NATIVE TITLE AMENDMENT BILL 1997 Explanatory Memorandum

36 Scheduled Interests ...................................................................................401

The following acronyms and abbreviations are used in this Explanatory Memorandum:

Introduction

1.1 This Explanatory Memorandum for the Native Title Amendment Bill 1997 provides an explanation of the clauses in that Bill and the items in its Schedules. To assist the reader of the Bill to understand more clearly how various provisions will operate and inter-relate once enacted, the explanations are grouped by topic into parts and chapters, with an index at the end setting out where the explanation for each clause and item is located.

1.2 Chapter 2 explains how the amendments in this Bill implement the Government’s 10 Point Plan in response to the High Court’s decision in the Wik^[1]case. Chapter 3 describes the background to these amendments, including a summary of the existing Native Title Act 1993 (the NTA) and the Wik decision. Chapter 3 also explains the effect of the High Court’s decision in the Brandy^[2]case and the Full Federal Court decision in the Fourmile^[3] case and the need for amendments to the functions and powers of the National Native Title Tribunal (the NNTT) and the Federal Court. Chapter 3 explains the background to the amendments in Schedule 3 dealing with representative Aboriginal/Torres Strait Islander bodies.

The history of the Bill in the Parliament

1.3 The Native Title Amendment Bill 1997 was introduced into House of Representatives on 4 September 1997. It was passed by the House on 29 October and was considered in the Senate between 25 November and 5 December. The Senate made 217 amendments to the Bill (see Schedule of amendments made by the Senate prepared by the Clerk of the Senate dated 5 December 1997) and passed the Bill as amended. The House of Representatives considered the Bill on 6 December 1997. Of the 217 amendments made by the Senate, 100 Government amendments and 25 non-Government amendments were agreed to by the House of Representatives on that day. The House disagreed with the balance of amendments. The House then laid the Bill aside.

1.4 Most amendments agreed to by the House of Representatives on 6 December 1997 have been incorporated in the Bill (for a list of amendments incorporated into the Bill see paragraph 1.27). Upon further examination, some non-Government amendments accepted by the House on 6 December 1997, may have technical or other deficiencies and therefore have not been incorporated into the Bill. It is anticipated that some will, in an amended form, be moved as Government amendments when the Bill is debated in the Senate. Further, where there is any doubt about whether the Senate ‘made’ a particular amendment, that amendment has also not been incorporated: where appropriate, that amendment will also be moved as a Government amendment in the Senate.

Overview of amendments in the Native Title Amendment Bill 1997

Amendments relating to acts affecting native title

1.5 Schedule 1 of the Bill deals with amendments relating to acts affecting native title etc (explained in Chapters 4 to 24). The amendments in this Schedule all concern the interaction between native title rights and interests and other rights and interests in land or waters. The amendments deal with the effect of certain acts done on or before 23 December 1996 (the date of the High Court’s decision in Wik) by:

• validating certain acts in the intermediate period between the commencement of the NTA (1 January 1994) and 23 December 1996 (see Chapter 4);

• confirming the total or partial extinguishment of native title by certain acts occurring on or before 23 December 1996 (as part of the confirmation process, Schedule 4 of the Bill will list certain interests in land or waters that will be confirmed as extinguishing native title) (see Chapter 5).

1.6 As well as dealing with the effect of actions in the past on native title, the amendments in Schedule 1 establish a much more comprehensive regime for the validity of acts occurring in the future which affect native title. Among other matters, the new future act regime covers:

• agreements about the use of land affected by native title (see Chapters 7, 22 and 23);

• acts in areas that have been reserved or otherwise set aside for a particular purpose (see Chapter 12)

• acts which can be done in relation to ordinary title, generally freehold, and can therefore also be done in relation to native title (the freehold test) (see Chapter 15);

• the right to negotiate process for certain future acts covered by the freehold test (mainly those relating to mining and some types of compulsory acquisitions) (see Chapters 18, 19, 20 and 21); and

• statutory access rights on certain leased land for native title claimants pending the determination of their claims (see Chapter 17).

Amendments relating to the management of claims

1.7 Schedule 2 of the Bill deals with amendments relating to processes for determining native title, compensation, etc. (explained in Chapters 25 to 32). These amendments explain how applications concerning native title issues are to be made and dealt with by the Federal Court, the NNTT and State or Territory bodies which have been approved under the Native Title Act 1993 in relation to applications about native title matters. Schedule 2 also contains amendments to the way in which the Register of Native Title Claims and the National Native Title Register are to be kept, and in particular, the new registration test that is to be applied to claims for native title. Registration of a claim is a precondition for access to certain statutory rights, such as the right to negotiate and statutory access rights.

Amendments relating to representative Aboriginal/Torres Strait Islander bodies

1.8 Schedule 3 deals with amendments relating to representative Aboriginal/Torres Strait Islander bodies (explained in Chapters 33 and 34). The amendments in this Schedule are divided into two parts, with differing commencement dates, to facilitate the transition from the current system for recognising and regulating representative bodies to the new system established by the amendments. As well as detailing the functions that are to be performed by representative bodies in relation to native title matters, the new system deals in a comprehensive manner with the selection, funding, accountability and administration of representative bodies. The amendments will ensure that a consistently high standard of service is provided to native title clients, that the Commonwealth Minister retains overall strategic control of representative body performance and that their accountability is in line with standards applying to other Commonwealth funded bodies.

List of Scheduled interests

1.9 Schedule 4 to the Bill contains new Schedule 1 to the NTA, which is referred to in the definition of ‘Scheduled interest’ in new section 249C. The completed Schedule was added to the Bill in the House of Representatives.

1.10 The Schedule contains types of leases and other interests the grant of which the relevant State or Territory, and the Commonwealth, consider, on the basis of the common law, have conferred exclusive possession on the grantee and have therefore extinguished native title. The Schedule principally contains specific types of residential, commercial, community purpose and agricultural leases. The Government’s policy is to ensure certainty with regard to those interests in the Schedule, as set out in the confirmation provisions (see Chapter 5).

Application and transitional measures

1.11 The application and transitional provisions are contained in Schedule 5 and are explained in Chapter 35. The provisions in this Schedule explain how the new future acts processes will apply to processes already underway when the amendments commence, what will happen to applications already made to the NNTT and the Federal Court and how the new registration test will apply to claims already on the Register of Native Title Claims. The transitional and application provisions also explain how certain other amendments made by the Bill will apply to things done or events occurring before and after the amendments commence.

Clauses in the Native Title Amendment Bill 1997

Short title

1.12 Clause 1 explains that the short title of the Act will be the Native Title Amendment Act 1997. The short title is the name by which the Bill will be known and cited when it is enacted.

Commencement

1.13 Clause 2 explains when the provisions of the Bill and its Schedules will commence, that is, when they become law.

Sections 1, 2 and 3

Part 1 of Schedule 3

1.15 The commencement date for Part 1 of Schedule 3 will be fixed by proclamation. If the Part has not been proclaimed to commence at the end of 9 months from Royal Assent, it will commence on the first day after that 9 month period expires. Schedule 3 contains amendments relating to representative bodies, and is explained in Chapters 33 and 34. There will be a transition period between the commencement of the provisions in Part 1 and the commencement of those in Part 2, which will assist the transition from the current system for recognising and regulating representative bodies to the new system. The transition period will begin on the date that Part 1 of Schedule 3 commences and will end when Part 2 of that Schedule commences.

Part 2 of Schedule 3

1.16 To ensure that the transition period is sufficiently long to enable necessary preparatory work to be completed before the new system begins, Part 2 of Schedule 3 will commence either 12 months after Part 1, or on a later date to be fixed by Proclamation. Such a proclamation would enable the transition period to extend beyond the 12 period from the commencement of Part 1 should this prove to be necessary, but the proclamation must be made before that 12 month period expires.

Remaining provisions

1.17 The remaining provisions in the Bill, which are the contents of Schedules 1, 2, 4 and 5, will commence when they are proclaimed. Different proclamations may be made for different provisions. If a provision has not been proclaimed to commence at the end of 9 months after Royal Assent, it will commence on the first day after that 9 month period expires.

Schedule(s)

1.18 Clause 3 explains how the Schedules operate to amend other Acts. It makes it clear that those Acts are amended by the items in the Schedules in the way set out in those items. Items which do not amend other Acts, for example, the items in Schedule 5 which deal with the application of amendments or transitional arrangements, have the effect set out in those items.

Constitutional basis

1.19 The High Court held in Western Australia v Commonwealth (1995) 183 CLR 373 that the NTA was supported by paragraph 51(xxvi) of the Constitution. Legal advice to the Government is that, on the basis of existing authority, the Bill is clearly supported by that power. Other powers may also be relevant.

Financial Impact Statement

1.20 In the 1997-98 Budget, the Government provided additional funding for the Federal Court and the NNTT in anticipation of increased workload and responsibilities flowing from the proposed procedural amendments contained in the Native Title Amendment Bill 1996. This Bill includes those amendments, introduces additional procedural enhancements and imposes new functions and duties on the NNTT. These additional items will also have financial implications for the Federal Court and the NNTT and any additional funding will be considered in the Budget context. If equivalent bodies are established by the States and Territories under Part 12A and are given some of the duties of the NNTT, the financial implications may be lessened.

1.21 Removing the ‘hardship’ test for the provision of financial assistance to native title respondents under section 183 of the NTA is likely to result in more grants to respondents. In particular, additional funding will be made available to put pastoral respondents on an equal footing with claimants in relation to financial assistance. There will be more demand for the provision of financial assistance as a result of the wider variety of measures that the new Act proposes, such as indigenous land use agreements and statutory access agreements. As it is unlikely that such agreements will be reached under the new Act this financial year, additional funding, for all these measures, will be sought in the budget context.

1.22 There may be some additional costs associated with implementing the new accountability provisions for representative bodies, which would be met out of ATSIC’s allocation for the administration of the representative body scheme. The possible impact cannot be estimated at this stage as it would depend on discretionary action by ATSIC or the Minister to initiate the new inspection, audit or investigation processes.

1.23 The Commonwealth has offered to assist States and Territories in meeting compensation costs arising from certain pre-1994 acts, intermediate period acts and certain future acts. The extent of Commonwealth payments will depend on the liabilities incurred by the States and Territories. Estimates as to the likely amount of compensation which may be payable are extremely difficult to formulate due to a number of factors which include: the unknown extent of native title; the unknown value of compensation to native title holders and the potential variation in value depending on whether what survives is full native title or a partial or co-existing interest; the total number of past and intermediate acts; the unknown number of future acts that might affect native title; and that while the Commonwealth is of the view that the maximum compensation payable to a native title holder should be no more than that payable to a freeholder the courts have yet to determine this as satisfying the requirement for 'just terms' compensation. These factors interact to make estimation of costs a speculative task.

1.24 The Commonwealth offer to assist States and Territories also includes a contribution to the administrative costs of establishment and operation of approved bodies and alternative right to negotiate regimes. The extent of this assistance will depend on decisions to establish such bodies and regimes following passage of the amendments, the timing of the recognition of bodies and regimes and the extent to which they are used.

1.25 The Commonwealth is totally liable for its own acts. While it is the Government’s view that the provisions confirming the extinguishment of native title by certain acts generally reflect the common law (and therefore would not give rise to compensation), the amendments do provide a right to compensation for any extinguishment caused by the confirmation provisions with the Commonwealth being liable to pay such compensation in respect of acts attributable to it.

1.26 The number of potentially compensable past acts and intermediate period acts done by the Commonwealth is unknown. The Commonwealth will also have to consider the potential impact of future act compensation on a case by case basis. It is not possible to estimate the extent of the Commonwealth’s liability for the validation and confirmation provisions or for future acts, given the unknown number and nature of acts affected by these provisions.

Amendments made by the Senate in December 1997

1.27 The amendments made by the Senate in December 1997 which have been incorporated into the Bill are listed in this paragraph. They are listed in the order in which they appeared in the Schedule of amendments made by the Senate prepared by the Clerk of the Senate dated 5 December 1997. It should be noted that these are very brief summaries of the amendments, and regard should be had to the more detailed descriptions later in this memorandum:

Indigenous Land Use Agreements

• 1997 Government amendments (15), (16) and (18) make it clear that indigenous land use agreements may be about the doing of future acts subject to conditions about procedural matters.

• 1997 Government amendment (17) sets out the information to which the Registrar must have regard when making a decision under paragraph 24CK(2)(c) in relation to the registration of an area agreement certified by a representative body.

Applications

• 1997 Government amendment (60) requires applicants to include in their application details about any activities undertaken in the exercise of the native title rights claimed.

• 1997 Opposition amendment (230) deletes the specific reference to circumstances in which access was prevented in subparagraph 62(1)(c)(ii) in relation to the content of applications.

• 1997 Opposition amendment (239) amends section 66 (which deals with notification of native title applications) and requires the Registrar to provide a copy of the application to the relevant representative body as soon as possible.

Claims process and sunset clause

• 1997 Government amendment (58) provides that the limitation period for making a compensation claim is 6 years from the later of the date the subsection commences or when notification of the act giving rise to compensation is given.

• 1997 Government amendments (61) and (62) clarify that the cultural and customary concerns of indigenous peoples may be taken into account by the Federal Court and the National Native Title Tribunal respectively, but not so as to unduly prejudice the other parties to the proceedings.

• 1997 Government amendment (63) adds persons who have been enrolled as a legal practitioner for 5 years as another category of persons who are eligible to be appointed as a presidential member of the National Native Title Tribunal.

• 1997 Government amendment (64) enables the presiding member of the NNTT to direct that a mediation conference not be held in private in certain circumstances.

• 1997 Government amendment (71) amends the definition of ‘determination of native title’ in section 225 of the Act to reflect the fact that there may be more than one group of native title holders for the one area of land.

• 1997 Government amendment (72) adds a note to the end of the definition of ‘determination of native title’ in section 225 of the Act that non-native title rights may be dealt with generally in the determination.

Registration Test

• 1997 Government amendment (66) requires the Registrar of the Federal Court to advise the Registrar of the NNTT of the withdrawal of unregistered applications as well as registered applications.

• 1997 Government amendment (67) confirms that the Registrar is obliged to apply the registration test to amended native title determination applications.

• 1997 Government amendment (68) makes it clear that the Registrar can advise an applicant that his or her native title determination application may be amended under the Federal Court Rules.

• 1997 Government amendment (69) precludes the Registrar from taking certain action in relation to an application that has been withdrawn or otherwise finalised before the claim was entered on the Register of Native Title Claims or before the Registrar was able to make a decision as to whether it should be registered.

• 1997 Opposition amendment (262) amends subsection 190B(2) to insert the word ‘reasonable’ in relation to the certainty required for the identification of land subject to native title in the registration test.

Representative bodies

• 1997 Government amendment (77) inserts a time frame in which the Minister is to make decisions about applications under section 203AB for recognition as the representative body for an area.

• 1997 Government amendments (78) and (79) provide for additional functions in relation to assistance, mediation and dispute resolution to be conferred upon the NNTT once the later amendments relating to representative bodies come into force.

• 1997 Government amendments (80) and (81) together provide more flexibility in relation to the period in respect of which grants of money may be made by ATSIC to representative bodies.

• 1997 Government amendment (82) requires that the grant of money to a representative body be subject to a condition that the body return any uncommitted funding to ATSIC if the body loses its recognition under section 203AH.

• 1997 Government amendment (83) inserts a definition of ‘bank’ that is consistent with the definition of that term in other Commonwealth legislation as recommended by the Parliamentary Joint Committee on Native Title and the Land Fund.

• 1997 Government amendment (84) restricts the extent to which an auditor or investigator appointed under section 203DF can make use of documents or information subject to legal professional privilege, and ensures that certain secrecy provisions contained in the Crimes Act 1914 apply to auditors and investigators appointed under section 203DF.

• 1997 Government amendment (85) deals with a number of issues relating to access by an auditor or inspector appointed under section 203DF to documents or information relating to a representative body.

• 1997 Opposition amendment (322) adds a subsection to section 203B providing that a representative bodies must determine priorities.

• 1997 Opposition amendments (341), (342), and (344) amend section 203DC to provide that the annual reporting obligations of representative bodies are to ATSIC and then to the Minister.

Use of reserved land

• 1997 Government amendment (26) inserts a new notification requirement in relation to certain acts to which Subdivision J applies, namely the construction of a public work on reserved land.

Miscellaneous

• 1997 Government amendment (13) replaces the heading to Subdivision A of Division 3, Part 2.

• 1997 Government amendment (14) enables regulations to be made imposing notification requirements in relation to valid future acts.

• 1997 Government amendment (44) makes it clear that native title rights and interests are not extinguished by a requirement or permission contained in a valid lease, licence, permit or authority, or any activity done in giving effect to the requirement or permission.

• 1997 Government amendment (47) removes an amendment that is already covered in Schedule 2, item 19.

• 1997 Government amendment (49R) adds relevant determinations to the list of disallowable instruments contained in section 214.

• 1997 Government amendment (70) ensures that the function of holding an inquiry into certain matters can be performed by an equivalent body under section 207B.

• 1997 Government amendment (73) removes an amendment that is already covered by Schedule 5, subitem 14(8).

• 1997 Government amendment (74) clarifies that Schedule 2, item 87 amends subparagraph 251(2)(i)(i) not paragraph 251(2)(i) (section 251, to be renumbered 207A, deals with recognised State/Territory bodies).

• 1997 Government amendments (75) and (76) amend incorrect cross references in the new definition of ‘registered native title body corporate’ in section 253.

Management of water and airspace

• 1997 Government amendment (25) inserts a new notification requirement in relation to the grant of a lease, licence, permit or authority under valid legislation for the management or regulation of water or airspace.

Offshore places

• 1997 Government amendment (32) requires that the practices and procedures adopted for acquiring native title offshore do not cause the native title holders concerned to be any more disadvantaged than the holders of non-native title rights when their rights are acquired.

• 1997 Government amendment (33) provides that compensation for any offshore act may be payable by a person that a Commonwealth law provides, not merely the person that requested the act that gave rise to the liability.

• 1997 Government amendment (34) provides that compensation for any offshore act may be payable by a person that a State or Territory law provides, not merely the person that requested the act that gave rise to the liability.

Compensation

• 1997 Government amendment (46) ensures that the catch all ‘just terms’ provision in section 53 of the NTA applies to State and Territory future acts as well as Commonwealth ones.

• 1997 Government amendment (92) inserts a reference to new Schedule 5, Part 6A which is inserted by 1997 Government amendment (93).

• 1997 Government amendment (93) ensures that ‘just terms’ compensation is payable if the Bill once enacted results in any acquisition of property within the meaning of section 51(xxxi) of the Constitution.

Validation

• 1997 Government amendment (2) removes a reference in paragraph 22B(a) (which sets out the effect on native title of certain category A intermediate period acts) to acts that are category A intermediate period acts by virtue of subsection 232B(6). Subsection 232B(6) is removed by 1997 Government amendment (51).

• 1997 Government amendment (3) inserts a notification requirement upon the Commonwealth in relation to certain acts that may be validated intermediate period acts attributable to the Commonwealth.

• 1997 Government amendment (4) inserts a notification requirement upon the States and Territories that legislate to validate intermediate period acts attributable to the State or Territory.

• 1997 Government amendment (50) clarifies the dates between which an ‘intermediate period act’ must occur.

• 1997 Government amendment (51) removes the vesting of certain types of interest from the definition of ‘category A intermediate period act’ out of concern that their inclusion may have unintentionally resulted in the creation of some national parks being category A intermediate period acts.

• 1997 Government amendments (52) and (53) broaden the category of acts excluded from the definition of ‘category A intermediate period act’ and ‘category B intermediate period acts’ by reason of their being acts that are in some way for the benefit of indigenous peoples. Such acts will be ‘category D intermediate period acts’ to which the non-extinguishment principle applies.

Renewals and extensions

• 1997 Government amendment (25A) requires that a future act also be done in good faith if it is to fall within paragraph (b) of the definition of ‘pre-existing right-based act’ in section 24IB.

• 1997 Government amendment (25B) imposes a notification requirement in relation to future acts that fall within paragraph (b) of the definition of ‘pre-existing right-based act’ in section 24IB.

• 1997 Harradine amendment (15) clarifies that a permissible lease etc renewal of a non-exclusive agricultural or pastoral lease cannot allow new associated or incidental activities over the majority of the lease.

Right to negotiate

• 1997 Government amendment (35) includes in the concept of ‘approved gold or tin mining acts’ mining that involves the separation of gold or tin by an aeration process.

• 1997 Government amendment (36) sets out which rights to mine opals and gems are excluded by section 26C from the right to negotiate.

• 1997 Government amendments (36A), (37A) and (37B) relate to a new condition that mining for opals or gems is currently being carried out which must be satisfied before the Commonwealth Minister determines that an area is an ‘approved opal or gem mining area’ for the purposes of section 26C.

• 1997 Government amendment (37) amends the second condition that must be satisfied before the Commonwealth Minister determines that an area is an ‘approved opal or gem mining area’ for the purposes of section 26C.

• 1997 Government amendments (38), (39), (40) and (41) together provide that native title parties for the purpose of the right to negotiate are claimants who make a claim within three months of the notification day and have their claim registered within four months of the notification day.

• 1997 Government amendment (42) gives negotiation parties a minimum of six months from the notification day in which to negotiate before one of the parties may apply to the arbitral body for a section 38 determination.

• 1997 Opposition amendment (112) makes a drafting change to section 25 which contains the overview of the right to negotiate provisions.

• 1997 Opposition amendment (175) amends section 43 which deals with the approval of alternate State/Territory right to negotiate procedures to require notification of the relevant representative body.

Freehold test

• 1997 Government amendment (28) requires that the practices and procedures adopted for acquiring native title do not cause the native title holders concerned to be any more disadvantaged than the holders of non-native title rights when their rights are acquired.

• 1997 Government amendment (29) provides that compensation may be payable by any person that a Commonwealth law provides (subject to the limitation in subsection 24MD(5)), not merely the person that requested the act that gave rise to the liability.

• 1997 Government amendment (30) provides that compensation may be payable by any person that a State or Territory law provides (subject to the limitation in subsection 24MD(5)), not merely the person that requested the act that gave rise to the liability.

Confirmation of extinguishment

• 1997 Government amendments (5) and (9) remove the vesting of certain land and interests from the definition of ‘previous exclusive possession act’ and the confirmation of extinguishment provisions, out of concern that their inclusion may have unintentionally resulted in the creation of some national parks being previous exclusive possession acts.

• 1997 Government amendments (6) and (10) remove certain acts that take place pursuant to a legally enforceable right or option created before the date of the Wik decision from the definition of ‘previous exclusive possession act’ and the confirmation of extinguishment provisions.

• 1997 Government amendments (7) and (11) remove certain acts consisting of the construction of a public work after the date of the Wik decision pursuant to a reservation made before that date from the definition of ‘previous exclusive possession act’ and the confirmation of extinguishment provisions.

• 1997 Government amendment (11A) requires that in order to for an act that gives effect to a pre-Wik offer, commitment, arrangement or undertaking to be a previous non-exclusive possession act under subparagraph 23F(3)(c)(ii), the act must also be done in good faith.

• 1997 Government amendment (12) reflects the Government’s understanding of the common law, which is that native title rights that survive the grant of a non-exclusive pastoral or non-exclusive agricultural lease are not extinguished by acts done pursuant to the lease.

• 1997 Government amendment (12A) imposes a notification requirement in relation to certain previous non-exclusive possession acts attributable to the Commonwealth, namely those done pursuant to certain options.

• 1997 Government amendment (12B) requires that a State or Territory law that confirms the partial extinguishment of native title by previous non-exclusive possession acts attributable to that State or Territory must contain a notification requirement to the same effect as that imposed by 1997 Government amendment (12A).

• 1997 Government amendments (45R) and (59) enable native title claimants who are in occupation of certain types of land to have their claim determined by a Court notwithstanding the effect of certain past ‘extinguishing’ acts.

• 1997 Government amendment (48) enables the Commonwealth, States and Territories to legislate to confirm any existing public access to and enjoyment of stock routes.

• 1997 Government amendments (56) and (57) together ensure that only stock routes that are validated by or in accordance with Divisions 2 or 2A of the NTA are ‘public works’ and that stock routes are not confirmed to extinguish native title.

• 1997 Government amendments (86), (87), (88), (89), (90) and (91) correct typographical errors in the Schedule of exclusive possession tenures.

Pastoral activities

• 1997 Government amendments (19) and (20) make it clear that section 24GB applies to the grant of permits for farm tourism generally, not just farmstay tourism.

• 1997 Government amendment (21) limits the future act provisions in relation to the granting of permits to conduct primary production activities on non-exclusive pastoral and non-exclusive agricultural lease land so that for pastoral leases greater than 5,000 hectares a majority of the area must continue to be used for pastoral purposes.

• 1997 Government amendment (22) inserts a notification requirement in relation to the granting of permits to conduct certain primary production activities on non-exclusive pastoral and non-exclusive agricultural lease land.

• 1997 Government amendment (23) puts it beyond doubt that the doing of certain primary production and associated or incidental activities on non-exclusive pastoral or non-exclusive agricultural lease land does not extinguish any native title rights that survived the grant of the non-exclusive lease.

• 1997 Government amendment (24) ensures that future acts that grant a lease or confer a right of exclusive possession over land or waters are not sanctioned by section 24GD (which deals with off-farm activities).

• 1997 Government amendment (24A) limits the ‘off-farm’ future acts to which section 24GD applies to those that permit grazing or activities relating to accessing or taking water.

• 1997 Government amendment (24B) imposes a notification requirement in relation to the ‘off-farm’ future acts to which section 24GD applies.

Access rights

• 1997 Government amendment (43) inserts a note that confirms that indigenous land use agreements can deal generally with access issues and that the NNTT or a recognised State/Territory body can assist, if requested, in the negotiation of such agreements.

1.28 The index at the back of this Explanatory Memorandum lists all the Senate amendments incorporated into the Bill with paragraph references indicating where they are further explained.

Overview

2.1 This Chapter sets out the Government’s 10 Point Plan and which items in the Bill implement each point. The 10 Point Plan was released by the Government on 8 May 1997 and set out the Government’s proposed response to the Wik decision.

Point 1 Validation of acts/grants between 1/1/94 and 23/12/96

Legislative action will be taken to ensure that the validity of any acts or grants made in relation to non-vacant crown land in the period between passage of the Native Title Act and the Wik decision is put beyond doubt.

2.2 The validation of ‘intermediate period acts’ that occurred between 1 January 1994 and 23 December 1996 is achieved by new Division 2A, Part 2. [Schedule 1, item 9].

Point 2 Confirmation of extinguishment of native title on ‘exclusive’ tenures

States and Territories would be able to confirm that ‘exclusive’ tenures such as freehold, residential, commercial and public works in existence on or before 1 January 1994 extinguish native title. Agricultural leases would also be covered to the extent that it can reasonably be said that by reason of the grant or the nature of the permitted use of the land, exclusive possession must have been intended. Any current or former pastoral lease conferring exclusive possession would also be included.

2.3 Confirmation of past extinguishment is dealt with in new Division 2B, Part 2. [Schedule 1, item 9].

Point 3 Provision of government services

Impediments to the provision of government services in relation to land on which native title may exist would be removed.

2.4 Facilities for services to the public are allowed by new Subdivision K of Division 3, Part 2. [Schedule 1, item 9].

Point 4 Native title and pastoral leases

As provided in the Wik decision, native title rights over current or former pastoral leases and any agricultural leases not covered under 2 above would be permanently extinguished to the extent that those rights are inconsistent with those of the pastoralist.

All activities pursuant to, or incidental to, ‘primary production’ would be allowed on pastoral leases (ie the right to negotiate in relation to such activities would be completely removed), including farmstay tourism, even if native title exists, provided the dominant purpose of the use of the land is primary production. However, future government action such as the upgrading of title to perpetual or ‘exclusive’ leases or freehold, would necessitate the acquisition of any native title rights proven to exist and the application of the regime described in 7 below (except where this is unnecessary because the pastoralist has an existing legally enforceable right to upgrade).

2.5 Confirmation of partial extinguishment by previous non-exclusive pastoral or non-exclusive agricultural leases is achieved by new sections 23G to 23J. New Subdivision G of Division 3, Part 2 covers future primary production activities. Subdivision M continues the freehold test which allows compulsory acquisitions. Subdivision I allows for the exercise of legally enforceable rights. [Schedule 1, item 9].

Point 5 Statutory access rights

Where registered claimants can demonstrate that they currently have physical access to pastoral lease land, their continued access will be legislatively confirmed until the native title claim is determined. This would not affect existing access rights established by state or territory legislation.

2.6 Statutory access rights are provided by new Subdivision Q of Division 3, Part 2. [Schedule 1, item 9].

Point 6 Future mining activity

For mining on vacant crown land there would be a higher registration test for claimants seeking the right to negotiate, no negotiations on exploration, and only one right to negotiate per project. As currently provided in the NTA, states and territories would be able to put in place alternative regimes with similar right to negotiate provisions.

For mining on other ‘non-exclusive’ tenures such as current or former pastoral leasehold land and national parks, the right to negotiate would continue to apply in a state or territory unless and until that state or territory provided a statutory regime acceptable to the Commonwealth which included procedural rights at least equivalent to other parties with an interest in the land (e.g. the holder of the pastoral lease) and compensation which can take account of the nature of co-existing native title rights (where they are proven to exist).

2.7 The right to negotiate process, containing the changes outlined in Point 6, is found in new Subdivision P, Division 3, Part 2 of the NTA. New sections 43A and 43B allow for equivalent State/Territory regimes on former and current pastoral lease land etc. The new registration test is contained in new sections 190B and 190C of the NTA. The renewal of mining leases is achieved by new section 24IC. [Schedule 1, item 9; Schedule 2, item 63].

Point 7 Future government and commercial development

On vacant crown land outside towns and cities there would be a higher registration test to access the right to negotiate, but the right to negotiate would be removed in relation to the acquisition of native title rights for third parties for the purpose of government-type infrastructure. As currently provided in the NTA, states and territories would be able to put in place alternative regimes with similar right to negotiate provisions.

For compulsory acquisition of native title rights on other ‘non-exclusive’ tenures such as current or former pastoral leasehold land and national parks, the right to negotiate would continue to apply in a state or territory unless and until that state or territory provided a statutory regime acceptable to the Commonwealth which included procedural rights at least equivalent to other parties with an interest in the land (e.g. the holder of the pastoral lease) and compensation which can take account of the nature of co-existing native title rights (where they are proven to exist).

The right to negotiate would be removed in relation to the acquisition of land for third parties in towns and cities, although native title holders would gain the same procedural and compensation rights as other landholders.

Future actions for the management of any existing national park or forest reserve would be allowed.

A regime to authorise activities such as the taking of timber or gravel on pastoral leases, would be provided.

2.8 The right to negotiate process, containing the changes outlined in Point 7, is also in Subdivision P of Division 3, Part 2 of the NTA. New section 43A allows for equivalent State/Territory regimes on former and current pastoral lease land etc. The new registration test is contained in new sections 190B and 190C of the NTA. Acts implementing reservations are dealt with in new Subdivision J of Division 3, Part 2. The taking of timber or gravel from pastoral leases is covered by new section 24GE. [Schedule 1, item 9; Schedule 2, item 63].

Point 8 Management of water resources and airspace

The ability of governments to regulate and manage surface and subsurface water, off-shore resources and airspace, and the rights of those with interests under any such regulatory or management regime would be put beyond doubt.

2.9 The management of water and airspace is protected by new Subdivision H of Division 3, Part 2. [Schedule 1, item 9].

Point 9 Management of claims

In relation to new and existing native title claims, there would be a higher registration test to access the right to negotiate, amendments to speed up handling of claims, and measures to encourage the States to manage claims within their own systems.

A sunset clause within which new claims would have to be made would be introduced.

2.10 The new registration test is found in new sections 190B and 190C. Amendments to the claims process are found in replacement Part 3 and amended Part 4. Section 207A and new section 207B deal with the management of claims within State/Territory systems. The sunset clause is contained in new subsection 13(1A) and subsection 50(2A). [Schedule 2, items 3,19-70].

Point 10 Agreements

Measures would be introduced to facilitate the negotiation of voluntary but binding agreements as an alternative to more formal native title machinery.

2.11 New Subdivisions B, C, D and E of Division 3, Part 2 facilitate voluntary agreements. New Part 8A sets up a Register of Indigenous Land Use Agreements. [Schedule 1, items 9 and 30].

The High Court’s decision in Mabo (No. 2)

3.1 A majority of the High Court decided in Mabo v Queensland (No. 2) (1992) 175 CLR 1 (Mabo (No. 2)) that the Meriam people were entitled as against the whole world to the possession, occupation, use and enjoyment of (most of) the land of the Murray Islands in the Torres Strait. In reaching this conclusion the majority of the Court held that the common law of Australia recognises a form of native title, and indicated that the principles applied to the mainland as well as to the Murray Islands. This was subsequently confirmed by the High Court in Western Australia v Commonwealth (1995) 183 CLR 373 (the Native Title Act case). Native title exists in accordance with the laws and customs of indigenous people:

• where those people have maintained their traditional connection with the land; and

• where their title has not been extinguished by acts of Imperial, Colonial, State, Territory or Commonwealth governments.

3.2 The Court rejected the traditional doctrine that Australia was terra nullius (land belonging to no-one) at the time of European settlement. Rather, it accepted that native title rights survived settlement, though they were subject to the sovereignty of the Crown.

3.3 The High Court indicated that although the content of native title is to be determined according to the traditional laws and customs of the title holders, there are some common characteristics:

• it may be possessed by a community, group, or individual depending on the content of the traditional laws and customs;

• it is inalienable (that is, it cannot be transferred) other than by surrender to the Crown or pursuant to traditional laws and customs;

• it is a legal right that can be protected, where appropriate, by legal action.

3.4 Native title will be extinguished where the traditional title holders lose their connection with the land. Also, while the acquisition of sovereignty did not of itself extinguish native title, subsequent legislative or executive actions by governments may have extinguished it. A clear and plain intention or clear and unambiguous words are required for this to have occurred. The judgments variously considered the position of a range of land, such as freehold, leasehold, land appropriated by the Crown, national parks and land over which mining interests had been granted.

3.5 A majority of the High Court held that extinguishment of native title by inconsistent Crown grant did not give rise to a claim for compensatory damages. It follows that the validity of such grants could not be challenged merely on the basis that they extinguished native title without compensation. However, this conclusion of the majority of the Court was made expressly subject to the operation of the Racial Discrimination Act 1975 (RDA) of the Commonwealth. On one view, the RDA may in some cases render wholly or partly invalid past laws or grants.

The Native Title Act 1993

3.6 The Native Title Act 1993 (the NTA) came into force on 1 January 1994. In summary, it:

• recognised native title rights and sets down some basic principles in relation to native title in Australia;

• provided for the validation of past acts which may be invalid because of the existence of native title;

• provided for a future act regime in which native title rights are protected and conditions imposed on acts affecting native title land and waters;

• provided a process by which native title rights can be established and compensation determined, and by which determinations can be made as to whether future grants can be made or acts done over native title land and waters; and

3.7 The Commonwealth Parliament’s major purpose in enacting the NTA was to recognise and protect native title (see sections 3 and 10). The NTA adopted the common law definition of ‘native title’ as being the rights and interests possessed under the traditional laws and customs of Aboriginal peoples and Torres Strait Islanders in land and waters, and recognised by the common law (section 223). The decision in Mabo (No. 2) referred only to native land title, but the NTA did not preclude the possibility that native title rights and interests may also exist in relation to waters, including offshore waters. This remains an unresolved issue.

Validation of past acts by Commonwealth, States and Territories

3.8 The NTA provided in section 14 for the validation of past (invalid) Commonwealth acts. Section 19 enabled States and Territories to validate their past (invalid) acts on the same terms, and all have now done so. The past acts which could be validated included the making of legislation, the grant of a licence or permit, the creation of any interest in land or waters and the exercise of executive power (section 226).

Future Extinguishment

3.9 Under the NTA, native title could only be extinguished by agreement with the native title holders (section 21) or in giving effect to the purpose of an acquisition of native title under the Compulsory Acquisition Acts (section 23(3), and see section 11), and in some other very limited cases.

The Future Act Regime

3.10 The NTA provided for acts affecting native title to take place in the future if they are ‘permissible future acts’, defined in section 235.

3.11 Under the NTA, all future acts in an offshore place would be ‘permissible’ even if that place is subject to native title (section 235(8)(a)). In the case of onshore land, the NTA provided that where an act could be done over ordinary title land then that act would be permitted over native title land (section 235(5)). New legislation affecting onshore areas would be ‘permissible’ only if it affects native title holders in the same way that it affects ordinary title holders or if it puts native title holders in no worse a position than ordinary title holders (section 235(2)). ‘Ordinary title land’ was defined to mean either freehold or, in the case of the Australian Capital Territory and Jervis Bay, residential leasehold (section 253).

3.12 Other permissible future acts included acts covered by an unopposed non-claimant application (section 24), renewals of leases etc (sections 25 and 235(7)), low impact future acts (section 235(8)(a)) and acts pursuant to an agreement (section 235(8)(c)).

3.13 In certain circumstances, native title rights to hunt, fish and carry on other activities could be exercised without the need for a licence or permit where others can carry out the activity only with a licence or permit (section 211).

Right to Negotiate

3.14 The NTA provided that for certain ‘permissible future acts’, registered native title holders and registered native title claimants would have a right to negotiate before such an act could be undertaken. The acts to which the right to negotiate would apply were essentially acts relating to mining, the compulsory acquisition of native title for the purpose of making a grant to a third party, and any other acts approved by the Commonwealth Minister.

3.15 The right to negotiate was not a veto. If the parties could reach agreement after negotiation, then any party could apply to the National Native Title Tribunal (NNTT) or a recognised State or Territory body, called the ‘arbitral body’ (section 27), for a determination of whether the act could go ahead and if so on what conditions (section 35). Where there is a State or Territory arbitral body, a State or Territory Minister could override the determination in the interest of the State or Territory (section 42(1) and (3)). If the NNTT is the arbitral body, the Commonwealth Minister could override the decision in the national or State or Territory interest (section 42(2) and (3)).

Compensation for Future Acts

3.16 Native title holders would be entitled to ‘just terms’ compensation for any future extinguishment of their rights and interests. Where an act only impaired the title rights onshore, native title holders would be entitled to compensation under the same regimes as are applicable to ordinary title holders (sections 23(4) and 51(3)). Offshore, the native title holders would be entitled to ‘just terms’ compensation for such impairment (sections 23(4) and 51(1)).

Determinations of Native Title

3.17 The NTA provided a mechanism to determine whether native title exists and which rights and interests comprise that native title (see sections 13 and 61).

3.18 The NTA also provided for the establishment of two public registers: one for native title claims (the Register of Native Title Claims, Part 7), and the other for native title determinations (the National Native Title Register, Part 8).

The NNTT and Court Process

3.19 The NTA established the NNTT to deal with certain native title matters and also gave the Federal Court jurisdiction for particular native title matters.

3.20 Applications would be made to the Native Title Registrar (section 61). If various requirements were met (in particular those in section 62), the Registrar must accept an application for a native title determination by persons claiming to hold the title unless he or she was of the opinion that the application was frivolous or vexatious or that prima facie a claim cannot be made out (section 63). In such a case, the application had to be referred to a presidential member, who must give the applicant an opportunity to show that the application should be registered. The NNTT would mediate contested claims, but if this mediation was unsuccessful, the matter would be referred to the Federal Court (section 74).

Role of Federal Court

3.21 The Federal Court was to hear contested claims for a determination of native title or for compensation (section 81).

3.22 The NTA provided that determinations of the NNTT would be registered with the Federal Court (section 166(2)). Applications could be made to the Court for a review of a registered determination (sections 167 and 168).

Recognised States and Territory bodies

3.23 States and Territories could set up their own bodies to hear native title claims and compensation claims. Where those bodies complied with the criteria and standards set out in the NTA in section 251, the responsible Commonwealth Minister would be able to recognise them. Native title claims could be initiated in either a recognised State or Territory body or the Federal system.

Role of prescribed bodies corporate

3.24 The NTA recognised that native title rights are primarily group or communal rights and membership of the title holding group would inevitably change over time. The NTA provided that native title would either be held on trust by a prescribed body corporate controlled by those who are the native title holders from time to time (see sections 56 and 57) or, alternatively, it provided for a prescribed body corporate which would represent the native title holders and act as their agent (sections 57 and 58).

Role of Representative Aboriginal/Torres Strait Islander Bodies

3.25 The NTA provided for the designation of Aboriginal and Torres Strait Islander organisations as representative bodies to assist native title claimants to make applications for the determination of native title and compensation and to assist in negotiations and proceedings (section 202).

Aboriginal and Torres Strait Islander Land Fund

3.26 Part 10 of the NTA established a National Aboriginal and Torres Strait Islander Land Fund. Part 10 was repealed by the Land Fund and Indigenous Land Corporation (ATSIC Amendment) Act 1995. That Act also amended the Aboriginal and Torres Strait Islander Commission Act 1989 (the ATSIC Act) to establish an Indigenous Land Corporation to assist Aboriginal persons and Torres Strait Islanders acquire land and manage indigenous-held land so as to provide economic, environmental, social or cultural benefits to Aboriginal persons and Torres Strait Islanders (sections 191A and 191B of the ATSIC Act). Part 4A Division 10 of the ATSIC Act also established the Aboriginal and Torres Strait Islander Land Fund, the purpose of which was to, among other things, make payments to the Indigenous Land Corporation under that Division (sections 192W and 192X of the ATSIC Act).

The Native Title Act Case

3.27 In the Native Title Act case ((1995) 183 CLR 373), the High Court unanimously held that the substantive provisions of the NTA were a valid exercise of the Commonwealth Parliament’s power to make laws with respect to ‘the people of any race for whom it is deemed necessary to make special laws’ (paragraph 51(xxvi) of the Constitution).

The effect of the High Court’s Brandy decision and the Full Federal Court’s Fourmile decision

3.28 In March 1995, the High Court in Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 (Brandy) held that a process set up under the Racial Discrimination Act 1975 under which non-binding determinations made by the Human Rights and Equal Opportunities Commission (HREOC) were to have effect, upon registration by the Federal Court, as if they were orders made by the Federal Court was invalid because it purported to vest judicial power in HREOC. HREOC is not a court for the purposes of Chapter III of the Constitution and therefore cannot be vested with Commonwealth judicial power.

3.29 When it was handed down the decision cast doubt on the validity of NTA processes for the registration of determinations of native title, which were based on the HREOC model. The NTA scheme provided for applications for a determination of native title or compensation to be lodged with the NNTT, with the NNTT having the function of making determinations for unopposed or agreed applications which would then be registered with the Federal Court (see paragraph 3.22 above). Upon registration, a determination has effect as if it were an order of the Federal Court (see sections 166,167 and 168 of the current NTA). These doubts were confirmed when the Full Federal Court held in Fourmile^[4] that the scheme established by sections 166, 167 and 168 of the NTA (see paragraph 3.22) is in no relevant way distinguishable from the scheme held to be invalid by the High Court in Brandy.

3.30 Amendments to the NTA to address the implications of the Brandy decision were introduced in 1995 but lapsed with the calling of the 1996 Federal election. Similar amendments were introduced in June 1996, but have not been debated and will be replaced by amendments in the Bill. Under these amendments, native title determination and compensation applications will be made to and determined by the Federal Court.

Effect of cases dealing with registration and the acceptance test

3.31 The purpose of the acceptance test contained in current sections 62 and 63 of the NTA was to screen applications so that those with no prospects of success could be removed early in the process. It was intended that only those claims which were accepted would be entered on the Register of Native Title Claims, thereby enabling the claimants to have access to the right to negotiate and other statutory benefits flowing from that status as a registered native title claimant. Essentially, the acceptance test would ensure development was not impeded by unmeritorious claims.

3.32 The efficacy of the acceptance test as a screening process for registration was reduced by the decision of Justice O’Loughlin of the Federal Court in Northern Territory v Lane (1995) 138 ALR 544, to the effect that applications are to be registered upon receipt by the Registrar, who is then to apply the acceptance test in sections 62 and 63. This decision meant that all claims, regardless of their prospects of ultimate success, would initially attract the right to negotiate until such time as they underwent the acceptance test. That test could take some months to apply in any given case, so that a claim which ultimately failed the test could remain on the Register for some time before being removed.

3.33 The High Court decided in North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 that whenever an application raised an issue of law that was “fairly arguable” it must be accepted by the Registrar. The effect of this decision was to increase the number of applications claiming native title that could be accepted for determination, since the novelty of native title law in Australia and the associated limited body of precedent meant that many issues are ‘fairly arguable’. In turn, this meant that the right to negotiate applied to a greater proportion of Australia as areas other than vacant Crown land, national parks or reserves became subject to claims.

Review of Representative Bodies

3.34 In 1995 the Aboriginal and Torres Strait Islander Commission commissioned the Review of Native Title Representative Bodies (the Review), to examine the performance of representative bodies under section 202 of the NTA and to recommend ways in which that performance could be improved. The Review recommended that the functions of representative bodies should be mandatory, so that representative bodies funded by the Commonwealth would be obliged to perform their functions as such bodies to a consistent standard.

3.35 The Review also made recommendations concerning the need to ensure that the representative bodies were truly representative of, and accountable to, potential and actual native title clients in the areas for which they have been given responsibilities. It also recommended that the level of funding to representative bodies be increased to reflect the impact of mandatory functions and strengthened accountability requirements. The Government adopted many of the Review’s recommendations to improve the representative body system, and included them in its Exposure Draft of October 1996 and now in this Bill.

Native Title Amendment Bill 1996 and the Exposure Draft

3.36 The Government introduced the Native Title Amendment Bill 1996 (the 1996 Bill) into the House of Representatives on 27 June 1996, and released proposed Government amendments to that Bill in its Exposure Draft of October 1996.

3.37 As noted previously, the 1996 Bill contained amendments resulting from the Brandy decision. It also contained a registration test to replace the acceptance test, to make it clear that satisfying the test would be a precondition for access to the right to negotiate and other statutory benefits. The 1996 Bill also contained amendments to correct minor technical or typographical errors.

3.38 The Exposure Draft contained amendments to improve the representative body system, a strengthened registration test and amendments to streamline the right to negotiate process. The amendments to the right to negotiate process included some to ensure that the Ministerial power to exclude acts having minimal impact could in fact exclude certain exploration, fossicking and prospecting activities. They also included provision for ministerial intervention in the case of urgent matters or where there was unreasonable delay.

3.39 The 1996 Bill and the Exposure Draft were not pursued following the Government’s decision to develop a comprehensive package of amendments to the NTA following the Wik decision, which would include many of the earlier proposals. That package of amendments is contained in this Bill, and is explained in detail in the following Chapters.

The effect of the High Court’s Wik decision

3.40 On 23 December 1996, the High Court handed down its decision on a number of preliminary questions of law in the matter of Wik Peoples v Queensland (1996) 187 CLR 1 (Wik). In four separate judgments, a majority of the High Court, comprising Toohey, Gaudron, Gummow and Kirby JJ, examined the historical development of pastoral tenures in the Australian colonies, the two Queensland Acts under which the leases concerned in the case were granted, and the relevant lease instruments, and concluded that there was no legislative intention to confer exclusive possession on the lessees.

3.41 The majority Justices regarded the pastoral leases as a creation of statute and held that the rights and obligations that accompany them do not derive from the common law principles relating to leasehold interests. This was notwithstanding the use of terms such as ‘lease’ and ‘demise’. Rather, the rights conferred upon the grantees of the pastoral leases were to be determined by reference to the terms of the particular leases and the relevant statutes under which they were granted. In particular, their Honours found that there was nothing in the Acts under which the leases were granted, or in the lease instruments themselves, that should be taken as intending a total exclusion of indigenous people from the land, there being a strong presumption that a statute is not intended to extinguish native title, or indeed any valuable rights relating to property, unless there are clear and plain indications to the contrary. Their Honours also rejected the argument that upon the grant of a pastoral lease the Crown acquires a reversionary interest which precludes the continued existence of native title.

3.42 Accordingly, the rights conferred on the grantees of the pastoral leases concerned did not necessarily extinguish native title in the areas subject to those leases. The Court did not decide however that native title does in fact exist in relation to the land subject to the leases; this is now being determined by the Federal Court.

3.43 In his dissenting judgment, Brennan CJ, with whom Dawson and McHugh JJ agreed, concluded that the lessees had been granted rights of exclusive possession and that any native title had been extinguished.

3.44 Accordingly, the decision opened up the possibility of claims being made over a greatly increased area of Australia, without deciding whether any particular claim would be successful. Whether native title does exist will depend on an assessment of the terms of the lease and the relevant statute under which it has been granted, and of the evidence of continuing traditional attachment to the land by the native title claimants. The decision has created doubt about the validity of certain acts done over pastoral and other leasehold land since the commencement of the NTA, including acts by pastoral lessees, as well as acts by governments and third parties. It has also raised doubts about the validity of future activities of these parties. As native title may continue to exist on pastoral leases, which cover a significant proportion of Australia’s land mass, and the NTA will protect those rights, it is important to ensure that there are effective processes for regulating the interrelationship between native title holders, pastoral lessees and others.

Overview

4.1 To achieve point 1 of the Ten Point Plan, Item 9 of Schedule 1 inserts Division 2A into Part 2 of the NTA. The Senate made 1997 Government amendment (1) which is included in the Bill. This amendment omits the heading to Division 2A and substitutes ‘Validation of intermediate period acts etc.’ This Division validates certain Commonwealth acts, and allows for the validation of State or Territory acts, done during an intermediate period. The acts validated are generally those done in areas that were freehold, leasehold, or on which a public work had been constructed, and which may have been invalid because of native title.

4.2 Generally, the intermediate period is the time between 1 January 1994, when the NTA commenced, and the time the Wik decision was handed down by the High Court on 23 December 1996. Division 2A provides for compensation to be payable to native title holders for validated intermediate period acts. The Division follows a similar pattern to the existing validation regime under the NTA for past acts (generally acts done before 1 January 1994 and invalid because of native title - see Division 2 of Part 2 of the NTA). Schedule 1, item 9 inserts a new section 21 to provide an overview of Division 2A. The ‘objects’ section of the NTA (section 3) is also amended to make it clear that an object of the Act is to provide for, or permit, the validation of intermediate period acts invalid because of the existence of native title [Schedule 1, item 1].

Background to Division 2A

4.3 Prior to the Wik decision, it was widely assumed (an assumption reflected in NTA provisions such as section 47) that native title had been extinguished on leasehold land (including land formerly the subject of a lease). The High Court said in Mabo (No. 2) (1992) 175 CLR 1 that ‘... native title has been extinguished by grants of ... leases...’ (at 69). This view was adopted by the previous Government. The Second Reading Speech to the NTA stated:

“the Government’s view [is that]... under the common law past valid freehold and leasehold grants extinguish native title. There is therefore no obstacle or hindrance to the renewal of pastoral leases in the future...”

4.4 Governments believed, therefore, that they were free to do various acts over pastoral lease land (including converting it to freehold) without following the processes in the NTA. As a consequence of this belief, acts were done over leasehold land which we now know, on the basis of Wik, may have been invalid because of native title.

4.5 The Government does not believe that invalidity is the appropriate consequence for acts done on the basis of a legitimate assumption subsequently proved wrong. Division 2A makes intermediate period acts valid. It does not, however, validate acts over land where the only type of lease ever granted over that land was a mining lease or where the land has always been vacant Crown land. The reasons for this validation regime are very much the same as the reasons for the past act regime in the current NTA (Part 2 of Division 2). The form of the new regime follows that of the current NTA.

What is an intermediate period act?

4.6 The Bill defines an ‘intermediate period act’, a term which is central to the operation of the provisions of Division 2A [Schedule 1, item 39, section 232A]. Regulations can, however, specifically declare an act not to be an intermediate period act even though it is otherwise defined to be one. [Subsection 232A(3)]

4.7 Note that the word ‘act’ is already defined, broadly, in section 226 of the NTA. The term ‘act affecting native title’ is defined in section 227.

General - acts between 1 January 1994 and 23 December 1996

4.8 The flow chart (Diagram 4.1) on the following page illustrates the process involved in determining whether an act is an intermediate period act.

4.9 An act will be an intermediate period act if it meets several conditions, as set out below. [Subsection 232A(2)]

• The act must have taken place at any time during the period from the beginning of 1 January 1994 until the end of 23 December 1996. In addition, there must have been native title existing in relation to the particular land or waters affected by that act at the time the act took place. Paragraph 232A(2)(a) was amended by 1997 Government amendment (50) in the Senate and included in the Bill to make the notice period completely clear.

• The act must not consist of the making, amendment or repeal of legislation unless the legislation affects native title either by directly creating a freehold estate, lease or licence over the land or waters affected or by containing, making or conferring a reservation, proclamation or dedication under which any part of the land or waters was to be used for a particular purpose.^[5] However, as noted in the Bill, an intermediate period act may be validated under Division 2A even if the legislation under which the act is done is not so validated. [Paragraph 232A(2)(b)]

• The act must have been wholly or partly invalid (including because of Division 3 of Part 2 or for any other reason) only because native title existed in relation to the land or waters affected by the act [paragraph 232A(2)(c)]. This has two consequences. Firstly, it ensures that the validation of the act is limited to the extent that the act affects native title: invalidity for other reasons (e.g. a failure to comply with the legislation under which the licence etc. was granted) is not validated. Secondly, if an act has complied with the future act regime existing under the NTA before the commencement of the amendments in the Bill (e.g. the ‘right to negotiate’ provisions under current Subdivision B of Division 3 of Part 2 of the NTA have been complied with in relation to the grant of a mining lease), it is not an intermediate period act. The Senate made 1998 Government amendment (23) to paragraph 232A(2)(c) which is consequential to the inability of indigenous land use agreements to deal with ‘intermediate period acts’. The amendment is technical, and simply prevents a circularity in the definition of ‘intermediate period act’ and the provisions dealing with ILUA’s about future acts that have already been done.

• The act must not be a ‘past act’ [paragraph 232A(2)(d)]. This means, for example, that acts done in accordance with rights (such as an option) created by a past act before 1 January 1994 are not intermediate period acts. The term ‘past act’ is already defined in section 228 of the NTA. However, past acts have generally been validated by the past act regime (Division 2 of Part 2 and complementary State and Territory legislation).

• Before the act was done, any of the land or waters affected by the act (ie. over or in relation to which the act was done) must either have been the subject of a valid grant of a freehold estate or lease (other than a mining lease) or have had public works validly constructed or established on them [paragraphs 232A(2)(e) and (f)]. The validity can be because of the operation of any provision in the NTA. This means that, as a general rule, acts done on vacant Crown land or land covered by mining leases during the relevant period will not be validated by Division 2A. However, acts done partly on vacant Crown land or mining leases during the relevant period (such as the grant of a licence) will be validated if at least part of the land affected is, or has been, freehold or leasehold or occupied by public works.

Acts done in pursuance of options, reservations etc. created in the intermediate period

4.10 Unlike current Division 2 of Part 2, proposed Division 2A of Part 2 does not deal with acts done after 23 December 1996 in pursuance of options or reservations etc. created in the intermediate period. This is because such acts would, where the necessary tests are met, be valid in accordance with the future act provisions contained in proposed Subdivisions I and J of Division 3.^[6]

General validation of Commonwealth intermediate period acts

4.11 Division 2A provides for a general validation of intermediate period acts attributable to the Commonwealth [Schedule 1, item 9, section 22A]. This validation is in the same form as that which already applies to past acts (generally, acts done before 1 January 1994 and invalid because of native title) under the NTA (see subsection 14(1)).

When is an act attributable to the Commonwealth?

4.12 The term ‘act attributable to the Commonwealth’ is already defined in section 239 of the NTA. It is any act done by the Crown in right of the Commonwealth, the Commonwealth Parliament or any person under a law of the Commonwealth.

Specific effect on native title of validation of Commonwealth acts

4.13 Division 2A also describes the effect on native title of the validation of intermediate period acts attributable to the Commonwealth [Schedule 1, item 9, section 22B]. Again, this is generally in the same form as the existing NTA regime dealing with validation of past acts (see section 15). For this purpose, intermediate period acts are split into four categories (A, B, C and D). Each category is discussed below (paragraphs 4.16 to 4.29).

4.14 However, section 22B will not apply to acts covered by the provisions dealing with confirmation of extinguishment of native title. In other words, where an act is both an intermediate period act and covered by Division 2B (confirmation of past extinguishment of native title by certain valid or validated acts) the effect of the act on the native title (in terms of extinguishment) is to be determined by reference to the relevant provisions in Division 2B, not Division 2A (refer to the discussion in Chapter 5).

4.15 Section 11 of the NTA is being amended to include a reference to intermediate period acts. Section 11 says that native title cannot be extinguished by legislation on or after 1 July 1993 except in accordance with certain provisions in the NTA, which will now include those validating intermediate period acts which extinguish native title (ie. category A and category B intermediate period acts). [Schedule 1, item 5]

Category A intermediate period acts

4.16 Category A intermediate period acts (see paragraph 4.19) consisting of anything other than the construction or establishment of public works extinguish all native title in relation to the land or waters concerned [paragraph 22B(a)]. The extinguishment is taken to have occurred when the validated act was done. Thus, for example, the grant of a freehold estate would extinguish native title at the time the grant was made not when the relevant section in the NTA (depending on whether it is an act attributable to the Commonwealth or to a State or Territory) comes into effect.

4.17 Category A intermediate period acts consisting of the construction or establishment of public works extinguish native title on the area of land or waters on which the public work is situated, the area being determined at the time its construction or establishment is completed. The extinguishment after validated acts, however, is taken to occur at the commencement of the construction or establishment. [Paragraph 22B(b)]

What does extinguishment mean?

4.18 The Bill specifically defines the word extinguish in relation to native title to mean permanent extinguishment. This means there is no possibility of revival of the native title at some time after the extinguishment occurs even if the extinguishing act ceases to exist [Schedule 1, item 45, section 237A]. For example, the grant of an exclusive agricultural lease will extinguish native title in relation to the land covered by the lease (see proposed subparagraph 23B(2)(c)(iv)). Even when the term of the lease expires or the lease is surrendered to, or resumed by, the Crown, the native title will not again exist in relation to that land. This is consistent with the recent Federal Court decision in Larrakia People v Northern Territory of Australia and Oilnet (NT) Pty Ltd^[7] where O’Loughlin J stated:

‘My conclusion is that once native title has been extinguished, the issue has come to an end and there can be no revival of that title under the common law.’

What is a category A intermediate period act?

4.19 The Bill defines certain kinds of intermediate period act to be category A intermediate period acts [Schedule 1, item 39, section 232B]. These are set out in Table 4.1. However, the regulations may provide that an act is not a category A intermediate period act. [Subsection 232B(9)]

4.20 The Senate made 1997 Government amendment (51) which is included in the Bill. This amendment removes subsections (5) and (6) from section 232B out of concern that these subsections may have resulted in the creation of some national parks being included in the definition of ‘Category A intermediate period act’. This was never the intention behind section 232B and the amendment will put this beyond doubt. (This parallels 1997 Government amendment (5) to section 23B.) The Senate also made 1997 Government amendment (2) which is included in the Bill. This amendment removes the reference to subsection 232B(6) from paragraph 22B(a) (which provides that native title is extinguished by certain Category A intermediate period acts).

Grant or vesting of an exclusive agricultural lease *[Paragraph 232B(3)(c)]*	A definition of ‘exclusive agricultural lease’ (section 247A) is inserted by item 47 of Schedule 1 of this Bill and is explained in Chapter 24 (Table 24.2). The term ‘agricultural lease’ is defined in section 247 of the NTA.
Grant or vesting of an exclusive pastoral lease *[Paragraph 232B(3)(c)]*	A definition of ‘exclusive pastoral lease’ (section 248A) is inserted by item 48 of Schedule 1 of this Bill and is explained in Chapter 24 (Table 24.2). The term ‘pastoral lease’ is defined in section 248 of the NTA.
Grant or vesting of a residential lease *[Paragraph 232B(3)(d)]*	The term ‘residential lease’ is already defined in section 249 of the NTA.
Grant or vesting of a community purpose lease *[Paragraph 232B(3)(e)]*	A definition of ‘community purpose lease’ (section 249A) is inserted by item 49 of Schedule 1 of this Bill and is explained in Chapter 24 (Table 24.2).

Grant or vesting of what is taken to be a separate lease:

• in respect of land or waters over which a mining lease was in force at the start of 24 December 1996; and

• on which certain towns, cities or private residences, or related buildings or works, are constructed

[Paragraph 232B(3)(f)]

Subsection 245(3) of the NTA deems certain portions of land or waters covered by a mining lease in existence at the start of 1 January 1994 to be covered by separate leases where certain conditions are met. For example, certain towns or cities constructed on land covered by a mining lease are taken to be subject to a different lease from that covering the rest of the land or waters covered by the lease. Paragraphs 245(2)(a) and (b) define the land on which the relevant towns, cities or private residences, or related buildings or works, are constructed.

Paragraph 232B(3)(f) applies to what are taken, under paragraph 245(3)(a), to be separate leases in respect of land covered by paragraphs 245(2)(a) and (b) if the mining lease were in force at the start of 24 December 1996 rather then 1 January 1994.

Division 2A will therefore validate an intermediate period act consisting of the grant or vesting of a mining lease but the grant will be a category A intermediate period act only to the extent it relates to land or waters on which towns, cities or private residences, or related buildings or works, are

Note to Table 4.1: Subsections 232B(5) & (6) were deleted in the Senate and therefore do not appear in the Bill.

Grants to or for the benefit of Aboriginal peoples and Torres Strait Islanders are not category A intermediate period acts

4.21 However an intermediate period act will not fall into category A if it is the grant or vesting of any thing by or under legislation that makes provision for the granting or vesting of such things only to or in, or for the benefit of, Aboriginal peoples or Torres Strait Islanders [subsection 232B(8)]. This will include grants under the Aboriginal Land Rights (Northern Territory) Act 1976 and other land rights legislation. The Senate made 1998 Government amendment (1) to subsection 232B(8). The amendment will make it clear that those acts, while being validated under Division 2A, will not extinguish any native title rights to the areas concerned (the non-extinguishment principle will apply, see section 238).

4.22 The Senate made 1997 Government amendment (52) which is included in the Bill. This amendment also excludes from the definition of a ‘category A intermediate period act’:

• the grant or vesting of any thing to or in a person to hold on trust for the benefit of Aboriginal peoples or Torres Strait Islanders (paragraph 232B(8)(b)); and

• the grant or vesting of any thing over particular land or waters, if at the time a thing covered by paragraph (8)(a) or (8)(b) is in effect in relation to the land or waters (paragraph 232B(8)(c)). This catches any grant over Aboriginal land or Aboriginal trust land, for example the grant of a lease by the trustees.

By excluding such acts from the definition of ‘category A intermediate period act’ these acts are removed from the operation of paragraph 22B(a) (which provides that category A intermediate period acts extinguish native title). As a result of this amendment and 1997 Government amendment (53) (made by the Senate and included in the Bill amending section 232C which defines the term ‘category B intermediate period act’), the grant or vesting of such things will be category D intermediate period acts to which the non-extinguishment principle applies (see sections 232E and paragraph 22B(d)).

Category B intermediate period acts

4.23 Category B intermediate period acts extinguish native title to the extent of any inconsistency between the act and the continued existence, enjoyment or exercise of the native title rights and interests concerned. Thus, a category B intermediate period act that is wholly inconsistent with the continuance of native title will completely extinguish the native title. If the act is partly inconsistent with the continuance of native title, it will only extinguish the native title to that extent [paragraph 22B(c)]. The extinguishment is taken to have occurred when the validated act was done. The meaning of ‘extinguish’ is discussed in paragraph 4.18.

What is a category B intermediate period act?

4.24 A category B intermediate period act is the grant of a lease that is neither a category A intermediate period act nor:

• a lease granted by or under legislation that grants such estates or leases only to or for the benefit of Aboriginal or Torres Strait Islander peoples [subparagraph 232C(b)(ii)];

• a lease granted to a person to hold on trust for the benefit of Aboriginal peoples or Torres Strait Islanders. The Senate made 1998 Government amendment (2) to subparagraph 232C(b)(iii). The amendment will make it clear that those acts, while being validated under Division 2A, will not extinguish any native title rights to the areas concerned (the non-extinguishment principle will apply, see section 238) [subparagraph 232C(b)(iii)]; and

• any other lease granted over particular land or waters, if at the time a lease covered by subparagraph (b)(ii) or (b)(iii) is in force over the land or waters [subparagraph 232C(b)(iv)].

Accordingly, the grant of leases of these kinds will be category D intermediate period acts to which the non-extinguishment principle applies (see sections 232E and paragraph 22B(d)).

4.25 The exclusions contained in subparagraphs 232C(b)(iii) and 232C(b)(iv) were inserted by 1997 Government amendment (53) which was made by the Senate and is included in the Bill.

Example

4.26 An example of a category B intermediate period act is the grant, between 1 January 1994 and 23 December 1996, over former pastoral lease land of a non-exclusive pastoral lease that was invalid because of native title.

Category C intermediate period acts

4.27 The non-extinguishment principle applies to category C intermediate period acts. [Paragraph 22B(d)]

What is a category C intermediate period act?

4.28 An intermediate period act falls into category C if it is the grant of a mining lease [Schedule 1, item 39, section 232D]. The term ‘mining lease’ is defined in section 245 of the NTA.

What is the non-extinguishment principle?

4.29 The ‘non-extinguishment principle’ is already defined in section 238 of the NTA. In broad terms, it says that an act subject to the principle does not extinguish native title to the extent of any inconsistency. However, the native title has no effect in relation to the act where the two are inconsistent. If the act or its effects are later removed or cease to operate, the native title again can have full effect (ie. the native title is only suppressed).

Example

4.30 The validation of an intermediate period act consisting of the grant of a mining lease conferring exclusive possession in respect of land will nullify the effect of any native title existing on former pastoral lease land. However, the native title can revive when the term of the mining lease expires.

Category D intermediate period acts

4.31 The non-extinguishment principle also applies to category D intermediate period acts. [Paragraph 22B(d)]

What is a category D intermediate period act?

4.32 An intermediate period act is a category D intermediate period act if it does not fall into any of the other categories [Schedule 1, item 39, section 232E]. An example would be the grant of a licence to perform an activity on former pastoral lease land where co-existing native title exists or the grant of a lease under legislation that grants leases only for the benefit of Aboriginal and Torres Strait Islander peoples.

Preservation of reservations etc. beneficial to Aboriginal peoples or Torres Strait Islanders

4.33 The regime for validation of intermediate period acts is not intended to remove reservations and conditions for the benefit of, or existing non-native title rights or interests of, Aboriginal or Torres Strait Islander peoples.

4.34 To this end, section 22B, which sets out the extent of the extinguishing effect of intermediate period acts on native title (discussed in paragraphs 4.13 to 4.29), does not affect the things set out in Table 4.2 [Schedule 1, item 9, section 22C]. Section 22C follows the same form as section 16 of the validation regime in the current NTA.

Nature of the thing	Comments
A reservation or condition in the intermediate period act attributable to the Commonwealth where the reservation or condition is for the benefit of Aboriginal peoples or Torres Strait Islanders *[Paragraph 22C(a)]*	This is not restricted to a reservation or condition in legislation but also includes all those interests listed in the definition of ‘act’ in section 226 of the NTA, such as a lease, licence or permit. An example of the application of paragraph 22C(a) is as follows. The grant of a pastoral lease that is a category B intermediate period act contains a condition that it is subject to rights of access by Aboriginal people. Paragraph 22B(a) does not nullify the effect of that condition.
Rights or interests of Aboriginal peoples or Torres Strait Islanders that would be affected by the doing of the intermediate period act *[Paragraph 22C(b)]*	The rights or interests do not include native title rights and interests. However, they do include rights or interests arising under legislation, at common law or in equity and whether or not they are rights of usage. Examples of such rights and interests would be those arising under an easement, under a contract or lease or from possession or use.

Validation of State and Territory intermediate period acts

4.35 The Commonwealth cannot unilaterally validate the acts of States (see University of Wollongong v Metwally (1985) 158 CLR 447; Western Australia v The Commonwealth (1995) 183 CLR 373). The Commonwealth can prospectively allow the States to validate their acts. The Government which did the act must do the validation. Division 2A allows States and Territories to validate intermediate period acts [Schedule 1, item 9, section 22F]. This reflects the approach taken to the validation of past acts in Division 2.

4.36 Section 22F says that a law of a State or Territory may provide that intermediate period acts attributable to the State or Territory are valid, and are always taken to have been valid. However, these laws will only be effective if they contain provisions to the same effect as sections 22B and 22C. These sections are discussed in this Chapter.

4.37 However, section 22F does not require States and Territories to validate their intermediate period acts. Nor does the section prevent the States and Territories from attempting to validate their intermediate period acts in a different way to that set out in section 22B and 22C.

When is an act attributable to a State or Territory?

4.38 The term ‘act attributable to a State or a Territory’ is already defined in section 239 of the NTA. It is any act done by the Crown in right of the State or Territory, the State or Territory Parliament or any person under a law of the State or Territory.

Compensation for validation of intermediate period acts

4.39 The Bill provides for compensation to be payable to native title holders for the validation of intermediate period acts that affect their native title.

Compensation for intermediate period acts attributable to the Commonwealth

4.40 Native title holders are entitled to compensation from the Commonwealth for the effect on native title of the validation of intermediate period acts attributable to the Commonwealth. [Schedule 1, item 9, section 22D]

4.41 Compensation is payable in accordance with Division 5 of Part 2 of the NTA (as modified by the Bill) [Schedule 1, item 13]. In general terms, compensation for intermediate period acts is an entitlement on ‘just terms’ to compensate the native title holders for any loss, diminution, impairment or other effect of the act on their native title.

Invalidity because of paragraph 51(xxxi) of the Constitution

4.42 Paragraph 51(xxxi) of the Constitution allows the Commonwealth to acquire property from a person only on ‘just terms’. The Bill contains a provision to ensure that the constitutional requirements are met where the invalidity of the intermediate period act attributable to the Commonwealth results from an acquisition of property subject to paragraph 51(xxxi) of the Constitution that has not been made on the necessary ‘just terms’. [Schedule 1, item 9, subsection 22E(1)]

4.43 Where this is the case, any compensation payable by the Commonwealth to native title holders under Division 5 of Part 2 is ‘topped-up’ to ensure that the ‘just terms’ requirements of paragraph 51(xxxi) of the Constitution are satisfied. [Subsection 22E(2)].

Notification by Commonwealth

4.44 The Senate made 1997 Government amendment (3) which is included in the Bill. This amendment inserts a new section 22EA into Division 2A that imposes certain notification requirements on the Commonwealth in relation to acts that:

• consist of the creation of a right to mine, the variation of a right to mine so as to increase the area to which the right relates or, in certain cases, the extension of the period for which such a right has effect (see paragraphs 26(2)(a), (b) and (c) of the current NTA); and

• took place over land that is or was the subject of a freehold or leasehold grant or public work.

4.45 In relation to these acts, the Commonwealth must, within 6 months of the commencement of this section, notify the public and any registered native title body corporate, registered native title claimant and representative Aboriginal/Torres Strait Islander body of the details set out in subsection 22EA(2). These details include the date on which the act was done, information identifying the area over which the act took place, and information about how further details about the act may be obtained.

4.46 Not all acts in relation to which notice is given under subsection 22EA(1) are validated intermediate period acts, since some of these acts will have taken place on land where native title does not exist (see paragraphs (2)(a) and (2)(c) of the definition of ‘intermediate period act’ in section 232A). Rather, the purpose of this provision is to give notice of acts which may be validated intermediate period acts attributable to the Commonwealth. Failure to comply with this section does not, however, render the validation of any intermediate period acts by Subdivision B ineffective.

Compensation for intermediate period acts attributable to a State or Territory

4.47 An entitlement to compensation arises for native title holders if a law of a State or Territory validates, in accordance with section 22F, an intermediate period act attributable to the State or Territory [Schedule 1, item 9, subsection 22G(1)]. The compensation is payable in accordance with Division 5 of Part 2 of the NTA. This compensation may be recovered by native title holders from the State or Territory concerned [subsection 22G(2)].

4.48 If a State or Territory does not validate an otherwise invalid intermediate period act attributable to it, the regime applying under the NTA prior to the commencement of this Bill, which rendered impermissible future acts invalid, would continue to apply.

4.49 The Bill does not prevent a State or Territory from creating its own system for an entitlement to compensation for an intermediate period act or for the validation of such an act. [Subsection 22G(3)]

Notification by States and Territories

4.50 The Senate made 1997 Government amendment (4) which is included in the Bill. This amendment inserts a new section that imposes certain notification requirements on States and Territories that legislate to validate intermediate period acts attributable to them. The new section largely mirrors new section 22EA. Proposed section 22H requires a State or Territory that has legislated, in accordance with section 22F, to validate intermediate period acts attributable to that State or Territory to give notice of any act that:

• consists of the creation of a right to mine, the variation of a right to mine so as to increase the area to which the right relates or, in certain cases, the extension of the period for which such a right has effect (see paragraphs 26(2)(a), (b) and (c) of the current NTA); and

• took place over land that is or was the subject of a freehold or leasehold grant or public work.

4.51 In relation to these acts, the State or Territory must, within 6 months of the commencement of that State or Territory’s validation legislation, notify the public and any registered native title body corporate, registered native title claimant and representative Aboriginal/Torres Strait Islander body of the details set out in subsection 22H(2). These details include the date on which the act was done, information identifying the area over which the act took place, and information about how further details about the act may be obtained.

4.52 Not all acts in relation to which notice is given under subsection 22H(1) will be validated intermediate period acts, since some of these acts will have taken place on land where native title does not exist (see paragraphs (2)(a) and (2)(c) of the definition of ‘intermediate period act’ in section 232A). Rather, the purpose of this provision is to give notice of acts which may be intermediate period acts validated by a State or Territory. Failure to comply with this section does not, however, render the validation of any intermediate period act pursuant to section 22F ineffective.

Validation of transfers under New South Wales land rights legislation

4.52a The Senate made 1998 Opposition amendment (N48), which is included in the Bill. The amendment inserts Division 2AA which comprises sections 22I, 22J, 22K and 22L which allow New South Wales to validate certain transfers under the Aboriginal Land Rights Act 1983 (ALRANSW) of that State. As stated above, the regime for validation of intermediate period acts is not intended to remove reservations and conditions for the benefit of, or existing non-native title rights or interests of, Aboriginal or Torres Strait Islander peoples (see section 22C).

4.52b Section 22F says that a law of a State or Territory may provide that intermediate period acts attributable to the State or Territory are valid, and are always taken to have been valid. However, these laws will only be effective if they contain provisions to the same effect as sections 22B and 22C. The operation of the validation regime without this Subdivision would prevent the valid transfer of land to Aboriginal people in the intermediate period in NSW under the ALRANSW.

4.52c Therefore Subdivision 2AA provides for the validation of such transfers, that the non-extinguishment principle applies to the transfers, that native title holders concerned are entitled to compensation from NSW, that the compensation payable takes into account other rights and interests in the same land belonging to the native title holders and that NSW can make laws creating an entitlement to compensation for the acts or their validation.

Inquiries by the National Native Title Tribunal (NNTT) into the effect of validation of intermediate period acts

4.53 Section 137 of the NTA currently allows the Commonwealth Minister to direct the NNTT to hold special inquiries into certain matters relating to native title. The Bill specifically allows such an inquiry to cover the effect on Aboriginal peoples and Torres Strait Islanders of the validation of particular intermediate period acts. [Schedule 1, item 28]

Consequential amendment to section 7 of the NTA

4.54 Subsection 7(1) of the NTA provides that the NTA does not affect the operation of the Racial Discrimination Act 1975. However, subsection 7(2) currently provides that this general principle does not affect the validation of past acts under the NTA. Subsection 7(2) is being amended so that the general principle also does not affect the validation of intermediate period acts [Schedule 1, item 3]. This amendment is consistent with the policy underlying the existing subsection 7(2).

Overview

5.1 To achieve points 2 and 4 of the Ten Point Plan, Item 9 of Schedule 1 inserts Division 2B into Part 2 of the NTA. This Division confirms the effect on native title of various types of Commonwealth acts done on or before 23 December 1996 and seeks to reflect the Government’s understanding of the common law of native title after the Wik decision. It also permits the States and Territories to confirm the effect of acts they have done on or before 23 December 1996. Schedule 1, item 9 inserts a new section 23A to provide an overview of Division 2B.

5.2 Generally speaking, the existing NTA only provides a framework for dealing with native title. The NTA currently says little about whether or where native title may still exist in Australia, and apart from the very limited validation provisions in Division 2 of Part 2, says nothing about whether native title may or may not have been extinguished. The NTA generally leaves these issues to be determined by the common law. This has given rise to significant uncertainty for native title claimants and the holders of other interests in land.

5.3 The purpose of the proposed amendments dealing with confirmation of extinguishment of native title is to limit this uncertainty. The effect will be to confirm that native title is extinguished on exclusive tenures (such as freehold and residential leases) and extinguished to the extent of any inconsistency on non-exclusive agricultural and pastoral leases. Consistent with the Wik decision, the rationale for such confirmation is that the rights conferred and/or the nature of the use of the land is such that the exclusion of others (including native title holders) must have been presumed when the tenure was granted. The amendments will put the matter beyond doubt.

Acts affected by the confirmation provisions

5.4 Under Division 2B, ‘previous exclusive possession acts’ attributable to the Commonwealth will be confirmed as extinguishing native title totally. ‘Previous non-exclusive possession acts’ attributable to the Commonwealth will be confirmed as extinguishing native title rights and interests that are inconsistent with the rights and interests which the act creates or gives. States and Territories will be able to enact equivalent provisions for previous exclusive and non-exclusive possession acts attributable to them.

5.5 Division 2B explains which acts are ‘previous exclusive possession acts’ and which are ‘previous non-exclusive possession acts’. The categories are determined according to whether an act or the activities are assessed to permit, either directly or necessarily, exclusive possession of the area to the person who has an interest in the area because of the act.

What is a previous exclusive possession act?

5.6 Certain categories of act are defined as previous exclusive possession acts [Schedule 1, item 9, section 23B]. The regulations may provide, however, that an act is not a previous exclusive possession act [subsection 23B(10)].

Grants of freehold and certain leases and vesting of certain interests on or before 23 December 1996

5.7 An act is a previous exclusive possession act if it meets the conditions set out below. [Subsection 23B(2)]

• The act must be valid. This validity can arise because it has been validated as a ‘past act’ under existing section 14 or 19 of the NTA, or validated as an ‘intermediate period act’ under sections 22A and 22F proposed to be inserted by this Bill. Most of these acts will always have been valid. [Paragraph 23B(2)(a)]

• The act must have taken place on or before 23 December 1996 [paragraph 23B(2)(b)]. Point 2 of the 10 Point Plan referred to confirmation in relation to tenures in existence on or before 1 January 1994. The confirmation provisions in Division 2B apply to acts done on or before 23 December 1996 which is the date the Wik decision was handed down by the High Court. The only acts occurring between those two dates which will be covered are those which either validly extinguished native title in accordance with the NTA provisions, or those which are validated by Division 2A.

Grant or vesting of a community purposes lease *[Subparagraph 23B(2)(c)(vi)]*	A definition of ‘community purposes lease’ (section 249A) is inserted by item 49 of Schedule 1 of this Bill and is explained in Chapter 24 (Table 24.2).
Grant or vesting of what is taken by subsection 245(3) to be a separate lease: • in respect of land or waters over which a mining lease was in force at the start of 24 December 1996; and • on which certain towns, cities or private residences, or related buildings or works, are constructed *[Paragraph 23B(2)(c)(vii)]*	Table 4.1 in Chapter 4 explains the background to subsection 245(3). Division 2B will therefore extinguish native title on land or waters affected by the grant or vesting of a mining lease but only to the extent it relates to land or waters on which towns, cities or private residences, or related buildings or works, are constructed.

Note to Table 5.1 The Senate made 1997 Government amendment (5) which is included in the Bill. This amendment removes subsections (4) and (5) from section 23B (of the Bill introduced in 1997) out of concern that these subsections may have resulted in the creation of some national parks, conservation reserves and other like areas being included in the definition of previous exclusive possession act.

Examples of acts not covered by subsection 23B(3)

5.8 To avoid doubt, the following acts are examples of acts that are not covered by subsection 23B(3):

• the Northern Territory Surrender Act 1907 of South Australia (this legislation handed the Northern Territory over to the Commonwealth);

• the Seat of Government Surrender Act 1909 of New South Wales (this legislation granted to the Commonwealth the land which now forms the Australian Capital Territory);

• the Seat of Government Surrender Act 1915 of New South Wales (this legislation granted to the Commonwealth the land which now forms the Jervis Bay).

5.9 Also, the Commonwealth Coastal Waters (State Title) Act 1980 and Coastal Waters (Northern Territory Title) Act 1980 are not acts covered by subsection 23B(3). These Acts vested in each State and the Northern Territory certain property rights in the seabed beneath the relevant coastal waters.

5.10 The Senate made 1997 Government amendment (6) which is included in the Bill. This amendment removes acts covered by subsection 23B(6) from the definition of ‘previous exclusive possession act’. These are certain acts that take place after 23 December 1996 in exercise of a legally enforceable right or option created on or before 23 December 1996. As these are acts which take place after 23 December 1996, it is not appropriate to include them in the confirmation provisions. Rather, these acts should be, and are, generally covered by the future act regime, in particular section 24IB.

Construction of public works that commenced on or before 23 December 1996

5.11 An act is also a previous exclusive possession act if it is the valid construction or establishment of any public work, where the construction or establishment started on or before 23 December 1996. The validity can arise because of the validation of past acts under existing section 14 or 19 of the NTA, or because of the validation of intermediate period acts under sections 22A or 22F proposed to be inserted by this Bill. Most acts will always have been valid. [Subsection 23B(7)]

5.12 The Senate made 1997 Government amendment (7) which is included in the Bill. This amendment removes acts covered by subsection 23B(8) from the definition of ‘previous exclusive possession act’. These are certain acts consisting of the construction of a public work that commenced construction after 23 December 1996 pursuant to a reservation made for a particular purpose before that date. As these are acts which take place after 23 December 1996, it is not appropriate to include them in the confirmation provisions. Rather, these acts should be, and are, generally covered by the future act regime, in particular section 24JB.

Grants to or for the benefit of Aboriginal peoples or Torres Strait Islanders are not previous exclusive possession acts

5.13 However, an act will not fall into any of the categories of previous exclusive possession act if it is the grant or vesting of any thing by or under legislation that makes provision for the grant or vesting of such things only to, in or for the benefit of Aboriginal peoples or Torres Strait Islanders [subsection 23B(9)]. This will include grants under the Aboriginal Land Rights (Northern Territory) Act 1978 and other land rights legislation. The Senate made 1998 Government amendment (3), which is included in the Bill, replacing subsection 23B(9) and adding new subsections (9A) and (9B). The amendment to proposed section 23B will also exclude:

• the grant or vesting of anything expressly for the benefit of, or to or in a person to hold on trust expressly for the benefit of Aboriginal peoples or Torres Strait Islanders (new paragraph (9)(b)); and

• the grant or vesting of any thing over particular land or waters, if at the time a thing covered by paragraph (9)(a) or (9)(b) is in effect in relation to the land or waters (new paragraph (9)(c)).

5.13a The amendment recognises that not all grants to indigenous communities are made under specific land rights type legislation, and ensures that grants made under general legislation, where the purpose of the grant is to benefit indigenous communities, are not included in the definition of ‘previous exclusive possession act’. This will mean that these acts are not covered by the confirmation of extinguishment provisions and the effects of such acts on native title are left to determination by the common law. Grants which are not expressly for the benefit of Aboriginal peoples, but are made in the normal way to a specific person, who happens to be an Aboriginal person, are not caught by this exclusion. Such grants are able to be ‘previous exclusive possession acts’ and may be subject to the confirmation of extinguishment regime.

5.13b A note has been included under subsection 26B(9) to draw attention to the fact that the term ‘Aboriginal peoples’ is defined in section 253.

5.13c The amendment to proposed section 23B will also exclude from the definition of ‘previous exclusive possession act’, and thereby the confirmation provisions, acts that involve the establishment of an area for the purpose of preserving the natural environment (new subsection 23B(9A)). The purpose of this provision is to put it beyond all doubt that the confirmation provisions are not intended to apply to the creation of national parks and the like.

5.13d The insertion of new subsection 23B(9B) puts it beyond doubt that new subsections 23B(9) and (9A) in no way affects the validity of acts to which those subsections apply. ‘Valid’ is defined in section 253 to include ‘having full force and effect’.

5.13e The Senate made 1998 Opposition amendment (N5), which is included in the Bill. This amendment inserts new paragraph 23B(9C) which makes it clear that if an act is done pursuant to a law which says that the doing of the act does not extinguish native title rights, that act is not a previous exclusive possession act, no matter what its effect under the common law may have been.

What is a previous non-exclusive possession act?

5.14 Two categories of act are defined as previous non-exclusive possession acts: grants of non-exclusive agricultural or non-exclusive pastoral leases on or before 23 December 1996 and rights etc. created on or before 23 December 1996 to grant such leases but exercised after that date. [Schedule 1, item 9, section 23F]

Grants of non-exclusive agricultural or pastoral leases on or before 23 December 1996

5.15 An act is a previous non-exclusive possession act if it meets the conditions set out below [subsection 23F(2)]. The regulations may provide, however, that an act is not a previous exclusive possession act [subsection 23F(4)].

• The act must be valid. As with previous exclusive possession acts, this validity can arise because of the validation of past acts under existing section 14 or 19 of the NTA, or because of the validation of intermediate period acts under sections 22A or 22F proposed to be inserted by this Bill. Most will always have been valid. [Paragraph 23F(2)(a)]

• The act must have taken place on or before 23 December 1996 (the date of the High Court’s decision in Wik). [Paragraph 23F(2)(b)]

• The act must consist of the grant of a non-exclusive agricultural lease or a non-exclusive pastoral lease [Paragraph 23F(2)(c)]. These terms are defined in proposed sections 247B and 248B, respectively, of the NTA (see items 47 and 48 of Schedule 1).^[8]

Rights etc. created on or before 23 December 1996 to grant non-exclusive agricultural or pastoral leases but exercised after that date

5.16 An act is also a previous non-exclusive possession act even if it takes place after 23 December 1996 provided it happens in pursuance of certain rights or arrangements etc. arising on or before that date [subsection 23F(3)].^[9] An example would be a decision before 24 December 1996, evidenced in writing, to grant a non-exclusive pastoral lease, but where the things necessary to complete the grant have not been done by that time. An act will fall into this class if the conditions below are met.

• The act must have been a previous non-exclusive possession act under the general definition (discussed in paragraph 5.21) if that definition allowed acts after 23 December 1996 to be previous non-exclusive possession acts. [Paragraph 23F(3)(b)]

• The act must take place in good faith in exercise of a legally enforceable right created, or as a result of a bona fide offer, commitment, arrangement or undertaking made or given, on or before 23 December 1996. However, there must be written evidence of the offer, commitment, arrangement or undertaking created at or near the time it was made or given. [Paragraph 23F(3)(c)] The requirement that the act also take place in good faith was inserted by 1997 Government amendment (11A) which was made by the Senate and is included in the Bill.

Previous exclusive and non-exclusive possession acts of the Commonwealth

5.17 Division 2B also confirms the effect on native title of previous exclusive possession acts and previous non-exclusive possession acts, as follows:

• previous exclusive possession acts attributable to the Commonwealth extinguish native title totally [Schedule 1, item 9, section 23C]; and

• previous non-exclusive possession acts attributable to the Commonwealth extinguish any inconsistent native title [Schedule 1, item 9, section 23G] (see paragraph 5.28 below).

5.18 Consistent with this, section 11 of the NTA is being amended to include a reference to Division 2B. Section 11 says that native title cannot be extinguished by legislation on or after 1 July 1993 except in accordance with certain provisions in the NTA, which will now include those in Division 2B. [Schedule 1, item 4]

Previous exclusive possession acts extinguish native title

Grants or vesting of interests

5.19 A previous exclusive possession act attributable to the Commonwealth that is the grant or vesting of an interest listed in Table 5.1 extinguishes any native title in respect of the land or waters covered by it. The extinguishment is taken to have occurred at the time of the grant or vesting not the time that the relevant section of the NTA comes into effect [subsection 23C(1)]. The interest need not still exist on 23 December 1996 for the extinguishment to be confirmed. If it ceases to exist after 23 December 1996, the extinguishment will still have occurred.

5.20 The Senate made 1997 Government amendment (9) which is included in the Bill. This amendment removes references in subsection 23C(1) to subsections 23B(4) and 23B(5) as these subsections were removed from section 23B by 1997 Government amendment (5). The Senate also made 1997 Government amendment (10) which is also included in the Bill. This amendment removes the reference in subsection 23C(1) to subsection 23B(6) and is required as a consequence of the removal of subsection 23B(6) by 1997 Government amendment (6).

Public works

5.21 A previous exclusive possession act attributable to the Commonwealth that is the construction or establishment of a public work extinguishes any native title in respect of the land or waters on which the work is or was situated determined as at the time it is completed.^[10] The extinguishment is, however, taken to have occurred at the commencement of the construction or establishment of the public work [subsection 23C(2)]. The public work need not still exist on 23 December 1996 for the extinguishment to be confirmed. If it ceases to exist after 23 December 1996, the extinguishment will still have occurred. The Senate made 1997 Government amendment (11) which is included in the Bill. This amendment removes the reference to subsection 23B(8) from subsection 23C(2) and is required as a consequence of the removal of subsection 23B(8) by 1997 Government amendment (7).

Previous non-exclusive possession acts extinguish inconsistent native title

“Only if there is inconsistency between the legal interests of the lessee (as defined in the instrument of lease and the legislation under which it was granted) and the native title (as established by evidence), will such native title, to the extent of the inconsistency, be extinguished.”

5.23 Table 5.2 sets out the native title rights and interests in respect of the land or waters covered by the lease that are extinguished by a previous non-exclusive possession act attributable to the Commonwealth.

Native title extinguished	Comments
Native title rights and interests that are inconsistent with the rights and interests granted by the lease *[Paragraph 23G(1)(a)]*	The extinguishment might be total in cases where the native title rights and interests are wholly inconsistent with the rights and interests granted by the lease. In other cases, for example where the native title rights are only limited access rights, there may be no extinguishment.
Native title rights and interests to the extent that they confer exclusive possession, occupation, use and enjoyment of the land or waters *[Paragraph 23G(1)(b)]*	The continuation of such ‘exclusive’ rights and interests would clearly be inconsistent with the rights created under a lease which permits the use of the land for agricultural or pastoral purposes.

5.24 The extinguishment is taken to have occurred at the time of the grant of the lease (ie. not at the time that the relevant section of the NTA comes into effect) [paragraph 23G(1)(c)]. The lease need not still exist on 23 December 1996 for the extinguishment to be confirmed. If it ceases to exist after 23 December 1996, the extinguishment will still have occurred.

5.25 The Senate made 1997 Government amendment (12) which is included in the Bill. This amendment inserts paragraph 23G(1)(d) which provides that to the extent that a previous non-exclusive possession act attributable to the Commonwealth involves the grant of rights and interests that are not inconsistent with the continued existence and enjoyment of native title rights, those ‘consistent’ rights granted by the Crown, and any activities done in giving effect to those rights, prevail over the native title rights and interests but do not extinguish the native title rights and interests. The amendment reflects the position at common law, which is that native title rights and interests may survive the grant of a non-exclusive pastoral or non-exclusive agricultural lease. The amendment makes it clear that any native title rights and interests that do survive are not extinguished by acts done pursuant to those ‘consistent’ rights. It is generally left to the courts to determine what rights granted by pastoral leases are inconsistent with native title and what rights are consistent.

When is an act attributable to the Commonwealth?

5.26 The term ‘act attributable to the Commonwealth’ is already defined in section 239 of the NTA. It is any act done by the Crown in right of the Commonwealth, the Commonwealth Parliament or any person under a law of the Commonwealth.

What does extinguishment mean?

5.27 The Bill specifically defines the word extinguish in relation to native title to mean permanent extinguishment. This means there is no possibility of revival of the native title at some time after the extinguishment occurs even if the extinguishing act ceases to exist (see paragraph 4.18 of Chapter 4). [Item 45, section 237A] Some of the Justices in Wik specifically left open the question whether native title is permanently extinguished by the grant of inconsistent pastoral lease rights, or whether the native title rights can revive on the expiration of the pastoral lease. However, in the recent Federal Court decision in Larrakia People v Northern Territory of Australia and Oilnet (NT) Pty Ltd^[11] O’Loughlin J stated:

‘But I cannot proceed upon a premis that, because His Honour [Gummow J in Wik] decided not to comment about a doctrine, there is therefore such a doctrine in existence. I would, on the contrary, feel obliged, in the light of the dicta first mentioned [Wik per Toohey J at 125, Gaudron J at 135, Gummow J at 176 and Kirby at 250] to reject the submission that native title might somehow survive the grant of an estate in fee simple’.

‘My conclusion is that once native title has been extinguished, the issue has come to an end and there can be no revival of that title under the common law.’

Effect of confirmation on provisions dealing with past acts and intermediate period acts

5.28 If native title has been extinguished by a previous exclusive possession act or a previous non-exclusive possession act, the provisions that deal with the effect of past acts and intermediate period acts on native title do not apply [subsections 23C(3) and 23G(3); Schedule 1, item 8]. These provisions are existing section 15 of the NTA and new section 22B proposed to be inserted by item 9 of Schedule 1. Subsections 23C(3) and 23G(3) ensure that there is no overlap between the provisions that extinguish native title. For example, the non-extinguishment principle applies to the grant by the Commonwealth of freehold validated under Division 2 if it was no longer in existence on 1 January 1994 (see subsection 229(2) and section 232) but by reason of section 23C(1), the native title will now be taken to have been extinguished by that grant.

5.29 However, there is an exception in the case of previous non-exclusive possession acts. This relates to category A past acts consisting of the grant of an agricultural or pastoral lease. Under existing paragraph 15(1)(a) of the NTA, such grants extinguish native title. The regime dealing with the confirmation of extinguishment by previous non-exclusive possession acts does not cover these cases [subsection 23G(2)]. This ensures that the effect of the confirmation provisions is not to undo extinguishment that has already occurred under the NTA (under the confirmation provisions, extinguishment only occurs to the extent of any inconsistency - see section 23G(1)): there will be no adverse effect of the amendments on any holders of land or waters for which native title has already been extinguished by the NTA.

Preservation of reservations etc. beneficial to Aboriginal peoples or Torres Strait Islanders

5.30 The regime for confirmation of past extinguishment of native title is not intended to remove reservations and conditions for the benefit of, or existing non-native title rights or interests of, Aboriginal peoples or Torres Strait Islanders.

5.31 To this end, sections 23C and 23G, which set out the confirmation provisions (discussed in paragraphs 5.23 to 5.33), do not affect the things set out in Table 5.3. [Schedule 1, item 9, sections 23D and 23H]

Notification

5.32 The Senate made 1997 Government amendment (12A) which is included in the Bill. This amendment inserts a new section 23HA which requires, in the case of a previous non-exclusive-possession act to which subparagraph 23F(3)(c)(ii) applies, that notice be given in the way determined in writing by the Commonwealth Minister, to any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the area affected by the act about the doing or proposed doing of the act, or acts of that class, and give those persons an opportunity to comment on the act or class of acts. However, failure to comply with this notification requirement will not result in invalidity.

Previous exclusive and non-exclusive possession acts of the States and Territories

• previous exclusive possession acts attributable to them extinguish native title [Schedule 1, item 9, section 23E]; and

• previous non-exclusive possession acts attributable to them extinguish native title to the extent of any inconsistency [Schedule 1, item 9, section 23I].

5.34 The amendments to section 11 of the NTA, discussed in paragraph 5.18, relating to the effect of Division 2B on the making, amendment or repeal of Commonwealth or State or Territory legislation on or after 1 July 1993, also apply in these cases. [Schedule 1, item 4]

5.35 As with the validation of past acts and intermediate period acts, the Commonwealth does not unilaterally provide for the extinguishment of native title by the acts of States and Territories (see paragraph 4.35 of Chapter 4).

5.36 Section 23E says that a law of a State or Territory may provide that all or any ‘previous exclusive possession acts’ (described in section 23B - see paragraphs 5.6 to 5.13) attributable to the State or Territory extinguish native title if they contain provisions to the same effect as sections 23C and 23D. Section 23C, discussed in this Chapter, provides for the extinguishment of native title by previous exclusive possession acts attributable to the Commonwealth. Section 23D deals with the preservation of reservations etc. beneficial to Aboriginal peoples or Torres Strait Islanders.

5.37 In a like manner, section 23I says that a law of a State or Territory may provide that all or any ‘previous non-exclusive possession acts’ (described in section 23F - see paragraphs 5.14 to 5.16) attributable to the State or Territory extinguish native title if they contain provisions to the same effect as sections 23G, 23H and 23HA. Section 23G, also discussed in this Chapter, provides for the extinguishment of inconsistent native title by previous non-exclusive possession acts attributable to the Commonwealth. Section 23H deals with the preservation of reservations etc. beneficial to Aboriginal peoples or Torres Strait Islanders. Section 23HA requires certain notification procedures to be followed in relation to certain previous non-exclusive possession acts. The reference to section 23HA was inserted by 1997 Government amendment (12B) which was made by the Senate and included in the Bill. (Sections 23G, 23H and 23HA are all discussed in this Chapter.)

5.38 However, sections 23E and 23I do not require States and Territories to confirm extinguishment for their acts. Nor do the sections prevent the States and Territories from attempting to confirm extinguishment in a different way to that set out in sections 23E and 23I. However, there would be a risk that such an attempt was inconsistent with sections 10 and 11 of the NTA.

When is an act attributable to a State or Territory?

5.39 The term ‘act attributable to a State or a Territory’ is already defined in section 239 of the NTA. It is any act done by the Crown in right of the State or Territory, the State or Territory Parliament or any person under a law of the State or Territory.

5.39a The Senate made 1998 Government amendment (4) which inserts new section 23JA into the Bill. Section 24JA provides that previous exclusive possession acts’ or ‘previous non-exclusive possession acts’ over land which is now part of a State or Territory are attributable to the State or Territory.

5.39b Therefore if the area where the previous exclusive possession act took place was at the time part of New South Wales or South Australia, and is now part of the Australian Capital Territory or the Northern Territory, the exclusive possession act is attributable to the Territory rather than the State. If a previous exclusive possession affected an area which now forms part of the Jervis Bay Territory, the Act is taken to be attributable to the Commonwealth, not New South Wales.

5.39c The term ‘attributable’ to the Commonwealth, a State or a Territory is defined in section 239, and this definition continues to operate. This amendment will ensure that acts by colonies are attributable to the relevant State.

Compensation for confirmation of extinguishment

5.40 Division 2B provides for compensation to be payable, in limited circumstances, to native title holders for the effect of the confirmation of extinguishment on their native title. [Schedule 1, item 9, section 23J]

5.41 If native title has already been extinguished otherwise than under the NTA (e.g. in accordance with common law principles that other legislation has extinguished native title), compensation is not payable under the NTA. However, if Division 2B does extinguish native title to a greater extent than otherwise would have been the case without the NTA, compensation is payable to that extent [subsection 23J(1)]. This ensures that Division 2B does not create a right to compensation for acts where it would not be payable without Division 2B.

5.42 As discussed in paragraph 5.3, Division 2B is intended to reflect the common law. Therefore it is not expected that section 23J will need to operate. It is included as a safeguard in the event that a court finds that extinguishment under Division 2B goes further than the common law.

5.43 If an act attributable to the Commonwealth extinguishes native title in accordance with Division 2B, the compensation is payable by the Commonwealth [subsection 23J(2)]. States and Territories are liable for compensation in relation to their acts that extinguish native title in accordance with Division 2B [subsection 23J(3)].

5.44 If compensation is payable under section 23J, it is payable in accordance with Division 5 of Part 2 of the NTA (as modified by the Bill) [Schedule 1, item 13]. In general terms, compensation is an entitlement on ‘just terms’ to compensate the native title holders for any loss, diminution, impairment or other effect of the act on their native title.

5.44a The Senate made 1998 Government amendment (52) which is included in the Bill. This amendment inserts new item 13A to amend section 50 of the current NTA. This amendment replaces the word ‘section’ in subsection 50(1) with ‘Division’ to clarify that a determination of compensation may only be made in accordance with Division 5 of Part 2.

5.44b The Senate made 1998 Government amendment (53) which is included in the Bill. This amendment inserts new item 13B, which inserts a note after subsection 50(1) to explain that the compensation in question is usually for either valid or validated acts. Compensation liabilities or damages for the effects of invalid acts would ordinarily arise under the general law such as the law of trespass, not under the NTA. However, it also refers to the fact that the Federal Court may be able to award compensation or damages in relation to invalid acts in the exercise of its jurisdiction under subsection 213(2).Provisions relating to certain reserves or vacant Crown land

Reserves etc. covered by claimant applications

5.45 The Senate made 1997 Government amendment (45R) which is included in the Bill. This amendment inserts two new sections - 47A and 47B. Section 47A (reserves etc. covered by claimant applications) is a statutory mechanism designed to allow native title claimants who are in occupation of land currently subject to a ‘land rights’ type grant to, or a trust or reservation for, Aboriginal peoples and Torres Strait Islanders, to overcome the effect of past extinguishment and have their claim determined by the court^[12]. The current section 47 allows a claim for pastoral lease land, notwithstanding past extinguishment, where the claimants hold the pastoral lease. This provision will allow a claim for land granted to, held in trust or reserved for, Aboriginal people and Torres Strait Islanders where the claimants are in occupation of the land, notwithstanding possible extinguishment by the grant, trust or reservation, or, more importantly, any historical act.

5.46 The amendment implements the recommendation of the Majority Report of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund on the Bill that:

governments should deal sensitively and on a case-by-case basis with those situations where Indigenous people continue to live on reserves but are unable to register native title applications.

− granted under ‘land rights’ type legislation. The ‘land rights’ type legislation must specifically provide for the grant or vesting of land to, in or for the benefit of Aboriginal peoples or Torres Strait Islanders. (Grants of land under general land legislation to Aboriginal peoples or Torres Strait Islanders will not be caught as a ‘land rights’ type grant); or

− held on trust or reserved for the benefit of Aboriginal peoples or Torres Strait Islanders.

− The Senate made 1998 Government amendment (5), which is included in the Bill, replacing subparagraph 47A(1)(b)(ii). The amendment recognises that not all of the beneficial grants which the Government wishes to cover use trust arrangements or reservations. Grants which were not expressly for the benefit of Aboriginal peoples, but which were made in the normal way to a specific person, who happens to be an Aboriginal person, are not covered by paragraph 47A(1)(b).

5.48 The second requirement is that one or more members of the claim group occupy the land.

5.49 If these requirements are met, the extinguishment by the ‘land rights’ type grant or the creation of the trust or reservation is ignored, as is any other prior act, for the purposes of determining the claim. The only exception is that for land held on trust, the prior grant of freehold is not disregarded. In such a case, the claim will not be able to be made out. But if the land had previously been subject to a leasehold grant, then the extinguishing effect of that grant is ignored. Similarly, if the land had previously been subject to a pastoral lease, then the partial extinguishment effected by that grant is also ignored. This is the case even if these grants are validated under the Native Title Act, or are subject to the confirmation regime in the Act.

5.50 Of course the claimants will still need to establish the positive elements of their claim, that is that the land is their traditional land and that they have maintained their traditional connection to it.

5.51 If the claim is successful, the native title rights are nonetheless subject to the current land rights grant, the trust or the reservation, which continues to be valid. If the land has been granted to or reserved for Aboriginal peoples and Torres Strait Islanders generally, or a particular group, then the land retains this status, and those people continue to have their full rights to the land. The non-extinguishment principle applies to the grant, trust or reservation. Accordingly, the native title is not extinguished, but it is clearly subject to the land rights grant, trust or reservation and all the rights which flow from this.

Native title subject to Crown interest in public works on land

5.52 The native title is also subject to any interest of the Crown in any public works on the land. These are valid, that is, they have full force and effect (section 253).

Historical grants

5.53 Also, it is not that any historical grants are invalid in any sense. Rather these were subject to the non-extinguishment principle (see section 238).

Exclusion of Crown ownership of natural resources

5.54 The creation of an interest that confers ownership of natural resources on the Crown or confirms ownership of natural resources by the Crown is not to be disregarded for the purposes of subsection 47A(2). [subsection 47A(4)]

Prior extinguishment and the right to negotiate

5.55 The fact that a determination of native title is made over land to which this section is applicable does not prevent the land being a ‘leased or reserved area’ for the purposes of subsection 43A(2).

Vacant Crown land covered by claimant applications

5.56 Section 47B is a statutory mechanism designed to allow native title claimants who are in occupation of vacant Crown land to overcome the effect of past extinguishment and have their claim determined by the court^[13]. The current section 47 allows a claim for pastoral lease land, notwithstanding past extinguishment, where the claimants hold the pastoral lease. This provision will allow a claim for vacant Crown land where the claimants are in occupation of the land, notwithstanding possible extinguishment by any historical act.

5.57 The amendment flows from the recommendation of the Majority Report of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund on the Bill that:

governments should deal sensitively and on a case-by-case basis with those situations where Indigenous people continue to live on reserves but are unable to register native title applications.

5.58 The first requirement is that the claim is made over vacant Crown land. This is land which is not currently covered by a freehold estate or a lease (which by subsection (4) includes a lease which has been or is to be renewed). It is also land which is not subject to a reservation for a public purpose or a particular purpose. It is also land that is not subject to a resumption process. Paragraph 47B(5)(b) sets out the circumstances in which an area is subject to a resumption process. The Senate made 1998 Government amendment (8), which is included in the Bill, substituting the word ‘dedication’ for ‘declaration’ in subparagraph 47A(1)(b)(ii). This is a minor correction. The Senate also made 1998 Government amendments (6) and (7), which are linked to the above amendment and make consequential technical changes.

5.59 The second requirement is that one or more of the claim group occupy the land.

5.60 If these requirements are met, the extinguishment by the creation of any prior interest is ignored for the purposes of determining the claim. Therefore if the land had previously been subject to a freehold or leasehold grant, then the extinguishing effect of that grant is ignored. Similarly, if the land had previously been subject to a pastoral lease, then the partial extinguishment effected by that grant is also ignored. This is the case even if these grants are validated under the Native Title Act, or are subject to the confirmation regime in the Act.

5.61 Of course the claimants will still need to establish the positive elements of their claim, that is that the land is their traditional land and that they have maintained their traditional connection to it.

5.62 If the claim is successful, it is not that any historical grants are invalid in any sense. Rather these were subject to the non-extinguishment principle (see section 238).

5.63 The native title is subject to any interest of the Crown in any public works on the land.

5.64 The creation of an interest that confers ownership of natural resources on the Crown or confirms ownership of natural resources by the Crown is not to be disregarded for the purposes of subsection 47B(2). [Paragraph 47B(5)(a)]

Overview

6.1 To achieve points 3, 4, 5, 6, 7, 8 and 10 of the Ten Point Plan, Item 9 of Schedule 1 repeals existing Division 3 of Part 2 of the NTA and substitutes a new Division 3. Existing Division 3 contains provisions that deal with the validity of future acts and their effect on native title. The new Division 3 will provide a substantially more comprehensive regime to deal with these matters.

6.2 Item 9 contains most of the amendments which deal with the way in which acts which affect native title can be validly done in the future over areas where native title may exist. New Division 3 is divided into Subdivisions A to Q, with each Subdivision dealing with a particular aspect of the system regulating future acts (Subdivision A gives an overview and deals with other preliminary matters). The Senate made 1997 Government amendment (13) which is included in the Bill. This amendment changes the heading to Subdivision A from ‘Overview of Division 3’ to ‘Preliminary’.

6.3 There are other provisions in the NTA which have some bearing on this system. These are mainly the definition provisions which deal with terms used in Division 3 of Part 2 and some functions of the Native Title Registrar and the NNTT which relate to future acts.

What is the future act regime?

6.4 The Bill provides an overview of new Division 3. [Schedule 1, item 9, section 24AA]

6.5 In essence, the future act regime seeks to answer the question: what acts can governments take which will affect native title? If an act will not affect native title, it is not subject to the NTA and the future act regime. If an act will affect native title and complies with Division 3, it will be valid. The Division also sets out some of the consequences of these acts for native title. If an act affects native title and does not comply with Division 3, it is invalid to that extent.

What future acts are valid?

6.6 Division 3 provides for future acts which fall into one of a number of categories. There are provisions in Division 3 which describe each of these categories. Some future acts (those dealing with the conferral of certain mining rights and certain acquisitions) will only be valid where additional procedures dealing with the right of actual or potential native title holders to negotiate have been satisfied.

6.7 Division 3 establishes a system for agreements between actual or potential native title holders and those wishing to use land. These are called ‘indigenous land use agreements’. Under section 24EB, future acts done in accordance with these agreements are a category of acts that are valid.^[14] Where such an agreement is in place, then its terms are intended to take precedence over any other provisions in the NTA which would otherwise apply to the future acts covered by the agreement. However, there is no requirement for parties wishing to use land to enter into, or attempt to enter into, such an agreement. The Senate made 1998 Government amendment (11), which is included in the Bill, to section 24AA. The amendment describes various types of future acts, their features and their effects, explains that certain future acts that have been done invalidly can be covered by an indigenous land use agreement (ILUA) and thus validated. This does not include intermediate period acts, as they are, or can only be, validated by or under Division 2A of Part 2. This amendment is linked to the other 1998 Government amendments (12), (14), (17) and (19).

6.8 The other provisions which make future acts valid and a broad description of their coverage are set out in Table 6.1.

Provision that renders future act valid	What the provision deals with
Section 24FA	Future acts where procedures indicate an absence of native title (see Chapter 8)
Section 24GB	Acts permitting primary production activity on non-exclusive agricultural or non-exclusive pastoral leases (see Chapter 9)
Section 24GD	Acts permitting certain off-farm acts etc. directly connected to primary production activities (see Chapter 9)
Section 24GE	The granting of rights to third parties etc. on non-exclusive agricultural or non-exclusive pastoral leases (see Chapter 9)
Section 24HA	Management of water and airspace (see Chapter 10)
Section 24IA	Acts involving renewals and extensions etc. of acts - e.g. the renewal of a pastoral lease (see Chapter 11)
Section 24JA	Acts involving reservations etc. (see Chapter 12)
Section 24KA	Acts involving facilities for services to the public (see Chapter 13)
Section 24LA	Low impact future acts (see Chapter 14)
Section 24MD	Acts that pass the freehold test (see Chapter 15)
Section 24NA	Acts affecting offshore places (see Chapter 16)

Most future acts are subject to the non-extinguishment principle

6.9 The ‘non-extinguishment principle’ applies to most acts that are rendered valid under Division 3. The non-extinguishment principle is already defined in section 238 of the NTA. In broad terms, it says that while an act subject to the principle does not extinguish native title to the extent of any inconsistency, the native title has no effect in relation to the act where the two are inconsistent. If the act or its effects are later removed or cease to operate, the native title again can have full effect (ie. the native title is only suppressed).

Repeal of superseded definitions

6.10 Certain definitions used under the existing future act regime in the NTA are to be repealed as a result of the restructuring of the future act regime. These are the definitions of ‘low impact future act, ‘permissible future act’ and ‘impermissible future act’ [Schedule 1, item 41]. These provisions are now found in another form in the new Division 3 itself.

What future acts are not valid?

6.11 A future act is taken to be invalid to the extent that it affects native title if it neither falls into one of the categories listed above nor is covered by an ILUA. [Schedule 1, item 9, section 24OA]

What other matters are dealt with by the future act regime?

6.12 Division 3 also deals with procedural rights (such as the right to object to registration of indigenous land use agreements) and compensation to native title holders for valid future acts.

6.13 Finally, Division 3 confers access rights on certain groups of Aboriginal peoples or Torres Strait Islanders with registered native title claims. These access rights operate for land and waters that are the subject of non-exclusive agricultural and non-exclusive pastoral leases.

What is a future act?

6.14 Division 3 is not intended to create a code which applies whenever an act is done by government. It applies only in relation to ‘future acts’. The term ‘future act’ is already defined in section 233 of the NTA. In broad terms, it is an act occurring on or after 1 January 1994 that affects native title. An act consisting of the making, amendment or repeal of legislation is a future act if it takes place on or after 1 July 1993 and affects native title. An act ‘affects’ native title only if it extinguishes the native title rights and interests or if it otherwise is wholly or partly inconsistent with their continued existence, enjoyment or exercise (section 227 of the NTA).

Amendment to the definition of ‘future act’

6.15 The existing definition of future act also provides that legislation validating a past act (generally acts done before 1 January 1994 that were invalid because of native title) is not a future act to that extent. This aspect of the definition of future act is proposed to be amended by the Bill [Schedule 1, item 40]. This amendment will make the definition consistent with the new provisions that will:

• validate intermediate period acts (new Division 2A of Part 2 - refer to Chapter 4); and

• confirm extinguishment of native title (new Division 2B of Part 2 - refer to Chapter 5).

6.16 The amendment to the definition of future act will also enable the States and Territories to enact the complementary legislative regimes envisaged under these provisions.

6.17 Under the change proposed by item 40 of Schedule 1, an act consisting of the making, amendment or repeal of legislation will not be a future act to the extent that it purports to validate any past act or intermediate period act or to confirm the extinguishment of native title. This will only be the case where the act is done, or permitted to be done, under the following provisions of the NTA:

• Division 2 of Part 2 (which deals with the validation of past acts and their affect on native title);

• proposed Division 2A of Part 2 (which will deal with the validation of intermediate period acts and their affect on native title); and

• proposed Division 2B of Part 2 (which will deal with confirmation of extinguishment of native title by certain valid or validated acts).

What if a future act is rendered valid by more than one provision?

6.18 The Bill inserts in the NTA a rule to deal with the situation where a future act meets the requirements of more than one validating provision of Division 3 [Schedule 1, item 9, section 24AB]. This is necessary because different consequences may flow from the application of different provisions (e.g. different procedural or compensation arrangements may apply).

6.19 If an act would, apart from section 24AB, be covered by more than one validating provision, it is instead only covered by one, as set out in Table 6.2. This applies to the extent that the act is covered by the provisions concerned.

6.20 The Senate made Government amendment (14) which is included in the Bill. This amendment inserts a new section 24AC which will enable regulations to be made that impose notification requirements in relation to acts or classes of acts that are valid under Division 3. Regulations made pursuant to this section may impose notification requirements that are additional to any contained in Division 3 or notification requirements where none exist under Division 3. The Regulations may require notification to be given either before or after the acts are done. The Regulations may provide for the time, form, content of the notice, who is to notify and who is to be notified. Failure to notify under any such Regulations will not affect the validity of the future act.

What if activities are performed in accordance with rights or interests granted by a valid act?

6.21 The Bill clarifies the effect on native title of activities undertaken in accordance with a valid lease, licence, permit or authority [Schedule 1, item 10, section 44H]. Following the Wik decision there was concern raised that pastoral lessees may need to obtain the agreement of native title holders in order to conduct activities under their lease, such as construct a dam. These provisions are intended to ensure that, provided the lease is valid in accordance with the NTA, the lessee is able to carry on activities under the lease notwithstanding native title.

6.22 The provision that clarifies these matters applies where the following conditions are met.

• A lease, licence, permit or authority must have been validly granted, issued or created. This validity could arise because of:

− the validation of intermediate period acts under sections 22A and 22F proposed to be inserted by this Bill; or

− the existing Division 3, or the new Division 3, of Part 2, both of which provide for the validity of certain future acts. [Paragraph 44H(a)]

• The lease, licence, permit or authority must require or permit the performance of the activity (whether or not subject to conditions). [Paragraph 44H(b)]

• The Senate made 1998 Government amendment (82), which is included in the Bill. The amendment inserts new paragraph 44H(ba) to make clear that in order to prevail over native title rights, any activity one in reliance on the lease or interest must be done in accordance with the lease or interest, and any conditions in relation to the lease or interest.

• The requirement or permission in the lease, licence, permit or authority, and the doing of any activity in accordance with the requirement or permission, prevails over any native title and exercise of native title rights and interests. [Paragraph 44H(c)]. The Senate made 1997 Government amendment (44) which is included in the Bill. This amendment to paragraph 44H(c) puts beyond doubt that native title rights and interests are not extinguished by the requirement or permission or the doing of any activity in giving effect to a requirement or permission contained in the lease, licence, permit or authority.

• Any native title that may exist in relation to the land or waters covered by the lease, licence, permit or authority, and the exercise of any native title rights and interests, do not impede the doing of any activity in pursuance of the requirement or permission. [Paragraph 44H(d)]

• The native title holders are not entitled to any compensation for the doing of the activity in accordance with the requirement or permission [paragraph 44H(e)]. Any compensation payable to the native title holders will be for the act of granting or issuing the lease, licence, permit or authority and this can take account of the doing of activities that are required or permitted. Paragraph 44H(e) ensures that there is no ‘double dipping’ in relation to compensation.

• The Senate made 1998 Government amendments (83, (84) and (85), which are included in the Bill. These amendments to paragraphs 44H(c), (d) and (e) in the Bill omit the words ‘any activity in giving effect to the requirement or permission’ and replace them with ‘the activity’. These are technical amendments consequential upon new paragraph 44H(ba) inserted by 1998 Government amendment (82) above.

6.24 It is to be noted, however, that section 44H does not make unlawful activities lawful. For example, the activity would need to be authorised by the lease or some other authority (such as a licence or permit) and, for instance, the provision would not authorise an activity that is criminal under Commonwealth, State or Territory law.

Primary production activities

6.25 Proposed section 24GC of the Bill (item 9 of Schedule 1) specifically deals with the case of primary production activities performed in connection with non-exclusive agricultural and non-exclusive pastoral leases. This is discussed in Chapter 9. The existence of section 24GC is not intended to limit the operation of proposed section 44H and is included to add certainty for primary producers affected by native title. The Senate made 1998 Government amendment (86), which is included in the Bill. This amendment has the effect of inserting an additional note at the end of section 44H in the Bill to explain that the section does not imply that a person carrying on an activity to which section 44H applies is exempt from State or Territory laws in carrying on that activity.

Examples of the operation of section 44H

Example 1

6.26 An irrigation licence is issued to a person and is valid in accordance with proposed section 24HA (which deals with management of water and airspace). When the person performs the irrigation activities permitted by the licence, section 44H operates to ensure that:

• the licence, and the doing of activities under it, prevails over any native title and the exercise of any native title rights and interests, but does not extinguish them; and

• any native title that may exist in relation to the land or waters affected by the licence, and the exercise of any native title rights and interests do not impede the doing of any activity in pursuance of any requirement or permission in the licence.

6.27 Compensation is not payable to the native title holders for the physical actions. Were any compensation to be payable in relation to any effect on native title, it would instead have been paid for the future act that consisted of the issue of the irrigation licence to the person and it would have taken account of the doing of the physical actions.

Example 2

6.28 A licence to prospect for minerals on land affected by native title is granted to a company after all the necessary procedures under the NTA have been met. In accordance with the licence, the company physically undertakes the prospecting. These physical actions are not prevented by the native title existing in relation to the land.

(Note: in this Chapter the term ‘indigenous land use agreement’ is referred to as ‘ILUA’)

Overview

7.1 To achieve point 10 of the Ten Point Plan, Item 9 of Schedule 1 inserts new Subdivisions B, C, D and E of Division 3 to deal with future acts done in accordance with ILUAs. This Chapter deals with the making of ILUAs and their effects on the validity of future acts when registered. Chapters 22 and 23 deal with the procedures for registering ILUAs.

7.2 Section 21 of the NTA currently provides for agreements. It does so, however, in very general terms. It does not accommodate the fact that, over most of mainland Australia, governments and others seeking to use land do not know if native title exists, and if it does, who holds it. It is difficult in such circumstances to have agreements which provide the necessary level of legal certainty. These provisions are designed to give security for agreements with native title holders, whether there has been an approved determination of native title or not, provided certain requirements are met. Three kinds of ILUA can be made as set out below.

Body corporate agreements

7.3 Subdivision B deals with ‘body corporate agreements’. Body corporate agreements can only be made if there are one or more registered native title bodies corporate which hold the native title to, or have been appointed to act for the native title holders of, the whole of the area covered by the agreement. A body corporate agreement can cover any matter relating to native title and a registered native title body corporate can make such an agreement with any other person. The procedural requirements for registration of a body corporate agreement reflect the fact that both the existence of native title has been demonstrated and the holders identified.

Area agreements

7.4 Subdivision C covers ‘area agreements’. This type of agreement has considerable flexibility in terms of the content, parties, and area to be covered by the agreement. The most important condition for area agreements is that all the registered native title claimants and registered native title bodies corporate for the area to which the agreement relates must be parties to it. However, where all of the area has been the subject of determinations that native title exists (which would mean that there is a registered native title body corporate for all parts of the area), the agreement could be registered provided it complied with Subdivision B.

Alternative procedure agreements

7.5 The third type of agreement is an ‘alternative procedure agreement’ and is covered by Subdivision D. Because (unlike body corporate agreements and area agreements) it is not a requirement that native title holders are parties, alternative procedure agreements cannot result in extinguishment of native title. Subject to this limitation, they may cover a wide range of native title matters. An alternative procedure agreement can be made even if there are registered native title claimants for the area who are not parties to it, but all the registered native title bodies corporate and representative Aboriginal/Torres Strait Islander bodies (if any) for the area must be parties. However, where all of the area has been the subject of a determination that native title exists (which would mean that there is a registered native title body corporate for all parts of the area), any agreement is to be taken to be a body corporate agreement.

Effect of registered agreements

7.6 Subdivision E explains the effect of registered agreements. The agreement, once registered, is taken to have contractual effect between the parties, and also binds all native title holders for the area regardless of whether they are parties to it (native title holders are able to object to the registration of the agreement). Also, if the agreement is to be supported by legislation so that it can be fully implemented, the relevant parliament can pass that legislation despite any other provision in the NTA. Registration of an agreement ensures the validity under the NTA of future acts which it covers or authorises. Generally, the non-extinguishment principle (which is found in section 238 of the NTA) will apply to these future acts except where the agreement specifically allows for extinguishment through surrender.

7.7 Subdivision E also deals with compensation for acts done under agreements, with the general principle being that compensation is limited to any payments mentioned in the agreement. If there is an adverse effect on the native title of someone who is later proved to have native title but was not entitled to any of the benefits of the agreement, that person may be able to get compensation under the NTA. However, this exception does not apply to people whose interests were represented by a registered native title body corporate (for body corporate agreements) or whose authority was obtained (for area agreements) when the agreement was made.

What is an indigenous land use agreement (ILUA)?

7.8 An agreement will be an ILUA if it meets the requirements necessary to fit into one of the following three categories of agreement:

7.9 A definition of the term ‘indigenous land use agreement’ referring to these new sections is inserted into section 253 of the NTA. [Schedule 1, item 56].

What are the requirements for an agreement to be an ILUA?

7.10 Table 7.1 on the following pages sets out the requirements that must be met for an agreement to be an ILUA in respect of these categories.

Nature of the requirement	Body corporate agreements	Area agreements	Alternative procedure agreements
Coverage of the agreement	The agreement must cover one or more of the matters indicated in Table 7.2 in relation to an area. *[Schedule 1, item 9, section 24BB]*	The agreement must cover one or more of the matters indicated in Table 7.2 in relation to an area. *[Schedule 1, item 9, section 24CB]*	The agreement must cover one or more of the matters indicated in Table 7.2 in relation to an area. *[Schedule 1, item 9, section 24DB]*
Extinguishment of native title	No requirement. (Note that body corporate agreements may, but need not, deal with extinguishment of native title).	No requirement. (Note that area agreements may, but need not, deal with extinguishment of native title).	The agreement cannot provide for the extinguishment of native title, although it can otherwise deal with acts that affect native title (subject to the non-extinguishment principle).^[15] *[Schedule 1, item 9, section 24DC]*
Relationship of bodies corporate and representative bodies	Only relevant where registered native title bodies corporate exist in relation to the whole of the area covered by the agreement. *[Schedule 1, item 9, section 24BC]*	Registered native title bodies corporate must not exist in relation to the whole of the area covered by the agreement. *[Schedule 1, item 9, section 24CC]*	Registered native title bodies corporate must not exist in relation to the whole of the area covered by the agreement. However, there must be at least one registered native title body corporate in relation to the area or at least one representative Aboriginal/Torres Strait Islander body for the area. *[Schedule 1, item 9, section 24DD]*

Nature of the requirement	Body corporate agreements	Area agreements	Alternative procedure agreements
Parties to the agreement	The parties must include: • all of the registered native title bodies corporate for the area; and • the Commonwealth, a State or Territory where the agreement makes provision for the extinguishment of native title by surrendering it to the Commonwealth, State or Territory. Any other person or persons may be parties to the agreement (e.g. a local government body). The Commonwealth, a State or a Territory can be a party to the agreement even if native title is not to be extinguished. *[Schedule 1, item 9, section 24BD]*	The ‘native title group’ (see paragraphs 7.14 and 7.15) in relation to the area must be a party. The Commonwealth, a State or Territory must also be a party where the agreement makes provision for the extinguishment of native title by surrendering it to the Commonwealth, State or Territory. Any other person may also be a party. Some persons or bodies are specifically listed as being able to be a party (see paragraph 7.14). The Commonwealth, a State or a Territory can be a party to the agreement even if native title is not to be extinguished. *[Schedule 1, item 9, section 24CD]*	The parties must include the ‘native title group’ (see paragraph 7.16) in relation to the area and the ‘relevant government or governments’ (see paragraph 7.17). Any of the following may also be a party: • any registered native title claimant in relation to land or waters in the area; • any other person who claims to hold native title in relation to land or waters in the area; • any other person. *[Schedule 1, item 9, section 24DE]*
Consideration and conditions	The agreement may be given for any consideration, or subject to any conditions, agreed by the parties. The consideration may include the grant of a freehold estate in any land, or any other interests in land (whether or not statutory). *[Schedule 1, item 9, section 24BE]*	The agreement may be given for any consideration, or subject to any conditions, agreed by the parties. The consideration may include the grant of a freehold estate in any land, or any other interests in land (whether or not statutory) (e.g. a freehold estate given to native title holders in exchange for the surrender and extinguishment of native title). *[Schedule 1, item 9, section 24CE]*	The agreement may be given for any consideration, or subject to any conditions, agreed by the parties. The consideration may include the grant of a freehold estate in any land, or any other interests in land (whether or not statutory). *[Schedule 1, item 9, section 24DF]*

Terms used in provisions dealing with requirements for ILUAs

What is an area?

7.11 As discussed above, ILUAs can be made to cover a range of matters in relation to an area. The word ‘area’ has its ordinary meaning and could include any area of land and/or waters. The fact that an agreement covers an ‘area’ does not mean that it will have any impact on interests of other persons in the area. Holders of non-native title interests in land or waters in the area are not bound by any agreement unless they are a party (subsection 24EA(2)).

What is a registered native title body corporate?

7.12 The term ‘registered native title body corporate’ is already defined under existing section 253 of the NTA. It is a body corporate that is registered on the National Native Title Register and that either holds the native title on trust or acts as the agent or representative of the native title holders in relation to particular land or waters once native title has been determined.

What is a representative Aboriginal/Torres Strait Islander body?

7.13 The term ‘representative Aboriginal/Torres Strait Islander body’ is already defined under existing section 253 of the NTA. A body is a representative Aboriginal/Torres Strait Islander body for an area if the Commonwealth Minister has made a determination to that effect (see section 202 of the NTA). Note that Schedule 3 of the Bill makes changes to the provisions dealing with representative bodies (see Chapters 33 and 34).

What is a native title group for the purposes of an area agreement?

7.14 The parties to ILUAs in the area agreement category must include the native title group (refer to Table 7.1). The make-up of the native title group depends on whether there is a registered native title claimant or a registered native title body corporate in relation to any of the land or waters in the area covered by the agreement. If there is, then:

• the native title group is all registered native title claimants, and all registered native title bodies corporate, in relation to the land or waters. The Senate made 1998 Government amendment (16), which is included in the Bill. This amendment recognises that an area agreement may be made in relation to an area that in part is not covered by a registered or determined claim (‘the non-claimed/determined part’). In such cases, the ‘native title group’ includes any person claiming to hold native title to the non-claimed/determined part or any representative body for the non-claimed/determined part, or both. [subsection 24CD(2)]; and

• the parties to the agreement may also, but need not, include any other person who claims to hold native title in relation to land or waters in the area covered by the agreement and any representative Aboriginal/Torres Strait Islander body for the area [subsection 24CD(4)].

7.15 If there are not any registered native title claimants or registered native title bodies corporate in relation to land or waters in the area, the native title group is any person who claims to hold native title in relation to land or waters in the area covered by the agreement and/or any representative Aboriginal/Torres Strait Islander body for the area. [Subsection 24CD(3)]

What is a native title group for the purposes of an alternative procedure agreement?

7.16 The parties to ILUAs in the alternative procedure agreement category must include the native title group (refer to Table 7.1). The native title group for this purpose is all registered native title bodies corporate in relation to land or waters in the area covered by the agreement and all representative Aboriginal/Torres Strait Islander bodies for the area. [Subsection 24DE(2)]

What is a relevant government for the purposes of an alternative procedure agreement?

7.17 The parties to ILUAs in the alternative procedure agreement category must also include the relevant government or governments (refer to Table 7.1). If any of the area covered by the agreement falls within the jurisdictional limits of a State or a Territory, that State or Territory is a relevant government. If any of the area is not within the jurisdictional limits of a State or Territory, the Commonwealth is a relevant government. [Subsection 24DE(3)]

What matters can be dealt with in ILUAs?

7.18 As mentioned in Table 7.1, ILUAs must deal with one or more specified matters in relation to an area. Table 7.2 sets out each of these matters in relation to each category of agreement. [The Government proposes that ILUAs will be able to deal with matters related to the validation of an intermediate period act, for example compensation. However, the ILUA can never be the mechanism which validates an intermediate period act. Validation of intermediate period acts can occur only through the passage of appropriate State and Territory legislation, as occured for the validation of past acts in the NTA itself.]

Matter in relation to an area	Body corporate agreements *[Subsection 24BB(1)]*	Area agreements *[Subsection 24CB(1)]*	Alternative procedure agreements *[Subsection 24DB(1)]*
The doing of future acts. The future acts can be particular acts or those falling into a class and the doing of the future act may be subject to conditions. *1997 Government amendments (15), (16)* and (18) which were made in the Senate and are included in the Bill make it clear that these conditions may be about procedural matters.	,	,	,
The Senate made *1998 Government amendments (12), (14)* and (17) which make it clear that ILUAs may cover future acts (other than the validation of intermediate period acts) which have already been done.	,	,	,
The Senate made *1998 Government amendment (19),* adding new section 24EBA which is included in the Bill. This section permits ILUAs to validate invalid acts (other than intermediate period acts) which have already occured if the relevant conditions are met.	,	,	,
The Senate made *1998 Government amendments (13), (15)* and *(18),* which are included in the Bill. These amendments ensure that an ILUA may deal with compensation for the effect of any past, intermediate or future act on native title.	,	,	,

The relationship between native title rights and interests and other rights and interests in relation to an area. For example, the parties might agree that, in return for compensation, a lease will be granted over land where native title exists.	,	,	,
The way in which native title rights and interests and other rights and interests in relation to the area will be exercised. For example, native title holders may agree to exercise access rights in such a way as not to compromise systems for holding stock on pastoral land.	,	,	,
The extinguishment of native title in relation to land or waters in the area by surrendering it to the Commonwealth or to a State or Territory. For example, native title holders may agree to give up their native title in return for a freehold estate in land.	,	,
The provision of a framework for the making of other agreements about native title.			,
Any other matter concerning native title in relation to the area. For example, the parties might agree to native title holders and claimants being on a board of management controlling the use of an area.	,	,	,
Any matter concerning rights of access, for certain persons with registered native title claims, to land or waters covered by non-exclusive agricultural and pastoral leases, as dealt with in proposed Subdivision Q of new Division 3 of Part 2.		,	,

Assistance to make an ILUA

7.19 The Bill allows any persons wishing to be part of an ILUA to seek assistance from the NNTT or a recognised State/Territory body [Schedule 1, item 9, sections 24BF, 24CF and 24DG]. The persons who can request assistance are not limited to the actual or potential native title holders but could also include, for example, other persons who hold rights over land or waters. A ‘recognised State/Territory body’ is a court, office, tribunal or body established by or under a State or Territory law that is determined by the Commonwealth Minister to be a recognised State/Territory body (see section 207A of the NTA).

Registration of ILUAs

7.20 For future acts done in accordance with an ILUA to be valid under section 24EB, the agreement must be registered on the Register of Indigenous Land Use Agreements. An application for registration of each type of agreement can be made by any party to the agreement but must be with the agreement of all parties (subsection 24BG(1), 24CG(1) and 24DH(1)). The procedures for registering agreements and how the register is kept are explained in Chapters 22 and 23. The procedures provide for those who will be affected by an ILUA that is an area or alternative procedure agreement, but who are not parties to it, to be notified of the potential registration of the agreement. The procedures also provide for objections. In the case of alternative procedure agreements, the regulations may provide for alternative registration procedures.^[16]

Registered ILUAs have contractual effect

7.21 The Bill provides that registered ILUAs have contractual effect during any period when details of the agreement are entered on the Register of Indigenous Land Use Agreements [Schedule 1, item 9, section 24EA]. Specifically the Bill deems the following to be the case:

• In addition to the effect it has apart from the NTA, the agreement has effect as if it were a contract among the parties to the agreement [paragraph 24EA(1)(a)]. Except as mentioned below, it is intended that only the parties to the agreement are bound by it [subsection 24EA(2)].

• All native title holders in relation to any of the land or waters covered by the agreement, but who are not parties to the agreement, are taken to be bound by the agreement. They are bound in the same manner as the registered native title bodies corporate (in the case of a body corporate agreement) and the native title group (in the case of an area agreement or an alternative procedure agreement) [paragraph 24EA(1)(b)]. Note that these native title holders will be given the opportunity to object to the registration of an ILUA. This means they will not be bound by an agreement of which they have not been notified or had the chance to challenge. These matters are explained in Chapter 22.

7.22 To avoid doubt, the Bill states that the NTA will not prevent the Commonwealth, a State or a Territory from enacting any legislation, or doing any other act, to give effect to its obligations under an ILUA. This applies where the Commonwealth, State or Territory is a party to the agreement [subsection 24EA(3)]. An example of an act that a government may need to do is grant a lease to another party to the agreement.

Validity of future acts done in accordance with ILUAs

7.23 The Bill provides that future acts done in accordance with an ILUA are valid [Schedule 1, item 9, section 24EB].

When will validation occur?

7.24 A future act is done in accordance with an ILUA if the agreement covers the particular act or class of act into which the particular act falls. The future act will be valid where, at the time the act is done:

• details of the agreement are on the Register of Indigenous Land Use Agreements; and

• the agreement includes a statement to the effect that the parties have consented to the doing of the act or a class of acts into which the particular acts falls (any conditions must be stipulated). [Paragraph 24EB(1)(b)]

7.25 Two other conditions must be met if certain future acts are to be valid, as set out below.

• An ILUA can authorise a future act to which the right to negotiate provisions (proposed Subdivision P of Division 3) would otherwise apply. If this is the case, the agreement must include a statement that those provisions are not intended to apply to the act [paragraph 24EB(1)(c)]. The fact that a notice under section 29 has been given in relation to an act does not affect the validity of the act under section 24EB. Section 29 requires a Government party to give notification of an act to which the right to negotiate provisions apply.

• An ILUA falling into either the body corporate agreement or area agreement category can provide for the extinguishment (through surrender) of native title. If this is the case, the agreement must include a statement that the parties intend native title to be extinguished through the surrender. [Paragraph 24EB(1)(d)]

What is the effect of validation?

7.26 The act is valid to the extent that it affects native title in relation to land or waters in the area covered by the agreement [subsection 24EB(2)]. This ensures that the NTA does not purport to address the invalidity of an act that would be invalid for a reason unrelated to native title (e.g because it is the ultra vires issue of a licence). It also ensures that where the act covers an area greater than that covered by the agreement, it is only valid to the extent that it affects the area covered by the agreement.

Validating previous future acts covered by indigenous land use agreements

7.27 The Senate made 1998 Government amendment (19), which is included in the Bill. This amendment inserts new section 24EBA which deals with ILUAs in relation to invalid acts that have already occurred. The purpose of this amendment is to encourage parties to use ILUAs to resolve disputes about the invalidity of future acts that have already taken place.

7.28 There are three conditions that must be satisfied in order for the consequences set out in section 24EBA to apply, that is in order for those invalid acts to be validated by agreement.

7.29 The first condition is that the Register of Indigenous Land Use Agreements must contain the details of a body corporate agreement, an area agreement or an alternate process agreement that includes a statement to the effect that the parties to that agreement agree to:

• the validating of a future act (other than an intermediate period act) or class of such acts that have already been done invalidly; or

• the validating, subject to conditions, of a future act (other than an intermediate period act) or class of such acts that have already been done invalidly.

7.30 There need not have been a judicial determination that a future act or class of future acts was invalid before parties make an agreement to which section 24EBA applies. Indeed, the parties need not agree that native title exists, that the act could have affected native title or that the act is possibly invalid, but may wish to enter into such an agreement to provide certainty.

7.31 Although ‘intermediate period acts’ are a type of ‘future act’, an ILUA may not provide for the validation of an intermediate period act, as these are or can only be validated under Division 2A of Part 2 of the NTA. ‘Intermediate period act’ is defined in section 232A.

7.32 The second condition is that the Government to which the invalid future act was attributable is a party to the indigenous land use agreement.

7.33 The third condition is that if a person other than the Government party is or may become liable, whether under the ILUA or otherwise, to pay compensation in relation to the future act, that party must also be a party to the ILUA.

7.34 If the invalid act or class of invalid acts is attributable to the Commonwealth, subsection 24EBA(2) validates them.

7.35 If the invalid act or class of invalid acts is attributable to a State or Territory, they will be valid if either:

• the State or Territory has passed legislation to validate that particular act or class of acts; or

• the State or Territory has legislated in general terms to validate acts or classes of acts which satisfy the conditions set out in section 24EBA.

7.36 If an invalid future act is validated, the non-extinguishment principle applies unless the act is the surrender of native title and the agreement includes a statement to the effect that the surrender is intended to extinguish native title (subsection 24EBA(4)). Only body corporate agreements and area agreements may provide for the surrender of native title.

7.37 If an invalid future act is validated, the consequences set out in subsections 24EB(4), (5) or (6) apply depending upon whether the ILUA is a body corporate agreement, an area agreement, or an alternate procedure agreement. The consequences set out in subsection 24EB(7) apply regardless of the kind of ILUA involved. These consequences deal with who is entitled to receive compensation for the effect of the act on native title.

7.38 The difference between the acts which are subject to section 24EBA, and other acts which may be covered by a general ILUA, is that at the time the act is done, it is invalid because of native title. The agreement is made only after that time. Of course it is preferable that agreements about future acts be made before the act is done, since then the act is always valid.

The non-extinguishment principle generally applies to the future act

7.39 With one exception, the non-extinguishment principle applies to a future act validated under the ILUA provisions.^[17] The exception is where the agreement is a body corporate agreement or an area agreement that includes a statement that native title in relation to land or waters in the area covered by the agreement is extinguished by surrender. In that case the non-extinguishment principle does not apply to the act of surrender. [Subsection 24EB(3)]

Compensation for future acts done under ILUAs

7.40 The Bill provides for compensation to be payable to some native title holders for future acts done in accordance with an ILUA [subsection 24EB(7)]. However, except in a particular circumstance, native title holders are not entitled to additional compensation under the NTA for future acts done in accordance with the agreement [subsections 24EB(4), (5) and (6)]. This is generally those who receive benefits under, or who are parties to, the agreement.

Who is not entitled to compensation for future acts done under an ILUA?

7.41 The persons who are not entitled to compensation under the NTA for future acts done in accordance with an ILUA depend on the category into which the agreement falls [subsections 24EB(4), (5) and (6)]. Table 7.3 sets out the persons who, under each category of agreement, are not entitled to additional compensation under the NTA for future acts done in accordance with an ILUA. They are, however, entitled to any compensation provided for under the agreement. In order to get additional compensation under the NTA, a person would have to prove that they hold native title which, in the case of a body corporate agreement, would require a variation to the determination.

Persons not entitled to compensation under body corporate agreement [Subsection 24EB(4)]	Persons not entitled to compensation under area agreement [Subsection 24EB(5)]	Persons not entitled to compensation under alternative procedure agreement [Subsection 24EB(6)]
Any registered native title body corporate that is a party to the agreement. Any common law holder of native title where a registered native title body corporate that is a party to the agreement: • holds the native title on trust for the holder; or • is an agent or representative of the holder. Any native title holder who is entitled to any of the benefits provided under the agreement.	Any native title holder who is entitled to any of the benefits provided under the agreement. Any native title holder in relation to land or waters in the area covered by the agreement who has been identified and who authorised the making of the agreement. (This will only be the case where the application to register the agreement was certified by representative Aboriginal/Torres Strait Islander bodies or where the application included a statement mentioned in paragraph 24CG(3)(b)).^[18]	Any native title holder who is entitled to any of the benefits provided under the agreement.

Compensation arrangements for those native title holders who can get compensation under the NTA

When does an entitlement to compensation arise?

7.42 A native title holder who is not excluded from getting compensation under the NTA will be entitled to compensation for future acts done in accordance with an ILUA and which affect their native title, but only where a condition is met. This is that the native title holder must be entitled to compensation for the act under subsection 17(2) of the NTA if it was assumed that the future act was instead a past act. [Subsection 24EB(7)]

7.43 In broad summary terms, this means that compensation will be payable for the future act in the following circumstances.

• If the act is one which could be done over land subject to ordinary title, generally freehold, and the ordinary title holder has a right to compensation, any native title holders will also have such a right. For example, mining can be done on ordinary title land, and the ordinary title holders have a right to compensation.

• If the act is one which could not be done over land subject to ordinary title, native title holders will also have a right to compensation.

• Compensation is payable if the native title relates to an onshore place^[19] and the act could not have been done if it was assumed that native title holders held ordinary title^[20] to the land.

• Compensation is payable if the native title relates to an offshore place.^[21]

• Compensation is payable where the ‘similar compensable interest test’ is satisfied. The similar compensable interest test, defined in section 240 of the NTA, is generally met if the native title relates to an onshore place and compensation would have been payable under any other law if it was assumed that native title holders held ordinary title to the land. The Senate made 1998 Government amendment (88) inserting new item 45A, which is included in the Bill. This item amends the ‘similar compensable interest test’ set out in section 240. The amendment ensures that the test applies to compensation for ‘intermediate period acts’, as well as to ‘past acts’ and ‘future acts’, so that the same compensation regime applies where applicable in each case.

What is the compensation?

7.45 An entitlement of a native title holder to compensation under subsection 24EB(7) is in accordance with Division 5 of Part 2 of the NTA [paragraph 24EB(7)(a)]. In general terms, the compensation is an entitlement on ‘just terms’ to compensate the native title holder for any loss, diminution, impairment or other effect of the act on their native title (see section 51 of the NTA).

Who pays the compensation?

7.46 Subsection 24EB(7) says who must pay the compensation for the future act. In the first instance, the compensation can be recovered from any person or persons who have a written agreement with the government to whom the act is attributable to be liable for any compensation [subparagraph 24EB(7)(b)(ii)]. If there is no such written agreement, the compensation can be recovered from the government to whom the act is attributable [subparagraph 24EB(7)(b)(i)].

NTA does not prevent agreements unrelated to future acts

7.47 The provisions dealing with ILUAs are not intended to cover the field of agreements relating to native title that can be made between actual or potential native title holders and other parties. The provisions do not prevent the Commonwealth, States or Territories making agreements, or legislating for the making of agreements, with native title holders about acts which are not future acts for the purposes of the NTA. However, such agreements would not have the protection which ILUAs will have under the NTA. [Schedule 1, item 9, section 24EC]

Overview

8.1 Item 9 of Schedule 1 inserts a new Subdivision F of Division 3. This Subdivision ensures the validity of future acts which are done over areas where steps taken under the NTA indicate that native title does not exist in those areas. Subdivision F is similar in effect to section 24 in the current NTA as it was proposed to be amended in the then Government’s Native Title Amendment Bill 1995 to ensure its workability. Section 24 is repealed under these amendments. The validity ensured by this Subdivision is called ‘section 24FA protection’. The provisions in this Subdivision deal with the effects of section 24FA protection, how it arises and compensation for native title holders whose native title rights are adversely affected by acts having section 24FA protection.

8.2 A major purpose of Subdivision F is to ensure the validity of future acts done before a determination as to whether or not native title exists has been made, but only where certain conditions apply. In broad terms, an area will be subject to section 24FA protection where it is covered by a non-claimant application and, at the end of three months, no application has been lodged by a person claiming native title to the area.

8.3 For non-government entities to make non-claimant applications over an area they must have an interest in relation to the whole area. By contrast, governments can make non-claimant applications over any area within their jurisdiction. These differences remain as the amendments do not depart to any substantial extent from the position under the existing NTA.

8.4 Subdivision F is included to allow people with interests in land to ascertain whether native title exists in order to give them certainty when doing acts in relation to that land. This will encourage potential native title holders to make native title claims. However, the mere fact that a future act gains section 24FA protection does not prevent a native title claim being made or determined in the future.

What are the consequences if and area is subject to section 24FA protection?

8.5 When procedures indicate that no native title is claimed to exist in respect of an area, the area is said to be subject to section 24FA protection. The Bill sets out the consequences for future acts relating to such an area. [Schedule 1, item 9, section 24FA]

Validity of future acts

8.6 When section 24FA protection applies to an area at a particular time, any future act done by a person at that time in relation to the area is valid and remains valid for all time, even if a determination that native title exists in relation to the area is made at a later time. [Paragraph 24FA(1)(a)]

Compensation for valid future acts

When does an entitlement to compensation arise?

8.7 The Bill provides for native title holders to be entitled to compensation for a future act that is valid because the area in relation to which it is done is subject to section 24FA protection if at some future time there is a determination that native title exists. There are two types of compensation, as set out below.

• The native title holders are entitled to compensation if, and to the extent that, the future act extinguishes native title [Paragraph 24FA(1)(b)].

• The native title holders are also entitled to compensation if the future act does not extinguish native title. This will be the case if the native title holder would be entitled to compensation for the act under subsection 17(2) of the NTA if it was assumed that the future act was instead a past act. [Paragraph 24FA(1)(c)]

8.8 The second case means, in broad summary terms, that compensation will be payable for the future act in the following circumstances.

• If the act is one which could not be done over land subject to ordinary title, native title holders will also have a right to compensation.^[22]

What is the compensation?

8.9 An entitlement of a native title holder to compensation under paragraphs 24FA(1)(b) and (c) is in accordance with Division 5 of Part 2 of the NTA. In general terms, the compensation is an entitlement on ‘just terms’ to compensate the native title holder for any loss, diminution, impairment or other effect of the act on their native title (see section 51 of the NTA).

Who pays the compensation?

8.10 If the future act for which compensation is payable is attributable to the Commonwealth, the compensation is payable by the Commonwealth [paragraph 24FA(2)(a)]. States and Territories are liable for compensation in relation to their future acts for which compensation is payable [paragraph 24FA(2)(b)].

When is an area subject to section 24FA protection?

8.11 There are three circumstances under which an area can become subject to section 24FA protection. These are where the area is subject to:

• a ‘non-claimant application’ by a government (subject to specified conditions);

• a ‘non-claimant application’ by a person other than a government (subject to specified conditions); and

• an entry on the National Native Title Register specifying that native title does not exist in relation to the area.

8.12 The Bill inserts a consequential definition of ‘subject to section 24FA protection’ in the definitions section of the NTA (section 253). This defines the term as having the meaning given by Subdivision F of Division 3 of Part 2 (as discussed below) [Schedule 1, item 62]. The meaning of certain important terms used in these provisions is set out after the discussion of the circumstances in which an area can become subject to section 24FA protection.

Areas subject to government non-claimant applications

8.13 The Bill specifies when section 24FA protection applies to areas covered by government non-claimant applications, or corresponding applications to a recognised State/Territory body [Schedule 1, item 9, section 24FB]. Government non-claimant applications are those made by or on behalf of a Minister of any government, the Crown in any capacity or a statutory authority as defined by section 253 [paragraph 24FB(a)].

8.14 The test for whether a future act is valid is whether section 24FA protection applies to the area at the time the act is done. For an area to be subject to section 24FA protection at a particular time, all the conditions set out below must be satisfied at that time.

• The government non-claimant application must have been made before that time. [Paragraph 24FB(a)]

• The area must be the whole of the area covered by the non-claimant application and the application must not have been amended as to area [paragraph 24FB(b)]. This prevents a government non-claimant application attracting section 24FA protection simply by being amended to exclude an area covered by a relevant native title claim and resembles the position under section 24 of the existing NTA.

• The 3 month notice period under section 66 of the NTA, or an equivalent provision in a State or Territory law, must have ended [paragraph 24FB(c)]. Section 66 of the NTA (as proposed to be amended by Schedule 2 of the Bill) provides that the Native Title Registrar must notify potential native title holders that a non-claimant application has been made in relation to an area. The persons so notified have 3 months in which to lodge a native title claim if ‘section 24FA protection’ is not to apply over the area.

• At the end of the 3 month notice period, there must not be any ‘relevant native title claims’ covering the area or a part of the area [paragraph 24FB(d)]. The term ‘relevant native title claim’ is discussed in paragraphs 8.18 to 8.21 below.

• The non-claimant application must not have been finalised [paragraph 24FB(e)]. An application is finalised if it has been withdrawn or dismissed, but is not finalised if it has been adjourned. Therefore, once section 24FA protection has arisen, a non-claimant application may be adjourned and the area covered by the application continues to attract section 24FA protection.

• There must be no entry on the National Native Title Register, relating to an approved determination of native title, that specifies that native title exists in relation to the area or a part of the area. [Paragraph 24FB(f)]

Areas subject to non-claimant applications not made by a government

8.15 The Bill sets out the conditions for section 24FA protection to apply to an area covered by a non-government non-claimant application or a corresponding application to a recognised State/Territory body [Schedule 1, item 9, section 24FC]. These are those non-claimant applications which are made by parties with a non-native title interest in the area other than a Minister of any government, the Crown in any capacity or a statutory authority as defined by section 253 [paragraph 24FC(b)].

8.16 For an area to be subject to section 24FA protection at a particular time, all the conditions set out below must be satisfied at that time.

• The non-government non-claimant application must have been made before that time. [Paragraph 24FC(a)]

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

• The 3 month notice period under section 66 of the NTA, or an equivalent provision in a State or Territory law, must have ended [paragraph 24FC(d)].

• There must be no current native title claim over the area [paragraph 24FC(e)]. This means that either:

− at the end of the notice period, there must be no ‘relevant native title claim’ covering the area; or

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

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

• The non-claimant application must not have been finalised. [Paragraph 24FC(f)]

• There must be no entry on the National Native Title Register, relating to an approved determination of native title, that specifies that native title exists in relation to the area. [Paragraph 24FC(g)]

Areas subject to an entry on the National Native Title Register specifying that native title does not exist in relation to the area

8.17 An area is also subject to section 24FA protection from the time the area is covered by an entry on the National Native Title Register that native title does not exist in relation to the area [Schedule 1, item 9, section 24FD]. This will occur when there has been an approved determination of native title to that effect.

Meaning of terms used in section 24FA protection provisions

What is a relevant native title claim?

8.18 The Bill specifies when there is a ‘relevant native title claim’ for the purposes of the conditions that need to be met for an area to be subject to section 24FA protection [Schedule 1, item 9, section 24FE]. The critical time for determining section 24FA protection is the end of the notice period for the non-claimant application under section 66 of the NTA, or an equivalent provision in a State or Territory law. Section 24FA protection can apply if, at that time, there are no relevant native title claims covering the area.

8.19 There is a relevant native title claim covering an area at the end of the notice period for the non-claimant application if one of two alternative conditions are met. The first condition is that there must be a claim covering the area on the Register of Native Title Claims at the end of the notice period. [Paragraph 24FE(a)]

8.20 Alternatively, a relevant native title claim will be one which meets the requirements set out in Table 8.1. [Paragraph 24FE(b)]

Requirements	Comments
The claim is on the Register of Native Title Claims after the end of the notice period covering the area
The application containing that claim was made before the end of the notice period
One of the conditions set out opposite is met	The claim must be registered following initial consideration of the claim for registration by the Native Title Registrar under subsection 190A(6) or is found to satisfy an equivalent test to that in section 190B and 190C under a State or Territory law. *[Subparagraph 24FE(b)(i)]* or The claim must be registered following a direction that the claim be accepted for registration as a result of an application under subsection 190D(2) which must be made within 28 days of notification of non-acceptance of the claim for registration. *[Subparagraph 24FE(b)(ii)]* or The claim must be registered following satisfaction of an equivalent test to that in section 190B or 190C under a State or Territory law having similar effect to section 190D where the application for review was made within 28 days. *[Subparagraph 24FE(b)(iii)]*

8.21 Sections 190A, 190B, 190C and 190D, referred to in Table 8.1, deal with claimant applications to the Native Title Registrar for determinations of native title. They are inserted by Schedule 2 of the Bill and are discussed in detail in Chapter 25.

What is a non-claimant application?

8.22 A new definition of the term ‘non-claimant application’ is being inserted in section 253 of the NTA by the Bill [Schedule 2, item 96]. It is basically an application, seeking a determination about whether native title exists in relation to an area, by a person who neither claims to hold native title nor is acting on behalf of those who do.

8.23 Under new subsection 61(1) of the NTA (also proposed to be inserted by Schedule 2 of the Bill), a government can make a non-claimant application for any area within its jurisdiction. However, a non-government party can only make a non-claimant application if they have a non-native title interest in all of the area covered by the application.

What is an area?

8.24 As discussed above, section 24FA protection arises for an area. The word ‘area’ has its ordinary meaning and could include any area of land and/or waters.

Overview

9.1 To achieve points 4 and 7 of the Ten Point Plan, Item 9 of Schedule 1 inserts a new Subdivision G of Division 3 to deal with the validity of future acts done in the course of primary production. The Subdivision contains a definition of ‘primary production activity’ which is based on the definition in the taxation legislation, but is subject to a number of modifications.

9.2 Subdivision G ensures that acts which permit or require primary production activities, or activities incidental to primary production, can be validly done over non-exclusive agricultural or non-exclusive pastoral leases in force on 23 December 1996. The non-extinguishment principle applies to these acts and compensation is payable to native title holders.^[23]

9.3 Against the possibility that activities such as those normally conducted on pastoral leases may be ‘future acts’ for the purposes of the NTA, Subdivision G also ensures the validity of any primary production activities or incidental activities carried out on these non-exclusive leases. Native title holders have no right to be compensated when these activities are performed but they may be entitled to compensation for the grant of the right to carry on the activities. There is no need for the NTA to deal with primary production activities on leases with exclusive possession or freehold because these have extinguished native title and have been confirmed as doing so under new Division 2B (see Chapter 5).

9.4 Subdivision G also ensures the validity of certain ‘off-farm’ activities which take place on areas adjoining or near the area used for primary production. The relevant provision applies whether or not the land used for primary production is freehold, exclusive leasehold or non-exclusive leasehold. Grazing and activities relating to accessing or taking water that are directly connected to primary production can take place validly on the adjoining or near area so long as the acts do not stop any native title holders for those areas from having reasonable access to them. The non-extinguishment principle applies to these acts and native title holders are entitled to compensation from the relevant government.

9.5 Finally, Subdivision G permits some future acts on non-exclusive pastoral leases which allow people to take and remove timber, gravel and other natural resources from land and waters. Any native title holders for the land need to be notified and given an opportunity to comment before the act takes place, and the act cannot involve mining (which is dealt with in Subdivision P). The non-extinguishment principle applies to these acts and native title holders are entitled to compensation from the relevant government.

Background to Subdivision G

9.6 The thinking behind the current NTA assumed that native title on mainland Australia would exist principally in relation to vacant Crown land, that is the 36% of Australia where there has been no significant grant of private rights, or public reservation or use. It was assumed that the native title rights in relation to such vacant Crown land could therefore amount to very significant rights and interests in that land, rights and interests which should legitimately be equated to ownership of that land. In addition to providing native title holders the same protection as freeholders, the NTA also provided a special right to negotiate in relation to mining and some compulsory acquisitions. The NTA does not deal in any systematic way with the relationship between co-existing native title and other rights and interests.

9.7 The High Court’s Wik decision meant that these assumptions were wrong. That decision held that the grant of a pastoral lease over land did not necessarily extinguish native title rights in relation to that land. It means that native title may exist over the 42% of Australia which is subject to pastoral leases, in addition to the areas of vacant Crown land. Since the Wik decision, 78% of Australia is therefore potentially subject to native title, and the operation of the NTA.

9.8 More importantly, in relation to much of that area native title will only be a ‘co-existing right’. Justice Toohey said in Wik (1996) 187 CLR 1 at 126-127 (quoting, in part, the judgments in Mabo (No. 2)):

“It is apparent that at one end of the spectrum native title rights may ‘approach the rights flowing from full ownership at common law’. On the other hand they may be an entitlement ‘to come onto land for ceremonial purposes, all other rights in the land belonging to another group’.”

9.9 It is clear that in relation to pastoral lease land, the native title rights cannot be the former, and may only be the latter. The assumption in the NTA that all native title rights will be high level rights is rendered false by the Wik decision. It is inappropriate therefore that the NTA should continue to give effect to that false assumption.

9.10 For this reason, the amendments to the future act regime put in place more appropriate arrangements to deal with native title rights on pastoral lease land, dealt with in this Chapter and Chapter 17.^[24] Chapters 10, 11, 12 and 13 discuss the more general adjustments to the future act regime.

What is primary production activity?

9.11 The term ‘primary production activity’ is central to the operation of the provisions that cover the validity of future acts connected with primary production. The definition in the Bill of primary production activity is based on the Income Tax Assessment Act 1936. [Schedule 1, item 9, section 24GA]

9.12 The term has its ordinary meaning but also includes a number of listed activities [subsection 24GA(1)]. However, the Bill specifically provides that mining is not primary production activity [subsection 24GA(2)].

Ordinary meaning of primary production activity

9.13 It is expected that the activities specifically listed as primary production activities will cover most activities that should be considered to be primary production. However, there may be some residual primary production activities that are not listed and which would fall within the ordinary meaning of that term in any event.

9.14 The ordinary meaning of primary production activity can be described as any activity which is involved in growing, producing, maintaining or extracting natural resources. Natural resources include all naturally occurring materials which are capable of economic exploitation. In this context, they would include all plants and other living organisms. As mentioned above, mining has been explicitly excluded from the meaning of primary production activities.

Specifically listed activities included as primary production activities

9.15 The activities listed in Table 9.1 are specifically defined to be primary production activities.

Activity	Comments
Cultivation of land *[Paragraph 24GA(1)(a)]*	In its ordinary meaning this includes the preparation and use (including watering, fertilising or spraying) of soil for crops, animal pasture and market gardening and the raising and production of plants, including harvesting.
Maintenance, breeding or agistment of animals *[Paragraph 24GA(1)(b)]*	In its ordinary meaning, the word ‘animals’ include reptiles, birds and insects (e.g. crocodiles, poultry, emus and bees). Fish and shellfish are dealt with below. This category covers maintaining, breeding and raising animals for a number of purposes. These would include selling them or their bodily produce (including natural increase) or maintaining them for tourism purposes. The ordinary meaning of agistment of animals is taking in and feeding or pasturing animals for a fee.

Activity	Comments
Taking or catching fish or shellfish *[Paragraph 24GA(1)(c)]*	Shellfish include oysters and crustacea (such as crabs and yabbies).
Forest operations *[Paragraph 24GA(1)(e)]*	A definition of the term ‘forest operations’ is proposed to be inserted into section 253 of the NTA by this Bill *[Schedule 1, item 53]*. Section 253 will define forest operations as: • the planting or tending, in a plantation or forest, of trees intended for felling; or • the felling of trees in a plantation or forest but only where the trees are in a plantation or forest and are planted or tended for the purpose of being felled. A forest includes a non-plantation forest.
Horticultural activities *[Paragraph 24GA(1)(f)]*	A definition of the term ‘horticulture’ is proposed to be inserted into section 253 of the NTA by this Bill *[Schedule 1, item 55]*. Under the definition, horticulture has its ordinary meaning (ie. growing plants) but also includes: • propagation or maintenance, as well as cultivation; • propagation, maintenance or cultivation of seeds, bulbs, spores or similar things; • propagation, maintenance or cultivation of fungi (e.g. mushrooms); • propagation, maintenance or cultivation in environments other than soil, whether natural or artificial.
Aquaculture	Aquaculture means breeding, keeping and harvesting fish or shellfish and the propagation, maintenance, cultivation and harvesting of aquatic plants.
Leaving fallow or de-stocking any land in connection with anything else that is a primary production activity *[Paragraph 24GA(1)(g)]*	This aspect of the definition recognises that primary production may require land to be left uncultivated or de-stocked for periods of time.

What is mining?

9.16 As discussed above, mining is deemed not to be a primary production activity [subsection 24GA(2)]. Under the ordinary dictionary definition, mining can be described as the extraction of any non-organic natural resource for commercial exploitation. Section 253 of the NTA already defines the term ‘mine’ to include exploration or prospecting, extraction of gas or petroleum and quarrying.

Validity of future acts and activities associated with primary production

Future acts

9.17 Subdivision G ensures the validity of a number of future acts that meet certain requirements. The acts that are valid are those meeting the requirements to fall into any of the following categories:

• future acts that permit or require primary production activities or farm tourism on non-exclusive agricultural or non-exclusive pastoral leases [Schedule 1, item 9, subsection 24GB(5)].

• future acts permitting or requiring certain off-farm activities that are related to primary production activities [Schedule 1, item 9, subsection 24GD(2)]; and

• future acts that grant rights to third parties on non-exclusive agricultural and pastoral leases [Schedule 1, item 9, subsection 24GE(2)].

Performance of primary production activities

9.18 To avoid doubt, Subdivision G also provides that, where the requirements of section 24GC are met:

• the doing of primary production activities and certain incidental activities prevails over any native title; and

• the existence of native title does not prevent primary production activities and certain incidental activities being carried on. [Schedule 1, item 9, subsection 24GC(2)].

9.19 These activities are physical, rather than legal, in nature and as a consequence are probably not ‘future acts’ as defined in section 233. However, the provisions dealing with them are included in Subdivision G so as to remove any legal possibility that they can be prevented by native title.

9.20 The Senate made 1997 Government amendment (23) which is included in the Bill. This amendment to paragraph 24GC(2)(a) puts beyond doubt that the doing of any activity mentioned in paragraph 24GC(1)(c) does not extinguish native title rights and interests that survived the grant of the non-exclusive agricultural or non-exclusive pastoral lease.

The non-extinguishment principle applies to the valid acts

9.21 Future acts which are valid under proposed subsections 24GB(5), 24GD(2) and 24GE(2) are subject to the non-extinguishment principle. This principle is explained in paragraph 6.9 of Chapter 6.

What are the requirements for an act to fall into each category?

9.22 Table 9.2 on the following pages sets out the requirements for a future act, or activity, to fall into each of these categories. Important terms and concepts used in these requirements are explained after the table.

Nature of the requirement	*Future acts that permit or require* primary production activities or farm tourism on non-exclusive agricultural or pastoral leases (section 24GB)**	*Primary production activities* on non-exclusive agricultural or pastoral leases (section 24GC)**	*Future acts permitting or requiring* certain off-farm activities that are related to primary production activities (section 24GD)**	*Future acts that grant* rights to third parties on non-exclusive agricultural and pastoral leases (section 24GE)**
Kind of interest that must have been granted over the area in relation to which the act or activity is done	A non-exclusive agricultural lease or non-exclusive pastoral lease must have been granted on or before 23 December 1996 (the date the Wik judgment was handed down). *[Paragraph 24GB(1)(a)]*	A non-exclusive agricultural lease or non-exclusive pastoral lease must have been granted on or before 23 December 1996. *[Paragraph 24GC(1)(a)]*	A freehold estate, agricultural lease or pastoral lease (whether exclusive or non-exclusive) must have been granted on or before 23 December 1996. *[Paragraph 24GD(1)(a)]*	A non-exclusive agricultural lease or non-exclusive pastoral lease must have been granted on or before 23 December 1996. *[Paragraph 24GE(1)(a)]*
Validity of the grant of estate or lease	The grant referred to above must be valid. This validity can arise because of the validation of past acts under existing sections 14 or 19 of the NTA, or because of the validation of intermediate period acts under sections 22A or 22F proposed to be inserted by this Bill. *[Paragraph 24GB(1)(b)]*	The grant referred to above must be valid. This validity can arise because of existing sections 14 or 19 of the NTA or sections 22A or 22F proposed to be inserted by this Bill. *[Paragraph 24GC(1)(b)]*	The grant referred to above must be valid. This validity can arise because of existing sections 14 or 19 of the NTA or sections 22A or 22F proposed to be inserted by this Bill. *[Paragraph 24GD(1)(b)]*	The grant referred to above must be valid. This validity can arise because of existing sections 14 or 19 of the NTA or sections 22A or 22F proposed to be inserted by this Bill. *[Paragraph 24GE(1)(b)]*
When the act or activity must take place	The future act must take place after 23 December 1996. *[Paragraphs 24GB(1)(c) and (2)(a)]*	The activity must be carried on after 23 December 1996. (This does not mean that the same kind of activities conducted on or before 23 December 1996 were invalid because of native title). *[Paragraph 24GC(1)(c)]*	The future act must take place after 23 December 1996. *[Paragraph 24GD(1)(c)]*	The future act must take place after 23 December 1996. *[Paragraph 24GE(1)(c)]*

Nature of the requirement	Future acts that permit or require primary production activities or farm tourism on non-exclusive agricultural or pastoral leases	Primary production activities on non-exclusive agricultural or pastoral leases	Future acts permitting or requiring certain off-farm activities that are related to primary production activities	Future acts that grant rights to third parties on non-exclusive agricultural and pastoral leases
Nature of the act or activity	The future act must permit or require the carrying on of any of the following on the area covered by the lease and while it remains in force (including by renewal): • a primary production activity (see section 24GA); • an activity associated with or incidental to such a primary production activity (this activity will only be covered if, when it is carried on, the majority of the area covered by the lease is still used for primary production activities). *[Paragraph 24GB(1)(d)]* Alternatively, the future act may permit or require a farm tourism activity in the area covered by the lease while it remains in force (including by renewal) *[paragraph 24GB(2)(b)]*. However, farm tourism that involves	The activity can be one of the following activities conducted on the area covered by the lease and while it remains in force (including by renewal): • a primary production activity; • an activity associated with or incidental to such a primary production activity (this activity will only be covered if, when it is carried on, the majority of the area covered by the lease is used for primary production activities). *[Paragraph 24GC(1)(c)]* It is to be noted, however, that section 24GC does not make unlawful activities lawful. For example, the activity would need to be authorised by the lease or some other authority (such as a licence or permit) and, for instance, the provision would not authorise an	The future act must permit or require the carrying on of an activity that meets all of the conditions set out below. *[Paragraph 24GD(1)(e)]* • The Senate made *1997 Government amendment (24A)* which is included in the Bill and limits the acts covered by section 24GD to grazing or activities consisting of, or relating to, gaining access to or taking water. • The activity must take place while the freehold estate exists or the lease remains in force (including by renewal). • The activity must be directly connected to the carrying on of any primary production activity on the area covered by the freehold estate or lease.	The future act must: • take place while the lease is in force (including by renewal) *[paragraph 24GE(1)(c)]; • not itself be the grant of a lease [paragraph 24GE(1)(d)]; and • confer a right on any person (including the lessee) to: − cut and remove timber; − extract or remove gravel; − quarry and remove rocks; or − obtain and remove sand, soil or other resources (but not by mining); from the area covered by the lease [paragraph 24GE(1)(e)]*. Removing soil or sand for construction or landscaping purposes is an example of a way in which those things can be obtained otherwise than by mining

Nature of the requirement	Future acts that permit or require primary production activities or farm tourism on non-exclusive agricultural or pastoral leases	Primary production activities on non-exclusive agricultural or pastoral leases	Future acts permitting or requiring certain off-farm activities that are related to primary production activities	Future acts that grant rights to third parties on non-exclusive agricultural and pastoral leases
	observing activities or cultural works of indigenous peoples is not covered by section 24GB. *[Subsection 24GB(3)]*.	activity that is criminal under Commonwealth, State or Territory law.	• The activity must take place in an area adjoining or near the area covered by the freehold estate or lease (e.g. the areas could be separated by a road). • The native title holders for the area where the activity will be performed must not be prevented from having reasonable access to the area. The Senate made *1997 Government amendment (24)* which is included in the Bill. This amendment to paragraph 24GD(1)(d) precludes a future act from being valid under section 24GD if it is the grant of a lease or any act that confers a right of exclusive possession over the land on which the off-farm activity takes place.
Notice of the act or activity	The Senate made *1997 Government amendment (22)* which is included in the Bill and inserts a notification requirement in relation to some future acts covered by section 24GB, namely:	None.	The Senate made *1997 Government amendment (24B)* which is included in the Bill and requires that before the future act is done, the person proposing to do the future act must notify, in the way	Before the future act is done, the person proposing to do the act must have notified the following that the act, or acts of that class, is or are to be done:

• future acts that permit or require forest operations or horticultural activities or aquaculture activities to be undertaken; and

• future acts that permit or require an agricultural activity to be undertaken on a non-exclusive pastoral lease

In relation to these kinds of future acts, before the future act is done, the person proposing to do the future act must notify, in the way determined in writing by the Commonwealth Minister, any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the area covered by the non-exclusive agricultural or non-exclusive pastoral lease that the act, or acts of that class, are to be done and give them an opportunity to comment on the act or class of acts. Failure to notify will not affect the validity of the future act. [Subsection 24GB(9)]

determined in writing by the Commonwealth Minister, any representative bodies, registered native title bodies corporate, and registered native title claimants in relation to the area that will be affected by the act, or acts of that class, are to be done and give them an opportunity to comment on the act or class of acts. Failure to notify will not affect the validity of the future act. [Subsection 24GD(6)]

• any representative Aboriginal/Torres Strait Islander bodies for the area covered by the lease.

• any registered native title body corporate or registered native title claimant in relation to the area covered by the lease.

This will allow a notification to be given in relation to a class of acts e.g. the taking of gravel by a particular person from a particular location, or by all persons from a particular location, over a specified period. Those notified must be given an opportunity to comment on the act.

The Commonwealth Minister must determine in writing the manner in which such notifications are to be given.

[Paragraph 24GE(1)(f)]

Certain lease conversions are not covered by the first category

9.23 In spite of the above, some future acts will not be valid under section 24GB (this section deals with future acts that permit primary production activities on non-exclusive agricultural or pastoral leases).

9.24 The Senate made 1997 Government amendment (21) which is included in the Bill. This amendment limits the range of acts to which section 24GB applies. In relation to non-exclusive pastoral leases of any significant size, that is over 5,000 hectares in area, this amendment will provide that governments cannot grant new rights to carry on primary production activities over more than 50% of the lease [paragraph 24GB(4)(a)]. The purpose of this these restrictions is to ensure that native title is not in effect extinguished by future acts to which section 24GB applies. In order to extinguish native title, as the note to subsection 24GB(4) indicates, the native title must first be acquired, either with the agreement of the native title holders or through a non-discriminatory compulsory acquisition. The Senate made 1998 Government amendment (24) to subsection 24GB(4), which is included in the Bill. It makes clear that future acts which allow the majority of the area covered by a non-exclusive pastoral lease larger than 5000 hectares to be used for non-pastoral purposes will not be permissible under section 24GB. The amendment removes from the application of section 24GB acts that make such use legally possible, whether or not the use in fact takes place.

• This is in addition to the restriction that governments cannot convert a non-exclusive lease into a freehold or other exclusive tenure simply by granting additional primary production or associated or incidental rights [para 24GB(4)(b).

• This is also in addition to the limitation on the ability to grant the right to carry on new associated or incidental activities so that the majority of the area is no longer used for primary production activities [subparagraph 24GB(1)(a)(ii)].

9.25 Future acts of the kind excluded from section 24GD may in some limited cases be valid under the provisions covering renewals and extensions of leases (Subdivision I of new Division 3 of Part 2) - see Chapter 11.

Terms and concepts used

When is a lease in force?

9.26 To avoid doubt, the provisions setting out the requirements described in Table 9.2, say that a lease is in force when it has been renewed (whether one or more times). Future acts consisting of the renewal or extension of a lease may be valid under Subdivision I of new Division 3 of Part 2 (see Chapter 11).

What is farm tourism?

9.27 The Senate made 1997 Government amendment (19) which is included in the Bill. This amendment makes it clear that paragraph 24GB(2)(b) is not confined to farmstay tourism but extends to any tourism that takes place in relation to a farm operation. ‘Farm tourism’ would include, for example, day tours of a farming operation, as well as overnight stays. This provision continues to be subject to subsection (3). The Senate also made 1997 Government Amendment 20 which is included in the Bill. This amendment to Subsection (3), was necessary as a result of 1997 Government amendment (19) to paragraph 24GB(2)(b).

9.28 Farm tourism is not defined in the Bill but has its ordinary meaning. In essence it is an activity under which persons are involved in tourism on land and waters covered by non-exclusive agricultural and non-exclusive pastoral leases. Farm tourism activities would include:

• observing and enjoying the natural environment and non-indigenous cultural activities or sites (e.g. colonial era buildings).

9.29 As noted in Table 9.2, acts that allow farm tourism involving observing Aboriginal/Torres Strait Islander activities or cultural works (e.g. rock art) will not be valid under Subdivision G (although they might be permitted under, say, an indigenous land use agreement). However, this does not exclude tourism activities that involve observing natural objects (such as wildlife or rock formations).

Definitions of non-exclusive agricultural lease and non-exclusive pastoral lease

9.30 Various kinds of lease are covered by Subdivision G. Definitions of ‘non-exclusive agricultural lease’ and ‘non-exclusive pastoral lease’ are inserted by items 47 and 48 of Schedule 1 of this Bill and are explained in Chapter 24 (Table 24.2).

Examples of validated acts and activities relating to primary production

9.31 The following paragraphs provide examples of acts and activities that are valid under each of the categories explained in Table 9.2.

Example of a future act valid under section 24GB

9.32 The issue of a licence, permit or authority to clear land and excavate an earthworks dam in connection with the keeping of livestock is an example of a future act covered by proposed section 24GB.

Examples of activities valid under section 24GC

• the actual clearance of land and excavation under the licence, permit or authority discussed in paragraph 9.31;

• the carrying on of farm tourism or of activities on a non-exclusive pastoral lease, provided the activity on more than half of the tenure continues to be pastoral activities such as the grazing of cattle.

Example of activities that are incidental to, or associated with, primary production

9.34 The following are examples of activities that would be incidental to, or associated with, primary production activities (this is not an exclusive list):

• the construction and use of housing for use by leaseholders and other persons working on or visiting a farm;

• recreational activities by leaseholders and other persons working on or visiting a farm;

• the construction and use, in connection with the running of a pastoral operation, of an airstrip, a power supply, a water supply, fencing, roads, dams, embankments and soil conservation works;

• the storage of material for use in conducting primary production activities;

• the operation of machine shops to make or repair equipment used in cultivating land or maintaining animals;

Examples of future acts valid under section 24GD

9.35 The Bill contains two examples of future acts valid under section 24GD. They are as follows (these examples are not exhaustive):

• the conferral of off-lease rights to graze cattle in an area adjoining or near the area covered by the lease, if cattle are also grazed on the leased area;

• the conferral of off-lease rights to take water from an area adjoining or near the area covered by the lease for use in carrying on primary production activities in the leased area.

Examples of future acts valid under section 24GE

• a government grant to a commercial operator of an authority to take a specified amount of forest product from a non-exclusive pastoral lease;

• a government grant to a contractor building a road of an authority to take gravel from land covered by a non-exclusive pastoral lease where the gravel is to be used in construction of the road. The Senate made 1998 Government amendment (25) to section 24GE, which is included in the Bill. The amendment makes it clear that the section allows some forms of extraction, obtaining or removal of sand, gravel, rocks and soil from pastoral lease land. The provision does not extend to extraction, obtaining or removal that constitutes ‘mining’.

Compensation for valid future acts associated with primary production

9.37 Native title holders are entitled to compensation for future acts valid under proposed sections 24GB, 24GD and 24GE (but not in relation to the carrying on of activities under section 24GC). The native title holders so entitled are those whose native title is affected by the valid future act.

What is the compensation?

9.38 The compensation is payable in accordance with Division 5 of Part 2 of the NTA. In general terms, the compensation is an entitlement on ‘just terms’ to compensate the native title holder for any loss, diminution, impairment or other effect of the act on their native title (see section 51 of the NTA). [Subsections 24GB(7), 24GD(4) and 24GE(4)]

Who pays the compensation?

9.39 If the future act for which compensation is payable is attributable to the Commonwealth, the compensation is payable by the Commonwealth [paragraphs 24GB(8)(a), 24GD(5)(a) and 24GE(5)(a)]. States and Territories are liable for compensation in relation to their future acts for which compensation is payable [paragraphs 24GB(8)(b), 24GD(5)(b) and 24GE(5)(b)].

No compensation for carrying on of primary production activities

9.40 Subdivision G provides that compensation is not payable to native title holders where primary production and incidental or associated activities are covered by section 24GC [subsection 24GC(3)]. Any compensation payable to the native title holders for the act of granting or issuing the lease, licence, permit or authority in accordance with which the activity is conducted could take account of such activity. Subsection 24GC(3) ensures that there is no ‘double dipping’ in relation to compensation.

Overview

10.1 Item 9 of Schedule 1 inserts Subdivision H of Division 3 into Part 3 of the NTA to deal with future acts involving the management of water, living aquatic resources (such as fish) and airspace. This implements point 8 of the 10 Point Plan. This Subdivision ensures that legislation and other future acts dealing with surface and sub-surface water, living aquatic resources and airspace will be valid. Any rights or obligations created by the acts will prevail over inconsistent native title rights and interests. The non-extinguishment principle applies to these acts and native title holders are entitled to compensation from the relevant government. Water management is also dealt with in existing section 212 of the NTA.

10.2 Subdivision H does not deal with the management and regulation of the bed or subsoil under onshore and offshore waters (which includes the regulation of off-shore mining such as the petroleum and gas industries). These matters are generally dealt with in proposed Subdivisions M and N, respectively, of Division 3 (see Chapters 15 and 16). It is for this reason that the term ‘water’ is used rather than the term ‘waters’ (which is defined in section 253 to include the bed or subsoil).

Validity of future acts relating to management or regulation of water and airspace

10.3 Subdivision H provides that certain future acts relating to the management or regulation of water, living aquatic resources and airspace are valid [Schedule 1, item 9, section 24HA]. The water can be in an onshore or offshore place. There are two classes of act that are valid: legislative acts and non-legislative acts. The acts covered are explained below.

What legislative acts are valid?

10.4 A future act that is the making, amendment or repeal of legislation relating to the management or regulation of the following is valid:

Example

10.6 The making of legislation regulating the dumping of materials into waterways, the use of water bores, protection of drinking water or regulation of irrigation water or water to be used for the generation of hydro-electric power would be examples of legislative future acts valid under proposed section 24HA.

What non-legislative acts are valid?

10.7 A future act that is the grant of a lease, licence, permit or authority is valid if it is done under valid legislation (including legislation made on or before 23 December 1996) relating to the management or regulation of the following:

10.8 The legislation under which the lease etc. is granted can be Commonwealth, State or Territory legislation. The legislation can be valid because of a provision of the NTA (e.g. sections 14 and 19 which validate past acts, proposed sections 22A and 22F which validate intermediate period acts or proposed subsections 24HA(1) and (3) discussed above).

Example

10.9 An example of a non-legislative future act that is valid under proposed section 24HA is the grant of a fishing licence in an onshore or offshore area. Another example is the grant of an irrigation licence.

Activities done in accordance with valid acts

10.10 It is important to note that as with future acts covered in other Subdivisions in Division 3, the issue of the status of any activities done as a result of a requirement or permission given in a future act covered by Subdivision H is dealt with in section 44H. Briefly, that section provides that:

• the permission or requirement, and the doing of the activity, prevails over any native title and the exercise of native title rights and interests but does not extinguish the native title;

• the existence of the native title rights and interests and their exercise does not prevent the doing of the activity in giving effect to the requirement or permission; and

• native title holders are not entitled to compensation for the doing of the activities.^[25]

10.11 For example, even where native title rights in some form are proved to exist in relation to water, they can not prevent any holder of a licence entitled to take water for irrigation purposes from doing so.

The non-extinguishment principle applies to the valid acts

10.12 Future acts which are valid under proposed subsection 24HA(3) are subject to the non-extinguishment principle [subsection 24HA(4)]. This principle is explained in paragraph 6.9 of Chapter 6.

Terms used

What is water?

10.13 The term ‘water’ has its ordinary meaning. However, Subdivision H makes it clear that ‘water’ means water in all its forms (e.g. ice and steam as well as liquid) and subterranean water.

What are living aquatic resources?

10.14 Examples of ‘living aquatic resources’ are fish, shellfish, marine mammals, coral and aquatic plants (such as algae).

What is airspace?

10.15 The term ‘airspace’ has its ordinary meaning. It can be described as the atmosphere above the land or waters of a particular political division (e.g. a State) that is within its jurisdiction. It is generally the air available to aircraft to fly in.

Compensation for valid future acts relating to management or regulation of water and airspace

10.16 Native title holders are entitled to compensation for future acts that are valid because of proposed subsection 24HA(3). The native title holders so entitled are those whose native title is affected by the valid future act.

What is the compensation?

10.17 The compensation is payable in accordance with Division 5 of Part 2 of the NTA. In general terms, the compensation is an entitlement on ‘just terms’ to compensate the native title holder for any loss, diminution, impairment or other effect of the act on their native title (see section 51 of the NTA). [Subsection 24HA(5)]

Who pays the compensation?

10.18 If the future act for which compensation is payable is attributable to the Commonwealth, the compensation is payable by the Commonwealth [paragraph 24HA(6)(a)]. States and Territories are liable for compensation in relation to their future acts for which compensation is payable [paragraph 24HA(6)(b)].

Notification

10.19 The Senate made 1997 Government amendment (25) which is included in the Bill. This amendment to proposed section 24HA inserts a new subsection 24HA(7) that requires notification in relation to the grant of a lease, licence, permit or authority under subsection 24HA(2) only.

10.20 In relation to future acts of this kind, new subsection (7) requires that before the future act is done, the person proposing to do the act notify, in the way determined in writing by the Commonwealth Minister, the persons mentioned in paragraph (7)(a) that the act, or acts of that class, are to be done, and give them an opportunity to comment on the act or class of acts. The reference to ‘acts of that class’ makes it clear that notification need not be given in relation to each particular future act. For example, notification need not be given in relation to each grant of a fishing licence, but may be given in relation to the grant of all licences to fish in particular waters. Failure to notify will not affect the validity of the future act.

Overview

11.1 Item 9 of Schedule 1 inserts Subdivision I of Division 3 to ensure that certain renewals, extensions and re-grants are valid. It broadly reproduces the content of current sections 25 and 235 of the NTA (which are repealed under these amendments) while ensuring that all leases, licences, permits and authorities are treated in a consistent manner. It deals with two situations when an earlier act is followed by a later one.

11.2 First, Subdivision I protects those renewals or other acts (including the grant of a freehold interest in place of a lease) which result from a legally enforceable right or which take place in good faith pursuant to a written commitment, offer or other arrangement made in good faith, which arose on or before 23 December 1996 (the date the High Court’s decision in Wik was handed down).

11.3 Second, Subdivision I deals with renewals which meet certain requirements. In brief, these requirements deal with the validity and characteristics of the interest that is going to be renewed, whether the renewed interest will create greater rights for the interest holder than they had before the renewal, the preservation of existing reservations or conditions benefiting indigenous peoples and whether the renewed interest will permit mining. The renewed interest does not need to be the same in all respects as the one it follows. For instance, it can be for a longer term, and if the original interest is a lease, it can be converted into a perpetual lease. Also, if the original interest permitted some primary production activities or certain other activities permitted by Subdivision G to take place, the renewed interest can allow different primary production activities or incidental activities to take place as well, so long as the main use of the area covered by the interest is for primary production activities.

11.4 Some acts covered by this Subdivision (such as converting a lease to freehold as a result of a pre-existing right) will extinguish native title. However, the non-extinguishment principle will apply to other acts under the Subdivision which do not give rise to exclusive possession. Native title holders are entitled to compensation from the relevant government for the effect of valid future acts on their native title.

Future acts covered by Subdivision I

11.5 Subdivision I provides that two classes of future act are valid. These are future acts labelled by the Bill as ‘pre-existing right based acts’ and ‘permissible lease etc. renewals’, respectively [Schedule 1, item 9, section 24IA].

Validity of pre-existing right based acts

11.6 A ‘pre-existing right based act’ is valid. [Schedule 1, item 9, paragraph 24ID(1)(a)]

What is a pre-existing right based act?

11.7 In essence, a ‘pre-existing right based act’ is a future act that takes place after 23 December 1996 in pursuance of certain rights or arrangements arising on or before that date [Schedule 1, item 9, section 24IB].

11.8 A future act will be a ‘pre-existing right based act’ if it takes place:

• in exercise of a valid and legally enforceable right created by an act done on or before 23 December 1996 [paragraph 24IB(a)]; or

• in good faith as a result of a bona fide offer, commitment, arrangement or undertaking made or given on or before 23 December 1996 (there must be written evidence of the offer, commitment, arrangement or undertaking created at or near the time it was made or given) [paragraph 24IB(b)]. The requirement that the future act be done in good faith was inserted by 1997 Government amendment (25A) which was made by the Senate and included in the Bill.

11.9 Examples would be the grant in good faith of a non-exclusive pastoral lease pursuant to an offer made before 24 December 1996, evidenced in writing, to grant a non-exclusive pastoral lease but where the things necessary to complete the grant had not been done by that time, or the grant of a freehold estate after 23 December 1996 where the grantee had before that time a valid legally enforceable right to that grant.

11.10 The validity of an act that creates a legally enforceable right can arise because of Division 2 of Part 2 (which validates past acts) or proposed Division 2A of Part 2 (which, if enacted, will validate intermediate period acts).^[26]

Effect of a pre-existing right based act on native title

11.11 The Bill specifies the effect of a pre-existing right based act on native title, as set out in Table 11.1.

Nature of the pre-existing right based act	Effect of the act on native title
The grant of a freehold estate over particular land or waters	The act extinguishes any native title in relation to the land or waters. *[Paragraph 24ID(1)(b)]* The Bill specifically defines the word extinguish in relation to native title to mean permanent extinguishment. *[Schedule 1, item 45, section 237A]*
The conferral of a right of exclusive possession over particular land or waters (e.g. the grant of an exclusive pastoral lease)	The act extinguishes any native title in relation to the land or waters. *[Paragraph 24ID(1)(b)]*
Any pre-existing right based act not covered by the above (e.g. the issue of a licence to graze cattle)	The non-extinguishment principle applies to the act *[paragraph 24ID(1)(c)]*. This principle is explained in paragraph 6.9 of Chapter 6.

Validity of permissible lease etc. renewals

11.12 A ‘permissible lease etc. renewal’ is valid. [Paragraph 24ID(1)(a)]

What is a permissible lease etc. renewal?

11.13 A future act will be a ‘permissible lease etc. renewal’ if it is the renewal, re-grant, re-making or extension of the term of a valid lease, licence, permit or authority and meets the four requirements below.^[27] [Schedule 1, item 9, section 24IC]. Both the Bill and the discussion below refer to the ‘lease, licence, permit or authority’ as the original lease etc.

• It must not create a greater interest in the relevant land or waters than was previously the case under the original lease etc. (see paragraph 11.17).

• The lease, licence permit or authority must continue to contain, or be subject to, a reservation or condition (if any) for the benefit of Aboriginal peoples or Torres Strait Islanders that was in the original lease etc. If there was not any such reservation or condition in the original lease etc. this requirement does not need to be met. [Paragraph 24IC(1)(d)]

• The lease, licence, permit or authority must not permit mining if that was not permitted under the original lease etc. If the original lease etc. did permit mining, the renewed, re-granted, re-made or extended lease, licence, permit or authority can continue to allow mining. [Paragraph 24IC(1)(e)]

11.14 To avoid doubt, the Bill also sets out a number of features of a renewed, re-granted, re-made or extended lease, licence, permit or authority that will not prevent the lease etc. from being a ‘permissible lease etc. renewal’. These are discussed in paragraphs 11.20 and 11.21.

Positive conditions

11.15 The renewal, re-grant, re-making or extension will only be a permissible lease etc. renewal if any one or more of the positive conditions set out in Table 11.2 are met.

Positive condition	Comments
The original lease etc. was granted on or before 23 December 1996. *[Subparagraph 24IC(1)(b)(i)]*	This means, for example, that a non-exclusive pastoral lease issued before the Wik decision was handed down can be renewed etc.
The original lease etc. was granted by an act covered by proposed section 24GB, 24GD, 24GE or 24HA. *[Subparagraph 24IC(1)(b)(iii)]*	Sections 24GB, 24GD and 24GE deal with matters relating to primary production and are discussed in Chapter 9. Section 24HA deals with water etc. and is discussed in Chapter 10. An example is the renewal of a licence to graze cattle in an area adjoining or near to a farm owned by the licence holder.
The grant of the original lease etc. was a pre-existing right based act. *[Subparagraph 24IC(1)(b)(ii)]*	The meaning of the term ‘pre-existing right based act’ is discussed in paragraphs 11.7 to 11.10.
The original lease etc. was previously the subject of a renewal, re-grant, re making or extension that was itself a ‘permissible lease etc. renewal’ (i.e. it meets the requirements set out in paragraph 11.13). *[Subparagraph 24IC(1)(b)(ii)]*	This means the original lease etc. must have met one of the positive conditions above but can have been renewed etc. on more than one occasion. An example of an act meeting this condition is the renewal of a non-exclusive pastoral lease originally granted on or before 23 December 1996 that has previously been re-granted after 23 December 1996.

11.16 Section 24IC does not deal with the renewal of leases, licences etc. that are created in the future where native title exists and which are not within the categories set out in Table 11.2 (e.g. mining leases and pastoral leases given in the future). Future mining leases can be renewed under Subdivision M and pastoral leases can only be granted in the future by agreement or where native title has been compulsorily acquired in a non-discriminatory manner.

The renewal etc. must not create a greater interest in the relevant land or waters

11.17 A renewal, re-grant, re making or extension will not be a ‘permissible lease etc. renewal’ if it:

• gives a right of exclusive possession over any of the land or waters covered by the original lease etc. [subparagraph 24IC(1)(c)(i)] (native title rights must be acquired if a right of exclusive possession is to be given - see section 24MD^[28]); or

• otherwise creates a greater proprietary interest in the land or waters than was created by the original lease etc. (e.g. a renewal of a non-exclusive pastoral lease could not grant mineral rights over the land or waters) [subparagraph 24IC(1)(c)(ii)]; or

• creates a proprietary interest over any of the land or waters covered by the original lease etc. where none previously existed under the original lease etc. (e.g. a lease replaces a licence) [subparagraph 24IC(1)(c)(iii)];

• The Senate made 1998 Government amendment (28) adding new subparagraph 24IC(1)(c)(iv), which is included in the Bill. This subparagraph ensures that the outcome that paragraph 24GB(4)(a) was designed to prevent, cannot be done by means of the renewal of a lease. Additional primary production rights cannot be given in the renewal of a pastoral lease greater than 5000 hectares if this allows the majority of the area covered by the lease to be used for non-pastoral purposes. The Senate also made 1998 Government amendment (27), which is a consequential amendment.

What if a lease etc. is replaced by two or more leases etc.?

11.18 The Bill deems the replacement of a lease by one or more other leases to be a ‘renewal’ for the purposes of the definition of a ‘permissible lease etc. renewal’. The same applies where:

• an authority is replaced by two or more authorities. [Subsection 24IC(2)]

11.19 To be a ‘permissible lease etc. renewal’, the replacement must meet all the conditions discussed in paragraph 11.13. For example, if a lease is replaced with two new leases, the new leases must not, between them, create a greater proprietary interest than was previously held under the original lease.

What features do not prevent an act from being a permissible lease etc. renewal?

11.20 As discussed above, the Bill includes provisions that clarify what matters renewed, re-granted, re-made and extended leases etc. can deal with [subsections 24IC(3) and (4)]. These provisions are intended to remove doubt.

11.21 The features set out below do not prevent a renewed, re-granted, re-made or extended lease, licence, permit or authority from being a ‘permissible lease etc. renewal’. Nor do they prevent each of 2 or more leases etc. granted in place of a single lease etc. from being a ‘permissible lease etc. renewal’. The original lease etc. is called the old authority and the renewed, re-granted, re-made, extended or replaced lease or leases etc. are each called a new authority (there will be more than one new authority where the old authority is replaced by two or more leases etc.). [Subsection 24IC(3)]

• The new authority, or the new authorities between them, can cover a smaller area than the old authority. [Paragraph 24IC(4)(a)]

• The term of the new authority, or any of the new authorities, can be longer than the term of the old authority and, if the new authority, or any of the new authorities, is a lease, it can be a perpetual lease even if the previous lease was not. [Paragraphs 24IC(4)(b) and (c)]

• Any new authority that is a non-exclusive agricultural lease or a non-exclusive pastoral lease can permit the following activities (even if they were not permitted by the old authority):

− an activity, on the area covered by the new authority, associated with or incidental to such a primary production activity (this activity will only be covered if, when it is carried on, the majority of the area covered by the new authority, or the new authorities between them, will be used for primary production activities).^[29] [Paragraph 24IC(4)(d)] The Senate made 1997 Harradine amendment (15) which is included in the Bill. This amendment substitutes the words ‘is likely to’ with ‘will’ in subparagraph 24IC(4)(d)(ii).

Effect of a permissible lease etc. renewal on native title

11.22 Permissible lease etc. renewals which are valid under proposed paragraph 24ID(1)(a) are subject to the non-extinguishment principle [Paragraph 24ID(1)(c). This principle is explained in paragraph 6.9 of Chapter 6.

Compensation for pre-existing right based acts and permissible lease etc. renewals

11.23 Native title holders are entitled to compensation for future acts that are valid because of proposed paragraph 24ID(1)(a). The native title holders so entitled are those whose native title is affected by the valid future act.

What is the compensation?

11.24 The compensation is payable in accordance with Division 5 of Part 2 of the NTA. In general terms, the compensation is an entitlement on ‘just terms’ to compensate the native title holder for any loss, diminution, impairment or other effect of the act on their native title (see section 51 of the NTA). [Paragraph 24ID(1)(d)]

Who pays the compensation?

11.25 If the future act for which compensation is payable is attributable to the Commonwealth, the compensation is payable by the Commonwealth [paragraph 24ID(2)(a)]. States and Territories are liable for compensation in relation to their future acts for which compensation is payable [paragraph 24ID(2)(b)].

Notification

11.26 The Senate made 1997 Government amendment (25B) which is included in the Bill. This amendment inserts new subsection 24ID(3). This subsection provides that where a future act is one to which paragraph 24IB(b) applies, the person proposing to do the future act must, before the act is done, notify the persons referred to in paragraph 24ID(3)(a) of the act or class of acts, and give them an opportunity to comment on the act or class of acts. However, failure to notify will not affect the validity of the future act.

Overview

12.1 Item 9 of Schedule 1 inserts Subdivision J of Division 3 to deal with acts on land that has been reserved or otherwise set aside for a particular purpose. It implements part of point 7 of the Ten Point Plan and also reflects the policy in existing subsection 228(9) of the NTA. As well as making grants to third parties in the past, governments also reserved or set aside land for a broad range of public purposes. The Government is of the view that land reserved or set aside in the past should be able to be used, in the future, even if native title exists in relation to that land. Consistent with Mabo (No. 2) the reservation should not extinguish native title; the act may in limited circumstances do so.

12.2 Therefore, Subdivision J ensures the validity of future acts on reserved land which meet certain conditions. These are, broadly, that:

• the reservation happened on or before 23 December 1996 and is valid or validated;

• the future act is done in good faith under the terms of, or in accordance with, the reservation or in such a way as not to affect native title more than acts which the reservation did cover.

12.3 Unless the act involves a public work, the non-extinguishment principle applies to these acts and native title holders are entitled to compensation from the relevant government. If the act involves a public work, certain notification requirements are imposed on the person proposing to do the act.

Validity of future acts relating to reservations

12.4 Subdivision J makes valid certain future acts relating to areas subject to a reservation, proclamation, dedication, condition, permission or authority (all called a reservation) or certain leases [Schedule 1, item 9, sections 24JA and 24JB]. The acts covered are explained below.

What future acts are valid?

12.5 Two kinds of future act are valid: those dealing with reservations etc. and those dealing with certain leases given to statutory authorities [subsection 24JB(1)]. These categories are explained below.

Reservations etc.

12.6 A future act (called a later act) will be valid if the conditions below are met.

• There must be a valid earlier act that took place before the later act and on or before 23 December 1996. The validity of the earlier act can arise because of Division 2 of Part 2 (which validates past acts) or proposed Division 2A of Part 2 (which, if enacted, will validate intermediate period acts).^[30] [Paragraphs 24JA(1)(a) and (b)]

− have been done by the Crown in right of the Commonwealth, a State or a Territory; or

− be the making, amendment or repeal of legislation by the Commonwealth, a State or a Territory. [Paragraph 24JA(1)(c)]

• The earlier act must have contained, made or conferred a reservation to use particular land or waters for a particular purpose. The land or waters covered by the later act can be part of the area to which the earlier act related. [Paragraph 24JA(1)(d)]

− under or in accordance with the reservation [subparagraph 24JA(1)(e)(i)]; or

− in the area covered by the reservation, but only if its impact on native title is no greater than would have been the case for an act done under or in accordance with the reservation [subparagraph 24JA(1)(e)(ii)].

(An act may be done in accordance with the reservation if it is done pursuant to the purpose for which the land was reserved. If this is the case, it is immaterial whether the act is done under a different law to that under which the land was reserved).

Leases to statutory authorities

12.7 Instead of reserving land, some governments have granted it to statutory authorities to be used by those authorities for particular purposes. This category treats those grants in the same way as reservations.

12.8 A future act (called a later act) will be valid if the conditions below are met.

• There must be a valid earlier act that took place before the later act and on or before 23 December 1996. The validity of the earlier act can arise because of Division 2 of Part 2 or proposed Division 2A of Part 2. [Paragraphs 24JA(2)(a) and (b)]

• The earlier act must have been done by the Crown in right of the Commonwealth, a State or a Territory. [Paragraph 24JA(2)(c)]

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

− under the lease any of the land or waters covered by it was to be used for a particular purpose; or

− there is written evidence, created on or before 23 December 1996 by the Commonwealth, State or Territory, that any of the land or waters covered by the lease was to be used for a particular purpose. [Paragraph 24JA(2)(d)]

• The later act must be a bona fide act consisting of the use of the land or waters for the particular purpose. [Paragraph 24JA(2)(e)]

Examples of future acts valid under subsection 24JA(1)

12.9 The Bill contains three examples of future acts that are valid under Subdivision J. They are broadly as set out below.

Example 1 - land reserved for a national park

12.10 A future act consisting of the creation of a national park management plan might be valid if the land concerned was reserved for the establishment of a national park before 23 December 1996. This act would be covered by subparagraph 24JA(1)(e)(i) if the plan was done under or in accordance with the reservation. The construction of a raised walkway in the national park would be another example.

Example 2 - grant of a forestry licence

12.11 A future act consisting of the grant of a forestry licence might be valid if the grant is done under or in accordance with a dedication for forestry purposes made before 23 December 1996 (this act would be covered by subparagraph 24JA(1)(e)(i)).

Example 3 - land reserved for a hospital but a school is built instead

12.12 A future act consisting of the construction of a school might be valid if the school is built on land reserved for a hospital before 23 December 1996. The act would be covered by subparagraph 24JA(1)(e)(ii) if the building of the school would not affect native title to a greater extent than the building of a hospital would have.

Effect of future act on native title

12.13 The Bill specifies the effect on native title of a valid future act relating to a reservation etc., as set out in Table 12.1.

Nature of the future act	Effect of the act on native title
The construction or establishment of a public work (e.g. the school discussed in Example 3 above) (A revised definition of the term ‘public work’ is inserted by item 59 of Schedule 1 of this Bill and is explained in Chapter 24 (paragraphs 24.20 to 24.22). The Bill also explains what is meant by land or waters on which a public work is constructed, established or situated (section 251D in item 50 of Schedule 1)).	The act extinguishes native title in relation to the land or waters on which the public work is situated determined as at the time when its construction or establishment is completed. The extinguishment is taken, however, to have happened when the construction or establishment of the public work began. *[Subsection 24JB(2)]* The Bill specifically defines the word extinguish in relation to native title to mean permanent extinguishment. *[Schedule 1, item 45, section 237A]*
Anything other than the construction or establishment of a public work (e.g. the grant of the forestry licence discussed in Example 2 above)	The non-extinguishment principle applies to the act *[subsection 24JB(3)]*. This principle is explained in paragraph 6.9 of Chapter 6.

Compensation for future acts relating to reservations

12.14 Native title holders are entitled to compensation for future acts that are valid because of proposed subsection 24JB(1). The native title holders so entitled are those whose native title is affected by the valid future act.

What is the compensation?

12.15 The compensation is payable in accordance with Division 5 of Part 2 of the NTA. In general terms, the compensation is an entitlement on ‘just terms’ to compensate the native title holder for any loss, diminution, impairment or other effect of the act on their native title (see section 51 of the NTA). [Subsection 24JB(4)]

Who pays the compensation?

12.16 If the future act for which compensation is payable is attributable to the Commonwealth, the compensation is payable by the Commonwealth [paragraph 24JB(5)(a)]. States and Territories are liable for compensation in relation to their future acts for which compensation is payable [paragraph 24JB(5)(b)].

Notification

12.17 The Senate made 1997 Government amendment (26) which is included in the Bill. This amendment inserts new subsection 24JB(6) which requires the person proposing to construct or establish a public work under this section (the consequences of which will be extinguishment of any native title) to notify, in the way determined in writing by the Commonwealth Minister, the persons mentioned in paragraph (6)(a) that the act, or acts of that class, are to be done, and give those persons an opportunity to comment on the act or class of acts. The notification must occur before the future act is done. Failure to notify will not affect the validity of the future act.

12.18 The Senate made 1998 Government amendment (30) adding subsection 24JB(7), which is included in the Bill. This amendment imposes notification obligations in relation to future acts consisting of the creation of a plan for the management for a national park or the like. As with subsection 24JB(6), failure to notify will not render the making of the management plan invalid.

Overview

13.1 Item 9 of Schedule 1 inserts Subdivision K of Division 3 to implement point 3 of the 10 Point Plan and ensure that services to the general public can be provided unimpeded by native title. The provision of basic services to rural communities, in particular remote Aboriginal communities, is a key concern of the Government. In its view, native title should not inhibit the provision of these services where they are for the general public, including native title holders, no matter who provides them, provided that the affect on native title is minimal.

13.2 The acts which are covered by Subdivision K include, among other things, the construction, use and maintenance of transport, electricity supply, lighting, pipeline, sewerage and communications facilities and acts which permit or require such things to be constructed, used and maintained. These acts are valid under this Subdivision unless they prevent native title holders from having reasonable access to affected areas, subject to construction and health and safety requirements. The Subdivision also requires there to be legislation in existence in the relevant jurisdiction which provides for the protection of significant indigenous sites from the effects of the activities.

13.3 The non-extinguishment principle applies, and any compensation entitlement of the native title holders is payable by the relevant government. Also, the native title holders have the same procedural rights as other comparable interest holders in relation to the act.

Validity of future acts relating to the provision of facilities for services to the public

13.4 Subdivision K provides that certain future acts relating to the provision of facilities for services to the public are valid [Schedule 1, item 9, subsection 24KA(3)]. The acts covered are explained below.

What future acts are valid?

• The act must relate, to any extent, to an onshore place. This means the act can be covered if it relates to both and onshore place and an offshore place^[31] [Paragraph 24KA(1)(a)]. Acts relating solely to an offshore place will be covered by proposed Subdivision N.

• The act must be one of the two things relating to facilities for services to the public set out in Table 13.1.

Nature of the future act	Who must do the construction etc.
An act that permits or requires the construction, operation, use, maintenance or repair of any listed facility that is, or is to be, operated for the general public *[Subparagraph 24KA(1)(b)(i)]* (The listed facilities are explained below).	The construction, operation, use, maintenance or repair can be by or on behalf of any person. This would include persons in the private sector, as well as the government sector.
The activity that is construction, operation, use, maintenance or repair of any listed facility that is, or is to be, operated for the general public *[Subparagraph 24KA(1)(b)(ii)]*	The construction, operation, use, maintenance or repair must be done by or on behalf of: • the Crown in right of the Commonwealth, a State or a Territory; or • a local government body or other statutory authority of the Crown in right of the Commonwealth, a State or a Territory. The actual construction, operation, use, maintenance or repair could be done by a person in the private sector on behalf of, for example, a statutory authority.

• The act must not prevent native title holders in relation to land or waters where the listed facility is, or is to be, situated from having reasonable access to such land or waters in the vicinity of the facility. However, this reasonable access requirement does not apply while the listed facility is being constructed or where the access would risk health and safety. [Paragraph 24KA(1)(c)]

• There must be a Commonwealth, State or Territory law that makes provision for the preservation or protection of areas or sites that may be:

− of particular significance to Aboriginal peoples or Torres Strait Islanders in accordance with their traditions. This would include state heritage legislation. [Paragraph 24KA(1)(d)]

What are the listed facilities?

13.6 The listed facilities referred to above are set out in Table 13.2. [Subsection 24KA(2)]

13.7 Large scale works (e.g. an airport) are not intended to be included among the facilities covered by Subdivision K. Large scale works are either likely to require exclusive possession or significantly impede access by native title holders. Any native title should be acquired for such works. This could be done by agreement or by a compulsory acquisition which would be valid because of Subdivision M.^[32]

The non-extinguishment principle applies to the valid acts

13.8 Future acts which are valid under proposed subsection 24KA(3) are subject to the non-extinguishment principle [subsection 24KA(4)]. This principle is explained in paragraph 6.9 of Chapter 6.

Procedural rights for native title holders

13.9 The Bill makes it clear that native title holders have the same procedural rights as other land holders where their native title is affected by any future acts valid because of Subdivision K [subsection 24KA(7)]. The nature of the rights depends on the status of the area affected by native title, and on which the act is to be done, as set out below.

• Where the land on which the act is done is a non-exclusive agricultural lease or a non-exclusive pastoral lease, native title holders have the same procedural rights as the holders of the lease. Where the act is done in relation to onshore waters, they have the same rights as a lessee to the land adjoining or surrounding those waters.

• In any other case (e.g. where the land or waters for which the native title is held is on vacant Crown land or covered by a mining lease), the native title holders have the same procedural rights they would have if they instead held ‘ordinary’ title.^[33] Again, where the act is done in relation to onshore waters, they have the same rights as the owner of the land adjoining or surrounding those waters. Where ordinary title holders would not get procedural rights, none will be available to native title holders. This is consistent with the approach in current subsection 23(6) of the NTA (now in subsection 24MD(6)).

Example

13.10 A statutory authority of a State or Territory proposes to construct power lines across a non-exclusive pastoral lease affected by native title. The native title holders have the same rights as the leaseholder might have, under relevant planning or electricity supply legislation, to be notified etc. of the proposed construction.

How can a procedural right to be notified be satisfied where there has been no determination of native title?

13.11 The Bill provides assistance in cases where native title holders have a procedural right to be notified of the future act but there has been no determination as to whether native title exists or who any native title holders may be. The procedural right could arise because of proposed subsection 24KA(7) or any other Commonwealth, State or Territory law. [Paragraphs 24KA(8)(a) and (b)]

13.12 Where this is the case, the notification can be effected by notifying any representative Aboriginal/Torres Strait Islander body^[34] in, or any registered native title claimants in relation to land or waters for, the area concerned. The notification must be given in the way determined by the Commonwealth Minister for this purpose. If this is done, the requirements of the NTA are met. [Subsection 24KA(8)]

13.12a The Senate made 1998 Opposition amendment (RR101), which is included in the Bill. This amendment inserts subsections 24KA(9) and (10) which provide that if there are registered claimants in relation to the land and waters concerned they have the procedural rights outlined in proposed subsection 24KA(7) and if there are no registered native title claimants, the relevant representative body has a right to comment on the act before it is done, in addition to any other procedual right it may have.

Compensation for future acts relating to the provision of facilities for services to the public

When does an entitlement to compensation arise?

13.13 A native title holder will be entitled to compensation for future acts that are valid because of subsection 24KA(3) if the native title holder would be entitled to compensation for the act under subsection 17(2) of the NTA if it was assumed that the future act was instead a past act. [Subsection 24KA(5)]

13.14 In broad summary terms, this means that compensation will be payable for the future act in the following circumstances.

• If the act is one which could not be done over land subject to ordinary title, native title holders will also have a right to compensation.^[35]

What is the compensation?

13.15 An entitlement of a native title holder to compensation is in accordance with Division 5 of Part 2 of the NTA [subsection 24KA(5)]. In general terms, the compensation is an entitlement on ‘just terms’ to compensate the native title holder for any loss, diminution, impairment or other effect of the act on their native title (see section 51 of the NTA).

Who pays the compensation?

13.16 The Bill sets out who must pay the compensation for the future act, as set out in Table 13.3. [Subsection 24KA(6)]

Overview

14.1 Item 9 of Schedule 1 inserts Subdivision L of Division 3 to deal with low impact future acts. It reproduces the effect of section 234 in the current NTA, which is repealed under these amendments. It allows a range of acts to happen without cumbersome procedures where the act has little effect on any native title, and before there is an approved determination that any native title exists. The non-extinguishment principle applies to low impact future acts.

Validity of low impact future acts

14.2 A future act will be valid if it falls into a category of acts that can be described as low impact future acts [Schedule 1, item 9, subsection 24LA(3)]. The future acts covered are described in much the same way as the acts that are defined as low impact future acts under existing section 234 of the NTA. (The only substantive differences are the addition of a qualification of the exclusion of excavation and clearing from the description of a low impact future act).^[36] An act can only be a low impact future act if it:

• takes place before it is determined that native title exists on the relevant land or waters; and

14.3 The details of the requirements for an act to be valid under Subdivision L are set out below.

• The future act must take place before there has been an approved determination that native title exists in relation to the land or waters affected by the act. Also, the act must not continue after the determination is made. If they are in fact ‘future acts’ (because they ‘affect’ native title), the grant of a licence to collect firewood or conduct beekeeping may well be low impact future acts. [Paragraph 24LA(1)(a)]

• The act must not consist of, authorise or otherwise involve any of the things set out in Table 14.1.

The excavation or clearing of any of the land or waters affected by the act *[Subparagraph 24LA(1)(b)(iv)]*	However, excavation or clearance that is reasonably necessary for the protection of public health or safety can take place and be valid under Subdivision L *[paragraph 24LA(2)(a)]. An example would be the removal of earth that may present a landslide hazard to a road adjacent to the land or waters. Also, the following can be valid under Subdivision L even if they relate to excavation or clearing: • tree lopping (e.g. removing the branch of a tree blocking a road); • control of noxious or introduced animals or plants; • foreshore reclamation (e.g. the dumping of sand to restore an eroded beach); • regeneration or environmental assessment or protection activities (e.g. the planting of native trees or the protection of streambeds from erosion). [Paragraph 24LA(2)(b)]*
Mining (other than fossicking by using hand held implements) *[Subparagraph 24LA(1)(b)(v)]*	The term ‘mine’ is defined in section 253 of the NTA to include, among other things, exploration or prospecting.
The construction or placing on the land, or in the waters, of any building, structure or other thing that is a fixture *[Subparagraph 24LA(1)(b)(vi)]*	However, this exclusion does not extend to the construction or placement of fencing or a gate (i.e. they can be a valid act under Subdivision L) *[subparagraph 24LA(1)(b)(vi)]*. An example would be the construction of a fence to keep livestock away from watercourses.
The disposal or storage, on the land or in the waters, of any garbage or any poisonous, toxic or hazardous substance *[Subparagraph 24LA(1)(b)(vii)]*

The non-extinguishment principle applies to the valid acts

14.4 Future acts which are valid under proposed subsection 24LA(3) are subject to the non-extinguishment principle [subsection 24LA(4)]. This principle is explained in paragraph 6.9 of Chapter 6.

Overview

15.1 Subdivision M of Division 3, inserted by Item 9 of Schedule 1, is based on sections 23 and 235 of the current NTA, which are repealed by these amendments. In brief, this Subdivision means that legislation will be valid to the extent it relates to an onshore place if it affects native title areas in the same way as, or no less beneficially than, it affects freehold areas. It also means that a non-legislative act can be done validly over native title areas if that act could be done validly over freehold areas or if its is the creation or variation of a right to mine for opals or gems.

15.2 The non-extinguishment principle will apply unless the act is the compulsory acquisition, under a non-discriminatory law, of native title and non-native title rights are also acquired (i.e. the acquisition power is exercised in a non-discriminatory way). Generally, the native title holders would be entitled to compensation for the act in the same way that freeholders would be. For compulsory acquisitions, native title holders will either be entitled to ‘just terms’ compensation under the relevant compulsory acquisition laws or entitled to compensation under Division 5 of Part 3 of the NTA. Native title holders will also have the same procedural rights for the act as freeholders would have for that act.

Validity of future acts passing the freehold test

15.3 Subdivision M provides that certain future acts passing what can be described as a ‘freehold test’ are valid [Schedule 1, item 9, subsection 24MD(1)]. However, the following should be noted.

• The future act will only be valid to the extent that it relates to an onshore place [Schedule 1, item 9, section 24MC]. Acts dealing with offshore places are dealt with in Subdivision N of new Division 3.^[37]

• The validity is subject to the provisions dealing with the right to negotiate (Subdivision P of new Division 3 of Part 2) [subsection 24MD(1)]. These provisions may require certain additional procedures to be followed before the act will be valid.^[38]

15.4 Two classes of future act are covered: legislative acts and non-legislative acts, as explained below.

What legislative acts are valid?

15.5 A future act is valid if it is the making, amendment or repeal of legislation that meets either of the requirements set out in Table 15.1. The legislation covered is Commonwealth, State or Territory legislation.

Legislative act that is valid	Comments
An act that applies to the native title holders concerned in the same way that it would apply to them if they instead held ordinary title to the land, or to the land adjoining or surrounding the waters, affected by the act *[Schedule 1, item 9, paragraph 24MA(a)]*	This requirement is generally intended to cover a legislative act that creates a law of a particular kind. An example, as set out in the Bill, is the making of legislation that permits mining on land for which there is either native title or ordinary title. The term ‘ordinary title’ is defined in section 253 and in most cases means a freehold estate.
An act that does not put native title holders in a more disadvantageous position than they would have been if they had instead held ordinary title to the land, or to the land adjoining or surrounding the waters, affected by the act (Whether the native holders are disadvantaged in this way is determined by examining the effect of the act on the native title in relation to the land or waters affected and comparing it with the position that would apply if the native title holder instead held freehold). *[Paragraph 24MA(b)]*	This requirement is generally intended to cover a legislative act that amends existing legislation so that it can apply to land or waters affected by native title. An example, as set out in the Bill, is the amendment of legislation that permits mining on land that is subject to ordinary title so that it will also permit mining, on the same terms, on land for which there is native title.

What non-legislative acts are valid?

15.6 Two kinds of non-legislative future act are covered by Subdivision M, as discussed below.

Acts passing the freehold test

15.7 A non-legislative future act is valid if it could be done on the assumption that the native title holders instead held ordinary title to the land, or to the land adjoining or surrounding the waters, affected by the act. [Schedule 1, item 9, subsection 24MB(1)]

Example

15.8 An example of a non-legislative future act that is valid under subsection 24MD(1) is the grant of a mining lease over land subject to native title if the same mining lease could also have been granted over the land if it was instead subject to ordinary title.

Acts creating of varying rights to mine for opals or gems

15.9 A non-legislative future act that is not covered by subsection 24MB(1) is valid if it is the creation or variation of a right to mine opals or gems. This puts beyond doubt that such acts pass the freehold test [subsection 24MB(2)]. This category will cover the kind of small scale opal and gem mining that is not covered by the right to negotiate provisions (see Chapter 19).

Effect of future act on native title

15.10 The Bill specifies the effect on native title of a future act that is valid under Subdivision M, as set out in Table 15.2.

Nature of the future act	Effect of the act on native title
The compulsory acquisition of the whole or part of any native title in certain circumstances	Where the whole or the equivalent part of all non-native title rights and interests in the relevant land or waters are also acquired, then nothing in the NTA will prevent the acquisition from extinguishing the whole or part of the native title. However, this will only be the case if the law under which the acquisition is done permits both the acquisition of native title and non-native title rights and interests. *[Paragraph 24MD(2)(a), (b) and (c)]* The Senate made 1998 Government amendment (32) replacing paragraph (2)(c) which is included in the Bill. Replacement paragraph (2)(c) makes it clear that a compulsory acquisition to which paragraphs 24MD(2)(a), (b) and (ba) apply will extinguish any native title rights that have been compulsorily acquired. This reflects the common law position. This means that the law under which the compulsory acquisition takes place must be non-discriminatory as must the application of that law in the particular case. This reflects the contents of the existing definition of ‘Compulsory Acquisition Act’ in section 253, which is repealed under the Bill.^[39] The Senate made *1997 Government amendment (28)* which is included in the Bill and will further ensure a non-discriminatory process, by requiring that the practices and procedures adopted in relation to the acquisition do not discriminate against native title holders. The amendment requires that the practices and procedures adopted do not cause native title holders to be any more ‘disadvantaged’ than the holders of other rights and interests when their rights are acquired. Whether the act does so extinguish native title will depend on the provisions of the Commonwealth, State or Territory law under which the acquisition takes place. The title could be expressly extinguished or extinguished by necessary implication. The Bill specifically defines the word extinguish in relation to native title to mean permanent extinguishment. *[Schedule 1, item 45, section 237A]*
Any other act (e.g. the grant of a mining lease)	The non-extinguishment principle applies to the act *[paragraph 24MD(3)(a)]. This principle is explained in paragraph 6.9 of Chapter 6. The Senate made 1998 Government amendment (35),* which is included in the Bill. This amendment to subsection 24MD(3) in the Bill ensures that that subsection does not apply to acts covered by subsections (2) or (2A). This amendment is consequential on the insertion of new subsection (2A) by *Government amendment (34).*

Extinguishment of native title by surrender in the course of RTN process

15.10a The Senate made 1998 Government amendment (34), which is included in the Bill. This amendment inserts new subsection 24MD(2A) which deals with the effect of certain agreements to surrender native title arising out of a right to negotiate process. Where the agreement to surrender native title is made as a result of negotiations following a section 29 or equivalent notice that has been issued in relation to a right to negotiate process for a compulsory acquisition of native title, the surrender of the native title is covered by subsection 24MD(2A). If subsection 24MD(2A) applies and the agreement includes a statement that the surrender is intended to extinguish native title, the surrendered native title rights are extinguished. Native title holders entitled to benefits under the agreement, are entitled to no other compensation. Native title holders who are not entitled under the agreement are entitled to compensation under the Act if their rights are extinguished.

15.10b The Senate made 1998 Government amendment (33) adding a second note after subsection 24MD(2) to explain that the subsection only deals with the compulsory acquisition of native title, since the whole purpose of the provision is to protect native title from discriminatory acquisition. The provision therefore gives to native title holders the same protections and the same rights as freeholders. The note goes on to explain that native title rights can also be acquired voluntarily, that is under an indigenous land use agreement, or under an agreement covered by subsection 24MD(2A). Because the focus of the provision is the protection of native title, it does not deal with the terms of any compulsory acquisition of non-native title rights. However, there will of course be circumstances where non-native title rights are compulsorily or otherwise acquired, but native title rights are not. For example, in some States and Territories Aboriginal living areas are excised from pastoral leases.

Procedural rights for native title holders

15.11 The Bill makes it clear that native title holders have the same procedural rights as ordinary title holders where their native title is affected by any future acts that are valid under Subdivision M. This is done by saying that the native title holders have the procedural rights they would have had if they had instead held ordinary title to the land, or to the land adjoining or surrounding the waters, affected by the act. [Subsection 24MD(6)]

15.12 However, the native title holders do not have these procedural rights where the valid act is:

• an act to which Subdivision P of new Division 3 of Part 2 applies (i.e. those acts to which the right to negotiate applies);

• an act determined under proposed section 26A to be an approved exploration etc. act;

• an act determined under section 26B to be an approved gold or tin mining act; or

• an act covered by section 26C (this section deals the creation or variation of a right to mine opals or gems).

15.13 These acts generally relate to the right to negotiate and mining. The procedural rights do not apply in these cases because other procedures are applicable under the NTA.

Example

15.14 A State or Territory proposes to compulsorily acquire land affected by native title for public purposes. The native title holders have the same rights as an ordinary title holder might have, under relevant planning or compulsory acquisition legislation, to be notified of, and object etc. to, the proposed acquisition.

How can a procedural right to be notified be satisfied where there has been no determination of native title?

15.15 The Bill provides guidance for cases where native title holders have a procedural right to be notified of the future act but there has been no determination as to whether native title exists or who any native title holders may be. The procedural right could arise because of proposed subsection 24MD(6) or any other Commonwealth, State or Territory law. [Paragraphs 24MD(7)(a) and (b)]

15.16 Where this is the case, the notification can be effected by notifying any representative Aboriginal/Torres Strait Islander body^[40] in, or any registered native title claimants in relation to land or waters for, the area concerned. The notification must be given in the way determined by the Commonwealth Minister for this purpose. If this is done, the requirements of the NTA are met. [Subsection 24MD(7)]

15.16a The Senate made 1998 Opposition amendment (RR107), which is included in the Bill. This amendment inserts subsections 24MD(8) and (9) which provide that if there are registered claimants in relation to the land and waters concerned they have the procedural rights outlined in proposed subsection 24MD(6) and if there are no registered native title claimants, the relevant representative body has a right to comment on the act before it is done, in addition to any other procedual right it may have.

Compensation for future acts passing the freehold test

When does an entitlement to compensation arise?

15.17 A native title holder may be entitled to compensation for future acts that are valid because of subsection 24MD(1). The rules that apply will depend on whether or not the act is a compulsory acquisition of the whole or part of any native title. Table 15.3 sets out the compensation arrangements.

Nature of the future act	Conditions	Consequences
The compulsory acquisition of the whole or part of any native title where the whole or the equivalent part of all non-native title rights and interests in the relevant land or waters are also acquired	Compensation on ‘just terms’ for the acquisition is provided to the native title holders under a Commonwealth, State or Territory law and The native title holders request that the whole or part of any such compensation be in a form other than money	The person providing the compensation must consider the request and negotiate in good faith in relation to it. *[Paragraph 24MD(2)(d)]*
	Compensation on ‘just terms’ for the acquisition is not provided to the native title holders under a Commonwealth, State or Territory law	The native title holders are entitled to compensation in accordance with Division 5 of Part 2 of the NTA. *[Paragraph 24MD(2)(e)]*
Any other act	The ‘similar compensable interest test’ is satisfied in relation to the act and The law mentioned in that test does not provide for compensation to native title holders for the act	The native title holders are entitled to compensation in accordance with Division 5 of Part 2 of the NTA. *[Paragraph 24MD(3)(b)]*

What is the nature of compensation payable under Division 5?

15.18 An entitlement of a native title holder to compensation in accordance with Division 5 of Part 2 of the NTA is, in general terms, an entitlement on ‘just terms’ to compensate the native title holder for any loss, diminution, impairment or other effect of the act on their native title (see section 51 of the NTA).

What is the similar compensable interest test?

15.19 The similar compensable interest test is defined in section 240 of the NTA. It is generally met if the native title relates to an onshore place and compensation would have been payable under any law (other than the NTA) if it was assumed that native title holders instead held ordinary title to the land. That is, the test is satisfied if compensation is payable to ordinary title holders.

Who pays the compensation?

15.20 The Bill sets out who must pay the compensation for a future act that is valid under subsection 24MD(1), as set out in Table 15.4. The compensation arrangements ensure that any holder of a non-exclusive agricultural or pastoral lease will not be liable for compensation where they request a government to compulsorily acquire any native title existing in relation to the land or waters covered by the lease.

Nature of the future act	Future act is attributable to the Commonwealth	Future act is attributable to a State or Territory
Future act that is the compulsory acquisition of the whole or part of any native title in relation to land or waters that are to any extent covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease.	The Crown in right of the Commonwealth *[Paragraph 24MD(5)(d)]* The native title holders are not entitled to recover the compensation from the lease holder *[Paragraph 24MD(5)(c)]*	The Crown in right of the State or Territory *[Paragraph 24MD(5)(e)]* The native title holders are not entitled to recover the compensation from the lease holder *[Paragraph 24MD(5)(c)]*
Any other future act covered by Subdivision M.	The Senate made *1997 Government amendment (29)* which is included in the Bill and provides that if a law of the Commonwealth states that a person other than the Commonwealth is liable for the compensation, then that person (and not the Commonwealth) is liable. *[Subparagraph 24MD(4)(a)(i)]* • For example, mining legislation generally makes the miner, not the government that issues the lease, liable for compensation for the mining. The miner who is liable may not, however, be the person who originally requested the grant of the mining lease, since the lease may have been transferred in some way.	The Senate made *1997 Government amendment (30)* which is included in the Bill and provides that if a law of the State or Territory states that a person other than the Crown in any capacity is liable for the compensation, then that person (and not the State or Territory) is liable. *[Subparagraph 24MD(4)(b)(i)]* • For example, mining legislation generally makes the miner, not the government that issues the lease, liable for compensation for the mining. The miner who is liable may not, however, be the person who originally requested the grant of the mining lease, since the lease may have been transferred in some way.
	The Crown in right of the Commonwealth if there is no such law *[Subparagraph 24MD(4)(a)(ii)]*	The Crown in right of the State or Territory if there is no such law *[Subparagraph 24MD(4)(b)(ii)]*

Overview

16.1 Item 9 of Schedule 1 inserts Subdivision N of Division 3 to ensure that all future acts affecting native title in offshore places are valid. It reflects the policy in section 23 and paragraph 235(8)(a) of the current NTA, which are repealed by these amendments.

16.2 The non-extinguishment principle will apply to an offshore future act unless it is a non-discriminatory compulsory acquisition. For some compulsory acquisitions, native title holders will be entitled to ‘just terms’ compensation under the relevant compulsory acquisition laws or under Division 5 of Part 3 of the NTA. Native title holders will also have the same procedural rights for the act as comparable interest holders would have for that act.

Validity of future acts affecting offshore places

16.3 Subdivision N provides that a future act is valid to the extent it relates to an offshore place [Schedule 1, item 9, subsection 24NA(2)]. To the extent, if any, that the act relates to an onshore place, it is not valid under Subdivision N. However, such an act may be valid under other provisions of the NTA.

What is an offshore place?

16.4 The term ‘offshore place’ is defined in existing section 253 of the NTA and means any land or waters to which the NTA extends (see section 6 of the NTA) other than those that are in an onshore place. An ‘onshore place’ means any land or waters within the territorial limits of a State or Territory (including an external Territory) - see the definition in section 253 of the NTA. An offshore place therefore includes the waters (known as the coastal sea) off the coast of a State or Territory and any reefs or islands beyond their territorial limits.

Effect of future act on native title

16.5 The Bill specifies the effect on native title of a future act that is valid under Subdivision N, as set out in Table 16.1.

Nature of the future act	Effect of the act on native title
The compulsory acquisition of the whole or part of any native title in certain circumstances	Where the whole or the equivalent part of all non-native title rights and interests in the relevant land or waters are also acquired, then nothing in the NTA will prevent the acquisition from extinguishing the whole or part of the native title. However, this will only be the case if the law under which the acquisition is done permits both the acquisition of native title and non-native title rights and interests. *[Subsection 24NA(3)]* This means that the law under which the compulsory acquisition takes place must be non-discriminatory as must the application of that law in the particular case. This reflects the contents of the existing definition of ‘Compulsory Acquisition Act’ in section 253, which is repealed under the Bill.^[41] The Senate made *1997 Government amendment (32)* which is included in the Bill and adds *paragraph 24NA(3)(c).* This amendment further ensures a non-discriminatory process in relation to the acquisition, by requiring that the practices and procedures adopted do not cause native title holders to be any more ‘disadvantaged’ than the holders of other rights and interests when their rights are acquired. The Senate made *1998 Government amendment (37)* which is included in the Bill. This amendment to proposed subsection 24NA(3) in the Bill makes it clear that where offshore native title rights are compulsorily acquired by a non-discriminatory compulsory acquisition process, the native title rights and interests are thereby extinguished. This reflects the position under the common law. Whether the act does so extinguish native title will depend on the provisions of the Commonwealth, State or Territory law under which the acquisition takes place. The title could be expressly extinguished or extinguished by necessary implication. The Bill specifically defines the word extinguish in relation to native title to mean permanent extinguishment. *[Schedule 1, item 45, section 237A]*
Anything other than a compulsory acquisition of native title (e.g. the grant of an authority to mine or a fishing permit)	The non-extinguishment principle applies to the act *[subsection 24NA(4)]*. This principle is explained in paragraph 6.9 of Chapter 6.

Procedural rights for native title holders

16.6 The Bill makes it clear that native title holders have the same procedural rights as other holders of interests in offshore places where their native title is affected by any future acts that are valid under Subdivision N. This is done by saying that the native title holders have the procedural rights they would have had if they had instead held non-native title rights and interests in the offshore place affected by the act that correspond to their native title interests. [Subsection 24NA(8)]

Example

16.7 A government proposes to allow mining and restrict fishing in a particular area offshore. Native title holders with native title fishing rights for the area have the same rights (if any) as the holder of fishing licences have, under relevant legislation or administration, to be notified etc. of the proposed action.

How can a procedural right to be notified be satisfied where there has been no determination of native title?

16.8 The Bill provides guidance for cases where native title holders have a procedural right to be notified of the future act but there has been no determination as to whether native title exists or who any native title holders may be. The procedural right could arise because of proposed subsection 24NA(8) or any other Commonwealth, State or Territory law. [Paragraphs 24NA(9)(a) and (b)]

16.9 Where this is the case, the notification can be effected by notifying any representative Aboriginal/Torres Strait Islander body^[42] in, or any registered native title claimants in relation to land or waters for, the area concerned. The notification must be given in the way determined by the Commonwealth Minister for this purpose. If this is done, the requirements of the NTA are met. [Subsection 24NA(9)]

16.9a The Senate made 1998 Opposition amendment (RR110), which is included in the Bill. This amendment inserts subsections 24NA(10) and (11) which provide that if there are registered claimants in relation to the land and waters concerned they have the procedural rights outlined in proposed subsection 24NA(8) and if there are no registered native title claimants, the relevant representative body has a right to comment on the act before it is done, in addition to any other procedual right it may have.

Compensation for future acts affecting offshore places

When does an entitlement to compensation arise?

16.10 A native title holder will be entitled to compensation for future acts that are valid because of subsection 24NA(2). The native title holders so entitled are those whose native title is affected by the valid future act. The rules that apply will depend on whether or not the act is a compulsory acquisition of the whole or part of any native title. Table 16.2 sets out the compensation arrangements.

Nature of the future act	Conditions	Consequences
The compulsory acquisition of the whole or part of any native title	Compensation on ‘just terms’ for the acquisition is provided to the native title holders under a Commonwealth, State or Territory law and The native title holders request that the whole or part of any such compensation be in a form other than money	The person providing the compensation must consider the request and negotiate in good faith in relation to it. *[Paragraph 24NA(5)(a)]*
	Compensation on ‘just terms’ for the acquisition is not provided to the native title holders under a Commonwealth, State or Territory law	The native title holders are entitled to compensation in accordance with Division 5 of Part 2 of the NTA. *[Paragraph 24NA(5)(b)]*
Anything other than the compulsory acquisition of any native title	No special conditions	The native title holders are entitled to compensation in accordance with Division 5 of Part 2 of the NTA. *[Subsection 24NA(6)]*

What is the nature of compensation payable under Division 5?

16.11 An entitlement of a native title holder to compensation in accordance with Division 5 of Part 2 of the NTA is, in general terms, an entitlement on ‘just terms’ to compensate the native title holder for any loss, diminution, impairment or other effect of the act on their native title (see section 51 of the NTA).

Who pays the compensation?

16.12 The Bill sets out who must pay the compensation for a future act that is valid under subsection 24NA(2), as set out in Table 16.3.

Future act is attributable to the Commonwealth	Future act is attributable to a State or Territory
The Senate made *1997 Government amendment (33)* which is included in the Bill and provides that if a law of the Commonwealth states that a person other than the Commonwealth is liable for the compensation, then that person (and not the Commonwealth) is liable. [Subparagraph 24NA(7)(a)(i)]	The Senate made *1997 Government amendment (34)* which is included in the Bill and provides that if a law of the State or Territory states that a person other than the Crown in any capacity is liable for the compensation, then that person (and not the State or Territory) is liable. *Subparagraph 24NA(7)(b)(i)]*
The Crown in right of the Commonwealth if there is no such law *[Subparagraph 24NA(7)(a)(ii)]*	The Crown in right of the State or Territory if there is no such law *[Subparagraph 24NA(7)(b)(ii)]*

Note to Table 16.3: Mining legislation generally makes the miner, not the government that issues the lease, liable for compensation for the mining. The miner who is liable may not, however, be the person who originally requested the grant of the mining lease, since the lease may have been transferred in some way.

Overview

17.1 Item 9 of Schedule 1 inserts Subdivision Q of Division 3 to implement point 5 of the 10 Point Plan. It deals with access by persons in a native title claim group to areas covered by non-exclusive agricultural and non-exclusive pastoral leases which are also covered by their registered native title claim.

17.2 The Wik decision held that the grant of certain pastoral leases does not necessarily extinguish native title. Accordingly, it may survive over some leasehold land and, in some parts of Australia, indigenous people may currently have physical access to pastoral leases for traditional purposes. In Western Australia, South Australia and the Northern Territory this may be in the exercise of statutory access rights. In other States and Territories, it may be as a result of longstanding practice.

17.3 Subdivision Q permits persons in a native title claim group who had access to claimed areas on non-exclusive leases for traditional activities at 23 December 1996 to continue to access those areas while the claim is being decided. These access rights do not replace any rights the registered claimants may have under the NTA (such as under the right to negotiate provisions and section 211), under reservations in the lease or elsewhere or under heritage and sacred site legislation. The lessee’s rights prevail over the statutory access rights. The lessee and persons within the native title claim group can agree about the manner of exercise of these rights, or to vary them.

Meaning of terms used in the access provisions

17.4 There are three key terms that are used in the access provisions in Subdivision Q. These are ‘native title claim group’, ‘traditional access area’ and ‘traditional activities’.

What is a native title claim group?

17.5 The concept of a native title claim group is added to section 253 of the NTA by Schedule 2 of this Bill (see Chapter 25). The meaning of the term ‘native title claim group’ depends on where the native title claim in question is being considered, as set out in Table 17.1. [Schedule 2, item 95]

What is a traditional access area?

17.6 The traditional access area is that part of any land or waters that meets the following two requirements:

• it is covered by both a non-exclusive agricultural lease or a non-exclusive pastoral lease, and a registered native title claim; and

• at 23 December 1996, one or more members of a native title claim group regularly had physical access to it for the purpose of carrying on one or more traditional activities. [Schedule 1, item 9, paragraph 44A(3)(a)]

17.7 The area can cover all of the land or waters covered by the lease or only part of it.

What is a traditional activity?

17.8 A traditional activity is one of the activities listed below that is carried on for traditional purposes of Aboriginal people or Torres Strait Islanders (this is an exhaustive definition). [Subsection 44A(4)]

When can the traditional rights of access be exercised?

17.9 The Bill sets out when Subdivision Q, which deals with the access rights, will apply. The Bill is drafted in such a way as to give the access rights to particular individuals in a native title claim group. If the Subdivision applies for an individual then he or she can exercise the access rights (these are explained in detail below).

17.10 There are two conditions that have to be met for Subdivision Q to apply, as set out below.

• The person concerned must be a member of the native title claim group for a particular claim. The claim must be entered on the Register of Native Title Claims and must relate, to any extent, to an area that is covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease. [Subsection 44A(2)].

• The person, or one of his or her ancestors, must have regularly had physical access, at 23 December 1996, to the area covered by both the claim and the lease for the purpose of carrying on one or more traditional activities. This area is the ‘traditional access area’ discussed above. [Subsection 44A(3)]

17.11 As noted in the Bill, an entry on the Register of Native Title Claims will be removed when the native title claim is withdrawn or determined. This means the access rights under Subdivision Q will cease when the claim is determined. If it is determined that the claimants have native title in the traditional access area, their determined native title rights and interests would replace the access rights under Subdivision Q (subject to any prevailing rights and interests of the leaseholders or others). If the determination is that the claimants do not hold native title in the traditional access area, all access rights under Subdivision Q would cease.

Persons with access rights do not necessarily hold native title

17.12 The Bill makes it clear that the mere fact that Subdivision Q applies to a person as set out above does not mean that the person actually holds any native title in relation to the traditional access area [Schedule 1, item 9, subsection 44B(5)]. The issue of whether native title is held is a separate question to be determined in accordance with the processes in the NTA for determining native title claims.

The rights granted by Subdivision Q are not native title rights

17.13 Existing section 223 of the NTA defines ‘native title’ and ‘native title rights and interests’. Under subsection 223(3), native title and native title rights and interests include native title rights and interests that have been compulsorily converted into, or replaced by, statutory rights and interests of Aboriginal peoples or Torres Strait Islanders.

17.14 To avoid doubt, the Bill makes it clear that the rights given by Subdivision Q (set out in Table 17.2) are not native title or native title rights and interests in accordance with subsection 223(3) [Schedule 1, item 37 and item 38, subsection 223(3A)]. This is done because the rights given by Subdivision Q are intended to be interim rights pending the outcome of the determination of native title. They are not intended to be native title rights of themselves.

What are the traditional access rights?

17.15 A person who has access rights under Subdivision Q has two kinds of rights, as set out in Table 17.2. [Subsection 44B(1)]

The rights of leaseholders and others prevail over the access rights

17.16 The Bill ensures that the rights of the leaseholder of the non-exclusive agricultural lease or non-exclusive pastoral lease prevail over the rights set out in Table 17.2 [paragraph 44B(2)(a)]. Also, the rights of any other person with non-native title rights and interests in relation to the traditional access area prevail over the rights in Table 17.2 [paragraph 44B(2)(b)].

17.17 The Bill clarifies what this ‘prevalence’ means. The rights set out in Table 17.2, or their exercise, do not prevent the leaseholder or the person with non-native title rights and interests from doing anything in the exercise of their respective rights [subsection 44B(2)]. Thus, for example, if a person has a right to mine in a traditional access area, the access rights of the native title claimants must be exercised in such a way as not to inhibit the activities of the person done in accordance with their mining right. Of course, the person would have to comply with any relevant heritage or sacred site legislation.

Agreements about the exercise of access rights

17.18 The Bill makes it clear that agreements about the exercise of the rights set out in Table 17.2 can be made between one or more members of the native title claim group and the leaseholder and/or person with non-native title rights and interests (such as a miner). [Subsection 44B(3)]

17.19 An agreement can deal with the way in which the rights in Table 17.2 will be exercised or the variation of any of those rights. For example, the native title claim group members may agree to vary the rights so as to restrict their exercise in return for consideration from the leaseholder. Another example, as set out in the Bill, is that the leaseholder and native title claim group members may agree that notification will be required when the members wish to exercise their rights.

17.20 Any of the persons wishing to make an agreement may seek assistance in negotiations from the National Native Title Tribunal (NNTT) or a recognised State/Territory body (if any). [Subsection 44B(4)]

Undetermined native title rights and interests are suspended while one or more persons have the access rights

17.21 A person cannot enforce native title rights, other than those provided for in the NTA, in any of the area covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease in some cases. This is where any one or more members of a native title claim group have the rights set out in Table 17.2 over any part of the lease area. [Schedule 1, item 9, subsection 44C(1)]

17.22 However, proposed subsection 44C(1) is not relevant to those who have been determined to hold native title in accordance with the NTA. They can exercise their determined native title rights and interests. Rather, statutory access rights are interim rights for native title claimants. In relation to these, subsection 44C(1) does not affect the operation of any other provision of the NTA [subsection 44C(2)]. This means, for example, that registered native title claimants can

• make indigenous land use agreements in accordance with Subdivisions B to E of new Division 3 of Part 2;

• get the procedural rights available to registered native title claimants under the NTA.

17.23 Proposed section 44C encourages all potential native title holders to make native title claims where they wish to continue to have traditional access to land. The Bill strengthens the requirements that there should be only one determination of native title for an area. If one group has made a claim, then other groups who claim native title to that area need to become parties to that claim, since the Court will decide all the native title rights in relation to the area and, except in limited circumstances, will not be able to hear other claims at a later time.^[44]

17.24 If one group has the rights set out in Table 17.2 to a traditional access area covering part of a lease area, then other groups should also be claimants in those proceedings. Other indigenous people should not be able to exercise traditional access to any other area covered by the lease unless they have a registered native title claim. This gives certainty to leaseholders by ensuring that they know all those indigenous groups who claim rights in relation to the land, and who are legally able to have access, under the NTA, to the area covered by their lease whilst their claims are being determined.

The access rights given by Subdivision Q do not affect other laws dealing with the same kind of matters

17.25 As set out in point 5 of the Ten Point Plan, the access rights given by Subdivision Q are not intended to override or otherwise affect existing formal arrangements for access to land by indigenous peoples. To this end, the Bill provides that Subdivision Q does not affect the things set out in Table 17.2. [Schedule 1, item 9, subsection 44D(1)]

*Thing that is not* affected by Subdivision Q**	Comments
Any reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders contained in any law of the Commonwealth, a State or a Territory *[Subparagraph 44D(1)(a)(i)]*	An example is a provision in State or Territory legislation (such as section 106 of the Land Act 1933 of Western Australia) allowing Aboriginal people to access certain pastoral land for certain traditional purposes.
Any reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders contained in any place other than a Commonwealth, State or Territory law *[Subparagraph 44D(1)(a)(ii)]*	An example would be a condition in a non-exclusive pastoral lease that required the leaseholder to allow access for Aboriginal people to the area covered by the lease.
The operation of any Commonwealth, State or Territory law that allows for the granting of access rights to Aboriginal peoples or Torres Strait Islanders *[Paragraph 44D(1)(b)]*	An example would be State or Territory legislation allowing Aboriginal people to apply to have access to particular land. Another example would be a provision in State or Territory wildlife protection legislation allowing a Minister to grant a licence to Aboriginal people to collect produce of wildlife (such as emu eggs) for the purpose of making traditional objects.

Laws of general application are not affected by Subdivision Q

17.26 The Bill makes it clear that the rights given by Subdivision Q do not in any way mean that a person is not subject to Commonwealth, State or Territory laws that are of general application [subsection 44D(2)]. For example, a person exercising the rights set out in Table 17.2 is still subject to the general criminal law and the law of negligence when exercising those rights. The exercise of all native title rights will be subject to such laws of general application. This provision is inserted here to ensure that Subdivision Q in particular is not read as being inconsistent with State/Territory laws of general application.

17.27 It should be noted that there is no conflict between proposed subsection 44D(2) and existing section 211 of the NTA^[45]. Section 211 is a provision dealing with a special circumstance and subsection 44D(2) would, accordingly, be read subject to section 211.

Resolution of disputes about the exercise of traditional access rights

17.28 The Bill sets out a number of procedures relating to the resolution of disputes about the rights given by Subdivision Q.

The Federal Court may refuse to exercise its jurisdiction where adequate alternative dispute resolution mechanisms are available

17.29 Existing subsection 213(2) of the NTA gives the Federal Court jurisdiction over any matters arising under the NTA. If Subdivision Q is enacted, this would include resolving disputes arising about, for example, the exercise of the rights set out in Table 17.2.

17.30 The Bill ensures that the Federal Court can refuse to exercise its jurisdiction for such matters where an adequate alternative means of resolving the matter is available (e.g. by mediation in the NNTT or under a dispute resolution mechanism provided in an agreement under subsection 44B(3)) [Schedule 1, item 9, section 44E]. This ensures that parties are not unnecessarily involved in expensive litigation where cheaper more accessible, or more appropriate, dispute resolution mechanisms are available.

The parties may request mediation by the NNTT or a recognised State/Territory body

17.31 A dispute about a right conferred by subsection 44B(1) (set out in Table 17.2) could be resolved by the parties concerned submitting the matter to mediation. The Bill allows the parties to such a dispute to request the NNTT or a recognised State/Territory body to mediate. However, this can only be done if all the parties agree to such a course. [Schedule 1, item 9, section 44F]

17.32 The Senate made 1997 Government amendment (43) which is included in the Bill. This amendment inserts a note at the end of section 44F to confirm that indigenous land use agreements can deal generally with access issues, and that persons may seek the assistance of the National Native Title Tribunal or a recognised State/Territory body in negotiating such an agreement. Such an agreement could deal with a broader range of access issues, beyond the statutory access rights provided for in section 44B.

Other mediation, arbitration and agreements are not excluded by Subdivision Q

17.33 The Bill makes it clear that Subdivision Q does not prevent either of the things set out in Table 17.3. [Schedule 1, item 9, section 44G]

Overview

18.1 Item 9 of Schedule 1 inserts Subdivision P of Division 3 to cover acts which are subject to the ‘right to negotiate’ or other special processes.

18.2 This Chapter provides an overview of the right to negotiate provisions. The following chapters discuss other matters relating to the right to negotiate, as indicated below.

• Chapter 19 sets out the future acts to which the right to negotiate provisions apply.

• Chapter 21 explains the provisions that will allow State or Territory provisions as an alternative to the NTA right to negotiate provisions.

How do the new right to negotiate provisions work?

18.3 Subdivision P sets out certain additional processes that have to be followed before certain future acts passing the freehold test can be valid. New section 25, inserted in Subdivision P by item 9 of Schedule 1, provides a broad overview of how Subdivision P works. The Senate made 1997 Opposition amendment (112) which is included in the Bill. This amendment simplifies section 25, which is the overview of Subdivision P. The change is to replace a phrase listing all the possible parties to right to negotiate matters with the term ‘the parties’.

Future acts covered by the right to negotiate

18.4 Subdivision P deals with those future acts which are subject to the right to negotiate. It also sets out certain exceptions and different procedures for some acts which would otherwise be subject to the right to negotiate under the NTA. It generally applies to future acts covered by the freehold test^[46] that are the grant of some mining interests and some compulsory acquisitions for the benefit of third parties. However, several kinds of future act are excluded from the right to negotiate even if they fall into this category. The main excluded acts are:

• with the approval of the Commonwealth Minister, the creation or variation of certain mining rights allowing some kinds of low impact or small scale mining (this covers exploration, prospecting, fossicking, small scale opal or gem mining and alluvial mining for gold or tin);

• acts to the extent that they relate to a place on the seaward side of the highwater mark.

Right to negotiate processes

18.5 Diagram 18.1 gives a broad overview of the processes under the right to negotiate provisions included in the Bill. These apply once it is determined that a particular future act is covered by the right to negotiate provisions.

18.6 The ministerial or arbitral body determinations are a means by which the right to negotiate processes can be resolved when the negotiation parties cannot reach an agreement. The Bill contains two distinct powers for ministerial determinations. One allows a relevant Minister to make a determination about a future act before the matter is referred to the arbitral body. The other permits the Minister to make a decision after the matter has been referred to the arbitral body, and before the arbitral body makes its decision. This latter power is intended to deal with cases where the arbitral body does not, for whatever reason, make a decision within a reasonable period of time. As under the existing NTA, the Bill continues to allow a relevant Minister to overrule an arbitral body determination in some cases where that is in the national and/or State or Territory interest.

Alternative State or Territory provisions

18.7 Existing section 43 of the NTA gives the Commonwealth Minister a power to approve alternative State or Territory right to negotiate processes which contain similar provisions to those in the NTA. This is maintained in the Bill but the amendments also contain a new power for the Commonwealth Minister to approve substitute State or Territory processes for future acts affecting certain leased or reserved land, so long as a set of minimum requirements are present.

18.8 The minimum requirements, which relate to procedural rights and compensation, depend on the nature of the future act and the kind of area that it affects. They ensure that affected native title holders can have an input into the decision making process and be compensated where appropriate.

What changes are being made to the right to negotiate provisions?

18.9 Subdivision P completely replaces the existing Subdivision B of Division 3 of Part 2 of NTA (sections 26 to 43). Subdivision B is being completely replaced even though many of its provisions are substantially re-enacted in Subdivision P. This is being done to make the amendments as a whole easier to understand. There are a number of application and transitional provisions that are relevant to the changes and these are discussed in Chapter 35.

18.10 The new right to negotiate provisions in Subdivision P implement points 4, 6 and 7 of the 10 Point Plan. The Bill incorporates the amendments to the right to negotiate that were proposed by the Government in 1996 and contains several new elements to take account of the impact of the High Court’s Wik decision, amongst other things.

18.11 The purpose of the amendments to the right to negotiate provisions is to streamline the right to negotiate processes so that unnecessary delays are eliminated while maintaining the protection of the legitimate interests of native title holders and claimants. The paragraphs below outline some background to the main changes.

Projects involving more than one future act

18.12 There is a strong need to ensure that the native title processes are able to operate effectively with State and Territory approvals processes for future acts. To this end, the amendments focus on providing a more flexible approach. Under the amendments, the future act which attracts the right to negotiate may consist of more than one grant of a title, for example, it may encompass all the grants of titles necessary for a particular project to proceed. The right to negotiate processes will only have to be applied once for all acts in the same project.

Timing of notices

18.13 Similarly, increased flexibility is given to the States and Territories to determine at what stage a notice, which is the trigger for commencing the negotiation process, is to be given to any registered native title bodies corporate or claimants and to the relevant representative body for the area. This will eliminate the difficulties with determining when a Government ‘proposes’ to do an act. It will be up to the States and Territories to choose the most appropriate stage at which to commence the right to negotiate for each act. However, the right to negotiate must be completed in order for the act (such as the issue of a mining lease) to be valid.

Exclusion of acts allowing certain low impact and small scale mining activities

18.14 The Bill does not pursue the option of excluding the low impact and small scale mining discussed in paragraph 18.4 from the right to negotiate altogether. This would have been extremely difficult to achieve due to the varied approaches taken by the States and Territories. Rather, the Bill proposes to reconstruct the current power of the Commonwealth Minister, under paragraph 26(3)(b) and subsection 26(4) of the existing NTA, to exclude acts from the right to negotiate. This reconstruction will allow low impact and small scale mining activities to be excluded from the right to negotiate by a determination of the Commonwealth Minister, provided that certain preconditions concerning procedural rights are met.

18.15 This approach is consistent with that in the NTA, but the amendments remove difficulties with the wording of ‘minimal effect on native title’ in the current provision (subsection 26(4)), which has made it unworkable in practice when native title has not been determined. The preconditions are generally intended to ensure that native title holders will be properly notified of the acts and have the opportunity to put their views on a range of matters such as the protection of significant sites, access, and the way in which the activities that are authorised by the act in question are to be carried out. The purpose of these preconditions is to minimise the impact of the act on the exercise of native title rights and interests in the area. Determinations will be disallowable instruments.

Negotiations in good faith

18.16 The requirement to negotiate in good faith is clarified to make it clear that it applies to all parties, but only requires negotiation in good faith about matters related to the effect of the act on the native title interests of the native title parties. This amendment will assist in ensuring that negotiations are focused on the issues between the parties.

Criteria to be considered in making agreements and arbitral body determinations

18.17 The criteria to be taken into account by the arbitral body in making a determination where an agreement cannot be reached between the parties are tightened to reflect better the matters which are likely to be in issue between the parties, and to remove duplication with other State and Territory approval processes. Also, the Bill makes it clear that negotiations between the parties are able to take account of non-native title interests in the area concerned, existing use of the land or waters by non-native title parties and the effect of those interests and any existing use on the exercise of native title rights and interests.

Ministerial determinations

18.18 The relevant Minister will be able to intervene in the negotiation process earlier, under amendments which establish two new powers of intervention.

18.19 There will be a power for the Minister to intervene, in exceptional cases, before the matter is referred to the arbitral body, once 3 months have passed since notice was given. This power will only be exercisable to allow an act to go ahead where the Minister considers that the act is likely to be of substantial economic benefit to Australia (which could be lost if the decision is not made at that time), that there will be significant benefits to native title holders from the act and that it is in the national and/or State or Territory interest for the act to proceed. The Minister can only determine that the act not go ahead if the Minister considers that it is in the national and/or State or Territory interest to make such a determination at that time.

18.20 There will also be a power for the relevant Minister to intervene where the NNTT or other arbitral body has not made a decision within a reasonable time after an application for a future act determination. A condition for the exercise of this power is that the Minister has given the arbitral body written notice requesting it to give priority to making a determination in a particular matter within a specified period. The power to intervene is only exercisable after such a notice has been given, a determination has not been made, the Minister considers that the arbitral body is unlikely to make its determination within a reasonable time and it is in the national interest and/or State or Territory interest to make the determination at that time.

18.21 The amendments set out the conditions relating to the exercise of the Ministers’ new powers of intervention, which include giving all parties an opportunity to provide information to the Minister to be taken into account when a decision is made. State and Territory alternative systems may also contain similar early intervention powers providing they contain similar procedural requirements.

Alternative State or Territory regimes for leased or reserved areas

18.22 The expansion of the circumstances in which the States and Territories may implement alternative provisions for acts affecting leased or reserved areas implements points 6 and 7 of the Ten Point Plan. Generally, the States and Territories will have a right to use their own processes provided they give native title claimants and native title holders the same procedural rights as other parties with an interest in the land (e.g. the holder of a non-exclusive pastoral lease). The States and Territories will also need to ensure that any alternative regime will provide for appropriate compensation to be paid where native title is proved to exist.

Policy considerations

18.23 The Government has been concerned to ensure that its amendments to the NTA are consistent with the principles of the Racial Discrimination Act 1975 (RDA). This is not a legal requirement, but flows from Government policy. The amendments to the right to negotiate are particularly relevant to this policy.

18.24 Some provisions of the NTA provide formal equality to native title holders. The RDA generally requires such formal equality, that is, equal treatment of all groups under law without distinction on the basis of race (see Gerhardy v. Brown (1985) 159 CLR 70). Other provisions of the NTA provide ‘special measures’ within the meaning of the Convention on the Elimination of all Forms of Racial Discrimination and the RDA. Special measures are allowed as an exception to the general principle of formal equality because they are designed to advance the human rights and freedoms of persons, such as Aboriginal people and Torres Strait Islanders, who have been historically disadvantaged groups. The right to negotiate provisions have been generally considered a ‘special measure’. This understanding of the NTA and the right to negotiate provisions appears in the Preamble to the Act, and the Second Reading Speech and Explanatory Memorandum to the Native Title Bill 1993.

18.25 In amending the right to negotiate provisions, the Government is exercising the discretion it has in relation to instituting, maintaining and re-formulating such special measures.

18.26 In the amendments to the procedural rights of native title holders in the right to negotiate (for example in relation to the urgent Ministerial intervention or the power of Ministerial exclusion of ‘approved exploration etc. acts’), care has generally been taken to ensure that native title holders enjoy special rights or rights similar to those enjoyed by non-native title holders (see in particular proposed subsections 26A(5), (6) and (7), proposed subsection 26B(6), (7) and (8) and proposed paragraph 34A(2)(c)).

18.27 Consultations in relation to the proposals contained in these amendments revealed that some parties take a different view of the ‘equality’ standard under the RDA, preferring what is often termed a substantive equality approach. ‘Substantive equality’ allows relevant differences between groups, and their interests, to be taken into account. It allows for laws which appropriately take into account such differences in providing for equality of outcome. In applying this test, it is apparent that the Parliament enjoys a discretion in fashioning appropriate measures to take account of the perceived differences between groups. In these amendments to the right to negotiate, the Government is of the view that appropriate measures for the protection of native title have been maintained.

18.28 It has also been suggested that the amendments amount to an acquisition of property for which ‘just terms’ compensation is required by paragraph 51(xxxi) of the Constitution. The Government does not believe that the adjustment of a statutory right is such an acquisition. Even if it were held to be so, section 53 of the NTA ensures Constitutional validity by ensuring ‘just terms’ compensation.

Reliance on corporations power

18.29 The Bill re-enacts existing section 44 of the NTA. This section provides that Subdivision P of new Division 3 is enacted relying on, in addition to all other relevant Constitutional powers, the Commonwealth’s power to make laws relating to foreign and trading or financial corporations formed within Australia. [Schedule 1, item 9, section 44]

Minor amendments consequential to the new right to negotiate provisions

18.30 There are some minor technical amendments that are consequential on the changes that are being made to the right to negotiate provisions. These are listed below.

• The right to negotiation provisions are in Subdivision B of Division 3 of Part 2 of the existing NTA. This is being changed in the Bill to Subdivision P of Division 3 of Part 2. A cross reference in paragraph 47(3)(c) of the NTA is being amended to reflect this. [Schedule 1, item 12] The Senate made 1997 Government amendment (47) which is included in the Bill. This amendment omits item 27 of Schedule 1 which also purported to amend a cross reference to Subdivision B contained in a note to section 77. Item 27 is unnecessary as section 77 is reproduced in its correct form in Schedule 2, item 19, page 173 (lines 1 to 5).

• The concept of a ‘proposed’ act in paragraphs 47(3)(c) and 52(1)(b) is being removed. These are consequential amendments flowing from the amendment to subsection 26(1) and reflect the refocussing of the right to negotiate on whether procedures have been followed before the act that is done rather than after the act is ‘proposed’ (see paragraph 19.5 in Chapter 19 and paragraph 20.15 in Chapter 20). [Schedule 1, items 11 and 21]

Overview

19.1 The Bill sets out the future acts to which Subdivision P (the right to negotiate provisions) apply. In broad terms, they are future acts that meet certain positive requirements and that do not fall into one or more of the categories of excluded acts. However, future acts are not covered by the right to negotiate provisions to the extent that they affect offshore places or the intertidal zone. [Schedule 1, item 9, section 26].

19.2 Generally, a future act meets the positive conditions if it is done by a government, is covered by the freehold test (see Subdivision M) and is:

• the compulsory acquisition of native title for the benefit of a third party (other than a compulsory acquisition for privately built infrastructure) The Senate made 1998 Opposition amendment (R114), which is included in the Bill. The amendment provides that a compulsory acquisition will be deemed to be for a third party unless it is stated in writing to be for a government purpose; or

19.3 Table 19.1 provides a summary of the categories of future acts that are specifically excluded from the right to negotiate provisions even if they meet the positive conditions.

Certain acts in approved opal or gem mining areas	These are essentially acts allowing small scale opal or gem mining and exploration or prospecting for opals or gems in areas that are determined by the Commonwealth Minister to be approved opal or gem mining areas, after relevant consultation with native title holders. (See paragraph 26(2)(d) and section 26C)
Certain renewals etc. of valid rights to mine	The grant of a right to mine that is valid or has gone through the right to negotiate process will not have to go through the process again when the right is renewed, re-granted or re-made or when its term is extended. [Note: most of these would also be covered by Subdivision I and therefore excluded from the right to negotiate provisions by paragraph 26(2)(a)]. (See paragraph 26(2)(e) and subsection 26D(1))
The creation of mining rights in accordance with agreements or determinations about exploration or prospecting rights	Where there has been an agreement or a determination in relation to the grant of an exploration or prospecting right as a result of the right to negotiate process and that agreement or determination covers conditions about a possible later grant of a mining right, the mining right in question does not need to go through the right to negotiate process again. (See paragraph 26(2)(e) and subsection 26D(2))
Acts relating solely to land or waters wholly within a town or city	(See paragraph 26(2)(f) and section 251C)

Future acts relating to the sea or intertidal zone

19.4 A future act is only covered by Subdivision P to the extent that it relates to a place on the landward side of the mean highwater mark of the sea [subsection 26(3)]. In essence, this means that an act will be subject to the right to negotiate provisions only to the extent that it relates to an onshore place that is not the intertidal zone. These areas are excluded from the right to negotiate because native title holders will not have the equivalent of exclusive possession over them.

Conditions for a future act to be covered by the right to negotiate provisions

19.5 The positive conditions a future act must meet to be covered by the right to negotiate provisions (i.e. Subdivision P) are set out below.

• The act must be done by the Commonwealth, a State or a Territory (called the Government party) [paragraph 26(1)(b)]. Unlike the existing subsection 26(1), there is no longer the concept of the Government party ‘proposing’ to do a future act for the right to negotiate process to be triggered. This provides governments with greater flexibility for the timing of the notice that needs to be given under section 29 (see Chapter 20). However, the future act will not be validly done if the right to negotiate procedures (which include specified time limits) have not been complied with before it is done.

• The act must be a future act to which Subdivision M applies [paragraph 26(1)(a)]. Subdivision M deals with future acts passing the freehold test. This means the act must be one that will be valid under Subdivision M subject to the requirements of Subdivision P. However, acts covered by Subdivision M will only be covered by the right to negotiate provisions if they consist of one of the things set out in Table 19.2 [paragraph 26(1)(c)].

The compulsory acquisition of native title meeting certain requirements [Subparagraph 26(1)(c)(iii)]

The purpose of the acquisition must be to confer, on persons other than the Government party, rights and interests in relation to the land or waters that were affected by the native title. [Sub-subparagraph 26(1)(c)(ii)(A)]

However, if the conferral is for the purpose of providing an infrastructure facility, it is not a compulsory acquisition to which the right to negotiate provisions apply [Sub-subparagraph 26(1)(c)(ii)(B)]. A definition of the term ‘infrastructure facility’ is inserted by the Bill and is discussed in paragraphs 19.7 and 19.8.

This means, in essence, that compulsory acquisitions of native title where the land or waters affected will be held by the Government party are not subject to the right to negotiate provisions. If the acquisition will give rights or interests to private sector parties, it will be subject to the right to

What does ‘mine’ mean?

19.6 To mine is to extract any natural resource for commercial exploitation. Section 253 of the NTA already defines the term ‘mine’ to include exploration or prospecting, extraction of gas or petroleum and quarrying. This definition applies to the derivative terms ‘mining’ and ‘mined’.

What is an infrastructure facility?

19.7 A definition of the term ‘infrastructure facility’ is inserted by the Bill into section 253 of the NTA [Schedule 1, item 57]. The term has its ordinary meaning but also includes a number of listed facilities, as set out in Table 19.3.

19.8 Within its ordinary meaning, an infrastructure facility is a facility (generally a fixture) necessary for the provision of services or to support the development and operation of major developments. The infrastructure can be provided either by a government or the private sector.

Things specifically listed as infrastructure facilities

A road, railway, bridge or other transport facility

A jetty or port

An airport or landing strip

An electricity generation, transmission or distribution facility (e.g. a power station, power lines or a power sub-station)

A storage, distribution, gathering or other transmission facility for oil or gas or derivatives of oil or gas (e.g. a gas pipeline) (The inclusion of ‘gathering’ is intended to cover the case where gas etc. is run between a producing well and a treatment facility.)

A storage or transportation facility for coal, any other mineral or any mineral concentrate (e.g. a pipeline to carry a mineral ore in slurry form from a mine to a port)

A dam, pipeline, channel or other water management distribution or reticulation facility

A cable, antenna, tower or other communication facility

Anything else that is similar to any one or more of the things mentioned above, but only if the Commonwealth Minister determines in writing that it is an infrastructure facility for the purposes of paragraph (i) of the definition of ‘infrastructure facility’. Such a determination is a disallowable instrument [section 214].

Categories of future act excluded from the right to negotiate provisions

19.9 The Bill sets out a number of categories of future act that are specifically excluded from the right to negotiate provisions (i.e. Subdivision P) even if they meet the positive conditions. [Subsection 26(2)]

Future acts that are valid otherwise than under the freehold test are not covered by the right to negotiate provisions

19.10 The right to negotiate provisions will not apply to the future act to the extent that it is valid under any of the provisions set out in Table 19.4 [Paragraph 26(2)(a)]. This ensures that the right to negotiate provisions will not operate where a future act is valid otherwise than because it meets the freehold test in Subdivision M.

Approved exploration etc. acts are not covered by the right to negotiate provisions

19.11 The right to negotiate provisions also do not apply to a future act that is determined in writing by the Commonwealth Minister to be an ‘approved exploration etc. act’ [paragraph 26(2)(b)]. Such a determination is a disallowable instrument [section 214]. Approved exploration etc. acts are, broadly, future acts allowing mining exploration, prospecting or fossicking that are unlikely to have a significant impact on an area and that meet certain requirements relating to consultation with determined native title holders or claimants.

When can the Commonwealth Minister make a determination that a future act is an approved exploration etc. act?

19.12 The Commonwealth Minister can only determine that a future act is an approved exploration etc. act if five conditions are met. However, the Minister may make such a determination for a class of future acts, for instance all exploration licences given under a particular State or Territory law. [Schedule 1, item 9, subsection 26A(1)]. These conditions are set out below.

First condition - the act relates to mining but only allows exploration, prospecting or fossicking

19.13 The act, or those in the class, must be the creation or variation of a right to mine where the right, as created or varied, consists of a right to explore, prospect or fossick [subsection 26A(2)]. This means that an act dealing with any other type of right to mine cannot be determined to be an approved exploration etc. act. The Senate made 1998 Government amendment (38) which is included in the Bill. This amendment to section 26A removes quarrying from the range of activities which can be excluded from the right to negotiate by determinations made by the Commonwealth Minister in relation to approved exploration. By reason of the change made to the definition of ‘mine’ the taking of sand, gravel, rocks and soil from the surface of land will generally not constitute mining, and not therefore attract the right to negotiate provisions at all.

Second condition - the act is unlikely to have a significant impact on the land or waters concerned

19.14 The Commonwealth Minister must consider that the act, or those in the class, are unlikely to have a significant impact on the land or waters that will be affected by the act or acts [subsection 26A(3)]. To remove doubt, the Bill specifically provides that the fact that drilling may be authorised does not prevent the act meeting the condition [subsection 26A(4)].

19.15 Where the Minister’s determination is made for a class of acts, such as the granting of exploration titles under legislation, the second condition may be met, for instance, if exploration licences of the relevant kind impose sufficient limitations on the removal of earth.

Third condition - consideration of views of representative Aboriginal/Torres Strait Islander bodies and the public about determination

19.16 The Minister must have notified any relevant representative Aboriginal/Torres Strait Islander body and the public about the proposed determination, invited submissions from them on the proposed scheme and considered any submissions made in response. The notification must be done in the way determined in accordance with section 252 of the NTA [subsection 26A(5)]. Where the determination relates to a class of acts this requirement only applies to the ministerial determination not each time an individual act is done in accordance with the determination.

Fourth condition - procedural rights of native title holders and claimants and representative Aboriginal/Torres Strait Islander bodies

19.17 The Minister must be satisfied that, if the determination is made, all relevant registered native title bodies corporate, registered native title claimants and representative Aboriginal/Torres Strait Islander bodies will have the procedural rights set out below.

• They must have a right to be notified that the act or each act included in the class is to be done, whether or not others have such a right. [Paragraph 26A(6)(a)].

• They must also have a right to be heard by an independent person or body about whether and how the act is to be done, if this right is available to other persons with an interest in land in that State or Territory in similar circumstances [paragraph 26A(6)(b)]. This is not a right to negotiate and does not give native title holders a veto. Paragraph 26A(6)(b) will ensure that if, for instance, a pastoralist or holder of a freehold title has a right under State legislation to be heard in a Mining Warden’s Court in relation to the grant of an exploration title, then the relevant native title holders, claimants and representative bodies must also have such a right. The fact that in reality there may be no freeholders or pastoralists in the particular area is not relevant to that issue. If, on the other hand, no titleholder has such a right in relation to the grant of the exploration title, then it is not necessary for the native title holders etc. to have such a right.

19.18 Also, for the purpose of minimising the impact of the act on the exercise of native title rights and interests, there must be either:

• a legal right for all relevant registered native title bodies corporate and registered native title claimants to be consulted appropriately, unless they indicate that they do not want to be consulted [subparagraph 26A(6)(c)(i)]; or

• procedures in place so that such persons or bodies will be appropriately consulted [subparagraph 26A(6)(c)(ii)];

• The Senate made 1998 Government amendment (39) which is included in the Bill. This amendment clarifies that protection and avoidance of sites of significance will be one of the matters in relation to which consultation will be required under paragraphs 26A(6)(c) and 26A(7)(a) if approved exploration is removed from the right to negotiate under section 26A.

19.19 These alternatives reflect the variety of jurisdictions from which a determination can be sought. Some jurisdictions may have these arrangements set out in legislation while others may have in place administrative procedures to do the same. In either case, there must be a requirement for such consultation, whether or not others have such a right. Submissions to the Government have indicated that actual or potential native title holders wish to be consulted in relation to access to their land, even where that access will have no significant impact on the land. This requirement recognises the special concerns of native title holders in this regard.

19.20 The Bill also sets out particular matters which the consultations need to cover and which are relevant to the Minister being satisfied there will be consultations with native title holders for the fourth condition to be met [Subsection 26A(7)]. Factors set out in the subsection relate to:

• the identification and protection of areas or sites of significance to native title holders [paragraph 26A(7)(a)];

• access to the land or waters by persons acting in accordance with the mining right and native title holders [paragraph 26A(7)(b)]; and

• the way in which anything that is to be done in accordance with the mining right (and which affects native title) is to be done [paragraph 26A(6)(c)].

Revocation of a determination that an act is an approved exploration etc. act

19.21 The Bill provides for the revocation of a determination that an act or acts are an approved exploration etc. act. In essence, this revocation can occur when the Commonwealth Minister considers that the effects of the act or acts are such that it would no longer meet the conditions for it to be an approved exploration etc. act [subsection 26A(8)]. For example, the Minister might consider that the native title holders no longer have a right or are not being consulted (see subsection 26A(6)). Where the Minister does reach the view required for subsection 26A(8) to operate, the consequences set out in Table 19.5 apply. Such a revocation is a disallowable instrument [section 214].

Approved gold or tin mining acts are not covered by the right to negotiate provisions

19.22 The right to negotiate provisions also do not apply to a future act that is determined in writing by the Commonwealth Minister to be an approved gold or tin mining act [paragraph 26(2)(c)]. Such a determination is a disallowable instrument [section 214]. Approved gold or tin mining acts are, broadly, future acts allowing alluvial mining for gold or tin where land affected by the mining has to be rehabilitated and where certain requirements relating to consultation with determined native title holders or claimants are met. These acts are excluded from the right to negotiate because of the nature of alluvial mining, which involves short time spans for operations and frequent moves.

When can the Commonwealth Minister make a determination that a future act is an approved gold or tin mining act?

19.23 The Commonwealth Minister can only determine that a future act is an approved gold or tin mining act if six conditions are met. Unlike acts to which section 26A can apply, the determination can only be made for a class of future act. The act must be the creation or variation of a right by a State or Territory [Schedule 1, item 9, subsection 26B(1)]. The conditions are set out below.

First condition - State or Territory Minister requests determination

19.24 A State Minister or a Territory Minister must request, in writing, that the Commonwealth Minister make a determination that the class of acts are approved gold or tin mining acts. [Subsection 26B(2)]

Second condition - the act relates to mining for gold or tin in surface alluvium

19.25 The acts in the class must be the creation or variation of a right where the right, as created or varied, consists of a right to mine gold or tin in surface alluvium [subsection 26B(3)]. Surface alluvium can be described as material (e.g. sand, mud or rocks) that has been deposited by the action of water and which is found on the surface of land (including beaches) or lake or river beds.

Third condition - the gold or tin is recovered by a washing or aeration process

19.26 The recovery of the gold or tin from the material that is mined must be done by a washing or aeration process [subsection 26B(4)]. The mining of gold or tin by other means cannot be excluded under section 26B. This means, for example, that mining operations are not covered if the recovery of the gold or tin is by the crushing of ore. The reference to ‘aeration’ was inserted by 1997 Government amendment (35) which was made by the Senate and is included in the Bill.

Fourth condition - the land or waters concerned will be rehabilitated

19.27 The persons given the rights to mine must be required, by or under a State or Territory law, to rehabilitate any land or waters which are affected by the mining and in relation to which native title may exist. The requirement to rehabilitate must be for the purpose of minimising the impact of the mining on the land or waters [subsection 26B(5)].

Fifth condition - consideration of views of representative Aboriginal/Torres Strait Islander bodies and the public about determination

19.28 This condition is the same as that which applies to determinations of approved exploration etc. acts under proposed subsection 26A(5) (refer to paragraph 19.16). [Subsection 26B(6)]

Sixth condition - procedural rights of native title holders and representative Aboriginal/Torres Strait Islander bodies in relation to particular acts

19.29 This condition is essentially the same as that which applies to determinations of approved exploration etc. acts under proposed subsection 26A(6) (refer to paragraphs 19.17 to 19.20). However, the specific matters that the consultations may cover include rehabilitation and anything else, regardless of whether it affects native title, that is to be done in accordance with the mining right. [Subsections 26B(7) and (8)]

Revocation of a determination that an act is an approved gold or tin mining act

19.30 The Bill provides for the revocation of a determination that acts are approved gold or tin mining acts. In essence, this revocation can occur when the Commonwealth Minister considers that the effects of the acts are such that they would no longer meet the conditions for them to be approved gold or tin mining acts [subsection 26B(9)]. Such a revocation is a disallowable instrument [section 214].

19.31 Where the Minister does reach the view required for subsection 26B(9) to operate, he or she must advise the State or Territory Minister in writing that he or she no longer considers the act meets the necessary conditions. At the end of 90 days after giving the advice, the Commonwealth Minister must revoke the determination in writing if the conditions in section 26B are still not satisfied. The 90 day period can be extended by the Commonwealth Minister.

Certain acts relating to approved opal or gem mining areas are not covered by the right to negotiate provisions

19.32 The right to negotiate provisions also do not apply to certain future acts that are done in relation to approved opal and gem mining areas [paragraph 26(2)(d); Schedule 1, item 9, section 26C]. These are essentially acts allowing small scale opal or gem mining and exploration or prospecting for opals and gems in areas that have been determined by the Commonwealth Minister to be approved opal or gem mining areas. These acts are excluded because of the small scale and low impact of the mining concerned.

19.33 The Senate made 1997 Government amendment (36) which is included in the Bill. This amendment enables certain acts that consist of the creation or variation of a right to mine to be excluded from the right to negotiate if the act:

• relates solely to an area wholly within an ‘approved opal or gem mining area’; and

• allows mining only for opals or gems or mining that consists of puddling in respect of opals or gems (‘puddling’ is the washing process by which opals and gems are separated from surrounding clay); and

19.34 1997 Government amendment (36) also inserts a new subsection 26C(1A) that will enable exploration or prospecting for opals or gems in an area no larger than 500 hectares wholly within an ‘approved opal or gem mining area’ to be excluded from the right to negotiate if the conditions set out in that subsection are satisfied.

What is an approved opal or gem mining area?

19.35 An ‘approved opal or gem mining area’ is a specified area of land or waters that the Commonwealth Minister has determined in writing to be an approved opal or gem mining area [subsection 26C(2)]. Such a determination is a disallowable instrument [section 214]. The Minister can only make such a determination if four conditions are satisfied.

19.36 A determination does not prevent the grant of other types of mining rights in the area but such grants would not be exempt from the right to negotiate for this reason alone.

First condition - State or Territory Minister requests determination

19.37 A State Minister or a Territory Minister must request, in writing, that the Commonwealth Minister make a determination for the area concerned. [Subsection 26C(3)]

Second condition - area to be used for small scale opal or gem mining

19.38 The Commonwealth Minister needs to consider that the area concerned will actually be used in the future for small scale opal or gem mining. To this end, he or she must be satisfied that at least some mining rights with certain characteristics will be conferred in the future.

19.39 The Senate made 1997 Government amendment (37) which is included in the Bill. This amendment sets out the second condition in relation to which the Commonwealth Minister must be satisfied before he or she makes a determination that an area is an ‘approved opal or gem mining area’ for the purposes of proposed section 26C. The replacement is necessary as a result of amendments to subsection 26C(1). The amendment requires that in order for the second condition to be satisfied, the Commonwealth Minister must be satisfied that, among other things, in the future at least some rights will be conferred to mine in the proposed ‘approved opal or gem mining area’ that allow:

• mining only for opals or gems (other than mining that consists of exploration, prospecting or puddling) in an area no larger than 5 hectares [subparagraph 26C(4)(c)(i)]; or

• mining that consists of puddling in respect of opals or gems in an area no larger than 5 hectares [subparagraph 26C(4)(c)(ii); or

• mining consisting of exploration or prospecting for opals or gems in an area no larger than 500 hectares [subparagraph 26C(4)(c)(iii)].

The Commonwealth Minister must also be satisfied those rights will be conferred for a period of no longer than 5 years and, if renewable, may not be renewed for more than 5 years each time [paragraphs 26C(4) (d) and (e)].

19.40 In reaching these conclusions, the Minister must have regard to any mining rights previously conferred in the area and any other relevant matter. [Paragraphs 26C(4)(a) and (b)] The other matters may include, for example, information about the use of the land in the past for gem or opal mining, any undertakings given by the State or Territory Minister about how the area will be used in the future and the nature of any State or Territory legislation regulating the issue of rights to mine.

Third condition - consultation by State or Territory Minister with actual or potential native title holders and representative Aboriginal/Torres Strait Islander bodies

19.41 The State or Territory Minister must have notified the public and any relevant registered native title body corporate, registered native title claimant and representative Aboriginal/Torres Strait Islander body about his or her intention to request the Commonwealth Minister to make a determination. [Paragraph 26C(5)(a)]

19.42 The State or Territory Minister must have invited submissions, from those referred to in paragraph 19.39, on the proposed request and considered any submissions made in response. The matters on which submissions can be requested include, but are not limited to, the area covered by the request and the processes for the identification and protection of any areas or sites in the proposed area that are of significance to native title holders in accordance with their traditional laws and customs. [Paragraphs 26C(5)(b) and (c)]

Fourth condition - opal or gem mining currently being carried on

19.43 The Senate made 1997 Government amendment (37A) which is included in the Bill. This amendment to section 26C inserts new subsection 26C(5A). Subsection 26C(5A) contains a fourth condition in relation to which the Commonwealth Minister must be satisfied before he or she makes a determination that an area is an ‘approved opal or gem mining area’ for the purposes of section 26C. This condition requires that the Commonwealth Minister be satisfied that opal or gem mining is currently being carried on in the whole or a substantial part of the proposed ‘approved opal or gem mining area’. The Senate also made 1997 Government amendments (36A) and (37B) which are included in the Bill (see subsections 26C(2) and 26C(6) respectively). These amendments are consequential on 1997 Government amendment (37A). In 1998 the Senate made 1998 Government amendment (40) replacing subsection 26C(5A) with a revised subsection containing the fourth condition that must be satisfied before the Minister determines an area to be an approved opal or gem mining area, for the purposes of that section. An area can be determined an approved opal or gem mining area only where opal or gem mining is currently being carried on in relation or as a substantial part of the area. This amendment ensures that where a determination is expanding an already approved area, the Minister must be satisfied that opal or gem mining is already being carried out in all or a substantial part of the ‘new’ area(paragraph 26C(5A)(b)). This condition will limit the determination of new ‘approved opal or gem mining areas’ to opal or gem fields which are established at the time the determination is made.

Revocation of a determination that an area is an approved opal or gem mining area

19.44 The Bill provides for the revocation of a determination that an area is an approved opal or gem mining area. In essence, this revocation can occur when the Commonwealth Minister considers that the situation is such that the area would no longer meet the conditions for it to be an approved opal or gem mining area [subsection 26C(6)]. Such a revocation is a disallowable instrument [section 214].

19.45 Where the Minister does reach the view required for subsection 26C(6) to operate, he or she must advise the State or Territory Minister in writing that he or she no longer considers the necessary conditions are met. At the end of 90 days after giving the advice, the Commonwealth Minister must revoke the determination in writing if the four conditions in section 26C are still not satisfied. The 90 day period can be extended by the Commonwealth Minister

Renewals etc. of existing rights to mine are not covered by the right to negotiate provisions

19.46 The Bill provides that the grant of a right to mine that is valid or has gone through the right to negotiate process will not have to go through the process again when the right is renewed etc. To this end, a future act that is the creation of a right to mine will not be an act to which the right to negotiate provisions apply if it meets the requirements below.

• The right must be created by the renewal, re-grant, re-making or extension of the term of an earlier right to mine. [Schedule 1, item 9, paragraph 26D(1)(a)]

• The area of land or waters covered by the earlier right to mine must not be extended by the renewal etc. [Paragraph 26D(1)(c)]

• The earlier right to mine must have been either of the things in Table 19.6.

Nature of earlier right	Comments
A right to mine created on or before 23 December 1996 by a valid act. *[Subparagraph 26D(1)(b)(i)]*	This validity can arise because of Division 2 of Part 2 (which validates past acts) or proposed Division 2A of Part 2 (which, if enacted, will validate intermediate period acts).^[47]
A right to mine created by an act to which the right to negotiate provisions applied that was not invalid to any extent because the right to negotiate procedures were followed *[Subparagraph 26D(1)(b)(ii)]*	Proposed section 28 (discussed in Chapter 20) says when an act covered by the right to negotiate provisions will be invalid because the necessary procedures have not been followed. An example would be a mining lease granted after 23 December 1996 that was valid under Subdivision M because it met the freehold test and for which the right to negotiate procedures in Subdivision P were completed. The lease could be renewed, or its term extended, without the right to negotiate procedures having to be met again.

The creation of mining rights in accordance with agreements or determinations about exploration or prospecting rights are not covered by the right to negotiate provisions

19.47 In cases when a future act that is the grant of a right to prospect or explore (called the earlier act) goes through the right to negotiate process, an agreement or determination will arise out of that process. The agreement or determination may contemplate that a subsequent right to mine can be created where certain conditions are met (whether before or after the subsequent right is created). The Bill provides that a future act (called the later act) that is the creation of that subsequent right to mine is not covered by Subdivision P and will not, therefore, have to also go through the right to negotiate process. This will allow a single right to negotiate where the first encompassed all relevant matters relating to the later act. The Senate made 1998 Government amendment (41) which is included in the Bill. This amendment ensures that the exclusion will apply only where the exploration or prospecting tenement was granted after section 26D comes into effect. [Paragraphs 26D(2)(a), (b) and (c)]

19.48 However, the later act will only be excluded from the right to negotiate provisions if the conditions in the agreement or determination that have to be met by non-native title parties before the later act is done are met by those parties [paragraph 26D(2)(d)]. If these conditions are not met, the later act would be covered by Subdivision P and the right to negotiate processes would have to be met. Subsection 26D(2) ensures that ‘conjunctive’ agreements can be negotiated where the parties agree.

Future acts in towns and cities are not covered by the right to negotiate provisions

19.49 A future act that relates solely to land or waters within a town or city is not covered by the right to negotiate provisions [paragraph 26(2)(f)]. An example would be the compulsory acquisition of land within a town or city that is to be granted to a private sector party for the construction of a shopping centre or residential development.

What is a town or city?

19.50 A definition of the term ‘town or city’ is inserted by the Bill [Schedule 1, item 50, section 251C]. The definition looks at whether an area was a town or city on 23 December 1996 (the date of the Wik decision). This means, for example, that any valid compulsory acquisition of native title could still be subject to the right to negotiate processes if it took place after 23 December 1996 in relation to an area that was not part of a town or city at that time but which became part of a town or city afterwards.

19.51 Whether an area is a ‘town or city’ depends on the State or Territory in which the area is located. An area will not be a town or city except as defined in section 251C (i.e. the ordinary meaning of the term is excluded). [Subsection 251C(6)]

General principle

19.52 The general principle is that an area is a ‘town or city’ if the Commonwealth Minister makes a written determination to that effect. However, for this to be done, the Commonwealth Minister must hold the opinion that the area was a town or city on 23 December 1996 [subsection 251C(5)]. A written determination of the Minister under subsection 251C(5) is a disallowable instrument [section 214].

Areas in Western Australia, South Australia and the Northern Territory

19.53 For Western Australia, South Australia and the Northern Territory there are additional areas that are defined as a ‘town or city’, as set out in the Bill [subsections 251C(1), (2) and (3)]. These are areas defined under Crown land, local government or other planning and development legislation of the State or Territory. This approach is similar to that used to define ‘town’ in section 3 of the Aboriginal Land Rights (Northern Territory) Act 1976.

19.54 However, the Commonwealth Minister may make a written determination that an area in Western Australia, South Australia or the Northern Territory is not a town or city even if it is covered by these provisions [subsection 251C(4)]. Such a written determination is a disallowable instrument [section 214]. Subsection 251C(4) will provide a mechanism to ensure that an area is not inappropriately excluded from the right to negotiate.

Overview

20.1 Subdivision P of Division 3 inserted by item 9 of Schedule 1 also includes the processes that have to be followed once it has been determined that a future act is an act to which the right to negotiate provisions (i.e. Subdivision P) apply. This Chapter explains those processes in detail (Chapter 18 provides an overview of them).

20.2 As discussed in Chapter 18, many of the provisions in Subdivision P are re-enacted forms of existing provisions. This Chapter does not give a detailed explanation of the provisions that are re-enacted in the same form as in the existing NTA.

Meaning of important terms used in the provisions dealing with right to negotiate processes

20.3 There are certain important terms used in Subdivision P which are central to the operation of the right to negotiate provisions. The meaning of these terms is set out below.

What is an arbitral body?

20.4 An arbitral body is essentially a body that can arbitrate between parties if an agreement cannot be negotiated about whether a future act can be done. Existing section 27 of the NTA defines an ‘arbitral body’ and this definition is re-enacted by the Bill. In most cases it is the National Native Title Tribunal (NNTT). However, for future acts proposed to be done by a State or Territory, it is any recognised State/Territory body of that State or Territory, if a law of the State or Territory so provides.^[48] [Schedule 1, item 9, section 27]

What is a negotiation party?

20.5 The negotiation parties are those persons who must negotiate about whether a future act subject to the right to negotiate provisions should be done. A definition of ‘negotiation party’ is already in the NTA. The Bill moves the definition into the right to negotiate provisions. A negotiation party is the ‘Government party’, any ‘native title party’ and any ‘grantee party’ [Schedule 1, item 9, section 30A]. The Bill replaces the existing definition in section 253 with a reference to section 30A [Schedule 1, item 58].

What is a Government party?

20.6 As under the existing NTA, the Government party is the government that will do the future act that is covered by the right to negotiate provisions and who has to notify various parties, in accordance with section 29, that the act is to be done. It can be the Commonwealth, a State or a Territory. [Schedule 1, item 9, paragraph 26(1)(b)]

What is a native title party?

20.7 Native title parties are the registered native title claimants and registered native title bodies corporate, who have to be notified (under section 29) by the Government party that a future act covered by the right to negotiate provisions is to be done. Native title parties also include indigenous people who become registered native title holders or claimants within 4 months after the notification by the Government party (or grantee party in the case of a public notice), provided in relation to claimants, that the application containing the claim was filed within three months of notification. The native title parties are set out in Table 20.1.

Native title party	Comments
Any registered native title body corporate for any of the land or waters that will be affected by the future act to which the right to negotiate provisions apply *[Schedule 1, item 9, paragraph 29(2)(a)]*	Note that this does not alter the position under the current NTA. The term ‘registered native title body corporate’ is already defined under existing section 253 of the NTA. It is a body corporate that is registered on the National Native Title Register and that either holds the native title on trust or acts as the agent or representative of the native title holders in relation to particular land or waters.
Any registered native title claimant for any of the land or waters that will be affected by the future act to which the right to negotiate provisions apply *[Subparagraph 29(2)(b)(i))]*	Note that this does not alter the position under the current NTA. There will only be registered native title claimants if there are not registered native title bodies corporate for all of the land or waters affected by the act. *[Subparagraph 29(2)(b)(i))]* The term ‘registered native title claimant’ is already defined under existing section 253 of the NTA. It is a person who has been registered on the Register of Native Title Claims as claiming native title to particular land or waters.

Native title party	Comments
Any person who, within 4 months after the notification day, becomes a registered native title claimant for any of the land or waters that will be affected by the future act to which the right to negotiate provisions apply having made an application within 3 months. *[Schedule 1, item 9, paragraph 30(1)(a)]* This provision, which gives the Registrar of the National Native Title Tribunal one extra month within which to consider the claim for registration purposes, was contained in 1997 Government amendment (39) which was made by the Senate and is included in the Bill. Of course claimants with a claim which is already registered are also parties to the right to negotiate.	Note that this does not alter the position under the current NTA except that the period is extended to 3 months from 2 months. The ‘notification day’ is the day specified in the notice given by the Government party (or public notice given by the grantee party). Under section 29, the Government party must notify certain parties and others before it does a future act to which the right to negotiate applies. This is discussed below.
Any body corporate that, within 3 months after the notification day, becomes a registered native title body corporate for any of the land or waters that will be affected by the future act to which the right to negotiate provisions apply. *[Paragraph 30(1)(b)]* (*1997 Government amendment (39)*, which was made by the Senate and included in the Bill, slightly changed the way in which the 3 month notification period is referred to.	Note that this does not alter the position under the current NTA except that the period is extended to 3 months from 2 months.
Any body corporate that becomes a registered native title body corporate for any of the land or waters that will be affected by the future act to which the right to negotiate provisions apply: • more than 3 months after the notification day; and • because of a native title claim that was entered on the Register of Native Title Claims within that 3 month period. *[Paragraph 30(1)(c)]*	This is new and means that native title holders who had a registered native title claim before the end of the 3 month period will continue to be represented in negotiations if their claim is subsequently successful through a determination of native title.

20.8 A person will no longer be a native title party when they are no longer a registered native title claimant for any of the land or waters that will be affected by the future act to which the right to negotiate provisions apply [subsection 30(2)]. Thus, if the claimant’s native title claim is unsuccessful or is taken off the Register of Native Title Claims, the person will no longer be a negotiation party. However, if the claim is removed because it is successful, the registered native title body corporate for the native title party will represent the native title holders for the purposes of the right to negotiate processes.

20.8a The Senate made 1998 Government amendment (66) which is included in the Bill. This amendment adds subsection 30(3) in the Bill which defines the term ‘registered native title rights and interests’ which is used in sections 31 and 39. The ‘registered native title rights and interests’ of a native title party in a right to negotiate process are those rights and interests which are described in the Register of Native Title Claims (where the native title party is a registered native title claimant) or the rights and interests which are described in the National Native Title Register (where the native title party is a registered native title body corporate). The purpose of this amendment is to ensure that, in the case of registered native title claimants, the parties in a right to negotiate are only obliged to negotiate about those native title rights and interests that the Registrar considered, prima facie, could be established (see 1998 Government amendment (73), subsection 190B(6)). This amendment is linked to 1998 Government amendment (70) to section 186 of the NTA (which deals with the contents of the Register of Native Title Claims) which requires the registration of only those native title rights and interests that satisfy the ‘prima facie’ test in subsection 190B(6) or equivalent provisions applied by a recognised State/Territory body.

20.8b The Senate made 1998 Government amendment (43) which is included in the Bill. This amendment adds subsection 30(4) which deals with replacing a native title party. An applicant may die, or be replaced under proposed section 66B (1998 Government amendment (60)). This amendment makes it clear that any new applicant becomes the native title party for the right to negotiate.

What is a grantee party?

20.9 As under the existing NTA, the ‘grantee party’ is the person at whose request, or upon whose application, the future act to which the right to negotiate provisions apply would be done [paragraph 29(2)(c)]. An example would be a mining company that has applied for a mining lease to be issued to them. A consequential amendment is made to the definition of ‘grantee party’ in section 253 to reflect the renumbering of paragraphs within section 29 [Schedule 1, item 54].

What is a relevant Minister?

20.10 A relevant Minister is the Minister who can make determinations about whether procedures under the right to negotiate provisions should be fast-tracked.

20.11 The Commonwealth Minister will be the ‘relevant Minister’ if the arbitral body for the future act concerned is the NNTT [Schedule 1, item 9, subsection 27A(1)]. However, if the arbitral body for the future act is a recognised State/Territory body, the ‘relevant Minister’ is the State Minister or the Territory Minister of the State or Territory concerned [subsection 27A(2)].

What are project acts?

20.12 Project acts are 2 or more acts that are identified as part of the same project and which will be dealt with together under the right to negotiate provisions. The project act amendments were proposed in 1996. Two or more future acts to which the right to negotiate provisions apply will be project acts if the conditions set out below are satisfied.

• The notice under section 29 given by the Government party (or grantee party in the case of a public notice) must identify a project to be carried on in a specified area of land or waters. [Paragraph 29(9)(a)]

• The 2 or more acts must constitute the project or form part of it. It is irrelevant whether the notice under section 29 separately specifies the area that each of the acts will affect. [Paragraph 29(9)(b)]

• The arbitral body for each of the acts must be the same. [Paragraph 29(9)(c)]

• The notice under section 29 must say that each of the acts are project acts for the purposes of Subdivision P. [Paragraph 29(9)(d)]

20.13 Notwithstanding this, the 2 or more acts will not be project acts if the notice under section 29 states that any one or more of the acts attracts the expedited procedure [subsection 29(10)]. The ‘expedited procedure’, discussed below, is one way in which the right to negotiate process can be fast-tracked.

Notification of parties affected by a future act covered by the right to negotiate provisions

20.14 Existing section 29 of the NTA sets out the notification requirements that have to be met before future acts to which the right to negotiate provisions apply can be done. The Bill re-enacts most of the existing section 29 but also adds a number of matters, including those proposed by the Government in 1996.

20.15 Subject to subsection 29(3), the Government party which will do the future act covered by the right to negotiate provisions must give notice of the act in accordance with section 29 [Schedule 1, item 9, subsection 29(1)]. This item replaces existing subsection 29(1) and was proposed in the 1996 amendments. The replacement requires notice to be given before the act is done, rather than the previous formulation which provided for notice by the Government party of its intention to do the act. Greater flexibility is thereby given to Governments in the timing of section 29 notices.

Who must be notified?

20.16 Table 20.2 sets out the persons to whom a notice by the Government party under section 29 must be given. These are in essence the same parties who must be notified under the existing section 29 of the NTA.

Person who must be notified by the Government party	Comments
Any persons or bodies who are native title parties at the time of notification *[Paragraph 29(2)(a) and subparagraph 29(2)(b)(i)]*	These are the native title parties discussed in the first 2 rows of Table 20.1.
Any representative Aboriginal/Torres Strait Islander body for any of the land or waters that will be affected by the future act to which the right to negotiate provisions apply *[Subparagraph 29(2)(b)(ii))]*	The representative Aboriginal/Torres Strait Islander body will only be a native title party if there are not registered native title bodies corporate for all of the land or waters affected by the act. *[Subparagraph 29(2)(b)(ii))]* The term ‘representative Aboriginal/Torres Strait Islander body’ is already defined under existing section 253 of the NTA. A body is a representative Aboriginal/Torres Strait Islander body for an area if the Commonwealth Minister has made a determination to that effect (see section 202 of the NTA). Note that Schedule 3 of the Bill makes changes to the provisions dealing with representative bodies (see Chapter 33 and 34).
The grantee party *[Paragraph 29(2)(c)]*	The meaning of grantee party is discussed in paragraph 20.9.

There must also be public notification

20.17 The Government party or grantee party must also notify the public that the act is to be done. The notification must be done in the way determined in accordance with section 252 of the NTA. However, public notification is not needed if there are one or more registered native title bodies corporate for all of the land or waters in relation to which the act is to be done. [Subsection 29(3)]

20.18 The public notification requirement gives potential native title holders the opportunity to lodge and have registered a native title claim before the future act covered by the right to negotiation provisions is done. This gives them a 3 month opportunity to become native title parties for the purposes of the right to negotiate procedures (see Table 20.1). However, if registered native title bodies corporate cover the whole area, there will not be any other potential native title holders.

What must be included in or with the notice?

20.19 The Bill adds to section 29 a number of matters that have to be dealt with in notices. These were all proposed by the Government in the 1996 amendments.

A notice must specify a notification day

20.20 The Bill requires a day, known as the notification day, to be specified in the notice (including the notice to the public) [paragraph 29(4)(a)]. This is vital for ascertaining the end of the 3 month notification period for responding to a notice under the section. The Bill also makes it clear that each notice must have the same notification day [subsection 29(5)].

20.21 The Bill provides rules on what the notification day must be. It must be the day by which the Government party thinks the notice will be received by, or come to the attention of, all the persons and bodies listed in Table 20.2 or the public (whichever is relevant). [Subsection 29(6)]

A notice must include a statement that persons have 3 months to take steps to become native title parties

20.22 The notice (including the notice to the public) must also say that persons have until 3 months after the notification day to take certain steps necessary to become native title parties under section 30 [paragraph 29(4)(b)]. Native title parties under section 30 are discussed in the last three rows of Table 20.1.

A notice must be accompanied by prescribed documents and information

20.23 The notice (including the notice to the public) must be accompanied by any documents and include any information prescribed by the regulations [paragraph 29(4)(c)]. The prescribed information will enable the native title parties to properly make decisions about whether their interests are likely to be affected by the act and the possible extent of that effect, and will add to the information available for the purposes of negotiations under Subdivision P.

Statement about expedited procedure

20.24 As under the existing NTA, a notice under section 29 may specify that the Government party thinks the act will attract the expedited procedure. [Subsection 29(7)]

Multiple acts

20.25 The Bill makes it clear that one notice can deal with two or more acts [subsection 29(8)]. Such acts need not be related, however, when they are related the notice may include a statement that the acts are project acts. The meaning of the term ‘project acts’ is discussed in paragraphs 20.12 and 20.13. An act covered by the right to negotiate provisions is invalid unless certain requirements are met before it is done. The Senate made 1998 Government amendment (42) which is included in the Bill. The amendment makes it clear that when a notice is given to the public about a proposed act that is subject to the right to negotiate, each public notice may cover more than one such proposed act. The amendment is intended to assist States and Territories contain the costs of giving public notice about such acts, which can be considerable for those States and Territories having a large volume of such acts. The amendment does not affect the requirement in subsection 29(2) to give notice about each act to registered native title bodies corporate, registered native title claimants and representative bodies.

20.26 The Bill substantially re-enacts existing section 28 of the NTA but now provides that an act subject to the right to negotiate is invalid to the extent it affects native title unless one of a number of requirements are met [Schedule 1, item 9, section 28]. In essence, the right to negotiate processes for a future act can be satisfied in one of four ways under Subdivision P, as follows:

• the absence of any native title party at the end of the 4 month registration period or at a later date, immediately before the act is done. The Senate made 1997 Government amendment (38) which is included in the Bill. This amendment has been included because paragraph 30(1)(a) gives native title claimants an extra month in which to have their claims registered provided that their claim was made within three months of the ‘notification day’;

20.27 Currently, if a permissible future act is rendered invalid under section 28 because of a failure to comply with the right to negotiate provisions, the act is wholly invalid. The Bill amends subsection 28(1) so that if, as a result of failure to follow the right to negotiate processes a future act is invalid, it is only invalid to the extent that native title is affected by that act [subsection 28(1)].^[49] This means that if, for instance, a mining lease is granted without going through the right to negotiate and it is subsequently determined that native title exists over some part of the area covered by the lease, the lease is only invalid in relation to that part of the area.

What are the requirements for the future act to be valid?

20.28 Table 20.3 sets out the requirements, one of which has to be met if a future act covered by the right to negotiate provisions is to be valid. The table also indicates which of the requirements are new.

Requirement	Comments
At the end of 4 months after the notification day, there must be no native title parties for any of the land or waters that will be affected by the act *[Paragraph 28(1)(a)]*	This is an existing requirement except that 4 months is substituted in place of 2 months.
After the end of 4 months after the notification day but immediately before the act is done, there must be no native title party for any of the land or waters that will be affected by the act *[Paragraph 28(1)(b)]*	This is a new requirement that was proposed in the 1996 amendments. This requirement ensures that where a native title party’s application is removed from the Register of Native Title Claims (whether because it has been withdrawn or otherwise) the proposed act may then be done with certainty about its validity without further recourse to the right to negotiate. If, however, there has been a determination or agreement in relation to the act to which the native title claimant had been a party, then the terms of that agreement or determination continue to have effect in relation to the act. The requirement also preserves the right to negotiate of native title claimants who succeed in gaining a determination of native title since the expression ‘native title parties’ includes those who were registered claimants within the notification period and are later determined to hold native title in relation to the land or waters affected by the proposed act (see the last row in Table 20.1).
Subsection 32(2) must allow the act to be done *[Paragraph 28(1)(c)]*	This is an existing requirement. Subsection 32(2) provides that a Government party may do the act if they have said in their section 29 notice that the expedited procedure applies and the native title parties do not object to that under subsection 32(3) within 4 months.
A determination must be made under subsection 32(4) that the act attracts the expedited procedure *[Paragraph 28(1)(d)]*	This is an existing requirement. Subsection 32(4) allows the arbitral body to determine that the expedited procedure applies to the act where one or more of the native title parties objects under subsection 32(3).

A determination must be made under sections 34A, 36A or 38 that the act may be done, or may be done subject to compliance with conditions

[Paragraph 29(1)(g)]

This requirement ensures the validity of acts authorised by determinations by the Minister in relation to early intervention for urgent, significant acts under section 34A, and determinations by the Minister under section 36A when the arbitral body has not made a determination in a reasonable time, or determinations by the arbitral body under section 38.

It has been modified to take account of the new procedures under sections 34A and 36A.

An arbitral body determination that an act cannot be done must have been overturned in accordance with section 42

[Paragraph 29(1)(h)]

This is an existing requirement.

Section 42 allows a relevant Minister to overrule a determination of an arbitral body in some circumstances.

Breach of a Government party’s undertaking to a trustee

20.29 Notwithstanding that the Government has complied with the right to negotiate process, if after informing a trustee who is holding an amount under Subdivision P that the Government is no longer proposing to do the act, the Government does the act, the act is invalid to the extent it affects native title. The Government must go through the right to negotiate process again to ensure validity [subsection 28(2)]. This is substantially a re-enactment of existing subsection 28(2).

Normal negotiation procedure for future acts covered by the right to negotiate provisions

20.30 Existing section 31 of the NTA sets out the normal negotiation procedure that has to be followed by parties where the right to negotiate provisions apply to a future act. This section is substantially re-enacted by the Bill. The Senate made 1998 Government amendment (67) which is included in the Bill. This amendment to section 31 replaces the words ‘determined or claimed’ with ‘registered’ when describing which native title rights and interests of the native title parties are to be considered during negotiations or determinations about the proposed act in the right to negotiate. A similar amendment is also made to section 39 (1998 Government amendments (68) and (69). The amendment reflects 1998 Government amendment (66) and is linked to 1998 Government amendment (70) to section 186 of the NTA, which deals with what is contained on the Register of Native Title Claims. The only other changes are those proposed in the 1996 amendments (discussed below). [Schedule 1, item 9, section 31]

All negotiation parties must negotiate in good faith

20.31 These changes relate to the requirement to negotiate in good faith. The current requirement is that only the Government party must negotiate in good faith. The Bill extends this requirement to all negotiation parties. New subsection 31(2) provides that where any of the negotiation parties refuses or fails to negotiate about matters which are unrelated to the effect of the future act on determined hor claimed native title rights and interests, this will not constitute a failure to negotiate in good faith. This ensures that the negotiations should focus on relevant matters. [Subsection 31(2)]

Things that the negotiations can include

20.32 Existing section 33 of the NTA, which provides that certain things can be considered in negotiations, is re-enacted by the Bill [Schedule 1, item 9, subsection 33(1)]. However, an additional provision has been added to section 33, as proposed in the 1996 amendments.

20.33 This addition provides that, in negotiations under the Subdivision P, matters such as the following may be taken into account:

• the extent of existing non-native title rights and interests in relation to the land or waters concerned and the practical effect of the exercise of those rights and interests on the exercise of any native title rights and interests;

• the existing use of the area by persons other than native title parties and the practical effect of that use on the exercise of any native title rights and interests. [Subsection 33(2)]

Expedited procedure for future acts covered by the right to negotiate provisions

20.34 The expedited procedure provision (section 32) under the existing NTA is re-enacted with some changes [Schedule 1, item 9, section 32]. In essence the expedited procedure allows future acts covered by the right to negotiate provisions to be done without negotiations taking place if native title parties do not object, are unsuccessful in their objections or withdraw their objections.

20.35 The Senate made 1997 Government amendment (40) which is included in the Bill. This amendment has been included because it is consequential upon the change providing that native title parties to a right to negotiate are claimants who:

• make a claim before 3 months from the ‘notification day’ in relation to the right to negotiate; and

The normal negotiation procedures apply where the expedited procedure is determined not to apply

20.36 Existing subsection 32(5) is replaced by a new subsection (5) which ensures that the normal right to negotiate processes under section 31, including the requirement to negotiate in good faith, will apply where the arbitral body determines that the future act does not attract the expedited procedure. This change was proposed in the 1996 amendments. [Subsection 32(5)]

Native title parties can withdraw objections against the expedited procedure

20.37 Another change in the Bill will allow native title parties to withdraw any objections they have made against the expedited procedure applying. If all such objections are withdrawn, the Government party may validly do the act. [Subsection 32(6)]

The Government party can withdraw its statement that the expedited procedure applies

20.38 The Bill also makes a change by allowing the Government party to withdraw the statement in its section 29 notice that the expedited procedure applies to the act in question. The Government party must give notice to the negotiation parties if this is to be done. Where the statement is withdrawn in this way, the normal negotiation procedure under subsection 31(1) of the NTA applies. This allows the parties to go straight to the normal negotiation procedure without the need for:

• a hearing by the arbitral body on the issue of whether the expedited procedure did in fact apply; or

When an act attracts the expedited procedure

20.39 Existing section 237 sets out the circumstances when an act attracts the expedited procedure. If native title parties object to the expedited procedure for a particular future act, the arbitral body must determine whether the act meets the requirements set out in section 237. Some changes are being made to section 237 as set out below (these were proposed in the 1996 amendments).

• The first change addresses a Federal Court decision (Ward v. Western Australia (1996) 136 ALR 557) and provides that an act will only attract the expedited procedure in section 32 if it is not likely to (rather than ‘does not’) interfere directly with the physical aspects of community life. If there is evidence that the act will interfere with native title claimants’ physical ability to enjoy their native title rights, for example placing an impediment to hunting, fishing or gathering or the ability to conduct religious ceremonies, the expedited procedure will not apply. [Schedule 1, item 42]

• The other changes confirm that, because it is not possible for the arbitral body to know the actual effect of a future act in deciding whether it attracts the expedited procedure, the arbitral body must undertake a predictive assessment, and look at what is likely to occur. [Schedule 1, items 43 and 44]

Agreements have no effect where various ministerial or arbitral body determinations are made

20.40 The current right to negotiate provisions envisage two outcomes to the right to negotiate procedures: either an agreement between the negotiation parties or a determination by the arbitral body. Existing section 34 of the NTA ensures that whichever outcome is arrived at first takes effect. Thus a negotiated agreement under section 31 between negotiation parties will not have any effect where a determination has been made by an arbitral body under section 38.

20.41 The re-enacted section 34 maintains this provision but two additions are being made. These will ensure a ministerial determination under proposed sections 34A or 36A is effective, instead of an agreement, where the determination is made first. [Schedule 1, item 9, section 34]

Arbitral body determinations for future acts covered by the right to negotiate provisions

20.42 The Bill substantially re-enacts the existing provisions that deal with arbitral body determinations about future acts that are covered by the right to negotiate provisions.

Applications for an arbitral body determination

20.43 Existing section 35 of the NTA sets the circumstances when a negotiation party may apply to an arbitral body for a determination that a future act can, or cannot, be done. The Bill makes a number of changes through the re-enacted section 35, some of which were proposed in the 1996 amendments. [Schedule 1, item 9, section 35]

When can an application for an arbitral body determination be made?

20.44 The new procedures for making applications provide that a negotiation party may apply to the arbitral body for a determination under section 38 if all of the following apply:

• at least six months have passed since the notice under section 29 was given [paragraph 35(1)(a)]. (The Senate made 1997 Government amendment (42) which is included in the Bill. This amendment to paragraph 35(1)(a) gives negotiation parties 6 months to negotiate before one of the parties can apply for a determination); and

• no previous agreement about the act has been made under the right to negotiate provisions (this is an agreement negotiated under the normal negotiation procedures set out in section 31) [paragraph 35(1)(b)]; and

• there has been no determination by the relevant Minister about the act under section 34A (which allows a ministerial determination for urgent and significant future acts) [paragraph 35(1)(c)].

20.45 The six month minimum period will apply to negotiations in relation to all future acts that are subject to the right to negotiate process. (An application for an arbitral body determination under section 35 can be withdrawn.)

20.46 The Bill will also make another change to section 35 so that applications for arbitral body determinations can be withdrawn. The application can only be withdrawn before the arbitral body has made a determination under section 38 and before any ministerial determination under sections 34A or 36A has been made. [Subsection 35(2)]

Timing of the arbitral body determination

20.47 Existing section 36 of the NTA sets down rules for the timing of arbitral body determinations. The general rule is that such determinations must be made as soon as practicable. The Bill re-enacts section 36 with a number of additions, as set out below. [Schedule 1, item 9, section 36]

The arbitral body can make the determination even if the non-applicant parties did not negotiate in good faith

20.48 The arbitral body is obliged to make a determination, even if negotiation parties have not negotiated in good faith. This does not apply where the party applying for the determination has not negotiated in good faith. This ensures that parties cannot ‘sit on their hands’ for the 4 months waiting to apply to the arbitral body. [Subsection 36(2)]

The NNTT must report to the Commonwealth Minister where a determination is delayed

20.49 A special rule is included for cases where the arbitral body is the NNTT and a determination is not made within four months after an application for one has been made. In this case, the NNTT is required, as soon as practicable after that time, to give written advice to the Commonwealth Minister on the reasons for the delay and include an estimate of when the determination is likely to be made. This is a modified version of a provision in the existing section 36. [Subsection 36(3)]

The relevant Minister may request an arbitral body to make a determination within a specified period

20.50 Another special rule is included to deal with cases where there is some urgency about the making of a determination. The relevant Minister will be allowed to give a written notice to the arbitral body requesting that it make its determination within the period specified in the notice. The specified period must extend beyond the 4 month period within which the arbitral body should make a determination as provided for in section 36. If the determination is not made within the specified period, the relevant Minister may be able to make a ministerial determination about the future act under section 36A (see paragraphs 20.76 to 20.83).

20.51 Such a notice may be given at any time after a party to the right to negotiate procedure has asked the arbitral body to make a determination under section 35, but not after there has been an agreement between the parties or a determination by the arbitral body about the act. [Subsection 36(4)]

An arbitral body determination cannot be made if there is an agreement or a ministerial determination

20.52 The Bill re-enacts section 37 which is of similar effect to the existing section 37 of the NTA but which ensures that an arbitral body cannot make a determination about an act if either an agreement or a ministerial determination in relation to the same act has already been made. Together with section 34 and subsections 34A(2) and 36A(1), this section ensures that whichever of a determination or an agreement about a future act occurs first, prevents a later outcome made about the same act being effective. [Schedule 1, item 9, section 37]

What kinds of determination can be made by an arbitral body?

20.53 Existing section 38 of the NTA sets out the kinds of determinations that can be made by an arbitral body. The Bill re-enacts section 38 in the same form [Schedule 1, item 9, section 38]. Broadly, the determinations can be that the future act covered by the right to negotiate provisions not be done or that it can be done (including subject to conditions). Also there are provisions to ensure that conditions cannot be made about certain types of payments to the native title parties.

What criteria must the arbitral body consider in making a determination?

20.54 Existing section 39 of the NTA sets out the criteria that must be considered by an arbitral body in making a determination about a future act. The criteria mainly relate to the affect the act would have on native title and the interests of the native title parties and the public interest in doing the act. The Bill re-enacts section 39 with a number of changes [Schedule 1, item 9, section 39]. The changes that are significant are set out below. These changes were proposed in the 1996 amendments. The Senate made 1998 Government amendments (68) and (69, which are included in the Bill. These amendments to section 39 replace the words ‘determined or claimed’ with ‘registered’ when describing which native title rights and interests of the native title parties are to be considered during negotiations or determinations about the proposed act in the right to negotiate. These amendments reflect 1998 Government amendment (66) and are linked to 1998 Government amendment (70) to section 186 of the NTA, which deals with what is contained on the Register of Native Title Claims.

Effect of the act on enjoyment of determined or claimed native title

20.55 The Bill removes any implication that the arbitral body is required to make a finding in relation to the existence of native title rights and interests in a right to negotiate determination. The Bill makes it clear that the arbitral body is required to assess the effect of the proposed act on the enjoyment by native title parties of their determined or claimed native title rights and interests rather than any native title that may exist. [Subparagraph 39(1)(a)(i)]

Effect of the act on natural environment no longer a listed consideration

20.56 The re-enacted section 39 does not include the criteria which required the arbitral body to consider environmental matters in relation to the future act. Such assessments are more properly made in State and Territory environmental processes undertaken prior to the grant of a right, such as a mining lease.

20.57 If there are particular environmental concerns which may need to be taken into account because of the particular effect on native title, the arbitral body retains the ability to consider them under paragraph 39(1)(f).

The detriment on persons other than native title parties if the act is not done

20.58 The Bill requires the arbitral body to take into account any economic or other detriment to any person, other than a native title party, if the act is not done. [Paragraph 39(1)(d)]

Consideration of existing non-native title rights and interests in, and uses of, the land or waters

20.59 The re-enacted section 39 provides that the arbitral body is required to take into account certain things in assessing the effect of the act on any of the matters in paragraph 39(1)(a) (which deals with the effect of the act on native title and the social and cultural interests of native title parties). The things are the nature and extent of existing rights and interests in relation to the land or waters which are not native title rights and interests as well as existing use of the land or waters by persons other than native title parties. This is intended to provide a more balanced context for the arbitral body in making its decision. [Subsection 39(2)]

Agreement on any matters to be considered

20.60 The re-enacted section 39 requires the arbitral body, in making its determination, to take account of any agreement reached by the parties on particular issues during the negotiating stage. However, this agreement can only be considered with the consent of all the negotiation parties. If there is any such agreement the arbitral body need not take into account or separately inquire into the matters that it would normally need to consider to the extent that the agreement covers such matters. [Subsection 39(4)]

Issues previously decided cannot be reopened

20.61 The Bill essentially re-enacts existing section 40 of the NTA [Schedule 1, item 9, section 40]. This section provides that a previously decided issue relating to the grant of a right to mine cannot be renegotiated in certain cases without the leave of the arbitral body.

What is the effect of an arbitral body determination or an agreement?

20.62 Existing section 41 of the NTA sets out the effect of an arbitral body determination or an agreement made in accordance with the right to negotiate provisions. Broadly the negotiation parties and all members of an affected native title claim group are bound by any conditions in such a determination or agreement as if it were a contract between them. The Bill re-enacts section 41 but makes some changes [Schedule 1, item 9, section 41].

20.63 The change that is significant was proposed in the 1996 amendments and relates to the situation where a condition of a determination by an arbitral body is that an amount be held on trust [subsection 41(3)]. There are two types of conditions that an arbitral body may impose or make in relation to payment of moneys, as follows.

• A trust condition, that is a condition that an amount be held in trust. This is not an actual determination of compensation; rather it may be an estimate of compensation that may be payable. Such an amount must be determined by the arbitral body and held in trust until dealt with in accordance with section 52 of the NTA.

• Other conditions with regard to amounts payable, but which do not relate to compensation.

20.64 If the NNTT is the arbitral body, it cannot determine actual compensation. It can make a trust condition in which case the amount will be dealt with in accordance with section 52. Otherwise compensation is as agreed or as determined by the Federal Court on application under sections 50 and 61. If the NNTT is not the arbitral body, it is possible that the recognised State/Territory body may under State/Territory law be able to determine compensation.

Ministerial determinations for future acts covered by the right to negotiate provisions

20.65 The Bill will include two new provisions that allow a relevant Minister to make a determination about a future act to which the right to negotiate provisions apply. These were both proposed in the 1996 amendments.

20.66 The meaning of the term ‘relevant Minister’ is discussed in paragraphs 20.10 and 20.11. It can be either the Commonwealth Minister or a State or Territory Minister, depending on whether the arbitral body is the NNTT or a recognised State/Territory body.

Tabling of a ministerial determination in Parliament

20.67 The Bill provides for the tabling in Parliament of ministerial determinations under sections 34A and 36A. Both the determination, and a statement of reasons, must be tabled within 15 sitting days by the relevant Minister in the House or both Houses of Parliament of the jurisdiction concerned. [Schedule 1, item 9, subsection 36C(7)]

20.68 The public accountability of the relevant Minister will help to ensure that determinations are made only where the particular circumstances justify an early intervention in of the right to negotiate procedures. However, a ministerial determination under sections 34A and 36A is not a disallowable instrument.

Ministerial determination in cases of urgent and significant future acts

20.69 The first kind of ministerial determination can be made where the relevant Minister considers that there is a proposed future act of significance that is subject to the right to negotiate and the processes need to be resolved urgently to allow the act to proceed, or to create certainty where it is not appropriate that the act be done. [Schedule 1, item 9, section 34A]

20.70 There are various requirements that must be met before a relevant Minister can make a determination under section 34A. These requirements, explained below, relate to the time when the determination can be made, consultation with relevant parties, whether the right to negotiate has been satisfied by other processes and various matters about which the Minister must be satisfied.

The 4 month registration period must have elapsed

20.71 The Minister must not make a determination under section 34A until the period during which a claim can be registered in response to the section 29 notice (4 months) has expired. It is only at this time that it is possible to ascertain the parties to that particular right to negotiate process [subsection 34A(1)]. The Senate made 1997 Government amendment (41) which is included in the Bill to reflect the timeframes mentioned in paragraph 30(1)(a).

Consultation processes must be undertaken

20.72 The relevant Minister must comply with the requirements set out in section 36B. These requirements relate to giving notice to the arbitral body and negotiation parties to provide material and make submissions and are explained in paragraphs 20.84 to 20.92. [Subsection 34A(1)]

The right to negotiate must not have been dealt with by other means etc.

20.73 The Minister cannot make a determination if the things set out in Table 20.4 exist.

Thing that cannot exist if a determination under section 34A is to be made for an act	Comments
A previous agreement about the act under the right to negotiate provisions *[Paragraph 34A(2)(a)]*	This is an agreement negotiated under the normal negotiation procedures set out in section 31.
A previous determination under section 36A or 38 has been made about the act *[Paragraph 34A(2)(b)]*	Section 36A allows a relevant Minister to make a determination about a future act subject to the right to negotiate provisions where an arbitral body determination is taking too long. Section 38 allows an arbitral body to make a determination.
The native title holders do not have, under subsection 24MD(6), procedural rights that ordinary title holders would have in relation to the act. *[Paragraph 34A(2)(c)]*	This ensures that the native title holders cannot be disadvantaged in comparison with other landholders. Subsection 24MD(6) ensures that native title holders have the same procedural rights in relation to onshore future acts as they would have if they instead held ordinary title in the land concerned. These procedural rights do not usually apply to acts covered by the right to negotiate provisions, but given that the right to negotiate provisions will be curtailed by the ministerial intervention, other procedural rights for native title holders are required.

The relevant Minister must have formed certain opinions

20.74 The relevant Minister must have formed an opinion about various specified matters if he or she is to make a determination under section 34A. The matters depend on whether the determination is that the future act may, or may not, be done. Table 20.5 sets out these matters. However, the fact that these matters are specified in the legislation does not prevent the relevant Minister from having regard to other matters in reaching is or her decision about a determination [subsection 34A(5)].

20.75 If the determination is that the act may be done, the relevant Minister can make the doing of the act subject to conditions.

Matters where the determination is that the future act can be done (whether or not subject to conditions)

Matters where the determination is that the future cannot can be done

The relevant Minister must consider that:

• the act is likely to be of ‘substantial economic benefit to Australia’; and

• the economic benefit will be substantially reduced or will not arise if the Minister does not make a determination at that time; and

• if the act is done, or done subject to conditions, there will be significant benefits to relevant native title holders; and

• it is in the national interest and/or in the State/Territory interest to make a determination at that time, depending on the identity of the relevant Minister (a determination by a State or Territory Minister must be in the interests of the State or Territory and a determination by the Commonwealth Minister must be both in the national interest and, when the act is attributable to a State or Territory, must also be in the interests of that State or Territory).

[Subsection 34A(3)]

The relevant Minister must consider that it is in the national interest and/or in the State/Territory interest to make a determination at that time, depending on the identity of the relevant Minister (a determination by a State or Territory Minister must be in the interests of the State or Territory and a determination by the Commonwealth Minister must be both in the national interest and, when the act is attributable to a State or Territory, must also be in the interests of that State or Territory).

[Subsection 34A(4)]

20.76 A State or Territory Minister may only make a determination under section 34A when that State or Territory has a recognised State/Territory body as an arbitral body (see the explanation of the term ‘relevant Minister’ in paragraphs 20.10 and 20.11). Until that time, only the Commonwealth Minister can make any such determination. If the State or Territory has established an alternative regime which has been approved under section 43, a power of intervention can be included provided that it is of a similar nature to section 34A (see Chapter 21).

Ministerial determination in cases where an arbitral body determination is delayed

20.77 The second kind of ministerial determination will enable the Minister to make a determination about a future act where the arbitral body has not made a determination after having been given notice of the need to do so within a set time period. [Schedule 1, item 9, section 36A]

20.78 There may be a significant gap in time between the application by a party for an arbitral body determination about a future act under section 35 and the making of a determination by the arbitral body. The arbitral body may fail to make a determination within a reasonable period and a stalemate could result, because without a determination or agreement the future act cannot be done. The Minister, were this situation to arise under the current NTA, has no power to intervene. Under section 42 the Minister’s power is only to override a determination and not to make the determination if, for some reason, the arbitral body fails to do so or fails to do so within a reasonable period.

20.79 There are various requirements that must be met before a relevant Minister can make a determination under section 36A. These requirements, explained below, relate to whether the arbitral body has made a determination within the required time frame, whether there has been consultation with relevant parties, whether procedural rights have been accorded by other processes and various other matters about which the Minister must be satisfied.

The arbitral body must not have made a determination within the time specified in the relevant Minister’s notice

20.80 As discussed in paragraphs 20.49 and 20.50, the relevant Minister may give an arbitral body a notice under subsection 36(4) requesting it to make a determination about a future act within a specified period. The relevant Minister can only make a determination under section 36A if the arbitral body has not made its determination within that specified time. [Paragraph 36A(1)(a)]

The right to negotiate must not have been dealt with by other means etc.

20.81 The relevant Minister also cannot make a determination if either of the circumstances set out in Table 20.6 exist.

Consultation processes must be undertaken

20.82 The relevant Minister must comply with the requirements set out in section 36B. These requirements relate to giving notice to the arbitral body and negotiation parties to provide material and make submissions and are explained in paragraphs 20.84 to 20.92. [Paragraph 36A(1)(d)]

The relevant Minister must have formed certain opinions

20.83 The relevant Minister must have formed an opinion about the specified matters set out below if he or she is to make a determination under section 36A. However, the fact that these matters are specified in the legislation does not prevent the relevant Minister from having regard to other matters in reaching is or her decision about a determination [subsection 36A(3)].

• The Minister must consider that the arbitral body is unlikely to make its determination within a reasonable period. In reaching this opinion, the Minister can have regard to all relevant circumstances (e.g. any statements by officers of the arbitral body about when a determination could be made). [Paragraph 36A(2)(a)]

• A determination by a State or Territory Minister must be in the interests of the State or Territory and a determination by the Commonwealth Minister must be both in the national interest and, when the act is attributable to a State or Territory, must also be in the interests of that State or Territory. [Paragraphs 36A(2)(b) and (c)]

20.84 As with ministerial determinations under section 34A, a State or Territory Minister may only make a determination under section 36A when that State or Territory has a recognised State/Territory body as an arbitral body approved under section 251 of the NTA (see the explanation of ‘relevant Minister’ in paragraphs 20.10 and 20.11). Until that time, for acts relating to a State or Territory where a determination under section 36A is desired, the Commonwealth Minister must make any such determination. If the State or Territory has established an alternative regime which has been approved under section 43, a power of intervention can be included provided that it is of a similar nature to section 36A (see Chapter 21).

Consultation before ministerial determinations are made

20.85 The Bill sets out the notification and consultation process the relevant Minister must follow before making a determination under sections 34A or 36A [Schedule 1, item 9, section 36B]. The Minister must undertake these consultation processes before making such a determination.

Written notice of a proposed determination needs to be given to the arbitral body

When must a notice be given to the arbitral body?

20.86 The relevant Minister must, in certain circumstances, give a written notice to the arbitral body for the future act about which a determination is proposed. The notice must be given in all cases where a determination under section 36A is proposed [paragraph 36B(2)(b)]. However, for a proposed determination under section 34A, the notice only needs to be given if a negotiation party has made an application under section 35 for an arbitral body determination [paragraph 36B(2)(a)].

What must the notice be about?

20.87 The written notice to the arbitral body must request it to give the Minister, and each negotiation party, a summary of all material about the future act presented to the arbitral body. The summary needs to be given by the day specified in the notice. The material concerned is all of the material given to the arbitral body in the course of it considering whether to make a determination under section 38. [Subsection 36B(2)]

Written notice of a proposed determination needs to be given to the negotiation parties

20.88 The relevant Minister must also give each negotiation party a written notice that he or she is considering making a determination. The notice must state that:

• each negotiation party may give the Minister a submission or other material on the matter by the day specified in the notice [paragraph 36B(3)(a)]; and

• the negotiation party is required to give copies to each other negotiation party if such a submission or other material is given to the Minister [paragraph 36B(3)(b)]; and

• within seven days of the specified day, the negotiation party may then provide the Minister with any further submission or other material, in response to submissions of other negotiation parties or the arbitral body, which they would like the Minister to take into account [paragraph 36B(3)(c)].

The specified day needs to be the same for each notice

20.89 The specified day in every notice given by the relevant Minister to the arbitral body and all negotiation parties must be the same. This will ensure that all those with an interest will be working within the same timeframes. [Subsection 36B(4)]

What must the specified day be?

20.90 The day specified in the notice must be the day by which the relevant Minister thinks the notice will be received by, or come to the attention of, all the persons notified. [Subsection 36B(4)]

Giving notices is enough to meet natural justice requirements

20.91 The Bill makes it clear that there is no additional requirement for any person to be given a further hearing before the Minister makes the determination if the relevant Minister complies with the obligations to give notice to parties and to receive submissions in accordance the contents of those notices. [Subsection 36B(5)]

The relevant Minister must consider the submissions and material provided in response to notices

20.92 The Bill provides that the Minister must take into account any report given by the arbitral body, and any submissions and other material provided by the negotiation parties, within the time limits set by his or her notices to them. However, the relevant Minister need only consider the submission and material of a negotiation party if there has been compliance by that party with the obligation to provide other parties with copies of submissions etc. The Minister is also given a discretion to take into account any other matter or thing if he or she so chooses. [Subsection 36B(6)]

The relevant Minister can make a determination even if no submissions etc. have been given

20.93 The Bill ensures that the Minister’s power to make the determination is not limited by the fact that submissions or other material have not been received from the negotiation parties within the time limits set out in his or her notices to them. [Subsection 36B(7)]

Rules about the making of ministerial determinations

The relevant Minister does not have to make a determination under sections 34A or 36A

20.94 The relevant Minister is under no duty in any circumstances to make a determination under section 34A or section 36A even where he or she has given notice, received submissions or been requested by a negotiation party to make such a determination [Schedule 1, item 9, subsection 36C(2)]. This accounts for the fact that the Minister may not consider it appropriate to make a determination after considering all relevant matters and may decide instead that other right to negotiate processes should take their course.

The relevant Minister must make a determination personally

20.95 The Bill ensures that a determination under sections 34A or 36A must be made by the relevant Minister personally - it may not be delegated [subsection 36C(3)]. Because intervention through a ministerial determination displaces the normal procedures set out in the NTA, it is appropriate that the Minister make the decision personally.

What kinds of ministerial determination can be made?

20.96 The Bill sets out the kinds of determinations which may be made by the relevant Minister under sections 34A and 36A. These are the same kinds of determination that can be made by an arbitral body. The determination can be that the future act in question cannot be done, or that it can be done, or that it can be done subject to conditions. [Subsection 36C(4)]

Fulfilment of a condition that an amount be paid and held in trust

20.97 The Bill sets out a rule for conditions about payments that are to be held on trust. This rule will apply where there is a condition in a ministerial determination that an amount is to be paid and held in trust. To this end, the Bill includes a provision that applies in the same way as subsection 41(3) applies to arbitral body determinations (see the discussion of that provision in paragraphs 20.62 and 20.63). [Subsection 36C(5)]

Conditions in a ministerial determination have contractual effect if the future act is done

20.98 The Bill provides that any conditions imposed in a ministerial determination under sections 34A and 36A have the effect of a contract between the negotiation parties, but only where the future act that is the subject of the determination is actually done. [Subsection 36C(6)]

20.99 For the purposes of subsection 36C(6) only, all members of a native title claim group (see paragraph 20.99) are deemed to be negotiation parties where there is a registered native title claimant who is a negotiation party [subsection 36C(6)]. In this way the contractual conditions bind the native title claim group. This will prevent uncertainty from arising about whether conditions benefit and bind all native title holders included in the claim. This is to the same effect as the existing conditions in the NTA for enforcing arbitral body determinations (see subsection 41(2)).

What is a native title claim group?

20.100 The concept of a native title claim group is added to section 253 of the NTA by Schedule 2 of this Bill (see Chapter 25). The meaning of the term ‘native title claim group’ depends on where the native title claim in question is being considered, as set out in Table 20.7. [Schedule 2, item 95]

Copies of ministerial and arbitral body determinations and agreements

20.101 The Bill inserts a new provision into the NTA to deal with the giving of copies of determinations and agreements to relevant persons [Schedule 1, item 9, section 41A]. This change was also proposed in the 1996 amendments and will ensure that all relevant parties can be made aware of decisions affecting them.

Agreements made by negotiation parties

20.102 A copy of an agreement negotiated between the negotiation parties must be given, by those parties, to the arbitral body for the future act concerned. The parties must also give written advice to the relevant Minister that such an agreement has been made. [Subsection 41A(1)]

Ministerial determinations

20.103 Copies of a determination made by a relevant Minister under sections 34A or 36A must be given by the Minister to the negotiation parties and the arbitral body for the future act concerned. [Subsection 41A(2)]

Arbitral body determinations

20.104 Copies of an arbitral body determination under section 38 must be given to the negotiation parties and the relevant Minister. [Subsection 41A(3)]

Overruling of arbitral body determinations by a minister

20.105 Existing section 42 of the NTA allows a Commonwealth, State or Territory Minister to overrule, in certain circumstances, a determination made by an arbitral body under section 38. Broadly this can be done where it is in the national and/or State or Territory interest. A Minister’s declaration overruling a determination can set down conditions to be complied with by the negotiation parties. The Bill re-enacts section 42 in substantially the same form but makes some changes [Schedule 1, item 9, section 42].

20.106 The change that is significant was proposed in the 1996 amendments and relates to the situation where a condition of a determination by an arbitral body is that an amount be held on trust. This change, like that to section 41, is being made so that the NTA distinguishes clearly between compensation payable under legislation and amounts that are payable through the right to negotiate processes. To this end, the Bill inserts a provision (to replace existing subsections 42(5) and (6)) that applies in the same way as subsection 41(3) applies to arbitral body determinations (see the discussion of that provision at paragraphs 20.62 and 20.63). [Subsection 42(5)]

20.107 Another change to section 42 provides that the Commonwealth Minister cannot overrule a determination by the NNTT that the expedited procedure applies, notwithstanding an objection by native title parties. [Subsection 42(2)]

Treatment of project acts

20.108 The Bill provides that project acts are treated as a single act for the purposes of the application of the right to negotiate provisions [Schedule 1, item 9, section 42A]. The meaning of the term ‘project acts’ is explained in paragraphs 20.12 and 20.13.

20.109 The Bill makes it clear, however, that an agreement negotiated between negotiation parties, or a ministerial or arbitral body determination, can provide separate conditions for each of the acts that are project acts. [Subsection 42A(3)]

20.110 The changes dealing with project acts have the advantage of ensuring that the right to negotiate procedures for a number of related project acts can be undertaken together for the whole project. However, the characterisation of project acts as ‘one’ for the purpose of the right to negotiate does not prevent different conditions being applied to the constituent acts, nor will the amendments require a large and diverse project to be treated as one act/project. It will be up to the Government party issuing the section 29 notice to determine the acts to be covered in a notice and to decide whether a large project might be better dealt with as two or more separate projects.

Consequential changes to the provisions dealing with trust amounts

20.111 As discussed in this Chapter, the Bill makes some changes to the arrangements for situations where an arbitral body or ministerial determination requires an amount to be paid to a trustee until it can be paid in accordance with the NTA (refer to paragraphs 20.62, 20.63, 20.96 and 20.105). The Bill alters the arrangements for the payment of these amounts to make it clear that the amounts paid are not compensation determined under Division 5 of Part 2 but are amounts that represent an estimate of the compensation that will become payable.

20.112 A number of consequential amendments are made to the NTA to deal with these trust amounts, as set out in Table 20.8.

NTA provision amended	Explanation
Subsection 52(1)	Subsection 52(1) is amended by removing the term ‘negotiated compensation’ from the subsection and replacing it with the term ‘trust amount’. The use of the term ‘compensation’ is misleading. The amount may be an estimate of compensation payable, but compensation under the NTA can only be finally determined by agreement (paragraph 52(1)(c)) or by the process set out in Part 3 (paragraph 52(1)(d)) or some other court process (paragraph 52(1)(e)). Compensation under State or Territory legislation may be determined by other processes. This form of wording avoids any implication that the arbitral body is required to make an assessment of the actual effect of the act on native title and an accurate assessment of the real compensation liability. The Bill also indicates that the heading to section 52 is altered by substituting the term ‘payment’ for ‘compensation’. *[Schedule 1, item 20]*
Subparagraph 52(1)(c)(ii)	This Bill repeals subparagraph 52(1)(c)(ii) and replaces it with new subparagraphs (1)(c)(ii) and (iii). Subparagraph (1)(c)(ii) provides that the registered native title body corporate may advise the trustee that it wishes to accept the trust amount instead of any compensation to which native title holders might be entitled under Division 3. Subparagraph (1)(c)(iii) provides that the person who paid the trust amount must agree to that amount being accepted by the native title body corporate instead of any compensation to which the native title holders may be entitled under Division 3. If the parties do not agree that the ‘trust amount’ is appropriate compensation then the matter needs to be determined under Part 3 (see paragraph 52(1)(d) of the NTA). *[Schedule 1, item 22]*

Overview

21.1 The Bill allows the States and Territories to establish their own right to negotiate regimes as an alternative to the right to negotiate provisions in the NTA. There are two kinds of alternatives that are possible.

21.2 Firstly, section 43 in the Bill allows a State or Territory to have a right to negotiate regime that replaces the NTA regime for future acts covered by the right to negotiate no matter what areas the act can take place in. This will apply where the alternative State or Territory regime meets certain requirements. The new section 43 is substantially a re-enactment of the existing section 43 of the NTA.

21.3 Secondly, the Bill introduces a new system to allow the States and Territories to introduce provisions as an alternative to the NTA right to negotiate provisions but only for future acts affecting what are called 'leased or reserved areas'. The alternative provisions must meet certain requirements to be effective.

21.4 This new system implements points 6 and 7 of the Ten Point Plan. Before the decision in Wik it was assumed that native title did not exist in many leased areas and that, therefore, the right to negotiate did not apply. We now know that native title can exist on pastoral lease land. But on such land, and reserved and used land, it will be at most only a co-existing right. The new system for alternative State or Territory provisions in these circumstances ensures workability of land management systems whilst treating co-existing native title holders in the same way as other persons who hold other interests in land

21.5 The new system allows the States and Territories to compulsorily acquire native title on leased or reserved land (mainly that covered by non-exclusive leases) for the purpose of conferring grants on persons other than the Government without the right to negotiate applying. This can be done so long as the native title holders are given the same procedural rights as ordinary title holders, generally freeholders.

Satisfactory alternative State or Territory provisions may replace the right to negotiate provisions

21.6 Existing section 43 of the NTA provides that the States and Territories may enact their own laws as an alternative to the right to negotiate provisions. Any such alternative provisions will be effective where the Commonwealth Minister determines in writing that a range of matters listed in section 43 are complied with. The Bill re-enacts section 43 in substantially the same form [Schedule 1, item 9, section 43].

21.7 Some changes are made to the re-enacted section 43, largely as a consequence of other changes that are being made to the right to negotiate provisions. The changes that are significant are set out below. Apart from the amendment to paragraph 43(2)(a), these changes were proposed in the 1996 amendments.

Expansion of parties to whom notification must be given

21.8 The Senate made 1997 Opposition amendment (175) which is included in the Bill. This amendment to paragraph 43(2)(a) requires that an alternative State or Territory regime under section 43 must contain appropriate procedures for notifying representative Aboriginal/Torres Strait Islander bodies. This is in addition to procedures for notifying the persons listed in paragraph 43(2)(a) of the current NTA.

Change to matters to be considered by State or Territory body determining an objection

21.9 Under the existing section 43, the alternative State or Territory provisions must allow certain native title parties to object against the doing of a future act. In determining such an objection, the State or Territory body concerned must take into account the same things as an arbitral body has to consider under section 39 and also ‘an appropriately broad range of other considerations’ (see existing paragraph 43(2)(g)).

21.10 The Bill changes paragraph 43(2)(g) and replaces it with a paragraph that requires the State or Territory body under the alternative provisions to make its determination based on the same criteria as in the amended section 39, including taking into account any areas of agreement between the parties. It will no longer be necessary for the State or Territory body to take into account ‘an appropriately broad range of other considerations’.

The alternative provisions may allow ministerial determinations like those under sections 34A and 36A

21.11 The Bill ensures, in effect, that the alternative right to negotiate provisions of a State or Territory may include provisions similar to:

• section 34A (dealing with early ministerial intervention to make a determination for urgent and significant acts); and

• section 36A (dealing with Ministerial intervention when the arbitral body has failed to make a determination within a reasonable time). [Paragraph 43(2)(k)]

21.12 If such provisions are included in the alternative regime, the power must be subject to requirements similar to those set out in sections 36B and 36C. [Paragraph 43(2)(k)]

A determination by the Commonwealth Minister may be revoked

21.13 As discussed above, the Commonwealth Minister must determine that the State or Territory provisions comply with a number of matters before they will be effective. The Bill provides that such a determination can now be revoked where a State or Territory right to negotiate regime is inappropriately amended.

21.14 The Commonwealth Minister must give written advice to the State or Territory Minister concerned if the alternative provisions are amended so that they no longer comply with the requirements listed in subsection 43(2). After 90 days, the Minister must revoke the determination if the alternative provisions are still unsatisfactory. The Minister can extend this 90 day period [subsection 43(3)]. Such a revocation is a disallowable instrument [Schedule 1, item 34, section 214]. The Senate made 1998 Government amendment (45) which is included in the Bill replacing paragraph 43(3)(b) and inserting new paragraph 43(3)(c). Under new paragraph 43(3)(b), the Commonwealth Minister must revoke after 180 days unless the requirements in paragraph 43(3)(c) are met. Paragraph 43(3)(c) provides that if the Commonwealth Minister is satisfied that the State or Territory Minister is using his or her best endeavours to make the regime comply, the Commonwealth Minister may determine a further extension of time to enable compliance. This determination granting an extension of time will be a disallowable instrument under section 214. At the end of the extended period, the determination must be revoked if the alternative provisions do not comply. The amendment will require a State or Territory to act expeditiously to ensure that its regime complies with the Commonwealth requirements in subsection 43(2), but will allow it sufficient time to do so.

The regulations may deal with transitional issues arising from an alternative regime

21.15 The Bill provides a mechanism to deal with transitional issues arising when an alternative State or Territory regime begins or ceases to be effective. The regulations may prescribe modifications of the NTA to deal with transitional matters arising from the making, amendment or revocation of a determination by the Commonwealth Minister that an alternative regime meets the necessary requirements. [Subsection 43(4)]

21.16 As an example, a transitional arrangement may be needed where there are processes already under way for a particular future act when an alternative State or Territory system is approved. The regulations might determine whether the Commonwealth system would continue for that act or might allow the processes to be shifted into the State or Territory regime.

Special alternative State or Territory provisions for leased or reserved areas

21.17 To implement points 6 and 7 of the Ten Point Plan, the Bill also provides for another kind of alternative State or Territory regime for future acts that affect native title on certain types of land or waters. This is mainly land or waters that are or were covered by a non-exclusive lease (such as a non-exclusive pastoral lease) or that are or have previously been reserved for a particular purpose. [Schedule 1, item 9, sections 43A and 43B]

What is a leased or reserved area?

21.18 The Bill defines the land or waters that can be affected by the special alternative State or Territory provisions as leased or reserved areas [Subsection 43A(2)]. There are two kinds of leased or reserved area: a non-exclusive area and a reserved area.

Non-exclusive areas

21.19 There are two requirements, set out below, for an area to be a 'non-exclusive area' and thus to fall into this category of 'leased or reserved area'. [Paragraph 43A(2)(a)]

• The area must be, or have been at any time (including before the NTA commenced), covered by a freehold estate in fee simple or by a lease.

• All native title rights or interests that may have existed in relation to land or waters in the area must not have been extinguished.

Example of freehold estate that is a non-exclusive area

21.20 The Bill gives an example of a freehold estate in an area where native title may still exist. It is Aboriginal land where the grant or vesting may not have extinguished native title (see proposed subsection 23B(9)).

21.21 Proposed section 23B provides for confirmation of extinguishment of native title in areas that have been the subject of a 'previous exclusive possession act' (such as the grant or vesting of a freehold estate on or before 23 December 1996).^[51] Subsection 23B(9) generally provides, however, that such a grant or vesting of a freehold estate to, in or for the benefit of Aboriginal peoples or Torres Strait Islanders is not affected by the proposed NTA provisions dealing with confirmation of past extinguishment of native title. Judicial authority indicates that native title may not have been extinguished by a freehold grant of this kind.

Example of a lease that is a non-exclusive area

21.22 The Bill also gives an example of a lease in an area where native title may still exist. It is a non-exclusive agricultural lease or a non-exclusive pastoral lease, including one covered by section 47 of the NTA. If granted or vested before 23 December 1996, such leases only extinguish native title to the extent of any inconsistency between the native title rights and interests and the rights and interests granted under a lease.^[52]

Certain reserved areas are also defined as leased or reserved areas

21.23 The Bill also defines certain reserved areas as included in the term 'leased or reserved areas'. There are requirements, set out below, for an area to fall into this category of 'leased or reserved area'. [Paragraph 43A(2)(b)]

• The area is, or was at any time (including before the NTA commenced), covered by a reservation, proclamation, dedication, condition, permission or authority under which the whole or part of the land or waters in the area was to be used for public purposes generally, or for a particular purpose.

• The proclamation was made or conferred by the Crown in right of the State or Territory or by the making, amendment or repeal of State or Territory legislation.

• The area is, or was at any time (including before the NTA commenced), actually used for the public purposes or the particular purpose or for a similar purpose.

Example of a reserved area that is a 'leased or reserved area'

21.24 The Bill gives an example of a reserved area that is a 'leased or reserved area'. It is an area containing a national park.

What kind of future acts can be covered by special alternative State or Territory provisions

21.25 The Bill sets out which future acts covered by the right to negotiate can potentially be subject to alternative provisions. They are future acts:

• attributable to the State or Territory concerned [subparagraph 43A(1)(a)(i)]; and

• which relate, to any extent, to an area of land or waters that is a leased or reserved area [Subparagraph 43A(1)(a)(ii)]

There are special rules for acts affecting both leased or reserved areas and other areas

21.26 Subparagraph 43A(1)(a)(ii) means that the future act can relate partly to a leased or reserved area and partly to another kind of area and still be able to be covered by alternative State or Territory provisions. However, the Bill provides special rules for these kinds of acts in two cases These rules are explained in Table 21.1

Type of future act

Rule

The creation or variation of a right to mine in both a leased or reserved area and another area where alternative State or Territory provisions under section 43A would, apart from the rule opposite, have effect for that act

[Paragraphs 43B(a) and (b)]

The act is split into two separate acts for the purposes of the right to negotiate provisions. The two acts are taken to be:

• the creation or variation of the right to mine in the leased or reserved area; and

• the creation or variation of that right to mine in the other area. [Paragraph 43B(c)]

In effect this means that the act can be covered by the alternative State or Territory provisions to the extent that it relates to a leased or reserved area, and by the right to negotiate provisions to the extent that it does not.

The Bill deems the second act relating to the area that is not a leased or reserved area to be done when the right to mine is first exercised in that area [paragraph 43B(d)]. This means that the right to negotiate processes will never have to be conducted if the person who is granted the mining right never exercises that right on the area that is not a leased or reserved area. The ability of native title holders to exercise their native title rights and interests in the non-leased or reserved area would not be impaired in these cases.

When will alternative State or Territory provisions for leased or reserved areas be effective?

21.27 The Bill sets out the conditions that must be met before alternative State or Territory provisions for future acts affecting leased or reserved areas will be effective. The Commonwealth Minister must make a written determination that the provisions meet certain requirements in the Bill [paragraph 43A(1)(b)]. These depend on the nature of the future act concerned and are set out in Table 21.2. Such a determination is a disallowable instrument [section 214].

21.28 The requirements are designed to give native title holders the same procedural rights as the holder of a freehold title in compulsory acquisition cases and, in other cases, the same procedural rights as other holders of an interest in the land or waters concerned. This is not possible in the case of reserved areas because there are not any other interest holders. In these cases, the Bill sets out the minimum procedural requirements that must be met for an act to be done validly.

Type of future act	Requirements that must be met in the State or Territory provisions
A compulsory acquisition of native title in a leased or reserved area conferring on persons other than the Government party rights and interests in relation to the land or waters concerned other than a conferral for the purpose of providing an infrastructure facility (These are the acts covered by subparagraph 26(1)(c)(iii) discussed in Table 19.2 of Chapter 19)	The alternative provisions must confer on the native title holders the same procedural rights they would have had if they had instead held ordinary title to the land, or to the land adjoining or surrounding the waters, affected by the act. *[Subsection 43A(3)]* The term ‘ordinary title’ is defined in section 253 of the NTA and in most cases means a freehold estate.
Any act that is not covered by subparagraph 26(1)(c)(iii) where the leased or reserved area affected is to any extent a 'non-exclusive area' (The meaning of the term 'non-exclusive area' is explained in paragraphs 21.18 to 21.21). An example of such an act is the grant of a mining lease over an area covered by a non-exclusive pastoral lease.	The alternative provisions must confer on the native title holders the same procedural rights as other holders of interests in the area concerned. The nature of the rights depends on whether the area is covered by a freehold estate or a lease *[subparagraph 43A(4)(a)(i)]. For example, where the area on which the act is to be done is covered by a non-exclusive pastoral lease, native title holders have the same procedural rights as the holders of the lease. The alternative provisions must also make provision for compensation for the act’s effect on the native title of the native title holders. [Subparagraph 43A(4)(a)(ii)]*
Any act that is not covered by subparagraph 26(1)(c)(iii) where all of the leased or reserved area affected is the subject of a reservation etc. covered by paragraph 43A(2)(b). An example of such an act is the grant of a mining lease over an area that is a forestry reserve.	The alternative provisions must: • contain appropriate procedures for notifying registered native title bodies corporate, registered native title claimants and potential native title claimants for the area concerned of the future act that is to be done *[subparagraph 43A(4)(b)(i)]; and • give registered native title bodies corporate and registered native title claimants for the area concerned the right to object against the future act that is to be done and the right to be heard for that objection [subparagraph 43A(4)(b)(ii)]; and • make provision for compensation for the act’s effect on the native title of the native title holders [subparagraph 43A(4)(b)(iii)]*

The alternative State or Territory provisions may be different for different kinds of land or waters

21.29 The Bill allows the alternative provisions of a State or Territory to be different for different kinds of land or waters [Subsection 43A(5)]. However, each set of provisions would have to satisfy the relevant conditions in subsections 43A(3) and (4) in order to be subject to a determination of the Commonwealth Minister.

Revocation of Commonwealth Minister's determination

21.30 The Bill includes a provision for the Commonwealth Minister to revoke a determination that alternative State or Territory provisions meet the requirements under subsections 43A(3) and (4). This revocation provision works in the same way as that included in section 43 (see paragraphs 21.12 and 21.13) [subsection 43A(6)]. Such a revocation is a disallowable instrument [section 214].

Regulations making transitional provisions

21.31 The Bill includes a provision allowing the regulations to make transitional arrangements for cases where the Commonwealth Minister’s determination under section 43A is made, amended or revoked. This provision works in the same way as the equivalent provision included in section 43 (see paragraphs 21.13 and 21.15). [Subsection 43A(8)]

(Note: in this Chapter the term ‘indigenous land use agreement’ is referred to as ‘ILUA’)

Overview

22.1 Subdivisions B, C and D of Division 3, inserted by item 9 of Schedule 1 set out the provisions for the making and registration of indigenous land use agreements (ILUAs). Chapter 7 discussed the making of such agreements and the validity of future acts done in accordance with them. This Chapter discusses the processes under Subdivisions B, C and D for having ILUAs registered. As discussed in Chapter 7, a future act done in accordance with an ILUA is valid so long as details of the ILUA are on the Register of Indigenous Land Use Agreements. Chapter 23 discusses the provisions establishing this Register.

22.2 As discussed in Chapter 7, there are three categories of ILUA: body corporate agreements, area agreements and alternative procedure agreements. The requirements for an agreement to fit into these categories are set out in Table 7.1 of Chapter 7. The registration processes are different for each kind of agreement and reflect their different nature.

22.3 The processes generally involve an application to the Native Title Registrar, a notice by the Registrar to relevant bodies and persons, objections against registration and registration by the Registrar subject to certain conditions being met.

Applications for registration of an ILUA

General requirement for all kinds of ILUA

22.4 The first stage of the process in getting an ILUA registered is for an application to be made to the Native Title Registrar (the Registrar). Any party to any of the three kinds of ILUA can, with the agreement of all other parties to the ILUA, apply to the Registrar for the ILUA to be registered on the Register of Indigenous Land Use Agreements. An application must be in writing and be accompanied by a copy of the ILUA and any other documents or information prescribed in the Regulations. [Schedule 1, item 9, sections 24BG, 24CG and 24DH]

Additional requirement for area agreements

22.5 There is an additional requirement for applications for registration of an ILUA that is an area agreement. This requirement relates to the need for the application to state that the agreement has been made with the authority of all actual or potential native title holders for the area in relation to which the agreement is made.

22.6 To this end, there are two alternative requirements, as set out below, one of which has to be met for the application for registration of an area agreement to be valid.

Certification by all representative Aboriginal/Torres Strait Islander bodies

22.7 The first alternative is that the agreement must have been certified by all representative Aboriginal/Torres Strait Islander bodies^[53] (representative bodies) for the area covered by the agreement. This certification would be done in accordance with the representative bodies’ functions under paragraph 202(4)(e). [Paragraph 24CG(3)(a)]

22.8 Paragraph 202(4)(3) is inserted by Schedule 3 into the NTA. It provides that one of the functions of a representative body is to certify applications for registration of ILUAs [Schedule 3, item 5]. Under subsection 202(8) of the NTA, also inserted by Schedule 3 of the Bill, a representative body can only certify an ILUA if it is satisfied that:

• all reasonable efforts have been made to identify all the actual or potential native title holders for the area covered by the agreement; and

• all of the persons so identified have authorised the making of the agreement. [Schedule 3, item 6]

Statement that all identified actual or potential native title holders have authorised the making of the agreement

22.9 The second alternative involves a process of identifying all actual or potential native title holders for the area covered by the agreement. This requirement is met if the application for registration of the area agreement includes a statement that both of the conditions set out below are satisfied and also gives a further statement that briefly sets out why the Registrar should be satisfied these conditions are met. [Paragraph 24CG(3)(b)]

• All reasonable efforts must have been made to identify all persons who hold, or may hold, native title in relation to the land or waters in the area. The reasonable efforts must include consulting all representative bodies for the area. [Subparagraph 24CG(3)(b)(i)]

• All of the persons identified by the process above must have authorised the making of the agreement. [Subparagraph 24CG(3)(b)(ii)]

When do persons authorise the making of an ILUA?

22.10 The Bill inserts provisions that say when persons authorise the making of an ILUA [Schedule 1, item 50, section 251A; item 51]. This is relevant to the authority that must be obtained in accordance with subparagraph 24CG(3)(b)(ii). Table 22.1 sets out how the authority is given.

Notification by the Registrar of ILUAs for which a registration application has been made

22.11 The second stage in the process of getting an ILUA registered is that the Registrar must notify certain persons and bodies of the agreement. This can be done after a valid application for registration has been made [Schedule 1, item 9, sections 24BH, 24CH and 24DI]. Table 22.2 on the following pages sets out the notification requirements for each of the three kinds of ILUA. Explanations of some terms used in the notification requirements (such as the way in which the 3 month notice period is calculated) are set out after the table.

22.12 The purpose of requiring the Registrar to give notification is generally to give certain persons and bodies with an interest in the matters dealt with by the agreement the chance to object to the registration of the agreement. This is particularly important in the case of area agreements since these agreements, once registered, will bind all native title holders even if they were not parties to the making of the agreement.

Nature of the requirement	Body corporate agreements	Area agreements	Alternative procedure agreements
Notification of non-parties	The Registrar must give the notice to any of the following who are not parties to the agreement. • The Commonwealth Minister. • The State or Territory Minister if the agreement covers an area within the jurisdictional limits of the State or Territory concerned. • Any representative Aboriginal/Torres Strait Islander body for the area covered by the agreement. • Any local government body for the area covered by the agreement. • Any other person whom the Registrar thinks should be notified, having regard to the nature of the agreement. *[Paragraph 24BH(1)(a)]*	The Registrar must give the notice to any of the following who are not parties to the agreement. • The Commonwealth Minister. • The State or Territory Minister if the agreement covers an area within the jurisdictional limits of the State or Territory concerned. • Any representative Aboriginal/Torres Strait Islander body for the area covered by the agreement. • Any local government body for the area covered by the agreement. • Any other person whom the Registrar thinks should be notified, having regard to the nature of the agreement. *[Paragraph 24CH(1)(a)]*	The Registrar must give the notice to any of the following who are not parties to the agreement. • The Commonwealth Minister. • The State or Territory Minister if the agreement covers an area within the jurisdictional limits of the State or Territory concerned. • Any local government body for the area covered by the agreement. • Any other person whom the Registrar thinks should be notified, having regard to the nature of the agreement. *[Paragraph 24DI(1)(a)]*
Public notification	There must be public notification. The notification must be done in the way determined in accordance with section 252 of the NTA.^[54] *[Paragraph 24BH(1)(b)]*	There must be public notification. The notification must be done in the way determined in accordance with section 252 of the NTA. *[Paragraph 24CH(1)(b)]*	There must be public notification. The notification must be done in the way determined in accordance with section 252 of the NTA. *[Paragraph 24DI(1)(b)]*

Nature of the requirement	Body corporate agreements	Area agreements	Alternative procedure agreements
Contents of the notice	The notices (including the public notice) must do all of the following: • describe the area covered by the agreement; • state the name of each party to the agreement and the address at which the party can be contacted; • set out any statements included in the agreement of the kind mentioned in paragraphs 24EB(1)(b), (c) and (d). *[Subsection 24BH(2)]*	The notices (including the public notice) must do all of the following: • describe the area covered by the agreement; • state the name of each party to the agreement and the address at which the party can be contacted; • set out any statements included in the agreement of the kind mentioned in paragraphs 24EB(1)(b), (c) and (d); • include a statement of the kind set out below. The nature of the statement depends on whether representative Aboriginal/Torres Strait Islander bodies certified the application for registration. If they did, the statement must say that, within the 3 month ‘notice period’, any person claiming to hold native title for the area covered by the agreement may make a written objection to the Registrar against registration of the agreement on the ground that the requirements of subsection 202(8) were not met for the certifying of the application. If they did not, the statement must say that, within the 3 month ‘notice period’, any person claiming to hold native title for the area covered by the agreement may wish, in response to the notice, to make a native title claim. *[Subsection 24CH(2)]*	The notices (including the public notice) must do all of the following: • describe the area covered by the agreement; • state the name of each party to the agreement and the address at which the party can be contacted; • set out any statements included in the agreement of the kind mentioned in paragraphs 24EB(1)(b), (c) and (d); • include a statement that, within the 3 month ‘notice period’, any person claiming to hold native title for the area covered by the agreement may obtain a copy of the agreement from the Registrar and make a written objection to the Registrar against registration of the agreement on the ground that it would not be fair and reasonable to do so. *[Subsection 24DI(2)]* The Registrar must supply a copy of the agreement to any person claiming to hold native title who requests a copy in response to the Registrar’s notice. *[Subsection 24DI(5)]*

What do paragraphs 24EB(1)(b), (c) and (d) deal with?

22.13 As set out in Table 22.2, the Registrar’s notice must include any statements made in the ILUA in accordance with paragraphs 24EB(1)(b), (c) and (d).

22.14 Paragraph 24EB(1)(b) deals with a statement to the effect that the parties have consented to the doing of an act or a class of acts (any conditions must be stipulated).

22.15 Paragraph 24EB(1)(c) deals with a statement that the right to negotiate provisions are not intended to apply to the act or acts if the agreement authorises a future act to which the right to negotiate provisions (proposed Subdivision P of Division 3) would otherwise apply.

22.16 Paragraph 24EB(1)(d) deals with a statement that the parties intend native title to be extinguished by surrender if the agreement provides for the extinguishment (through surrender) of native title.

22.17 Where the statements are included, the consequences set out in section 24EB apply in relation to the act (see Chapter 7).

How is the 3 month notice period worked out?

22.18 As set out in Table 22.2, the notices by the Registrar for area agreements and alternative procedure agreements require the Registrar to include a statement that certain things can be done within a 3 month notice period. This notice period is the period of 3 months commencing after the ‘notification day’. [Paragraphs 24CH(2)(d) and 24DI(2)(d)]

What is the notification day?

22.19 The notification day is the day specified in the Registrar’s notice and each notice about a particular ILUA given to the persons and bodies listed in Table 22.2 must have the same notification day. [Subsections 24CH(3) and 24DI(3)]

22.20 The Bill provides rules on what the notification day must be. It must be the day by which the Registrar thinks the notice will be received by, or come to the attention of, all the persons and bodies listed in Table 22.2, including the public. [Subsections 24CH(4) and 24DI(4)]

Objections against registration of an ILUA

22.21 The notices by the Registrar discussed above envisage that objections might be made against the registration of an area agreement or an alternative procedure agreement. There is no specific objection process for a body corporate agreement because any party to such an agreement can advise the Registrar within one month of a notice being given that the agreement should not be registered (see discussion in paragraph 22.27).

Objections against registration of an area agreement

22.22 An objection procedure is available where the application for registration of an area agreement has been certified by all relevant Aboriginal/Torres Strait Islander bodies. In this case, any person claiming to hold native title for the area covered by the agreement may make a written objection to the Registrar against its registration on the ground that the requirements of subsection 202(8) were not met for the certifying of the application.^[55] [Schedule 1, item 9, subsection 24CI(1)]

22.23 There is no objection procedure in the case of an area agreement that is not certified. This is because the appropriate response of potential native title holders unhappy about the registration of such an agreement is to make a native title claim. If such persons become registered native title claimants, they must become parties to the agreement before it can be registered (see discussion in paragraphs 22.33 to 22.35). This means, in effect that their consent must be obtained before future acts done in accordance with the agreement are valid.

Objections against registration of an alternative procedure agreement

22.24 A written objection to the Registrar can be made against the registration of an alternative procedure agreement by any person claiming to hold native title for the area it covers. The objection can be made on the ground that it would not be fair and reasonable to register the agreement. [Schedule 1, item 9, subsection 24DJ(1)]

Parties may seek assistance in negotiating the withdrawal of an objection

22.25 The Bill envisages that the parties to an area agreement or an alternative procedure agreement may wish to negotiate with a person making an objection in order to get the objection withdrawn. The parties may request the assistance of the NNTT or a recognised State/Territory body in doing this. [Subsections 24CI(2) and 24DJ(2)]

When must the Registrar register an ILUA?

22.26 The final process in getting an ILUA registered generally involves the Registrar making a decision about whether that should happen. To this end, the Bill sets out the duties of the Registrar to register an ILUA on the Register of Indigenous Land Use Agreements. The Registrar must register an ILUA for which a registration application has been made, and a Registrar’s notice given, but only where certain conditions are met. The conditions that apply depend on the kind of ILUA that is to be registered.

What are the registration conditions for a body corporate agreement?

22.27 The Registrar must register a body corporate agreement one month after he or she gives the notice discussed above. However, this cannot be done if, within one month of the notice being given, any party to the agreement advises the Registrar that they do not wish the agreement to be registered [Schedule 1, item 9, section 24BI]. This gives the parties a one month ‘cooling off’ period before the agreement takes effect as a registered agreement.

What are the registration conditions for an area agreement?

22.28 The Registrar must decide after the end of the 3 month notice period whether to register an area agreement on the Register of Indigenous Land Use Agreements [Schedule 1, item 9, section 24CJ]. The conditions that must be satisfied for an area agreement to be registered depend on whether representative Aboriginal/Torres Strait Islander bodies have certified the application for registration.

Conditions where agreement certified by representative bodies

22.29 There are two conditions that must be met before an area agreement can be registered in a case where the application for registration of the agreement was certified by all relevant representative Aboriginal/Torres Strait Islander bodies. [Schedule 1, item 9, section 24CK]

Consideration of objections against registration

• there has been no objection against registration of the agreement made within the 3 month notice period (or all such objections have been withdrawn) [paragraphs 24CK(2)(a) and (b)]; or

• the Registrar is satisfied that, despite the objection, the certification of the agreement by each representative Aboriginal/Torres Strait Islander body was done appropriately in accordance with subsection 202(8)^[56] [paragraph 24CK(2)(c)].

22.31 The Senate made 1997 Government amendment (17) which is included in the Bill. This amendment inserts a new subsection 24CK(4) which sets out the information to which the Registrar must have regard in deciding whether the condition contained in paragraph 24CK(2)(c) is satisfied. The amendment also provides that the Registrar may, but need not, take into account any other matter or thing.

Registered native title bodies corporate must be parties to the agreement

22.32 The second condition is that any registered native title bodies corporate for any area covered by the agreement must be a party to it if they exist as such when the Registrar proposes to register the agreement [subsection 24CK(3)]. Effectively this means that those who are determined to hold native title in any part of the relevant area during the 3 month notice period will need to agree to the terms of the agreement.

Conditions where agreement not certified by representative bodies

22.33 There are two conditions that must be met before an area agreement can be registered in a case where the application for registration of the agreement was not certified by all relevant representative Aboriginal/Torres Strait Islander bodies [Schedule 1, item 9, section 24CL]. This will be an area agreement which contains a statement showing the action taken for the purposes of identifying all relevant persons who hold or claim to hold native title in the area and how their authority for making the agreement has been obtained.

Certain persons must be parties to the agreement

22.34 The first condition relates to the persons who must be parties to the agreement before it can be registered. The parties must include all registered native title claimants and registered native title bodies corporate in relation to any part of the area covered by the agreement who are on the Register of Native Title Claims or the Native Title Register at the end of the 3 month notice period. [Paragraph 24CL(2)(a)]

• any persons who lodged applications before the end of the 3 months and who become registered native title claimants after that date;

• any persons who lodged their applications within the 3 month notice period and were refused registration but were later registered as the result of a successful appeal to the Federal Court (or a State/Territory equivalent) against the decision not to register their claim (where the appeal was lodged within 28 days of the giving of notice of non-registration - or a State/Territory equivalent). [Paragraph 24CL(2)(b)]

22.36 The Bill also provides that the Registrar cannot register the agreement unless all of the persons covered by paragraph 24CL(2)(b) are known (these are the persons outlined in paragraph 22.34). [Section 24CJ].

The Registrar must consider that requirements about identifying and obtaining the authority of all actual or potential native title holders have been met

22.37 The second condition relates to the statement made in the registration application. The Registrar must consider that all reasonable efforts have been made to ensure that native title holders have been identified and their authority has been obtained for the making of the agreement (see proposed section 251A). In considering the matter the Registrar must take into account the statements in the application and any information provided by a representative body or others. He or she may also, but need not, consider any other matter or thing. [Subsections 24CL(3) and (4)]

What are the registration conditions for an alternative procedure agreement?

22.38 The Registrar must decide after the end of the 3 month notice period whether to register an alternative procedure agreement on the Register of Indigenous Land Use Agreements [Schedule 1, item 9, section 24DK]. There are three conditions, one of which must be met before an alternative procedure agreement can be registered. These relate to whether there have been any objections against registration of the agreement and whether any objections have merit. [Schedule 1, item 9, section 24DL]

• there has been no objection against registration of the agreement made within the 3 month notice period [paragraph 24DL(2)(a)]; or

• none of the persons making an objection has satisfied the National Native Title Tribunal (NNTT) or a recognised State/Territory body that it would not be fair and reasonable to register the agreement [paragraph 24DL(2)(c)].

Matters that the NNTT or recognised State/Territory body can consider in dealing with an objection

22.40 The Bill sets out the matters that the NNTT or recognised State/Territory body must have regard to in considering an objection against registration of an alternative procedure agreement. They are:

• the effect of the agreement on native title rights and interests (e.g. whether it will unfairly inhibit the enjoyment of native title by any potential native title holder) [subparagraph 24DL(2)(c)(ii)]; and

• any benefits provided under the agreement to actual or potential native title holders and their successors, including the way in which those benefits are to be distributed (e.g. whether a distribution of benefits adequately compensates a native title holder for any loss of their ability to enjoy native title) [subparagraph 24DL(2)(c)(iii)]; and

Substitute registration processes for alternative procedure agreements

22.41 The Bill allows regulations to make alternative provisions to sections 24DH to 24DL for the registration of alternative procedure agreements. The regulations would not be a substitute for sections 24DH to 24DL in the case of all alternative procedure agreements. Rather, the alternative provisions in regulations may provide registration processes for alternative procedure agreements with particular characteristics, leaving sections 24DH to 24DL to deal with other kinds of alternative procedure agreements. [Schedule 1, item 9, section 24DM]

22.42 The regulation making power is included to give greater flexibility for the registration of alternative procedure agreements. Any regulations would need to ensure that native title is appropriately protected.

(Note: in this Chapter the term ‘indigenous land use agreement’ is referred to as ‘ILUA’)

Overview

23.1 Part 8A establishes the Register of Indigenous Land Use Agreements. The Register will contain details of ILUAs which satisfy the conditions for registration under Subdivision B, Subdivision C or Subdivision D of Division 3, Part 2. The effects of registration are explained in Subdivision E of Division 3, Part 2 (see Chapter 7). Part 8A deals with the content of the Register, the way in which it is to be kept, the circumstances under which it is amended, access to its contents and delegation of the Registrar’s functions in relation to keeping the Register.

Register of Indigenous Land Use Agreements

23.2 The Register is to be established and maintained by the Native Title Registrar. One of the ways it can be maintained is by computer [Schedule 1, item 30, section 199A]. A definition of the term ‘Register of Indigenous Land Use Agreements’, describing it as the register kept under Part 8A, is inserted into section 253 of the NTA [Schedule 1, item 60].

Contents of the Register

23.3 Whenever the Registrar is required to register an ILUA, he or she must place certain details of the agreements on the Register [Schedule 1, item 30, subsection 199B(1)]. These are:

• the names of each party to the ILUA and the addresses at which they can be contacted;

• any statements in the agreement indicating that the parties have agreed to the doing of an act or class of act (and any conditions that are stipulated);

• any statements in the agreement indicating that the right to negotiate is not intended to apply to acts to which the parties have consented under the agreement;

• any statements in the agreement that the surrender of native title under the agreement is intended to extinguish native title rights and interests.

The Senate made 1998 Government amendment (20), which is included in the Bill, to paragraph 199B(1)(d) consequential upon new section 24EBA. (1998 Government amendment (19))

23.4 The Registrar has a discretion to include any other details considered to be appropriate for inclusion in the Register. [Subsection 199B(2)]

23.5 Notices advising that an agreement involving a future act has been registered must be sent to everyone who was sent a notice about the making of the agreement. The notice of registration must set out the details which have been included on the Register. There is no requirement to notify the public generally of the registration of the agreement. [Subsection 199B(3)]

Removal of details of agreement from Register

23.6 The Registrar is obliged to remove details of a registered ILUA in certain circumstances [Schedule 1, item 30, section 199C]. Some of the circumstances are specific to particular types of agreement. Table 23.1 explains which circumstances require the removal of each type of ILUA.

Circumstance requiring removal	Body corporate agreements	Area agreements	Alternative procedure agreements
An approved determination of native title is made for all or part of the agreement area. Under the determination, there are native title holders who are not the same as those previously determined to hold native title for the area.	,
The agreement was authorised under either of paragraphs 24CG(3)(a) or (b). An approved determination of native title is made for all or part of the agreement area. One or more of the native title holders under that determination did not authorise the agreement as mentioned above.		,
The agreement expires.	,	,	,
All the parties tell the Registrar in writing that they wish to terminate the agreement.	,	,	,
The Federal Court orders that the details be removed, following an application by either a party to the agreement or a representative body for the area, on the ground that the agreement was induced by fraud, undue influence or duress.	,	,	,
The Senate made *1998 GreensWA amendment (163),* which is included in the Bill. This amendment provides that, in relation to native title holders, the Court may only order that an ILUA be removed from the register if the authority to enter into the agreement would not have been given but for the fraud, undue influence or duress. Additionally, the Court may grant further relief against the person involved in the fraud to anyone who has suffered loss as a result of the Order to remove the ILUA from the Register.	,	,	,

What is the effect of removing an ILUA from the register?

23.7 If an ILUA is removed from the Register, it no longer has contractual effect [Schedule 1, item 9, section 24EA]. The ILUA will not validate any future acts contemplated by the agreement if they take place after the ILUA is de-registered. Future acts which have already taken place under the agreement will remain valid [Schedule 1, item 9, section 24EB]. The Senate made 1998 Government amendments (21) and (22), which are included in the Bill. These amendments allow the Federal Court to order that the Registrar not remove an agreement from the Register where, notwithstanding that there is a determination of new native title holders, the newly determined holders accept the terms of the agreement.

Inspection of the Register

23.8 The Register can be inspected by the public during normal business hours, and there may be a fee for such inspection. If the Register is kept on computer the access may be provided either through a computer terminal or by a print out of the contents of the Register. [Schedule 1, item 30, section 199D]

Parts of the Register may be kept confidential

23.9 The Registrar may keep some parts of the information on the Register confidential where the parties have advised that this is their wish [Schedule 1, item 30, section 199E]. The details required to be entered under subsection 199B(1) will not be confidential; these details are listed in paragraph 23.3 above.

Delegation by Registrar

23.9 The Registrar may delegate his or her powers in relation to the Register to a person or body in a State or Territory with the agreement of that State or Territory [Schedule 1, item 30, section 199F]. This power may be used, for example, where there is a recognised State/Territory body for that jurisdiction under section 207A.

Regulations about the Register of Indigenous Land Use Agreements and other Registers

23.10 A fee for inspecting the Register of Indigenous Land Use Agreements can be set by regulations, which can also provide for such a fee to be waived. [Schedule 1, item 35, section 215]

23.11 Regulations can also be made to deal with the way in which the various registers under the NTA are to be maintained, and to deal with any other matter related to such registers [Schedule 1, item 36, section 215]. The three registers under the NTA are the Register of Native Title Claims, the Register of Indigenous Land Use Agreements, and the National Native Title Register.

Overview

24.1 This Chapter sets out a number of miscellaneous amendments, made by Schedule 1 of the Bill, relating to native title. The amendments deal with the following:

• provisions relating to native title holders carrying on traditional activities;

• definitions of particular kinds of interests in land used mainly in the provisions validating intermediate period acts and dealing with confirmation of past extinguishment of native title;

• provisions defining public works and the land or waters on which they are constructed, established or situated;

The Bill inserts a new overview of the NTA

24.2 Existing section 4 of the NTA contains an overview of the NTA. The Bill repeals section 4 and replaces it with a new overview that reflects the changes being made by the Bill. The new overview is in a more narrative style and should assist readers to gain a better overall picture of what the NTA does. [Schedule 1, item 2, section 4]

Presentational changes to the provisions dealing with past acts

24.3 The Bill makes two presentational changes to the existing provisions in Division 2 of Part 2 of the NTA. Firstly, the heading to the Division is changed from ‘Past acts and native title’ to ‘Validation of past acts’ [Schedule 1, item 6]. This is a more accurate reflection of the function performed by Division 2 and is consistent with the heading to new Division 2A of Part 2 (which validates intermediate period acts).

24.4 Secondly, the Bill inserts a new section into Division 2 of Part 2 to give an overview of what it does [Schedule 1, item 7, section 13A]. This makes the NTA more readable and is also consistent with new Divisions 2A, 2B and 3 of Part 2 which contain overview sections.

Repeal of the definition of ‘Compulsory Acquisition Act’

24.5 The Bill repeals the existing definition of ‘Compulsory Acquisition Act’ in section 253 of the NTA [Schedule 1, item 52]. This is because the definition is no longer needed.

24.6 The definition of ‘Compulsory Acquisition Act’ is currently used in the ‘permissible future act’ test in the existing NTA. The Bill re-enacts the relevant parts of that test in proposed Subdivisions M and N of new Division 3 (the provisions dealing with the freehold test and offshore future acts).^[57]

24.7 Consequential amendments are made to the NTA provisions dealing with compensation to reflect the removal of the definition [Schedule 1, items 14, 15, 16, 17, 18 and 23]. These amendments generally replace the references to the term ‘Compulsory Acquisition Act’ with references to a compulsory acquisition or a law under which a compulsory acquisition takes place. These changes do not alter the substance of the provisions.

Compensation payable to native title holders

24.8 The Bill includes a provision to clarify the amount of compensation that native title holders can get under Division 5 of Part 2 of the NTA for extinguishment of their native title. The maximum compensation native title holders can get in these circumstances will be capped at the same level that a person with freehold title would have got if their land was compulsorily acquired [Schedule 1, item 19, subsection 51A(1)]. This provision equates native title with freehold title for the purposes of the compensation provisions but it does not mean that native title will be regarded in all circumstances as equivalent to freehold. In addition, it does not mean that compensation would be payable at the capped level (e.g. compensation for the extinguishment of co-existing native title rights would probably be significantly less than the capped level). The compensation needs to be assessed on a case-by-case basis having regard to the nature of the native title rights and interests affected.

24.9 The Bill makes it clear that the new provision does not displace ‘just terms’ compensation that needs to be paid to native title holders to meet constitutional requirements. [Subsection 51A(1)]

‘Just terms’ compensation

24.10 The Senate made 1997 Government amendment (46) which is included in the Bill. The amendments inserts Schedule 1 items 26A and 26B which amend section 53 of the current NTA. Section 53 is a safety net providing ‘just terms’ compensation where the NTA does not already do so. Items 26A and 26B ensure that section 53 applies in relation to all future acts, not just Commonwealth ones. If the future act is attributable to a State or Territory, the State or Territory must pay the required compensation.

‘Just terms’ compensation for any acquisition of property by the Bill

24.11 The Senate made 1997 Government amendment (93) which is included in the Bill. This amendment contains Schedule 5, item 27A. Item 27A comprises Part 6A of Schedule 5 and deals with ‘just terms’ compensation. Item 27A ensures that to the extent the Bill once enacted may result in an acquisition of property for the purposes of section 51(xxxi) of the Constitution as a consequence of its effect, if any, on native title rights and interests, ‘just terms’ compensation is payable. This amendment also ensures that the provision operates for all relevant future acts, not just Commonwealth ones. If the future act is attributable to a State or Territory, the State or Territory must pay the required compensation. (The Senate also made 1997 Government amendment (92) which is included in the Bill. This amendment inserts a reference to Part 6A into Schedule 5, item 1 which sets out the contents of Schedule 5.)

Disallowable instruments

24.12 Existing section 214 of the NTA defines a number of instruments made in accordance with the NTA to be disallowable instruments. Disallowable instruments may be disallowed by either House of Parliament in accordance with provisions in the Acts Interpretation Act 1901.

24.13 Section 214 has been replaced by a new section 214 which lists a number of new kinds of instrument as disallowable instruments. This reflects the changes that are being made to the NTA by the Bill. 1997 Government amendment (49R), which was made by the Senate and is included in the Bill, also adds determinations made under paragraphs 23HA(a), 24GB(9)(c), 24GD(6)(a), 24HA(7)(a), 24ID(3)(a) and 24JB(6)(a) to the list of disallowable instruments. These determinations relate to new notification requirements. Table 24.1 sets out the instruments that will be made disallowable by section 214. [Schedule 1, item 34, section 214].

New kind of instrument that is disallowable	What the instrument is about
Determination under paragraph 23HA(a)	This is a determination by the Commonwealth Minister about the way in which notice must be given of an act covered by subparagraph 23F(3)(c)(ii) to relevant representative Aboriginal/Torres Strait islander bodies, registered native title bodies corporate and registered native title claimants. Subparagraph 23F(c)(ii) deals with previous non-exclusive possession acts which take place as the result of a written offer or commitment made before 23 December 1996.
Determination under paragraph 24GB(9)(c)	This is a determination by the Commonwealth Minister about the way in which a person proposing to do certain acts covered by section 24GB must notify relevant representative Aboriginal/Torres Strait islander bodies, registered native title bodies corporate and registered native title claimants. These acts relate to forest operations, horticulture, acquaculture and, in some cases, agriculture.
Determination under paragraph 24GD(6)(a)	This is a determination by the Commonwealth Minister about the way in which a person proposing to do an act covered by section 24GD must notify relevant representative Aboriginal/Torres Strait islander bodies, registered native title bodies corporate and registered native title claimants. Section 24GD deals with certain off-farm activities which are directly connected to primary production activities.
Determination under subparagraph 24GE(1)(f)(i)	This is a determination by the Commonwealth Minister about the way in which a person proposing to do an act covered by section 24GE must notify relevant representative Aboriginal/Torres Strait islander bodies, registered native title bodies corporate and registered native title claimants. Section 24GE deals with the conferral of rights to remove certain natural resources from areas covered by non-exclusive agricultural or non-exclusive pastoral leases. (Refer to Chapter 9).
Determination under paragraph 24HA(7)(a)	This is a determination by the Commonwealth Minister about the way in which a person proposing to do an act covered by subsection 24HA(2) must notify relevant representative Aboriginal/Torres Strait islander bodies, registered native title bodies corporate and registered native title claimants. Subsection 24HA(2) deals with giving leases, permits, or licences in relation to the management or regulation of living aquatic resources or water.

New kind of instrument that is disallowable	What the instrument is about
Determination under paragraph 24ID(3)(a)	This is a determination by the Commonwealth Minister about the way in which a person proposing to do an act covered by paragraph 24IB(b) must notify relevant representative Aboriginal/Torres Strait islander bodies, registered native title bodies corporate and registered native title claimants. Paragraph 24IB(b) deals with certain pre-existing right based acts.
Determination under paragraph 24JB(6)(a)	This is a determination by the Commonwealth Minister about the way in which a person proposing to do certain acts covered by section 24JA must notify relevant representative Aboriginal/Torres Strait islander bodies, registered native title bodies corporate and registered native title claimants. The particular acts covered relate to the construction or establishment of a public work pursuant to a reservation.
Determinations under subsections 24KA(8), 24MD(7), 24NA(9)	These determinations relate to the giving of procedural rights to undetermined native title holders where they are required to be notified of certain acts. The notification can be done in a way determined by the Commonwealth Minister. (These are the same kind of instruments currently covered through paragraph 23(7)(c)). (Refer to Chapters 13, 15 and 16).
Determination under subsection 26A(1)	This is a determination by the Commonwealth Minister that a future act or acts are ‘approved exploration etc. acts’ and therefore excluded from the right to negotiate provisions. (Refer to Chapter 19).
Determination under subsection 26B(1)	This is a determination by the Commonwealth Minister that future acts are ‘approved gold or tin mining acts’ and therefore excluded from the right to negotiate provisions. (Refer to Chapter 19).

Determination under subsection 251C(4) or (5)	This is a determination by the Commonwealth Minister that an area is, or is not, a ‘town or city’. This is relevant to the right to negotiate provisions. (Refer to Chapter 19).
Determination under subsection 252(1)	This is a determination by the Commonwealth Minister about how the public can be notified ‘in the determined way’. This is relevant to the right to negotiate provisions and the provisions dealing with indigenous land use agreements. (This reflects an instrument that is currently disallowable under the NTA).
Determination under paragraph (i) of the definition of ‘infrastructure facility’ in section 253	This is a determination by the Commonwealth Minister that a particular thing is an ‘infrastructure facility’. This is relevant to the exclusion from the right to negotiate provisions of certain compulsory acquisitions for the purpose of conferring rights on third parties. (Refer to Chapter 19).

Provisions relating to the enjoyment of native title rights and interests

24.14 Existing section 211 of the NTA ensures that native title holders can carry on certain traditional activities without a licence, permit or other instrument notwithstanding Commonwealth, State or Territory laws that allow persons to carry on the activity only with a licence etc. So, for example, where a law prohibits fishing without a permit, section 211 operates to allow native title holders to fish without a permit provided that fishing is part of their native title rights and is done in exercise or enjoyment of those rights on a non-commercial basis.

24.15 The Bill amends section 211 by providing that the requirement to get a licence etc. to conduct the traditional activity will still have to be met by native title holders where the law under which the licence etc. is granted or issued allows the grant or issue only for a research, environmental protection, public health or public safety purpose. [Schedule 1, item 31]

24.16 This means, for example, where a law prohibits fishing for an endangered species of fish without a permit, and those permits are only to be granted for the purpose of research, then section 211 does not enable native title holders to fish for the endangered species of fish without a permit.

24.17 The Bill also inserts a note at the end of subsection 211(2) which puts it beyond doubt that in carrying on these activities, native title holders remain subject to laws of general application. So, for example, where a law prevents all persons from lighting fires in certain circumstances (including persons who otherwise have a permit to do so), native title holders are also precluded from lighting fires notwithstanding section 211. [Schedule 1, item 32]

Definitions of various interests in land

24.18 The Bill modifies and inserts various definitions of interests in land. The definitions are mainly used in the provisions dealing with validation of intermediate period acts and confirmation of extinguishment of native title but some are used elsewhere.

Modified definition of agricultural lease to include aquaculture

24.19 The Bill modifies the existing definition of agricultural lease in section 247 of the NTA to include a lease allowing the land or waters which it covers to be used solely or partly for aquacultural purposes. However, this change does not apply for the purposes of the provisions dealing with past acts (Division 2 of Part 2 of the NTA). [Schedule 1, item 46]

What is aquaculture?

24.20 Aquaculture can be described as breeding, keeping and harvesting fish or shellfish and the propagation, maintenance, cultivation and harvesting of aquatic plants.

New definitions

24.21 Several new definitions of interests in land are added to the NTA, as set out in Table 24.2.

Non-exclusive pastoral lease

A pastoral lease that is not an exclusive pastoral lease.

An example is a lease allowing the land it covers to be used for grazing purposes only and which is subject to a reservation allowing Aboriginal people to enter the land for traditional purposes.

[Schedule 1, item 48, section 248B]

Community purpose lease

A lease that meets either of the requirements below.

• It permits the lessee to use the land or waters covered by it solely or primarily for community, religious, educational, charitable or sporting purposes.

• It contains a statement to the effect that it is solely or primarily a community purpose lease or that it is granted solely or primarily for community, religious, educational, charitable or sporting purposes.

An example is a lease granted to a sporting club where the land covered by the lease is to be used as a football field. The definition would not include, for example, a lease granted for the purpose of a national park.

[Schedule 1, item 49, section 249A]

Public works

What is a public work?

24.22 The Bill repeals the definition of ‘public work’ contained in section 253 of the NTA and replaces it with a new definition [Schedule 1, item 59]. The term ‘public work’ is used in the provisions dealing with past acts, intermediate period acts and confirmation of past extinguishment of native title. The new definition of ‘public work’ is essentially the same as the existing definition except that it adds water wells and bores, memorials and the buildings discussed in paragraph 24.22.

24.23 Under the new definition, a public work is any of the things set out below that is constructed or established by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in right of the Commonwealth, a State or a Territory.

• Stock routes that are validated by or in accordance with Divisions 2 or 2A of Part 2 of the NTA. (The Senate made 1997 Government amendments (56), (57) and (48) which are included in the Bill. 1997 Government amendment (57) inserts this limited class of stock route into the definition of ‘public works’ and 1997 Government amendment (56) omits ‘stock route’ from the definition. Stock routes are also added to subsection 212(2) by Schedule 1, item 31A contained in 1997 Government amendment (48) which allows a law of the Commonwealth, a State or Territory to confirm existing public access to and enjoyment of them.)

24.24 A ‘public work’ is also defined to include a building that is constructed with the authority of the Crown, other than on a lease. An example would be a church facility constructed on vacant Crown land in accordance with an agreement with a government.

Land or waters on which a public work is situated are deemed to include certain surrounding areas

24.25 The Bill also makes it clear that the land or waters on which a public work is constructed, established or situated includes any adjacent land or waters whose use is or was necessary for, or incidental to, the construction, establishment or operation of the public work [Schedule 1, item 50, section 251D]. The provisions dealing with validation of past acts and intermediate period acts or confirmation of past extinguishment of native title provide for the extinguishment of native title on land or waters on which a public work is constructed or established.^[58]

Other amendments

NTA provision amended	Explanation
Subsection 212(2),	Subsection 212(2) allows the Commonwealth, States and Territories to legislate to confirm any existing public access to and enjoyment of certain areas, such as waterways, beaches and some public places. The Senate made *1997 Government amendment (18)* which is included in the Bill. This amendment contains Schedule 1 item 31A which will enable the Commonwealth, States and Territories to similarly legislate in respect of stock routes. This amendment is included simply to enable confirmation. It does not indicate any doubt that stock routes currently have full force and effect and that the rights to use them prevail over any native title rights.
Subsection 212(3)	Existing section 212 allows Commonwealth, State or Territory laws to confirm ownership of natural resources and access to public places such as beaches. Subsection 212(3) says that such laws do not extinguish or impair native title. The Bill removes the reference to ‘impair’ in subsection 212(3) because the confirmation of ownership or access may technically impair the enjoyment of native title in some respects. For example, public access to a beach may in some cases impair unhindered enjoyment of native title by native title holders. *[Schedule 1, item 33]*

Section 226	The Bill makes a technical correction to subsections 226(2) and (3) of the NTA, which defines the term ‘act’, by removing the references to ‘subject to subsection (4)’. These references are being removed because there is no subsection 226(4). *[Schedule 2, items 80 and 81]*

Overview

25.1 The amendments described in this Chapter are contained in Schedule 2 of the Bill and affect provisions in the NTA which deal with applications involving native title that can be made under the NTA. One of the main objects of the NTA is ‘to establish a mechanism for determining claims to native title’ (paragraph 3(c) of the NTA). Many of the amendments described in this chapter concern applications for a determination of native title (and to some extent, applications for a determination of compensation), and the way in which such applications are made.

25.2 The remaining amendments deal with other types of applications that can be made under the NTA, including applications that concern future acts. These provisions relate to the object described in paragraph 3(b) of the NTA, which is ‘to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings’. Schedule 1, among other things, describes the future acts that may be done over areas where native title may exist, and Schedule 2, among other things, contains amendments to the provisions dealing with technical and procedural aspects of determinations about future acts. This chapter describes how applications that concern future acts can be made.

25.3 The majority of the amendments in Schedule 2 described in this chapter result from the transfer of certain determination functions in relation to native title and compensation applications to the Federal Court following the High Court’s decision in the Brandy case.^[59] The Brandy case decided that the process by which non-binding determinations made by the Human Rights and Equal Opportunity Commission (HREOC) were to take effect, upon registration with the Federal Court, as though they were orders made by the Federal Court was invalid. The scheme was invalid because it purported to vest the judicial power of the Commonwealth in HREOC, which is not a court for the purposes of Chapter III of the Constitution and cannot therefore be vested with Commonwealth judicial power. When it was handed down the decision cast doubt on the validity of the NTA processes under which determinations made by the NNTT, which is also not a court, take effect, upon registration with the Federal Court, as if they were orders made by that Court (see sections 166, 167 and 168). These doubts were confirmed when the Full Federal Court held in Fourmile^[60] that the scheme established by sections 166, 167 and 168 of the NTA (see paragraph 3.22) is in no relevant way distinguishable from the scheme held to be invalid by the High Court in Brandy.

25.4 Under the current scheme in the NTA, applications for a determination of native title or compensation are lodged with the NNTT and the NNTT has the function of making determinations for unopposed or agreed applications, with opposed applications being referred to the Federal Court. These amendments will mean that the Federal Court will decide all applications for a determination of native title or compensation. Many of these amendments were included in the Native Title Amendment Bill 1995, introduced by the previous Government at the end of 1995. The intention is that the Federal Court will make a ‘once and for all’ determination of native title over a particular area of land or waters.

25.5 This chapter describes amendments which repeal existing Part 3 (entitled ‘Applications’) and replace it with a new Part 3, with the same title. New Part 3 is divided into 6 divisions, and covers all applications involving native title issues that can be made under the NTA to the Federal Court or the NNTT. It explains which applications can be made by whom, and what procedural requirements apply to each type of application.

25.6 This chapter also explains several other items in Schedule 2 which concern applications under the NTA. Several of these items remove references to the NNTT in provisions dealing with determinations, to reflect the transfer of functions to the Federal Court. Others apply limitation periods within which applications for a determination of native title or compensation must be made. For native title determinations, the period is 6 years after the commencement of the amendments. For compensation determinations, the period is 6 years after the commencement of the amendment or 6 years from when the act giving rise to the entitlement to compensation occurs, whichever is later.

Amendments to remove references to the NNTT and the Registrar

25.7 References in section 13 to the Registrar and the NNTT have been removed. Section 13 deals with approved determinations of native title, and the amendments reflect the fact that the NNTT will no longer make approved determinations of native title, and that applications for such determinations will be lodged with the Federal Court instead of the Native Title Registrar. [Schedule 2, items 2, 4, 5, and 7, section 13]

25.8 A reference to the Registrar has been removed from the subsection which deals with the bodies that may determine compensation, and replaced with a reference to the Federal Court. This amendment reflects the new process under which applications for a determination of compensation are lodged with the Federal Court instead of the Native Title Registrar. [Schedule 2, item 8, subsection 50(2)]

25.9 References to the NNTT have been removed from section 55 to reflect the fact that the NNTT will no longer make determinations of native title. Section 55 deals with making determinations under section 56 (which deals with holding native title on trust) and section 57 (which deals with non-trust functions of prescribed bodies corporate). [Schedule 2, items 10, 11 and 12, section 55]

Limitation period applies to applications for determinations of native title and compensation

Limitation period for native title determination applications

25.10 There is now a time limit of 6 years for making an application for a determination of native title under the NTA. This applies to applications covering areas which have not been the subject of any previous approved determinations of native [Schedule 2, item 3, subsection 13(1A)]. The limitation period therefore does not apply to applications for a revised determination of native title, but the circumstances in which these applications can be made are restricted by limiting those who may make these applications under subsection 13(4). The limitation period runs from the date that new subsection 13(1A) takes effect.

Limitation period for compensation applications

25.11 A time limit has also been imposed for making compensation applications for the effect of future acts on native title. The Senate made 1997 Government amendment (58) which is included in the Bill. This amendment to subsection 50 (2A) provides that the time limit is 6 years from the later of the date that new subsection 50(2A) takes effect, or the time at which the act giving rise to the compensation was notified to any registered native title bodies corporate, any registered native title claimants and any representative bodies for the area affected by the compensable act. [Schedule 2, item 9, subsection 50(2A)]

New Part 3 - Applications

25.12 Part 3 of the NTA has been repealed. Like its predecessor, new Part 3 sets out the process for making applications relating to native title but it covers a broader range of applications, by making specific provision for some applications to the Federal Court [Schedule 2, item 19, Part 3]. It also covers new applications that can be made under the NTA to the Federal Court and the Registrar as a result of changes made by Schedules 1 and 2. These are:

• applications to the Federal Court for review of a decision by the Registrar not to accept a claim for registration (section 190D);

• applications to the Federal Court to deregister indigenous land use agreements (section 199C); and

• applications to the Registrar objecting to registration of an indigenous land use agreement (section 24DJ).

Division 1AA - Overview of Part

25.13 There is a brief overview of the purpose of Part 3; Part 3 sets out the processes and requirements for making a range of applications under the NTA which relate to native title. [Section 60A]

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

25.14 Division 1 deals with the applications for determinations of native title and compensation that may be made to the Federal Court. A native title determination is a decision whether or not native title exists in a particular area and if it does exist, who holds it and what rights and interests it comprises (see section 225). This is explained in Chapter 26.

Which applications can be made under Division 1

Table explains who may make applications

25.15 A table sets out the kinds of application that can be made under Division 1, and who can make them. [Subsection 61(1)]

Who can make an application claiming that native title exists?

25.16 This kind of application can be made by one or more members of a native title claim group authorised to do so by that group. The native title claim group (as defined in the table) is comprised of the persons who claim to hold the common or group rights and interests which make up the particular native title which they are claiming. An application for a determination of native title that involves a claim for native title cannot be made unless it is made with the authority of the claim group. Section 251B explains what it means for an application to be authorised. (see below). (It does not necessarily require each member of such a group to have given authority.)

25.17 Only the person(s) authorised to make the application, and not any of the other members of the native title claim group, will be regarded as the applicant for a particular application [subsection 61(2)]. An applicant has particular functions and responsibilities in relation to the application and other matters which may affect the native title of the group. For example, the definition of registered native title claimant makes it clear that if the claim for native title is registered, the applicant will be the registered native title claimant (see Schedule 2, item 99, section 253). Although the other members of the claim group are not to be regarded as the applicant, they must be named or otherwise described in such a way that they can be identified [subsection 61(4)].

Who else can apply for a determination of native title?

25.18 A person who does not claim to hold native title may also apply for a native title determination, for example to establish that there is no native title in a particular area [table, subsection 61(1)]. A person who holds a non-native title interest (for example, a mining lease or a licence) in an area may make this type of application in relation to an area covered by the non-native title interest. The Commonwealth Minister may make an application of this type in relation to any area. Similarly, a State or Territory Minister can make an application of this type in relation to any area within the jurisdictional limits of his or her State or Territory.

Who can make a revised native title determination application?

25.19 An application for revocation or variation of an approved determination of native title as mentioned in subsection 13(1) can also be made [subsection 61(1)]. An application of this kind is called a revised native title determination application. The grounds on which such a determination can be varied or revoked is set out in subsection 13(5), and remain unchanged by this Bill. The table provides that this type of application can only be made by the registered native title body corporate for the area, the Commonwealth Minister, the State or Territory Minister (if the area is within the jurisdictional limits of the State or Territory concerned) or the Native Title Registrar.

Who can apply for a determination of compensation?

25.20 An application claiming compensation is payable under Divisions 2, 3 or 4 of Part 2 of the Act can be made by the registered native title body corporate in relation to the area affected by the future act [table, subsection 61(1)].

25.21 An application for compensation can also be made by one or more persons authorised to do so by the persons who claim to be entitled to the compensation (this group is called the compensation claim group). Again, only the person(s) making the application, and not any of the other members of the compensation claim group, will be regarded as the applicant in relation to that application [subsection 61(2)]. While the other members of the compensation claim group are not regarded as the applicant, they must be named or otherwise described in such a way that they can be identified [subsection 61(4)].

When do persons authorise the making of an application for a determination of native title or compensation?

25.22 The Bill inserts a provision that defines how persons in a native title claim group or compensation claim group can authorise a person or persons to make an application and to deal with matters arising in relation to the application [Schedule 1, item 50, section 251B and item 51]. Such authority must be obtained where an application for a determination of native title or compensation involves a native title claim group or compensation claim group. Table 25.1 sets out how the authority is given. The Senate made 1998 Government amendments (54) and(55) which are included in the Bill. These amendments to the table of persons who may make applications under section 61 in the Bill clarify that the applicant or applicants must be authorised by all the members of the native title claim group (for claimant applications) or all the members of the compensation claim group (for compensation applications). The amendments makes clear that claims cannot be made by subgroups. All the people who assert rights arising from the traditional laws and customs must join in the claim.Table 25.1

What formal requirements apply to making applications?

25.23 Applications under section 61 must give an address at which the applicant can be served documents [subsection 61(3)]. Although there may be two or more persons who comprise ‘the applicant’, an application must only state one name and address for service of the applicant.

25.24 Applications must be in a particular form, known as the prescribed form [subsection 61(5)]. Applications must be filed in the Federal Court, and must contain prescribed information and be accompanied by any prescribed documents and any prescribed fee. The regulations will prescribe the forms, information and documents required for each type of application. Claimant applications have additional information requirements [section 62].

Restrictions on making certain applications

25.25 No application for a determination of native title can be made for an area, whether by a person claiming native title rights or otherwise, if there is already an approved determination of native title about that area. [Subsection 61A(1)]

Claimant applications cannot be made over areas covered by previous exclusive possession acts

25.26 Subject to subsection 61A(4), a claimant application cannot be made over an area where there has been a previous exclusive possession act (that term is explained in section 23B) which is either:

• attributable to a State or Territory (see section 239) where a law of the State or Territory has extinguished native title as described in section 23E. [Subsection 61A(2)]

This limitation reflects the fact that such acts have been confirmed as extinguishing native title.

Claimant applications cannot cover certain rights or interests in previous non-exclusive possession areas

25.27 Subject to subsection 61A(4), a claimant application over an area in relation to which there has been a previous non-exclusive possession act (this term is explained in section 23F), cannot claim exclusive possession in relation to that area [subsection 61A(3)]. Native title rights to exclusive possession cannot be claimed over areas covered by such acts, because such acts of their nature mean that the native title holders can no longer have exclusive possession of the area concerned. Again, the provision only applies where the previous non-exclusive possession act is either attributable to the Commonwealth (see section 23G) or to a State or Territory where a law of the State or Territory has extinguished native title in the circumstances described in section 23G [subsection 61A(3) and section 231].

Exception in sections 47, 47A or 47B cases

25.28 The Senate made 1997 Government amendment (59) which is included in the Bill. This amendment is found in new subsection 61A(4) which ensures that the restriction on claims over areas covered by previous exclusive possession acts and the restriction on claims for exclusive possession over areas covered by previous non-exclusive possession acts, do not prevent a claim being made where, under sections 47, 47A or 47B, any extinguishment of native title would be disregarded. The Senate made 1998 Government amendment (56) replacing subsection 61A(4) in the Bill. This amendment replaces subsection 61A(4) in the Bill with a new subsection which explains that applications which would be covered by sections 47, 47A and 47B are not prevented from being made by either subsection 61A(2) or (3). However, the application must state that section 47, 47A or 47B, as the case may be, applies to it. This amendment is linked to 1997 Government amendment (45R) which contains Schedule 1, item 12A inserting new sections 47A and 47B.

What additional information must accompany claims for native title?

25.29 Certain additional information must be provided in relation to claimant applications and those compensation applications made with the authority of a compensation claim group. [Section 62]

Affidavit about extinguishment, truth and authority

25.30 An application for a determination that native title exists must be accompanied by an affidavit swearing the applicant’s belief that the claimed native title has not been extinguished, that there are no entries for the claim area on the National Native Title Register (which records approved determinations of native title) and that all of the statements in the application are true. The applicant must also swear that there is authority from the other members of the claim group to make the application and act in relation to it, and state the basis for the authorisation [Paragraph 62(1)(a)]. If the applicant consists of 2 or more persons (see paragraph 25.15) each would need to sign the affidavit. The Senate made 1998 Government amendments (57) and (58) which are included in the Bill. These amendments to subsections 62(1) and (3) in the Bill respectively clarify that the affidavit that the applicant must make under those provisions needs to state that the applicant is authorised by all the members of the native title claim group (for claimant applications) or all the members of the compensation claim group (for compensation applications). These amendments ensure the wording in subsections 62(1) and (3) reflects the wording of section 251B (which deals with what it means for the applicant to be authorised by all the persons in the group).

25.31 The application must also include the information listed in subsection 62(2). [Paragraph 62(1)(b)]

• any traditional physical connection by any member of the claim group to any part of the land or waters covered by the application, currently or at any time in the past; or

• if any member of the group has been prevented from gaining access to the land claimed, the circumstances in which the access was prevented [paragraph 62(1)(c)]. This paragraph is included as a result of 1997 Opposition amendment 230 which was made by the Senate. This amendment has the effect of removing the specific reference which allows claimants to specify the circumstance in which access was attempted and leaves only the reference to the circumstance in which access was prevented.

Information to be provided in the application

Boundaries of claim area to be identifiable

25.33 The applicant must provide enough information to allow the external and, where relevant, internal boundaries of the claim area to be identified with certainty [paragraph 62(2)(a)]. The applicant must provide a map showing the external boundaries of the claim area [paragraph 62(2)(b)].

Details of tenure and tenure history searches to be given

25.34 The applicant must include the details and results of all title searches that have been conducted in relation to the claim area [paragraph 62(2)(c)]. In recognition that searches will sometimes be difficult for claimants to complete in the 3 month timeframe (for responding to a section 29 notice) and as searches will sometimes be costly, the Federal Court has been given the power to request this information from State and Territory governments or to request that the Native Title Registrar do such searches (see Chapter 26, item 20, section 83A). It is expected however, that the major source of tenure information would be from the relevant State or Territory government.

Description of native title rights and interests

25.35 The applicant must describe the kind of rights and interests which are being claimed [paragraph 62(2)(d)]. This description must be more specific than merely an assertion that the applicant is claiming whatever native title rights and interests that may exist or have not been extinguished at law. In other words, it will not be enough to claim all native title rights and interests other than those extinguished by or under valid legislation or government acts. The Senate made 1997 Government amendment (60) which is included in the Bill. This amendment also requires the applicants to include details of any activities relating to the exercise of these native title rights and interests.

Description of facts on which claim is based

25.36 The application must also contain information about the factual basis on which it is asserted that native title rights and interests claimed exist, in particular that the claim group have, and the predecessors had, an association with the area, there exist traditional laws and customs that give rise to the claimed native title and that the groups has continued to hold the native title in accordance with those traditional laws and customs [paragraph 62(2)(e)]. It is anticipated that much of this information will be anthropological in nature but the provision only requires a general description; not the kind that would be required for the purposes of the determination of the matter by the Federal Court.

Details of current activities

25.37 The application must also contain information about any current use that the claim group makes of the claim area, or any other activities that they carry out in relation to it (for example, ceremonies carried out elsewhere which relate to the claim area) [subsection 62(2)(f)]. The purpose of this requirement is to ensure that in right to negotiate negotiations about a future act, non-native title parties will be informed about the activity of native title holders in the area which may be affected by the act.

Other applications over the claim area

25.38 The applicant must also provide information about any other native title determinations applications or compensation applications relating to the claim area, if he or she is aware of them [paragraph 62(2)(g)]. This requirement applies whether such applications were made to the Federal Court, the High Court or a recognised State/Territory body.

Section 29 notices affecting the claim area

25.39 The applicant must also include details of any notices about future acts that were given under section 29 and apply to any part of the claim area of which the applicant is aware [paragraph 62(2)(h)]. There is a note drawing attention to the fact that notices under section 29 are relevant to section 190A; if the Registrar is aware that there is a section 29 notice when he or she is applying the registration test to a claim over an area, the Registrar must try to make a decision about registration before the notification period for the section 29 notice expires. This requirement is discussed in more detail in Chapter 29.

Additional information about compensation applications

25.40 An application for a determination of compensation made with the authority of a compensation claim group must be accompanied by an affidavit swearing a belief that the native title exists or used to exist for the area to which the compensation claim relates and that all of the statements in the application are true. (If the applicant consists of two or more persons (see paragraph 25.15) each would need to swear an affidavit). The applicant must also swear that there is authority from the other members of the compensation claim group to make the application and act in relation to it and state the basis on which the applicant is so authorised. The applicant must also provide information about the compensation claim that is equivalent to the information required by subsection 62(2), and may contain details about traditional physical connection with the land (under paragraph 62(1)(c)) as if the application were instead a native title determination application [subsection 62(3)]. A note has been inserted into the subsection dealing with approved determinations of native title in relation to compensation stating that if there has been no previous native title determination application in relation to the area, a compensation application must contain all the information and documents required for a determination application. [Schedule 2, item 6, subsection 13(2)]

Applicant has power to deal with certain matters

25.41 The applicant in relation to a claimant application (ie a person/s authorised by those claiming the rights and interests comprising the particular native title - see the table in subsection 61(1)) or a compensation application authorised by the compensation claim group (see table in subsection 61(1)), can deal with anything arising under the NTA concerning the application [section 62A]. An example of such a matter would be attending a mediation conference convened under section 86B. This ensures that all those who deal with the applicant in relation to matters arising under the NTA can be assured that the applicant is authorised to do so.

Applications filed in the Federal Court to be given to Native Title Registrar

25.42 The Registrar of the Federal Court must give the Native Title Registrar copies of applications filed with the Court under section 61 and all the material accompanying such applications, as soon as practicable [section 63]. The Native Title Registrar will arrange for the notification of applications referred under section 63 to affected persons and the general public [section 66]. The Native Title Registrar also has the function of applying the registration test to claimant applications, under sections 190A to 190C. Because in some cases, the Registrar will be under a statutory obligation to try and make a decision about registration within a particular period (see section 190A), it is important that these copies are provided without any unnecessary delay.

Amendment of applications

25.43 Some rules are set out about how applications may be amended after they have been filed in the Federal Court [section 64]. The note to subsection 64(1) refers to the fact that the Federal Court Rules deal with amendments to applications. The provisions of section 64 modify those rules. The Federal Court may made additional rules that are consistent with section 64.

Amendments cannot increase the area covered by the application except where claimant applications are combined

25.44 An amendment to an application cannot include areas that were not part of the original application [subsection 64(1)]. However, this prohibition does not apply where the increase in the area covered by an application results from the combination of a claimant application with one or more other claimant applications [subsection 64(2)]. The Senate made 1998 Government amendment (59) which is included in the Bill. This amendment inserts new subsection 64(1A) which makes it clear that an application for a determination of native title may be amended at any stage to reduce the area of land or waters covered by the application. The subsection also makes it explicit that the fact that applications may be amended to reduce the area does not imply that applications cannot be amended in other ways. As the note to new subsection 64(1A) suggests in its reference to section 85, the Court may make a costs order in appropriate circumstances, for example where the amendment is made after respondents have been put to significant, unnecessary expense.

Application may be amended while the registration test is being applied

25.45 An application can be amended even if the Registrar is considering it against the criteria for registration under section 190A [subsection 64(3)]. The Registrar would be given a copy of the amended application [subsection 64(4)], and would apply the registration test to the amended application (see definition of ‘claimant application’ in Schedule 2, Part 1, item 93, section 253).

Federal Court Registrar to give amended applications to Native Title Registrar

25.46 As noted in the previous paragraph, the Federal Court Registrar is obliged to give the Native Title Registrar copies of amended applications as soon as practicable. [Subsection 64(4)]

Amendments to change the applicant for a group application

25.47 When a claimant application or a compensation application involving a compensation claim group is amended to replace the applicant with a new applicant, that new applicant must provide an affidavit showing authority from the group (and the basis for that authority) to deal with matters relating to the application [subsection 64(5)]. A new applicant may be required, for example, if an original applicant, or one of the group of persons that together make up the applicant, becomes incapacitated or dies.

Registrar to give notice of applications

25.48 One of the Native Title Registrar’s most important functions is to give notice of applications given by the Registrar of the Federal Court to the Registrar under section 63. [Subsection 66(1)]

Copies of applications to be given to relevant State/Territory Ministers and representative bodies

25.49 The Registrar must give a copy of an application and its accompanying documentation to the applicable State or Territory Minister as soon as reasonably practicable [subsection 66(2)]. This will ensure that the State or Territory Minister is in a position to decide whether to apply to strike out the application (see section 84C).

25.50 The Senate made 1997 Opposition amendment (239) which is included in the Bill. This amendment requires the Registrar to provide a copy of an application and other documents given to the Registrar under section 63 to the representative body for the area covered by the application as soon as reasonably practicable after receiving it from the Registrar of the Federal Court [subsection 66(2A)]. This puts representative bodies on the same footing as State and Territory governments in relation to advance notice of applications.

Who must be given notice of an application?

25.51 The Registrar must give a notice containing details of the application to the following:

• any registered native title claimants for any part of the application area (other than the applicant);

• registered native title bodies corporate in any part of the application area (if any);

• any representative bodies for any part of the application area (although representative bodies receive a copy of the application and related documents under subsection 66(2A), they are also given notice under subparagraph 66(3)(a)(iii) so that they know that notification has been given, the date of the notification day and whether the claim has been accepted for registration).

• any person holding a registered proprietary interest in any part of the application area as at the date when the application was filed (but this requirement is subject to the proviso that notice need not be given if the Registrar feels that in the circumstances, it would be unreasonable to have to notify that person - this provision is contained in subsection 66(5));

• if the Registrar considers it would be appropriate, any person whose interests may be affected by a determination in relation to the application. An example of such a person may be the native title claimant in relation to an application that has failed the registration test or an application which has a decision on registration pending or a person who has made a native title claim under the common law. [Subsection 66(3)]

25.52 When deciding whom to notify, the Registrar can seek an order from the Federal Court to clarify who must be given notice of the application and in what way the notice must be given. [Subsection 66(7)]

• give a copy of the notice to the Federal Court (so that they know that notification has happened and the date when it happened) [paragraph 66(3)(b)];

• give a copy of the notice to the relevant State or Territory Minister(s) for the application area (again so that they know that notification has been given and the relevant date) [paragraph 66(3)(c)]; and

• notify the public in the way determined by the Commonwealth Minister (section 252 explains the term notify the public in the determined way). This will help ensure that any other person who may have an interest in the area or claims to have native title in the area claimed has an opportunity to become a party to the proceeding. [Paragraph 66(3)(d)]

No need to notify if application is struck out

25.54 The obligation on the Registrar to notify is however qualified. There is no such obligation where a motion to strike out the application was made by a State or Territory Minister within 28 days of the State or Territory Minister receiving the copy of the application under subsection 66(2) and results in the application being struck out by the Federal Court under section 84C [subsection 66(4)]. This ensures that NNTT resources are not spent notifying claims that will not proceed.

Registration decisions to be made before claimant applications are notified

25.55 The Registrar must not give notice of a claimant application until he or she has decided whether to register the claim under section 190A. When the notice is given, it must indicate whether the claim has satisfied the registration test. [Subsection 66(6)].

What is the notification day for an application?

25.56 The notification day for an application is relevant to determining when those wanting to become parties must notify the Federal Court of that fact (see subsection 84(3)). All notices for a particular application must specify the same day as the notification day [subsection 66(8)]. That day must be a day when, in the Registrar’s opinion, it can reasonably be assumed that all the notices will have reached their destinations or otherwise have come to the attention of the intended recipients [subsection 66(9)].

What other details must the notice contain?

25.57 The notice must draw attention to the operation of some aspects of the NTA which may affect the notified person’s decision about whether, when and how to respond to a notice [subsection 66(10)]. In the case of non-claimant applications (item 95 inserts a definition of this term into section 253, these are applications for a determination of native title by a person who does not claim to hold native title) the notice must include a statement that section 24FA protection will apply to the area covered by the non-claimant application unless there is a relevant native title claim relating to that area at the end of 3 months from the notification day [paragraph 66(10)(a)]. The concept of section 24FA protection is explained in Chapter 8 of this Explanatory Memorandum.

25.58 A notice about a native title determination application must make it clear that as there can be only one determination of native title for an area, a person wishing to have his or her native title interests taken into account by the Federal Court, but who does not become a party to the application to which the notification relates, may not have another opportunity to bring those interests to the Court’s attention. [Paragraph 66(10)(b)]

25.59 Finally, the notice must also indicate that a person wishing to become a party to the application has 3 months from the ‘notification day’ (see paragraph 25.57) to advise the Federal Court of this in writing, and that otherwise that person would need to get the leave of the Federal Court under subsection 84(5) to be a party. [Paragraph 66(10)(c)]

Notification of amended applications

Notifying amended applications where the application area has changed

25.60 The Native Title Registrar must give notice of an amended application where the area covered by the application has changed but not as a result of being combined with other claimant applications [subsection 66A(1)]. As noted previously, the only way in which the area covered by an application can be increased is if the application is combined. The Registrar must give the notice to all parties to the original application, and if the notification period in the notice for the original application has not ended, notice must be given to everyone who was given notice of that application. This ensures that notification must be given of amendments which change the area affected by the application and therefore the potential parties. (Under subsection 84(5), any person may apply to the Federal Court at any time to become a party to proceedings in relation to an application made under section 61.)

Notifying combined applications

25.61 When applications are combined, the Registrar must notify everyone who was a party to any proceedings relating to any of those applications that the applications have been combined [subsection 66A(3)]. The parties to a combined application will include all of the parties to any proceedings relating to the applications which have been combined [subsection 66A(5)]. Also, if the notification period for any of the applications that have been combined has not ended, the Registrar must notify everyone who was notified of that application about the combination.

Federal Court orders about notice of amended applications

25.62 The Registrar may ask the Federal Court for an order about whether notice must be given to a particular person, and if so, how the notice is to be given [subsection 66A(3)]. For instance, the Registrar may seek an order that, where there are a number of amendments to the application, notification can be limited to those whose interests are actually affected. The Federal Court can direct the Registrar to give additional notice of the amended application where the Court considers it appropriate [subsection 66A(4)].

Replacing the applicant

25.62a The Senate made 1998 Government amendment (60) adding new section 66B which deals with replacing the applicant or applicants for a claimant application or compensation application. The effect of the amendment is to enable one or more members of the native title claim group or compensation claim group to obtain an order from the Federal Court to replace the current applicant or applicants in relation to the application if certain grounds are met. The grounds for replacement are that either the current applicant no longer has the authority of the claim group to make the application and deal with related matters, or that the current applicant has exceeded that authority, and also that the new applicant would have the necessary authority to represent the claim group (see sections 62A and 251B). If the Federal Court is satisfied that these grounds have been made out and makes the order, the Native Title Registrar must be notified by the Federal Court Registrar of the new applicant’s name and address for service. If the application is registered, the Registrar must then amend the Register of Native Title Claims. See also 1998 Government amendment (43) which appropriately amends section 30 in relation to who is the native title party in a right to negotiate.

Overlapping native title determination applications

25.63 The Federal Court may be required to deal with applications for a determination of native title which cover part or all of the same area. It is intended that consideration by the Federal Court of an application for a determination of native title should involve consideration of all issues of native title in relation to that area. The Federal Court is required to make such orders as it considers appropriate so that, to the extent of the overlap, applications with overlapping areas are dealt with in the same proceeding [subsection 67(1)]. In some cases, these orders may require that an application be dealt with in the same proceeding as another application to the extent that those applications cover the same area; and/or may require that an application be split so that different parts of the application are dealt with in separate proceedings [subsection 67(2)].

Only one determination of native title to be made for an area

25.64 The Federal Court cannot consider applications for a determination of native title, or make a determination of native title, if there is already an approved determination of native title for that area. The only exceptions are where there is an application to revoke or vary the determination, or it is being reviewed or appealed [section 68]. This is related to paragraph 13(1)(a), which precludes applications for a determination of native title covering areas for which an approved determination of native title has been made.

Division 1A - Other applications to the Federal Court

25.65 Division 1A deals with other applications involving native title issues which may be made to the Federal Court.

What other applications can be made?

25.66 A table sets out the types of applications that may be made under this Division [subsection 69(1)]. The table sets out three types of applications that may be made under the Division relating to native title and who can make each of them. The Division also applies to other applications made to the Federal Court under the NTA [subsection 69(2)]. The applications listed in the table are described in the following paragraphs.

Claim registration application

25.67 The first item in the table concerns applications made under subsection 190D(2) for review of a decision by the Registrar not to accept a claim for registration. These applications can be made by the applicant in relation to the application under section 61.

Application to remove agreement from Register

25.68 Applications under section 199C(2) for an order to remove the details of an agreement from the Register of Indigenous Land Use Agreements are the second item in the table. Applications of this type can be made by a party to that agreement or by a representative body for the area to which the agreement relates. The grounds for making such an order are set out in subsection 199C(3) and are explained in Chapter 22 of this Explanatory Memorandum.

Applications about transfer of records

25.69 The final item in the table deals with applications under subsection 203FC(4) for orders to ensure that a representative body complies with directions under subsection 203FC(1). That subsection permits the Commonwealth Minister to issue directions about the transfer of records from a representative body that is no longer recognised as such for an area to the representative body which replaces it for that area, and subsection 203FC(4) enables the Court to make orders compelling a representative body to comply with a direction about the transfer of records. A person who is affected by the representative body’s non-compliance can make an application of this type.

Federal Court Rules about applications apply etc

25.70 Applications covered by Division 1A must be filed in the Federal Court, and must comply with any Federal Court Rules dealing with formal and procedural requirements for making such applications [section 70]. It should be noted that paragraph 59(2)(zj) of the Federal Court Act 1976 enables the Federal Court to make rules about the practice and procedure of the Federal Court in relation to any matter arising under NTA. The application must be accompanied by any prescribed fee.

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

25.71 Division 2 deals with applications made to the National Native Title Tribunal for determination which relate to acts covered by Subdivision P of Division 3. That subdivision deals with the right to negotiate. The provisions in Division 2 substantially replicate the content of existing sections 75 to 77.

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

25.72 Division 2A deals with applications that are made to the Native Title Registrar for a determination by the NNTT of an objection under section 24DJ against the registration of an indigenous land use agreement. The formal requirements for making such an application as set out in section 77A are as follows:

• it must set out the reasons why it would not be fair or reasonable to register the indigenous land use agreement.

The application must be accompanied by any prescribed documents and any prescribed fee [section 77A]. The Registrar must accept an application objecting to the registration of an indigenous land use agreement if the application complies with section 77A [section 77B].

Division 3 - Miscellaneous

25.73 Division 3 contains 2 miscellaneous provisions - the provision of assistance by the Registrar (which is explained in Chapter 27 of this Explanatory Memorandum) [section 78] and a requirement that persons involved in negotiations which concern compensation applications must consider, and negotiate in good faith, requests by the other negotiation parties for non-monetary compensation [section 79].

Overview

26.1 This Chapter explains amendments in Schedule 2 which contain new Divisions 1, 1A and 1C of Part 4 of the NTA. That Part is headed ‘Determinations of the Federal Court’. These amendments concern the way in which the Federal Court makes decisions. This Chapter also explains amendments elsewhere in Schedule 2 which concern the Federal Court’s operations.

Division 1- Overview of Part

26.2 Division 1 contains an overview of Part 4 of the NTA explaining that it contains the rules for dealing with applications involving native title issues and that the Part also has provisions for mediation, finalising agreed and unopposed applications, conferences and Federal Court orders. [Schedule 2, item 20, section 79A]

Division 1A - General

26.3 Division 1A contains provisions which apply generally to native title related applications brought in the Federal Court. The provisions of Part 4 apply to all Federal Court proceedings involving applications to the Federal Court about native title issues [section 80]. The provision is in all material respects the same as current section 80.

Jurisdiction of the Federal Court

26.4 The Federal Court has the power to hear and decide applications relating to native title which are filed with it. No other Court with federal jurisdiction, except the High Court, has power to decide these matters [section 81]. However, State or Territory courts operating as recognised State/Territory bodies in accordance with the NTA (see Chapter 25) may make approved determinations of native title for the purposes of the NTA (see subsection 13(3)). The NTA does not vest federal jurisdiction in these bodies; the NTA simply recognises the decisions of those bodies. Such recognised State/Territory bodies will be exercising jurisdiction conferred on them by State or Territory laws. Other State/Territory bodies may also have jurisdiction conferred on them by State/Territory laws.

Federal Court’s way of operating

26.5 The provisions concerning the way in which the Federal Court is to operate have been changed. The Court is bound by the rules of evidence when considering native title issues, except to the extent that it has made an order which involves a departure from these rules [subsection 82(1)]. It will now be clear that the Court has a discretion to take account of the cultural and customary concerns of indigenous peoples but not so as to prejudice unduly any other party to the proceedings [subsection 82(2)]. The word ‘unduly’ was inserted by 1997 Government amendment (61) which was made by the Senate and included in the Bill. This amendment implements a recommendation of the Majority Report of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund on the Bill. The current provisions describing the way in which the Court is to pursue certain objectives have been removed as they are unnecessary.

Assessor assisting the Federal Court

26.6 Section 83 is unchanged from the current NTA, and provides for an assessor to assist the Federal Court in relation to proceedings. There are currently no assessors.

Federal Court may request searches to be conducted

26.7 The Federal Court may request the relevant State or Territory Minister or, if there is no State or Territory Minister as a party to a proceeding or the Court considers it appropriate, the Native Title Registrar, to conduct searches of registers and other records of interests in land and waters [section 83A]. It is intended to assist the Federal Court to gather further information relevant to a proceedings. It is not intended that any charge normally payable in relation to the conduct of any such searches would not be payable in relation to searches conducted at the request of the Federal Court.

Parties

26.8 Section 84 explains who are the ‘parties’ to an application made under section 61. These are applications for a determination, or a revised determination, of native title and compensation applications. The applicant is always a party. In brief, the other parties may include:

• the people who were notified under paragraph 66(3)(a) (these are described in Chapter 25);

• any persons (other than the applicant) claiming to hold native title to the application area; and

• any other person whose interests may be affected when the matter is determined by the Court.

However, persons listed above will only be parties if they inform the Federal Court within the notification period (ie the period of 3 months commencing on the ‘notification day’ as set out in the notice (subsection 66(8)) that they want to be a party.

Is the State/Territory Minister for the area concerned always a party?

26.9 If an area covered by an application is within the jurisdictional limits of a State or Territory, the State/Territory Minister is automatically a party unless the Minister gives the Court written notice to the contrary within the period of 3 months after the notification day. [Subsection 84(4)].

Court can join parties to a proceeding at any time
26.10 The Federal Court has a discretion to join any person as a party at any time. The Senate made 1998 Government amendment (62) which is included in the Bill. This amendment to proposed subsection 84(5) in the Bill limits the Court’s power to add a person as a party by requiring that the Court must first be satisfied that the person’s interests may be affected by the outcome of the case. The person’s ‘interests’ are not confined to ‘interests in relation to land or waters’ as defined in section 253. The purpose of this amendment is to make it clear that in order to be a party to a native title matter, a person must be able to show that their interests would be affected by the result, so that the proceedings do not become burdened by a large number of respondents who are not likely to be affected. [Subsection 84(5)]
Exercising an existing public right or access or use

26.10a The Senate made 1998 Government amendment (63) which is included in the Bill. This amendment inserts new subsection 84(5A) which provides that where the Federal Court is satisfied that a person who wants to join a proceeding only has a public right of access to or use of any of the area claimed, the Court is able to make orders ensuring that the person’s interests are properly represented in the proceedings, but need not, however, join more than one such person as a party. For example, the Court may order that one person or organisation represent all recreational fishers, and that the person be notified, and given an opportunity to participate, if any claim is made which may interfere with recreational fishing.

When can a party withdraw?

26.11 Any party, other than the applicant, may withdraw from the proceedings by giving written notice to the Court provided that there has been no hearing of the substantive matters raised in the application. This may mean, for example, that a party could withdraw by giving written notice notwithstanding that interlocutory or directions hearings have been held [subsection 84(6)]. After the substantive hearing has commenced a party can only withdraw with the leave of the Federal Court [subsection 84(7)]. The Federal Court also has the power to dismiss a party, by ordering that the person cease to be a party to a proceeding [subsection 84(8)]. This power does not permit the Federal Court to dismiss the applicant.

When will the Court consider dismissing parties?

26.11a The Senate made 1998 Government amendment (64) which is included in the Bill. This amendment inserts new subsection 84(9) which explains that the Federal Court is to consider whether or not to order under subsection 84(8) that a person cease to be a party if it is satisfied that:

• if the person has an interest in the proceedings merely because he or she enjoys a public right of access or use of the area claimed, the person’s interests are properly represented by another party; or

• the person never had, or no longer has, an interest that may be affected by the outcome of the proceedings.

This amendment will ensure that Federal Court proceedings are not burdened by the involvement of persons whose interests are not affected by the proceedings, or whose interests can be adequately represented by one person or body

Intervention by Commonwealth Minister

26.12 The Commonwealth Minister, on behalf of the Commonwealth, may intervene in a proceeding before the Federal Court in a matter arising under the NTA [section 84A]. The right to intervene may be exercised, for example, in cases raising issues of public importance. It reflects the overall national policy interest the Commonwealth has in proceedings under the Act. If the Commonwealth does intervene, the costs in such a case may be awarded against the Commonwealth so as to ensure that other parties are not prejudiced by an intervention [subsection 84A(2)].

Commonwealth a party for purposes of appeal

26.13 The Commonwealth Minister may appeal from a judgment given in a proceeding in which the Minister has intervened [subsection 84A(3)]. If the Minister institutes an appeal from a judgment, a court may make an order as to costs against the Commonwealth [subsection 84A(4)].

Parties may appoint an agent

26.14 A party may appoint a society, organisation, association or other body as that party’s agent in the proceeding [section 84B]. That agent may act for more than one party in the proceeding. For example, a number of pastoralists who are parties to a proceeding and have similar interests could appoint a peak body to act as their agent in the proceeding. The body might also arrange, for example, for a number of parties to be represented by one legal practitioner. The common law rules of agency will apply where an agent acts on behalf of a party to the proceeding.

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

26.15 A party to a proceeding can at any time ask the Federal Court to strike out an application on the basis that it does not fulfil the requirements of sections 61 (which sets out the basic requirements for applications), 61A (which restricts the making of certain applications) or 62 (which sets out the details to be included in applications and affidavits) [subsection 84C(1)]. The Senate made 1998 Government amendment (65) which is included in the Bill. This amendment inserts a note at the end of proposed subsection 84C(1) in the Bill to explain that the application under section 61 may still be amended after a strike-out application has been made. This amendment will put beyond doubt that applicants are able to amend their applications so that they comply with the requirements of section 61, section 61A and section 62. Where such an application for strikeout is made, the Federal Court must consider it before further proceedings take place in relation to the application in relation to which the strikeout is sought [subsection 84C(2)]. The Registrar of the Federal Court must inform the Native Title Registrar about the strike-out motion and its result [subsection 84C(3)]. The power to strike out an application under section 84C is in addition to any other powers the Federal Court may have to strike out an application [subsection 84C(4)].

Representation before Federal Court

26.16 Section 85 is very similar to section 85 in the current NTA. It provides that a party can address the Court themselves or be represented by a legal practitioner or, with the leave of the Court, by another person.

Costs

26.17 Parties are to bear their own costs in a proceeding unless the Court orders otherwise [subsection 85A(1)]. For example, the Court could order a party to pay some or all of the costs of other parties where it considers that the party has unreasonably caused the other parties to incur costs. This does not however, limit the circumstances in which the Court may ‘order otherwise’ [subsection 85A(2)].

Evidence and findings in other proceedings

26.18 Section 86 is almost identical to section 86 in the current NTA and provides that the Court can receive into evidence:

• transcripts of evidence in proceedings before an assessor or in other proceedings;

• take into consideration any relevant recommendations and decisions made by an assessor, any other court or any other body.

This provision enables the Court to save time or resources by choosing not to reconsider matters that have already been canvassed in earlier proceedings. However, this power is subject to the rules set out in subsection 82(1) about the rules of evidence.

Division 1C - Agreements and unopposed applications

26.19 Division 1C deals with agreements about applications and unopposed applications. Under the NTA as originally enacted, the NNTT had the power to make determinations about agreed or unopposed applications, but this function is transferred by these amendments to the Federal Court, as explained in the Overview in Chapter 25.

Agreement to settle application

26.20 Provision is made to facilitate agreements to settle applications which do not necessarily result in a determination of whether native title does or does not exist [section 86F]. The parties to a proceeding may negotiate to reach an agreement [subsection 86F(1)], and may seek the assistance of the NNTT with negotiations [subsection 86F(2)]. The agreement can be about the withdrawal or amendment of the application, the parties being varied or anything else being done in relation to the application. The agreement is not limited to native title issues [subsection 86F(1)]. This is a new provision designed to facilitate agreements which may result in the settling or withdrawal of an application based on an agreement about native title-related matters or even non-native title matters.

Adjournment for negotiations

26.21 In order to facilitate the making of these agreements, the Federal Court may order the adjournment of a proceeding, at any stage, so that the parties can negotiate [subsection 86F(3)]. This does now however limit the grounds on which the Court may otherwise make an order for an adjournment [subsection 86F(5)]). The Court can cancel the adjournment and resume the proceedings either on its own motion, at the request of a party or if the NNTT reports that the negotiations are unlikely to be succeed [subsection 86F(4)].

Unopposed applications

26.22 Where an application is unopposed at the end of the notification period of three months (subsection 66(10) and discussion at paragraphs 25.54 and 25.56), the Federal Court may make an order consistent with the terms of the determination sought by the applicant [subsection 86G(1)]. The Court does not need to hold or complete any hearing of the application before making such an order if it thinks this would be appropriate. An unopposed application is one where either the only party is the applicant or any other party to the application has informed the Federal Court that he or she does not oppose the application [subsection 86G(2)]. An order made by the Court under this section must set out the details required by section 225 (see section 94A explained at paragraph 26.24).

Power of Federal Court if parties reach agreement

26.23 The rules about the powers of the Federal Court when the parties reach agreement are substantially the same as in the current Act [section 87]. They take account of the important role that negotiation is intended to play in settling applications made under the Act. If the parties reach an agreement on the terms of an order in relation to the proceedings, the Court may make that order, or one consistent with it, without holding a hearing or without completing the hearing [subsection 87(2)]. If the Federal Court makes an order on terms agreed to by the parties which involves a determination of native title, the order must comply with section 94A, explained directly below (see note under subsection 87(2)).

Order containing determination of native title

26.24 The Federal Court must set out the full details required by section 225 when it makes an order involving a determination of native title. [Schedule 2, item 21, section 94A]

Determination of native title

26.25 There is a new definition of the term determination of native title. [Schedule 2, item 79, section 225]. In brief, this is a determination about whether native title exists over a particular area and, if it does exist, it determines:

• which persons or groups of persons hold the rights which make up the native title. (This paragraph was inserted by 1997 Government amendment (71) which was made by the Senate and included in the Bill. The purpose of this paragraph is to make clear that there can be more than one group of native title holders for one area of land. For example, several different groups may have access rights. Paragraph 225(a) will ensure that determinations clearly identify who the native title holders are and how, in terms of group composition, they hold the native title.);

• the relationship between the native title rights and interests and those other interests, taking account of the effect of the NTA (for example, that activities under valid leases, licences etc prevail over native title rights and interests (section 44H)); and

• in relation to areas that are not non-exclusive pastoral or agricultural leases, whether the native title holders have exclusive possession of the area.

26.26 The Senate made 1997 Government amendment (72) which is included in the Bill. This amendment adds a note to section 225 in the Bill to explain that when making a determination of native title that deals with other interests in the area, the determination can refer to particular kinds of non-native title interests rather than detailing each non-native title interest, or even each category of interest. For example the determination could be that fishing licences exist in the area, and that the native title rights are subject to those licences. Failure to specify such other interests, whether individually, by category or by kind, will have no effect on those interests.

Searches for Federal Court etc

26.27 The Native Title Registrar can conduct any searches that are requested by the Federal Court under new section 83A, or which are needed for the purposes of applying the registration test under section 190A. [Schedule 2, item 22, section 97A]

Appeal to Federal Court from indigenous land use agreement registration decision

26.28 A party to an inquiry before the NNTT relating to the registration of an indigenous land use agreement may appeal to the Federal Court from the NNTT’s decision on a question of law. Such inquiries are held by the NNTT under section 139. [Schedule 2, item 47, subsection 169(2)]

26.29 Existing subsections 169(2) and (3) have been repealed consequent on the change in role for NNTT in relation to applications.

Recognised State and Territory bodies

26.30 There have been some amendments to subsection 251(2) which lists the criteria about which the Commonwealth Minister must be satisfied before making a determination that a particular State or Territory body etc is a recognised State/Territory body. The Senate made 1997 Government amendment (73) which is included in the Bill. This amendment removes item 84 which is unnecessary in light of Schedule 5, subitem 14(8). The transitional provisions ensure that determinations which were made under the old Act continue to recognise the South Australian native title system [Schedule 5 subitem 14(8)]. [Section 251 has been renumbered and is now section 207A.] However, some amendments to the South Australian system will be required to ensure a nationally consistent approach to the recognition and protection of native title.

26.31 The amendments replace the subparagraph dealing with future act determinations with new paragraphs which require:

• that State/Territory bodies must have future act procedures which are consistent with the NTA; and

• that the State/Territory future act system will require a decision to be made about an application based on criteria consistent with the NTA’s registration test (set out in sections 190B and 190C).

26.32 The paragraph which required the State or Territory to consult with the Commonwealth Minister on non-judicial appointments to a recognised State/Territory body under section 251 has been removed. [Schedule 2, item 86]

26.33 The recognised State/Territory body is required to notify the Native Title Registrar of any claims in applications or amended applications which pass an equivalent test to that set out in sections 190B and 190C. The Registrar must also be notified of the withdrawal or dismissal of applications about which he or she was previously notified and, in some cases, the amendment of those applications. This will enable the Register of Native Title Claims to be kept up to date. [Schedule 2, item 87, subparagraphs 251(2)(ia), (ib) and (ic)] The Senate made 1997 Government amendment (74) which is included in the Bill. This amendment corrects a drafting error making it clear that item 87 amends subparagraph 251(2)(i)(i) not paragraph 251(2)(i).

26.34 In relation to the potential de-recognition of a recognised State/Territory body, the Commonwealth Minister has been given the ability to extend the time by which he or she must revoke a previous determination. The extension is in recognition that 90 days may not always be sufficient time for a State or Territory to put amending legislation in place. [Schedule 2, item 88, paragraph 251(4)(b)]

26.35 There is a consequential amendment to replace the reference in subsection 251(6) to Division 1 of Part 4, with a reference to Division 1A of Part 4. This change reflects the amendments to Part 4 described in Chapter 25. [Schedule 2, item 89, subsection 251(6)]

Change in section number after commencement of the new Act

26.36 So that provisions relating to recognised State/Territory bodies and equivalent State/Territory bodies can be co-located after the commencement of the new Act, section 251 will be renumbered section 207A and moved to proposed Part 12A [Schedule 2, item 90, section 251]. Section 207B deals with equivalent State/Territory bodies who may take on some or the majority of functions of the NNTT (see Chapter 27).

Overview

27.1 This chapter describes the amendments in Schedule 2 to provisions in the NTA governing the operation of the National Native Title Tribunal (NNTT). The role of the NNTT is substantially altered by the amendments which transfer certain native title related functions to the Federal Court following the High Court’s decision in the Brandy case and the Full Federal Court’s decision in the Fourmile case (see Chapters 3 and 25).

27.2 The NNTT’s role has been enhanced by the addition of a number of functions, including additional mediation and assistance roles.

Functions of the NNTT

27.3 The NNTT’s functions now include mediation of native title and compensation claims in Federal Court proceedings [Schedule 2, item 24, subsection 108(1A)]. The NNTT has also been given the function of assisting or mediating if requested to do so in accordance with any provision of the amended NTA [subsection 108(1B)]. The Senate made 1997 Government amendment (78) which is included in the Bill. This amendment will replace subsection 108(1B) when Schedule 3 Part 2 (the later representative body amendments) take effect. New subsection 108(1B) will give the NNTT the function of entering into contracts with representative bodies to assist with their dispute resolution functions. (This could include, for example, a request to assist with a statutory access agreement or an Indigenous Land Use Agreement (see, for example, sections 44B(4), 24BF, 24CF and 24DG).)

Operations of the NNTT

27.5 The Tribunal will have a discretion to take into account the cultural and customary concerns of Aboriginal people and Torres Strait Islanders in all its functions, but not so as to prejudice unduly any party to any proceeding [Schedule 2, item 25, subsection 109(2)]. A proceeding will include a claim or right to negotiate process. The word ‘unduly’ was inserted by 1997 Government amendment (62) which was made by the Senate and included in the Bill. This amendment implements a recommendation of the Majority Report, dated 27 October 1997, of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund on the Bill.

27.6 As with other Commonwealth tribunals, the Tribunal will continue not to be bound by technicalities, legal forms or rules of evidence in relation to any of its functions. [Schedule 2, item 26, subsection 109(3)]

27.7 In arranging the business of the Tribunal, the President will additionally have power to give directions in relation to the persons who are to conduct mediations or provide assistance in making or negotiating agreements under the Act. [Schedule 2, item 29, paragraph 123(1)(b)]

27.8 An amendment to section 140 ensures that an inquiry by the NNTT can cover more than one objection. The Senate made 1998 Government amendment (90), which is included in the Bill. This amendment is linked to 1998 Government amendment (89) and omits item 37 in Schedule 2 of the Bill. That item would have replaced the word ‘application’ in section 140 with the phrase ‘application or objection’, but this is no longer necessary with the amendment to paragraph 139(d) which refers to ‘applications’ rather than ‘objections’. [Schedule 2, item 37, section 140]

27.9 The NNTT may make a determination in relation to an objection to the registration of an indigenous land use (alternative procedure) agreement or a right to negotiate application ‘on the papers’ without holding a formal hearing. This can only be done where the issues for determination can be adequately determined in the absence of the parties [Schedule 2, item 41, subsection 151(2)]. A consequential amendment has also been made to section 142 [Schedule 1, item 29].

27.10 This process for a determination without a formal hearing is likely to be used more readily in future years where a number of key issues have already been determined, such as when there has been a determination of native title in relation to the area and perhaps a right to negotiate process and arbitration in relation to an earlier section 29 notification. In these circumstances, and where there are no additional factors to take into account, it could be more efficient for the NNTT to make the determination without hearing the parties in person. There may be many other circumstances where a formal hearing is unnecessary in order for the NNTT to deal with an issue.

27.10a The Senate made 1998 Government amendment (91), which is included in the Bill. This amendment inserts replacement item 40 and a new item 40A in Schedule 2 of the Bill. Replacement item 40 repeals section 148 which deals with the power of the NNTT to dismiss applications where no prima facie case has been made out.

27.10b Replacement item 40 inserts new section 148 which states that the NNTT has the power to dismiss an application during an inquiry either for lack of jurisdiction or failure of the applicant to progress the application or comply with NNTT directions.

27.10c The relevant applications are not native title determination or compensation applications, which under the provisions in the Bill will be dealt with by the Federal Court. Rather, these are applications dealing with the right to negotiate and applications under subsection 24DJ(1) objecting to the registration of alternative procedure indigenous land use agreements. These limited provisions will assist the NNTT to more efficiently and appropriately manage its processes. The NNTT also has power to dismiss an application which is frivolous or vexations (section 147) or where the applicant requests dismissal (section 149).

27.10d New item 40A inserts a new section 149A which provides that the NNTT has power to reinstate an application which has been dismissed in error. This is based on subsection 42A(10) of the Administrative Appeals Tribunal Act 1975.

Assistance in relation to proceedings

27.11 The NTA does not currently provide for the Registrar to give assistance to respondents to native title claims. The Registrar will now be empowered to give assistance to both applicants and respondents at any stage of the proceeding in matters related to the proceeding [Schedule 2, item 19, subsection 78(1)]. This assistance does not include financial assistance.

27.12 The assistance can include providing research services or conducting searches of registers or other records of current or former interests in land or waters [subsection 78(2)]. In fact, information about such records is more likely to be of relevance to respondents than applicants.

27.13 However, unless the Native Title Registrar considers there are ‘special reasons’ for doing so, assistance is not to be given to the Commonwealth, a State or a Territory to search registers or other records held by that government. [Subsection 78(3)]

Power of the Registrar - registers and other public records and information

27.14 The Native Title Registrar has the powers set out in Parts 7, 8 and 8A in relation to the Register of Native Title Claims, the National Native Title Register and the Register of Indigenous Land Use Agreements, respectively. [Schedule 2, item 23, section 98]

27.15 The Registrar has been given the power to keep appropriate records or information (in addition to the National Native Title Register, the Register of Native Title Claims and the Register of Indigenous Land Use Agreements) and to make them available to the public. This will allow the Registrar to keep records, for example, of claims which have not passed the registration test or which have been dismissed or withdrawn. It acknowledges the public interest in having additional information available to that entered on the three statutory Registers [Schedule 2, item 23, section 98A]. The Registrar is under an obligation not to make such information available where it would not be in the public interest for the information to be available to the public [subsection 98A(2)]. The cultural and customary concerns of indigenous peoples must be considered in determining whether the release of information is in the public interest [subsection 98A(3)].

Presidential qualifications

27.16 The Senate made 1997 Government amendment (63) which is included in the Bill. The amendment inserts new item 26A in Schedule 2. Item 26A amends the table in section 110 explaining who can be appointed as a presidential member. A person enrolled as a legal practitioner of the High Court, another federal court or a Supreme Court of a State or Territory for more than 5 years is eligible for appointment as a presidential member of the NNTT.

Appointment of Consultants

27.17 The President may now appoint a consultant to mediate or assist under any provision of the NTA. [Schedule 2, item 33, subsection 131A(1)]

27.18 The President may only engage a person as a consultant where the President considers the person has particular skills or knowledge which are relevant to the matter at hand. In any case, as far as it is possible to do so, the President should also try to engage persons who also have special knowledge in relation to Aboriginal or Torres Strait Islander societies. [Subsection 131A(2)]

27.19 The consultant must be engaged by the Commonwealth in writing [subsection 131A(3)] and the consultant is subject to directions given by the President under section 123 [subsection 131A(4)].

Disclosure of interests

27.20 A similar requirement to section 122, which imposes an obligation on members of the NNTT to disclose a conflict of interest, has been applied to consultants. If a consultant has a conflict of interest in any matter for which he or she is performing or proposes to perform the duties of a consultant, he or she is obliged to inform both the President of the Tribunal and the parties [subsection 131B(1)].

27.21 Only where the President and the parties all agree can the consultant undertake duties in relation to a matter where such a conflict of interest has been disclosed [subsection 131B(2)]. There may be situations, in dealing with a particular Aboriginal group for example, where the NNTT and the parties to a mediation feel that the most appropriate person to mediate may be someone with a long history of involvement with that group, say as an anthropologist or community worker. It is appropriate in such circumstances that all the parties to the mediation are aware of the previous association and agree to that consultant as the mediator.

27.22 The Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, in its report on the Native Title Amendment Bill 1996, recommended a tightening of the conflict of interest provisions for the NNTT. In response, section 122, which deals with conflict of interest for members of the NNTT, has been substantially replicated in section 131B and further qualified so that a person is deemed to have a conflict of interest if they are employed by or contracted to an organisation with an interest in the particular application or inquiry, or if in the last 12 months they were so employed or contracted [subsections 131B(3) and (4)]. Section 122 is being similarly amended by the Native Title Amendment (Tribunal Appointments) Bill 1997.

27.23 In the performance of duties under the NTA, a consultant is given the same protection and immunity as a Justice of the High Court [Schedule 2, item 51, subsection 180(1A)]. This places all persons empowered to conduct mediations on the same footing and may make it easier for the NNTT to attract appropriate people to perform such functions.

27.24 Various minor amendments to the NTA have been made to incorporate consultants. [Schedule 2, item 32; note to item 33; and item 49, paragraph 177(a)]

Objections to the registration of Indigenous Land Use Agreements

27.25 The NNTT has been given the additional function of holding an inquiry into objections made to the registration of an indigenous land use (alternative procedure) agreement under paragraph 24DL(2)(c) about whether it is reasonable to register the agreement. The Senate made 1998 Government amendment (89), which is included in the Bill. This amendment replaces item 36 in Schedule 2. This item inserts an amended form of paragraph 139(d) which provides that the NNTT must hold an inquiry into certain applications. Paragraph (d) concerns applications objecting about the registration of alternative procedure indigenous land use agreements. While very similar to item 36 in the Bill, replacement item 36 corrects the terminology to refer to a person ‘making an application objecting against registration’ rather than to a person who ‘has made an objection’. [Schedule 2, item 36, paragraph 139(d)]

27.26 The parties to such an inquiry are the objector, the parties to the agreement and any other person who satisfies the NNTT that their interests are affected by the agreement. [Schedule 2, item 39, subsection 141(4)]

Confidential information not to be disclosed

27.27 Members and officers of the NNTT together with consultants shall not be required, and are not competent, to give evidence to a court or tribunal relating to a matter if doing so would be contrary to either a NNTT direction under section 155 (which prohibits the disclosure of evidence) or a presiding member’s direction in a mediation under subsection 136F(1) (which operates to similar effect).

27.28 If an application has been made to the NNTT for a direction under either of the above provisions and the matter has not been determined, the relevant evidence may not be disclosed. [Schedule 2, item 52, subsections 181(1) and (2)]

27.29 A member, officer or consultant of the NNTT cannot be required to give evidence in relation to proceedings before the NNTT or any mediation between the parties in a right to negotiate procedure. [Subsection 181(4)]

27.30 Similarly a member, officer or consultant is prevented from being required to produce or permit access to relevant documents when the documents are subject to a direction as outlined above. [Subsection 181(3)]

Regulations

27.31 The regulation-making power in relation to prescribed fees is extended to enable regulations to be made in relation to the fees to be paid to obtain access to, or information from, records or information kept by the Native Title Registrar under new section 98A, and regulations in relation to the waiver or refund of such fees. [Schedule 2, item 75, paragraph 215(2)(aa) and item 77, subparagraph 215(2)(b)(ia)]

27.32 There is also a technical amendment to this section to avoid confusion between a Registrar of the Federal Court and the Native Title Registrar. [Schedule 2, item 76, subparagraph 215(2)(b)(i)]

Part 12A - State/Territory bodies

27.33 New Part 12A deals with State/Territory bodies. The current provisions in section 251 concerning ‘recognised’ State/Territory bodies are moved to the start of the Part 12A as section 207A [Schedule 2, item 90, section 251]. ‘Equivalent’ State/Territory bodies (which are a new concept under the NTA) can perform certain specified functions in relation to the State or Territory where they were established, that would otherwise be performed by the NNTT or Native Title Registrar [Schedule 2, item 71, section 207B].

Equivalent State/Territory bodies

27.34 The intention of the ‘equivalent’ bodies is to allow State and Territory bodies and officers to exercise specific NTA powers in substitution for the NNTT or Native Title Registrar in that State or Territory, and provides an alternative to the current section 251 (to be relocated as section 207A). An equivalent State/Territory body will be established by or under State/Territory legislation, but for functions under the NTA it will be vested with federal executive power to perform those functions. A State or Territory Minister may nominate one or more bodies as equivalent bodies to the Commonwealth Minister. The bodies which can be nominated are offices, tribunals or other bodies which the State or Territory wish to perform specified functions or exercise specified powers of the NNTT or the Native Title Registrar [subsection 207B(1)].

27.35 The functions and powers that can be specified are those contained in the equivalent body provisions. These provisions cover most of the NTA but exclude the specific provisions governing the internal administrative organisation of the National Native Title Tribunal and Native Title Registrar. The equivalent body, however, is able to refer questions of law to the Federal Court, its decisions can be reviewed by the Federal Court and it can conduct mediations for the Federal Court. [Subsection 207B(9)] The Senate made 1997 Government amendment (70) which is included in the Bill. The amendment to subparagraph 207B(9)(a)(iii) ensures that the function of holding an inquiry into certain matters can be performed by an equivalent body approved under section 207B.

Different functions/powers can be given to different bodies

27.36 The fact that an equivalent body is replacing the NNTT does not mean that the functions of the NNTT must be performed by only one body. The nomination by the State or Territory Minister can therefore specify that different bodies are to perform different functions or powers, or that different bodies can perform functions and powers under different circumstances. [Subsection 207B(2)]

Determination in relation to equivalent bodies

27.37 The Commonwealth Minister may make a written determination which will make clear which particular NNTT/Registrar powers or functions the equivalent body will have, and in what circumstances those powers or functions will apply. [Subsection 207B(3)]

Criteria to be satisfied

27.38 There are several criteria to be satisfied before the Minister can make a determination [subsection 207B(4)]. The purpose of the criteria is to ensure that the powers and functions conferred by the determination on the equivalent body are exercised or performed in an ‘nationally consistent’ manner. The Minister must be satisfied that:

• the equivalent bodies’ membership is such that the bodies will have access to appropriate expertise, including familiarity with indigenous issues, relevant to their powers and functions as equivalent bodies;

• the law of the State or Territory by or under which the equivalent bodies were set up ensures that their procedures for performing their functions or exercising their powers will be fair, just, informal, accessible and expeditious;

• the law of the State or Territory by or under which the equivalent bodies were set up enables and requires the bodies to exercise the powers or functions if the Commonwealth Minister makes the determination under subsection 207B(3);

• if the equivalent bodies are to maintain registers under the NTA, they will exercise or perform their powers and functions so as to ensure that the registers are maintained in a nationally integrated and accessible manner;

• if the equivalent body consists of more than one person, and the Commonwealth Minister believes it is appropriate for a member of the NNTT to be a member of the equivalent body as well, the law by or under which the body is established will require a NNTT member to be a member of the equivalent body. The Senate made 1998 Government amendment (95), which is included in the Bill. This replacement criterion requires that if the body undertakes NNTT functions, the State or Territory law will require that one of the Tribunal members (or where there is only one member, that member) to be a member of the NNTT ;

• the members of the equivalent body will have security of tenure no less favourable than members of the NNTT or the Registrar (depending on which functions or powers are relevant). This criterion was inserted by 1998 Government amendment (94) which was made by the Senate and is included in the Bill. This amendment will ensure appropriate independence for members of equivalent bodies; and

• any other requirement that the Minister considers relevant will be satisfied.

Modified operation of Act and vesting of functions

27.39 When a determination is in force it acts to confer the functions or powers concerned on the equivalent bodies, and remove them from the NNTT or Registrar. If the equivalent body has powers and functions relating to the right to negotiate provisions in Subdivision P of Division 3 of Part 2, the relevant State or Territory Minister (instead of the Commonwealth Minister) will have the powers mentioned in sections 34A, 36A, 36B, 36C and 42 [subsection 207B(5)]. The Senate made 1998 Government amendment (96), which is included in the Bill. This amendment inserts a note after proposed subsection 207B(5) to explain that the Administrative Decisions (Judicial Review) Act 1977 will apply to decisions made by an equivalent body which, once a determination is made under section 207B, will carry out functions under the Native Title Act in substitution for the NNTT or Native Title Registrar. Pursuant to such a determination, a State or Territory Minister may make relevant decisions in the right to negotiate process (see proposed paragraph 207B(5)(6)). If so, that Minister will also be subject to federal judicial review. The powers and functions are vested in the equivalent bodies in the circumstances set out in the determination [subsection 207B(6)].

Revocation of determination

27.40 A determination relating to an equivalent body can be revoked [subsection 207B(7)]. When the State or Territory law by or under which the equivalent body was established is amended so that the Commonwealth Minister is no longer satisfied that the criteria in subsection 207B(4) are met, the Commonwealth Minister must advise the State or Minister of this fact. The Commonwealth Minister must revoke the determination if he or she is still not satisfied that the criteria are met 90 days after sending the notice, but this 90 day period may be extended if the Commonwealth Minister so allows. In effect, this means that the relevant State or Territory has 90 days, or longer if the period is extended, to rectify the relevant law.

Regulations to make transitional provisions

27.41 Regulations may be made which modify the NTA as necessary or convenient to deal with transitional arrangements when functions are transferred between the NNTT/Registrar and an equivalent body on the making or revocation of a determination. [Subsection 207B(8)]

Technical drafting changes

27.42 The provisions in Schedule 2 dealing with the NNTT contain some technical drafting changes where the term ‘hearing’ is substituted for ‘inquiry’.

Minor amendments consequent on removal of some native title functions to the Federal Court

27.44 There a number of amendments in Schedule 2 made to provisions relating to determinations removing references to the NNTT now that native title and compensation claims will be determined only in the Federal Court.

Overview

28.1 This chapter describes the amendments in Schedule 2 relating to mediations. The NNTT will continue to mediate applications. The amendments set out the purpose of mediation, which is for the parties to reach agreement on some or all of the matters relevant to the legal rights being claimed. The Federal Court will refer all applications to the NNTT for mediation, unless the Court orders that no mediation occur.

28.2 After 3 months, any party can apply to the Federal Court for an order that mediation cease and, depending on the applicant, the Court must or may so order, unless it considers that further mediation will be successful. The Court also has power to order that mediation cease at any time in a proceeding if it considers that further mediation would be unnecessary or unproductive. The NNTT will be able, at any time during mediation, to refer to the Federal Court for decision a question of law or fact that has arisen.

Division 1B - Reference to NNTT for mediation

Purpose of mediation

28.3 The existing emphasis on mediation is continued in the proposed amendments. The purpose of any mediation in a claim for native title is to assist the parties to reach agreement on some or all of the following matters which are essential to a determination of native title by the Court under section 225:

− the nature of the native title rights and interests and the manner of their exercise in relation to the area;

− the relationship between the interests of the claimants and other interest holders, including leaseholder(s). (This relationship must take account of the effects of the amended NTA. An example would be the amendments enabling a pastoralist to undertake pastoral activities up to the limits of the Income Taxation Assessment Act definition of ‘primary production’, where this is authorised by the terms of the lease or other future act, without any interference from native title holders.); and

− in any area in the claim where there is no coexisting tenure - whether the native title rights give (gave) possession, occupation, use and enjoyment of the land or waters to the exclusion of all others. [Schedule 2, item 20, subsection 86A(1)]

Proceeding involving compensation

28.4 Where the proceeding involves a claim for compensation, the purpose of the mediation is to reach agreement on some or all of the matters outlined above and below. The information in the points below is required in any Federal Court order for compensation under section 94:

• the names of those entitled to receive any compensation or how this can be worked out;

• a dispute resolution mechanism for compensation entitlements. [Subsection 86A(2)]

28.5 Having the specific purpose of mediation defined in the legislation will assist parties to identify better the issues relevant to the mediation and will also assist in keeping mediations focussed on achieving outcomes directly related to native title.

Referral of matters to the NNTT for mediation

28.6 The Federal Court must refer every application to the NNTT for mediation unless the Court has ordered, as a result of an application by a party or of its own motion, that mediation not occur. [Subsections 86B(1) and (2)]

Court may order no mediation

28.7 The Federal Court must make an order that there be no mediation if it considers that mediation will be unnecessary, for example, where an application is unopposed there would be no need for mediation. [Paragraph 86B(3)(a)]

28.8 The Federal Court must also order that mediation not occur in relation to the whole or part of the proceedings if it considers that mediation will be unsuccessful either because:

• there is no likelihood of parties being able to reach agreement on any of the matters in subsections 86A(1) or (2), after taking account of a number of factors including (but not limited to): the number of parties; the number of parties with the same representative; the likely time to reach an agreement; the size of the area; and the nature of the interests held in the area by parties other than the native title claimants; or

• the fact that insufficient information has been provided by the applicant either in relation to the whole or that part of the proceedings. [Paragraphs 86B(3)(b) and (c) and subsection 86B(4)]

28.9 The Federal Court can also refer the whole or part of a proceeding to the NNTT for mediation at any time where it believes that a relevant agreement may be able to be reached. For example, where a judicial decision is given in another case which clarifies or resolves a matter in dispute in the proceeding it may be worthwhile to refer the proceeding (or part of it) back to the NNTT for mediation. The Court may make an order under this subsection even if it had previously made an order that there be no mediation or that mediation cease. [Subsection 86B(5)]

Cessation of mediation

28.10 The Court may, of its own motion, at any time order that mediation cease over part or the whole of an application if it is satisfied that further mediation is unnecessary (for example, where agreement has been reached) or where it considers that the parties are unlikely to reach agreement on either factual issues relating to the claim or the substance of the native title claimed. [Subsection 86C(1)]

28.11 Once mediation has been underway for 3 months, a party to a proceeding can ask the Federal Court for an order that mediation cease. If the party requesting this is either the applicant who has made the native title claim or a government party, the Federal Court must order that mediation cease, unless it is satisfied that mediation can achieve its purpose. [Subsections 86C(2) and (3)]

28.12 In relation to a request from any other party, the Court has a discretion whether or not to order cessation of mediation [subsection 86C(4)]. The reason for the differentiation is to reflect the fact that there would be little point in pursuing mediation if either of the two principal parties (that is the applicant and the relevant government) did not want the mediation to proceed. A clear direction to the Court in such circumstances will save both time and expense. On the other hand, it would be unfair to the applicant and the government if a party with a lesser interest in the proceedings could automatically precipitate the end of mediation.

28.13 When deciding whether or not mediation should cease, the Court may take into account any report from the NNTT about the mediation [subsection 86C(5)]. The report would be in general terms so that the confidentiality of matters raised in mediation is maintained.

Federal Court’s powers

28.14 The Federal Court has been given the power to determine a question of fact or law referred to it by a presiding member of the NNTT [subsection 86D(1)]. The Court may adopt any agreement on factual issues reached by the parties during a mediation [subsection 86D(2)].

Federal Court may request reports from the NNTT

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

Division 4A - Mediation Conferences

28.16 If the Federal Court refers the whole or part of a proceeding to the NNTT for mediation:

• mediation conferences may be held to assist in a resolution of the matter [Schedule 2, item 34, subsection 136A(1)];

• a member of the NNTT must preside; and other members of the NNTT or its staff may assist [subsections 136A(2) and (3)];

• anything said or done at a conference cannot be used in evidence before the Federal Court, unless the parties agree [subsection 136A(4)];

• a member who presides over, or assists at, a conference, may not take part in relation to the proceedings, other than in the mediation process, without the agreement of the parties [subsection 136A(5)];

• participation in a conference may be by telephone, closed circuit television, or other means of communication [subsection 136A(6)]; and

• if the President of the NNTT has engaged a consultant to conduct a mediation, the rules applying to members of the NNTT also apply to the consultant [subsection 136A(7)].

Parties at conferences

28.17 The presiding member may direct that some parties and their representatives be excluded from a conference where this will help to achieve the purpose of the mediation. Parties may be represented by a legal practitioner or another person [section 136B]. This section gives the presiding member flexibility to conduct the mediation.

28.18 For example, the presiding member can ensure that disruptive behaviour by a party is not be rewarded by allowing such behaviour to stop or delay a conference. Another example might involve a dispute between two parties which can be handled by allowing those parties, in the absence of others, to discuss their positions.

Other persons attending or participating in conferences

28.19 Where all parties agree, other persons who are not representing parties may attend to observe or, where the presiding member considers that it will help parties to reach agreement on the subject matter of the mediation, to participate. [Section 136C]

Referral of questions of law or fact

28.20 A question of law or fact arising in mediation may be referred to the Federal Court by the presiding member. The referral can be at the request of a party if the presiding member also agrees. [Subsections 136D(1) and (2)]

28.21 However, if the mediation is presided over by a consultant, questions of law or fact may only be referred on the initiative of the consultant if a presidential member agrees. Where a party to a mediation seeks the reference, the question can only be referred to the Federal Court if the consultant and a presidential member agree. Mediation may continue while the Federal Court determines the question if the presiding member considers this appropriate. [Subsections 136D(3) and (4)]

Conferences to be held in private

28.22 The Senate made 1997 Government amendment (64) which is included in the Bill. As a result of this amendment mediation conferences are to be held in private, unless the presiding member directs otherwise and no party objects. [Section 136E]

Presiding member may prohibit disclosure of information

28.23 The presiding member may give directions to preserve the confidentiality of the mediation. This allows parties in a mediation to present information about matters that they consider sensitive or confidential, but which are nevertheless essential to the establishment of their claim. [Subsection 136F(1)]

28.24 Directions prohibiting the disclosure of information by a member can be made at the request of a party as well as on the member’s own initiative [subsection 136F(2)]. If the parties agree however, the presiding member may disclose information which would otherwise be unable to be disclosed due to the existence of an order [subsection 136F(3)].

28.25 It is an offence to disclose information in contravention of such a non-disclosure order. [Schedule 2, item 48, section 176]

Report to be given to Federal Court

28.26 A presiding member must report in writing to the Federal Court about the results of the mediation as soon as practicable after a mediation concludes successfully (ie. the parties are able to reach an agreement on the matters, or part of the matters, set out in proposed subsections 86A(1) or (2)). [Schedule 2, item 37, subsection 136G(1)]

28.27 The presiding member is also required to report to the Federal Court on progress in the mediation where requested to do so by the Court under section 86E. The presiding member may also provide a report to the Court on the progress of a mediation where the presiding member considers that such a report would assist the Court in the proceeding to which the mediation relates. Any report made under this section must contain any agreed facts reached during the mediation, if the parties agree. [Subsections 136G(2), (3) and (4)]

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

Regulations about assistance or mediation

28.28 Regulations which are consistent with the NTA may be made about how the NNTT provides assistance, or mediation which is provided on request. [Section 136H]

Overview

29.1 The amendments in Schedule 2 described in this Chapter deal with the Register of Native Title Claims and the National Native Title Register. Some of the amendments are necessary to reflect the transfer of functions from the NNTT to the Federal Court, while others relate to the insertion of the new registration test in sections 190A to 190D. The registration test is not intended to provide a screening mechanism for access to the Federal Court. A claim which fails the registration test may still proceed through the Federal Court to a determination unless it is struck out, settled or withdrawn.

29.2 Instead, the purpose of the registration test is to ensure that only claims which have merit are registered on the Register of Native Title Claims. The applicant in relation to a registered native title claim is also the registered native title claimant, and may access a number of special statutory benefits which are not available to unregistered claimants. For example, a registered native title claimant may be a negotiation party in relation to future acts covered by the right to negotiate (this term is explained in Chapter 18 of this Explanatory Memorandum), a registered claim is able to prevent section 24FA protection from applying to an area (this term is explained in Chapter 8), and certain procedural rights are available only in relation to a registered native title claim.

Registrar to consider claims

29.3 New section 190A deals with the registration test and explains how the registration test is to be applied.

Claims made to the Federal Court

29.4 The Registrar must apply the registration test to claims made in a claimant application [Schedule 2, item 63, subsection 190A(1)]. (The definition of claimant application inserted by item 93 of Schedule 2 states that, unless the contrary intention appears, the term includes a native title determination application that has been amended.) The Senate made 1997 Government amendment (67) which is included in the Bill. This amendment inserts a reference to subsection 64(4) into subsection 190A(1) in the Bill to ensure that the Registrar is obliged to consider amended applications.

Effect of a section 29 notice relating to an area covered by the claim

29.5 If there is a section 29 notice relating to an area covered by the claim, the Registrar is required to complete his or her consideration of the claim against the registration criteria before the end of the 3 month notification period for that section 29 notice [subsection 190A(2)]. The purpose of this requirement is to ensure that priority is given to claims affected by section 29 notices so that the applicants have a chance to become registered native title claimants and be able to participate in negotiations about the act or acts covered by the notice as negotiating parties. Only those who have a claim registered at the expiration of the period of 4 months after a section 29 notice is given can be parties (see section 30). The Senate made 1998 Government amendment (71), which is included in the Bill. This amendment to section 190A in the Bill changes the ‘3 months’ reference in subsection (2) to read ‘4 months’. This change is consequential to amendments made by the Senate in December and included in the reintroduced Bill, to increase the period for becoming a registered claimant for an area after a section 29 notice is issued from 3 months to 4 months.

What information is to be considered by the Registrar?

29.6 The Registrar is required to consider certain information (these documents are described in subsection 61(5)) when applying the registration test to a claim [subsection 190A(3)]. This information is:

• the information contained in the application or amended application and its accompanying documents. The Senate made 1998 Government amendment (72), which is included in the Bill. This amendment clarifies that in applying the registration the Registrar must have regard to information contained in the application and any other documents provided, at the same time or later, by the applicant;

• information from current tenure and tenure history searches conducted by the Registrar; and

• information from the States/Territories which the Registrar considers to be relevant to deciding whether or not the claim satisfies the criteria for registration (these criteria are set out in sections 190B and 190C).

29.7 The Registrar may also consider any other information which she or he considers appropriate [subsection 190A(3)]. Details of current or previous non-native title interests in the claim area can also be considered [subsection 190A(4)]. Even if the Registrar does not get information from tenure searches he or she has conducted, the claim can be accepted for registration [subsection 190A(5)]. This means that the Registrar is not obliged to carry out such searches in all cases.

29.8 The Senate made 1997 Government amendment (68) which is included in the Bill. The amendment inserts subsection 190A(5A) which allows the Registrar to advise the claimant that the application can be amended under the Federal Court Rules. For example, the Registrar may wish to use this power when an application that is unlikely to satisfy the registration test would be able to satisfy that test if it were amended, so that the claimant has the option of amending the claim before the Registrar makes a decision about registration. That applications can be amended is made clear by subsection 64(3) and the note at the end of subsection 190A(6).

Test for registration

29.9 Unless a claim meets the conditions contained in sections 190B and 190C, it cannot be accepted for registration [subsection 190A(6)]. If it does meet these conditions, the Registrar is obliged to accept the claim for registration.

29.10 The conditions for registration are broadly divided into two categories, those relevant to the merits of a claim (in other words, its likely chances of success) and those relating to procedural and other matters.

29.11 The Senate made 1997 Government amendment (69) which is included in the Bill. The amendment adds subsection 190A(7) which explains that when the Registrar is told that an application that has not been registered has been dismissed or otherwise finalised, the Registrar is not to finish considering whether the claim should be registered (if this consideration was under way) and must not enter the details of the claim into the Register, if the consideration had been finalised.

Registration: conditions about the merits of a claim

29.12 There are nine conditions which relate to the merits of a claim [subsections 190B(2) to 190B(10)] and they are explained sequentially in the following paragraphs.

Identification of area subject to native title

29.13 The first of these conditions is that the Registrar is satisfied that the information and map required to accompany the application or amended application (see paragraphs 62(2)(a) and (b)) are enough to be reasonably certain of the particular area over which the native title rights and interests are being claimed. [Subsection 190B(2)]. The Senate made 1997 Opposition amendment (262) which is included in the Bill. This amendment to subsection 190B(2) inserts the word ‘reasonable’ so that the provision requires that the Registrar must be satisfied that the information and map contained in the application 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. This will make allowance for normal mapping inaccuracies.

Identification of native title claim group

29.14 The second is that the Registrar is satisfied that the persons in the native title claim group are named in the application or are described sufficiently clearly so that it can be ascertained whether any particular person is in the group [subsection 190B(3)]. This reflects the requirement in subsection 61(4).

Identification of claimed native title

29.15 The Registrar must also be satisfied that the description of the native title rights and interests required by paragraph 62(2)(d) is sufficient to allow all the native title rights and interests claimed to be readily identified. However, this does not mean that the description must be in terms usually used to describe rights conferred by the Crown or existing generally at common law as in some cases, the native title rights claimed will bear little, if any, resemblance to rights enjoyed by the holders of other forms of title or right. [Subsection 190B(4)]

Factual basis for claimed native title

29.16 The Registrar must be satisfied that the description of the factual basis for the claim required by paragraph 62(2)(e) is sufficient to support the assertion that those rights and interests claimed exist. [Subsection 190B(5)]

Prima facie case

29.17 This requirement is similar to the requirement for acceptance of a claim that was contained in (now repealed) paragraph 63(1)(b) of the NTA when it was enacted. It requires the Registrar to be of the view that prima facie all the native title rights and interests claimed can be made out. [Subsection 190B(6)]

29.18 This means that the Registrar cannot register a claim where only some of the rights and interest claimed satisfy the test. For example, a claim made in the alternative for exclusive possession and some lesser rights would not be registered if the Registrar considered that the claim to exclusive possession did not satisfy the test, even if the lesser rights claimed did satisfy it.

Physical connection

29.19 The Registrar must be satisfied that at least one member of the native title claim group currently has or previously had a traditional physical connection with any part of the area covered by the application [subsection 190A(7)]. This connection must amount to more than a transitory access or intermittent non-native title access.

No failure to comply with section 61A

29.20 The Registrar must not be aware (whether through the application or amended application and accompanying documentation or otherwise) that an application does not comply with section 61A [subsection 190B(8)]. This means that if the application is made over an area for which there has been a previous exclusive possession act in the circumstances set out in subsection 61A(2), it cannot be registered. Similarly, if the claim is for exclusive possession over an area where there has been a previous non-exclusive possession act in the circumstances set out in subsection 61A(3), the claim cannot be registered.

Claimed native title not to involve mineral rights or certain offshore place rights

29.21 The Registrar must not be aware (whether through the application and its accompanying documentation or otherwise) that:

• to the extent that the native title rights and interests claimed are ownership of minerals, petroleum or gas - the minerals, petroleum or gas are owned by the Crown; and

• to the extent that the native title rights and interests claimed relate to offshore waters - those rights and interests purport to exclude all other rights and interests to the whole or part of the off-shore waters.

The effect of the provision is to prevent registration of a claim for ownership of minerals, petroleum or gas where the Crown has already asserted its ownership of these or a claim to exclusive possession in offshore waters. [Subsection 190B(9)]

No other extinguishment of native title

29.22 If the Registrar is aware (whether through the application or amended application and accompanying documentation or otherwise) that native title to the area has been extinguished, the claim cannot be registered. [Subsection 190B(10)]

Registration: conditions about procedural and other matters

29.23 Section 190C contains the conditions which relate to procedural and other matters. There are three conditions of this type, which are explained below.

Information required by sections 61 and 62

29.24 The Registrar must be satisfied that the application or amended application contains all the details and other information, and is accompanied by any affidavit or other document, required by sections 61 and 62. [Subsection 190C(2)]

No previous overlapping claim groups

29.25 The Registrar must be satisfied that no member of the claim group for the application or amended application is a member of the claim group for a registered claim which was made before the claim under consideration, which is overlapped by the claim under consideration and which itself has passed the registration test [subsection 190C(3)]. It is now required that the application name the persons in the claim group or otherwise describe them sufficiently clearly so that it can be ascertained whether any particular person is in the group.

Identity of claimed native title holders

29.26 The third condition relates to the identity of the claimants and is designed to ascertain whether they are the appropriate persons. The Registrar must be satisfied that the claim has been certified by the representative body for the area (Chapters 33 and 34 explain how a representative body is to certify applications or amended applications for the purposes of the registration test) [subsection 190C(4)]. Alternatively, if the claim is not certified, the Registrar must be satisfied that the applicant is a member of the native title claim group (the terms applicant and native title claim group are found in section 61 and are explained in Chapter 25) and is authorised by that group to make the application or amended application and deal with issues relating to it [subsection 190C(5)].

Requirements for uncertified applications

29.27 Where the application or amended application is not certified, the Registrar can be satisfied that an uncertified application has been made with the authority of the claim group where the application includes a statement that this requirement has been met and sets out the grounds on which the Registrar should consider that this requirement has been met. [Subsection 190C(5)]

Overlapping representative body areas

29.28 Where there is more than one representative body for the area under claim, the following rules apply:

• if a representative body whose area covers all of the claimed area has certified the application or amended application, no other representative body need certify it;

• if 2 or more representative bodies whose areas collectively cover all of the claimed area have certified the application or amended application, no other representative body needs to certify it. [Subsection 190C(6)]

A representative body’s area means the area for which it has been determined to be a representative body. [Subsection 190C(7)]

If the claim cannot be registered

29.29 The Registrar must give the unsuccessful applicant a written notice which sets out the reasons why the claim failed the registration test [subsection 190D(1)]. The applicant may then seek a review of the Registrar’s decision not to accept the claim for registration [subsection 190D(2)]. Jurisdiction is conferred on the Federal Court to perform this review function [subsection 190D(3)].

Contents of the Register of Native Title Claims

29.30 Minor amendments have been made to section 186 which deals with the contents of the Register of Native Title Claims. A reference to new section 190 has been inserted into subsection 186(1), to make it clear that the Register only contains details of claims which have either been accepted for registration by the Registrar, or have passed an equivalent test under a State or Territory law and have been notified to the Registrar. [Schedule 2, item 56, subsection 186(1)]

29.31 The Register will now contain a reference to the date that the claim is registered [Schedule 2, item 59, paragraph 186(1)(ca)]. The term ‘person who is taken to be the claimant’ has been replaced with the term ‘applicant’ to reflect the terminology used in section 61 [Schedule 2, item 60, paragraph 186(d)].

Parts of the Register of Native Title Claims may be kept confidential

29.32 Parts of the Register are to be kept confidential (see section 188) otherwise, the Register of Native Title Claims can be inspected by members of the public during normal business hours (see section 187). A note after subsection 188(1) has been inserted explaining that if the Registrar considers that the release of information would not be in the public interest it will not be made available to the public [Schedule 2, item 61, subsection 188(1)]. The sort of information that could be kept confidential is set out in section 98A and might include information that Aboriginal custom would normally regard as secret and/or sacred.

29.33 Subsection 188(2), which prohibited disclosure of the names and addresses of those claiming to hold native title, other than the address of the applicant, has been repealed. This is consistent with subsection 61(4) which allows for the naming (or other identification) members of native title claim groups in the application. [Schedule 2, item 62, subsection 188(2)]

Senior Registrar of the High Court to notify Registrar

29.34 The Senior Registrar of the High Court must inform the Native Title Registrar of any decision or determination by the High Court which relates to a claim for native title to ensure that the Register of Native Title Claims and/or the National Native Title Register can be amended to reflect the outcome. Note that there is no longer an obligation to send applications from the High Court to the Native Title Registrar. The only way an application for native title can get registered is if it is made under section 61 to the Federal Court (or through a recognised State/Territory body performing the same function). [Schedule 2, item 63, section 189]

Registrar of Federal Court to notify Native Title Registrar

29.35 The Federal Court Registrar must inform the Native Title Registrar if a claimant application is withdrawn and must also inform the Registrar of any Federal Court decision or determination involving a claim to ensure that the Register of Native Title Claims and/or the National Native Title Register can be appropriately amended. [Section 189A] The Senate made 1997 Government amendment (66) which is included in the Bill. The amendment to section 189A means that the Registrar of the Federal Court must advise the Native Title Registrar whenever any claimant application is withdrawn, even if that application has not been registered.

Keeping the Register of Native Title Claims

Native Title Registrar must record details of claims

29.36 The Native Title Registrar must include details of claims which have passed the registration test (whether initially or after a review by the Federal Court under section 190D) on the Register of Native Title Claims [subsection 190(1)]. The Registrar must also register claims passing an equivalent registration test under State/Territory legislation once she or he is notified about those claims by a recognised State/Territory body.

29.37 The term recognised State/Territory body is defined in section 251 (now section 207A - see Chapter 26) and, briefly, refers to a body which has been approved by the Commonwealth Minister against detailed criteria and which can perform determination functions in relation to native title matters, such as making approved determinations of native title.

Amending the Register to reflect amended claims made to a recognised State/Territory body

29.38 The Registrar must ensure that the Register reflects claims in applications made to a recognised State/Territory body if those claims are amended after they have been registered. If the amended claim has been found to pass the State/Territory equivalent registration test, the Registrar must amend the Register accordingly, otherwise the details of the claim must be removed from the Register. [Subsection 190(2)]

Amending the Registrar to reflect amended claims notified under subsection 64(4)

29.39 The Registrar may also need to amend the Register if the Federal Court notifies the Registrar of an amended claimant application. If the amended claim passes the registration test, the Register must be amended to reflect the amended claim, in other cases the claim may need to be removed from the Register. [Subsection 190(3)]

Register is amended if a claim is withdrawn, decided or determined

29.40 The Register is also to be amended when there is a decision or a determination covering a claim or an application is withdrawn [subsection 190(4)]. The amendment is to be made as soon possible after the Registrar is notified of the withdrawal, decision or determination. The note to section 190 explains that if a claim is withdrawn, details of the claim would be removed from the Register, and if a claim is determined, the details of the determination would be entered on the National Native Title Register. This ensures that only those registered claims which have not been determined are taken to be registered native title claims for the purposes of the NTA.

Delegation by Registrar to recognised State/Territory body

29.41 The Native Title Registrar may delegate functions concerning the maintenance of the Register of Native Title Claims to a recognised State/Territory body. An amendment makes it clear that the delegation can only occur with the consent of the State or Territory concerned. [Schedule 2, item 64, section 191]

National Native Title Register

29.42 An amendment to section 192, which deals with the establishment of the National Native Title Register, makes it clearer that it is the Native Title Registrar who is to maintain this Register. [Schedule 2, item 65, subsection 192(2)]

29.43 The section dealing with the content of the National Native Title Register has also been amended to reflect the fact that the term ‘approved determination of native title’ includes both determinations that native title exists and determinations that it does not exist. Approved determinations by recognised State/Territory bodies must also be entered on the Register. The Senate made 1998 Government amendment (74), which is included in the Bill. This amendment to section 193 requires that where a determination of native title is added to the National Native Title Register then the nature and extent of the native title rights and interests need to be described. [Schedule 2, item 67, paragraph 193(2)(d)]

Registrar of the Federal Court to notify Registrar

29.44 Section 196, which requires the Federal Court Registrar to notify the Native Title Registrar about the Court’s decisions or determinations covering claims, has been repealed [Schedule 2, item 68, section 196]. This requirement is now contained in section 189A, which is explained above.

Minor consequential amendments to registration provisions

29.45 Minor amendments in Schedule 2 relating to registration provisions have been made to reflect the transfer of certain determination functions to the Federal Court from the NNTT. The reasons for this transfer are described in the Overview to Chapter 25 and are similar to those made in the former Government’s Native Title Amendment Bill of 1995.

Overview

30.1 This Chapter describes amendments contained in Schedule 2 dealing with definitions of terms used in the NTA or amendments in the Bill which have a specific meaning in this legislation. Some of these amendments change existing definitions to clarify them, while others explain new terms which are used in new provisions inserted by the Bill.

Table of Definitions

30.2 There is a replacement table of definitions which incorporates references to new definitions of terms used the Bill. The table lists the terms which are defined and the section in which the claimant application definitions are located. The new or replaced definitions are the following: ‘applicant’, ‘authorise’, ‘category A intermediate period act’, ‘category B intermediate period act’, ‘category C intermediate period act’, ‘category D intermediate period act’, ‘claimant application’, ‘community purpose lease’, ‘exclusive agricultural lease’, ‘exclusive pastoral lease’, ‘extinguishment’, ‘forest operations’, ‘horticulture’, ‘indigenous land use agreement’, ‘infrastructure facility’, ‘intermediate period act’, ‘land or waters on which a public work is constructed, established or situated’, ‘native title claim group’, ‘native title group’, ‘negotiation party’, ‘non-claimant application’, ‘non-exclusive agricultural lease’, ‘non-exclusive pastoral lease’, ‘perpetual lease’, ‘previous exclusive possession act’, ‘previous non-exclusive possession act’, ‘primary production activity’, ‘public work’, ‘Register of Indigenous Land Use Agreements’, ‘registered native title body corporate’, ‘registered native title claimant’ ‘representative body’, ‘Scheduled interest, ‘subject to section 24FA protection’, ‘towns and cities’, ‘traditional activity’. [Schedule 2, item 78, section 222]

Amendments to section 253 - Other definitions

Aboriginal/Torres Strait Islander land or waters

30.4 Paragraph (c) of the definition of Aboriginal/Torres Strait Islander land or waters has been amended to insert the word ‘or part of a law’. This makes it clear that this term can cover areas held by for the benefit of indigenous people under a prescribed law or a prescribed part of a law. [Schedule 2, item 91, section 253]

Applicant

30.5 There is definition of applicant which explains that this word has a meaning that is affected by subsection 61(2). That subsection is explained in Chapter 25 of this Explanatory Memorandum. [Schedule 2, item 92, section 253]

Claimant application and native title claim group

30.6 There is a definition of claimant application. This term refers to a native title determination application that a native title claim group has authorised to be made [Schedule 2, item 93, section 253]. There is also a definition of the term native title claim group:

• in relation to an application in the Federal Court, the term has the meaning set out in the table in subsection 61(1) (which is explained in Chapter 25 of this Explanatory Memorandum); or

• in relation to an application in a recognised State/Territory body, it is the person or persons making the claim, or on whose behalf the claim is made. [Schedule 2, item 95, section 253]

Land and waters

30.7 There is now a note after the definition of land to explain that the area between high water and low water will not be regarded as land, because it is regarded as waters [Schedule 2, item 94, section 253]. A new paragraph (c) is inserted into the definition of waters to include the shore between high water and low water, and the subsoil under or the airspace over that shore [Schedule 2, item 101, section 253].

Non-claimant application

30.8 The current definition of the term ‘non-claimant application’ is repealed and replaced it with a new definition. A non-claimant application is a native title determination application that is not a claimant application. [Schedule 2, item 96, section 253]

Definition of ‘recognised State/Territory body’

30.9 The reference to section 251 in the definition of recognised State/Territory body is changed to the new section number 207A. [Schedule 2, item 97, section 253]

Definition of ‘registered native title body corporate’

30.10 The definition of registered native title body corporate has been replaced to include the situation where the prescribed body corporate has been determined to hold the native title rights and interests on trust or to act as agent by the Federal Court, and also where the determination is by a recognised State/Territory body. [Schedule 2, item 98, section 253] The Senate made 1997 Government amendments (75) and (76) which are included in the Bill. These amendments correct erroneous cross references in paragraphs (a) and (b) of this definition.

Registered native title claimant

30.11 The current definition of the term ‘registered native title claimant’ is replaced with a new definition. A registered native title claimant for a particular area is a person (or persons) whose name (or names) appears on the Register of Native Title Claims as the applicant in a claimant application for that area. Proposed subsection 64(5) deal with the replacement/substitution of applications. [Schedule 2, item 99, section 253]

Unopposed application

30.12 The definition of an unopposed application has been repealed as this concept is now defined in proposed subsection 86G(2). [Schedule 2, item 100, section 253]

Overview

31.1 This chapter describes the amendments made in Schedule 2 to the Federal Court of Australia Act 1976 (Part 2 of Schedule 2) and the Human Rights and Equal Opportunity Commission Act 1986 (Part 3 of Schedule 2) which are necessary to implement the changes to the operation of the NTA.

31.2 Amendments to the NTA relating to the reports on the operation of the NTA prepared by the Aboriginal and Torres Strait Islander Social Justice Commissioner are also described.

Amendments to the Federal Court of Australia Act

31.3 The Workplace Relations and Other Legislation Amendment Act 1996 made a number of amendments to the Federal Court Act providing for the appointment, terms and conditions of judicial registrars. Judges can now also make Rules of Court delegating to judicial registrars all or any of the Court’s powers to determine parties to a proceeding under the NTA and make orders in relation to unopposed (section 86D) or agreed (section 87) compensation or native title applications. The Senate made 1998 Government amendment (51) which is included in the Bill. The amendment ensures that the Judges of the Court can delegate to Judicial Registrars the power to hear and determine compensation applications under the NTA for amounts up to $100,000. There is also the ability to increase this amount by regulation. The purpose of the amendment is to reduce the cost and delay in relation to compensation claims for small amounts. The Judges may make rules of court in relation to how such matters are to be dealt with by the Judicial Registrars. [Schedule 2, item 102, subsection 18AB(2A)]

31.3a The Senate made 1998 Opposition amendment (RN32), which is included in the Bill. This amendment relates to compensation claims referred to Judicial Registrars. The amendment enables to Court to give a variety of directions aimed towards ensuring that the claim is dealt with expeditiously and not in a manner where the cost of the proceeding outweighs the likely benefit.

31.4 There are consequential amendments to other subsections. [Schedule 2, item 103, subsections 18AB(3), (6) and (7)]

Amendment to the Human Rights and Equal Opportunity Commission Act and related matters

31.5 The NTA requires that there be an annual report on the operation of the Act and the effect of the NTA on the exercise and enjoyment of human rights of Aboriginal peoples and Torres Strait Islanders. The Senate made 1998 Government amendment (97), which is included in the Bill. This amendment omits items in the Bill which would have removed some references to the Aboriginal and Torres Strait Islander Social Justice Commissioner and replaced these with references to the Human Rights and Equal Opportunity Commission, (HREOC). It would also have added some provisions in relation to reporting requirements, including that each relevant report of the Commission be laid before each House of Parliament within 15 sitting days. During debate in December 1997, the Senate indicated that it would prefer to deal with these HREOC amendments when legislation dealing generally with HREOC is debated. The Government has no objection to this, and consequently seeks to remove these items from the Native Title Amendment Bill.

31.6 The reporting function will be conferred on the Human Rights and Equal Opportunity Commission (HREOC) rather than directly on the Aboriginal and Torres Strait Islander Social Justice Commissioner. [Schedule 2, item 72, subsection 209(1) and item 73, subsection 209(2)]

31.7 The Aboriginal and Torres Strait Islander Social Justice Commissioner will continue to make the reports on behalf of the Commission. This more closely reflects the arrangements applying in relation to other reporting functions of the Aboriginal and Torres Strait Islander Social Justice Commissioner. [Schedule 2, item 74, subsection 209(3)]

31.8 The Commonwealth Minister who receives a report under section 209 will be obliged to table that report before each House of Parliament within 15 sitting days after the report is received by the Minister. [Schedule 2, subsection 209(4)]

31.9 A note has been added in the HREOC Act to alert the reader to the fact that functions are also conferred on HREOC by section 209 of the NTA. The Senate made 1998 Government amendment (98), which is included in the Bill. This amendment also omits Part 3 of Schedule 2 in the Bill which would have amended the Human Rights and Equal Opportunity Commission Act 1986 by inserting a note relating to the amendments referred to in I1998 Government amendment (97) and its removal is consequential on removal of that amendment. [Schedule 2, Part 3, item 104]

Overview

32.1 This chapter describes the amendments in Part 1 of Schedule 2 which are of a miscellaneous nature.

Repeal of section 12

32.2 Section 12 has been repealed in response to the High Court’s decision in Western Australia v. Commonwealth (1995) 183 CLR 373 that the section is invalid. [Schedule 2, item 1, section 12]

Prescribed bodies corporate

32.3 Section 59 deals with the making of regulations about the kinds of bodies corporate which may be registered as a native title body corporate (see definition of this expression in section 253). The amendment ensures that that the regulation-making power is sufficiently broad. [Schedule 2, item 18, section 59]

Legal aid

32.4 In consultations about proposed amendments to the NTA, the Prime Minister undertook to make legal aid for respondents to native title matters more accessible. In the reworking of the NTA a number of mechanisms have been included where financial assistance could be warranted, such as the negotiating of Indigenous Land Use Agreements (ILUAs) and disputes relating to statutory access rights.

32.5 The section which deals with financial assistance from the Attorney-General has been rewritten to ensure that as well as covering inquiries and proceedings before the Federal Court and the NNTT, it also covers the provision of assistance: in mediations [Schedule 2, item 53, subsection 183(1)]; negotiations and objections in relation to ILUAs; and negotiations, including dispute resolution, in relation to statutory access rights [subsection 183(2)].

32.6 The Attorney-General can grant assistance where the Attorney is satisfied that in all the circumstances it is reasonable to do so and there is no other source of funding for which the applicant is eligible [subsection 183(3)]. The Attorney-General can determine guidelines for the provision of financial assistance in native title matters [subsection 183(4)] and if so, an application for assistance must be considered in accordance with the guidelines (this reflects the replaced subsection 183(4)).

32.7 As native title claimants (and all those included in a native title claim group) are funded through representative Aboriginal/Torres Strait Islander bodies, the Attorney-General may not provide them with financial assistance [subsection 183(6)]. This reflects the Government’s intention that representative bodies should be the sole source of funding for indigenous claimants in their areas. Where an area is not covered by such a body, the Aboriginal and Torres Strait Islander Commission will continue to make interim arrangements for the funding of native title claimants. ATSIC also has power to provide assistance where a representative body has refused to provide assistance (see subsection 203FE(2) and Chapter 34).

32.8 The Attorney-General is also prevented from granting financial assistance to Commonwealth, State or Territory Ministers, or their delegates [subsection 183(5)]. This reflects the replaced subsection 183(5).

32.9 The Attorney-General is able to delegate all or any of his powers under subsection 183(3) to either the Secretary of the Department or an officer occupying a specified office in the Attorney-General’s Department. This will bring the delegation of the decision making power into line with other financial assistance schemes for which the Attorney-General is responsible. [subsection 183(7)]

Transitional - Assistance to native title claimants

32.10 If a native title claimant is granted assistance under section 183 for a native title claim before the amendments to that section commence, he or she may be able to apply for and be granted further assistance for that claim. The criteria for such grants will be those set out in new section 183, however, the prohibition in new subsection 183(6) on the provision of assistance to claimants will not apply. [Schedule 5, item 24]

Financial assistance to States and Territories

32.11 The provision dealing with financial assistance to the States and Territories has been widened to allow financial assistance for acts of the kind mentioned in section 45 as well as the acts already encompassed in the section. The Senate made 1998 Government amendment (92), which replaces item 70 and is included in the Bill. Replacement item 70 ensures that financial assistance agreements between the Commonwealth and a State or Territory can relate to liability to pay compensation for any act affecting native title. This will enable agreements to cover an appropriately broad range of acts. [Schedule 2, items 69 and 70, section 200]

32.11a The Senate made 1998 Government amendment (93), which inserts a new item 70A which is included in the Bill. New item 70A will add a reference to ‘equivalent body’ into paragraph 200(1)(c) of the NTA to enable financial assistance arrangements with the States and Territories to include the costs and expenses of establishing and administering such bodies.

32.12 The Commonwealth has offered to assist States and Territories in meeting compensation costs arising from certain pre-1994 acts, intermediate period acts and certain future acts. The extent of Commonwealth payments will depend on the compensation liabilities incurred by the States and Territories.

32.13 Estimates as to the likely amount of compensation which may be payable are extremely difficult to formulate due to a number of factors which include: the unknown extent of native title; the unknown value of native title where compensation is payable and the potential variation in value depending on whether what survives is full native title or a partial or co-existing interest; the total number of past and intermediate acts; the unknown number of future acts that might affect native title; and that while the Commonwealth is of the view that the maximum compensation payable to a native title holder would be no more than that payable to a freeholder the courts have yet to determine this as satisfying the requirement for ‘just terms’ compensation. These factors interact to make estimation of costs a speculative task.

32.14 The Commonwealth offer to assist States and Territories also includes a contribution to the administrative costs of establishment and operation of approved bodies and alternative right to negotiate regimes. The extent of this assistance will depend on decisions to establish such bodies and regimes following the commencement of the new Act, the timing of the recognition of bodies and regimes and the extent to which they are used.

Technical drafting correction

32.15 A technical drafting correction has been made [Schedule 2, Item 17, paragraph 58(d)] to change a plural to the singular when referring to a native title body corporate.

Introduction

33.1 Schedule 3 of the Bill inserts into the Native Title Act (NTA) new provisions relating to representative Aboriginal/Torres Strait Islander bodies. Most of these amendments will affect Part 11 of the NTA, with a few consequential amendments to provisions dealing with definitions and minor procedural matters.

33.2 For ease of reference in this Explanatory Memorandum, the term current regime is used to refer to the representative body regime in section 202 of the NTA and to the representative bodies determined under that section which will continue to perform representative body functions until the new regime comes into effect. The term new regime is used to refer to the functions, processes and obligations established by the amendments contained in Part 2 of Schedule 3. The term transition period is used to describe the period from the commencement of Part 1 in Schedule 3 (which includes provisions setting the processes which will apply during the transition period) until the commencement of Part 2. The term native title clients is used to refer to the persons who hold or may hold native title in the area for which the relevant representative body has responsibility, and in whose interests the representative body is to act.

• Part 1 of Schedule 3 commences at the same time as the amendments in Schedules 1 and 2;

• Part 2 of Schedule 3 will not commence until at least 12 months after the commencement of Part 1.

This staged commencement is necessary to provide for a period during which preparations can be made for the commencement of the new regime and during which those representative bodies which will operate under the new regime can be selected for recognition. Meanwhile, in order to minimise disruption to the provision of representative body services to native title clients and other Aboriginal people and Torres Strait Islanders in their areas of responsibility, current representative bodies will continue to perform their existing functions, as well as a number of additional functions, during the transition period until the new representative body regime in Part 2 comes into operation. The commencement of Part 2 will result in the repeal of the current representative body regime. Any current representative bodies which have not been recognised as representative bodies under the new regime will cease to be representative bodies at that time.

Overview of Part 1

33.4 Part 1 contains amendments to section 202 of the NTA which confer new functions on current representative bodies. These amendments reflect changes to the NTA contained in Schedules 1 and 2, and will enable current representative bodies to perform the new functions during the transition period. The new functions are:

• certifying applications for determinations of native title and applications for registering indigenous land use agreements;

• assisting native title holders with issues relating to rights of access; and

Certification is intended to ensure that the applications for determinations of native title and compensation include the relevant persons and that the applications are made by persons with the authority of the claim group to do so. Representative bodies will not have a monopoly role in relation to certification - where applications made to the Federal Court under section 61 are submitted to the Registrar without representative body certification, the claim may be registered if the Registrar is satisfied that relevant criteria have been met (see Chapter 29).

33.5 The remainder of the amendments in Part 1 provide for a new process for the recognition of representative bodies. Representative bodies recognised under the new regime will be subject to the comprehensive new functions, powers and obligations set out in the amendments in Part 2 of Schedule 3, but will not commence operations as representative bodies under the new regime until the end of the transition period. The new process for recognition of representative bodies sets out:

• what criteria for recognition must be considered by the Commonwealth Minister.

The capacity of representative bodies to represent satisfactorily the interests of native title holders, to consult effectively with indigenous communities in the areas for which they are responsible and perform their functions effectively will be the major considerations in their recognition as representative bodies. The new process is considerably more detailed than the current process in section 202 and will ensure greater consistency in the standards of service between the various representative bodies. During the transition period, current representative bodies will have priority in applying to be representative bodies under the new regime. Any such bodies that are not so recognised will cease to operate as representative bodies at the end of the transition period.

33.6 Part 1 also inserts new Division 7 into Part 11 of the NTA, to require a body that ceases to be a representative body to provide its successor representative body (or bodies) with access to its representative body documents and records, taking account of privacy considerations, cultural sensitivities and ownership rights. Executive officers and members of a representative body are exempted from liability in relation to civil actions where those persons were acting in good faith are protected from liability. There is a standard provision to define the way that the ‘state of mind’ of a body corporate can be established in relation to compliance with statutory provisions. The provisions in Division 7 will apply in both the current regime and the new regime.

New Divisions 1 and 1A

33.7 Schedule 3, item 1 creates new Divisions 1 and 1A of Part 11 of the NTA by inserting new Division headings, and new sections 201A and 201B. Sections 201A and 201B are found in new Division 1. That Division is headed ‘Preliminary’ and deals with definitions of key terms and concepts. New Division 1A is entitled ‘Original representative Aboriginal/Torres Strait Islander bodies’ and will contain section 202, new section 202A and section 203. The heading to Division 1A distinguishes the provisions applying to representative bodies determined under the current representative body regime from the new provisions in Division 2 (to be inserted by Schedule 3, item 11). The new regime applies from the commencement of Part 2 of Schedule 3 of these amendments. Division 1A will be repealed at the end of the transition period when the new representative body regime comes into force (see Schedule 3, item 24).

Keys terms explained

33.8 The Bill defines terms used in amendments to Part 11 [Schedule 3, item 1, section 201A]. The terms director, executive officer and governing body are used as generic terms in relation to a representative body because of the varied structures of representative bodies resulting from their different origins, and the varied terminology used to describe elements of those structures.

What is an exempt state body?

33.9 The term exempt State body refers to State statutory bodies which represent the interests of, or act on behalf of, Aboriginal peoples or Torres Strait Islanders. Some such State statutory bodies are currently determined as representative bodies and will be eligible to apply to be a representative body under the new regime [Schedule 3, item 1, section 201B; Schedule 3, item 11, section 203AA]. For Constitutional reasons, it is not appropriate to apply some of the accountability provisions under the new regime to such State statutory bodies. The term is used to simplify references to these bodies.

What is meant by the term functions?

33.10 The term functions in relation to a representative body is used to mean both the functions and the obligations imposed on the body by the NTA, whether or not any of those functions or obligations are also conferred or imposed on the body under a law of a State or Territory. This is intended to simplify the language related to a representative body's functions and obligations. This meaning is also given to the term function in relation to a representative body where that term is used in Parts 1 and 2 of Schedule 3.

What is meant by the term powers?

33.11 The term powers in relation to representative body means the powers conferred on the body by the NTA whether or not they are also conferred on the body by a law of a State or Territory.

What is the transition period?

33.12 The transition period is the period (established by the commencement provisions in Clause 2 of the Bill, which is explained in Chapter 1) of at least 12 months, during which preparations are made for the commencement of the new regime for representative bodies. This regime will come into operation at the end of the transition period. The transition period is defined as the period beginning on the day on which Division 2 (in this Part) commences and ending immediately before Division 3 (which is in Part 2 of Schedule 3 of these amendments) commences. It is open to the Minister for Aboriginal and Torres Strait Islander Affairs to extend this period (see Chapter 1). The purpose of the transition period is described in more detail in the general description at the beginning of this Part.

What are eligible bodies?

33.13 New section 201B defines the term eligible body. Only eligible bodies can apply to the Minister under the new representative body regime to be recognised as representative bodies.

Eligible body must be a body corporate

33.14 An eligible body must be a body corporate in one of the following three categories [subsection 201B(1)]:

• A body corporate incorporated under Part IV of the Aboriginal Councils and Associations Act 1976, whose objects enable it to perform the functions of a representative body [paragraph 201B(1)(a)].

• A body corporate that is a representative body at the commencement of this section. This will enable a representative body determined under the current representative body regime to be eligible to apply to be a representative body under the new regime [paragraph 201B(1)(b)].

• A body corporate established by or under a law of the Commonwealth, a State or a Territory, or a part of such a law, and prescribed for the purposes of this paragraph [paragraph 201B(1)(c)]. This is intended as a contingency category to provide flexibility to the types of bodies that are eligible to apply to be representative bodies.

A regulation prescribing a law, or part of a law, for the purposes of paragraph (1)(c) may be limited to a specified class or classes of bodies corporate [subsection 201B(2)].

Registered native title body corporate is not an eligible body

33.15 A registered native title body corporate cannot be an eligible body [subsection 201B(2)]. A registered native title body corporate is a body corporate which, following a determination of native title, is formed to hold that native title in trust or to act as agent of the common law native title holders in accordance with Division 6 of Part 2 of the Native Title Act.

Functions in section 202 apply only to current regime representative bodies

33.16 The representative body functions described in subsection 202(4) only apply to representative bodies determined under section 202 (that is, current representative bodies) [Schedule 3, item 2]. At the end of the transition period, section 202 will be repealed (by Part 2 of Schedule 3 of these amendments). From then onwards, representative bodies will be recognised under Division 2 and the new provisions in Division 3 setting out their functions will commence.

Representative body may perform all functions

33.17 The Bill amends paragraphs 202(4)(a) and (b) by replacing the term ‘claim’ with ‘applications’ to reflect amendments in Schedule 2 which deal with applications for a determination of native title or compensation [Schedule 3, item 3]. The Bill also removes the word ‘or’ between the paragraphs listing the current functions of representative bodies set out in subsection 202(4) [Schedule 3, item 4]. The effect of this amendment is that representative bodies may perform the range of functions in this subsection, and that the conduct of one function does not exclude a body from performing the other functions.

Additional representative body functions

33.18 The Bill inserts new paragraphs 202(4)(c) to (f) which set out additional functions for current representative bodies [Schedule 3, item 5]. These functions will apply until the end of the transition period. They are described below.

Assisting native title holders and claimants

33.19 A representative body has the ‘assistance’ functions of current representative bodies, including functions covered by existing paragraph 202(4)(c) [paragraph 202(4)(c)]. These functions are to represent native title clients in negotiations and proceedings about future acts, compensation for such acts, rights of access (such as those given under new section 44B) or any other matter relating to the NTA.

Certifying native title determination applications

33.20 A representative body has the new function of certifying applications for determinations of native title wholly or partly within its area [paragraph 202(4)(d)]. This certification is for purposes of the new registration test for applications for determinations of native title, which is inserted by Schedule 2 of the Bill and described in Chapter 29. However, this function does not apply when an application is not made through the relevant representative body.

Certifying applications to register indigenous land use agreements

33.21 A representative body has the new function of certifying applications for registration of indigenous land use agreements wholly or partly within its area [paragraph 202(4)(e)]. This function is related to the provisions for registering certain indigenous land use agreements which are found in Schedule 1 of the Bill, and which are described in Chapter 7. Again, this function does not apply when an application is not made through the relevant representative body.

Becoming a party to indigenous land use agreements

33.22 There are new provisions for becoming a party to an indigenous land use agreement under the new indigenous land use agreement provisions inserted by Schedule 1 of this Amendment Bill. Under those provisions, representative bodies will be able to enter into some indigenous land use agreements as parties to those agreements. [Paragraph 202(4)(f)]

How are the new functions to be performed?

33.23 The Bill inserts new subsections into section 202 dealing with the requirements which must be satisfied by representative bodies in performing their new certification functions. [Schedule 3, item 6]

When can a representative body certify a claim for native title?

33.24 Where claimant applications for determinations of native title are made through representative bodies, applications must be certified in a particular way [subsection 202(5)]. A representative body must not certify such an application unless it is of the opinion that the applicant has the authority to make it and to deal with matters arising in relation to it, on behalf of all the other persons in the group making the claim [paragraph 202(5)(a)]. The process by which a person making an application is taken to have such authority is set out in new section 251B. A representative body must not certify an application unless it is also of the opinion that all reasonable efforts have been made to ensure that the application describes or otherwise identifies all the other persons in the native title claim group [paragraph 202(5)(b)]. Subsection 61(4) will require applications to identify the members of the claimant group.

Minimising the number of applications for the same area

33.25 In considering the certification of applications for the determination of native title, a representative body must make all reasonable efforts to minimise the number of applications over the same area [subsection 202(6)]. The representative body must attempt to achieve agreement between the various claimants or proposed claimants, and attempt to minimise the number of applications; for example, by persuading the various applicants to combine their applications [paragraphs 202(6)(a) and (b)]. A certification by the representative body will remain valid even if that body fails to achieve agreement between claimants. Under section 68, the Federal Court will be obliged to deal with all native title in an area.

Statement about certification, reasons and actions

33.26 A representative body must include in its certification of an application for determination of native title a statement that it considers the certification requirements in subsection 202(5) have been met, and why it is of that opinion [paragraphs 202(7)(a) and (b)]. A representative body is required, where applicable, to set out briefly what it has done to attempt to minimise the number of overlapping applications as required under subsection 202(6) [paragraph 202(7)(c)].

Certifying applications to register indigenous land use agreements

33.27 Where applications to register indigenous land use agreements are made through a representative body, the representative body must not certify an application for registration of an indigenous land use agreement unless it is of the opinion that reasonable efforts to identify all persons holding native title in relation to the area covered by the agreement have been made, and the agreement is made with the authority of all of the persons so identified [subsection 202(8)]. The process by which authority to make an indigenous land use agreement is taken to be given is provided for in new section 251B. Where an objection is made to an indigenous land use agreement, the Registrar cannot register the agreement if any objector has satisfied the Registrar that the requirements of paragraphs 202(8)(a) and (b) were not satisfied in relation to the certification (see subsection 24CK(2)).

Statement about certification and reasons

33.28 A representative body must state in its certification of an indigenous land use agreement that it considers the certification requirements in paragraphs 202(8)(a) and (b) have been met, and why it is of that view [subsection 202(9)]. This provides information on which the Registrar can come to a view under section 24CK.

What are a representative body’s functions when making indigenous land use agreements?

33.29 The Bill inserts new section 202A, which sets out a representative body’s obligations in relation to native title holders before the representative body becomes a party to an indigenous land use agreement [Schedule 3, item 7, section 202A]. New section 202A provides that, as far as practicable, a representative body must consult with, and take account of the interests of, the persons who hold or may hold native title in relation to the area when entering into an indigenous land use agreement.

Funding limited to existing representative bodies

33.30 The Bill amends section 203 to make it clear that section 203 only authorises the provision of financial assistance to representative bodies determined under the current regime [Schedule 3, item 8]. While new regime representative bodies may be recognised under Division 2 during the transition period, during which time section 203 is still in effect, their recognition as representative bodies will not take effect until the end of the transition. The new regime representative bodies will not receive funding under the new provisions dealing with grants from ATSIC until their recognition takes effect.

ATSIC to be sole source of funding under the Native Title Act

33.31 An amendment to subsection 203(1) removes the provision in subsection 203(1) for a representative body to apply to the Commonwealth Minister for financial assistance [Schedule 3, item 9]. As a result of this amendment, ATSIC will be the only source of financial assistance to representative bodies under the current regime. This amendment, which corresponds with current practice, also corresponds with the provision for funding of representative bodies by ATSIC under the new regime. It is linked to another amendment which repeals subsection 203(2) [Schedule 3, item 10]. That subsection provided for the Commonwealth Minister to authorise grants of financial assistance to representative bodies under the current regime.

New Division 2 - Recognising representative bodies under the new regime

33.32 The Bill inserts a new Division 2, headed ‘Recognition of representative Aboriginal/Torres Strait Islander bodies’ which sets out the scheme for recognition of representative bodies which will operate under the new regime [Schedule 3, item 11]. These provisions will allow for a process of recognition of representative bodies for the purposes of the new regime from the commencement of the transition period, although bodies so recognised will not commence operating as a representative body until the provisions in Part 2 of Schedule 3 of these amendments commence, after the end of the transition period.

Standard process for inviting applications for recognition

Eligible bodies invited to apply for recognition

33.33 New section 203A sets out the standard way in which applications for recognition as representative bodies under the new regime are to be sought. This process will be used to solicit applications from eligible bodies for recognition as a representative body. However, a modified process will apply during the transition period, to ensure that the representative bodies recognised under the current regime are given the first opportunity to apply for recognition under the new system [section 203AA].

Minister may invite applications

33.34 The Commonwealth Minister may invite applications from eligible bodies for recognition as the representative body for an area, or for one of a number of areas [Schedule 3, item 11, subsection 203A(1)]. The term eligible bodies is defined in new section 201B, (see 33.13 to 33.15 above). The way in which the applications are to be invited is to be determined in writing by the Commonwealth Minister. This requirement will ensure that a consistent process is used for making invitations.

Invitation may cover more than one area

33.35 An invitation can cover more than one area for which applications are sought. This means that eligible bodies which receive such invitations may be able to make applications in relation to all or any of the areas covered by that invitation. [subsection 203A(2)]

Eligible bodies have at least 28 days to make application

33.36 An invitation for applications must specify a period of at least 28 days within which applications are to be given to the Commonwealth Minister [subsection 203A(3)]. Because of the comprehensive factors in sections 203AD and 203AI which must be considered by the Commonwealth Minister in recognising a representative body, this provision will ensure that eligible bodies have sufficient time in which to prepare their applications. This period may be extended by the Commonwealth Minister [Schedule 3, item 11, subsection 203AB(2)].

Invitations can be made generally

33.37 The Commonwealth Minister may choose to determine that applications can be invited by the publication of general invitations, rather than by making a separate invitation to each eligible body. This provision will enable invitations to be made to any eligible bodies of which the Minister is not aware. [Subsection 203A(4)]

Inviting applications from representative bodies during the transition period

33.38 New section 203AA sets out a two-stage process which will apply during the transition period only. It gives priority for consideration for representative body status under the new regime to the existing representative bodies having responsibility for an area.

Minister to issue invitations soon after the transition period starts

33.39 The Commonwealth Minister must invite applications for recognition as a representative body under the new regime as soon as practicable after the commencement of the transition period. [Subsection 203AA(1)]

Invitations must cover all parts of Australia

33.40 The areas for which applications are invited must, taken together, cover the whole of Australia. However, it will not be necessary for the Minister to make all of the invitations at the same time. [Subsection 203AA(1)]

Factors relevant to setting the invitation areas

33.41 The Minister must have regard but is not limited to the following matters in setting the boundaries for the areas subject to the invitations made during the transition period:

• the need to minimise disruption to the performance of representative body functions; and

• the requirement that there is only one representative body per area under the new regime in subsection 203AD(4). [Subsection 203AA(2)]

Current regime representative bodies given first opportunity to apply

33.42 The Minister must accord priority to representative bodies recognised under the current regime by giving them the first opportunity to apply to be the representative bodies for their current areas, or parts of those areas, under the new regime [paragraph 203AA(3)(a)]. This requirement is intended to facilitate continuity where such bodies are able to meet the comprehensive new criteria for recognition under the new regime. No other invitations may made for an area covered by an existing representative body until the end of the transition period, unless such an invitation is authorised under subsection 203AA(4) [paragraph 203AA(3)(b)].

If no current representative body, standard process applies

33.43 In the event that an invitation area decided by the Minister in accordance with subsections 203AA(1) and (2) does not have a current regime representative body covering all or part of it at the beginning of the transition period, the Minister would call for applications for that area in the normal way [section 203A]. This is to help ensure that at the time of the commencement of the new regime, this is a representative body responsible for each part of Australia.

Other invitation possible during transition period

33.44 The Minister may issue a second round of invitations during the transition period should the first stage, described in subsection 203AA(1), fail to result in the recognition of a representative body for a particular area [subsection 203AA(4)]. These invitations can be given to any eligible bodies, whether or not they were representative bodies under section 202 at the beginning of the transition period. There are two circumstances under which a second round of applications may occur [section 203A]:

• The Minister may call for such applications if none of the bodies invited under paragraph 203AA(3)(a) applied to be a representative body in relation to the new area [paragraph 203A(4)(a)].

• Such applications may also be invited in relation to a new area if the Minister has rejected the applications of each body which made an application in relation to that area [paragraph 203A(4)(b)].

An invitation during this second stage can be made for an area that is different from the original invitation area, as long as the invitation relates to an area wholly or partly covered by the original invitation area. This will facilitate adjustments to the boundaries should this be found desirable in the course of the first stage of applications.

Diagram explains invitation process

33.45 The scheme for invitations during the transition period is explained diagrammatically in subsection 203AA(5) as an aid to understanding.

Applications for recognition as a representative body

33.46 There is a process for making applications in response to an invitation. [Section 203AB]

Eligible bodies may apply

33.47 An eligible body may apply to the Commonwealth Minister for recognition as the representative body for an area for which applications have been invited under section 203A. [Subsection 203AB(1)]

Time limit for making applications

33.48 Such an application must be given to the Commonwealth Minister within the period specified in subsection 203A(3). That period must be at least 28 days, but can be extended by the Commonwealth Minister. [Subsection 203AB(2)]

Only certain eligible bodies to apply during transition period

33.49 To preserve the priority for existing representative bodies, applications are limited during the transition period to those bodies so invited under subsection 203AA(3) or (4) (explained in paragraphs 33.42 to 33.44). [Subsection 203AB(3)]

Minister may seek further information from applicants

33.50 In the course of considering an application for recognition as a representative body, the Minister may ask for more information from an applicant. [Schedule 3, item 11, section 203AC] The Senate made 1997 Government amendment (77) which is included in the Bill. This amendment inserts subsection 203AC(1A) which explains the time frames for the Minister to make decisions about recognition applications. Generally, the Minister must make decisions as soon as practicable after any invitation period, extension or further information request period has expired. However, where the application is made by an existing representative body during the transition period in response to an invitation that was only open to existing bodies under proposed subsection 203AA(3), the application must be decided before the end of the transition period. There is a note explaining that the heading to section 203AC will now read ‘Dealing with applications’.

Notice requiring further information

33.51 The Minister may give an applicant a notice asking for further information to be provided within the time limit set by the notice. [Subsection 203AC(1)]

Applicants have at least 21 days to respond

33.52 The time limit for responding to a notice under subsection 203AC(1) must be at least 21 days from the day the notice is given. [Subsection 203AC(2)]

Minister can make decision even if no further information provided

33.53 The Minister is not however prevented from proceeding to make a determination in relation to the application if the applicant has not responded to the notice within the specified period. [Subsection 203AC(3]

Notice must explain effect of subsection 203AC(3)

33.54 The notice must make the applicant aware that a decision could be made even if the extra information is not provided. [Subsection 203AC(4)]

Process for recognition of representative bodies

33.55 Section 203AD sets out the process to be followed by the Commonwealth Minister in considering an application for recognition as a representative body and in recognising the successful applicant by way of a written instrument. It will apply to all applications for recognition under the new regime, including applications during the transition period. All representative bodies under the new regime must be recognised under section 203AD whether or not they were previously recognised under section 202. [Schedule 3, item 11, 203AD]

Criteria for recognition

33.56 Before making a written instrument recognising a representative body for an area, the Commonwealth Minister must be satisfied about the following:

• the body will satisfactorily represent persons who hold or may hold native title in the area; and

• the body will be able to consult effectively with Aboriginal people and Torres Strait Islanders living in the area; and

• if the body already is a representative body - the body satisfactorily performs its existing functions; and

• the body would be able to perform satisfactorily the functions of a representative body under Division 3 and to comply with the obligations of a representative body under Divisions 4 and 5. [Paragraphs 203AD(1)(a) to (d)]

How do these criteria compare with those under the current regime?

33.57 The criteria, all of which must be met before a body can be recognised, are a more stringent test for recognition than under the current subsection 202(3) of the Native Title Act. The matters to be taken account by the Minister in considering the criteria relating to representing native title clients satisfactorily and consulting local indigenous people effectively are set out in section 203AI (see paragraphs 33.63 to 33.66 below).

When does recognition take effect?

33.58 The Minister may set the day on which recognition takes legal effect in the instrument of recognition, so long as that day does not precede that end of the transition period [subsection 203AD(2)]. One of the purposes of this provision is to enable the Minister to make instruments recognising bodies as representative bodies in the course of the transition period, to take effect at the end of that period. This will enable the affected bodies to prepare in advance for the requirements of the new regime.

Criteria for exempt State bodies

33.59 The Commonwealth Minister must not recognise an exempt State body as a representative body unless he or she is satisfied that the obligations it would have under the Native Title Act, together with its obligations under State laws, would provide an appropriate level of accountability [subsection 203AD(3)]. This additional requirement is included in relation to exempt State bodies because the provisions in Division 6, dealing with the conduct of directors and executive officers of a representative body, are based on standards applied to Commonwealth bodies.

Only one recognised body per area

33.60 The Commonwealth Minister must not recognise more than one representative body for an area [subsection 203AD(4)]. This does not prevent the Minister from recognising a representative body under the new regime during the transition period where there already is another representative body for that area or part of that area under the current regime, because current regime representative bodies were recognised under section 202.

Notifying unsuccessful applicants

33.61 The Commonwealth Minister must notify an unsuccessful applicant of his or her decision not to recognise that body as a representative body and provide reasons for the decision. [Subsection 203AD(5)]

Discontinuous numbering explained

33.62 There is a gap in the numbering of new sections inserted by Part 1, with section 203AE being followed by section 203AH. This gap arises because sections 203AE to 203AG will be inserted by Part 2 of Schedule 3, and will take effect at the end of the transition period. Those sections deal with adjusting or reducing representative body boundaries and withdrawing recognition from a representative body.

Matters to which Commonwealth Minister must have regard

33.63 Section 203AI explains the matters which the Minister must take into account when making decisions under Division 2. [Schedule 3, item 11, section 203AI]

Organisational structures and administrative processes must be fair

33.64 When considering whether that body will satisfactorily represent Aboriginal peoples or Torres Strait Islanders in the area of the application and satisfactorily take account of the interests of the persons who hold or may hold native title in that area, the Minister must take account of the fairness of a body’s organisational structures and administrative processes [subsection 203AI(1)]. Such consideration must occur when the Minister is considering whether to recognise a body under section 203AD. It will also be required under the new regime provisions (which will come into effect when Part 2 of Schedule 3 of these amendments commences) relating to the adjustment of representative body areas and the withdrawal of recognition. These provisions are new sections 203AE (extension of areas), 203AF (variation of adjoining areas), 203AG (reduction of areas) and 203AH (withdrawal of recognition).

How is fairness to be assessed?

33.65 In summary the matters which the Minister must have particular regard to are:

• the way in which a body relates to its actual and potential native title clients and involves them in its processes; and

• the way in which it makes its decisions and conducts its operations. [Subsection 203AI(2)]

33.66 As the representative body regime is based on the recognition of existing bodies, many of which will have other separate functions (for example, they may be Land Councils or Aboriginal Legal Services) it would be impractical for the Native Title Act to prescribe particular structures and administrative processes for representative bodies. Bodies applying to be representative bodies may have a variety of different membership requirements, organisational structures and administrative processes. Their differences might be derived from the different indigenous affiliations, laws and customs in different areas or from the history of the organisation. The Minister will be able to look at whether the interplay of structure and process in a body is likely to produce fair outcomes for its Aboriginal and Torres Strait Islanders constituents and persons who hold native title in its area [section 203AI]. The fairness requirement is particularly important because there will be only one representative body for an area under the new regime.

Minister not limited by these matters

33.67 The Commonwealth Minister is not however limited in any other matters he or she may take into account in making a decision under Division 2. [Subsection 203AI(3)]

New Division 7 - Miscellaneous

33.68 New Division 7 is headed ‘Miscellaneous’ and will apply from the beginning of the transition period in order to include new sections 203FC, 203FD and 203FH that will apply to representative bodies recognised under both the new and the current scheme. When the amendments in Part 2 of Schedule 3 commence, this Division will be preceded by new Divisions 3, 4, 5, 6 and 7. This is explained by a note before the heading.

Transfer of records from a former representative body

33.69 Information may be transferred which relates to a representative body's performance of its functions and exercise of its powers when a representative body (the former representative body: defined in subsection 203FC(5)) has its recognition withdrawn or areas of responsibility reduced or adjusted [Schedule 3, item 11, section 203FC]. The information is transferred to the representative body or bodies which succeed it for the relevant area. This provision is intended to ensure that representative body services continue with as little disruption as possible. The section only covers the documents and records related to the performance of representative body functions and exercise of representative body powers, and would not cover the other activities of the body.

Minister may issue directions

33.70 The Commonwealth Minister may, by written instrument, issue directions requiring the representative body to take certain actions in dealing with its representative body documents and records (concerning its former area) or in relation to those documents and records. The requirements in this subsection should ensure that the Minister's directions take account of ownership rights, privacy considerations and cultural sensitivities relating to those documents and records. Such directions take effect on the day on which they are issued. [Subsection 203FC(1)]

33.71 The Senate made 1998 Government amendment (77), which is included in the Bill. The amendment replaces subsection 203FC(1) and inserts subsection 203FC(2). In replacement subsection 203FC(1) there are two matters about which the Minister may issue directions:

• the return of such documents and records to the person or persons who provided them to the former representative body [paragraph 203FC(1)(a)];

• access to any documents, the documents themselves, or copies of the documents, provided they are reasonably necessary for the replacement body to exercise its powers and perform its functions as a representative body. The making of such copies would be authorised by section 183 of the Copyright Act 1968. [paragraph 203FC(1)(b)];

33.71a Subsection 203FC(2) provides a limit on such Ministerial directions. The Minister must not so direct a former representative body to allow access, provide documents or provide copies of documents in relation to a claim for native title or compensation unless the claimants have sought assistance in relation to the claim from the replacement body. The Minister must not so direct a former representative body to allow access, provide documents or provide copies of documents in relation to the rights of determined native title holders unless the holders have sought assistance in relation to the claim from the replacement body. The Senate made 1998 Opposition amendment (N45), which is included in the Bill. This amendment inserts subsection 203FC(2A) which provides that Ministerial directions must not require the former representative body to act in contravention of its obligations under section 203FCA (see 1998 Government amendment (78) below.

33.71b The Senate made 1998 Government amendment (77A) which is consequential to 1998 Government amendment (77). It removes a later amendment to section 203FC that is now unnecessary because of subsection 203FC(2)

Subsection 203FC(2) commences at the end of the transition period

33.72 Subsection 203FC(2) is not included in Part 1 of Schedule 3 because it relates to a representative body’s performance of its functions under the new regime. The subsection will be inserted at commencement of the new regime by Schedule 3, item 32.

Compliance with directions

33.73 A former representative body must comply with the Minister's directions [subsection 203FC(3)]. Any person affected by non-compliance with directions under subsection 203FC(1) may apply to the Federal Court [subsection 203FC(4)]. The Court may make such orders as it thinks fit to ensure a body's compliance.

Representative body to comply with wishes of traditional owners

33.73a The Senate made 1998 Government amendment (78), which is included in the Bill. This amendment inserts a new section 203FCA which provides that a representative body must make efforts to comply with the wishes of traditional custodians in relation to traditional materials and information contained in them. This obligation will apply generally, and in particular where a replacement representative body obtains such material from a former representative body under section 203FC.

Personal liability of executive officers etc

33.74 An office-holder or member of a representative body is not personally liable for an action or other proceeding for damages in relation to an act done or omitted to be done in good faith by the representative body or that person in his or her capacity as office-holder or member [Schedule 3, item 11, section 203FD]. This provision operates in relation to a body's performance of representative body functions or exercise of representative body powers only. It is based on sections 42, 125 and 143U of the Aboriginal and Torres Strait Islander Commission Act 1989, which provide similarly for the ATSIC Commissioners, members of ATSIC Regional Councils and members of the Torres Strait Regional Authority.

Determining the state of mind of a representative body - conduct by directors, employees and agents

33.75 The way in which the ‘state of mind’ of a body corporate and its directors, employees or agents can be established in relation to compliance with statutory provisions is set out [Schedule 3, item 11, section 203FH]. There is a similar provision in section 199 of the Aboriginal and Torres Strait Islander Commission Act 1989.

Conduct within scope of authority

33.76 If it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show that the conduct was engaged in by a director, employee or agent of the body within the scope of his or her actual or apparent authority, and that the director, employee or agent had that state of mind [subsection 203FH(1)]. Any conduct engaged in on behalf of a body corporate by a director, employee or agent of that body within the scope of his or her actual or apparent authority is taken to have been engaged in by the body unless the body established that it took reasonable precautions and exercised due diligence to avoid the conduct [subsection 203FH(2)].

Conduct by a person other than a body corporate

33.77 If it is necessary to establish the state of mind of a person in relation to particular conduct, it is sufficient to show that the conduct was engaged in by an employee or agent of the persons within the scope of his or her actual or apparent authority, and that the employee or agent had that state of mind [subsection 203FH(3)]. Any conduct engaged in on behalf of a person, by an employee or agent of the person within the scope of his or her actual or apparent authority, is taken to have been engaged in by the first-mentioned person unless the first-mentioned person establishes that he or she took reasonable precautions or exercised due diligence to avoid the conduct’ [subsection 203FH(4)]. If a person is convicted of an offence, and such a conviction would not have occurred if subsections 203FH(3) and (4) had not been enacted, the person if not liable to be punished by imprisonment for that offence [subsection 203FH(5)].

References to state of mind to include references to knowledge etc

33.78 A reference to the state of mind of a person in subsections 203FH(1) or (3) includes a reference to the person's knowledge, intention, opinion, belief or purpose, and to the person's reasons for the intention, opinion, belief or purpose. [Subsection 203FH(6)]

Definitions

33.79 Definitions of ‘director of a body corporate’ and ‘engaging in conduct’ are included. [Subsections 203FH(7) and (8)]

New definitions inserted in section 253

33.80 The Bill includes a reference to representative bodies recognised under the new regime provisions in section 203AD in the definition of representative Aboriginal/Torres Strait Islander body in section 253 [Schedule 3, item 12]. The Bill also amends section 253, by inserting the definition of the term representative body, which is used in the amended Part 11 as a convenient way of referring to a representative Aboriginal/Torres Strait Islander body [Schedule 3, item 13].

Overview of Part 2

34.1 Part 2 inserts the new representative body regime in the Native Title Act and repeals or amends certain provisions in the old Act or that are inserted by Schedule 1 or Part 1 of Schedule 3 of these amendments. Under clause 2 of the Bill, this Part will commence at least 12 months after Part 1 of Schedule 3. The new regime set up by this Part includes provisions for managing representative bodies across Australia in a nationally consistent manner.

34.2 The Commonwealth Minister will have the capacity to adjust the areas of representative bodies in certain circumstances, and to withdraw the recognition of a representative body which ceases to meet the recognition criteria. These provisions are inserted in Division 2 by Schedule 3, item 25.

34.3 New Divisions 3 to 7, which are inserted by Schedule 3, item 30, comprise the core of the new representative body regime. Division 3 sets out comprehensive new functions and related obligations and powers of representative bodies. In summary, a representative body will have widely ranging functions of assisting native title holders or persons who may hold native title in relation to applications for determinations of native title, future acts, indigenous land use agreements and other matters relating to native title and the operation of the Native Title Act. It is intended that these functions will extend to the full range of native title matters including indigenous land use agreements.

34.4 Representative bodies will not have a monopoly on representing indigenous people who hold or claim hold native title. A person with native title would remain free to engage representation elsewhere, but government funding to assist native title interest holders will be predominantly channelled through the representative body system. A representative body can only perform its facilitation and assistance functions if requested by the persons requiring the assistance. Such persons would be encouraged to use the services of representative bodies because of the expertise and funding available through the bodies, and the safeguards included in these provisions to ensure representative bodies’ accountability to their constituents. Such safeguards include the requirement that representative bodies obtain the informed consent of persons for whom they are acting, and the requirement (designed to deal with potential conflicts of interest) that they only act in relation to more than one matter covering the same area if they have the consent of all the relevant native title parties. They must also maintain fair structures and processes, and provide an internal review mechanism in relation to their decisions. Indigenous persons refused assistance by a representative body will be able to appeal to ATSIC for a review of a decision to refuse assistance under the new review power in Division 7.

34.5 Representative bodies will have other functions which will assist in streamlining the conduct of native title processes and improving their services to native title clients in relation to any matter involving native title.

34.6 Division 4 deals with funding of representative bodies under the Native Title Act. Financial assistance to representative bodies will be provided in the form of grants from ATSIC. Such funding will be based upon the functions and obligations that it would be expected to perform or carry out and upon the general directions approved by the Minister in its strategic plan. As there may be resource constraints limiting the extent to which a representative body can deal with particular matters, a representative body may need to prioritise its proposed activities. Transparency in such matters is to be ensured through the annual reporting requirement and the inclusion of prioritisation policies and strategies in a representative body's strategic plan, which must be approved by the Minister under Division 5.

34.7 On a day-to-day basis, a representative body will be accountable directly to ATSIC in relation to financial matters and for its overall performance under, and compliance with, the Native Title Act. ATSIC will be responsible for the administration of the representative body provisions of the Native Title Act. ATSIC will be required to impose on a representative body mandatory grant conditions requiring satisfactory performance of functions and compliance with the Act. These grant conditions will also include mechanisms to ensure that ATSIC receives regular information on grant expenditure and is able to take remedial measures to assist a representative body to address performance difficulties. ATSIC will be required to report to the Minister on serious or repeated breaches of grant conditions by a representative body, and under Division 7 ATSIC must inform the Commonwealth Minister if it forms the opinion that a representative body is not representing native title clients satisfactorily, not consulting effectively, not performing its functions satisfactorily, or there are possible financial irregularities or possible breaches of grant conditions

34.8 The role of the Minister in relation to representative bodies will largely be a strategic one. The main mechanisms for Ministerial scrutiny are set out in Division 5. The Minister will approve the general directions of a representative body’s operations through periodic approval of its strategic plan. There will also be Ministerial and public scrutiny of a representative body through its annual reporting requirements. However, the Minister will have the power to appoint a person to inspect and audit or investigate a representative body in the event of serious or repeated irregularities of performance or failures, with this power of audit being in addition to ATSIC’s general power to audit bodies to whom it makes grants of money. The Minister also has the power to seek information or documents from ATSIC where he or she suspects that a representative body is not representing native title clients satisfactorily, not consulting effectively, not performing its functions satisfactorily, there are possible financial irregularities or possible breaches of grant conditions

34.9 Certain provisions inserted by this Part relating to representative body accountability and conduct are based on the Commonwealth Authorities and Companies Bill 1996, particularly the provisions in new Division 6. This Bill will provide a single set of core reporting and auditing requirements and set out standards of conduct in relation to Commonwealth authorities. The proposed requirements are modelled on comparable areas of the Corporations Law and best practice currently applying to individual authorities. As representative bodies will be performing important functions in relation to Commonwealth legislation, it is considered desirable that the best practice standards in the Commonwealth Authorities and Companies Bill 1996 should apply to representative bodies as far as practicable. In the expectation that the Bill will have become law by the time the new representative body regime is in operation, the provisions relating to the conduct of directors and executive officers of Commonwealth authorities are applied to the directors and executive officers of representative bodies by Division 6. Those provisions cover matters such as the disclosure of material personal interests, the use of inside information and position and liabilities to pay compensation or damages. Some minor changes are made to the meet the special nature of representative bodies.

34.10 In addition, the conduct provisions in Division 6 can only be applied to a representative body that is an exempt State body to the extent that a law of a State provides that these provisions can apply. To compensate for this limitation, the Commonwealth Minister cannot recognise an exempt State body as a representative body unless he or she is satisfied that the obligations that body would have under the Native Title Act, together with its other obligations under the laws of a State, would provide an appropriate level of accountability.

34.11 The amendments to Division 7 provide for ATSIC, in exceptional circumstances, to make financial assistance grants to bodies or persons other than representative bodies for the provision to Aboriginal people or Torres Strait Islanders of assistance that would normally come within a representative body's functions (see section 203FE inserted by Schedule 3, item 33). This provision applies where there is no representative body for an area, or where ATSIC decides to provide grant assistance to a person as the result of their appeal to ATSIC against a representative body's refusal to provide assistance.

Consequential amendments to provisions concerning the registration of indigenous land use agreements

34.12 The Bill amends provisions relating to the registration of indigenous land use agreements to replace references to repealed paragraphs 202(8)(a) and (b) and paragraph 202(4)(e) with references to new paragraphs 203BE(5)(a) and (b) and paragraph 203BE(1)(b) which respectively replace them. The provisions to be amended in this way are paragraph 24CG(3)(a), subparagraph 24CH(2)(d)(i), subsection 24CI(1), paragraph 24CK(2)(c), subparagraph 24EB(5)(b)(i) and new subparagraph 199C(1)(b)(i). [Schedule 3, items 14, 15, 16, 17, 18 and 22].

Consequential amendments to provisions concerning NNTT functions

34.13 The Senate made 1997 Government amendment (78) which is included in the Bill. This amendment replaces new subsection 108(1B), to give the NNTT, from the end of the transition period, the new function of entering into contracts with representative bodies to assist with their dispute resolution functions. This amendment is linked to 1997 Government amendment (79) which allows the NNTT to assist a representative body in its dispute resolution functions if there is an agreement between the body and the NNTT under which the body pays the NNTT for its assistance.

Consequential amendments to the registration test

34.14 The Bill makes consequential amendments to the registration test conditions under section 190C [Schedule 3, items 19, 20 and 21]. The reference in paragraph 190C(4)(a) to the certification function of representative bodies under paragraph 202(4)(d) is removed because section 202 will be repealed at the commencement of the new regime. A reference to the certification function of representative bodies under the new regime is substituted. A note is added to paragraph 190(4)(a) to assist persons reading the Act after the repeal of paragraph 202(4)(d) by indicating that an application may have been certified under that paragraph [Schedule 3, item 19].

34.15 Subsections 190C(6) and (7), relating to certification of applications for registration of native title applications under new section 190C, are repealed [Schedule 3, item 21]. Those provisions covered situations where there might be more than one representative body for the land or waters to which such applications related because the determination of more than one representative body for an area is possible under the current representative body regime. With the commencement of the new regime, which provides for only one representative body for an area, subsection 190C(6) and (7) will not be needed.

Amendment to section 201A to insert new definitions

34.16 The Bill inserts in section 201A new definitions of terms which are used in the new representative body regime [Schedule 3, item 23]. There is a definition of the abbreviation ATSIC meaning the Aboriginal and Torres Strait Islander Commission. The term native title application is also defined, and covers a range of applications relating to native title matters that may be made under the NTA. The definition is adopted to simplify references to the functions of representative bodies which relate to such applications.

Repeal of Division 1A of Part 11

34.17 The Bill repeals Division 1A of Part 11 of the Act, which dealt with representative bodies recognised under the current regime from the end of the transition period [Schedule 3, item 24]. Representative bodies recognised under section 202 will cease to be regarded as representative bodies under this Act unless they have become recognised as representative bodies under section 203AD.

Additional provisions dealing with recognition

34.18 The Bill inserts several new sections into Division 2 which permit the Commonwealth Minister to adjust the area of a representative body and withdraw the recognition of a representative body [Schedule 3, item 25]. It is important to note that when the amendments refer to the functions of a representative body, the extended meaning of that term as defined in section 201A is intended. The extended meaning covers the functions given to a representative body under the NTA as well as its obligations imposed by or under the NTA.

Extending representative body areas

34.19 The Commonwealth Minister may extend the area of a representative body by adding adjoining land or waters if certain conditions are met. These conditions are that:

• the Minister considers the adjoining land or waters are not of such significance that invitations should be made under section 203A; and

• the Minister is satisfied the body will satisfactorily represent persons who hold or may hold native title in the area; and

• the Minister is satisfied the body be able to consult effectively with Aboriginal peoples and Torres Strait islander living in the adjoining area; and

• the Minister is satisfied the body will satisfactorily perform its functions in relation to the adjoining land or waters; and

• the body has agreed to the adjoining land or waters being added to its area. [Schedule 3, item 25, section 203AE]

Purpose of the power to extend areas

34.20 This provision is intended to be used to make relatively small additions to a representative body's area and is not intended to add the whole of a vacant representative body area to that of an existing representative body without going through the application and recognition processes in sections 203A and 203AD respectively. The written instrument extending a representative body's area will be a disallowable instrument.

Variation of adjoining areas

34.21 Representative bodies with a common boundary may apply jointly to the Commonwealth Minister for variation of their adjoining boundaries; there are criteria for the Minister's consideration of such a request. [Schedule 3, item 25, section 203AF]

Joint application necessary

34.22 Applications by representative bodies with a common boundary to vary that boundary must be in writing and meet certain criteria [subsection 203AF(1)]. Before making such an application, those bodies must have taken all reasonable steps to consult the Aboriginal peoples or Torres Strait Islanders who could reasonably be expected to be affected by the proposed variation [paragraph 203AF(2)(a)]. The bodies must also have satisfied themselves that there is broad support for the variations among the persons who hold, or may hold, native title in the area that will be covered by a different representative body as a result of the proposed variations [paragraph 203AF(2)(b)].

Application to include statement about consultations and action

34.23 In order to ensure that the Minister is informed of the steps taken by the bodies under paragraphs 203AF(2)(a) and (b), the application for variation must include a statement of the steps taken by the bodies in consulting in relation to paragraph 203AF(2)(a) and must briefly set out the grounds on which there is broad support of the proposal in relation to paragraph 203AF(2)(b). [Subsection 203AF(3)]

Criteria must be met by both representative bodies for varied areas

34.24 The Minister may vary the boundaries in accordance with the application if the Minister is satisfied that, after the variations, each body will meet the criteria for recognition of a representative body in relation to its varied area. These criteria, which are based on the criteria for recognition of representative bodies in section 203AD, are that each body will:

• satisfactorily represent the native title holders and the persons who may hold native title in the area for which it will, after the variations, be the representative body;

• be able to consult effectively with Aboriginal peoples and Torres Strait Islanders living in the area for which it will, after the variations, be the representative body; and

• satisfactorily perform its functions under Division 3 and comply with its obligations under Divisions 4 and 5. [Subsection 203AF(4)]

Instrument of variation to be disallowable

34.25 The written instrument varying adjoining representative bodies' areas will be a disallowable instrument.

Reduction of representative body areas

34.26 The Commonwealth Minister may reduce the area of a representative body by excising part of its area [Schedule 3, item 25, section 203AG]. The situations this provision is intended to cover include where a representative body is unable to resolve difficulties in representing its constituents in a particular part of its area, but is otherwise performing satisfactorily. Due to the potential for duplication and confusion, it is not considered practical to deal with such situations by allowing more than one representative body over an area. Alternative representative body arrangements would have to be made for the excised area, either by the recognition of a new representative body for the excised area using the application process under section 203A (which would be the normal method) or by extension of the area of an adjoining representative body.

Grounds for reducing a representative body’s area

34.27 The Minister may reduce the area of a representative body by excising a specified part of the area on grounds that, in relation to that part of the area, the Minister is satisfied that the body is not:

• satisfactorily representing the native title holders or persons who may hold native in that part of the area; or

• consulting effectively with Aboriginal peoples and Torres Strait Islanders in that part of the area; or

Instrument of variation to be disallowable

34.28 The written instrument reducing the representative body's area will be a disallowable instrument.

Representative body must continue to satisfy conditions for remaining area

34.29 The Minister must not reduce a representative body's area unless satisfied that, after the reduction, the representative body will meet the general criteria for recognition of a representative body in relation to the remainder of its area. [Subsection 203AG(2)]

Notice and opportunity to make submissions within notice period

34.30 The Minister must provide a representative body with at least 90 days written notice of a reduction of its area. That notice must state the reasons the Minister is considering reducing the area and invite the representative body to make submissions to the Minister about whether its area should be so reduced. The period for making such submissions is 90 days after the day the notice is dispatched to the body [subsection 203AG(3)]. The Minister is required to consider any submissions made by the representative body in that period [subsection 203AG(6)].

Consideration of reports

34.31 The Minister may consider any reports provided under section 203DF in relation to audits or investigations of the body. Under this subsection, the Minister can also consider reports under section 76 of the Aboriginal and Torres Strait Islander Commission Act 1989 (the ATSIC Act) relating to grants made to the representative body under sections 203C and 203FE of the NTA, and information and documents obtained under section 203F and 203FA [subsection 203AG(4)]. This provision is intended to link investigations of a representative body with the possibility of withdrawal of recognition, should such investigations or measures reveal, or fail to resolve, problems with a representative body. The Minister may take account of matters other than the reports referred to in subsection 203AG(4) when making a decision whether to withdraw the recognition of a representative body [subsection 203AG(5)].

Minister to notify representative body of decision and reasons

34.32 The Minister, as soon as practicable after deciding whether to reduce the area, must notify the body in writing of the decisions and, if the decision is to reduce the area, the reasons for that decision [subsection 203AG(7)]. These processes mirror the processes for handling the withdrawal of recognition of a representative body under section 203AG.

Withdrawal of a representative body’s recognition

34.33 Section 203AH sets out the processes and circumstances under which the Minister can withdraw the recognition of a representative body. [Schedule 3, item 25, section 203AH]. The Commonwealth Minister must withdraw recognition if a body has ceased to exist [paragraph 203AH(1)(a)]. The Minister must withdraw recognition if a representative body makes a written request to the Minister to that effect [paragraph 203AH(1)(b)]. In order to ensure that such a request reflects the considered view of the body, the request will have to be authorised by a meeting of the body open to all its members and convened and conducted in accordance with the procedures of the body governing such meetings. The representative body will have to provide evidence of such support in its request to the Minister.

Grounds for discretionary withdrawal of recognition

34.34 The discretionary withdrawal of recognition will be by a written instrument, which is disallowable. There are two general grounds for the discretionary withdrawal of recognition by the Minister. The first ground mirrors the general criteria for recognition of a representative body, and is that the body is not:

• satisfactorily representing the native title holders or persons who may hold native title in the area; or

• consulting effectively with Aboriginal peoples and Torres Strait Islanders living in the area; or

34.35 The second ground is that the Minister is satisfied that the body is unlikely to take steps to rectify the difficulties it is encountering in meeting the recognition criteria [paragraph 203AH(2)(b)]. Under this provision, it would be possible for the Minister to give a representative body an opportunity to rectify problems and improve its performance.

34.36 The Minister may consider any reports provided under section 203DF in relation to audits or investigations of the body. The Minister can also consider reports under section 76 of the ATSIC Act relating to grants made to the representative body under sections 203C and 203FE of the NTA, and information and documents obtained under section 203F and 203FA [subsection 203AH(4)]. This provision is intended to link investigations of a representative body with the possibility of withdrawal of recognition, should such investigations or measures reveal, or fail to resolve, problems with a representative body.

Other matters may be taken into account

34.37 The Minister may take account of matters other than the reports referred to in subsection 203AH(4) when making a decision whether to withdraw the recognition of a representative body. [Subsection 203AH(5)]

Notice and opportunity to make submissions within notice period

34.38 The Minister must provide a representative body with at least 90 days written notice of withdrawal of its recognition. That notice must state the reasons the Minister is considering withdrawal of recognition and invite the representative body to make submissions to the Minister about whether this should occur. The period for making such submissions is 90 days after the day the notice is dispatched to the body. The Minister is required to consider any submissions made by the representative body in that period. [Subsections 203AH(5) and (6)]

Minister to notify representative body of decision and reasons

34.39 The Minister, as soon as practicable after deciding whether to withdraw the recognition, must notify the body in writing of the decision and, if the decision is to withdraw recognition, the reasons for that decision. [Subsection 203AH(7)]

Withdrawal of recognition does not affect obligation to perform certain functions

34.40 A body that has had its recognition as a representative body withdrawn will have to complete certain obligations relating to its representative body operations after its recognition is withdrawn. These ongoing obligations consists of annual reporting obligations and audits and investigations of the body [Schedule 3, item 30, sections 203DE and 203DH]. Also, a representative body may be subject to directions concerning the transfer of documents [section 203FC].

Amendments to section 203AI

34.41 The Bill makes technical amendments to section 203 to apply from the end of the transition period [Schedule 3, items 26, 27, 28 and 29]. Section 203AI deals with matters the Minister must consider in making a decision under Division 2. During the transition period, Division 2 will only deal with the recognition of representative bodies, and it is only at the end of that period that the other provisions in Division 2, which relate to extension of representative body areas, variation of adjoining areas, reduction of areas and withdrawal of recognition, will take effect.

34.42 The amendments ensure that when making decisions under Division 2 after the end of the transition period, the Commonwealth Minister is able to take account of the representative body’s actual performance, and is not limited to forming an opinion about the representative body’s prospective performance. [Schedule 3, items 26, 27 and 28]

34.43 The Bill repeals a note after section 203AI that is no longer required once Part 2 of Schedule 3 commences. The note explained that further provisions would be inserted by Part 2 of Schedule 3. [Schedule 3, item 29]

New Divisions 3, 4 , 4 and 6 - the new regime for representative bodies

34.44 The Bill inserts new Division 3 (which sets out the functions and powers of representative bodies under the new regime), new Division 4 (relating to representative body financial obligations and related matters), new Division 5 (providing for representative body accountability obligations and related matters) and new Division 6 (providing for the conduct of directors and executive officers of representative bodies). These Divisions deal with the day to day performance of representative bodies and the processes that will be used to monitor their performance. [Schedule 3, item 30]

New Division 3 - Functions and powers of representative bodies

Functions of representative bodies

34.45 New section 203B provides an overview of the functions to be performed by representative bodies recognised under the new regime. Subsection 203B(1) sets out the various functions of representative bodies and indicates the sections where those functions are described. [Schedule 3, item 30, section 203B]

Functions under Division 3 are additional to other functions

34.46 The functions conferred on a representative body by the Native Title Act are in addition to, and not instead of, any functions conferred on the body (whether in its capacity as a representative body or otherwise) by or under any other law of the Commonwealth or a law of a State or Territory [subsection 203B(2)]. As representative bodies will be existing bodies that may have other functions, this provision is intended to clarify that recognition of such a body as a representative body does not affect those other functions. Representative bodies could also perform representative body functions conferred by State or Territory native title legislation complementary to the Native Title Act.

Representative body to perform functions and set priorities

34.47 A representative body must perform its functions itself except in cases where it is permitted or required to enter into arrangements with another person [subsection 203B(3)]. Such arrangements may occur under section 203BB, section 203BD or section 203BK. The Senate made 1997 Opposition amendment (322) which is included in the Bill. This amendment adds a subsection to section 203B to make express that a representative body must determine priorities for the exercise of its functions and allocate resources so as to perform its functions efficiently, but must give priority to protection of the interests of native title holders.

How functions of representative bodies are to be performed

34.48 Section 203BA deals with the manner in which representative body functions are to be performed. [Schedule 3, item 30, section 203BA]

Representative body to act in a timely manner

34.49 A representative body must use its best efforts to perform its functions in a timely manner, particularly in relation to time limits under this Act or time limits under another Commonwealth law or a law of a State or Territory relevant to the performance of its functions [subsection 203BA(1)]. This is intended to ensure that representative bodies act in the interests of their constituents by assisting them to meet statutory deadlines (such as those related to the right to negotiate or in any legal proceedings) and, by doing so, also contribute to the streamlining of native title processes.

Representative body to maintain organisational structures and processes

34.50 A representative body must maintain organisational structures and administrative processes that assist it to represent satisfactorily the native title holders and persons who may hold native title in its area and consult effectively with the Aboriginal peoples and Torres Strait Islanders living in its area [paragraphs 203BA(2)(a) and (b)]. Without limiting the matters relevant to paragraphs (a) and (b), a representative body must also ensure that these structures and processes operate in a fair manner, having regard to the matters set out in subsection 203AI(2) [paragraph 203BA(2)(c)].

34.51 These requirements reflect the matters relating to representative bodies’ structure and process that the Commonwealth Minister is required to take into account in deciding whether to recognise a body as a representative body, adjust its area or withdraw its recognition. By making a link to the recognition criteria, this provision seeks to achieve continuing operation of a representative body in a manner that achieves fair outcomes for its constituents. This requirement is particularly important because there will be only one representative body for an area under the new regime.

Facilitation and assistance functions

34.52 A representative body's facilitation and assistance functions will cover a range of matters related to native title and to a large degree, are defined by reference to procedures or matters arising under the NTA in relation to which native title clients may seek representative body assistance. [Schedule 3, item 30, section 203BB]

What are the facilitation and assistance functions?

• to research and prepare native title applications, and to facilitate research into, preparation of and making of native title applications (this term is defined in section 201A);

• to assist registered native title bodies corporate, native title holders and persons who may hold native title (including by representing them or facilitating their representation) in consultations, mediations, negotiations and proceedings relating to native title applications, future acts, indigenous land use agreements or any other matter relating to native title or the operation of this Act. [Subsection 203BB(1)]

Functions may only be exercised on request

34.54 A representative body must not perform its facilitation and assistance functions in relation to a particular matter unless it is requested to do so by the Aboriginal or Torres Strait Islander person(s) requiring the assistance [subsection 203BB(2)]. Thus, indigenous persons will not be required to utilise the services of a representative body when taking action related to native title. However, there will be significant advantages in using representative bodies because of those bodies' expertise in native title matters and because those bodies will be the primary source of funding for the provision of such assistance to indigenous persons. A further incentive to use representative bodies will flow from the requirements in the new regime for improved accountability of representative bodies to their constituents.

Functions only exercisable within a representative body’s area

34.55 A representative body's facilitation and assistance functions are only exercisable within its representative body area [subsection 203BB(3)]. However, it is possible that a particular native title matter might relate to land or waters that overlap representative body boundaries. A representative body can perform its facilitation and assistance functions in relation the land or waters outside of its area only if to do so would be in accordance with a written arrangement with the adjacent representative body [Schedule 3, item 30, section 203BD].

Dealing with possible conflicts of interest

34.56 Possible conflict of interest situations may arise, where two or more persons bringing separate actions in relation to the same land or waters might ask a representative body to represent them. A representative body must obtain the consent of the relevant persons to it representing the other persons in relation to each of the matters [subsection 203BB(4)]. However, a representative body is not prevented by subsection 203BB(4) from ‘briefing out’ representation in relation to such matters to another person (such as a legal firm) [subsection 203BB(5)]. In such situations, the representative body would fund such a person to carry out the assistance in relation to a particular matter and would not be directly involved in proceedings related to that matter.

34.57 Subsections (4) and (5) are intended to avoid the potential for conflict of interest situations arising where a representative body might represent persons taking competing native title actions. However, such situations should be reduced by other provisions which encourage the minimisation of the number of claims over the same land or waters. These provisions include the requirement that a representative body attempt to resolve disputes between its constituents about native title matters (under section 203BF); the requirement in paragraph 203BC(2)(b) that a representative body attempt to minimise the number of native title applications over the same land and waters; and the certification of applications for determinations of native title for the purposes of paragraph 190C(5)(c) of the new registration test (inserted by Schedule 2 of this Amendment Bill).

Definition of matter

34.58 The term matter, for the purposes of section 203BB, means a native title application, or a consultation, mediation, negotiation or proceeding of a kind referred to in paragraph 203BB(1)(b) [subsection 203BB(6)]. This term is used to simplify the language both in this section and section 203BC.

How facilitation and assistance functions are to be performed

34.59 Section 203BC explains how the representative body’s facilitation and assistance functions are to be carried out. [Schedule 3, item 30, section 203BC]

Native title clients must be consulted

34.60 A representative body, in performing its facilitation and assistance functions in relation to any matter, must consult with, and have regard to the interests of, any registered native title bodies corporate, native title holders or persons who may hold native title who are affected by the matter. [Paragraph 203BC(1)(a)]

Consent necessary when representing registered native title bodies corporate

34.61 If the matter involves the representation of such bodies corporate, native title holders or persons, a representative body must ensure that they understand and consent to any action that the representative body takes on their behalf [paragraph 203BC(1)(b)]. A process must be followed in obtaining such consent from a native title holder or a person who may hold native title for the purposes of paragraph 203BC(1)(b) [subsection 203BC(2)]. If there is a process of decision making under the traditional laws and customs of the group to which the relevant person or persons belong, consent must be given in accordance with that process [paragraph 203BC(2)(a)]. However, if there is no such process, paragraph 203BC(2)(b) requires consent to be given in accordance with a process of decision making agreed to and adopted by the members of the group to which he or she belongs in relation to the giving of such consent.

Consultation and consent provisions based on Land Rights Act

34.62 The provisions in subsections 203BC(1) and (2) are based on requirements for Aboriginal Land Councils under the Aboriginal Land Rights (Northern Territory) Act 1976, and are intended to ensure that representative bodies obtain the ‘informed consent’ of their constituents before they act on their behalf. This will assist in providing greater accountability to a body's constituents and greater certainty about the results of a representative body's activities to the other parties (such as governments, industry or developers) that may be involved in native title matters.

Streamlining native title applications

34.63 A representative body must do certain things in the performance of its facilitation and assistance functions which assist the streamlining of certain native title applications [subsection 203BC(3)]. The body must act in a way that promotes an orderly, efficient and cost-effective process for the making of applications [paragraph 203BC(3)(a)]. Where there are, or are potentially, different native title applications covering the same land or waters, a representative body must make all reasonable efforts to minimise the number of such applications [paragraph 203BC(3)(b)].

Matters that overlap different representative body areas

34.64 The performance of representative body facilitation and assistance functions where a native title matter overlaps different representative body areas has been rationalised [Schedule 3, item 30, section 203BD]. Practical problems might result if such matters are handled by more than one representative body. The section enables adjacent representative bodies to enter into written arrangements to enable one of the bodies to perform its facilitation and assistance functions in relation to land or waters outside of its representative body area where that land or waters is part of a native title application, an indigenous land use agreement, a future act action or any other matter related to native title or the operation of this Act which overlaps its representative body boundaries. This section qualifies subsection 203BB(3), which provides that a representative body may only exercise its facilitation and assistance functions within its representative body area.

Certification functions of representative bodies

34.65 There are certain requirements which must be followed by representative bodies in certifying applications for determination of native title, and certification of applications for registration of an indigenous land use agreement [Schedule 3, item 30, section 203BE]. This section replaces the certification provisions in repealed section 202.

Conditions for certifying applications for determinations of native title

34.66 The function of certifying applications for determinations of native title for the purposes of the new registration test is also set out [subsection 203BE(2)].A representative body must not certify such an application unless it is of the opinion that the applicant has the authority to do so, and deal with matters arising in relation to the application, on behalf of all the other persons in the group making the claim [paragraph 203BE(2)(a)]. The process by which a person making an application is taken to have such authority is provided in new section 251B. A representative body must not certify an application unless it is also of the opinion that all reasonable efforts have been made to ensure that the application describes or otherwise identifies all the other persons in the native title claim group [paragraph 203BE(2)(b)].

Representative body to minimise number of applications over same area

34.67 In considering the certification of applications for the determination of native title, a representative body must make all reasonable efforts to deal with overlapping claims [subsection 203BE(3)]. The representative body must attempt to achieve agreement between the applicants or proposed applicants [paragraph 203BE(3)(a)] and to minimise the number of applications [paragraph 203BE(3)(b)]. A failure by the representative body to comply with this provision will not affect the validity of any certification.

Statement about reasons and actions to be included in certification

34.68 A representative body must include in its certification of an application for a determination of native title a statement that it considers the certification requirements in subsection 203BE(2) have been met, and why it is of that opinion [paragraphs 203BE(4)(a) and (b)]. A representative body is required, where applicable, to set out briefly what it has done to attempt to minimise the number of overlapping applications as required under subsection 203BE(3) [paragraph 203BE(4)(c)].

Certifying applications for registration of indigenous land use agreements

34.69 A representative body must not certify an indigenous land use agreement unless it is of the opinion that all persons holding native title in relation to the area covered by the agreement have been identified, and the agreement is made with the authority of all of the persons so identified [subsection 203BE(5)]. The process by which authority to make an indigenous land use agreement is taken to be given is provided for in new section 251A.

Statement about reasons to be included in certification

34.70 A representative body must include in its certification of an indigenous land use agreement a statement that it considers the certification requirements in subsection 203BE(5) have been met, and why it is of that opinion. [Subsection 203BE(6)]

Dispute resolution functions of representative bodies

34.71 Representative bodies have dispute resolution functions. [Schedule 3, item 30, section 203BF]

What are the dispute resolution functions of a representative body?

34.72 The dispute resolution functions are an important element in ensuring representative bodies’ accountability to their constituents, streamlining native title processes and improving certainty for parties involved in native title matters. A representative body may assist to promote agreement among its constituents about the making of native title applications and the conduct of consultations, mediations, negotiations or proceedings about future acts or any other matter related to native title or the operation of the Act [paragraph 203BF(1)(a)]. A representative body has the function of mediating between its constituents about the making of such applications or the conduct of such consultations, mediations, negotiations or proceedings [paragraph 203BF(1)(b)]. As a result of 1997 Government amendments (78) and (79) a representative body can be assisted by the NNTT when performing this function.

What is a constituent of a representative body?

• a registered native title body corporate in relation to native title in the representative body's area; or

• a person who may hold native title in that area. [Subsection 203BF(2)]

Notification functions of representative bodies

34.74 The notification functions of a representative body apply to matters affecting land or waters wholly or partly within a representative body’s area [Schedule 3, item 30, section 203BG]. This function is intended to assist in streamlining and improving the certainty of native title processes by ensuring that affected or potentially affected native title holders or persons who may hold native title are informed of actions related to native title and are able to respond within the relevant time limits. The note at the end of this section is a reminder that a representative body has an obligation under subsection 203BA(1) to make its best efforts to perform its functions in a timely manner, particular in respect of matters affected by time limits.

Notices to be brought to the attention of native title clients

34.75 A representative body must ensure that notices which it is given that relate to the area for which the representative body is responsible are brought to the attention of any person who holds or may hold native title about whom the representative body knows, but would otherwise not be given such notices [paragraph 203BG(a)]. This provision is intended to cover the range of notices relating to future acts, non-claimant applications, applications for the registration of indigenous land use agreements, and applications for approved determinations of native title. It includes notices which might be issued under other Commonwealth, State or Territory legislation. The Senate made 1998 Government amendment (79) to paragraph 203BG(a), which is included in the Bill. The amendment makes clear that the representative body must, as far as reasonably practicable, bring notices to the attention of persons who the representative body is aware holds or may hold native title in the area affected by the notice. The notice need only be given to persons who the representative body considers might not otherwise become aware of such notices. Therefore, if a registered native title claimant is directly notified, the representative body is not required to notify the members of the native title claim group. The purpose of the amendment is to ensure that persons who need to know about a notice will do so, without imposing an excessive burden on the resources of representative bodies to carry out duplicative notification.

Identifying persons who should be made aware of notices

34.76 A representative body, as far as is reasonably practicable, must identify and notify other persons who hold or may hold native title in relation to the relevant land or waters about the notices mentioned in paragraph 203BG(a) [paragraph 203BG(b)]. A representative body, as far as is reasonably practicable, must advise the persons referred to in paragraphs 203BG(a) and (b) of the relevant time limits under this Act or another law of the Commonwealth or a law of a State or a Territory, where that person would not otherwise be notified of those time limits [paragraph 203BG(c)]. The Senate made 1998 Government amendment (80), which is included in the Bill. This amendment inserts an additional note at the end of section 203BG in the Bill to explain that the Act also imposes notification obligations on persons other than representative bodies. Those obligations would not be affected by a representative body’s obligations to give notice.

Agreement making functions of representative bodies

34.77 A representative body has the capacity to become a party to an indigenous land use agreement under the new indigenous land use agreement provisions. [Schedule 3, item 30, section 203BH]

Representative body may be a party to indigenous land use agreements

34.78 Representative bodies have the function of being parties to indigenous land use agreements [subsection 203BH(1)].

Representative body to consult before making agreement

34.79 As far as practicable, a representative body must consult with, and take account of the interests of, the persons who hold or may hold native title in relation to the area. [Subsection 203BH(2)]

Agreement making function distinct from facilitation and assistance functions

34.80 The agreement making function is distinct from a representative body’s possible role in assisting native title negotiate an indigenous land use agreement in accordance with its facilitation and assistance functions in subparagraph 203BB(1)(b)(iii). However, it would be possible for a representative body to perform its facilitation and assistance functions in relation to an indigenous land use agreement and be a party to that agreement, provided that the requirements of both the facilitation and assistance function and the agreement making function are met.

Internal review functions of representative bodies

34.81 A representative body must provide, and publicise appropriately, a process for registered bodies corporate, native title holders and persons who hold or may hold native title to seek review by the representative body of its decisions or actions that affect them. This internal review process is intended to improve the accountability of a representative body to its constituents and to assist in resolving disagreements at an early stage [Schedule 3, item 30, section 203BI]. A person applying for the external review of a representative body's decision must have made all reasonable efforts to seek an internal review by the representative body (see subsection 203FB(4)).

Other functions of representative bodies

34.82 Section 203BJ sets out several functions which must be performed by a representative body, in addition to the other functions conferred by Division 3. [Schedule 3, item 30, section 203BJ]

Agreement with other representative bodies about matters of overlapping boundaries

34.83 A representative body, as far as is reasonably practicable, must enter into written arrangements under section 203BD with other representative bodies so the representative body can exercise its facilitation and assistance functions in relation to native title matters which overlap representative body boundaries. [Paragraph 203BJ(a)]

Identifying persons who may hold native title in the area

34.84 As far as is reasonably practicable, a representative body must identify persons who may hold native title in the area for which it is the representative body. [Paragraph 203BJ(b)]

Promoting understanding about the operation of the Native Title Act

34.85 A representative body, as far as is reasonably practicable, must take such action as the body considers appropriate to promote understanding among indigenous people living in its area about matters relevant to the operation of the Act. [Paragraph 203BJ(c)]

Informing native title clients of relevant matters affecting native title

34.86 A representative body must, as far as is reasonably practicable, inform registered native title bodies corporate, native title holders and persons who may hold native title, of any matter which relates to, or may impact on, native title in its area. [Paragraph 203BJ(d)]

Consulting potentially affected indigenous communities

34.87 Whenever it considers it necessary in the performance of its functions, a representative body must consult with Aboriginal or Torres Strait Islander communities that might be affected by the matters with which the body is dealing [paragraph 203BJ(e)]. This provision is intended to ensure that a representative body is aware of the circumstances and views of indigenous communities who might not be the native title holders or native title claimants in relation to a particular matter but who may be affected by the outcome of that matter.

Co-operating with other representative bodies

34.88 As far as is reasonably practicable, a representative body must co-operate with other representative bodies for the purpose of promoting the effective and efficient exercise of the functions and powers of representative bodies. [Paragraph 203BJ(f)]

Powers of representative bodies

34.89 A representative body has the power to do all things necessary or convenient to be done for or in connection with the performance of its functions as a representative body. [Schedule 3, item 30, subsection 203BK(1)]

Power to make contracts and arrangements

34.90 Without limiting those powers, a representative body is able to enter into arrangements and contracts to obtain services to assist it in the performance of its functions [subsection 203BK(2)]. For example, it would be able to contract anthropological and historical experts to research the evidence related to an application for determination of native title. The Senate made 1997 Government amendment (79) which is included in the Bill. This amendment, which is linked to 1997 Government amendment (78), allows the NNTT to assist a representative body in its dispute resolution functions if there is an agreement between the body and the NNTT under which the body pays the NNTT for its assistance.

New Division 4 - Finance

Grants to representative bodies

34.91 Section 203C deals with the funding of representative bodies by way of ATSIC grants. This grants process will be the primary method through which the Commonwealth funds assistance in relation to native title matters for persons who hold or may hold native title. [Schedule 3, item 30, section 203C]

Representative body applies for grant of money

34.92 A representative body may apply to ATSIC for a grant of money to enable it to perform its functions or exercise its powers. [Subsection 203C(1)]

ATSIC grant may be for whole or part of financial year

34.93 ATSIC may grant funding to a representative body for the whole, or part of, a financial year. The grant is to be made out of money appropriated to ATSIC for this purpose. [Subsection 203C(2)] The Senate made 1997 Government amendment (80) which is included in the Bill. This amendment which is linked to 1997 Government amendment (81) (also made by the Senate and included in the Bill) removes the requirement that grants be made in respect of a financial year, or part of a financial year. Under Government amendment (81), grants may be able to be made for a period of up to 3 years.

Grant conditions

34.94 ATSIC is able to impose conditions on grants given to representative bodies under section 203C [Schedule 3, item 30, section 203CA]. The conditions will provide a framework under which representative bodies are accountable to ATSIC on a day-to-day basis for the performance of their functions and expenditure of ATSIC grant moneys related to those functions. The grant conditions will enable ATSIC to monitor a representative body’s performance and assist a representative body to take remedial action should problems emerge.

ATSIC may impose conditions and must impose certain conditions

34.95 ATSIC is able to impose grant conditions as it think fits, and it is also required to impose certain specified conditions which are based on conditions which ATSIC currently imposes on grants under the ATSIC Act. These mandatory conditions concern:

34.96 The conditions must include, in situations where expenditure of grant money has been contrary to grant conditions, the capacity for ATSIC to appoint a ‘grant controller’ to a representative body to ensure that future expenditure of grant money complies with the conditions. The grant conditions must also require a representative body’s continuing satisfactory performance of its functions, continuing compliance with the Act and the giving of information in relation to these matters. [Subsection 203CA(1)] The Senate made 1997 Government amendment (82) which is included in the Bill. This amendment inserts subsections 203CA(1A) and (1B) making it clear that funding given to representative bodies is to be subject to a condition that if a representative body loses its recognition under section 203AH, the representative body must return any uncommitted funding to ATSIC.

Grant conditions must be consistent with strategic plan

34.97 ATSIC is required to have regard to the matters in a representative body’s strategic plan approved by the Minister under section 203D [subsection 203CA(2)]. The conditions which ATSIC imposes must be consistent with the strategic plan. This requirement provides a link between the strategic plan and the grant conditions. ATSIC monitors the compliance of representative bodies with the grant conditions so that linking those conditions to the strategic plan means that ATSIC also monitors the attainment of the plan’s objectives.

Representative body must comply with grant conditions

34.98 The representative body must comply with the conditions of the grant. [Subsection 203CA(3)]

ATSIC Act provisions to apply to grants to representative bodies

34.99 Sections 20, 21, 21A and 22 of the ATSIC Act, which cover grants by ATSIC, will apply to grants to representative bodies under Division 3 [subsection 203CA(4)]. The regulatory measures which ATSIC will be able to use include the ability to recover grant moneys where grant conditions are breached, the investigation of matters related to a grant and the appointment of a grants controller to supervise expenditure of grant moneys. In addition, ATSIC may also request the Office of Evaluation and Audit established under the ATSIC Act to evaluate and audit the operations of a body that has received a grant from ATSIC.

ATSIC to advise Minister of serious or repeated breaches of grant conditions

34.100 ATSIC must inform the Minister in writing if it considers that a representative body has committed, and is continuing to commit, serious or repeated breaches of conditions of a grant under this Division. When so notifying the Minister, ATSIC must also state what measures it is taking, or proposes to take, as a result of the breaches [subsection 203CA(5)]. This provision ensures that the Minister is kept informed of any significant problems that may occur in relation to representative bodies' performance of their functions as well as in relation to grant expenditure, since under subsection 203CA(1), ATSIC must impose conditions related to a representative body's satisfactory performance of its functions and compliance with the Act. This obligation to advise the Minister of breaches is supplemented by ATSIC’s obligation under new section 203F in Division 7 to inform the Commonwealth Minister if ATSIC is of the opinion there are particular problems with a representative body’s performance or financial affairs.

Banking and investment

34.101 The banking of grant money received by a representative body from ATSIC under sections 203C and 203CC is provided for [Schedule 3, item 30, section 203CB]. This provision is derived from the Commonwealth Authorities and Companies Bill 1996 and is adopted here to ensure consistent standards of financial administration are applied to bodies operating under Commonwealth legislation.

Grant money to be paid into bank account

34.102 A representative body must pay all money received by it under a grant from ATSIC under Division 4 into an account maintained by it with a bank. [Subsection 203CB(1)]

Surplus money to be invested

34.103 A representative body must invest surplus money on deposit with a bank; or in securities of the Commonwealth or of a State or Territory; or in securities guaranteed by the Commonwealth, a State or a Territory; or in any other manner approved by the Treasurer [subsection 203CB(2)]. This is a standard provision imposed where Commonwealth monies are being held for a period before disbursement.

34.104 There is a possibility that there may be provisions in the law by or under which a representative body is incorporated restricting the body from entering into contracts involving expenditure or payment of more than a specified amount of money without a specified person's approval. Such approval is needed to invest Commonwealth moneys granted under this Act only if it is expressly applicable to money so granted, or if the body is an exempt State body (that is, a State statutory body) [subsection 203CB(3)]. It is not appropriate to disapply such a requirement when it relates to an exempt State body. The Senate made 1997 Government amendment (83) which is included in the Bill. This amendment to the definition of ‘bank’ in section 203CB ensures that the definition used in the NTA corresponds to the definition of that term in other Commonwealth legislation, which allow a credit union to be regarded as a bank. This amendment implements a recommendation of the Majority Report of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund on the Bill.

New Division 5 - Accountability

Strategic Plan

What is the purpose of the strategic plan?

34.105 A strategic plan is to be prepared by each representative body [Schedule 3, item 30, section 203D]. These plans are to be the key means for the Commonwealth Minister to supervise the overall management of the representative body program and to ensure that the representative bodies remain focussed on achieving the overall purpose of the representative body regime. In brief, that purpose is the provision of a nationally consistent standard of services in relation to native title matters in a timely, efficient, co-ordinated, responsible and accountable way to native title holders and indigenous communities affected by native title issues. As explained in paragraph 34.96, the grant conditions imposed by ATSIC must be consistent with the strategic plan for the representative body concerned.

Strategic plan to cover a three year period

34.106 The required strategic plan must cover a period determined in writing by the Minister, and the minimum period which can be determined is three years. [Subsection 203D(1)]

Matters to be included in strategic plan

34.107 While not limiting the contents of the plan, a strategic plan must include:

• a general statement of the objectives of the body in relation to its representative body activities; and

• a general statement of the strategies and policies it proposes to adopt to achieve those objectives. [Subsection 203D(2)]

The general nature of the matters to be covered reflects the fact that each plan has effect for at least three years, and it would be unrealistic to prepare highly detailed or specific strategic plans for this length of time, particularly in light of the relative novelty of many native title issues with which representative bodies will be faced.

Strategies and policies to achieve objectives

34.108 The statement about strategies and policies must cover consultations with indigenous people about matters relevant to the operation of the Native Title Act; procedures for making decisions and for providing the internal review process under section 203BI(a); and the setting of priorities by the body in relation to its representative body activities. These requirements are intended to enhance a representative body's accountability to its constituents by ensuring that it establishes clear and transparent objectives and procedures.

Strategic plan to be prepared in consultation with ATSIC

34.109 A representative body must consult with ATSIC when it is preparing its strategic plan under subsection 203D(3). The purpose of this requirement is to enable ATSIC to monitor the quality and content of strategic plans and facilitate their development in a coherent manner.

Revision of strategic plan

34.110 A representative body is able to revise a strategic plan during the period to which it relates [subsection 203D(4)]. Revisions may be needed, for example, to take account of changes to the boundaries of a representative body, or to reflect new priorities following developments in native title law.

Strategic plan to be given to Minister for approval

34.111 A representative body must give a strategic plan or revised strategic plan to the Commonwealth Minister as soon as practicable after it is prepared or revised [subsection 203D(5)]. These provisions are intended to assist the Minister and ATSIC in monitoring the performance of a representative body.

Minister to be informed of significant matters

34.112 A representative body must tell the Commonwealth Minister about matters which might have a significant impact on the achievement of the objectives in the strategic plan [subsection 203D(6)]. This requirement is important given the Minister’s overall guidance role through the strategic plans.

Copies of strategic plan to be made available

34.113 A representative body must make copies of its strategic plan generally available to its constituents [subsection 203D(7)]. This requirement will enhance its accountability to its constituents by ensuring that they are informed of policies, strategies and procedures relevant to matters that might affect them.

Accounting records

34.114 The accounting records are derived from the Commonwealth Authorities and Companies Bill 1996 and the obligations are intended to facilitate the accountability of a representative body. [Schedule 3, item 30, section 203DA]

How proper accounts and records are to be kept

34.115 There are certain ways in which a representative body must keep its accounting records relating to the performance of its functions or the exercise of its powers as a representative body. [Subsection 203DA(1)]

• it must keep those records in such a way that enables the preparation of the financial statements required under the Division [paragraph 203DA(1)(a)]; and

• records must be kept in such a way that allows those financial statements to be conveniently and properly audited in accordance with this Division [paragraph 203DA(b)]. This subsection is intended to facilitate the examination of a representative body's accounting records and the auditing of its financial statements.

Accounting records are to be separate from others

34.116 A representative body must keep its representative body accounting records separate from any other accounts and records kept by the body [subsection 203DA(2)]. In order to ensure the proper operation of the provisions relating to the representative body finances in Division 4, representative body accountability in Division 5, and the appointment of a Financial Administrator under Division 7, it is important that the accounts and records related to representative body functions can be distinguished from the accounts and records related to any of the body's other functions.

Retention of accounting records

34.117 A representative body must retain its representative body accounts and records for at least 7 years after completion of the transactions to which they relate. [Subsection 203DA(3)]

Records to be made available

34.118 The representative body must make those records available at all reasonable times for inspection by any director of the body. [Subsection 203DA(4)]

Payments to be properly made etc.

34.119 A representative body must ensure that payments out of its moneys are correctly made and properly authorised. Adequate control must be maintained over payments the assets of, or in the custody of, the body and over the incurring of liabilities by the body, to the extent that the assets or liabilities relate to the performance of its functions or the exercise of its powers as a representative body. [Schedule 3, item 30, section 203DB]

Annual reports by representative body

Annual report to be prepared for each financial year

34.120 Representative bodies must prepare annual reports [Schedule 3, item 30, section 203DC]. Subsections 203DC(1) and (2) are derived from the Commonwealth Authorities and Companies Bill 1996. The provisions for the preparation and auditing of financial statements in subsections 203DC(4) and (5) are based on requirements for Aboriginal Land Councils' annual reports and financial statements under the Aboriginal Land Rights (Northern Territory) Act 1976. A representative body must prepare a report of its operations during each financial year, and present it, together with financial statements for that year, by 15 October in the next financial year [paragraphs 203DC(1)(a) and (b)]. The Senate made 1997 Opposition amendment 341 which is included in the Bill. This amendment to subsection 203DC(1) provides that the report and financial statements are to be given to ATSIC, rather than to the Minister as previously proposed.

Extensions of the deadline

34.121 An extension of time for the submission of such annual reports and financial statements in special circumstances may be granted. [Subsection 203DC(2)] The Senate made 1997 Opposition amendment 342 which is included in the Bill. This amendment gives ATSIC, rather than the Commonwealth Minister, the ability to grant such extensions.

34.122 The annual report and financial statements are to relate only to a representative body's performance of its functions or exercise of its powers as a representative body [subsection 203DC(3)]. The separation of these reports from the annual reports and financial statements related to other functions and activities of a representative body is necessary for clear monitoring by ATSIC and the Minister of its performance of its functions and management of its finances as a representative body.

34.123 It should be noted that section 203FF permits a representative body to include a report under Division 5, such as the annual report and financial statements required by section 203DC, as part of another annual report it must submit under other Commonwealth or State or Territory laws. However, the part of the document which contains the report under Division 5 must be clearly identified, and if it consists of the annual report under section 203DC, it must only concern representative body activities.

Form of financial statements

34.124 A representative body's financial statements must be in such form as the Commonwealth Minister approves in writing and must be accompanied by a copy of the auditor's report on those statements prepared in accordance with subsection 203DC(5). [Subsection 203DC(4)]

Audit of financial statements

34.125 The financial statements must be audited by a person having the prescribed qualification and appointed by the body for that purpose. That auditor must report to the body on whether the statements are based on proper accounts and records and are in agreement with the body's accounts and records. The auditor must also report on whether the receipt, expenditure and investment of money, and the acquisition and disposal of assets, by the body during the year have been in accordance with the Act and any grant conditions imposed by ATSIC under subsection 203CA(1), and on such other matters arising out of the statements as he or she considers should be reported to the body. [Subsection 203DC(5)]

Annual report to be tabled in Parliament

34.126 A copy of the annual report and financial statements of a representative body must be tabled in each House of the Parliament by the Commonwealth Minister within 15 sitting days of each House after the day on which the Minister receives the report and financial statements. [Subsection 203DC(6)] The Senate made 1997 Opposition amendment (344) which is included in the Bill. This amendment provides that ATSIC must give a copy of the annual report to the Commonwealth Minister (who must then table it within 15 sitting days).

Modified annual report requirements for first year of recognition

34.127 The requirements for preparing an annual report or financial statement by a representative body in relation to its first year are modified if it is recognised as a representative body part of the way through a financial year [Schedule 3, item 30, section 203DD]. The section is derived from an equivalent provision in the Commonwealth Authorities and Companies Bill 1996.

No report applied if recognition takes effect in last quarter of financial year

34.128 A representative body is not required to prepare an annual report and financial statements for a financial year if its recognition as a representative body takes effect during the last 3 months of that financial year. However, it must deal with that period from the time of recognition until the end of financial year in its annual report and financial statements for the next financial year. [Subsection 203DD(1)]

Report required for part of financial year when recognition effective

34.129 If the recognition of a representative body takes effect during the first 9 months of a financial year, it must prepare an annual report and financial statements for that financial year to cover the period from its recognition to the end of the financial year [subsection 203DD(2)]. This requirement is subject to section 203DD, which relates to annual report and financial statements requirements for bodies which have had their recognition as a representative body withdrawn.

Modified requirements for bodies whose recognition is withdrawn

34.130 Where a representative body has had its recognition withdrawn by the Commonwealth Minister under section 203AH, it must prepare an annual report and financial statements to cover the period from the beginning of the financial year to the time at which the withdrawal of recognition takes effect [Schedule 3, item 30, section 203DE]. This will ensure that the body complete its accountability obligations in relation to its representative body functions and assist in alerting ATSIC and the Minister to outstanding matters that may need attention.

Inspection and audit or investigation of a representative body

34.131 The Commonwealth Minister can appoint an auditor or investigator to inspect and audit or investigate a representative body (but only in relation to either its financial affairs or the performance of its functions) in cases where the Minister is of the opinion there is or may be serious or repeated irregularities (see 32.133) [Schedule 3, item 30, section 203DF]. The power might, for example, be used where ATSIC has given the Commonwealth Minister a notice under subsection 203CA(5) or section 203F. It is not anticipated that the power would be used as a regular part of performance monitoring for representative bodies.

Power to appoint auditor or investigator

34.132 The Commonwealth Minister has the power to appoint a person with appropriate expertise to:

• inspect and audit the accounts and records kept by a representative body under section 203DA; or

• investigate the body's performance of its functions or exercise of its powers as a representative body. [Subsection 203DF(1)]

Power is in addition to audit provisions under the ATSIC Act

34.133 The power under this section to appoint an auditor or investigator is in addition to the audit provisions in Division 9 of Part 2 of the ATSIC Act [note to subsection 203DF(1)]. Under that Division, the Office of Evaluation and Audit in ATSIC can evaluate and audit bodies in receipt of grants from ATSIC.

When can an auditor or investigator be appointed?

34.134 As noted above, the power to appoint an auditor or investigator is limited. It can only be used in circumstances when the Commonwealth Minister has formed the opinion that there are, or may be, serious or repeated financial irregularities, or that there is, or may be, a serious or repeated failure by the representative body to perform its functions. [Subsection 203DF(2)]

Notice of audit or inspection to include name of auditor or inspector

34.135 The Minister must give written notice to the relevant representative body that an audit or investigation under this section is to be conducted and to include in that notice the name of the person who is to carry it out. [Subsection 203DF(3)]

Report on audit or investigation

34.136 The auditor or investigator must give the Commonwealth Minister a report containing the results of the investigation or audit [subsection 203DF(4)]. These reports can be used by the Minister when making decisions to reduce its area under section 203AG or to withdraw a representative body’s recognition under section 203AH.

Report to disclose financial irregularities or failure to perform

34.137 The report must draw attention to any financial irregularities or any failure by the representative body to perform its functions that the investigation or audit brings to light. [Subsection 203DF(5)]

34.138 The Senate made 1997 Government amendment (84) which is included in the Bill. This amendment adds subsections 203DF(6) and (7) which restrict the use that can be made by the auditor or investigator of documents or information subject to legal professional privilege. Any such document or information cannot be included in a report. The restriction will only apply to documents or information where legal privilege had been claimed before or when the documents or information were disclosed to the auditor or investigator. In order to ensure that the documents or information are not disclosed improperly to other persons, auditors and investigators are regarded as Commonwealth officers for the purposes of certain secrecy provisions under the Crimes Act 1914.

Auditor or investigator’s access to information

34.139 An auditor or investigator appointed under section 203DF will have similar access to information held by representative bodies that an auditor appointed under Division 9 of the ATSIC Act would have when auditing or investigating a body that has received a grant from ATSIC. [Schedule 3, item 30, section 203DG]

34.140 The Senate made 1997 Government amendment (85) which is included in the Bill. This amendment, which replaces section 203DG, makes it clear that although a representative body must allow an auditor or investigator full access to all documents relating to the representative body, whether or not such documents contain legally privileged information, a representative body will still be able to claim that such documents are subject to legal professional privilege. The amendment also incorporates in full the provisions which were previously incorporated by reference only, to assist readers of the provision understand the extent of access allowed to the auditor or investigator.

Audits or investigations may continue after recognition is withdrawn

34.141 An audit or investigation under this section is able to proceed even after the body's recognition is withdrawn under section 203AH [Schedule 3, item 30, section 203DH]. A finalised report may be desirable, for example, where the Minister has made a mandatory withdrawal of recognition of a body on receiving a request from the body under paragraph 203AH(1)(b).

New Division 6 - Conduct of directors and other executive officers

34.142 Division 6 will set and enforce standards for the conduct of the directors and executive officers of representative bodies. It applies to the directors and executive officers of representative bodies most of the conduct provisions in Commonwealth Authorities and Companies Bill 1996, which are modelled on comparable areas of the Corporations Law and best practice (with some modifications to take account of the special circumstances of representative bodies). It is expected that the provisions in the Commonwealth Authorities and Companies Bill 1996 will come into effect before the end of the transition period, when new Division 6 commences. For this reason, the provisions in Division 6 have been drafted as though the provisions in the Commonwealth Authorities and Companies Bill 1996 had been enacted. Should it appear that Division 6 will commence before the provisions in the Commonwealth Authorities and Companies Bill 1996, appropriate provisions replicating the content of the Commonwealth Authorities and Companies Bill 1996 provisions will be substituted.

How does Division 6 apply to a representative body?

34.143 Section 203E explains how Division 6 will apply to a representative body. 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 [Schedule 3, item 30, subsection 203E(1)]. This is intended to clarify that the requirements for the conduct of directors and other executive officers in this Division do not affect any other such requirements imposed on those persons in relation to other functions and activities of the body.

Division 6 does not apply to exempt State bodies unless State law so provides

34.144 This Division does not apply to exempt State bodies (in short, these are statutory bodies established by State legislation), except to the extent that a law of a State provides that it does so apply [subsection 203E(2)]. The term exempt State body is explained in paragraph 34.10 above. The explanation for the non-application of Division 6 is that, for Constitutional reasons, it may not be appropriate to impose conduct requirements under Commonwealth legislation on persons holding office under State legislation.

Application of certain provisions of the Commonwealth Authorities and Companies Act

34.145 The effect of section 203EA is that specified provisions in Division 4 of Part 3 of the Commonwealth Authorities and Companies Bill 1996 and specified provisions in Schedule 2 of that Bill, will apply to senior staff of representative bodies [Schedule 3, item 30, section 203EA]. Essentially, all the provisions in that Division except proposed section 21, and all the provisions in the Schedule except for clauses 8 and 12 of the Schedule, will apply. Proposed section 21 will apply only in the modified way explained in section 203EB.

34.146 Paragraphs 203EA(a) to (d) basically replace the term ‘Commonwealth authority’ with references to ‘representative body’. Paragraph 203EA(e) enables the governing body of a representative body to be treated as though it were the Board of a Commonwealth authority. Paragraph 203EA(f) has the effect of giving the Commonwealth Minister the same role in relation to representative bodies that the Minister for Finance has in relation to Commonwealth authorities.

Application of section 21 of the Commonwealth Authorities and Companies Act

34.147 Section 203EB modifies the application of section 21, and has the effect that a representative body director with a personal interest in a matter must not be present during any meeting of the governing body that is discussing that matter. Further, the director must not be involved in making decisions about that matter. The effect of this section is similar to the disclosure of interest requirements for ATSIC Commissioners and Regional Councillors under the ATSIC Act. [Schedule 3, item 30, section 203EB]

Application of certain provisions of the Commonwealth Authorities and Companies Act

34.148 The obligations imposed under section 203EA are additional to any obligations which a representative body might have in its capacity as a Commonwealth statutory authority [Schedule 3, item 30, section 203EC]. Current representative bodies that are also Commonwealth statutory authorities are the Northern Territory Land Councils and the Torres Strait Regional Authority.

Amendments to Division 7- Miscellaneous

34.149 The Bill inserts new sections 203F, 203FA and 203FB into Division 7. That Division deals with miscellaneous matters. [Schedule 3, item 31]

ATSIC to inform Minister of certain matters

34.150 New section 203F is inserted into Division 7 to ensure that ATSIC is able to keep the Minister informed about any concerns that it may have with aspects of a representative body’s performance or financial administration. ATSIC must give the Commonwealth Minister written notice if it forms the opinion that:

• the body is not satisfactorily representing the native title holders or persons who may hold native title in the area; or

• the body is not consulting effectively with Aboriginal peoples and Torres Strait Islanders living in the area; or

• there may be financial irregularities in the representative body’s administration. [Schedule 3, item 31, section 203F]

34.151 The requirement in section 203F is in addition to the requirement to notify the Minister about serious or repeated breaches of grant conditions, under subsection 203CA(5).

ATSIC to give information about certain matters to Minister

34.152 Section 203FA complements section 203F by enabling the Commonwealth Minister to ask for information about a representative body’s performance or financial affairs whenever he or she has concerns about those matters. This power might be used, for example, if a native title client raises such concerns with the Minister, and would allow him or her to consider relevant information before deciding what action, if any, needs to be taken to resolve or address the concerns about the representative body.

• the body is not satisfactorily representing the native title holders or persons who may hold native title in the area; or

• the body is not consulting effectively with Aboriginal peoples and Torres Strait Islanders living in the area; or

• there may be financial irregularities in the representative body’s administration;

the Minister may request ATSIC to provide him or her with any information ATSIC may have that relates to that matter. [Schedule 3, item 31, section 203FA]

Review of assistance decisions

34.154 An external review process is available for an Aboriginal or Torres Strait Islander person affected by a decision of a representative body not to assist him or her under section 203BB (to do with a representative body’s facilitation and assistance functions) [Schedule 3, item 31, section 203FB]. This is intended to provide an additional safeguard for representative body constituents, should their concerns not be resolved by the matrix of internal measures and obligations relating to a representative body's accountability to its constituents. The Senate made 1998 Government amendment (81), which is included in the Bill. This amendment adds a note after subsection 203FB(1) drawing attention to the fact that an Aboriginal person or Torres Strait Islander affected by a decision of a representative body in the performance of its facilitation and assistance functions may, in addition to seeking review by ATSIC, obtain a statement of reasons and judicial review under the Administrative Decisions (Judicial Review) Act 1977.

Person refused assistance may seek review of refusal decision

34.155 A person whom a representative body has refused to assist may apply to ATSIC for a review of the decision to refuse. [Subsection 203FB(1)]

ATSIC to appoint person with appropriate skills to conduct review

34.156 As soon as practicable after receiving the application, ATSIC must appoint someone to conduct the review who must, in ATSIC’s opinion, have skills or knowledge in relation to matters of substantial relevance to the conduct of the review [subsection 203FB(2)]. For ease of reference, in this description that person is referred to as ‘the reviewer’.

Reviewer to report to ATSIC

34.157 The reviewer must review the decision of the representative body and report to ATSIC whether the decision to refuse assistance should be affirmed, or whether instead ATSIC should grant money so that assistance can be provided to the applicant. [Subsection 203FB(3)]

Internal review mechanisms to be used first

34.158 The reviewer may refuse to review the decision if satisfied that the applicant did not make all reasonable efforts to seek an internal review by the representative body of its decision [subsection 203FB(4)]. This limitation on external review is intended to encourage native title clients to utilise the internal review mechanism which representative bodies are required to provide under paragraph 203BI(a).

When report on review is to be finalised

34.159 The report must be made within 3 months of the day on which the reviewer was appointed, unless ATSIC has given the reviewer an extension. [Subsection 203FB(5)]

Representative body invited to make a submission to reviewer

34.160 The reviewer cannot review the decision until the representative body concerned has been invited to make a submission about its refusal decision. The period for making such a submission must be at least 14 days from the day the invitation is issued. [Subsection 203FB(6)]

ATSIC to take action after receiving reviewer’s report

34.161 ATSIC has one month after receiving the reviewer’s report either to affirm the decision of the representative body to refuse assistance or else make a grant so that assistance can be given to the applicant [subsection 203FB(7)]. ATSIC is empowered to make such a grant under section 203FE, which also deals with the conditions applying to these grants.

Applicant and representative body to be given reasons

34.162 ATSIC must give the applicant and the representative body written notice of its decision in relation to the review, and include its reasons for that decision in the notice. [Subsection 203FB(8)]

Amendment to section 203FC - Transfer of records

34.163 The Bill inserts subsection (2) into section 203FC [Schedule 3, item 32]. That section deals with the transfer of information from an original representative body to its successor body or bodies. The other subsections in that section take effect at the beginning of the transition period; however, subsection (2) is not inserted until the new regime commences at the end of the transition period because it refers to a representative body’s facilitation and assistance functions under the new regime.

34.164 Sensitive information that might have been provided to a representative body by its former clients is protected. The Minister's directions must not permit the original representative body to allow access to, or give to, a successor representative body, documents and records that relate to a particular matter unless the successor body has been requested to provide assistance in relation to that matter by the relevant Aboriginal persons or Torres Strait Islanders [subsection 203FC(2)]. A representative body can only perform its facilitation and assistance functions in relation to a particular matter if it is requested to do so under subsection 203BB(2).

New sections inserted after section 203FD

34.165 The Bill inserts new sections 203FE, 203FF and 203FG after section 203FD. These provisions all take effect at the end of the transition period, and therefore only apply to representative bodies recognised under the new regime. [Schedule 3, item 33]

Grants of assistance by ATSIC

34.166 There are two circumstances where ATSIC can provide funding directly to assist Aboriginal peoples and Torres Strait Islanders in relation to native title matters [Schedule 3, item 33, section 203FE]. These are exceptions to the primary means for channelling assistance to indigenous peoples, which is the representative body system.

Grants by ATSIC when there is no recognised representative body

34.167 Where there is no representative body for an area, and representative body functions need to be performed until there is a representative body for the area, ATSIC may make one or more grants of money to a person or body to enable that person or body to perform, in respect of a specified area for which there is no representative body, all the functions of a representative body or specified functions of a representative body. ATSIC may specify that such grants apply either generally or in relation to one or more specified matters [subsection 203FE(1)]. This means that ATSIC has the flexibility to suit its actions to the particular circumstances. For instance, ATSIC may fund a person or body temporarily to perform all representative body functions for an area, only some of those functions (such as assisting claimants or native title parties involved in urgent proceedings) or to provide assistance in relation to a particular native title claim.

Grants of assistance following review of refusal decision

34.168 ATSIC may make a grant to enable assistance to be provided if ATSIC decides under paragraph 203FB(7)(b) that this should occur, following the external review of a refusal decision by a representative body. ATSIC may make one or more grants to a person or body to enable that person or body to provide the assistance that was refused by the representative body. The assistance provided under this subsection must relate to specific facilitation and assistance functions. [Subsection 203FE(2)]

Grant conditions are similar to those for grants to representative bodies

34.169 Subsection 203FE(3), (6) and (7) set out conditions and other requirements applying to grants under subsections 203FE(1) and (2). These are similar to the conditions and requirement that apply to grants by ATSIC to representative bodies under section 203CA. [Subsections 203FE(3), (6) and (7)]

Grant money to be spent within specified period

34.170 ATSIC must determine the period during which the person or body may spend the grant money; however, ATSIC may extend this period if it considers it appropriate to do so. [Subsections 203FE(4) and (5)]

Financial and accountability requirements imposed by other legislation

34.171 Section 203FF explains the interaction between the obligations on representative bodies imposed by the Native Title Act and those imposed by other legislation. [Schedule 3, item 33, section 203FF]

Native Title Act obligations are additional to other obligations

34.172 The obligations imposed on a representative body by Divisions 4 and 5 are in addition to, and not instead of, requirements imposed by any other law of the Commonwealth, a State or Territory [subsection 203FF(1)]. As representative bodies will be existing bodies that might be established or incorporated for another purpose, this provision is intended to clarify that such a body is still subject to those other obligations.

Reports which the representative body must provide may be combined

34.173 Representative bodies may have a number of reporting obligations, and where a representative body has an obligation under another Commonwealth law to give a report to the Commonwealth Minister, it may include as a part of that report, any report relating to its representative body operations which it must give to the Minister under Division 5. That part of the overall report must be identified as a report under Division 5 [subsection 203FF(2)]. This provision is designed to facilitate the submission of annual reports and financial statements to the Commonwealth Minister.

Offences in relation to false statements etc

34.174 The circumstances under which a person is guilty of an offence in relation to a representative body's application to ATSIC for financial assistance under sections 203C or 203CC (there is a penalty for such an offence) are if a person makes a statement or presents a document in connection with such an application, and does so knowing that the statement is, or the document contains information that is, false or misleading in a material particular. [Schedule 3, item 33, section 203FG]

Amendment to the list of disallowable instruments

34.175 The Bill makes consequential amendments to section 214, which lists determinations which are disallowable instruments. These items take effect at the end of the transition period. The reference to determinations under section 202, which recognise representative bodies under the current regime, is removed [Schedule 3, item 34]. Also, paragraph 214(b) is amended by adding to the list of disallowable instruments any determinations relating to the extension of representative body areas under section 203AE, the variation of adjoining representative body areas under section 203AF, the reduction of representative body areas under section 203AG and the withdrawal of recognition of representative bodies under subsection 203AH(2) [Schedule 3, item 35].

Regulations covering transitional arrangements when recognition is withdrawn

34.176 The Bill amends subsection 215(2) by adding a reference to regulations setting up transitional or saving provisions that are necessary or convenient as a result of the withdrawal of the recognition of a representative body under section 203AH. [Schedule 3, item 36]

Amendment to the definition of representative Aboriginal/Torres Strait Islander body

34.177 The Bill amends section 253 by removing from the definition of representative Aboriginal/Torres Strait Islander body the reference to bodies that were determined under the current regime. This amendment is consequential on the repeal of the current representative body regime in Division 1A and the commencement of the new representative body regime, whereupon all representative bodies will be recognised under the new regime rather than under subsection 202(1), which is repealed from the end of the transition period. [Schedule 3, item 37]

Overview

35.1 This Chapter describes the application and transitional provisions in Schedule 5 of the Bill. These provisions explain what happens to applications for a determination of native title or compensation that are made before the commencement of the Bill, and how the new registration test is to be applied to claims contained in such applications. It also explains the transitional arrangements for pre-commencement ‘right to negotiate’ processes, and the effect of certain new future act provisions in Schedule 1 on acts occurring before the commencement of that Schedule. The Chapter explains how other new provisions will apply to things done, applications made or processes commenced under the old Act, and explains key terms which are used and defined in Schedule 5. As well as dealing with the interaction between pre-amendment and post-amendment provisions in the NTA, the transitional provisions rectify the non-tabling of a determination about notices that was made under the old Act. [Schedule 5, Part 1]

Key terms explained

35.2 The following terms have a special meaning in the transitional and application provisions, and are used as a form of ‘short-hand’ in those provisions [Schedule 5, item 29]. This Chapter also uses these terms to avoid repetitive explanations.

‘Commencement of this Act’

35.3 When a provision in Schedule 5 refers to the ‘commencement of this Act’ it means the time when the definition of that term commenced [Schedule 5, item 30]. Clause 2 of the Bill explains when the various provisions in the Bill will commence. The definition will commence on the day fixed by Proclamation under subsection 2(5) of the Bill.

‘New Act’

35.4 The ‘new Act’ means the NTA as it is amended by the Bill. [Schedule 5, subitem 31(1)]

‘Old Act’

35.5 The ‘old Act’ is the NTA immediately before the amendments commence, and includes the operation of certain new future act provisions (see paragraph 35.21 below). [Subitem 31(2)]

‘New’ and ‘old’ right to negotiate provisions

35.6 The new ‘right to negotiate’ provisions are those in Subdivision P of Division 3 of Part 2 of the new Act and the old ‘right to negotiate’ provisions are those in Subdivision B of Division 3 of Part 2 of the old Act. [Schedule 5, item 32]

‘Application is being processed’

35.7 Briefly, an ‘application is being processed’ if it has been given to the Native Title Registrar under subsection 61(1) of the old Act and is still being considered by the Registrar under subsection 63(1) or subsection 64(1) of the old Act [Schedule 5, item 33]. Section 63 of the old Act required the Registrar to consider whether an application was frivolous or vexatious, and whether prima facie a claim could not be made out. Section 64 of the old Act required the Registrar to consider whether an application complied with the requirements listed in section 62 of the old Act.

35.8 An application is also being processed if the Registrar has referred it to a presidential member under subsection 63(2) or subsection 64(1), but the presidential member has not completed his or her consideration of the application under subsection 63(3) or subsection 64(2), respectively. [Schedule 5, subitem 33(3)]

‘Application is being reviewed by a court’

35.9 An ‘application is being reviewed by a court’ when a presidential member has directed the Registrar not to accept an application under section 63 or 64 of the old Act, and:

• the presidential member’s direction is either being challenged in a court; or

• the time limit during which an application for review of the direction, or of a decision made on review of the direction, may be made has not expired. [Schedule 5, item 34]

‘Application has been accepted’

35.10 An ‘application has been accepted’ once it has been accepted under section 63 or section 64 of the old Act. [Schedule 5, item 35]

‘Application is taken to have been made to Federal Court’

• it is treated as though it had been made to that Court under the new Act (which means that it will be subject from then on to relevant provisions of the new Act in relation to future dealings);

• section 63 of the new Act (which requires the Federal Court to give a copy of the application and relevant documents to the Registrar) will not apply since the Registrar would already have received the application and documents concerned. [Schedule 5, item 36]

‘Registrar is giving notification’

35.12 The ‘Registrar is giving notification’ if he or she has sent notices under section 66 of the old Act about an application to some, but not all, of the persons whose interests may be affected by a determination of that application. [Schedule 5, item 37]

‘Registrar has given notification’

35.13 The ‘registrar has given notification’ once she or he has given, or is taken to have given, notice under section 66 of the old Act of an application to all persons whose interests may be affected by a determination of that application. [Schedule 5, item 38]

‘Section 66 period’

35.14 The ‘section 66 period’ in relation to an application is the 2 month period calculated under section 66 of the old Act in relation to that application. [Schedule 5, item 39]

‘Notification is taken to be for that application’

35.15 When ‘notification is taken to be for that application’, it means that any notification that has occurred in relation to that application is to be regarded as having been given under section 66 of the new Act. [Schedule 5, item 40]

‘Unopposed’

35.16 An ‘unopposed’ application means an application that is unopposed under section 70 of the old Act [Schedule 5, item 41]. Old section 70 made it clear that an application was unopposed if:

• the other parties provided written notice to the NNTT that they did not oppose the application; or

• the application was a non-claimant application that was not taken to be dismissed under section 67 of the old Act.

The combined effect of sections 67 and 70 of the old Act was that, in brief, an unopposed non-claimant application was one where no accepted native title claim had been lodged with the Registrar in response to it within the section 66 period. A claim could ‘oppose’ a non-claimant application even if it was accepted after the section 66 period ended, so long as it had been lodged before that period expired.

‘Not finalised’

• it is still subject to proceedings in the NNTT, Federal Court or High Court; or

− where a party has applied under subsection 167(4) of the old Act for a review of the determination - the proceedings on the review have not been completed or otherwise terminated; or

− in any other case, a period of 28 days has not passed since the registration of the determination. [Schedule 5, item 42]

‘Same people are the parties’

35.18 When the term ‘same people are the parties’ is used, it means that the following people are the parties to the application concerned:

• people who were parties to it under the old Act will be parties to it under the new Act; and

• anyone who gave the Registrar notice under paragraph 68(2)(b) of the old Act after the commencement of these amendments but within the period of 2 months worked out under section 66 of the old Act. [Schedule 5, item 43]

35.19 Paragraph 68(2)(b) of the old Act allowed those notified under old paragraph 66(2)(a) to advise the Registrar in writing that they wanted to become parties to the application.

Part 2 - Application of future act amendments

Application

35.20 Subject to specific rules set out in the transitional provisions themselves, the general rule is that the amendments to the future act provisions of the NTA will apply to all future acts taking place after the new Act commences [Schedule 5, item 2]. The transitionals ensure that the right to negotiate provisions continue to apply only where the future act in question continues to be subject to the right to negotiate under the new Act. The application of the new registration test to claims which were made and registered before the commencement of the amendments is covered in Part 4.

Modified application of certain future act provisions in the period between 23 December 1996 and commencement

35.21 An exception to the general rule has been made so that there is no hiatus between the end of the period when acts possibly affecting native title have been validated as intermediate period acts (that is up to 23 December 1996) and the commencement of the new Act. Otherwise some actions, in particular on pastoral leases, could not have been done between 24 December 1996 and commencement of the new Act.

35.22 The transitional provisions provide that the new future act provisions in Subdivisions G to K of Division 3 of Part 2 of the new Act (excepting paragraph 24GE(1)(f) which is a procedural requirement and could not realistically apply in the circumstances) will apply to future acts from 23 December 1996. These subdivisions deal with primary production (Subdivision G), management or regulation of water and airspace (Subdivision H), renewals and extensions (Subdivision I), reservations (Subdivision J) and facilities for services to the public (Subdivision K). [Schedule 5, item 3]

When will old Act section 29 notices and the ‘old’ future act provisions continue to operate?

Section 29 notices - where parties to a right to negotiate procedure are known

35.23 The transitional provisions operate so that if at the time of commencement, the notification period of two months after the issue of a section 29 notice has expired in relation to any future act, the notification is deemed to satisfy the requirements of the new Act [Schedule 5, subitem 4(2)]. If the notification period of two months has not expired before commencement, then the notification provisions under the new Act (giving native title claimants a total of three months to respond to a section 29 notice) will operate.

Agreement or determination before commencement

35.24 Where at the time of commencement, a section 29 notice has been given in relation to a future act and any requirement of paragraphs 28(1)(a) to (f) of the old Act are satisfied in relation to that act, the amendments contained in the new Act do not apply in relation to that particular future act. This is also the case where a party to the process had a current application (under section 35 of the old Act) before the arbitral body seeking a determination in relation to a particular future act (which had not been withdrawn) and that future act remains subject to the right to negotiate under the new Act. [Schedule 5, subitem 4(1)]

Saving of old Act agreements and arbitral determinations

35.25 In addition, the amendments do not affect any conditions in an agreement or an arbitral determination or a Ministerial overruling of an arbitral determination made before the new Act commences. [Schedule 5, subitem 4(4)]

Old Act native title parties

35.26 The new right to negotiate provisions will apply if the relevant section 29 notice had been given at least 2 months before commencement (ie the notification period is over and the negotiating parties are known) but -

• none of the requirements in paragraphs 28(1)(a) to (f) of the old Act have been satisfied; and

• there has been no application under section 35 of the old Act to the arbitral body or such an application has been withdrawn, (provided again that the relevant future act remains subject to the right to negotiate under the new Act).

In this case the native title parties will be taken to be those who were native title parties prior to commencement and the notification provisions in section 29 will be taken to have been complied with. The effect is that it will not be necessary to start the right to negotiate procedures afresh [Schedule 5, subitem 4(2)]. However, the continuing registration of a claim for the purpose of a section 29 notice issued under the new Act will be subject to Schedule 5, Part 4, discussed below.

Old Act expedited procedure

35.27 If in relation to a section 29 notice which included a statement that the Government party considered the act to be one attracting the expedited procedure and in relation to which an objection had been made but there had been no determination in relation to that objection under subsection 32(3) of the old Act at commencement, the amendments do not apply for the purpose of making that particular determination (ie the issue is determined in accordance with the old Act). If, however, it is then determined that the future act is not an act attracting the expedited procedure, the new Act will apply to the rest of the right to negotiate process as if the only person who were native title parties were those native title parties under the old Act and the requirements of section 29 of the new Act had been complied with. [Schedule 5, subitem 4(3)]

Part 3 - Applications under section 61 of the old Act

How will the amendments apply to applications made under the old Act?

35.28 The way in which an application made under the old Act is dealt with in the amendments and under the transitional provisions partly depends on the stage of the process it has reached when the amendments commence. A table sets out various situations that may exist in relation to an application that was given to the Native Title Registrar as mentioned in section 61 of the old Act. [Schedule 5, item 5].

35.29 The transitional provisions explain what will happen to such an application [Schedule 5, item 6]. The table in item 6 is not exhaustive, and is qualified by several other items which explain particular effects and consequences [Schedule 5, items 7, 8, 9 and 10 and Schedule 5, Part 5].

35.30 Table 35.1 summarises the table in item 6 as modified by items 7 to 10. It also makes explicit certain consequences or effects which result from those items. The table uses the key terms explained above to describe many of these stages, consequences and effects.

Stage of application process	Consequences	Further effects and consequences
Application is being processed (Schedule 5, item 33).	Application is taken to have been made to Federal Court	Action by the Registrar or presidential member under sections 63 and 64 of the old Act ceases. Application proceeds as though it had been made under new Act.
Application is being reviewed by a court (Schedule 5, item 34).	Application is taken to have been made to Federal Court.	The review of the application ceases. Application proceeds as though it had been made under new Act.
Application has been accepted but no notification has occurred (Schedule 5, item 6, case 1(c)).	Application is taken to have been made to Federal Court.	Application proceeds as though it had been made under new Act.
Registrar has started but not completed giving notification (Schedule 5, item 37).	Application is taken to have been made to Federal Court. Notification is taken to be for that application. Same people are the parties.	Notification continues under the new Act, and application proceeds as though it had been made under new Act.

Stage of application process	Consequences	Further effects and consequences
Registrar has given notice and section 66 period has ended. Application is an unopposed non-claimant application (Schedule 5, item 41).	Application is taken to have been made to Federal Court. Notification is taken to be for that application.	The area covered by the application is regarded as subject to section 24FA protection from the time the section 66 period expired and remains subject to section 24FA protection until either: there is an approved determination that native title exists over that area; or the non-claimant application is withdrawn or dismissed.
Registrar has given notice and section 66 period has ended. The application is opposed, a mediation conference has been ordered under subsection 72(1) of the old Act, for all or part of the application. The NNTT has not made a determination and has not referred the matter to the Federal Court (Schedule 5, item 7).	Application is taken to have been made to Federal Court. Notification is taken to be for that application. Same people are the parties.	Federal Court is taken to have ordered the mediation under section 86B of the new Act at the time the amendments commences. Application then proceeds as though it had been made under new Act.

Part 4 - Applying the new registration test to claims

Which pre-commencement claims are affected by the new registration test?

35.31 All claimant applications that were made and registered before the commencement of the amendments will be subject to the transitional provisions dealing with the application of the new registration test, unless there has been an approved determination of native title in relation to the application containing the claim. [Schedule 5, subitems 11(1) and (2)]

When will the new registration test be applied to pre-commencement claims?

35.32 The rules for the application of the registration test under section 190A in relation to an application which contained a claim, the details of which were on the Register of Native Title Claims before commencement, are described below. [Schedule 5, subitems 11(3) to (6)]

• If the application was made on or after 27 June 1996, the Registrar must consider the application under section 190A as soon as reasonably practicable after commencement of the new Act [Schedule 5, subitem 11(5)] and in any event, by the end of 3 months after the first section 29 notice is issued under the new Act in relation to any part of the area covered by the application (or under a corresponding provision of a law of a State or Territory covered by a determination under subsection 43(1) of the new Act) [Schedule 5, subitem 11(6)]. (This provision applies to an application whether or not any part of the area covered by the application is covered by a non-exclusive agricultural lease or non-exclusive pastoral lease.)

• If the application was made before 27 June 1996 in relation to land subject to a non-exclusive agricultural or non-exclusive pastoral lease, the Registrar must use his or her best endeavours to consider the application under the new section 190A:

− by the end of one year after commencement of the new Act (or as soon as reasonably practicable afterwards); or

− by the end of 3 months after the first section 29 notice is issued under the new Act in relation to any part of the area covered by the application (or under a corresponding provision of a law of a State or Territory covered by a determination under subsection 43(1) of the new Act). The Senate made 1998 Government amendment (76), which is included in the Bill. This amendment replaces references to ‘3 months’ with references to ‘4 months’. It brings the transitional provisions in line with the current Bill, and 1998 Government amendment (71), which provides that claimants have 3 months to make a claim in response to a section 29 notice, but 4 months to have the claim registered, giving the Registrar at least one month to consider the claim.[Schedule 5, subitems 11 (4) and (6)]

• If the application was made before 27 June 1996, the Registrar must use his or her best endeavours to consider the application under the new section 190A by the end of 3 months after the first section 29 notice is issued under the new Act in relation to any part of the area covered by the application (or under a corresponding provision of a law of a State or Territory covered by a determination under subsection 43(1) of the new Act). The Senate made 1998 Government amendment (75), which is included in the Bill, and has an identical effect to that of 1998 Government amendment (76) above. [Schedule 5, subitem 11(3)]

35.33 The effect of item 11 is that the Registrar is not required to apply the new registration test to claims made before 27 June 1996 if they do not cover non-exclusive pastoral or agricultural leases until such time, if ever, there is a section 29 notice or an equivalent notice under notice under a State/Territory provision approved under subsection 43(1) in relation to all or part of the claim area. The effect of these applications failing the registration test under the new Act is dealt with below at paragraphs 35.39 to 35.46. [Schedule 5, subitems 11(9), (10), (11) and (12)]

What is the significance of 27 June 1996?

35.34 On 27 June 1996, the Government introduced in the House of Representatives the Native Title Amendment Bill 1996 which contained a registration test that would apply to all applications for native title made on or after that day. That registration test forms the basis of the test contained in this Bill.

What information can the Registrar take into account?

35.35 The Registrar must take into account the following information when applying the new registration test to claims registered before commencement [Schedule 5, subitem 11(8)]:

• any information that she or he is required to consider under subsection 190A(3) (Chapter 29 explains what information must be considered under that subsection); and

• any information provided by the applicant since making the application, including any information provided by the applicant or someone else after the application was made which would allow the application to satisfy the requirements of sections 190B and 190C.

Further, section 190A of the new Act is to be applied as if the conditions in sections 190B and 190C allow information to be provided by the applicant or any other person after the application was made.

Registrar to advise applicant that registration test is being applied

35.36 The Registrar must tell the applicant that the claim is being considered against the new registration test. The applicant is to be given a reasonable opportunity to take action in relation to the application, such as providing further information. [Schedule 5, subitem 11(8), paragraph (c)]

Registration test applies with certain modifications

35.37 When applying the new registration test, the Registrar is to interpret the test as though the conditions in sections 190B and 190C could be satisfied by the applicant after the application was lodged. (Such conditions include that the application satisfies the requirements of sections 61 and 62 of the new Act.) This will enable the applicant to provide additional information or do other things, such as obtaining certification of the claim from a representative body, which were not required under the old Act. [Schedule 5, subitem 11(8), paragraph (b)]

What happens to overlapping claims?

35.38 In some areas, there may be overlapping registered claims made by some or all the members of the same claim group under the old Act. The transitional provisions deal with overlapping claims by providing that where there are two or more claims affected by the same section 29 notice that were registered under the old Act, the Registrar is obliged to apply the registration test to them under these transitional provisions in the order in which the claims were registered under the old Act [Schedule 5, subitem 11(7)]. The first claim which satisfies the new registration test (including subsection 190C(3)) will be registered. Claims considered after that claim is registered will not be able to be registered if they do not satisfy the condition in subsection 190C(3). That condition prevents the registration of a claim in a later application:

• if there is already a claim on the register covering some or all of the same area when the later application is made; and

• that registered claim was made by some or all of the people in the claim group for the later application.

The Bill generally discourages overlapping claims by members of the same native title claim group, and encourages consolidation of such multiple claims into one application.

What happens if a claim fails the registration test?

35.39 A claim that fails the registration test must be removed from the Register of Native Title Claims. The Registrar must tell the applicant that the claim has failed and provide reasons. The applicant will be able to seek review of the registration decision under section 190D. [Schedule 5, subitem 11(9) paragraphs (a) and (b)]

35.40 Once the Registrar has applied the registration test to a claim under the transitional provisions, he or she is taken to have complied with section 190A for the claimant application concerned. [Schedule 5, subitem 11(9) paragraph (c)]

What happens if a claim fails an equivalent State or Territory test

35.41 When the Registrar is notified by a recognised State/Territory body that a claim made to that body has failed a test which has conditions equivalent to those in the new registration test under section 190A, the Registrar must remove any details of that claim that were recorded in the Register of Native Title Claims. [Schedule 5, subitem 11(10)]

What are the consequences of removing a claim from the Register when there is a right to negotiate process under the old Act for the area?

35.42 There may be occasions when a registered claim made before the amendments commence is removed from the Register because it fails the new registration test while the claimants are involved in a right to negotiate process that has started in relation to a section 29 notice issued under the old Act. Where the claim concerned was made before 27 June 1996, that right to negotiate process will continue as though the claimants were still registered native title claimants. [Schedule 5, subitem 11(11)]

35.43 As explained above, Part 2, Item 4 of Schedule 5 sets out the way that right to negotiate processes which started under the old Act will be completed after the new Act commences.

What happens to a right to negotiate process if a claim made on or after 27 June 1996 is removed from the register?

35.44 When a claim made on or after 27 June 1996 is removed from the Register under these transitional provisions, the claimants will be regarded as never having been registered native title claimants. Where the right to negotiate process concerned was commenced under the new Act, the new Act provisions will apply as though the claim had never been registered. Similarly, if the right to negotiate processes commenced under the old Act, Part 2, Item 4 of Schedule 5 will apply to it as though the claim had never been registered. [Schedule 5, subitem 11(12)]

35.45 This provision means that the claimants will cease to be a native title party in any right to negotiate processes in which they had been involved, whether under the old Act or the new Act. The right to negotiate processes will continue only if there are other registered native title claimants involved in them. Otherwise, the future act concerned can proceed validly, as it will fall within new paragraph 28(1)(b).

Are agreements or determinations relating to those right to negotiate processes affected by the de-registration?

35.46 If however there has been an agreement of the kind referred to in paragraph 31(1)(b) of the new or old Act, a determination under section 38 of the old Act or section 34A, 36A or 38 of the new Act, or a declaration under section 42 of the new or old Act, and there is a native title party to that process whose post-27 June 1996 claim is removed from the Register of Native Title Claimants, the agreement, determination or declaration is not affected by that removal [Schedule 5, subitem 11(13)]. There is a note at the end of Part 4 to say that item 11 is subject to any regulations that may be made under subsection 43(4) (concerning alternative State/Territory provisions) or under subsection 43A(8) (concerning satisfactory State/Territory provisions in relation to the right to negotiate).

Part 5 - Various application and transitional provisions

State and Territory validation legislation

35.47 The amendments will have no effect on State and Territory validating legislation made under subsection 19(1) of the old Act. Such legislation continues to have effect. The amendments made to the relevant parts of the NTA (Part 2 Division 2) are merely formal. [Schedule 5, item 12]

Former section 21 agreements

35.48 Any agreements made under section 21 of the old Act are preserved, despite the repeal of that section when the new Act commences. [Schedule 5, item 13]

Determinations, approvals, regulations etc.

35.49 Where relevant, any determinations, approvals, regulations or delegations made under the old Act will operate largely unaffected by the commencement of the new Act [Schedule 5, item 14]. This applies to:

• determinations under paragraph 23(7)(c) of the old Act about notifying in the way determined in writing by the Commonwealth Minister, any representative Aboriginal/Torres Strait Islander bodies. Such determinations have effect as if they were a determination made under subsection 24MD(7) and subsection 24NA(9) of the new Act and as if it applied to the notification of registered native title claimants in relation to land or waters in the area concerned in the same way as it applied to notification of representative Aboriginal/Torres Strait Islander bodies for that area [subitem 14(1)];

• approvals given under paragraph 26(2)(e) of the old Act that an act be subject to the right to negotiate. Such approvals have effect as if they were made under subparagraph 26(1)(c)(iv) of the new Act [subitem 14(2)];

• determinations under paragraph 26(3)(b) of the old Act that an act is excluded from the right to negotiate. The new ‘right to negotiate’ provisions will not apply to the act until the Minister revokes the determination. Such a revocation is a disallowable instrument [subitem 14(3)];

• determinations made under subsection 43(1) of the old Act that alternative right to negotiate provisions should apply in a State or Territory. Such determinations have effect as if they were made under subsection 43(1) of the new Act [subitem 14(4)];

• regulations made in for the purposes of subsection 61(2) or subsection 62(2) of the old Act about the form and content of native title applications and any accompanying fees. Such regulations have effect as if they were made for the purposes of subsection 61(5) of the new Act [subitem 14(5)];

• regulations made for the purposes of subsection 75(2) or section 76 of the old Act about the form and content of ‘right to negotiate’ applications and any accompanying fees. Such regulations have effect as if they were made for the purposes of section 76 of the new Act [subitem 14(6)];

• delegations under subsection 183(5) of the old Act about decision-making in relation to legal aid matters. Such delegations have effect as if the subsection had not been repealed [subitem 14(7)];

• determinations under subsection 251(1) of the old Act that a State or Territory body etc is a recognised State/Territory body. Section 251 has been renumbered and such determinations in the future will be made under subsection 207A(1) of the new Act. The transitional [subitem 14(8)] will operate so that the South Australian native title system is still operative, but the new Act will require some amendments to that system for a nationally consistent native title regime, if it is not to be eventually derecognised as a result of the operation of subsection 207A(4) of the new Act; and

• determinations under subsection 252(1) of the old Act in relation to notifying ‘the public in the determined way’ for the purposes of future acts or applications under the old Act. Such determinations have effect as if they were made for the purposes of subsection 29(3) or paragraph 66(3)(d) of the new Act [subitem 14(9)].

Renewal of mining tenements which were issued after 23 December but before commencement

35.50 To cover the eventual renewal of mining or exploration tenements after 23 December 1996 which have been through the right to negotiate process under the old Act, a transitional provision will operate for the purposes of subparagraph 26D(1)(b)(ii). The grant of such tenements under the old right to negotiate provisions is taken to have satisfied this provision. Such tenements may therefore be renewed without again going through the right to negotiate. [Schedule 5, item 15]

Statutory access rights

35.51 A transitional provision applies to the situation of registered native title claimants who had the relevant physical access to non-exclusive tenure (as set out in Subdivision Q of the new Act) as at 23 December 1996, but whose native title application has not yet been tested under the new registration test. To avoid doubt, such native title claimants can continue to have access to the land so long as their claim remains on the Register of Native Title Claims. [Schedule 5, item 16]

Primary production activities on non-exclusive agricultural or non-exclusive pastoral leases

35.52 Section 24GC applies to primary production and incidental or associated activities on non-exclusive agricultural or non-exclusive pastoral leases.^[62] The Bill provides that section 24GC applies to these activities done at any time. This means that the doing of the activities prevails over, and is not impeded by, native title rights and the exercise of those rights, regardless of whether the activities were done before or after the commencement of the new Act. [Schedule 5, subitem 17(1)]

Activities performed in accordance with rights conferred by valid leases etc.

35.53 Section 44H deals with requirements and permissions under valid leases, licences, permits and authorities.^[63] The Bill provides that section 44H applies to the grant, issue or creation of a lease etc. at any time. This means that the requirement or permission in the lease etc., and activities done under it, prevail over, and are not impeded by, native title rights and the exercise of those rights, regardless of whether the lease etc. was granted, issued or created, or the activities done, before or after the commencement of the new Act. [Schedule 5, subitem 17(2)]

Application of compensation limitation provision

35.54 The new Act’s 6 year time limit for applications for a compensation determination in subsection 50(2A) as well as the limit on total compensation payable in section 51A apply to entitlements to compensation whether arising before or after the commencement of the new Act. [Schedule 5, items 18 and 19]

Application of consolidation provision

35.55 Applications under section 61 of either the old Act or the new Act can be consolidated with other applications under the consolidation provisions in section 67 of the new Act. [Schedule 5, item 20]

Application of native title determination provision in new section 68

35.56 The limitation in section 68 of the new Act on hearing applications or making a later determination of native title for an area subject to an earlier determination of native title applies:

• whether or not the earlier determination was made before the commencement of the new Act; and

• regardless of when the application resulting in the later determination was made. [Schedule 5, item 21]

Application of strike-out provision

35.57 The strike out provisions in section 84C apply to applications under section 61 regardless of when they are made [Schedule 5, item 22]. This means that if any claim covers an exclusive possession area or an area covered by an approved native title determination, or claims exclusive rights to an area where a coexisting interest has been granted (as outlined in section 61A) this will be grounds for a strikeout under section 84C. If, however, the application was made before commencement of the new Act, the reference in section 84C to section 61 or 62 is a reference to those provisions in the old Act.

Application of mediation provisions

35.58 The new mediation provisions in the new Act, which are described in Chapter 28, apply to applications regardless of when those applications were made [Schedule 5, item 23]. As noted above, proceedings which are in mediation under the old Act at commencement are taken to be in mediation under the new Act [Schedule 5, item 7].

Transitional - Assistance to native title claimants

35.59 As already mentioned in Chapter 32, if a native title claimant is granted assistance under section 183 for a native title claim before the amendments to that section commence, he or she may be able to apply for and be granted further assistance for that claim. The criteria for such grants will be those set out in new section 183, however, the prohibition in new subsection 183(6) on the provision of assistance to claimants will not apply. [Schedule 5, item 24]

Application of native title determination provision

35.60 Any determination of native title made after the amendments commence is subject to the requirements of section 225 of the new Act, regardless of when the application to which the determination relates was made. New section 225 lists the matters to be included in a determination of native title. [Schedule 5, item 25]

Transitional - definition of ‘registered native title claimant’

35.61 For the purposes of the definition of registered native title claimant in the new Act (see Schedule 2, item 99), if there is an entry on the Register of Native Title Claims when the new Act commences, the person named as the ‘claimant’ in the entry is taken to be the ‘applicant’. [Schedule 5, item 26]

Part 6 - Validation of certain Acts

35.62 The Native Title (Notices) Determination No. 1 of 1993 (the original determination) was made on 24 December 1993. It was not tabled in both Houses of Parliament as required by section 46A and paragraph 48(1)(c) of the Acts Interpretation Act 1901. As a result, the determination ceased to have effect on 3 March 1994 (the end of the disallowance period): see subsection 48(3) of the Acts Interpretation Act. A determination amending the original determination (the amending determination) was made on 12 December 1995. (A replacement determination was made and tabled on 26 June 1996).

35.63 Acts done relying on either the original or amending determination, or on notices given in accordance with the original or amending determination, are not rendered ineffective because of the failure to table the original determination [Schedule 5, item 27]. An act which would have been invalid for any other reason is not validated by this transitional provision.

35.64 The note draws attention to the fact that the original determination was a disallowable instrument under section 214 of the Act and was required to be tabled.

Part 6A - Compensation etc.

35.65 The Senate made 1997 Government amendment (92) which is included in the Bill. This amendment inserts a reference to Part 6A, which ensures that ‘just terms’ compensation is payable if the Bill results in an acquisition of property, in the description of the contents of Schedule 5. It is linked to 1997 Government amendment (93), also made by the Senate and included in the Bill.

35.66 1997 Government amendment (93), which was made by the Senate and included in the Bill, inserts Part 6A (which comprises Schedule 5, item 27A). Item 27A ensures that if the Bill once enacted results in an ‘acquisition of property’ for the purposes of section 51(xxxi) of the Constitution, as a consequence of its effect on native title rights and interests, ‘just terms’ compensation is payable. This amendment also ensures that the provision operates for all relevant future acts, not just Commonwealth ones. If the future act is attributable to a State or Territory, the State or Territory must pay the required compensation.

Part 7 - Regulations

35.67 Regulations can be made to augment the transitional provisions in Schedule 5. There is also a power to make regulations to implement the amendment Bill itself. [Schedule 5, part 7, item 28]

Overview

36.1 Schedule 4 to the Bill contains new Schedule 1 to the NTA, which is referred to in the definition of ‘Scheduled interest’ in new section 249C [Schedule 1, item 49].

36.2 The Schedule contains leases and other interests (in this Chapter the term ‘lease’ is used to describe all these) which the relevant State or Territory, and the Commonwealth, consider, on the basis of the common law, have conferred exclusive possession on the grantee and have therefore extinguished native title. The Schedule principally contains specific types of residential, commercial, community purpose and agricultural leases. The Government’s policy is to ensure certainty with regard to those interests in the Schedule.

36.3 There are no pastoral leases in the Schedule, nor are there lesser interests, such as licences or permits. The definition of ‘Scheduled interest’ in section 249C expressly excludes mining leases. The Senate made 1998 Government amendment (9), which is included in the Bill, to paragraph 249C(1)(a). The amendment ensures that the definition of Scheduled interest also does not include grants under ‘land rights’ type legislation, interests created expressly for the benefit of Aboriginal peoples or Torres Strait Islanders, interests held on trust expressly for the benefit of Aboriginal peoples and Torres Strait Islanders, or grants over such land. This is the same as the amendment made to subsection 23B(9), and will make it clear that the grant or vesting of such acts are excluded from the confirmation provisions, and the definition of ‘category A intermediate period act’. This will leave it to the common law to determine what effect the grant or vesting of such interests has on native title.

The Senate made 1998 Opposition amendment (N10), which is included in the Bill. This amendment adds paragraph 249C(1)(c) and provides that the definition of scheduled interest may not include interests otherwise excluded from the definition of a previous exclusive possession act. For example, a law of a State or Territory may provide that the grant of a particular interest in land does not affect native title rights (although at common law such an interest would extinguish native title as it granted exclusive possession) this scenario is envisaged by 1998 Opposition amendment (N5). In such a situation the grant could not become a scheduled interest due to the operation of paragraph (c). 36.4 The grant on or before 23 December 1996 of a lease that appears in the Schedule will be a ‘previous exclusive possession act’ because of the operation of new subparagraph 23B(2)(c)(i). The grant of other leases may be a ‘previous exclusive possession act’ because of the operation of subparagraphs 23B(2)(c)(ii) to (viii). A previous exclusive possession act attributable to the Commonwealth extinguished any native title to the area of the lease (new section 23C). A State or Territory may legislate to confirm that a previous exclusive possession act attributable to it extinguished any native title to the area of the lease (new section 23E). By operation of new section 237A, such previous exclusive possession acts will have permanently extinguished all native title to the area of the lease [Schedule 1, items 9 and 45].

Background

36.5 The current NTA is largely silent on the effect of previous government acts on native title. It does not, for example, state what effect a validly granted freehold title or residential lease has had on native title. (The NTA does of course significantly restrict what acts which affect native title can be done by governments after 1 January 1994.) To date, the common law has been the source of authority on the effect of previous valid government acts.

36.6 It is apparent from Mabo v Queensland (No. 2) (1992) 175 CLR 1 (Mabo No. 2) and Wik Peoples v Queensland (1996) 187 CLR 1 (Wik) that the conferral by the Crown of a right of exclusive possession over an area of land or waters is wholly inconsistent with the continued existence of native title to that area, and thereby extinguishes all native title that may have existed at the time of the conferral. Brennan J said in Mabo (No. 2) at 69.9:

Thus native title has been extinguished by grants of estates of freehold or of leases but not necessarily by the grant of lesser interests (e.g. authorities to prospect for minerals).

Deane and Gaudron JJ said in Mabo (No. 2) at 110.7 that native title rights are:

extinguished by an unqualified grant of an inconsistent estate in the land by the Crown, such as a grant in fee or a lease conferring the right to exclusive possession.

As Deane J and I pointed out in [Mabo (No. 2)] native title rights “are extinguished by an unqualified grant of an inconsistent estate in the land by the Crown such as a grant in fee simple or a lease conferring the right to exclusive possession” or other inconsistent dealings with the land by the Crown.

Her Honour concluded at 155.3 that the interest conferred by the Mitchellton Pastoral leases ‘did not operate to extinguish or expropriate native title rights, as would have been the case, had it conferred a right of exclusive possession’.

36.7 But the fact that this position is not reflected in the NTA has led to uncertainty and other difficulties. In some cases native title claims have been made over land in relation to which, at common law, it is clear that native title has been extinguished (such as land subject to a residential lease in a town). The NTA’s silence on these matters has in the Government’s view encouraged unrealistic expectations on the part of native title claimants and created considerable uncertainty for the holders of other kinds of interests in land, who have felt obliged to defend these claims.

10-Point Plan

36.8 In order to restore certainty to Australia’s land tenure system, point 2 of the 10-Point Plan sought to confirm in legislation the Government’s understanding of the common law relating to native title, namely that native title is extinguished by the grant of a valid ‘exclusive’ tenure, such as freehold, a residential lease, a commercial lease, or the construction of a public work.

36.9 Of particular concern to the Government are agricultural leases. In the Government’s view, a lease for the purpose of conducting agriculture generally confers exclusive possession and therefore extinguishes native title. The Government’s policy is that it is counterproductive for there to be ongoing uncertainty with regard to the effect of such leases on native title.

36.10 Therefore, point 2 of the 10-Point Plan provided that agricultural leases would be covered by the confirmation to the extent that it could reasonably be said that, by reason of the grant or the nature of the permitted use of the land, exclusive possession must have been intended. Most agricultural leases will fall in this category.

36.11 The Plan also indicated that if any pastoral leases conferred exclusive possession, they would also be included. None have in fact been included. On the basis of the Wik decision, the Government’s view is that pastoral leases may not provide exclusive possession. Leases that do not provide exclusive possession do not wholly extinguish native title. Lesser interests, such as licences and permits, will be in the same category. The Government’s policy is not to extinguish native title where it exists in accordance with the common law on pastoral lease and other land.

Implementation of the 10-Point Plan

36.12 In implementing point 2 of the 10-Point Plan, it was decided that a two-pronged approach should be taken:

• The legislation would provide that certain general types of grants have extinguished native title, such as a freehold estate, a commercial lease (that is neither an agricultural lease or a pastoral lease), an exclusive agricultural lease, an exclusive pastoral lease, a residential lease, a community purposes lease, and a lease that confers a right of exclusive possession (see proposed subparagraphs 23B(2)(c)(ii) to (viii)).

• A Schedule to the legislation would contain certain specific types of grants which conferred exclusive possession (see proposed subparagraph 23B(2)(c)(i)).

36.13 The different history, legislation, regulation and practices in the several States and Territories in relation to land tenure in many cases reduces the capacity to rely on descriptions of general types of grants. The purpose of the Schedule is to make it abundantly clear that a lease contained in the Schedule will attract certain consequences under the NTA, without having to look behind the lease to determine whether it in fact satisfies any other more general description or confers a right of exclusive possession.

36.14 In order for a lease to come within subparagraph 23B(2)(c)(viii), for example, it will need to be clear that it does as a matter of fact and law provide for exclusive possession. In cases of dispute, this will need to be resolved by a court. In order for a lease to come within subparagraph 23B(2)(c)(i) it simply needs to be clear that it is one of the type of leases described in the Schedule.

36.15 Point 2 of the 10-Point Plan has been given effect by Item 9 of Schedule 1 of the Bill, which inserts Division 2B into Part 2 of the NTA. In particular, Division 2B confirms the extinguishment of native title by the grant of valid ‘exclusive’ tenures where the grant is attributable to the Commonwealth, and enables States and Territories to similarly confirm the extinguishment of native title by the grant of such tenures by the State or Territory.

36.16 As to the general types of grants (referred to in paragraph 36.12), proposed subparagraphs 23B(2)(c)(ii)-(viii) list these. They have been discussed in Chapter 5.

Specific types of grants

36.17 As to the specific types of grants (also referred to in paragraph 36.12), proposed subparagraph 23B(2)(c)(i) gives a ‘Scheduled interest’ the same consequences under the NTA as other exclusive tenures. Schedule 4 to the Bill contains new Schedule 1 to the NTA which lists the scheduled interests.

36.18 Most of those tenures listed in the Schedule are what could be described as residential, commercial, community purpose or agricultural leases. Freehold estates are not generally listed, since the reference to the grant of a freehold estate in proposed subparagraph 23B(2)(c)(ii) is thought sufficient.

36.19 The decision in Wik, and the general tests for extinguishment set out there and earlier in Mabo (No. 2), are accepted and adopted. The Court in Wik approached the task of determining whether leases granted exclusive possession by looking at the legislation under which the leases were granted, at other factors such as the purpose and size of the leases, and at the specific terms of the lease instruments. A similar process has been adopted in compiling the Schedule, and it is set out in more detail below. However it has not been possible to look at the terms contained in particular lease instruments. Therefore reliance has been placed on the legislation and other factors, including purpose and size. As noted below, if it could be said with reasonable certainty that, based on the legislation and other factors, a particular type of lease conferred exclusive possession on the grantee, then the lease has been included in the Schedule. If there was significant doubt about whether a particular type of lease provided exclusive possession, it was not included in the Schedule.

The definition of Scheduled interest expressly excludes mining leases and interests created for the benefit of indigenous peoples (section 249C and 1998 Government amendment (9)).

36.21 Leases for all the States and the Northern Territory are listed. Because of the very different history, legislation and administrative systems in these jurisdictions, the lists in relation to each jurisdiction take very different forms. Tenures for the Commonwealth and the Australian Capital Territory are not listed, as the view taken by the respective Governments is that the general types of grants listed in proposed subparagraphs 23B(2)(c)(ii)-(viii) are sufficient.

Compilation of the Schedule

36.22 The Schedule contains historic (that is, no longer in effect) and current leases which the Government considers, on the basis of the common law, have conferred exclusive possession and have therefore extinguished native title.

36.23 In determining whether any particular lease should be included in the Schedule, the relevant State or Territory and the Commonwealth have principally had regard to the substantive rights and obligations of the grantee under the relevant legislation. If it could be said with reasonable certainty that by reason of those rights and obligations the lease conferred exclusive possession on the grantee, then the lease has been included in the Schedule. If there was significant doubt about a particular lease, it was not included in the Schedule.

Relevant factors

36.24 Regard was had to a variety of factors in the relevant legislation and to a number of other factors in relation to the lease such as its purpose and size. These factors are noted below. These are factors which the High Court had regard to in the Wik decision.

36.25 However, as evidenced by the varying majority judgments in Wik, no one particular factor was decisive of, or necessarily carried more weight in determining, whether any particular lease conferred a right of exclusive possession.

36.26 It may be that in the future the courts will examine other general or specific factors in determining whether or not exclusive possession has been conferred in relation to a lease. Clearly, however, it was not appropriate at this time to attempt to speculate on what these factors may be.

36.27 As far as possible, given the different history, legislation, regulation and practices in the various States and Territories, a consistent approach has been taken to each jurisdiction.

Terms and conditions

36.28 The terms and conditions of the type of lease, as set out in the legislation or regulations under which the lease was granted, were relevant to determining whether or not it conferred a right of exclusive possession on the grantee.

36.29 To this extent, it was relevant to examine the differences or similarities, if any, between the terms and conditions of the particular lease and the terms and conditions of the leases examined by the High Court in Wik.

Rights of third parties

36.30 The conferral of rights on the Crown and third parties in relation to the land subject to the lease, and the nature of those rights, was relevant to determining whether a right of exclusive possession had been conferred on the lessee (see Wik per Gaudron J at 154 and Kirby J at 229). Extensive rights to third parties indicated that exclusive possession was not necessarily intended.

Obligations conferred and restrictions imposed on the grantee

36.31 Regard was had to the kinds of obligations, if any, that were imposed on the grantee under the lease. For example, a grant may have been made subject to conditions that the grantee erect boundary fences, carry out improvements or undertake certain developments on the land (Gaudron J had regard to such factors in Wik at 165-166). Obligations to undertake intensive activities indicated that exclusive possession was intended. Similarly, it was relevant to have regard to whether the lease imposed any restrictions or prohibitions on the grantee (see Wik per Gaudron J at 154). Restrictions on the grantee, in particular on any intensive activities, indicated that exclusive possession was not necessarily intended.

Capacity to upgrade

36.32 It was also relevant in determining whether a particular lease conferred a right of exclusive possession to have regard to whether the grantee had a right (in particular, a legally enforceable right) to convert the lease to freehold or to a tenure with a freehold right.

Purpose

36.33 The purpose for which a lease was granted was important in determining whether the lease conferred a right of exclusive possession on the grantee (see Gaudron J's comments in Wik at 164-165). This was particularly so where the terms and conditions were not set out in the legislation. A purpose which necessitated exclusive possession, or required an intensive degree of use of, or extensive construction on, the land or waters, suggested an exclusive possession right. On the other hand, a purpose that did not require an intensive use of the land suggested that a right of exclusive possession was not intended (see, for example, Wik per Gaudron J at 153 and 154, Gummow J at 201 and Kirby J at 243 and 249). In general terms, residential, agricultural, sporting and industrial purposes suggested that exclusive possession was intended; pastoral, grazing, and some recreational purposes suggested that exclusive possession was not necessarily intended.

History

36.34 The historical origins of the lease was also relevant to determining whether a lease of that kind conferred a right of exclusive possession. The majority Justices in Wik had regard to the historical origins of the leases under consideration in that case (see, for example, Toohey J at 111 and 119-120). In particular, a lease which developed from or was otherwise analogous to the traditional pastoral lease which evolved in Australia from the middle of the nineteenth century, as discussed by the High Court in Wik, has not been included in the Schedule. As the High Court notes, it was clear that such grants were originally given in the knowledge that Aboriginal people continued to use this land.

Location

36.35 It was also relevant to consider whether the areas of land and waters over which the particular type of lease could be granted were located within closely settled areas (such as towns) or remote areas. Gaudron J said in Wik at 154:

Moreover, the vastness of the areas which might be made the subject of pastoral leases and the fact that, inevitably, some of them would be remote from settled areas militate against any intention that they should confer a right of exclusive possession entitling pastoralists to drive native title holders from their traditional lands. Particularly is that so in a context where, in conformity with the prescribed form, the grants were expressed to be made for "pastoral purposes only".

It was also relevant to consider whether the land covered by a lease was located in a particular part of a State or Territory which was determined as suitable for particular types of activity, such as agriculture.

Size

36.36 It was relevant to examine whether the statute under which the lease was granted limited the area of land and waters that could be held under the lease. It was also relevant to consider the size of the areas of land and waters actually held under each particular lease. These are factors to which some of the Justices in Wik referred (see Gaudron J at 147 and 154 and Kirby J at 244 and 246).

Not terms of the lease instruments

36.37 The terms of each lease instrument granted under the provisions referred to in the Schedule were not considered. Rather, the leases contained in the Schedule are leases which, without needing to have recourse to the terms of the lease instruments themselves, it can be said with reasonable certainty conferred a right of exclusive possession on the grantee. If there was significant doubt about whether a particular lease conferred a right of exclusive possession, it was not included in the Schedule.

Not activities actually undertaken ‘on the ground’

36.38 It is clear from a majority of the judgments in Wik that native title is extinguished by the grant, rather than the exercise, of a right or interest in land which is inconsistent with the continued existence of native title (see Brennan CJ at 87 (with whom Dawson and McHugh JJ agreed), Gaudron J at 135, Gummow J at 176 and 185, and Kirby J at 237-238). Accordingly, in determining whether any particular lease should be included in the Schedule, it was not relevant to have regard to what activities are in fact being undertaken on the land subject to the lease.

Balancing of factors

36.39 No one particular factor can be determinative of whether a lease conferred a right of exclusive possession on the grantee. This was evident from the complex and differing judgments of the High Court Justices in Wik. Accordingly, the Schedule was prepared examining a spectrum of factors in relation to each particular lease. Some factors that were relevant to some leases included in the Schedule were irrelevant to other leases included in the Schedule. A lease was included in the Schedule when the relevant factors, considered as a whole, indicated that the lease conferred a right of exclusive possession.

Form of Schedule

36.40 The different form in which some leases appear in the Schedule reflect the different land management regimes of the States and Territories.

36.41 Some of the leases are particular tenures described in particular legislation. In these cases the name of the tenure and the legislation are set out in the Schedule; for example, clause 2 refers to a conditional lease under the NSW Crown Lands Act 1884. Where the leases are not described as a particular tenure, the particular provision of the Act or regulation under which the lease is granted is identified in the Schedule; for example, subclause 34(13) refers to a lease under section 116 of the WA Land Act 1903.

36.42 Some leases contained in the Schedule are organised by reference to the purpose for which the lease was granted. For example, subclause 40(7) refers to a lease for various purposes under subsection 7(2) of the Tasmanian Crown Lands Act 1935. In some jurisdictions leases for a range of different purposes were granted under one general legislative provision. In most cases that provision did not set out the specific terms and conditions of the lease. Some of the leases granted under such a general provision were for a purpose which required exclusive possession or which involved a degree of intensity of use of, or construction on, the land that indicated a right of exclusive possession. Examples of a purpose which required exclusive possession would be leases granted for the purpose of a rifle range. Examples of a purpose which involved an intensity of use would be leases granted for agriculture or an airport. Examples of a use involving construction would be leases granted for a shop or school. Where a particular lease is expressed to be for a purpose more general than the purpose set out in the Schedule, that lease will be caught if it is the case that it was granted solely or primarily for the purpose specified in the Schedule. For example a lease expressed to be granted for the purposes of recreation will fall within a Scheduled lease for a sports club if it was in fact granted solely or primarily for a sports club. Also, a lease expressed to be granted for commercial purposes will fall within a Scheduled lease for a shop if it was in fact granted solely or primarily for a shop.

36.43 The Senate made 1997 Government amendments 86, 87, 88, 89, 90 and 91 which are included in the Bill. These amendments correct typographical errors contained in the Schedule.

Examples

36.44 A perpetual lease of a block within an irrigation area under section 38 of the SA Irrigation (Land Tenure) Act 1930 is included under Part 5 of the Schedule, which relates to South Australia, in subclause 37(5). The lease includes the following terms and conditions, set out in the Second Schedule to that Act:

• to enclose the land with a cattle-proof fence or wall before the end of the first year of the lease;

• during the first 2 years of the lease to plant, or bring under cultivation, at least two-fifths of the reclaimed and of the irrigable land and an additional one-fifth of such lands in each of the following 3 years until the whole of such lands are under such cultivation or planting;

• to keep in good repair all buildings, orchards, vineyards, gardens, fences, walls and other improvements on the land and keep all fruit and other trees and plants on the land free as far as possible from insects, pests and diseases; and

• to destroy, and keep the land free from, all vermin and noxious weeds, and fill up all burrows on the land.

On the basis of these factors it can be said with reasonable certainty that the lease conferred exclusive possession on the grantee. The lease has therefore been included in the Schedule.

36.45 A conditional purchase lease under section 111 of the Victorian Land Act 1915 is included under Part 2 of the Schedule, which relates to Victoria, in subclause 9(2). The lease includes the following terms and conditions set out in Part 1 Division 4 of that Act by operation of section 112:

• within 2 years to destroy vermin on the land and keep the land free of Bathurst burr, wild briar and gorse;

• within the first 6 years to enclose the land with a fence and keep it in repair;

• within 6 months to reside on the land or within 5 miles, and to reside for at least 6 months during the first year, 8 months during each of the second, third, fourth and fifth years, however if the lessee cultivates at least one fourth of the land within the first 2 years and at least one half before the end of the fourth year then the residence obligation will not operate;

• make substantial and permanent improvements to particular values at various stages during the term of the lease; and

• at any time after the expiration of the first 6 years, if the Board of Land and Works is satisfied that all the terms and conditions have been complied with and the fencing and improvements maintained and full purchase money paid, a Crown freehold grant for the land may be issued.

On the basis of these factors which indicate a right to reside on and intensively cultivate the land, it can be said with reasonable certainty that the lease conferred exclusive possession on the grantee. The lease has therefore been included in the Schedule.

Leases and other tenures not appearing in the Schedule

36.46 In accordance with the principle applied by the High Court in Mabo (No. 2) and Wik that there is a presumption that a statute is not intended to extinguish native title or indeed any valuable rights relating to property unless there are clear and plain indications to the contrary, the Government has taken a cautious approach in determining whether any particular lease should be included in the Schedule.

36.47 In determining whether or not a particular type of lease should be included in the Schedule, the Government has also been confined to considering those factors to which the courts have, to date, had regard in determining whether a particular lease confers a right of exclusive possession.

36.48 Accordingly, the absence of any particular lease from the Schedule should not be taken to imply that the lease does not confer a right of exclusive possession. It may be, for example, that on examination of the terms of the particular lease instrument involved, it becomes apparent that a right of exclusive possession was conferred on the grantee. In this or any other case, it would be open to the grantee or relevant government to argue before a court that a particular lease that does not appear in the Schedule does in fact confer a right of exclusive possession and thereby extinguished native title. If so, such a lease would fall within proposed subparagraph 23B(2)(c)(viii).

36.49 Where a particular type of lease does appear in the Schedule, it is not open to argue in the courts that the lease does not extinguish native title if its grant is a previous exclusive possession act attributable to the Commonwealth. Where a particular lease does appear in the Schedule, it is not open to argue in the courts that the lease does not extinguish native title if its grant is a previous exclusive possession act attributable to a State or Territory that has made provision to the same effect as section 23C. However, any loss of native title rights that may have resulted from the inclusion of the particular lease as a type of lease in the Schedule will be subject to ‘just terms’ compensation (see Chapter 5, paragraphs 5.43 and following).

Additions to the Schedule

36.50 An interest may be declared to be a ‘Scheduled interest’ by a regulation made for the purposes of proposed paragraph 249C( l )(b) of the NTA (which contains the definition of ‘Scheduled interest’), provided that the regulation only covers a single type of interest (subsection 249C(2)). As the consequences for leases contained in the Schedule are the same as those for interests that are declared to be ‘Scheduled interests’ by regulations made under paragraph 249C(1)(b), this mechanism in effect enables other interests to be ‘added to’ the Schedule. The Senate made 1998 Government amendment (10) adding subsection 249C(3) to the Bill. The amendment describes the circumstances in which regulations declaring a type of interest to be a ‘Scheduled interest’ can be made. They can be made where the Minister is satisfied that the interest has conferred a right of exclusive possession over the land or waters concerned that has extinguished native title. This will ensure that the regulation making power must be exercised in a manner consistent with the finding in the Wik decision that a grant conferring exclusive possession extinguishes all native title in the affected area. It also reflects the reasoning used in formulating the Schedule.

Consequences of a lease being on the Schedule

The grant of the lease may be a previous exclusive possession act

36.51 The grant of a lease that appears in the Schedule will be a ‘previous exclusive possession act’ if the grant is valid (including as a result of the ‘past act’ or ‘intermediate period act’ validation regimes) and took place on or before 23 December 1996. The grant or vesting of a lease that is a previous exclusive possession act and is attributable to the Commonwealth extinguishes all native title to the land and waters covered by the lease. The extinguishment is taken to have occurred when the grant took place and the extinguishment is permanent. (See section 23B, subsection 23C(1) and section 237A).

36.52 The same applies to a lease that appears on the Schedule if the grant of the lease is a previous exclusive possession act attributable to a State or Territory that has made provision to the same effect as section 23C in relation to previous exclusive possession acts attributable to that State or Territory. Where a lease which is not on the Schedule has been by force of legislation converted to a lease that is, that will have been a vesting of the Scheduled interest. (See section 23B, subsection 23C(1) and sections 23E and 237A).

36.53 A lease that appears in the Schedule will be a ‘previous exclusive possession act’ as defined in subsection 23B(2) if it is valid and it is granted on or before 23 December 1996. There is no additional requirement that the lease also fall within the generic terms used in subparagraphs 23B(2)(c)(ii) to (viii). (There is also no requirement that a lease appear on the Schedule in order for the lease to fall within the generic terms used in subparagraphs 23B(2)(c)(ii) to (viii)). Conversely, it is of no consequence that any particular lease that appears in the Schedule is also capable of falling within one or more of those generic terms.

36.54 If the inclusion of a particular lease in the Schedule results in the extinguishment of any native title (which may be the case if a court considers that the lease does not confer a right of exclusive possession) then the native title holders involved are entitled to compensation (section 23J). However, the lease will continue to be a Scheduled interest and the extinguishment by Division 2B of native title cannot be revisited. It is essential to achieving certainty that the consequences set out in the NTA apply to leases contained in the Schedule.

36.55 In some cases, there may be an overlap between the operation of the confirmation provisions and the past act validation regime. The grant of a lease contained in the Schedule may be a previous exclusive possession act and may also be a Category A past act. In either case, the act extinguishes native title (see paragraph 15(1)(a) and 23C(1)), although subsection 23C(3) makes it clear that the consequences set out in that section apply to the act rather than those set out in section 15.

36.56 However, in the case of a lease that appears in the Schedule the grant of which is either a Category B or Category D past act, the confirmation consequences may differ from the validation consequences. For example, the Schedule may contain some leases the grant of which were Category D past acts, such as the grant of a commercial lease from the Crown in one capacity to the Crown in another capacity (section 232). A Category D past act did not extinguish native title, but rather, attracted the non-extinguishment principle (paragraph 15(1)(d)). The inclusion of a lease of this kind in the Schedule means that, if its grant is a previous exclusive possession act (that is, the grant was validated and took place on or before 23 December 1996), its grant will extinguish native title if the grant was attributable to the Commonwealth or if its grant was attributable to a State or Territory that has made similar provision in respect of previous exclusive possession acts attributable to them. That is, the confirmation provisions in section 23C ‘override’ the validation provisions in section 15 (see subsection 23C(3)).

Some invalid Scheduled interests may be validated

36.57 In some cases, the invalid grant of a lease that appears in the Schedule may be a ‘Category A intermediate period act’ (see sections 232A and 232B). A Category A intermediate period act attributable to the Commonwealth is valid and extinguishes all native title in relation to the land or waters covered by the lease (new sections 22A, paragraph 22B(a) and sections 232A and 232B). Native title holders will be entitled to compensation for the effect of the validation on their native title (new section 22D). A Category A intermediate period act attributable to a State or Territory may be validated and will extinguish all native title in relation to the land or waters covered by the lease if a law of the State or Territory contains provisions to the same effect as new sections 22B and 22C of the NTA (new sections 22B, 22C and 22F). Native title holders will be entitled to compensation for the effect of the validation on their native title (new section 22G).

Some Scheduled interests are protected from native title claim applications

36.58 Subject to subsection 61A(4)^[64], if a lease that appears on the Schedule is a previous exclusive possession act attributable to the Commonwealth, a native title claimant application may not be made that covers any area of land or waters that is or was the subject of that lease (new subsection 61A(2) of the NTA). Similarly, subject to subsection 61A(4), if a lease that appears on the Schedule is a previous exclusive possession act attributable to a State or Territory and a law of the State or Territory makes provision to the same effect as section 23C of the NTA, a native title claimant application may not be made that covers any area of land or waters that is or was the subject of that lease (new subsection 61A(2) of the NTA).

36.59 A claimant application made over land or waters covered by such a lease may be the subject of a strike out application to the Federal Court (new subsection 84C(1) of the NTA).

36.60 A claimant application made over land or waters covered by such a lease must be refused registration by the Registrar of the National Native Title Tribunal if the application and accompanying documents disclose, or the Registrar is otherwise aware, of that fact (new subsection 190B(8) of the NTA). A claimant application that is refused registration will not attract the right to negotiate.

Exclusive agricultural leases

36.61 The term ‘Scheduled interest’ also appears in the definition of ‘exclusive agricultural lease’ and ‘exclusive pastoral lease’. That is, an exclusive agricultural lease includes an agricultural lease that is a Scheduled interest (see new section 247A, and see also new section 248A). An agricultural lease that is a Scheduled interest will not fall within the definition of a non-exclusive agricultural lease (see new section 247B, and see also new section 248B). Accordingly the provisions of the NTA that apply to exclusive agricultural leases apply to agricultural leases that are Scheduled interests. The provisions of the NTA that apply to non-exclusive agricultural leases, for example new sections 24GB, 24GC and 24GE, do not apply to agricultural leases that are Scheduled interests.

References in this index are to paragraph numbers of the Explanatory Memorandum.

Clauses of the Bill

Schedule 1

9. 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.8, 2.9, 4.1, 4.2, 4.11, 4.13, 4.34, 4.35, 4.40, 4.42,

4.47, 5.1, 5.6, 5.14, 5.17, 5.31, 5.33, 5.40, 6.1, 6.4, 6.11, 6.18, 7.1, 7.8, 7.11, 7.19,

7.21, 7.23, 7.35, 8.1, 8.5, 8.13, 8.15, 8.17, 9.1, 9.11, 9.17, 9.18, 10.1, 10.3, 11.1,

11.5, 11.6, 11.7, 11.13, 12.1, 12.4, 13.1, 13.4, 14.1, 14.2, 15.1, 15.3, 15.7, 16.1,

16.3, 17.1, 17.6, 17.12, 17.22, 17.25, 17.30, 17.31, 17.32, 18.1, 18.3, 18.28, 19.1,

19.12, 19.23, 19.34, 19.43, 20.1, 20.4, 20.5, 20.6, 20.7, 20.11, 20.15. 20.26, 20.30,

20.32, 20.34, 20.40, 20.42, 20.46, 20.51, 20.52, 20.53, 20.60, 20.61, 20.66, 20.68,

20.76, 20.84, 20.93, 20.100, 20.104, 20.107, 21.6, 21.17, 22.1, 22.4, 22.11, 22.22,

Division 3 6.1, 7.1, 8.1, 9.1, 10.1, 11.1, 12.1, 13.1, 14.1, 15.1, 16.1, 17.1, 18.1, 20.1, 22.1

Section 26C 19.32, 19.33, 19.34, 19.35, 19.37, 19.39, 19.40, 19.41, 19.42, 19.43,

Section 29 20.7, 20.9, 20.12, 20.15, 20.16, 20.17, 20.20, 20.21, 20.22, 20.23, 20.24,

Section 43A 2.7, 2.8, 21.17, 21.18, 21.19, 21.23, 21.25, 21.26, 21.27, 21.29, 21.30, 21.31

Section 214 19.5, 19.7, 19.11, 19.21, 19.22, 19.30, 19.35, 19.44, 19.52, 19.54, 21.14,

Schedule 2

Part 1

Section 62 25.25, 25.29, 25.30, 25.31, 25.32, 25.33, 25.34, 25.35, 25.36, 25.37, 25.38,

Section 66 25.43, 25.49, 25.50, 25.52, 25.53, 25.54, 25.55, 25.56, 25.57, 25.58,

Part 2

Part 3

Schedule 3

Part 1

Part 2

30. 34.3, 34.40, 34.44, 34.45, 34.48, 34.52, 34.55, 34.59, 34.64, 34.65, 34.71, 34.74,

Section 203FB 34.154, 34.155, 34.156, 34.157, 34.158, 34.159, 34.160, 34.161, 34.162

Schedule 4

Schedule 5

Part 1

Part 2

Part 3

Part 4

11. 35.31, 35.32, 35.33, 35.35, 35.36, 35.37, 35.38, 35.39, 35.40, 35.41, 35.42, 35.44,

Part 5

Part 6

Part 6A

Part 7

Part 8

Amendments made by the Senate

Government Amendments

Opposition Amendments

Harradine Amendment

^[2] Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245.

^[3] Fourmile v Selpam Pty Ltd (Full Federal Court, 13 February 1998, unreported)

^[4] Fourmile v Selpam Pty Ltd (Full Federal Court, 13 February 1998, unreported)

^[5] Note that the land or waters must be, or have been, the subject of a freehold estate or lease (other than a mining lease) or public works for the making, amendment or repeal of the legislation to be an intermediate period act (see paragraph 232A(2)(e)).

^[8] A non-exclusive agricultural lease is an agricultural lease (section 247) which is not an exclusive agricultural lease (section 247B) (i.e. not an agricultural lease which confers a right of exclusive possession over the land or waters covered by the lease or which is a Scheduled interest (section 247A)). A non-exclusive pastoral lease is a pastoral lease (section 248) that is not an exclusive pastoral lease (section 248B) (i.e. not a pastoral lease which confers a right of exclusive possession over the land or waters covered by the lease or which is a Scheduled interest (section 248A)).

^[9] This provision is similar to that in subsection 228(3) of the NTA in relation to the validation of past acts regime and is also reflected in the general ‘pre-existing right based acts’ provision in the future act regime (proposed section 24IB).

^[10] The Bill will insert a new definition of what is meant by land or waters on which a public work is constructed, established or situated (see new section 251D in item 50 of Schedule 1).

^[11] Federal Court, Darwin, 27 February 1998, unreported, at pages 14 and 15-6 respectively of His Honour’s judgement.

^[12] The Senate made Government amendment (59) which is included in the Bill. This amendment (discussed in paragraph 25.29) enables native title determination applications to be made in relation to land that was subject to a previous exclusive possession act or a previous non-exclusive possession act if the extinguishing effect of these acts is to be disregarded under section 47A.

^[13] The Senate made Government amendment (59) which is included in the Bill. This amendment (discussed in paragraph 25.29) enables native title determination applications to be made in relation to land that was subject to a previous exclusive possession act or a previous non-exclusive possession act if the extinguishing effect of these acts is to be disregarded under section 47B.

^[14] Chapters 7, 22 and 23 provide a detailed discussion of the provisions dealing with indigenous land use agreements.

^[18] Refer to subsection 24CG(3) in item 9 of Schedule 1 (discussed in paragraph 22.10 of Chapter 22).

^[19] The term ‘onshore place’ is defined in section 253 of the NTA and means any land or waters within the territorial limits of a State or Territory (including an external Territory).

^[20] The term ‘ordinary title’ is defined in section 253 of the NTA and means, in most cases, a freehold estate.

^[21] The term ‘offshore place’ is defined in section 253 of the NTA and means any land or waters to which the NTA extends other than those that are in an onshore place.

^[22] Paragraph 7.32 of Chapter 7 sets out in more details what subsection 17(2) of the NTA does.

^[23] New Division 2B of Part 2 of the NTA deals with confirmation of past extinguishment of native title rights and interests that are inconsistent with a non-exclusive agricultural or pastoral lease. This is discussed in Chapter 5. New Subdivision I of Division 3 of Part 2 deals with renewals and extensions of such leases (see Chapter 11).

^[24] Chapter 17 deals with access and related rights for indigenous people.

^[25] See paragraphs 6.21 to 6.28 of Chapter 6

^[26] The validation of intermediate period acts is discussed in Chapter 4.

^[27] The validity of the lease etc. can arise because of Division 2 of Part 2 or proposed Division 2A of Part 2.

^[28] Discussed in Chapter 15.

^[29] Chapter 9 explains what a primary production activity is and gives examples of activities that are incidental to, or associated with, primary production activities.

^[30] The validation of intermediate period acts is discussed in Chapter 4.

^[31] The term ‘onshore place’ is defined in section 253 of the NTA and means any land or waters within the territorial limits of a State or Territory (including an external Territory). The term ‘offshore place’ is defined in section 253 of the NTA and means any land or waters to which the NTA extends other than those that are in an onshore place.

^[32] See Chapter 15.

^[33] The term ‘ordinary title’ is defined in section 253 and in most cases means a freehold estate.

^[34] The term ‘representative Aboriginal/Torres Strait Islander body’ is already defined under existing section 253 of the NTA. A body is a representative Aboriginal/Torres Strait Islander body for an area if the Commonwealth Minister has made a determination to that effect (see section 202 of the NTA). Note that Schedule 3 of the Bill makes changes to the provisions dealing with representative bodies (see Chapters 33 and 34).

^[35] Paragraph 7.32 of Chapter 7 sets out in more details what subsection 17(2) of the NTA does.

^[36] These are described in subsection 24LA(2).

^[37] The term ‘onshore place’ is defined in section 253 of the NTA and means any land or waters within the territorial limits of a State or Territory (including an external Territory). The term ‘offshore place’ is defined in section 253 of the NTA and means any land or waters to which the NTA extends other than those that are in an onshore place.

^[38] See Chapters 18, 19, 20 and 21.

^[50] Refer to the table in subsection 61(1) (inserted by item 19 of Schedule 2 of the Bill) and the definition of ‘native title claim group’ in section 253 (inserted by item 95 of Schedule 2).

^[51] See Chapter 5.

^[52] See Chapter 5.

^[53] The term ‘representative Aboriginal/Torres Strait Islander body’ is already defined under existing section 253 of the NTA. A body is a representative Aboriginal/Torres Strait Islander body for an area if the Commonwealth Minister has made a determination to that effect (see section 202 of the NTA). Note that Schedule 3 of the Bill makes changes to the provisions dealing with representative bodies (see Chapters 33 and 34).

^[54] Section 252 allows the Commonwealth Minister to determine the way in which public notification should occur (e.g. by notices in newspapers or radio broadcasts).

^[55] Subsection 202(8) is discussed in paragraph 22.8.

^[56] Subsection 202(8) is discussed in paragraph 22.8.

^[57] See Chapters 15 and 16.

^[58] See Chapters 4 and 5.

^[59] Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245.

^[60] Fourmile v Selpam Pty Ltd (Full Federal Court, 13 February 1998, unreported)

Kind of intermediate period act that is a category A intermediate period act	Comments
Grant or vesting of a freehold estate *[Subsection 232B(2)]*
Grant or vesting of a Scheduled interest *[Paragraph 232B(3)(a)]*	A definition of ‘Scheduled interest’ (section 249C) is inserted by item 49 of Schedule 1 of this Bill and is explained in Chapter 24 (Table 24.2).
Grant or vesting of a commercial lease *[Paragraph 232B(3)(b)]*	The lease must not be an agricultural lease or a pastoral lease. The term ‘commercial lease’ is already defined in section 246 of the NTA.

Kind of intermediate period act that is a category A intermediate period act	Comments
	constructed. They are also treated separately for the operation of the past act regime (paragraph 229(3)(b) of the NTA).
Grant or vesting of any lease (other than a mining lease) which confers a right of exclusive possession over particular land or waters *[Paragraph 232B(3)(g)]*	The term ‘lease’ is already defined in section 242 of the NTA. ‘Mining lease’ is already defined in section 245.

Act	Comments
Grant or vesting of a Scheduled interest *[Subparagraph 23B(2)(c)(i)]*	A definition of ‘Scheduled interest’ (section 249C) is inserted by item 49 of Schedule 1 of this Bill and is explained in Chapter 24 (Table 24.2).
Grant or vesting of a freehold estate *[subparagraph 23B(2)(c)(ii)]*
Grant or vesting of a commercial lease *[Subparagraph 23B(2)(c)(iii)]*	The lease must not be an agricultural lease or a pastoral lease. The term ‘commercial lease’ is already defined in section 246 of the NTA.

Validating provisions that, apart from section 24AB, cover the future act	Validating provision that prevails
Section 24EB (the provision validating future acts done under an indigenous land use agreement) and one or more of the provisions in the list in subsection 24AA(4)	Section 24EB *[Subsection 24AB(1)]*
Two or more of the provisions in the list in subsection 24AA(4)	The provision that is closest to top of the list in subsection 24AA(4) *[Subsection 24AB(2)]*

Thing that the future act cannot be, authorise or otherwise involve	Comments
The grant of a freehold estate in any of the land or waters affected by the act *[Subparagraph 24LA(1)(b)(i)]*
The grant of a lease over any of the land or waters affected by the act *[Subparagraph 24LA(1)(b)(ii)]*

Future act is attributable to the Commonwealth	Future act is attributable to a State or Territory
A person liable for the compensation under a law of the Commonwealth which provides that the person, rather than the Crown in right of the Commonwealth, is liable for the compensation	A person liable for the compensation under a law of the State or Territory which provides that the person, rather than the Crown in right of the State or Territory, is liable for the compensation
The Crown in right of the Commonwealth if there is no such law	The Crown in right of the State or Territory if there is no such law

Body to which a claim in an application for determination of native title has been made	Native title claim group
The Federal Court	All the persons who claim in the application to the Federal Court to hold the common or group rights that comprise particular native title.^[43]
A recognised State/Territory body	The person or persons making the claim, or on whose behalf the claim is made

Nature of the right	Effect of the act on native title
A right of access *[Paragraph 44B(1)(a)]*	The right of access is to the traditional access area in the same way and to the same extent as the person, or his or her ancestors, regularly had physical access at 23 December 1996. The access can only be exercised for the purpose of carrying on, in the traditional access area, the one or more traditional activities in the same way and to the same extent as they were carried on at 23 December 1996.
A right to carry on activities *[Paragraph 44B(1)(b)]*	The right is to carry on the traditional activities in the traditional access area in the same way and to the same extent as they were carried on at 23 December 1996

Thing not prevented by Subdivision Q	Comments
Mediation or arbitration by any person or body of a dispute about a right conferred by subsection 44B(1) (refer to Table 17.2) *[Paragraph 44G(a)]*	The parties may agree that a person or body other than the NNTT or a recognised State Territory body should mediate a dispute
The making or enforcing of agreements about access (other than in accordance with the rights conferred by subsection 44B(1)) to any area covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease *[Paragraph 44G(b)]*	Indigenous people and leaseholders may prefer to work out their own access arrangements rather than rely on those in Subdivision Q.

*Category of future act to which the right to negotiate provisions do not* apply**	Summary of the nature of the act
Acts to the extent they are valid under provisions of new Division 3 other than Subdivision M	The relevant provisions are listed in Table 19.4. (See paragraph 26(2)(a))
Approved exploration etc. acts	These are future acts determined in writing by the Commonwealth Minister to be approved exploration etc. acts. They are, broadly, future acts allowing mining exploration, prospecting or fossicking that are unlikely to have a significant impact on an area and that meet certain procedural and other requirements relating to consultation with actual or potential native title holders. (See paragraph 26(2)(b) and section 26A)

Act to which Subdivision M applies that is covered by the right to negotiate provisions	Comments
The creation of a right to mine, whether by the grant of a mining lease or otherwise *[Subparagraph 26(1)(c)(i)]*	The meaning of the term ‘mine’ is discussed in paragraph 19.6.
The variation of a right to mine to extend the area to which it relates *[Subparagraph 26(1)(c)(ii)]*	An example would be an increase in the size of an area that is covered by a mining lease.

Act to which Subdivision M applies that is covered by the right to negotiate provisions	Comments
	negotiate provisions unless it is being done so that infrastructure can be provided (whether or not by the private sector).
Any other act approved in writing by the Commonwealth Minister for the purposes of paragraph 26(1)(c) *[Subparagraph 26(1)(c)(iv)]*	Before giving the approval for an act attributable to a State or a Territory, the Commonwealth Minister must consult the State or Territory Minister about it. *[Subparagraph 26(1)(c)(iv)]* Such an approval by the Commonwealth Minister is a disallowable instrument. *[Schedule 1, item 34, section 214]*

*Provision that covers the future act such that the right to negotiate provisions do not* apply to it**	What the provision deals with
Section 24EB	Future acts done in accordance with indigenous land use agreements, but only where the agreement contains a statement that Subdivision P is not to apply (see Chapter 7)
Section 24FA	Future acts where procedures indicate an absence of native title (see Chapter 8)
Section 24GB	Acts permitting primary production on non-exclusive agricultural or pastoral leases (see Chapter 9)

Section 24GD	Acts permitting off-farm acts etc. directly connected to primary production activities (see Chapter 9)
Section 24GE	The granting of rights to third parties etc. on non-exclusive agricultural or pastoral leases (see Chapter 9)
Section 24HA	Management of water and airspace (see Chapter 10)
Section 24IA	Acts involving renewals and extensions etc. of acts - e.g. the renewal of a pastoral or mining lease (see Chapter 11)
Section 24JA	Acts involving reservations (see Chapter 12)
Section 24KA	Acts involving facilities for services to the public (see Chapter 13)
Section 24LA	Low impact future acts (see Chapter 14)

Requirement	Comments
An agreement of the kind mentioned in paragraph 31(1)(b) must be made *[Paragraph 28(1)(f)]*	Section 31 allows the negotiation parties to negotiate an agreement about whether the act should be done. This requirement has been modified slightly for technical reasons consequential upon minor changes to the provisions dealing with agreements under the right to negotiate process.

*Circumstance that cannot* exist if a determination under section 36A is to be made for an act**	Comments
A previous agreement about the act under the right to negotiate provisions *[Paragraph 36A(1)(b)]*	This is an agreement negotiated under the normal negotiation procedures set out in section 31. This might occur where a party has withdrawn (under subsection 35(2)) an application for an arbitral body determination and the parties have reached an agreement.
A previous determination under section 34A has been made about the act *[Paragraph 36A(1)(c)]*	Section 34A, explained above, allows a relevant Minister to make a determination in urgent and significant cases about a future act subject to the right to negotiate provisions.

Paragraph 52(1)(e) and subsections 52(2) to 52(7)	The changes to these provisions reflect the change in terminology describing amounts put aside as the result of an arbitration at the end of a right to negotiation process. For the reasons outlined above the term ‘negotiated compensation’ has been replaced with ‘trust amount’. *[Schedule 1, items 24 and 25]*
Paragraph 52(3)(b)	The change to paragraph 52(3)(b) is a technical correction to the NTA and reflects the fact that the only entitlement to compensation arises under Division 3 of Part 2. *[Schedule 1, item 26]*

Type of future act	Rule
A compulsory acquisition conferring on persons other than the Government party rights and interests in relation to the land or waters concerned other than a conferral for the purpose of providing an infrastructure facility *[Subsection 43A(7)]* (These are the acts covered by subparagraph 26(1)(c)(iii) discussed in Table 19.2 of Chapter 19)	The State or Territory alternative provisions cannot apply to such an act if it involves the acquisition of native title rights and interests for land or waters in both a leased or reserved area and another area. Because of the nature of an acquisition it is appropriate that there be any notional splitting of the acquisition. *[Subsection 43A(7)]*

Decision making process of the persons holding native title	Way in which the authority is given
There is a particular process of decision making under the traditional laws and customs of the group holding the native title to the area covered by the agreement for authorising things like agreements	The authority for the making of the agreement must be given in accordance with that process *[Paragraph 251A(a)]*
There is no such process	The authority must be given in accordance with a process of decision making agreed to and adopted by the members of the group in relation to giving authority of that kind *[Paragraph 251A(b)]*

Determination under subsection 26C(2)	This is a determination by the Commonwealth Minister that an area is an ‘approved opal or gem mining area’ for the purposes of the right to negotiate provisions. (Refer to Chapter 19).
Determination under paragraph 43(1)(b)	This is a determination by the Commonwealth Minister that alternative State or Territory right to negotiate provisions meet certain requirements. (This reflects an instrument that is currently disallowable under the NTA). (Refer to Chapter 21).
Determination under subparagraph 43(3)(c)(ii)	This is a determination by the Commonwealth Minister granting a further extension of time to enable compliance by a State or Territory alternative regime with the requirements in subsection 43(2).

Determination under paragraph 43A(1)(b)	This is a determination by the Commonwealth Minister that State or Territory provisions relating to leased or reserved areas, as an alternative to the right to negotiate provisions, meet certain requirements. (Refer to Chapter 21).
Determination under subparagraph 43A(6)(c)(ii)

Determination under subsection 202(1)	This is a determination by the Commonwealth Minister that a body is a representative Aboriginal/Torres Strait Islander body. (This reflects an instrument that is currently disallowable under the NTA).
Determination under subsection 207A(1)	This is a determination by the Commonwealth Minister that a body is a recognised State/Territory body. This reflects the determinations under subsection 251(1) of the existing NTA: section 251 is being renumbered as section 207A. (Refer to Chapter 25).

Determination under subsection 207B(3)	This is a determination by the Commonwealth Minister that an equivalent State/Territory body can perform certain functions of the Native Title Registrar or the NNTT under the NTA. (Refer to Chapter 27).
Determination under subsection 245(4)	This is a determination by the Commonwealth Minister that a city, town, private residence, building or works in an area covered by a mining lease is taken not to be covered by a separate lease. (This reflects an instrument that is currently disallowable under the NTA).

Kind of interest	Definition
Scheduled interest	Anything set out in Schedule 1 to the NTA and any interest in relation to land or waters declared by the regulations for the purposes of paragraph 249C(1)(b) to be a Scheduled interest. However, a particular regulation can only cover a single type of interest. *[Schedule 1, item 49, section 249C; Schedule 4, item 1]*
Exclusive agricultural lease	An agricultural lease that confers a right of exclusive possession over the land or waters it covers or that is a Scheduled interest. This is intended to cover agricultural leases for which, by reason of the grant or the nature of the purpose for which the land is used, exclusive possession must have been intended. *[Schedule 1, item 47, section 247A]*

Commonwealth of Australia Explanatory Memoranda

NATIVE TITLE AMENDMENT BILL 1997

Introduction

The history of the Bill in the Parliament

Overview of amendments in the Native Title Amendment Bill 1997

Amendments relating to acts affecting native title

Amendments relating to the management of claims

Amendments relating to representative Aboriginal/Torres Strait Islander bodies

List of Scheduled interests

Application and transitional measures

Clauses in the Native Title Amendment Bill 1997

Short title

Commencement

Sections 1, 2 and 3

Part 1 of Schedule 3

Part 2 of Schedule 3

Remaining provisions

Schedule(s)

Constitutional basis

Financial Impact Statement

Amendments made by the Senate in December 1997

Indigenous Land Use Agreements

Applications

Claims process and sunset clause

Registration Test

Representative bodies

Use of reserved land

Miscellaneous

Management of water and airspace

Offshore places

Compensation

Validation

Renewals and extensions

Right to negotiate

Freehold test

Confirmation of extinguishment

Pastoral activities

Access rights

Overview

Point 1 Validation of acts/grants between 1/1/94 and 23/12/96

Point 2 Confirmation of extinguishment of native title on ‘exclusive’ tenures

Point 3 Provision of government services

Point 4 Native title and pastoral leases

Point 5 Statutory access rights

Point 6 Future mining activity

Point 7 Future government and commercial development

Point 8 Management of water resources and airspace

Point 9 Management of claims

Point 10 Agreements

The High Court’s decision in Mabo (No. 2)

The Native Title Act 1993

Validation of past acts by Commonwealth, States and Territories

Future Extinguishment

The Future Act Regime

Right to Negotiate

Compensation for Future Acts

Determinations of Native Title

The NNTT and Court Process

Role of Federal Court

Recognised States and Territory bodies

Role of prescribed bodies corporate

Role of Representative Aboriginal/Torres Strait Islander Bodies

Aboriginal and Torres Strait Islander Land Fund

The Native Title Act Case

The effect of the High Court’s Brandy decision and the Full Federal Court’s Fourmile decision

Effect of cases dealing with registration and the acceptance test

Review of Representative Bodies

Native Title Amendment Bill 1996 and the Exposure Draft

The effect of the High Court’s Wik decision

Overview

Background to Division 2A

What is an intermediate period act?

General - acts between 1 January 1994 and 23 December 1996

Acts done in pursuance of options, reservations etc. created in the intermediate period

General validation of Commonwealth intermediate period acts

When is an act attributable to the Commonwealth?

Specific effect on native title of validation of Commonwealth acts

Category A intermediate period acts

What does extinguishment mean?

What is a category A intermediate period act?