Commonwealth Consolidated Acts

NATIVE TITLE AMENDMENT ACT 1998 - SCHEDULE 2

Part 1 -- Native Title Act 1993

1   Section 12

Repeal the section.

2   Subsection 13(1)

Omit "Registrar", substitute "Federal Court".

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

3   Paragraph 13(2)(a)

Omit "the NNTT or".

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

4   Subsection 13(2)

Omit "NNTT or".

5   After subsection 13(2)

Insert:

Note:   Under subsection 62(3), if no native title determination application has previously been made in relation to the area to which a compensation application relates, the compensation application must be accompanied by the affidavit, and contain the information, that would be required for a native title determination application for the area.

6   Paragraph s 1 3(4)(a) and (6)(a)

Omit "the NNTT or".

7   Subsection 50(2)

Omit "Registrar", substitute "Federal Court".

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

8   Section 55

Omit "the NNTT or" (wherever occurring).

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

9   Section 55

Omit "sections", substitute "section".

10   Section 55

Omit "and 57", substitute "or 57".

11   Subsection 56(1)

Omit "the NNTT or".

12   Subsection 56(2)

Omit "NNTT or the" (wherever occurring).

13   Subsection 56(4)

Omit "the NNTT or".

14   Subsection 57(2)

Omit "the NNTT or" (wherever occurring).

15   Paragraph 58(d)

Omit "their", substitute "its".

16   Section 59

Omit all the words and paragraphs after "or 57".

17   At the end of Division 6 of Part 2

Add:

60AA   Body corporate for Meriam people

  (1)   If:

  (a)   a body corporate is or becomes incorporated under the Aboriginal Councils and Associations Act 1976 ; and

  (b)   all of the members of the body corporate are members of the Meriam people (see subsection (2)); and

  (c)   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

  (d)   a member of the Meriam people applies to the Federal Court for a determination under this section; and

  (e)   the Court is satisfied that the applicant represents the Meriam people;

then:

  (f)   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

  (g)   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

  (h)   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.

  (2)   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.

18   Part 3

Repeal the Part, substitute:

Part 3 -- Applications

Division 1AA -- Overview of Part

60A   Overview of Part

  (1)   This Part has the rules for making:

  (a)   applications to the Federal Court for native title determinations, revised native title determinations and compensation: see Division 1; and

  (b)   various other applications to the Federal Court: see Division 1A; and

  (c)   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;

  (d)   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.

  (2)   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.

Division 1 -- Applications to the Federal Court: native title and compensation

61   Native title and compensation applications

Applications that may be made

  (1)   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

  (2)   In the case of:

  (a)   a native title determination application made by a person or persons authorised to make the application by a native title claim group; or

  (b)   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

  (3)   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

  (4)   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:

  (a)   name the persons; or

  (b)   otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons.

Form etc.

  (5)   An application must:

  (a)   be in the prescribed form; and

  (b)   be filed in the Federal Court; and

  (c)   contain such information in relation to the matters sought to be determined as is prescribed; and

  (d)   be accompanied by any prescribed documents and any prescribed fee.

61A   Restrictions on making of certain applications

No native title determination application if approved determination of native title

  (1)   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

  (2)   If:

  (a)   a previous exclusive possession act (see section 23B) was done in relation to an area; and

  (b)   either:

  (i)   the act was an act attributable to the Commonwealth; or

  (ii)   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

  (3)   If:

  (a)   a previous non - exclusive possession act (see section 23F) was done in relation to an area; and

  (b)   either:

  (i)   the act was an act attributable to the Commonwealth; or

  (ii)   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 or 47B cases

  (4)   However, subsection (2) or (3) does not apply to an application if:

  (a)   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 or 47B to be disregarded were the application to be made; and

  (b)   the application states that section 47, 47A or 47B, as the case may be, applies to it.

62   Information etc. in relation to certain applications

Claimant applications

  (1)   A claimant application (see section 253):

  (a)   must be accompanied by an affidavit sworn by the applicant:

  (i)   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

  (ii)   that the applicant believes that none of the area covered by the application is also covered by an entry in the National Native Title Register; and

  (iii)   that the applicant believes that all of the statements made in the application are true; and

  (iv)   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

Note:   Section 251B states what it means for the applicant to be authorised by all the persons in the native title claim group.

  (v)   stating the basis on which the applicant is authorised as mentioned in subparagraph (iv); and

  (b)   must contain the details specified in subsection (2); and

  (c)   may contain details of:

  (i)   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

  (ii)   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.

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.

Details required by paragraph (1)(b)

  (2)   For the purposes of paragraph (1)(b), the details required are as follows:

  (a)   information, whether by physical description or otherwise, that enables the boundaries of:

  (i)   the area covered by the application; and

  (ii)   any areas within those boundaries that are not covered by the application;

    to be identified;

  (b)   a map showing the boundaries of the area mentioned in subparagraph (a)(i);

  (c)   details and results of all searches carried out 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;

  (d)   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;

  (e)   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:

  (i)   the native title claim group have, and the predecessors of those persons had, an association with the area; and

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

  (iii)   the native title claim group have continued to hold the native title in accordance with those traditional laws and customs;

  (f)   if the native title claim group currently carry on any activities in relation to the land or waters--details of those activities;

  (g)   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;

  (h)   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.

Note:   Notices under section 29 are relevant to subsection 190A(2).

Compensation applications

  (3)   In the case of a compensation application whose making was authorised by a compensation claim group, the application:

  (a)   must be accompanied by an affidavit sworn by the applicant:

  (i)   that the applicant believes that native title rights and interests exist or have existed in relation to the area; and

  (ii)   that the applicant believes that all of the statements made in the application are true; and

  (iii)   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

Note:   Section 251B states what it means for the applicant to be authorised by all the persons in the compensation claim group.

  (iv)   stating the basis on which the applicant is authorised as mentioned in subparagraph (iii); and

  (b)   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.

62A   Power of applicants where application authorised by group

    In the case of:

  (a)   a claimant application; or

  (b)   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.

63   Reference of applications to Native Title Registrar

    If an application under section 61 is filed in the Federal Court, the Registrar of the Federal Court must, as soon as practicable, give the Native Title Registrar a copy of:

  (a)   the application; and

  (b)   any affidavit that accompanies the application under paragraph 62(1)(a) or (3)(a); and

  (c)   any prescribed documents that accompany the application under paragraph 61(5)(d).

64   Amendment of applications

Application may be amended to reduce land or waters covered

  (1A)   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.

Amendment not to result in inclusion of additional areas

  (1)   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.

Exception to subsection (1)

  (2)   However, if:

  (a)   the application is a claimant application (see section 253); and

  (b)   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.

Application may be amended despite section 190A consideration

  (3)   In the case of a claimant application, the fact that the Registrar is, under section 190A, considering the claim made in the application does not prevent amendment of the application.

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

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

Group applications--amendment to change applicant

  (5)   If a claimant application, or a compensation application whose making was authorised by a compensation claim group, is amended so as to replace the applicant with a new applicant, the amended application must be accompanied by an affidavit sworn by the new applicant:

  (a)   that the new applicant is authorised by the other persons included in the native title claim group, or the compensation claim group, to deal with matters arising in relation to the application; and

  (b)   stating the basis on which the new applicant is authorised as mentioned in paragraph (a).

66   Notice of application

Registrar to comply with section

  (1)   If the Native Title Registrar is given a copy of an application under section 63, the Registrar must comply with the requirements of this section.

Copies to State/Territory Minister

  (2)   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:

  (a)   the application; and

  (b)   any other documents that the Registrar of the Federal Court gives the Native Title Registrar under section 63 in relation to the application.

Copies to representative bodies

  (2A)   The Registrar must, as soon as is reasonably practicable, give the representative bodies for the area covered by the application a copy of:

  (a)   the application; and

  (b)   any other documents that the Registrar of the Federal Court gives the Native Title Registrar under section 63 in relation to the application.

Notice to be given

  (3)   Subject to this section, the Registrar must:

  (a)   give notice containing details of the application to the following persons or bodies (other than the applicant in relation to the application):

  (i)   any registered native title claimant in relation to any of the area covered by the application; and

  (ii)   any registered native title body corporate in relation to any of the area covered by the application; and

  (iii)   any representative Aboriginal/Torres Strait Islander body for any of the area covered by the application; and

  (iv)   subject to subsection (5), any person who, when the application was filed in the Federal Court, held 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

  (v)   the Commonwealth Minister; and

  (vi)   any local government body for any of the area covered by the application; and

  (vii)   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

  (b)   give a copy of the notice to the Federal Court; and

  (c)   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

  (d)   notify the public in the determined way of the application.

Exception where application is struck out

  (4)   Subsection (3) does not apply if:

  (a)   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

  (b)   the Court strikes out the application.

Exception to subparagraph (3)(a)(iv)

  (5)   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

  (6)   If the application is a claimant application:

  (a)   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

  (b)   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

  (7)   The Registrar may apply to the Federal Court for an order as to:

  (a)   whether a particular person or class of persons must be given notice under paragraph (3)(a); or

  (b)   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

  (9)   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

  (10)   A notice under paragraph (3)(a) or (d) must also include a statement to the effect that:

  (a)   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

  (b)   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

  (c)   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.

66A   Notice of amended application

Native Title Registrar to notify parties etc.

  (1)   If:

  (a)   the Native Title Registrar is given a copy of an amended application under section 64; and

  (b)   the amendment concerned results in a change to the area of land or waters covered by the original application; and

  (c)   subsection (2) does not apply;

the Registrar must:

  (d)   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

  (e)   if, when the Registrar receives the copy, the period specified in the notice in accordance with paragraph 66(10)(c) has not ended:

  (i)   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

  (ii)   notify the public in the determined way of the amended application.

Combined applications

  (2)   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:

  (a)   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

  (b)   if, when the Registrar receives the copy, the period specified in the notice in accordance with paragraph 66(10)(c) has not ended:

  (i)   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

  (ii)   notify the public in the determined way of the combining of the applications.

Federal Court order as to notice

  (3)   The Registrar may apply to the Federal Court for an order as to:

  (a)   whether a particular person or class of persons must be given notice under subsection (1) or (2); or

  (b)   how such notice must be given.

Federal Court may direct Native Title Registrar to give notice

  (4)   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

  (5)   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.

66B   Replacing the applicant

Application to replace applicant in claimant application

  (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:

  (a)   either:

  (i)   the current applicant is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it; or

  (ii)   the current applicant 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

  (b)   the member or members are authorised by the claim group to make the application and to deal with matters arising in relation to it.

Court order

  (2)   The Court may make the order if it is satisfied that the grounds are established.

Registrar of Federal Court to notify Native Title Registrar

  (3)   If the Court makes the order, the Registrar of the Federal Court 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

  (4)   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.

67   Overlapping native title determination applications

  (1)   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

  (2)   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.

68   Only one determination of native title per area

    If there is an approved determination of native title (the first determination ) in relation to a particular area, the Federal Court must not:

  (a)   conduct any proceeding relating to an application for another determination of native title; or

  (b)   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:

  (c)   an application as mentioned in subsection 13(1) to revoke or vary the first determination; or

  (d)   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.

Division 1A -- Other applications to the Federal Court

69   Applications that may be made

  (1)   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

  (2)   This Division also applies to any other application to the Federal Court in relation to a matter arising under this Act.

70   Federal Court Rules about applications etc.

Federal Court Rules

  (1)   The application must be filed in the Federal Court and must comply with any Rules of the Federal Court about:

  (a)   the form of the application; or

  (b)   information to be contained in the application; or

  (c)   documents that must accompany the application; or

  (d)   any other matter relating to the application.

Prescribed fees

  (2)   The application must be accompanied by any prescribed fee.

Division 2 -- Applications to the National Native Title Tribunal: right to negotiate

75   Right to negotiate applications

    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:

76   Material and fees to accompany applications

    An application must:

  (a)   be in the prescribed form; and

  (b)   be given to the Registrar; and

  (c)   contain such information in relation to the matters sought to be determined as is prescribed; and

  (d)   be accompanied by any prescribed documents and any prescribed fee.

77   Action to be taken in relation to applications

    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.

Division 2A -- Applications to the Native Title Registrar: objections against registration of indigenous land use agreements

77A   Material and fees to accompany applications

    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:

  (a)   be in the prescribed form; and

  (b)   be given to the Registrar; and

  (c)   state reasons why it would not be fair and reasonable to register the agreement; and

  (d)   be accompanied by any prescribed documents and any prescribed fee.

77B   Action to be taken in relation to applications

    If an application complies with section 77A, the Registrar must accept the application.

Division 3 -- Miscellaneous

78   Assistance in relation to proceedings

Native Title Registrar may assist applicants, respondents etc.

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

  (a)   help people prepare applications and accompanying material and to help them, at any stage of a proceeding, in matters related to the proceeding; and

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

Types of assistance

  (2)   Without limiting subsection (1), the assistance may include:

  (a)   providing research services; or

  (b)   conducting searches of registers or other records of current or former interests in land or waters.

No assistance to search own registers etc.

  (3)   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.

79   Requests for non - monetary compensation

Requests must be considered

  (1)   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:

  (a)   must consider the proposal; and

  (b)   must negotiate in good faith in relation to the proposal.

Examples of non - monetary compensation

  (2)   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.

19   Division 1 of Part 4

Repeal the Division, substitute:

Division 1 -- Overview of Part

79A   Overview of Part

    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:

  (a)   referring applications to the NNTT for mediation (see Division 1B);

  (b)   agreements and unopposed applications (see Division 1C);

  (c)   conferences (see Division 2);

  (d)   orders (see Division 3).

Division 1A -- General

80   Operation of Part

    The provisions of this Part apply in proceedings in relation to applications filed in the Federal Court that relate to native title.

81   Jurisdiction of the Federal Court

    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.

82   Federal Court's way of operating

Rules of evidence

  (1)   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

  (2)   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.

83   Assessor assisting the Federal Court

Assessor to assist Court

  (1)   The Chief Justice may direct an assessor to assist the Federal Court in relation to a proceeding.

Assessor subject to Court's control

  (2)   The assessor is, in relation to that proceeding, subject to the control and direction of the Court.

Assessor not to exercise judicial power

  (3)   In assisting the Court, the assessor is not to exercise any judicial power of the Court.

83A   Federal Court may request searches to be conducted

Request to State Minister or Territory Minister

  (1)   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

  (2)   However, if:

  (a)   no State Minister or Territory Minister is a party to the proceeding; or

  (b)   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.

84   Parties

Coverage of section

  (1)   This section applies to proceedings in relation to applications to which section 61 applies.

Applicant

  (2)   The applicant is a party to the proceedings.

Affected persons

  (3)   Another person is a party to the proceedings if:

  (a)   any of the following applies:

  (i)   the person is covered by paragraph 66(3)(a);

  (ii)   the person claims to hold native title in relation to land or waters in the area covered by the application;

  (iii)   the person's interests may be affected by a determination in the proceedings; and

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

State or Territory Ministers

  (4)   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

  (5)   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.

Persons wanting to exercise public right of access or use

  (5A)   If:

  (a)   a person wants to become a party to the proceedings; and

  (b)   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:

  (c)   may make appropriate orders to ensure that the person's interests are properly represented in the proceedings; but

  (d)   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

  (6)   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.

Parties may withdraw with leave of Federal Court

  (7)   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

  (8)   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

  (9)   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:

  (a)   the following apply:

  (i)   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

  (ii)   the person's interests are properly represented in the proceedings by another party; or

  (b)   the person never had, or no longer has, interests that may be affected by a determination in the proceedings.

84A   Intervention by Commonwealth Minister

Commonwealth Minister may intervene

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

Court may order costs against Commonwealth

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

Commonwealth Minister taken to be a party for purposes of appeal

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

Court may order costs against Commonwealth if Commonwealth Minister appeals

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

84B   Parties may appoint an agent

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

Body may act for 2 or more parties

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

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

84C   Striking out applications for failure to comply with requirements of this Act

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

  (2)   The Court must, before any further proceedings take place in relation to the main application, consider the application made under subsection (1).

Registrar of Court to advise Native Title Registrar of application etc.

  (3)   The Registrar of the Court 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

  (4)   This section does not prevent the making of any other application to strike out the main application.

85   Representation before Federal Court

    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.

85A   Costs

  (1)   Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs.

Unreasonable conduct

  (2)   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.

86   Evidence and findings in other proceedings

    Subject to subsection 82(1), the Federal Court may:

  (a)   receive into evidence the transcript of evidence in any other proceedings before:

  (i)   the Court; or

  (ii)   another court; or

  (iii)   the NNTT; or

  (iv)   a recognised State/Territory body; or

  (v)   any other person or body;

    and draw any conclusions of fact from that transcript that it thinks proper; and

  (b)   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

  (c)   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).

Division 1B -- Reference to NNTT for mediation

86A   Purpose of mediation

Proceeding not involving compensation

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

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

  (b)   if native title exists or existed in relation to the area of land or waters covered by the application:

  (i)   who holds or held the native title;

  (ii)   the nature, extent and manner of exercise of the native title rights and interests in relation to the area;

  (iii)   the nature and extent of any other interests in relation to the area;

  (iv)   the relationship between the rights and interests in subparagraphs (ii) and (iii) (taking into account the effects of this Act);

  (v)   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

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

  (a)   the matters set out in paragraphs (1)(a) and (b) in relation to the area of land or waters covered by the application;

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

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

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

  (e)   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.

86B   Referral of matters to NNTT for mediation

Federal Court must refer applications to mediation

  (1)   Unless an order is made under subsection (2) that there be no mediation, the Federal Court must refer every application under section 61 to the NNTT for mediation, including the ascertaining of agreed facts, as soon as practicable after the end of the period specified in the notice under section 66.

Court may order no mediation

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

No mediation if it will be unnecessary etc.

  (3)   The Court, upon application under subsection (2) or if it is considering making an order of its own motion, must order that there be no mediation in relation to the whole of the proceeding or a part of the proceeding if the Court considers that:

  (a)   any mediation will be unnecessary in relation to the whole or that part, whether because of an agreement between the parties about the whole or the part of the proceeding or for any other reason; or

  (b)   there is no likelihood of the parties being able to reach agreement 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

  (c)   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

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

  (a)   the number of parties;

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

  (c)   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;

  (d)   the size of the area involved;

  (e)   the nature and extent of any non-native title rights and interests in relation to the land and waters in the area;

  (f)   any other factor that the Court considers relevant.

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

  (5)   In addition to referring a proceeding to mediation under subsection (1), the Court may, at any time in a proceeding, refer the whole or a part of the proceeding to the NNTT for mediation if the Court considers that the parties will be able to reach agreement on, or on facts relevant to, any of the matters set out in subsection 86A(1) or (2).

86C   Cessation of mediation

Court may order mediation to cease

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

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

  (b)   there is no likelihood of the parties being able to reach agreement 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.

Party may seek cessation of mediation

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

Where Court must order mediation to cease

  (3)   If the party making the application is:

  (a)   the applicant in relation to the application under section 61; or

  (b)   the Commonwealth, a State or a Territory;

the Court must make an order that mediation 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

  (4)   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 is likely to be successful as mentioned in subsection (3).

Court to consider NNTT report

  (5)   The Court, in deciding whether to make an order under subsection (1), (3) or (4), must take into account any report provided by the NNTT under section 86E or by the presiding member of the NNTT under subsection 136G(3).

86D   Federal Court's powers

Court may determine fact or law

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

Note:   Under subsection 136D(1), the presiding member of the NNTT may refer to the Federal Court a question of fact or law that arises during mediation.

Court may adopt agreement on facts

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

86E   Federal Court may request reports from NNTT

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

Division 1C -- Agreements and unopposed applications

86F   Agreement to settle application etc.

Parties may negotiate for agreement

  (1)   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:

  (a)   the application being withdrawn or amended;

  (b)   the parties to the proceeding being varied;

  (c)   any other thing being done in relation to the application.

The agreement may involve matters other than native title.

Assistance by NNTT

  (2)   The parties may request assistance from the NNTT in negotiating the agreement.

Court may order adjournment to help negotiations

  (3)   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

  (4)   The Federal Court may order that the adjournment end. It may do so:

  (a)   on its own motion; or

  (b)   on application by a party; or

  (c)   if the NNTT reports that the negotiations are unlikely to succeed.

Court's powers not limited

  (5)   Subsection (3) does not limit the Federal Court's powers to order an adjournment.

86G   Unopposed applications

Federal Court may make order

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

  (a)   the application is unopposed; and

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

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

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).

Meaning of unopposed

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

87   Power of Federal Court if parties reach agreement

Power of Court

  (1)   If, at any stage of proceedings after the end of the period specified in the notice given under section 66:

  (a)   agreement is reached between the parties on the terms of an order of the Federal Court in relation to:

  (i)   the proceedings; or

  (ii)   a part of the proceedings; or

  (iii)   a matter arising out of the proceedings; and

  (b)   the terms of the agreement, in writing signed by or on behalf of the parties, are filed with the Court; and

  (c)   the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court;

the Court may, if it appears to it to be appropriate to do so, act in accordance with whichever of subsection (2) or (3) is relevant in the particular case.

Agreement as to order

  (2)   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

  (3)   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.

20   After section 94

Insert:

94A   Order containing determination of native title

    An order in which the Federal Court makes a determination of native title must set out details of the matters mentioned in section 225 (which defines determination of native title ).

21   After section 97

Insert:

97A   Searches for Federal Court etc.

    The Registrar has the power to conduct, or arrange for the conducting of, searches:

  (a)   as requested by the Federal Court under section 83A; or

  (b)   for the purposes of section 190A or any other provision of this Act.

22   Section 98

Repeal the section, substitute:

98   Powers of Registrar--registers

    The Registrar has the powers set out in Parts 7, 8 and 8A in relation to the Register of Native Title Claims, the National Native Title Register and the Register of Indigenous Land Use Agreements.

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

Registrar may keep other records and information

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

Certain information to be confidential

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

Concerns of Aboriginal peoples and Torres Strait Islanders

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

23   After subsection 108(1)

Insert:

Mediation for Federal Court proceedings

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

Requests for assistance or mediation

  (1B)   The Tribunal has the function of providing assistance or mediating in accordance with any provision of this Act.

24   Subsection 109(2)

Repeal the subsection, substitute:

Concerns of Aboriginal peoples and Torres Strait Islanders

  (2)   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.

25   Subsection 109(3)

Omit "conducting an inquiry", substitute "carrying out its functions".

26   Section 110 (table, column dealing with persons who may be appointed, row dealing with presidential members)

Add:

27   Subsection s 1 22(1) and (3)

Omit "Part 4", substitute "Part 3".

28   Subsection 123(1)

Omit "sections 69 and", substitute "section".

29   Paragraph 123(1)(b)

Repeal the paragraph, substitute:

  (b)   the persons who are to conduct mediation in a particular proceeding, or to provide assistance in making or negotiating agreements under this Act;

30   Paragraph 123(1)(c)

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

31   Subsection 124(1)

Omit "Subject to section 69, the", substitute "The".

32   Subdivision B of Division 4 of Part 6 (heading)

Repeal the heading, substitute:

Subdivision B -- Other officers, Tribunal staff and consultants

33   After section 131

Insert:

131A   President may engage consultants

  (1)   The President may engage a person as a consultant in relation to any assistance or mediation that the Tribunal provides under any provision of this Act.

Consultants to have relevant skills or knowledge

  (2)   The President may only engage a person under subsection (1) if:

  (a)   the person has, in the opinion of the President, particular skills or knowledge in relation to matters of substantial relevance to the assistance or mediation; and

  (b)   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

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

  (a)   on behalf of the Commonwealth; and

  (b)   by written agreement.

Consultant subject to President's direction

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

Note 1:   The heading to section 132 is replaced by the heading " Registrar may engage consultants ".

Note 2:   The heading to subsection 132(1) is omitted.

131B   Disclosure of interests

Consultant to disclose conflict of interest

  (1)   A person engaged under subsection 131A(1) as a consultant in relation to any assistance or mediation being provided by the Tribunal who has a conflict of interest in relation to the assistance or mediation must disclose the matters giving rise to that conflict to:

  (a)   the President of the Tribunal; and

  (b)   the persons to whom the Tribunal is providing the assistance or mediation.

Requirement for consent

  (2)   The person must not perform his or her duties as a consultant in relation to the assistance or mediation unless the President and the persons to whom the Tribunal is providing the assistance or mediation consent.

Meaning of conflict of interest

  (3)   For the purposes of this section, a person engaged under subsection 131A(1) as a consultant in relation to any assistance or mediation being provided by the Tribunal has a conflict of interest in relation to the assistance or mediation 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 or mediation.

Conflict of interest at a particular time

  (4)   Without limiting subsection (3), a person engaged under subsection 131A(1) as a consultant in relation to any assistance or mediation being provided by the Tribunal has a conflict of interest at a particular time in relation to the assistance or mediation if:

  (a)   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 or mediation is being provided; or

  (b)   at any time in the 12 months immediately before that time, the person was so employed or engaged.

34   After section 136

Insert:

Division 4A -- Mediation conferences

136A   Mediation conferences

President to direct conference to be held

  (1)   If the Federal Court refers the whole or a part of a proceeding to the Tribunal under section 86B for mediation, the Tribunal may hold such conferences of the parties or their representatives as the Tribunal considers will help in resolving the matter.

Member must preside

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

Assistance for presiding member

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

Statements at conference are without prejudice

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

Member not to take further part in relation to a proceeding

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

Participation by telephone etc.

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

  (a)   telephone; or

  (b)   closed - circuit television; or

  (c)   any other means of communication.

Division applies as if consultant were a member

  (7)   If 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 Tribunal.

136B   Parties at conferences

Limiting parties at conferences

  (1)   The presiding member may direct that only one or some of the parties may attend, and be represented, at a conference.

Excluding parties from conferences

  (2)   If the presiding member considers that:

  (a)   a party, or a party's representative, at a conference is disrupting or hindering the conference; or

  (b)   excluding a party, or a party's representative, from a conference would help to resolve matters;

the member may direct that the party or representative not attend at that conference or at other conferences.

Parties may be represented

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

136C   Other persons attending or participating in conferences

    The presiding member may, with the consent of all of the parties present at a conference:

  (a)   direct that other persons be permitted to attend as observers of the conference; or

  (b)   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.

136D   Referral of questions of fact or law

Reference of questions to Federal Court

  (1)   Subject to subsections (2) and (3), if the presiding member 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 the NNTT refers to it.

Presiding member not a consultant

  (2)   If the presiding member is not a consultant engaged under subsection 131A(1), the question may only be referred to the Court under subsection (1) of this section:

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

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

Presiding member a consultant

  (3)   If the presiding member is a consultant engaged under subsection 131A(1), the question may only be referred to the Court under subsection (1) of this section:

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

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

Mediation may continue

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

136E   Conferences to be held in private

    A conference must be held in private, unless the member presiding directs otherwise and no party objects.

136F   Presiding member may prohibit disclosure of information

Power of presiding member

  (1)   The presiding member may direct that:

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

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

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

Applications etc.

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

Presiding member may disclose if parties agree

  (3)   If the parties agree, the presiding member may, despite the direction, disclose things of the kind mentioned in paragraph (1)(a) or (b).

136G   Report to be given to Federal Court

Report after mediation concludes

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

Report requested under section 86E

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

Report to assist the Court

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

Agreement on facts

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

Division 4B -- How assistance or mediation is to be provided

136H   Regulations about assistance or mediation

  (1)   The regulations may make provision in relation to the way in which:

  (a)   any assistance is to be provided by the NNTT under any provision of this Act; or

  (b)   any mediation, that the NNTT is requested to provide, is to be provided under any provision of this Act.

Regulations must be consistent with this Act

  (2)   Such regulations must not be inconsistent with Division 4A or any other provision of this Act.

35   Paragraph 139(a)

Repeal the paragraph.

36   At the end of section 139

Add:

  ; or (d)   if a person has made an application under subsection 24DJ(1) objecting against registration of an indigenous land use agreement 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).

37   Subsection 141(1)

Repeal the subsection.

38   At the end of section 141

Add:

Registration of indigenous land use agreements

  (4)   The parties to an inquiry into whether a person satisfies the Tribunal that it would not be fair and reasonable to register an indigenous land use agreement are:

  (a)   the person; and

  (b)   the parties to the agreement; and

  (c)   any other person who satisfies the Tribunal that his or her interests are affected by the agreement.

39   Section 148

Repeal the section, substitute:

148   Power of Tribunal where no jurisdiction, failure to proceed etc.

    The Tribunal may dismiss an application, at any stage of an inquiry relating to the application, if:

  (a)   the Tribunal is satisfied that it is not entitled to deal with the application; or

  (b)   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.

40   After section 149

Insert:

149A   Power of Tribunal to reinstate 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.

41   At the end of section 151

Add:

Determinations "on the papers"

  (2)   The Tribunal may:

  (a)   decide for the purposes of paragraph 24DL(2)(c) whether it would be fair and reasonable to register an agreement; or

  (b)   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.

42   Subsection 154(1)

Omit "an inquiry", substitute "a hearing".

Note 1:   The heading to section 154 is altered by omitting " Inquiries " and substituting " Hearings ".

Note 2:   The heading to subsection 154(1) is altered by omitting " inquiries " and substituting " hearings ".

43   Subsection 154(3)

Omit "an inquiry, or a part of an inquiry,", substitute "a hearing, or part of a hearing,".

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

44   Subsection 154(4)

Omit "an inquiry or part of an inquiry", substitute "a hearing or part of a hearing".

45   Section s 1 60, 161 and 165

Repeal the sections.

46   Subdivision E of Division 5 of Part 6

Repeal the Subdivision.

47   Subsection s 1 69(2) and (3)

Repeal the subsections, substitute:

Appeal from Tribunal decision--indigenous land use agreement registration

  (2)   A party to an inquiry relating to registration of an indigenous land use agreement before the Tribunal may appeal to the Federal Court, on a question of law, from any decision of the Tribunal in that proceeding.

Note:   The heading to subsection 169(1) is altered by omitting " the ".

48   Section 176

After "section 92", insert ", 136F".

49   Paragraph 177(a)

Omit "or a member", substitute ", a member or a consultant engaged under subsection 131A(1)".

50   Section 178

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

51   After subsection 180(1)

Insert:

Protection of consultants

  (1A)   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.

52   Section 181

Repeal the section, substitute:

181   Confidential information not to be disclosed

Persons to whom section applies

  (1)   This section applies to a person who is a member or officer of the Tribunal or a consultant engaged under subsection 131A(1).

Persons not competent etc. to give evidence

  (2)   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:

  (a)   the giving of the evidence would be contrary to a direction of the Tribunal in force under section 155 or to a direction of the presiding member under subsection 136F(1); or

  (b)   an application has been made to the Tribunal for a direction under section 155, or to the presiding member for a direction under section 136F, concerning the matter to which the evidence would relate and the Tribunal or the presiding member has not determined that application.

Persons not required to produce documents

  (3)   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:

  (a)   the production of the document would be contrary to a direction of the Tribunal in force under section 155 or to a direction of the presiding member under subsection 136F(1); or

  (b)   an application has been made to the Tribunal for a direction under section 155, or to the presiding member for a direction under section 136F, in relation to the document and the Tribunal or the presiding member has not determined that application.

Persons not required to give evidence

  (4)   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

  (5)   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.

53   Section 183

Repeal the section, substitute:

183   Assistance from Attorney - General

Assistance in relation to inquiries etc.

  (1)   A person who is a party, or who intends to apply to be a party, to an inquiry, mediation or proceeding related to native title may apply to the Attorney-General for the provision of assistance under this section in relation to the inquiry, mediation or proceeding.

Assistance in relation to agreements and disputes

  (2)   A person who:

  (a)   is or intends to become a party to an indigenous land use agreement or an agreement about rights conferred under subsection 44B(1); or

  (b)   is in dispute with any other person about rights conferred under subsection 44B(1);

may apply to the Attorney - General for the provision of assistance under this section in relation to:

  (c)   negotiating the agreement; or

  (d)   any inquiry, mediation or proceeding in relation to the agreement; or

  (e)   resolving the dispute.

Attorney-General may grant assistance

  (3)   If the Attorney-General is satisfied that:

  (a)   the applicant is not eligible to receive assistance in relation to the matter concerned from any other source (including from a representative Aboriginal/Torres Strait Islander body); and

  (b)   the provision of assistance to the applicant in relation to the matter concerned is in accordance with the guidelines (if any) determined under subsection (4); and

  (c)   in all the circumstances, it is reasonable that the application be granted;

the Attorney-General may authorise the provision by the Commonwealth to the applicant, either unconditionally or subject to such conditions as the Attorney-General determines, of such legal or financial assistance as the Attorney-General determines.

Attorney-General may determine guidelines

  (4)   The Attorney-General may, in writing, determine guidelines that are to be applied in authorising the provision of assistance under this section.

Assistance not to be provided to Ministers

  (5)   The Attorney-General cannot authorise the provision of assistance under this section to the Commonwealth Minister, a State Minister or a Territory Minister.

Assistance not to be provided to native title claimants etc.

  (6)   The Attorney - General must not authorise the provision of assistance under this section to a person in relation to:

  (a)   any claim by the person, in an inquiry, mediation or proceeding, to hold native title or to be entitled to compensation in relation to native title; or

  (b)   an indigenous land use agreement, if the person holds or claims to hold native title in relation to the area covered by the agreement; or

  (c)   an agreement or dispute about rights conferred under subsection 44B(1), if the person is included in the native title claim group concerned.

Delegation by Attorney - General

  (7)   The Attorney-General may, in writing, delegate any or all of his or her powers under subsection (3) to:

  (a)   the Secretary of the Department; or

  (b)   a person engaged under the Public Service Act 1997 who occupies a specified position in the Department.

54   Section 184

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

55   Subsection 185(2)

Before "Registrar", insert "Native Title".

56   Subsection 186(1)

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

57   Paragraph 186(1)(a)

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

58   Paragraph 186(1)(c)

After "was", insert "filed or".

59   After paragraph 186(1)(c)

Insert:

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

60   Paragraph 186(1)(d)

Omit "person who is taken to be the claimant", substitute "applicant".

61   After paragraph 186(1)(f)

Insert:

  ; (g)   a description of the native title rights and interests in the claim that:

  (i)   the Registrar in applying subsection 190B(6); or

  (ii)   a recognised State/Territory body in applying provisions equivalent to that subsection;

    considered, prima facie, could be established.

62   At the end of subsection 188(1)

Add:

Note:   Such information must not be made available to the public: see subsection 98A(2).

63   Subsection 188(2)

Repeal the subsection.

64   Section s 1 89 and 190

Repeal the sections, substitute:

189   Senior Registrar of the High Court to notify Registrar

    The Senior Registrar of the High Court must, as soon as is practicable, notify the Registrar of the details of any decision or determination made by the High Court that covers a claim.

189A   Registrar of Federal Court to notify Native Title Registrar

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

  (a)   the withdrawal of an application that contains a claim (whether or not covered by an entry on the Register); and

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

190   Keeping the Register

Registrar to include claims

  (1)   The Native Title Registrar must, as soon as practicable, include in the Register:

  (a)   details of any claims accepted for registration by the Registrar under section 190A; and

  (b)   details of any claims that have been found to satisfy conditions equivalent to those set out in section s 1 90B and 190C, being claims of which the Registrar is notified by a recognised State/Territory body.

Amending Register after amendment of claims: recognised bodies

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

  (a)   if the claim as set out in the amended application has been found to satisfy conditions equivalent to those set out in section s 1 90B and 190C--amend the Register to reflect the amendment; or

  (b)   if the claim as set out in the amended application has been found not to satisfy conditions equivalent to those set out in section s 1 90B and 190C--amend the Register to remove any entry relating to the claim.

Amending Register after amendment of claims: other cases

  (3)   If the Registrar is given a copy of an amended application under subsection 64(4) that contains a claim or amends a claim, the Registrar must, as soon as practicable:

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

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

Amending Register where additional information provided

  (3A)   If:

  (a)   the Registrar accepts for registration a claim made in an application under section 63 or an amended application under subsection 64(4); and

  (b)   in accordance with this section, the Registrar includes in the Register details of the claim and a description of the nature and extent of the native title rights and interests concerned; and

  (c)   afterwards, but before a native title determination in relation to the application or amended application is made, the applicant provides to the Registrar further information relating to any native title rights and interests that were claimed in the application but whose details and description were not included in the Register; and

  (d)   the Registrar considers that, if the information had been provided before the claim had been accepted for registration, the details and description would have been included in the Register;

the Registrar must amend the Register to include the details and description.

Entries removed or amended after determination, decision or withdrawal

  (4)   If:

  (a)   the Registrar is notified under section 189 or 189A of a decision or determination covering a claim; or

  (b)   the Registrar is notified by a recognised State/Territory body of a decision or determination covering a claim; or

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

the Registrar must, as soon as practicable:

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

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

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

190A   Registrar to consider claims

Claims made to Federal Court

  (1)   If the Registrar is given a copy of a claimant application under section 63 or subsection 64(4), the Registrar must, in accordance with this section, consider the claim made in the application.

Note:   In the case of an amended application (under subsection 64(4)), the Registrar would be required to consider the claim in the amended application even if the Registrar had already accepted for registration the claim in the original application. In such a case, if the claim in the amended application were then accepted for registration, the Registrar would be required under subsection 190(3) to amend the Native Title Register to reflect the amendment.

Effect of section 29 notice

  (2)   If, either before the Registrar begins to do so or while he or she is doing so, a notice is given under section 29 in relation to an act affecting any of the land or waters in the area covered by the application, the Registrar must use his or her best endeavours to finish considering the claim by the end of 4 months after the notification day specified in the notice.

Information to be considered

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

  (a)   information contained in the application and in any other documents provided by the applicant; and

  (b)   any information obtained by the Registrar as a result of any searches conducted by the Registrar of registers of interests in relation to land or waters maintained by the Commonwealth, a State or a Territory; and

  (c)   to the extent that it is reasonably practicable to do so in the circumstances--any information supplied by the Commonwealth, a State or a Territory, that, in the Registrar's opinion, is relevant to whether any one or more of the conditions set out in section 190B or 190C are satisfied in relation to the claim;

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

Information about other rights and interests

  (4)   Without limiting subsection (3), information mentioned in that subsection may include information about current or previous non - native title rights and interests in, or in relation to, the land or waters in the area covered by the application.

Effect of paragraph (3)(b)

  (5)   The fact that no information of the kind referred to in paragraph (3)(b) has been supplied at a particular time does not prevent the Registrar accepting a claim for registration under this section.

Notification about amending application

  (5A)   Before the Registrar has decided whether or not to accept the claim for registration, he or she may notify the applicant that the application may be amended under the Federal Court Rules.

Test for registration

  (6)   The Registrar must accept the claim for registration if the claim satisfies all of the conditions in:

  (a)   section 190B (which deals mainly with the merits of the claim); and

  (b)   section 190C (which deals with procedural and other matters).

In any other case, the Registrar must not accept the claim for registration.

Note:   The fact that the Registrar is considering the claim under this section does not mean that the application cannot be amended: see subsection 64(3).

Effect of withdrawal etc. of application

  (7)   If:

  (a)   before the Registrar has decided whether or not to accept the claim for registration; or

  (b)   after the Registrar has decided to accept the claim for registration but before the Registrar has included details of the claim in the Register of Native Title Claims;

the Registrar is notified under section 189 or 189A of a decision or determination to the effect that the application has been dismissed or otherwise finalised, or is notified that the application has been withdrawn, the Registrar must not:

  (c)   decide whether or not to accept the claim for registration; or

  (d)   enter the details in the Register;

as the case requires.

190B   Registration: conditions about merits of the claim

  (1)   This section contains the conditions mentioned in paragraph 190A(6)(a).

Identification of area subject to native title

  (2)   The Registrar must be satisfied that the information and map contained in the application as required by paragraphs 62(2)(a) and (b) are sufficient for it to be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters.

Identification of native title claim groups

  (3)   The Registrar must be satisfied that:

  (a)   the persons in the native title claim group are named in the application; or

  (b)   the persons in that group are described sufficiently clearly so that it can be ascertained whether any particular person is in that group.

Identification of claimed native title

  (4)   The Registrar must be satisfied that the description contained in the application as required by paragraph 62(2)(d) is sufficient to allow the native title rights and interests claimed to be readily identified.

Factual basis for claimed native title

  (5)   The Registrar must be satisfied that the factual basis on which it is asserted that the native title rights and interests claimed exist is sufficient to support the assertion. In particular, the factual basis must support the following assertions:

  (a)   that the native title claim group have, and the predecessors of those persons had, an association with the area; and

  (b)   that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests; and

  (c)   that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs.

Prima facie case

  (6)   The Registrar must consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established.

Note:   If the claim is accepted for registration, the Registrar must, under paragraph 186(1)(g), enter on the Register of Native Title Claims details of only those claimed native title rights and interests that can, prima facie, be established. Only those rights and interests are taken into account for the purposes of subsection 31(2) (which deals with negotiation in good faith in a "right to negotiate" process) and subsection 39(1) (which deals with criteria for making arbitral body determinations in a "right to negotiate" process).

Physical connection

  (7)   The Registrar must be satisfied that at least one member of the native title claim group:

  (a)   currently has or previously had a traditional physical connection with any part of the land or waters covered by the application; or

  (b)   previously had and would reasonably have been expected currently to have a traditional physical connection with any part of the land or waters but for things done (other than the creation of an interest in relation to land or waters) by:

  (i)   the Crown in any capacity; or

  (ii)   a statutory authority of the Crown in any capacity; or

  (iii)   any holder of a lease over any of the land or waters, or any person acting on behalf of such a holder of a lease.

No failure to comply with section 61A

  (8)   The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that, because of section 61A (which forbids the making of applications where there have been previous native title determinations or exclusive or non - exclusive possession acts), the application should not have been made.

No extinguishment etc. of claimed native title

  (9)   The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that:

  (a)   to the extent that the native title rights and interests claimed consist of or include ownership of minerals, petroleum or gas--the Crown in right of the Commonwealth, a State or a Territory wholly owns the minerals, petroleum or gas; or

  (b)   to the extent that the native title rights and interests claimed relate to waters in an offshore place--those rights and interests purport to exclude all other rights and interests in relation to the whole or part of the offshore place; or

  (c)   in any case--the native title rights and interests claimed have otherwise been extinguished (except to the extent that the extinguishment is required to be disregarded under subsection 47(2), 47A(2) or 47B(2)).

190C   Registration: conditions about procedural and other matters

  (1)   This section contains the conditions mentioned in paragraph 190A(6)(b).

Information etc. required by sections 61 and 62

  (2)   The Registrar must be satisfied that the application contains all details and other information, and is accompanied by any affidavit or other document, required by sections 61 and 62.

No previous overlapping claim groups

  (3)   The Registrar must be satisfied that no person included in the native title claim group for the application (the current application ) was a member of the native title claim group for any previous application, if:

  (a)   the previous application covered the whole or part of the area covered by the current application; and

  (b)   an entry relating to the claim in the previous application was on the Register of Native Title Claims when the current application was made; and

  (c)   the entry was made, or not removed, as a result of consideration of the previous application under section 190A.

Identity of claimed native title holders

  (4)   The Registrar must be satisfied that either of the following is the case:

  (a)   the application has been certified under paragraph 202(4)(d) by each representative Aboriginal/Torres Strait Islander body that could certify the application in performing its functions under that Part; or

  (b)   the applicant is a member of the native title claim group and is authorised to make the application, and deal with matters arising in relation to it, by all the other persons in the native title claim group.

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

Requirements for uncertified applications

  (5)   If the application has not been certified as mentioned in paragraph (4)(a), the Registrar cannot be satisfied that the condition in subsection (4) has been satisfied unless the application:

  (a)   includes a statement to the effect that the requirement set out in paragraph (4)(b) has been met; and

  (b)   briefly sets out the grounds on which the Registrar should consider that it has been met.

Overlapping representative body areas

  (6)   Paragraph (4)(a) does not require certification by a particular representative Aboriginal/Torres Strait Islander body that could certify the application in performing its functions if:

  (a)   the application has been certified under paragraph 202(4)(d) by another representative Aboriginal Torres/Strait Islander body whose area includes all of the area of land or waters, to which the application relates, that is within the first - mentioned body's area; or

  (b)   the application has been certified under paragraph 202(4)(d) by 2 or more other representative Aboriginal/Torres Strait Islander bodies whose areas, when combined, include all of the area of land or waters, to which the application relates, that is within the first - mentioned body's area.

Definition of area

  (7)   In subsection (6):

"area" , in relation to a representative Aboriginal/Torres Strait Islander body, means the area in relation to which the body has been determined under section 202 to be a representative Aboriginal/Torres Strait Islander body.

190D   If the claim cannot be registered

  (1)   If the Registrar does not accept the claim for registration, the Registrar must, as soon as practicable, give the applicant and the Federal Court written notice of his or her decision not to accept the claim, including a statement of the reasons for the decision.

Content of notice where failure to satisfy physical connection test

  (1A)   If the only reason why the Registrar cannot accept the claim for registration is that the condition in subsection 190B(7) (which is about a physical connection with the claim area) is not satisfied, the notice must advise the applicant of the applicant's right to make an application to the Federal Court under subsection (2) and of the power of the Court to make an order in accordance with subsection (4) in respect of the application.

Applicant may apply to Federal Court for review

  (2)   If the Registrar gives the applicant a notice under subsection (1), the applicant may apply to the Federal Court for a review of the Registrar's decision not to accept the claim.

Federal Court has jurisdiction

  (3)   The Court has jurisdiction to hear and determine an application made to it under subsection (2).

Court order where physical connection test failed

  (4)   If, on an application under subsection (2) in a case to which subsection (1A) applies, the Court is satisfied that:

  (a)   prima facie, at least some of the native title rights and interests claimed in the application can be established; and

  (b)   at some time in his or her lifetime, at least one parent of one member of the native title claim group had a traditional physical connection with any part of the land or waters and would reasonably have been expected to have maintained that connection but for things done (other than the creation of an interest in relation to land or waters) by:

  (i)   the Crown in any capacity; or

  (ii)   a statutory authority of the Crown in any capacity; or

  (iii)   any holder of a lease over any of the land or waters, or any person acting on behalf of such a holder of a lease;

the Court may order the Registrar to accept the claim for registration.

Opportunity to be heard

  (5)   Before making an order under subsection (4), the Court must give to any person who is a party to the proceedings in the Court under Part 4 in relation to the application an opportunity to be heard in relation to the making of the order.

65   Section 191

After "Registrar may", insert ", if the State or Territory concerned agrees,".

66   Subsection 192(2)

Before "Registrar", insert "Native Title".

67   Paragraph 193(1)(a)

Omit "the NNTT,".

68   Paragraph 193(2)(d)

Repeal the paragraph, substitute:

  (d)   the matters determined, including:

  (i)   whether or not native title exists in relation to the land or waters covered by the determination; and

  (ii)   if it exists--who the common law holders of the native title are and a description of the nature and extent of the native title rights and interests concerned; and

  (iii)   in the case of an approved determination of native title by the Federal Court, where the determination is that native title exists--the name and address of any prescribed body corporate that holds the native title rights and interests concerned on trust or that is determined under section 57 in relation to the native title; and

  (iv)   in the case of an approved determination of native title by a recognised State/Territory body, where the determination is that native title exists--the name and address of any body corporate that holds the native title rights and interests concerned on trust or that is determined in relation to the native title under a provision of a law of the State or Territory concerned that corresponds to section 57.

69   Section 196

Repeal the section.

70   Subsection 200(1)

Omit all the words before "Commonwealth", substitute "The".

71   Paragraph 200(1)(a)

Omit "arising under Part 2", substitute "for acts affecting native title".

72   Paragraph 200(1)(c)

After "State/Territory body", insert ", or equivalent body (within the meaning of subsection 207B(1)),".

73   Paragraph 206(d)

Omit "at the end of 2 years after the commencement of this Part", substitute "from time to time".

74   Section 207

Omit "at the end of 5 years after the Parliamentary Joint Committee is first appointed", substitute "on 23 March 2004".

75   After Part 12

Insert:

Part 12A -- State/Territory bodies

207B   Equivalent State/Territory bodies

Equivalent bodies

  (1)   This section applies if the State Minister for a State, or the Territory Minister for a Territory, nominates to the Commonwealth Minister one or more offices, tribunals or bodies (each of which is an equivalent body ), established by or under a law of the State or Territory, for the purpose of each performing specified functions or exercising specified powers of the NNTT or the Native Title Registrar, in specified circumstances, under specified equivalent body provisions (see subsection (9)).

Different functions/powers etc.

  (2)   To avoid doubt, the nomination may specify:

  (a)   different functions or powers in relation to different equivalent bodies; or

  (b)   different functions or powers in different circumstances.

Determination

  (3)   The Commonwealth Minister may, in writing, determine that the one or more equivalent bodies are to perform the specified functions or exercise the specified powers in the specified circumstances, under the specified equivalent body provisions.

Criteria to be satisfied

  (4)   In order to ensure that there is a nationally consistent approach to the recognition and protection of native title, the Commonwealth Minister must not make the determination unless the Commonwealth Minister is satisfied that:

  (a)   the one or more equivalent bodies will have available to them, through the bodies' membership, appropriate expertise (including expertise in matters relating to Aboriginal peoples and Torres Strait Islanders) for performing their functions or exercising their powers under the determination; and

  (b)   under the law of the State or Territory, the procedures of the one or more equivalent bodies in performing those functions or exercising those powers will be fair, just, informal, accessible and expeditious; and

  (c)   the one or more equivalent bodies will have adequate resources to enable them to perform those functions or exercise those powers; and

  (ca)   members of the one or more equivalent bodies will enjoy security of tenure no less favourable than that enjoyed by members of the NNTT or the Native Title Registrar, as the case requires; and

  (d)   the law of the State or Territory will enable and require the one or more equivalent bodies to perform those functions or exercise those powers if the Commonwealth Minister makes the determination; and

  (e)   if any of the functions or powers that the one or more equivalent bodies will perform or exercise under the determination involves the maintenance of any register under this Act--the law of the State or Territory will require the functions to be performed or the powers to be exercised in a way that ensures that the register will be maintained in a nationally integrated and accessible manner; and

  (f)   if any of the functions or powers that will be performed or exercised under the determination are those of the NNTT--the law of the State or Territory will require the member or at least one of the members of the equivalent body to be a member of the NNTT; and

  (g)   any other requirement that the Commonwealth Minister considers relevant will be satisfied.

Modified application of Act etc.

  (5)   While the determination is in force, this Act, and Schedule 5 to the Native Title Amendment Act 1998 , have effect, in relation to a function or power of the NNTT or Native Title Registrar specified in the determination, as if, in the specified circumstances:

  (a)   the one or more equivalent bodies had the functions or powers, instead of the NNTT or the Registrar; and

  (b)   if one of the powers specified in the determination is the power to make determinations under Subdivision P of Division 3 of Part 2 of this Act--for the purposes of sections 36A, 36B, 36C and 42 of this Act, the State Minister or the Territory Minister of the relevant State or Territory had the powers of the Commonwealth Minister under that section, instead of the Commonwealth Minister.

Note:   The Administrative Decisions (Judicial Review) Act 1977 will apply to decisions that an equivalent body or a State or Territory Minister may, because of this section, make under this Act to the same extent to which it applies to corresponding decisions of the NNTT, the Native Title Registrar or the Commonwealth Minister under this Act.

Vesting of functions and powers in equivalent bodies

  (6)   While the determination is in force, the functions and powers specified in the determination are vested in the one or more equivalent bodies, in the circumstances set out in the determination.

Revocation of determination

  (7)   If, at any time:

  (a)   the law of the State or Territory is amended; and

  (b)   as a result, the Commonwealth Minister ceases to be satisfied as mentioned in subsection (4) in relation to any or all of the equivalent bodies;

he or she must:

  (c)   advise the State Minister or the Territory Minister concerned in writing of the fact; and

  (d)   if at the end of 90 days, or such longer period as the Commonwealth Minister allows, after doing so, the Commonwealth Minister is still not satisfied as mentioned in subsection (4)--in writing, revoke the determination.

Regulations to make transitional provisions

  (8)   The regulations may prescribe any modifications of this Act that are necessary or convenient to deal with transitional matters arising from the making or revocation of determinations under this section.

Equivalent body provisions

  (9)   The equivalent body provisions are:

  (a)   all of the provisions of this Act, except the following:

  (i)   this section;

  (ii)   Part 5;

  (iii)   the provisions of Part 6, other than subsection 136D(1) and section s 1 39, 145, 169, 178 and 179; and

  (b)   Schedule 5 to the Native Title Amendment Act 1998 .

76   After paragraph 215(2)(a)

Insert:

  (aa)   the regulations may make provision:

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

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

77   Subparagraph 215(2)(b)(i)

Before "Registrar", insert "Native Title".

78   After subparagraph 215(2)(b)(i)

Insert:

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

79   Section 222 (table)

Repeal the table, substitute:

80   Section 225

Repeal the section, substitute:

225   Determination of native title

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

  (a)   who the persons, or each group of persons, holding the common or group rights comprising the native title are; and

  (b)   the nature and extent of the native title rights and interests in relation to the determination area; and

  (c)   the nature and extent of any other interests in relation to the determination area; and

  (d)   the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and

  (e)   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.

81   Subsection 226(2)

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

82   Subsection 226(3)

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

83   Subparagraph 251(2)(a)(ii)

Omit "and".

84   Subparagraph 251(2)(a)(iii)

Repeal the subparagraph.

85   After paragraph 251(2)(a)

Insert:

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

  (ab)   the law of the State or Territory will require a decision to be made whether a claim in respect of native title satisfies conditions equivalent to those set out in section s 1 90B and 190C; and

86   Paragraph 251(2)(g)

Repeal the paragraph.

87   After subparagraph 251(2)(i)(i)

Insert:

  (ia)   any claims contained in any such applications (including amended applications) that have been found to satisfy conditions equivalent to those set out in section s 1 90B and 190C; and

  (ib)   any amendments of applications covered by subparagraph (ia), if the claims contained in the application as amended have been found not to satisfy conditions equivalent to those set out in section s 1 90B and 190C; and

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

88   Paragraph 251(4)(b)

After "90 days", insert ", or such longer period as the Commonwealth Minister allows,".

89   Subsection 251(6)

Omit "Division 1 of Part 4", substitute "Division 1A of Part 4".

90   Section 251

After amending the section in accordance with this Schedule, move the section to new Part 12A (so that it appears immediately after the heading to that Part) and re - number the section as 207A.

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

After "law", insert ", or part of a law,".

92   Section 253

Insert:

"applicant" has a meaning affected by subsection 61(2).

93   Section 253

Insert:

"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.

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

Insert:

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

95   Section 253

Insert:

"native title claim group" means:

  (a)   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

  (b)   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.

96   Section 253 (definition of non - claimant application )

Repeal the definition, substitute:

"non-claimant application" means a native title determination application that is not a claimant application.

97   Section 253 (definition of recognised State/Territory body )

Omit "section 251", substitute "section 207A".

98   Section 253 (definition of registered native title body corporate )

Repeal the definition, substitute:

"registered native title body corporate" means:

  (a)   a prescribed body corporate whose name and address are registered on the National Native Title Register under subparagraph 193(2)(d)(iii); or

  (b)   a body corporate whose name and address are registered on the National Native Title Register under subparagraph 193(2)(d)(iv).

99   Section 253 (definition of registered native title claimant )

Repeal the definition, substitute:

"registered native title claimant" , in relation to land or waters, means a person or persons whose name or names appear in an entry on the Register of Native Title Claims as the applicant in relation to a claim to hold native title in relation to the land or waters.

100   Section 253 (definition of unopposed application )

Repeal the definition.

101   Section 253 (at the end of the definition of waters )

Add:

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

Part 2 -- Federal Court of Australia Act 1976

102   After subsection 18AB(2)

Insert:

  (2A)   The Judges, or a majority of them, may also make Rules of Court delegating to the Judicial Registrars all or any of the following powers of the Court:

  (a)   to determine parties to proceedings under the Native Title Act 1993 ;

  (aa)   to hear and determine applications under subsection 50(2) of that Act for determinations of compensation, where:

  (i)   the amount of the compensation to which the applicant claims to be entitled is less than $100,000 or such other amount as is prescribed instead for the purposes of this paragraph; and

  (ii)   at the time the hearing and determination takes place, one or more approved determinations of native title have been made in relation to the whole of the area concerned;

  (b)   to make orders under sections 86D and 87 of that Act.

  (2B)   If, in accordance with subsection (2A), Rules of Court are made delegating to the Judicial Registrars the powers of the Court to hear and determine applications under subsection 50(2) of the Native Title Act 1993 for determinations of compensation as mentioned in paragraph (2A)(aa), the Judges, or a majority of them, may, in respect of any such application, give such directions as they consider appropriate for the purpose of ensuring that, so far as is reasonably practicable, the application is determined as expeditiously and cheaply as possible and without unnecessary formality.

  (2C)   Without limiting the directions that may be made, they may cover all or any of the following:

  (a)   principles and procedures to be applied in hearing and determining the application;

  (b)   referring any matter for mediation;

  (c)   ensuring that the issues in dispute are identified as soon as possible and that the procedures to be applied, and the evidence that may be given, in the proceedings are limited to what is necessary to resolve those issues;

  (d)   limiting the amount of costs of the proceedings that may be awarded against the claimant;

  (e)   requiring some or all of the costs of the claimant to be paid by another party to the proceedings.

103   Subsection s 1 8AB(3), (6) and (7)

After "subsection (1)" (wherever occurring), insert "or (2A)".