Native Title Amendment (Technical Amendments) Act 2007
No. 125, 2007
An Act to amend legislation in relation to native title, and for
related purposes
[Assented to 20 July 2007]
The Parliament of Australia enacts:
1
Short title
This Act may be cited as the Native
Title Amendment (Technical Amendments) Act 2007.
2
Commencement
(1) Each provision of this Act specified in
column 1 of the table commences, or is taken to have commenced, in accordance
with column 2 of the table. Any other statement in column 2 has effect
according to its terms.
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Commencement
information
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Column 1
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Column 2
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Column 3
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Provision(s)
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Commencement
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Date/Details
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1. Sections 1 to 3 and anything in this Act not
elsewhere covered by this table
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The day on which this Act receives the Royal Assent.
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20 July 2007
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2. Schedule 1, items 1 to 83
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A single day to be fixed by Proclamation.
However, if any of the provision(s) do not commence within
the period of 6 months beginning on the day on which this Act receives the
Royal Assent, they commence on the first day after the end of that period.
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1 September 2007
(see F2007L02416)
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3. Schedule 1, items 83A to 83C
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The day after this Act receives the Royal Assent.
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21 July 2007
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4. Schedule 1, items 84 to 89
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At the same time as the provision(s) covered by table
item 2.
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1 September 2007
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4A. Schedule 1, items 90 and 91
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Immediately after the commencement of Schedule 2 to
the Native Title Amendment Act 2007.
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15 April 2007
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4B. Schedule 1, items 91A to 91E
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At the same time as the provision(s) covered by table
item 3.
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21 July 2007
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4C. Schedule 1, items 91F to 139
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At the same time as the provision(s) covered by table
item 2.
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1 September 2007
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5. Schedule 2, items 1 to 3
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The day after this Act receives the Royal Assent.
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21 July 2007
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6. Schedule 2, item 4
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1 July 2007.
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1 July 2007
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7. Schedule 2, items 5 to 12
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At the same time as the provision(s) covered by table
item 5.
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21 July 2007
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8. Schedule 3, items 1 to 6
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At the same time as the provision(s) covered by table
item 5.
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21 July 2007
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9. Schedule 3, item 7
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1 July 2008.
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1 July 2008
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10. Schedule 3, items 8 to 10
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At the same time as the provision(s) covered by table
item 5.
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21 July 2007
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10A. Schedule 3, item 10A
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Immediately after the commencement of Schedule 1 to
the Corporations (Aboriginal and Torres Strait Islander) Consequential,
Transitional and Other Measures Act 2006.
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1 July 2007
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10B. Schedule 3, items 11 and 12
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At the same time as the provision(s) covered by table
item 5.
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21 July 2007
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11. Schedule 4
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At the same time as the provision(s) covered by table
item 2.
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1 September 2007
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12. Schedule 5
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At the same time as the provision(s) covered by table
item 2.
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1 September 2007
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Note: This table
relates only to the provisions of this Act as originally passed by both Houses
of the Parliament and assented to. It will not be expanded to deal with
provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional
information that is not part of this Act. Information in this column may be
added to or edited in any published version of this Act.
3
Schedule(s)
Each Act that is specified in a Schedule
to this Act is amended or repealed as set out in the applicable items in the
Schedule concerned, and any other item in a Schedule to this Act has effect
according to its terms.
Schedule 1—Amendment of the Native Title Act 1993
Part 1—Amendments
Native Title Act 1993
1 Subsection 13(2) (note)
Repeal the note, substitute:
Note: In these circumstances, 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: see subsection 62(3).
2 Subsection 24AA(3)
Repeal the subsection, substitute:
(3) A future act will be valid if the parties
to certain agreements (called indigenous land use agreements—see Subdivisions
B, C and D) consent to it being done and, at the time it is done, details of
the agreement are on the Register of Indigenous Land Use Agreements. An
indigenous land use agreement, details of which are on the Register, may also
validate a future act (other than an intermediate period act) that has already
been invalidly done.
3 After paragraph 24BB(e)
Insert:
(eaa) providing a framework for the
making of other agreements about matters relating to native title rights and
interests;
4 Section 24BF
Before “Persons”, insert “(1)”.
5 At the end of section 24BF
Add:
(2) The NNTT must not use or disclose
information to which it has had access only because it has provided assistance
in negotiating the agreement for any purpose other than providing that
assistance without the prior consent of the person who provided the NNTT
with the information.
6 At the end of section 24BG
Add:
Registrar may assist parties
(3) The Registrar may give such assistance as
he or she considers reasonable to help a party to the agreement prepare the
application and accompanying material.
7 Subsection 24BH(1)
Repeal the subsection, substitute:
Notice to persons who are not parties to an agreement
(1) The Registrar must give notice of the
agreement, in accordance with subsection (2), to any of the following who
are not parties to the agreement:
(a) the Commonwealth Minister;
(b) if the agreement covers an area
within the jurisdictional limits of a State or Territory—the State Minister or
the Territory Minister for the State or Territory;
(c) any representative
Aboriginal/Torres Strait Islander body for the area covered by the agreement;
(d) any local government body for the
area covered by the agreement;
(e) any other person whom the
Registrar, having regard to the nature of the agreement, considers appropriate.
8 Subsection 24BH(2)
Omit “paragraph (1)(a) or (b)”, substitute “subsection (1)”.
9 Paragraph 24BH(2)(a)
Repeal the paragraph, substitute:
(a) identify the area covered by the
agreement, whether by including a map or otherwise; and
10 Paragraph 24BH(2)(c)
Repeal the paragraph, substitute:
(c) set out:
(i) any statements
included in the agreement that are of a kind mentioned in paragraph 24EB(1)(b),
(c) or (d) or 24EBA(1)(a); or
(ii) a summary of any
statements included in the agreement that are of that kind, together with
information about where further detail about the statements may be obtained.
11 At the end of section 24BH
Add:
Notice to specify day
(3) The notice under subsection (1) must
specify a day as the notification day for the agreement. Each
such notice in relation to the agreement must specify the same day.
Which days may be specified
(4) That day must be a day by which, in the
Registrar’s opinion, it is reasonable to assume that all notices under subsection (1)
in relation to the agreement will have been received by, or will otherwise have
come to the attention of, the persons who must be notified under that
subsection.
Notice to parties to the agreement
(5) The Registrar must give notice to the
parties to the agreement of the notification day for the agreement that was
specified in the notice under subsection (1).
12 Subsection 24BI(2)
Omit “after the Registrar gives notice under section 24BH”,
substitute “after the notification day”.
13 Paragraph 24BI(3)(a)
Omit “after the Registrar gives notice under section 24BH”,
substitute “after the notification day”.
14 After paragraph 24CB(e)
Insert:
(eaa) providing a framework for the
making of other agreements about matters relating to native title rights and
interests;
15 Section 24CF
Before “Persons”, insert “(1)”.
16 At the end of section 24CF
Add:
(2) The NNTT must not use or disclose
information to which it has had access only because it provided assistance in
negotiating the agreement for any purpose other than providing that assistance
without the prior consent of the person who provided the NNTT with the
information.
17 At the end of section 24CG
Add:
Registrar may assist parties
(4) The Registrar may give such assistance as
he or she considers reasonable to help a party to the agreement prepare the
application and accompanying material.
Certification not affected if Aboriginal/Torres Strait
Islander body subsequently ceases to be recognised
(5) To avoid doubt, the certification of an
application under Part 11 by a representative Aboriginal/Torres Strait Islander
body is not affected merely because, after certification, the recognition of
the body as the representative Aboriginal/Torres Strait Islander body for the
area concerned is withdrawn or otherwise ceases to have effect.
18 Paragraph 24CH(2)(a)
Repeal the paragraph, substitute:
(a) identify the area covered by the
agreement, whether by including a map or otherwise; and
19 Paragraph 24CH(2)(c)
Repeal the paragraph, substitute:
(c) set out:
(i) any statements
included in the agreement that are of a kind mentioned in paragraph 24EB(1)(b),
(c) or (d) or 24EBA(1)(a); or
(ii) a summary of any
statements included in the agreement that are of that kind, together with
information about where further detail about the statements may be obtained;
and
20 At the end of section 24CI
Add:
Information obtained to provide assistance not to be
used or disclosed in other contexts
(3) The NNTT must not use or disclose
information to which it has had access only because it provided assistance
under subsection (2) for any purpose other than providing that assistance
without the prior consent of the person who provided the NNTT with the
information.
21 Subsection 24CK(4)
After “any information given”, insert “to the Registrar”.
22 Subparagraph 24CL(2)(b)(ii)
Omit “subsection 190D(2)”, substitute “subsection 190F(1)”.
22A After subparagraph 24CL(2)(b)(ii)
Insert:
(iia) the claim is accepted
by the Registrar for registration as a result of notification given to the
Registrar by the NNTT under section 190E on application under that
section, where the application was made not more than 28 days after the notice
under subsection 190D(1) was given; or
23 Subparagraph 24CL(2)(b)(iii)
Omit “section 190D”, substitute “section 190E or 190F”
24 Section 24DG
Before “Persons”, insert “(1)”.
25 At the end of section 24DG
Add:
Information obtained in providing assistance not to be
used or disclosed in other contexts
(2) The NNTT must not use or disclose
information to which it has had access only because it provided assistance in
negotiating the agreement for any purpose other than providing that assistance
without the prior consent of the person who provided the NNTT with the
information.
26 At the end of section 24DH
Add:
Registrar may assist parties
(3) The Registrar may give such assistance as
he or she considers reasonable to help a party to the agreement prepare the
application and accompanying material.
27 Paragraph 24DI(2)(a)
Repeal the paragraph, substitute:
(a) identify the area covered by the
agreement, whether by including a map or otherwise; and
28 Paragraph 24DI(2)(c)
Repeal the paragraph, substitute:
(c) set out:
(i) any statements
included in the agreement that are of a kind mentioned in paragraph 24EB(1)(b)
or (c) or 24EBA(1)(a); or
(ii) a summary of any
statements included in the agreement that are of that kind, together with
information about where further detail about the statements may be obtained;
and
29 At the end of subsection 24DJ(1)
Add:
Note: Section 77A sets out the material and
fees that must accompany the application, and includes a requirement to state
reasons why it would not be fair and reasonable to register the agreement.
30 At the end of section 24DJ
Add:
Information obtained in providing assistance not to be
used or disclosed in other contexts
(3) The NNTT must not use or disclose
information to which it has had access only because it provided assistance
under subsection (2) for any purpose other than providing that assistance
without the prior consent of the person who provided the NNTT with the
information.
31 Subparagraph 24FE(b)(ii)
Omit “subsection 190D(2)”, substitute “subsection 190F(1)”.
31A After subparagraph 24FE(b)(ii)
Insert:
(iia) the claim is accepted
by the Registrar for registration as a result of notification given to the Registrar
by the NNTT under section 190E on application under that section, where
the application was made not more than 28 days after the notice under
subsection 190D(1) was given; or
32 Subparagraph 24FE(b)(iii)
Omit “section 190D”, substitute “section 190E or 190F”.
33 After subsection 24IC(2)
Insert:
Replacing 2 or more leases etc. with a single lease
etc.
(2A) If a single lease, licence, permit or
authority is granted in place of, respectively, 2 or more leases, licences,
permits or authorities (the original leases etc.), then:
(a) for the purpose of subsection (1),
the single grant is taken to be a renewal of the original leases etc.; and
(b) paragraphs (1)(b) to (e)
apply as if a reference in those paragraphs to the original lease etc. were a
reference to the original leases etc.
34 After paragraph 24KA(2)(l)
Insert:
(la) an automatic weather station;
35 Paragraph 24KA(8)(b)
Repeal the paragraph, substitute:
(b) there is no registered native
title body corporate, or there are no registered native title bodies corporate,
in relation to the whole of the land or waters in the area concerned;
36 Paragraph 24KA(8)(c)
Omit “for the area concerned”, substitute “for that part of the
area concerned for which there is no registered native title body corporate”.
37 Paragraph 24KA(8)(d)
Omit “in the area concerned”, substitute “in that part of the
area concerned for which there is no registered native title body corporate”.
38 Paragraph 24KA(9)(b)
Repeal the paragraph, substitute:
(b) there is no registered native
title body corporate, or there are no registered native title bodies corporate,
in relation to the whole of the land or waters in the area concerned;
39 Paragraph 24KA(9)(c)
Omit “in the area concerned”, substitute “in that part of the
area concerned for which there is no registered native title body corporate”.
40 Paragraph 24KA(9)(d)
Omit “for the area concerned”, substitute “for that part of the
area concerned for which there is no registered native title body corporate”.
41 Paragraph 24MD(6B)(b)(note)
Repeal the note.
42 After subparagraph 24MD(6B)(c)(iii)
Insert:
and (iv) the Registrar;
43 Paragraph 24MD(7)(b)
Repeal the paragraph, substitute:
(b) there is no registered native
title body corporate, or there are no registered native title bodies corporate,
in relation to the whole of the land or waters in the area concerned;
44 Paragraph 24MD(7)(c)
Omit “for the area concerned”, substitute “for that part of the
area concerned for which there is no registered native title body corporate”.
45 Paragraph 24MD(7)(d)
Omit “in the area concerned”, substitute “in that part of the
area concerned for which there is no registered native title body corporate”.
46 Paragraph 24MD(8)(b)
Repeal the paragraph, substitute:
(b) there is no registered native
title body corporate, or there are no registered native title bodies corporate,
in relation to the whole of the land or waters in the area concerned;
47 Paragraph 24MD(8)(c)
Omit “in the area concerned”, substitute “in that part of the
area concerned for which there is no registered native title body corporate”.
48 Paragraph 24MD(8)(d)
Omit “for the area concerned”, substitute “for that part of the
area concerned for which there is no registered native title body corporate”.
49 Paragraph 24NA(9)(b)
Repeal the paragraph, substitute:
(b) there is no registered native
title body corporate, or there are no registered native title bodies corporate,
in relation to the whole of the land or waters in the area concerned;
50 Paragraph 24NA(9)(c)
Omit “for the area concerned”, substitute “for that part of the
area concerned for which there is no registered native title body corporate”.
51 Paragraph 24NA(9)(d)
Omit “in the area concerned”, substitute “in that part of the
area concerned for which there is no registered native title body corporate”.
52 Paragraph 24NA(10)(b)
Repeal the paragraph, substitute:
(b) there is no registered native
title body corporate, or there are no registered native title bodies corporate,
in relation to the whole of the land or waters in the area concerned;
53 Paragraph 24NA(10)(c)
Omit “in the area concerned”, substitute “in that part of the
area concerned for which there is no registered native title body corporate”.
54 Paragraph 24NA(10)(d)
Omit “for the area concerned”, substitute “for that part of the
area concerned for which there is no registered native title body corporate”.
55 Paragraph 28(2)(a)
Repeal the paragraph, substitute:
(a) in a case where an amount is to be
secured by bank guarantee in favour of the Registrar in compliance with a
condition of a determination made under section 36A or 38 or a declaration
made under section 42—the Registrar is informed by the Government party as
mentioned in item 2 of the table in subsection 52(2) that it no longer
proposes to do the act; and
56 Subsection 29(8)
Repeal the subsection, substitute:
Multiple acts
(8) The Commonwealth Minister may, by
legislative instrument, determine the circumstances and manner in which notice
to a person under subsection (2) of 2 or more acts to which this
Subdivision applies may be given in the same notice.
(8A) Notice to the public under subsection (3)
of 2 or more acts to which this Subdivision applies may be given in the same
notice.
57 At the end of section 31
Add:
Information obtained in providing assistance not to be
used or disclosed in other contexts
(4) If the NNTT is the arbitral body, it must
not use or disclose information to which it has had access only because it
provided assistance under subsection (3) for any purpose other than:
(a) providing that assistance; or
(b) establishing whether a negotiation
party has negotiated in good faith as mentioned in paragraph (1)(b);
without the prior consent of the person who
provided the NNTT with the information.
58 Subsection 36C(5)
Repeal the subsection, substitute:
Bank guarantee condition
(5) If a condition to be complied with is
that an amount is to be secured by bank guarantee:
(a) the arbitral body must:
(i) determine the amount;
and
(ii) specify the person who
must secure the amount in that way; and
(b) the condition is not complied with
unless:
(i) the guarantee is given
by an authorised deposit‑taking institution within the meaning of the Banking
Act 1959; and
(ii) the guarantee is
secured in favour of the Registrar; and
(iii) regulations made under
subsection (5A) are complied with.
(5A) The regulations may make provision in
relation to the securing of an amount by bank guarantee in compliance with such
a condition, and any other matter in relation to such a guarantee.
59 Subsection 41(3)
Repeal the subsection, substitute:
Bank guarantee condition
(3) If, in the case of a determination by an
arbitral body, a condition to be complied with is that an amount is to be
secured by bank guarantee:
(a) the arbitral body must:
(i) determine the amount;
and
(ii) specify the person who
must secure the amount in that way; and
(b) the condition is not complied with
unless:
(i) the guarantee is given
by an authorised deposit‑taking institution within the meaning of the Banking
Act 1959; and
(ii) the guarantee is
secured in favour of the Registrar; and
(iii) regulations made under
subsection (4) are complied with.
(4) The regulations may make provision in
relation to the securing of an amount by bank guarantee in compliance with such
a condition, and any other matter in relation to such a guarantee.
60 Subsection 42(5)
Repeal the subsection, substitute:
Bank guarantee condition
(5) If a condition to be complied with is
that an amount is to be secured by bank guarantee:
(a) the arbitral body must:
(i) determine the amount;
and
(ii) specify the person who
must secure the amount in that way; and
(b) the condition is not complied with
unless:
(i) the guarantee is given
by an authorised deposit‑taking institution within the meaning of the Banking
Act 1959; and
(ii) the guarantee is
secured in favour of the Registrar; and
(iii) regulations made under
subsection (5A) are complied with.
(5A) The regulations may make provision in
relation to the securing of an amount by bank guarantee in compliance with such
a condition, and any other matter in relation to such a guarantee.
61 Paragraph 43(2)(j)
Repeal the paragraph, substitute:
(j) make appropriate provision for
compensation for the act, including provision for bank guarantees on similar
terms to those in subsections 36C(5), 41(3) and 42(5), and regulations made for
the purposes of subsections 36C(5A), 41(4) and 42(5A); and
62 After subsection 43(2)
Insert:
Effect of including conjunctive agreement/determination
provisions and expedited procedure provisions
(2A) If the only reason for the Commonwealth
Minister not being of the opinion that the alternative provisions comply with subsection (2)
is that they include conjunctive agreement/determination provisions or
expedited procedure provisions (see subsection (5)), the alternative
provisions nevertheless comply with subsection (2).
63 At the end of section 43
Add:
Meaning of certain expressions
(5) In this section:
conjunctive agreement/determination provisions
means provisions that:
(a) are included in alternative
provisions; and
(b) in the opinion of the Commonwealth
Minister, have an effect, in combination with the other alternative provisions,
that is similar to the effect that subsection 26D(2) of this Act has in
combination with the other provisions of this Subdivision.
expedited procedure provisions means
provisions that:
(a) are included in alternative
provisions; and
(b) in the opinion of the Commonwealth
Minister, have an effect, in combination with the other alternative provisions,
that is similar to the effect that section 32 of this Act has in
combination with the other provisions of this Subdivision.
64 After subsection 43(3)
Insert:
(3A) If, at any time, the alternative provisions
cease to have ongoing effect, the Commonwealth Minister must, by legislative
instrument, revoke the determination made under paragraph (1)(b).
65 After subsection 43A(9)
Insert:
(9A) If, at any time, the alternative provisions
cease to have ongoing effect, the Commonwealth Minister must, by legislative
instrument, revoke the determination made under paragraph (1)(b).
66 After subsection 44B(4)
Insert:
Information obtained in providing assistance not to be
used or disclosed in other contexts
(4A) The NNTT must not use or disclose information
to which it has had access only because it provided assistance in negotiating
the agreement for any purpose other than providing that assistance without the
prior consent of the person who provided the NNTT with the information.
67 Section 44F
Before “If”, insert “(1)”.
68 At the end of section 44F (after the note)
Add:
(2) The NNTT must not use or disclose
information to which it has had access only because it mediated in the dispute
for any purpose other than mediating the dispute without the prior consent
of the person who provided the NNTT with the information.
69 Section 52
Repeal the section, substitute:
52
Bank guarantee required under right to negotiate procedures
(1) This section applies if a condition to be
complied with under:
(a) a determination made under section 36A;
or
(b) a determination made under section 38;
or
(c) a declaration made under section 42;
in respect of an act is that an amount is to be secured by
bank guarantee given by an authorised deposit‑taking institution within
the meaning of the Banking Act 1959 (an ADI) in favour of
the Registrar.
Directions to ADI and payments to ultimate
beneficiaries
(2) The Registrar must take the action set
out in column 3 of the following table in the circumstances set out in column 2
of the table:
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Directions to ADI and
payments to ultimate beneficiaries
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Item
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If:
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the Registrar must:
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1
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an approved determination of native title is made to the
effect that there is no native title in relation to the area concerned
immediately before the act takes place
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direct the ADI to cancel the bank guarantee.
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2
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the Government party informs the Registrar in writing that
it is not going to do the act
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direct the ADI to cancel the bank guarantee.
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3
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(a) an approved determination of native title is made to the
effect that the native title parties concerned are (disregarding any holding
of the native title in trust under Division 6) the native title holders
in relation to the area affected by the act; and
(b) the registered native title body corporate advises the
Registrar that it wishes to accept the amount instead of any compensation to
which the native title holders may be entitled under Division 3 for the
act; and
(c) the person who secured the amount by bank guarantee
advises the Registrar that the person agrees to the registered native title
body corporate accepting the amount instead of any compensation to which the
native title holders may be entitled under Division 3 for the act
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(a) direct the ADI to pay the amount secured to the
Registrar; and
(b) pay that amount to the registered native title body
corporate in relation to the area concerned.
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4
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(a) a determination is made, on a claim for compensation in
respect of the act, that a person (the ultimate beneficiary) is
entitled to compensation:
(i) in accordance with this Division; or
(ii) on just terms under a law of the Commonwealth or of a
State or Territory dealing with the compulsory acquisition of rights or
interests in the land or waters in relation to which compensation is claimed;
and
(b) the amount secured is less than or equal to the amount
determined
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(a) direct the ADI to pay the amount secured to the
Registrar; and
(b) pay that amount to the ultimate beneficiary.
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5
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(a) a determination is made, on a claim for compensation in
respect of the act, that a person (the ultimate beneficiary) is
entitled to compensation:
(i) in accordance with this Division; or
(ii) on just terms under a law of the Commonwealth or of a
State or Territory dealing with the compulsory acquisition of rights or
interests in the land or waters in relation to which compensation is claimed;
and
(b) the amount secured by bank guarantee is more than the
amount determined
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(a) direct the ADI to pay the amount secured (the original
amount) to the Registrar; and
(b) pay an amount equal to the amount determined to the
ultimate beneficiary; and
(c) pay the remainder to the person who secured the original
amount by bank guarantee or, if that person no longer exists, apply to the
Federal Court for a direction as to its payment.
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6
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a determination is made, on a claim for compensation in
respect of the act:
(a) in accordance with this Division; or
(b) on just terms under a law of the Commonwealth or of a
State or Territory dealing with the compulsory acquisition of rights or
interests in the land or waters in relation to which compensation is claimed;
that no person is entitled to compensation
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direct the ADI to cancel the guarantee.
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7
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(a) the person who secured the amount by bank guarantee
obtains an alternative bank guarantee from an ADI in favour of the Registrar;
and
(b) the alternative bank guarantee complies with regulations
made for the purposes of subsection 36C(5A), 41(4) or 42(5A) (as the case
requires)
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direct the ADI to cancel the guarantee.
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8
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(a) the Registrar applies to the Federal Court in accordance
with subsection (3) for an order in relation to the amount secured; and
(b) the court orders that an amount be paid to a person (the ultimate
beneficiary)
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(a) direct the ADI to pay the secured amount (the original
amount) to the Registrar; and
(b) pay an amount to the ultimate beneficiary equal to the
amount the court orders to be paid; and
(c) if the amount to be paid to the ultimate
beneficiary is less than the original amount—pay the remainder to the person
who secured the original amount by bank guarantee or, if that person no
longer exists, the person to whom the Federal Court orders it to be paid.
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9
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(a) none of the other items apply; and
(b) the Federal Court decides, on application by any person,
that it would be just and equitable in all the circumstances to pay the
amount secured by bank guarantee to a person (the ultimate beneficiary)
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(a) direct the ADI to pay the amount secured to the
Registrar; and
(b) pay that amount to the ultimate beneficiary.
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Application to the Federal Court where compensation
includes transfer of property or provision of goods or services
(3) If:
(a) a determination is made, on a
claim for compensation in respect of the act:
(i) in accordance with this
Division; or
(ii) on just terms under a
law of the Commonwealth or of a State or Territory dealing with the compulsory
acquisition of rights or interests in the land or waters in relation to which
compensation is claimed;
that a person is entitled to
compensation; and
(b) some or all of the compensation is
constituted by the transfer of property or the provision of goods or services;
the Registrar must apply to the Federal Court for a
direction as to the payment of the amount secured.
Federal Court jurisdiction
(4) The Federal Court has jurisdiction in
relation to the matters mentioned in:
(a) items 5, 8 and 9 of the table
in subsection (2); and
(b) subsection (3).
Compensation payable is greater amount than that
secured
(5) If:
(a) a determination is made, on a
claim for compensation in respect of the act:
(i) in accordance with
this Division; or
(ii) on just terms under a
law of the Commonwealth or of a State or Territory dealing with the compulsory
acquisition of rights or interests in the land or waters in relation to which
compensation is claimed;
that a person is entitled to
compensation; and
(b) the amount secured by the bank
guarantee is less than the amount determined;
the Government party must pay the shortfall to the person.
No compensation if already paid under bank guarantee
(6) Subject to section 53, if the
Registrar pays an amount to a registered native title body corporate in
accordance with item 3 of the table in subsection (2), there is no
entitlement to compensation under Division 3 for the act.
70 Paragraph 57(2)(a)
Repeal the paragraph, substitute:
(a) first, it must request a
representative of the common law holders to:
(i) nominate, in writing
given to the Federal Court within a specified period, a prescribed body
corporate for the purpose; and
(ii) include with the
nomination the written consent of the body corporate;
71 Subparagraph 62(1)(a)(ii)
Omit “an entry in the National Native Title Register”, substitute
“an approved determination of native title”.
72 Subparagraph 62(1)(a)(v)
Repeal the subparagraph, substitute:
(v) setting out details of
the process of decision‑making complied with in authorising the applicant
to make the application and to deal with matters arising in relation to it; and
73 Paragraph 62(2)(c)
After “carried out”, insert “by or on behalf of the native title
claim group”.
74 After paragraph 62(2)(g)
Insert:
(ga) details of any notifications under
paragraph 24MD(6B)(c), of which the applicant is aware, that have been given
and that relate to the whole or a part of the area;
75 Subsection 62(2) (note)
After “Notices under”, insert “paragraph 24MD(6B)(c) and”.
76 Subparagraph 62(3)(a)(iv)
Repeal the subparagraph, substitute:
(iv) setting out details of
the process of decision‑making complied with in authorising the applicant
to make the application and to deal with matters arising in relation to it; and
77 At the end of section 62A
Add:
Note: This section deals only with claimant
applications and compensation applications. For provisions dealing with
indigenous land use agreements, see Subdivisions B to E of Division 3 of
Part 2.
78 Subsection 64(3)
Repeal the subsection, substitute:
Application may be amended despite current action by
Registrar or Federal Court
(3) In the case of a claimant application,
the fact that:
(a) the Registrar is, under section 190A,
considering the claim made in the application; or
(b) the NNTT is, under
section 190E, reconsidering the claim made in the application; or
(c) the Federal Court is, on the
application of the applicant under subsection 190F(1), reviewing the decision
of the Registrar in relation to the claim;
does not prevent amendment of the application.
79 Subsection 64(5)
Repeal the subsection.
80 Subparagraph 66(3)(a)(iv)
Omit “, when the application was filed in the Federal Court,
held”, substitute “when the notice is given, holds”.
81 After subsection 66A(1)
Insert:
Amending claims to re‑include area
(1A) If:
(a) the Registrar is given a copy of
an amended application under section 64; and
(b) the amendment concerned is to re‑include
in the area covered by the application an area of land or waters that was covered
by the original application;
the Registrar must:
(c) 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
(d) 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; and
(e) give notice of the amended
application to each person whom the Registrar would, under subsections 66(3)
and 66(5), be obliged to give notice if the application as amended were a new
application, but to whom notice is not already required to be given under paragraph (c)
or (d).
(1B) A notice under paragraph (1A)(e) must
specify a day as the notification day for the amendment.
(1C) Each such notice in relation to the
amendment must:
(a) specify the same day; and
(b) state that a person who wants to
be a party in relation to the amended application must notify the Federal
Court, in writing, within the period of 3 months starting on the notification
day, or, after that period, get the leave of the Federal Court under subsection
84(5) to become a party.
82 Subsection 66B(1)
Repeal the subsection, substitute:
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) one or more of the following
applies to a person who is, either alone or jointly with one or more other
persons, the current applicant:
(i) the person consents to
his or her replacement or removal;
(ii) the person has died or
become incapacitated;
(iii) the person is no
longer authorised by the claim group to make the application and to deal with
matters arising in relation to it;
(iv) the person has exceeded
the authority given to him or her by the claim group to make the application
and to deal with matters arising in relation to it; and
(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.
83 At the end of subsection 66B(1)
Add:
Note: Section 251B states what it means for a
person or persons to be authorised by all the persons in the claim group to
deal with matters in relation to a claimant application or a compensation
application.
83A Paragraph 66C(1)(c)
Omit “and”.
83B Paragraph 66C(1)(d)
Repeal the paragraph.
83C Paragraph 66C(2)(b)
Omit “paragraph 94C(1)(d)”, substitute “paragraph 94C(1)(c)”.
84 Subsection 69(1) (table item dealing with claim
registration application)
Omit “subsection 190D(2)”, substitute “subsection 190F(1)”.
85 At the end of section 82
Add:
Maximising use of video links, audio links and other
appropriate means of giving testimony, appearing and making submissions
(3) The Court or a Judge must exercise the
discretion under section 47B of the Federal Court of Australia Act 1976
to allow a person to appear before the Court or Judge, or make a submission
to the Court or Judge, by way of video link, audio link or other appropriate
means if the Court or the Judge is satisfied that:
(a) the conditions set out in section 47C
in relation to the video link, audio link or other appropriate means are met;
and
(b) it is not contrary to the
interests of justice to do so.
86 Paragraph 84(3)(b)
Repeal the paragraph, substitute:
(b) the person notifies the Federal
Court, in writing, that the person wants to be a party to the proceeding:
(i) within the period
specified in the notice under section 66; or
(ii) if notice of an
amended application is given under paragraph 66A(1A)(e)—within the period
specified in the notice under that paragraph.
87 After subsection 84(6)
Insert:
(6A) In determining, for the purposes of subsection (6),
when the first hearing of the proceedings starts, disregard directions
hearings.
88 After section 84C
Insert:
84D
Proceedings affected by possible defect in authorisation
(1) The Federal Court may make an order
requiring:
(a) a person who, either alone or
jointly with another person, made an application under section 61, to
produce evidence to the court that he or she was authorised to do so; or
(b) a person who has dealt with a
matter, or is dealing with a matter, arising in relation to such an
application, to produce evidence to the court that he or she is authorised to
do so.
(2) An order under subsection (1) may be
made:
(a) on the Federal Court’s own motion;
or
(b) on the application of a party to
the proceedings; or
(c) on the application of a member of
the native title claim group or compensation claim group in relation to the
application.
(3) Subsection (4) applies if:
(a) an application does not comply
with section 61 (which deals with the basic requirements for applications)
because it was made by a person or persons who were not authorised by the
native title claim group to do so; or
(b) a person who is or was, or one of
the persons who are or were, the applicant in relation to the application has
dealt with, or deals with, a matter arising in relation to the application in
circumstances where the person was not authorised to do so.
Note: Section 251B states what it means for a
person or persons to be authorised to make native title determination
applications or compensation applications or to deal with matters arising in
relation to them.
(4) The Federal Court may, after balancing
the need for due prosecution of the application and the interests of justice:
(a) hear and determine the
application, despite the defect in authorisation; or
(b) make such other orders as the
court considers appropriate.
89 After subsection 86F(2)
Insert:
Information obtained in providing assistance not to be
used or disclosed in other contexts
(2A) The NNTT must not use or disclose
information to which it has had access only because it provided assistance in
negotiating the agreement except for the following purposes:
(a) providing assistance in
negotiating the agreement;
(b) mediating in relation to the whole
or any part of the proceeding;
without the prior consent of the person who provided
the NNTT with the information.
90 Paragraph 87(1)(d)
Repeal the paragraph.
91 Subparagraph 87A(1)(c)(v)
Repeal the subparagraph, substitute:
(v) each person who holds
an interest in relation to land or waters in any part of the determination area
at the time the agreement is made, and who is a party to the proceeding at the
time the agreement is made;
91A Paragraphs 94C(1)(b), (c) and (d)
Repeal the paragraphs, substitute:
(b) it is apparent from the timing of
the application that it is made in response to a future act notice given in
relation to land or waters wholly or partly within the area; and
(c) the future act requirements are
satisfied in relation to each future act identified in the future act notice;
and
91B After subsection 94C(1)
Insert:
(1A) For the purposes of paragraph (1)(b),
it is apparent from the timing of an application by a person for a
determination of native title in relation to an area that it is made in
response to a future act notice to which the current law applies if:
(a) the future act notice is given in
relation to land or waters wholly or partly within the area; and
(b) the application is made during the
period of 3 months after the notification day specified in the future act
notice; and
(c) the person becomes a registered
native title claimant in relation to any land or waters that will be affected
by the act, before the end of 4 months after the notification day specified in
the future act notice.
(1B) For the purposes of paragraph (1)(b),
it is apparent from the timing of an application by a person for a
determination of native title in relation to an area that it is made in
response to a future act notice to which the pre‑1998 law applies if:
(a) the future act notice is given in
relation to land or waters wholly or partly within the area; and
(b) the person becomes a registered
native title claimant in relation to any land or waters that will be affected
by the act, within the period of 2 months starting when the notice is given.
(1C) The regulations may prescribe, for the
purposes of paragraph (1)(b), other circumstances in which it is taken to
be apparent from the timing of an application by a person for a determination
of native title in relation to an area that it is made in response to a future
act notice, including circumstances in which it is taken to be apparent in
relation to a future act notice given under alternative provisions.
(1D) For the purposes of paragraph (1)(c),
the future act requirements are satisfied
in relation to a future act notice to which the current law applies if one of
the following paragraphs is satisfied in relation to each future act identified
in the notice:
(a) subsection 32(2) (which applies if
no objection is made after the giving of a notice that the act attracts the expedited
procedure) allows the act to be done;
(b) a determination is made under
subsection 32(4) that the act is an act attracting the expedited procedure;
(c) native title parties have lodged
one or more objections in relation to the act under subsection 32(3), but all
such objections are withdrawn under subsection 32(6);
(d) an agreement of the kind mentioned
in paragraph 31(1)(b) is made;
(e) a determination is made under
section 36A or 38 that the act may be done, or may be done subject to
conditions being complied with;
(f) a determination is made under
section 36A or 38 that the act must not be done;
(g) a determination that the act may
be done, or may be done subject to conditions being complied with or must not
be done, is declared to be overruled in accordance with section 42;
(h) a circumstance occurs in which,
under the regulations, the future act requirements are satisfied.
(1E) For the purposes of paragraph (1)(c),
the future act requirements are satisfied
in relation to a future act notice to which the pre‑1998 law applies if
one of the following paragraphs is satisfied in relation to each future act
identified in the notice:
(a) subsection 32(2) of the pre‑1998
law (which applies if no objection is made after the giving of a notice that
the act attracts the expedited procedure) allows the act to be done;
(b) a determination is made under
subsection 32(4) of the pre‑1998 law that the act is an act attracting
the expedited procedure;
(c) a copy of an agreement that the
act may be done, or may be done subject to conditions being complied with, is
given to the arbitral body under section 34 of the pre‑1998 law;
(d) a determination is made under
section 38 of the pre‑1998 law that the act may be done, or may be
done subject to conditions being complied with;
(e) a determination is made under
section 38 of the pre‑1998 law that the act must not be done;
(f) a determination that the act may
be done, or may be done subject to conditions being complied with or must not
be done, is declared to be overruled in accordance with section 42 of the
pre‑1998 law;
(g) a circumstance occurs in which,
under the regulations, the future act requirements are satisfied.
(1F) The regulations may prescribe, for the
purposes of paragraphs (1D)(h) and (1E)(g), other circumstances in which future
act requirements are satisfied.
(1G) The regulations may prescribe circumstances
in which future act requirements are satisfied in relation to a
future act notice given under alternative provisions.
91C Subsection 94C(6)
Insert:
future act notice to which the current law applies means
a future act notice to which the provisions in Subdivision P of Division 3
of Part 2 of this Act apply.
91D Subsection 94C(6)
Insert:
future act notice to which the pre‑1998 law
applies means a future act notice to which the provisions in
Subdivision B of Division 3 of Part 2 of the Native Title Act 1993
apply, as in force immediately before the commencement of the Native
Title Amendment Act 1998 (including as it applies in accordance with
Schedule 5 of that Act).
91E Subsection 94C(6)
Insert:
pre‑1998 law means the Native Title
Act 1993, as in force immediately before the commencement of the Native
Title Amendment Act 1998 (including as it applies in accordance with
Schedule 5 of that Act).
91F After section 96
Insert:
96A
Powers of Registrar—ILUAs and future act negotiations
The Registrar has the powers set out in
Part 2.
91G After subsection 108(1A)
Insert:
Reconsideration of claims
(1AA) The Tribunal has the functions in relation to
applications for the reconsideration of claims made to the Tribunal under
section 190E that are given to it under that section.
91H After paragraph 123(1)(ca)
Insert:
(cb) the person who is to constitute
the Tribunal for the purposes of reconsidering a decision of the Registrar not
to accept a claim;
92 At the end of section 124
Add:
Constitution—inquiry into objection to registration of
indigenous land use agreement
(3) The Tribunal must not be constituted by,
or include, for the purposes of an inquiry in relation to a subsection 24DJ(1)
objection application, a member who has assisted a party to the agreement to
which the application relates in negotiations as mentioned in subsection
24DJ(2), unless the parties otherwise agree.
93 Paragraph 139(d)
After “indigenous land use agreement”, insert “(a subsection
24DJ(1) objection application)”.
94 Subsection 141(4)
Omit “into whether a person satisfies the Tribunal that it would
not be fair and reasonable to register an indigenous land use agreement”,
substitute “in relation to a subsection 24DJ(1) objection application”.
Note: The heading to subsection 141(4) is replaced by
the heading “Subsection 24DJ(1) objection applications”.
95 After section 163
Insert:
163AA
Reports after inquiries into subsection 24DJ(1) objection applications
Tribunal to make report
(1) After holding an inquiry in relation to a
subsection 24DJ(1) objection application, the Tribunal must make a report about
the matters covered by the inquiry.
Tribunal must state findings of fact
(2) The Tribunal must state in the report any
findings of fact upon which it is based.
96 Subsection 169(2)
Omit “relating to registration of an indigenous land use
agreement”, substitute “in relation to a subsection 24DJ(1) objection
application”.
Note: The heading to subsection 169(2) is replaced by
the heading “Subsection 24DJ(1) objection applications”.
96A Subparagraph 186(1)(g)(i)
After “the Registrar”, insert “or the NNTT”.
97 Paragraph 190(1)(a)
After “under section 190A”, insert “or in response to
notification by the NNTT under section 190E”.
98 Paragraph 190(3)(a)
Repeal the paragraph, substitute:
(a) amend the Register to reflect the
amendment if:
(i) the claim is accepted
for registration under section 190A; or
(ii) the claim is accepted
for registration on reconsideration under section 190E; or
(iii) the claim is accepted
for registration under section 190A but, because subsection 190A(1A)
applies, the Registrar need not consider the claim made in an amended
application; or
99 Paragraph 190(3)(b)
After “under section 190A”, insert “or in response to
notification by the NNTT under section 190E”.
100 After paragraph 190(4)(d)
Insert:
(da) if an approved determination of
native title is made to the effect that native title exists in relation to an
area:
(i) but no determination
has yet been made under section 56; or
(ii) a determination has
been made under section 56 that the native title rights and interests are
to be held by the common law holders, but no determination has yet been made
under subsection 57(2) of which prescribed body corporate is to perform the
functions mentioned in subsection 57(3);
amend the entry on the Register
that relates to the claim so that it reflects that fact; or
101 Subsection 190A(2)
Repeal the subsection, substitute:
Effect of certain notices
(2) If, either before the Registrar begins to
do so or while he or she is doing so, a notice is given in accordance with:
(a) paragraph 24MD(6B)(c); or
(b) section 29; or
(c) a provision of a law of a State or
Territory that corresponds to section 29 and is covered by a determination
in force under section 43; or
(d) a provision of a law of a State or
Territory that corresponds to section 29 and is covered by a determination
in force under section 43A;
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:
(e) in a paragraph (a) case—2
months after the notice is given; or
(f) in a paragraph (b) case—4
months after the notification day specified in the notice; or
(g) in a paragraph (c) case—the
period, in the law of the State or Territory, that corresponds to the period of
4 months mentioned in paragraph 30(1)(a); or
(h) in a paragraph (d) case—the
period at the end of which any person who is a registered native title claimant
or registered native title body corporate has a right to be consulted about the
act, to object to the act or to participate in negotiations about the act.
Otherwise, claim to be considered as soon as is
practicable
(2A) In any other case, the Registrar must
finish considering the claim as soon as is practicable.
102 Subsection 190A(6)
Repeal the subsection, substitute:
Test for registration
(6) The Registrar must accept the claim for
registration if:
(a) either:
(i) the claim was made in
an application given to the Registrar under section 63; or
(ii) the claim was made in
an amended application given to the Registrar under subsection 64(4) and subsection (6A)
of this section does not apply; and
(b) the claim satisfies all of the
conditions in:
(i) section 190B
(which deals mainly with the merits of the claim); and
(ii) section 190C
(which deals with procedural and other matters).
(6A) The Registrar must accept the claim (the later
claim) for registration if:
(a) a claim (the earlier claim)
was made in an application given to the Registrar under section 63 or
subsection 64(4) (the earlier application); and
(b) the Registrar accepted the earlier
claim for registration under subsection (6) of this section; and
(c) the later claim was made in an
application given to the Registrar under subsection 64(4) that amends the
earlier application; and
(d) the Registrar is satisfied that
the only effect of the amendment is to do one or more of the following:
(i) reduce the area of
land or waters covered by the application, in circumstances where the
information and map contained in the application, as amended, 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;
(ii) remove a right or
interest from those claimed in the application;
(iii) change the name in the
application of the representative body, or one of the representative bodies,
recognised for the area covered by the application, in circumstances where the
body’s name has been changed or the body has been replaced with another
representative body or a body to whom funding is made available under
section 203FE;
(iv) change the name in the
application of the body to whom funding was made available under
section 203FE in relation to all or part of the area covered by the
application, in circumstances where the body’s name has been changed or the body
has been replaced by another such body or a representative body;
(v) alter the address for
service of the person who is, or persons who are, the applicant.
(6B) If neither subsection (6) nor (6A)
applies, 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).
103 Subsection 190B(1)
Omit “paragraph 190A(6)(a)”, substitute “subparagraph 190A(6)(b)(i)”.
104 Subsection 190C(1)
Omit “paragraph 190A(6)(b)”, substitute “subparagraph
190A(6)(b)(ii)”.
105 Paragraph 190C(4)(a) (at the end of the note)
Add “A representative Aboriginal/Torres Strait Islander body may
certify the application, even if it is only the representative body for part of
the area claimed.”.
106 After subsection 190C(4)
Insert:
Certification not affected if Aboriginal/Torres Strait
Islander body subsequently ceases to be recognised
(4A) To avoid doubt, the certification of an
application under Part 11 by a representative Aboriginal/Torres Strait
Islander body is not affected merely because, after certification, the
recognition of the body as the representative Aboriginal/Torres Strait Islander
body for the area concerned is withdrawn or otherwise ceases to have effect.
107 Section 190D
Repeal the section, substitute:
190D
If the claim cannot be registered—notice of decision
(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) if the Registrar does not accept
the claim because the Registrar is notified by the NNTT under section 190E
that he or she should not do so—a copy of the NNTT’s statement of reasons for
its decision; or
(b) otherwise—a statement of the
Registrar’s reasons for his or her decision.
Content of notice where failure to satisfy physical
connection test
(2) If the only reason why the claim is not
accepted 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 section 190F and of the power of the Court to make
an order in accordance with that section in respect of the application.
Statements of reasons must specify whether
section 190B satisfied
(3) If the Registrar’s decision not to accept
the claim is not in response to notification by the NNTT under
section 190E, the Registrar’s statement of reasons for the decision must
include a statement on:
(a) whether, in the opinion of the
Registrar, the claim for registration satisfies all of the conditions in section 190B;
and
(b) whether, in the opinion of the
Registrar, it is not possible to determine whether the claim for registration
satisfies all of the conditions in section 190B because of a failure to
satisfy section 190C.
190E
If the claim cannot be registered—reconsideration by the NNTT
Application to reconsider a claim
(1) If the Registrar gives the applicant a
notice under subsection 190D(1), then, subject to subsections (3) and (4),
the applicant may apply to the NNTT to reconsider the claim made in the
application.
(2) The application must:
(a) be in writing; and
(b) be made within 42 days after the
notice under subsection 190D(1) is given; and
(c) state the basis on which the
reconsideration is sought.
(3) The applicant may not make an application
to the NNTT for reconsideration of the claim if the applicant has already made
an application to the Federal Court under subsection 190F(1) for review of the
decision.
(4) The applicant may apply to the NNTT for
reconsideration of the claim no more than once.
Constitution of NNTT for purposes of reconsidering the
claim
(5) For the purposes of reconsidering the
claim, the NNTT must be constituted by a single member.
(6) The member of the NNTT who reconsiders
the claim may not take any part in the proceeding in relation to the claim
(including any review or inquiry in relation to the claim), unless the parties
to the proceeding otherwise agree.
NNTT’s reconsideration of the claim
(7) In reconsidering the claim:
(a) the NNTT must have regard to any
information to which the Registrar was required to have regard under
subsections 190A(3) to (5) in considering the claim; and
(b) the NNTT may have regard to any
other information which the NNTT regards as appropriate in reconsidering
the claim.
Effect of certain notices
(8) If, either before the NNTT begins to do
so or while it is doing so, a notice is given in accordance with:
(a) paragraph 24MD(6B)(c); or
(b) section 29; or
(c) a provision of a law of a State or
Territory that corresponds to section 29 and is covered by a determination
in force under section 43; or
(d) a provision of a law of a State or
Territory that corresponds to section 29 and is covered by a determination
in force under section 43A;
in relation to an act affecting any of the land or waters
in the area covered by the application, the member reconsidering the claim must
use his or her best endeavours to finish reconsidering the claim by the end of:
(e) in a paragraph (a) case—2
months after the notice is given; or
(f) in a paragraph (b) case—4
months after the notification day specified in the notice; or
(g) in a paragraph (c) case—the
period, in the law of the State or Territory, that corresponds to the period of
4 months mentioned in paragraph 30(1)(a); or
(h) in a paragraph (d) case—the
period at the end of which any person who is a registered native title claimant
or registered native title body corporate has a right to be consulted about the
act, to object to the act or to participate in negotiations about the act.
Otherwise, claim to be reconsidered as soon as is
practicable
(9) In any other case, the NNTT must finish
reconsidering the claim as soon as is practicable.
Notifying the Registrar of the NNTT’s decision
(10) The NNTT must notify the Registrar that
the Registrar should 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).
(11) In any other case, the NNTT must notify
the Registrar that the Registrar should not accept the claim, and include in
that notice a statement of the NNTT’s reasons for its decision. The statement
of reasons for the decision must include a statement on:
(a) whether, in the opinion of the
member who reconsidered the claim, the claim for registration satisfies all of
the conditions in section 190B; and
(b) whether, in the opinion of the
member who reconsidered the claim, it is not possible to determine whether the
claim for registration satisfies all of the conditions in section 190B
because of a failure to satisfy section 190C.
(12) For the purposes of subsection (10),
sections 190B and 190C apply as if a reference to the Registrar in those
sections were a reference to the NNTT.
(13) The Registrar must comply with a notice
given to the Registrar under subsection (10) or (11).
190F
If the claim cannot be registered—review by Federal Court
Applicant may apply to Federal Court for review
(1) If the Registrar gives the applicant a
notice under subsection 190D(1), the applicant may apply to the Federal Court
for a review of the Registrar’s decision not to accept the claim, provided the
NNTT is not reconsidering the claim under section 190E at the time the
application is made.
Federal Court has jurisdiction
(2) The Court has jurisdiction to hear and
determine an application made to it under subsection (1).
Court order where physical connection test failed
(3) If, on an application under subsection (1)
in a case to which subsection 190D(2) 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
(4) Before making an order under subsection (3),
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.
Where no application for review, or Court does not make
order under subsection (4) on review
(5) Subsection (6) applies in a case
where:
(a) the Registrar does not accept the
claim for registration either because, in the opinion of the Registrar or, if
the claim is reconsidered under section 190E, of the member of the NNTT
reconsidering the claim:
(i) it does not satisfy
all of the conditions in section 190B; or
(ii) it is not possible to
determine whether all of the conditions in section 190B have been
satisfied because of a failure to satisfy section 190C; and
(b) the Court is satisfied that the
avenues for:
(i) the reconsideration
under section 190E of the Registrar’s decision; and
(ii) the review under this
section of the Registrar’s decision; and
(iii) the review of orders
made in the determination of an application under this section; and
(iv) the review of the
Registrar’s decision under any other law;
have all been exhausted without
the registration of the claim.
(6) The Court may, either on the application
of a party or on its own motion, dismiss the application in which the claim was
made (the application in issue) if:
(a) the Court is satisfied that the
application in issue has not been amended since consideration by the Registrar,
and is not likely to be amended in a way that would lead to a different outcome
once considered by the Registrar; and
(b) in the opinion of the Court, there
is no other reason why the application in issue should not be dismissed.
108 Paragraph 193(1)(c)
Repeal the paragraph.
109 At the end of section 193
Add:
(5) The Registrar may also include in the
Register details of other determinations of, or in relation to, native title
decisions of courts or tribunals.
110 Subsection 199(2)
Repeal the subsection, substitute:
Definition
(2) In this section:
relevant land titles office means the body
responsible for keeping a register of interests in real estate under the law of
the State or Territory within whose jurisdictional limits the land or waters
covered by the determination or decision are located.
111 Subsection 199B(3)
Omit “paragraph 24BH(1)(a),”, substitute “subsection 24BH(1) or
paragraph”.
111A At the end of section 199B
Add:
Updating parties’ contact details
(4) If a party to an agreement notifies the
Registrar of a change in the address at which the party can be contacted, the
Registrar must update the Register to reflect the change.
112 Subparagraph 199C(1)(c)(i)
Repeal the subparagraph, substitute:
(i) a party advises the
Registrar in writing that the agreement has expired, and the Registrar
believes, on reasonable grounds, that the agreement has expired; or
113 At the end of section 203BK
Add:
Information obtained in providing assistance not to be
used or disclosed in other contexts
(4) The NNTT must not use or disclose
information to which it has had access only because it provided assistance
under subsection (3) for any purpose other than providing that assistance without
the prior consent of the person who provided the NNTT with the
information.
114 Section 222 (after the table item dealing with
subject to section 24FA protection)
Insert:
subsection 24DJ(1) objection application 253
115 Subsection 223(3) (note)
Omit “permissible”, substitute “valid”.
116 Section 253 (definition of right to negotiate
application)
Omit “139(1)(b)”, substitute “139(b)”.
117 Section 253
Insert:
subsection 24DJ(1) objection application has
the meaning given by paragraph 139(d).
Native Title Amendment Act 2007
118 Subitem 89(3) of Schedule 2
Repeal the subitem, substitute:
(3) If, either before the Registrar begins to
reconsider, or consider, the claim in accordance with subitem (2), or
while the Registrar is doing so, a notice is given in accordance with:
(a) paragraph 24MD(6B)(c); or
(b) section 29; or
(c) a provision of a law of a State or
Territory that corresponds to section 29 and is covered by a determination
in force under section 43; or
(d) a provision of a law of a State or
Territory that corresponds to section 29 and is covered by a determination
in force under section 43A;
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 under section 190A by the end
of:
(e) in a paragraph (a) case—2
months after the notice is given; or
(f) in a paragraph (b) case—4
months after the notification day specified in the notice; or
(g) in a paragraph (c) case—the
period, in the law of the State or Territory, that corresponds to the period of
4 months after the notification day specified in a notice under section 29;
or
(h) in a paragraph (d) case—the
period at the end of which any person who is a registered native title claimant
or registered native title body corporate has a right to be consulted about the
act, to object to the act or to participate in negotiations about the act.
119 Subitem 90(3) of Schedule 2
Repeal the subitem, substitute:
(3) If, either before the Registrar begins to consider,
or reconsider, the claim in accordance with subitem (2), or while the
Registrar is doing so, a notice is given in accordance with:
(a) paragraph 24MD(6B)(c); or
(b) section 29; or
(c) a provision of a law of a State or
Territory that corresponds to section 29 and is covered by a determination
in force under section 43; or
(d) a provision of a law of a State or
Territory that corresponds to section 29 and is covered by a determination
in force under section 43A;
in relation to an act affecting any land or waters covered by the
application, the Registrar must use his or her best endeavours to finish
considering, or reconsidering, the claim under section 190A:
(e) in a paragraph (a) case—2
months after the notice is given; or
(f) in a paragraph (b) case—4
months after the notification day specified in the notice; or
(g) in a paragraph (c) case—the
period, in the law of the State or Territory, that corresponds to the period of
4 months after the notification day specified in a notice under section 29;
or
(h) in a paragraph (d) case—the
period at the end of which any person who is a registered native title claimant
or registered native title body corporate has a right to be consulted about the
act, to object to the act or to participate in negotiations about the act.
Part 2—Application and other provisions
120 Definitions
In this Part:
commencing day means the day on which item 1
of this Schedule commences.
Principal Act means the Native Title Act 1993.
121 Applications of items 7 to 14 and items 18,
19, 27, 28 and 111
The amendments made by items 7 to 14 and items 18, 19,
27, 28 and 111 apply in relation to notices given on or after the commencing
day.
122 Application of items 4, 5, 15, 16, 20, 24, 25, 30,
57, 66, 67, 68, 89 and 113
The amendments made by items 4, 5, 15, 16, 20, 24, 25, 30,
57, 66, 67, 68, 89 and 113 apply in relation to the disclosure or use on or
after the commencing day of information obtained in providing assistance or
mediation, whether the information was obtained or the assistance or mediation provided
before or after the commencing day.
123 Application of items 22, 22A, 23, 31, 31A, 32, 78,
84, 91G, 91H, 96A, 97, 98, 99, 101, 102, 103, 104 and 107
The amendments made by items 22, 22A, 23, 31, 31A, 32, 78,
84, 91G, 91H, 96A, 97, 98, 99, 101, 102, 103, 104 and 107 apply in relation to
claims in a native title determination application made or amended on or after
the commencing day.
124 Application of item 33
The amendment made by item 33 applies in relation to a
single lease, licence, permit or authority granted on or after the commencing
day.
125 Application of items 36, 37, 39, 40, 44, 45, 47,
48, 50, 51, 53 and 54
The amendments made by items 36, 37, 39, 40, 44, 45, 47, 48,
50, 51, 53 and 54 apply in relation to notices given or things done on or after
the commencing day.
126 Application of item 42
The amendment made by item 42 applies in relation to notifications
given under paragraph 24MD(6B)(c) of the Principal Act on or after the
commencing day.
127 Applications of amendments made by items 62 and 63
The amendments made by items 62 and 63 apply to:
(a) the making of determinations on or
after the commencing day; and
(b) the revocation on or after the
commencing day of determinations made before, on or after the commencing day;
except where the determinations are those mentioned in item 138.
128 Application of items 71 to 74
The amendments made by items 71 to 74 apply in relation to a
claimant application made on or after the commencing day.
129 Application of item 76
The amendment made by item 76 applies in relation to a
compensation application made on or after the commencing day.
130 Application of item 80
The amendment made by item 80 applies in relation to notices
given by the Registrar under paragraph 66(3)(a) of the Principal Act on or
after the commencing day.
131 Application of item 81
The amendment made by item 81 applies in relation to amended
applications of which the Registrar is given a copy under section 64 of
the Principal Act on or after the commencing day.
132 Application of item 82
The amendments made by item 82 apply in relation to a
claimant application, or a compensation application, whether made before or
after the commencing day.
132A Application of items 83A to 83C, and
items 91A to 91E
The amendments made by items 83A to 83C, and by
items 91A to 91E of this Schedule apply to an application under
section 61 of the Native Title Act 1993, regardless of whether it
is made before or after the commencing day.
133 Application of item 88
The amendment made by item 88 applies in relation to an
application made under section 61 of the Principal Act, if the person or
persons making the application were required under the Principal Act to be
authorised when the application was made.
134 Application of item 91
The amendment made by item 91 applies in relation to an
application under section 61 of the Principal Act, regardless of whether the
application is made before or after the commencing day.
135 Application of item 92
The amendment made by item 92 applies in relation to
inquiries begun on or after the commencing day.
136 Effect of amendments of sections 190A to 190D of
the Principal Act on transitional arrangements in the Native Title Amendment
Act 2007
To avoid doubt, the amendments made in relation to
sections 190A to 190D of the Principal Act in items 22, 22A, 23, 31,
31A, 32, 78, 84, 91G, 91H, 96A, 97, 98, 99, 101, 102, 103, 104 and 107 of this
Schedule (including the insertion of sections 190E and 190F) are to be
disregarded for the purposes of items 89 and 90 of Schedule 2 to the Native
Title Amendment Act 2007.
137 Application of amendments made by items 118 and 119
The amendments made by items 118 and 119 of the Schedule
apply where a notice is given on or after the commencing day in accordance
with:
(a) paragraph 24MD(6B)(c) of the
Principal Act; or
(b) section 29 of the Principal
Act; or
(c) a provision of a law of a State or
Territory that corresponds to section 29 of the Principal Act and is
covered by a determination in force under section 43 of that Act; or
(d) a provision of a law of a State or
Territory that corresponds to section 29 of the Principal Act and is
covered by a determination in force under section 43A of that Act.
138 Validation of certain pre‑commencement determinations
in relation to South Australian alternative provisions etc.
Validation
(1) To avoid doubt, the following determinations made
by the Commonwealth Minister under paragraph 43(1)(b) of the Principal Act are,
and are taken always to have been, valid:
(a) the determination made on 18 October
1995 in relation to alternative provisions consisting of section 58 and
Part 9B of the Mining Act 1971 of South Australia, as amended by
the Mining (Native Title) Amendment Act 1995 of that State;
(b) the determination made on 16 April
1997 in relation to alternative provisions consisting of Part 7 of the Opal
Mining Act 1995 of South Australia.
How subsection 43(3) applies to Mining Act alternative
provisions
(2) For the purposes of applying subsection 43(3) of
the Principal Act after the commencing day to the alternative provisions
mentioned in paragraph (1)(a) of this item, it is to be assumed that:
(a) subsection 43(2A) of that Act, as
inserted by this Schedule, applied when the determination mentioned in paragraph (1)(a)
of this item was made, and at all times afterwards; and
(b) the reference in subsection
43(2A), as so applying, to conjunctive agreement/determination provisions or
expedited procedure provisions included a reference to the Mining Act umbrella
provisions.
Definition
(3) In subitem (2):
Mining Act umbrella provisions means:
(a) the provisions of Part 9B of
the Mining Act 1971 of South Australia, as in force when the
determination mentioned in paragraph (1)(a) of this item was made, so far
as those provisions relate to umbrella authorisations within the meaning of
section 63K of that Act as so in force; or
(b) provisions that are of
substantially the same effect.
How subsection 43(3) applies to Opal Mining Act
alternative provisions
(4) For the purposes of applying subsection 43(3) of the
Principal Act after the commencing day to the alternative provisions mentioned
in paragraph (1)(b) of this item, it is to be assumed that:
(a) subsection 43(2A) of that Act, as
inserted by this Schedule, applied when the determination mentioned in paragraph (1)(b)
of this item was made, and at all times afterwards; and
(b) the reference in subsection
43(2A), as so applying, to conjunctive agreement/determination provisions or
expedited procedure provisions included a reference to the Opal Mining Act
umbrella provisions.
Definition
(5) In subitem (4):
Opal Mining Act umbrella provisions means:
(a) the provisions of Part 7 of
the Opal Mining Act 1995 of South Australia, as in force when the
determination mentioned in paragraph (1)(b) of this item was made, so far
as those provisions relate to umbrella authorisations within the meaning of
section 53 of that Act as so in force; or
(b) provisions that are of
substantially the same effect.
139 Entitlement to “just terms” compensation
(1) If, apart from this item, item 138 would
result in a paragraph 51(xxxi) acquisition of property of a person other than
on paragraph 51(xxxi) just terms, the person is entitled to such compensation,
or compensation in addition to any otherwise provided by the Principal Act, from
the Commonwealth as is necessary to ensure that the acquisition is made on
paragraph 51(xxxi) just terms.
Federal Court’s jurisdiction
(2) The Federal Court has jurisdiction with respect to
matters arising under subitem (1) and that jurisdiction is exclusive of
the jurisdiction of all other courts except the High Court.
Schedule 2—Amendments relating to representative bodies
Part 1—Amendments
Native Title Act 1993
1 Section 201A (definition of exempt State body)
Repeal the definition.
2 Subsection 203AD(3)
Repeal the subsection.
3 Subsection 203CB(3)
Omit all the words after “investment of money”, substitute “under
subsection (2), unless the provision expressly states that it applies to
such a contract”.
4 Division 6 of Part 11
Repeal the Division, substitute:
Division 6—Conduct of directors and other executive officers
203E
Application of Division
This Division does not apply to anything
that is not related to the performance of the functions of a representative
body or the exercise of its powers.
203EA
Representative bodies that are not corporations
(1) This section applies to a representative
body that is neither:
(a) registered under the Corporations
(Aboriginal and Torres Strait Islander) Act 2006; nor
(b) a company incorporated under the Corporations
Act 2001.
(2) Division 4 (other than sections 27C,
27J and 27K) and Division 4A of Part 3 of the Commonwealth
Authorities and Companies Act 1997, and Schedule 2 to that Act, apply
in relation to the body as if:
(a) each reference in that Division or
Schedule to a Commonwealth authority were a reference to the representative
body; and
(b) each reference in that Division or
Schedule to an officer of a Commonwealth authority were a reference to an
executive officer of the representative body; and
(c) each reference in that Division or
Schedule to a director of a Commonwealth authority were a reference to a
director of the representative body; and
(d) each reference in that Division or
Schedule to the Finance Minister were a reference to the Commonwealth Minister.
Note 1: Provisions similar to Division 4 of
Part 3 of the Commonwealth Authorities and Companies Act 1997 and
Schedule 2 to that Act already apply to a representative body registered
under the Corporations (Aboriginal and Torres Strait Islander) Act 2006.
Note 2: Similar provisions already apply under the Corporations
Act 2001 to representative bodies that are companies incorporated under
that Act.
(3) A director of the representative body who
has a material personal interest in a matter that is being considered by the
body’s governing body:
(a) must not be present during any
deliberation by the governing body on the matter; and
(b) must not take part in any decision
of the governing body on the matter.
However, a contravention of this provision does not affect
the validity of any resolution.
203EB
Representative bodies registered under the Corporations (Aboriginal and
Torres Strait Islander) Act 2006
(1) This section applies in relation to a representative
body that is registered under the Corporations (Aboriginal and Torres Strait
Islander) Act 2006.
(2) Division 4A of Part 3 of the Commonwealth
Authorities and Companies Act 1997 applies in relation to the body as if:
(a) each reference in that Division to
a Commonwealth authority were a reference to the representative body; and
(b) each reference in that Division to
an officer of a Commonwealth authority were a reference to an officer of the
representative body; and
(c) in paragraph 27M(3)(b), the words
“a civil penalty order under clause 3 of Schedule 2 or a compensation
order under clause 4 of Schedule 2” were replaced with “a civil
penalty order under section 386‑10 or a compensation order under
section 386‑15 of the Corporations (Aboriginal and Torres Strait
Islander) Act 2006, made in relation to a breach of subsection 265‑1(1),
265‑5(1) or (2), 265‑10(1) or (2) or 265‑15(1) or (2) of that
Act”; and
(d) in paragraph 27M(4)(c), the words
“brought by the Finance Minister for a court order” were replaced with “brought
by the Registrar of Aboriginal and Torres Strait Islander Corporations under
section 386‑20 or subsection 386‑55(8) of the Corporations
(Aboriginal and Torres Strait Islander) Act 2006 for a court order”; and
(e) in paragraph 27M(4)(d), the words
“this Act” were omitted, and replaced with “section 386‑60 of the Corporations
(Aboriginal and Torres Strait Islander) Act 2006 against an application
under section 386‑20 of that Act, or for relief to the person under
section 576‑1 of that Act,”; and
(f) the reference to the Finance
Minister in the final sentence of subsection 27M(4) were a reference to the
Registrar of Aboriginal and Torres Strait Islander Corporations, and the note
after the subsection were omitted; and
(g) the reference in paragraph
27N(2)(b) to sections 24 and 25 of the Commonwealth Authorities and
Companies Act 1997 were a reference to sections 265‑10 and 265‑15
respectively of the Corporations (Aboriginal and Torres Strait Islander) Act
2006.
Note: Provisions similar to Division 4 of Part 3
of the Commonwealth Authorities and Companies Act 1997 and Schedule 2
to that Act already apply in relation to companies incorporated under the Corporations
Act 2001.
203EC
Sections 203EA to 203EB not to affect certain obligations
To avoid doubt, sections 203EA and
203EB do not affect the obligations imposed by the Commonwealth Authorities
and Companies Act 1997 upon a representative body that is a Commonwealth
authority within the meaning of section 7 of that Act.
5 Section 203FB
Repeal the section, substitute:
203FB
Review of assistance decisions
Persons may apply for review
(1) An Aboriginal person or Torres Strait
Islander affected by a decision of a representative body not to assist him or her
in the performance of its facilitation and assistance functions under section 203BB
may apply to the Secretary of the Department for review of the decision.
Note: The Aboriginal person or Torres Strait
Islander is able to obtain a statement of reasons etc. for the decision from
the representative body under section 13 of the Administrative
Decisions (Judicial Review) Act 1977.
Appointment of person to conduct the review
(2) As soon as practicable after receiving
the application, the Secretary must:
(a) review the representative body’s
decision; or
(b) appoint to conduct the review a
person who, in the Secretary’s opinion, has skills or knowledge in relation to
matters of substantial relevance to the conduct of the review.
203FBA
External review
This section applies to external review
(1) This section applies if the Secretary of
the Department appoints a person under paragraph 203FB(2)(b) to conduct the
review.
Review of decision
(2) Subject to subsection (4), the
person appointed must review the representative body’s decision and report to
the Secretary whether:
(a) the decision should be affirmed;
or
(b) the Secretary should make funding
available under section 203FE to a person or body for the purpose of
performing specified facilitation and assistance functions of a representative
body in relation to the matter to which the representative body’s decision
relates.
Matters to be taken into account when conducting review
(3) In reviewing the representative body’s
decision, the person appointed must have regard to:
(a) whether it would be consistent
with priorities determined by the representative body under paragraph
203B(4)(a) to provide the assistance sought; and
(b) whether, to provide the assistance
sought, the representative body would need to allocate or re‑allocate
resources in a way that interferes with the efficient performance of its
functions; and
(c) whether the representative body
would breach a condition imposed under section 203CA if the representative
body were to provide the assistance sought; and
(d) if the assistance sought was in
relation to an application under section 61:
(i) whether the provision
of that assistance would promote an orderly, efficient and cost‑effective
process for making such applications; and
(ii) in a case where one or
more other applications have been made or are proposed to be made in relation
to land or waters covered by the application—whether the provision of the
assistance sought would be reasonable given the need to minimise the number of
applications covering the land or waters; and
(e) any other matter relevant to the
merits of the decision.
Failure to use internal review procedures
(4) The person appointed must refuse to
review the representative body’s decision if satisfied that the applicant did
not, before applying for the review, make all reasonable efforts to seek a
review by the representative body of its decision.
Report to be given within 60 days
(5) The person appointed must give the report
referred to in subsection (2) to the Secretary within 60 days after the
day on which he or she was appointed, or within such other period as the
Secretary allows (whether or not the 60 days have expired).
Inviting submissions
(6) Before reviewing the representative
body’s decision, the person appointed must invite the representative body to
make a submission in relation to the decision. The invitation must specify a
period of not less than 14 days within which submissions must be made.
Action to be taken by the Secretary
(7) The Secretary must, within one month
after the end of the period referred to in subsection (5):
(a) affirm the representative body’s
decision; or
(b) make funding available under
section 203FE as mentioned in paragraph (2)(b) of this section.
Notice of decision on review
(8) The Secretary must give the applicant and
the representative body written notice of the Secretary’s decision under subsection (7).
The notice must include the reasons for that decision.
203FBB
Review by Secretary of the Department
This section applies to review by Secretary
(1) This section applies if the Secretary of
the Department conducts the review.
Review of decision
(2) Subject to subsection (4), the
Secretary must review the representative body’s decision and decide whether:
(a) the representative body’s decision
should be affirmed; or
(b) the Secretary should make funding
available under section 203FE to a person or body for the purpose of
performing specified facilitation and assistance functions of a representative
body in relation to the matter to which the representative body’s decision
relates.
Matters to be taken into account when conducting review
(3) In reviewing the representative body’s
decision, the Secretary must have regard to:
(a) whether it would be consistent
with priorities determined by the representative body under paragraph
203B(4)(a) to provide the assistance sought; and
(b) whether, to provide the assistance
sought, the representative body would need to allocate or re‑allocate
resources in a way that interferes with the efficient performance of its
functions; and
(c) whether the representative body
would breach a condition imposed under section 203CA if the representative
body were to provide the assistance sought; and
(d) if the assistance sought was in
relation to an application under section 61:
(i) whether the provision
of that assistance would promote an orderly, efficient and cost‑effective
process for making such applications; and
(ii) in a case where one or
more other applications have been made or are proposed to be made in relation
to land or waters covered by the application—whether the provision of the
assistance sought would be reasonable given the need to minimise the number of
applications covering the land or waters; and
(e) any other matter relevant to the
merits of the decision.
Failure to use internal review procedures
(4) The Secretary must refuse to review the
representative body’s decision if satisfied that the applicant did not, before
applying for the review, make all reasonable efforts to seek a review by the
representative body of its decision.
Inviting submissions
(5) Before reviewing the representative
body’s decision, the Secretary must invite the representative body to make a
submission in relation to the decision. The invitation must specify a period of
not less than 14 days within which submissions must be made.
Secretary to decide matter within 60 days
(6) The Secretary must make his or her
decision under subsection (2) within 60 days after the day on which the
application for review is made.
Notice of decision on review
(7) The Secretary must give the applicant and
the representative body written notice of the Secretary’s decision under subsection (2).
The notice must include the reasons for that decision.
6 Subsection 203FC(2)
Repeal the subsection, substitute:
Limit on directions
(2) Directions must not require the former
representative body to:
(a) allow the replacement body access
to documents and records of any kind mentioned in paragraph (1)(b) that
relate to a claim made in a claimant application or a compensation application;
or
(b) give the replacement body
documents and records of any kind mentioned in paragraph (1)(b) that
relate to a claim made in a claimant application or a compensation application,
or give copies of such documents or records;
unless the replacement body gives the Commonwealth
Minister notice, in writing, that the replacement body has been requested to
perform a representative body function in relation to the claim.
(2A) Directions must not require the former
representative body to:
(a) allow the replacement body access
to documents and records of any kind mentioned in paragraph (1)(b) that
relate to native title rights and interests that are the subject of a
determination of native title; or
(b) give the replacement body documents
and records of any kind mentioned in paragraph (1)(b) that relate to
native title rights and interests that are the subject of a determination of
native title, or give copies of such documents or records;
unless the replacement body gives the Commonwealth
Minister notice, in writing, that the replacement body has been requested to
perform a representative body function in relation to those native title rights
and interests.
7 After subsection 203FC(4)
Insert:
Former representative body under external administration
(4A) To avoid doubt, the Commonwealth Minister
may make a direction under subsection (1), and the former representative
body to which the direction applies must comply with the direction, even if the
former representative body is under external administration.
8 Subsection 203FE(2)
Omit “paragraph 203FB(7)(b)”, substitute “paragraph 203FBA(7)(b)
or 203FBB(2)(b)”.
9 Section 203FI
After “203FB,”, insert “203FBA, 203FBB,”.
Part 2—Application provisions
10 Application of item 4
The amendment made by item 4 applies in relation to conduct
that occurs on or after the day on which the item commences.
11 Application of item 5
The amendment made by item 5 applies where the application
for review is made on or after the day on which the item commences.
12 Application of item 6
The amendment made by item 6 applies to directions issued on
or after the day on which the item commences.
Schedule 3—Amendments relating to prescribed bodies corporate
Part 1—Amendments
Native Title Act 1993
1 Subsection 56(4)
Repeal the subsection, substitute:
Other matters relating to the trust to be dealt with by
regulation
(4) The regulations may also make provision
in respect of:
(a) the following matters relating to
the holding in trust of the native title rights and interests:
(i) the functions to be
performed by the body corporate;
(ii) the nature of any
consultation with, or other role for, the common law holders;
(iii) the circumstances in
which the rights and interests may be surrendered, transferred or otherwise
dealt with;
(iv) the determination of
any other matter by the Federal Court;
(v) any other matter; and
(b) the replacement of the trustee
where the common law holders wish the trustee to be replaced; and
(c) the determination by the Federal
Court of a prescribed body corporate to replace the trustee, and any other
matter in relation to the replacement of the trustee; and
(d) the termination of the trust
where:
(i) the common law holders
wish the trust to be terminated; or
(ii) a liquidator is appointed
for the body corporate; and
(e) the determination by the Federal
Court of a prescribed body corporate to perform the functions mentioned in
subsection 57(3) once the trust is terminated; and
(f) any matter in relation to the
termination of the trust, the performance of those functions and the transition
from the trust arrangement to the new arrangement, including the determination
of those matters by the Federal Court.
2 At the end of section 56
Add:
Where common law holders later wish a trust be determined
(7) The regulations may make provision in
respect of:
(a) the determination by the Federal
Court of a prescribed body corporate to hold the rights and interests from time
to time comprising the native title in trust for the common law holders where:
(i) a determination is
made, either under this section or under regulations made for the purposes of
this section, that the rights and interests are to be held by the common law
holders; and
(ii) the common law holders
wish a prescribed body corporate to instead hold those rights and interests in
trust; and
(b) the functions to be performed by
the prescribed body corporate, once determined; and
(c) the nature of any consultation
with, or other role for, the common law holders; and
(d) the circumstances in which the
rights and interests may be surrendered, transferred or otherwise dealt with;
and
(e) any other matter in relation to
the holding in trust of the native title rights and interests, and the
transition from the former to the new arrangement, including the determination
of the matter by the Federal Court.
3 Paragraph 57(2)(c)
Omit “prescribed body is to perform the functions”, substitute
“prescribed body corporate is to perform the functions”.
4 Paragraph 58(a)
After “section 56”, insert “, or regulations made for the
purposes of that section”.
5 Section 59
Repeal the section, substitute:
59
Kinds of prescribed bodies corporate may be determined
(1) The regulations may prescribe the kinds
of body corporate that may be determined under paragraph 56(2)(b) or 57(2)(b).
(2) The regulations may prescribe the body
corporate, or the kinds of body corporate, that may be determined under
paragraph 57(2)(c).
(3) The regulations may prescribe the body
corporate, or the kinds of body corporate, that may be determined under
paragraph 56(4)(c) or (e), 56(7)(a) or 60(b).
6 Section 60
Repeal the section, substitute:
60
Replacement of agent prescribed bodies corporate
The regulations may make provision for:
(a) the replacement of an agent
prescribed body corporate (the original PBC) with another
prescribed body corporate (the replacement PBC) to perform the
functions mentioned in subsection 57(3) where:
(i) the common law holders
wish the replacement to occur; or
(ii) a liquidator is
appointed for the original PBC; and
(b) the determination by the Federal
Court of the replacement PBC; and
(c) any matter in relation to the
transition from the original PBC to the replacement PBC, including the
determination of that matter by the Federal Court; and
(d) any other matters in relation to
the replacement of the original PBC with the replacement PBC.
7 At the end of Part 2
Add:
Division 7—Financial matters
60AB
Fees for services provided by registered native title bodies corporate in
performing certain functions
(1) A registered native title body corporate
may charge a person, other than a person mentioned in subsection (4), a
fee for costs the registered native title body corporate incurs when performing
one or more of the following functions:
(a) negotiating an agreement under
paragraph 31(1)(b);
(b) negotiating an agreement under
alternative provisions provided for by a law of a State or Territory in respect
of which the Commonwealth Minister has made a determination under paragraph
43(1)(b);
(c) negotiating indigenous land use
agreements under Subdivisions B, C and D of Division 3 of this Part.
(2) The regulations may provide for a
registered native title body corporate to charge a person, other than a person
mentioned in subsection (4), a fee for costs the registered native title
body corporate incurs when performing other functions specified in the
regulations.
(3) A fee imposed under subsection (1),
or under regulations made for the purposes of subsection (2), must not be
such as to amount to taxation.
(4) For the purposes of this section, a
registered native title body corporate may not charge the following persons a
fee:
(a) the common law holders for whom
the registered native title body corporate holds native title rights and
interests in trust;
(b) the common law holders for whom
the registered native title body corporate is an agent prescribed body
corporate;
(c) another registered native title
body corporate;
(d) a representative body;
(e) a registered native title claimant
or other person who claims to hold native title in relation to the land or
waters in:
(i) an area affected by an
act to which negotiations mentioned in subsection (1) relate; or
(ii) an area proposed to be
covered by an indigenous land use agreement.
(5) A registered native title body corporate
may not charge a person a fee for costs the registered native title body
corporate incurs when performing functions:
(a) as a party to a proceeding or an
inquiry in which:
(i) a determination that
an act must not be done; or
(ii) a determination that
an act may be done; or
(iii) a determination that
an act may be done subject to conditions being complied with;
may be made in respect of an act
to which negotiations mentioned in subsection (1) relate; and
(b) as a party to any court
proceedings; and
(c) in any other circumstances
prescribed by the regulations.
60AC
Opinion of the Registrar of Aboriginal and Torres Strait Islander Corporations
(1) If a registered native title body
corporate charges a person a fee in reliance on section 60AB, the person
may, in writing, request the Registrar of Aboriginal and Torres Strait Islander
Corporations (the Registrar) to give an opinion on whether the
fee is one that the body corporate may charge under that section.
(2) The Registrar may give an opinion, in
writing, on whether the fee is one that the registered native title body
corporate may charge under that section.
(3) If the Registrar gives the opinion that
the fee is not one that the registered native title body corporate may charge
under that section, the body corporate must withdraw the charge.
(4) An opinion given by the Registrar under
subsection (2) is not a legislative instrument.
(5) The regulations may make provisions
dealing with:
(b) the process by which the request
to the Registrar is made and considered; and
(c) the withholding of payment of the
fee in relation to which a request is made; and
(d) any other matters in relation to
the request, the consideration of the request, the giving of an opinion by the
Registrar, and the consequences of the giving of that opinion.
8 At the end of section 193
Add:
Registrar to reflect changes to prescribed bodies
corporate
(4) If:
(a) a prescribed body corporate that
holds the native title rights and interests on trust is replaced with another
prescribed body corporate as trustee; or
(b) the trust under which a prescribed
body corporate holds native title rights and interests is terminated and an
agent prescribed body corporate is determined; or
(c) an agent prescribed body corporate
in relation to native title rights and interests is replaced with another agent
prescribed body corporate in relation to those interests; or
(d) a prescribed body corporate ceases
to be an agent prescribed body corporate in relation to native title rights and
interests and a prescribed body corporate is determined to be trustee in
relation to those rights and interests;
the Registrar must update the Register to reflect the
change.
9 Section 197
Repeal the section, substitute:
197
Keeping the Register
(1) The Registrar must, as soon as is
practicable:
(a) include in the Register details of
determinations or decisions covered by subsection 193(1); and
(b) update the Register in accordance
with subsection 193(4).
10 Section 253 (paragraph (b) of the definition of
agent prescribed body corporate)
Omit “subsection 56(4)”, substitute “paragraph 56(4)(e)”.
10A 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
paragraph 193(2)(e) or subsection 193(4); or
(b) a body corporate whose name and
address are registered on the National Native Title Register under paragraph
193(2)(f).
Part 2—Transitional and application provisions
11 Application of items 1, 5 and 6
(1) To avoid doubt, nothing in the amendments made by
items 1, 5 and 6 of this Schedule is intended to affect:
(a) regulations made under
section 56, 59 or 60 of the Native Title Act 1993 that were in
force before, or are in force on or after, the commencement of this Schedule;
or
(b) anything done under those
regulations.
(2) Nothing in paragraph (1)(a) affects the power
to amend or repeal regulations mentioned in that paragraph.
12 Application of item 7
The amendment made by item 7 of this Schedule applies in
relation to functions performed on or after the day on which the item
commences.
Schedule 4—Technical amendments relating to legislative instruments
Native Title Act 1993
1 Paragraph 23HA(a)
Omit “in writing”, substitute “, by legislative instrument,”.
2 Paragraphs 24GB(9)(c) and 24GD(6)(a)
Omit “in writing”, substitute “, by legislative instrument,”.
3 Subparagraph 24GE(1)(f)(i)
Omit “in writing”, substitute “, by legislative instrument,”.
4 Paragraphs 24HA(7)(a), 24ID(3)(a) and 24JB(6)(a) and
(7)(a)
Omit “in writing”, substitute “, by legislative instrument,”.
5 Subsections 24KA(8), 24MD(7) and 24NA(9)
Omit “in writing”, substitute “, by legislative instrument,”.
6 Subparagraph 26(1)(c)(iv)
Omit “in writing”, substitute “by legislative instrument”.
7 Paragraphs 26(2)(b) and (c)
Omit “in writing”, substitute “, by legislative instrument,”.
8 Subsection 26A(1)
Omit “may determine in writing”, substitute “may, by legislative
instrument, determine”.
9 Subparagraph 26A(8)(a)(ii)
Omit “in writing”, substitute “by legislative instrument”.
10 Paragraph 26A(8)(b)
Omit “in writing”, substitute “by legislative instrument”.
11 Subsection 26B(1)
Omit “may determine in writing”, substitute “may, by legislative
instrument, determine”.
12 Paragraph 26B(9)(b)
Omit “in writing”, substitute “by legislative instrument”.
13 Subsection 26C(2)
Omit “may determine in writing”, substitute “may, by legislative
instrument, determine”.
14 Paragraph 26C(6)(b)
Omit “in writing”, substitute “by legislative instrument”.
15 Paragraph 43(1)(b)
Omit “in writing”, substitute “, by legislative instrument,”.
16 Paragraph 43(3)(b)
Omit “in writing”, substitute “by legislative instrument”.
17 Subparagraph 43(3)(c)(ii)
Omit “in writing”, substitute “, by legislative instrument,”.
18 Paragraph 43(3)(c)
Omit “in writing” (last occurring), substitute “by legislative
instrument”.
19 Subsection 43(3) (note)
Repeal the note.
20 Paragraph 43A(1)(b)
Omit “in writing”, substitute “, by legislative instrument,”.
21 Paragraph 43A(9)(b)
Omit “in writing”, substitute “by legislative instrument”.
22 Subparagraph 43A(9)(c)(ii)
Omit “in writing”, substitute “, by legislative instrument,”.
23 Paragraph 43A(9)(c)
Omit “in writing” (last occurring), substitute “by legislative
instrument”.
24 Subsection 43A(9) (note)
Repeal the note.
25 Subsection 207A(1)
Omit “in writing”, substitute “by legislative instrument”.
26 Paragraph 207A(4)(b)
Omit “in writing”, substitute “by legislative instrument”.
27 Subsection 207B(3)
Omit “in writing”, substitute “by legislative instrument”.
28 Paragraph 207B(7)(d)
Omit “in writing”, substitute “by legislative instrument”.
29 Section 214
Repeal the section.
30 Subsection 245(4)
Omit “in writing”, substitute “by legislative instrument”.
31 Subsections 251C(4) and (5)
Omit “makes a written determination to that effect”, substitute
“, by legislative instrument, so determines”.
32 Subsection 252(1)
After “give notice in the way determined”, insert “, by
legislative instrument,”.
33 Section 253 (paragraph (i) of the definition of
infrastructure facility)
Omit “in writing”, substitute “, by legislative instrument,”.
Native Title Amendment Act 1998
34 Subclause 14(3) of Schedule 5
Omit “in writing”, substitute “, by legislative instrument,”.
35 Subclause 14(3) of Schedule 5 (second sentence)
Repeal the sentence.
36 Clause 26 of Schedule 5 (note)
Repeal the note, substitute:
Note: Under section 214 of the Native Title
Act 1993, as in force at the time the original determination was made, the
original determination was a disallowable instrument for the purposes of
section 46A of the Acts Interpretation Act 1901, as in force at
that time, which meant that it was required under that Act, as then in force,
to be tabled.
Schedule 5—Applications
not considered or reconsidered under items 89 and 90 of Schedule 2 to the
Native Title Amendment Act 2007
1 Applications not considered or reconsidered under
items 89 and 90 of Schedule 2 to the Native Title Amendment Act 2007
(1) This item applies to a native title determination
application amended before the day on which this item commences by a person or
persons claiming to hold native title if:
(a) the application as amended is not
one to which item 89 or 90 of Schedule 2 to the Native Title Amendment
Act 2007 applies; and
(b) either:
(i) the Registrar has
decided not to accept the claim made in the application, as amended, for registration
before the day on which this item commences; and
(ii) the decision of the
Registrar is one to which section 190D of the Native Title Act 1993,
as in force immediately before the commencement of Schedule 2 to the Native
Title Amendment Act 2007, applies;
or:
(iii) the Registrar has not
yet decided whether to accept the claim made in the application, as amended,
for registration by the day on which this item commences; and
(iv) section 190D of
the Native Title Act 1993, as in force immediately before the
commencement of Schedule 2 to the Native Title Amendment Act 2007,
will apply if the Registrar decides not to accept the claim; and
(c) the claim is not on the Register
of Native Title Claims on the day on which this item commences.
(2) The Registrar must:
(a) reconsider the claim under
section 190A, as in force immediately before the commencement of this item
or, if the claim has not already been considered under that section, consider
the claim under that section; and
(b) use his or her best endeavours to
finish doing so by the end of one year after the day on which this item
commences.
If the Registrar does not do so by that time, the Registrar must
reconsider or consider (as the case requires) the claim under that section as
soon as reasonably practicable afterwards.
(3) If, either before the Registrar begins to
reconsider, or consider, the claim in accordance with subitem (2), or
while the Registrar is doing so, a notice is given in accordance with:
(a) paragraph 24MD(6B)(c), as in force
immediately before the commencement of this item; or
(b) section 29, as in force at
that time; or
(c) a provision of a law of a State or
Territory that corresponds to section 29, as in force at that time, and is
covered by a determination in force under section 43, as in force at that
time; or
(d) a provision of a law of a State or
Territory that corresponds to section 29, as in force at that time, and is
covered by a determination in force under section 43A, as in force at that
time;
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 under section 190A, as in force
at that time, by the end of:
(e) in a paragraph (a) case—2 months
after the notice is given; or
(f) in a paragraph (b) case—4
months after the notification day specified in the notice; or
(g) in a paragraph (c) case—the
period, in the law of the State or Territory, that corresponds to the period of
4 months after the notification day specified in a notice under
section 29, as in force at that time; or
(h) in a paragraph (d) case—the
period at the end of which any person who is a registered native title claimant
or registered native title body corporate has a right to be consulted about the
act, to object to the act or to participate in negotiations about the act.
(4) In reconsidering, or considering, a claim in
accordance with subitem (2) or (3), the Registrar must:
(a) in addition to having regard to
information in accordance with subsection 190A(3), as in force immediately
before the commencement of this item, also have regard to any information
provided by the applicant after the application was made; and
(b) apply section 190A, as in
force at that time, as if the conditions in sections 190B and 190C, as in
force at that time, requiring that the application:
(i) contain or be
accompanied by certain information or other things; or
(ii) be certified or have
other things done in relation to it;
also allowed the information or
other things to be provided, or the certification or other things to be done,
by the applicant or another person after the application is made; and
(c) for the purposes of
paragraphs (a) and (b) of this subitem, advise the applicant that the
Registrar is reconsidering, or considering, the claim, and allow the applicant
a reasonable opportunity to provide any further information or other things, or
to have any things done, in relation to the application.
(5) If the claim does not satisfy all of the conditions
in sections 190B and 190C, as in force immediately before the commencement
of this item:
(a) the Registrar must give written
notice as required by subsection 190D(1), as in force at that time; and
(b) the other provisions of
section 190A to 190D, as in force at that time, apply as if the notice
given under paragraph (a) were given under subsection 190D(1), as in force
at that time; and
(c) after the Registrar has complied
with subitems (2) to (4) and this subitem (in so far as they are
applicable), the Registrar is taken to have complied with section 190A.