Commonwealth Numbered Acts

NATIVE TITLE AMENDMENT ACT 1998 NO. 97, 1998 - SCHEDULE 5

1 Contents

(1) This Schedule contains application and transitional provisions in relation to amendments made by this Act about:

(a) future acts (see Part 2); and

(b) native title determination applications etc. (see Parts 3 and 4); and

(c) various other matters (see Part 5).

(a) deals with the effect of the failure to table a particular determination made under the old Act (see Part 6); and

(b) ensures that there will be compensation for the effect of this Act (see Part 7); and

(c) provides for the making of regulations for the purposes of this Act (see Part 8); and

(d) defines terms used in this Schedule (see Part 9).

Part 2--Application of future act amendments

2 Application

Subject to this Schedule:

(a) the repeal of Division 3 of Part 2 of the old Act; and

(b) the insertion of Subdivisions A to P of Division 3 of Part 2 of the new Act; and

(c) any related amendments of the new Act;

3 Transitional--certain modified Subdivisions of Division 3 of Part 2 to have effect in period from 23.12.96 until commencement

The old Act applies to future acts taking place after 23 December 1996 but before the commencement of this Act as if:

(a) Subdivisions G to K of Division 3 of Part 2 of the new Act (disregarding paragraph 24GE(1)(f)), and any related provisions of the new Act, were included in the old Act; and

(b) acts to which those Subdivisions apply were permissible future acts.

Old Act section 29 notices--section 28 satisfied or arbitral body application

(1) If, before the commencement of the new "right to negotiate" provisions:

(a) a notice was given in relation to a future act under section 29 of the old Act; and

(b) apart from this subitem, the new "right to negotiate" provisions would apply in relation to the future act after the commencement of this Act; and

(c) either:

(i) the requirements of any of paragraphs 28(1)(a) to (f) of the old Act were satisfied; or

(ii) an application was made under section 35 of the old Act to an arbitral body and had not been withdrawn;

Old Act section 29 notices--old Act native title parties

(2) If:

(a) a notice under section 29 of the old Act was given in relation to a future act at least 2 months before the commencement of the new "right to negotiate" provisions; and

(b) apart from this subitem, the new "right to negotiate" provisions would apply in relation to the future act after the commencement of this Act; and

(c) subitem (1) does not apply to the future act;

(d) the only persons who were native title parties were those who were native title parties under the old Act; and

(e) the requirements of section 29 of the new Act had been complied with.

(3) If:

(a) before the commencement of the new "right to negotiate" provisions:

(i) a notice under section 29 of the old Act was given in relation to a future act; and

(ii) the notice included a statement that the Government party considered the act to be an act attracting the expedited procedure; and

(iii) an objection was lodged under subsection 32(3) of the old Act against the inclusion of the statement; and

(b) by the time the new "right to negotiate" provisions commenced, no determination had been made under section 32(4) of the old Act in relation to the objection; and

(c) apart from this subitem, the new "right to negotiate" provisions would apply in relation to the future act after the commencement of this Act;

(d) the old "right to negotiate" provisions continue to apply, despite the amendments made by this Act, for the purpose of making the determination; and

(e) if the determination is that the act is not an act attracting the expedited procedure, the new "right to negotiate" provisions apply in relation to the future act as if:

(i) the only persons who were native title parties were those who were native title parties under the old Act; and

(ii) the requirements of section 29 of the new Act had been complied with.

(4) The amendments made by this Act do not affect any conditions in:

(a) an agreement of the kind mentioned in paragraph 31(1)(b) of the old Act; or

(b) a determination under section 38 of the old Act; or

(c) a declaration under section 42 of the old Act;

Part 3--Application of amendments relating to section 61 applications: proceedings relating to determinations

5 Table of situations and consequences

The table in item 6 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, and certain consequences of the commencement of this Act.

6 Table

Case	Situation at the commencement of this Act	Consequences
1	Application: (a) is being processed; or (b) is being reviewed by a court; or (c) has been accepted but the Registrar has not started giving notification.	Application is taken to have been made to Federal Court.
2	Registrar has given, or is giving, notification but section 66 period not completed.	Application is taken to have been made to Federal Court. Any notification is taken to be for that application and the same people are the parties.
3	Notification given by Registrar, section 66 period for the application is completed and application is not finalised.	Application is taken to have been made to Federal Court. Any notification is taken to be for that application and the same people are the parties. If the application is not unopposed, item 7 or 8 applies in relation to mediation. If the application is a non-claimant application that is unopposed, item 9 applies in relation to section 24FA protection.
4	NNTT has made, or has purported to make, a determination under the old Act that there is no native title in relation to an area. The normal application and review period defined in subsection 167(10) of the old Act has finished, and case 3 does not apply.	Native Title Registrar must remove any relevant entry from National Native Title Register. Any determination is taken not to have been an approved determination of native title. Any determination is taken never to have been registered under section 166 of the old Act. Item 10 applies in relation to section 24FA protection. A further native title determination application may be made.

7 Case 3 in item 6--previously directed mediation conference

If:

(a) an application that was made to the Native Title Registrar under section 61 of the old Act is taken to have been made to the Federal Court; and

(b) at or before the commencement of this Act, the President has directed the holding of a conference of the parties or their representatives under subsection 72(1) of the old Act, in respect of the whole or a part of the proceeding; and

(c) the Tribunal has not made a determination under section 73 or 160 of the old Act; and

(d) the Native Title Registrar has not lodged the application with the Federal Court under section 74 of the old Act;

8 Case 3 in item 6--application already with Federal Court

If:

(a) an application that was made to the Native Title Registrar under section 61 of the old Act is taken to have been made to the Federal Court; and

(b) the Native Title Registrar has lodged the application with the Federal Court under section 74 of the old Act;

9 Case 3 in item 6--effect of section 24FA protection

If case 3 in the table in item 6 applies to a non-claimant application covering an area, the area:

(a) is taken to be subject to section 24FA protection (within the meaning of the new Act) unless and until:

(i) the area is covered by an entry in the National Native Title Register specifying that native title exists in relation to the area; or

(ii) the non-claimant application is withdrawn or dismissed; and

(b) is taken to have been subject to section 24FA protection (within the meaning of the new Act) at all times since the end of the period of 2 months worked out under section 66 of the old Act.

If case 4 in the table in item 6 applies to an area, any part of the area:

(a) is taken to be subject to section 24FA protection (within the meaning of the new Act) unless and until that part of the area is covered by an entry in the National Native Title Register specifying that native title exists in relation to that part of the area; and

(b) is taken to have been subject to section 24FA protection (within the meaning of the new Act) at all times since the end of the period of 2 months worked out under section 66 of the old Act.

Part 4--Application of amendments relating to section 61 applications: registration of claims

11 Registration of claims

Pre-commencement registered claims covered

(1) This item sets out the consequences of the commencement of this Act in relation to a claim made in an application that was given to the Native Title Registrar as mentioned in section 61 of the old Act if, when this Act commenced, an entry recording details of the claim was on the Register of Native Title Claims.

Excluded case

(2) However, the item does not apply if, before this Act commenced, an approved determination of native title had been made in relation to the application.

Section 190A to be applied, with expedited consideration, to applications before 27 June 1996 where section 29 notice

(3) If:

(a) the application was made before 27 June 1996; and

(b) a notice is given under section 29 of the new Act, or a corresponding provision of a law of a State or Territory covered by a determination under subsection 43(1) of the new Act or old Act, in relation to an act affecting any of the land or waters covered by the claim; and

(c) no such notice has previously been given in relation to an act affecting any of the land or waters covered by the claim;

(d) consider the claim under section 190A of the new Act; and

(e) use his or her best endeavours to finish doing so by the end of 4 months after the notice is given.

Section 190A to be applied within one year to applications before 27 June 1996 where freehold estate or non-mining lease

(4) If:

(a) the application was made before 27 June 1996; and

(b) at the commencement of this Act, any part of the area covered by the claim is covered by a freehold estate or a lease (other than a mining lease);

(c) consider the claim under section 190A of the new Act; and

(d) use his or her best endeavours to finish doing so by the end of one year after the commencement of this Act.

Section 190A to be applied to applications made on or after 27 June 1996

(5) If the application was made on or after 27 June 1996, the Registrar must consider the claim under section 190A of the new Act as soon as reasonably practicable.

Expedited section 190A consideration where section 29 notice

(6) If:

(a) either before the Registrar begins to consider the claim in accordance with subitem (4) or (5) or while the Registrar is doing so, a notice is given under section 29 of the new Act, or a corresponding provision of a law of a State or Territory covered by a determination under subsection 43(1) of the new Act, in relation to an act affecting any of the land or waters covered by the claim; and

Note: Subitem 14(4) deems determinations under subsection 43(1) of the old Act to be made under subsection 43(1) of the new Act for post-commencement purposes.

(b) no such notice has previously been given in relation to an act affecting any of the land or waters covered by the claim;

Order of consideration of claims affected by same section 29 notice

(7) If:

(a) a notice is given under section 29 of the new Act, 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; and

(b) as a result of the giving of the notice, the Registrar is required by subitem (3) or (6), or by subitems (3) and (6), to consider 2 or more claims under section 190A of the new Act;

Later information to be taken into account

(8) In considering a claim in accordance with subitems (3) to (7), the Registrar must:

(a) in addition to having regard to information in accordance with subsection 190A(3) of the new Act, also have regard to any information provided by the applicant after the application was made; and

(b) apply section 190A of the new Act as if the conditions in sections 190B and 190C requiring that the application:

(i) contain or be accompanied by certain information or other things; or

(ii) be certified or have other things done in relation to it;

also allowed the information or other things to be provided, or the certification or other things to be done, by the applicant or another person after the application is made; and

(c) for the purposes of paragraphs (a) and (b) of this subitem, advise the applicant that the Registrar is considering the claim, and allow the applicant a reasonable opportunity to provide any further information or other things, or to have any things done, in relation to the application.

(9) If the claim does not satisfy all of the conditions in sections 190B and 190C of the new Act:

(a) the Registrar must remove the details of the claim from the Register and give written notice as required by subsection 190D(1); and

(b) the other provisions of sections 190A to 190D apply as if the notice mentioned in paragraph (a) were given under subsection 190D(1); and

(c) after the Registrar has complied with subitems (3) to (8) and this subitem (in so far as they are applicable), he or she is taken to have complied with section 190A.

(10) If:

(a) a law of a State or Territory that deals with notifying the Registrar of claims for the purposes of paragraph 190(1)(c) of the old Act is amended so as to impose conditions for registration of claims equivalent to those set out in sections 190B and 190C of the new Act; and

(b) a recognised State/Territory body of the State or Territory notifies the Registrar that a specified claim, of which details are on the Register when the amendment commences, does not satisfy the new conditions in the law of the State or Territory;

Consequences of removal of claim--pre-27 June 1996 cases

(11) If:

(a) the application was made before 27 June 1996; and

(b) under subitem (9) or (10), the Registrar removes the details of the claim from the Register;

Consequences of removal of claim--27 June 1996 and later cases

(12) If:

(a) the application was made on or after 27 June 1996; and

(b) under subitem (9) or (10), the Registrar removes the details of the claim from the Register;

(c) any act of which notice was given under section 29 of the old Act, or a provision of a law of a State or Territory that is equivalent to that section; and

(d) any act of which notice was given under section 29 of the new Act, or a provision of a law of a State or Territory that is equivalent to that section, before the removal of the details;

Agreements and determinations are not affected

(13) Despite subitem (12), if:

(a) an agreement of the kind mentioned in paragraph 31(1)(b) of the new Act or of the old Act; or

(b) a determination under section 36A or 38 of the new Act or under section 38 of the old Act; or

(c) a declaration under section 42 of the new Act or of the old Act;

Note: This item is subject to any regulations that may be made under subsection 43(4) or 43A(11) of the new Act.

Part 5--Various application and transitional provisions

12 Transitional--State and Territory validation legislation

If a law of a State or Territory made before the commencement of this Act contained provisions to the same effect as sections 15 and 16 of the old Act, the provisions continue to have that effect despite the amendments made by this Act.

13 Transitional--former section 21 agreements

The repeal of section 21 of the old Act by this Act does not apply to any agreement covered by that section that was made before the commencement of this Act.

14 Transitional--determinations, approvals, regulations etc.

(1) Any determination made under paragraph 23(7)(c) of the old Act that is in force immediately before the commencement of this Act has effect after the commencement of this Act as if:

(a) it were a determination made under each of subsections 24MD(7) and 24NA(9) of the new Act; and

(b) 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.

(3) If a determination of an act under paragraph 26(3)(b) of the old Act was in force immediately before the commencement of this Act, the new "right to negotiate" provisions do not apply to the act, until such time as the determination is revoked in writing by the Commonwealth Minister. Such a revocation is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

(4) Any determination made under subsection 43(1) of the old Act that is in force immediately before the commencement of this Act has effect after the commencement of this Act as if it were made under subsection 43(1) of the new Act.

(5) Any regulations made for the purposes of subsection 61(2) or 62(2) of the old Act that are in force immediately before the commencement of this Act have effect after the commencement of this Act as if they were made for the purposes of subsection 61(5) of the new Act.

(6) Any regulations made for the purposes of subsection 75(2) or section 76 of the old Act that are in force immediately before the commencement of this Act have effect after the commencement of this Act as if they were made for the purposes of section 76 of the new Act.

(7) The repeal of subsection 183(5) of the old Act by this Act does not apply to any delegation made under that subsection before the commencement of this Act.

(8) Any determination made under subsection 251(1) of the old Act has effect after the commencement of this Act as if it were made under subsection 207A(1) of the new Act.

(9) Any determination made under subsection 252(1) of the old Act for the purposes of subsection 29(3) or paragraph 66(2)(b) of the old Act that is in force immediately before the commencement of this Act has effect after the commencement of this Act as if it were a determination made for the purposes of subsection 29(3) or paragraph 66(3)(d), respectively, of the new Act.

15 Transitional--section 26D of new Act

Section 26D of the new Act has effect, in addition to its effect apart from this item, as if the reference in subparagraph 26D(1)(b)(ii) to "this Subdivision" included a reference to Subdivision B of Division 3 of Part 2 of the old Act.

16 Transitional--statutory access rights

If, at any time before the commencement of Subdivision Q of Division 3 of Part 2 of the new Act, an entry was made on the Register of Native Title Claims, then, for the purposes of that Subdivision, the persons who claimed to hold the native title concerned, and any others with whom those persons claimed to hold the native title, are taken to be persons included in the native title claim group in relation to the claim, for so long as the entry is on the Register.

17 Application of sections 24GC and 44H

(1) Section 24GC of the new Act applies to activities done at any time, whether before or after the commencement of that section.

(2) Section 44H of the new Act applies to the grant, issue or creation of a lease, licence, permit or authority at any time, whether before or after the commencement of that section.

18 Application of compensation limitation provision

Section 51A of the new Act applies if the entitlement to the compensation concerned arose either before or after the commencement of that section.

19 Application of consolidation provision

Section 67 of the new Act applies to applications made either before or after the commencement of that section.

20 Application of native title determination provision

Section 68 of the new Act applies:

(a) whether the first-mentioned native title determination in that section is made before or after the commencement of that section; and

(b) whether the application that results in the second-mentioned determination in that section is made before or after the commencement of that section.

Section 84C of the new Act applies where the main application mentioned in that section was made either before or after the commencement of that section. If the main application was made before the commencement, the reference in that section to section 61 or section 62 is a reference to section 61 or section 62 of the old Act.

22 Application of mediation provisions

Division 1A of Part 4, and any related provisions, of the new Act apply in relation to applications made either before or after the commencement of that Division or those provisions.

23 Transitional--assistance to native title claimants

Despite subsection 183(6) of the new Act, if:

(a) before the commencement of that subsection, the Attorney-General authorised the provision of assistance under section 183 of the old Act to a person claiming to hold native title to an area; and

(b) after the commencement of that subsection, the person applies under that section for the provision of further assistance in respect of the same claim;

24 Application of native title determination provision

The repeal of section 225 of the old Act and insertion of section 225 in the new Act by this Act apply to all determinations made after the commencement of this Act, regardless of when any native title determination application (if relevant) was made.

25 Transitional--definition of registered native title claimant

For the purposes of the definition of registered native title claimant in the new Act, if, at the commencement of this Act, an entry relating to a claim is on the Register of Native Title Claims (other than an entry that had been amended under subsection 190(2) of the old Act to include details of a decision or determination), then, for so long as the entry remains on the Register, the person whose name appears in the entry as the person who is taken to be the claimant in relation to the claim is taken to be a person whose name appears in the entry as the applicant in relation to the claim.

Part 6--Validation of certain acts

26 Validation of acts etc.

(1) In this item:

amending determination means the determination made under the old Act on 12 December 1995 that purported to amend the original determination.

original determination means the determination made under the old Act on 24 December 1993 that, according to the determination, may be cited as Native Title (Notices) Determination No. 1 of 1993.

(2) If:

(a) before or after the commencement of this item, anything was or is done, or not done, in reliance or purported reliance on a notification or giving of notice; and

(b) the notification or giving of notice took place in the way set out in:

(i) the original determination; or

(ii) the original determination as amended by the amending determination;

Note: Section 214 of the Native Title Act 1993 made the original determination a disallowable instrument, which meant that it was required under the Acts Interpretation Act 1901 to be tabled.

Part 7--Compensation etc.

27 Entitlement to "just terms" compensation

(1) If, apart from this item, the application of any of the provisions of this Act in any particular case would result in a paragraph 51(xxxi) acquisition of property of a person other than on paragraph 51(xxxi) just terms, the person is entitled to such compensation, or compensation in addition to any otherwise provided by the Native Title Act 1993 , from:

(a) if the compensation is in respect of a future act attributable to a State or a Territory--the State or Territory; or

(b) in any other case--the Commonwealth;

Federal Court's jurisdiction

(2) The Federal Court has jurisdiction with respect to matters arising under subitem (1) and that jurisdiction is exclusive of the jurisdiction of all other courts except the High Court.

Part 8--Regulations

28 Regulations

(1) The Governor-General may make regulations prescribing matters:

(a) required or permitted by this Act to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.

Part 9--Interpretation

29 Contents of this Part

This Part defines terms used in this Schedule.

30 Meaning of commencement of this Act

The commencement of this Act is the time when this item commences.

31 Meaning of new Act and old Act

(1) The new Act is the Native Title Act 1993 , as amended at the commencement of this Act.

(2) The old Act is the Native Title Act 1993 , as in force immediately before the commencement of this Act (including as it applies in accordance with item 3).

32 Meaning of new "right to negotiate" provisions and old "right to negotiate" provisions

(1) The new "right to negotiate" provisions are the provisions in Subdivision P of Division 3 of Part 2 of the new Act.

(2) The old "right to negotiate" provisions are the provisions in Subdivision B of Division 3 of Part 2 of the old Act.

33 Meaning of application is being processed

(1) An application is being processed if:

(a) the application has been given to the Native Title Registrar under subsection 61(1) of the old Act; and

(b) the application is still being reviewed by the Registrar (see subitem (2)) or a presidential member (see subitem (3)).

(a) the Registrar has not yet completed consideration of the application; or

(b) the Registrar has completed consideration of the application and:

(i) has formed an opinion mentioned in paragraph 63(1)(a) or (1)(b) or subsection 64(1) of the old Act; but

(ii) has not referred the application to a presidential member under subsection 63(2) or 64(1) of the old Act.

(a) the Registrar has referred the application to a presidential member under subsection 63(2) or 64(1) of the old Act; and

(b) the presidential member has not completed consideration of the application.

An application is being reviewed by a court if:

(a) the presidential member has made a direction under paragraph 63(3)(c) or 64(2)(c) of the old Act; and

(b) either:

(i) the direction is the subject of a proceeding under the old Act before a court; or

(ii) the period during which an application for some form of review of the direction, or of a decision made on review of the direction, may be made has not yet finished.

An application has been accepted if it has been accepted under section 63 or 64 of the old Act.

36 Meaning of application is taken to have been made to Federal Court

If an application is taken to have been made to the Federal Court :

(a) the application is to be treated as if it were made to the Federal Court under the relevant provisions of the new Act; and

(b) the Native Title Registrar must give the application to the Federal Court, but section 63 of the new Act does not apply in relation to the application.

The Registrar is giving notification if he or she has given notice of the application to a person whose interests may be affected by a determination but has not given, and is not taken to have given, notice to all such persons.

38 Meaning of Registrar has given notification

The Registrar has given notification if he or she has given, or is taken to have given, notice of the application to all persons whose interests may be affected by a determination in relation to the application, under section 66 of the old Act.

39 Meaning of section 66 period

The section 66 period , for an application, means the period of 2 months worked out under section 66 of the old Act in relation to the application.

40 Meaning of notification is taken to be for that application

If, in relation to an application, notification is taken to be for that application , the notification is to be treated as if it were notice of the application given, or taken to have been given, under section 66 of the new Act, that contained details of the application.

41 Meaning of unopposed

An application is unopposed if the application is unopposed for the purposes of section 70 of the old Act.

42 Meaning of not finalised

An application is not finalised if:

(a) the application is the subject of a proceeding before the NNTT, the Federal Court or the High Court; or

(b) a determination has been made in respect of the application but the normal application and review period defined in subsection 167(10) of the old Act has not finished.

If the same people are the parties :

(a) any people who were parties to the application that was made to the Registrar under section 61 of the old Act are taken to be the parties to the application that is taken to have been made to the Federal Court under the relevant provisions of the new Act; and

(b) a person who notifies the Registrar under paragraph 68(2)(b) of the old Act, after the commencement of the new Act but within the period of 2 months worked out under section 66 of the old Act, is also a party.

Note: Other people may also become parties (see section 84 of the new Act).

[ Minister's second reading speech made in--

House of Representatives on 9 March 1998

Senate on 11 March 1998 ]

(16/98)