

Amendments taken to have been made in certain cases

An application is taken to have been amended to reduce the area of land or waters covered by the application if an order is made under section 87A by the Federal Court. The area of land or waters is reduced by the area in relation to which the order is made.

Subsection (1B) does not, by implication, limit the amendment of applications in any other way.

Amendment not to result in inclusion of additional areas

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

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

Exceptions to subsection (1)

However, if:

the application is a claimant application (see section 253); and

the amendment combines the application with another claimant application or claimant applications;

subsection (1) does not prevent the inclusion of any area of land or waters covered by the other application or applications.

In addition, subsection (1) does not prevent an amendment that results in the inclusion of any area of land or waters that was not covered by the original application, if the operation of section 47C has been agreed to in writing in accordance with paragraph 47C(1)(b) in relation to the area after the making of the original application.

Application may be amended despite current action by Registrar or Federal Court

In the case of a claimant application, the fact that:

the Registrar is, under section 190A, considering the claim made in the application; or

the NNTT is, under section 190E, reconsidering the claim made in the application; or

the Federal Court is, on the application of the applicant under subsection 190F(1), reviewing the decision of the Registrar in relation to the claim;

does not prevent amendment of the application.

Federal Court Chief Executive Officer to give copy of amended application to Native Title Registrar

If an application is amended, the Federal Court Chief Executive Officer must, as soon as practicable, give a copy of the amended application to the Native Title Registrar.

Registrar to comply with section

If the Native Title Registrar is given a copy of an application under the Registrar must comply with the requirements of this section.section 63,

Copies to State/Territory Minister

If any of the area covered by the application is within the jurisdictional limits of a State or Territory, the Registrar must, as soon as is reasonably practicable, give the State Minister or Territory Minister for the State or Territory a copy of:

the application; and

any other documents that the Federal Court Chief Executive Officer gives the Native Title Registrar under section 63 in relation to the application.

Copies to representative bodies

The Registrar must, as soon as is reasonably practicable, give the representative bodies for the area covered by the application a copy of:

the application; and

any other documents that the Federal Court Chief Executive Officer gives the Native Title Registrar under section 63 in relation to the application.

Notice to be given

Subject to this section, the Registrar must:

give notice containing details of the application to the following persons or bodies (other than the applicant in relation to the application):

any registered native title claimant in relation to any of the area covered by the application; and

any registered native title body corporate in relation to any of the area covered by the application; and

any representative Aboriginal/Torres Strait Islander body for any of the area covered by the application; and

subject to subsection (5), any person who when the notice is given, holds a proprietary interest, in relation to any of the area covered by the application, that is registered in a public register of interests in relation to land or waters maintained by the Commonwealth, a State or Territory; and

the Commonwealth Minister; and

any local government body for any of the area covered by the application; and

if the Registrar considers it appropriate in relation to the person—any person whose interests may be affected by a determination in relation to the application; and

give a copy of the notice to the Federal Court; and

if any of the area covered by the application is within the jurisdictional limits of a State or Territory—give a copy of the notice to the State Minister or Territory Minister for the State or Territory; and

notify the public in the determined way of the application.

Exception where application is struck out

Subsection (3) does not apply if:

the State or Territory Minister applies to the Federal Court under subsection 84C(1) or otherwise, within 28 days after the day on which the State or Territory Minister is given a copy of the application under subsection (2), to strike out the application; and

the Court strikes out the application.

Exception to subparagraph (3)(a)(iv)

If the Registrar considers that, in the circumstances, it would be unreasonable to give notice to a person in accordance with subparagraph (3)(a)(iv), the Registrar is not required to give notice to that person.

Notice etc. not to be given until claim registration decision made

If the application is a claimant application:

the Registrar must not comply with subsection (3) until the Registrar has decided, in accordance with section 190A, whether or not to accept for registration the claim made in the application; and

the notice required to be given under subsection (3) must state whether or not the Registrar has accepted the claim for registration.

Federal Court order as to notice

The Registrar may apply to the Federal Court for an order as to:

whether a particular person or class of persons must be given notice under paragraph (3)(a); or

how such notice must be given.

Notice to specify day

(8) A notice under paragraph (3)(a) or (d) must specify a day as the notification day for the application. Each such notice in relation to the application must specify the same day.

Which days may be specified

That day must be a day by which, in the Registrar’s opinion, it is reasonable to assume that all notices under paragraphs (3)(a) and (d) in relation to the application will have been received by, or will otherwise have come to the attention of, the persons who must be notified under those paragraphs.

Contents of notice

A notice under paragraph (3)(a) or (d) must also include a statement to the effect that:

in the case of a non-claimant application (see section 253)—the area covered by the application may be subject to section 24FA protection unless, at the end of the period of 3 months starting on the notification day (as defined in subsection (8) of this section), the area is covered by a relevant native title claim (as defined in section 24FE); and

in the case of any native title determination application—as there can be only one determination of native title for an area, if a person does not become a party in relation to the application, there may be no other opportunity for the Federal Court, in making its determination, to take into account the person’s native title rights and interests in relation to the area concerned; and

in any case—a person who wants to be a party in relation to the application must notify the Federal Court, in writing, within the period of 3 months starting on the notification day (as defined in subsection (8)), or, after that period, get the leave of the Federal Court under subsection 84(5) to become a party.

Native Title Registrar to notify parties etc.

If:

the Native Title Registrar is given a copy of an amended application under section 64; and

the amendment concerned results in a change to the area of land or waters covered by the original application; and

subsection (2) does not apply;

the Registrar must:

give notice of the amended application to each person who, when the Registrar receives the copy, is a party to a proceeding under Part 4 in relation to the application; and

if, when the Registrar receives the copy, the period specified in the notice in accordance with paragraph 66(10)(c) has not ended:

give notice of the amended application to all persons to whom the Registrar gave notice of the application in accordance with paragraph 66(3)(a); and

notify the public in the determined way of the amended application; and

if the inclusion of any area of land or waters that was not covered by the original application occurs as mentioned in subsection 64(2A)—give notice to each other person to whom the Registrar would be obliged to give notice under subsections 66(3) and (5) if the application as amended were a new application, but to whom notice is not already required to be given under paragraph (d) or (e).

Amending claims to re-include area

If:

the Registrar is given a copy of an amended application under section 64; and

the amendment concerned is to re-include in the area covered by the application an area of land or waters that was covered by the original application;

the Registrar must:

give notice of the amended application to each person who, when the Registrar receives the copy, is a party to a proceeding under Part 4 in relation to the application; and

if, when the Registrar receives the copy, the period specified in the notice in accordance with paragraph 66(10)(c) has not ended:

give notice of the amended application to all persons to whom the Registrar gave notice of the application in accordance with paragraph 66(3)(a); and

notify the public in the determined way of the amended application; and

give notice of the amended application to each person whom the Registrar would, under subsections 66(3) and 66(5), be obliged to give notice if the application as amended were a new application, but to whom notice is not already required to be given under paragraph (c) or (d).

Notification day

(1B) A notice under paragraph (1)(f) or (1A)(e) must specify a day as the notification day for the amendment.

Each such notice in relation to the amendment must:

specify the same day; and

state that a person who wants to be a party in relation to the amended application must notify the Federal Court, in writing, within the period of 3 months starting on the notification day, or, after that period, get the leave of the Federal Court under subsection 84(5) to become a party.

Combined applications

If an amended application of which the Registrar is given a copy under section 64 results from combining the application with one or more other applications, the Native Title Registrar must:

give notice of the combining of the applications to each person who, immediately before the combining of the applications, was a party to a proceeding under Part 4 in relation to any of the applications; and

if, when the Registrar receives the copy, the period specified in the notice in accordance with paragraph 66(10)(c) has not ended:

give notice of the combining of the applications to all persons to whom the Registrar gave notice of the applications in accordance with paragraph 66(3)(a); and

notify the public in the determined way of the combining of the applications.

Federal Court order as to notice

The Registrar may apply to the Federal Court for an order as to:

whether a particular person or class of persons must be given notice under subsection (1) or (2); or

how such notice must be given.

Federal Court may direct Native Title Registrar to give notice

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

Parties to original applications become parties to combined application

If an amended application of which the Registrar is given a copy under section 64 results from combining the application with one or more other applications, each person who, immediately before the combining of the applications, was a party to a proceeding under Part 4 in relation to any of the applications becomes a party to a proceeding under Part 4 in relation to the combined application.

Replacement in case of consent or absence of authority

(1) One or more members of the native title claim group (the claim group) in relation to a claimant application, or of the compensation claim group (also the claim group) in relation to a compensation application, may apply to the Federal Court for an order that the member, or the members jointly, replace the current applicant for the application on the grounds that:

one or more of the following applies to a person who is, either alone or jointly with one or more other persons, the current applicant:

the person consents to his or her replacement or removal;

the person is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it;

the person has exceeded the authority given to him or her by the claim group to make the application and to deal with matters arising in relation to it; and

the member or members are authorised by the claim group to make the application and to deal with matters arising in relation to it.

Note: Section 251B states what it means for a person or persons to be authorised by all the persons in the claim group to deal with matters in relation to a claimant application or a compensation application.

The Court may make the order if it is satisfied that the grounds are established.

Replacement in case of death or incapacity

(2A) One or more members (the applying members) of the native title claim group in relation to a claimant application, or of the compensation claim group in relation to a compensation application, may apply to the Federal Court for an order under subsection (2B) if a person (the ceasing member) who is, either alone or jointly with one or more other persons (the continuing members), the current applicant for the claimant application or compensation application:

dies; or

is unable to act as an applicant because of physical or mental incapacity.

The Court may order that the following persons replace the current applicant for the application:

if:

a member of the claim group is authorised by the claim group to make the application and to deal with matters arising in relation to it because of the death or incapacity of the ceasing member; and

the authority of any continuing members continues despite the death or incapacity of the ceasing member;

that member and any continuing members;

unless the authority of any continuing members ceases on the death or incapacity of the ceasing member—the continuing members;

if the applying members are authorised by the claim group to make the application and to deal with matters arising in relation to it—the applying members.

Note: Section 251B states what it means for a person or persons to be authorised by all the persons in the claim group to deal with matters in relation to a claimant application or a compensation application.

Replacement by more than one person

(2C) If the Court orders under this section that the current applicant is replaced by more than one person, the persons are jointly the applicant.

Federal Court Chief Executive Officer to notify Native Title Registrar

If the Court makes an order under this section, the Federal Court Chief Executive Officer must, as soon as practicable, notify the Native Title Registrar of the name and address for service of the person who is, or persons who are, the new applicant.

Register to be updated

If the claim contained in the application is on the Register of Native Title Claims, the Registrar must amend the Register to reflect the order.

If:

an application is of the kind mentioned in paragraph 94C(1)(a); and

paragraph 94C(1)(b) is satisfied in relation to the application; and

paragraph 94C(1)(c) is satisfied for each future act identified in the future act notice referred to in that paragraph;

the Registrar may advise the Federal Court Chief Executive Officer of those facts.

The Registrar may seek advice from the relevant governmental officials in the Commonwealth or in a State or Territory as to:

whether all or part of an area specified in a future act notice is included in the area covered by an application; and

whether paragraph 94C(1)(c) is satisfied for each future act identified in a future act notice;

and may advise the Federal Court Chief Executive Officer accordingly.

In this section:

future act notice has the same meaning as in section 94C.

If 2 or more proceedings before the Federal Court relate to native title determination applications that cover (in whole or in part) the same area, the Court must make such order as it considers appropriate to ensure that, to the extent that the applications cover the same area, they are dealt with in the same proceeding.

Splitting of application area

Without limiting subsection (1), the order of the Court may provide that different parts of the area covered by an application are to be dealt with in separate proceedings.

If there is an approved determination of native title (the first determination) in relation to a particular area, the Federal Court must not:

conduct any proceeding relating to an application for another determination of native title; or

make any other determination of native title;

in relation to that area or to an area wholly within that area, except in the case of:

an application as mentioned in subsection 13(1) to revoke or vary the first determination; or

a review or appeal of the first determination.

Note: Paragraph 13(1)(a) provides that no native title determination application can be made in relation to an area for which there is already an approved determination of native title.

The following table sets out applications that may be made under this Division to the Federal Court and the persons who may make each of those applications:

Other applications

This Division also applies to any other application to the Federal Court in relation to a matter arising under this Act.

Federal Court Rules

The application must be filed in the Federal Court and must comply with any Rules of the Federal Court about:

the form of the application; or

information to be contained in the application; or

documents that must accompany the application; or

any other matter relating to the application.

Prescribed fees

The application must be accompanied by any prescribed fee.

The following table sets out applications that may be made to the National Native Title Tribunal under this Division and the persons who may make each of those applications:

An application must:

be in the prescribed form; and

be given to the Registrar; and

contain such information in relation to the matters sought to be determined as is prescribed; and

be accompanied by any prescribed documents and any prescribed fee.

If an application complies with section 76, the National Native Title Tribunal must accept the application.

Note: The procedure to be followed in relation to these applications is set out in Subdivision P of Division 3 of Part 2.

An application under subsection 24DJ(1) objecting against registration of an agreement on the ground that it would not be fair and reasonable to register it must:

be in the prescribed form; and

be given to the Registrar; and

state reasons why it would not be fair and reasonable to register the agreement; and

be accompanied by any prescribed documents and any prescribed fee.

If an application complies with the Registrar must accept the application.section 77A,

Native Title Registrar may assist applicants, respondents etc.

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

help people prepare applications and accompanying material and to help them, at any stage of a proceeding, in matters related to the proceeding; and

help other people, at any stage of a proceeding, in matters related to the proceeding.

Types of assistance

Without limiting subsection (1), the assistance may include:

providing research services; or

conducting searches of registers or other records of current or former interests in land or waters.

No assistance to search own registers etc.

Unless the Native Title Registrar considers there are special reasons for doing so, the Registrar must not give assistance to the Commonwealth, a State or a Territory by way of conducting searches of registers or other records maintained by the Commonwealth, the State or the Territory.

Requests must be considered

If, during negotiations in relation to a compensation application under this Part, a person or persons involved in the negotiations propose that the whole or part of the compensation should be in a form other than money, the other person or persons involved in the negotiations:

must consider the proposal; and

must negotiate in good faith in relation to the proposal.

Examples of non-monetary compensation

The transfer of land or other property or the provision of goods or services is an example of compensation in a form other than money.

This Part has the rules for processing Federal Court applications, and making determinations, relating to native title. Division 1A has the general rules, and the other Divisions of the Part deal with the following topics:

referring applications for mediation (see Division 1B);

agreements and unopposed applications (see Division 1C);

conferences (see Division 2);

orders (see Division 3);

mediation (see Division 4).

The provisions of this Part apply in proceedings in relation to applications filed in the Federal Court that relate to native title.

The Federal Court has jurisdiction to hear and determine applications filed in the Federal Court that relate to native title and that jurisdiction is exclusive of the jurisdiction of all other courts except the High Court.

Rules of evidence

The Federal Court is bound by the rules of evidence, except to the extent that the Court otherwise orders.

Concerns of Aboriginal peoples and Torres Strait Islanders

In conducting its proceedings, the Court may take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, but not so as to prejudice unduly any other party to the proceedings.

Maximising use of video links, audio links and other appropriate means of giving testimony, appearing and making submissions

(3) The Court or a Judge must exercise the discretion under Federal Court of Australia Act 1976 to allow a person to appear before the Court or Judge, or make a submission to the Court or Judge, by way of video link, audio link or other appropriate means if the Court or the Judge is satisfied that:section 47B of the

the conditions set out in section 47C of that Act in relation to the video link, audio link or other appropriate means are met; and

it is not contrary to the interests of justice to do so.

Assessor to assist Court

The Chief Justice may direct an assessor to assist the Federal Court in relation to a proceeding.

Assessor subject to Court’s control

The assessor is, in relation to that proceeding, subject to the control and direction of the Court.

Assessor not to exercise judicial power

In assisting the Court, the assessor is not to exercise any judicial power of the Court.

Request to State Minister or Territory Minister

If a State Minister or Territory Minister is a party to a proceeding, the Federal Court may, for the purposes of the proceeding, request that Minister to conduct searches of the State or Territory’s registers or other records of current or former interests in land or waters and to report the results to the Court.

Request to Native Title Registrar

However, if:

no State Minister or Territory Minister is a party to the proceeding; or

the Federal Court considers it appropriate;

the Federal Court may, for the purposes of the proceeding, instead request the Native Title Registrar to conduct such searches and to report the results to the Court.

Coverage of section

This section applies to proceedings in relation to applications to which section 61 applies.

Applicant

The applicant is a party to the proceedings.

Affected persons

Another person is a party to the proceedings if:

any of the following applies:

the person is covered by any of subparagraphs 66(3)(a)(i) to (vi);

the person claims to hold native title in relation to land or waters in the area covered by the application;

the person’s interest, in relation to land or waters, may be affected by a determination in the proceedings; and

the person notifies the Federal Court, in writing, that the person wants to be a party to the proceeding:

within the period specified in the notice under section 66; or

if notice of an amended application is given under paragraph 66A(1)(f) or (1A)(e)—within the period specified in the notice under that paragraph.

State or Territory Ministers

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

Joining parties

The Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that the person’s interests may be affected by a determination in the proceedings and it is in the interests of justice to do so.

Persons wanting to exercise public right of access or use

If:

a person wants to become a party to the proceedings; and

the Federal Court is satisfied that the person’s interests may be affected by a determination in the proceedings merely because the person has a public right of access over, or use of, any of the area covered by the application;

the Court:

may make appropriate orders to ensure that the person’s interests are properly represented in the proceedings; but

need not allow more than one such person to become a party to the proceedings in relation to each area covered by such a public right of access or use.

Parties may withdraw before first hearing of proceeding

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

In determining, for the purposes of subsection (6), when the first hearing of the proceedings starts, disregard directions hearings.

Parties may withdraw with leave of Federal Court

In addition to any other rights to withdraw from the proceedings, any party to the proceedings, other than the applicant, may, with the leave of the Federal Court, cease to be a party.

Dismissing parties

The Federal Court may at any time order that a person, other than the applicant, cease to be a party to the proceedings.

Court to consider dismissing parties

The Federal Court is to consider making an order under subsection (8) in respect of a person who is a party to the proceedings if the Court is satisfied that:

the following apply:

the person’s interests may be affected by a determination in the proceedings merely because the person has a public right of access over, or use of, any of the area covered by the application; and

the person’s interests are properly represented in the proceedings by another party; or

the person never had, or no longer has, interests that may be affected by a determination in the proceedings.

Commonwealth Minister may intervene

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

Court may order costs against Commonwealth

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

Commonwealth Minister taken to be a party for purposes of appeal

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

Court may order costs against Commonwealth if Commonwealth Minister appeals

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

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

Body may act for 2 or more parties

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

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

Strike-out application

(1) If an application (the main application) does not comply with section 61 (which deals with the basic requirements for applications), 61A (which provides that certain applications must not be made) or 62 (which requires applications to be accompanied by affidavits and to contain certain details), a party to the proceedings may at any time apply to the Federal Court to strike out the application.

Note: The main application may still be amended even after a strike-out application is filed.

Court must consider strike-out application before other proceedings

The Court must, before any further proceedings take place in relation to the main application, consider the application made under subsection (1).

Federal Court Chief Executive Officer to advise Native Title Registrar of application etc.

The Federal Court Chief Executive Officer must advise the Native Title Registrar of the making of any application under subsection (1) and of the outcome of the application.

Other strike-out applications unaffected

This section does not prevent the making of any other application to strike out the main application.

The Federal Court may make an order requiring:

a person who, either alone or jointly with another person, made an application under section 61, to produce evidence to the court that he or she was authorised to do so; or

a person who has dealt with a matter, or is dealing with a matter, arising in relation to such an application, to produce evidence to the court that he or she is authorised to do so.

An order under subsection (1) may be made:

on the Federal Court’s own motion; or

on the application of a party to the proceedings; or

on the application of a member of the native title claim group or compensation claim group in relation to the application.

Subsection (4) applies if:

an application does not comply with section 61 (which deals with the basic requirements for applications) because it was made by a person or persons who were not authorised by the native title claim group to do so; or

a person who is or was, or one of the persons who are or were, the applicant in relation to the application has dealt with, or deals with, a matter arising in relation to the application in circumstances where the person was not authorised to do so.

Note: Section 251B states what it means for a person or persons to be authorised to make native title determination applications or compensation applications or to deal with matters arising in relation to them.

The Federal Court may, after balancing the need for due prosecution of the application and the interests of justice:

hear and determine the application, despite the defect in authorisation; or

make such other orders as the court considers appropriate.

A party may appear in person or may be represented by a barrister, a solicitor or, with the leave of the Federal Court, another person.

Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs.

Unreasonable conduct

Without limiting the Court’s power to make orders under subsection (1), if the Federal Court is satisfied that a party to a proceeding has, by any unreasonable act or omission, caused another party to incur costs in connection with the institution or conduct of the proceeding, the Court may order the first-mentioned party to pay some or all of those costs.

Subject to subsection 82(1), the Federal Court may:

receive into evidence the transcript of evidence in any other proceedings before:

the Court; or

another court; or

the NNTT; or

a recognised State/Territory body; or

any other person or body;

and draw any conclusions of fact from that transcript that it thinks proper; and

receive into evidence the transcript of evidence in any proceedings before the assessor and draw any conclusions of fact from that transcript that it thinks proper; and

adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (v).

Subject to subsection 82(1), the Federal Court:

must consider whether to receive into evidence the transcript of evidence from a native title application inquiry; and

may draw any conclusions of fact from that transcript that it thinks proper; and

may adopt any recommendation, finding, decision or determination of the NNTT in relation to the inquiry.

Proceeding not involving compensation

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

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

if native title exists or existed in relation to the area of land or waters covered by the application:

who holds or held the native title;

the nature, extent and manner of exercise of the native title rights and interests in relation to the area;

the nature and extent of any other interests in relation to the area;

the relationship between the rights and interests in subparagraphs (ii) and (iii) (taking into account the effects of this Act);

to the extent that the area is not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease—whether the native title rights and interests confer or conferred possession, occupation, use and enjoyment of the land or waters on its holders to the exclusion of all others.

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

Proceeding involving compensation

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

the matters set out in paragraphs (1)(a) and (b) in relation to the area of land or waters covered by the application;

the amount or kind of any compensation payable;

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

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

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

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

Federal Court must refer applications for mediation

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

In deciding whether to refer the application to a particular person or body, the Court may take into account the training, qualifications and experience of the person who is to be, or is likely to be, the person conducting the mediation.

Without limiting subsection (1), the application may be referred to a Federal Court Registrar.

No mediation if it will be unnecessary etc.

The Court, either on the application of a party or of its own motion, must order that there be no mediation under this Act in relation to the whole of the proceeding or a part of the proceeding if the Court considers that:

any mediation will be unnecessary in relation to the whole or that part, whether because of an agreement between the parties about the whole or the part of the proceeding or for any other reason; or

there is no likelihood of the parties being able to reach agreement in the course of mediation under this Act on, or on facts relevant to, any of the matters set out in subsection 86A(1) or (2) in relation to the whole or that part; or

the applicant in relation to the application under section 61 has not provided sufficient detail (whether in the application or otherwise) about the matters mentioned in subsection 86A(1) or (2) in relation to the whole or that part.

Factors to take into account

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

the number of parties;

the number of those parties who have appointed the same agent under section 84B or same representative;

how long it is likely to take to reach agreement on the matters set out in subsection 86A(1) or (2) in relation to the whole or the part of the proceeding;

the size of the area involved;

the nature and extent of any non-native title rights and interests in relation to the land and waters in the area;

any other factor that the Court considers relevant.

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

In addition to referring a proceeding for mediation under subsection (1), the Court may, at any time in a proceeding, refer the whole or a part of the proceeding to an appropriate person or body for mediation if the Court considers that the parties will be able to reach agreement on, or on facts relevant to, any of the matters set out in subsection 86A(1) or (2).

In deciding whether to refer the whole or part of the proceeding to a particular person or body, the Court may take into account the training, qualifications and experience of the person who is to be, or is likely to be, the person conducting the mediation.

Without limiting subsection (5), the whole or part of the proceeding may be referred to a Federal Court Registrar.

Orders about how mediation is to be provided etc.

If the Court refers, under subsection (1) or (5), the whole or a part of a proceeding to a person or body for mediation, the Court may at any time after the referral make an order about the following matters:

the way in which the mediation is to be provided;

whether the person who is to conduct the mediation may be assisted by another individual;

any other matter that the Court considers relevant.

No other referral for mediation etc.

If the Court refers the whole or a part of a proceeding for mediation under subsection (1) or (5), then, unless the mediation ceases because an order is made under section 86C:

(a) no aspect of the proceeding is to be referred for mediation under the Federal Court of Australia Act 1976; and

no order is to be made by the Federal Court requiring the parties to attend before a Federal Court Registrar for a conference with a view to satisfying the Registrar that all reasonable steps to achieve a negotiated outcome of the proceeding have been taken.

A mediator may appear before the Court at a hearing that relates to any matter that is currently before the mediator for mediation if the Court considers that the mediator may be able to assist the Court in relation to a proceeding.

To avoid doubt, subsection 94D(4) applies to the mediator when appearing before the Court.

Subsection 94D(5) does not prevent:

the mediator from appearing before the Court under subsection (1); or

if the mediator may appear before the Court under subsection (1) and the person conducting the mediation is not the mediator—that person from representing the mediator before the Court.

This section does not give the mediator, or the person conducting the mediation, the right to become a party to the proceeding.

Court may order mediation to cease

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

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

there is no likelihood of the parties being able to reach agreement in the course of mediation by the mediator on, or on facts relevant to, any of the matters set out in subsection 86A(1) or (2) in relation to the whole or that part; or

it is appropriate to do so for any other reason.

Party may seek cessation of mediation

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

Where Court must order mediation to cease

If the party making the application is:

the applicant in relation to the application under section 61; or

the Commonwealth, a State or a Territory;

the Court must make an order that mediation by the mediator is to cease unless the Court is satisfied that the mediation is likely to be successful in enabling the parties to reach agreement on any of the matters set out in subsection 86A(1) or (2) in relation to the whole or the part of the proceeding.

Where Court may order mediation to cease

If the party making the application is any other person, the Court may make such an order unless the Court is satisfied that the mediation by the mediator is likely to be successful as mentioned in subsection (3).

Court to consider reports etc.

The Court, in deciding whether to make an order under subsection (1), (3) or (4), must take into account any report or work plan provided to the Court under subsection 94N(2), (3), (4) or (5).

Court may make other orders

If the Court makes an order under subsection (1), (3) or (4) in relation to a mediation, the Court may make any other orders that the Court considers are reasonably necessary or appropriate to deal with the cessation of the mediation.

Later referral for mediation

The making of an order under subsection (1), (3) or (4) does not prevent a later referral for mediation under subsection 86B(5).

Court may determine fact or law

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

Note: Under subsection 94H(1), the person conducting the mediation may refer to the Federal Court a question of fact or law that arises during mediation.

Court may adopt agreement on facts

The Court may adopt any agreement on facts between the parties, reached during mediation by the mediator.

Directions to attend or produce documents for the purposes of mediation

If a report is given to the Court under subsection 94N(5), the Court may make orders in similar terms to the directions that are the subject of the report.

Note: Under subsection 94N(5), the person conducting the mediation may provide a report to the Court if the person has given a direction to a party to appear at the conference, or produce documents, and that direction has not been complied with.

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

The Federal Court may request one or more mediators to provide either or both of the following so as to assist the Court in progressing proceedings in a State, Territory or other region of Australia:

(a) a report on the progress of all mediations conducted by that mediator or those mediators in relation to areas within the State, Territory or region (a regional mediation progress report);

(b) a work plan setting out the priority given to each mediation being conducted by that mediator or those mediators in relation to areas within the State, Territory or region (a regional work plan).

The Court may specify when the report or plan is to be provided.

Parties may negotiate for agreement

Some or all of the parties to a proceeding in relation to an application may negotiate with a view to agreeing to action that will result in any one or more of the following:

the application being withdrawn or amended;

the parties to the proceeding being varied;

any other thing being done in relation to the application.

The agreement may involve matters other than native title.

Assistance by NNTT

The parties may request assistance from the NNTT in negotiating the agreement.

Information obtained in providing assistance not to be used or disclosed in other contexts

The NNTT must not use or disclose information to which it has had access only because it provided assistance in negotiating the agreement except for the following purposes:

providing assistance in negotiating the agreement;

mediating in relation to the whole or any part of the proceeding;

without the prior consent of the person who provided the NNTT with the information.

Court may order adjournment to help negotiations

The Federal Court may order an adjournment of the proceeding to allow time for the negotiations. It may do so on its own motion or on application by a party.

Court may end adjournment

The Federal Court may order that the adjournment end. It may do so:

on its own motion; or

on application by a party; or

if the NNTT reports that the negotiations are unlikely to succeed.

Court’s powers not limited

Subsection (3) does not limit the Federal Court’s powers to order an adjournment.

Federal Court may make order

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

the application is unopposed; and

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

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

Meaning of unopposed

Note: If the application involves making a determination of native title, the Court’s order would need to comply with section 94A (which deals with the requirements of native title determination orders).

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

Application

This section applies if, at any stage of proceedings after the end of the period specified in the notice given under section 66:

agreement is reached on the terms of an order of the Federal Court in relation to:

the proceedings; or

a part of the proceedings; or

a matter arising out of the proceedings; and

all of the following are parties to the agreement:

the parties to the proceedings;

the Commonwealth Minister, if the Commonwealth Minister is intervening in the proceedings at the time the agreement is made; and

the terms of the agreement, in writing signed by or on behalf of the parties to the proceedings and, if subparagraph (aa)(ii) applies, the Commonwealth Minister, are filed with the Court; and

the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court.

When a registered native title claimant is taken to be a party to the agreement

(1AA) The requirements that a party to the proceedings that is a registered native title claimant be a party to the agreement and sign the terms of the agreement are satisfied if:

a majority of the persons who comprise the registered native title claimant are parties to the agreement and sign the terms, unless paragraph (b) applies; or

if conditions under the authority of the registered native title claimant provide for the persons who must become a party to the agreement and sign the terms—those persons are parties to the agreement and sign the terms.section 251BA on

(1AB) The persons in the majority must notify the other persons who comprise the registered native title claimant within a reasonable period after becoming parties to the agreement and signing the terms, as mentioned in paragraph (1AA)(a). A failure to comply with this subsection does not invalidate the agreement or any signature.

Power of Court

The Court may, if it appears to the Court to be appropriate to do so, act in accordance with:

whichever of subsection (2) or (3) is relevant in the particular case; and

if subsection (5) applies in the particular case—that subsection.

Agreement as to order

If the agreement is on the terms of an order of the Court in relation to the proceedings, the Court may make an order in, or consistent with, those terms without holding a hearing or, if a hearing has started, without completing the hearing.

Note: If the application involves making a determination of native title, the Court’s order would need to comply with section 94A (which deals with the requirements of native title determination orders).

Agreement as to part of proceedings

If the agreement relates to a part of the proceedings or a matter arising out of the proceedings, the Court may in its order give effect to the terms of the agreement without, if it has not already done so, dealing at the hearing with the part of the proceedings or the matter arising out of the proceedings, as the case may be, to which the agreement relates.

Orders about matters other than native title

Without limiting subsection (2) or (3), if the order under that subsection does not involve the Court making a determination of native title, the order may give effect to terms of the agreement that involve matters other than native title.

Without limiting subsection (2) or (3), if the order under that subsection involves the Court making a determination of native title, the Court may also make an order under this subsection that gives effect to terms of the agreement that involve matters other than native title.

The jurisdiction conferred on the Court by this Act extends to:

making an order under subsection (2) or (3) that gives effect to terms of the agreement that involve matters other than native title; and

making an order under subsection (5).

The regulations may specify the kinds of matters other than native title that an order under subsection (2), (3) or (5) may give effect to.

Agreed statement of facts

If some or all of the parties to the proceeding have reached agreement on a statement of facts, one of those parties may file a copy of the statement with the Court.

Within 7 days after a statement of facts agreed to by some of the parties to the proceeding is filed, the Federal Court Chief Executive Officer must give notice to the other parties to the proceeding that the statement has been filed with the Court.

In considering whether to make an order under subsection (2), (3) or (5), the Court may accept a statement of facts that has been agreed to by some or all of the parties to the proceedings but only if those parties include:

the applicant; and

the party that the Court considers was the principal government respondent in relation to the proceedings at the time the agreement was reached.

In considering whether to accept under subsection (10) a statement of facts agreed to by some of the parties to the proceedings, the Court must take into account any objections that are made by the other parties to the proceedings within 21 days after the notice is given under subsection (9).

A reference in subsections (8) to (11) to the parties to the proceeding includes a reference to the Commonwealth Minister if the Commonwealth Minister is intervening in the proceeding at the time a statement of facts is agreed.

Application

This section applies if:

there is a proceeding in relation to an application for a determination of native title; and

(b) at any stage of the proceeding after the end of the period specified in the notice given under determination area) that is part of, but not all of, the area covered by the application; andsection 66, agreement is reached on a proposed determination of native title in relation to an area (the

all of the following are parties to the agreement:

the applicant;

each registered native title claimant in relation to any part of the determination area who is a party to the proceeding at the time the agreement is made;

each representative Aboriginal/Torres Strait Islander body for any part of the determination area who is a party to the proceeding at the time the agreement is made;

each person who holds an interest in relation to land or waters in any part of the determination area at the time the agreement is made, and who is a party to the proceeding at the time the agreement is made;

each person who claims to hold native title in relation to land or waters in the determination area and who is a party to the proceeding at the time the agreement is made;

the Commonwealth Minister, if the Commonwealth Minister is a party to, or is intervening in, the proceeding at the time the agreement is made;

if any part of the determination area is within the jurisdictional limits of a State or Territory, the State or Territory Minister for the State or Territory if the State or Territory Minister is a party to the proceeding at the time the agreement is made;

any local government body for any part of the determination area who is a party to the proceeding at the time the agreement is made; and

the terms of the proposed determination are in writing and signed by or on behalf of each of those parties.

Note: For agreements reached in relation to the whole of the area covered by the application, see section 87.

When a registered native title claimant is taken to be a party to the agreement

The requirements that a registered native title claimant be a party to the agreement and sign the terms of the proposed determination are satisfied if:

a majority of the persons who comprise the registered native title claimant are parties to the agreement and sign the terms, unless paragraph (b) applies; or

if conditions under the authority of the registered native title claimant provide for the persons who must become a party to the agreement and sign the terms—those persons are parties to the agreement and sign the terms.section 251BA on

The persons in the majority must notify the other persons who comprise the registered native title claimant within a reasonable period after becoming parties to the agreement and signing the terms, as mentioned in paragraph (1A)(a). A failure to comply with this subsection does not invalidate the agreement or any signature.

Proposed determination may be filed with the Court

A party to the agreement may file a copy of the terms of the proposed determination of native title with the Federal Court.

Certain parties to the proceeding to be given notice

The Federal Court Chief Executive Officer must give notice to the other parties to the proceeding that the proposed determination of native title has been filed with the Court.

Orders may be made

The Court may make an order in, or consistent with, the terms of the proposed determination of native title without holding a hearing, or if a hearing has started, without completing the hearing, if the Court considers that:

an order in, or consistent with, the terms of the proposed determination would be within its power; and

it would be appropriate to do so.

Note: As the Court’s order involves making a determination of native title, the order needs to comply with section 94A (which deals with the requirements of native title determination orders).

Without limiting subsection (4), if the Court makes an order under that subsection, the Court may also make an order under this subsection that gives effect to terms of the agreement that involve matters other than native title if the Court considers that:

the order would be within its power; and

it would be appropriate to do so.

The jurisdiction conferred on the Court by this Act extends to making an order under subsection (5).

The regulations may specify the kinds of matters other than native title that an order under subsection (5) may give effect to.

Objections

In considering whether to make an order under subsection (4) or (5), the Court must take into account any objections made by the other parties to the proceedings.

Agreed statement of facts

If some or all of the parties to the proceeding have reached agreement on a statement of facts, one of those parties may file a copy of the statement with the Court.

Within 7 days after a statement of facts agreed to by some of the parties to the proceeding is filed, the Federal Court Chief Executive Officer must give notice to the other parties to the proceeding that the statement has been filed with the Court.

In considering whether to make an order under subsection (4) or (5), the Court may accept a statement of facts that has been agreed to by some or all of the parties to the proceedings but only if those parties include:

the applicant; and

the party that the Court considers was the principal government respondent in relation to the proceedings at the time the agreement was reached.

In considering whether to accept under subsection (11) a statement of facts agreed to by some of the parties to the proceedings, the Court must take into account any objections that are made by the other parties to the proceedings within 21 days after the notice is given under subsection (10).

A reference in subsections (9) to (12) to the parties to the proceeding includes a reference to the Commonwealth Minister if the Commonwealth Minister is intervening in the proceeding at the time a statement of facts is agreed.

Conference may be held

The Federal Court may direct the holding of a conference of the parties or their representatives to help in resolving any matter that is relevant to the proceedings.

Assessor to preside

The conference must be presided over by the assessor who is assisting the Court in relation to the proceedings.

Subject to section 91, a party has the right to appear at a conference.

An assessor may allow a person to participate in a conference by:

telephone; or

closed-circuit television; or

any other means of communication.

Public conferences

Subject to subsection (3), a conference must be held in public.

Participation by telephone etc.

If, when a conference is in public, a person participates by a means allowed under section 90, the assessor must take such steps as are reasonably necessary to ensure the public nature of the conference is preserved.

Private conferences

The assessor may, on his or her own initiative or on the application of a party, if he or she is satisfied that it is appropriate to do so, direct that a conference, or a part of a conference, be held in private and give directions as to the persons who may be present.

Concerns of Aboriginal peoples and Torres Strait Islanders

In determining whether a conference or part of a conference is to be held in private, the assessor must have due regard to the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders.

Power of Court

The Federal Court may direct that:

any evidence given before an assessor; or

the contents of any document produced to an assessor;

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

Applications etc.

The Federal Court may make the direction on its own initiative or on an application by a party or by the assessor.

Evidence on oath or affirmation

The assessor may take evidence on oath or affirmation and for that purpose the assessor may administer an oath or affirmation.

Assessor may apply for summons

An assessor may apply to the Federal Court for an order to summon a person to appear before the assessor to give evidence and to produce such documents (if any) as are referred to in the summons.

Witnesses

A party may call witnesses.

Examination

A person appearing as a witness before the assessor may be examined.

Leave for cross-examination and re-examination

A person appearing as a witness before the assessor may only be cross-examined or re-examined with the leave of the assessor.

Participation by telephone etc.

If a person participates by a means allowed under section 90, the assessor may make such arrangements as appear to the assessor to be appropriate in the circumstances for administering an oath or affirmation to the person.

If the Federal Court makes an order that compensation is payable, the order must set out:

the name of the person or persons entitled to the compensation or the method for determining the person or persons; and

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

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

An order in which the Federal Court makes a determination of native title must set out details of the matters mentioned in determination of native title).section 225 (which defines

If an application under section 61 is referred for mediation under section 86B, the Federal Court must take into account:

(a) any report relating to the mediation that is provided to the Court under subsection 94N(1), (2) or (4); and

any regional mediation progress report and any regional work plan that is provided to the Court under subsection 94N(3) that covers a State, Territory or region that includes the area covered by the application;

when it decides whether to make an order relating to the application.

Subject to subsections (2) and (3), the Federal Court must, on the application of a party or on its own motion, dismiss an application made by a person under section 61 if:

the application is for a determination of native title in relation to an area; and

it is apparent from the timing of the application that it is made in response to a future act notice given in relation to land or waters wholly or partly within the area; and

the future act requirements are satisfied in relation to each future act identified in the future act notice; and

either:

the person fails to produce evidence in support of the application despite a direction by the Court to do so, or to take other steps to have the claim sought in the application resolved despite a direction by the Court to do so; or

in a case to which subparagraph (i) does not apply, the Court considers that the person has failed, within a reasonable time, to take steps to have the claim sought in the application resolved.

For the purposes of paragraph (1)(b), it is apparent from the timing of an application by a person for a determination of native title in relation to an area that it is made in response to a future act notice to which the current law applies if:

the future act notice is given in relation to land or waters wholly or partly within the area; and

the application is made during the period of 3 months after the notification day specified in the future act notice; and

the person becomes a registered native title claimant in relation to any land or waters that will be affected by the act, before the end of 4 months after the notification day specified in the future act notice.

For the purposes of paragraph (1)(b), it is apparent from the timing of an application by a person for a determination of native title in relation to an area that it is made in response to a future act notice to which the pre-1998 law applies if:

the future act notice is given in relation to land or waters wholly or partly within the area; and

the person becomes a registered native title claimant in relation to any land or waters that will be affected by the act, within the period of 2 months starting when the notice is given.

The regulations may prescribe, for the purposes of paragraph (1)(b), other circumstances in which it is taken to be apparent from the timing of an application by a person for a determination of native title in relation to an area that it is made in response to a future act notice, including circumstances in which it is taken to be apparent in relation to a future act notice given under alternative provisions.

(1D) For the purposes of paragraph (1)(c), the future act requirements are satisfied in relation to a future act notice to which the current law applies if one of the following paragraphs is satisfied in relation to each future act identified in the notice:

subsection 32(2) (which applies if no objection is made after the giving of a notice that the act attracts the expedited procedure) allows the act to be done;

a determination is made under subsection 32(4) that the act is an act attracting the expedited procedure;

native title parties have lodged one or more objections in relation to the act under subsection 32(3), but all such objections are withdrawn under subsection 32(6);

an agreement of the kind mentioned in paragraph 31(1)(b) is made;

a determination is made under section 36A or 38 that the act may be done, or may be done subject to conditions being complied with;

a determination is made under section 36A or 38 that the act must not be done;

a determination that the act may be done, or may be done subject to conditions being complied with or must not be done, is declared to be overruled in accordance with section 42;

a circumstance occurs in which, under the regulations, the future act requirements are satisfied.

(1E) For the purposes of paragraph (1)(c), the future act requirements are satisfied in relation to a future act notice to which the pre-1998 law applies if one of the following paragraphs is satisfied in relation to each future act identified in the notice:

subsection 32(2) of the pre-1998 law (which applies if no objection is made after the giving of a notice that the act attracts the expedited procedure) allows the act to be done;

a determination is made under subsection 32(4) of the pre-1998 law that the act is an act attracting the expedited procedure;

a copy of an agreement that the act may be done, or may be done subject to conditions being complied with, is given to the arbitral body under section 34 of the pre-1998 law;

a determination is made under section 38 of the pre-1998 law that the act may be done, or may be done subject to conditions being complied with;

a determination is made under section 38 of the pre-1998 law that the act must not be done;

a determination that the act may be done, or may be done subject to conditions being complied with or must not be done, is declared to be overruled in accordance with section 42 of the pre-1998 law;

a circumstance occurs in which, under the regulations, the future act requirements are satisfied.

(1F) The regulations may prescribe, for the purposes of paragraphs (1D)(h) and (1E)(g), other circumstances in which future act requirements are satisfied.

(1G) The regulations may prescribe circumstances in which future act requirements are satisfied in relation to a future act notice given under alternative provisions.

The Court must not dismiss the application without first ensuring that the person is given a reasonable opportunity to present his or her case about why the application should not be dismissed.

The Court must not dismiss the application if there are compelling reasons not to do so. However, the fact that:

a subsequent future act notice has been given that specifies all or part of an area that is included in the area covered by the application; and

paragraph (1)(d) is not satisfied in relation to each future act identified in the subsequent future act notice;

is not, of itself, a compelling reason.

To avoid doubt, the Court’s dismissal of an application under this section does not affect any rights, liabilities or obligations of a person under:

an agreement of the kind mentioned in paragraph 31(1)(b); or

a determination made under subsection 32(4) or section 36A, 38 or 42; or

an agreement made in accordance with, or a determination made under, any alternative provisions that are equivalent to the provisions mentioned in paragraphs (a) and (b).

(5) To avoid doubt, this section does not affect the Court’s power to dismiss an application under the Federal Court of Australia Act 1976.

In this section:

alternative provisions means provisions provided for by a law of a State or Territory in respect of which the Commonwealth Minister has made a determination under paragraph 43(1)(b).

future act notice means:

a notice of a future act given under section 29; and

a notice of a future act given under alternative provisions.

future act notice to which the current law applies means a future act notice to which the provisions in Subdivision P of Division 3 of Part 2 of this Act apply.

future act notice to which the pre-1998 law applies means a future act notice to which the provisions in Subdivision B of Division 3 of Part 2 of the Native Title Act 1993 apply, as in force immediately before the commencement of the Native Title Amendment Act 1998 (including as it applies in accordance with Schedule 5 of that Act).

pre-1998 law means the Native Title Act 1993, as in force immediately before the commencement of the Native Title Amendment Act 1998 (including as it applies in accordance with Schedule 5 of that Act).

Mediator may hold conferences

If the Federal Court refers the whole or a part of a proceeding under section 86B for mediation, the mediator may hold such conferences of the parties or their representatives as the mediator considers will help in resolving the matter.

Note: The person conducting the mediation may request the Federal Court to refer for review by the NNTT the issue of whether there are native title rights and interests: see subsections 136GC(2) and (3).

Who must conduct conferences

A conference must be conducted by:

if the mediator is an individual—the mediator; or

if the mediator is the NNTT—a member of the NNTT; or

in any other case—an individual nominated by the mediator.

Assistance

Subject to an order made under subsection 86B(5C) in relation to the mediation, the person conducting the mediation may be assisted:

if the person is a member of the NNTT—by another member of the NNTT or a member of the staff assisting the NNTT; and

in any other case—by such other individuals as the person considers appropriate.

Statements at conference are without prejudice

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

Person conducting the mediation etc. not to take further part in relation to a proceeding

Unless the parties otherwise agree or the Court gives leave, the person conducting the mediation, or another person who assists that person, may not, in any other capacity, take any further part in the proceeding before the Court.

Participation by telephone etc.

The person conducting the mediation may allow a person to participate by:

telephone; or

closed-circuit television; or

any other means of communication.

Division applies as if consultant were a member

If:

the mediator is the NNTT; and

a consultant is engaged under subsection 131A(1) to conduct mediation in relation to a particular matter under this Division;

this Division applies in relation to that matter as if the consultant were a member of the NNTT.

Requiring parties to attend conferences

The person conducting the mediation may direct a party to attend at a conference.

Limiting parties at conferences

The person conducting the mediation may direct that only one or some of the parties may attend, and be represented, at a conference.

Excluding parties from conferences

If the person conducting the mediation considers that:

a party, or a party’s representative, at a conference is disrupting or hindering the conference; or

excluding a party, or a party’s representative, from a conference would help to resolve matters;

the person may direct that the party or representative not attend at that conference or at other conferences.

Parties may be represented

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

Mediation in good faith

Each party, and each person representing a party, must act in good faith in relation to the conduct of the mediation.

The person conducting the mediation may, with the consent of all of the parties present at a conference:

direct that other persons be permitted to attend as observers of the conference; or

if he or she considers it would assist the parties to reach agreement on any of the matters mentioned in subsection 86A(1) or (2)—direct that other persons be permitted to participate in the conference.

The person conducting the mediation may, for the purposes of a conference, direct a party to produce a document to the person on or before a day specified in the direction, if the person considers that:

the document is in the possession, custody or control of the party; and

the production of the document may assist the parties to reach agreement on any matters mentioned in subsection 86A(1) or (2).

Referral of questions to Federal Court

Subject to subsections (2) and (3), if the person conducting the mediation considers that it would expedite the reaching of an agreement on any matter that is the subject of mediation, he or she may refer to the Federal Court a question of fact or law relating to a proceeding that arises during the mediation.

Note: Under subsection 86D(1), the Federal Court may determine a question of fact or law that a mediator refers to it.

Person conducting the mediation not a consultant

If the person conducting the mediation is not a consultant engaged under subsection 131A(1), the question may only be referred to the Court under subsection (1) of this section:

on the initiative of the person; or

at the request of a party.

Person conducting the mediation a consultant

If the person conducting the mediation is a consultant engaged under subsection 131A(1), the question may only be referred to the Court under subsection (1) of this section:

on the initiative of the person, if a presidential member agrees; or

at the request of a party.

Mediation may continue

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

Referral of questions to Federal Court

Subject to subsections (3) and (4), if the person conducting the mediation considers that a party to a proceeding does not have a relevant interest in the proceeding, he or she may refer to the Federal Court the question of whether the party should cease to be a party to the proceeding.

For the purposes of the determination by the Court of that question, subsection 94D(4) does not apply to the extent that words spoken or acts done at a conference under section 94D relate to that question.

Person conducting the mediation not a consultant

If the person conducting the mediation is not a consultant engaged under subsection 131A(1), the question may only be referred to the Court under subsection (1) of this section:

on the initiative of the person; or

at the request of a party, if the person agrees.

Person conducting the mediation a consultant

If the person conducting the mediation is a consultant engaged under subsection 131A(1), the question may only be referred to the Court under subsection (1) of this section:

on the initiative of the person, if a presidential member agrees; or

at the request of a party, if both the person and a presidential member agree.

Mediation may continue

If a question has been referred to the Court under this section, the person conducting the mediation may continue mediation if he or she considers that it is appropriate.

Meaning of relevant interest

(6) In this section, a person has a relevant interest in a proceeding if the person’s interests may be affected by a determination in the proceeding.

A conference must be held in private, unless the person conducting the mediation directs otherwise and no party objects.

The person conducting the mediation may direct that:

any information given, or statements made, at a conference; or

the contents of any document produced at a conference;

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

Applications etc.

The person conducting the mediation may make the direction on his or her own initiative or on an application by a party.

Person conducting the mediation may disclose information etc. if parties agree

If the parties agree, the person conducting the mediation may, despite the direction, disclose things of the kind mentioned in paragraph (1)(a) or (b).

Offence

A person commits an offence if:

the person discloses any material in contravention of a direction made under subsection (1); and

the disclosure is not permitted by subsection (3).

Penalty: 40 penalty units.

Subsection (4) is an offence of strict liability.

Note: For strict liability, see Criminal Code.section 6.1 of the

The person conducting the mediation, or another person who assists that person, is not competent, and must not be required, to give evidence to a court relating to a matter if:

the giving of the evidence would be contrary to a direction under subsection 94L(1); or

an application has been made for a direction under that subsection concerning the matter to which the evidence would relate and the person conducting the mediation has not determined that application.

The person conducting the mediation, or another person who assists that person, must not be required to produce in a court a document given in connection with a mediation if:

the production of the document would be contrary to a direction under subsection 94L(1); or

an application has been made for a direction under that subsection in relation to the document and the person conducting the mediation has not determined that application.

In this section:

court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.

produce includes permit access to.

Report after mediation concludes

The person conducting the mediation must, as soon as practicable after mediation is successfully concluded, provide a written report to the Federal Court setting out the results of the mediation.

Report requested under subsection 86E(1)

The person conducting the mediation must provide a written report to the Federal Court setting out the progress of the mediation if requested to do so under subsection 86E(1).

Report or plan requested under subsection 86E(2)

If one or more mediators have been requested under subsection 86E(2) to provide a regional mediation progress report or a regional work plan, that mediator or those mediators must provide the report or plan to the Federal Court.

Progress report

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

Report about failure to comply with a direction

If a direction made under subsection 94E(1) or section 94G has not been complied with, the person conducting the mediation may provide a written report to the Federal Court setting out:

the details of the direction; and

the reasons for giving the direction.

Agreement on facts

If the parties agree, a report provided under subsection (1), (2) or (4) must include any agreement on facts between the parties that was reached during the mediation concerned.

Reports to government

If the person conducting the mediation considers that a party mentioned in column 1 of the following table in relation to an item, or a person representing such a party, did not act or is not acting in good faith in relation to the conduct of the mediation, the person may report that failure to the person mentioned in column 2 of the table in relation to the item:

Reports to legal professional bodies

If the person conducting the mediation considers that a legal practitioner did not act or is not acting in good faith in relation to the conduct of the mediation, the person may report that failure to the relevant State or Territory legal professional body that issued the legal practitioner with a practising certificate.

For the purposes of a report made under subsection (2), subsection 94D(4) does not apply to the extent that words spoken or acts done at a conference under section 94D relate to the failure mentioned under subsection (2) of this section.

Reports to the Federal Court

If the person conducting the mediation considers that a party, or the party’s representative, did not act or is not acting in good faith in relation to the conduct of the mediation, the person may, despite subsection 94D(4), report that failure to the Federal Court (whether or not a report is also provided as mentioned in subsection (1) or (2) of this section).

What a report must include

A report must include:

the details of the failure to act in good faith; and

the context in which the conduct took place.

Copy of report to be provided to the person to whom it relates

At the time that a report is provided as mentioned in subsection (1), (2) or (4), a copy of the report must also be provided to the person to whom it relates.

Person conducting the mediation not a consultant

If the person conducting the mediation is not a consultant engaged under subsection 131A(1), a report may only be provided under this section on the initiative of the person.

Person conducting the mediation a consultant

If the person conducting the mediation is a consultant engaged under subsection 131A(1), a report may only be provided under this section on the initiative of the person if a presidential member agrees.

Mediation may continue

If a report is provided under this section, the person conducting the mediation may continue mediation if he or she considers that it is appropriate.

Scope

This section applies if the person conducting a mediation is a member of the NNTT.

Annual report may include particulars of failure to act in good faith etc.

If the person considers that a Government party, or that party’s representative, did not act or is not acting in good faith in relation to the conduct of the mediation, the report prepared under section 133 may include particulars of that failure and the reasons why the person considers that the conduct was not in good faith.

If it is proposed to make an inclusion in the report, the person must inform the Government party, or that party’s representative, before doing so.

A person conducting the mediation has, in the performance of his or her duties as a person conducting the mediation, the same protection and immunity as a Justice of the High Court.

The regulations may make provision in relation to the way in which any mediation is provided under this Division.

Such regulations must not be inconsistent with this Division.

A National Native Title Tribunal is established.

Applications, inquiries and determinations

The Tribunal has the functions in relation to applications, inquiries and determinations given to it by Part 3 and Division 5.

Mediation for Federal Court proceedings

The Tribunal has the functions in relation to Federal Court proceedings given to the Tribunal by Division 4 of Part 4 and Division 4AA of this Part.

Reconsideration of claims

(1AA) The Tribunal has the functions in relation to applications for the reconsideration of claims made to the Tribunal under section 190E that are given to it under that section.

Assistance and mediation generally

The Tribunal has the functions of:

providing assistance, mediating or conducting a review in accordance with any provision of this Act; and

entering into agreements in relation to assistance as mentioned in subsections 60AAA(3) and 203BK(3).

Research

The Tribunal may carry out research for the purpose of performing its functions.

Matters for research

Without limiting subsection (2), the Tribunal may carry out research under that subsection into:

the history of interests in relation to land or waters in Australia; or

anthropology; or

linguistics.

Objectives

The Tribunal must pursue the objective of carrying out its functions in a fair, just, economical, informal and prompt way.

Concerns of Aboriginal peoples and Torres Strait Islanders

The Tribunal, in carrying out its functions, may take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, but not so as to prejudice unduly any party to any proceedings that may be involved.

Tribunal not bound by technicalities etc.

The Tribunal, in carrying out its functions, is not bound by technicalities, legal forms or rules of evidence.

The membership of the Tribunal is as set out in the following table:

Appointment by Governor-General

The members are to be appointed by the Governor-General.

Full-time or part-time appointments

A member (other than a Judge or an assessor) must be appointed either as a full-time member or as a part-time member.

Judges

The appointment of a Judge as a presidential member, or service by a Judge as a presidential member, does not affect:

the Judge’s tenure of office as a Judge; or

the Judge’s rank, title, status, precedence, salary, annual or other allowances or other rights or privileges as the holder of his or her office as a Judge.

Assessors

The appointment of an assessor as a member, or service by an assessor as a member, does not affect:

the assessor’s tenure of office as an assessor; or

the assessor’s salary, annual or other allowances or other rights or privileges as the holder of his or her office as an assessor.

Service as member taken to be service in office of Judge or assessor

Service by a Judge or an assessor as a member is taken for all purposes to be service as the holder of his or her office as a Judge or assessor.

The President may, by signed instrument, delegate to one or more of the members all or any of the President’s powers under this Act.

Determination by Remuneration Tribunal

A member, other than a member who is a Judge or an assessor, is to be paid the remuneration and allowances determined by the Remuneration Tribunal. If there is no determination in force, the member is to be paid such remuneration as is prescribed.

Prescribed allowances

A member to whom subsection (1) applies is to be paid such other allowances as are prescribed.

Subject to Remuneration Tribunal Act 1973

(3) Subsections (1) and (2) have effect subject to the Remuneration Tribunal Act 1973.

Period for which office held

A member is appointed for the period (not longer than 5 years) specified in the instrument of appointment, but is eligible for reappointment.

When Judge or assessor ceases to be member

A member who is a Judge or an assessor ceases to be a member if he or she ceases to be a Judge or assessor.

Terms and conditions

A member holds office on such terms and conditions (if any) in relation to matters not provided for by this Act as are prescribed.

President

The Commonwealth Minister may, by written instrument, appoint a person to act as the President:

during a vacancy in the office of President (whether or not an appointment has previously been made to the office); or

during any period, or during all periods, when the President:

is absent from duty or from Australia; or

is, for any reason, unable to perform the duties of the office.

Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.

Deputy President

The Commonwealth Minister may, by written instrument, appoint a person to act as a Deputy President:

during a vacancy in the office of a Deputy President (whether or not an appointment has previously been made to the office); or

during any period, or during all periods, when a Deputy President:

is absent from duty or from Australia; or

is, for any reason, unable to perform the duties of the office.

Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.

Non-presidential members

The Commonwealth Minister may, by written instrument, appoint a person to act as a member other than the President or a Deputy President:

during a vacancy in the office of a member other than the President or a Deputy President (whether or not an appointment has previously been made to the office); or

during any period, or during all periods, when a member other than the President or a Deputy President:

is absent from duty or from Australia; or

is, for any reason, unable to perform the duties of the office.

Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.

Qualifications

A person must not be appointed to act in an office under this section unless the person may be appointed to that office under section 110.

Terms and conditions

A person (other than a Judge or an assessor) appointed to act in an office under this section is to act on such terms and conditions as the Minister determines in writing.

Member to take oath or affirmation

A person who is appointed or re-appointed as a member must take an oath or affirmation in the following form:

“I, , do swear that I will well and truly serve in the office of (insert name of office) and that I will do right to all manner of people according to law, without fear or favour, affection or ill will, So Help Me God!”

Or

“I, , do solemnly and sincerely promise and declare that (as above, omitting the words ‘So Help Me God’).”.

Who oath or affirmation is to be taken before

The oath or affirmation must be taken before:

the Governor-General; or

a Justice of the High Court; or

a judge of another federal court; or

a judge of the Supreme Court of a State or Territory.

Recreation leave

A full-time member has the recreation leave entitlements determined by the Remuneration Tribunal.

Other leave

The Commonwealth Minister may grant a full-time member leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Commonwealth Minister determines.

A member may resign office by giving a signed notice of resignation to the Governor-General.

Misbehaviour or incapacity

The Governor-General may terminate the appointment of a member, other than a Judge or an assessor, if an address praying for the termination of the member’s appointment on the ground of proved misbehaviour or of physical or mental incapacity is presented to the Governor-General by each House of the Parliament in the same session of the Parliament.

Termination for other reasons

The Governor-General must terminate the appointment of a member, other than a Judge or an assessor, if the member:

becomes bankrupt; or

applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

compounds with his or her creditors; or

makes an assignment of his or her remuneration for the benefit of his or her creditors.

Retirement—incapacity

The Governor-General may, with the consent of a member other than a Judge or an assessor who is:

(a) an eligible employee for the purposes of the Superannuation Act 1976; or

(b) a member of the superannuation scheme established by deed under the Superannuation Act 1990; or

(c) an ordinary employer-sponsored member of PSSAP, within the meaning of the Superannuation Act 2005;

retire the member from office on the ground of incapacity.

Retirement—invalidity—Superannuation Act 1976

In spite of anything contained in this Act, a member who:

(a) is an eligible employee for the purposes of the Superannuation Act 1976; and

has not reached his or her retiring age (within the meaning of that Act);

is not capable of being retired from office on the ground of invalidity (within the meaning of Part IVA of that Act) unless CSC has given a certificate under section 54C of that Act.

Retirement—invalidity—Superannuation Act 1990

In spite of anything contained in this Act, a member who:

(a) is a member of the superannuation scheme established by deed under the Superannuation Act 1990; and

is under 60 years of age;

is not capable of being retired from office on the ground of invalidity (within the meaning of that Act) unless CSC has given a certificate under section 13 of that Act.

Retirement—invalidity—Superannuation Act 2005

In spite of anything contained in this Act, a member who:

(a) is an ordinary employer-sponsored member of PSSAP, within the meaning of the Superannuation Act 2005; and

is under 60 years of age;

is not capable of being retired from office on the ground of invalidity (within the meaning of that Act) unless CSC has given an approval and certificate under section 43 of that Act.

Misbehaviour or incapacity

The Governor-General may suspend a member other than a Judge from office on the ground of misbehaviour or of physical or mental incapacity.

Statement of grounds

If the Governor-General suspends a member from office, the Commonwealth Minister must cause a statement of the ground of the suspension to be laid before each House of the Parliament within 7 sitting days of that House after the suspension.

Resolution by a House of Parliament

If such a statement has been laid before a House of the Parliament, that House may, within 15 sitting days of that House after the day on which the statement has been laid before it, by resolution, declare that the member’s appointment should be terminated.

Member’s appointment to be terminated

If each House of the Parliament passes the resolution, the Governor-General must terminate the member’s appointment.

Termination of suspension

If, at the end of 15 sitting days of a House of the Parliament after the day on which the statement has been laid before that House, that House has not passed the resolution, the suspension terminates.

Suspension not to affect entitlements

The suspension of a member from office under this section does not affect any entitlement of the member to be paid remuneration and allowances.

Consent of Commonwealth Minister required

Except with the consent of the Commonwealth Minister, a full-time member must not engage in paid employment outside the duties of his or her office.

Service in Defence Force

The reference in subsection (1) to paid employment does not include service in the Defence Force.

Member to disclose conflict of interest

A member who has a conflict of interest in relation to an application under Part 3 or an inquiry by the Tribunal must disclose the matters giving rise to that conflict:

if the member is the President—to the Commonwealth Minister and the parties; or

in any other case—to the President and the parties.

Requirement for consent

The member must not take part in the inquiry or exercise any powers in relation to the application or the inquiry unless:

if the member is the President—the Commonwealth Minister and the parties consent; or

in any other case—the President and the parties consent.

Meaning of conflict of interest

For the purposes of this section, a member has a conflict of interest in relation to an application under Part 3 or an inquiry by the Tribunal if the member has any interest, pecuniary or otherwise, that could conflict with the proper performance of the member’s functions in relation to that application or inquiry.

Without limiting subsection (3), a person has a conflict of interest at a particular time in relation to an application under Part 3, or an inquiry by the Tribunal, if:

at that time, the person is employed by, or engaged as a consultant to, an organisation that has an interest in the subject matter of the application or the inquiry; or

at any time in the 12 months immediately before that time, the person was so employed or engaged.

President may give directions

Subject to section 124, the President may give directions as to any of the following:

the arrangement of the business of the Tribunal;

the persons who are to:

conduct mediation in a particular proceeding; or

provide any assistance under this Act; or

conduct a review under this Act;

the persons who are to constitute the Tribunal for the purposes of a particular inquiry;

the persons who may appear on behalf of the Tribunal under section 86BA;

the person who is to constitute the Tribunal for the purposes of reconsidering a decision of the Registrar not to accept a claim;

the places at which the Tribunal is to sit;

the procedure of the Tribunal generally;

the procedure of the Tribunal at a particular place.

Factors to be considered

In giving a direction as to the persons who are to constitute the Tribunal for the purposes of a particular inquiry, the President must have regard to the degree of public importance or complexity of the matters to which that inquiry relates.

Constitution of Tribunal

The Tribunal for the purposes of a particular inquiry must be constituted by:

a member; or

3 members not more than one of whom is a presidential member.

Constitution where 3 members

If the Tribunal is constituted by 3 members, the President must, as far as is reasonably practicable, ensure that the Tribunal includes at least one member with special knowledge in relation to Aboriginal or Torres Strait Islander societies.

Constitution—inquiry into objection to registration of indigenous land use agreement

The Tribunal must not be constituted by, or include, for the purposes of an inquiry in relation to a subsection 24DJ(1) objection application, a member who has assisted a party to the agreement to which the application relates in negotiations as mentioned in subsection 24DJ(2), unless the parties otherwise agree.

When section applies

(1) This section applies if a member (the unavailable member) who constitutes the Tribunal, or who is one of the members who constitutes the Tribunal, for the purposes of a particular inquiry:

stops being a member; or

for any reason is not available for the purpose of the inquiry.

Where unavailable member constituted Tribunal

If the unavailable member constitutes the Tribunal, the President must direct another member or members to constitute the Tribunal for the purposes of finishing the inquiry.

Other cases

If the unavailable member is one of the members who constitute the Tribunal, the President must either:

direct that the Tribunal is to be constituted for the purposes of finishing the inquiry by the remaining member or members; or

direct that the Tribunal is to be constituted for that purpose by the remaining member or members together with another member or members.

Member who is reappointed

For the purposes of subsections (2) and (3), a member who stops being a member and at a later time becomes a member again is taken, from that later time, to be another member.

Tribunal may have regard to previous proceedings

The Tribunal as constituted in accordance with a direction under subsection (2) or (3) must continue and finish the inquiry and may, for that purpose, have regard to any record of the proceedings of the inquiry made by the Tribunal as previously constituted.

The President must give a direction as to the member who is to be the presiding member for a particular inquiry.

Sittings of the Tribunal are to be held from time to time as required at the places at which the registries of the Tribunal are established, but the Tribunal may sit at any place in Australia or to which this Act extends.

The President is responsible for managing the administrative affairs of the Tribunal.

However, the President is not responsible under subsection (1) for matters under:

(a) the Public Governance, Performance and Accountability Act 2013; or

(b) the Public Service Act 1999;

relating to the Tribunal.

Note 1: See Federal Court of Australia Act 1976 for provisions relating to the administrative affairs of the Tribunal.Part IIB of the

Note 2: For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013), the Native Title Registrar, the Deputy Registrars and the staff assisting the Tribunal are officials of the listed entity referred to in section 18ZB of the Federal Court of Australia Act 1976.

Note 3: For the purposes of the Public Service Act 1999, the APS employees referred to in subsection 130(3) are part of the Statutory Agency declared under section 18ZE of the Federal Court of Australia Act 1976.

In the management of the administrative affairs of the Tribunal in accordance with section 128, the President is to be assisted by the Federal Court Chief Executive Officer.

Powers, when assisting President

The Federal Court Chief Executive Officer may do all things necessary or convenient to be done for the purpose of assisting the President under subsection (1).

In particular, the Federal Court Chief Executive Officer may act for the President in relation to the administrative affairs of the Tribunal for which the President is responsible in accordance with section 128.

President may give directions

The President may give the Federal Court Chief Executive Officer directions regarding the exercise of the powers of the Federal Court Chief Executive Officer under subsection (2) or (3).

The Federal Court Chief Executive Officer may, by signed instrument, delegate all or any of the powers of the Federal Court Chief Executive Officer under this Division to any of the following:

the Native Title Registrar;

a Deputy Registrar of the Tribunal;

a member of the staff assisting the Tribunal.

Note: For other powers of delegation, see Public Governance, Performance and Accountability Act 2013 and section 78 of the Public Service Act 1999.section 110 of the

Subdivision B—Other officers, staff and consultants

Deputy Registrars and staff

There are to be such Deputy Registrars of the Tribunal, and staff assisting the Tribunal, as are necessary.

(3) The Deputy Registrars and the staff assisting the Tribunal are to be persons engaged under the Public Service Act 1999 and made available for the purpose by the Federal Court Chief Executive Officer.

Secondment

(4) The Federal Court Chief Executive Officer may, on behalf of the President, arrange with an Agency Head within the meaning of the Public Service Act 1999, or with an authority of the Commonwealth, for the services of officers or employees of the Agency or of the authority to be made available for the purposes of the Tribunal.

Powers etc.

The Deputy Registrars and the staff assisting the Tribunal have such duties, powers and functions as are given by this Act, by the President or by the Federal Court Chief Executive Officer.

The President may arrange with the Federal Court Chief Executive Officer for a person to be engaged as a consultant in relation to any assistance, mediation or review that the Tribunal provides under any provision of this Act.

Note: The Federal Court Chief Executive Officer may enter into contracts on behalf of the Commonwealth and has responsibilities under the Public Governance, Performance and Accountability Act 2013 in relation to the Tribunal.

Consultants to have relevant skills or knowledge

The Federal Court Chief Executive Officer may only engage a person under subsection (1) if:

the person has, in the opinion of the President, particular skills or knowledge in relation to matters of substantial relevance to the assistance, mediation or review; and

so far as is reasonably practicable, the person has, in the opinion of the President, special knowledge in relation to Aboriginal or Torres Strait Islander societies.

Engagements to be in writing

An engagement under subsection (1) must be made:

on behalf of the Commonwealth; and

by written agreement.

Consultant subject to President’s direction

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

Consultant to disclose conflict of interest

A person engaged under subsection 131A(1) as a consultant in relation to any assistance, mediation or review being provided by the Tribunal who has a conflict of interest in relation to the assistance, mediation or review must disclose the matters giving rise to that conflict to:

the President of the Tribunal; and

the persons to whom the Tribunal is providing the assistance, mediation or review.

Requirement for consent

The person must not perform his or her duties as a consultant in relation to the assistance, mediation or review unless the President and the persons to whom the Tribunal is providing the assistance, mediation or review consent.

Meaning of conflict of interest

For the purposes of this section, a person engaged under subsection 131A(1) as a consultant in relation to any assistance, mediation or review being provided by the Tribunal has a conflict of interest in relation to the assistance, mediation or review if the person has any interest, pecuniary or otherwise, that could conflict with the proper performance of his or her duties as a consultant in relation to the assistance, mediation or review.

Conflict of interest at a particular time

Without limiting subsection (3), a person engaged under subsection 131A(1) as a consultant in relation to any assistance, mediation or review being provided by the Tribunal has a conflict of interest at a particular time in relation to the assistance, mediation or review if:

at that time, the person is employed by, or engaged as a consultant to, an organisation that has an interest in the matter in relation to which the assistance, mediation or review is being provided; or

at any time in the 12 months immediately before that time, the person was so employed or engaged.

Subdivision C—Miscellaneous administrative matters

As soon as practicable after 30 June in each year, the President must prepare a report that relates to the Tribunal’s activities during the year.

The report may include particulars of any failure to act in good faith and the reasons why the conduct was not in good faith, as allowed by section 94Q.

(3) The President must give the report to the Chief Justice, for inclusion in the report prepared for the relevant year under Federal Court of Australia Act 1976.section 18S of the

Any judicial or other proceeding relating to a matter arising out of the management of the administrative affairs of the Tribunal under this Part, including any proceeding relating to anything done by the Federal Court Chief Executive Officer under this Part, may be instituted by or against the Commonwealth, as the case requires.

Referral by the Federal Court on its own motion

The Federal Court may, on its own motion, refer for review by the Tribunal the issue of whether a native title claim group who is a party in a proceeding holds native title rights and interests, as defined in subsection 223(1), in relation to land or waters within the area that is the subject of the proceeding.

Referral by the Federal Court on request

The Federal Court may refer for review by the Tribunal the issue of whether a native title claim group who is a party in a proceeding holds native title rights and interests, as defined in subsection 223(1), in relation to land or waters within the area that is the subject of the proceeding if:

the issue arises in the course of mediation in relation to the proceeding; and

the person conducting the mediation requests the Court to refer the issue for review by the Tribunal.

The person conducting the mediation may only make the request if the person considers, after consultation with the parties to the proceeding, that a review of the issue would assist the parties to reach agreement on any of the matters mentioned in subsection 86A(1).

Member must conduct review

A review must be conducted by a member of the Tribunal.

Assistance for member conducting review

The member conducting a review may be assisted by another member of the Tribunal or by a member of the staff assisting the Tribunal.

Parties may give documents and information

(6) A party in the proceeding may give documents or information to the member conducting the review for the purposes of the review. A party who gives documents or information is a participating party.

Statements at review are without prejudice

In a proceeding before the Court, unless the participating parties otherwise agree, evidence may not be given, and statements may not be made, concerning any word spoken or act done in the course of the review.

Member not to take further part in relation to a proceeding

Unless the participating parties otherwise agree, a member who presides over, or assists in, the conduct of a review may not, in any other capacity, take any further part in the proceeding.

Mediation may continue

If an issue has been referred for review under subsection (1), the person conducting the mediation may continue mediation if he or she considers that it is appropriate.

If mediation ceases, review must cease

If mediation ceases by order of the Federal Court under section 86C, the review must cease.

Consultants

If a consultant is engaged under subsection 131A(1) to conduct the mediation in relation to the proceeding, this Division applies as if the consultant were a member of the Tribunal.

If a consultant is engaged under subsection 131A(1) to conduct a review under this Division, this Division applies in relation to that review as if the consultant were a member of the Tribunal.

Power of member conducting the review

The member conducting the review may direct that:

any information given, or statements made, in the course of the review; or

the contents of any document produced in the course of the review;

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

Applications etc.

The member conducting the review may make the direction on his or her own initiative or on an application by a participating party.

Member conducting the review may disclose if participating parties agree

If the participating parties agree, the member conducting the review may, despite the direction, disclose things of the kind mentioned in paragraph (1)(a) or (b).

Report after review concludes

The member conducting the review must, as soon as practicable after the review is concluded, provide a written report setting out the findings of the review to:

the person conducting the mediation; and

the participating parties.

However, the findings of the review are not binding on any of the participating parties.

Report may be given to Federal Court and other parties

The member conducting the review may provide a copy of the report to:

the Federal Court; and

other parties in the proceeding.

Report to assist mediation

The member conducting the review may provide a written report to the person conducting the mediation, setting out the progress of the review, if the member conducting the review considers that providing the report would assist in progressing the mediation.

The regulations may make provision in relation to the way in which:

any assistance is to be provided by the NNTT under any provision of this Act; or

any mediation, that the NNTT is requested to provide, is to be provided under any provision of this Act; or

any review under Division 4AA is to be conducted.

Regulations must be consistent with this Act

Such regulations must not be inconsistent with Division 4 of Part 4, Division 4AA of this Part or any other provision of this Act.

Ministerial direction

The Commonwealth Minister may, by written notice, direct the Tribunal to hold an inquiry in relation to a particular matter or issue relating to native title.

Matters covered by inquiry

Without limiting subsection (1), the matters that an inquiry may cover include:

the effect on Aboriginal peoples and Torres Strait Islanders of the validation of particular past acts or intermediate period acts; and

alternative forms of compensation that could be provided in relation to acts covered by this Act; and

action that could be taken to assist Aboriginal peoples and Torres Strait Islanders where native title has been extinguished.

The Registrar must notify the public in the determined way about the inquiry.

Subdivision AA—Native title application inquiries

This Subdivision applies if:

the Federal Court has referred the whole or a part of a proceeding for mediation under section 86B; and

the proceeding, or the part of the proceeding, raises a matter or an issue relevant to the determination of native title under section 225.

The Federal Court may:

on its own motion; or

at the request of a party to a proceeding; or

at the request of the person conducting the mediation;

direct the Tribunal to hold an inquiry in relation to a matter or an issue relevant to the determination of native title under section 225.

The Court may only direct that such an inquiry be held if:

the Court is satisfied that resolution of the matter or issue concerned would be likely to:

lead to agreement on findings of fact; or

lead to action that would resolve or amend the application to which the proceeding relates; or

lead to something being done in relation to the application to which the proceeding relates; and

the applicant in relation to any application that is affected by the proposed inquiry agrees to participate in the inquiry.

A request that an inquiry be held may be made before the Court refers the whole or a part of the proceeding for mediation.

(1) The Tribunal must hold an inquiry into a matter or an issue relevant to the determination of native title under native title application inquiry), if directed by the Federal Court to do so.section 225 (a

Unless the parties otherwise agree, a member who conducts, or assists at, an inquiry may not, in any other capacity, take any further part in the proceeding.

Before beginning the inquiry, the Tribunal must give written notice to the following persons:

the Commonwealth Minister;

the relevant State Minister or Territory Minister;

the representative body, or a person or body performing functions of a representative body, for the area concerned;

the applicant in relation to any application that is affected by the inquiry;

any other person who is a party to the proceeding that relates to the application.

The notice must:

state that the Tribunal intends to hold an inquiry; and

set out the matters or issues that the inquiry will examine; and

set out the effect of subsection (3) of this section and subsection 141(5).

An inquiry must not begin before the end of 7 days after the day on which notice was given, and if notice is given to different persons on different days, the later or latest of those days.

Mediation may continue

Subject to subsection 138F(1), if an inquiry is held, the person conducting the mediation may continue mediation if he or she considers that it is appropriate.

Reviews on whether there are native title rights and interests cannot be held

If an inquiry is held in relation to an area, the Tribunal may not conduct a review under section 136GC in relation to that area at the same time.

Note: Section 136GC allows the Federal Court to refer for review the issue of whether a native title claim group who is a party in a proceeding holds native title rights and interests in relation land or waters within the area that is the subject of the proceeding.

An inquiry in relation to a proceeding must cease if the Federal Court makes an order under section 86C that mediation cease in relation to the whole of the proceeding.

If the Federal Court makes an order under section 86C that mediation cease in relation to a part of the proceeding, an inquiry must cease if the inquiry relates to that part of the proceeding.

The President may direct that an inquiry cease if a party to the inquiry no longer agrees to participate in the inquiry.

An inquiry may relate to more than one proceeding if section 138A is satisfied in relation to each proceeding, and this Division applies in relation to the inquiry as if each proceeding were a separate inquiry.

Subdivision B—Inquiries—General

The Tribunal must hold an inquiry into:

(b) an application covered by right to negotiate application); orsection 75 (a

(c) a matter or an issue covered by special matter); or section 137 (a

(d) if a person has made an application under subsection 24DJ(1) objecting against registration of an indigenous land use agreement (a subsection 24DJ(1) objection application) and not withdrawn the objection—whether the person satisfies the Tribunal that it would not be fair and reasonable to register the agreement having regard to the matters mentioned in paragraph 24DL(2)(c).

An inquiry may cover more than one matter, issue or application.

Right to negotiate applications

The parties to an inquiry in relation to a right to negotiate application are the following:

the Government party;

the grantee parties;

for an expedited procedure objection application—any native title party that has lodged an objection in accordance with subsection 32(3) and has not withdrawn the objection;

for a future act determination application—the native title parties.

However, if:

(a) a native title party mentioned in paragraph (2)(c) (the original party) is, at the time the objection is lodged, a registered native title claimant in relation to land or waters affected by the act to which the expedited procedure objection application relates; and

the original party ceases to be a native title party; and

(c) a body corporate (the replacement party) becomes a registered native title body corporate in relation to the land or waters;

the replacement party becomes a party to the inquiry in place of the original party.

Special matters

The parties to an inquiry in relation to a special matter are the Commonwealth Minister and, with leave of the Tribunal, any other person who notifies the Tribunal, in writing, before the start of the inquiry, that they want to be a party.

Subsection 24DJ(1) objection applications

The parties to an inquiry in relation to a subsection 24DJ(1) objection application are:

the person; and

the parties to the agreement; and

any other person who satisfies the Tribunal that his or her interests are affected by the agreement.

Native title application inquiry

The parties to a native title application inquiry are:

the applicant in relation to any application that is affected by the inquiry; and

the relevant State Minister or Territory Minister, if he or she notifies the Tribunal, in writing, that he or she wishes to be a party; and

the Commonwealth Minister, if he or she notifies the Tribunal, in writing, that he or she wishes to be a party; and

with leave of the Tribunal, any other person who notifies the Tribunal, in writing, that the person wishes to be a party to the inquiry.

Subject to subsection 151(2) and sections 154, 154A and 155, the Tribunal must ensure that every party is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in making a determination in the inquiry and to make submissions in relation to those documents.

A party may appear in person or may be represented by a barrister, a solicitor or another person.

Questions of law

A question of law arising in an inquiry (including the question whether a particular question is one of law) must be decided in accordance with the opinion of the member presiding.

Other questions

Subject to subsection (1), when the members constituting the Tribunal for the purposes of a particular proceeding are divided in opinion as to the decision to be made on any question:

if there is a majority of the one opinion—the question must be decided according to the opinion of the majority; or

in any other case—the question must be decided according to the opinion of the member presiding.

Referral to Federal Court

The Tribunal may, on its own initiative or at the request of a party, refer a question of law arising in an inquiry to the Federal Court for a decision.

Presiding member must agree

A question of law must not be referred to the Court unless the member presiding over the inquiry agrees.

Jurisdiction of Federal Court

The Court has jurisdiction to hear and determine a question of law referred to it under this section.

Tribunal to suspend inquiry

If a question of law arising in an inquiry has been referred to the Court under this section, the Tribunal must not, in that inquiry:

give a determination to which the question is relevant while the reference is pending; or

proceed in a manner, or make a determination, that is inconsistent with the opinion of the Court on the question.

In the course of an inquiry, the Tribunal may, in its discretion:

receive into evidence the transcript of evidence in any other proceedings before:

the Tribunal; or

a court; or

a recognised State/Territory body; or

any other person or body;

and draw any conclusions of fact from that transcript that it thinks proper; and

adopt any report, findings, decision, determination or judgment of any court, person or body mentioned in any of subparagraphs (a)(i) to (iv) that may be relevant to the inquiry.

The Tribunal may dismiss an application if, at any stage of an inquiry relating to the application, the Tribunal is satisfied that the application is frivolous or vexatious.

The Tribunal may dismiss an application, at any stage of an inquiry relating to the application, if:

the Tribunal is satisfied that it is not entitled to deal with the application; or

the applicant fails within a reasonable time to proceed with the application or to comply with a direction by the Tribunal in relation to the application.

The Tribunal may dismiss an application if:

the applicant requests, in writing, that the application be dismissed; and

the Tribunal is satisfied that it is appropriate to dismiss the application.

If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the application or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.

Subdivision C—Conferences and hearings

Conference may be held

The President may direct the holding of a conference of the parties or their representatives to help in resolving any matter that is relevant to the inquiry.

Member, officer or staff assisting to preside

The conference must be presided over by a member, an officer of the Tribunal or a member of the staff assisting the Tribunal.

Statements at conference are without prejudice

At a hearing before the Tribunal, unless the parties otherwise agree, evidence may not be given, and statements may not be made, concerning any words spoken or act done at a conference.

Member not to constitute Tribunal

Unless the parties otherwise agree, a member who presides over a conference is not entitled to be a member of the Tribunal as constituted for the purposes of the inquiry.

For the purposes of an inquiry, the Tribunal may hold hearings.

Determinations “on the papers”

The Tribunal may:

decide for the purposes of paragraph 24DL(2)(c) whether it would be fair and reasonable to register an agreement; or

make a determination in relation to a right to negotiate application;

by considering, without holding a hearing, the documents or other material lodged with or provided to the Tribunal. However, the Tribunal must hold a hearing if it appears to the Tribunal that the issues for determination cannot be adequately determined in the absence of the parties.

Subject to sections 154 and 154A, a party to an inquiry has the right to appear at hearings and conferences that are held for the purposes of the inquiry.

A person holding a conference mentioned in section 150, and the Tribunal in a hearing for the purposes of an inquiry, may allow a person to participate by:

telephone; or

closed-circuit television; or

any other means of communication.

Public hearings

Subject to subsection (3), a hearing must be held in public.

Participation by telephone etc.

If, when a hearing is in public, a person participates by a means allowed under section 153, the Tribunal must take such steps as are reasonably necessary to ensure the public nature of the hearing is preserved.

Private hearings

The Tribunal may, on its own initiative or on the application of a party, if it is satisfied that it is appropriate to do so, direct that a hearing, or part of a hearing, be held in private and give directions as to the persons who may be present.

Concerns of Aboriginal peoples or Torres Strait Islanders

In determining if a hearing or part of a hearing is to be held in private, the Tribunal must have due regard to the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders.

Application to a native title application inquiry

This section does not apply to a hearing held in the course of a native title application inquiry.

Private hearings

Subject to subsection (3), if a hearing is held in the course of a native title application inquiry, the hearing must be held in private.

The Tribunal may, on its own initiative or on the application of a party, if it is satisfied that it is appropriate to do so, give directions as to the persons who may be present at the hearing.

Public hearings

The Tribunal may, on its own initiative or on the application of a party, if it is satisfied that it is appropriate to do so and the consent of the parties has been obtained, direct that a hearing, or part of a hearing, be held in public.

Participation by telephone etc.

If a direction is made under subsection (3) and a person participates by a means allowed under section 153, the Tribunal must take such steps as are reasonably necessary to ensure the public nature of the hearing is preserved.

Concerns of Aboriginal peoples or Torres Strait Islanders

In making a direction under subsection (3), the Tribunal must have due regard to the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders.

The Tribunal may direct that:

any evidence given before it; or

the contents of any document produced to it;

must not be disclosed, or must not be disclosed except in such manner, and to such persons, as the Tribunal specifies. This section does not limit the Tribunal’s powers under sections 154 and 154A.

Evidence on oath or affirmation

The Tribunal may take evidence on oath or affirmation and for that purpose a member of the Tribunal may administer an oath or affirmation.

Power to summon

A member of the Tribunal may summon a person to appear before the Tribunal to give evidence and to produce such documents (if any) as are referred to in the summons.

Witnesses

A party may call witnesses.

Examination of witnesses

A person appearing as a witness before the Tribunal may be examined.

Leave required for cross-examination or re-examination

A person appearing as a witness before the Tribunal may only be cross-examined or re-examined with the leave of the Tribunal.

Participation by telephone etc.

If a person participates by a means allowed under section 153, the Tribunal may make any arrangements that appear to the Tribunal to be appropriate in the circumstances for administering an oath or affirmation to the person.

Application to a native title application inquiry

Subsection (2) does not apply in relation to a native title application inquiry.

Who may exercise Tribunal’s powers

The powers of the Tribunal under section 156 may be exercised by the Tribunal, or on behalf of the Tribunal by a person who is authorised in writing to do so by the Tribunal.

Limitations apply

The powers may be exercised subject to any limitations that may be specified by the Tribunal.

Powers of person taking evidence

A person authorised to take evidence for the purposes of an inquiry has, for the purpose of taking that evidence, all the powers of the Tribunal under section 156.

Written record to be made

A person who exercises the power of the Tribunal to take evidence on oath or affirmation must cause a written record of the evidence taken to be made and sent to the Tribunal.

Interpretation

For the purpose of the exercise of powers by a person authorised, this Act has effect (except where the context otherwise requires) as if a reference to the Tribunal included a reference to that person.

The Tribunal may allow evidence to be given, or submissions to be made, with the assistance of an interpreter.

The Tribunal may keep for a reasonable period, and may make copies of, any documents, or parts of documents, produced to the Tribunal in the course of an inquiry or a hearing.

Subdivision D—Determinations and reports

Tribunal to make determination

Subject to section 37, after holding an inquiry in relation to a right to negotiate application, the Tribunal must make a determination about the matters covered by the inquiry.

Tribunal must state findings of fact

The Tribunal must state in the determination any findings of fact upon which it is based.

Tribunal to make report

After holding an inquiry in relation to a special matter, the Tribunal must make a report about the matters covered by the inquiry.

Tribunal must state findings of fact

The Tribunal must state in the report any findings of fact upon which it is based.

Tribunal to make report

After holding an inquiry in relation to a subsection 24DJ(1) objection application, the Tribunal must make a report about the matters covered by the inquiry.

Tribunal must state findings of fact

The Tribunal must state in the report any findings of fact upon which it is based.

Tribunal to make report

After holding a native title application inquiry, the Tribunal must make a report about the matters or issues covered by the inquiry.

Report may contain recommendations

The Tribunal may make recommendations in the report. However, any such recommendations are not binding between any of the parties to the inquiry.

Tribunal must state findings of fact

The Tribunal must state in the report any findings of fact upon which it is based.

Determinations and reports by the Tribunal must be in writing and be given to each of the parties.

If a determination and report relates to a native title application inquiry, the Tribunal must also give a copy of the determination and report to Federal Court.

Subdivision F—Appeals

Appeal from Tribunal determination or decision—right to negotiate applications

A party to an inquiry relating to a right to negotiate application before the Tribunal may appeal to the Federal Court, on a question of law, from any decision or determination of the Tribunal in that proceeding.

Subsection 24DJ(1) objection applications

A party to an inquiry in relation to a subsection 24DJ(1) objection application before the Tribunal may appeal to the Federal Court, on a question of law, from any decision of the Tribunal in that proceeding.

How appeal is to be instituted

An appeal is to be instituted:

within the period of 28 days starting on the day on which the decision or determination of the Tribunal is given to the person or within such further time as the Court (whether before or after the end of that period) allows; and

(b) in such manner as is prescribed by rules of court made under the Federal Court of Australia Act 1976.

Jurisdiction of Federal Court

The Court has jurisdiction to hear and determine appeals instituted in the Court in accordance with this section and that jurisdiction may be exercised by the Court constituted as a Full Court.

Court to make order

The Court must hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision.

Orders

Without limiting subsection (6), the orders that may be made by the Court on an appeal include:

an order affirming or setting aside the decision or determination of the Tribunal; or

an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court.

Operation of decision or determination

Subject to this section, the institution of an appeal to the Federal Court from a decision or determination of the Tribunal does not affect the operation of the decision or determination or prevent the taking of action to implement the decision or determination.

Court or Judge may make orders

If an appeal is instituted in the Court from a decision or determination of the Tribunal, the Court or a Judge of the Court may make such order staying or otherwise affecting the operation or implementation of either or both of the following:

the decision or determination of the Tribunal or a part of that decision or determination; and

the decision or determination to which the proceeding before the Tribunal related or a part of that decision or determination;

as that Court or Judge considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal.

Court or Judge may vary orders

The Court or a Judge of the Court may vary or revoke an order at any time.

Effect of orders

An order:

is subject to such conditions as are specified in the order; and

has effect until:

if a period for the operation of the order is specified in the order—the end of that period or, if a decision is given on the appeal before the end of that period, the giving of the decision or determination; or

if no period is so specified—the giving of a decision on the appeal.

A person who has been served in the prescribed way with a summons to appear before the Tribunal to give evidence and has been paid reasonable expenses must not:

fail to attend as required by the summons; or

fail to appear and report from day to day, unless excused, or released from further attendance, by the Tribunal.

Penalty: 20 penalty units.

Subsection (1) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

Subsection (1) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

A person appearing before the Tribunal to give evidence must not:

refuse or fail to take either an oath or affirmation when required by the Tribunal; or

refuse or fail to answer a question that the person is required to answer by the Tribunal.

Penalty: 20 penalty units.

Subsection (1) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

A person appearing before the Tribunal to give evidence must not intentionally give evidence that the person knows is false or misleading in a material particular.

Penalty: 40 penalty units.

A person must not refuse or fail to produce a document that the person is required to produce by a summons under section 156 that has been served on the person in the prescribed way.

Penalty: 20 penalty units.

Subsection (1) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

A person must not disclose any material in contravention of a direction made under section 92, 136GD or 155.

Penalty: 40 penalty units.

Subsection (1) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

A person must not:

obstruct or hinder the Tribunal, a member or a consultant engaged under subsection 131A(1) in the performance of the functions of the Tribunal; or

disrupt the taking of evidence by the Tribunal; or

do any other act or thing that would, if the Tribunal were a court of record, constitute a contempt of that court.

Penalty: 40 penalty units.

If an appeal to the Federal Court is made under section 169 or a question of law is referred to the Court under section 145:

the Tribunal must send to the Court all documents and other things that were before the Tribunal in relation to the inquiry to which the determination relates; and

at the end of the proceeding before the Court, the Court must return the documents and other things to the Tribunal.

If no appeal to Federal Court

If:

a proceeding before the Tribunal has ended; and

either:

the time within which an appeal from the decision or determination of the Tribunal in the proceeding may be made; or

if that time has been extended—the period of the extension;

has expired without an appeal being made;

the President may arrange for a document or any other thing given to the Tribunal for the purposes of the proceeding (other than a document or thing sent under paragraph 178(a)) to be returned to the person who gave it to the Tribunal.

Documents etc. returned by Federal Court

If the Federal Court returns a document or other thing that was sent under paragraph 178(a) to the Tribunal, the President may arrange for the document to be returned to the person who gave it to the Tribunal.

Protection of members

A member has, in the performance of his or her duties as a member, the same protection and immunity as a Justice of the High Court.

Protection of consultants

A person engaged under subsection 131A(1) as a consultant has, in performing duties under the engagement, the same protection and immunity as a Justice of the High Court.

Protection of representatives

A barrister, solicitor or other person appearing before the Tribunal on behalf of a party has the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court.

Protection of witnesses

Subject to this Part, a person summoned to attend, or appearing, before the Tribunal to give evidence has the same protection, and is, in addition to the penalties provided by this Act, subject to the same liabilities, as a witness in proceedings in the High Court.

Persons to whom section applies

This section applies to a person who is a member, an officer of the Tribunal, a member of the staff assisting the Tribunal or a consultant engaged under subsection 131A(1).

Persons not competent etc. to give evidence

A person to whom this section applies is not competent, and must not be required, to give evidence to a court relating to a matter if:

the giving of the evidence would be contrary to a direction of the Tribunal in force under section 155; or

an application has been made to the Tribunal for a direction under section 155 concerning the matter to which the evidence would relate and the Tribunal has not determined that application.

Persons not required to produce documents

A person to whom this section applies must not be required to produce in a court a document given to the Tribunal in connection with a proceeding if:

the production of the document would be contrary to a direction of the Tribunal in force under section 155; or

an application has been made to the Tribunal for a direction under section 155 in relation to the document and the Tribunal has not determined that application.

Persons not required to give evidence

A person to whom this section applies must not be required to give evidence to a court in relation to any proceedings before the Tribunal or any mediation required under subsection 31(3).

Definitions

In this section:

court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.

produce includes permit access to.

Prescribed fees etc.

A person, other than a party, summoned to appear before the Tribunal to give evidence is entitled to be paid, for his or her attendance, any fees, and allowances for expenses, that may be prescribed.

Who must pay fees etc.

The fees and allowances must be paid:

if the witness was summoned at the request of a party—by that party; or

in any other case—by the Commonwealth.

In this Part, unless the contrary intention appears:

director means a member of the governing body of the representative body.

executive officer means:

in relation to a representative body:

a director of the representative body; or

any other person who is concerned in, or takes part in, the management of the representative body at a senior level; or

in relation to a body to whom funding is made available under subsection 203FE(1) or (2):

if the body is a body corporate—a director of the body; or

in any case—a person who is concerned in, or takes part in, the management of the body at a senior level.

functions means the functions conferred on the body by this Act and includes the obligations imposed on the body by this Act, whether or not any of those functions or obligations are also conferred or imposed on the body under a law of a State or Territory.

governing body means the group of persons (by whatever name called) who are responsible for the executive decisions of the representative body.

native title application means an application under subsection 24DJ(1) or section 61, 69 or 75, and includes an appeal under subsection 169(1).

officer, in relation to a representative body that is registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006, has the same meaning as in that Act.

powers means the powers conferred on the body by this Act, whether or not any of those powers are also conferred on the body under a law of a State or Territory.

(1) For the purposes of this Part, an eligible body is:

(a) a body corporate, registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006, the objects of which enable the body to perform the functions of a representative body under Division 3 of this Part; or

a body corporate that is a representative body; or

(ba) a company incorporated under the Corporations Act 2001; or

a body corporate established by or under a law of the Commonwealth, a State or a Territory, or a part of such a law, prescribed for the purposes of this paragraph.

However, a registered native title body corporate cannot be an eligible body.

A regulation prescribing a law, or a part of a law, for the purposes of paragraph (1)(c) may be limited in its application to bodies corporate included in a specified class or classes of bodies corporate.

Commonwealth Minister may invite applications

The Commonwealth Minister may, in writing:

invite applications from eligible bodies for recognition as the representative body for an area; or

invite an eligible body to make an application for recognition as the representative body for an area.

Invitations may specify an area for which there is a representative body

The invitation may specify an area for which there is a representative body.

Note: An eligible body must not be recognised as the representative body for an area with effect from a particular day if the recognition of a body as the representative body for all or part of the area will be in effect on that day: see subsection 203AD(4).

Invitations may cover more than one area

The invitation may specify more than one area for which an application or applications are invited.

Invitations to specify application period

The invitation must specify the period (of at least 28 days) within which the application or applications are to be given to the Commonwealth Minister.

Invitations to specify information that must be included in applications

The invitation must specify the information that must be included in the application or applications that are given to the Commonwealth Minister.

Invitations to contain statement about revocation of invitations

The invitation must contain a statement setting out the effect of section 203AA (which deals with the revocation of invitations).

Invitations to contain statement about notification requirement

If the invitation is made under paragraph (1)(b), the invitation must contain a statement setting out the effect of section 203AAA (which requires an eligible body to notify the Commonwealth Minister if it decides not to apply for recognition etc.).

Invitations may be general

For the purposes of paragraph (1)(a), the Commonwealth Minister may arrange for the publication of general invitations and need not make a separate invitation to each eligible body.

The Commonwealth Minister may, in writing, revoke an invitation made under subsection 203A(1) if:

the Commonwealth Minister considers it appropriate to do so; and

the period that applies under subsection 203AB(2) has not expired.

If:

an eligible body, to whom the invitation was made, has made an application under section 203AB; and

at the time of revocation, the application has not been determined;

then the application is taken never to have been made.

If the invitation was made under paragraph 203A(1)(a), the Commonwealth Minister may arrange for the publication of the revocation and need not give a separate document to each eligible body to whom the invitation was made.

Scope

This section applies if an eligible body is invited under paragraph 203A(1)(b) to apply for recognition.

Notification of decision not to apply for recognition

If the eligible body decides not to apply for recognition, the eligible body must, in writing, notify the Commonwealth Minister of that decision before the end of the period specified in the invitation under subsection 203A(3).

Deemed notification

If the eligible body does not:

give a notification under subsection (2); or

make an application before the end of the period that applies under subsection 203AB(2);

the eligible body is taken to have given a notification under subsection (2) of this section at the end of that period.

Eligible bodies may apply

An eligible body may apply to the Commonwealth Minister for recognition as the representative body for the area, or for one or more of the areas, in respect of which:

the body has been invited under section 203A to make an application; or

eligible bodies have been invited under section 203A to make applications.

Application period

The application must be given to the Commonwealth Minister within the period specified under subsection 203A(3), or within such further period as the Commonwealth Minister allows (whether or not the initial period has expired).

The Commonwealth Minister must determine applications under section 203AB as soon as practicable after whichever of the following periods ends last:

the period specified under subsection 203A(3);

if a further period applies under subsection 203AB(2) in relation to one or more of those applications—the last such further period;

if the Commonwealth Minister has, in relation to one or more of those applications, given to a body a notice under subsection (1) of this section requiring the body to give further information within a specified period—the last such period.

The Commonwealth Minister may give to a body that has made an application under section 203AB a notice requiring the body to give further information relating to the application within a period specified in the notice.

The period specified:

must not begin before the day on which the notice was given; and

must be a period of at least 21 days.

The fact that no further information has been given to the Commonwealth Minister as at the end of the period specified in the notice does not prevent the Commonwealth Minister from determining the application.

The notice must contain a statement setting out the effect of subsection (3).

Commonwealth Minister may recognise representative bodies

The Commonwealth Minister may, by legislative instrument, recognise, as the representative body for an area or areas, an eligible body that has applied under section 203AB to be the representative body for the area or areas if the Commonwealth Minister is satisfied that:

if the body is already a representative body—the body satisfactorily performs its existing functions; and

the body would be able to perform satisfactorily the functions of a representative body.

Period of recognition

The recognition of the body as a representative body:

takes effect on the day specified in the instrument of recognition; and

subject to subsection (3), ceases to have effect at the end of the day specified in that instrument unless the body’s recognition is earlier withdrawn under section 203AH.

If an area for which a body is recognised as the representative body is varied under subsection 203AE(1) so as to reduce the area to zero, the recognition of the body ceases immediately after the variation takes effect.

The period of recognition specified in the instrument of recognition must be at least 1 year but not more than 6 years.

In deciding the period of recognition to specify in the instrument of recognition, the Commonwealth Minister must consider the following:

whether the body is under external administration;

whether a person is currently appointed, under a condition imposed by the Secretary in compliance with paragraph 203CA(1)(e), to deal with funds provided under Division 4 of this Part to the body;

what period of recognition would, in the opinion of the Commonwealth Minister, promote the efficient performance of the functions mentioned in subsection 203B(1).

In deciding the period of recognition to specify in the instrument of recognition, the Commonwealth Minister may consider any information in the possession of the Minister or the Department that is relevant to that decision.

Subsections (3B) and (3C) do not limit any other matters that the Minister may take into account in deciding the period of recognition.

Commonwealth Minister not to recognise more than one body for an area

The Commonwealth Minister must not, under this section, recognise a body as the representative body for an area, with effect from a particular day, if a body has already been recognised as the representative body for all or part of the area, and that recognition will still be in effect on that day.

Notifying unsuccessful applicants

If the Commonwealth Minister decides not to recognise as the representative body for an area or areas a body that applied for that recognition, the Commonwealth Minister must notify the body, in writing, of the decision and the reasons for the decision.

Subject to this section, the Commonwealth Minister may, by legislative instrument, vary an area for which a body is the representative body if the Commonwealth Minister is satisfied that, after the variation, the body will satisfactorily perform its functions in relation to the varied area.

Variation to add the whole or a part of another area

(2) The Commonwealth Minister must not vary an area (the original area) under subsection (1) to add the whole or a part of another area (the additional area) unless the boundary of the original area adjoins the boundary of the additional area.

Reduction of area

Without limiting subsection (1), the Commonwealth Minister may vary an area under that subsection so as to reduce the area, including reduce the area to zero.

In deciding whether to vary an area so as to reduce it to zero, the Commonwealth Minister need not be satisfied of the matter mentioned in subsection (1).

Variation on application or on the Commonwealth Minister’s own initiative

The Commonwealth Minister may vary an area under subsection (1) for which a body is the representative body:

on application, in writing, by the body; or

subject to section 203AF, on the Commonwealth Minister’s own initiative.

If an application is made under paragraph (5)(a) in relation to an area, the Commonwealth Minister may vary the area as the Commonwealth Minister considers appropriate.

Consideration of reports etc.

In deciding whether to vary the area, the Commonwealth Minister may consider the following:

any reports under section 203DF of audits or investigations of the body;

any notices that the Secretary of the Department has given to the Commonwealth Minister under section 203F in relation to the body;

any information in the possession of the Minister or Department that is relevant to the variation.

Subsection (7) does not limit any other matters that the Commonwealth Minister may take into account in deciding whether to vary the area.

Consideration of submissions

In deciding whether to vary the area, the Commonwealth Minister must consider any submissions made by a body or person within the period mentioned in subsection 203AF(6).

When the variation takes effect

The variation of the area takes effect on:

the day on which the instrument varying the area is made; or

if a later day is specified in that instrument—that day.

Notification requirements

Subject to subsection (7), the Commonwealth Minister must not vary an area under subsection 203AE(1) on his or her own initiative unless the Minister complies with subsection (2) of this section.

The Commonwealth Minister must:

(a) notify, in writing, each of the following that the variation of the area (the initial area) is being considered:

the body that is the representative body for the initial area;

(ii) if there is a representative body for another area (the other area) that has a boundary that the Commonwealth Minister proposes to vary as result of varying the initial area—that body;

the Aboriginal peoples or Torres Strait Islanders who live in the initial area and, if subparagraph(ii) applies, who live in the other area; and

arrange for the publication in a newspaper (if any) circulating generally in the initial area of a notice that states that the variation is being considered; and

if the newspaper mentioned in paragraph (b) does not also circulate generally in the other area—arrange for the publication of the notice mentioned in paragraph (b) in a newspaper (if any) circulating generally in the other area.

For the purposes of subparagraph (2)(a)(iii), the Commonwealth Minister may arrange for the publication of a general notification and need not give a separate notification to the persons mentioned in that subparagraph.

Content of notice

The notice to a body mentioned in subparagraph (2)(a)(i) or (ii) must:

identify the proposed variation; and

state the reasons why the Minister is considering varying the initial area; and

state that the body may make submissions to the Commonwealth Minister, within the period specified in the notice, about whether the initial area should be varied.

The notice to a person mentioned in subparagraph (2)(a)(iii) must state that the person may make submissions to the Commonwealth Minister, within the period specified in the notice, about whether the initial area should be varied.

The period specified in the notice under paragraph (4)(c) or subsection (5) must not begin before the day on which the notice is given to the body or person concerned and must be a period of at least 60 days.

Exception to notification requirements

The Commonwealth Minister need not comply with subsection (2) in relation to the variation of the other area if:

the variation is to be made as a result of the variation of the initial area; and

notification under that subsection of the variation of the initial area has been previously given to the representative body for the other area.

As soon as practicable after deciding whether to vary an area under subsection 203AE(1), the Commonwealth Minister must:

notify, in writing, each of the following of the decision and the reasons for the decision:

the body that is the representative body for the area;

the Aboriginal peoples or Torres Strait Islanders who live in the area to which the decision relates; and

arrange for the publication in a newspaper (if any) circulating generally in the area of a notice setting out the decision and the reasons for the decision.

For the purposes of subparagraph (1)(a)(ii), the Commonwealth Minister may arrange for the publication of a general notification and need not give a separate notification to the persons mentioned in that subparagraph.

Mandatory grounds for withdrawing recognition

The Commonwealth Minister must, by legislative instrument, withdraw the recognition of a body as the representative body for an area if:

the body has ceased to exist; or

the body makes a written request to the Commonwealth Minister for the recognition to be withdrawn.

A request under paragraph (1)(b) must be accompanied by a signed statement that the request has been authorised by the members of the body in accordance with the body’s processes.

Discretionary grounds for withdrawing recognition

The Commonwealth Minister may, by legislative instrument, withdraw the recognition of a body as the representative body for an area if satisfied that:

the body is not satisfactorily performing its functions; or

there are serious or repeated irregularities in the financial affairs of the body.

Notice that withdrawal of recognition is being considered

The Commonwealth Minister must not decide to withdraw the recognition under subsection (2) unless the Minister notifies the body that withdrawal of the recognition is being considered. The notice must be in writing and must:

state the reasons why the Minister is considering withdrawal of the recognition; and

state that the body may make submissions to the Commonwealth Minister, within the period specified in the notice, about whether the recognition should be withdrawn.

The period specified must not begin before the day on which the notice was given, and must be a period of at least 30 days.

The Commonwealth Minister may, in writing, extend the period specified in the notice under subsection (3) if:

the body applies, in writing, for an extension; and

the application is made before that period ends.

Consideration of reports etc.

In deciding whether to withdraw the recognition under subsection (2), the Commonwealth Minister may consider the following:

any reports under section 203DF of audits or investigations of the body;

any notices that the Secretary of the Department has given to the Minister under section 203F in relation to the body;

any information in the possession of the Minister or Department that is relevant to the matter mentioned in paragraph (2)(a) or (b) of this section.

Commonwealth Minister’s consideration of other matters unaffected

Subsection (4) does not limit any other matters that the Commonwealth Minister may take into account in making a decision under subsection (2).

Consideration of submissions

In deciding whether to withdraw the recognition under subsection (2), the Commonwealth Minister must consider any submissions made by the body:

within the period specified in the notice under subsection (3); or

if that period has been extended under subsection (3A)—within the extended period.

Notice of decision

As soon as practicable after deciding whether to withdraw the recognition under subsection (2), the Commonwealth Minister must notify the body, in writing, of:

the decision; and

if the decision is that the recognition be withdrawn—the reasons for the decision.

The withdrawal of the recognition takes effect:

on the day on which the instrument withdrawing recognition is made; or

if a later day is specified in that instrument—that day.

In considering, for the purposes of making a decision under this Division in relation to a particular area, whether a body will satisfactorily perform, or is satisfactorily performing, its functions as a representative body, the Commonwealth Minister must take into account whether, in the Commonwealth Minister’s opinion, the body will comply with, or is complying with, section 203BA (which deals with how functions of representative bodies are to be performed).

This section does not limit any other matters that the Commonwealth Minister may take into account in making a decision under this Division.

General

A representative body has the following functions:

(a) the facilitation and assistance functions referred to in section 203BB;

(b) the certification functions referred to in section 203BE;

(c) the dispute resolution functions referred to in section 203BF;

(d) the notification functions referred to in section 203BG;

(e) the agreement making function referred to in section 203BH;

(f) the internal review functions referred to in section 203BI;

the functions referred to in section 203BJ and such other functions as are conferred on representative bodies by this Act.

Other laws may confer functions

The functions conferred on a representative body by this Act are in addition to, and not instead of, any functions conferred on the representative body (whether in its capacity as a representative body or otherwise) by or under:

any other law of the Commonwealth; or

a law of a State or Territory.

Representative bodies to perform functions

Except as mentioned in section 203BB, 203BD or 203BK, a representative body must not enter into an arrangement with another person under which the person is to perform the functions of the representative body.

Priorities of representative bodies

A representative body:

must from time to time determine the priorities it will give to performing its functions under this Part; and

may allocate resources in the way it thinks fit so as to be able to perform its functions efficiently;

but must give priority to the protection of the interests of native title holders.

Functions to be performed in a timely manner

A representative body must use its best efforts to perform its functions in a timely manner, particularly in respect of matters affected by:

the time limits under this Act; or

time limits, under another law of the Commonwealth or a law of a State or Territory, that are relevant to the performance of its functions.

Maintenance of organisational structures and processes

A representative body must perform its functions in a manner that:

maintains organisational structures and administrative processes that promote the satisfactory representation by the body of native title holders and persons who may hold native title in the area for which it is the representative body; and

maintains organisational structures and administrative processes that promote effective consultation with Aboriginal peoples and Torres Strait Islanders living in the area for which it is the representative body; and

ensures that the structures and processes operate in a fair manner, having particular regard to:

the opportunities for the Aboriginal peoples or Torres Strait Islanders for whom it might act to participate in its processes; and

the extent to which its processes involve consultation with those Aboriginal peoples or Torres Strait Islanders; and

its procedures for making decisions and for reviewing its decisions; and

its rules or requirements relating to the conduct of its executive officers; and

the nature of its management structures and management processes; and

its procedures for reporting back to persons who hold or may hold native title in the area, and to the Aboriginal peoples or Torres Strait Islanders living in the area.

General

(1) The facilitation and assistance functions of a representative body are:

to research and prepare native title applications, and to facilitate research into, preparation of and making of native title applications; and

to assist registered native title bodies corporate, native title holders and persons who may hold native title (including by representing them or facilitating their representation) in consultations, mediations, negotiations and proceedings relating to the following:

native title applications;

future acts;

indigenous land use agreements or other agreements in relation to native title;

rights of access conferred under this Act or otherwise;

any other matters relating to native title or to the operation of this Act.

Facilitation and assistance functions only exercisable on request

A representative body must not perform its facilitation and assistance functions in relation to a particular matter unless it is requested to do so.

Facilitation and assistance functions only exercisable within a representative body’s area

A representative body can only perform its facilitation and assistance functions in relation to a matter that relates to land or waters:

that are wholly within the area for which the body is the representative body; or

that are partly within that area.

If paragraph (b) applies, the body must not perform the functions for the part of the land or waters that is outside that area except in accordance with section 203BD.

Consent required if matters relate to same land or waters

If:

(a) a registered native title body corporate or a person who holds or may hold native title requests that a representative body represent the body or the person (the new body or person) in relation to a particular matter that relates to particular land or waters; and

(b) the representative body is already representing another body or person (the original body or person) in relation to one or more other matters that relate wholly or partly to that land or those waters;

the representative body must not represent the new body or person unless the representative body has obtained consent, from the original body or person, for the representative body also to represent the new body or person to the extent that the other matters relate to the land or waters.

“Briefing out” matters that relate to the same land or waters

Subsection (4) does not prevent a representative body from facilitating the representation of a body or person, in relation to a particular matter, by entering into an arrangement with another person under which the other person represents the body or person in relation to that matter.

Definition

In this section and section 203BC:

matter means a native title application, or a consultation, mediation, negotiation or proceeding of a kind referred to in paragraph (1)(b).

General

In performing its facilitation and assistance functions in relation to any matter, a representative body must:

consult with, and have regard to the interests of, any registered native title bodies corporate, native title holders or persons who may hold native title who are affected by the matter; and

if the matter involves the representative body representing such bodies corporate, native title holders or persons—be satisfied they understand and consent to any general course of action that the representative body takes on their behalf in relation to the matter.

Consent of native title holders etc.

For the purposes of paragraph (1)(b), a native title holder or a person who may hold native title is taken to have consented to action if:

where there is a process of decision-making that, under the traditional laws and customs of the group to which he or she belongs, must be complied with in relation to giving consent of that kind—the consent was given in accordance with that process; or

where there is no such process of decision-making—the consent was given in accordance with a process of decision-making agreed to and adopted by the members of the group to which he or she belongs in relation to giving the consent or giving consent of that kind.

Streamlining of applications process

In performing its facilitation and assistance functions in relation to an application under section 61 in relation to land or waters wholly or partly within the area for which the body is the representative body, the representative body must:

act in a way that promotes an orderly, efficient and cost-effective process for making such applications; and

if the land or waters covered by the application are wholly or partly covered by one or more applications (including proposed applications) of which the representative body is aware—make all reasonable efforts to minimise the number of applications covering the land or waters.

If:

a native title application covers land or waters partly within the area for which a body is the representative body and partly within an adjoining area for which another body is the representative body; or

a consultation, mediation, negotiation or proceeding relates to:

a native title application; or

a future act; or

an indigenous land use agreement or other agreement in relation to native title; or

a right of access conferred under this Act or otherwise; or

any other matter relating to native title or to the operation of this Act;

in respect of the areas referred to in paragraph (a);

the first-mentioned representative body may perform its facilitation and assistance functions, in relation to the application, consultation, mediation, negotiation or proceeding, for the part of the land or waters within the adjoining area, if it is acting in accordance with a written arrangement entered into with the other representative body.

General

(1) The certification functions of a representative body are:

to certify, in writing, applications for determinations of native title relating to areas of land or waters wholly or partly within the area for which the body is the representative body; and

to certify, in writing, applications for registration of indigenous land use agreements relating to areas of land or waters wholly or partly within the area for which the body is the representative body.

Certification of applications for determinations of native title

A representative body must not certify under paragraph (1)(a) an application for a determination of native title unless it is of the opinion that:

all the persons in the native title claim group have authorised the applicant to make the application and to deal with matters arising in relation to it; and

any conditions under the authority that relate to the making of the application have been satisfied; andsection 251BA on

all reasonable efforts have been made to ensure that the application describes or otherwise identifies all the other persons in the native title claim group.

Note: Section 251B deals with authority to make the application.

Overlapping applications for determinations of native title

If the land or waters covered by the application are wholly or partly covered by one or more applications (including proposed applications) of which the representative body is aware, the representative body must make all reasonable efforts to:

achieve agreement, relating to native title over the land or waters, between the persons in respect of whom the applications are, or would be, made; and

minimise the number of applications covering the land or waters.

However, a failure by the representative body to comply with this subsection does not invalidate any certification of the application by the representative body.

Statement to be included in certifications of applications for determinations of native title

A certification of an application for a determination of native title by a representative body must:

include a statement to the effect that the representative body is of the opinion that the requirements of paragraphs (2)(a), (aa) and (b) have been met; and

briefly set out the body’s reasons for being of that opinion; and

where applicable, briefly set out what the representative body has done to meet the requirements of subsection (3).

Certification of applications for registration of indigenous land use agreements

A representative body must not certify under paragraph (1)(b) an application for registration of an indigenous land use agreement unless it is of the opinion that:

all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified; and

all the persons so identified have authorised the making of the agreement; and

any conditions under the authority that relate to the making of the agreement have been satisfied.section 251BA on

Note: Section 251A deals with authority to make the agreement.

Statement to be included in certifications of applications for registration of indigenous land use agreements

A certification of an application for registration of an indigenous land use agreement by a representative body must:

include a statement to the effect that the representative body is of the opinion that the requirements of paragraphs (5)(a), (b) and (c) have been met; and

briefly set out the body’s reasons for being of that opinion.

Dispute resolution functions

(1) The dispute resolution functions of a representative body are:

to assist in promoting agreement between its constituents about:

the making of native title applications; or

the conduct of consultations, mediations, negotiations or proceedings about native title applications, future acts, indigenous land use agreements, rights of access conferred under this Act or otherwise or about any other matter relating to native title or the operation of this Act; and

to mediate between its constituents about the making of such applications or the conduct of such consultations, mediations, negotiations or proceedings.

Meaning of constituent

In this section:

constituent means:

a person on whose behalf the representative body is acting or may act; or

a registered native title body corporate in relation to native title in the area in respect of which the representative body is recognised; or

a native title holder in relation to native title in that area; or

a person who may hold native title in that area.

The notification functions of a representative body are:

to ensure that, as far as reasonably practicable, notices:

that are given to the representative body (whether under this Act or otherwise); and

that relate to land or waters wholly or partly within the area for which the body is a representative body;

are brought to the attention of any person who the representative body is aware holds or may hold native title in relation to the land or waters, where the representative body considers that the notices would be unlikely to come to the attention of the person by some other means; and

as far as is reasonably practicable, to identify and notify other persons who hold or may hold native title in relation to the land or waters about notices of the kind mentioned in paragraph (a); and

as far as is reasonably practicable, to advise the persons referred to in paragraphs (a) and (b) of relevant time limits under this Act or another law of the Commonwealth or a law of a State or a Territory, if the person would not otherwise be notified of those time limits.

Note 1: Subsection 203BA(1) requires a representative body to make its best efforts to perform its functions in a timely manner, particularly in respect of matters affected by time limits.

Note 2: This Act also imposes notification obligations on other persons.

(1) The agreement making function of a representative body is to be a party to indigenous land use agreements.

In performing its agreement making function in respect of an area, a representative body must, as far as practicable, having regard to the matters proposed to be covered by the agreement, consult with, and have regard to the interests of, persons who hold or may hold native title in relation to land or waters in that area.

The internal review functions of a representative body are:

to provide a process for registered native title bodies corporate, native title holders and persons who may hold native title to seek review by the representative body of its decisions and actions, made or taken in the performance of its functions or the exercise of its powers, that affect them; and

to publicise that process appropriately.

In addition to the functions referred to in sections 203BB to 203BI, a representative body must:

as far as is reasonably practicable, enter into written arrangements with other representative bodies so that the representative body can exercise its facilitation and assistance functions in relation to a matter of a kind referred to in paragraph 203BD(a) or (b); and

as far as is reasonably practicable, identify persons who may hold native title in the area for which the body is the representative body; and

as far as is reasonably practicable, take such action as the body considers appropriate to promote understanding, among Aboriginal people and Torres Strait Islanders living in the area, about matters relevant to the operation of this Act; and

as far as is reasonably practicable, inform such of the following as the representative body knows are, in relation to the area:

registered native title bodies corporate;

native title holders;

persons who may hold native title;

of any matter that the representative body considers may relate to, or may have an impact upon, native title in the area; and

whenever the body considers it necessary in the performance of its functions—consult with Aboriginal or Torres Strait Islander communities that might be affected by the matters with which the body is dealing; and

as far as is reasonably practicable, co-operate with other representative bodies for the purpose of promoting the effective and efficient exercise of the functions and powers of representative bodies.

A representative body has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.

Without limiting subsection (1), a representative body has power to enter into arrangements and contracts to obtain services to assist in the performance by the representative body of its functions.

Assistance in performing dispute resolution functions

(3) Without limiting subsection (1), in performing its dispute resolution functions in a particular case, a representative body may be assisted by the NNTT, but only if the representative body and the NNTT have entered into an agreement under which the representative body is liable to pay the Commonwealth for the assistance.

Information obtained in providing assistance not to be used or disclosed in other contexts

(4) The NNTT must not use or disclose information to which it has had access only because it provided assistance under subsection (3) for any purpose other than providing that assistance without the prior consent of the person who provided the NNTT with the information.

Representative body may apply for funding

A representative body may apply to the Secretary of the Department for funding under this section for the purpose of enabling the body to perform its functions or exercise its powers.

Provision of funds

The Secretary of the Department may, on behalf of the Commonwealth, provide funds to a representative body, by making a grant to the representative body or in any other way the Secretary considers appropriate, from money appropriated by the Parliament.

The provision of funding may be:

in respect of a financial year; or

in respect of a part of a financial year; or

in respect of any other period not exceeding 3 years.

Conditions of funding

Funds provided to a representative body under this Division, whether provided by grant or otherwise, may be so provided on whatever conditions the Secretary considers appropriate. However, the Secretary must impose conditions relating to:

the purposes for which the money may be spent; and

the period within which the money is to be spent; and

the acquittal of money spent; and

the giving of information relating to the expenditure of the money, including the production and publication of financial statements; and

the appointment of a person, in cases where the Secretary considers that money from funds provided has not been spent in accordance with the conditions of the funding, with the power to prevent expenditure of further money from funds provided, otherwise than in accordance with the conditions of the funding; and

the representative body’s continuing satisfactory performance of its functions and continuing compliance with this Act; and

the giving of information relating to the performance of the body’s functions and its compliance with this Act.

Repayment of part of funding provided on withdrawal of recognition

The provision of funding, however achieved, is also subject to a condition that if:

the representative body’s recognition as a representative body is withdrawn under section 203AH; and

the withdrawal takes effect during the period for which funding is provided;

the representative body must repay to the Commonwealth an amount equal to so much (if any) of the funding provided as is uncommitted at the time the recognition is withdrawn.

Uncommitted amount of funding provided

For the purposes of subsection (1A), the amount of funding provided that is uncommitted is the difference (if any) between:

the portion (if any) of funding provided that has, at the time the recognition is withdrawn, been paid to the representative body by the Commonwealth; and

the sum of:

the portion (if any) of funding provided that has, at that time, been spent by the representative body in connection with the performance of its functions and the exercise of its powers; and

the portion (if any) of funding provided that the representative body is, at that time, liable to pay to other persons in connection with the performance of its functions and the exercise of its powers.

Bodies must comply with conditions of funding

The representative body must comply with the conditions of funding.

Serious or repeated breaches of conditions

If the Secretary of the Department considers that the representative body:

has committed, or is committing, serious breaches of conditions to which the provision of funding has been made subject under this Division; or

has repeatedly breached, or is repeatedly breaching, such conditions;

the Secretary must give to the Commonwealth Minister a written notice informing the Minister of the breaches and stating what measures the Secretary is taking, or proposes to take, as a result of the breaches.

Certain instruments not to be legislative instruments

An instrument that:

determines conditions of funding for the purposes of subsection (1); or

informs the Minister of a breach under subsection (5);

is not a legislative instrument.

Payment into bank account

A representative body must pay all money received by it under this Division into an account maintained by it with a bank.

Investment

The representative body may invest money received by it under this Division if:

the money is not immediately required for the purposes of the body; and

the money is invested:

on deposit with a bank, including a deposit evidenced by a certificate of deposit; or

in securities of, or securities guaranteed by, the Commonwealth, a State or a Territory; or

in any other manner approved by the Finance Minister in writing.

(2A) The Finance Minister may, by written instrument, delegate any of the Finance Minister’s powers or functions under this section to an official (within the meaning of the Public Governance, Performance and Accountability Act 2013) of a non-corporate Commonwealth entity (within the meaning of that Act). In exercising powers or functions under a delegation, the official must comply with any directions of the Finance Minister.

Restrictions on entering into contracts

A provision of the law by or under which the representative body is incorporated to the effect that the body must not enter into a contract involving expenditure or payment of more than a specified amount of money without a specified person’s approval does not apply to a contract for the investment of money under subsection (2), unless the provision expressly states that it applies to such a contract.

Definitions

In this section:

bank has the same meaning as in the Public Governance, Performance and Accountability Act 2013.

Finance Minister means the Minister who administers the Public Governance, Performance and Accountability Act 2013.

Proper accounts and records to be kept

A representative body must keep accounting records that properly record and explain its transactions and financial position, to the extent that its transactions and financial position relate to the performance of its functions or the exercise of its powers. It must keep those records in a way that allows them to be conveniently and properly audited in accordance with this Division.

Accounting records to be separate from others

The body must keep accounts and records required to be kept by subsection (1) separate from any other accounts and records kept by the body.

Retention of accounting records

The body must retain those records for at least 7 years after completion of the transactions to which they relate.

Availability of accounting records

The body must make those records available at all reasonable times for inspection by any director of the body.

A representative body must do all things necessary to ensure that payments out of the money of the body are correctly made and properly authorised, and that adequate control is maintained over:

the assets of, or in the custody of, the body; and

the incurring of liabilities by the body;

to the extent that the payments, or the assets or liabilities, relate to the performance of its functions or the exercise of its powers.

Appointment of person to conduct inspection and audit or investigation

The Commonwealth Minister may appoint a person who, in the Commonwealth Minister’s opinion, has skills or knowledge in relation to matters of substantial relevance to the conduct of an inspection and audit or investigation under this section to:

inspect and audit the accounts and records kept by a representative body under section 203DA; or

investigate the body’s performance of its functions and exercise of its powers.

Circumstances in which auditor or investigator can be appointed

The Commonwealth Minister must not appoint a person under subsection (1) to conduct an inspection and audit, or an investigation, of a representative body unless the Commonwealth Minister is of the opinion that there is, or may be:

serious or repeated irregularities in the financial affairs of the representative body; or

a failure to satisfactorily perform its functions.

Notice requirements

If the Commonwealth Minister decides that an inspection and audit, or an investigation, is to be undertaken under this section, the Commonwealth Minister must give written notice of that decision to the representative body concerned. The notice must name the person who is to carry out the inspection and audit or the investigation.

Report to Commonwealth Minister

A person appointed under subsection (1) to conduct an inspection and audit or an investigation must give to the Commonwealth Minister a report on the results of that inspection and audit or investigation.

Irregularity to be disclosed

A report under subsection (4) must draw attention to:

any irregularity in the financial affairs of the body disclosed by the inspection and audit or the investigation; or

any failure by the body to perform its functions disclosed by the inspection and audit or the investigation.

Report not to contain matters subject to legal professional privilege

A report under subsection (4) must not contain any information, or include any document or record, that is subject to legal professional privilege or that is derived from information that is subject to legal professional privilege.

Legal professional privilege must be claimed

(7) For the purposes of subsection (6), information, or a document or record, is not taken to be subject to legal professional privilege unless, at or before the time it was obtained by the person appointed under subsection (1), it was claimed to be subject to legal professional privilege by a person entitled to make such a claim.

Auditor or investigator taken to be a Commonwealth public official

(9) To avoid doubt, a person appointed under subsection (1) of this section is taken, for the purposes of the Criminal Code, to be a Commonwealth public official.

General

For the purpose of conducting an inspection and audit, or an investigation, of a representative body under section 203DF, the person appointed under subsection 203DF(1):

is entitled at all reasonable times to full and free access to documents relating to the representative body; and

may make copies, or take extracts from, any such document; and

may require a representative body:

to answer such questions; and

to produce such documents in the representative body’s possession or to which the representative body has access;

as the person so appointed considers necessary for that purpose.

Use of legally professionally privileged documents

A representative body must produce a document or record or disclose information as required under paragraph (1)(c), whether or not the document, record or information is the subject of legal professional privilege.

Production does not affect legal professional privilege

A document, record or information does not cease to be the subject of legal professional privilege merely because it is produced under paragraph (1)(c).

Failure to comply with paragraph (1)(c)

A representative body who refuses or fails to comply with the requirement under paragraph (1)(c) commits an offence punishable upon conviction by a fine not exceeding 20 penalty units.

Reasonable excuse for non-compliance

Subsection (4) does not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (4A) (see subsection 13.3(3) of the Criminal Code).

Self-incrimination

For the purposes of subsection (4A), it is not a reasonable excuse for a representative body to refuse or fail:

to give information; or

to produce a record or document;

in accordance with a requirement under paragraph (1)(c), on the ground that the information or the production of the document or record, as the case may be, might tend to incriminate the representative body or make the representative body liable to a penalty.

Admissibility in criminal proceedings

Despite subsection (5):

giving the information or producing the document or record; or

any information, document, record or thing obtained as a direct or indirect consequence of the giving of the information or production of the document or record;

is not admissible in evidence against the person in any criminal proceedings, other than proceedings against, or arising out of, subsection (4) or (7).

Making a statement that is false or misleading

A representative body who, in purported compliance with the requirement under paragraph (1)(c), makes a statement that it knows to be false or misleading in a material particular, commits an offence punishable on conviction by a fine not exceeding 20 penalty units.

A withdrawal of the body’s recognition under section 203AH does not affect the undertaking of an inspection and audit, or investigation, under section 203DF.

(2) The fact that the recognition of a body as a representative body for a particular area ceases to have effect does not affect the undertaking of an inspection and audit, or investigation, under section 203DF.

This Division does not apply to anything that is not related to the performance of the functions of a representative body or the exercise of its powers.

This section applies to a representative body that is neither:

(a) registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006; nor

(b) a company incorporated under the Corporations Act 2001.

A director of the representative body who has a material personal interest in a matter that is being considered by the body’s governing body:

must not be present during any deliberation by the governing body on the matter; and

must not take part in any decision of the governing body on the matter.

However, a contravention of this provision does not affect the validity of any resolution.

(5) Subsection (3) applies instead of any rules made for the purposes of Public Governance, Performance and Accountability Act 2013 which deal with the consequences of having a material personal interest in a matter that is being considered at a meeting of a governing body.section 29 of the

(6) To avoid doubt, this section does not otherwise affect the obligations imposed by the Public Governance, Performance and Accountability Act 2013 or any rules made for the purposes of that Act on a representative body that is a Commonwealth entity (within the meaning of that Act).

(1) This section applies in relation to a representative body that is registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006.

Power to indemnify officers

Except as provided in this section, a representative body may indemnify a person who is or has been an officer of the body from any liability incurred by the person as an officer of the body.

Exemptions not allowed

A representative body, or a subsidiary of a representative body, must not exempt a person (whether directly or through an interposed entity) from a liability to the body incurred as an officer of the body.

When indemnity for liability (other than for legal costs) not allowed

A representative body, or a subsidiary of a representative body, must not indemnify a person (whether by agreement or by making a payment and whether directly or through an interposed entity) against any of the following liabilities incurred as an officer of the body:

a liability owed to the body or a subsidiary of the body;

a liability for:

(i) a civil penalty order under Corporations (Aboriginal and Torres Strait Islander) Act 2006; orsection 386-10 of the

a compensation order under section 386-15 of that Act;

made in relation to a breach of subsection 265-1(1), 265-5(1) or (2), 265-10(1) or (2) or 265-15(1) or (2) of that Act;

a liability that is owed to someone other than the body or a subsidiary of the body and did not arise out of conduct in good faith.

This subsection does not apply to a liability for legal costs.

When indemnity for legal costs not allowed

A representative body, or a subsidiary of a representative body, must not indemnify a person (whether by agreement or by making a payment and whether directly or through an interposed entity) against legal costs incurred in defending an action for a liability incurred as an officer of the body if the costs are incurred:

in defending or resisting a proceedings in which the person is found to have a liability for which they could not be indemnified under subsection (4) of this section; or

in defending or resisting criminal proceedings in which the person is found guilty; or

(c) in defending or resisting proceedings brought by the Registrar of Aboriginal and Torres Strait Islander Corporations under Corporations (Aboriginal and Torres Strait Islander) Act 2006 for a court order if the grounds for making the order are found by the court to have been established; orsection 386-20 or subsection 386-55(8) of the

in connection with proceedings for relief to the person under section 386-60 of that Act against an application under section 386-20 of that Act, or for relief to the person under section 576-1 of that Act, in which the Court denies the relief.

Paragraph (c) does not apply to costs incurred in responding to actions taken by the Registrar of Aboriginal and Torres Strait Islander Corporations as part of an investigation before commencing proceedings for the court order.

For the purposes of subsection (5), the outcome of proceedings is the outcome of the proceedings and any appeal in relation to the proceedings.

Insurance for certain liabilities of officers

Except as provided in subsection (8), a representative body may insure a person who is or has been an officer against liabilities incurred by the person as an officer.

A representative body, or a subsidiary of a representative body, must not pay, or agree to pay, a premium for a contract insuring a person who is, or has been, an officer of the body against a liability (other than one for legal costs) arising out of:

conduct involving a wilful breach of duty in relation to the body; or

(b) a contravention of sections 265-10 and 265-15 respectively of the Corporations (Aboriginal and Torres Strait Islander) Act 2006.

This section applies to a premium whether it is paid directly or through an interposed entity.

Penalty: 5 penalty units.

An offence based on subsection (8) is an offence of strict liability.

Note: For strict liability, see Criminal Code.section 6.1 of the

Certain indemnities, exemptions, payments and agreements not authorised and certain documents void

This section does not authorise anything that would otherwise be unlawful.

Anything that purports to indemnify or insure a person against a liability or exempt them from a liability is void to the extent that it contravenes this section.

If the Secretary of the Department is of the opinion that:

a representative body is not satisfactorily performing its functions; or

there may be serious or repeated irregularities in the financial affairs of a representative body;

the Secretary must give written notice of its opinion to the Commonwealth Minister.

Note: The Secretary must also give written notice of breaches of grant conditions to the Commonwealth Minister—see subsection 203CA(5).

Persons may apply for review

An Aboriginal person or Torres Strait Islander affected by a decision of a representative body not to assist him or her in the performance of its facilitation and assistance functions under the Secretary of the Department for review of the decision.section 203BB may apply to

Note: The Aboriginal person or Torres Strait Islander is able to obtain a statement of reasons etc. for the decision from the representative body under Administrative Decisions (Judicial Review) Act 1977.section 13 of the

Appointment of person to conduct the review

As soon as practicable after receiving the application, the Secretary must:

review the representative body’s decision; or

appoint to conduct the review a person who, in the Secretary’s opinion, has skills or knowledge in relation to matters of substantial relevance to the conduct of the review.

This section applies to external review

This section applies if the Secretary of the Department appoints a person under paragraph 203FB(2)(b) to conduct the review.

Review of decision

Subject to subsection (4), the person appointed must review the representative body’s decision and report to the Secretary whether:

the decision should be affirmed; or

the Secretary should make funding available under section 203FE to a person or body for the purpose of performing specified facilitation and assistance functions of a representative body in relation to the matter to which the representative body’s decision relates.

Matters to be taken into account when conducting review

In reviewing the representative body’s decision, the person appointed must have regard to:

whether it would be consistent with priorities determined by the representative body under paragraph 203B(4)(a) to provide the assistance sought; and

whether, to provide the assistance sought, the representative body would need to allocate or re-allocate resources in a way that interferes with the efficient performance of its functions; and

whether the representative body would breach a condition imposed under section 203CA if the representative body were to provide the assistance sought; and

if the assistance sought was in relation to an application under section 61:

whether the provision of that assistance would promote an orderly, efficient and cost-effective process for making such applications; and

in a case where one or more other applications have been made or are proposed to be made in relation to land or waters covered by the application—whether the provision of the assistance sought would be reasonable given the need to minimise the number of applications covering the land or waters; and

any other matter relevant to the merits of the decision.

Failure to use internal review procedures

The person appointed must refuse to review the representative body’s decision if satisfied that the applicant did not, before applying for the review, make all reasonable efforts to seek a review by the representative body of its decision.

Report to be given within 60 days

The person appointed must give the report referred to in subsection (2) to the Secretary within 60 days after the day on which he or she was appointed, or within such other period as the Secretary allows (whether or not the 60 days have expired).

Inviting submissions

Before reviewing the representative body’s decision, the person appointed must invite the representative body to make a submission in relation to the decision. The invitation must specify a period of not less than 14 days within which submissions must be made.

Action to be taken by the Secretary

The Secretary must, within one month after the end of the period referred to in subsection (5):

affirm the representative body’s decision; or

make funding available under section 203FE as mentioned in paragraph (2)(b) of this section.

Notice of decision on review

The Secretary must give the applicant and the representative body written notice of the Secretary’s decision under subsection (7). The notice must include the reasons for that decision.

This section applies to review by Secretary

This section applies if the Secretary of the Department conducts the review.

Review of decision

Subject to subsection (4), the Secretary must review the representative body’s decision and decide whether:

the representative body’s decision should be affirmed; or

the Secretary should make funding available under section 203FE to a person or body for the purpose of performing specified facilitation and assistance functions of a representative body in relation to the matter to which the representative body’s decision relates.

Matters to be taken into account when conducting review

In reviewing the representative body’s decision, the Secretary must have regard to:

whether it would be consistent with priorities determined by the representative body under paragraph 203B(4)(a) to provide the assistance sought; and

whether, to provide the assistance sought, the representative body would need to allocate or re-allocate resources in a way that interferes with the efficient performance of its functions; and

whether the representative body would breach a condition imposed under section 203CA if the representative body were to provide the assistance sought; and

if the assistance sought was in relation to an application under section 61:

whether the provision of that assistance would promote an orderly, efficient and cost-effective process for making such applications; and

in a case where one or more other applications have been made or are proposed to be made in relation to land or waters covered by the application—whether the provision of the assistance sought would be reasonable given the need to minimise the number of applications covering the land or waters; and

any other matter relevant to the merits of the decision.

Failure to use internal review procedures

The Secretary must refuse to review the representative body’s decision if satisfied that the applicant did not, before applying for the review, make all reasonable efforts to seek a review by the representative body of its decision.

Inviting submissions

Before reviewing the representative body’s decision, the Secretary must invite the representative body to make a submission in relation to the decision. The invitation must specify a period of not less than 14 days within which submissions must be made.

Secretary to decide matter within 60 days

The Secretary must make his or her decision under subsection (2) within 60 days after the day on which the application for review is made.

Notice of decision on review

The Secretary must give the applicant and the representative body written notice of the Secretary’s decision under subsection (2). The notice must include the reasons for that decision.

Commonwealth Minister may issue directions

The Commonwealth Minister may, by written instrument, issue directions requiring, or relating to, either or both of the following:

a former representative body returning documents and records, relating to the performance of its functions or the exercise of its powers in respect of its former area, to the person or persons who provided them to the body;

(b) the former representative body allowing access to, giving or giving copies of documents and records held by the former representative body to a body (the replacement body) that has become the representative body for all or part of the former representative body’s former area, where the documents and records are reasonably necessary for the performance of the functions, or the exercise of the powers, of the replacement body.

Directions take effect on the day on which they are issued.

An instrument made under subsection (1) is not a legislative instrument.

Limit on directions

Directions must not require the former representative body to:

allow the replacement body access to documents and records of any kind mentioned in paragraph (1)(b) that relate to a claim made in a claimant application or a compensation application; or

give the replacement body documents and records of any kind mentioned in paragraph (1)(b) that relate to a claim made in a claimant application or a compensation application, or give copies of such documents or records;

unless the replacement body gives the Commonwealth Minister notice, in writing, that the replacement body has been requested to perform a representative body function in relation to the claim.

Directions must not require the former representative body to:

allow the replacement body access to documents and records of any kind mentioned in paragraph (1)(b) that relate to native title rights and interests that are the subject of a determination of native title; or

give the replacement body documents and records of any kind mentioned in paragraph (1)(b) that relate to native title rights and interests that are the subject of a determination of native title, or give copies of such documents or records;

unless the replacement body gives the Commonwealth Minister notice, in writing, that the replacement body has been requested to perform a representative body function in relation to those native title rights and interests.

Bodies must comply with directions

A body to which directions apply must comply with those directions.

Orders by the Federal Court

If a body fails to comply with subsection (3), the Federal Court may, on the application of a person affected by the non-compliance, make such orders as it thinks fit to ensure the body’s compliance.

Former representative body under external administration

To avoid doubt, the Commonwealth Minister may make a direction under subsection (1), and the former representative body to which the direction applies must comply with the direction, even if the former representative body is under external administration.

Definitions

In this section:

former area, in relation to a former representative body, means the area, or the part of an area, for which the body is no longer a representative body.

former representative body means a body that:

has ceased to be a representative body; or

has ceased to be a representative body for a particular area; or

has had the area for which it is a representative body reduced.

If:

a representative body, in performing its functions and exercising its powers; or

a former representative body (as defined in subsection 203FC(5)), in complying with directions in accordance with subsection 203FC(3);

deals with traditional materials, or any information contained in them, the body must make all reasonable efforts to comply with the wishes of the traditional custodians of the traditional materials about the way in which the traditional materials or information is to be dealt with.

Definitions

In this section:

traditional custodian of traditional materials means a person who, according to the traditional laws and customs concerned, is responsible for the traditional materials.

traditional materials means documents, records or other things that are of significance to Aboriginal peoples or Torres Strait Islanders according to their traditional laws and customs.

An executive officer or a member of a representative body is not personally liable to an action or other proceeding for damages in relation to an act done or omitted to be done in good faith:

by the representative body; or

by the person in the capacity of executive officer or member;

in connection with the performance of the representative body’s functions or the exercise of its powers.

Funding to perform functions of a representative body

The Secretary of the Department may make funding available to a person or body, by way of a grant or in any other way the Secretary considers appropriate, for the purpose of enabling the person or body to perform, in respect of a specified area:

all the functions of a representative body; or

specified functions of a representative body;

either generally or in relation to one or more specified matters.

Funding following certain decisions under section 203FB

The Secretary of the Department may make funding available to a person or body, by way of a grant or in any other way the Secretary considers appropriate, for the purpose of enabling the person or body to perform specified facilitation and assistance functions of a representative body in relation to a matter to which a decision under paragraph 203FBA(7)(b) or 203FBB(2)(b) relates.

Conditions of funding

Funds provided to a person or body under this section, whether provided by grant or otherwise, may be so provided on whatever conditions the Secretary considers appropriate. However, the Secretary of the Department must impose conditions relating to:

the purposes for which the money may be spent; and

the period within which the money is to be spent; and

the acquittal of money spent; and

the giving of information relating to expenditure of the money; and

the appointment of a person, in cases where the Secretary considers that money from funds provided has not been spent in accordance with the conditions of the funding, with the power to prevent expenditure of further money from funds provided otherwise than in accordance with the conditions of the funding; and

the person’s or body’s continuing satisfactory performance of its functions referred to in subsection (1) or (2), as the case requires; and

the giving of information relating to the performance of the functions referred to in subsection (1) or (2), as the case requires, including the production and publication of financial statements.

Certain instruments not to be legislative instruments

(3A) An instrument that determines conditions of funding for the purposes of subsection (3) is not a legislative instrument.

Funding period to be specified

The Secretary of the Department must determine the period during which the person or body may spend the money.

Funding period may be extended

If the Secretary of the Department considers it appropriate, the Secretary may determine that the period during which the person or body may spend the money is extended for a specified further period.

Persons or bodies must comply with conditions etc.

The person or body must comply with the conditions of funding, and with any determinations under subsection (4) or (5).

Subsection 203FE(1) body has the same obligations and powers as a representative body

A person or body to whom funding is made available under subsection 203FE(1) to perform a function in respect of a particular area has the same obligations and powers in relation to the performance of that function as a body recognised as the representative body for that area would have in relation to the performance of that function.

Third parties should treat subsection 203FE(1) bodies in the same way as representative bodies

(2) A person (the third party) has the same obligations and powers, in relation to a person or body to whom funding is made available under subsection 203FE(1) to perform a function in respect of a particular area, as the third party would have in relation to a body recognised as the representative body for that area who is performing, or has performed, that function.

Effect of certain provisions on subsection 203FE(1) bodies

Without limiting subsection (1) or (2), the following provisions apply in the following ways:

subsection 24DD(2) applies as if a person or body to whom funding is made available under subsection 203FE(1) to perform all of the functions of a representative body in respect of a specified area were the representative body for the area;

section 203BD applies as if a person or body to whom funding is made available under subsection 203FE(1) to perform the facilitation and assistance functions in respect of a particular area were the representative body for the area;

section 203FC applies in relation to a person or body to whom funding was made available under subsection 203FE(1) to perform some or all of the functions of a representative body in respect of a particular area, but who has ceased to perform those functions in respect of that area, in the same way as it would apply in relation to a former representative body (as defined for the purposes of that section) who had performed those functions in respect of that area;

section 203FCA applies:

in relation to a person or body to whom funding is made available under subsection 203FE(1) to perform some or all of the functions of a representative body in respect of a particular area—in the same way as it applies in relation to a representative body performing those functions in respect of that area; and

in relation to a person or body to whom funding was made available under subsection 203FE(1) to perform some or all of the functions of a representative body in respect of a particular area, but who has ceased to perform those functions in respect of that area—in the same way as it would apply in relation to a former representative body (as defined for the purposes of section 203FC) who had performed that function in respect of that area.

Inspection, audit and investigation under section 203DF not affected by funding ceasing

The fact that:

the period within which funding made available under subsection 203FE(1) is to be spent has expired; or

funding under that subsection has otherwise ceased to be available;

does not affect the undertaking of an inspection and audit, or investigation, under section 203DF.

Further application may be prescribed

Without limiting the other provisions of this section, the regulations may prescribe the way in which other provisions of this Act are to apply in relation to a person or body to whom funding is made available under subsection 203FE(1).

Obligations and powers of persons and bodies to whom funding is made available

A person or body to whom funding is made available under subsection 203FE(2) to perform specified facilitation and assistance functions in relation to a matter has the same obligations and powers in relation to the performance of those functions in relation to that matter as a body recognised as the representative body for that area would have in relation to the performance of those functions in relation to that matter.

Obligations and powers of third parties in relation to those bodies

(2) A person (the third party) has the same obligations and powers, in relation to a person or body to whom funding is made available under subsection 203FE(2) to perform specified facilitation and assistance functions in relation to a matter, as the third party would have in relation to a body recognised as the representative body for the relevant area who is performing, or has performed, those functions in relation to that matter.

Section 203BD arrangements ineffective during funding period

(3) Subsection (4) applies if, as a result of a review under original body) to perform facilitation and assistance functions in relation to a matter, funding is made available to a person or body under subsection 203FE(2) to perform specified facilitation and assistance functions in relation to the matter.section 203FB of a refusal by a representative body for an area (the

Despite section 203BD, the representative body for an adjoining area cannot perform those functions in relation to that matter during the period within which the funding is to be spent, even if that body enters into an arrangement with the original body to do so.

Effect of certain other provisions on subsection 203FE(2) bodies

Without limiting subsection (1) or (2), the following provisions apply in the following ways:

section 203FC applies in relation to a person or body to whom funding was made available under subsection 203FE(2) to perform specified facilitation and assistance functions in relation to a matter, but who has ceased to perform those functions in relation to that matter, in the same way as it would apply in relation to a former representative body (as defined for the purposes of that section) who had performed those functions in relation to that matter;

section 203FCA applies:

in relation to a person or body to whom funding is made available under subsection 203FE(2) to perform specified facilitation and assistance functions in relation to a matter—in the same way as it would apply in relation to a representative body performing those functions in relation to that matter; and

in relation to a person or body to whom funding was made available under subsection 203FE(2) to perform specified facilitation and assistance functions in relation to a matter, but who has ceased to perform those functions in relation to that matter—in the same way as it would apply in relation to a former representative body (as defined for the purposes of section 203FC) who had performed those functions in relation to that matter.

Inspection, audit and investigation under section 203DF not affected by funding ceasing

The fact that:

the period within which funding made available under subsection 203FE(2) is to be spent has expired; or

funding under that subsection has otherwise ceased to be available;

does not affect the undertaking of an inspection and audit, or investigation, under section 203DF.

Further application may be prescribed

Without limiting the other provisions of this section, the regulations may prescribe the way in which other provisions of this Act are to apply in relation to a person or body to whom funding is made available under subsection 203FE(2).

Section 203C does not apply in relation to the performance of a function, or the exercise of a power in relation to the performance of a function, by a person or body if funding is made available to the person or body under subsection 203FE(1) or (2) to perform the function.

Section 203F does not apply in relation to:

the performance of a function by a person or body; or

serious or repeated irregularities in the financial affairs of a person or body in relation to the performance of a function by the person or body;

if funding is made available to the person or body under subsection 203FE(1) or (2) to perform the function.

Section 203FB does not apply in relation to a person or body to whom funding is made available under subsection 203FE(2) to perform specified facilitation and assistance functions in relation to a matter, to the extent that the section would otherwise apply to the performance of those functions in relation to that matter by that person or body.

A person to whom funding is made available under subsection 203FE(1) or (2) to perform a function is not personally liable to an action or other proceeding for damages in relation to an act done or omitted to be done in good faith by the person in connection with the performance of the function, or the exercise of the person’s powers in relation to the performance of the function.

An executive officer or a member of a body to whom funding is made available under subsection 203FE(1) or (2) to perform a function is not personally liable to an action or other proceeding for damages in relation to an act done or omitted to be done in good faith by:

the body; or

the person in the capacity of executive officer or member of the body;

in connection with the performance of the function, or the exercise of powers in relation to the performance of the function.

Obligations under other laws unaffected

The obligations imposed on a representative body by Divisions 4 and 5 are in addition to, and not instead of, requirements imposed by any other law of the Commonwealth, a State or Territory.

A person commits an offence if the person:

makes a statement or presents a document in or in connection with an application to the Secretary of the Department for funding under section 203C; and

does so knowing that the statement is, or that the document contains information that is, false or misleading in a material particular.

Penalty: Imprisonment for 6 months or 30 penalty units, or both.

State of mind of directors, employees or agents of bodies corporate

If, for the purposes of this Part, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show:

that the conduct was engaged in by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; and

that the director, employee or agent had the state of mind.

Conduct of directors, employees or agents of bodies corporate

Any conduct engaged in on behalf of a body corporate by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority is taken, for the purposes of this Part, to have been engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct.

State of mind of employees or agents of persons other than bodies corporate

If, for the purposes of this Part, it is necessary to establish the state of mind of a person other than a body corporate in relation to a particular conduct, it is sufficient to show:

that the conduct was engaged in by an employee or agent of the person within the scope of his or her actual or apparent authority; and

that the employee or agent had the state of mind.

Conduct of employees or agents of persons other than bodies corporate

Any conduct engaged in on behalf of a person other than a body corporate by an employee or agent of the person within the scope of his or her actual or apparent authority is taken, for the purposes of this Part, to have been engaged in also by the person unless the person establishes that the person took reasonable precautions and exercised due diligence to avoid the conduct.

Other persons not to be punished by imprisonment

If:

a person other than a body corporate is convicted of an offence; and

the person would not have been convicted of the offence if subsections (3) and (4) had not been enacted;

the person is not liable to be punished by imprisonment for that offence.

Meaning of state of mind

A reference in subsection (1) or (3) to the state of mind of a person includes a reference to:

the knowledge, intention, opinion, belief or purpose of the person; and

the person’s reasons for the intention, opinion, belief or purpose.

Meaning of director

A reference in this section to a director of a body corporate includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, a State or a Territory.

Failing etc. to engage in conduct

A reference in this section to engaging in conduct includes a reference to failing or refusing to engage in conduct.

The Secretary of the Department may, by written instrument, delegate to an SES employee, to an acting SES employee or to another person of equivalent rank, all or any of the Secretary’s powers under sections 203C, 203CA, 203DC, 203F, 203FB, 203FBA, 203FBB and 203FE.

Note 1: The expressions SES employee, and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901.

Note 2: See also sections 34AA and 34AB of the Acts Interpretation Act 1901.

The following table lists the definitions in this Part and shows their location:

Common law rights and interests

(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

the rights and interests are recognised by the common law of Australia.

Hunting, gathering and fishing covered

(2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.

Statutory rights and interests

(3) Subject to subsections (3A) and (4), if native title rights and interests as defined by subsection (1) are, or have been at any time in the past, compulsorily converted into, or replaced by, statutory rights and interests in relation to the same land or waters that are held by or on behalf of Aboriginal peoples or Torres Strait Islanders, those statutory rights and interests are also covered by the expression native title or native title rights and interests.

Note: Subsection (3) cannot have any operation resulting from a future act that purports to convert or replace native title rights and interests unless the act is a valid future act.

Subsection (3) does not apply to statutory access rights

Subsection (3) does not apply to rights and interests conferred by Subdivision Q of Division 3 of Part 2 of this Act (which deals with statutory access rights for native title claimants).

Case not covered by subsection (3)

To avoid any doubt, subsection (3) does not apply to rights and interests created by a reservation or condition (and which are not native title rights and interests):

in a pastoral lease granted before 1 January 1994; or

in legislation made before 1 July 1993, where the reservation or condition applies because of the grant of a pastoral lease before 1 January 1994.

The expression native title holder, in relation to native title, means:

if a prescribed body corporate is registered on the National Native Title Register as holding the native title rights and interests on trust—the prescribed body corporate; or

in any other case—the person or persons who hold the native title.

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

who the persons, or each group of persons, holding the common or group rights comprising the native title are; and

the nature and extent of the native title rights and interests in relation to the determination area; and

the nature and extent of any other interests in relation to the determination area; and

the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and

to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease—whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

Note: The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non-native title interests.

Section affects meaning of act in references relating to native title

(1) This section affects the meaning of act in references to an act affecting native title and in other references in relation to native title.

Certain acts included

(2) An act includes any of the following acts:

the making, amendment or repeal of any legislation;

the grant, issue, variation, extension, renewal, revocation or suspension of a licence, permit, authority or instrument;

the creation, variation, extension, renewal or extinguishment of any interest in relation to land or waters;

the creation, variation, extension, renewal or extinguishment of any legal or equitable right, whether under legislation, a contract, a trust or otherwise;

the exercise of any executive power of the Crown in any of its capacities, whether or not under legislation;

an act having any effect at common law or in equity.

Acts by any person

(3) An act may be done by the Crown in any of its capacities or by any other person.

An act affects native title if it extinguishes the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise.

Definition

(1) This section defines past act.

Acts before 1 July 1993 or 1 January 1994

Subject to subsection (10), if:

either:

at any time before 1 July 1993 when native title existed in relation to particular land or waters, an act consisting of the making, amendment or repeal of legislation took place; or

at any time before 1 January 1994 when native title existed in relation to particular land or waters, any other act took place; and

apart from this Act, the act was invalid to any extent, but it would have been valid to that extent if the native title did not exist;

the act is a past act in relation to the land or waters.

Options exercised on or after 1 January 1994 etc.

(3) Subject to subsection (10), an act that takes place on or after 1 January 1994 is a past act if:

it would be a past act under subsection (2) if that subsection were not limited in its application to acts taking place before a particular day; and

it takes place:

in exercise of a legally enforceable right created by the making, amendment or repeal of legislation before 1 July 1993 or by any other act done before 1 January 1994; or

in giving effect to, or otherwise because of, an offer, commitment, arrangement or undertaking made or given in good faith before 1 July 1993, and of which there is written evidence created at or about the time the offer, commitment, arrangement or undertaking was made; and

the act is not the making, amendment or repeal of legislation.

Extensions, renewals etc.

(4) Subject to subsections (6) and (10), an act (the later act) that takes place on or after 1 January 1994 is a past act if:

the later act would be a past act under subsection (2) if that subsection were not limited in its application to acts taking place before a particular day; and

(b) an act (the earlier act) that is a past act because of any subsection of this section (including because of another application of this subsection) took place before the later act; and

the earlier act created interests in a person and the later act creates interests in:

the same person; or

another person who has acquired the interests of the first person (by assignment, succession or otherwise);

in relation to the whole or part of the land or waters to which the earlier act relates; and

the interests created by the later act take effect before or immediately after the interests created by the earlier act cease to have effect; and

the interests created by the later act permit activities of a similar kind to those permitted by the earlier act.

Examples of similar and dissimilar acts for the purposes of paragraph (4)(e)

The following are examples for the purposes of paragraph (4)(e):

the grant of a lease that permits mining only for a particular mineral followed by the grant of a lease that permits similar mining for another mineral is an example of a case where interests created by an earlier act permit activities that are of a similar kind to those permitted by a later act;

the grant of a lease that permits only grazing followed by the grant of a lease that permits mining is an example of a case where interests created by an earlier act permit activities that are not of a similar kind to those permitted by a later act.

Cases excluded from subsection (4)

Subsection (4) does not apply if:

the earlier act was the creation of a non-proprietary interest in relation to land or waters and the later act is the creation of a proprietary interest in land or waters; or

the earlier act was the creation of a proprietary interest in land or waters and the later act is the creation of a larger proprietary interest in land or waters; or

if the earlier act contains a reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders—the later act does not contain the same reservation or condition; or

the earlier act or the later act is the making, amendment or repeal of legislation.

Example of earlier and later acts for the purposes of paragraph (6)(a)

For the purposes of paragraph (6)(a), the issue of a licence followed by the grant of a lease is an example of an earlier act that is the creation of a non-proprietary interest in relation to land and a later act that is the creation of a proprietary interest in land.

Example of earlier and later acts for the purposes of paragraph (6)(b)

For the purposes of paragraph (6)(b), the grant of a lease followed by the grant of a freehold estate is an example of an earlier act that is the creation of a proprietary interest in land and a later act that is the creation of a larger proprietary interest in land.

Other extensions, and developments, of earlier acts

(9) Subject to subsection (10), an act (the later act) that takes place on or after 1 January 1994 is a past act if:

the later act would be a past act under subsection (2) if that subsection were not limited in its application to acts taking place before a particular day; and

(b) an act (the earlier act) that is a past act because of any subsection of this section took place before the later act; and

the earlier act contained or conferred a reservation, condition, permission or authority under which the whole or part of the land or waters to which the earlier act related was to be used at a later time for a particular purpose (for example, a reservation for forestry purposes); and

the later act is done in good faith under or in accordance with the reservation, condition, permission or authority (for example, the issue in good faith of a licence to take timber under a reservation for forestry purposes); and

the later act is not the making, amendment or repeal of legislation.

Excluded acts

(10) An act is not a past act if it is:

(a) the Queensland Coast Islands Declaratory Act 1985 of Queensland; or

any other act declared by the regulations to be an excluded act for the purposes of this paragraph.

Section defines expression

(1) This section defines the expression category A past act.

Grant of certain freehold estates

(2) A past act consisting of the grant of a freehold estate is a category A past act if:

either:

the grant was made before 1 January 1994 and the estate existed on 1 January 1994; or

the grant was made on or after 1 January 1994 and it is a past act because subsection 228(3) (which deals with such things as the exercise of options) or 228(9) (which deals with other extensions etc. of earlier acts) applies; and

the grant is not:

a grant by the Crown in any capacity to the Crown, or to a statutory authority of the Crown, in any capacity; or

a grant made by or under legislation that grants freehold estates only to or for the benefit of Aboriginal peoples or Torres Strait Islanders; or

a grant of a prescribed kind to or for the benefit of Aboriginal peoples or Torres Strait Islanders.

Grant of certain leases

A past act consisting of the grant of:

a commercial lease, an agricultural lease, a pastoral lease or a residential lease; or

what is taken by subsection 245(3) (which deals with the dissection of mining leases into certain other leases) to be a separate lease in respect of land or waters mentioned in paragraph (a) of that subsection;

is a category A past act if:

either:

the grant was made before 1 January 1994 and the lease was in force on 1 January 1994; or

the grant was made on or after 1 January 1994 and it is a past act because subsection 228(3) or (9) applies; and

the grant is not:

a grant by the Crown in any capacity to the Crown, or to a statutory authority of the Crown, in any capacity; or

a grant made by or under legislation that grants leases only to or for the benefit of Aboriginal peoples or Torres Strait Islanders; or

a grant of a prescribed kind to or for the benefit of Aboriginal peoples or Torres Strait Islanders; or

a grant over land or waters that, on 1 January 1994, are Aboriginal/Torres Strait Islander land or waters.

Construction of public works

(4) A past act consisting of the construction or establishment of any public work is a category A past act if:

the work commenced to be constructed or established before 1 January 1994 and the construction or establishment had not been completed by that day; or

the work was constructed or established before 1 January 1994 and still existed on that day; or

the work was constructed or established on or after 1 January 1994 and the construction or establishment is a past act because subsection 228(9) applies.

A category B past act is a past act consisting of the grant of a lease where:

the grant is not a category A past act; and

the lease is not a mining lease; and

either:

the grant was made before 1 January 1994 and the lease was in force on 1 January 1994; or

the grant was made on or after 1 January 1994 and it is a past act because subsection 228(3) (which deals with such things as the exercise of options) or (9) (which deals with other extensions etc. of earlier acts) applies; and

the grant is not:

a grant by the Crown in any capacity to the Crown, or to a statutory authority of the Crown, in any capacity; or

a grant made by or under legislation that grants leases only to or for the benefit of Aboriginal peoples or Torres Strait Islanders; or

a grant of a prescribed kind to or for the benefit of Aboriginal peoples or Torres Strait Islanders; or

a grant over land or waters that, on 1 January 1994, are Aboriginal/Torres Strait Islander land or waters.

A category C past act is a past act consisting of the grant of a mining lease.

A category D past act is any past act that is not a category A past act, a category B past act or a category C past act.

(1) This section defines intermediate period act.

Note: Intermediate period acts may be validated under Division 2A of Part 2.

Acts between 1.1.94 and 23.12.96

(2) Subject to subsection (3), an act is an intermediate period act if:

the act took place at any time during the period from the beginning of 1 January 1994 until the end of 23 December 1996 when native title existed in relation to particular land or waters; and

the act did not consist of the making, amendment or repeal of legislation, other than legislation that affects the native title by:

creating a freehold estate, lease or licence over the land or waters; or

containing, making or conferring a reservation, proclamation or dedication under which the whole or part of the land or waters is to be used for a particular purpose; and

Note: An intermediate period act, such as the grant of a lease, may be validated under Division 2A of Part 2 even if the legislation under which the act was done is not so validated.

the act was invalid to any extent because of Division 3 of Part 2 (disregarding section 24EBA) or for any other reason, but it would have been valid to that extent if the native title did not exist; and

the act was not a past act (see section 228); and

at any time before the act was done, either:

a grant of a freehold estate or a lease (other than a mining lease) was made covering any of the land or waters affected by the act; or

a public work was constructed or established on any of the land or waters affected by the act; and

the grant, or the construction or establishment, mentioned in paragraph (e) was valid (including because of any provision of this Act).

Exclusion by regulation

(3) The regulations may provide that an act is not an intermediate period act.

(1) This section defines the expression category A intermediate period act.

Grant of freehold estates

(2) An intermediate period act consisting of the grant or vesting of a freehold estate is a category A intermediate period act.

Grant of certain leases etc.

An intermediate period act consisting of the grant or vesting of:

a Scheduled interest (see section 249C); or

a commercial lease that is neither an agricultural lease nor a pastoral lease; or

an exclusive agricultural lease (see section 247A) or an exclusive pastoral lease (see section 248A); or

a residential lease; or

a community purposes lease (see section 249A); or

what is taken by subsection 245(3) (which deals with the dissection of mining leases into certain other leases) to be a separate lease in respect of land or waters mentioned in paragraph (a) of that subsection, assuming that the reference in subsection 245(2) to “1 January 1994” were instead a reference to “24 December 1996”; or

any lease (other than a mining lease) that confers a right of exclusive possession over particular land or waters;

is a category A intermediate period act.

Vesting of certain land or waters

If:

an intermediate period act is done by or under legislation of a State or a Territory; and

the intermediate period act consists of the vesting of particular land or waters in any person; and

a right of exclusive possession of the land or waters is expressly or impliedly conferred on the person by or under the legislation;

the intermediate period act is a category A intermediate period act.

Construction of public works

(7) An intermediate period act consisting of the construction or establishment of any public work is a category A intermediate period act.

(8) An intermediate period act is not a category A intermediate period act if it is:

the grant or vesting of any thing that is made or done by or under legislation that makes provision for the grant or vesting of such things only to, in or for the benefit of, Aboriginal peoples or Torres Strait Islanders; or

the grant or vesting of any thing expressly for the benefit of, or to or in a person to hold on trust expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders; or

the grant or vesting of any thing over particular land or waters, if at the time a thing covered by paragraph (a) or (b) is in effect in relation to the land or waters.

Exclusion by regulation

(9) The regulations may provide that an act is not a category A intermediate period act.

A category B intermediate period act is an intermediate period act consisting of the grant of a lease if:

the grant is not a category A intermediate period act; and

the lease is not:

a mining lease; or

a lease granted by or under legislation that grants leases only to or for the benefit of Aboriginal peoples or Torres Strait Islanders; or

a lease granted expressly for the benefit of, or to a person to hold on trust expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders; or

any other lease granted over particular land or waters, if at the time a lease covered by subparagraph (ii) or (iii) is in force over the land or waters.

A category C intermediate period act is an intermediate period act consisting of the grant of a mining lease.

A category D intermediate period act is any intermediate period act that is not a category A intermediate period act, a category B intermediate period act or a category C intermediate period act.

Definition

(1) Subject to this section, an act is a future act in relation to land or waters if:

either:

it consists of the making, amendment or repeal of legislation and takes place on or after 1 July 1993; or

it is any other act that takes place on or after 1 January 1994; and

it is not a past act; and

apart from this Act, either:

it validly affects native title in relation to the land or waters to any extent; or

the following apply:

(A) it is to any extent invalid; and

(B) it would be valid to that extent if any native title in relation to the land or waters did not exist; and

(C) if it were valid to that extent, it would affect the native title.

Validation and extinguishment legislation excluded

If:

the act consists of the making, amendment or repeal of legislation; and

the act purports to:

validate any past act or intermediate period act; or

extinguish native title, or extinguish native title rights and interests to an extent; and

the act is done or permitted to be done by Division 2, 2A or 2B of Part 2;

subsection (1) does not apply to the extent that the act purports to validate the act, or to extinguish the native title or the native title rights and interests.

Acts creating or affecting Aboriginal/Torres Strait Islander land or waters excluded

Subsection (1) does not apply to any of the following acts:

(a) an act that causes land or waters to be held by or for the benefit of Aboriginal peoples or Torres Strait Islanders under a law mentioned in the definition of Aboriginal/Torres Strait Islander land or waters in section 253;

any act affecting Aboriginal/Torres Strait Islander land or waters.

A future act is an act attracting the expedited procedure if:

the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and

the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and

the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.

The word extinguish, in relation to native title, means permanently extinguish the native title. To avoid any doubt, this means that after the extinguishment the native title rights and interests cannot revive, even if the act that caused the extinguishment ceases to have effect.

Effect of references

This section sets out the effect of a reference to the non-extinguishment principle applying to an act.

Native title not extinguished

If the act affects any native title in relation to the land or waters concerned, the native title is nevertheless not extinguished, either wholly or partly.

Rights and interests wholly ineffective

In such a case, if the act is wholly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title continues to exist in its entirety but the rights and interests have no effect in relation to the act.

Rights and interests partly ineffective

If the act is partly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title continues to exist in its entirety, but the rights and interests have no effect in relation to the act to the extent of the inconsistency.

Who the native title holders are

Despite the fact that the native title rights and interests have no effect (as mentioned in subsection (3)) or have only limited effect (as mentioned in subsection (4)) in relation to the act, the persons who are entitled in accordance with the traditional laws and customs, as applying from time to time, to possess those rights and interests continue to be the native title holders, subject to Division 6 of Part 2 (which deals with the holding of native title on trust).

Complete removal of act or its effects

If the act or its effects are later wholly removed or otherwise wholly cease to operate, the native title rights and interests again have full effect.

Partial removal of act or its effects

If the act or its effects are later removed only to an extent, or otherwise cease to operate only to an extent, the native title rights and interests again have effect to that extent.

Example of operation of section

An example of the operation of this section is its application to a category C past act consisting of the grant of a mining lease that confers exclusive possession over an area of land or waters in relation to which native title exists. In such a case the native title rights and interests will continue to exist but will have no effect in relation to the lease while it is in force. However, after the lease concerned expires (or after any extension, renewal or re-grant of it to which subsection 228(3), (4) or (9) applies expires), the rights and interests again have full effect.

An act is attributable to the Commonwealth, a State or a Territory if the act is done by:

the Crown in right of the Commonwealth, the State or the Territory; or

the Parliament or Legislative Assembly of the Commonwealth, the State or the Territory; or

any person under a law of the Commonwealth, the State or the Territory.

The similar compensable interest test is satisfied in relation to a past act, an intermediate period act or a future act if:

the native title concerned relates to an onshore place; and

the compensation would, apart from this Act, be payable under any law for the act on the assumption that the native title holders instead held ordinary title to any land or waters concerned and to the land adjoining, or surrounding, any waters concerned.

This Division contains definitions relating to leases.

(1) The expression lease includes:

a lease enforceable in equity; or

a contract that contains a statement to the effect that it is a lease; or

anything that, at or before the time of its creation, is, for any purpose, by a law of the Commonwealth, a State or a Territory, declared to be or described as a lease.

References to mining lease

(2) In the case only of references to a mining lease, the expression lease also includes a licence issued, or an authority given, by or under a law of the Commonwealth, a State or a Territory.

(1) Subject to subsection (2), the expression lessee includes any person who, by assignment, succession, sub-lease or otherwise, acquires, enjoys or is entitled to exercise any of the interests under the lease of a lessee (including of a person who is a lessee because of another application or applications of this section).

Lessee of certain mining leases

(2) In the case of a lease that is a mining lease because of subsection 242(2) (which covers licences and authorities given by or under laws), the expression lessee means:

the person to whom the licence mentioned in that subsection was issued, or the authority so mentioned was given; or

any person who, by assignment, succession or otherwise, acquires or enjoys the licence or authority or is entitled to exercise rights under the licence or the authority.

Definition

(1) The expression permit, in a reference to a lease permitting a thing, means permit:

expressly by the terms of the lease; or

by implication from the terms of the lease; or

otherwise (including expressly, or by implication, from the operation of legislation).

Example of implication from legislation

An example of a thing permitted by implication from the operation of legislation is where the legislation states that, if a lease is not renewed, compensation is payable for any building constructed on the land subject to the lease. The construction of the building is permitted by implication from the statement.

Definition

(1) A mining lease is a lease (other than an agricultural lease, a pastoral lease or a residential lease) that permits the lessee to use the land or waters covered by the lease solely or primarily for mining.

Mining leases to which subsection (3) applies

(2) Subject to subsection (4), subsection (3) applies to a mining lease if the lease was in force at the beginning of 1 January 1994 (the test time) and either or both of the following paragraphs apply:

the following conditions are satisfied:

a city, town or private residences had been wholly or partly constructed at the test time on a part of the land or waters covered by the lease;

the construction was permitted by the lease;

in the case of any private residences—they had been, or were being, constructed as fixtures and it was reasonably likely at the test time that, if mining under the lease were to cease at any later time, they would continue to be used as private residences;

the following conditions are satisfied:

other buildings or works had been wholly or partly constructed as fixtures at the test time, on a part of the land or waters covered by the lease, for carrying on an activity in connection with any city, town or private residences covered by paragraph (a);

the construction was permitted by the lease;

it was reasonably likely at the test time that, if mining under the lease were to cease at any later time, the buildings or works would continue to be used to carry on the same activity, or a similar activity, in connection with any city, town or private residences mentioned in paragraph (a).

Dissection of mining lease

If this subsection applies to a mining lease, the lease is taken instead to consist of separate leases in respect of:

the part of the land or waters in respect of which paragraph (2)(a) or (b), or both paragraphs, are satisfied; and

the remainder of the land or waters.

Exclusion of certain cities, towns etc.

The Commonwealth Minister may, by legislative instrument, determine that a specified city, town, private residence, building or works is not to be taken into account for the purposes of subsection (3).

Definition

(1) A commercial lease is a lease (other than a mining lease) that permits the lessee to use the land or waters covered by the lease solely or primarily for business or commercial purposes. The defining of agricultural lease, pastoral lease and residential lease in sections 247, 248 and 249 is not intended to limit the coverage of commercial lease.

Examples of a commercial lease

For the purposes of subsection (1):

construction on land of a building to be used for business or commercial purposes, or of a hotel, motel or tourist resort, is an example of use of the land for business or commercial purposes; and

use of a building on land for business or commercial purposes, or operation of a hotel, motel or tourist resort on land, is an example of use of the land for business or commercial purposes.

(1) An agricultural lease is a lease that:

permits the lessee to use the land or waters covered by the lease solely or primarily for agricultural purposes (which includes the planting and growing in the land of trees, vines or vegetables); or

contains a statement to the effect that it is solely or primarily an agricultural lease or that it is granted solely or primarily for agricultural purposes.

Aquaculture

(2) Except in so far as the expression is used in or in relation to agricultural lease also includes a lease that permits the lessee to use the land or waters covered by the lease solely or primarily for aquacultural purposes.Division 2 of Part 2,

An exclusive agricultural lease is an agricultural lease that:

confers a right of exclusive possession over the land or waters covered by the lease; or

is a Scheduled interest.

A non-exclusive agricultural lease is an agricultural lease that is not an exclusive agricultural lease.

Note: In practice, there might be few, or no, non-exclusive agricultural leases.

A pastoral lease is a lease 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; or

contains a statement to the effect that it is solely or primarily a pastoral lease or that it is granted solely or primarily for pastoral purposes.

An exclusive pastoral lease is a pastoral lease that:

confers a right of exclusive possession over the land or waters covered by the lease; or

is a Scheduled interest.

A non-exclusive pastoral lease is a pastoral lease that is not an exclusive pastoral lease.

Definition

(1) A residential lease is a lease that permits the lessee to use the land or waters covered by the lease solely or primarily for constructing or occupying a private residence.

Examples of residential lease

For the purposes of subsection (1):

construction of a house or unit on land for a person to live in is an example of use of the land for constructing a private residence; and

use of a house or unit on land that is leased out to a person to live in is an example of use of the land for occupying a private residence; and

use of a hotel, motel, caravan or tent on land is an example of something that is not use of the land for occupying a private residence.

A community purposes lease is a lease that:

permits the lessee to use the land or waters covered by the lease solely or primarily for community, religious, educational, charitable or sporting purposes; or

contains a statement to the effect that it is solely or primarily a community purposes lease or that it is granted solely or primarily for community, religious, educational, charitable or sporting purposes.

A perpetual lease is a lease with the following features:

the lease is in perpetuity;

the lease may be forfeited, cancelled or otherwise cease to have effect for failure to pay rent or for contravention of a condition or conditions.

(1) A Scheduled interest is:

anything set out in Schedule 1, other than a mining lease or anything whose grant or vesting is covered by subsection 23B(9), (9A), (9B), (9C) or (10) (which provide that certain acts are not previous exclusive possession acts); or

an interest, in relation to land or waters, of a type declared by a regulation for the purposes of this paragraph to be a Scheduled interest.

Regulations to cover single type of interest only

A particular regulation only has effect for the purposes of paragraph (1)(b) if it covers a single type of interest.

Regulations to cover exclusive possession interests only

Before the Governor-General makes a regulation for the purposes of paragraph (1)(b) declaring a particular interest to be a Scheduled interest, the Minister must be satisfied that the interest confers a right of exclusive possession that extinguishes all native title rights and interests over the land or waters concerned.

The use of the present tense in any provision of this Act does not imply that the provision does not apply to things happening before the commencement of the provision.

For the purposes of this Act, persons holding native title in relation to land or waters in the area covered by an indigenous land use agreement authorise the making of the agreement if:

where there is a process of decision-making that, under the traditional laws and customs of the persons who hold or may hold the common or group rights comprising the native title, must be complied with in relation to authorising things of that kind—the persons authorise the making of the agreement in accordance with that process; or

where there is no such process—the persons authorise the making of the agreement in accordance with a process of decision-making agreed to and adopted, by the persons who hold or may hold the common or group rights comprising the native title, in relation to authorising the making of the agreement or of things of that kind.

For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if:

where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind—the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or

where there is no such process—the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.

The persons who authorise:

the making of an indigenous land use agreement under section 251A; or

a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, under section 251B;

may impose conditions on the authority.

The conditions must be imposed:

where there is a process of decision-making that, under the traditional laws and customs of the persons, must be complied with in relation to authorising things of that kind—in accordance with that process; or

where there is no such process—in accordance with a process of decision-making agreed to and adopted, by the persons, in relation to authorising things of that kind.

Note 1: Consequences of a failure to comply with a condition may include:

replacement of the applicant (see subparagraph 66B(1)(a)(iv)); and

a Federal Court order (see section 84D).

Note 2: Conditions that may be imposed include:

a requirement that something required to be done under this Act be done by the authorised persons unanimously, instead of by majority (see section 62C); and

a condition setting out what happens if an authorised person dies or is unable to act as an applicant because of physical or mental incapacity (see section 66B).

A person or persons authorised to make an application under the authority that occurs after the application is made.section 61 must seek leave to amend the application to reflect any imposition, variation or revocation of conditions on

Areas in Western Australia

(1) Subject to subsection (4), a particular area in Western Australia is a town or city if, as at 23 December 1996, it was gazetted as a townsite or as suburban lands under section 10 of the Land Act 1933 of Western Australia.

Areas in South Australia

(2) Subject to subsection (4), a particular area in South Australia is a town or city if, as at 23 December 1996, it was:

(a) within the boundaries of a town constituted under Crown Lands Act 1929 of South Australia; orsection 5(g) of the

set apart as town lands, or suburban lands, by notice under section 5(h) of that Act; or

town lands, park lands, or suburban lands, within the meaning of section 4 of that Act; or

(d) gazetted in the South Australian Government Gazette, or proclaimed by the Governor of South Australia, as suburban lands, where the gazettal took place, or the proclamation was made, before the enactment of the Crown Lands Act 1929 of South Australia; or

(e) a township Local Government Act, 1934 of South Australia; orwithin the meaning of section 5(1) of the

park land, within the meaning of section 5(1) of that Act, that was within or adjacent to a township within the meaning of that section; or

the area in relation to which a municipal council was constituted under section 6 of that Act; or

a township within the meaning of section 319 of that Act; or

(i) a township allotment Renmark Irrigation Trust Act 1936 of South Australia; orwithin the meaning of section 5 of the

(j) town lands Water Conservation Act 1936 of South Australia.within the meaning of section 5 of the

Areas in the Northern Territory

(3) Subject to subsection (4), a particular area in the Northern Territory is a town or city if, as at 23 December 1996, it was:

(a) gazetted as a town (other than the town of Darwin, Hatches Creek, Brocks Creek, Burrundie or Urapunga) under subsection 95(1) of the Crown Lands Act 1992 (NT); or

(b) the area in the Schedule to the Darwin Lands Acquisition Act 1945 of the Commonwealth; or

(c) within a municipality within the meaning of the Local Government Act 1993 (NT).

Exclusion of areas in Western Australia, South Australia or Northern Territory

(4) A particular area is not a town or city under subsection (1), (2) or (3) if the Commonwealth Minister, by legislative instrument, so determines.

Other areas

(5) A particular area in any State or Territory is a town or city if the Commonwealth Minister determines, by legislative instrument, that, in his or her opinion, the area was a town or a city as at 23 December 1996.

Exclusion of ordinary meaning

(6) Except as mentioned in this section, an area is not a town or city.

In this Act, a reference to land or waters on which a public work is constructed, established or situated includes a reference to any adjacent land or waters the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the work.

Definition

(1) The expression notify the public in the determined way means give notice in the way determined, by legislative instrument, by the Commonwealth Minister for the purposes of the provision in which the expression is used.

Examples of ways that may be determined

Without limiting the ways that the Commonwealth Minister may determine, he or she may determine that the notice may be given:

in newspapers (including newspapers catering mainly or exclusively for the interests of Aboriginal peoples or Torres Strait Islanders); or

by radio broadcasts or television transmissions.

Unless the contrary intention appears:

Aboriginal peoples means peoples of the Aboriginal race of Australia.

Aboriginal/Torres Strait Islander land or waters means land or waters held by or for the benefit of Aboriginal peoples or Torres Strait Islanders under: any of the following laws of the Commonwealth: (i) the Aboriginal Land and Waters (Jervis Bay Territory) Act 1986; (ii) the Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987; (iii) the Aboriginal Land Rights (Northern Territory) Act 1976; or any of the following laws of South Australia: (i) the Aboriginal Lands Trust Act 1966; (ii) the Maralinga Tjarutja Land Rights Act 1984; (iii) the Pitjantjatjara Land Rights Act 1981; or any other law, or part of a law, prescribed for the purposes of the provision in which the expression is used.

any of the following laws of the Commonwealth:

(i) the Aboriginal Land and Waters (Jervis Bay Territory) Act 1986;

(ii) the Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987;

(iii) the Aboriginal Land Rights (Northern Territory) Act 1976; or

any of the following laws of South Australia:

(i) the Aboriginal Lands Trust Act 1966;

(ii) the Maralinga Tjarutja Land Rights Act 1984;

(iii) the Pitjantjatjara Land Rights Act 1981; or

any other law, or part of a law, prescribed for the purposes of the provision in which the expression is used.

agent prescribed body corporate, in relation to native title rights and interests, means:

a prescribed body corporate that is determined under section 57 in relation to the native title; or

a prescribed body corporate that, under regulations made for the purposes of paragraph 56(4)(e), is to perform the functions referred to in subsection 57(3) in relation to the native title; or

a prescribed body corporate that replaces, under regulations made for the purposes of section 60:

a prescribed body corporate referred to in paragraph (a) or (b); or

a prescribed body corporate that is an agent prescribed body corporate in relation to the native title because of an earlier application of this paragraph.

applicant has a meaning affected by subsections 61(2) and 66B(2C).

approved determination of native title has the meaning given by subsections 13(3), (4) and (7).

arbitral body has the meaning given by section 27.

assessor means an assessor appointed under Part VA of the Federal Court of Australia Act 1976.

authorise:

in relation to the making of indigenous land area agreements—has the meaning given by section 251A; and

in relation to the making of native title determination applications or compensation applications, and dealing with matters arising in relation to such applications—has the meaning given by section 251B.

Chief Justice means the Chief Justice of the Federal Court of Australia.

claimant application means a native title determination application that a native title claim group has authorised to be made, and, unless the contrary intention appears, includes such an application that has been amended.

coastal sea has the meaning given by subsection 15B(4) of the Acts Interpretation Act 1901.

common law holders has the meaning given by section 56.

Commonwealth Minister means the Minister applicable, in relation to the provision in which the expression is used, under section 19 of the Acts Interpretation Act 1901.

CSC (short for Commonwealth Superannuation Corporation) has the same meaning as in the Governance of Australian Government Superannuation Schemes Act 2011.

explore includes:

conduct a geological, geophysical or geochemical survey; or

take samples for the purpose of analysis.

Federal Court means the Federal Court of Australia.

Federal Court Chief Executive Officer means the Chief Executive Officer and Principal Registrar of the Federal Court.

Federal Court Registrar means the Federal Court Chief Executive Officer or a Registrar, District Registrar or Deputy District Registrar of the Federal Court.

forest operations means:

the planting or tending, in a plantation or forest, of trees intended for felling; or

the felling of such trees.

former judge means a person who has been a Justice of the High Court or a judge of another federal court or of the Supreme Court of a State or Territory.

Government party has the meaning given by subsection 26(1).

grantee party has the meaning given by paragraph 29(2)(c).

horticulture includes:

propagation or maintenance, as well as cultivation; or

propagation, maintenance or cultivation of seeds, bulbs, spores or similar things; or

propagation, maintenance or cultivation of fungi; or

propagation, maintenance or cultivation in environments other than soil, whether natural or artificial.

indigenous land use agreement has the meaning given by sections 24BA, 24CA and 24DA.

infrastructure facility includes any of the following: a road, railway, bridge or other transport facility; a jetty or port; an airport or landing strip; an electricity generation, transmission or distribution facility; a storage, distribution or gathering or other transmission facility for: oil or gas; or derivatives of oil or gas; a storage or transportation facility for coal, any other mineral or any mineral concentrate; a dam, pipeline, channel or other water management, distribution or reticulation facility; a cable, antenna, tower or other communication facility; any other thing that is similar to any or all of the things mentioned in paragraphs (a) to (h) and that the Commonwealth Minister determines, by legislative instrument, to be an infrastructure facility for the purposes of this paragraph.

a road, railway, bridge or other transport facility;

a jetty or port;

an airport or landing strip;

an electricity generation, transmission or distribution facility;

a storage, distribution or gathering or other transmission facility for:

oil or gas; or

derivatives of oil or gas;

a storage or transportation facility for coal, any other mineral or any mineral concentrate;

a dam, pipeline, channel or other water management, distribution or reticulation facility;

a cable, antenna, tower or other communication facility;

any other thing that is similar to any or all of the things mentioned in paragraphs (a) to (h) and that the Commonwealth Minister determines, by legislative instrument, to be an infrastructure facility for the purposes of this paragraph.

interest, in relation to land or waters, means:

a legal or equitable estate or interest in the land or waters; or

any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with:

the land or waters; or

an estate or interest in the land or waters; or

a restriction on the use of the land or waters, whether or not annexed to other land or waters.

Judge means a Judge of the Federal Court.

jurisdictional limits means:

in relation to a State—the area within:

the limits of the State; or

(ii) the coastal waters of the State (within the meaning of the Coastal Waters (State Powers) Act 1980); or

in relation to the Northern Territory—the area within:

the limits of the Territory; or

(ii) the coastal waters of the Territory (within the meaning of the Coastal Waters (Northern Territory Powers) Act 1980); or

in relation to any other Territory—the area within the limits of the Territory.

land includes the airspace over, or subsoil under, land, but does not include waters.

major earthworks means earthworks (other than in the course of mining) whose construction causes major disturbance to the land, or to the bed or subsoil under waters.

mediator means:

Note 1: Because of the definition of waters, not only rivers and lakes etc., but also such things as the bed or subsoil under, and airspace over, rivers and lakes etc. will not be included in land.

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

in relation to an application—the person or body to which the application has been referred under subsection 86B(1) for mediation; or

in relation to the whole or a part of a proceeding—the person or body to which the whole or the part of the proceeding has been referred under subsection 86B(5) for mediation.

member means a member of the Tribunal.

mine includes:

explore or prospect for things that may be mined (including things covered by that expression because of paragraphs (b) and (c)); or

extract petroleum or gas from land or from the bed or subsoil under waters; or

quarry;

but does not include extract, obtain or remove sand, gravel, rocks or soil from the natural surface of land, or of the bed beneath waters, for a purpose other than:

extracting, producing or refining minerals from the sand, gravel, rocks or soil; or

processing the sand, gravel, rocks or soil by non-mechanical means.

National Native Title Register means the register established and maintained under Part 8.

National Native Title Tribunal or NNTT means the National Native Title Tribunal established under Part 6.

native title application inquiry has the meaning given by section 138C.

native title claim group means:

in relation to a claim in an application for a determination of native title made to the Federal Court—the native title claim group mentioned in relation to the application in the table in subsection 61(1); or

in relation to a claim in an application for an approved determination of native title made to a recognised State/Territory body—the person or persons making the claim, or on whose behalf the claim is made.

native title party has the meaning given by paragraphs 29(2)(a) and (b) and section 30.

Native Title Registrar means the Native Title Registrar appointed under Part 5.

negotiation party has the meaning given by section 30A.

non-claimant application means a native title determination application that is not a claimant application.

non-presidential member means a member who, in accordance with the table in subsection 110(1), is of the non-presidential class.

offshore place means any land or waters to which this Act extends, other than land or waters in an onshore place.

onshore place means land or waters within the limits of a State or Territory to which this Act extends.

ordinary title, in relation to an onshore place that is land, means:

if the land is not in the Australian Capital Territory or the Jervis Bay Territory—a freehold estate in fee simple in the land other than such an estate granted by or under a law that grants such estates only to or for the benefit of Aboriginal peoples or Torres Strait Islanders; or

if the land is in the Australian Capital Territory or the Jervis Bay Territory—a lease over the land granted by or on behalf of the Commonwealth under a law of the Commonwealth or of the Territory, other than a lease granted by or under a law that grants such leases only to or for the benefit of Aboriginal peoples or Torres Strait Islanders.

paragraph 51(xxxi) acquisition of property means an acquisition of property within the meaning of paragraph 51(xxxi) of the Constitution.

paragraph 51(xxxi) just terms means just terms within the meaning of paragraph 51(xxxi) of the Constitution.

person conducting the mediation means the person mentioned in subsection 94D(2) who conducts a conference under section 94D in relation to the mediation concerned.

prescribed means prescribed by the regulations.

President means the President of the Tribunal.

presidential member means a member who, in accordance with the table in section 110, is of the presidential class.

procedural right, in relation to an act, means:

a right to be notified of the act; or

a right to object to the act; or

any other right that is available as part of the procedures that are to be followed when it is proposed to do the act.

public education facilities means education facilities operated by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any of its capacities.

public health facilities means health facilities operated by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any of its capacities.

public housing means housing operated by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any of its capacities.

public work means:

any of the following that is constructed or established by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any of its capacities: