2006

Registrar Native Title Registrar

Representative body Representative Aboriginal/Torres Strait Islander body

RNTBC Registered native title body corporate

Native Title Amendment (Technical Amendments) Bill 2007

Outline

On 7 September 2005, the Attorney-General announced a package of six inter‑related reforms to improve the performance of all elements of the native title system. The object of the reforms is to ensure existing native title processes work more effectively and efficiently in securing outcomes for all parties. The primary purpose of this Bill is to implement aspects of three of the six elements of the reform package:

· technical amendments to the Native Title Act 1993 (Native Title Act) to improve existing processes for native title litigation and negotiation

· measures to improve the effectiveness of representative Aboriginal and Torres Strait Islander bodies (representative bodies), and

· measures to encourage the effective functioning of prescribed bodies corporate (PBCs), the bodies established to manage native title once it is recognised.

Schedule 1 of the Bill would make a large number of minor and technical amendments to the Native Title Act. Most of the amendments would clarify or improve existing provisions of the Native Title Act, although some would provide for new processes.

Schedule 2 of the Bill would amend provisions relating to representative bodies to:

· remove corporate governance obligations imposed on representative bodies where these are already imposed under their incorporation statutes

· improve the process for reviewing decisions by representative bodies not to assist native title claimants and holders, and

· simplify and clarify the process for transferring documents from a former Representative Aboriginal/Torres Strait Islander body (representative body) to its replacement.

Schedule 3 of the Bill would partially implement two recommendations of the Report on the Structures and Processes of Prescribed Bodies Corporate (PBC Report) which was released in October 2006. PBCs will be able to charge third-parties a fee for costs associated with negotiations. If the Registrar of Aboriginal Corporations considers that a fee is unrelated to services to be provided, the fee may not be charged. It will also be possible to prescribe a government-funded body to act as a ‘default’ PBC in certain circumstances.

Schedule 4 of the Bill would make a number of changes to the Native Title Act which are consequential to the operation of the Legislative Instruments Act 2003 (Legislative Instruments Act).

Financial impact statement

There is no direct financial impact on Government revenue from this Bill.

NOTES ON CLAUSES

Clause 1: Short title

1. Clause 1 provides for the Act to be cited as the Native Title Amendment (Technical Amendments) Act 2007.

Clause 2: Commencement

2. This clause sets out when the various parts of the Bill commence.

Item 1 of the table provides that clauses 1-3 (the short title, commencement and schedule provisions) commence on Royal Assent.

Items 2 and 4 of the table provide that all items in Schedule 1 of the Bill, except items 90 and 91, commence on proclamation. Schedule 1 contains a large number of minor and technical amendments. The delayed commencement of these provisions is designed to ensure all parties are aware of, and take into account, the relevant changes.

If at the end of six months after Royal Assent these provisions have not been proclaimed to commence, they will come into effect the following day.

Item 3 of the table provides that items 90 and 91 of Schedule 1 will commence immediately after Schedule 2 of the Native Title Amendment Act 2007 (Native Title Amendment Act). The amendments would affect measures in the Native Title Amendment Bill 2006, and so are timed to commence only after passage of that Bill.

Items 5, 7, 8 and 10 of the table provide for most measures in Schedule 2 (representative bodies) and Schedule 3 (PBCs) to commence the day after Royal Assent.

Item 6 of the table provides that item 4 of Schedule 2 of the Bill will commence on
1 July 2007. This will enable item 4 to commence at the same time as a number of other changes to the representative bodies provisions which are provided for in the Native Title Amendment Bill 2006.

Item 9 of the table provides for item 7 of Schedule 3 to commence on 1 July 2008. This is designed to give the Office of the Registrar of Aboriginal Corporations time to develop procedures for implementing the role provided to it by this amendment.

Item 11 of the table provides for Schedule 4 of the Bill to commence at the same time as most of the provisions in Schedule 1 (by proclamation or six months after Royal Assent). Schedule 4 of the Bill contains a number of amendments to the Native Title Act which are consequential to the Legislative Instruments Act.

Clause 3: Schedule(s)

3. This clause makes it clear that the Schedules to the Bill will amend the Acts set out in those Schedules in accordance with the provisions set out in each Schedule.

Schedule 1 – Amendments of the Native Title Act 1993

Overview

Schedule 1 of the Bill would make minor and technical amendments to the Native Title Act. The Schedule contains a large number of separate measures. Most of the amendments would clarify or improve existing provisions of the Native Title Act, although some would provide for new processes.

A number of the amendments relate to future act and Indigenous Land Use Agreement (ILUA) processes. For example, amendments would:

· improve the process for notifying ILUAs

· ensure the National Native Title Tribunal (NNTT) provides a report after an inquiry into an objection to registering an alternative procedure ILUA

· include automatic weather stations as facilities for services to the public for the purposes of the future act regime

· enable the combination of two or more existing leases, licences, permits or authorities to be a ‘permissible renewal’ for the purposes of the future acts regime, and

· enable assistance to be provided by the Native Title Registrar (Registrar) to parties seeking to register an ILUA.

Other amendments will relate to the processes for making and resolving native title claims. For example, amendments would:

· amend application provisions to provide for certain types of information to be provided

· amend notification provisions to ensure appropriate parties are notified of new or amended claims

· streamline the process for replacing the native title applicant in claims

· give the Federal Court of Australia (Court) greater ability to deal with questions about the authorisation of claims which arise during proceedings and ensure native title claimants identify the basis of authorisation for claims

· encourage access by parties to hearings (such as directions hearings) through teleconferences and other facilities, and

· clarify the timeframe in which a respondent may simply withdraw from a proceeding.

Changes will also be made to the obligations of the Registrar in relation to the registration of claims. Amendments would:

· require the timely application of the registration test, particularly where the exercise of procedural rights would flow from registration of a claim

· exempt amended claims from going through the registration test where the amendments would not affect the interests of other parties, such as where the rights and interests being claimed are reduced, and

· provide for de novo review of registration decisions by the Registrar (or delegate), in addition to the existing provision for review by the Court.

Other amendments made by this Schedule would:

· restrict the use of information obtained by the NNTT in exercising its assistance function

· clarify the scope of alternative state regimes under section 43

· make clear that a determination for an alternative state regime must be revoked where that regime ceases to have ongoing effect, thereby ensuring resumption of the right to negotiate provisions of the Native Title Act

· implement changes to sections 87 and 87A in line with Recommendation 9 of the report of the Senate Standing Committee on Legal and Constitutional Affairs (Committee) into the Native Title Amendment Bill 2006

· change notification provisions to ensure that native title holders who are yet to set up a PBC are notified of future acts where the PBC would otherwise have been notified

· clarify that certification of a claim or ILUA by a representative body is still valid if that representative body is subsequently derecognised or ceases to exist

· establish a more flexible scheme for payments held under right to negotiate processes, and

· clarify when information is added to, amended or removed from the registers setting out details of native title claims, determinations and ILUAs.

Finally, the Schedule would make amendments to adjust or remove misleading or ambiguous notes and overview provisions, provide for other notes to be included to assist navigation of the Native Title Act, and amend previous drafting errors.

Part 1—Amendments

Native Title Act 1993

Item 1 – Subsection 13(2) (note)

1.1 Item 1 would repeal and replace the explanatory note to subsection 13(2). Section 13 provides for the institution of proceedings for an approved determination of native title, or revocation or variation of an approved determination. Subsection 13(2) sets out the requirements of the Court in relation to proceedings for compensation where no approved determination of native title has been made.

1.2 A compensation application may be lodged by a registered native title body corporate (RNTBC) or a compensation claim group (see section 61(1)). A PBC only becomes a RNTBC where a determination has been made that native title exists. A compensation claim group may make a compensation application in situations where there is no RNTBC – that is, where no approved determination of native title has been made or where an approved determination has been made that there is no native title.

1.3 The existing note to subsection 13(2) provides that where a claim for compensation is made, and there has previously been no application for a determination of native title, the compensation claimants must include certain information in their claim pursuant to subsection 62(3). However, a compensation claim group may make an application under section 62(3) where an application for a determination of native title has been filed, but no approved determination of native title has yet been made.

1.4 Item 1 would amend the explanatory note to subsection 13(2) to more accurately reflect the operation of the provisions. It would provide that a compensation application must be accompanied by the additional information required under subsection 62(3) where an approved determination of native title has not previously been made in relation to the area concerned.

Item 2 – Subsection 24AA(3)

1.5 Item 2 would repeal and replace subsection 24AA(3). Section 24AA provides an overview of Division 3 of Part 2 of the Native Title Act, which deals with future acts. Existing subsection 24AA(3) states that where parties to an ILUA consent to a future act being done, that future act will be valid. However, the provisions in Division 3 of Part 2 provide that a future act is not valid until the ILUA has been registered (see sections 24EB and 24EBA). Item 2 would amend the subsection to accurately reflect the provisions in the Division, making clear that a future act will be valid if the parties consent to the act being done and the agreement is registered.

Item 3 – After paragraph 24BB(e)

1.6 Item 3 would insert proposed paragraph 24BB(eaa). Division 3 of Part 2 of the Native Title Act provides for three types of ILUAs: body corporate agreements, area agreements and alternative procedure agreements. A body corporate agreement must relate to one or more of the matters set out in section 24BB. Proposed paragraph 24BB(eaa) would expand the matters that a body corporate agreement can cover to include framework agreements. A framework agreement sets the stage for the making of future agreements about matters relating to native title rights and interests. Currently, framework agreements can only be registered as an alternative procedure agreement (see paragraph 24DB(e)).

1.7 Alternative procedure agreements are only available in limited circumstances. This amendment would ensure framework agreements are more widely available to parties. Item 14 would make a similar amendment to the provisions relating to area agreements.

1.8 While this amendment would enable parties to register the framework agreement as a body corporate agreement, if parties require the individual agreements within the framework agreement to have the force of an ILUA, each agreement will also need to comply with the requirements for ILUAs and be registered on the Register of Indigenous Land Use Agreements (Register of ILUAs).

Item 4 – Section 24BF

1.9 Item 4 is a consequential amendment to the insertion of proposed subsection 24BF(2) under Item 5.

Item 5 – At the end of section 24BF

1.10 Item 5 would insert proposed subsection 24BF(2). Section 24BF currently provides that any person wishing to make a body corporate agreement may seek assistance from the NNTT or a recognised State/Territory body. Where the assistance is provided by the NNTT, proposed subsection 24BF(2) would prohibit the NNTT from using or disclosing information gained during the provision of that assistance unless it first obtains the consent of the person who provided the information.

1.11 The NNTT is only restricted from using information that it has access to solely because it provided assistance in making the body corporate agreement. This provision does not restrict the NNTT from using or disclosing information which it could have obtained from public sources, for example, a publicly accessible register of interests in land or waters, but was in fact obtained from the parties during the course of the negotiation. The provision would also not restrict the NNTT from using or disclosing information for the purpose of providing the assistance under section 24BF. It would only prohibit the NNTT from using or disclosing that information for other purposes.

1.12 Proposed subsection 24BF(2) would ensure that information obtained by the NNTT during the course of providing assistance is not used inappropriately, and would provide comfort to persons who seek assistance from the NNTT in negotiating a body corporate agreement.

1.13 Items 16, 20, 25, 30, 57, 66, 68, 89 and 113 would make similar amendments restricting the NNTT from using or disclosing information obtained during the course of performing its functions.

Item 6 – At the end of section 24BG

1.14 Item 6 would insert proposed subsection 24BG(3). Section 24BG provides that any party to a body corporate agreement may apply to the Registrar, with the consent of all other parties to the agreement, for the agreement to be registered on the Register of ILUAs. Subsection 24BG(2) provides that certain documents and information must accompany the application. Proposed subsection 24BG(3) would allow the Registrar to assist parties in preparing the registration application and accompanying materials. Items 17 and 26 would make similar amendments in relation to applications for registration of area agreements and alternative procedure agreements.

Item 7 – Subsection 24BH(1)

1.15 Item 7 would repeal and replace subsection 24BH(1). Section 24BH requires the Registrar to notify various persons about a body corporate agreement before the ILUA is registered and sets out what the notice must contain. Existing paragraph 24BH(1)(b) provides that the Registrar must notify the public of the agreement.

1.16 A body corporate agreement can only be made where there is a RNTBC for the whole of the agreement area. As a PBC only becomes a RNTBC where there has been an approved determination that native title exists, body corporate agreements can only be made where the entire agreement area has been the subject of an approved determination of native title.

1.17 Members of the general public do not have any procedural rights or rights to object to the registration of a body corporate agreement. Provision of notice to the public is expensive, costing approximately $6,000 per notice.

1.18 Proposed subsection 24BH(1) would remove the requirement for the Registrar to give notice of a body corporate agreement to the public. The Registrar will still be required to give notice to relevant Government parties and any representative body for the agreement area, as well as any other person whom the Registrar, having regard to the nature of the agreement, considers appropriate.

Item 8 – Subsection 24BH(2)

1.19 Item 8 is a consequential amendment to the insertion of proposed subsection 24BH(1) under Item 7.

Item 9 – Paragraph 24BH(2)(a)

1.20 Item 9 would repeal and replace paragraph 24BH(2)(a). Section 24BH requires the Registrar to notify various persons about a body corporate agreement before the ILUA is registered and sets out what the notice must contain. Existing paragraph 24BH(2)(a) provides that notice given under subsection 24BH(1) must describe the area covered by the body corporate agreement. This is currently achieved by inclusion of a written description of the area, which can be lengthy and expensive.

1.21 Proposed paragraph 24BH(2)(a) would still require the Registrar to identify the area covered by the agreement but would provide the Registrar with discretion to identify the area covered by the agreement by including a map in the notice. It is expected that the provision of a map will assist people to readily identify the area affected by the ILUA.

1.22 Items 18 and 27 would make similar amendments to the notification requirements for area agreements and alternative procedure agreements.

Item 10 – Paragraph 24BH(2)(c)

1.23 Item 10 would repeal and replace paragraph 24BH(2)(c). Section 24BH requires the Registrar to notify various persons about a body corporate agreement before the ILUA is registered and sets out what the notice must contain. Existing paragraph 24BH(2)(c) requires the Registrar to set out any statements included in the agreement that are of the kind mentioned in paragraphs 24EB(1)(b), (c) or (d).

1.24 Section 24EB provides that future acts carried out in accordance with a registered ILUA and which otherwise comply with the requirements of section 24EB are valid. If the ILUA purports to validate a future act, the ILUA must include a statement to the effect that the parties consent to the doing of the act or class of acts and any condition on which that consent is given (paragraph 24EB(1)(b)). Where the act is one to which Subdivision P applies (which confers the right to negotiate on registered native title claimants) the agreement must state that Subdivision P is not intended to apply (paragraph 24EB(1)(c)). Where the act is the surrender of native title, the agreement must also include a statement to the effect that the surrender is intended to extinguish the native title rights and interests (paragraph 24EB(1)(d)).

1.25 Similarly, the Native Title (Notices) Determination 1998 (Notices Determination) requires notices given under subsection 24BH(1) to include any statement included in the agreement that is of a kind mentioned in paragraph 24EBA(1)(a). Section 24EBA enables ILUAs to validate future acts that have already been done invalidly.

1.26 Proposed subparagraph 24BH(2)(c)(i) would retain the requirement to include statements of the kind mentioned in paragraphs 24EB(1)(b), (c) or (d) and also require the Registrar to include any statements of the kind mentioned in paragraph 24EBA(1)(a). It is appropriate to include both requirements in the Native Title Act, rather than providing separately for paragraph 24EBA(1)(a) statements in the Notices Determination.

1.27 Proposed subparagraph 24BH(2)(c)(ii) would give the Registrar discretion to include a summary of any statements included in the agreement of the kind mentioned in subparagraph 24BH(2)(c)(i), rather than setting the statements out in full. These statements are frequently complex and difficult to understand. This provision will enable the Registrar to include a simpler summary of the statement. The Registrar will be required, where he or she provides a summary, to include information about where further detail about the statements can be obtained to ensure interested people are able to access the statements in full.

1.28 Items 19 and 28 would make similar amendments to the notification requirements for area agreements and alternative procedure agreements.

Item 11 – At the end of section 24BH

1.29 Item 11 would insert proposed subsections 24BH(3), (4) and (5). Section 24BH requires the Registrar to notify various persons about a body corporate agreement before the ILUA is registered and sets out what the notice must contain.

1.30 Notices given in relation to area agreements and alternative procedure agreements require the Registrar to specify a notification day (see subsections 24CH(3) and 24DI(3)). However, there is no similar ‘notification day’ provision for body corporate agreements. This is most likely because the only persons or bodies able to object to the registration of a body corporate agreement or respond to a notice are the parties to the agreement and, in limited circumstances, the representative body for the agreement area.

1.31 Section 24BI provides that the Registrar must register the agreement unless there is an objection within one month from notice of the agreement being given. Notices are sent to a range of bodies and can conceivably be sent on different dates. As a result, there has been some confusion about when the Registrar gives notice and, hence, when the one month starts to run. This problem is exacerbated by the fact that the parties to the agreement are not required to be notified, despite being the primary persons or bodies able to object to registration of a body corporate agreement.

1.32 Proposed subsection 24BH(3) would provide that each notice under subsection 24BH(1) must specify the same notification day. Proposed subsection 24BH(4) would provide that the notification day must be a day by which the Registrar thinks it reasonable to assume that all persons who are required to be notified under subsection 24BH(1) have received or become aware of the notice. Proposed subsection 24BH(5) would provide that the parties to the agreement must be notified of the notification day.

1.33 These proposed subsections mirror the requirements of notices given in relation to area agreements and alternative procedure agreements. The amendments would clarify the operation of section 24BI by ensuring all relevant persons and bodies are advised when notice is given so as to assist in determining when the objection period ends. Items 12 and 13 would make consequential amendments to section 24BI.

Item 12 – Subsection 24BI(2)

1.34 Item 12 is a consequential amendment to the insertion of proposed subsection 24BH(3) under Item 11. Proposed subsection 24BH(3) will require the Registrar to specify a notification day in notices given in relation to body corporate agreements. The amendment to subsection 24BI(2) would make clear that the period for parties to the agreement to object to the registration of a body corporate agreements ends one month after the notification day.

Item 13 – Subsection 24BI(3)(a)

1.35 Item 13 is a consequential amendment to the insertion of proposed subsection 24BH(3) under Item 11. Proposed subsection 24BH(3) will require the Registrar to specify a notification day in notices given in relation to body corporate agreements. The amendment to paragraph 24BI(3)(a) would make clear that the period for a representative body to advise the Registrar that certain requirements have not been complied with in relation to the agreement ends one month after the notification day.

Item 14 – After paragraph 24CB(e)

1.36 Item 14 would inserts proposed paragraph 24CB(eaa). Division 3 of Part 2 of the Native Title Act provides for three types of ILUAs: body corporate agreements, area agreements and alternative procedure agreements. An area agreement must relate to one or more of the matters set out in section 24CB. Proposed paragraph 24CB(eaa) would expand the matters that an area agreement can cover to include framework agreements. A framework agreement sets the stage for the making of future agreements about matters relating to native title rights and interests. Currently, framework agreements can only be registered as an alternative procedure agreement (see paragraph 24DB(e)).

1.37 Alternative procedure agreements are only available in limited circumstances. This amendment would ensure framework agreements are more widely available to parties. Item 3 would make a similar amendment to the provisions relating to body corporate agreements.

1.38 While this amendment would enable parties to register the framework agreement as an area agreement, if parties require the individual agreements within the framework agreement to have the force of an ILUA, each agreement will also need to comply with the requirements for ILUAs and be registered on the Register of ILUAs.

Item 15 – Section 24CF

1.39 Item 15 is a consequential amendment to the insertion of proposed subsection 24CF(2) under Item 16.

Item 16 – At the end of section 24CF

1.40 Item 16 would insert proposed subsection 24CF(2). Section 24CF currently provides that any person wishing to make an area agreement may seek assistance from the NNTT or a recognised State/Territory body. Where the assistance is provided by the NNTT, proposed subsection 24CF(2) would prohibit the NNTT from disclosing information gained during the provision of that assistance except with the prior consent of the person who provided the information.

1.41 The NNTT is only restricted from using information that it has access to solely because it provided assistance in making the area agreement. This provision does not restrict the NNTT from using or disclosing information which it could have obtained from public sources, for example, a publicly accessible register of interests in land or waters, but was in fact obtained from the parties during the course of the negotiation. The provision would also not restrict the NNTT from using or disclosing information for the purpose of providing the assistance under section 24CF. It would only prohibit the NNTT from using or disclosing that information for other purposes.

1.42 Proposed subsection 24CF(2) would ensure that information obtained by the NNTT during the course of providing assistance is not used inappropriately, and would provide comfort to persons who seek assistance from the NNTT in negotiating an area agreement.

1.43 Items 5, 20, 25, 30, 57, 66, 68, 89 and 113 would make similar amendments restricting the NNTT from using or disclosing information obtained during the course of performing its functions.

Item 17– At the end of section 24CG

1.44 Item 17 would insert proposed subsections 24CG(4) and 24CG(5). Section 24CG provides that any party to an area agreement may, with the consent of all other parties, apply to the Registrar for the agreement to be registered on the Register of ILUAs.

1.45 Subsection 24CG(2) provides that certain documents and information must accompany the application. Proposed subsection 24CG(4) would allow the Registrar to assist parties in preparing the registration application and accompanying materials. Items 6 and 26 would make similar amendments in relation to applications for registration of body corporate agreements and alternative procedure agreements.

1.46 Subsection 24CG(3) requires that the application must be certified by all representative bodies in relation to the area or include a statement that all reasonable efforts have been made to identify all persons who hold, or may hold, native title in the area, and that all of the persons who have been identified have authorised the making of the agreement.

1.47 Proposed subsection 24CG(5) would provide that the certification of an application to register the ILUA by a representative body is not affected if, after certification, the recognition of the body as the representative body for the area concerned is withdrawn or otherwise ceases to have effect. This provision is inserted to avoid doubt about the effect of lapse in recognition of the relevant representative body, particularly in circumstances where recognition is withdrawn or ceases to have effect in the time between the application being made and the Registrar registering the agreement. Item 106 would make a similar amendment to provisions relating to the certification of claimant applications.

Item 18 – Paragraph 24CH(2)(a)

1.48 Item 18 would repeal and replace paragraph 24CH(2)(a). Section 24CH requires the Registrar to notify various persons about an area agreement before the ILUA is registered and sets out what the notice must contain. Existing paragraph 24CH(2)(a) provides that notice given under subsection 24CH(1) must describe the area covered by the area agreement. This is currently achieved by inclusion of a written description of the area, which can be lengthy and expensive.

1.49 Proposed paragraph 24CH(2)(a) would still require the Registrar to identify the area covered by the agreement but would provide the Registrar with discretion to identify the area by including a map in the notice. It is expected that the provision of a map will assist people to readily identify the area affected by the ILUA.

1.50 Items 9 and 27 would make similar amendments to the notification requirements for body corporate agreements and alternative procedure agreements.

Item 19 – Paragraph 24CH(2)(c)

1.51 Item 19 would repeal and replace paragraph 24CH(2)(c). Section 24CH requires the Registrar to notify various persons about an area agreement before the ILUA is registered and sets out what the notice must contain. Existing paragraph 24CH(2)(c) requires the Registrar to set out any statements included in the agreement that are of the kind mentioned in paragraphs 24EB(1)(b), (c) or (d).

1.52 Section 24EB provides that future acts carried out in accordance with a registered ILUA and which otherwise comply with the requirements of section 24EB, are valid. If the ILUA purports to validate a future act, the agreement must include a statement to the effect that the parties consent to the doing of the act or class of acts and any condition on which that consent is given (paragraph 24EB(1)(b)). Where the act is one to which Subdivision P applies (which confers the right to negotiation on registered native title claimants) the agreement must state that Subdivision P is not intended to apply (paragraph 24EB(1)(c)). Where the act is the surrender of native title, the agreement must also include a statement to the effect that the surrender is intended to extinguish the native title rights and interests (paragraph 24EB(1)(d)).

1.53 Similarly, the Notices Determination requires notices given under subsection 24CH(1) to include any statement included in the agreement that is of a kind mentioned in paragraph 24EBA(1)(a). Section 24EBA enables ILUAs to validate future acts that have already been done invalidly.

1.54 Proposed subparagraph 24CH(2)(c)(i) would retain the requirement to include statements of the kind mentioned in paragraphs 24EB(1)(b), (c) or (d) and also require the Registrar to include any statements of the kind mentioned in paragraph 24EBA(1)(a). It is appropriate to include both requirements in the Native Title Act, rather than providing separately for paragraph 24EBA(1)(a) statements in the Notices Determination.

1.55 Proposed subparagraph 24CH(2)(c)(ii) would give the Registrar discretion to include a summary of any statements included in the agreement of the kind mentioned in subparagraph 24CH(2)(c)(i), rather than setting the statements out in full. These statements are frequently complex and difficult to understand. This provision will enable the Registrar to include a simpler summary of the statement. The Registrar will be required, where he or she provides a summary, to include information about where further detail about the statements can be obtained to ensure interested people are able to obtain the statements in full.

1.56 Items 10 and 28 would make similar amendments to the notification requirements for body corporate agreements and alternative procedure agreements.

Item 20 – At the end of section 24CI

1.57 Item 20 would insert proposed subsection 24CI(3). Existing subsection 24CI(1) provides that if an application to register an area agreement was certified by representative bodies for the agreement area, any person claiming to hold native title in relation to the agreement area can object to the registration of the agreement. If an objection is made, subsection 24CI(2) enables parties to the agreement to request assistance from the NNTT or a recognised State/Territory body in negotiating with the person making the objection with a view to having the objection withdrawn. Where the NNTT provides such assistance, proposed subsection 24CI(3) would prohibit the NNTT from disclosing information gained during the provision of that assistance unless they first obtain the consent of the person who provided the information.

1.58 The NNTT is only restricted from using information that it has access to solely because it provided assistance in negotiating the withdrawal of an objection. This provision does not restrict the NNTT from using or disclosing information which it could have obtained from public sources, for example, a publicly accessible register of interests in land or waters, but in fact obtained from the parties during the course of providing the assistance. The provision would also not restrict the NNTT from using or disclosing information for the purpose of providing the assistance under section 24CI. It would only prohibit the NNTT from using or disclosing that information for other purposes.

1.59 Proposed subsection 24CI(3) would ensure that information obtained by the NNTT during the course of providing assistance is not used inappropriately, and would provide comfort to persons who seek assistance from the NNTT in negotiating to have an objection withdrawn.

1.60 Items 5, 16, 25, 30, 57, 66, 68, 89 and 113 would make similar amendments restricting the NNTT from using or disclosing information obtained during the course of performing its functions.

Item 21 – Subsection 24CK(4)

1.61 Item 21 would amend subsection 24CK(4). This amendment is consequential to the restrictions on the use and disclosure of information obtained by the NNTT in the course of providing assistance.

1.62 Section 24CK sets out the obligations of the Registrar in relation to applications for registration of area agreements that have been certified by a representative body. Section 24CK provides that the Registrar must register an area agreement if certain conditions are satisfied. Section 24CI enables a person to make an objection, in certain circumstances, against the registration of the agreement on the ground that requirements in relation to certification of the application for registration of the agreement were not satisfied. The first condition the Registrar must be satisfied of, under section 24CK, is that no objection was made to the registration of the agreement, or all objections have been withdrawn, or an objection is made and not withdrawn but the Registrar is not satisfied that the requirements for certifying the application were not met (see subsection 24CK(2)). In determining if the objection should be upheld, existing subsection 24CK(4) provides the Registrar must take into account any information given in relation to the matter by certain persons.

1.63 Item 20 would insert proposed subsection 24CI(3) which would restrict the NNTT from using or disclosing information obtained by the NNTT during the course of providing assistance in negotiating to have an objection withdrawn. Item 21 will amend subsection 24CK(4) by providing that the Registrar is only required to take into account information given by those persons to the Registrar. This will ensure that the Registrar is not required to take into account information obtained by the NNTT during the course of providing assistance in negotiating the withdrawal of an objection.

Item 22 – Subparagraph 24CL(2)(b)(ii)

1.64 Item 22 would amend subparagraph 24CL(2)(b)(ii). This amendment is consequential to amendments made by item 107.

1.65 Section 24CL sets out the obligations of the Registrar in relation to applications for registration of area agreements that have not been certified by a representative body. Section 24CL provides that the Registrar must register an area agreement if certain conditions are satisfied. The first condition is that certain persons must be parties to the agreement. This presently includes any person who, in particular circumstances, becomes a registered native title claimant in relation to any of the agreement area after the end of the notice period where their application was filed before the end of the notice period. Existing subparagraph 24CL(2)(b)(ii) provides that such persons will be required to be parties to the agreement if their claim is accepted by the Registrar for registration as a result of an application under subsection 190D(2) where the application was not made more than 28 days after the notice under subsection 190D(1). Subsection 190D(2) enables a claimant to seek review by the Court of the Registrar’s decision not to register a claim.

1.66 Item 107 would repeal section 190D and insert proposed sections 190D, 190E and 190F. Proposed section 190E would provide for internal review of the Registrar’s decision not to register a claim. Proposed subsection 190F(1) would provide for review of the registration decision by the Court, as presently provided for by subsection 190D(2).

1.67 Item 22 would amend subparagraph 24CL(2)(b)(ii) to refer to review by the Court under proposed subsection 190F(1). It would also provide that persons who become a registered native title claimant after the notice period as a result of reconsideration of the registration decision under proposed section 190E must be parties to the agreement, provided their application for reconsideration was made within 28 days of notice being given under subsection 190D(1). Section 190E provides that a person has 42 days to seek reconsideration of a registration decision. The Federal Court Rules also provide that a person has 42 days in which to make an application to the Court for review of a registration decision. Consistent with the existing provisions in section 24CL, to obtain the benefit of section 24CL registration of the claim must occur as a result of an application for review or reconsideration made within 28 days. The 28 day period in subparagraph 24CL(2)(b)(ii) enables the registration of area agreements where there has been an adverse registration decision in a relevant claim but the claimant does not seek review or reconsideration of the decision promptly.

Item 23 – Subparagraph 24CL(2)(b)(iii)

1.68 Item 23 would amend subparagraph 24CL(2)(b)(iii). This amendment is consequential to amendments made by item 107.

1.69 Section 24CL sets out the obligations of the Registrar in relation to applications for registration of area agreements that have not been certified by a representative body. Section 24CL provides that the Registrar must register an area agreement if certain conditions are satisfied. The first condition is that certain persons must be parties to the agreement. This presently includes any person who, in particular circumstances, becomes a registered native title claimant in relation to any of the agreement area after the end of the notice period. Existing subparagraph 24CL(2)(b)(iii) deals with claims accepted for registration following review of a registration decision under a State or Territory provision equivalent to relevant provisions of the Native Title Act.

1.70 Subparagraph 24CL(2)(b)(iii) refers to existing section 190D. Item 107 would repeal section 190D and insert proposed sections 190D, 190E and 190F. Proposed section 190E would provide for internal review of the Registrar’s decision not to register a claim. Proposed section 190F would provide for review of the registration decision by the Court, as presently provided for by section 190D.

1.71 Item 23 would amend subparagraph 24CL(2)(b)(iii) to reflect the changes made by item 107 and to also include persons who become a registered native title claimant following reconsideration of a registration decision under an equivalent State or Territory law.

Item 24 – Section 24DG

1.72 Item 24 is a consequential amendment to the addition of proposed subsection 24DG(2) under item 25.

Item 25 – At the end of section 24DG

1.73 Item 25 would insert proposed subsection 24DG(2). Section 24DG currently provides that any person wishing to make an alternative procedure agreement may seek assistance from the NNTT or a recognised State/Territory body. Where the assistance is provided by the NNTT, proposed subsection 24DG(2) would prohibit the NNTT from using or disclosing information gained during the provision of that assistance without first obtaining the consent of the person who provided the information.

1.74 The NNTT is only restricted from using information that it has access to solely because it provided assistance in making the alternative procedure agreement. This provision does not restrict the NNTT from using or disclosing information which it could have obtained from public sources, for example, a publicly accessible register of interests in land or waters, but in fact obtained from the parties during the course of providing the assistance. The provision would also not restrict the NNTT from using or disclosing information for the purpose of providing the assistance under section 24DG. It would only prohibit the NNTT from using or disclosing that information for other purposes.

1.75 Proposed subsection 24DG(2) would ensure that information obtained by the NNTT during the course of providing assistance is not used inappropriately, and would provide comfort to persons who seek assistance from the NNTT in negotiating an alternative procedure agreement.

1.76 Items 5, 16, 20, 30, 57, 66, 68, 89 and 113 would make similar amendments restricting the NNTT from using or disclosing information obtained during the course of performing its functions.

Item 26 – At the end of section 24DH

1.77 Item 26 would insert proposed subsection 24DH(3). Section 24DH provides that any party to an alternative procedure agreement may, with the consent of all other parties, apply to the Registrar for the agreement to be registered on the Register of ILUAs.

1.78 Subsection 24DH(2) provides that certain documents and information must accompany the application. Proposed subsection 24DH(3) would allow the Registrar to assist parties in preparing the registration application and accompanying materials. Items 6 and 17 would make similar amendments in relation to applications for registration of body corporate agreements and area agreements.

Item 27 – Paragraph 24DI(2)(a)

1.79 Item 27 would repeal and replace paragraph 24DI(2)(a). Section 24DI requires the Registrar to notify various persons about an alternative procedure agreement before the ILUA is registered and sets out what the notice must contain. Existing paragraph 24DI(2)(a) provides that notice given under subsection 24DI(1) must describe the area covered by the alternative procedure agreement. This is currently achieved by inclusion of a written description of the area, which can be lengthy and expensive.

1.80 Proposed paragraph 24DI(2)(a) would still require the Registrar to identify the area covered by the agreement but would provide the Registrar with discretion to identify the area covered by the agreement by including a map in the notice. It is expected that the provision of a map will assist people to readily identify the area affected by the ILUA.

1.81 Items 9 and 18 would make similar amendments to the notification requirements for body corporate agreements and area agreements.

Item 28 – Paragraph 24DI(2)(c)

1.82 Item 28 would repeal and replace paragraph 24DI(2)(c). Section 24DI requires the Registrar to notify various persons about an alternative procedure agreement before the ILUA is registered and sets out what the notice must contain. Existing paragraph 24DI(2)(c) requires the Registrar to set out any statements included in the agreement that are of the kind mentioned in paragraphs 24EB(1)(b) or (c).

1.83 Section 24EB provides that future acts carried out in accordance with a registered ILUA, and which otherwise comply with the requirements of section 24EB, are valid. If the ILUA purports to validate a future act, the ILUA must include a statement to the effect that the parties consent to the doing of the act or class of acts and any condition on which that consent is given (paragraph 24EB(1)(b)). Where the act is one to which Subdivision P applies (which confers the right to negotiation on registered native title claimants) the agreement must state that Subdivision P is not intended to apply (paragraph 24EB(1)(c)).

1.84 Similarly, the Notices Determination requires notices given under subsection 24CH(1) to include any statement included in the agreement that is of a kind mentioned in paragraph 24EBA(1)(a). Section 24EBA enables ILUAs to validate future acts that have already been done invalidly.

1.85 Proposed subparagraph 24DI (2)(c)(i) would retain the requirement to include statements of the kind mentioned in paragraphs 24EB(1)(b) or (c) and also require the Registrar to include any statements of the kind mentioned in paragraph 24EBA(1)(a). It is appropriate to include both requirements in the Native Title Act, rather than providing separately for paragraph 24EBA(1)(a) statements in the Notices Determination.

1.86 Proposed subparagraph 24DI(2)(c)(ii) would give the Registrar a discretion to include a summary of any statements included in the agreement of the kind mentioned in subparagraph 24DI(2)(c)(i), rather than setting the statements out in full. These statements are frequently complex and difficult to understand. This provision will give the Registrar discretion to include a simpler summary of the statement. The Registrar will be required, where he or she provides a summary, to include information about where further detail about the statements can be obtained to ensure interested persons are able to access the statements in full.

1.87 Items 10 and 19 would make similar amendments to the notification requirements for body corporate agreements and area agreements.

Item 29 – At the end of subsection 24DJ(1)

1.88 Item 29 would insert an explanatory note below subsection 24DJ(1). Subsection 24DJ(1) provides that any person claiming to hold native title in relation to an area covered by an alternative procedure agreement may object against registration of the agreement on the ground that it would not be fair and reasonable to register the agreement. Section 77A sets out the material and fees that must accompany an application under subsection 24DJ(1). Section 24DJ does not refer to section 77A. The proposed explanatory note will bring the requirements set out in section 77A to the attention of users of the Native Title Act.

Item 30 – At the end of section 24DJ

1.89 Item 30 would insert proposed subsection 24DJ(3). Subsection 24DJ(1) provides that any person claiming to hold native title in relation to an area covered by an alternative procedure agreement may object against registration of the agreement on the ground that it would not be fair and reasonable to register the agreement. Subsection 24DJ(2) provides that parties to the agreement may request assistance from the NNTT or a recognised State/Territory body in negotiating with a person who makes an objection, with a view to having the objection withdrawn. Where the NNTT provides such assistance, proposed subsection 24DJ(3) would prohibit the NNTT from disclosing information gained during the provision of that assistance unless they first obtain the consent of the person who provided the information.

1.90 The NNTT is only restricted from using information that it has access to solely because it provided assistance negotiating the withdrawal of an objection. This provision does not restrict the NNTT from using or disclosing information which it could have obtained from public sources, for example, a publicly accessible register of interests in land or waters, but in fact obtained from the parties during the course of the negotiation. The provision would also not restrict the NNTT from using or disclosing information for the purpose of providing the assistance under section 24DJ. It would only prohibit the NNTT from using or disclosing that information for other purposes.

1.91 Proposed subsection 24DJ(3) would ensure that information obtained by the NNTT during the course of providing assistance is not used inappropriately, and would provide comfort to persons who seek assistance from the NNTT in negotiating to have an objection withdrawn.

1.92 Items 5, 16, 20, 25, 57, 66, 68, 89 and 113 would make similar amendments restricting the NNTT from using or disclosing information obtained during the course of performing its functions.

Item 31 – Subparagraph 24FE(b)(ii)

1.93 Item 31 would amend subparagraph 24FE(b)(ii). This amendment is consequential to amendments made by item 107.

1.94 Section 24FE defines ‘relevant native title claim’ for the purpose of determining if section 24FA protection arises. Section 24FE provides that there will be a relevant native title claim if, at a certain time, there is a claim on the Register of Native Title Claims made before a specified time that is registered as a result of an application under subsection 190D(2) where the application was not made more than 28 days after the notice under subsection 190D(1). Subsection 190D(2) enables a claimant to seek review by the Court of the Registrar’s decision not to register a claim.

1.95 Item 107 would repeal section 190D and insert proposed sections 190D, 190E and 190F. Proposed section 190E would provide for internal review of the Registrar’s decision not to register a claim. Proposed subsection 190F(1) would provide for review of the registration decision by the Court, as presently provided for by subsection 190D(2).

1.96 Item 31 would amend subparagraph 24FE (b)(ii) to refer to review by the Court under proposed subsection 190F(1). It would also provide that a claim will be a relevant native title claim where a claim is registered as a result of reconsideration of the registration decision under proposed section 190E, if the application for reconsideration was made within 28 days of notice being given under subsection 190D(1).

1.97 Section 190E provides that a person has 42 days to seek reconsideration of a registration decision. The Federal Court Rules also provide that a person has 42 days in which to make an application to the Court for review of a registration decision. Consistent with the existing provisions in section 24FE, to obtain the benefit of section 24FA protection, registration of the claim must occur as a result of an application for review or reconsideration made within 28 days. The 28 day period in subparagraph 24FE(b)(ii) grants section 24FA protection where there has been an adverse registration decision in a relevant claim but the claimant does not seek review or reconsideration of the decision promptly.

Item 32 – Subparagraph 24FE(b)(iii)

1.98 Item 32 would amend subparagraph 24FE(b)(iii). This amendment is consequential to amendments made by item 107.

1.99 Section 24FE defines ‘relevant native title claim’ for the purpose of determining if section 24FA protection arises. Section 24FE provides that there will be a relevant native title claim if, at a certain time, there is a claim on the Register of Native Title Claims made before a specified time that is registered as a result of review of a registration decision under a State or Territory provision equivalent to relevant provisions of the Native Title Act.

1.100 Subparagraph 24FE(b)(iii) refers to existing section 190D. Item 107 would repeal section 190D and insert proposed sections 190D, 190E and 190F. Proposed section 190E would provide for internal review of the Registrar’s decision not to register a claim. Proposed section 190F would provide for review of the registration decision by the Court, as presently provided for by section 190D.

1.101 Item 32 would amend subparagraph 24FE(b)(iii) to reflect the changes made by item 107 and to include, as relevant native title claims, claims which are registered following reconsideration of a registration decision under an equivalent State or Territory law.

Item 33 – After subsection 24IC(2)

1.102 Item 33 would insert proposed subsection 24IC(2A) into section 24IC. Section 24IC deems certain future acts to be a ‘permissible lease etc. renewals’. Certain protections arise in relation to grants and authorities in relation to land if the grant occurred before 23 December 1996. Subdivision I of Division 3 of Part 2 of the Native Title Act extends those protections to certain permissible renewals of those grants where the renewal occurs after 23 December 1996.

1.103 Subsection 24IC(2) provides that if multiple leases, licences, permits or authorities are granted in place of a single lease, licence, permit or authority, those multiple grants are taken as a renewal of the original grant, and hence are a permissible renewal under subsection 24IC(1).

1.104 The same protections do not currently apply where multiple grants are replaced by a single grant. Proposed subsection 24IC(2A) would provide that where a single lease, licence, permit or authority is granted in place of multiple leases, licences, permits or authorities, the single grant is a renewal of the original grants. The proposed subsection provides, consistent with existing subsection 24IC(2), that multiple grants that are being renewed by a single grant must satisfy the criteria in paragraphs 24IC(1)(b) to (e). The protection will only apply where the single grant takes place after these amendments come into force (see Item 124 of the application provisions in Part 2 of Schedule 1 of the Bill).

Item 34 – After paragraph 24KA(2)(l)

1.105 Item 34 would insert proposed paragraph 24KA(2)(la). Subdivision K of Division 3 of Part 2 of the Native Title Act validates certain facilities for services to the public, if the subdivision applies. Subdivision K is intended to ensure services for the benefit of the general public can be provided unimpeded by native title.

1.106 Subsection 24KA(2) comprises a list of facilities for services to the public to which the subdivision applies. The list includes, for example, roads, navigation markers, street lighting, communication facilities, as well as any other thing that is similar to one of things listed in subsection 24KA(2).

1.107 Automatic weather stations, presently operated by or on behalf of the Bureau of Meteorology, are provided by the Government for the benefit of the general public. They are particularly important for rural communities. It is presently unclear whether automatic weather stations would fall within subsection 24KA(2). To avoid doubt, item 34 would specifically provide that automatic weather stations are facilities for services to the public for the purpose of Subdivision K.

Item 35 – Paragraph 24KA(8)(b)

1.108 Item 35 would repeal and replace paragraph 24KA(8)(b). Subdivision K of Division 3 of Part 2 of the Native Title Act validates certain facilities for services to the public, if the subdivision applies. Subsection 24KA(7) provides that certain procedural rights apply where an act is done under Subdivision K. Where this would require notice to be given to the native title holders, subsection 24KA(8) facilitates the giving of notice to native title holders in circumstances where there has been no approved determination of native title. This is because where there has been no approved determination of native title there will be uncertainty about whether or not native title exists and, if so, who might hold the native title rights and interests in the relevant area. Where there has been an approved determination of native title, the RNTBC represents all native title holders for the area and will therefore be the appropriate contact.

1.109 Under the Native Title Act, a RNTBC should be determined at the same time as the making of an approved determination that native title exists (section 55). However, in some circumstances there may be a delay in determining a RNTBC following a determination of native title. In these circumstances, the same uncertainty that exists before a determination about the appropriate person or persons to contact to satisfy notification requirements will continue after a determination until such time as the RNTBC is determined.

1.110 Item 35 would repeal and replace paragraph 24KA(8)(b) to provide that the same specific requirements about giving notice that presently apply before an approved determination is made will continue to apply up until a RNTBC is determined for the whole of the area affected. Paragraphs 24CK(8)(c) and 24CK(8)(d), as amended by items 36 and 37, would provide that where there is not a RNTBC for the whole of the affected area, notice should be given to the representative body and any registered native title claimants for the area not covered by a RNTBC.

Item 36 – Paragraph 24KA(8)(c)

1.111 Item 36 would amend paragraph 24KA(8)(c). Item 35 would amend paragraph 24KA(8)(b) to provide that, where there is no RNTBC for the whole of the area affected by the act, notice can be effected by complying with paragraphs 24KA(8)(c) and 24KA(8)(d).

1.112 Item 36 would amend paragraph 24KA(8)(c) to provide that where there is not a RNTBC for the whole of the affected area, notice should be given to the representative body for the area not covered by a RNTBC. Similarly, item 37 would amend paragraph 24KA(8)(d) to provide that notice should also be given to any registered native title claimants for the area not covered by a RNTBC.

Item 37 – Paragraph 24KA(8)(d)

1.113 Item 37 would amend paragraph 24KA(8)(d). Item 35 would amend paragraph 24KA(8)(b) to provide that, where there is no RNTBC for the whole of the area affected by the act, notice can be effected by complying with paragraphs 24KA(8)(c) and 24KA(8)(d).

1.114 Item 37 would amend paragraph 24KA(8)(d) to provide that notice should also be given to any registered native title claimants for the area not covered by a RNTBC. Similarly, item 36 would amend paragraph 24KA(8)(c) to provide that where there is not a RNTBC for the whole of the affected area, notice should be given to the representative body for the area not covered by a RNTBC.

Item 38 – Paragraph 24KA(9)(b)

1.115 Item 38 would repeal and replace paragraph 24KA(9)(b). Subdivision K of Division 3 of Part 2 of the Native Title Act validates certain facilities for services to the public, if the subdivision applies. The subdivision is intended to ensure services for the benefit of the general public can be provided unimpeded by native title.

1.116 Subsection 24KA(7) provides that certain procedural rights apply where an act is done under Subdivision K. Where this would give the native title holders any procedural right that requires another person to do any thing in relation to the native title holders, subsection 24KA(9) facilitates the doing of that thing in circumstances where there has been no approved determination of native title. This is because where there has been no approved determination of native title there will be uncertainty about whether or not native title exists and, if so, who might hold the native title rights and interests in the relevant area. Where there has been an approved determination of native title, the RNTBC represents all native title holders for the area and will therefore be the appropriate contact.

1.117 Under the Native Title Act, a RNTBC should be determined at the same time as the making of an approved determination that native title exists (section 55). However, in some circumstances there may be a delay in determining a RNTBC following a determination of native title. In these circumstances, the same uncertainty that exists before a determination about the appropriate person or persons to contact to satisfy procedural requirements will continue after a determination until such time as the RNTBC is determined.

1.118 Item 38 would repeal and replace paragraph 24KA(9)(b) to provide that the same specific requirements about satisfying procedural requirements that presently apply before an approved determination is made will continue to apply up until a RNTBC is determined for the whole of the area affected. Paragraphs 24CK(9)(c) and 24CK(9)(d), as amended by items 39 and 40, would provide that where there is not a RNTBC for the whole of the affected area, a person may give effect to procedural requirements by doing the thing in relation to any registered native title claimant for the area not covered by the RNTBC or, if there are no registered native claimants, by ensuring the representative body for the area not covered by a RNTBC has an opportunity to comment on the doing of the act.

Item 39 – Paragraph 24KA(9)(c)

1.119 Item 39 would amend paragraph 24KA(9)(c). Item 38 would repeal and replace paragraph 24KA(9)(b) to provide that the same specific requirements about satisfying procedural requirements that presently apply before an approved determination is made will continue to apply up until a RNTBC is determined for the whole of the area affected.

1.120 Item 39 would amend paragraph 24KA(9)(c) to provide that where there is not a RNTBC for the whole of the affected area, the procedural requirements may be given effect by doing the thing in relation to any registered native title claimants for the area not covered by a RNTBC. Similarly, item 40 would amend paragraph 24KA(9)(d) to provide that, if there are no registered native title claimants for the area not covered by a RNTBC, the procedural requirements may be given effect by ensuring any representative bodies for the area have an opportunity to comment on the doing of the act.

Item 40 – Paragraph 24KA(9)(d)

1.121 Item 40 would amend paragraph 24KA(9)(d). Item 38 would repeal and replace paragraph 24KA(9)(b) to provide that the same specific requirements about satisfying procedural requirements that presently apply before an approved determination is made will continue to apply up until a RNTBC is determined for the whole of the area affected.

1.122 Item 40 would amend paragraph 24KA(9)(d) to provide that, if there are no registered native title claimants for the area not covered by a RNTBC, the procedural requirements may be given effect by ensuring any representative bodies for the area have an opportunity to comment on the doing of the act. Similarly, item 39 would amend paragraph 24KA(9)(c) to provide that where there is not a RNTBC for the whole of the affected area, the procedural requirements may be given effect by doing the thing in relation to any registered native title claimants for the area not covered by a RNTBC.

Item 41 – Paragraph 24MD(6B)(b)(note)

1.123 Item 41 would repeal the note following paragraph 24MD(6B)(b). Subdivision M of Division 3 of Part 2 of the Native Title Act provides that certain future acts will be valid if the requirements of Subdivision M, and Subdivision P if applicable, are complied with. Subsection 24MD(6) provides that if the future act is one to which Subdivision M applies, other than, among other things, an act to which Subdivision P applies, the consequences in subsections 24MD(6A) and 24MD(6B) apply. Therefore, subsection 24MD(6B) only applies to acts which are not covered by Subdivision P.

1.124 The explanatory note under paragraph 24MD(6B)(b) provides that the acts covered by paragraphs 24MD(6B)(a) and 24MD(6B)(b) are not covered by Subdivision P. The explanatory note is poorly expressed and does not clearly reflect the operation of the provisions, namely that subsection 24MD(6B) only applies to acts to which Subdivision P does not apply.

1.125 While the explanatory note does not affect the operation of the provisions in the Native Title Act, it may create confusion. Therefore, item 41 would repeal the note.

Item 42 – After subparagraph 24MD(6B)(c)(iii)

1.126 Item 42 would insert proposed subparagraph 24MD(6B)(c)(iv). This amendment is consequential to amendments made by item 101.

1.127 Subdivision M of Division 3 of Part 2 of the Native Title Act provides certain future acts will be valid if Subdivision M is complied with. Subsection 24MD(6B) provides if an act falls within subsection 24MD(6B), certain procedural requirements must be complied with, and gives native title holders, and any registered native title claimants, procedural rights in relation to the act.

1.128 Paragraph 24MD(6B)(c) requires the relevant Government to give notice of the act to any registered native title claimant, any native title body corporate and any representative body for the area. Paragraph 24MD(6B)(d) confers a right to object to the act on native title claimants if they are a registered claimant two months of the giving of the notice.

1.129 Item 101 would amend section 190A to provide that, where a notice is given under paragraph 24MD(6B)(c) and the Registrar has received a claim relating to the area that the notice covers, the Registrar must use his or her best endeavours to consider, or finish considering, the claim for registration within two months after the notice is given. This amendment is designed to encourage prompt consideration of the registration of claims that are subject to paragraph 24MD(6B)(c) notices, to ensure native title claimants obtain procedural rights wherever possible.

1.130 Item 42 is a consequential amendment to the amendment made by item 101. It would provide that, where a notice is given under paragraph 24MD(6B)(c), the Registrar must also be notified. This will ensure the Registrar is aware of claims that are subject to a paragraph 24MD(6B)(c) notice so that these claims can be considered promptly.

Item 43 – Paragraph 24MD(7)(b)

1.131 Item 43 would repeal and replace paragraph 24MD(7)(b). Certain future acts will be valid if the requirements of Subdivision M of Division 3 of Part 2 of the Native Title Act are complied with. Subsection 24MD(6A) provides that native title holders, and any registered native title claimants, will have procedural rights in relation to an act.

1.132 Where this would require notice to be given to the native title holders, subsection 24MD(7) facilitates the giving of notice to native title holders in circumstances where there has been no approved determination of native title. This is because where there has been no approved determination of native title there will be uncertainty about whether or not native title exists and, if so, who might hold the native title rights and interests in the relevant area. Where there has been an approved determination of native title, the RNTBC represents all native title holders for the area and will therefore be the appropriate contact.

1.133 Under the Native Title Act, a RNTBC should be determined at the same time as the making of an approved determination that native title exists (section 55). However, in some circumstances there may be a delay in determining a RNTBC following a determination of native title. In these circumstances, the same uncertainty that exists before a determination about the appropriate person or persons to contact to satisfy notification requirements will continue after a determination until such time as the RNTBC is determined.

1.134 Item 43 would repeal and replace paragraph 24MD(7)(b) to provide that the same specific requirements about giving notice that presently apply before an approved determination is made will continue to apply up until a RNTBC is determined for the whole of the area affected. Paragraphs 24MD(7)(c) and 24MD(7)(d), as amended by items 44 and 45, would provide that where there is not a RNTBC for the whole of the affected area, notice should be given to the representative body for the area not covered by a RNTBC and any registered native title claimants for the area not covered by a RNTBC.

Item 44 – Paragraph 24MD(7)(c)

1.135 Item 44 would amend paragraph 24MD(7)(c). Amendments made by item 43 would provide that, where there is no RNTBC for the whole of the area affected by the act, notice can be effected by complying with paragraphs 24MD(7)(c) and 24MD(7)(d).

1.136 Item 44 would amend paragraph 24MD(7)(c) to provide that where there is not a RNTBC for the whole of the affected area, notice should be given to the representative body for the area not covered by a RNTBC. Similarly, item 45 would amend paragraph 24MD(7)(d) to provide that notice should also be given to any registered native title claimants for the area not covered by a RNTBC.

Item 45 – Paragraph 24MD(7)(d)

1.137 Item 45 would amend paragraph 24MD(7)(d). Amendments made by item 43 would provide that, where there is no RNTBC for the whole of the area affected by the act, notice can be effected by complying with paragraphs 24MD(7)(c) and 24MD(7)(d).

1.138 Item 45 would amend paragraph 24MD(7)(d) to provide that where there is not a RNTBC for the whole of the affected area, notice should be given to any registered native title claimants for the area not covered by a RNTBC. Similarly, item 44 would amend paragraph 24MD(7)(c) to provide that where there is not a RNTBC for the whole of the affected area, notice should be given to the representative body for the area not covered by a RNTBC.

Item 46 – Paragraph 24MD(8)(b)

1.139 Item 46 would repeal and replace paragraph 24MD(8)(b). Certain future acts will be valid if the requirements of Subdivision M of Division 3 of Part 2 of the Native Title Act are complied with. Subsection 24MD(6A) provides that native title holders, and any registered native title claimants, will have certain procedural rights in relation to an act.

1.140 Where this would give the native title holders any procedural right that requires another person to do any thing in relation to the native title holders, subsection 24MD(8) facilitates the doing of that thing in circumstances where there has been no approved determination of native title. This is because where there has been no approved determination of native title there will be uncertainty about whether or not native title exists and, if so, who might hold the native title rights and interests in the relevant area. Where there has been an approved determination of native title, the RNTBC represents all native title holders for the area and will therefore be the appropriate contact.

1.141 Under the Native Title Act, a RNTBC should be determined at the same time as the making of an approved determination that native title exists (section 55). However, in some circumstances there may be a delay in determining a RNTBC following a determination of native title. In these circumstances, the same uncertainty that exists before a determination about the appropriate person or persons to contact to satisfy procedural requirements will continue after a determination until such time as the RNTBC is determined.

1.142 Item 46 would repeal and replace paragraph 24MD(8)(b) to provide that the same specific requirements about satisfying procedural requirements that presently apply before an approved determination is made will continue to apply up until a RNTBC is determined for the whole of the area affected. Paragraphs 24MD(8)(c) and 24MD(8)(d), as amended by items 47 and 48, would provide that where there is not a RNTBC for the whole of the affected area, a person may give effect to procedural requirements by doing the thing in relation to any registered native title claimant for the area not covered by the RNTBC or, if there are no registered native claimants, by ensuring the representative body for the area not covered by a RNTBC has an opportunity to comment on the doing of the act.

Item 47 – Paragraph 24MD(8)(c)

1.143 Item 47 would amend paragraph 24MD(8)(c). Item 46 would provide that, where there is no RNTBC for the whole of the area affected by the act, a requirement to do a thing to give effect to procedural requirements may be effected by complying with paragraphs 24MD(8)(c) and 24MD(8)(d).

1.144 Item 47 would amend paragraph 24MD(8)(c) to provide that where there is not a RNTBC for the whole of the affected area, the procedural requirements may be given effect by doing the thing in relation to any registered native title claimants for the area not covered by a RNTBC. Similarly, item 48 would amend paragraph 24MD(8)(d) to provide that, if there are no registered native title claimants, the procedural requirements may be given effect by ensuring any representative bodies for the area have an opportunity to comment on the doing of the act.

Item 48 – Paragraph 24MD(8)(d)

1.145 Item 48 would amend paragraph 24MD(8)(d). Item 46 would provide that, where there is no RNTBC for the whole of the area affected by the act, a requirement to do a thing to give effect to procedural requirements may be effected by complying with paragraphs 24MD(8)(c) and 24MD(8)(d).

1.146 Item 48 would amend paragraph 24MD(8)(d) to provide that, if there are no registered native title claimants for the area not covered by a RNTBC, the procedural requirements may be given effect by ensuring any representative bodies for the area have an opportunity to comment on the doing of the act. Similarly, item 47 would amend paragraph 24MD(8)(c) to provide that where there is not a RNTBC for the whole of the affected area, the procedural requirements may be given effect by doing the thing in relation to any registered native title claimants for the area not covered by a RNTBC.

Item 49 – Paragraph 24NA(9)(b)

1.147 Item 49 would repeal and replace paragraph 24NA(9)(b). Subdivision N validates future acts to the extent they relate to an offshore place, if the requirements of the subdivision are complied with. Subsection 24NA(8) confers certain procedural rights on native title holders, and any registered native title claimants.

1.148 Where this would require notice to be given to the native title holders, subsection 24NA(9) facilitates the giving of notice to native title holders in circumstances where there has been no approved determination of native title. This is because where there has been no approved determination of native title there will be uncertainty about whether or not native title exists and, if so, who might hold the native title rights and interests in the relevant area. Where there has been an approved determination of native title, the RNTBC represents all native title holders for the area and will therefore be the appropriate contact.

1.149 Under the Native Title Act, a RNTBC should be determined at the same time as the making of an approved determination that native title exists (section 55). However, in some circumstances there may be a delay in determining a RNTBC following a determination of native title. In these circumstances, the same uncertainty that exists before a determination about the appropriate person or persons to contact to satisfy notification requirements will continue after a determination until such time as the RNTBC is determined.

1.150 Item 49 would repeal and replace paragraph 24NA(9)(b) to provide that the same specific requirements about giving notice that presently apply before an approved determination is made will continue to apply up until a RNTBC is determined for the whole of the area affected. Paragraphs 24NA(9)(c) and 24NA(9)(d), as amended by items 50 and 51, would provide that where there is not a RNTBC for the whole of the affected area, notice should be given to the representative body for the area not covered by a RNTBC and any registered native title claimants for the area not covered by a RNTBC.

Item 50 – Paragraph 24NA(9)(c)

1.151 Item 50 would amend paragraph 24NA(9)(c). Amendments made by item 49 would provide that, where there is no RNTBC for the whole of the area affected by the act, notice can be effected by complying with paragraphs 24NA(9)(c) and 24NA(9)(d).

1.152 Item 50 would amend paragraph 24NA(9)(c) to provide that where there is not a RNTBC for the whole of the affected area, notice should be given to the representative body for the area not covered by a RNTBC. Similarly, item 51 would amend paragraph 24NA(9)(d) to provide that notice should also be given to any registered native title claimants for the area not covered by a RNTBC.

Item 51 – Paragraph 24NA(9)(d)

1.153 Item 51 would amend paragraph 24NA(9)(d). Amendments made by item 49 would provide that, where there is no RNTBC for the whole of the area affected by the act, notice can be effected by complying with paragraphs 24NA(9)(c) and 24NA(9)(d).

1.154 Item 51 would amend paragraph 24NA(9)(d) to provide that where there is not a RNTBC for the whole of the affected area, notice should be given to any registered n